Interest in the use of Guernsey companies for listing on foreign stock exchanges continues to rise over recent years, particularly in respect of listings on the London Stock Exchange.
Guernsey is set to update and modernise its insolvency laws. This briefing considers the key amendments which are to be implemented and the importance of these changes to Guernsey's insolvency laws.
A short discussion of common law and statutory recognition of foreign office holders in foreign insolvency proceedings in the BVI.
What is Vacant Possession? When is it relevant? How do you satisfy the requirement, and what are the consequences if you don't?
Vacant possession is a term used to describe the condition of property, usually when it is sold or at the end of the term of a lease. As with many areas of law in Guernsey, there is no local legislation or case law which deals with the matter and so we turn to English common law for interpretative assistance.
Welcome to our first Regulatory Law Update for the Cayman Islands for 2017. The aim of the update is to focus on legal and regulatory developments which affect financial institutions. We hope you find the update valuable.
The Cayman Islands' government has recently approved legislation to establish a beneficial ownership register for companies. The register will not be publicly accessible; it may only be inspected by the relevant authorities. This article sets out what this means for Cayman companies and what steps they should take to avoid being penalised for non-compliance.
A look at who is the Client for the purposes of Legal Privilege in Guernsey following the decision in The RBS Rights Issue Litigation .
The Royal Court of Guernsey has refused to sanction a scheme of arrangement that sought to impose a compulsory buy-back of shares on minority shareholders.
A recent decision of the Master of the Royal Court has considered the obligation of the Jersey Financial Services Commission (JFSC), and administrative bodies generally, to give reasons for their decision.
In Shrimpton, the Court of Appeal considered and upheld its earlier decision in Garkusha that overseas lawyers' fees are not generally recoverable in the BVI. It did so on the basis that the Garkusha decision was not decided per incuriam, because that decision could have been reached on the basis of section 18(3) of the LPA (which was and remains in force) alone.
The English court's recent approval of the entry by Rolls-Royce and the Serious Fraud Office into a deferred prosecution agreement demonstrates why co-operation with the regulator is so important. It is a salient reminder to Cayman's regulated entities that those sections of the Monetary Authority's enforcement manual, which address co-operation with the regulator, should not be taken lightly.
For more information, please read our briefing note.
Find out more about our Guernsey Planning Advisor, James Le Gallez, in this article first published in the Guernsey Press, Friday 3 March 2017.
Two recent unreported decisions of the Grand Court have given valuable guidance on how the Court will approach a number of pre-trial issues (including discovery and interim payments) which may arise between parties to a "fair value" determination pursuant to s.238 of the Companies Law.
This briefing is intended to provide an overview of Investment Funds in the British Virgin Islands.
An overview of the continuing obligations of a BVI investment business licensee.
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.
As with all well-regulated jurisdictions, the BVI regulates financial service activities like buying and selling investments, holding investments on behalf of others, managing investments and providing investment advice.
This briefing examines the activities that constitute investment business (the term for financial services business in the BVI), and the applicable exemptions available, under the Securities and Investment Business Act 2010.
Guernsey was the first jurisdiction to introduce the concept of a protected cell company (PCC) through the enactment of the Protected Cell Companies Ordinance, 1997. That Ordinance has however since been replaced by the Companies (Guernsey) Law, 2008 (the Companies Law) which has effectively modernised Guernsey company law with effect from 1 July 2008.
A recent decision of the Court of Appeal in the UK suggests that beneficiaries seeking trust information may be able to get around trust law restrictions by filing a data subject access request under data protection legislation. This is a significant development for trustees, however, its impact in Jersey and Guernsey may thankfully be limited as our data protection laws specifically recognise the applicable trust law rules limiting disclosure.
On 1 March 2017 the Jersey Financial Services Commission published the final text of its amended Outsourcing Policy, following an extensive consultation process in which funds and regulatory specialists from Mourant Ozannes were actively involved. The amended Outsourcing Policy will take effect from 1 June
2017 for new outsourcing arrangements. It will apply to all existing outsourcing arrangements from 1 June 2018.
