Ogier updates
Court of Appeal overturns anti-suit injunction in favour of Argyle Funds SPC Inc
Ogier- Private Client & Offshore Services
- Cayman Islands
- 31 January 2019
The Court of Appeal has unanimously allowed every ground of an appeal by the liquidators of Argyle Funds SPC Inc. The key takeaway for the Cayman Islands professional services industry is that where work is delegated to be carried out by related entities outside the Cayman Islands, any attempt to contractually limit clients' rights to bring claims against those entities must be expressly articulated within the contract.
Capital call facilities – LPA and side letter review
Ogier- Private Client & Offshore Services
- Cayman Islands
- 10 January 2019
Along with the growth and maturity of the fund finance market, funds and their counsel have become increasingly familiar with lenders' limited partnership agreement (LPA) requirements. Therefore, newer LPAs often include the provisions that lenders require in order to provide financing under a capital call facility. Lenders and their counsel should consider several key due diligence points when reviewing LPAs, investor subscription documents and related side letters.
Royal Court issues letter of request to High Court
Ogier- Private Client & Offshore Services
- Guernsey
- 10 January 2019
Two joint administrators recently applied to the Royal Court of Guernsey seeking an order that it issue the High Court of Justice of England and Wales with a letter of request to act in aid of and auxiliary to the Royal Court in recognising their appointment as administrators of a company. While the Royal Court has dealt with incoming letters of requests, in making the application, counsel was unaware of any case where the Royal Court's jurisdiction to issue a letter of request had previously been considered.
Banking and finance perspective on Jersey substance proposals
Ogier- Private Client & Offshore Services
- Jersey
- 20 December 2018
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. The reforms are set to come into force on 1 January 2019, subject to approval by the States of Jersey, and establish new tests for certain tax-resident companies carrying on relevant activities in respect of demonstrating that they are directed and managed in Jersey, and that their core income generating activities are undertaken here.
Astral projections: Cayman Islands STAR trusts
Ogier- Private Client & Offshore Services
- Cayman Islands
- 06 December 2018
The Special Trusts (Alternative Regime) (STAR) Law introduced so-called 'STAR trusts' into Cayman Islands law to overcome some of the difficulties arising from more conventional offshore trusts. One of the most challenging aspects of establishing a STAR trust is the drafting of the purposes for which it is established. While the STAR Law contains rules to prevent STAR trusts from failing (eg, failure resulting from object and beneficiary uncertainty), there are a number of traps for the unwary.
Company demergers: a guide to the new regime
Ogier- Private Client & Offshore Services
- Jersey
- 01 November 2018
The recently enacted Companies (Demerger) (Jersey) Regulations introduce a new demerger regime for Jersey companies. The new regime will be of particular interest to those who use, or are considering using, Jersey companies in their structures. It makes the use of a Jersey company more flexible and has a range of potential uses, including implementing a pre-sale reorganisation.
Guernsey Green Fund – environmentally friendly wrapper
Ogier- Private Client & Offshore Services
- Guernsey
- 25 October 2018
The Guernsey Financial Services Commission recently introduced the Guernsey Green Fund designation to provide investment managers with an opportunity to "assure investors that their investments are contributing to initiatives that have a positive environmental impact on the planet and in so doing inspire confidence that their investments are well regulated". The designation is available to registered and authorised schemes run in accordance with the Guernsey Green Fund Rules.
Cayman Islands foundation companies at a glance
Ogier- Private Client & Offshore Services
- Cayman Islands
- 25 October 2018
Foundation companies are a unique structuring option in the Cayman Islands for wealth planning and also serve as holding and special purpose vehicles for commercial transactions and cryptocurrency offerings. Although a foundation company may be used as an alternative to a Cayman trust, a number of features specific to Cayman trust law have been incorporated into the foundation company vehicle which should prove beneficial to investors and private clients.
How Guernsey is benefiting from global M&A boom
Ogier- Private Client & Offshore Services
- Guernsey
- 18 October 2018
A variety of factors are fuelling a sustained boom in M&A activity around the world, including a number of mega-deals across a variety of sectors. Irrespective of deal size, a wide range of positive factors has driven deal volume. All of this is good news for the financial services community in Guernsey, which is seeing significant growth in work as a result – not least law firms with experienced M&A teams.
Structuring ICOs in the Cayman Islands
Ogier- Private Client & Offshore Services
- Cayman Islands
- 18 October 2018
The Cayman Islands has become a popular choice for many businesses conducting initial coin offerings (ICOs) due to its tax neutrality, its reputation as a pre-eminent jurisdiction for investment funds and its securities law regime, which is generally more permissive than those of other jurisdictions. However, before any steps towards conducting an ICO are taken, it is critical that comprehensive legal and tax advice is obtained for each business before any token is sold or any entity is formed.
