Ogier updates

Green finance – a world first and a force for good which also makes economic sense

• Private Client & Offshore Services
• Guernsey
• 20 June 2019

Increasingly stark and startling messages relating to the environment and climate change are now commonplace in the media. That is why it is so refreshing to know that Guernsey is taking a leading role on the world stage and using its strengths to produce a significant positive impact, including through the implementation of the Guernsey Green Fund.

Update on economic substance rules for Jersey fund managers

• Private Client & Offshore Services
• Jersey
• 20 June 2019

The Taxation Law 2019 has introduced new economic substance requirements which apply to certain Jersey tax-resident companies. The requirements were passed to comply with the EU Code of Conduct Group on Business Taxation for the purpose of demonstrating that the profits generated by Jersey companies which carry on certain specified geographically mobile activities are commensurate with their economic activities and substantial economic presence in Jersey.

Q&A on Cayman AML regime: service providers, delegation and risk-based approach

• Private Client & Offshore Services
• Cayman Islands
• 13 June 2019

The government and the Cayman Islands Monetary Authority are well aware that it is imperative that the Cayman Islands is not only perceived to, but does in fact, play a central role in the global fight against money laundering and terrorist financing. At the same time, there is a deep understanding of the need to remain competitive and commercial. This article addresses a number of key questions concerning the 2018 amendments to Cayman's anti-money laundering regime.

Often overlooked competition law aspects of restrictive covenants in contracts

• Private Client & Offshore Services
• Guernsey
• 13 June 2019

Employers want maximum restriction on employees who leave but must be careful not to overstep the mark as covenants which are unduly restrictive risk being struck out by the courts. As such, employers should be aware that disgruntled employees can file complaints with the Guernsey Competition and Regulatory Authority and might also bring civil actions for damages pursuant to Section 42 of the Competition Ordinance.

The role of legislation in environmental protection and the Jersey legal framework

• Private Client & Offshore Services
• Jersey
• 06 June 2019

Jersey's environmental legislation covers areas including water pollution, nuisance, planning, wildlife and waste disposal. Further, the minister for planning and the environment has the power to exercise enforcement in a number of ways. This system ensures that all development within Jersey is carried out in accordance with the local legislation and any specific conditions imposed by the minister. However, even with active and engaged enforcement, legislation can only go so far.

Impact of evolving relationship between investors and managers on fund structuring

• Private Client & Offshore Services
• Cayman Islands
• 06 June 2019

This article addresses how the landscape for the structuring of offshore investment funds established in the Cayman Islands is changing and how this change is being driven by the evolving relationship between investors and investment fund managers – in particular, how the balance of power has in many cases shifted from the manager to the investor.

New AIC code and implications for LSE-listed offshore companies

• Private Client & Offshore Services
• Guernsey
• 09 May 2019

The Association of Investment Companies Code of Corporate Governance (AIC code) is a framework of best practice for the governance of investment companies. The new AIC code applies to accounting periods which began on or after 1 January 2019. As such, Guernsey boards are urged to (among other things) review their existing corporate governance arrangements and determine which code is applicable to their companies.

Don't delay – Jersey's Royal Court rules that time is a factor when deciding whether to exercise its discretion on grounds of mistake

• Private Client & Offshore Services
• Jersey
• 09 May 2019

A recent Royal Court judgment has indicated that delays in bringing an application to set aside a transfer of property to a Jersey trust due to mistake will be considered by the court when exercising its discretion as to whether to grant relief. In particular, this decision clarifies that delay is a factor that the court will consider when determining whether the mistake is of so serious a character as to render it just to make a declaration setting aside a disposition into trust.

Fund managers' perspective on Guernsey substance rules

• Private Client & Offshore Services
• Guernsey
• 18 April 2019

The government has approved new regulations which impose an economic substance test on Guernsey tax-resident companies in order to meet the requirements of the EU Code of Conduct Group. The regulations, which came into force on 1 January 2019, establish tests for tax-resident companies carrying on 'relevant activities', including fund management.

At a glance guide to Jersey wills for non-domiciled individuals

• Private Client & Offshore Services
• Jersey
• 18 April 2019

Personal assets that most commonly need to be accessed in Jersey following the death of a non-domiciled person are shares in Jersey companies and Jersey bank accounts and investments. If individuals are domiciled outside Jersey, they need not prepare a separate will to cover their Jersey personal estate if they already have a valid one which covers their worldwide personal estate; however, doing so can offer significant benefits.