Significant streamlining advantages announced for Jersey's successful Private Funds regimes
The Jersey Financial Services Commission (JFSC) and Government have announced the introduction of a single Jersey Private Fund (JPF) regime for funds offered to up to 50 professional investors. This will replace the Very Private Fund (VPF) and Private Placement Fund (PPF) regimes for new funds, but with key features largely matching those of the lighter-touch VPF regime.
Given the flexible and efficient approach adopted by the Guernsey Registry, along with attractive fees and personalised registration marks, Guernsey is fast becoming a popular destination for aircraft owners and lenders.
A recent decision of the Court of Appeal has provided helpful guidance on the ability to challenge a decision of the Director of Income Tax to issue a notice in response to a TIEA request, as well as the manner in which the Director should act when considering such a request.
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.
Partner Chris Harlowe discusses whether trust assets can be forces to meet non-trust costs and expenses, in this article first published by Westlaw Journal, January 2017.
Limited liability partnerships combine the flexible features of traditional general partnerships with the benefit of limited liability for its members akin to that enjoyed by the shareholders of a company. This Briefing sets out the key features of a Guernsey limited liability partnership.
The Jersey Royal Court has reviewed relevant bankruptcy law and has declared a company and its sole shareholder directed en désastre in spite of the fact that proceedings were commenced in Jersey. The Court found that the English proceedings had been commenced to subvert the Jersey bankruptcy procedure.
The Jersey Royal Court has heard a representation concerning the restoration of a company to the Register of Companies. The case was unusual because the applicant sought to restore the company in order to place it into a court supervised liquidation process, and it first had to overcome the fact that it was not a registered shareholder of the dissolved company and, therefore, appeared to lack standing to bring the application.
Reproduced with permission from Law Business Research Ltd. Getting the Deal Through: Private Client 2017, (published in November 2016; contributing editors: Anthony Thompson and Nicole Aubin-Parvu, Gowling WLG LLP) For further information please visit
Following a revision to Chapter 7 of the Listing Rules of the Channel Islands Securities Exchange, it has now become easier to list the shares of a Jersey company that qualifies as a REIT for UK purposes. This note considers the benefits of using Jersey as a domicile for REIT vehicles.
The decision of the Eastern Caribbean Court of Appeal in Anjie Investments Limited v Cheng (Appeal No. BVIHCMAP2016/0003, 24 November 2016)serves as a useful reminder of the principles that will be applied by a British Virgin Islands (BVI) Court in exercising its discretion to stay proceedings on forum non conveniens grounds.
In Olive Group Capital Limited v Gavin Mark Mayhew the Court of Appeal upheld the BVI Court's decision that, when valuing a minority shareholding, a minority discount can be applied, but that it is a matter for the valuation experts in each case as to whether such a discount should be applied. The Court has no jurisdiction to interfere with such a decision, absent fraud or collusion.
This article analyses the unusual case of PT Ventures v Vidatel, which involved a contempt application brought for non-compliance with a freezing order and related disclosure orders. It provides a helpful reminder of the principals underpinning contempt applications, as well as demonstrating how not to deal with disclosure orders.
This article seeks to give an overview of the factors and considerations of the BVI court in determining forum challenges in circumstances where the court has in personam jurisdiction over a defendant company and thus prima facie jurisdiction to hear and determine the dispute.
This article first appeared in the November 2016 edition of the South Square Digest. The article considers the priority in which the assets in an insolvent estate are to be distributed to various claimants of the fund. The decision of the Cayman Islands Court of Appeal in In re Herald Fund SPC is discussed in which consideration was given to the priority enjoyed by the claims of redeemed shareholders vis-a-vis "ordinary" or "outside" creditors and remaining shareholders.
This article discusses the cross-jurisdictional issues arising from an application to the Royal Court by liquidators for permission to disclose documentation that had been disclosed to them in Guernsey in related English proceedings and how the implied disclosure undertakings arising in Guernsey fettered their ability to comply with the disclosure orders in the English proceedings.
With effect from 1 January 2017, COBO Consents are changing to facilitate the update and maintenance of the JFSC's register of beneficial owners and controllers of Jersey entities. COBO Consents granted to new and existing entities will contain some new conditions to require entities to notify the JFSC of beneficial owner and controller information.
