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Press releases and law firm thought leadership

This page is dedicated to keeping readers informed of the latest news and thought leadership articles from law firms across the globe.

If your firm wishes to publish press releases or articles, please contact Shehab Khurshid on +44 (0) 207 396 5689 or shehab.khurshid@legalease.co.uk

 

Legal Developments Worldwide

Articles contributed by Ogier

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Enhanced Information for Cayman Entities

October 2019 - Finance. Legal Developments by Ogier .

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The Cayman Islands Government has passed a number of amendment laws to strengthen Cayman's anti-money laundering and counter-financing of terrorism regime. The laws, published on 8 August 2019, are intended to help address certain recommended actions in Cayman's legislative framework identified by the Caribbean Financial Action Task Force in its evaluation report published in March 2019.

New Cayman Data Protection Law – A guide for Cayman funds

October 2019 - Finance. Legal Developments by Ogier .

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The Cayman Islands Data Protection Law, 2017 (DP Law) is currently scheduled to come into effect on 30 September 2019.  Once commenced, it will enact a framework of rights and duties to regulate the processing of individuals' personal data broadly based on the same internationally recognised privacy principles that form the basis for other data protection laws globally.  The DP Law will regulate the processing of all personal data in the Cayman Islands and will affect any entity established in the Cayman Islands, including investment funds, that processes personal data regardless of whether such processing takes place within the Cayman Islands and regardless of whether the personal data relates to Cayman individuals.  For our full briefing see Cayman Islands Data Protection Law: An Ogier Client Guide.

Exempt bodies: Substance regulations may still apply

October 2019 - Corporate & Commercial. Legal Developments by Ogier .

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The Income Tax (Substance Requirements)(Implementation) Regulations, 2018 as amended (the Substance Regulations) came into force on 1 January 2019 and have recently been further updated by The Income Tax (Substance Requirements)(Implementation)(Amendment) Regulations, 2019 (the Amendment Regulations), with effect from 1 August 2019.  The Amendment Regulations have extended the scope of the Substance Regulations to include all tax exempt bodies that have been granted an exemption under paragraphs (3) and (5) of Schedule 1 of the Income Tax (Exempt Bodies) (Guernsey) Ordinance, 1989 (as amended) (the Exempt Bodies Ordinance).  In addition, the Amendment Regulations clarify the scope of the Substance Regulations in relation to IP Assets and High Risk IP Companies – the balance of this note focuses on the change in status of tax exempt bodies. 

Cayman Islands wills law heralds a more flexible approach

October 2019 - Tax & Private Client. Legal Developments by Ogier .

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The rules recognising the legal formality of wills in the Cayman Islands are prescriptive, requiring the will to be executed in writing, signed at the foot of the document by the testator and witnessed by two witnesses who formally attest the will in writing in the presence of the testator.

Luxembourg Government submits bill to Parliament implementing the EU Anti-Tax Avoidance Directive 2

October 2019 - Tax & Private Client. Legal Developments by Ogier .

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On 8 August 2019, the Luxembourg Government submitted a draft law to the Parliament (the Draft Law) to implement the Council Directive (EU) 2017/952 of 29 May 2017 (ATAD 2 or the Directive) into Luxembourg domestic law.

Ogier fund finance team now offers Luxembourg legal advice from US time zone with return of Catharin

October 2019 - Finance. Legal Developments by Ogier .

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Ogier's fund finance team now offers Luxembourg legal advice from a US time zone with the return of fund finance specialist Catharina von Finckenhagen to the Cayman Islands as a dual-qualified Luxembourg advocate and Cayman attorney.

Enhanced Information for Cayman Entities

October 2019 - Corporate & Commercial. Legal Developments by Ogier .

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The Cayman Islands Government has passed a number of amendment laws to strengthen Cayman's anti-money laundering and counter-financing of terrorism regime. The laws, published on 8 August 2019, are intended to help address certain recommended actions in Cayman's legislative framework identified by the Caribbean Financial Action Task Force in its evaluation report published in March 2019.

Register of beneficial owners deadline approaching – are you ready?

October 2019 - Corporate & Commercial. Legal Developments by Ogier .

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As of 1 March 2019, the Luxembourg law of 13 January 2019 (the Law) creating a register of beneficial owners (Registre des bénéficiaires effectifs or "RBE") is in force.

Jersey substance proposals – the Banking and Finance perspective

October 2019 - Finance. Legal Developments by Ogier .

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EU finance ministers have formally approved Jersey's economic substance legislation by removing the jurisdiction from the "grey list" on 12 March 2019 and the Privy Council granted formal approval to the Taxation (Companies - Economic Substance) (Jersey) Law 2019 (the Law) on 13 March 2019. The Law takes effect from 1 January 2019.

Ogier advises on $889 million acquisition of AIM traded payment services company by way of scheme of

August 2019 - Corporate & Commercial. Legal Developments by Ogier .

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Ogier has advised Canadian payments technology company Nuvei Corporation on the US$889 million acquisition of AIM traded SafeCharge International Group Limited by means of a Court-sanctioned Guernsey scheme of arrangement.

Ogier advises on £140 million sale of Lakeside North Harbour office campus

August 2019 - Finance. Legal Developments by Ogier .

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Ogier has advised longstanding client Northwood Investors LLP on its £140 million sale of Lakeside North Harbour office campus to Portsmouth City Council.

Jersey Legislation Overview

March 2015 - Corporate & Commercial. Legal Developments by Ogier .

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AML Update: Review of 2014 amendments to the substantive offences

February 2015 - Tax & Private Client. Legal Developments by Ogier .

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AML Update: Review of 2014 amendments to the substantive offences under the Proceeds of Crime (Jersey) Law 1999 

 

Reform of AML practices and laws has been high on the legislative agenda in Jersey, particularly following Jersey becoming a member of MONEYVAL in 2012. MONEYVAL is the body within the Council of Europe tasked with ensuring that members have effective systems and controls in place to combat money laundering and terrorist financing as well as ensuring compliance with international standards in the AML arena. The recent MONEYVAL progress report on developments in Jersey’s AML framework has initiated a raft of activity by the JFSC.

 

In December 2013 MONEYVAL issued a report which picks up from the IMF report of 2008 and sets out the progress that Jersey has made following the IMF’s recommendations. In response to the both the IMF report and the MONEYVAL progress report the JFSC has implemented the following:

 

  • Money Laundering (Amendment No. 7) (Jersey) Order 2014 which came into  force in October 2014
  • Proceeds of Crime and Terrorism (Miscellaneous Provisions) (Jersey) Law 2014 (the 2014 Law) which came into force on 4 August 2014
  • Proceeds of Crime and Terrorism (Tipping Off-Exceptions) (Jersey) Regulations 2014 (the 2014 Regulation) which came into force on 4 August 2014

The New Charities Law - a bright new dawn

January 2015 - Tax & Private Client. Legal Developments by Ogier .

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Introduction

As of Friday 21 November 2014, the new Charities (Jersey) Law 2014 (the "Law") (or at least certain parts of it) came into effect.  This represents a quantum leap forward for Jersey in the charity field.  The Law has introduced a new test for what is charitable (the "Charity Test"), has introduced the post of a Charity Commissioner and a Charity Tribunal, and in time will introduce standards that those who run charities in the Island will have to abide by.  It is hoped that the Law will enable the Island to flourish as a centre for the administration of charitable and philanthropic structures.

Importantly, there will be no obligation for charitable organisations to become registered charities under the Law.  In effect, it will be possible for existing charities to continue to operate under the current customary law.  Therefore, by way of helpful reminder, part 1 of the schedule at the end of this briefing sets out the current customary law definition of charity in Jersey.

This briefing is primarily intended to help service providers and charities understand how the Law might affect them, and how they should respond.

New Managed Account Regime for Jersey Hedge Fund Managers

January 2015 - Finance. Legal Developments by Ogier .

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An exemption which will enable Jersey-regulated fund managers to be appointed in relation to managed accounts has now been introduced.  This will enable hedge fund managers that are already regulated under the Financial Services (Jersey) Law (FS Law) in Jersey to carry out fund services business (FSB) to also service qualifying segregated managed accounts (QSMAs) without the need to seek additional regulation for the conduct of investment business under the FS Law.

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The Security Interests (Jersey) Law 2012: Changes to Jersey's security regime

January 2015 - Finance. Legal Developments by Ogier .

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On 2 January 2014, the Security Interests (Jersey) Law 2012 came into force in respect of Jersey law security over intangible movable property (e.g. shares/securities, bank accounts and custody assets).  The new law replaces the Security Interests (Jersey) Law 1983 (which was in force for the last three decades) and introduces a number of important changes which modernise Jersey's security regime.

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Exclusive and Inherent Jurisdictions: to boldly go where no Court has gone before?

January 2015 - Intellectual Property. Legal Developments by Ogier .

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Introduction

On 26 November 2014, the Privy Council delivered judgment in the long-running case of Crociani & Others v. Crociani & Others [2014] UKPC 40.  The case is of interest to trustees because it provides conclusive and binding guidance on the treatment of exclusive jurisdiction clauses in trust deeds.  However, it also raises questions as to the fundamental nature of the inherent supervisory jurisdiction of the Royal Court in connection with trust matters, and whether it is in fact broader than previously thought.

This case is, therefore, important both at a specific and general level.

Accessing EU Institutional investor capital

January 2015 - Intellectual Property. Legal Developments by Ogier .

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Luxembourg

Luxembourg is one of the largest global investment fund domiciles, benefiting from the following factors:

  • Flexible and attractive legal, regulatory and tax regimes
  • Significant concentration of professional service providers
  • Financial and political stability - AAA credit rating and low sovereign debt
  • Extensive track record in fund establishment and cross-border distribution.

In September 2014 the assets under management for Luxembourg-domiciled investment funds increased to over € 3,000 billion.

These funds comprise both alternatives and UCITS and the overwhelming majority have cross-border distribution.

For those US and other non-EU managers wishing to access EU institutional investors, Luxembourg's onshore-international, EU platform has a key role to play in parallel with managers' structures in the core, non-EU fund domiciles of Delaware, Cayman Islands, Channel Islands and BVI.

2. Trustee Liability Insurance – Do you get what you paid for?

January 2015 - Tax & Private Client. Legal Developments by Ogier .

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Rathbone Brothers PLC & Anor v Novae Corporate Underwriting Limited & Ors [2014] EWCA Civ 1464

In this case, which will be of interest to all professional trustees and their employers, the English Court of Appeal examined the insurance and indemnity arrangements in place for a Jersey trust company business, and in particular:

(a)             The extent to which the trust company's insurance policy covered its employees and consultants who were acting as personal trustees (Coverage Dispute);

(b)             The extent to which an indemnity given to an employee or consultant had to be exhausted before the insurance policy could be required to pay out (Excess Clause Dispute); and

(c)             The extent to which, if the insurance policy had to pay out first, the insurance company could recoup that payment from the trust company by being subrogated to any right of indemnity the employee/consultant had against his employer (Subrogation Dispute).

Luxembourg joint ventures

January 2015 - Corporate & Commercial. Legal Developments by Ogier .

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Joint ventures (JV) are not a particular term of art under Luxembourg law. Where a small number of active principals, voluntarily constitute a new, shared business enterprise, this can be for joint investment purposes or a joint commercial enterprise and it is not required to take any particular prescribed legal form.

That said, the form of vehicles most commonly adopted for JV are the following:

  • private limited company (société à responsabilité limitée / Sàrl)
  • public limited company (société anonyme / SA)
  • incorporated limited partnership issuing shares (société en commandite par actions / SCA), and
  • standard or special limited partnership (société en commandite simple / SCS, or société en commandite spéciale / SCSp).

Assuming that the JV is not formed to undertake a regulated activity or to issue securities to the public which specifically requires the form of an SA, the Sàrl is often the preferred vehicle in practice for a JV as it is less heavily regulated.

The limited partnership options (SCA/SCS/SCSp) often tend to be used in practice for investment JV deals, particularly where some principals intend not to be as closely involved in management decisions and therefore for whom a limited partner role may be more appropriate.

Luxembourg New Tax Measures 2015

January 2015 - Tax & Private Client. Legal Developments by Ogier .

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On 19 December 2014 the Luxembourg Parliament enacted Bill n° 6720 (the Budget Law) and Bill n°6722 (the Zukunftspack - Action Plan for the Future) introducing new Luxembourg tax measures applicable for corporations and individuals as of 2015.

Looking back at 2014, and especially the last couple of months during which Luxembourg became the "talk of the town", not least in relation to the so-called "LuxLeaks" and enquiries of the European Commission in relation to several Luxembourg advance tax agreements (ATA), it should not come as a surprise that, the Luxembourg authorities firmly have reacted to demonstrate the jurisdiction's compliance with international standards of transparency and exchange of information.

This has lead to certain reformed tax measures, and in particular the establishment of a formal ATA procedure, which address the questions raised in certain areas and further strengthen the position of Luxembourg as a prime location for international investment structures.

Funds Legal and Regulatory Update

January 2015 - Finance. Legal Developments by Ogier .

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Period covered:  30 September 2014 to 31 December 2014

 

1 Alternative Investment Fund Managers Directive (AIFMD)

1.1 ESMA call for evidence 

A call for evidence was issued in October 2014 by the European Securities and Markets Authority (ESMA) to gather views on the extension of the AIFMD passport to third countries by July 2015 in line with the original text of level 1 of the AIFMD.

The deadline for the submission of responses to the call for evidence was 8 January 2015.  Ogier worked closely with the Jersey Funds Association on preparing a response. It is anticipated that responses will in due course be published on the ESMA website and that ESMA will provide further clarification on the extent and timing of the extension in the coming months.

Disclosure of documents by former trustee

July 2013 - Finance. Legal Developments by Ogier .

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Volaw Trustee Limited v Trustcorp (Jersey) Limited [2013] Royal Court: Unreported judgment, 4 February 2013

Background

The trust (the Trust) was established by deed dated 17 February 1989. The Trust was a standard discretionary trust with three principal beneficiaries. The principal beneficiaries were brothers (the Brothers). Trustcorp had been the trustee of the Trust from settlement, albeit under different names.

Interpretation of Articles of Association

July 2013 - Finance. Legal Developments by Ogier .

