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Ritz-Carlton Hotel, Grand Cayman, 7 October 2016

Mourant Ozannes

Our expert lawyers produce a variety of client briefings and articles covering a broad range of offshore legal services. The publications examine legal and market developments and industry issues that could have an impact on our clients' businesses.

Mergers between BVI companies

September 2016
BVI
Corporate

The BVI Business Companies Act 2004 allows two or more BVI companies to merge and one or more BVI companies to merge with one or more foreign companies quickly and simply. This briefing examines the merger process between two or more BVI companies.

Continuation by a foreign company into the BVI

September 2016
BVI
Corporate

The BVI Business Companies Act 2004 (the Act) allows a foreign company to continue its existence as a BVI company incorporated under the Act. This process is sometimes referred to as a corporate migration, redomiciliation or transfer of place of incorporation. This briefing examines the continuation by a foreign company into the BVI under the Act.  

Taking security over shares in a BVI company

September 2016
BVI
Corporate

One of the major advantages of the BVI as an international financial centre is that its legislation provides a simple, flexible and robust regime for secured financing transactions that is attractive to lenders. Share security is a feature of many financing transactions. This briefing examines the creation of security over registered shares in a BVI company.

Creation of security by a BVI company

September 2016
BVI
Corporate

One of the major advantages of the BVI as an international financial centre is that its legislation provides a simple, flexible and robust regime for secured financing transactions that is attractive to lenders. With the exception of shares or other securities issued by another BVI company, in most cases the assets of a BVI company will be located outside of the BVI. This briefing examines the key BVI aspects of the creation by a BVI company of security over its foreign assets under foreign law.

What documents and information can a third party get for a BVI company?

September 2016
BVI
Corporate

One of the factors that makes the BVI an attractive place in which to incorporate a private holding company is that a BVI company may keep documents and information about its ownership, management and financial affairs confidential. Although confidentiality is desirable from the company's perspective, it means that only limited documents and information about the company is publicly available. This briefing examines the documents and information about a company (that is not a regulated person) that a third party can get from public and third party sources.

Mergers between BVI companies and foreign companies

September 2016
BVI
Corporate

The BVI Business Companies Act 2004 allows two or more BVI companies to merge and one or more BVI companies to merge with one or more foreign companies quickly and simply. This briefing examines the merger process between one or more BVI companies and one or more foreign companies.

Incorporated Cell Companies

September 2016
Guernsey
Banking & Finance, Corporate, Financial Services & Regulatory, Insurance, Funds

An ICC is a company with the ability to create its own incorporated cells as part of its corporate structure for the purpose of segregating and protecting the assets of the incorporated cells. 

An ICC is based on the same principles as a PCC in that an ICC may comprise any number of incorporated cells however, unlike a protected cell of a PCC, an incorporated cell has many of the attributes of a non-cellular company.  

Pest or Protected?

September 2016
Jersey, Guernsey
Property

Counsel, Georgina Cook, considers the rules relating to wildlife in the domestic environment, in this article first published in Home Life, September 2016.

Cayman Court Will Protect Cayman Insolvency Proceedings

August 2016
Cayman Islands
Litigation, Insolvency & Restructuring

On 31 May 2016, the Grand Court granted an anti-suit injunction against International Tropical Timber Organisation, upon an application made by the Joint Official Liquidators of the Ardent Harmony Fund Inc.

Preparing for the introduction of age discrimination…

August 2016
Jersey
Employment

At our recent Age in the Workplace conference, 71% of respondents to a survey agreed that their business needed to make changes to current practices in light of the new age discrimination legislation, with 12% of respondents not knowing if changes needed to be made. This article highlights areas that Jersey businesses may need to consider in preparation for 1 September.

Before you sign on the dotted line

August 2016
Contact: Danielle Roman

Partner, Danielle Roman, discusses how to ensure a "smooth landing" when structuring the financing and purchase of a corporate aircraft, in this article courtesy of: JET Asia-Pacific magazine Issue 34.

Voluntary liquidation under the BVI Business Companies Act 2004

August 2016
BVI
Corporate

The BVI Business Companies Act 2004 provides a simple procedure, called a voluntary liquidation, for liquidating a solvent BVI company. This briefing examines the voluntary liquidation process.

Strike off and restoration under the BVI Business Companies Act 2004

August 2016
BVI
Corporate

The BVI registrar of corporate affairs maintains a register of companies which records the name of each company incorporated or continued under the BVI Business Companies Act 2004 (the Act). This briefing examines procedures by which the name of a company may be struck off, or restored to, the register under the Act.

What documents and records must a BVI company keep?

August 2016
BVI
Corporate

One of the factors that makes the BVI an attractive place in which to incorporate a company is that the BVI Business Companies Act 2004 (the Act) is very flexible and is not overly prescriptive. This briefing examines the documents and records that a company must keep under the Act. It assumes that the company is a company limited by shares, has registered shares and is not a regulated person.

Distributions share purchases and redemptions under the BVI Business Companies Act 2004

August 2016
BVI
Corporate

One of the factors that makes the BVI an attractive place in which to incorporate a company is that the BVI Business Companies Act 2004 (the Act) is very flexible and is not overly prescriptive.

The Confidential Information Disclosure Law – Increasing Corporate Transparency

August 2016
Cayman Islands
Corporate, Financial Services & Regulatory, Litigation, Insolvency & Restructuring, International Trusts & Private Client

The Confidential Relationships (Preservation) Law, often unfairly dubbed a 'banking secrecy law' was repealed on 22 July 2016 and replaced with a new Confidential Information Disclosure Law. The provisions of the new law are framed to demonstrate that the Cayman Islands does not support so-called 'secrecy' legislation, but strives to maintain appropriate respect for the privacy of individuals and corporate entities whilst providing avenues for the safe transmission of information in the interests of transparency and justice.

Age discrimination and Jersey pension schemes

August 2016
Jersey
Employment, International Trusts & Private Client

The Discrimination (Age) (Jersey) Regulations 201- (the Age Regulations) will, once implemented, amend the existing Discrimination (Jersey) Law 2013 (the Law) to help to protect people in Jersey against discrimination on the grounds of age.

However, the implementation of the Age Regulations poses a number of questions for the trustees and contributing employers of Jersey pension schemes given that a person's age is a material factor in the operation of pension schemes and the determination of their benefits.

This briefing highlights some of the key points that trustees and employers may wish to consider in respect of their pension schemes on the forthcoming introduction of the Age Regulations.

Schemes of Arrangement under Guernsey law

July 2016
Corporate, Funds

What is a scheme of arrangement?

A scheme of arrangement (Scheme) is a court-sanctioned compromise or arrangement between a company and its creditors and members (or any class of them) in accordance with Part VIII of the Companies (Guernsey) Law, 2008, as amended (the Law), specifically sections 105 to 112 (inclusive).

Cayman Islands' Court of Appeal confirms approach to redemption claims

July 2016
Cayman Islands
Litigation, Insolvency & Restructuring, Funds

Cayman Islands' Court of Appeal confirms that redeemed investors rank as creditors, clarifies application of s.37(7) of the Companies Law and the circumstances in which s.49(g) of the Companies Law operates to defer certain creditor claims.

Zero hours Contracts - July 2016

July 2016
Jersey
Employment

A zero hours contract can be defined as an arrangement whereby an employee agrees to be available for work as and when required, however, there is no obligation for the employer to provide work and there is equally no reciprocal obligation for the employee to accept it. Zero hours contracts have become increasingly popular in the Channel Islands which culminated in the Jersey Health and Social Security Panel conducting a consultation in 2015 on how they are used and misused in Jersey. This briefing further discusses the findings of that panel.

 

Guernsey's Royal Court rejects sex discrimination appeal

July 2016
Guernsey
Employment

In Immuno Biotech Ltd v Lucia Pagliarone, an employer unsuccessfully appealed against a finding by the Employment and Discrimination Tribunal of direct sex discrimination. The judgment sheds light on the Guernsey Court's approach to the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005 (the Ordinance).

The 4P's: Policies, Procedures and Process = Protection

July 2016
Guernsey
Employment

There is a very good reason why employers have policies and procedures in place – they are to provide a structured framework on how to manage difficult situations concerning their employees, they assist to protect employees to ensure a fair process and they protect an employer's position should their process ever be challenged. Applying a well-drafted policy, consistently and transparently, will ensure a reasonable process in managing difficult employee situations and will enable an employer to more robustly defend any claim of unfair or constructive unfair dismissal by an aggrieved employee.

The St John Ambulance and Rescue Service (the Service) provides a recent example of a local Guernsey business successfully applying three  of the Ps and by doing so not only protecting their employees in effectively investigating and managing a sensitive and difficult situation, but successfully defending a constructive unfair dismissal complaint lodged by an ex-employee, Jason Garnham (Mr Garnham). By doing so, they achieved the fourth P of protecting their business. This briefing further discusses that case.

Moving on?

July 2016
Guernsey
Property
Contact: Mark Torode

Buying or selling a home is not something that most of us do every day. Guernsey has different factors to contend with than the UK or even Jersey and sometimes the seemingly unpredictable nature of the market can be difficult to decipher for those who are looking to make a move.

Article first published in Guernsey Life, July 2016. 

FinReg Summer Update 2016 – Jersey

July 2016
Banking & Finance, Corporate, Financial Services & Regulatory

The aim of this update is to focus on current legal and regulatory developments affecting financial services institutions in Jersey and to provide some brief thoughts on the implications of these developments for your business.

Please download and use the saved pdf before answering and submitting your response.

Conversion of a Cayman Islands Exempted Company into a Cayman Islands Limited Liability Company

July 2016
Cayman Islands
Corporate, Funds

An overview of the process involved in converting an existing Cayman Islands exempted company into the new Cayman Islands limited liability company (LLC) vehicle.

The Limited Liability Company – a new vehicle introduced by the Cayman Islands

July 2016
Cayman Islands
Banking & Finance, Corporate, Funds

The Cayman Islands has enacted the Limited Liability Companies Law, 2016, which introduces a new kind of Cayman Islands vehicle, the limited liability company or LLC. The LLC vehicle is available for use as of 13 July 2016.

Continuing Freestanding Freezers – further jurisprudence on section 11A of the Grand Court Law

July 2016
Cayman Islands
Litigation, Insolvency & Restructuring

In Harvey River Estate Pty Ltd and others v Foster and others, Mangatal J was asked to continue a freestanding freezing injunction relating to assets located in the Cayman Islands in the context of section 11A of the Grand Court Law (2015 Revision), which codified the jurisdiction of the Cayman court to grant interim relief in aid of foreign proceedings.

On the facts, Mangatal J found that the elements necessary to satisfy the section 11A test had clearly been met. Proceedings had been commenced in Australia which, if successful, would result in a judgment enforceable in the Cayman Islands, and it was just in all the circumstances for the terms of the order to remain in place. She also found that the American Cyanamid requirements were met, and that the Respondents failed to make out any ground that would justify depriving the Applicants of the continuation of equitable relief.

Could islands 'go it alone' with the EU?

July 2016
Contact: Gordon Dawes

Should we, and could we, negotiate our own agreement with the union, and how will Britain’s exit from the union affect the Channel Islands? Partner Gordon Dawes discusses 'what next' after Brexit, in this article first published in the Guernsey Press, July 2016. 

European Touch Championships July 2016

July 2016

We're proud to sponsor the Jersey squads in this year’s European Touch Championships, currently being held in the island. Touch Team Jersey consists of four teams who will face the best Touch players from 16 other nations including the rugby Six Nations countries England, France, Ireland, Italy, Scotland and Wales.

The final team lineup is listed in this article, first published in the Jersey Evening Post, July 2016.

Is it the end of the road for NY derivative claims against Cayman companies? Whether GCR Order 15, rule 12A is a substantive or procedural requirement.

July 2016
Cayman Islands
Litigation, Insolvency & Restructuring

A recent decision of the Appellate Division of the New York Supreme Court, First Department, has now confirmed whether the Order 15, rule 12A requirement is substantive or procedural. In Davis v Scottish Re Group Ltd, the court held that a minority shareholder’s claims against directors and majority shareholders of a Cayman reinsurance company were barred under Cayman Islands law.  The New York appellate court has, for the first time, recognised the rule requiring plaintiffs asserting derivative claims under Cayman law to first obtain leave of the Cayman courts.

Maternity Rights Take a Step Forward

July 2016
Guernsey
Employment
Contact: Leslie Martin

Employees look set to benefit from new laws brought in to help
natural and adoptive parents. Associate Leslie Martin explains it’s just the first step on the road ahead, in this article first published in BL Global, July 2016.

Trade Mark Registration in the Cayman Islands

July 2016
Cayman Islands
Intellectual Property
Contact: Hector Robinson

Registration of Trade Marks in the Cayman Islands is an extension of rights held by the Trade Mark owner in the United Kingdom or in the European Union. Section 9 of the Patents and Trade Marks Law provides that upon registration in the Cayman Islands a Trade Mark owner is afforded such rights and remedies as are available to him in the United Kingdom.

Leave to Continue Proceedings Against Companies in Liquidation – Re Madison Niche Opportunities Fund Ltd and Madison Niche Assets Fund Ltd

July 2016
Cayman Islands
Litigation, Insolvency & Restructuring

This was an application for leave to continue proceedings against companies in liquidation, pursuant to section 97(1) of the Companies Law, which arose (as the Chief Justice himself remarked) in somewhat unusual circumstances.  The decision illustrates and confirms the Grand Court’s approach to such applications.  

Commercial Fund Litigation: A Manager's Duties – Getting it Right!

July 2016
Guernsey
Banking & Finance, Corporate, Financial Services & Regulatory, Litigation, Funds

Fund Managers should consider with care the legal duties they owe and how they may be properly discharged.  This article addresses some recent judgments.

Royal Court hears rare contested Public Trustee v Cooper type application

July 2016
Guernsey
Financial Services & Regulatory, Litigation

The Royal Court confirmed that in considering whether to approve a trustee's "momentous decision", it will not displace the Trustee's discretion with its own views.  Rather, it will decide whether the trustee's decision was one which a reasonable trustee, properly instructed, could arrive 

Balancing rights to strike out in cases based on inference

July 2016
Jersey
Litigation

This briefing considers a recent judgment on a strike out application which established that claims based largely on inferential evidence do not necessarily need to provide direct factual evidence to support the claim.