Is UK private equity investment in line for a Brexit boost? This article, first published in Business Brief magazine, explores the results of our global research project into the private equity industry, with a special focus on the impact of Brexit on the Channel Island funds industry.
In this update we look at a recent decision of the Jersey court in which it exercised its jurisdiction to order the winding up of a Jersey company which had been operating in the financial services industry on "just and equitable" grounds under Article 55 of the Companies (Jersey) Law 1991.
The confidentiality of Suspicious Activity Reports (SAR) is a key area of attention. This briefing analyses the current situation in Guernsey on disclosing the identity of someone who submits an internal SAR to its Money Laundering Reporting Officer.
This article considers whether post-contractual conduct can be used as an aid to contractual interpretation as a matter of Guernsey law.
A legal guide on the registration of business jet aircraft in the Cayman Islands.
The Cayman Islands Court of Appeal has recently confirmed that, matters relating to the governance, control and management of a strata corporation registered under the Strata Titles Registration Law (the STRL), are within the powers of the proprietors of the strata corporation through by-laws adopted in accordance with the STRL. As such, where a developer controls all the voting rights of the strata corporation, there is no limit to the power of the developer to adopt by-laws which confer enhanced voting rights at general meetings, and control of the executive committee, provided that such by-laws are adopted by a resolution passed with the requisite majority in accordance with the STRL, and the amended by-laws do not otherwise infringe the STRL.
We have seen an increase in approved Jersey schemes undertaking buy-in and buyout exercises over the last year as trustees and employers look to new ways to de-risk their defined benefit pension arrangements.
Both options transfer risk from schemes to insurers by insuring some or all of the benefits in the scheme. However, the approach which is appropriate for a scheme depends on a number of factors and will be led by what the trustees and employer wish to achieve.
This note sets out a brief overview of buy-ins and buyouts and how the trustees and employers of approved Jersey schemes may wish to proceed.
On 17 October 2016, the Royal Court of Jersey handed down a judgment in proceedings arising out of a long standing deadlock between the members of the board of directors of a Jersey company, Galasys plc (the "Company").
This judgment considers the power of shareholders to intervene in management decisions which would ordinarily rest in the hands of directors
One of the main reasons the BVI remains a popular place to establish an asset holding company is that its insolvency law is creditor friendly and modelled on the English Insolvency Act 1986. Consequently, lenders around the world are comfortable lending money to BVI companies.
In this briefing, we examine the things a security taker (or secured party) needs to know about receivership under BVI law.
With effect from 6 April 2017, an individual with a non UK domicile of origin will be deemed domiciled in the UK for all tax purposes once UK resident for 15 out of the previous 20 years. These and other proposed changes to the tax treatment of UK residential property may require the restructuring of offshore structures but may also lead to the establishment of new trusts. While tax will be the driver for restructurings, there will often be trust and company law issues to consider. It is important to focus upon these early on to ensure that the tax planning is not derailed. This briefing summarises the main changes and gives examples of the typical offshore legal issues.
Following on the heels of the manager led product introduced in May 2016, the Guernsey Financial Services Commission (the GFSC) unveiled its new Private Investment Fund regime in November. The GFSC considers a private fund to be one where there is a close relationship between investors and management, and the new regime is helpful for promoters aiming to launch closely held open- or closed-ended funds, as it offers a quick and efficient route to launch.
As part of the Jersey pension reforms which came into effect on 1 January 2015, a more flexible pension transfer process for members of approved Jersey schemes was introduced. Subject to certain conditions, it is possible to transfer a pension from an approved Jersey scheme to a non-Jersey pension scheme and vice versa. This note considers the position of transfers from approved Jersey schemes to overseas arrangements.
Where a BVI company has been put into insolvent liquidation, the primary objective of the liquidator will be to maximise the return to the company's unsecured creditors.
In this briefing, we examine the possible grounds on which a liquidator may try to achieve this objective by challenging a transaction entered into by the company or seeking a contribution to the company's assets from a director, shareholder or other person.
