Private Client & Offshore Services, Ogier updates

Cayman Islands

Contributed by Ogier
Economic substance requirements: overview
  • Cayman Islands
  • 08 April 2021

The International Tax Cooperation (Economic Substance) Act reflected the Cayman Islands' commitment to its obligations as a member of the Organisation for Economic Cooperation and Development's global Base Erosion and Profit Shifting Inclusive Framework and corresponding EU requirements for no or nominal tax jurisdictions. This article summarises the key elements of the act and draws upon guidance issued by the Tax Information Authority.

Short-form mergers: Changyou.com judgment confirms appraisal rights
  • Cayman Islands
  • 01 April 2021

The Grand Court has confirmed that shareholders of companies that effect a short-form merger pursuant to Section 233(7) of Part XVI of the Companies Act (2021 Revision) are entitled to be paid the fair value of their shares on dissenting from the merger under Section 238 of the act. The eagerly awaited judgment in Changyou.com clarifies an issue which was previously the subject of extensive debate and provides welcome certainty to minority shareholders of Cayman companies.

Estate experiences: administering an estate with Cayman assets
  • Cayman Islands
  • 25 March 2021

In every case of an individual dying leaving assets in the Cayman Islands, some form of grant must be obtained in order for the Cayman assets to be legally administered. The Cayman Islands as a jurisdiction has a robust framework for resolving estate disputes. The availability of professional trustee service providers to be appointed as personal representatives and who can draw on their substantial executor and trusts experience in complex estates is also a huge advantage.

Commencing proceedings against a Cayman company in liquidation: having a case worth entertaining
  • Cayman Islands
  • 18 March 2021

The Grand Court recently considered the statutory moratorium against commencing proceedings against a Cayman company in liquidation. The court held that a plaintiff which launches originating proceedings against a company in liquidation, seeking adverse orders against that company, requires leave of the court to bring the proceedings. It also held that the plaintiffs in this case did not have "a case worth entertaining" in respect of either basis on which they had brought their applications.

Clarification on scope and meaning of Cayman firewall legislation and forum for administration clauses
  • Cayman Islands
  • 11 March 2021

A recent court judgment is the latest in a line of Cayman Islands court decisions which have considered the meaning and scope of the Cayman firewall provisions. The Grand Court has now provided important clarification about the effect of Section 90 of the Trusts Act 2020, confirming that it does not operate to bestow exclusive jurisdiction on the Cayman Islands courts (as previous cases have suggested) and that common law principles of forum non conveniens still have relevance and application.


Guernsey

Contributed by Ogier
Snapshot: 'momentous decision' applications by trustees
  • Guernsey
  • 08 April 2021

The terms of a trust deed will usually extend the powers conferred on trustees by the Trusts (Guernsey) Law 2007. When deciding to exercise these powers, trustees must consider all of their legal and fiduciary obligations. However, it is not always that simple; at some point a trustee will be faced with a decision so important or complex that it wishes to seek the blessing of the Royal Court. In Guernsey, such applications are known as 'momentous decision' or 'blessing' applications.

Restructuring and insolvency guide
  • Guernsey
  • 18 March 2021

This article answers key questions regarding restructuring and insolvency in Guernsey. In particular, it covers domestic procedures, cross-border procedures, creditors, avoidance transactions and contributions to the liquidation estate and liability of officers.

Snapshot: starting civil proceedings in Guernsey
  • Guernsey
  • 11 March 2021

The civil litigation procedure in Guernsey is governed by the Royal Court Civil Rules 2007. All commercial disputes with a value over £10,000 are heard in the Royal Court; disputes with a lower value are dealt with in the Magistrate's Court. This article outlines the procedure for civil proceedings in Guernsey, which differs depending on whether the defendant is in or outside Guernsey.

The Carlyle case – the final chapter
  • Guernsey
  • 04 March 2021

The long-running Carlyle case recently came to an end when the parties reached a non-confidential settlement. The case arose from the March 2008 collapse of Carlyle Capital Corporation Ltd, a Guernsey fund which invested mainly in residential mortgage-backed securities issued by US government-sponsored entities Fannie Mae and Freddie Mac. The case is of particular relevance now during the COVID-19 pandemic, which will likely lead to more fund collapses.

Snapshot: pre-action disclosure
  • Guernsey
  • 11 February 2021

Unlike in England, pre-trial disclosure against a third party is generally not available in Guernsey. However, there are exceptions to this rule. This article sets out the main exceptions - namely, claims for personal injury or in respect of a person's death, ancillary orders to freezing injunctions, Anton Piller orders, Norwich Pharmacal orders and Bankers Trust orders.


Jersey

Contributed by Ogier
Royal Court intervenes to set aside trustee decision
  • Jersey
  • 08 April 2021

In a recent case, the Royal Court intervened to set aside a decision of the trustee not to make the spouse of the settlor a beneficiary in her own right. The court's decision has implications for trustees and their obligation to act reasonably despite the trustee setting out reasons for its original decision.

Wills and probate law and COVID-19: current state of play
  • Jersey
  • 25 March 2021

Despite the various challenges arising from COVID-19 restrictions, individuals and businesses have shown resilience and an ability to swiftly adapt in order to make the most of the new reality – and Jersey has been no different. In particular, the States of Jersey were among the first in the world to introduce new wills and probate legislation as a direct result of the impact of the pandemic.

Mandatory disclosure rules
  • Jersey
  • 04 March 2021

The Taxation (Implementation) (International Tax Compliance) (Mandatory Disclosure Rules for CRS Avoidance Arrangements and Opaque Offshore Structures) (Jersey) Regulations 2020 are expected to come into force shortly. The regulations will primarily affect promoters and service providers of certain arrangements, implementing a 30-day window to report disclosable arrangements to the Comptroller of Revenue. Failure to comply may lead to financial penalties and, in some instances, criminal penalties.

Registering a foreign power of attorney
  • Jersey
  • 25 February 2021

If a person holds assets in Jersey, they may wish to appoint someone who can manage those assets in the event that they should lose capacity to such an extent that they can no longer do this themselves. At present, there is no facility for such individual to put a local Jersey lasting power of attorney in place to cover their Jersey-based assets. Instead, the Royal Court will recognise the foreign power of attorney, provided that power of attorney is registered with the court.

Impact of COVID-19 pandemic on fund manager substance arrangements
  • Jersey
  • 18 February 2021

In 2020 the comptroller of revenue issued practical guidance which stated that where a company had to alter its operating practices to compensate for the COVID-19 outbreak, the comptroller would not determine that such company had failed the economic substance test under the Taxation (Companies – Economic Substance) (Jersey) Law 2019. As such, fund managers have had to make a number of adjustments to ordinary business practices in line with this guidance.


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