Cayman Islands economic substance requirements

• Private Client & Offshore Services
• Cayman Islands
• 11 April 2019

New legislation recently came into force in the Cayman Islands requiring in-scope entities that carry on particular activities to have demonstrable economic substance in Cayman. Relevant entities must make an annual report as to whether they are carrying on one or more of a defined list of activities (relevant activities). If they are, they must satisfy an economic substance test in Cayman in respect of such relevant activities.

Undue influence affecting settlors in exercising powers of revocation

• Private Client & Offshore Services
• Jersey
• 11 April 2019

A recent Royal Court decision arose out of an attempt by the settlors of trusts to exercise their power to revoke the trusts. The trustee in this case was concerned and so petitioned the Royal Court for directions. Among other things, the court's decision highlights that trustees should be aware of how a trust fund might be distributed on revocation of a trust. Trustees should also review their terms and conditions of business to ensure that they are protected against any potential adverse consequences.

Latest interpretation of illegality defence

• Private Client & Offshore Services
• Cayman Islands
• 04 April 2019

A Cayman court recently considered numerous complex areas of the law concerning commercial fraud and the ability to trace assets through corporate groups and into sophisticated financial products. This article discusses the court's findings regarding the illegality defence and the lessons which can be derived for future Cayman cases in which this defence might be engaged.

Asset protection trusts – why the recent interest?

• Private Client & Offshore Services
• Jersey
• 04 April 2019

It is fair to say that the term 'asset protection trust' has developed as an informal description of a trust, the primary purpose of which is to safeguard trust assets from claims made by creditors and others usually against the settlor or beneficiaries of a trust. This article discusses what an asset protection trust is and what, over and above a normal trust, it is seeking to achieve. It also considers to what extent a Jersey trust, once established, will protect assets from creditor claims.

Successful application for variation of court order and construction of trust instrument

• Private Client & Offshore Services
• Guernsey
• 04 April 2019

When applying to the court for an order with respect to a trust, it is important to consider how future circumstances are changing and how this might be provided for without the need for further recourse to the court. A recent case involving a Jersey trustee, which had applied to the Royal Court of Guernsey to vary an order previously made by the Royal Court and to invoke the court's power to construe a trustee power under its Public Trustee v Cooper jurisdiction, provides clarity in this regard.

Not in dispute – why Cayman leads in cross-border dispute resolution and how the sector is evolving

• Private Client & Offshore Services
• Cayman Islands
• 28 March 2019

Insolvency and restructuring cases are perhaps the most common types of cross-border dispute heard by the Grand Court, but other examples include trust disputes, which can often involve high-net-worth families and trust assets spread across the globe, and the enforcement of foreign judgments and arbitral awards. High-profile examples of cross-border cooperation between the Grand Court and foreign courts include the Bank of Credit and Commerce International liquidation and the Ocean Rig restructuring.

Guernsey Royal Court issues regulatory decision on prohibition orders, fines and public statements

• Private Client & Offshore Services
• Guernsey
• 28 March 2019

The Guernsey Royal Court recently issued a regulatory decision on prohibition orders, fines and public statements. In this decision, the deputy bailiff found that the Guernsey Financial Services Commission did not have the jurisdiction or power to make prohibition orders that were limited in time; it only had the power to make unlimited prohibition orders (as in the United Kingdom) against the defendant – although it could have indicated when it might be appropriate for the defendant to reapply for a licence.

Fund managers' perspective on Guernsey substance proposals

• Private Client & Offshore Services
• Guernsey
• 07 March 2019

Jersey substance proposals – company perspective

• Private Client & Offshore Services
• Jersey
• 28 February 2019

New proposed requirements for an economic substance test for Jersey tax-resident entities have been published to meet the requirements of the EU Code of Conduct Group. Among other things, specific consideration should be given to outsourcing arrangements, to each company within a relevant structure and to updating policies and procedures.

Jersey substance proposals – fund managers' perspective

• Private Client & Offshore Services
• Jersey
• 28 February 2019

New proposed requirements for an economic substance test for Jersey tax-resident entities have been published to meet the requirements of the EU Code of Conduct Group. Fund vehicles themselves are out of scope, but it is expected that most fund manager clients will be in scope. Therefore, consideration will need to be given to the level of activity carried out in Jersey, with specific consideration being given to outsourcing arrangements.