BVI Commercial Court Confirms the Availability of Norwich Pharmacal Relief Post-Judgment in Aid of Enforcement
It has, for many years, been generally accepted in the British Virgin Islands (and elsewhere throughout the Eastern Caribbean), following the English Court of Appeal decision in Mercantile Group (Europe) AG v Aiyela  3 WLR 1116, that the Norwich Pharmacal jurisdiction could be invoked to locate assets against which a judgment could be enforced.
However, the case of NML Capital Ltd v Chapman Freeborn Holdings Ltd [2O13] EWCA Civ 589 cast doubt upon the availability of such a jurisdiction. In UVW v XYZ (Claim No. BVI HC (COM) 108 of 2016, 27 October 2016), the BVI Commercial Court has now resolved that doubt and confirmed the availability of such a jurisdiction.
Mourant Ozannes Partner Justin Harvey-Hills and Counsel Mathew Cook, who are highly regarded as Jersey's leading experts on tax-related litigation, examine the implications of the Court of Appeal's judgment on tax information exchange agreement (TIEA) requests in the Larsen case.
The Court of Appeal has recently considered the interaction between the employer's reason for dismissal and the importance of an employer acting within the band of reasonable responses.
The Guernsey Tribunal highlights the importance of effective and unambiguous communication in effecting fair dismissals
Two recent decisions by Guernsey's Employment Tribunal illustrate the importance of clear communication when handling employee dismissals. In the first case the respondent successfully defended an unfair dismissal claim by a trainee plumber who was dismissed after he received a second driving ban for speeding just three months after his first ban and after being specifically warned that any repeat offence would result in the termination of his employment. The applicant, a trainee plumber, argued that the dismissal had been unfair because, amongst other things, he had not been given a chance to appeal either the disciplinary warnings previously given to him or the decision to dismiss him.
Guernsey's Employment Tribunal has provided useful guidance for employers when dealing mwith the restructure of their organisations and managing redundancies. The Tribunal has reinforced that an employer needs to show not only that there was a genuine redundancy, but that the process applied to the dismissal was reasonable. The claim was brought by a used car sales manager who was dismissed on the basis of redundancy following a restructure of the
It is axiomatic that in order for there to be an unfair dismissal, there must first have been a dismissal. In order for there to have been a valid dismissal, the employee in question must have been made "unequivocally" aware of the employer's intention to dismiss. In A Sandle v Adecco UK Limited (UK EAT/ 0028/16/JOJ), this is exactly what the Claimant failed to prove.
This issue hit the headlines recently when a UK employment tribunal found that EasyJet had discriminated against two flight attendants in relation to breastfeeding requests. Under UK, Guernsey and Jersey legislation, it is unlawful for an employer to discriminate against an employee on the grounds of sex. Discrimination can either be direct where the employee is treated less favourably on the grounds of sex, or indirect where the employer introduces a practice, criterion or policy which adversely affects one sex more than the other. Direct sex discrimination is always unlawful, and indirect sex discrimination is unlawful unless it can be justified as a proportionate means of meeting a legitimate aim.
The Jersey Employment and Discrimination Tribunal (JEDT) recently issued its first judgment where it considered the level of compensation which could be ordered under the Discrimination (Jersey) Law 2013 (the Discrimination Law), in particular, in relation to hurt and distress and the levels of apportionment between respondents.
The use of zero hours contracts in the Channel Islands continues to be popular despite the often negative attention that they can attract. As we reported on earlier this year, the States of Jersey's Health and Social Security Panel conducted a consultation on the use (and misuse) of such contracts in the Island. Whilst certain of the Panel's findings were positive in relation to the use and benefit of zero-hours arrangements in certain circumstances, it did highlight some failings in the use of zero hours contracts.
Both Jersey and Guernsey have recently announced increases to minimum wage. Determining an appropriate minimum wage remains a challenge for both Islands with many often critical that the agreed rates do not go far enough and some that they go too far.
The importance of a fair and thorough disciplinary process has once again been highlighted in the recent case of Mrs Samantha Price v Jersey Women’s Refuge. The applicant was employed as a Deputy Manager of the Jersey Women's Refuge. Following an external review of services, an investigation was carried out into the applicant's behaviour.