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Pirrwitz-v-AI, PI and Vilsmeier: Royal Court, Unreported Judgment: 24 January 2013

Summary

The case involved a claim by a former director of two Jersey companies (each a Company, and together, the Companies) for sums due under service contracts with those Companies. He claimed that under each service contract the sums of 700,000 and 600,000 Euros respectively were payable upon him ceasing to be a director (the "exit payments").

Prest (Appellant) v Petrodel Resources Limited & Others (Respondents) [2013] UKSC 34 On appeal from:

June 2013 - Finance. Legal Developments by Ogier .

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On 12 June 2013, the English Supreme Court handed down a unanimous judgment which discussed the ability of the English Family Division to treat the assets of companies wholly owned by one party to a divorce as available to that party for the purposes of ancillary relief.

High Yield and Convertible/Exchangeable Bonds

June 2013 - Finance. Legal Developments by Ogier .

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M&A bond financing: offshore high yield and convertible bond issuance

Guernsey Investment Funds - AIFMD Update

June 2013 - Finance. Legal Developments by Ogier .

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ESMA approves cooperation arrangements with Guernsey

Jersey Alternative Investment Funds - AIFMD Update

June 2013 - Finance. Legal Developments by Ogier .

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Jersey signs regulatory co-operation agreement

We reported in our December 2012 briefing that, with the release of the AIFMD Level 2 regulations, we were optimistic that eligible Third Countries (such as Jersey) would be able to continue to market their funds to professional investors within the EU after July 2013.

In the Matter of the Representation of A Limited and in the Matter of the F Foundation...

June 2013 - Finance. Legal Developments by Ogier .

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Introduction

This case concerned an application for directions by the qualified member of F Foundation's Council. It is the first case in which the Royal Court has been asked to consider its supervisory powers under the Foundations (Jersey) Law 2009 (the Foundations law). The judgment includes an overview of Jersey foundations and the basic and salient points of the Foundations Law.

Protection for Trustees Facing Foreign Tax Liabilities - Representation of WW and XX (Trust) [2013]

June 2013 - Tax & Private Client. Legal Developments by Ogier .

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A recent judgment of the Royal Court is noteworthy and should provide some comfort to Jersey trustees facing potential tax liabilities for two reasons:

Jersey Royal Court considers measure of damages for dilapidations claims

May 2013 - Finance. Legal Developments by Ogier .

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In the absence of any statutory provision in Jersey addressing how dilapidations claims are to be quantified, the Royal Court's decision in JSSL v Barclays has provided some much needed guidance, particularly in circumstances where there is an acceptance that works to redress dilapidations have not been and will not be carried out.

English Supreme Court rules on Mistake and Hastings Bass

May 2013 - Finance. Legal Developments by Ogier .

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On 9 May 2013 the English Supreme Court handed down a unanimous judgment on the seminal cases of Pitt-v- Holt and Futter -v- Futter , with Lord Walker's valedictory judgment conclusively resolving the English position on the rule in Hastings Bass and rescission on the ground of mistake.

Tracing - Still on a new path

April 2013 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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At the end of last year Jersey's Royal Court delivered a landmark judgment concerning the circumstances in which proprietary claims may be established and when assets may be traced.

Funds Quarterly Legal and Regulatory Update

April 2013 - Finance. Legal Developments by Ogier .

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Period covered: 31 December 2012 to 31 March 2013

Recognition of UK Insolvency Practitioners in Jersey

April 2013 - Real Estate & Property. Legal Developments by Ogier .

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Introduction 

With the March quarter day fast approaching it is likely that there will be more businesses becoming insolvent. Some of those businesses will have an interest in Jersey property.  For example as owners of Jersey property or holders of a lease of retail premises situated in the Island.

Insolvency practitioners appointed outside Jersey in respect of an overseas person or company (or of a Jersey company subject to English insolvency proceedings) need to be recognised in Jersey before they can deal with certain forms of Jersey property. This is because Jersey immoveable property can only be transacted by passing a contract before the Royal Court.

Employees on sick leave entitled to carry over annual leave

April 2013 - Finance. Legal Developments by Ogier .

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Ogier has taken a test case to the Employment Tribunal to clarify the law on annual leave entitlement for employees on long term sick leave. 

In a judgment released earlier this month the Tribunal held that staff who are unable to take statutory annual leave due to serious ill health are entitled to carry over that leave to the next holiday year. 

Capita Trustees Ltd, RS, NS, The Trustees in Bankruptcy of RS

April 2013 - Finance. Legal Developments by Ogier .

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The case of Capita Trustees Ltd, RS, NS, The Trustees in Bankruptcy of RS - In the matter of the Dunlop Settlement [2013] JRC 029 concerns an application by Capita Trustees Limited (Capita) in its capacity as trustee of the Dunlop Settlement (the Trust) for approval to it entering into an agreement intended to settle various claims made against the Trust by creditors (the Agreement), the net effect of which would be to exhaust the assets of the Trust.

AB Jnr & Another v MB & Others (Unreported, 18 December 2012)

April 2013 - Finance. Legal Developments by Ogier .

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AB Jnr & Another v MB & Others was a significant decision of the Financial Services Division of the Grand Court of the Cayman Islands, relating to a Trust Deed, dated 21 November 1985.  The weighty judgment of Hon. Anthony Smellie, CJ, at some 204 pages, follows an In Camera hearing taking place over the course of a 9 week period, between April and June 2012.

In re B; B v T (Court of Appeal, 11 July 2012)

April 2013 - Finance. Legal Developments by Ogier .

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A trustee's duty of confidentiality has recently been discussed and to some extent clarified in the recent Guernsey Court of Appeal decision of In re B; B v T (Court of Appeal, 11 July 2012). This summary has been prepared to provide you with a summary of the case as well as the general issues raised, but is not intended to cover all matters or to provide commentary.  This summary does not constitute legal advice.

A Guide to Buying a Flying Freehold Apartment in Jersey

March 2013 - Finance. Legal Developments by Ogier .

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The "Loi (1991) sur la copropriété des immeubles bâtis", also known as the "Flying Freehold Law" (the "Law"), was enacted to enable units (usually apartments) within buildings to be sold on a freehold basis instead of by share transfer. We will assume for the purpose of this briefing that we are dealing with an apartment.

A Guide to buying and selling property in Jersey

March 2013 - Real Estate & Property. Legal Developments by Ogier .

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Jersey's system of freehold conveyancing has its origins in the Public Registry established by Sir Walter Raleigh in 1602. Contracts are still passed before the Royal Court of Jersey on Friday afternoons and have been written in English since 2006.

The Company Administration Regime in Guernsey

March 2013 - Finance. Legal Developments by Ogier .

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Introduction 

The Companies (Guernsey) Law, 2008 ("Companies Law") provides for companies, protected cell companies ("PCCs"), incorporated cell companies ("ICCs") and cells of PCCs and ICCs to be placed into administration and for an administrator to be appointed to manage that entity's affairs whilst the administration order remains in force.  The concept of administration in Guernsey was first introduced for PCCs only in 1997 but has expanded its scope to cover all other types of company that can be registered in Guernsey.  Administration, like the equivalent procedure in other jurisdictions, provides insolvent companies with a breathing space in order to maximise realisations and asset values without increasing liabilities, which, in turn, favours creditors.  However it is important to note, at the outset, that there are substantive differences from a creditor's perspective between the process in Guernsey and, for example, England. 

Pursuant to section 374 of the Companies Law, a company, PCC, ICC or cell may be placed into administration by the Royal Court upon the application of certain parties.  During the term of the administration order, the affairs, business and property of the company are managed by an administrator who is appointed by the court for that purpose.  The Royal Court will only make an administration order if various requirements are fulfilled.  These are that the entity in question must fail or be likely to fail the "solvency test" as set out in section 527 of the Companies Law, and that one or both of the purposes of administration (as set out below) may be achieved by the making of the administration order.  For the rest of this note, and for the sake of brevity, the term "company" also refers to PCCs, ICCs and their cells, unless otherwise stated.

A Guide to Buying a Share Transfer Apartment in Jersey

March 2013 - Finance. Legal Developments by Ogier .

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1.1 Introduction

Buying an apartment by “share transfer” is very different to a freehold purchase and involves buying a block of shares in a company which give rights of occupation to an apartment. As there is no need to attend the Royal Court completion can take place on any day.

In the matter of the B Life Interest Settlement [2012] JRC 229

February 2013 - Finance. Legal Developments by Ogier .

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Facts - This was an application by a Trustee asking the Royal Court to exercise its powers to set aside a Deed of Amendment, a Deed of Exclusion and a Deed of Appointment by reason of mistake and/or seeking relief under the Hastings Bass principle. Thiswas in effect the first opportunity the Court in Jersey had had to consider the Hastings Bass remedy since the Court of Appeal in England's decision in Pitt v Holt and Futter v Futter. The Bailiff had directed that in the instant case an amicus be appointedto argue before the Royal Court on the Hastings Bass issue.

HHH Employee Trust - Settlor awarded its costs on the trustee indemnity basis

February 2013 - Finance. Legal Developments by Ogier .

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Jersey's Royal Court has delivered a landmark decision on the ability of non-trustee fiduciaries to recover costs that they have incurred in connection with the discharge of their fiduciary functions. In the HHH Employee Trust1, the Court found that the costs of administrative proceedings incurred by a settlor with reserved fiduciary powers were recoverable out of the trust fund on the "trustee indemnity" basis.

Costs in trust applications: Jersey's Court of Appeal provides helpful guidance

February 2013 - Finance. Legal Developments by Ogier .

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Introduction

In Trilogy Management -v- YT & Others [2012] JCA 204 Jersey's Court of Appeal has clarified the principles relating to the payment of costs in non-adversarial trust applications. In doing so, it has drawn together approaches established in a number of early cases, and consolidated the position in an area which it said had received only "sporadic consideration" previously. This case is of importance for all trustees who may be contemplating applications to the Court in these circumstances, for example the construction of a trust instrument or the correct administration of a trust. The case differentiates between the costs of trustees and beneficiaries/other convened parties, and also between costs at first instance and costs on appeal.

Jersey Limited Liability Partnerships

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

Legislation has recently been passed by the States of Jersey to amend the Limited Liability Partnerships (Jersey) Law 1997 (the Law). A Jersey Limited LiabilityPartnership (LLP) is a legal person distinct from its partners which can own property, sue and be sued in its own name. Each of its partners is obliged to contribute effort and skill to the business of the LLP as agents of the partnership but not of each other.

Creating a Permanent Establishment in Jersey

January 2013 - Finance. Legal Developments by Ogier .

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The current trend 

There is an increasing need for businesses to ensure that they can demonstrate proper substance in the jurisdictions in which they operate.  Many cross border financing, asset holding or investment structures are coming under scrutiny by various tax or regulatory authorities around the world and Jersey is ideally placed to provide proper substance and a permanent establishment in a tax neutral environment.

Funds Quarterly Legal and Regulatory Update

January 2013 - Finance. Legal Developments by Ogier .

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Period covered: 30 September 2012 to 31 December 2012

Lessons to be learned from EVIC v Greater Europe

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

A recent judgment of Jersey's Royal Court will be of interest to directors and managers of closed ended funds.
The Jersey courts, in line with other common law jurisdictions, have a wide discretion to order a just and equitable winding up pursuant to the Companies Law. Perhaps of most relevance to investment funds is the ordering of a just & equitable winding up on the basis that the company has lost its substratum.

The traditional basis for a loss of substratum is that where it is impossible for a company to carry on the business for which it was established, then it must be wound up, even if the directors or a majority of the shareholders wish the company to continue in business. For these purposes the identification of the business for which the company was established has traditionally included the sector of commerce and also particular features of the manner in which the business was to be carried on.  However, the focus in EVIC v Greater Europe was on the closed-ended nature of the

Probate and Estate Administration: the Practicalities of Dealing with Cayman Assets After Death...

January 2013 - Finance. Legal Developments by Ogier .

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(Non-Cayman Domiciliaries)  

Introduction

When a non-Cayman domiciliary dies owning Cayman Islands assets, the heirs want to access those assets as quickly and efficiently as possible. This Briefing Note deals with the practical steps involved. Reference should be made to the separate Briefing Note, entitled "Succession and Estate Administration in the Cayman Islands (non-domiciled individuals)" for an understanding of the conflict of laws issues that may arise on death. Those issues need to be resolved before the practical steps can be taken to deal with an estate.

It should be borne in mind that any assets held by a Cayman Islands incorporated company are classed, for this purpose, as Cayman Islands situated property (with some possible additional complications where a Cayman Islands company owns immovable property elsewhere in the world). It should also be borne in mind that if assets were transferred, prior to death, into a Cayman Islands Trust, it is unlikely that the following processes will be needed.

Succession & Estate Administration in the Cayman Islands (Non-Domiciled Individuals)

January 2013 - Finance. Legal Developments by Ogier .

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INTRODUCTION

The status of the Cayman Islands as an International Financial Centre inevitably means that it attracts significant inflows of capital from individuals who are based overseas, and who are legally domiciled elsewhere.

When those individuals die, it is important to understand the conflict of laws issues that can arise. These will need to be addressed before the heirs can access the Cayman Islands assets. This process is underpinned by a combination of Cayman Islands and international law principles and varies depending on whether the deceased died with or without a valid Will. The process also depends on whether that Will has been admitted to probate in another probate jurisdiction, and whether the Will names executors to deal with the process of the administration.

In all cases, we can assist with quickly and efficiently allowing the heirs to gain access to the assets of the deceased, dealing with all of the legal formalities on behalf of the family.

Aircraft Registration

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

The United States remains the most popular place in the world to register corporate jets. However, there are a number of reasons that the US is not appropriate for everyone. The Cayman Islands, since 1976, has been attracting a number of Aircraft Registrations and presents a viable alternative to the US, and other registration jurisdictions.

The Cayman Islands acts under the purview of the British Civil Aviation Authority. The process of registration generally takes 2 to 3 weeks to complete.

The Cayman Islands register (the Aircraft Register) is highly respected and recognised throughout the international aviation industry. The majority of the aircraft on the Aircraft Register are private exclusive jets (such as the Boeing Business Jet, Airbus A320, Gulfstream GIV and GVs, Falcon 900B, Falcon 2000, Hawker 900XP and Bombardier Global Express). There is also increasing interest in the Cayman Register to register commercial aircraft.

