What started with complaints against an Oscar-winning film producer has led to a movement that has toppled government ministers and reduced much-loved figures from the entertainment world to pariahs. Although Guernsey may feel far away from Hollywood or Westminster, the issue of sexual harassment is just as real. So what should an employer do to protect its employees and its business from harassment?
In today's climate, in which professional trustees are held to increasingly high standards by regulators, courts and clients, it has never been more important for fiduciaries to record their decisions. A court's ruling may turn on the content of trustee minutes, and regulatory authorities are entitled to scrutinise all available evidence of a licensee's conduct in assessing its corporate governance and compliance with anti-money laundering and counter-terrorist financing legislation.
An anti-anti-suit injunction is a relatively rare form of anti-suit injunctive relief granted by a particular court in order to stop a party from pursuing an application for an anti-suit injunction in another court. In a recent decision, the Guernsey Court of Appeal stated that "particular caution" should be applied in granting an anti-anti-suit injunction.
The Royal Court recently issued its judgment on what is thought to be the largest civil case in Guernsey's history. The decision has cleared a Guernsey investment fund that went into insolvency in the wake of the financial crash in 2008 of liability over its collapse. The scale of the case underlines Guernsey's position as not only one of the world's largest offshore finance centres, but also a venue capable of handling complex and demanding funds litigation cases.
The recognition of the powers of an English trustee in bankruptcy in Guernsey is generally pursued either by way of a letter of request issued by the foreign court or an application via common or customary law. A recent decision examines the position – not previously encountered in Guernsey – of an application for recognition under common law in a situation where there were already désastre proceedings in Guernsey.
The Royal Court recently considered, for the first time in open court, the issue of whether an agreement with a third party to fund litigation would be void as a matter of Guernsey law on the basis that it was champertous. The lieutenant bailiff's judgment provides valuable guidance as to the contractual provisions that should be considered when third-party funding takes place.
An 'investment fund' refers to any vehicle which allows investors to pool their money for investment by an investment manager in accordance with a defined investment policy. A 'listed' fund is an investment fund which has been admitted to trading and/or listing on a stock exchange. There are many reasons to establish a fund, including exposure to assets not otherwise available to single investors.
The Beneficial Ownership of Legal Persons (Guernsey) Law 2017 came into force on August 15 2017. From that date, the incorporation or creation of any Guernsey entity requires details of its beneficial owner to be submitted to the Guernsey registrar of beneficial ownership of legal persons. Existing Guernsey entities must do the same by October 31 2017, with the exception of companies, which have until February 2018.
The Channel Islands Competition and Regulatory Authorities (CICRA) have issued new guidance on the process for obtaining their approval of a notifiable merger or acquisition in the Channel Islands. The guidance implements some procedural aspects of the recommendations for the islands' merger control regime overhaul which CICRA published in September 2016.
A protector – whether it is an individual, a corporate or a committee – can be highly valuable in assisting with the administration of a trust. Recent Royal Court judgments have clarified the position of protectors in Guernsey trusts law – in particular, the background and recent developments to the roles of protectors, as well as the thought required in appointing a suitable protector.
A recent Royal Court case involved a funded unapproved retirement benefits scheme (FURBS) – a type of Guernsey trust which holds assets of significant value for the benefit of the sole member of the FURBS and, if he or she dies, for the benefit of his or her spouse. In this case, the husband and wife were going through a divorce in England and the wife sought to join the trustee into the family proceedings for the purposes of disclosure – that is, she wanted to know what assets were vested in the trust.
A recent Royal Court judgment is important as it appears to be the first time that a provisional liquidator has been appointed by the court over a solvent Guernsey company. This case adds helpful guidance to the Guernsey insolvency regime as it demonstrates that the Royal Court adopts a pragmatic and flexible approach when exercising its discretion, particularly where the parties face unusual circumstances.
From a structuring perspective, infrastructure funds are most frequently established as either a limited partnership or a limited company. Partnerships are the familiar vehicle for private funds, whereas companies will be used for listed vehicles. The ultimate structure of a fund will depend on where the assets are located, where the investors are based and how investment will be structured.
When the Companies (Guernsey) Law was enacted, special temporary transitional rules were also enacted which allowed pre-existing Guernsey companies to retain their pre-2008 memorandum and articles and not comply with all of the provisions of the Companies (Guernsey) Law. Those transitional rules ended on December 31 2016. Accordingly, all Guernsey companies, whenever they were incorporated, must now comply with all of the Companies (Guernsey) Law.
The Guernsey Royal Court recently considered whether to set aside a distribution on the grounds of equitable mistake in circumstances where that mistake led to adverse UK tax consequences. In particular, the court's clear guidance that not every mistake as to tax consequences based on incorrect or negligent professional advice will be corrected by the courts is noteworthy.
A recent decision from the Guernsey Royal Court is of fundamental importance to Guernsey insolvency practitioners as it provides cautionary guidance on the practical implications of Practice Direction 3/2015. The practical lesson to take away from the decision is that where an insolvency practitioner is faced with circumstances that appear to be out of the ordinary, a pragmatic and proactive approach must be followed to seek an increase to the cost cap as soon as possible.
The Channel Islands have demonstrated their commitment to the Organisation for Economic Cooperation and Development's Base Erosion and Profit Sharing project by introducing local regulations to ensure that country-by-country reporting is conducted in accordance with the minimum requirements prescribed by the project. Guernsey's regulations require constituent entities which are resident for tax purposes in Guernsey to notify and, if required, to file a country-by-country report.
Whereas 2016 brought controversy and uncertainty, 2017 promises to be a much more positive year, especially from the perspective of the investment funds industry in the Channel Islands. Statistics from 2016 show 12.3% growth in the net asset value of funds under management and administration in Guernsey. These numbers are encouraging and serve as a starting point for the year to come.
A bank made a suspicious activity report to the Financial Investigation Unit due to its concerns about the potential source of funds in an account. The concerns were raised due to two articles which had been discovered in the public domain relating to an individual and his conviction by a Brussels court for value added tax fraud. It was the bank's belief that the individual was primarily the source of wealth for the account, but it did not know whether the funds were the proceeds of crime.
The Companies Law contains provisions relevant to the migration of companies into and out of Guernsey. For example, whether migrating into or out of Guernsey, the law requires a formal application to migrate to be made to the registrar of companies. However, where a company intends to be or is already a 'supervised company' – that is, a company which requires regulation by the Guernsey Financial Services Commission – written consent from the commission must be obtained.