Fairfield – The Final Chapter?

July 2016
BVI
Litigation, Insolvency & Restructuring

This article analyses recent attempts by former investors in Fairfield, who are defendants to claw-back claims brought against them in the US Courts, to seek relief from the BVI Court preventing the Fairfield Liquidators from progressing the Funds' US claims.

Misfeasance claims by companies in liquidation

July 2016
BVI
Litigation, Insolvency & Restructuring

The recent BVI Court of Appeal decision in Stuart Mackellar (as liquidator of Smart Plus International (Holdings Limited) v Khoo Kin Yong and others BVIHCMAP 2013/0008, provides a useful review of the law relating to misfeasance and insolvent trading (sections 254 and 256 of the Insolvency Act, respectively).

Indemnity Costs in Guernsey

July 2016
Guernsey
Financial Services & Regulatory, Litigation, Funds

This article considers recent decisions of the Royal Court of Guernsey on its discretion to order indemnity costs, and examines the potential implications for litigants. It also analyses whether these recent decisions demonstrate a new trend in the court's attitude towards making indemnity costs orders.

Cayman Islands' Confidential Information (Preservation) Law to be repealed before year end

June 2016

On 11 May 2016, the Cayman Islands' Government published the Confidential Information Disclosure Bill 2016 (the CID Bill). If it is passed into law, the CID Bill will repeal the Confidential Relationships (Preservation) Law (2015 Revision) (the CRPL) and establish a new statutory regime for the disclosure of confidential information in the Cayman Islands. 

Successful court challenge to GFSC decision

June 2016

Guernsey benefits from strong regulation, but the expectations on the regulator are high. A recently released judgement found in favour of the Appellant in an appeal against the level of sanctions imposed upon him by the Guernsey Financial Services Commission (GFSC) in its capacity as the Bailiwick's financial services regulator. The Royal Court's judgment was upheld when challenged by the GFSC on appeal. As a result, the GFSC will need to make a fresh decision on the appropriate level of fine.

This case demonstrates that the GFSC must act within the powers accorded to it and that the Royal Court will be robust in policing the use of those powers. Change is on the horizon, however, as Guernsey has recently approved the drafting of new legislation to increase the maximum level of fine for licensees, former licensees and relevant officers. 

The Cayman Islands Aircraft Registry - A First Class Experience

June 2016

Danielle Roman,Partner and Tracey Forbes, Associate examine how the CAACI has embraced the requirements and spirit of the Cape Town Convention, which has fortified the Cayman Islands’ position as an offshore market leader in both commercial and corporate jet financing and as an aircraft registry of choice.

In this article first published by the World Commerce Review, June 2016.

FinReg Spring Update 2016 - Jersey

May 2016
Jersey
Corporate, Financial Services & Regulatory, Funds
Contact: Simon Gould

The aim of this update is to focus on current legal and regulatory developments affecting financial services institutions in Jersey and to provide some brief thoughts on the implications of these developments for your business.

Please download and use the saved pdf before answering and submitting your response.

Courts will apply greater scrutiny to regulatory penalties

May 2016
Guernsey
Financial Services & Regulatory, Litigation

On 11 May 2016, the Royal Court of Guernsey allowed in part an appeal from a decision by the Guernsey Financial Services Commission (the GFSC) to impose sanctions for breaches of various regulatory laws, including the Protection of Investors (Bailiwick of Guernsey) Law, 1987 (the POI Law).  In doing so the Court made a number of useful observations on the enforcement process of the GFSC and the scrutiny to which it should be subjected.

Representation of the Z Trusts [2015]

May 2016
Jersey
International Trusts & Private Client
Contact: Jim Edmondson

This article was first published in Private Client Business and comprises recent guidance from the Jersey Court on a number of interesting trust issues.

Getting the Deal Through - Fund Management 2016, BVI Chapter

May 2016

Mourant Ozannes' contribution to the annual report, 'Fund Management', covering a British Virgin Islands analysis of law and policy.

Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Fund Management 2016 (published in April 2016; contributing editors: Bryan Chegwidden and Michelle Moran, Ropes & Gray LLP) For further information please visit www.gettingthedealthrough.com.

Stepping Up Offshore Governance

May 2016
Cayman Islands
Litigation

Some of the most hotly contested issues around corporate governance and
operations have arisen from the Cayman Islands. Hayden Isbister and Simon Dickson of Mourant Ozannes summarize the firm’s offshore practice, litigation trends and the increased need for – and use of – corporate secretarial services.

Proposed Amendments to the Trusts (Jersey) Law, 1984

May 2016
Jersey
International Trusts & Private Client

A high level introduction to the proposals for amendments to the Trust (Jersey) Law, 1984 as detailed in the Jersey Government consultation paper of April 2016. 

A Matter of Trust—Holding Trustees to Account for Costs

May 2016
Contact: Jeremy Wessels

Private Client analysis: Jeremy Wessels, partner at Mourant Ozannes, outlines the recent case of Investec Trust (Guernsey) Limited et al and Glenalla Properties Limited et al, which was heard in the Guernsey Court of Appeal. He explains that while the trustees in this case were protected from the order for costs, the Guernsey court made it clear that this is not a hard and fast rule, and that in future, trustees could be held financially liable.

Article first appeared in Lexis PSL 28 April 2016

Guernsey's Companies Law

May 2016
Guernsey
Corporate

The Companies (Guernsey) Law, 2008 (the Law) moderised Guernsey's companies legislation and consolidated in one place all company legislation, including that relating to cell companies, financial assistance, share buybacks, amalgamations and migrations. The Law is intended to be flexible to ensure that Guernsey companies remain appealing when compared to their offshore competitors.

Make no mistake: Cayman Courts will uphold contractual arrangements

April 2016
Cayman Islands
Litigation, Insolvency & Restructuring

The Cayman Islands Grand Court has now provided guidance on the role of the law of common mistake in the context of investments in Ponzi schemes.  In so doing, the Court ruled in favour of Primeo Fund (in Official Liquidation), holding that its US$463 million dollar in specie subscription in Herald Fund SPC (in Official Liquidation) was not void for mistake.

Whilst all cases involving issues of mistake will be highly fact-sensitive, the Court's ruling demonstrates that, similar to the approach in other English common law jurisdictions, the Cayman Courts will be slow to override an investor's contractual rights.  This approach reflects the importance of upholding commercial contracts and providing certainty. 

Must you sell property to cover the cost of long-term care?

April 2016
Jersey
Property
Contact: Georgina Cook

Many people dream of owning their own home outright and having a nest-egg to see them in to old-age. Sadly though, old-age often brings care needs which can be expensive. However, the introduction of the Long Term Care Scheme (LTC) in Jersey was promoted as removing much of the financial worry surrounding the cost of long-term care and whilst it offers a framework for funding certain care benefits, the rules surrounding property owned by a claimant are worth considering. In this article, first published in 'Homelife' in April 2016, we discuss the scheme and its implications.

Cayman Islands Exempted Limited Partnerships

April 2016
Cayman Islands
Corporate

The Exempted Limited Partnership Law (as amended) (the ELP Law) governs the formation and operation of Cayman Islands Exempted Limited Partnerships (ELP). An ELP may be formed for any lawful purpose to be carried out and undertaken either in or from within the Cayman Islands or elsewhere.

A Quick Guide to Tax Regulation in the Cayman Islands

April 2016
Cayman Islands
Banking & Finance, Corporate, Financial Services & Regulatory, Litigation

In a world of ever increasing regulation, making sense of the many global standards affecting the financial sector can be a challenge. This quick guide explains the most important tax-regulated regulatory entities and initiatives which impact the Cayman Islands.

Mistake Applications- Why loss is not a necessary pre-requisite

March 2016
Jersey
Litigation, International Trusts & Private Client

On 16 December 2015, the Royal Court of Jersey handed down judgment in the cases of In the Matter of the S Trust and the T Trust.  It set aside the dispositions into trust on usual mistake principles, notwithstanding that no actual loss was suffered by the settlors.  Justin Harvey-Hills and Jonathan Speck of Mourant Ozannes were counsel for the principal parties in the case. 

The Horse with No Gift in its Mouth

March 2016
Jersey
Financial Services & Regulatory, Litigation, International Trusts & Private Client

Justin Harvey-Hills and Mathew Cook, Jersey's leading experts in tax-related litigation, have recently succeeded in persuading the Jersey court to strike out an application by the Attorney General to confiscate assets held in a trust.  The application made by the Attorney General (considered by the Royal Court in Her Majesty's Attorney General –v- Arne Rosenlund and FNB International Limited) was on the basis that a transfer of trusteeship amounted to a "gift" on behalf of the settlor of the trust.

Data Subject Access Requests: How To Deal

March 2016
Jersey
Employment, Financial Services & Regulatory, Litigation

"Data Subject Access Requests" (DSARs) are a potential minefield for data controllers.  The objective behind Article 7 of the Data Protection (Jersey) Law 2005 (the Law) (under which such requests are made) (Article 7) is clearly an important and well-intentioned one, namely giving individuals the right to know what any party they provide their data to is doing with that data (i.e where it is processed, who has access to it, which third parties it may be transferred to etc…).  However, commonly, a data subject access request is used to gather evidence for use in a complaint and, potentially, litigation.  The Royal Court set out some guidelines for those dealing with data subject access requests in the recent case of Dr Amar Alwitry –v- The States Employment Board and another [2016] JRC050.

New arbitration law for Guernsey

March 2016
Guernsey
Litigation

The States of Guernsey has recently approved a new law to govern arbitrations where the seat of the arbitration is Guernsey.  The Arbitration (Guernsey) Law 2016 is based on an updated version of the English Arbitration Act 1996 and is a welcome update since it modernises the statutory framework for the conduct of arbitrations in Guernsey.

Maximum fines for Regulatory Breaches in Guernsey to increase to £4 million

March 2016
Guernsey
Financial Services & Regulatory, Litigation
Contact: Tim Richards

Proposals have been passed by the States of Guernsey to increase the maximum discretionary financial penalty that the Guernsey Financial Services Commission can impose on regulated entities from £200,000 to £4 million.

The new rules governing the disclosure of company ownership in the UK and its impact on Guernsey

March 2016
Guernsey
Financial Services & Regulatory, Litigation
Contact: Tina Asgarian

This article will consider the implications for those companies and individuals who control English registered companies through a Guernsey trust/company and what measures can be taken in advance of the regulations coming into force in order to protect the privacy of those individuals and families whose identity may now be at risk of disclosure

Arbitration Clauses and Winding up Applications - Part II

March 2016
BVI
Litigation, Insolvency & Restructuring

This briefing considers two recent BVI decisions, considering the availability of arbitration stays in winding up proceedings, under the Arbitration Act 2013.

Permission Required?

March 2016
BVI
Litigation
Contact: Nicholas Fox

On 18 January 2016 the Privy Council handed down judgment in Anzen Limited Anors v Hermes One Limited [2016] UKPC 1 (Anzen). This judgment considered the effect of an arbitration clause which provided that, in certain circumstances:

…any Party may submit the dispute to binding arbitration.

Do you ordinarily work in Guernsey? Landmark Guernsey Employment Tribunal Decision

March 2016
Guernsey
Employment

With the increase in remote working, multi-jurisdictional office locations, and positions that require worldwide travel, which jurisdiction will provide an employee with statutory protection is an increasingly important question. 

Fund Structuring Alternatives, Cayman Funds Magazine 2016

March 2016
Cayman Islands
Corporate, Funds
Contact: Jennifer Parsons

Alternative structuring arrangements have gained attention in recent years as fund managers look for ways to lower entry costs and deliver savings to investors. The Cayman "4(4) fund" delivers on both counts. Qualifying 4(4) funds are not required to register under the Mutual Funds Law and are eligible for deferral of fees provided the number of investors in the fund remains low. In this article, originally published in the 2016 Cayman Funds magazine, Jennifer Parsons of Mourant Ozannes explains how Cayman 4(4) funds can help ease the burden of ever-increasing regulation.

Re Washington Special Opportunity Fund Inc – Dismissal of Just and Equitable Winding Up Petition

March 2016
Cayman Islands
Litigation, Insolvency & Restructuring

This decision stemmed from a hotly contested contributory's petition seeking to wind up Washington Special Opportunity Fund on the just and equitable basis pursuant to section 92(e) of the Companies Law (as amended). The Fund was indisputably solvent, but a number of investors supported the Petition.

The decision provides a useful summary of the law relating to just and equitable winding up petitions in the Cayman Islands, and serves as a reminder that winding up orders will not be granted on the just and equitable basis unless the alleged grounds are properly made out. Whilst it may be a stretch to say that this decision renders it more difficult for petitioners to obtain winding up orders, it does emphasise that a petitioner should not expect to obtain an order by merely passing a 'smell test' - concrete proof of allegations is required.

Jersey's Legal Infrastructure: Fit for Purpose - Fit for the Future

March 2016
Jersey
Litigation
Contact: Jonathan Speck

This article is taken from the Eighth Edition of 'Jersey First for Finance', featuring Managing Partner Jonathan Speck, discussing Jersey's position as one of the world's leading international finance centres. 

A quick guide to Judicial Review in the Cayman Islands

March 2016
Cayman Islands
Litigation, Insolvency & Restructuring

Judicial review allows applicants with sufficient interest in a decision or action by a public body to ask the Grand Court (the Court) to review the lawfulness of:

  • rules and regulations, or other subordinate legislation; or
  • a decision, action or failure to act in relation to the exercise of a public function.

This quick guide provides an overview of judicial review in the Cayman Islands

Channel Islands Employment Round Up

February 2016
Jersey, Guernsey
Employment

Can discrimination take place against a company?

February 2016
Jersey, Guernsey
Corporate, Employment

Although the Channel Islands previously lagged behind other jurisdictions in guaranteeing protection against discrimination, it has made and continues to make some welcome steps in the right direction. This article provides further detail on those steps.

