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Insured risks litigation in the Channel Islands

The dangers and peculiarities of insured risks litigation in the Channel Islands
Differences between CI Law and UK law
Guernsey Court practice and procedure
Personal injury and clinical negligence litigation
Lack of common UK statutory authorities and the effect on CI law
Recoverability of costs in the Channel Islands

Sharia's Compliant Trusts

What is a PTC
What does a typical PTC structure look like
What are the benefits of using PTCs.

Private Trust Companies (PTC'S)

What is a PTC
What does a typical PTC structure look like
What are the benefits of using PTCs.

Advantages of Listing on the Channel Islands Stock Exchange ("CISX")

General advantages of listing include that the CISX offer a full listing facility, opening opportunities for investment by way of a wide range of investors who require securities to be listed on a recognised stock exchange.
The CISX has UK recognition as the Financial Services Authority has approved the CISX as a Designated Investment Exchange within the meaning of the Financial Services and Markets Act 2000.
The CISX is also designated as Recognised Stock Exchange under Section 841 of the Income and Corporation Taxes Act 1988 by HM Revenue and Customs.
Secondary listings on the CISX are very straightforward; particularly as the only continuing obligations that the issuer must comply with is to comply with the continuing obligations of the primary exchange and to provide the CISX with equivalent information.
The CISX has user friendly Listing Rules particularly for investment funds, debt issues and SPV securitisation issues.
The geographical position of the CISX in Guernsey provides quick and easy communication with London and the rest of the UK.

Guernsey Wills and Intestacy

Children of a deceased parent are entitled to one third or one half of the value of that parent's personality, depending upon whether or not a spouse survived the deceased.
"Children" includes illegitimate children.
A jointly held estate will go to the survivor.
A person owning realty and leaving descendants cannot leave real estate outside the family or place realty in trust.
Relatively low probate fees in Guernsey.
Will of Real Estate is a document of title in Guernsey.

Protection Of Investors - Recent Changes

Towards the end of 2008 various changes were made to the law and regulation of investment funds in Guernsey
closed ended investment funds became regulated under The Protection of Investors (Bailiwick of Guernsey) Law, 1987 as amended (“POI”) and the Control of Borrowing legislation ceased to have any direct application to collective investment schemes or to the circulation of prospectuses and public offers of securities in the Bailiwick of Guernsey
investment funds may now apply for authorisation (i.e. subject to ongoing supervision by the GFSC) or registration (subject to a lighter regulatory regime)
a new fast track licensing process for management entities associated with fast track fund applications was introduced
a statutory minimum licensing criteria was added to POI
new Class A Rules were published

Jersey Duties of a qualified person

Jersey Amendments to Companies (Jersey) Law, 1991

Jersey A guide to the application for continuance of a company outside Jersey

Jersey Continuance of Foundations

Jersey Security Interest (Jersey) Law, 1983

Jersey Foundations - A new concept in Jersey Law and a new product for Jersey

Jersey A guide to the reinstatement of a Jersey Company

Jersey A guide to the application for continuance of a company into Jersey

Guernsey's New Companies Law

This is a summary of our Client Information Release “Guernsey’s New Companies Law – Swifter, Higher, Stronger (and more Flexible)” which highlights a number of the principal changes brought about by the Companies (Guernsey) Law, 2008 (the “Law”).
Whilst formation of a Guernsey company must now be initiated by a Corporate Service Provider (“CSP”), the introduction of a new online Guernsey Registry service enables speedy and cost effective incorporations for numerous types of company. Companies can be incorporated in as little as 15 minutes of lodging the necessary papers.
The introduction of the BVI and New Zealand “Solvency Test” model means that shareholders need not wait for distributable profits to receive dividends.
Under the new requirements, a CSP or, if there is no CSP, a Guernsey resident director, must, save in certain circumstances, be appointed as the company’s “Resident Agent” for the purpose of ascertaining the identity of the shareholders.
Other changes under the Law include: the ability to dispense with the need to hold an Annual General Meeting; the introduction of schemes of arrangement and reconstruction; 90% squeeze-out provisions; single member companies; unlimited objects; provisions for electronic communications with shareholders; and the removal of the court from various processes; all of which ensure that the Guernsey company will remain attractive to the industry and practitioners alike.
Directors may no longer be exempted from or indemnified by the company in respect of certain liabilities. A new requirement to disclose the personal interests of directors in respect of transactions places a further hurdle in the path of administration.