Grand Court examines master-feeder redemption procedures
Ogier- Private Client & Offshore Services
- Cayman Islands
- 11 October 2018
A recent Grand Court decision is significant for Cayman master-feeder fund structures. Funds and their advisers should review the redemption provisions in master fund articles of association and partnership agreements to ensure that, operationally, redemptions are being effected in accordance with such documents.
Jersey limited partnerships
Ogier- Private Client & Offshore Services
- Jersey
- 04 October 2018
Limited partnerships in Jersey are governed by the Limited Partnerships (Jersey) Law 1994, as amended. The main feature of limited partnerships, as the name suggests, is the limited liability afforded to the limited partners. In addition, the law is highly flexible, such that the partners in a Jersey limited partnership are free to agree the terms attaching to the structure and operation of the partnership between them. For this reason, Jersey limited partnerships are popular vehicles.
Plans for Guernsey deposit protection scheme to be laid out before end of 2018
Ogier- Private Client & Offshore Services
- Guernsey
- 04 October 2018
The Office for the Environment and Infrastructure recently announced that a new deposit protection scheme will be planned before the end of 2018. The announcement follows news that a local estate agent has ceased trading, leaving some tenants and landlords uncertain of their position with regard to rents and deposits that were being held by that agent. The proposal is likely to be that Guernsey should introduce a similar, if not identical, scheme to that already in place in Jersey.
New law enables valid execution of will when person cannot physically sign their name
Ogier- Private Client & Offshore Services
- Jersey
- 23 August 2018
The Signing of Instruments (Miscellaneous Provisions) Jersey Law 2018 was recently passed to enable people to validly execute legal documents (eg, a will or power of attorney) when they are physically incapable of signing their name. It brings about the much-needed change in law that was brought to light in 2015, when a local resident passed away after a paralysis of his hands had rendered him physically – but not mentally – incapable of signing a will.
Guernsey Court of Appeal provides avenue of escape to tax advisers and trustees
Ogier- Private Client & Offshore Services
- Guernsey
- 23 August 2018
The Guernsey Court of Appeal recently handed down its long-awaited judgment in M v St Anne's Trustees. On appeal, neither party had challenged the Guernsey Royal Court's decision that Guernsey law should follow Pitt v Holt. Instead, they had focused on arguing that there had been a breach of fiduciary duty and that the Royal Court should have exercised its discretion to grant relief.
Refusal of consent under AML reporting regime: Royal Court weighs in
Ogier- Private Client & Offshore Services
- Guernsey
- 16 August 2018
The Financial Intelligence Service's recent refusal to consent to a proposed transaction under Guernsey's anti-money laundering reporting regime has resulted in the Royal Court deciding its first private law action between the person claiming the asset and the financial institution holding it. The decision clarifies the legal framework for determining the source of funds, which will be highly relevant to all regulated entities in Guernsey.
Court rules on limitation period for breach of directors' duties
Ogier- Private Client & Offshore Services
- Jersey
- 09 August 2018
The Jersey limitation period for claims against directors for breach of duty under Article 74 of the Companies (Jersey) Law 1991 has not been definitively decided by the Jersey Royal Court. However, the UK High Court recently found that the prescription period for claims against directors of Jersey companies for breach of their duties under Article 74 was 10 years. While this decision is not binding on the Jersey courts, it is likely to carry considerable weight.
Important changes to civil procedure
Ogier- Private Client & Offshore Services
- Jersey
- 09 August 2018
In Summer 2017 Jersey's Royal Court Rules were amended and 11 new practice directions came into force. These aim to improve access to justice, streamline the civil justice process and, where possible, reduce the risks and costs associated with litigation by encouraging the early resolution of cases to avoid court proceedings.
Reform of civil forfeiture orders
Ogier- Private Client & Offshore Services
- Jersey
- 02 August 2018
MONEYVAL's 2015 inspection of Jersey's anti-money laundering regime and its subsequent report issued in May 2016 encouraged Jersey legislators and regulators to actively prosecute more financial crime and, in particular, introduce a non-conviction-based confiscation regime to apply in parallel with the conviction-based system. The Draft Forfeiture of Assets (Civil Proceedings) Jersey Law is a paradigm shift in regulatory approach to achieve the objectives set by MONEYVAL.
Cross-border insolvency and restructuring
Ogier- Private Client & Offshore Services
- Jersey
- 02 August 2018
As a jurisdiction, Jersey is at the heart of cross-border insolvency and restructuring. Inevitably, situations arise where insolvent companies' assets or important evidence are located overseas, or an overseas liquidation regime would be best for creditors. Conversely, there will be situations where a foreign insolvency process requires steps to be taken in Jersey.
