The Legal 500

On 25 July 2012 the States of Deliberation, Guernsey’s parliament, approved the project de loi The Foundations (Guernsey) Law, 2012 (the “Law”). Subject to Privy Council approval, the Law is expected to come into force in late 2012 or early 2013. This note is a brief summary of certain features of the new Law.

This case concerns the defective exercise of a power to add a beneficiary and shows how the Court will assist to prevent formal defects in the execution of powers from defeating the intentions of the person executing the power.

For decades, Jersey has opened its doors to a limited number of new residents – individuals and businesses attracted not only by the Island's charm and beauty, but also by the many advantages to be gained from living here.

On 2 April 2012 The Inheritance (Guernsey) law 2011 came into force which has replaced Guernsey’s forced heirship regime with a system of full testamentary freedom (accompanied by family and dependent provisions).

As a politically stable and fiscally advantageous financial centre, Jersey is a prime jurisdiction in which to incorporate a special purpose vehicle ("SPV") as the issuer of debt securities.

The Channel Islands Stock Exchange LBG ("CISX") began its operations in October 1998. It is based in St Peter Port, Guernsey and provides a listing facility and bespoke trading platform.

Guernsey is considered to be a creditor-friendly jurisdiction for leveraged structures.

The 2012 UK Budget confirmed that, following a consultation period, changes to the current UK REIT regime are expected to be introduced in the third quarter of 2012.

“Image is everything” - Andre Agassi once famously declared in an advert for camera brand, Canon.

Basics of a Guernsey company

•Governed by the Companies (Guernsey) Law, 2008, as amended (“GCL”)
•Full capacity (objects are unrestricted unless restricted in the memorandum)
•Company can have:

Following a period of turmoil in the financial markets, issuers have been viewing cash box structures as an attractive financing tool to facilitate share and convertible bond issues and to allow access to alternative sources of funding.

As a politically stable and fiscally advantageous financial centre, Guernsey is a prime jurisdiction in which to incorporate a special purpose vehicle (“SPV”) as the issuer of sukuk or as part of any other Islamic finance transaction.

Simon v Helmot [2012] UKPC 5 page 1 of 5 March

On 7 March 2012 the Judicial Committee of the Privy Council handed down their judgment unanimously dismissing the appeal by Mr Simon from the Guernsey Court of Appeal on the issue of the discount rate to be applied and upholding that court’s award in damages to the claimant, Mr Helmot, of approximately £14 million. 

The Royal Court has just handed down a judgment in a case involving an appeal against a decision of the Minister (then Senator Cohen) to refuse planning permission which is significant in two respects.

Please see table through below link.

What legal form of vehicle is typically used for private equity funds formed in your jurisdiction?

What legal form of vehicle is typically used for private equity funds formed in your jurisdiction?

This briefing note describes the key features of the incorporated cell company (“ICC”) and summarises the formation, structure and liquidation procedures particular to this type of company.

Dilapidations, in a legal context, is the technical term which refers to the condition of a building held under a lease and comes from the Latin, ‘lapides’ which means scattering of stones.

Guernsey is renowned for its captive insurance industry – a large proportion of which provides general insurance cover to UK parents, many of them listed companies.

The Security Interests (Jersey) Law, 1983 as amended (the "Security Interests Law") governs the manner in which security is created over intangible moveable property (excluding leases) and the way in which such security may be enforced.

Jersey
Robert Milner, Robin Smith, Simon Marks and Alan Stevens - Carey Olsen

On 15th December 2008, changes were made to the regulation of investment funds in Guernsey. Those changes created two regulatory regimes for collective investment schemes in Guernsey:

• registered investment schemes; and

• authorised investment schemes.

This briefing note analyses the differences between the two regimes.

Guernsey
Ben Morgan and Geoff Ward-Marshall - Carey Olsen

The Residential Tenancy (Jersey) Law 2011 (the "Law") was adopted by the States in order to facilitate the establishment of a modern legal framework for the residential landlord and tenant relationship.

Control of Housing and Work (Jersey) Law 201-

The new law is expected to come into force in August 2012. The headline points are: 

An executive summary - January 2012

The new Security Interests (Jersey) Law 201- (yet to come into force) (the“ ”) was approved by the States Assembly on 19 July 2011 and has been sent to the Privy Council for approval.

