Private Client & Offshore Services updates

Bahamas

Contributed by Lennox Paton
Extinguishment of purchasers' rights – importance of priority in unregistered land systems
  • Bahamas
  • 20 June 2019

The Bahamas has an unregistered land system that is based on the conveyancing laws of England and Wales issued before 1925. Therefore, deeds and documents should be recorded in the Registry of Records in The Bahamas as soon as possible. Priority becomes particularly important in high-net-worth commercial and condominium development transactions.

Register of Beneficial Ownership Act: a new day for beneficial owners
  • Bahamas
  • 09 May 2019

Since 2001 international organisations such as the Financial Action Task Force have pressured offshore financial centres to pass legislation in order to increase transparency within their financial services sectors. As such, the Register of Beneficial Ownership Act recently came into effect in The Bahamas. The act seeks to create a private search registry containing details of beneficial owners of domestic and international companies in The Bahamas.

Bahamian insolvency regime continues to promote judicial efficiency
  • Bahamas
  • 28 February 2019

The Bahamian legislature continues to examine its existing legislation for ways to promote judicial efficiency by amending and implementing new procedures in its insolvency regime. As the global economy continues to grow and foreign companies and investors increasingly face obstacles arising from the use of offshore structures, the need for cross-border insolvency proceedings and the use of protection afforded to investors will likely continue to increase.

Buying real estate – when to engage an attorney?
  • Bahamas
  • 21 February 2019

After finding the ideal property to purchase, what is the next step? Engage an attorney. An attorney can help to connect real estate buyers with key service providers in order to arrange, among other things, home inspections or insurance. Involving an attorney will make the difference between a smooth transaction that meets the expectations of the buyer versus one that is fraught with issues, unrealistic expectations and other obstacles which could have been avoided with the benefit of early advice and proper planning.

Foreign direct investment in real estate market
  • Bahamas
  • 14 February 2019

Foreign direct investment (FDI) remains one of the key catalysts to the Bahamian economy's growth and sustainability. The Bahamas National Investment Policy seeks to boost the economy through investments and provide favourable returns for investors. To this end, it encourages FDI in key areas in the real estate market, including tourist resorts, upscale condominiums, timeshares and second-homes and marinas.


Belize

Contributed by Courtenay Coye LLP
The importance of legal advice for timeshare rights
  • Belize
  • 16 July 2015

The Supreme Court recently highlighted the need to comply strictly with essential legal requirements when investing in property abroad. It found that US citizens who had purchased timeshare interests in a residential resort could not exercise their purported rights in priority of a bank's mortgage interest on the property because they had not registered their timeshares or paid the required stamp duty.

Directors' indemnities foolproof
  • Belize
  • 16 April 2015

The Belize Court of Appeal recently confirmed that indemnities given by a Belizean company to its directors deprived the company of a cause of action to pursue a claim against former directors for decisions taken during their term as company directors. Belize continues to recognise blanket indemnities given by a company to directors as legal.

Appeal Court clarifies procedural law on claims against foreign defendants
  • Belize
  • 04 September 2014

The Belize Court of Appeal has provided guidance to litigants involved in multi-jurisdictional litigation. The court interpreted the rules applicable to commencing a claim against foreign defendants, and service of a claim form and interim injunction on parties outside the jurisdiction. Under the Civil Procedure Rules there is no need to obtain permission to issue a claim form for service abroad.

Enforcement of LCIA award refused as contrary to public policy
  • Belize
  • 22 May 2014

The Caribbean Court of Justice has addressed the issue of whether New York Convention Awards should be enforced. The case is exceptional and should be confined to its unusual facts. However, it stands as highly persuasive authority for the proposition that violations of the constitutional order by a government when affording tax concessions to investors may afford a defence to enforcement of an arbitral award.

Caribbean Court of Justice rules government must arbitrate under treaty
  • Belize
  • 08 August 2013

The Caribbean Court of Justice has delivered a landmark decision which narrows the circumstances in which a government may resort to its domestic courts to restrain international arbitration proceedings. The decision is an important victory for international investors in the Commonwealth Caribbean, since many bilateral investment treaties include clauses for resolution of disputes by international arbitration.


Bermuda

Contributed by Carey Olsen Bermuda
Court exercises inherent jurisdiction to appoint protectors
  • Bermuda
  • 20 June 2019

In a recent case, the Supreme Court delivered an important judgment in which it exercised its inherent supervisory powers over trusts to appoint protectors. The court also reaffirmed the wide breadth of its jurisdiction under Section 47 of the Trustee Act 1975 to grant trustees power to vary trusts when it is satisfied that it is expedient to do so.

