In 2019 the Health Care Decisions Act was implemented in the Cayman Islands. This law allows individuals to determine their wishes surrounding medical care and treatment, including end-of-life care, should they become mentally incompetent, and prepare a legal document to this effect. The legal document (known as an 'advance healthcare directive') outlines preferred medical treatments and procedures, such as life support and resuscitation.
This article looks at key trends in offshore dispute resolution, including the major developments in the Cayman market in 2020 and how the COVID-19 pandemic has affected court timetables for disputes work. It also looks at opportunities in the market around assets which have been devalued as a result of the COVID-19-induced economic downturn.
Parliament has passed temporary legislation which facilitates the signing of certain documents by removing the requirement that a witness be in the immediate physical presence of the person signing. This step, which follows previous regulations introduced in April 2020 to allow remote notarisation, seeks to address the challenges associated with social distancing and other measures arising from the COVID-19 pandemic.
Parliament recently passed the landmark Private Funding of Legal Services Act. The act will give litigants greater access to justice and a wider range of funding options enabling parties to enter into agreements with funders and attorneys on negotiated terms that they consider attractive without the need for court approval (other than in cases involving the statutorily prescribed exceptions).
Canada is a thriving market for Cayman private wealth services, with the Cayman Islands' full package of wealth structuring and lifestyle factors attracting growing numbers of high-value residents from the north. With direct flights from Toronto, the Cayman Islands are historically known to be a first-class destination for Canadian high-net-worth individuals, who have some familiarity with the Cayman Islands as a British overseas territory and fellow member of the British Commonwealth.
The long-running Carlyle case recently came to an end when the parties reached a non-confidential settlement. The case arose from the March 2008 collapse of Carlyle Capital Corporation Ltd, a Guernsey fund which invested mainly in residential mortgage-backed securities issued by US government-sponsored entities Fannie Mae and Freddie Mac. The case is of particular relevance now during the COVID-19 pandemic, which will likely lead to more fund collapses.
Unlike in England, pre-trial disclosure against a third party is generally not available in Guernsey. However, there are exceptions to this rule. This article sets out the main exceptions - namely, claims for personal injury or in respect of a person's death, ancillary orders to freezing injunctions, Anton Piller orders, Norwich Pharmacal orders and Bankers Trust orders.
For many Guernsey tax-resident companies, the onset of the COVID-19 pandemic created difficulties in complying with economic substance requirements. As such, in November 2020 the Revenue Service released guidance confirming that it will take a pragmatic approach when assessing whether the substance requirements have been met by a company during periods where government-imposed restrictions were in place (including restrictions imposed by governments in other jurisdictions).
The Royal Court recently brought an end to an important chapter in a long-running dispute regarding control of the exploration and exploitation of the oil and gas reserves of Georgia. This judgment makes it clear that liquidators can approach the court to approve a significant decision that they have taken to enter into a transaction and that such decision is akin to a Public Trustee v Cooper blessing of a momentous decision in a trusts context.
The Employment and Tribunal (Guernsey) Order 2020 enhances the tribunal's powers to dismiss or strike out complaints without merit. This is fantastic news for both employers and employees with valid defences or claims facing unnecessarily difficult opponents. The tribunal's powers are now significantly increased to be able to dismiss unmeritorious claims at the outset and bring cases to an end at any stage of proceedings where the conduct of either side becomes unacceptable.
The Taxation (Implementation) (International Tax Compliance) (Mandatory Disclosure Rules for CRS Avoidance Arrangements and Opaque Offshore Structures) (Jersey) Regulations 2020 are expected to come into force shortly. The regulations will primarily affect promoters and service providers of certain arrangements, implementing a 30-day window to report disclosable arrangements to the Comptroller of Revenue. Failure to comply may lead to financial penalties and, in some instances, criminal penalties.
If a person holds assets in Jersey, they may wish to appoint someone who can manage those assets in the event that they should lose capacity to such an extent that they can no longer do this themselves. At present, there is no facility for such individual to put a local Jersey lasting power of attorney in place to cover their Jersey-based assets. Instead, the Royal Court will recognise the foreign power of attorney, provided that power of attorney is registered with the court.
In 2020 the comptroller of revenue issued practical guidance which stated that where a company had to alter its operating practices to compensate for the COVID-19 outbreak, the comptroller would not determine that such company had failed the economic substance test under the Taxation (Companies – Economic Substance) (Jersey) Law 2019. As such, fund managers have had to make a number of adjustments to ordinary business practices in line with this guidance.
In March 2020 the Comptroller of Revenue released a concession confirming that where companies had to alter their operating practices to compensate for the COVID-19 outbreak, the comptroller would not determine that such company had failed the economic substance test under Article 6 of the Taxation (Companies – Economic Substance) (Jersey) Law 2019. Given that the pandemic remains ongoing, the comptroller recently issued further guidance in relation to the concession.
The Financial Services (Disclosure and Provision of Information) (Jersey) Law 2020 recently came into effect, introducing a revised statutory framework for reporting information on beneficial owners and controllers. This article provides an overview of the secondary legislation introduced under the law – namely, the Financial Services (Disclosure and Provision of Information) (Jersey) Order and the Financial Services (Disclosure and Provision of Information) (Jersey) Regulations – and the filing deadlines.