Audit Exemption - New Transitional Arrangements

This is a summary of our Client Information Release “Audit Exemption – New Transitional Arrangements” which highlights the changes brought about by the Companies (Transitional Provisions) (No.3) Regulations, 2008 (the “Regulations”).
The Regulations permit eligible companies to pass a shareholder “waiver resolution” at any time during the company’s current financial year exempting the company from the requirement to have its accounts for its current financial year audited under section 255 of the Companies (Guernsey) Law, 2008.
Eligibility depends on the company having:
- (a) a current financial year ending on or before 31 December 2008; and
- (b) either dormant company or asset holding status (within the meaning of the former Companies (Guernsey) Law, 1994) immediately prior to 1 July 2008.
Companies which have migrated into Guernsey may also take advantage of the Regulations.

Share Buy Backs under the Companies (Guernsey) Law, 2008

This is a summary of our Client Information Release “Share Buy Backs under the Companies (Guernsey) Law, 2008” which highlights some of the changes brought about by the Companies (Guernsey) Law, 2008 in relation to the buy back of shares by a Guernsey company from its shareholders with effect from 1 July 2008.
The previous safeguards for creditors preventing unauthorised distributions/dividends of initial capital back to shareholders have been removed and the more flexible/modern “solvency” approach has been adopted in their place.
The introduction of this “Solvency Test” model means that shareholders need not wait for distributable profits to receive dividends/distributions but can now access their original capital stake in the company so long as it is solvent immediately after withdrawal.
With buy backs classified under the new regime as “distributions”, the directors now have authority to authorise a distribution without the need to seek shareholder approval, creditor consent or undergo the formalities of a Royal Court application, subject to satisfaction of the Solvency Test and any requirements of the company’s articles.
“Solvency” is defined for these purposes as:
- (a) the ability for a company to pay its debts as they fall due; and
- (b) the value of its assets being greater than its liabilities.
The “evidential burden” – the directors must be able to establish reasonable grounds for their belief that the company will satisfy the Solvency Test immediately after the buy back (which may, for instance, be justified with reference to the most recent accounts).
After approval by the board, the decision to proceed with the buy back must be certificated stating the grounds for the directors’ opinion that the Solvency Test has been satisfied.
Note: if the directors propose to grant authority for an ongoing programme of share buy backs, they must be satisfied that the company will pass the Solvency Test after each and every buy back of shares (although this may be mitigated).
Shares subject to a buy back may still be cancelled or held in treasury and re-issued at a later date.

The Trust (Guernsey) Law, 2007

The Principle features of the Trust (Guernsey) Law, 2007

Guernsey Law Trusts & Divorce

Use of Trusts
Trusts and Guernsey
Trusts and Divorce
What Is The Situation For Trustees Of A Guernsey Trust, where a Beneficiary Is Getting Divorced?
Conclusion

The Limited Partnerships (Guernsey) Law, 1995, as amended

A limited partnership consists of one or more general partners, who are jointly and severally liable for all of the partnership’s debts without limitation, and one or more limited partners who, save in certain circumstances, are not liable for any debts of the partnership beyond the amount contributed or agreed to contribute.
A limited partnership must have a partnership agreement which must be an agreement in writing of the partners as to the affairs of the partnership and the conduct of its business.
Failure to register a limited partnership will result in it being deemed not to be a limited partnership and each partner will be considered to be a general partner with unlimited liability for all of the partnership’s debts.
A limited partnership may elect, at the time of its registration, to have a separate legal personality.
To retain its limited liability status, a limited partner must not, amongst other things, participate in the conduct or management of the business of a limited partnership or transact the business of or otherwise bind the limited partnership.
Many limited partnerships do not need to comply with the “true and fair” audit requirements leaving open the possibility of partners agreeing to alternative financial frameworks to meet investors’ requirements.
A limited partnership is regarded as tax transparent for the purposes of Guernsey income tax, whether or not it has separate legal personality.