Zero hours contracts – the latest update from the Jersey Employment and Discrimination Tribunal

February 2016
Jersey
Employment

The Jersey Employment and Discrimination Tribunal (the JEDT) recently considered the requirements that need to be present in order to form an employment contract and subsequently a zero hours contract. Further detail is set out within this article.

Guernsey's Maternity Leave and Adoption Leave Ordinance 2016

February 2016
Guernsey
Employment

Whereas many Guernsey-based employers already offer contractual parental leave to their staff, there has never been a statutory obligation to do so. The Maternity Leave and Adoption Leave (Guernsey) Ordinance, 2016 (the Ordinance) was adopted on 26 January 2016 and will come into effect on 1 April 2016, bringing Guernsey somewhat into the 21st Century. We discuss the key aspects of the Ordinance for employers.

The Maritime Labour Convention and Seafarer Recruitment – Are you compliant?

February 2016
Guernsey
Employment

Whilst The Seafarer Recruitment and Placement Services (Maritime Labour Convention 2006) (Guernsey and Alderney) Ordinance, 2013 (the "Guernsey and Alderney Ordinance") has been in force since 1 November 2013 The Seafarer Recruitment and Placement Services (Maritime Labour Convention 2006) (Sark) Ordinance, 2015 (the "Sark Ordinance") came into force (on almost identical terms) for Sark businesses on 2 November 2015 (together the "Ordinances").

The Ordinances were proposed by the States of Guernsey, after an extensive period of consultation, to ensure that seafarers have access to an efficient and well-regulated seafarer recruitment and placement service and that local manning agencies do not lose business as a result of the MLC coming into the force.

If any of the companies that you administer employ seafarers; if any of your clients own Super Yachts; or if your business recruits and places seafarers on maritime vessels, this article will be of vital importance to you.

Mergers and Demergers of Companies Under Jersey Law

February 2016
Jersey
Corporate

Jersey's legislature has approved the Companies (Amendment No.5) (Jersey) Regulations 2011 (the Regulations) which permit a Jersey company to merge with a non-Jersey company. The Regulations come into force on 23 February 2011. The ability to undertake cross border mergers may be useful in a variety of cases including where they can be implemented without triggering a disposal for foreign capital gains tax purposes. This briefing sets out the principal provisions of the Regulations.

Primacy of arbitration recognised as stay granted in Cayman insolvency - In re the SPhinX Group of Companies

February 2016
Cayman Islands
Litigation, Insolvency & Restructuring, Funds
Contact: Simon Dickson

The Cayman Islands Court of Appeal recently upheld a stay of Cayman Liquidation application in favour of an arbitration in New York. The stay was granted because the liquidation applications would have required the Cayman Court to consider a different debt which was governed by an arbitration clause.

Continuance: "Exporting" an existing company from Jersey

February 2016
Jersey
Corporate

Part 18C of the Companies (Jersey) Law 1991, as amended (the "1991 Law") makes it possible for a company incorporated in Jersey to migrate overseas and be "continued" as a foreign company (also commonly called a "migration" or "redomiciliation"). This briefing summarises the process by which such a migration is effected.

Directors' duties and liabilities under Cayman Islands law

February 2016
Cayman Islands
Corporate

A director's fiduciary duty imposes on him a largely negative obligation to do nothing which conflicts with the company's interest. However, when a director is acting in the company's interest he is expected to exercise whatever skill he possesses with reasonable care.

Arbitration clauses and winding up petitions: The future of arbitration stay applications in the BVI

February 2016
BVI
Insolvency & Restructuring

The recent decision of the BVI Court of Appeal in the case of C-Mobile Services Limited v Huawei Technologies Co. Limited BVIHCMAP 2014/0006, considered the availability of stays of winding-up proceedings based upon contracts containing arbitration clauses. This article discusses that case and its implications.

Why Quotas are not the Answer

February 2016
Jersey
Employment
Contact: Helen Ruelle

In this article published by Business Brief in their February 2016 edition, Helen Ruelle (Partner) discusses the impact of quotas for women on boards and its relationship with the wider issue of diversity within businesses.

This is not just a break, this is a costly break

February 2016
Jersey
Property
Contact: Pamela Doherty

In this article, published by Business Brief in their February edition, Pamela Doherty (Managing Associate) discusses a significant judgment from the UK Courts on the interpretation of a lease and the principles to which a term may be implied into contract in the context of exercising a break option in a lease.

Guernsey Private Trust Companies ("PTCS")

February 2016
Guernsey
International Trusts & Private Client

The introduction, with effect from 17 March 2008, of the concept of a 'Purpose Trust' into Guernsey law by virtue of the Trusts (Guernsey) Law 2007 and the repeal of Section 70 of the Trusts (Guernsey) Law, 1989 relating to liability of directors of Corporate Trustees, has resulted in a considerable amount of interest, among clients and trust professionals, regarding Guernsey as a more attractive jurisdiction for the establishment of structures using both Purpose Trusts and PTCs.

BVI Court Pitches in on Long-Running Ku De Ta Dispute: the Comingling of Arbitration Provisions, Disputes and Liquidation Proceedings

February 2016
BVI
Litigation, Insolvency & Restructuring

The recent decision of the BVI Court in the case of Retribution Limited v L Capital KDT Limited BVIHCMAP 2015/78 considers the availability of arbitration stays to winding-up proceedings.  This articles discusses the case and its importance to the BVI as an international arbitration centre. 

Norwich Pharmacal relief - obtaining information relating to a BVI company from its registered agent

February 2016
BVI
Litigation

Little information is publicly available about BVI companies and there is no procedure for pre-action disclosure in the BVI. However, where a BVI Company can be linked to fraud, it may be possible to obtain a Norwich Pharmacal order against the registered agent of that company, compelling it to disclose relevant information.

Recognition and Enforcement of Foreign Judgments and Arbitral awards - BVI

February 2016
BVI
Litigation

This briefing looks at the way in which foreign judgments can be enforced in the BVI.

The International Comparative Legal Guide to Private Client 2016 Edition - Jersey Chapter

January 2016
Jersey
International Trusts & Private Client

This chapter provides a useful overview of common issues in private client laws and regulations regarding private client work in Jersey. The International Comparative Legal Guide to: Private Client; published by Global Legal Group Ltd London.

The International Comparative Legal Guide to Private Client 2016 Edition - Guernsey Chapter

January 2016
Guernsey
International Trusts & Private Client

This chapter provides a useful overview of common issues in private client laws and regulations regarding private client work in Guernsey. This article appeared in the 2016 edition of The International Comparative Legal Guide to: Private Client; published by Global Legal Group Ltd London.

Jersey - Goods and Services Tax: Ring Fencing of Finance, Funds and Trust Structures and Vehicles

January 2016
Jersey
Corporate
Contact: Edward Devenport

Jersey's GST is a sales tax on the domestic consumption of imported and Jersey-produced goods and services, and is paid at 3% of their value at the time they are sold or exchanged. The GST regime came into effect on 6 May 2008. The regime is implemented by means of the GST Law and its subordinate legislation and is administered by the Comptroller.

New wave of improvements to BVI corporate legislation

January 2016
BVI
Corporate

The BVI Business Companies Act 2004 (the Act) is widely regarded as among the most modern and flexible corporate legislation in the world. It is a key reason for the BVI continuing to be the most popular place to set up an offshore holding company. To ensure that the Act retains its standing, and the BVI keeps pace with changes in international regulatory standards, a new wave of improvements have been made to the Act.

This briefing looks at the most important of those improvements.

Liquor licence law update

January 2016
Jersey
Property
Contact: Georgina Cook

The Licensing Assembly recently put public interest to the fore when considering an application for third and sixth category liquor licences relating to the Old Sail Loft at Gorey. A long-running application, the Assembly considered its responsibilities at the September 2015 sitting and reminded itself that it should not take account of extraneous information and must have regard to:

  • the interests of the public in general; and
  • the nature of the business conducted or to be conducted from the premises and the suitability of those premises for such business.

Financial Services and Regulatory Winter Update 2015

December 2015
Jersey
Banking & Finance, Financial Services & Regulatory
Contact: Simon Gould

Welcome to our Financial Services & Regulatory Winter Update 2015.

In our final update of 2015, we discuss some recent cases in relation to suitability of advice, regulation of virtual currency exchangers and actions which may need to be taken in future in relation to contractual bail-in provisions. In our Spotlight this quarter, we focus on Data Protection developments.

Merry Christmas and Happy New Year from all of us at Mourant Ozannes. We look forward to seeing you all again in 2016.

Getting the Deal Through: Private Client 2016 – Jersey Chapter

December 2015
Jersey
International Trusts & Private Client

The Jersey chapter of the international publication on topics relating to private clients including: tax, private wealth structures and succession.

Reproduced with permission from Law Business Research Ltd. This article was first published in 'Getting the Deal Through: Private Client 2016' (published in November 2015; contributing editors: Anthony Thompson and Nicole Aubin-Parvu, Wragge Lawrence Graham & Co LLP). For further information please visit www.gettingthedealthrough.com.

Grand Court Orders the Repayment of Redemption Monies: Preferences and Clawing Back Redemption Payments

December 2015
Cayman Islands
Litigation, Insolvency & Restructuring, Funds

In Conway and Walker (as joint official liquidators of Weavering Macro Fixed Income Fund) v SEB the Grand Court of the Cayman Islands has, for the first time, ordered the re-payment of redemption proceeds paid by a fund to an investor shortly before the commencement of the fund's liquidation on the basis that the payments constituted voidable preferences.

TIEA Notices – Where next?

December 2015
Jersey
Litigation, International Trusts & Private Client

Following the Royal Court's decision in Larsen & Volaw v Comptroller of Taxes [2015] JRC 244, Justin Harvey-Hills and Mathew Cook, Jersey's leading experts in this field and counsel in the case, examine the merits and implications of the Royal Court's dismissal of the first full judicial review application of a TIEA notice issued under the amended Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008. They also explain why this case is headed for appeal.

Royal Court considers the nature of tripartite relationship between trustee, manager and unit holder in a Unit Trust context

December 2015
Guernsey
Litigation, Insolvency & Restructuring
Contact: Gordon Dawes

The Royal Court of Guernsey in Tranquility Holdings Limited v. Invista Real Estate Investment Management (CI) Limited (unreported judgment 38/2015) recently considered for the first time the nature and extent of the duties owed to unitholders by the manager of a Guernsey domiciled Unit Trust.

Huelin-Renouf – A case study in what can be achieved in trying circumstances when Jersey and Guernsey work together

December 2015
Jersey, Guernsey
Insolvency & Restructuring
Contact: Luke Olivier

In a great show of cooperation between the courts of Jersey and Guernsey earlier this year, the Jersey Royal Court made the novel decision to pool the assets of a Jersey company being wound up pursuant to Article 155 of the Companies (Jersey) Law 1991 and a Guernsey company leading to the best possible outcome for all creditors concerned.

Report on the South Square and Mourant Ozannes Litigation Forum on 4 November 2015

December 2015
Jersey, Guernsey, Cayman Islands
Litigation, Insolvency & Restructuring

A report on the on the South Square and Mourant Ozannes Litigation Forum on 4 November 2015, which addressed key developments in financial litigation and insolvency and restructuring.

Trustee Discretion and the Court: In the Matter of HHH Trust

December 2015
Jersey
Litigation, International Trusts & Private Client

The Royal Court of Jersey has recently refused an application by a beneficiary of a discretionary trust, who challenged the amount of costs and expenses agreed between the settlor and trustee pursuant to an earlier court order: In the Matter of HHH Trust, [2015] JRC 193.

This case highlights the autonomy of trustees in exercising their discretionary powers under a trust deed where done so reasonably and underlines the limits of the Court's engagement in such matters.

Litigation Newsletter Q4, 2015

December 2015
Jersey, Guernsey, Cayman Islands, BVI
Litigation

A very warm welcome to the Q4 2015 issue of Mourant Ozannes Litigation newsletter. We have a number of articles from across our jurisdictions in this edition.

Cayman Islands Companies Law

December 2015
Cayman Islands
Corporate

Cayman Islands companies may be incorporated with limited liability or without limited liability. Cayman Islands law permits dividends or other distributions to be paid out of share premium, subject to a solvency test, even if no profits are available.

Continuing obligations for Cayman Islands regulated funds

December 2015
Cayman Islands
Funds

A regulated mutual fund must file an annual return and pay an annual fee to the Registrar. The annual fee is calculated by reference to the fund's authorised share capital. The fund's registered office in the Cayman Islands will file the annual return with the Registrar and when fees are received from the fund, pay the annual fee on the fund's behalf. The fee is due in January of each year. Late fees will be assessed after 31 March of each year.

CIMA's director registration and licensing regime

December 2015
Cayman Islands
Banking & Finance, Corporate, Financial Services & Regulatory, Funds

In 2014, the Cayman Islands Government brought into force the Directors Registration and Licensing Law, 2014 (the Law). The Law provides for the registration, and in certain cases, licensing of individuals or companies appointed as directors of (i) mutual funds regulated under the Mutual Funds Law by the Cayman Islands Monetary Authority (CIMA); or (ii) companies registered as 'excluded persons' under the Securities Investment Business Law.

Infographic: Commercial property in Jersey. Looking ahead to 2016

December 2015
Jersey
Property

This infographic illustrates the results of the survey completed during the "Jersey Commercial Surveyors' & Agents' Question Time" event hosted by Mourant Ozannes' Jersey Property team on 26 November, 2015.

The Cayman Islands - advantages as an offshore jurisdiction

December 2015
Cayman Islands
Corporate

The Cayman Islands is one of the world's leading offshore jurisdictions. Although particularly renowned for the establishment of investment funds (both hedge funds and private equity funds), Cayman Islands entities are customarily used for transactions of all types including equity, debt and insurance capital markets transactions, in mergers and acquisitions and in joint ventures. The Cayman Islands Monetary Authority (CIMA) supervises and regulates providers of a wide range of financial services, including banking, insurance and investment management.

Transfer by way of Continuation into the Cayman Islands

December 2015
Cayman Islands
Corporate

This briefing details how a company incorporated outside the Cayman Islands may apply to be registered by way of continuation as an exempted company limited by shares under Section 201 of the Companies Law (as amended) (the Law).