We are a firm of advocates practising in Guernsey and regularly advise on issues arising from pension arrangements established or administered from Guernsey. Based on our experience and interaction with our clients, we are writing to you in response to HMRC’s invitation to consult on the Draft Overseas Pension Schemes (Miscellaneous Amendments) Regulations 2012 (the “Draft Regulations”) issued by HMRC on 6 December 2011.

Summary
The Royal Court has just handed down a judgment in a case involving an appeal against a decision of the Minister (then Senator Cohen) to refuse
planning permission which is significant in two respects.

Guernsey

Tom Carey and Tony Lane - Carey Olsen

RETAIL FUNDS
1. What is the structure of the retail funds market? What have been the main trends over the last year?

Jersey
James Mulholland, Robert Milner and Daniel O’Connor - Carey Olsen

RETAIL FUNDS 1. What is the structure of the retail funds market? What have been the main trends over the last year? 

Responding to HMRC’S proposed changes for Guernsey QROPS

Proposed UK legislative changes to the QROPS regime 

On 6 December 2011 HMRC released a consultation document relating to draft legislation entitled The Overseas Pension Schemes (Miscellaneous Amendments) Regulations 2012 (the ‘New Proposed Regulations’). 

The Jersey Financial Services Commission has adopted a new policy
setting out a fast track, self-certification procedure for authorising a "Private
Placement Fund", being a fund:
• which is either established in Jersey or managed in Jersey
• which is closed ended
• whose units are offered to not more than fifty investors
• which only admits "sophisticated investors" or professional investors"
(see appendix)

Guernsey is a popular jurisdiction in which to incorporate companies for use on a wide range of transactions, including investment funds, private equity, structured finance and securitisations.

What price disclosure?
Employee anonymity after Shah v. HSBC
The UK Court of Appeal has provided some welcome comfort to nervous employees of financial institutions faced with the prospect of having to give evidence against their customers in cases involving disclosures made to the authorities under the “proceeds of crime” legislation.

Executive Summary Jersey's Zero/10 tax regime was approved by the Council of Ministers of the European Union in Brussels on 19 December 2011.

Following a period of turmoil in the financial markets, issuers have been viewing cash box structures as an attractive financing tool to facilitate share and convertible bond issues and to allow access to alternative sources of funding.

Whilst many trustees and providers are now familiar with the QROPS regime, as schemes mature and members seek to avail themselves of the funds in their schemes in various ways, important questions are arising in relation to matters as diverse as the level and age on which benefits can be taken, how to align Guernsey and English taxation requirements and what restrictions apply in respect of investments and the granting of loans.

The proliferation of social media, and the ease of access to technology, is blurring the boundary between work and play, according to a seminar by Carey Olsen on Tuesday, 15 November.

Global Overview Mark Moedritzer and Kay C Whittaker Shook, Hardy & Bacon LLP 3

Guernsey Mark Dunster and Sophia Harrison Carey Olsen 5

According to Marcus Stuttard, head of AIM, the market has continued to demonstrate its important role in the funding cycle.

Table of Contents
Introduction to Guernsey 1
About Carey Olsen 2
Fund Regulations in Brief 2
Investment Business 3
Collective Investment Schemes 3

Increasing use of the Takeover Code in Guernsey

Over the past couple of years we have seen an increase in transactions involving Guernsey companies in which the City Code on Takeovers and Mergers (the “Takeover Code”) has been a significant factor.

Business as usual until at least 2018
Certainty now and potential for competitive advantages later for Channel Islands Funds and Managers

This is a slightly unusual case in that the well-established principles regarding the duty of an outgoing trustee to deliver trust documents to the new trustee were applied in circumstances where (i) there had been a merger of corporate trustees rather than a formal appointment of a new trustee (ii) the documents in question were in the hands of the Jersey Financial Crimes Unit and (iii) the order for costs on an indemnity basis was made against the individual solely responsible rather than against the corporate trustee.

New Jersey ILPs and SLPs
Two new forms of limited partnership have recently been introduced under
Jersey law. These are:
• the separate limited partnership ("SLP") (having separate legal
personality); and
• the incorporated limited partnership ("ILP") (being a body corporate).

An executive summary

The new Security Interests (Jersey) Law 201- (yet to come into force) (the “New SIL”) was approved by the States Assembly on 19 July 2011 and has been sent to the Privy Council for approval.

A recent trust judgment in Jersey could see more settlors opting for the jurisdiction of the island over that of England, says Robert MacRae

The Royal Court has decided to ratify the actions taken by invalidly appointed trustees, acting in good faith as trustees de son tort, from the date of the ineffective appointments to the date of the Court Order, which validly appointed them. This is the first Jersey judgment which offers guidance as to when, and in what circumstances, it might be appropriate for the Royal Court to exercise its discretion to “ratify” the past actions of a trustee de son tort.