Bermuda's beneficial ownership registers and privacy: status update and further observations
  • Bermuda
  • 02 May 2019

Bermuda companies, limited liability companies and partnerships had until 30 April 2019 to update or verify their beneficial ownership information under Bermuda's beneficial ownership legislation. The guidance published in respect of Bermuda's beneficial ownership legislation may provide an aide to some extent, but provides no defence to non-compliance with the beneficial ownership legislation itself. As such, the legislation and Personal Information Protection Act must be carefully considered and complied with.

Bermuda private trust company guide
  • Bermuda
  • 04 April 2019

Bermuda is an excellent jurisdiction in which to establish private trust companies, trusts and underlying entities (including private funds and insurance vehicles) and family offices (or branches thereof). However, particular care must be taken with regard to a private trust company's initial structuring. It is critical that the rights, powers and responsibilities vested in particular parties are fully understood (particularly by the settlor both during their lifetime and in future).

Deadline approaches for compliance with Bermuda beneficial ownership regime
  • Bermuda
  • 28 March 2019

Bermuda companies have until 30 April 2019 to comply with requirements introduced in 2018 to maintain a register of their beneficial owners. If a company is non-compliant with these requirements after this date, both the company and its directors and other officers may be subject to criminal sanctions.

Round-up of recent trust cases
  • Bermuda
  • 14 March 2019

In 2018 the Bermuda courts issued several important decisions in trust cases. Moreover, the Trust Law Reform Committee of the Bermuda Business Development Agency remains active and has recently proposed further legislative reform. Among the committee's recent reform initiatives, the amendment to the Perpetuities and Accumulations Act 2009 by the Perpetuities and Accumulations Amendment Act 2015 has resulted in significant interest among international advisers and local practitioners.


British Virgin Islands

Contributed by Harneys
Taking charge: Commercial Court delivers judgment on its jurisdiction to grant charging orders
  • British Virgin Islands
  • 06 June 2019

The Commercial Court recently confirmed that the BVI courts have jurisdiction to grant charging orders. Charging orders are a critically important tool, particularly when enforcing foreign judgments, as they allow creditors to take a proprietary interest over assets owned by a debtor and can ultimately facilitate the sale of such assets to allow creditors to realise their debts.

Scope of disclosure orders and contempt of court
  • British Virgin Islands
  • 30 May 2019

A BVI court recently considered a contempt application seeking further disclosure by way of an 'unless' order and whether cross-examination of the respondents should be ordered to determine the issue of contempt. This decision highlights the exceptional nature of cross-examination orders and the high standard of proof required for contempt orders.

Relief all round – Court of Appeal upholds relief from sanction
  • British Virgin Islands
  • 02 May 2019

The BVI Court of Appeal recently denied an appellant declaratory relief and upheld the respondents' relief from sanction, as granted by the lower court. While this judgment will inevitably provide some comfort to those that find themselves facing sanctions having inadvertently failed to comply with a rule, practice direction or order, it is a timely reminder for everyone that it is better to remain vigilant and compliant than to rely on the court's jurisdiction to grant relief from sanction.

No more second chances: Court of Appeal guidance on strike out
  • British Virgin Islands
  • 25 April 2019

The Court of Appeal recently clarified the procedural considerations required following the strike out of an action pursuant to Civil Procedure Rule 26.3. All three of the appellants' procedural grounds of appeal were rejected by the court, which held that (among other things) a judge must give a party which has a defective pleading an opportunity to put right any defect.

Misplaced trust – what happens when your trustee goes AWOL?
  • British Virgin Islands
  • 04 April 2019

In a recent case, an applicant succeeded in the increasingly commonplace but frustrating situation where the beneficiary of a revocable bare trust cannot obtain execution of the trust due to an uncooperative or defunct corporate nominee. The court ultimately granted the vesting order sought by the beneficial owner and appointed an insolvency practitioner as the statutory proper person.


Cayman Islands

Contributed by Ogier
Q&A on Cayman AML regime: service providers, delegation and risk-based approach
  • 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.

Impact of evolving relationship between investors and managers on fund structuring
  • 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.

Cayman Islands economic substance requirements
  • 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.

Latest interpretation of illegality defence
  • 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.

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