The Cayman Register can be used to register an aircraft in the "private" category, and this has been expanded to include all turbo-jet aircraft, all other aircraft above 5,700kg and helicopters that are based on yachts.

Securing Cayman Islands Residency by Proof of "Independent Means" or by way of "Direct Investment"

January 2013 - Finance. Legal Developments by Ogier .

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Summary

This Briefing Note relates to two processes by which an individual (and his or her family) can potentially be granted a right to reside in the Cayman Islands.

At Ogier, our Private Wealth Team can assist with the making of these applications and can ensure that the process is handled quickly and efficiently with the assistance of specialists who are familiar with the processes.

Clarity on Cross Border Insolvency Enforcement

January 2013 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The decision in these cases in the United Kingdom Supreme Court will be of enduring importance for off-shore insolvency jurisdictions.  The Court has affirmed that to be enforceable at common law, any judgment of a foreign court either for payment of money or the 'turnover' or vesting of assets outside its territorial jurisdiction must comply with the jurisdictional rules of English private international law.  There is no special rule for judgments in insolvency proceedings.

Private Trust Companies

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

Private trust companies (PTCs) are established with the sole purpose of acting as a corporate trustee to a trust or a number of trusts, provided those trusts are "connected".

PTCs are commonly used by high net worth (HNW) families in their wealth structuring, for a number of reasons. They protect confidentiality, they provide a comprehensive framework under which family members can be involved in decision making (by being on the board of the PTC) and they can avoid the complications of succession when used in conjunction with a STAR Trust (explained below).

The speed at which a PTC can be established, and the relatively low cost of operation have made PTCs extremely attractive to HNW families and their advisors.

Revisions to Cayman Islands Mutual Funds Law Requiring Registration of Master Funds

January 2013 - Finance. Legal Developments by Ogier .

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The Cayman Islands legislature recently approved the Mutual Funds (Amendments) Bill 2012 which seeks to amend certain definitions within the Mutual Funds Law in order to clarify the regime relating to registration of master funds.

Jersey and Guernsey Alternative Investment Funds - AIFMD Update

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

After a significant period of negotiation, the level 2 regulations pursuant to the AIFM Directive (the Directive) were issued by the EU Commission on 19 December. The controversial areas of negotiation between EU member states are understood to have been focused particularly on the areas of delegation and depositary requirements.

Deciding Between Wills and Trusts for Non-Cayman Domiciliaries

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

If an individual owns Cayman Islands situated property, it is important to address the question of what will happen on the death of that person. In some cases, a foreign Will is sufficient to deal with the Cayman assets, in other cases, a Cayman Islands lifetime trust may be more appropriate. In some, rare, cases a Cayman Islands Will may be the solution.

This Briefing Note sets out some of the issues involved in determining what is appropriate in any given situation.  It also sets out some of the benefits of using a Cayman Islands Trust, which are not available when using a Will.

Re-introduction of Probate Stamp Duty Cap

January 2013 - Tax & Private Client. Legal Developments by Ogier .

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After much lobbying of government in the past few years, we can report that on 5 December 2012 our States legislature voted to re-introduce the cap on the level of probate duty payable in respect of a deceased person's movable estate in Jersey. Until 2005, there had been such a cap on the maximum amount of probate duty payable on an estate. Probate duty of 0.75% had been payable on the majority of the value of an estate up to £13,360,000. The effect of this was that the maximum amount of probate duty payable on an estate was capped at £100,000. After 2005, the rules were changed such that probate duty was payable on the entire value of an estate.

Royal Court rules on loss of substratum in a Jersey fund

January 2013 - Finance. Legal Developments by Ogier .

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The Royal Court has ordered the winding up of a Jersey closed end fund on just and equitable grounds on the basis of a loss of the fund's substratum. The Court first delivered judgment in August in the case, EVIC v Greater Europe Deep Value Fund II Limited, and following a further hearing last month ordered the winding up of the fund. A further reasoned judgment will follow.

STAR Trusts

December 2012 - Finance. Legal Developments by Ogier .

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BACKGROUND

The Special Trusts (Alterative Regime) Law 1997 (the initial letters of which give us the name, "STAR Trust"), now incorporated into Part VIII of the Trusts Law (Revised), introduced STAR Trusts into the law of the Cayman Islands. STAR Trusts are unique to the Cayman Islands.

A STAR Trust is a form of statutory trust which can be established for persons, purposes (charitable and non-charitable) or both. The STAR Laws only apply where the trust instrument expressly states that they are to apply.

STAR Trusts were introduced into Cayman Islands law to overcome some of the difficulties arising with the use of more conventional offshore trusts.

Tracing a new path - The Federal Republic of Brazil & Anor v Durant International Corporation & Ors

December 2012 - Finance. Legal Developments by Ogier .

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Jersey's Royal Court has delivered a landmark judgment1, eschewing long established principles of common law concerning the circumstances in which proprietary claims may be established and when assets may be traced. In a clear statement of Jersey's jurisprudential independence, the Court found that legal interests are subject to equitable tracing rules, that funds may be traced through "black holes" and into mixed bank accounts, that "backwards tracing" is permissible and that the "lowest intermediate balance" principle does not apply in Jersey.

Guernsey Image Rights Legislation

December 2012 - Finance. Legal Developments by Ogier .

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The Image Rights (Bailiwick of Guernsey) Ordinance 2012 (the Ordinance) and The Image Rights (Bailiwick of Guernsey) Regulations, 2012

The Glasgow Rangers Tax Case

December 2012 - Finance. Legal Developments by Ogier .

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Background

The Appellants, Murray Group Holdings (MGH), are a large holding company with diverse interests in over 100 companies including, until May 2011, Glasgow Rangers Football Club.  Given Rangers' involvement and their subsequent administration, this case has been widely publicised and has become known as the Rangers tax case.

Ogier Fiduciary Services (Cayman) Limited

November 2012 - Finance. Legal Developments by Ogier .

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Ogier Fiduciary Services (Cayman) Limited (OFSCL) is a Cayman trust and administration services company that forms part of Ogier’s global network of professional advisors. The OFSCL team comprises highly qualified professional bankers, trust and corporate lawyers, chartered and certified accountants and chartered secretaries.

Jersey CFC Financing Structures

November 2012 - Finance. Legal Developments by Ogier .

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From 1 January 2013 the UK will replace its existing controlled foreign company (CFC) rules with a more limited regime which is intended to improve the UK's international competitiveness as the best location for corporate headquarters in Europe.

Guernsey Foundations

November 2012 - Finance. Legal Developments by Ogier .

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The Foundations (Guernsey) Law, 2012 (Law) is awaiting Royal assent, expected to be given by the end of the year or early next year. Whilst Guernsey is not the first jurisdiction to provide for foundations, the Law does provide a number of unique options for individuals wishing to take advantage of the benefits provided by foundations. The purpose of this note is to provide both a general summary of the features of a Guernsey foundation, as well as a summary of these unique options that will be available under the Law.

On the right terms - Shah v HSBC is a timely reminder to check standard terms and conditions

November 2012 - Finance. Legal Developments by Ogier .

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The recent English High Court decision in Shah v HSBC Private Bank [2012] highlights again the need for banks and trust companies to be aware when they may refuse to transfer cash or assets where there is a suspicion of money laundering. While in this case the High Court implied a term into the bank's terms so that it could refuse to process payments in these circumstances, the Jersey court may not take a similar approach. There is also a possibility of criminal liability if any holder of client money or assets (the financial institution) has no choice but to make a transfer of tainted funds.

Registration under the Security Interests (Jersey) Law 2012

November 2012 - Finance. Legal Developments by Ogier .

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The Security Interests (Jersey) Law 1983 (the 1983 Law) will soon be replaced by the Security Interests (Jersey) Law 2012 (the New Law), which was passed by the States of Jersey on 19 July 2011.  The New Law is expected to come into force in early 2013.

In our related briefing Advantages of the New Security Interests (Jersey) Law, the concept of registration which is to be introduced by the New Law is highlighted as a potential advantage to lenders. Registration is one of the various enhancements which will contribute to the modernisation of Jersey's intangible movable security regime.

Close-out netting and set-off provisions for BVI, Cayman Islands, Guernsey and Jersey counterparties

November 2012 - Finance. Legal Developments by Ogier .

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Introduction

Ogier is counsel to the International Swaps and Derivatives Association, Inc. ("ISDA") in Guernsey and Jersey and provides netting and collateral opinions which are available to members from ISDA's website and updated on an annual basis. We are often asked to advise on the enforceability of close-out netting and set-off provisions under ISDA and other standard form agreements (including prime brokerage agreements) against counterparties incorporated or registered in the BVI, the Cayman Islands, Guernsey or Jersey. This involves an analysis of the extent to which local laws recognise the enforceability of such provisions in pre- and post-insolvency circumstances. The relevant legislation from each jurisdiction is summarised in general terms below. Upon request, we are able to provide opinions in respect of specific counterparties/types of counterparties and agreements.

Beneficiaries apply for beddoes relief

November 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In the matter of the X Trust [2012] JRC 17

Introduction 

This case involved an application to the Royal Court of Jersey for beddoes relief by beneficiaries of a trust, so that they could pursue breach of trust claims against the incumbent trustee at the expense of the trust fund and without personal costs exposure.

Although the English Court of Appeal has decided that discretionary beneficiaries shouldn't ordinarily be given beddoes relief, the Royal Court concluded that in appropriate circumstances beneficiaries should have beddoes protection, where they are in effect suing in a derivative capacity for the benefit of the trust fund.

UK Operator Services

October 2012 - Corporate & Commercial. Legal Developments by Ogier .

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Ogier Corporate Administration Limited (“OCAL”) is authorised by the UK Financial Services Authority (the “FSA”) to act as an ‘Operator’ to UK unregulated collective investment schemes (“UCISs”)

Good news for intra-group Eurobond listings

October 2012 - Corporate & Commercial. Legal Developments by Ogier .

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On 27 March 2012 HMRC published a consultation document on possible changes to the exemption from the requirement to deduct tax from quoted Eurobonds - The Quoted Eurobond Exemption. The consultation was aimed at seeking views on:

● restricting the Quoted Eurobond Exemption where notes or bonds were held on an intra-group basis; and
● the introduction of a requirement to pay tax on non-cash (or PIK) interest to HMRC in cash, instead of by the issuance of funding bonds.

The Jersey Foundation: The Royal Court speaks

September 2012 - Corporate & Commercial. Legal Developments by Ogier .

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Dalemont Limited v Senatorov and others; Unreported Judgments, 21 March 2012, Royal Court Introduction

You can't do that! When unreasonable decisions of trustees may be set aside

August 2012 - Corporate & Commercial. Legal Developments by Ogier .

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Jersey's Royal Court has confirmed the scope of its jurisdiction to set aside unreasonable decisions of trustees(1). In a related decision, the Royal Court also made it clear that trustees who make unreasonable decisions are not generally entitled to have their reputation protected by non-publication or redaction of judgments(2).

Jersey Joint Venture Vehicles

August 2012 - Corporate & Commercial. Legal Developments by Ogier .

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Whilst the M&A pipeline remains relatively strong, getting deals to completion is challenging due to the tightening of available credit and uncertainty with asset valuations. In this climate PLCs, other large corporates and PE houses are looking at alternative and more creative structures to gain access to deals that might not be available via traditional M&A.

Court of Appeal Hands Down Judgement in Fairfield

August 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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On 13 June 2012, the Court of Appeal handed down its judgment in the claims that have been brought by the liquidators of Fairfield Sentry Limited ("Fairfield") against a number of investors that redeemed out of the fund. The Court of Appeal has upheld the decision of the trial judged albeit, in some instances, for different reasons.

BVI Business Companies (Amendment) Act, 2012 - Update

August 2012 - Corporate & Commercial. Legal Developments by Ogier .

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Following our note circulated earlier this year on enhancements proposed to be made to the BVI's corporate legislation, on 16 July 2012 the BVI Business Companies (Amendment) Act, 2012 (the Amendment Act) was passed into law.

Friendly Rivalry? The Competition Laws of the Channel Islands

August 2012 - EU & Competition. Legal Developments by Ogier .

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• New Competition Law for Guernsey in force on 1 August 2012 • Jersey and Guernsey now both regulate the abuse of a dominant position, anti-competitive arrangements, and mergers and acquisitions • Key differences between the islands' competition laws • Overall, a pan-Channel Island approach to regulation

Private Equity - Jersey LBO/MBO Acquisition Structures

August 2012 - Employment. Legal Developments by Ogier .

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Complex tax, accounting and employment matters are amongst those which drive the choice of acquisition structure for private equity funded transactions. Some of the most common types of private equity acquisition transactions are the leveraged buyout (LBO) and the management buyout (MBO).

Chinese shareholder disputes in the BVI: Foreign Fa Ren1 in the Far Eastern Caribbean

August 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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Those who do business in the PRC have long recognised the benefits of doing so through a corporate structure which enables onshore operations but offshore ownership.

In the matter of the HHH Employee Benefit Trust: scope of disclosure obligations owed by...

July 2012 - Employment. Legal Developments by Ogier .

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by settlors with reserved powers

On 28 June 2012, Jersey's Royal Court delivered an important judgment confirming the scope of a settlor's disclosure obligations under a reserved powers trust1.  

The Certified Funds Prospectuses Order

July 2012 - Finance. Legal Developments by Ogier .

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Prospectus Content Requirements - Jersey Investment Funds

Existing statutory prospectus content requirements for Jersey investment funds which fall within the definition of certified funds will soon be replaced by a new prospectuses order, the Collective Investment Funds (Certified Funds - Prospectuses) (Jersey) Order 2012 (the CFPO or the Order). 

Not in your backyard!