Transfer by way of Continuation out of the Cayman Islands

December 2015
Cayman Islands
Corporate

This briefing details how an exempted company incorporated in the Cayman Islands may apply to be de-registered by way of continuation pursuant Section 206 of the Companies Law (as amended) (the Law).

Comparison of Offshore Corporate Structures

December 2015
Jersey, Guernsey, Cayman Islands, BVI
Banking & Finance, Corporate, Insolvency & Restructuring, Funds

This table has been prepared to provide a comparison of the laws of British Virgin Islands (BVI), the Cayman Islands, Guernsey and Jersey in relation to the establishment and regulation of offshore corporate structures.

Getting the Deal Through: Private Client 2016 - Guernsey chapter

December 2015
Guernsey
International Trusts & Private Client

The Guernsey chapter of the international publication on topics relating to private clients including tax, private wealth structures and succession. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Private Client 2016, (published in December 2015; contributing editors: Anthony Thompson and Nicole Aubin-Parvu of Wragge Lawrence Graham & Co LLP). For further information please visit www.gettingthedealthrough.com.

Infographic: Immigration Masterclass Results, follow up and recent updates.

December 2015
Jersey
Employment

Mourant Ozannes recently held an Immigration Masterclass in Jersey exploring the practicalities and legalities of recruiting into the Channel Islands. See our infographic for more information. 

About Mourant Ozannes - Firm Factsheet

December 2015
Jersey, Guernsey, London, Cayman Islands, Hong Kong, BVI

Mourant Ozannes is one of the leading offshore law firms, advising on the laws of the BVI, Cayman Islands, Guernsey and Jersey. We have a substantial presence in each of these jurisdictions as well as offices in Hong Kong and London.

The Cayman Islands: A Guide for Hedge Fund Managers

December 2015
Cayman Islands
Funds

The Cayman Islands continue to be the preeminent offshore jurisdiction for hedge funds. Around 85% of the world's hedge funds are domiciled in the Cayman Islands, enabling the jurisdiction to outrank competing offshore centres (BVI, Bermuda and Jersey among them) as the top spot for hedge funds.

The Benefits of Jersey Holding Companies for IPOs and Existing Listed Groups

December 2015
Jersey
Corporate
Contact: James Hill
This briefing examines some of the benefits a Jersey holding company could offer to groups considering an initial public offering ("IPO"), or to groups with an existing listing.

CIMA's statement of guidance on fund governance: a baseline of adequacy

December 2015
Cayman Islands
Funds

The Cayman Islands Monetary Authority's recently-published statement of guidance on matters of fund governance takes effect today and applies to all funds regulated under the terms of the Mutual Funds Law. The statement of guidance (SOG) follows a broad review of fund governance by the Cayman Islands Monetary Authority (CIMA) and should be read as a statement of what CIMA considers to be a baseline of adequacy as opposed to a statement of aspiration.

Cayman Islands FATCA Portal guidance notes

December 2015
Cayman Islands
Banking & Finance, Corporate, Financial Services & Regulatory, Funds

FATCA compliance: the Department for International Tax Cooperation of the Cayman Islands government (DITC) has released guidance notes in respect of the Cayman AEOI Portal.

The Court of Appeal rules on Redemption Payments

December 2015
Cayman Islands
Litigation

The Cayman Islands Court of Appeal (CICA) has upheld the Grand Court's decision that redemption payments made by insolvent companies out of share premium to satisfy redeeming shareholders are not unlawful pursuant to section 37(6) of the Companies Law. 

In so doing the CICA affirmed the narrow definition of "capital" under the Old Law, favoured at first instance, namely that capital was paid up share capital only (ie the par value of paid up shares) and not share premium (ie the amount paid on shares in excess of par value).

China Shanshui: Limiting the Power of Directors to Apply for the Appointment of Liquidators

December 2015
Cayman Islands
Litigation, Insolvency & Restructuring

The Grand Court of the Cayman Islands has rejected the notion that directors of an insolvent company can apply, in the name of the company, for the company’s own liquidation absent either an express power within the company’s constitutional documents or shareholder approval. In doing so, the court has refused to follow its own earlier decision which permitted such action by directors.

Masterclass conclusions: Recruiting employees from outside Guernsey is not as difficult as people think

November 2015
Guernsey
Employment

Guernsey's immigration and housing licence regimes can seem impossibly complex. Mourant Ozannes' Masterclass on Employee Immigration laid bare some of the myths surrounding employee immigration and provided practical guidance to employers to help navigate the maze of off-Island recruitment.

 

Winding up for loss of substratum: whether objects of a company are impossible or merely "impractical" - Harbinger Class PE Holdings (Cayman) Ltd

November 2015
Cayman Islands
Litigation, Insolvency & Restructuring
Applications to wind up companies for loss of substratum may have become more difficult following a recent decision from the Grand Court of the Cayman Islands in Re Harbinger Class PE Holdings (Cayman) Ltd. The Court held that the general test is whether it is "impossible" for a company to carry out its main objectives.

Comparison of Limited Partnerships in the BVI, the Cayman Islands, Guernsey and Jersey

November 2015
Jersey, Guernsey, Cayman Islands, BVI
Banking & Finance, Corporate, Financial Services & Regulatory, Insolvency & Restructuring, Funds

The briefing compares the laws of the BVI, Cayman Islands, Guernsey and Jersey in respect of limited partnerships.

Schemes of arrangement under Cayman Islands law

November 2015
Cayman Islands
Corporate

A scheme is a court-sanctioned compromise, arrangement, reconstruction or amalgamation entered into between a company and its creditors or members (or any class of them) in accordance with section 86 (and, for reconstructions and amalgamations, section 87) of the Companies Law (as amended). A scheme must involve an element of accommodation on each side for it to be effective as a scheme of "arrangement". There must be some sort of compensating advantage for members. The company must also be a party to the proposed arrangement.

Cayman Islands third party rights legislation

November 2015
Cayman Islands
Banking & Finance, Corporate, Financial Services & Regulatory, Funds

The Contracts (Rights of Third Parties) Law, 2014 (the Law) provides a statutory
framework permitting contracting parties to allow persons who are not party to contracts governed by Cayman Islands law (or third parties), but who are expressed by the terms of the contract as benefiting under them, to enforce provisions of the contract.

Cayman Islands Issues OECD Common Reporting Standard Regulations

November 2015
Cayman Islands
Corporate

Common Reporting Standard (CRS) is a global reporting standard developed by the Organisation for Economic Co-operation and Development (OECD) to facilitate the automatic exchange of financial information for tax purposes between countries that have adopted the standard. To date over 90 jurisdictions have committed to the regime, 60 of which, including the Cayman Islands, have formally adopted the CRS by signing the Multilateral Competent Authority Agreement. 

On 16 October 2015, the Cayman Islands introduced The Tax Information Authority (International Tax Compliance) (Common Reporting Standard) Regulations, 2015 (the Regulations) to implement the CRS.

At what cost loyalty?

November 2015
Cayman Islands
Funds
Contact: Robert Duggan

I occasionally wonder what we'd have done without Weavering; with so many blushes to hide and opportunities to exploit as a result of the first Weavering judgment, the past three years have been a bit of a bonanza for service providers. But the up-shot of it all is that fiduciary duties have become an industry just as much as they remain a responsibility.

The revocation of specific previous wills by general wording not valid - The Estate of Sushila Bhasin (Deceased) [2015]

November 2015
Jersey
Litigation, International Trusts & Private Client
Contact: Jonathan Speck

Mourant Ozannes recently acted in a case where the question arose as to whether a revocation of previous wills, expressed in general terms, by a foreign-domiciled deceased person had the effect of revoking a specific Jersey will, where this appeared not to have been the intention.

Going Private: How to Obtain Fair Value under the Cayman Statutory Mergers

November 2015
Cayman Islands
Corporate, Funds
Contact: Alex Last

A version of this article was first published in Corporate Counsel on 28 October 2015.

You already know that a "going private" transaction is one that results in a publicly traded company ceases to be publicly traded.

Esma and the path to an AIFMD passport

November 2015
Cayman Islands
Funds
Contact: Robert Duggan

This article first appeared in HFM Compliance.

Last week I had to renew my passport. The visit to the passport office was pretty straightforward: as an EU national applying for an EU passport the process was quick. I did, though, feel for the gentleman at the adjacent window who, as a non-EU national, had a more difficult time.

Last week I had to renew my passport. The visit to the passport office was pretty straightforward: as an EU national applying for an EU passport the process was quick.

The Securities Investment Business Law

November 2015
Cayman Islands
Banking & Finance, Funds

The Securities Investment Business Law (as amended) (the Law) provides for the licensing and control of "securities investment business' (as defined below) carried on in, or from, the Cayman Islands. Under the Law, a person shall not carry on or purport to carry on securities investment business unless such person holds a licence granted under the Law or is exempt from holding a licence.

The Asset Tracing and Recovery Review, Third Edition - Cayman Islands

October 2015
Cayman Islands
Litigation, Insolvency & Restructuring

The Cayman Islands Litigation Department at Mourant Ozannes has recently written the Cayman Islands chapter of the Asset Tracing and Recovery Review, 3rd edition. The chapter contains a high level summary of the law relating to fraud and asset tracing in the Cayman Islands.

The Asset Tracing and Recovery Review, Third Edition - BVI

October 2015
BVI
Litigation, Insolvency & Restructuring

The BVI Litigation Department at Mourant Ozannes has recently written the BVI chapter of the Asset Tracing and Recovery Review, 3rd edition. The chapter contains a high level summary of the law relating to fraud and asset tracing in the BVI.

Sweet & Maxwell - Commercial Litigation, 2nd Edition - Cayman Islands

October 2015
Cayman Islands
Litigation

Commercial Litigation (2nd Edition) aims to provide a first port of call for clients and lawyers who are or may become involved in litigation in an unfamiliar jurisdiction. Each chapter is set out in such a way that readers can make quick comparisons between the litigation terrain in each country. Each chapter also provides an overview of the formalities to be expected and the procedure used in court in each of the numerous countries the book will cover, and will use a consistent format for ease of comparison.

A breadth of jurisdictions is covered in the 2nd Edition from common and civil law jurisdictions, with contributions from leading lawyers in their countries who are ideally placed to provide practical, straightforward commentary on the inner workings of their respective legal systems.

Financial Services and Regulatory: Autumn Update 2015

October 2015
Jersey
Financial Services & Regulatory, Litigation

The aim of this update is to focus on current legal and regulatory developments affecting financial services institutions in Jersey and to provide some brief thoughts on the implications of these developments for your business.

Q2 this year ended with the JFSC showing its teeth in two prosecutions, AG v Fleming and AG v STM Fiduciaire and Jardine. Prosecutions instigated by the JFSC are still sufficiently rare in Jersey to cause a heightened state of tension across the local industry, especially amongst compliance professionals following the targeting of Jardine, who was an MRLO.

This update is not, however, all about enforcement action, as there are also positive developments for the industry. In particular, regarding the use of electronic apps for CDD. We have also focussed on the extension of the Discrimination Law as of 1 September 2015.

Listing Eurobonds on the CISE

October 2015
Guernsey, Jersey
Corporate

This guide contains a summary of the main requirements for the admission of quoted Eurobonds by private issuers to a primary listing on the Channel Islands Securities Exchange (CISE).

The P Trust and The R Trust

October 2015
Jersey
Litigation, International Trusts & Private Client
Contact: Jonathan Speck

Mourant Ozannes appeared recently In the matter of the P Trust and the R Trust [2015] JRC 196. The case demonstrates the power of the Royal Court to declare invalid the exercise of powers by fiduciaries

Jersey Pensions Reform - Update to Guidance Notes

October 2015
Jersey
International Trusts & Private Client

Following the reform of the tax rules which apply to Jersey pension schemes earlier this year, the Comptroller of Taxes published an update to its tax guidance notes for pension scheme administrators in September 2015. This note provides a summary to some of the most significant updates to the guidance notes together with a recap of the main changes which were introduced on 1 January 2015.

The Common Reporting Standard – Consequences for Private Client Trusts

October 2015
Jersey
International Trusts & Private Client

This Article was first published in the September 2015 edition of Private Client Business. The Common Reporting Standard (CRS) will soon be upon us. From its beginnings in 2012 as a political project influenced by the success of the United States in extending the IRS's information gathering network around the globe via FATCA, the CRS has developed at breath-taking pace for an international initiative of its size. By the end of 2015, domestic legislation will almost certainly be in place to implement it in the first jurisdictions to have accepted it (the so-called early adopters) and the first exchanges of tax information will occur under CRS in 2017. Many other jurisdictions will follow in 2018.

The IP Corner Newsletter

October 2015
Guernsey, Cayman Islands
Intellectual Property

Channel Island businesses are vulnerable to social media misuse by employees

October 2015
Jersey, Guernsey
Employment

Many businesses are inadequately protected against social media misuse by employees, according to a new survey conducted by Mourant Ozannes in Guernsey and Jersey. Members of the business community were polled, representing some of the largest finance, legal and media organisations across
the Channel Islands.

Sweet & Maxwell - Arbitration World International Series - Cayman Islands

October 2015
Cayman Islands
Litigation
Contact:

The Cayman Islands chapter in Sweet & Maxwell's fifth edition of Arbitration World provides a quick and easy first look at key issues in Arbitration in the format of a jurisdictional questionnaire, which should prove helpful to general counsel and their clients.  Contents include a general overview and new developments; the key features of arbitration in Cayman; advice on seeking interim measure in support of arbitration claims; and the methods for challenging or enforcing arbitral awards.

Infographic on social media usage in Jersey

October 2015
Jersey
Employment

The attendees at our 'Masterclass on Social Media' on 9 September 2015 completed a survey on social media usage at the Jersey businesses they work for. The results which stood out are displayed in our infographic.

Infographic on social media usage in Guernsey

October 2015
Guernsey
Employment

The attendees at our 'Masterclass on Social Media' on 9 September 2015 completed a survey on social media usage at the Guernsey businesses they work for. The results which stood out are displayed in our infographic.

Protecting intellectual property rights in Guernsey

October 2015
Guernsey
Intellectual Property

Mourant Ozannes Intellectual Property Group advises clients on all aspects of IP, for large multi-national organisations to start-up companies and individuals.