Jersey is a popular jurisdiction in which to incorporate companies for use on a wide range of transactions, including investment funds, private equity, structured finance and securitisation transactions as well as listings on the Alternative Investment Market of the London Stock Exchange.

In the Matter of DD [2010] JRC 193, 21 October 2010 Commissioner Clyde-Smith, and Jurats Le Breton and Morgan This case concerned an application by the Settlor and New Trustee ("DD") to the Royal Court, for rectification of the trust deed and an associated declaration of trust or in the alternative that the trust be set aside on the basis of mistake.

Introduction
Treasury shares are well established in other jurisdictions, and were introduced into Jersey law by the Companies (Amendment No. 9) (Jersey) Law 2008.

The Limited Partnerships (Jersey) Law 1994 (the "Law") governs Jersey limited partnerships.

From 1 January 2009, the way in which a non resident landlord ("NRL") pays tax on rental income earned from immovable property in Jersey changed.

Business as usual until at least 2018
Certainty now and potential for competitive advantages later for Channel Islands Funds and Managers

It has been widely reported in the UK press that a number of UK corporates with significant non-UK business interests have considered migrating for tax purposes to Ireland, Switzerland or other lower taxation jurisdictions in an effort to combat what they perceive to be an onerous UK corporate tax regime. A number of such migrations have been completed using new Jersey holding companies, including Shire, Henderson, and Wolseley.

The United Kingdom Bribery Act came into force on 1 July 2011. The Act has implications for additional jurisdictions including the Channel Islands. This briefing note explores how the new offence of failing to prevent bribery might impact on Guernsey and Jersey.

Jersey: an International Finance Centre

Jersey Funds Regulation in Brief

Basics of a Jersey company
• Governed by Companies (Jersey) Law 1991, as amended ("CJL")
• Full capacity without long form memorandum
• Company can have:
- par value shares
- no par value shares
- shares denominated in any currency
- guarantee members
- unlimited members

Under the Gambling (Jersey) Law 1964, as amended (the "Gambling Law") all forms of gambling in Jersey are unlawful save for those expressly permitted by Regulations.

Having sat for two full days on 13 and 14 December 2010, the long awaited landmark decision of the Judicial Committee of the Privy Council in the case of Spread Trustee Company Limited (Appellant) v Sarah Ann Hutcheson & Others (Respondents) was delivered on 15 June 2011.

Jersey introduced Cell Companies into its law in February 2006 Protected cell companies (PCCs) were first developed in Guernsey in the late 1990s. Originally to attract captive insurance work to Guernsey, they proved popular and versatile, and were soon found to be a useful vehicle in collective investment fund structures.

The Channel Islands Stock Exchange (CISX) began operations in October 1998. It is based in St Peter Port, Guernsey and provides a listing facility and screen-based trading. It is within an OECD jurisdiction and in the European time zone.

Legislation Developments in Jersey
• Draft Employment (Amendment No.7) (Jersey) Law 201-
• Employment (Awards) (Amendment) (Jersey) Order 2011

What are the most common forms of security granted over immovable and moveable Property?

What are the most common forms of security granted over immovable and moveable property?

Russell Clark explains why Guernsey is the perfect environment for controlling private wealth

In the matter of the Representation of Mrs P and in the matter of the R Trust [2011] JRC085, 20 April 2011 Commissioner Bailhache and Jurats Clapham and Morgan.

Following a period of turmoil in the financial markets, issuers have been viewing cash box structures as an attractive financing tool to facilitate share and convertible bond issues and to allow access to alternative sources of funding.

1. Please give a brief overview of the public M&A market in your
jurisdiction.

2. What are the main means of obtaining control of a public
company?

In a landmark decision, the Royal Court of Jersey has held that, in considering whether a gift should be set aside on the grounds of the donor's mistake, it would not follow the recent English Court of Appeal decision in Pitt v Holt [2011] EWCA Civ.197 but would continue to follow the course charted in the previous Jersey case of In Re the A Trust [2009] JLR 447.

A significant judgment delivered by the Jersey Royal Court on Tuesday, 21 June 2011, showed that Jersey has not followed a recent English court decision in an important part of trust law. The landmark ruling could, in circumstances where a case could be brought either in Jersey or England, attract a number of similar cases to the Jersey court.