July 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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Taking steps in proceedings ruled not to be a barrier to 'forum non conveniens'

Developments in the Jersey law on unfair prejudice

July 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Royal Court has recently clarified its approach to applications made pursuant to Articles 141 to 143 of the Companies (Jersey) law 1991. These Articles comprise the statutory unfair prejudice regime in Jersey which can be deployed by a minority shareholder to preserve and protect its rights and position. Article 141 states that:

Where there's a will there's an executor (or two)

July 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Jersey Court has recently delivered a judgment concerning the principles to be applied where a body of executors are deadlocked. The case is Garnham v PC & Others1 which concerned the administration of the estate of a successful businessman who had been domiciled in Hong Kong but had established significant Jersey trusts.

Acting as a director of a Cayman Islands company - Simplified Chinese version

June 2012 - Corporate & Commercial. Legal Developments by Ogier .

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The purpose of this brochure give a brief introduction to the Cayman Islands directors of the company may face some problems. Auger Trust Services (Cayman Islands) Limited root of its cooperation company directors to provide.

Corporate Reconstructions in the British Virgin Islands

June 2012 - Corporate & Commercial. Legal Developments by Ogier .

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The current economic climate has forced many companies to consider their future and, for those able to survive, there has been significant impetus in cost saving and rationalising structures where possible. However, it is not only in the downturn that companies look to restructure. This process can also have a positive spin, especially where a company is seeking to structure acquisitions or expand into new areas of operation.

Luxembourg Hedge Funds Executive Summary

June 2012 - Finance. Legal Developments by Ogier .

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This executive summary provides a comparative overview only of the two principal Luxembourg fund vehicles used by asset managers pursuing hedge funds strategies. For further detail, please also refer to the full form client briefing “Luxembourg - Complex alternative UCITS & Specialised Investment Funds” which may be accessed via the Luxembourg section of www.ogier.com.

Luxembourg Complex alternative UCITS & Specialised Investment Funds

June 2012 - Finance. Legal Developments by Ogier .

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A founder member of the European Union benefiting fully from free movement of capital and freedom of establishment within the EU, Luxembourg is also one of the largest global financial centres, benefiting from flexible and attractive legal, regulatory and tax regimes and a significant concentration of professional service providers to the financial services industry.

In the matter of the A Trust (2012) JRC 066: Blessing a Momentous Decision Opposed by Beneficiaries

June 2012 - Corporate & Commercial. Legal Developments by Ogier .

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The Royal Court has, once again, played an invaluable role in the administration of a trust by blessing a trustee's decision to widen the class of beneficiaries of the trust in the face of opposition from the existing individual beneficiaries.

MULTI-JURISDICTIONAL GUIDE 2012 FINANCE

May 2012 - Finance. Legal Developments by Ogier .

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New Security Interests (Jersey) Law: changes to Jersey law and market practice.

Matthew Swan and Bruce MacNeil - Ogier

Luxembourg Alternative Investment Funds

May 2012 - Finance. Legal Developments by Ogier .

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Asset Classes - Hedge; Real Estate; Private Equity; Venture; Mezzanine; Infrastructure

A founder member of the European Union benefiting fully from free movement of capital and freedom of establishment within the EU, Luxembourg is also one of the largest global financial centres, benefiting from flexible and attractive legal, regulatory and tax regimes and a significant concentration of professional service providers to the financial services industry. 

REO (Powerstation) Limited and Others (7th December 2011) JRC 232A: letters of request for...

May 2012 - Corporate & Commercial. Legal Developments by Ogier .

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administration orders

An application had been made by Bank of Scotland Plc and the Governor and Company of the Bank of Ireland (the Applicants) for a letter of request to be sent by the Royal Court of Jersey to the High Court of England and Wales in respect of four Jersey companies which were ultimate beneficial owners of English real estate. 

Estate of Moralee (2012) JRC038 Does an Executor have a Right to Remuneration and Expenses Where...

April 2012 - Real Estate & Property. Legal Developments by Ogier .

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Estate is Insolvent?

The will of the deceased contained a charging clause which entitled professional trustees to be paid fees and reimbursed for costs and expenses relating to administration of the estate. 

In the matter of The Valetta Trust: Jersey responds positively to Third Party Litigation Funding

April 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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While not entirely new to some common law jurisdictions Third Party Litigation Funding ("TPLF") has recently been placed in the spotlight in Jersey by the decision of the Royal Court In the Matter of the Valetta Trust.

Bird Charitable Trusts: Duty of disclosure of legal advice to an incoming trustee

April 2012 - Corporate & Commercial. Legal Developments by Ogier .

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In the matter of the Bird Charitable Trust and the Bird Purpose Trust [2012] JRC006 concerned an application by the current trustee (the Current Trustee) of two trusts (the Trusts) for an order requiring a former trustee (the Original Trustee) to disclose to the Current Trustee certain legal advice that the Original Trustee had obtained at the cost of the Trusts during the course of its administration.

Representation of BBB: the interpretation of Excluded Person

April 2012 - Corporate & Commercial. Legal Developments by Ogier .

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In Representation of BBB the Royal Court was asked to consider whether an Excluded Person would cease to be an Excluded Person if a change in circumstances meant that they no longer fell within the definition of the class of Excluded Persons.

Channel Islands Stock Exchange (CISX) Rule Change Update

April 2012 - Finance. Legal Developments by Ogier .

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Ogier Corporate Finance Limited (OCFL) is the market leader in providing listing agent services for the listing of securities on the Channel Islands Stock Exchange (CISX or the Exchange) having sponsored over 445 listings.

Channel Island Stock Exchange, LBG - Listing of Securities of Investment Funds

April 2012 - Finance. Legal Developments by Ogier .

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The Channel Islands Stock Exchange, LBG (the Exchange or CISX) commenced operations on 27 October 1998 and is intended to provide recognised facilities for the listing and trading of securities issued by companies and investment funds.

Securities and investment business regulations in the British Virgin Islands

April 2012 - Finance. Legal Developments by Ogier .

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It has been almost two years since the Securities and Investment Business Act, 2010 (‘SIBA’) in the British Virgin Islands (‘BVI’) was established – coming into eff ect on May 17th 2010.

Investment funds in Guernsey

March 2012 - Finance. Legal Developments by Ogier .

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The investment funds industry in Guernsey has achieved significant growth in recent years. Statistics show that as at 30 June 2011 there was £274.5 billion of assets under management in Guernsey.

Where is the Defence? Representation of VV 26 October 2011

March 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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Ordinarily a trustee would be expected to take a neutral position in relation to hostile litigation affecting the trust assets.

In the Matter of HHH Trust and in the Matter of the A Fund and in the Matter of Article 51...

March 2012 - Corporate & Commercial. Legal Developments by Ogier .

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of the Trusts (Jersey) Law 1984: Directions for disclosure

The directions given in this case provide guidance on the approach the Court will take to a beneficiary's request for disclosure of information.

Jersey Private Placement Funds Investment Funds | January 2012 Next generation structuring

March 2012 - Finance. Legal Developments by Ogier .

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The Private Placement Fund (PPF) is a new type of regulated investment fund vehicle available in Jersey which has been specifically designed for the professional and institutional investor market.

Jersey announces proposed changes to merger control thresholds

February 2012 - EU & Competition. Legal Developments by Ogier .

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The Jersey Competition Regulatory Authority (JCRA) has announced upcoming changes to Jersey's merger control thresholds. These thresholds determine when a merger or acquisition has to be approved by the JCRA before it can be implemented. Subject to the final approval of the States of Jersey, the new thresholds are expected to be introduced in the second half of 2012.

Investment funds in the BVI

February 2012 - Finance. Legal Developments by Ogier .

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BVI Funds - Legal and structuring considerations

The British Virgin Islands (“BVI”) have approximately 3,000 investment funds recognised or registered by the BVI Financial Services Commission (“FSC”) under Part III of the Securities and Investment Business Act, 2010 and its accompanying regulations, the Mutual Funds Regulations, 2010 (together, “SIBA”). 

Treasury services for local Jersey property developer clients

January 2012 - Real Estate & Property. Legal Developments by Ogier .

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Enhancing client cash deposits

Tell me about treasury services

Ogier can now offer a service to enhance its local Jersey property developer clients' cash deposits held during off-the-plan development schemes.

To Earmark Or Not To Earmark

January 2012 - Corporate & Commercial. Legal Developments by Ogier .

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This briefing sets out some of the concerns that clients are sharing in relation to earmarking trust assets for share plan management and a practical solution to this problem.

Establishing and Operating a Cayman Investment Fund

January 2012 - Finance. Legal Developments by Ogier .

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A. INVESTMENT FUNDS
1. Documents
1.1 Generally, the documents involved in the establishment of an investment fund in the Cayman Islands include the following:

Revoking the Irrevocable

January 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In the matter of the DDD Settlements [2011] JRC243

Excluding someone irrevocably from benefitting from trust assets normally means just that. The magic bullets of mistake and Hastings Bass have had their wings clipped somewhat, though the Jersey Court has pursued its own course in respect of the former, and its all to play for in the Supreme Court regarding the latter. But what if there were no error involved in the exclusion in any event? What if the exclusion had been effected just as intended? That was the position the Jersey Court faced with the DDD Settlements. 

Guernsey Companies Law - Office of the Registrar of Companies

January 2012 - Corporate & Commercial. Legal Developments by Ogier .

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This memorandum has been prepared for the assistance of our clients in connection with the provisions relevant to the Office of the Registrar of Companies under the Companies (Guernsey) Law, 2008 (as amended) (the “Companies Law”).

Preserving rental income streams: the impact of GST and the end of the...

December 2011 - Real Estate & Property. Legal Developments by Ogier .

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 'grandfathering' provisions in 2012

In the current economic climate the preservation and maximisation of rental income continues to be crucial as capital values of investment properties achieve slow growth. 

Jersey continues to enhance its Trusts Law

December 2011 - EU & Competition. Legal Developments by Ogier .

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Since the last amendment to (the Trusts (Jersey) Law 1984 (the "Trusts Law") in 2006, the Trusts Law Working Party has been continuing to consider how it might improve and enhance that Law. Following a period of consultation with industry, the draft Trusts (Amendment No. 5) (Jersey) Law 201- ("Amendment No. 5") was debated and adopted by the States of Jersey on 2nd November 2011.

Shock waves around the trust industry?

December 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In the Matter of the Y Trust (Jersey Unreported Judgments) 4 August 2011

Counsel for one of the parties and Commissioner Clyde-Smith were at odds over whether the court's decision to deprive one of the parties of 50% of its costs would send shock waves around the trust industry or not.

Developing land in Jersey: issues for the unwary

December 2011 - Real Estate & Property. Legal Developments by Ogier .

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In the current economic climate margins have reduced considerably for all business and those developing property whether for residential or commercial uses are no exception. Below are a few salient reminders for those considering a site for development:-The "special" nature of the site

Limited Partnerships in Jersey

November 2011 - Tax & Private Client. Legal Developments by Ogier .

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The Limited Partnerships (Jersey) Law 1994 (the ‘Law’) provides a comprehensive statutory framework for the establishment and operation of limited partnerships in Jersey.

France gets tough on trusts

November 2011 - Corporate & Commercial. Legal Developments by Ogier .

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We have been working in recent weeks with a number of clients on the new rules passed this summer in France affecting trusts. These new rules are far reaching, draconian and they come into effect soon ie. 1 January 2012.

The Bribery Act 2010 - Practical Guidance for Jersey Companies

November 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The Bribery Act 2010 (the “Act”) came into force on 1 July 2011. Whilst the Act is UK legislation which is not directly applicable to Jersey, its far reaching provisions mean that it does impact on Jersey based companies and individuals with connections to the UK. It is therefore important that Jersey based companies and their officers are aware of the impact of the Act, the offences under the Act and how to protect themselves.

Special Purpose Acquisition Companies (SPACS)

November 2011 - Finance. Legal Developments by Ogier .

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Following the recovery from the recent financial crisis, there has once again been a growing interest in special purpose acquisition vehicles (SPACs) and offshore jurisdictions such as Jersey, Guernsey, Cayman and the British Virgin Islands are increasingly being used for both the creation and ongoing business structure of such vehicles. These jurisdictions have proven to be ideal for this type of funding structure due to their flexibility and tax efficiency.

In the matter of the representation of BB, A and C: validity of appointment of successor trustees

November 2011 - Corporate & Commercial. Legal Developments by Ogier .

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This case concerned the invalid exercise of a power of appointment of trustees. The Royal Court of Jersey refused to order the rectification of the relevant appointments, but it was prepared instead to provide relief by ratifying the would-be trustees' prior actions and by appointing them properly under Article 51 Trusts (Jersey) Law 1984 (the "Trusts Law").

Relocating Businesses to Jersey

November 2011 - EU & Competition. Legal Developments by Ogier .

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It is a myth that businesses cannot relocate to Jersey unless those employees or owners who will be moving are each millionaires. The last few years have seen an increasing number of businesses relocate to Jersey. In particular the government is keen to attract natural resources and mining companies, e-gaming, e-commerce and intellectual property businesses.

Guernsey Qualifying Investor Funds

October 2011 - Finance. Legal Developments by Ogier .

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This memorandum has been prepared for the assistance of clients considering establishing a fund under the laws of Guernsey. It is intended to provide only a summary of the main legal requirements and general principles applicable to establishing a fund in Guernsey and it is not intended to be comprehensive in its scope. It is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it.

Acquiring Commercial Property in Jersey - a brief comparison with England

October 2011 - Real Estate & Property. Legal Developments by Ogier .

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Freehold property in Jersey has its origins in French law. In 1602, Sir Walter Raleigh as Governor of the island decreed that all contracts relating to land passed before the Royal Court should be recorded in the rolls of the Public Registry. Based upon these ancient origins, Ogier has established a modern commercial property law practice.

Code of Corporate Governance

October 2011 - Finance. Legal Developments by Ogier .

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Introduction The Guernsey Financial Services Commission (the GFSC) has recently issued the final form of the Code of Corporate Governance for the Finance Sector (the Code) which will take effect from 1 January 2012. Its stated purpose is to provide boards and individual directors with "a framework for sound systems of company governance".

Update on AIFM Directive

October 2011 - Finance. Legal Developments by Ogier .

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Impact Analysis for Jersey and Guernsey Investment Funds

After a protracted period of negotiation, the AIFM Directive was finally approved by the European Parliament on 11 November 2010.
The Directive is expected to be brought into force shortly and will regulate the activities of managers of alternative investment funds (“AIF Managers”) as follows:

Private Equity Services for Fund Managers

October 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Your choice of offshore advisor is an increasingly important factor in the successful development and delivery of your fund strategy.