Independence of liquidators: Perception of the fair minded stakeholder

October 2015
Cayman Islands
Insolvency & Restructuring

The Grand Court of the Cayman Islands (the Court) recently endorsed the test articulated in the matter of Hadar Funds Ltd (in Voluntary Liquidation) in relation to the independence or otherwise of proposed joint official liquidators, confirming that the test to be applied in assessing the independence of liquidators is whether or not the Court considers that fair minded stakeholders are justified in being reasonably concerned that the liquidators operate under a conflict of interest.  

Cayman Islands Company Fact Sheet

October 2015
Cayman Islands
Corporate

A Cayman Islands exempted company limited by shares is a flexible and versatile vehicle that can be set up quickly and is easy to maintain.

Private Equity Funds in the Cayman Islands

October 2015
Cayman Islands
Funds

Cayman private equity funds. This briefing explains the attractions for international managers, sponsors and investors of the Cayman Islands as the jurisdiction in which to domicile a private equity fund.

A brief guide to jurisdictional thresholds for mergers and acquisitions in the Channel Islands

October 2015
Jersey, Guernsey
Corporate, Financial Services & Regulatory, Litigation

The Channel Islands of Jersey and Guernsey share a common competition authority, CICRA, but as separate jurisdictions have individual competition law regimes and apply different jurisdictional tests in order to determine whether mergers and acquisitions (and joint ventures) should be notified to CICRA for review and approval. This briefing provides a guide to jurisdictional thresholds for mergers and acquisitions in the Channel Islands.

The enforcement of non-competition covenants by employers

September 2015
Jersey
Employment, Litigation, Intellectual Property

This judgment is one of the very few Jersey cases that looks at the issue facing an employer looking to enforce a non-competition clause against a former employee.

Always Suspicious: Implications of failing to report

September 2015
Jersey
Financial Services & Regulatory, Litigation

This briefing covers the first prosecution in Jersey against a regulated business and MLRO for failing to report suspicions under the Proceeds of Crime (Jersey) Law 1999.

Enforcement of Foreign Judgments - How not to get frozen out

September 2015
Cayman Islands, BVI
Litigation, Insolvency & Restructuring
Contact:

Enforcement of foreign judgments against BVI registered companies is a common occurrence. It is often the case that in tandem with any such enforcement proceedings, an application is made to freeze the assets of the subject of the foreign judgment. The recent Court of Appeal case of  Lucita Angeleve Walton Anors v Leonard George De La Haye highlights the many issues that can arise.

Litigation Newsletter Q3, 2015

September 2015
Jersey, Guernsey, Cayman Islands, BVI
Litigation
Contact: Shaun Folpp

External Confiscation Orders; Criminality to be judged at the time of application, not the time of the conduct itself

September 2015
Jersey
Financial Services & Regulatory, Litigation

The Royal Court of Jersey recently considered for the first time the definition of "criminal conduct" with reference to the registration of confiscation orders made by foreign courts. Importantly, the Court declared that the Court should look at whether the definition is satisfied at the time the application is made to the Jersey Court, and not the time of the conduct itself.

Developments in the remedy of Judicial Review in Guernsey

September 2015
Guernsey
Litigation

This article considers two notable recent decisions of the Guernsey Court of Appeal and Royal Court that provide helpful guidance on the time limits within which any claim for judicial relief should be made.

Guernsey Court of Appeal considers interplay between security for costs and European Convention of Human Rights

September 2015
Guernsey
Litigation
Contact: Zachary Hoskin

This article considers a noteable recent decision which is the first time the Court of Appeal in the Channel Islands has considered the impact of Article 6(1) of the ECHR on the security for costs jurisdiction.  This is a demonstration of the ECHR's far reaching application to matters that are merely interlocutory in nature.

Comparison of voluntary liquidations

September 2015
Jersey, Guernsey, Cayman Islands, BVI
Corporate

A comparison of solveny voluntary liquidations of companies in the BVI, Cayman Islands, Guernsey and Jersey with a foreign company.

Comparison of mergers

September 2015
Jersey, Guernsey, Cayman Islands, BVI
Corporate

A comparison of mergers of companies in the BVI, Cayman Islands, Guernsey and Jersey with a foreign company.

Contractual agreements not to pursue winding up relief remain enforceable despite section 36(3) of the Exempted Limited Partnership Law 2014

September 2015
Cayman Islands
Litigation, Insolvency & Restructuring

In the recent decision of Re Rhone Holdings LP (Mangatal J presiding) the Grand Court of the Cayman Islands (the Court) struck out a just and equitable winding up petition (the Petition) for abuse of process. The Court held that the parties' contractual agreement not to pursue winding up relief was enforceable despite section 36(3) of the Exempted Limited Partnership Law 2014. 

Amendments to the Companies (Guernsey) Law, 2008: changes affecting insolvency practice

September 2015
Guernsey
Litigation
Contact: Abel Lyall
The States of Guernsey has approved the most extensive changes to the Companies (Guernsey) Law, 2008 (the Law) since it was enacted. The amendments, which came into effect on 3 September 2015, follow an extensive consultation process involving industry, the Guernsey Financial Services Commission (the GFSC), the Guernsey Bar, and other parties.

Cayman Court makes first ruling on the meaning of "Fair Value" under the statutory merger regime

September 2015
Cayman Islands
Banking & Finance, Corporate

On the 28th of August 2015 the Grand Court of the Cayman Islands released its decision in In the Matter of Integra Group (Jones J).

This case is the first time the Cayman Islands court has ruled on what constitutes "fair value" in the context of a statutory merger under the Companies Law of the Cayman Islands (the Law).

The company secretary's survival guide

September 2015
Jersey
Corporate

This briefing outlines some of the key provisions of the Jersey legislation that is most likely to apply to a Jersey public company that carries on business outside of Jersey. It is intended to be a general guide for company secretaries to assist with the day to day administration of the company. Our advice should be sought in appropriate circumstances.

Distributions and share purchases and redemptions under the Companies (Jersey) Law 1991

September 2015
Jersey
Corporate

This briefing examines the key aspects of distributions and share purchases (sometimes referred to as share buybacks) and redemptions under the Companies (Jersey) Law 1991 (the 1991 Law).

Companies (Jersey) Law 1991: Notes for company administrators

September 2015
Jersey
Corporate

These briefing notes have been designed as a supplement to Mourant Ozannes' client guide in relation to the Companies (Jersey) Law 1991 and subordinate legislation (the Law) to identify provisions in the Law likely to be of general relevance to administrators.

 

Companies (Jersey) Law 1991: Public and private companies

September 2015
Jersey
Corporate

This briefing note has been prepared as a supplement to Mourant Ozannes' client guide in relation to the Companies (Jersey) Law 1991 (the "Law") to provide further details as to the distinction made by the Law between public and private companies.

The Takeover Code in Jersey

September 2015
Jersey
Corporate

Historically, the UK Panel for Takeovers and Mergers (the Panel) has regulated takeovers both in the UK and the Crown Dependencies informally through the application of the City Code on Takeovers and Mergers (the Code).

 

Investment funds in the Cayman Islands

September 2015
Cayman Islands
Funds
The Cayman Islands is one of the world's leading offshore jurisdictions for the establishment of investment funds. As at September 2015, there are over 11,000 funds (predominantly hedge funds) registered with the Cayman Islands Monetary Authority (CIMA) under the Mutual Funds Law (the Mutual Funds Law). There are also significant numbers of private equity and other closed-ended alternative investment funds registered in the Cayman Islands but which are not required to register with CIMA.

Directors' concerns: Distributions and dividends

September 2015
Jersey
Corporate

Ever since the legal concept of the company was created, there has been discussion about what the purpose is of companies and why they should exist.

A Quick Guide to the Confidential Relationships (Preservation) Law (2015 Revision)

September 2015
Cayman Islands
Litigation, Insolvency & Restructuring, Property, International Trusts & Private Client

The Confidential Relationships (Preservation) Law (2015 Revision) (CRPL) seeks to maintain the confidentiality of commercial activities which take place in or in connection with the Cayman Islands, whilst also providing for the disclosure of confidential information through designated gateways as the interests of justice require.

The CRPL sets out what constitutes confidential information, when confidential information can be lawfully disclosed with and without the permission of the Court, and what the penalties are for unlawful disclosure of confidential information.

'But I've already signed my loan papers'

September 2015
Jersey
Property
Contact: Georgina Cook

This article was published in the Jersey Evening Post's September 2015 issue of Homelife.

When buying property, many purchasers require the assistance of a bank loan but there seems to be confusion about the process of completing the loan formalities. This article sets out the various steps, from a legal perspective, to finalising a property loan.

Comparison of Offshore Private Equity Holding Structures

August 2015
Jersey, Guernsey, London, Cayman Islands, Hong Kong, BVI
Banking & Finance, Corporate, Funds

This table has been prepared to provide a comparison of regimes the for private equity holding structures in the British Virgin Island (BVI), the Cayman islands, Guernsey and Jersey.

Universalism and assistance in foreign insolvencies: the future for Jersey after Singularis

August 2015
Jersey
Litigation, Insolvency & Restructuring

This article was first published by Corporate Rescue & Insolvency in August 2015.

Thomson Reuters' International Insolvency 4th Edition 2015 - Cayman Islands

August 2015
Cayman Islands
Litigation, Insolvency & Restructuring

An overview of insolvency in the Cayman Islands from the perspective of companies that are operating within a domestic and/or international family of companies, and considers the various complexities that this can introduce into insolvency procedures. It also has a significant concentration on duties, liabilities, insurance, litigation, and subsequent restrictions imposed on directors and officers of an insolvent company.

Corporate Governance Sweet & Maxwell International Series Second Edition - Cayman Islands

August 2015
Cayman Islands
Litigation
Contact:

This article is a first-hand reference material for practising lawyers and in-house attorneys who may counsel clients on matters of corporate governance in the Cayman Islands. It is written in a reader-friendly Q&A format and covers shareholders, directors & board of directors, audit, liabilities, and social interest in corporate behaviour and provides practical, straightforward commentary and guidance to investors.

Infographic: Jersey's Sex Discrimination Legislation

August 2015
Jersey
Employment

This infographic summarises the main provisions of the sex discrimination law, coming into force on 1 September 2015.

Guernsey Court of Appeal upholds finding of no gross negligence by Former Trustees of Tchenguiz Trust

August 2015
Guernsey
Litigation, Insolvency & Restructuring
On 10 August 2015, the Guernsey Court of Appeal delivered its final judgment in the long-running litigation in Investec Trust (Guernsey) Limited & Anor v Glenalla Properties Limited (In liquidation) & Ors. Mourant Ozannes acted for the Plaintiffs, ITG Limited (formerly Investec Trust (Guernsey) Limited) (ITGL) and Bayeux Trustees Limited, who were the former trustees of the Tchenguiz Discretionary Trust (TDT) (the Former Trustees).

Infographic: Jersey's new Flexible Working rights

August 2015
Jersey
Employment
From 1 September 2015, employees have the right to request a variation to their terms of employment, in respect of their hours of work, times of work and place of work. See our infographic for more.

Segregated portfolio companies

August 2015
Cayman Islands
Corporate

The Segregated Portfolio Company (SPC) is a single legal entity within which may be established various segregated portfolios. The assets and liabilities of each segregated portfolio are legally separate from those of the other segregated portfolios. When the SPC was first introduced in the Cayman Islands in 1998, the use of the SPC structure was restricted to licensed insurers. However, an amendment to the Companies Law of the Cayman Islands (the Law) in late 2001 removed this restriction on the use of SPCs and SPCs are now used in other sectors such as investment funds, where the protection afforded by the use of segregated portfolios is being applied to segregate share classes with different investment objectives and risk profiles.

The Growing Jet Business in Asia

August 2015
BVI
Banking & Finance

In the latest edition of Business BVI Asia Simon Lawrenson and Danielle Roman examine why BVI buyers, lessors and financiers of business jets in the Asia Pacific market trust in “Brand BVI”.

The inherent jurisdiction of the Court to supervise the administration of trusts - R & RA Trusts

July 2015
Guernsey
Litigation, International Trusts & Private Client
Contact: Jeremy Wessels

Jeremy Wessels comments on the inherent jurisdiction of the Court to supervise the administration of trusts: R & RA Trusts for Private Client Business. 

Guide to the continuing obligations of a BVI investment business licensee

July 2015
BVI
Financial Services & Regulatory, Funds

An overview of the continuing obligations of a BVI investment business licensee.

Guernsey meets the Global Tax Challenges

July 2015
Guernsey
Funds

The implementation of stricter taxation scrutiny globally shows no sign of abating. Nonetheless, Guernsey is well-placed to meet many of these challenges, and indeed thrive in this new world order. Guernsey has repeatedly demonstrated an ability to comply with international obligations and adapt to challenges and changing circumstances and the evolving tax landscape is no exception. But what are the rule changes, and how are they affecting Guernsey?

Jersey's new "Family-Friendly" rights

July 2015
Jersey
Employment

From 1 September 2015, employees in Jersey are entitled to maternity, parental and adoption leave. See our infographic for more.

Schroder Cayman Bank and Trust Co Ltd v Schroder Trust AG

July 2015
Jersey, Cayman Islands
Litigation, International Trusts & Private Client

The Cayman Islands court held that three separate appointments of capital from an employee benefit trust established in the Cayman Islands to three employee financed retirement benefit schemes in Jersey were void as a result of an excessive execution of powers contained in the relevant Trust deed by the Trustees and on the grounds of mistake.  In separate proceedings in Jersey, the Jersey court granted recognition of the decision of the Cayman Islands court. This briefing provides further details of the decision.

A guide to Jersey Corporate Insolvencies

July 2015
Jersey
Corporate, Insolvency & Restructuring

This briefing examines the Jersey insolvency legislative and common law framework in the context of Jersey incorporated companies and incorporated limited partnerships. For access to this briefing, please contact jersey@mourantozannes.com

Jersey's Royal Court sheds light on zero hours contracts

July 2015
Jersey
Employment

The Royal Court of Jersey has provided some welcome clarity on the treatment of zero hours contracts in Jersey, in the case of Marchem (Europe) Limited v Carre. This briefing provides a discussion of that decision and its implications for Jersey law.

