Ogier updates

Scope of powers for trustee in bankruptcy where concurrent domestic insolvency proceedings exist
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • December 07 2017

The recognition of the powers of an English trustee in bankruptcy in Guernsey is generally pursued either by way of a letter of request issued by the foreign court or an application via common or customary law. A recent decision examines the position – not previously encountered in Guernsey – of an application for recognition under common law in a situation where there were already désastre proceedings in Guernsey.

Providence: Royal Court approves litigation funding agreement
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • November 16 2017

The Royal Court recently considered, for the first time in open court, the issue of whether an agreement with a third party to fund litigation would be void as a matter of Guernsey law on the basis that it was champertous. The lieutenant bailiff's judgment provides valuable guidance as to the contractual provisions that should be considered when third-party funding takes place.

Are you too interested in former employees' post-termination restrictions?
Ogier
  • Private Client & Offshore Services
  • Jersey
  • November 09 2017

Lawyers are often asked to review employment contracts, including post-termination restrictions. It is increasingly common to see covenants that either restrict the former employee from holding any interest in a competing business or limit the amount of shareholding that they can have. If a contract uses this language, it could lead to the entire restrictive covenant being unenforceable.

Reinstatement of a company
Ogier
  • Private Client & Offshore Services
  • Jersey
  • November 02 2017

The procedure governing the reinstatement of a dissolved Jersey limited company is contained in the Companies (Jersey) Law 1991. Where a company has been dissolved or, most commonly, struck off the register by the registrar of companies after failing to file an annual return, the Royal Court has the power to declare the dissolution void and order the reinstatement of the company.

Listed funds: a Q&A
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • November 02 2017

An 'investment fund' refers to any vehicle which allows investors to pool their money for investment by an investment manager in accordance with a defined investment policy. A 'listed' fund is an investment fund which has been admitted to trading and/or listing on a stock exchange. There are many reasons to establish a fund, including exposure to assets not otherwise available to single investors.

Setting aside subsequent transfers to trusts – statutory law of mistake in operation
Ogier
  • Private Client & Offshore Services
  • Jersey
  • October 26 2017

The enactment of the Trust (Amendment 6) (Jersey) Law 2013 saw Jersey introduce a statutory basis for relief to be granted for mistake in the form of Article 47E of the Trusts (Jersey) Law 1984. Although there have been a number of Royal Court decisions in this area since then, a recent decision represents the first time that the court has granted relief for mistake squarely within Article 47E.

Guernsey Register of Beneficial Ownership: what you need to know
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • October 26 2017

The Beneficial Ownership of Legal Persons (Guernsey) Law 2017 came into force on August 15 2017. From that date, the incorporation or creation of any Guernsey entity requires details of its beneficial owner to be submitted to the Guernsey registrar of beneficial ownership of legal persons. Existing Guernsey entities must do the same by October 31 2017, with the exception of companies, which have until February 2018.

Trust variation to benefit children of same-sex and unmarried parents – facts, considerations and implications
Ogier
  • Private Client & Offshore Services
  • Jersey
  • October 19 2017

A recent Jersey Royal Court decision provides welcome guidance with respect to Article 47 applications to vary a trust. In particular, the court considered the interplay between a settlor's wishes and the court's assessment of 'benefit', a point which it had never previously considered. The decision also examines Article 47 applications alongside public policy considerations affecting a modern society.

Ongoing responsibilities under Register of Beneficial Ownership and Control
Ogier
  • Private Client & Offshore Services
  • Jersey
  • October 19 2017

The deadline recently passed for legal entities to file details of beneficial ownership and control with Jersey's Companies Registry. Under the revised rules, even if there had been no change to the relevant information since incorporation, legal entities were still required to file the relevant form. While the deadline for the initial disclosure has passed, there are ongoing compliance obligations for affected entities to keep in mind.

CICRA issue new merger control guidance
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • September 28 2017

The Channel Islands Competition and Regulatory Authorities (CICRA) have issued new guidance on the process for obtaining their approval of a notifiable merger or acquisition in the Channel Islands. The guidance implements some procedural aspects of the recommendations for the islands' merger control regime overhaul which CICRA published in September 2016.