The Data Protection Law

The Data Protection (Bailiwick of Guernsey) Law, 2001, as (“Law”) came into force on 1 August 2002 replacing the Data Protection (Bailiwick of Guernsey) Law, 1986.
The principal effect of the legislation is to set rules for good information handling under the eight data protection principles (“Principles”) and to give additional rights to persons about whom personal data is processed.
The Law closely follows the UK Data Protection Act 1998 and was intended to be fully compliant and the Commissioner fully co-operative with Directive 95/46/EC of the European Parliament and of the Council (“EU DP Directive”). On 21 November 2003, the European Commission Decision on the adequate protection of personal data granted Guernsey’s data protection legislation a “declaration of adequacy” which signified that Guernsey’s law met with European standards.
The Law will apply to all data controllers established in the Bailiwick and the data are processed in the context of that establishment. It will also apply where the data controller is not established in the Bailiwick but uses equipment in the Bailiwick for processing the data other than for the purposes of transit through the Bailiwick.
Generally speaking, any person wishing to process personal data needs to notify the Data Protection Commissioner and comply with the Principles. There are limited exemptions from notification, for example personal, family and household affairs and public matters such as security, crime and regulation.
There are broad definitions in the Law, such as “data”, “personal data”, “processing” and “data controller” which means that the Law has broad application.

Amalgamation of a Guernsey Company

This is a summary of our Client Information Release “Amalgamation of a Guernsey Company with Another Company”.
Under the Companies (Guernsey) Law, 2008 (the “Law”), a Guernsey company can amalgamate with one or more other companies of the same type, whether incorporated in Guernsey or overseas (provided that the law of incorporation of the overseas company so permits).
The result of an amalgamation is that each, or all but one, of the amalgamating companies relinquish their individual incorporation and continue under the registered name and number of one continuing company.
Once amalgamated, all property and rights to which each amalgamating company was individually entitled become the property and rights of the continuing company.
An amalgamation does not of itself cause or permit the termination of any contract or of any obligation or relationship.
The amalgamation process involves an application to the Registrar of Companies in Guernsey accompanied by, amongst other things, an amalgamation proposal setting out the terms of the amalgamation and which must be approved by both the board and members of each amalgamating company.
The Law provides for a short form amalgamation process where the amalgamating companies are a parent and its wholly owned subsidiary or where the amalgamating companies are each a wholly owned subsidiary of the same company. In these instances, an amalgamation proposal is not required.

Migration of a company out of Guernsey

This is a summary of our Client Information Release “Company Migration out of Guernsey”.
Under the Companies (Guernsey) Law, 2008, a Guernsey company can apply to be removed from the Register of Companies (the “Register”) in Guernsey on a given date for the purpose of becoming registered as a company in another jurisdiction outside of Guernsey (provided that the law of that other jurisdiction so permits).
All property and rights to which the company was entitled immediately before its removal from the Register in Guernsey remain its property and rights upon its registration as a company outside of Guernsey and all contracts, debts and other obligations continue to be binding on it.
The act of removal from the Register and re-registration outside of Guernsey does not of itself create a new legal person nor does it affect the company’s identity or continuity of its existence as a legal person.
A company cannot apply for removal from the Register unless its members have passed a special resolution that it be so removed. The company is also required to notify all of its creditors in writing of its intention to apply for removal from the Register.
Application is made to the Registrar of Companies in Guernsey accompanied by, amongst other things, confirmation from H.M. Procureur and the Director of Income Tax that they do not have any objection to the proposed removal of the company from the Register.
A company may be removed from the Register 28 days after notice of such has been published by the Registrar.

Migration of a Company into Guernsey

This is a summary of our Client Information Release “Company Migration into Guernsey”.
Under the Companies (Guernsey) Law, 2008, an overseas company can apply to be registered as a Guernsey company on a given date provided that the law of its jurisdiction of incorporation so permits.
All property and rights to which the company was entitled immediately before its registration in Guernsey remain its property and rights upon its registration as a Guernsey company and all contracts, debts and other obligations continue to be binding on it.
The act of de-registration in the company’s jurisdiction of incorporation and registration as a company in Guernsey does not of itself create a new legal person nor does it affect the company’s identity or continuity of its existence as a legal person.
An overseas company cannot apply for registration as a Guernsey company unless its members have passed a special resolution (or its equivalent) that it be so registered.
An overseas company cannot be registered as a Guernsey company if, for example, it is empowered by its constitutive documents to issue bearer shares.
Application is made to the Registrar of Companies in Guernsey accompanied by, amongst other things, details of the company’s registration in its jurisdiction of incorporation together with evidence that it will cease to be incorporated in its jurisdiction of incorporation on the date of its proposed registration as a company in Guernsey.

Family Law - Grandparents' Rights

Family Law - How to Change Your Name

Family Law - Applications Regarding Children

The compendia of Guernsey Laws usually contained in our information centre are currently being updated. Should you require any information, please contact our Business Development Department on Tel: +44 1481 723466 or E-mail: advocates@ozannes.com