The Cayman Islands Court of Appeal has held that there was no jurisdiction to order Cayman liquidators to exercise their liquidation powers under sections 103 and 138 of the Companies Law and/or the common law to gather in information and documentation, for the purpose of collecting evidence for discovery in proceedings, through an application for a letter of request to obtain documents from foreign third parties.
One of the main reasons the BVI remains a popular place to establish an asset holding company is that its insolvency laws are creditor friendly and modelled on the English Insolvency Act 1986. Consequently, lenders around the world are comfortable lending money to BVI companies.
In this briefing, we examine the main things a creditor needs to know about liquidating an insolvent BVI company under the Insolvency Act 2003 and the Insolvency Rules 2005.
Clawback of Redemption Proceeds: Cayman Islands Court of Appeal Upholds Weavering Preference Claim (and clarifies a number of significant principles of insolvency law in the process)
The Cayman Islands Court of Appeal (CICA) has upheld the Grand Court's decision in Conway and Walker (as Joint Official Liquidators of Weavering Macro Fixed Income Fund Limited) v Skandinaviska Enskilda Banken AB (PUBL) (SEB)1 in which it held that redemption payments made shortly prior to the collapse of Weavering Macro Fixed Income Fund (Weavering or Fund) constituted preferences over the Fund's other creditors and must be repaid. In doing so, the CICA has clarified and widened the scope of a number of principles which will have a wide ranging affect across a number of aspects of Cayman Islands insolvency law, and not simply limited to preference claims - including the most fundamental principles: the definition of, and demonstrating, insolvency.
In an important unanimous decision adopting a modern, open and transparent approach in relation to claims for litigation privilege, the Cayman Islands Court of Appeal has overturned a first instance decision which had allowed a party to assert litigation privilege and refuse to give discovery of witness statements served in foreign legal proceedings on essentially the same matters as those in issue in the Cayman Islands proceedings.
The Arbitration (Guernsey) Law 2016 has now received Royal Assent following approval by the States of Guernsey earlier this year. It is intended that the Law will be registered on 14 November 2016. Once it is registered the new Law will come into force 28 days after the date of registration. The Law is based on the English Arbitration Act 1996 and is a welcome update, since it modernises the statutory framework for conducting arbitrations in Guernsey.
On 28 September South Square and Mourant Ozannes held their annual Litigation Forum in London. As usual, the event brought together key figures in financial litigation, insolvency and restructuring to analyse the key developments in those areas over the preceding year and consider what they might mean for the future.
In the matter of the C Trust Company Limited  JRC 144: Jersey Royal Court blesses momentous decisions of council member of five Jersey foundations
On 25 August 2016, the Royal Court of Jersey handed down a judgment in the matter of the Representation of the C Trust Company Limited  JRC 144 in which it confirmed, inter alia, the scope of the powers of a council member to amend, vary and/or delete certain terms of the regulations of five Jersey foundations.
In this briefing, we examine the main duties of a director of a BVI company that arise under common law, the BVI Business Companies Act 2004 and the company's memorandum and articles of association and the consequences of breaching those duties.
We also look at the main ways in which a director may be relieved from personal liability and practical steps a director can take to guard against personal liability.
Justin Harvey-Hills, Mathew Cook and Katie Phillips of Mourant Ozannes recently acted for the lender in Tygres Investments Limited and Ors v Jersey Home Loans Limited and Ors  JCA 173. The Court of Appeal considered how to apply the standard term found in loan agreements and in bonds that a lender has the contractual right to recover all costs of enforcement from the defaulting borrower.
The BVI continues to be a popular place in which to establish asset holding companies and joint venture companies due to its flexible corporate legislation and widely respected commercial court.
In this briefing we examine the main rights of a shareholder in a BVI company and the potential remedies available to a shareholder when things go wrong.
Established private equity (PE) managers setting out to raise new funds in 2015 and 2016 encountered some of the best conditions they had seen post-credit crunch. Fresh capital enabled such managers to hit or exceed their fundraising targets and generally raise capital more quickly, on average, than at any other time during the course of the past decade.