The Decision

The injunction claim: The Court held that this was an unusually strong case justifying an ex parte application and in which it was appropriate to take a strict view of Mr Assad's obligations as nominee shareholder under the Declaration of Trust.

A well-attended and in-depth review of Guernsey’s proposed foundations law hosted by Carey
Olsen tackled some of the questions posed by Commerce and Employment in their consultation
document.

In particular, the speakers were at pains to point out how foundations should not be confused
with or considered in the same way that the island’s fiduciary sector handles trusts.

Guernsey’s Commerce and Employment department has published a consultation document on the draft foundations (Guernsey) Law 2011. The consultation process will close on 23 May and it is expected that the legislation will come into place before the end of the year.

The Royal Court of Jersey recently held that Guernsey was the most appropriate forum for the resolution of certain issues in relation to a Jersey law Trust. This decision raises interesting questions in relation to trust jurisdiction clauses in Jersey trusts and Article 9 of the Trusts (Jersey) Law 1984 (as amended). This article examines this case and the implications.

Guernsey is once again the market leader for the number of companies listed on the markets of the London Stock Exchange (LSE).

Until recently it was only possible to directly merge a Jersey company with another Jersey company. In order to merge a Jersey company with a foreign company under Jersey law it was necessary to migrate the foreign company to Jersey first and then follow the then existing merger provisions.

The Guernsey Association of Pension Providers has proposed a new code of practice for local QROPS (qualifying recognised overseas pension scheme) providers in the island.

The established view has long been that a trust is resident in the jurisdiction where the trustee is resident. This briefing note discusses recent international developments in the form of two recent cases, one in Canada and one in the UK, which have introduced concepts that we are more used to in the context of the determination of corporate residence.

New legislation amending Guernsey regulatory laws and company law.

Country Q&A

Country Q&A

Country Q&A

Country Q&A

On 14 January 2010, the Royal Court of Guernsey handed down Judgment in the case of Manuel Paul Helmot -v- Dylan Simon.

The Authorised Closed Ended Investment Schemes Rules, 2008 (the “ACEIS Rules”) and the Registered Collective Investment Scheme Rules, 2008 (the “RCIS Rules”) – Transitional Provisions – Updating Documentation

Two new forms of limited partnership will be available under Jersey law very soon. The changes are expected to take effect during Q1 2011, and will allow:

In the Matter of DD [2010] JRC 193, 21 October 2010 Commissioner Clyde-Smith, and Jurats Le Breton and Morgan This case concerned an application by the Settlor and New Trustee ("DD") to the Royal Court, for rectification of the trust deed and an associated declaration of trust or in the alternative that the trust be set aside on the basis of mistake.

What is a Will? A Will is a legal document in which you set out how you would like your estate to be dealt with after your death. It contains the names of the individuals or institutions whom you want to receive your assets.

Court declines to order disclosure to beneficiaries correspondence between other beneficiaries and trustee

Court declines to order disclosure to beneficiaries correspondence between other beneficiaries and trustee

The Channel Islands Stock Exchange (CISX) began operations in October 1998. It is based in St Peter Port, Guernsey and provides a listing facility and screen-based trading. It is within an OECD jurisdiction and in the European time zone. The CISX’s mission is to be the premier offshore stock exchange in the European time zone and the exchange of choice for the listing of investment funds, debt instruments and the shares of companies.

On 1 October 2009, the Employment (Jersey) Law 2003 (the "Law") will be amended to give the Jersey Employment Tribunal the power to direct an employer to re-employ an employee who brings a successful claim for unfair dismissal.

Jersey incorporated companies are proving a popular choice for those seeking to establish a listing on the Alternative Investment Market of the London Stock Exchange ("AIM"). Typically, an established group of companies will be restructured so as to introduce a new Jersey incorporated parent company, the securities of which are then admitted to trading.

Redeemable shares and how they may be redeemed, and the purchase of its own shares, by a Jersey company, have been within the Companies (Jersey) Law 1991 since enactment, but the Companies (Amendment No. 8) (Jersey) Law 2006 and the Companies (Amendment No. 9) (Jersey) Law 2008 far-reachingly reconfigured the approach to creditor (and shareholder) protection.