 

Jersey Separate Limited Partnerships versus Scottish Limited Partnerships - which are better?

October 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Introduction
The Separate Limited Partnerships (Jersey) Law 2011 introduced the Separate Limited Partnership into Jersey law.

Representation of Dunlop Settlement [2011] JRC138: recovery of trust documents from third party

October 2011 - Corporate & Commercial. Legal Developments by Ogier .

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This case concerns an application of a trustee to recover documents relating to a trust from the JFCU following the seizure of those documents from a former employee as part of a fraud investigation.

Representation of U

October 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Application by trustee for directions concerning disclosure of confidential information

Representation of U [2011] JRC 131 is a Jersey trust case in which the trustee of a Jersey law trust sought directions as to whether it should disclose confidential financial information to a person designated as an excluded person ("B")) under the terms of the trust.

Security Reviews and Refinancings involving Offshore Entities

October 2011 - Finance. Legal Developments by Ogier .

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It has been estimated that there is European bank and bond debt with a combined value of up to €50-75 billion which is due to mature and come to market for refinancing over the next five years (Refinancing 2011: The Scramble to Refinance European Debt, Debtwire, March 2011). Many lenders are currently in the process of reviewing their loan books in advance of potential refinancings / restrucurings and obtaining security reviews analysing their position under existing structures.

Advantages of the New Security Interests (Jersey) Law

October 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The Security Interests (Jersey) Law 1983 (the “1983 Law”) governing security over intangible movable property in Jersey (eg shares, units, accounts and contractual rights) has been in force for almost three decades. While the 1983 Law is a concise and clearly drafted law which has generally worked well, it has become increasingly outdated in the context of modern banking and finance transactions.

BVI Court hands down preliminary issues decision in claims brought by liquidators of Bernard Madoff

September 2011 - Corporate & Commercial. Legal Developments by Ogier .

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"feeder fund"

On 16 September 2011 judgment was handed down by the BVI Commercial Court in a number of cases that have been brought by the liquidators of Fairfield Sentry Limited (“Fairfield”), a "feeder fund" into Bernard L Madoff Investment Securities Limited (“BLMIS”), against a number of investors that historically redeemed out of the fund (the "Fairfield judgment"). 

Current developments in Cayman’s legal and regulatory environment

September 2011 - Finance. Legal Developments by Ogier .

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In this issue:
Cayman Court Examines Responsibilities
of Fund Directors . . . . . . . . . . . . . . . . . . . P2-7

Close-out Netting and Set-off Provisions for BVI, Cayman Islands, Guernsey and Jersey Counterparties

September 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Ogier is counsel to the International Swaps and Derivatives Association, Inc. ("ISDA") in Jersey, Guernsey and BVI and provides netting and collateral opinions which are available to members from ISDA's website and updated on an annual basis.

Is that your final answer? When a trustee can change its mind

September 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Royal Court was recently asked to sanction a trustee’s decision to distribute the assets of a discretionary trust in a manner that was inconsistent with previous indications that the trustee had given to the beneficiaries1. In particular, the Court analysed the ability of trustees to make distributions that are fundamentally different from decisions previously described as being “final” and whether beneficiaries need to be consulted if a trustee anticipates changing its mind in this way.

UK Operator Services

September 2011 - Finance. Legal Developments by Ogier .

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Ogier Corporate Administration Limited (“OCAL”) is authorised by the UK Financial Services Authority (the “FSA”) to act as an ‘Operator’ to UK unregulated collective investment schemes (“UCISs”)

Structuring Considerations for Hedge Funds

September 2011 - Finance. Legal Developments by Ogier .

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Most open ended funds in Asia are structured using a Cayman Islands company as the fund vehicle. The principal documents governing the contractual relationships between the investor and the fund are the offering memorandum, the subscription agreement and the memorandum and articles of association of the fund.

Derivatives Transactions with Offshore Counterparties

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Ogier is counsel to the International Swaps and Derivatives Association, Inc. (“ISDA”) in Jersey, Guernsey and BVI and provides netting and collateral opinions which are available to members from ISDA’s website and updated on an annual basis. We are often asked by banks, prime brokers and other clients to advise on local law issues in connection with their entry into derivatives transactions (or other transactions involving netting provisions) with offshore counterpart

Cross-Border Restructurings using Offshore Companies

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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In the current economic climate, there has been increased interest from clients and their advisers in using offshore companies in cross-border restructurings. The use of offshore companies in restructurings is often driven by tax and structuring advice, where there is a desire to continue the group operating as a going concern and to achieve a favourable outcome for creditors (usually outside of formal insolvency proceedings).

Listing Businesses in Hong Kong or London Using a Jersey Holding Company

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Introduction - Asia
Asia is a vast and growing market, with the Chinese economy being the biggest. China has effectively become the second largest economy in the world after that of the US and is expected to overtake them within the next ten years. There is a significant amount of capital being generated in Asia which is ripe for investment.

Special Purpose Acquisition Companies (“SPACs”)

August 2011 - Finance. Legal Developments by Ogier .

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Offshore jurisdictions such as the BVI, Cayman, Guernsey and Jersey are frequently chosen as the jurisdiction of domicile for SPACs.

Listing Jersey Holding Companies

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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QUESTION:
Apart from being successful, publicly listed companies, what do the following all have in common?

Jersey Protected Cell Companies and Incorporated Cell Companies

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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A cell company is a company that has the ability to create one or more cells with assets and liabilities that are distinct from the assets and liabilities of other cells and the cell company itself. These cells can be used to carry out separate and distinct businesses.

Security Interests (Jersey) Law 201- passed

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The Security Interests (Jersey) Law 201- (the "new Law") has been passed by the States of Jersey and has now been sent to the Privy Council for approval. We anticipate that the new Law will come into effect in the early part of 2012.

BVI Proposes Enhancements to its Corporate Legislation

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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A draft Bill proposing amendments to the BVI Business Companies Act, 2004 (“BCA”) has been circulated for industry consultation.

Farstad Supply A/S v Enviroco Limited Supreme Court Judgement on 6 April 2011

August 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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On February 4th 1994, a charterparty was entered into by Farstad Shipping A/S (“Farstad”) and Aberdeen Service Company (North Sea) Limited (“Asco UK”).

Clean Tech International structures

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Clean Technology or “Clean Tech” is a term coined to cover all things green, spanning from renewable energy to energy efficiency and recycling waste management. Clean Tech often involves new technology and business models that offer returns for investors and customers while achieving that in a way that reduces the use of natural resources, and cuts or eliminates emissions and waste. Examples include the development of renewable energy sources, improvements in carbon emissions and waste management schemes

Creating and Perfecting Security under the New Security Interests (Jersey) Law

August 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The creation of security over intangible movables under Jersey law is currently governed by the Security Interests (Jersey) Law 1983. The new Security Interests (Jersey) Law is awaiting approval by the States of Jersey and the Privy Council and it is anticipated this law will come into force during the first half of 2012.

In the matter of the V Settlement: Hastings-Bass affirmed?

August 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Royal Court revisited the Hastings-Bass principle in the case of In the matter of the V Settlement [2011] JRC 046, in which it confirmed its previous decisions permitting relief under the principle regardless of whether or not the trustee in question had acted in breach of his duty.

Mistaken Gifts -Jersey says “No” to Pitt v Holt

July 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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Representation of R in the matter of the S Trust [2011] JRC 117

Natural Resources

July 2011 - Projects, Energy & Natural Resources . Legal Developments by Ogier .

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Introduction Natural resources, such as oil, coal, gold, silver and other natural commodities, such as water, have provided some of the world’s most rewarding investments in recent years. There has also been an increasing focus on the development of renewable sources of energy such as wind and solar power, aiming to capitalise on new environmental policies and rising fossil fuel prices.

Acting as a Director of a Cayman Islands Company

July 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The purpose of this memorandum is to give a brief summary of some of the issues which may be faced by a director of a Cayman Islands Company.

Trustee Disclosure The A Settlement [2011] JRC 109

July 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The extent of a trustee's obligation to disclose documents (including correspondence between the trustee and its legal advisors) has been the subject of recent consideration in the A Settlement [2011] JRC 109.

In the matter of H [2011] JRC 070 - application to participate in proceedings

July 2011 - Corporate & Commercial. Legal Developments by Ogier .

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In proceedings in relation to a charitable trust.

The settlor’s widow brought an application to participate in proceedings instituted by a sub-trustee seeking relief in connection with a charitable trust and a compromise agreement in respect of issues arising under the settlor’s will.

In the matter of the representation of Publicis Graphics Group Holdings SA

July 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The Court ordered an ex parte mandatory interlocutory injunction against a nominee shareholder, who had until then refused to comply with the instructions of the beneficial owner of those shares.

Innovations in Limited Partnerships - June 2011

July 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Introduction
Two new types of limited partnership have been introduced in Jersey. These are the separate limited partnership (“Separate Partnership”) and the incorporated limited partnership (“Incorporated Partnership”).

Private Equity Fund Structuring Considerations

June 2011 - Finance. Legal Developments by Ogier .

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Historically, the most common structure used for private equity funds structured in the Cayman Islands was an exempted limited partnership. However, we have seen a shift recently towards structuring private equity funds as exempted companies.

Jersey E-gaming Developments

June 2011 - Corporate & Commercial. Legal Developments by Ogier .

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On 3 March 2011 the States of Jersey voted to approve the modernisation of Jersey’s gambling legislation to allow e-gaming businesses to operate in the Island on a permanent basis.

Merger of Companies

May 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Mergers Overview
The Companies (Jersey) Law 1991 (the “Law”) has been
amended by the Companies (Amendment No.5) (Jersey)
Regulations 2011 (the “Regulations”) which came into
force on 23 February 2011 to:

Innovations in Limited Partnerships Client Briefing

May 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Introduction
Two new types of limited partnership have been introduced in Jersey. These are the separate limited partnership (“Separate Partnership”) and the incorporated limited partnership (“Incorporated Partnership”).

Jersey Legislation Overview

May 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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A brief summary of key legislation which has come into force in the first quarter of 2011 or is imminent…

Private Equity - Listing Debt on the CISX

April 2011 - Finance. Legal Developments by Ogier .

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The Channel Islands Stock Exchange (CISX) has seen a
dramatic increase in the listing of quoted Eurobonds.
Many of these Eurobonds have been issued in
connection with private equity transactions. Typically the
debt issuing entity will be a UK tax resident company
formed in connection with a private equity funded
acquisition.

A guide to Investment funds in Jersey

April 2011 - Finance. Legal Developments by Ogier .

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The investment funds industry in Jersey has achieved significant growth in recent years. Statistics show that as at 30 September 2010 there were £179 billion of assets under management in Jersey. The Island has developed into a leading jurisdiction for the establishment of investment funds and a large number of Jersey funds are listed on the London and other stock exchanges. Jersey and Guernsey established the Channel Islands Stock Exchange where special procedures exist to facilitate the listing of Jersey and Guernsey investment funds. (Please visit www.cisx.com for further information).

Pension and Occupational Saving Schemes

April 2011 - Employment. Legal Developments by Ogier .

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The world of executive and all-employee remuneration and the forms of incentive provided is ever changing and increasingly competitive. Rewarding, retaining and motivating employees and indeed winning new high profile executives over to your company requires a well structured and effectively administered remuneration package.

Insolvency procedures in respect of Jersey companies

April 2011 - Finance. Legal Developments by Ogier .

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The credit crunch has put pressure on a wide range of structures and, as a result, lenders, borrowers and other counterparties are looking more closely at the impact of possible insolvency proceedings. As Jersey companies have often been used in cross-border finance transactions, it is important to be aware of the differences between Jersey and English insolvency procedures for companies.

In the matter of the Real Estate of Thomas Charles Le Normand, deceased (Royal Court, 24 June 2010)

April 2011 - Real Estate & Property. Legal Developments by Ogier .

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Thomas Charles Le Normand, deceased (the “Deceased”) died intestate as to Guernsey real estate. Under Guernsey inheritance law, which is based on Norman customary law principles of forced heirship, there are different rules for inheritance by intestacy of personalty and realty.

In the matter of A re:

April 2011 - Tax & Private Client. Legal Developments by Ogier .

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the rectification of an erroneous instrument of appointment and retirement of trustees

Employee Benefits

April 2011 - Employment. Legal Developments by Ogier .

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Due to the sensitive nature of the arrangements administered by the Ogier Employee Benefits Team, client details must remain confidential; however the following are representative of the work taken on in the last 12 months.

Evidence of Civil Proceedings

April 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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Until recently, the principle law governing evidence which can be admitted in civil proceedings in Guernsey was almost a century and a half old. Surprisingly, the Loi Relative aux Preuves, 1865 (the “1865 Law”), despite its antiquity, is relatively flexible to allow the Guernsey courts to develop well respected and comprehensive provisions as to the admissibility of evidence in civil proceedings.

Offshore Trusts

March 2011 - Finance. Legal Developments by Ogier .

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Introduction This briefing is intended to provide a general overview of some of the factors to be considered by clients and their advisers in the establishment of a trust in BVI, Cayman, Guernsey, Jersey or New Zealand.

Representation of LL: application by a trustee for approval of a momentous decision

March 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Representation of BNP Paribas Jersey Trust Corporation Limited concerning the position of a trustee on notice of an adverse claim

Representation of R M Talbot Estate

March 2011 - Finance. Legal Developments by Ogier .

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Representation of R M Talbot Estate - application by a trustee to vary a will of Jersey situate personal estate

Jersey Taxation of Investment Vehicles

February 2011 - Tax & Private Client. Legal Developments by Ogier .

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The principal Jersey tax statute is the Income Tax (Jersey) Law 1961 (as amended) (the “Income Tax Law”) which determines the rate of Jersey income tax payable by Jersey investment vehicles.

France and Jersey Tax Agreement

February 2011 - Finance. Legal Developments by Ogier .

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Exemption from French 3% Real Estate Tax

Situs of Intangible Assets: FG Hemisphere Associates LLC v Democratic Republic of Congo

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The recent case of FG Hemisphere Associates LLC v Democratic Republic of Congo and La Generale des Carrieres et de Mines ([2010] JRC 195) considered the issue of the situs of a debt.