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.
The Guernsey Court of Appeal recently delivered judgment on appeals from a decision of the Royal Court, the upshot of which is that a claim seeking damages of £391million has been dismissed. It is understood to be the first occasion on which the Guernsey Courts have identified the principles to be applied in strike-out applications and claims for loss of a chance, which reflect those applied by the courts of England and Wales.
Recent market developments have seen an increased appetite for issuers of 'high yield' bonds to seek a listing of those securities on the Channel Islands Securities Exchange (the CISE). Mourant Ozannes has been at the forefront of discussions with the CISE to facilitate these listings in line with the expectations of market participants and we have now successfully advised a number of issuers pursuing listings. The purpose of this briefing is to set out the advantages of listing high yield bonds on the CISE and to summarise the legal and practical framework applicable to applications.
The Jersey Court has refused to issue a letter of request to the English High Court for the appointment of an English law administrator over a Jersey company.
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.
In Public of the Island of Jersey v The Jersey Electricity PLC  JCA 169) the Jersey Court of Appeal considered an attempt by a party to an arbitration to challenge the arbitration decision through Royal Court proceedings, despite an agreement that the arbitration was to be "final and without appeal".
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.
In this case, the Court of Appeal considered applications to stay debt enforcement proceedings in light of complaints being made to the Financial Ombudsman Service. The Court refused to do so, principally on the basis it considered the claims to the ombudsman to be either without merit, or unlikely to achieve the result sought by the complainant.
This article deals with two contrasting BVI decisions. In Garkusha, the Court of Appeal has called into question the law as to the recoverability of foreign lawyers' fees in costs assessments, because of the impact of the new Legal Profession Act 2015 (the Act).
In Gudavadze, the BVI Commercial Court, although dealing with costs incurred before the Act was brought into force, struck a conspicuously more enthusiastic note about the valuable role played by overseas lawyers in relation to BVI disputes.
Swiss Forfaiting Limited (the Fund) is an investment company incorporated and domiciled in the BVI. It issued Swiss proceedings against a forfaiting service provider based in Switzerland, SFC Swiss Forfaiting Company Ltd (SFC), (the Swiss Proceedings), alleging that SFC held monies on trust for it and sought to recover those monies.
Much has been written about the BVI's new arbitration regime, which provides a modern legislative framework for the conduct of arbitral proceedings within the BVI, and the recognition of foreign arbitral awards. This new regime does not, however, in any way derogate from BVI's reputation as being a leading offshore financial centre for the conduct of complex commercial litigation, with the Commercial Division of the High
Court being the venue for many of the largest and most complex offshore disputes over recent years.
Counsel Carla Benest discusses the changing demographic of the workplace in this article first published in Equality & Diversity, September 2016.
The Royal Court of Guernsey has reaffirmed the principle that it is only in exceptional circumstances that the Court will order the cross-examination of witnesses at the hearing of an application for summary judgment.
The UK's attitude to tax planning has hardened significantly as of late. Case law which might previously have protected individuals or entities taking advantage of rather more exotic tax planning has been superseded by statute. New civil sanctions and criminal offences are also proposed in relation to enabling offshore tax evasion and failure to prevent the facilitation of tax evasion. Offshore businesses should have robust procedures in place to mitigate their risk and, if in doubt, seek independent advice.
In two recent decisions, the Royal Court has considered applications for an extension of the time allowed to file a notice of appeal. In both cases the Court was invited to consider and follow a developing line of jurisprudence in England and Wales but declined to do so.
Mourant Ozannes has recently assisted the trustees of eight Guernsey law settlements in their successful joint application for the Court's blessing of their decisions to appoint the entire capital and income of each of the trusts to the Settlor. Six of the eight trusts were discretionary trusts, and the remaining two were interest in possession trusts under which the Settlor's children had a life interest. The trusts, taken together, held assets of very significant value. The application was brought under section 69 of the Trusts (Guernsey) Law, 2007 and under the second category of cases in Public Trustee v Cooper
Every so often, trustees based in Guernsey find themselves caught in the middle of a divorce dispute between one or more of the beneficiaries of the trust. A plethora of articles is available on the various issues that arise for a trustee in such circumstances, including on whether the trustee should submit to the jurisdiction of the foreign court where the divorcing beneficiaries live abroad. This article focuses on the effective variation of Guernsey trust instruments by the English Family Court and what steps a local trustee can consider taking to minimise the English's Court's reach over the trust.
