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.
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.
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.
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.
Effective from September 1 2018, the Discrimination (Jersey) Law 2013 will be amended to include disability as a protected characteristic. The amending regulations will give individuals the right to complain to the Employment and Discrimination Tribunal when they believe that they have experienced discrimination. While many employers and groups will be familiar with the way that the regulations work, they should be taking steps to ensure that they are compliant ahead of the implementation date.
Employers can enforce dress codes only within the confines of the discrimination law. For example, a requirement for a female receptionist to wear high heels is illegitimate since no equivalent requirement is placed on male employees. Employers that want to enforce a dress code should consider the discrimination law and whether their proposals meet it. A recent Jersey case illustrates how this works.
Lawyers are often asked to review employment contracts, including post-termination restrictions. It is increasingly common to see covenants that either restrict the former employee from holding any interest in a competing business or limit the amount of shareholding that they can have. If a contract uses this language, it could lead to the entire restrictive covenant being unenforceable.
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.
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.
The procedure governing the reinstatement of a dissolved Jersey limited company is contained in the Companies (Jersey) Law 1991. Where a company has been dissolved or, most commonly, struck off the register by the registrar of companies after failing to file an annual return, the Royal Court has the power to declare the dissolution void and order the reinstatement of the company.