Sales and Acquisitions of BVI Business Companies

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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With the increasing popularity of British Virgin Islands (“BVI”) companies as a business entity worldwide, it is inevitable that these companies will become the subject matter of substantial sales and acquisitions. The briefing seeks to identify some of the structuring options for such a transaction, and the preparatory steps and other issues that may be of relevance.

Representation of BNP Paribas Jersey Trust Corporation Limited

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Representation of BNP Paribas Jersey Trust Corporation Limited concerning the position of a trustee on notice of an adverse claim

Managing BVI Companies

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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British Virgin Island (“BVI”) companies are owned by their shareholders. The directors act as the shareholders’ agents in being responsible for the day to day running of the company and and having the powers necessary to undertake this role.

Solvent Voluntary Liquidation of BVI Companies

February 2011 - Finance. Legal Developments by Ogier .

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This briefing is intended to give a brief guide to the steps involved in the solvent liquidation of a business company incorporated in the British Virgin Islands (“BVI”). The liquidation process described (where a company has no liabilities or is able to pay its debts as they fall due) is carried out in accordance with Part XII of the BVI Business Companies Act, 2004 (the “Act”)

Listing a BVI Company on London’s Alternative Investment market

February 2011 - Finance. Legal Developments by Ogier .

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This briefing is intended to provide a summary of some of the legal requirements and considerations applicable to the use of an offshore company for listing on the Alternative Investment Market (“AIM”). It is not, however, intended to be comprehensive in its scope and it is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it.

Incorporating Joint Venture Companies in the British Virgin Islands

February 2011 - Finance. Legal Developments by Ogier .

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When setting up a joint venture involving parties from different countries, the international angle makes the choice of jurisdiction for the incorporation of the joint venture company (“JVC”) a crucial one.

British Virgin Islands: Continuations In and Out

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Companies that have been incorporated in other jurisdictions may be permitted to change their jurisdiction of incorporation to the British Virgin Islands (“BVI”); equally BVI incorporated companies may look to migrate to other jurisdictions. Under BVI law this process is known as “continuation” - either “in” or “out” depending on whether the BVI is the end point or the starting point.

Statutory Mergers in the British Virgin Islands

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The statutory merger regime in the British Virgin Islands (“BVI”) is straightforward, well established and effective. It has been used on a number of high profile, public transactions including, for example, Apax Partners’ $1.6 billion buyout of Tommy Hilfiger Corporation, and most recently by Essilor International SA for its recommended US$565 million takeover of NASDAQ listed FGX International Holdings Limited.

British Virgin Islands: Directors Duties

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The BVI Business Companies Act 2004 (the “BCA”) contains a specific section on directors’ duties that essentially codifies the common law. Directors, shareholders and third parties dealing with companies should be aware of these duties.

British Virgin Islands - Restructuring and Insolvency

February 2011 - Finance. Legal Developments by Ogier .

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Corporate insolvency in BVI is governed by the Insolvency Act 2003 and the Insolvency Rules 2005. These laws are closely based on the English Insolvency Act 1986. There are a number of insolvency regimes available. However the provisions for administration, which are similar to the provisions of the English Insolvency Act 1986 prior to its amendment by the Enterprise Act 2002, and which promote the rescue of companies in financial difficulty assisted by a statutory moratorium, are not yet in force. There are separate provisions for insurance companies.

British Virgin Islands: Company Incorporation and Partnership Formation

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Companies are incorporated in the British Virgin Islands (“BVI”) under the BVI Business Companies Act, 2004 (the “Act”) by the filing of Memorandum and Articles of Association with the Registrar of Corporate Affairs. This filing is made by the first registered agent of the Company (the “Registered Agent”) which each BVI company must have and must be located in the BVI.

BVI Companies: Rights and Remedies of Members

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The rights attaching to shares in a British Virgin Islands (“BVI”) business company are determined by the provisions of the BVI Business Companies Act, 2004 (as amended) (the “Act”) and that company’s memorandum and articles of association

Plans and Schemes of Arrangement in the British Virgin Islands

February 2011 - Corporate & Commercial. Legal Developments by Ogier .

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Under the BVI Business Companies Act, 2004 (the “Act”) there are two types of court supervised arrangements.

Enforcement of Jersey Security Agreements

January 2011 - Finance. Legal Developments by Ogier .

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As the credit crunch continues to impact on the global economy and banking covenants come under greater pressure, lenders are increasingly examining the detail of their security packages in order to identify the various enforcement options open to them.

Statutory Netting, Contractual Subordination and Non-Petition Provisions under Jersey Law

January 2011 - Finance. Legal Developments by Ogier .

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As financing transactions have become more sophisticated over the last decade, it has been common for parties to a transaction to agree in advance matters relating to:

In the matter of The Representation of AA [2010] JRC 164

January 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The distinction between “forum for administration” clauses and “exclusive jurisdiction” clauses in the context of trusts

In the matter of DD [2010] JRC 193

January 2011 - Employment. Legal Developments by Ogier .

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This recent case of the Jersey Royal Court considered the legal test for rectification and, in particular, whether suing a professional advisor who had given mistaken advice on which the settlor relied, is an alternative practical remedy to rectification.

Jersey Redundancy Legislation - Traps for the Unwary

January 2011 - Employment. Legal Developments by Ogier .

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On 1 January 2011 amendments to the Employment (Jersey) Law 2003 creating rights on redundancy take effect. The new provisions mean that for the first time in Jersey there will be statutory redundancy payments for employees similar to those operating in the United Kingdom. This legislative change introduces a degree of complexity to employers which will require careful handling.

Jersey Exempts Investment Funds and Securitisation Vehicles from Tax Liability

January 2011 - Tax & Private Client. Legal Developments by Ogier .

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Underlining Jersey’s commitment to its investment fund and finance industry, the Island has passed an amendment law to provide an explicit statutory exemption from any liability to tax in Jersey for investment funds and certain capital markets issuers.

Channel Island Stock Exchange - Debt Listing

January 2011 - Finance. Legal Developments by Ogier .

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The Channel Islands Stock Exchange, LBG (‘CISX’ or the ‘Exchange’) offers:

Channel Island Stock Exchange - Continuing Obligations for Issuer’s with listed Debt Securities

January 2011 - Finance. Legal Developments by Ogier .

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This Client Briefing has been prepared for the assistance of directors of companies listing “debt securities” as defined in Chapter 1 of the listing rules (the Listing Rules) of the Channel Islands Stock Exchange (the Exchange) under Chapter VIII of the Listing Rules.

BVI Public Funds Code 2010

January 2011 - Corporate & Commercial. Legal Developments by Ogier .

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The FSC releases the Public Funds Code to supplement SIBA and the Mutual Funds Regulations.

BVI Public Funds Code 2010

January 2011 - Finance. Legal Developments by Ogier .

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The FSC releases the Public Funds Code to supplement SIBA and the Mutual Funds Regulations.

Channel Island Stock Exchange - Continuing Obligations for Issuer’s with listed Debt Securities

December 2010 - Finance. Legal Developments by Ogier .

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This Client Briefing has been prepared for the assistance of directors of companies listing “debt securities” as defined in Chapter 1 of the listing rules (the Listing Rules) of the Channel Islands Stock Exchange (the Exchange) under Chapter VIII of the Listing Rules.

Channel Island Stock Exchange - Debt Listing

December 2010 - Finance. Legal Developments by Ogier .

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The Channel Islands Stock Exchange, LBG (‘CISX’ or the ‘Exchange’) offers:

Exclusive Supply Contracts: When Are They Anti-Competitive?

December 2010 - Corporate & Commercial. Legal Developments by Ogier .

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Generally, undertakings are prohibited, pursuant to Article 8 of the Competition (Jersey) Law 2005 (the “Law”), from making arrangements with other undertakings that have the object or effect of hindering to an appreciable extent competition of the supply of goods or services within Jersey. Such arrangements are known as anticompetitive arrangements. The Jersey Competition Regulatory Authority (the “JCRA”) is responsible for, amongst other things, enforcing the provisions of the Law.

Jersey Competition Law – a brief guide to Mergers and Acquisitions

December 2010 - Corporate & Commercial. Legal Developments by Ogier .

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The Competition (Jersey) Law 2005 (the “Law”) generally prohibits any agreements, business practices and conduct which substantially lessen competition in Jersey. The Jersey Competition Regulatory Authority (the “JCRA”) is responsible for enforcing the Law. This briefing guide focuses on Part 4 of the Law (which came into force on 1 May 2005), regulating certain mergers and acquisitions in Jersey.

Segregated Portfolio Companies

December 2010 - Corporate & Commercial. Legal Developments by Ogier .

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The Segregated Portfolio Company (“SPC”), a variant of the exempted company, was first introduced in the Cayman Islands in May 1998 by an amendment to the Companies Law. The concept of an SPC is that a company, which remains a single legal entity, may create segregated portfolios (“Portfolios”) such that the assets and liabilities of each Portfolio are legally separate from the assets and liabilities of any other Portfolios.

Investment Funds in Bahrain and Offshore

November 2010 - Finance. Legal Developments by Ogier .

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There are many options available to promoters as to which domicile to choose for their fund and different factors, such as the preferences of seed investors or regulatory requirements may be important. This briefing highlights some of the different investment fund products available in Bahrain, the British Virgin Islands (‘BVI’), the Cayman Islands (‘Cayman’), Guernsey and Jersey and provides some background on each of those jurisdictions.

'Green Leases': Commercial Lease Arrangements for Sustainable Buildings

November 2010 - Projects, Energy & Natural Resources . Legal Developments by Ogier .

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A 'Green Lease' is a lease of a commercial or public building which incorporates an agreement between a landlord and a tenant as to how a building is to be occupied, operated and managed in a sustainable way.

In the matter of the representation of Y [2010] JRC 54

November 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The case concerned an application to the Court by Y, the liquidator of Centurion Trust Company Limited (“Centurion”), to approve the proposed appointment of Herald Trust Company Limited (“Herald”) as the trustee of the Q Trust

Update on AIFM Directive

November 2010 - Finance. Legal Developments by Ogier .

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Impact Analysis for Jersey and Guernsey Investment Fund

Fairfield Funds: Update

November 2010 - Finance. Legal Developments by Ogier .

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Liquidators were appointed over Fairfield Sentry Limited, Fairfield Sigma Limited and Fairfield Lambda Limited (together “the Funds”) by orders of the BVI High Court dated 21 July 2009, 21 July 2009 and 23 April 2009 respectively.

Chapter 15 Recognition: Fairfield Sentry Limited (in Liquidation)

November 2010 - Corporate & Commercial. Legal Developments by Ogier .

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As well as issuing claims in mistake and restitution in the BVI Commercial Court and the US State Supreme Court, the liquidators of Fairfield Sentry Limited (“the Fund”) also petitioned for and, on 22 July 2010 obtained, Chapter 15 recognition in the United States Bankruptcy Court for the Southern District of New York.

The New Security Interests (Jersey)

November 2010 - Finance. Legal Developments by Ogier .

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The creation of security over intangible movables under Jersey law is currently governed by the Security Interests (Jersey) Law 1983. After a period of consultation, the new Security Interests (Jersey) Law is in a close-to-final form. The new Law will add certainty and flexibility at a time when economic conditions have led to a greater focus on protection of collateral.

Mischca Trust & Butterfield Trust (Guernsey) v Thommessen et al.

November 2010 - Finance. Legal Developments by Ogier .

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This case concerned five applications involving the Mischca Trust. The first application (the “Butterfield Application”) was made by the trustee of the Mischca Trust to request confirmation from the Court that the setting up of the International Fund for Arts and Sciences (‘IFAS’) charitable trust by them was lawful.

Discain Project Services Ltd v Charles Le Quesne (Guernsey) Ltd

November 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Plaintiff sought to challenge the outcome of an adjudication proceeding between the two parties on the grounds that the decision was unfair and contrary to natural justice.

Arun Estate Agencies Ltd v Kleinwort Benson (Guernsey) Trustees Ltd

November 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Applicant applied to the Court to have an Employee Benefit Trust (“EBT”) set aside and all the monies held by the trustees to be returned to the Applicant.

Dominion Corporate Trustees Limited & Dominion Trust Limited v Capmark Bank Europe PLC

October 2010 - Finance. Legal Developments by Ogier .

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The claimants are the joint trustees (the “Trustees”) of a Jersey property unit trust (the “Trust”), formed as a vehicle for holding real property in the United Kingdom (the “Property”).

Jersey Court Upholds Bank’s Security Under Security Interest Agreement

October 2010 - Finance. Legal Developments by Ogier .

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In the recent case of Mirpuri vs Bank of India ([2010] JRC 129), the Royal Court of Jersey was asked to consider what powers a secured party could exercise to protect its security. In addition, the court made a number of comments on variation of contract, estoppel and mitigation of loss.

Mischca Trust & Butterfield Trust (Guernsey) v Thommessen et al.

October 2010 - Finance. Legal Developments by Ogier .

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This case concerned five applications involving theMischca Trust. The first application (the “ButterfieldApplication”) was made by the trustee of the MischcaTrust to request confirmation from the Court that thesetting up of the International Fund for Arts and Sciences(‘IFAS’) charitable trust by them was lawful.  

Discain Project Services Ltd v Charles Le Quesne (Guernsey) Ltd

October 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Plaintiff sought to challenge the outcome of anadjudication proceeding between the two parties on thegrounds that the decision was unfair and contrary tonatural justice.  

Arun Estate Agencies Ltd v Kleinwort Benson (Guernsey) Trustees Ltd

October 2010 - Real Estate & Property. Legal Developments by Ogier .

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The Applicant applied to the Court to have an EmployeeBenefit Trust (“EBT”) set aside and all the monies held bythe trustees to be returned to the Applicant. The EBT hadbeen set up to provide the Applicant’s employees withincentive and pension benefits.  

'Green Leases': Commercial Lease Arrangements for Sustainable Buildings

October 2010 - Real Estate & Property. Legal Developments by Ogier .

