This update provides an overview of the provisions relevant to the migration of companies into and out of Guernsey under the Companies (Guernsey) Law 2008 (as amended). It provides only a summary of the main legal and general principles and it is not intended to be comprehensive in scope.
Under the Companies Law, a formal application to migrate is made to the Registrar of Companies. However, where the overseas company intends to be, or is already equivalent to, a 'supervised company' – that is, a company which requires regulation by the Guernsey Financial Services Commission – written consent from the commission must be obtained.
Procedure for migrations into Guernsey
Under the Companies Law, an overseas company migrating into Guernsey must, among other things:
- provide evidence as to certain factual information about the company;
- obtain the consent of its members; and
- provide a director's declaration of compliance.
Satisfactory evidence (usually in the form of a foreign law legal opinion) must be provided to the registrar to demonstrate that on the date of registration in Guernsey, the company will cease to be incorporated and registered under the law of the foreign jurisdiction from where it is migrating. A company cannot migrate into Guernsey if it does not pass a statutory solvency test or if it is in any insolvent process (eg, administration).
All formal applications to migrate into Guernsey must be made to the registrar via a corporate service provider. On receipt of the requisite application, the registrar will register the memorandum and articles of incorporation in the Register of Companies, issue a certificate of registration and allocate a registration number to the company.
Under the Companies Law, a formal application to migrate is made to the registrar. However, where the Guernsey company is a supervised company, written consent from the commission must be obtained.
The Companies Law provides that where the Guernsey company is an incorporated cell company, it cannot be removed from the register unless all of its incorporated cells are also removed. Similarly, an incorporated cell cannot be removed from the register unless its incorporated cell company is also removed.
Procedure for migrations out of Guernsey
Under the Companies Law, a migrating company must, among other things:
- pass a special resolution;
- notify its creditors;
- obtain a letter of no objection from Her Majesty's Procureur and the Administrator of Income Tax; and
- provide a director's declaration of compliance.
Satisfactory evidence (usually in the form of a foreign law legal opinion) must be provided to the registrar to demonstrate that on the date on which the company's name is removed from the register, it will be incorporated under the law of the foreign jurisdiction to which it is migrating. A company cannot migrate if it does not pass a statutory solvency test or if it is in any insolvent process (eg, administration).
All formal applications to migrate out of Guernsey must be made directly to the registrar via a corporate service provider. On receipt of the requisite application by the registrar, notice of the proposal will be given in the manner and for such period as the registrar sees fit. The company's name will be removed from the register no less than 28 days after such notice.
For further information on this topic please contact Marcus Leese, Bryon Rees, William Simpson or Frances Watson at Ogier by telephone (+44 1481 721 672) or email ([email protected], [email protected], [email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.
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