New data: funds reach record high; insurance sector shows growth; mixed news for banking

The Licensees (Conduct of Business) Rules, 2009 Timing of Issue of Contract Notes & Existing Derogations

In this case the Court gave directions under Article 51 of the Trusts (Jersey) Law 1984 (the equivalent provision in Guernsey is section 69 of the Trusts (Guernsey) Law 2007) that a beneficiary disclose information to a trustee. This note looks at the circumstances in which the Court came to give such directions, and identifies an alternative basis on which the Court could have made the same orders.

In re The Lochmore Trust and In re The First Conferences Limited 2003 Employee Benefit Trust These two cases have been handed down since our briefing note In Re The A Trust in February 2010 which considered the basis on which the Jersey Courts will set aside a trust or disposition into trust on the ground of mistake.

A limited partnership seeks to combine the flexibility and "tax transparency" offered by a partnership structure with the benefits, for limited partners, of limited liability offered by a company. The Jersey limited partnership regime has particular advantages over other offshore jurisdictions: no Jersey general partner is required, there is no upper limit on the number of limited partners, there is limited information required to be made publicly available, there is no audit or annual return requirement and a limited partner may have greater involvement in management than in some other jurisdictions.

Jersey introduced Cell Companies into its law in February 2006 Protected cell companies (PCCs) were first developed in Guernsey in the late 1990s. Originally to attract captive insurance work to Guernsey, they proved popular and versatile, and were soon found to be a useful vehicle in collective investment fund structures. Other jurisdictions, including Jersey, the Isle of Man, Cayman Islands and Dublin, followed suit with legislation based upon the Guernsey model.

For decades, Jersey has opened its doors to a limited number of new residents – individuals and businesses attracted not only by the Island's charm and beauty, but also by the many advantages to be gained from living here. Jersey is a particularly attractive location for high net worth individuals and their families, who benefit from the very highest standards of living and the fiscal autonomy Jersey enjoys from the United Kingdom. The Island has close proximity to Europe but is not part of the European Union.

Jersey is the only offshore centre to place in the top 20 of global finance centres in a leading industry listing.

A brief overview of the key changes to the Island's Trust Legislation taking effect on Monday 17 March 2008 Much of Guernsey's economic success over past decades has been due to its adaptability and flexibility to react to changing market situations and conditions.

The aim of this briefing note is to provide an outline on the dissolution of a Jersey incorporated company. The dissolution of a company occurs either (i) when it has been struck off the Register of Companies after a winding up; (ii) once a declaration en désastre (the "Declaration") has been declared; or (iii) where it has otherwise been struck-off. Part 21 of the Companies (Jersey) Law 1991, as amended, (the "Companies Law") provides the process for winding up a Jersey incorporated company pursuant to which there are 4 possible routes that can be taken. The Bankruptcy (Désastre) (Jersey) Law 1990, as amended, (the "Désastre Law") provides for the process of the Declaration.

Figures issued today show that the value of investment funds in Guernsey increased by £2.7bn (1.5%) during the final three months of last year.

The Bailiwick of Guernsey comprises the inhabited islands of Guernsey, Alderney, Sark, Herm, Jethou and Brecqhou. The islands are situated in the Bay of St. Malo, with their closest point being 8 miles (13 km) from the Cherbourg peninsula. The Bailiwick is in the same time zone as the United Kingdom.

This is the latest in a line of rectification of trust applications granted by the Royal Court. In this case the Court allowed the remedy in circumstances where there were no beneficiaries recorded in the trust instrument when it was executed.

This briefing note highlights the key issues that any employer should consider when considering dismissing an employee.

This briefing note provides an outline of the processes and requirements of a proposed migration of a company into Guernsey pursuant to The Companies (Guernsey) Law, 2008 (as amended) (the “Law”). Migration is the process which allows a company to move its place of incorporation into or out of Guernsey.

As a politically stable and fiscally advantageous financial centre, Jersey is a prime jurisdiction in which to incorporate a special purpose vehicle ("SPV") as the issuer of sukuk or as part of any other Islamic finance transaction.

This briefing note provides an overview of some of the commercial reasons for and the technical legal requirements of a company wishing to acquire its own shares (also referred to as “share buy-backs”).

This briefing note aims to provide a concise outline of Guernsey’s financial assistance regime.

This briefing note examines the potential benefits of treasury shares and some practical points companies should consider if they want to take advantage of the mechanism provided for under The Companies (Guernsey) Law, 2008 (the “Law”) for holding shares in treasury.

This briefing note explains the distinction between the concepts of dividends and distributions before setting out the main steps involved in paying out dividends and distributions under The Companies (Guernsey) Law, 2008 as amended (the “Law”).