Financial Services & Regulatory Summer Update 2015

July 2015
Jersey
Financial Services & Regulatory

In this issue, we comment on the JFSC's new power to impose financial penalties, as well as provide a brief update in relation to some recent case law in Jersey and the UK, the latest public statement made by the JFSC, the use of mobile apps for collecting client due diligence and potential changes to Jersey's investment business regime in response to MiFID II.

Evolving Role of Independent Director

July 2015
Guernsey
Litigation
Contact: Jeremy Wessels

In this article Jeremy Wessels reviews the evolving role of the independent director in the global market place. This article first appeared in INSOL World Q2 2015.

An introduction to Jersey investment funds

July 2015
Jersey
Funds

Jersey offers a full spectrum of fund regulation, from highly regulated recognized funds which may be marketed widely to the general public to unregulated funds which fulfil certain criteria and therefore may opt out of regulation as a fund in Jersey. This briefing is a general introduction to the range of Jersey investment funds available.

Jersey: Expert Funds

July 2015
Jersey
Funds

This briefing gives a summary of the key features of an expert fund.

Jersey: Listed Funds

July 2015
Jersey
Funds

This briefing gives a summary of the key features of a listed fund.

Jersey: Unregulated Funds

July 2015
Jersey
Funds

This briefing gives a summary of the key features of an unregulated fund.

Jersey: Public Funds

July 2015
Jersey
Funds

This briefing gives a summary of the key features of a publicly-offered collective investment fund which is not an expert fund, recognized fund, listed fund or unregulated fund.

Jersey Private Placement Funds

July 2015
Jersey
Funds

From January 2012 a new streamlined regulatory authorisation process for the establishment of privately placed funds is available in Jersey.

Jersey Eligible Investor Funds

July 2015
Jersey
Funds

This briefing gives a summary of the key features of a Jersey eligible investor fund.

Commercial Leases in Jersey - Similar but different

July 2015
Jersey
Property

Head of Property in Jersey, Gavin Renault, and Counsel, Georgina Cook, discuss the increase in the number of British-based entities looking to invest in commercial property in Jersey and considerations around this.

This article can be viewed in the latest issue of Abode2, luxury property magazine.

Credit Agricole Corporation and Investment Bank v Papadimitriou [2015]

July 2015
Jersey
Litigation

On appeal by the bank from the decision of the Court of Appeal of Gibraltar, the Privy Council held that a bank had constructive notice of a third party's proprietary rights where it had failed to make inquiries as to the commercial purpose of a transaction.

The Companies (Guernsey) Law, 2008 (Amendment) Ordinance, 2015: Squeeze-Out Rights - Buying Out Minority Shareholders in a Guernsey Company

July 2015
Guernsey
Corporate, Financial Services & Regulatory, Funds

Late this year, the squeeze-out regime in Guernsey will be amended. This note provides a summary of the current and proposed regimes.

Enforcement of security over shares in a BVI company

July 2015

When taking security over shares in a BVI company it is common to take security by way of an equitable mortgage or a charge over the shares. This briefing examines the enforcement rights available to a security taker under an equitable share mortgage.

Private Trust Companies in Jersey

June 2015
Jersey
International Trusts & Private Client

A client wishing to create a trust has to come to terms with the requirement to transfer legal ownership of assets to the trustee. In the context of offshore wealth planning, the trustee may be a service provider's professional trust company, likely to be operating in a foreign jurisdiction. If the client is concerned about taking this step, one solution may be the use of a private trust company (PTC). This briefing provides an overview of private trust companies in Jersey.

Quick Guide to Directors' Duties in the Cayman Islands

June 2015
Cayman Islands
Corporate, Litigation, International Trusts & Private Client

The duties of directors of companies incorporated in the Cayman Islands are governed primarily by the Companies Law (2013 Revision) (the Law) and precedents established by the common law. The Statement of Guidance for Regulated Mutual Funds published by the Cayman Islands Monetary Authority (CIMA) is also instructive for directors of Cayman Islands mutual funds. This Quick Guide provides an overview of some of the main duties of directors of Cayman Islands companies. 

In business, it's not what you know, it's who you know - Part 2 of the Nautech and CSS saga

June 2015
Jersey
Employment, Litigation, Intellectual Property
Contact: Luke Olivier

Earlier this year the Jersey Court of Appeal provided us with a timely reminder of the important role of a court of first instance when it comes to the assessment of the oral testimony of witnesses of fact as well as the need for parties to take great care in the wording they use in orders they seek for injunctive relief.

Contempt of Court: Litigation is not a game

June 2015
Guernsey
Litigation
Contact: Sally French

When it comes to the imposition of sanctions for non-compliance, the Royal Court of Guernsey is not bound by overly prescriptive rules; rather it acts to further the overriding objective, which is to deal with cases justly. Flexible it may be, but the Royal Court is no soft touch. Litigants who consistently and flagrantly flout the Royal Court's orders can be expected to be held to account. This was made abundantly clear in the recent committal ordered in the civil action of Invescap Holdings Limited v Lee Douglass (judgment 20 February 2015).

The Risks of Social Networking in the Workplace

June 2015
Guernsey
Employment, Litigation
Contact: Carly Parrott

Social networking has been creating a legal storm – a storm that has been brewing for some time, but which is now starting to gather momentum. Social media has become an entrenched part of our personal and professional networking, but it brings with it risks created by the misuse of those platforms and risks attached to the ownership of those platforms. As the traditional constructs of employment law struggle to fit the square peg of social networking into the round hole constructs of statutory and common law, and as the line between what is "in the course of employment" becomes increasingly blurred, so the uncertainty increases for employers who are forced to navigate an increasingly grey area of accountability, responsibility and liability. This article intends to identify some of the issues arising and proposes means by which to mitigate those risks.

Sanctions for failure to engage in ADR: will Guernsey follow the High Court's lead?

June 2015
Guernsey
Litigation
Contact: William Haig
In what is the latest in a slew of English High Court and Court of Appeal cases setting out adverse costs consequences for unreasonable failure to engage in Alternative Dispute Resolution (ADR), Turner J's judgment in Laporte v the Commissioner for the Police of the Metropolis [2015] EWHC 371 (QB) reaffirmed the obligation on parties to engage seriously with the process of ADR.

BVI: Clarification on service out of jurisdiction

June 2015
Cayman Islands, BVI
Litigation
Contact: Eleanor Morgan

Given the international nature of BVI companies and a regular issue that arises concerning BVI incorporated companies relates to the subject of service out of jurisdiction. Given the international nature of BVI companies and the multitude of jurisdictions that can be involved in any related dispute, service out of jurisdiction and the principles that underlie it have to be correctly understood in order to ensure that litigants issue in the correct jurisdiction.

Injunctive and disclosure orders in aid of foreign proceedings: Classroom Investments Inc

June 2015
Cayman Islands
Litigation, Insolvency & Restructuring

In the recent decision in Classroom Investments Inc. v (1) China Hospitals Inc. and (2) China Healthcare Inc. (Smellie CJ presiding) the Grand Court of the Cayman Islands (the Grand Court) granted the Plaintiff's application for a freezing injunction in aid of foreign proceedings in Hong Kong. It is the first order made pursuant to the recently enacted section 11A of the Grand Court Law (2008 Revision) (as amended) (the Law), which places on a statutory footing the jurisdiction of the Grand Court to grant interim relief in aid of foreign (ie non – Caymanian) proceedings.

Litigation Newsletter Q2 June 2015

June 2015
Jersey, Guernsey, Cayman Islands, BVI
Litigation
Contact: Shaun Folpp

Welcome to issue no.2 of our litigation newsletter for 2015. A selection of articles from each of our jurisdictions follows.

Our BVI team reports on clarification from the Court on service out of jurisdiction. From Guernsey, we report on the risks of social networking in the work place, penalties following the breach of Court orders and the possibility of the Royal Court imposing sanctions for the failure to engage in ADR.

Our Cayman office discusses the recent decision in Classroom Investments Inc, group insolvency and provides a quick guide to directors duties in the Cayman Islands.

Finally, our Jersey team have articles about finding litigation witnesses resident overseas and the need for parties to take great care when they seek injunctive relief.

If you have any queries in relation to any of the articles, please do not hesitate to contact me, the authors or any of your usual contacts at Mourant Ozannes.

Amendments to the Companies (Guernsey) Law, 2008

June 2015
Guernsey
Banking & Finance, Corporate, Financial Services & Regulatory, Insurance, Funds

The draft legislation amending the Companies (Guernsey) Law, 2008 has now been released. These changes are expected to be implemented into Guernsey law during the second half of 2015. This briefing provides a high level review of the proposed changes.

A Guide to Jersey Real Estate Holding Structures

June 2015
Jersey
Banking & Finance, Corporate, Insolvency & Restructuring, Property, Funds

This guide compares certain Jersey real estate holding structures (Companies/JPUTs/LPs) and lists their respective key features.

Cayman Court gives guidance on the status of redeeming investors and approach to distributions

June 2015
Cayman Islands
Litigation, Insolvency & Restructuring

The Grand Court of the Cayman Islands (the Court) recently ruled in favour of Primeo Fund (in official liquidation) (Primeo) in its ongoing representative proceedings with the Additional Liquidator of Herald Fund SPC (in official liquidation). The Court confirmed that section 37(7)(a) of the Companies Law does not apply to investors who are redeemed pursuant to the company's articles of association, but have not yet been paid (the section 37(7) Issue). 

The Court has now handed down its detailed reasons in respect of both the section 37(7) Issue and the other matter it was asked to determine: the circumstances in which a liquidator of a Cayman company can rectify the register of shareholders pursuant to section 112(2) of the Companies Law and Order 12 rule 2 of the Companies Winding Up Rules.

Guernsey – London Stock Exchange Listings

June 2015
Guernsey
Corporate, Funds

Guernsey companies have continued their track record as the leading offshore vehicles for listing on the various markets of the London Stock Exchange (LSE).

A Guide to JPUTs (Jersey Property Unit Trusts)

June 2015
Jersey
Banking & Finance, Corporate, Insolvency & Restructuring, Property, Funds
Contact: James Hill

A Jersey Property Unit Trust (JPUT) is a specific type of Jersey trust which is commonly used to require and hold interests in UK real estate.

The Y Trust

June 2015
Jersey
Litigation, International Trusts & Private Client
Contact: Jonathan Speck

Mourant Ozannes recently acted for the trustee of a Jersey law governed trust which was the subject of a court application in a case known as In the matter of the Y Trust [2015] JRC 059. The case demonstrates the Royal Court's willingness to approve innovative means of settling family disputes concerning trusts.

Grand Court construes section 37(7)(a) of the Companies Law - redeemed but unpaid investors are to be treated as creditors

June 2015
Cayman Islands
Litigation, Insolvency & Restructuring, Funds

On 4 June 2015 the Cayman Islands Grand Court ruled in favour of Primeo Fund (Primeo), in the ongoing Representative Proceedings between Primeo and Herald Fund SPC (Herald). The Court had to construe section 37(7)(a) of the Companies Law. Although the Court's detailed reasons are still awaited, it is clear from the Court's decision that section 37(7)(a) does not apply to redeeming investors whose shares have been redeemed prior to the commencement of the liquidation and provides for the circumstances in which they can enforce their redemption in the liquidation.

Amalgamation of a Guernsey company with another company

June 2015
Guernsey
Corporate

In short, an amalgamation involves two or more companies merging to become one. Under the Companies (Guernsey) Law, 2008 (the Law), a Guernsey company can be amalgamated with one or more other companies, whether incorporated in Guernsey or overseas.

STEP Journal June 2015 - Can I get a witness?

June 2015
Jersey
Litigation, International Trusts & Private Client

Printed in the June edition of the STEP Journal, this article discusses the jurisdictional limits of witness summonses.

Acquisitions and transfers of freehold title in Jersey

May 2015
Jersey
Property

This is an essential guide for those acquiring or transferring ownership of property in Jersey.

Key Differences between Jersey and English Commercial Property Transactions

May 2015
Jersey
Property

Our English clients regularly ask us the same question "What are the main differences between commercial property transactions in England and Jersey and what can we expect when we transact in Jersey?"

British Virgin Islands FATCA Portal activation

May 2015
BVI
Financial Services & Regulatory, Funds
Contact:

The British Virgin Islands (BVI) International Tax Authority (ITA) BVI Financial Account Reporting System (BVIFARS) opened on 15 April 2015. BVIFARS is the web-based application through which BVI financial institutions are required to submit their FATCA returns to the ITA. 

The Sex Debate: Sexual Harassment in the Guernsey Workplace

May 2015
Guernsey
Employment
A survey of professional women representing a wide cross section of Guernsey's business community revealed that 48 per cent had experienced some form of sexual harassment in the workplace. The poll was conducted at "The Sex Debate", hosted by the Women's Development Forum in April 2015 and debated by Mourant Ozannes. Over 100 women attended the debate. This article gives an in-depth summary of the poll results.

Infographic: The Sex Debate questionnaire results

May 2015
Guernsey
Employment

This infographic illustrates the results of a poll conducted at "The Sex Debate" in Guernsey, hosted by the Women's Development Forum in April 2015 and debated by Mourant Ozannes. Over 100 women attended the debate.

Fast track application process for specified Licensees

May 2015
Guernsey
Funds

This Briefing discusses the fast track application process introduced by the Guernsey Financial Services Commission in October 2008 for licensees associated with Qualifying Investors Funds and Registered Closed-Ended Investment Funds.

Company Strike Off

May 2015
Guernsey
Corporate

An overview of the circumstances in which a company may be struck off the Register of Companies following which it will cease to exist.

The Restoration Game

May 2015
Guernsey
Corporate

This briefing gives an overview of the methods by which a Guernsey company which has been struck off or dissolved and removed from the Register of Companies can be reinstated.

Overview of the alternatives market

May 2015
Jersey
Funds

The influx of institutional money into alternative investment managers – such as private equity, hedge funds and real estate – shows no sign of abating. This growing investment into various alternative asset classes is something that will undoubtedly benefit Jersey, as a leading offshore fund domicile. In this overview of the alternatives market we look at 'why Jersey'?

