Recent statutory amendments, introduced by the Companies Amendment Act 2013, mean that Bermuda companies listed on appointed stock exchanges are no longer required to file prospectuses in Bermuda. This amendment is the latest revision to Bermuda corporate law seeking to keep the solid foundations that have served the jurisdiction well for so long.
There has been a significant increase in contentious and non-contentious trust matters arising from family disputes in relation to Bermuda trusts. Most often, these involve wealthy international dynastic families or family corporations. Several recent rulings are of interest to overseas trust practitioners who advise private clients in relation to their dealings with Bermuda trusts.
The Bermuda Regulatory Authority recently ruled on a complaint filed by telecommunications provider Digicel Bermuda stating that internet service provider North Rock Communications Limited was providing bundling services and should not be doing so until integrated communications operating licences are issued. The decision marks the dawn of the practical application of the new telecommunications regime.
The previously unavailable concept of mergers has been introduced to the Companies Act as an alternative to the existing amalgamation provision. The amendments have made significant beneficial changes to the act – conveying Bermuda's commitment to business and adaptation to the needs of the global marketplace, while maintaining high standards of corporate governance and reputation as a premier offshore jurisdiction.
Bermuda is emerging as a leader in the global insurance-linked securities market, just three years after such securities were first listed on the Bermuda Stock Exchange. The island will further make its mark on the world stage when it hosts the global insurance-linked securities conference in November 2013. Moreover, there are good reasons to anticipate that this market will continue to grow in Bermuda.
The Bermuda Corporate Service Provider Business Act 2012 recently came into effect. This legislation establishes a new licensing and supervisory regime for professional corporate service providers, which act as agents for the formation of corporate entities and provide corporate secretarial services. The changes will facilitate the formation of new companies and partnerships.
The Bermuda government has decided that its Measures to Inhibit Long-Term Residency policy (more commonly known as the 'term limit policy') is to be cancelled, effective immediately. Home Affairs Minister Michael Fahy called the policy a "barrier to job creation", and the government stated that ending the policy is intended to encourage economic growth and job opportunities for Bermudians.
The Trusts Special Provisions Act gives Bermuda the ultimate competitive advantage, affording it almost unlimited opportunities to compete with other jurisdictions in providing unique trust solutions to fit complex requirements. All that is needed now is a return to legal creativity in the drafting and establishment of purpose trusts in order to realise that competitive advantage.
Bermuda has signed tax information exchange agreements with both Brazil and Singapore. The agreements seek to establish effective information exchange systems with the two countries with respect to tax matters. The agreements also support one of the key objectives of the Organisation for Economic Cooperation and Development: to promote the enforcement of tax laws.
A recent amendment to the Companies Act 1981 has removed a significant impediment to foreign investment in Bermuda. This liberalisation is a major step in Bermuda's attempt to stimulate economic growth by offering an opportunity for foreign investors to participate in its development. It is also further evidence of the modernisation of the legal and regulatory regime, which the government seems ready to support and encourage.
Same-sex couples who have entered into a marriage or civil union/partnership abroad should be aware that such 'marriages' will likely not be recognised in Bermuda – and that will have an impact on their estate planning. Such couples should take care to clarify and protect their rights and the rights of surviving spouses in Bermuda.
The Companies Amendment (No 2) Act 2011 has come into effect. Among other things, the act provides for greater flexibility in corporate administration, simplifies the requirements for the electronic tranfer of securities and introduces the previously unavailable concept of mergers as an alternative to other business acquisition models.
The Senate recently passed the Companies Amendment (Number 2) Act. The act updates and improves Bermuda's company law and provides, among other benefits, the opportunity for simplified management and operation of companies and an enhanced choice of corporate structures for mergers and acquisitions – all of which are aimed at making Bermuda a more attractive and competitive jurisdiction.
It is unlawful for an employer to discriminate against a disabled employee on the basis of disability unless 'unreasonable hardship' on the part of the employer can be proven. The Human Rights (Unreasonable Hardship) Amendment Act 2011 has now amended the need for the relevant minister to issue specific rules to govern how 'unreasonable hardship' is determined.
A recent review by the European Insurance and Occupational Pensions Authority has raised hopes that Bermuda's regime for commercial insurers will meet regulatory equivalence with the new Solvency II rules for the large commercial (re)insurance sector, but without having to impose the same complex rules on the captive insurance sector.
The Bermuda Monetary Authority has published its latest regulatory update which contains figures for the first quarter of 2011. Developments include the launching of a series of industry awareness sessions and technical workshops to ensure that the insurance market remains aware of new requirements resulting from the authority's regulatory enhancements.
Often a trust gives powers to someone other than the trustee, usually because the settlor wishes to introduce a third party into the trust in order to police the actions of the trustee. The office of protector involves conferring a supervisory power on the appointee through the inclusion of various powers in the trust deed. A protector is routinely given the responsibility to approve (and thus the right to veto) certain actions of the trustee.
The Bermuda Stock Exchange is celebrating its 40th anniversary this year. Due to the time-zone positioning of Bermuda, the exchange provides a trading venue in a Western time zone for securities of Asian, Latin American, North American and European issuers, as well as facilitating efficient fund raising in the United States by non-US issuers.
Modern-day trust deeds often contain substantial powers in favour of a third party, usually referred to as a 'protector'. A protector is introduced into the trust in order to oversee the actions of the trustee. A trust protector has a fiduciary duty to exercise his or her powers in the best interests of the beneficiaries. However, sometimes a protector can abuse the powers granted under the legislation.
The Bermuda government recently enacted the Exempted Undertakings Tax Protection Amendment Act 2011. The act extends the duration for which the minister of finance may grant an assurance to international businesses that are identified as exempted undertakings, so that in the event of certain taxes being introduced in Bermuda, they will not apply to such entities or their operations.