This briefing note aims to provide an outline of the different processes of voluntary and compulsory winding up under The Companies (Guernsey) Law, 2008 (as amended) (the “Law”). It does not cover the specific provisions on the winding up of protected cell companies and incorporated cell companies. Further information on the effect of the Law on the winding up of these company structures can be found in our separate briefing notes on those subjects.

Should employers welcome the recent changes to the unfair dismissal law?

The Foundations (Jersey) Law 2009 (the "Law") came into effect on 17 July 2009.

Jersey introduced Cell Companies into its law in February 2006. Protected cell companies (PCCs) were first developed in Guernsey in the late 1990s. Originally to attract captive insurance work to Guernsey, they proved popular and versatile, and were soon found to be a useful vehicle in collective investment fund structures. Other jurisdictions, including Jersey, the Isle of Man, Cayman Islands and Dublin, followed suit with legislation based upon the Guernsey model.

The Island of Guernsey is 24 square miles in size with a population of 65,000. It is situated in the English Channel just off the north west coast of France, in the Bay of St Malo and just 75 miles south of Weymouth in England. It is governed by the States of Guernsey. The Channel Islands are divided into two Bailiwicks; Jersey and Guernsey (the latter of which also comprises the smaller islands of Alderney, Sark, Herm and Jethou).

Certain provisions of the Companies (Amendment No. 9) (Jersey) Law 2008 (Amendment No. 9) come into force on Friday 27th June 2008.

Guernsey is a popular jurisdiction in which to incorporate companies for use on a wide range of transactions, including investment funds, private equity, structured finance and securitisation. Guernsey companies are also capable of being listed on the Main Market and Alternative Investment Market of the London Stock Exchange as well as, among others, the New York Stock Exchange, Euronext and the Channel Island Stock Exchange

In the matter of The Minister of The Public Services Department of The States of Guernsey v Miller & Baird (CI) Limited, (2009) Royal Court of Guernsey (hearing 6 May 2009; judgment delivered 15 May 2009).

New redundancy legislation is likely to come into force in Jersey in the last quarter of 2009 or the first quarter of 2010. The purpose of this briefing note is to summarise and explain the key changes to the law.

If an employer fails to comply with a non-discrimination notice or deliberately misleads the Department by providing false information or by suppressing or destroying relevant information, the employer will be guilty of an offence and may currently be liable for a fine of up to £5,000 and/or three months’ imprisonment.

It has been widely reported in the UK press that a number of UK corporates with significant non-UK business interests are considering migrating for tax purposes to Ireland or other lower taxation jurisdictions in an effort to combat what they perceive to be an onerous UK corporate tax regime. The Telegraph recently cited a YouGov poll which reports that one in three UK companies are considering such a move, with some 38% of executives polled at medium and large companies in the UK stating they had discussed moving operations offshore to reduce corporation tax.

In this appeal by Leeds United Football Club Limited ("Leeds”) the Court of Appeal considered the issue of security for costs in the context of Article 14 of the European Convention of Human Rights

Following the recent changes to the Protection of Investors (Bailiwick of Guernsey) Law, 1987, as amended (the “POI Law”) and the Control of Borrowing (Bailiwick of Guernsey) Ordinance, 1959, as amended (“COBO”) (as summarised in the recent Carey Olsen Client Briefing “Protecting Investors”) the Guernsey Financial Services Commission (the “GFSC”) has published new rules (the “New Rules”) to govern:

Trustees, marriage breakdown and the enforcement of foreign orders In the Matter of The IMK Family Trust (Mubarak v Mubarik and others) [2008] JRC 136 Royal Court – judgment given 15 August 2008

This is the first occasion on which a Jersey law trust has been set aside on the ground of mistake. Last year in the Matter of the Representation of DSL(R) Limited, the Royal Court, for the first time, set aside an English Law trust over which it had jurisdiction on this ground.

Realty is what lawyers call land and everything attached to it, be that houses, buildings or flats. The transfer of realty in Guernsey from one owner to another is achieved by the passing of a Conveyance before the Royal Court of Guernsey.

Introduction

In England and Wales the right of "squeeze out" in a takeover context is enshrined in section 429 of the Companies Act 19851. Section 429 of the Act, broadly speaking, permits a person making a takeover offer2 in respect of a company registered in England and Wales to compulsorily acquire the shares of the minority shareholders of that company where the Offeror has acquired or contracted to acquire not less than 90 per cent in value of the shares to which the offer relates.

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