Formation of a Guernsey Company

May 2015
Guernsey
Corporate
Contact: Thomas Barnes

Information on the types of company available in Guernsey and the process of incorporation.

Dégrèvement Explained

April 2015
Jersey
Property
Contact: Gavin Renault

Despite the widely held opinion that it is archaic and inequitable, the process of dégrèvement remains a useful option available to secured lenders seeking to recover an unpaid debt. It is a debt recovery procedure which results in the debtor's property becoming freed from all security and thereby "disencumbered". The procedure is principally governed by the Loi (1880) sur la Propriété Fonciere.

Buying and Selling Share Transfer Property in Jersey: What we do as your lawyers

April 2015
Jersey
Property

Property in Jersey can be bought or sold either by contract passed before the Royal Court (a conveyance) or by share transfer. This general guide explains the steps common to a share transfer transaction. It should be noted that any pre-contract negotiations should always be more "subject to contract" as contracts of this nature can in some circumstances be specifically enforced.

Buying and Selling "Flying Freehold" Property in Jersey: What we do as your lawyers

April 2015
Jersey
Property

Property in Jersey can be bought or sold either by contract passed before the Royal Court (a conveyance) or by share transfer. This general guide explains the steps involved in purchasing a "flying freehold" unit.

Buying and Selling Property in Jersey: What we do as your lawyers

April 2015
Jersey
Property

Property in Jersey can be bought or sold either by contract passed before the Royal Court (a conveyance) or by share transfer. This general guide explains the steps common to buying and selling freehold property.

Commercial Leases in Jersey and Guernsey - a comparison

April 2015
Jersey, Guernsey
Property

As jurisdictions, Jersey and Guernsey have a lot in common. They both enjoy a unique constitutional position and draw on mixed legal sources that stretch back to Norman customary law, incorporating civil law and English common law. In respect of property law, and commercial leases in particular, practitioners face similar challenges in both jurisdictions.

The Jersey Residential Tenancy Law - A Basic Guide

April 2015
Jersey
Property

The Residential Tenancy Law 2011 (the RTL) and the amendments to it (adopted on 11 September 2012) came into force on 1 May 2013.

The legal costs of moving house

April 2015
Jersey
Property

What do we do for our fees and how are legal fees calculated on property transactions? These are good questions and people often perceive conveyancing fees to be more expensive than they are or do not fully appreciate the true value they represent. It is the case that conveyancing fees are generally more expensive in Jersey than they are in the UK. The reason for this is that in the UK, the Government guarantees the buyer's title to the property.

A basic guide to Jersey Stamp Duty and LTT

April 2015
Jersey
Property

The last few years have seen a plethora of articles written about the introduction of the Land Transaction Tax (LTT), the tax equivalent to Stamp Duty now payable on purchases of residential share transfer property. It has been argued by some that this tax has come at a bad time for those struggling to buy their home or climb the property ladder. However, behind the headlines lies the reality of the situation, namely that many sales of share transfer flats are in fact to "First Time Buyers" who will benefit from significantly reduced rates of LTT since the same concessions apply as to freehold transactions.

Stop before you set up shop

April 2015
Jersey, Guernsey
Property

Mourant Ozannes looks at the main issues for a retailer to consider when taking on a lease in Guernsey and Jersey.

Asbestos – your responsibility in the Channel Islands

April 2015
Jersey, Guernsey
Property

The mere mention of asbestos can set alarm bells ringing for any person with an interest in property. Mourant Ozannes property team highlight some of the key issues to consider when looking at potential obligations and liabilities in relation to a Guernsey or Jersey property in which Asbestos containing materials may be present.

Fixed charge receivers - a view from Jersey

April 2015
Jersey
Litigation

Produced in April for Lexis Nexis, this article concerns the Jersey law issues concerning the enforcement of secured immovable property interests in respect of Jersey-incorporated entities (or individuals) that own immovable property located in England, and English-incorporated entities (or individuals) that own immovable property located in Jersey.

Insolvency procedures for Guernsey companies

April 2015
Guernsey
Banking & Finance, Litigation, Insolvency & Restructuring

This briefing provides an overview of the main insolvency procedures available to Guernsey companies and the factors which should be considered when deciding which procedure is likely to achieve the best result for creditors.

Getting the Deal Through: Fund Management - BVI 2015

April 2015
BVI
Funds

Mourant Ozannes' contribution to the annual report, 'Fund Management', covering a British Virgin Islands analysis of law and policy.

Getting the Deal Through: Fund Management - Cayman Islands 2015

April 2015
Cayman Islands
Funds

Mourant Ozannes' contribution to the annual report, 'Fund Management', covering a Cayman Islands analysis of law and policy.

Financial Services & Regulatory Spring Update 2015

April 2015
Jersey
Financial Services & Regulatory, Litigation

The aim of this Update is to focus on current legal and regulatory developments affecting financial services institutions in Jersey and to provide some brief thoughts on the implications of these developments for your business.

Regulatory enforcement is the flavour of the quarter with the commencement of civil penalties legislation (although not yet implemented) and a significant number of public statements being issued by the Jersey Financial Services Commission, as well as challenges to the issue of public statements proceeding through the Royal Court.

High Net Worth Individuals - Residential Housing Qualifications

April 2015
Jersey
Property

This briefing provides an overview of how The States of Jersey, through the Housing Minister, exercises certain controls over the purchase and occupation of residential property in the Island.

Group insolvency, consolidation of debts and directors' duties and liabilities in the Cayman Islands

April 2015
Cayman Islands
Litigation

Louis Mooney and Christopher Harlowe provide a general overview of Cayman Islands insolvency proceedings for Practical Law/PLC.

Jersey Companies Law: A guide

April 2015
Jersey
Corporate
The Companies (Jersey) Law 1991 (the Law) came into effect on 30 March 1992 and replaced the Loi (1861) sur les Sociétés avec Responsabilité Limitée, as amended, and the Companies (Supplementary Provisions) (Jersey) Law 1968 (the old Laws). This guide outlines the principal features of the Law.

Trustee indemnities and liens - a valuable resource and a pragmatic process

April 2015
Jersey, Guernsey, Cayman Islands, BVI
Litigation, International Trusts & Private Client
Contact: Bruce Lincoln

The recent Jersey case of In the matter of the Representation of C and in the matter of the Z trusts I to VII has provided some welcome reassurance to former trustees who are faced with liabilities in respect of trusts from which they have retired.

Investment funds in Guernsey

April 2015
Guernsey
Funds

This briefing provides a concise outline of the regulation of investment funds in Guernsey and an overview of the structures available in Guernsey and their tax treatment.

No Reflective Loss in Guernsey?

March 2015
Guernsey
Litigation, International Trusts & Private Client
Contact: Zachary Hoskin

In Jefcoate v Spread Trustee Company Limited the Royal Court of Guernsey considered, for the first time, the question of whether the rule against reflective loss formed part of Guernsey law and, if so, whether it applied to cases where the losses have been suffered by a company owned by a discretionary trust.

The Prescription Period In Breach of Trust Cases: A Question of Knowledge

March 2015
Guernsey
Litigation, International Trusts & Private Client
Contact: Natasha Newell

The Royal Court of Guernsey, in what is believed to be the first Channel Islands' judgment of its kind, has stated the degree of knowledge a plaintiff is required to have for time to start to run under section 76(2) of the Trusts (Guernsey) Law 2007. Such welcome clarification came in the case of Broadhead v Spread Trustee Company Limited & Ors. The judgment merits close consideration, given its importance to the Channel Islands' trust industry.  

Kilbey v Grafters: A quasi-partnership gone wrong

March 2015
Jersey
Corporate, Litigation

In a series of judgments the Royal Court of Jersey has considered a number of points arising from the breakdown of relationships in a quasi-partnership.  The judgments concern:

(a)  Whether a heated exchange in a mediation could be admitted as
evidence in subsequent proceedings;

(b)  Whether a claim for unfair prejudice was made out; and

(c)  How to deal with the costs, which dwarfed the value of the claim, of these proceedings.

Booth v Zenith Trust Company Limited [2014] JRC 231: the meaning of 'fraud' for prescription purposes under Article 57 of the Trusts (Jersey) Law 1984

March 2015
Jersey
Litigation, International Trusts & Private Client
Contact: Katie Hooper

In an application for strike out of the Plaintiff's claims for breach of trust on the basis that these claims were time barred, the Master considered Article 57(1)(a) of the Trusts (Jersey) Law 1984 (the 1984 Law), which disapplies the usual limitation period in breach of trust actions against a trustee "in respect of any fraud to which the trustee was a party or to which the trustee was privy". The case is of interest due to the Master's consideration of the meaning of "fraud" for the purpose of Article 57(1)(a) of the 1984 Law and the subsequent application of a test which is lower than the test for criminal fraud. 

Legal Week International Private Client Forum: Reputation Management debate with Carl Bernstein

March 2015
Jersey, Guernsey, Cayman Islands, BVI
International Trusts & Private Client
Contact: Jim Edmondson
With the proliferation of data available online, reputation management is an increasingly difficult task. At the Legal Week International Private Client Forum, Mourant Ozannes' Jim Edmondson spoke to Pulitzer prizewinning journalist Carl Bernstein and PR guru Paddy Harverson about what constitutes information in the public interest.

The Privy Council Clarifies the Statutory Jurisdiction to Rectify a Company's Register of Members

March 2015
Cayman Islands, BVI
Litigation
Contact: Shaun Folpp

This briefing discusses the recent Privy Council decision of Nilon Limited and another v Royal Westminster. This decision clarifies BVI law on the Court's powers (and limits) to rectify a company's Register of Shareholders and it re-confirms BVI law relating to the necessary and proper party requirement for service out of jurisdiction and what constitutes the appropriate forum.

Winding up Foreign Companies by Foreign Courts

March 2015
BVI
Litigation, Insolvency & Restructuring

This article considers recent decisions of the English and Hong Kong Courts as to whether a petition seeking the winding up of a company should be brought in the place of the company's incorporation, or the jurisdiction in which it conducts its business. 

Amendments to the Jersey Foundations Law

March 2015
Jersey
International Trusts & Private Client
On 17 March 2015, the Foundations (Amendment of Law) (Jersey) Regulations 2015 came into force. This legislation amends the Foundations (Jersey) Law 2009 which is the Jersey statute which provides for the establishment and operation of foundations under Jersey law.

Objection! When is it too late to object to a unilateral contract amendment?

March 2015
Jersey, Guernsey
Employment, Litigation

In the recent case of Wess v Science Museum Group, the Employment Appeal Tribunal (EAT) held that by not expressly objecting to a variation in her contract and continuing to work for further nine years until her ultimate dismissal, Ms Wess had impliedly accepted the variation to her terms and conditions.

Careless Communication can be Courtroom gold dust

March 2015
Jersey, Guernsey
Employment, Litigation

When an issue arises in the workplace, there may be a temptation to immediately engage in email communications about the matter, to initiate an internal investigation or create an audit report which runs alongside any formal process, such as a grievance or disciplinary process. To highjack a policeman's catch-phrase, employers need to be aware that anything that they write can, and will be used, against them in a Court or Tribunal.

Cayman Islands Star Trusts

March 2015
Cayman Islands
International Trusts & Private Client
Contact: Robert Mack

The Special Trusts Alternative Regime or "STAR" is a creature of statute. It was introduced in the Cayman Islands by the STAR Law in 1997 but since then, has been incorporated in Part VIII of the Cayman Islands Trusts Law, appearing in the 2009 Revision at sections 95 to 109.

BVI Financial Services Commission clamps down on regulatory breaches

March 2015
BVI
Litigation
Contact: Eleanor Morgan
The BVI Financial Services Commission (the FSC) has shown that it will not shy away from taking serious action in cases of persistent regulatory breaches by successfully petitioning the BVI Court to appoint Russell Crumpler and Kris Beighton of KPMG as liquidators of Victory Life and Pension Assurance Services Limited (Victory Life).

Directors' duties and relief from liability for breach

February 2015
Jersey
Corporate, Litigation
In the recent case of Vilsmeier v AI Airports International Limited and PI Power International Limited [2014] JRC 257 the Royal Court considered the nature of a director's fiduciary duty under Article 74 of the Companies (Jersey) Law 1991 (the Law) and the Court's jurisdiction to grant relief to a director in respect of any breach of duty pursuant to Article 212 of the Law.

The Cayman Islands Court of Appeal Reverses earlier Decision on Directors' Liability in Weavering

February 2015
Cayman Islands
Corporate, Litigation, Insolvency & Restructuring, Funds

The Cayman Islands Court of Appeal has handed down its long-awaited decision regarding the appeal brought by the directors of Weavering Macro Fixed Income Fund Limited against the Grand Court's 2011 judgment.

A Quick Guide to Enforcement in the Cayman Islands

January 2015
Cayman Islands
Insolvency & Restructuring

A creditor who obtains a Cayman Islands judgment against a debtor for the payment of money has a number of options to enforce that judgment and to recover the outstanding moneys. This quick guide sets out the main methods of enforcement.

Re Danka Business Systems Plc; Ricoh Europe Holdings BV & Ors v Spratt & Anor [2013] EWCA Civ 92 (CA 19 February 2013)

January 2015
Cayman Islands
Litigation, Insolvency & Restructuring
Contact: Peter Hayden

The English Court of Appeal ruling in Re Danka Business Systems Plc (Re Danka) considers how insolvency practitioners ought to deal with contingent claims. The ruling in Re Danka represents a divergent approach to that currently found in the Cayman Islands' case law, most recently in Re Sphinx. More specifically, Re Danka supports the contention that a reasonable estimate must be made of any contingent creditor claims in order that an appropriate reserve may be set aside and ring-fenced. Conversely, in Re Sphinx, the Chief Justice concluded that any reserve was to be set at the maximum sum which might reasonably be incurred rather than the sum likely to be incurred.  

Insurance business transfer schemes in Jersey

January 2015
Jersey
Financial Services & Regulatory, Insurance

This briefing provides an introduction to the factors that determine whether a Jersey insurance business transfer scheme is required and an outline of the procedure for the transfer of insurance business in Jersey.