Tax residency of Jersey companies – reminder and update
Ogier
  • Private Client & Offshore Services
  • Jersey
  • September 21 2017

A recent UK tax case involving three Jersey companies sounds a note of caution with regard to interaction between offshore subsidiaries and UK parent companies and the role of directors. The case serves as a timely reminder that Jersey resident directors cannot provide a purely 'administrative' service for the benefit of the parent owner.

Development in use and role of protectors
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • August 03 2017

A protector – whether it is an individual, a corporate or a committee – can be highly valuable in assisting with the administration of a trust. Recent Royal Court judgments have clarified the position of protectors in Guernsey trusts law – in particular, the background and recent developments to the roles of protectors, as well as the thought required in appointing a suitable protector.

FURBS and firewalls
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • July 27 2017

A recent Royal Court case involved a funded unapproved retirement benefits scheme (FURBS) – a type of Guernsey trust which holds assets of significant value for the benefit of the sole member of the FURBS and, if he or she dies, for the benefit of his or her spouse. In this case, the husband and wife were going through a divorce in England and the wife sought to join the trustee into the family proceedings for the purposes of disclosure – that is, she wanted to know what assets were vested in the trust.

Ultra-high-net-worth clients and the call for bespoke structuring
Ogier
  • Private Client & Offshore Services
  • Jersey
  • July 06 2017

According to a 2016 report, 212,615 individuals in the world hold a total of over $30 trillion in wealth. By 2020 the number of ultra-high-net-worth individuals is anticipated to reach 318,000 with compound annual growth of 9%. It seems clear that clients will continue to want structuring options in stable and established jurisdictions. This means that Jersey remains an attractive proposition for Middle East and Far East ultra-high-net-worth individuals.

Novel use of provisional liquidator in Royal Court
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • July 06 2017

A recent Royal Court judgment is important as it appears to be the first time that a provisional liquidator has been appointed by the court over a solvent Guernsey company. This case adds helpful guidance to the Guernsey insolvency regime as it demonstrates that the Royal Court adopts a pragmatic and flexible approach when exercising its discretion, particularly where the parties face unusual circumstances.

Infrastructure funds can sometimes create a catch-22
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • June 29 2017

From a structuring perspective, infrastructure funds are most frequently established as either a limited partnership or a limited company. Partnerships are the familiar vehicle for private funds, whereas companies will be used for listed vehicles. The ultimate structure of a fund will depend on where the assets are located, where the investors are based and how investment will be structured.

Practice and trends in restructuring and insolvency law
Ogier
  • Private Client & Offshore Services
  • Jersey
  • May 25 2017

Jersey has a familiar range of legal processes and remedies for the restructuring and insolvency of corporations. While certain reforms are often discussed, Jersey seeks to position itself as a jurisdiction with a system in which creditors can have confidence. Further, the Royal Court has been willing to engage in cross-border insolvencies, whether by granting recognition to overseas office holders or seeking assistance from other jurisdictions.

Differences between Jersey and English processes on probate and wills of real estate
Ogier
  • Private Client & Offshore Services
  • Jersey
  • May 25 2017

Jersey's law of inheritance and probate differs significantly from that of England and creates responsibilities for the executors and administrators of those who leave movable assets in Jersey on their death. This affects inheritance and probate issues, and non-Jersey practitioners can minimise complexities and delays by taking advice and guidance on Jersey law at an early stage.

Strategic focus on high-quality regulation continues to yield dividends
Ogier
  • Private Client & Offshore Services
  • Jersey
  • May 18 2017

While the Panama Papers led to headlines about the offshore world, the work that has been done to carve out Jersey as a financial services centre that bases its reputation and 'sales pitch' on the strength and quality of its regulation is continuing to pay off. That work is going to continue and themes for 2017 include work for international families looking for bespoke structures to facilitate succession planning, asset protection and wealth structuring.

Jersey real estate – an investment that doesn't go out of fashion
Ogier
  • Private Client & Offshore Services
  • Jersey
  • May 18 2017

Investment into Jersey property and, in particular, into office developments in Saint Helier, has continued to be popular. This points to an appetite for high-quality, large-scale investment properties backed by solid covenants. With the market steadily improving, the island is looking forward to increased investment activity across the investment property sector. Maintaining an attractive investment market in the context of the relevant tax principles' impact on investment will be a vital part of this.

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