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A 'Green Lease' is a lease of a commercial or publicbuilding which incorporates an agreement between alandlord and a tenant as to how a building is to beoccupied, operated and managed in a sustainable way. 

The New Security Interests (Jersey) Law - Transitional Provisions

October 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The draft Security Interests (Jersey) Law 201- (the “newLaw”) is in close-to-final form and is shortly due tocommence its journey through the legislative process. Itis currently anticipated that the new Law will come intoforce in the first half of 2011. 

Jersey Companies and English Administration

October 2010 - EU & Competition. Legal Developments by Ogier .

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There has been a considerable amount of interest fromclients recently on putting Jersey companies holding UKreal property and other assets into English administration.Where a Jersey company and its creditors intend torescue the company as a going concern, or Englishadministration would achieve a better realisation forcreditors than a désastre or a winding up, it may beadvantageous to commence English administration.  

Jersey Schemes of Arrangement

October 2010 - Corporate & Commercial. Legal Developments by Ogier .

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This client briefing provides a general overview ofschemes of arrangement for Jersey companies under theCompanies (Jersey) Law 1991 (the “Companies Law”).A scheme of arrangement can involve almost any kind ofcorporate reorganisation, merger, acquisition orrestructuring so long as the appropriate approvals andcourt sanction are obtained. In the context ofrestructurings, there is limited precedent in Jersey,although Jersey schemes of arrangement have beenused as part of the Drax and Telewest restructurings. 

Jersey Taxation of Investment Vehicles

September 2010 - Tax & Private Client. Legal Developments by Ogier .

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The principal Jersey tax statute is the Income Tax (Jersey) Law 1961 (as amended) (the “Income Tax Law”) which determines the rate of Jersey income tax payable by Jersey investment vehicles.

Listing Asian Businesses in Hong Kong or London Using a Jersey Holding Company

September 2010 - Corporate & Commercial. Legal Developments by Ogier .

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Asia is a vast and growing market, with the Chinese economy being the biggest. China has effectively become the second largest economy in the world after that of the US and is expected to overtake them within the next ten years. There is a significant amount of capital being generated in Asia which is ripe for investment.

In the Matter of the Ta-Ming Wang Trust, 12 April 2010 (Unreported)

August 2010 - Finance. Legal Developments by Ogier .

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In this recent case, the Grand Court held that the Hastings Bass principle applied, not just to the actions and decisions of a trustee, but also to the actions and decisions of directors of a company owned by the Ta- Ming Wang Trust (the “Trust”), in declaring dividends, at the instance of the trustee in favour of the trustee; but that, on the available evidence, the decision of the directors could not be impugned.

In the Matter of the AE Settlement [2010] JRC085

August 2010 - Finance. Legal Developments by Ogier .

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The case concerned an application for directions made by the corporate trustee (the “Trustee”) in relation to the underlying assets of three Jersey trusts: the AE Settlement, the CE Settlement and the IE Settlement (together, the “Trusts”).

Utilising British Virgin Islands & Cayman Islands entities for Private Equity Investment into China

August 2010 - EU & Competition. Legal Developments by Ogier .

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As offshore legal counsel based in Hong Kong, we commonly deal with the book ends of inbound private equity investment into the People’s Republic of China (“PRC”), that being, the initial establishment of the offshore investment fund structure, typically structured as a limited partnership and domiciled in either the Cayman Islands or British Virgin Islands (the “PE Fund”) at one end, and at the other, investments made by PE Fund’s in certain offshore target entities (“Offshore Target”), indirectly holding strategic PRC assets which are subject to such acquisition. 1

Offshore Trusts

August 2010 - Finance. Legal Developments by Ogier .

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This briefing is intended to provide a general overview of some of the factors to be considered by clients and their advisers in the establishment of a trust in BVI, Cayman, Guernsey or Jersey.

Listing Asian Businesses in Hong Kong or London Using a Jersey Holding Company

August 2010 - Corporate & Commercial. Legal Developments by Ogier .

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Asia is a vast and growing market, with the Chinese economy being the biggest. China has effectively become the second largest economy in the world after that of the US and is expected to overtake them within the next ten years. There is a significant amount of capital being generated in Asia which is ripe for investment.

Securities and Investment Business Act, 2010 - Key Considerations for Investment Managers

August 2010 - EU & Competition. Legal Developments by Ogier .

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With the enactment of the Securities and Investment Business Act, 2010 (“SIBA”) in the BVI, which came into force on 17 May 2010, the regulation of the BVI’s financial services industry has undergone a number of significant changes which will be relevant to users of BVI vehicles as investment managers of funds or other structures.

When is a Redemption Effective?: Reserve International Liquidity Fund Ltd

July 2010 - Finance. Legal Developments by Ogier .

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The British Virgin Island’s Commercial Court has recently delivered a decision in Western Union International Limited v Reserve International Liquidity Fund Ltd which addresses the issue of when during the redemption process a redeeming investor becomes a creditor of the fund and is therefore entitled to apply for the appointment of a liquidator.

Securities and Investment Business Act, 2010 - Key Considerations for Existing BVI Funds

July 2010 - Finance. Legal Developments by Ogier .

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With the enactment of the Securities and Investment Business Act, 2010 (“SIBA”) in the BVI, which comes into force on 17 May 2010, the Mutual Funds Act, 1996, the statute which has regulated the BVI funds industry for more than a decade will be repealed and replaced by SIBA (of which Part III relates to funds) and its underlying secondary legislation, the Mutual Funds Regulations, 2010 (the “Mutual Funds Regulations”) and the Public Funds Code.

Securities and Investment Business Act, 2010

July 2010 - Finance. Legal Developments by Ogier .

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With the enactment of the Securities and Investment Business Act, 2010 (“SIBA”) in the BVI, which came into force on 17 May 2010, the regulation of the BVI’s financial services industry has undergone a number of significant changes. These changes may affect your BVI entities.

Representation of the Jeep Trust [2010] JRC075

July 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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This representation was made by the principal beneficiary of the Jeep Trust (“Mr K”). The Jeep Trust was established in May 1998 with Regal Trustees Limited (“Regal”) as trustee.

Limited Partnerships Law Review

July 2010 - Corporate & Commercial. Legal Developments by Ogier .

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The Limited Partnerships (Guernsey) Law, 1995, as amended (the Limited Partnerships Law) provides a statutory framework for the establishment and operation of limited partnerships in Guernsey. A briefing, Limited Partnerships in Guernsey, has been prepared and is available on request or online www.ogier.com

Exchange Traded Commodities (“ETCs”)

July 2010 - Finance. Legal Developments by Ogier .

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The ETC market is one of the fastest growing investment segments in the Exchange Traded Product market. Jersey remains a popular jurisdiction for the creation of ETC issuance vehicles and this briefing outlines some of the benefits of using Jersey and Ogier to establish ETC structures.

Convertible Bonds - Jersey Cashbox Structures

July 2010 - Finance. Legal Developments by Ogier .

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2009 saw the revival of the convertible bond market in Europe and commentators expect continued activity in this market in 2010 as corporates continue to diversify sources of funding away from bank lending coupled with strong investor demand.

COMI: New Developments for Offshore Liquidators

July 2010 - Finance. Legal Developments by Ogier .

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National interests play a distinct part in application of the UNCITRAL model law on cross-border insolvency.

Chvetsov v BNP Paribas and Another [2009] JCA220

July 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The case concerned an application for leave to appeal against a decision in the Royal Court striking out a claim against Maison Anley Property Nominee Limited (“MA”). The conclusion arrived at by the Royal Court was upheld, that being the claim contained no cause of action.

Cash Box Transactions - The Use of Jersey Companies

July 2010 - Finance. Legal Developments by Ogier .

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This briefing document explains how a United Kingdom public limited company (‘PLC’), which is listed on the main list of the London Stock Exchange or on AIM, may use a Jersey company in a ‘cash box’ transaction where PLC is raising money either through a placing of its shares, a rights issue or where a convertible bond is issued.

Incorporating a Guernsey Company

July 2010 - Corporate & Commercial. Legal Developments by Ogier .

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Why Guernsey? Guernsey is a leading financial centre of the highest reputation and standards. Its continuing success as a financial centre is based on various factors, including economic and political stability, the independence it enjoys, an easily accessible justice system and an independent regulatory regime. Its low tax status, proximity to the financial markets of Europe and sophisticated financial industry infrastructure also contribute to its success.

Offshore Equity Transactions: Implications of Recent Changes to Corporate Tax Law in China

July 2010 - Finance. Legal Developments by Ogier .

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The Chinese State Administration of Taxation (“SAT”) issued Circular [2009] No. 698 (“Circular 698”) on 10 December 2009. Circular 698 addresses various tax issues on equity transfers by non-Chinese tax resident enterprises. It applies retroactively from 1 January 2008 and covers direct and indirect sales by non-Chinese tax resident enterprises of unlisted shares of Chinese tax resident enterprises.

France and Jersey Tax Agreement

July 2010 - Tax & Private Client. Legal Developments by Ogier .

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French 3% Real Estate Tax Exemption France and Jersey entered into a tax information exchange agreement (TIEA) on 23 March 2009. Jersey has previously entered into similar agreements with 13 other OECD countries.

The CRC Scheme - Potential Impact on Jersey Trustees

July 2010 - Projects, Energy & Natural Resources . Legal Developments by Ogier .

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What is the CRC Scheme? The Carbon Reduction Commitment Energy Efficiency Scheme (“CRC Scheme”) is a new mandatory climate change and energy saving Scheme aimed at improving energy efficiency and cutting carbon dioxide (CO²) emissions in the UK. It was introduced on 1 April 2010 and is administered by the UK’s Environment Agency.

Incorporating a Guernsey Company

July 2010 - Corporate & Commercial. Legal Developments by Ogier .

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This memorandum has been prepared for the assistance of our clients in connection with incorporating a Guernsey company under the Companies (Guernsey) Law, 2008 (as amended) (the “Companies Law”). It is intended to provide only a summary of the main legal and general principles and is not intended to be comprehensive in scope. It is strongly recommended that you seek specific legal advice on such matters and we would be pleased to assist in this respect. A series of briefings on other specific aspects of Guernsey companies law have been produced by Ogier and available on request or on our website, www.ogier.com

Lochmore Trust

July 2010 - Finance. Legal Developments by Ogier .

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The settlor applied to court to set aside the Lochmore Trust (the “Trust”) on the grounds of the settlor’s mistake, and all beneficiaries of the Trust had confirmed their consent to the application. Tax advice that the settlor received suggested that shares held by Lochmore (as nominees for the settlor) (the “Shares”) ought to be contributed to the Trust for CGT savings, which contribution being made by way of sale with the price outstanding as a loan rather than a gift into the trust, to avoid an IHT charge at 20%, as the settlor was deemed to be domiciled in the UK for IHT purposes.

ILPA Private Equity Principles - Aligning the Interest of Limited Partners and General Partners

July 2010 - Corporate & Commercial. Legal Developments by Ogier .

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In September 2009 the Institutional Limited Partners Association (the “ILPA”) published a set of private equity principles (the “Principles”) which aim to set out “preferred private equity terms” in the context of realigning the interests of the limited partner (“LP”) with the general partner (“GP”). The Principles were developed from the input and feedback of institutional private equity investors, senior investment officers and other members of the ILPA and are presented as a set of industry best practices.

Cunningham v Cunningham

July 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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A trust known as the A Cunningham No. 2 Settlement (the “Trust”) was established in 1991, with two brothers (the plaintiff and his brother referred to herein as “A”) in the class of beneficiaries who subsequently got into dispute with one another as to certain transactions relating to the Trust. The original trustees at the time of establishment of the Trust had power to designate the settlor and protector, and they chose A as such. A had power as protector of appointing new or additional trustees and removing trustees by instrument in writing.

BVI Statutory Mergers - A Useful Tool

June 2010 - EU & Competition. Legal Developments by Ogier .

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The British Virgin Islands’ statutory merger regime is straightforward, well established and effective. It has been used on a number of high profile, public transactions including, for example, Apax Partners’ $1.6 billion buyout of Tommy Hilfiger Corporation, and most recently by Essilor International SA for its recommended US$565 million takeover of NASDAQ listed FGX International Holdings Limited.

Securities and Investment Business Act, 2010

June 2010 - Finance. Legal Developments by Ogier .

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After much anticipation, the British Virgin Islands (“BVI”) enacted the Securities and Investment Business Act, 2010 on 12 April 2010 (“SIBA”). SIBA, which came into force on 17 May 2010 (with the exception of the provisions relating to public issues of securities), takes into full account current and emerging international standards of regulation as they relate to the regulation and administration of investment funds (including hedge funds) and entities conducting investment or securities business. It represents an extremely important step for the ongoing development and growing sophistication of the financial services sector within the BVI. It also provides a user friendly statute, in tune with the current regulatory environment, which will complement the BVI Business Companies Act, 2004 and the Insolvency Act, 2003.

BVI Securities and Investment Business Act, 2010

June 2010 - EU & Competition. Legal Developments by Ogier .

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Following the completion of an industry consultation, the British Virgin Islands (‘BVI”) has enacted the Securities and Investment Business Act, 2010 (“SIBA”). The enactment of SIBA represents an extremely important step for the continued development of the financial services sector within the BVI, providing the jurisdiction with a further modern and user friendly statute, in tune with the current regulatory environment, which will complement the BVI Business Companies Act, 2004 and the Insolvency Act, 2003.

Securities and Investment Business Act, 2010

June 2010 - Corporate & Commercial. Legal Developments by Ogier .

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After much anticipation, the British Virgin Islands (“BVI”) enacted the Securities and Investment Business Act, 2010 on 12 April 2010 (“SIBA”). SIBA, which came into force on 17 May 2010 (with the exception of the provisions relating to public issues of securities), takes into full account current and emerging international standards of regulation as they relate to the regulation and administration of investment funds (including hedge funds) and entities conducting investment or securities business. It represents an extremely important step for the ongoing development and growing sophistication of the financial services sector within the BVI. It also provides a user friendly statute, in tune with the current regulatory environment, which will complement the BVI Business Companies Act, 2004 and the Insolvency Act, 2003

Offshore Equity Transactions: Implications of Recent Changes to Corporate Tax Law in China

June 2010 - Finance. Legal Developments by Ogier .