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.
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.
The BVI Business Companies Act 2004 (the Act) allows a BVI company to continue its existence as a body corporate incorporated under the laws of a jurisdiction outside of the BVI (a foreign jurisdiction) in the manner provided for by the laws of the foreign jurisdiction. This process is sometimes referred to as a corporate migration, redomiciliation or transfer of place of incorporation. This briefing examines the continuation of a BVI company to a foreign jurisdiction under the Act.
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.
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.
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.
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.
Counsel, Georgina Cook, considers the rules relating to wildlife in the domestic environment, in this article first published in Home Life, September 2016.
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.
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.
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.
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.
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.
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.
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 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.
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.
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 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.
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.
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).
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.
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.
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.
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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 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.
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.
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.
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.
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.
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.
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
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.
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
Fund Managers should consider with care the legal duties they owe and how they may be properly discharged. This article addresses some recent judgments.
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.
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.
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.
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).
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.
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.
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.
This article was first published in Private Client Business and comprises recent guidance from the Jersey Court on a number of interesting trust issues.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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" (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  JRC050.
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
This briefing considers two recent BVI decisions, considering the availability of arbitration stays in winding up proceedings, under the Arbitration Act 2013.
On 18 January 2016 the Privy Council handed down judgment in Anzen Limited Anors v Hermes One Limited  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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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
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
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.
This briefing looks at the way in which foreign judgments can be enforced in the BVI.
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.
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'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.
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.
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.
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.
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
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.
Following the Royal Court's decision in Larsen & Volaw v Comptroller of Taxes  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
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
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.
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.
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,  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.
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 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.
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.
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.
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 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.
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).
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).
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.
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.
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 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 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.
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 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).
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
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
The briefing compares the laws of the BVI, Cayman Islands, Guernsey and Jersey in respect of limited partnerships.
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.
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.
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.
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) 
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.
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.
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 (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 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 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.
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.
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.
This guide contains a summary of the main requirements for the admission of quoted Eurobonds by private issuers to a primary listing on The International Securities Exchange (TISE).
Mourant Ozannes appeared recently In the matter of the P Trust and the R Trust  JRC 196. The case demonstrates the power of the Royal Court to declare invalid the exercise of powers by fiduciaries
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.
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.
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.
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.
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.
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.
Mourant Ozannes Intellectual Property Group advises clients on all aspects of IP, for large multi-national organisations to start-up companies and individuals.
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.
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.
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.
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.
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.
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 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.
External Confiscation Orders; Criminality to be judged at the time of application, not the time of the conduct itself
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.
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
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.
A comparison of solveny voluntary liquidations of companies in the BVI, Cayman Islands, Guernsey and Jersey with a foreign company.
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
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.
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).
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.
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).
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.
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.
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).
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.
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.
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.
This article was first published by Corporate Rescue & Insolvency in August 2015.
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.
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.
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
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.
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”.
Jeremy Wessels comments on the inherent jurisdiction of the Court to supervise the administration of trusts: R & RA Trusts for Private Client Business.
From 1 September 2015, employees in Jersey are entitled to maternity, parental and adoption leave. See our infographic for more.
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.
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 email@example.com
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.
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.
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.
This briefing gives a summary of the key features of an expert fund.
This briefing gives a summary of the key features of a listed fund.
This briefing gives a summary of the key features of an unregulated fund.
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.
From January 2012 a new streamlined regulatory authorisation process for the establishment of privately placed funds is available in Jersey.
This briefing gives a summary of the key features of a Jersey eligible investor fund.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
This guide compares certain Jersey real estate holding structures (Companies/JPUTs/LPs) and lists their respective key features.
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.
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.
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  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
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.
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.