Mourant Ozannes & South Square Litigation Forum 2014: Lehman Brothers six years on - where are we now?

December 2014
Jersey
Litigation, Insolvency & Restructuring
Contact: Katie Hooper

Mourant Ozannes and South Square Chambers hosted their latest joint Litigation Forum in London on 11 September 2014.

Client contacts in the age of social media

December 2014
Jersey
Employment, Financial Services & Regulatory, Litigation
Contact: Carla Benest

The Royal Court in Jersey has recently delivered a landmark judgment in which it was held that a businesses' client contact information, stored on a database such as Microsoft Outlook is protected by laws of confidentiality and copyright, even if a client's contact details are readily available on the internet or social media sites; however, the Court held that the same protection could not extend to an employee's LinkedIn account, even though that account was a premium account paid for by the business and accessed via a business email.

Recent Privy Council Guidance on Anti Suit Injunctions in the Context of Insolvency Proceedings

December 2014
BVI
Litigation, Insolvency & Restructuring
Contact: Shaun Folpp

In Stichting Shell Pensioenfonds (the Appellant) v Krys and another (the Respondents), the Privy Council considered the question of whether, when a company is being wound up in the jurisdiction where it is incorporated, an anti-suit injunction should be issued to prevent a creditor or member from pursuing proceedings in another jurisdiction which are calculated to give them an unjustifiable priority.

Breach of Duty by Director of a Cayman Fund - The Path to Investor Relief in the Cayman Islands vs New York

December 2014
Cayman Islands
Litigation, Insolvency & Restructuring
Contact: Hector Robinson

Where the circumstances exist for a shareholders' winding up, liquidation provides the most complete path to recovery of compensation for the fund, and if solvent, its investors, for the breaches of duties owed to it by its directors and service providers. Winding up a fund is, however, not always seen as a viable option. This article examines the path to investor relief under the laws of the Cayman Islands and New York.

Judicial Review: The Importance of Being Prompt

December 2014
Guernsey
Corporate, Litigation
Contact: Natasha Newell

The recent case of the Guernsey Court of Appeal in Helen Litchfield v the Director of Environmental Health and Pollution Prevention provides guidance on the procedure to be adopted in judicial review cases in Guernsey.

To Intervene or Not to Intervene: Guernsey Court of Appeal Confirms the Applicable Test

December 2014
Guernsey
Litigation, International Trusts & Private Client
Contact: Andrew Peedom

On 11 September 2014 the Guernsey Court of Appeal affirmed the Royal Court judgment which outlined the test to be applied in determining whether a person should be added as a party to existing proceedings.

Case Update: Access to Registers of Members: A Place for Pelling

December 2014
Guernsey
Corporate, Litigation, International Trusts & Private Client
Contact: Sally French

In Burry v Knight Limited & Another v Knight [2014] the English Court of Appeal held that pursuant to Section 117 of the UK Companies Act 2006 access to the register of members did not have to be given if one of the purposes of the request was not a proper one. This article discusses the judgment and its implications for Guernsey.

Consultation on a new Guernsey Insolvency Law

December 2014
Guernsey
Litigation, Insolvency & Restructuring
Contact: Abel Lyall

The Guernsey Commerce and Employment Department has issued a Consultation Paper seeking proposals for the reform of Guernsey's personal and corporate insolvency laws.

Jersey Pensions Reform "Simplification, modernisation and consistency"

December 2014
Jersey
Employment, International Trusts & Private Client

Changes to The Income Tax (Jersey) Law 1961 will simplify the Jersey tax rules which apply to pension schemes from 1 January 2015.

Financial Services & Regulatory Winter Update 2014

December 2014
Jersey
Financial Services & Regulatory, Litigation

In our last Update of 2014 we consider recent Jersey cases, the forthcoming introduction of civil penalties and the Channel Islands Financial Services Ombudsman, as well as thinking about JFSC on-site examinations.

Suspicious? Be careful who you tell! A summary of recent changes to the 'tipping-off' offence under Jersey law

December 2014
Jersey
Financial Services & Regulatory

This article summarises the recent changes to the Jersey 'tipping off' offence under the Proceeds of Crime Law.

The Limited Partnerships (Guernsey) Law, 1995, as amended

November 2014
Guernsey
Corporate

A summary of the Limited Partnership (Guernsey) Law, 1995 as amended.

New Managed Accounts Exemption for Jersey Hedge Fund Managers

November 2014
Jersey
Funds

A new exemption from the Financial Services (Jersey) Law 1998 (the FS Law) has been introduced for regulated hedge fund managers who want to operate managed accounts for their non-fund clients alongside their fund clients. Under, this exemption, fund managers may offer discretionary investment management services to certain 'qualifying segregated managed accounts' without needing an additional 'investment business' licence under the FS Law.

Interim Relief in Aid of Foreign Proceedings

November 2014
Cayman Islands
Litigation, Insolvency & Restructuring

The Grand Court (Amendment) Law 2014 introduces much anticipated legislative clarification of the law providing for interim relief in aid of foreign proceedings.

Cayman Court Clarifies the Law on Claw-Back Claims - RMF Market Neutral Strategies (Master) Limited v DD Growth Premium 2X Fund (in official liquidation)

November 2014
Cayman Islands
Litigation, Insolvency & Restructuring

A recent Cayman judgment marks another set back for attempted claw-back claims by liquidators of insolvent Cayman funds against redeemed investors. 

The Court has considered section 37(6) of the Companies Law, which renders certain redemption payments unlawful when made by insolvent companies.  It has determined that section 37(6) does not apply to payments out of share premium.  Most Cayman funds normally operate with low nominal capital and high share premium.  Therefore, this decision significantly reduces the number of payments made by Cayman funds that could be rendered unlawful by this section.

Guernsey Foundations for Charitable Purposes

October 2014
Guernsey
International Trusts & Private Client

This briefing sets out some of the key advantages to using a Guernsey foundation for charitable purposes, and some of the unique aspects of Guernsey law.

Jersey Cell Companies

October 2014
Jersey
Corporate
Contact: James Hill
This briefing sets out the main features of Jersey cell companies and highlights the benefits offered by this highly flexible type of company.

The straw that broke the Employer's back: Can Employers rely on the Last Straw Doctrine

October 2014
Jersey, Guernsey
Employment
Contact: Jessica Roland

The 'last straw doctrine' is a well-known employment law concept normally associated with employee claims in constructive dismissal ie "I had no choice but to resign" arguments. However, in the recent case of Kearns v Glencore UK Limited [2013] EWHC 3697 (QB), the High Court held that the doctrine was equally applicable to employers. This is a landmark ruling and, theoretically, now puts employers and employees on an equal footing.  

Jersey's New Charities Law

October 2014
Jersey
International Trusts & Private Client

On 18 July 2014, the States of Jersey passed the Charities (Jersey) Law 201* (the Law). It will, after it has received Privy Council consent and been registered by the Royal Court of Jersey, be a quantum leap forward in the development and clarification of many aspects of the law relating to charities and their regulation in Jersey. Some aspects of the Law will also touch upon foreign charities raising funds in Jersey. In this briefing, we provide a round-up of the key features of the new law.

Financial Services & Regulatory Autumn Update 2014

October 2014
Jersey
Financial Services & Regulatory, Litigation

In this Update, we look at some valuable lessons learned for all financial services businesses from recent JFSC examinations and investigations, as well as amendments to the Companies (Jersey) Law.

A comparison of limitation/prescription periods in the BVI, the Cayman Islands, Guernsey and Jersey

September 2014
Jersey, Guernsey, Cayman Islands, BVI
Litigation, Property, International Trusts & Private Client

A comparison of the applicable limitation/prescription periods in the BVI, the Cayman Islands, Guernsey and Jersey.

The Taxman Cometh: International Cooperation in Tax Affairs

September 2014
BVI
Banking & Finance, Financial Services & Regulatory, International Trusts & Private Client
Contact: Eleanor Morgan

A consideration of tax information exchange agreements (TIEAs) in the BVI and information that can be requested thereunder.

Employee post-termination restrictive covenants: enforceability and enforcement

September 2014
Guernsey
Employment, Litigation
Contact: Jessica Roland

A consideration of the difficulties of enforceability of employee post-termination restrictive covenants and the enforcement of valid restrictive covenants, with a focus on recent case law.

Remuneration of Voluntary Liquidators where the Company subsequently goes into Insolvent Liquidation

September 2014
BVI
Insolvency & Restructuring
Contact: Eleanor Morgan

A review of recent BVI case law concerning the approach to be adopted in fixing the remuneration of voluntary liquidators where a company enters insolvent liquidation. 

Disclosure of Information by Beneficiaries to Trustees in Guernsey

September 2014
Guernsey
Litigation, International Trusts & Private Client

A review of a recent Guernsey Court of Appeal case which confirmed that the Guernsey Royal Court has the power to require beneficiaries to provide information to trustees under section 69 of the Trusts (Guernsey) Law, 2007.

Dealing with Foreign Revenue Authorities

September 2014
Guernsey
Banking & Finance, Financial Services & Regulatory, Litigation, International Trusts & Private Client

Guidance for those receiving requests for confidential information from authorities which are bypassing recognised TIEAs and seeking to engage directly with offshore structures.

Administration Procedure in Guernsey

September 2014
Guernsey
Litigation, Insolvency & Restructuring
Contact: Abel Lyall

A consideration of a recent Guernsey judgment in respect of an Administration Order, pursuant to the administration provisions of the Companies (Guernsey) Law, 2008, which provides insight as to how administration applications are treated by the Guernsey Courts.

Enforcement of Security and Marshalling

September 2014
Cayman Islands
Litigation, Insolvency & Restructuring

A discussion about the application of the doctrine of marshalling, a form of equitable relief based on the principle that a creditor who has recourse to a number of sources to satisfy his debt should not disadvantage another creditor who only has access to one of those sources, and its application in commercial situations.

Recent cases on mistake in the context of the creation and validity of Trusts

September 2014
Jersey
Litigation, International Trusts & Private Client
Contact: Bruce Lincoln

A review of Jersey case law in relation to mistaken dispositions of property to a trust, and when these may be set aside as invalid, with a focus on the current state of the law and appropriate remedies.

Tantular v AG: Can a Confiscation Order bite on the Trust Assets of a Discretionary Trust?

September 2014
Jersey
Litigation, International Trusts & Private Client
Contact: Mathew Cook

A review of recent case law in Jersey concerning whether or not a confiscation order made against a criminal and sought to be enforced from another jurisdiction could be granted over the assets of a discretionary trust on the grounds that the offender is a beneficiary.

R2R: The mysterious case of the unit trust

September 2014
Jersey
Financial Services & Regulatory, Litigation, Funds, International Trusts & Private Client

The Royal Court of Jersey considered in this case the nature of the role of a trustee and manager of a unit trust, together with the duties and obligations on each and the potential liability from successor trustees and managers.

V (as Administratrix of the Estate of A) v The Minister for Health and Social Services

September 2014
Jersey
Litigation
Contact:

In this case the Royal Court of Jersey concluded that it has power under its inherent jurisdiction to sanction a compromised settlement of litigation reached by the Plaintiff, on behalf of a minor, and provided helpful guidelines in relation to what the Court would expect to see to enable the Court to sanction a settlement on behalf of a child living in Jersey.

Private Trust Companies in the Cayman Islands

September 2014
Cayman Islands
International Trusts & Private Client
Contact: Robert Mack
A private trust company (PTC) is a privately owned corporate trustee whose sole purpose is to act as trustee to a trust or group of "connected" trusts (as defined below). The PTC has proved to be a particularly attractive structure for wealthy families who are for example, sensitive to issues of confidentiality, or who wish to retain some control or influence over the administration of the trust assets which may include shares in the family company. PTC's can also be used in a commercial or philanthropic context.

Enforcing security over Guernsey real property

August 2014
Guernsey
Insolvency & Restructuring, Property
Contact: Sandra Duerden

In Guernsey, proceedings to enforce a general bond, judgment debt or other security registered against a property are known as Saisie and typically result in an order vesting all real property owned by the debtor into the creditor.

Getting It Right: How to Make a Successful Application for the Appointment of Provisional Liquidators

July 2014
Cayman Islands, BVI
Litigation, Insolvency & Restructuring

In this recent High Court case, Norris J clearly sets out the principles to be considered by the Court when deciding an application for the appointment of provisional liquidators, including the specific considerations which will apply when such applications are made without notice.

Tantular -v- AG: Royal Court in Jersey provides clarification as to the impact of saisies judiciaires on discretionary trusts

July 2014
Jersey
Litigation, International Trusts & Private Client

The Royal Court in Jersey has recently determined that a saisie judiciaire may not be granted over the assets of a discretionary trust merely on the grounds that the offender (or suspected offender, as the case may be) is a beneficiary. Whilst the Court acknowledged that there were some instances in which a saisie judiciaire would have an impact on a trust, in Tantular -v- AG [2014] JRC128, the Court held that a saisie judiciaire which froze an entire Trust, to the detriment of the other, innocent beneficiaries, would be both prejudicial and disproportionate. The Court also stressed that a beneficiary's interest in a trust and corresponding right to trust property is no more than a mere right to be considered as a recipient of benefit.

Private Equity Funds Made Easier in the Cayman Islands (Revisions to the Exempted Limited Partnerships Law)

July 2014
Cayman Islands
Banking & Finance, Corporate, Financial Services & Regulatory, Funds

Private equity funds are set to benefit from updates to the Cayman Islands Exempted Limited Partnership Law. The Cayman Islands has once again shown itself to be an innovative and responsive jurisdiction in terms of providing user-friendly and practical legislation. The Exempted Limited Partnership Law, 2014 will come as a welcome relief to an industry post-global financial crisis otherwise suffering from a severe case of "regulatory fatigue".

Cayman Islands Revisions to the Exempted Limited Partnership Law, 2014

July 2014
Cayman Islands
Banking & Finance, Corporate, Financial Services & Regulatory, Funds

A long-anticipated overhaul of the Cayman Islands Exempted Limited Partnership Law was enacted by the Cayman Islands Government on 2 July 2014. Changes have been introduced to simplify, clarify and add flexibility to the establishment and ongoing operation of Cayman Islands exempted limited partnerships.