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The Chinese State Administration of Taxation (“SAT”) issued Circular [2009] No. 698 (“Circular 698”) on 10 December 2009. Circular 698 addresses various tax issues on equity transfers by non-Chinese tax resident enterprises. It applies retroactively from 1 January 2008 and covers direct and indirect sales by non-Chinese tax resident enterprises of unlisted shares of Chinese tax resident enterprises.

Administration Orders - Letters of Request to the UK Court

June 2010 - Finance. Legal Developments by Ogier .

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This is the latest decision of the Royal Court in relation to an application by a UK creditor (a bank) for a letter of request to be issued to the English High Court requesting that an administration order be made in respect of a Jersey company.

Current developments in Cayman’s legal and regulatory environment

April 2010 - Corporate & Commercial. Legal Developments by Ogier .

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Perception shapes behaviour and in recent months many interested service providers and governmental agencies in rival financial centres have sought to attract business away from Cayman by painting a picture that clear-sighted observers would not recognise. Rumours of the demise of Cayman have been exaggerated to the point of fabrication. An analysis of some key metrics of Cayman’s financial services industry demonstrates that it is faring well in absolute terms and extremely well relative to its rivals. The following review of Cayman’s robust health is provided by Cayman Finance.

Offshore equity transactions: Implications of recent changes to corporate tax law in China

April 2010 - Tax & Private Client. Legal Developments by Ogier .

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The Chinese State Administration of Taxation (“SAT”) issued Circular [2009] No. 698 (“Circular 698”) on 10 December 2009. Circular 698 addresses various tax issues on equity transfers by non-Chinese tax resident enterprises. It applies retroactively from 1 January 2008 and covers direct and indirect sales by non-Chinese tax resident enterprises of unlisted shares of Chinese tax resident enterprises.

Enviroco Limited v Farstad Supply A/S

February 2010 - Projects, Energy & Natural Resources . Legal Developments by Ogier .

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A recent case in the English Court of Appeal has considered the definition of “subsidiary” set out in sections 736 and 736A of the UK Companies Act 1985 (the “UK Act”), in circumstances where a secured party has taken security by way of assignment of title to the shares of an underlying company.

British Virgin Islands: New Regulatory Legislation

February 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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New legislative provisions will come into force shortly in the British Virgin Islands relating to financial services, insurance business and financing and money services. These provisions will provide for an enhanced platform in these areas of the financial services industry of the BVI, once again demonstrating the continual commitment of the BVI to ensuring its legislation provides for first class transparent regulation which is appropriate for the BVI as an OECD white listed jurisdiction.

The law of mistake: In B -v- C, D and E in the matter of the A Trust [2009] JRC 245

February 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In B -v- C, D and E in the matter of the A Trust the Royal Court took the opportunity to fully review the law of mistake in Jersey concerning the disposal of personal property by an individual into a trust following recent decisions by the English courts.

The AML/CFT Handbook for Regulated Financial Services Business

February 2010 - Finance. Legal Developments by Ogier .

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On 23 December 2009 the Jersey Financial Services Commission (“JFSC”) published an additional trust company business section (the “Section”) to its Handbook for the Prevention and Detection of Money Laundering and the Financing of Terrorism (the “Handbook”).

Investment Funds Global

January 2010 - Finance. Legal Developments by Ogier .

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Current developments in the global investment funds legal and regulatory environment

Who Moved My Class Rights? - A Short Study of Cayman Islands Law on Variation of Class Rights

December 2009 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The basic question is whether under Cayman Islands Law, a variation of a right attaching to a particular class of shares has to be consented to by special majority of the members? In other words, can the Article authorising the variation of class rights specify a simple majority or some other majority?

In the matter of the H Trust - Royal Court 12 August 2009 unreported judgment

November 2009 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Trust in question was known as the H Trust. The trustees were a Mr Arthur (the “Individual Trustee”) and the settlor. The settlor experienced difficulties in his relationship with the Individual Trustee and decided he wanted to replace him. The settlor selected Church Street Trustees Limited (“the New Trustee”).

Ogier Fiduciary Services – Trustee Services Japan

November 2009 - Finance. Legal Developments by Ogier .

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The Ogier Group is the world’s largest offshore law firm with a presence in nine jurisdictions around the world and employing over 800 professional and support staff including more than 220 lawyers and 300 professional administrators.

Updater - 2009: Current developments in Cayman’s legal and regulatory environment

November 2009 - Corporate & Commercial. Legal Developments by Ogier .

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In this issue: Cayman in calm waters

Tasarruf Meduati Sigorta Fonu V Merrill Lynch (Cayman) Limited and Others

October 2009 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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As a matter of English and Cayman law, does the court have jurisdiction to appoint a receiver, at the behest of a judgement creditor, by way of equitable execution over a settlor’s power of revocation of a trust?

Hybrid Structured Funds

October 2009 - Finance. Legal Developments by Ogier .

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Global issuance of collateralised debt obligations and synthetic equivalents in 2007 reached US$269 billion but by the end of 2008 had dropped to US$71 billion (source: Creditflux). Recent market activity suggests that a growing number of investment finance vehicles are being structured not as CDOs issuing rated debt, but as hybrid investment funds. A combination of the various factors summarised below is expected to result in permanent changes to the structure of the investment capital markets.

Hedge fund side letters and in specie payments of redemption proceeds

September 2009 - Finance. Legal Developments by Ogier .

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A recent decision of the British Virgin Islands High Court in SV Special Situations Fund Limited (SV) v Headstart Class F Holdings Limited (Headstart) should be treated by investors and hedge fund managers as a cautionary tale to consider carefully the terms of any side letters.

Latest Developments in the OECD standing of the Cayman Islands & the British Virgin Islands

September 2009 - Finance. Legal Developments by Ogier .

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The Organisation for Economic Cooperation and Development (“OECD”) at the G-20 Summit in April this year developed a three-tiered classification for offshore financial centres according to an internationally agreed standard. An offshore financial centre may be classified as ‘white’, ‘grey’ or ‘black’ based on the number of Tax Information Exchange Agreements (“TIEA”s) entered into. A classification of ‘white’, the highest distinction denoting substantially implemented agreed tax standards, requires an offshore financial centre to have entered into a minimum of 12 TIEAs.

Guernsey Companies Law - Compulsory Winding Up of Companies

August 2009 - Corporate & Commercial. Legal Developments by Ogier .

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The (Guernsey) Law, 2008 (the “Companies Law”) came into force on 1 July 2008 and contains provisions in relation to the nature, type, establishment and conduct of Guernsey incorporated companies (“Companies” or “Company” as the context requires), including limited liability companies (“Ltds”), companies limited by guarantee (“LBGs”), protected cell companies (“PCCs) protected cells (“PCells), incorporated cell companies (“ICCs”), incorporated cells (“ICells”), unlimited liability companies and mixed liability companies (“MLs”).

Use of Trusts in Guernsey

August 2009 - Finance. Legal Developments by Ogier .

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Guernsey is a self-governing dependency of the British Crown and does not form part of the United Kingdom. By constitutional convention established over some 900 years the Island has complete autonomy in all matters of internal government, including taxation. The legal system is derived in part from the customary laws of Normandy but has been strongly influenced by English law in trust, company and commercial matters and the Judicial Committee of the Privy Council remains the Island’s ultimate court of appeal.

New Rules for Guernsey Investment Fund Licensees

August 2009 - Finance. Legal Developments by Ogier .

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The principal law governing investment funds and licensees in Guernsey is The Protection of Investors (Bailiwick of Guernsey) Law, 1987 (the “POI Law”). This law was overhauled in 2008 primarily to bring the regimes for open and closed ended investment schemes under one law. New rules were published and came into force at the end of last year; the Authorised Closed Ended Investment Schemes Rules 2008; the Registered Collective Investment Scheme Rules 2008; and the Prospectus Rules 2008.

Should costs be borne by the income or capital of the Trusts Fund?

July 2009 - Finance. Legal Developments by Ogier .

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This English law case was an application by Close Trustees (Switzerland) SA and Close Brothers Trust Company (the “Trustees”) in respect of a trust where the life tenant was entitled to the income. After the life tenant’s death the capital would be held for the benefit of her children. The life tenant was seeking damages and compensation from both the investment management companies and the Trustees and Protector for losses in respect of the performance of investments held in the trust through the Californian Courts. The Trustees sought the approval of the Court for the retention of a proportion of the income which would otherwise be paid out to the life tenant to ensure that funds were available to reimburse the Trustees’ legal costs. The case did not consider whether the Trustees were entitled to be reimbursed for their legal costs as this would depend upon the outcome of the Californian case, but just whether the retention was permissible given the effect that this would have on the life tenant’s income.

Proceeds of Crime and Jersey Trust Assets

June 2009 - Crime. Legal Developments by Ogier .

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The Royal Court has recently delivered the latest instalment in the matter of the Bird Charitable Trust and the Bird Purpose Trust (see Ogier briefing dated February 2008). The Bailiff’s judgment of 29 April 2009 in the above case, concerned an application to discharge a saisie judiciaire granted in May 2007 by the Royal Court under the Proceeds of Crime (Jersey) Law 1999 (the “Law”), on the request of the United States, in respect of the realisable property of Mr Gary Kaplan situated within Jersey, including the assets of the Bird Trusts.

Real Estate Holding Structures for Middle Eastern Investors

June 2009 - Real Estate & Property. Legal Developments by Ogier .

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The global economy is currently experiencing an unprecedented crisis. The real estate sector in particular has suffered from falling valuations and a general lack of liquidity and investor confidence. However, history tells us that the real estate market is cyclical and the market will recover.

Cayman Companies: New Merger and Consolidation Provisions

May 2009 - Corporate & Commercial. Legal Developments by Ogier .

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Following the amendments to the Companies Law (2007 Revision) (“Companies Law”) changing the provisions of that law relating to the winding up of companies, further amendments have been enacted, introducing new provisions for mergers and consolidations of companies. These amendments, contained in the Companies (Amendment) Law, 2009 are expected to come into effect before the end of April 2009.

Listing Offshore Companies on the London Stock Exchange’s Alternative Investment Market (“AIM”

April 2009 - Corporate & Commercial. Legal Developments by Ogier .

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This briefing is intended to provide a summary of some of the legal requirements and considerations applicable to the use of an offshore company for listing on AIM. It is not, however, intended to be comprehensive in its scope. It is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it. Briefings on other subjects have been produced by Ogier and are available on request. This briefing has been prepared on the basis of law and practice as at 1 April 2008.

Potential Uses of the Jersey Foundation

April 2009 - Finance. Legal Developments by Ogier .

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Foundations to be established under the Foundations (Jersey) Law 200[-] (the “Law”) are vehicles for holding assets. They will be incorporated and therefore have separate legal personality. Foundations must be established with one or more objects. With the sole caveat that the objects must be lawful, they can be charitable, non-charitable or a mixture of both. Permissible objects might include, for example, benefiting a particular person or class of persons or carrying out a specific purpose or holding a particular asset.

Transition to New Guernsey Funds Regime

April 2009 - Finance. Legal Developments by Ogier .

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This memorandum has been prepared for the assistance of clients considering carrying out investment fund business in Guernsey. It is intended to provide only a summary of the main legal requirements and general principles applicable to investment fund business in Guernsey and is not intended to be comprehensive in its scope. It is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it.

UK Groups - Relocating from the UK using a Jersey Holding Company

April 2009 - Tax & Private Client. Legal Developments by Ogier .

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Jersey has been the jurisdiction of choice for a number of high profile groups relocating from the UK over the last year or so. Despite the recent proposals of the UK government to implement tax changes in an attempt to stem the flow of UK multinationals to more tax favourable jurisdictions, several large groups still consider there to be benefits in migrating out of the UK and have plans to relocate using a Jersey holding company in the course of the next year.

What is a Foundation?

April 2009 - Finance. Legal Developments by Ogier .

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Foundations are vehicles for holding assets. The Foundations (Jersey) Law (the “Law”) will now permit Foundations to be created under the law of Jersey.

A Guide to Curatorships in Jersey

January 2009 - Corporate & Commercial. Legal Developments by Ogier .

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A curator is someone appointed by the Royal Court under the Mental Health (Jersey) Law, 1969 to conduct the affairs of someone found by the court to be an interdict.

A Guide to Investment Funds in the British Virgin Islands

January 2009 - Finance. Legal Developments by Ogier .

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The success of the final product is dependant on making many decisions. Whether they are; determining the target market, determining what type of investment fund is required, which compliance and regulatory regime will best suit the circumstances, establishing distribution channels, or introducing systems and procedures to support the operation of the fund, Ogier is in a position to assist you from the outset.

A Guide to Tutelles in Jersey

January 2009 - Corporate & Commercial. Legal Developments by Ogier .

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The tutelle procedure has its origins in the Norman customary law of the Island of Jersey and has developed over time as a means of protecting the interests and managing the affairs of children considered too young to do so for themselves.

A Guide to Investment Funds in the British Virgin Islands

November 2008 - Finance. Legal Developments by Ogier .

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The success of the final product is dependant on making many decisions. Whether they are; determining the target market, determining what type of investment fund is required, which compliance and regulatory regime will best suit the circumstances, establishing distribution channels, or introducing systems and procedures to support the operation of the fund, Ogier is in a position to assist you from the outset.

A Guide to Investment Funds in the

September 2008 - Finance. Legal Developments by Ogier .

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The success of the final product is dependant on making many decisions. Whether they are; determining the target market, determining what type of investment fund is required, which compliance and regulatory regime will best suit the circumstances, establishing distribution channels, or introducing systems and procedures to support the operation of the fund, Ogier is in a position to assist you from the outset.

A Legal Road Map for Securitisation of Assets and other

September 2008 - Finance. Legal Developments by Ogier .

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The last couple of years have witnessed a formidable increase in the number of securitisation transactions completed in the British Virgin Islands, and there is much hope that the market share of the jurisdiction in the industry of offshore securitisations and structure finance transactions will continue to growth as it did its market share in the global investment funds industry.

A Trustees Limited -v- W, X, Y and Z [2008] JRC 097

September 2008 - Tax & Private Client. Legal Developments by Ogier .

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What considerations are involved when a trustee asks the Court to approve its decisions?