Private Client & Offshore Services updates

Bahamas

Contributed by Lennox Paton
COVID-19: force majeure and contract frustration
  • Bahamas
  • 01 October 2020

The COVID-19 pandemic has disrupted commercial activity on a global scale, challenging contracting parties' ability to fulfil their legal obligations. Force majeure clauses and frustration principles may provide some relief to those which may otherwise incur liability because of non-performance. However, there does not appear to be any clear case law precedent for COVID-19, so it is uncertain whether the pandemic will be deemed a frustrating event by the courts.

Guide to purchasing property in The Bahamas
  • Bahamas
  • 27 August 2020

A second home in The Bahamas has been a highly sought-after commodity for international buyers from time immemorial. The Bahamas is an archipelagic nation of 700 islands and cays, with each island providing its own charm and unique Bahamian culture. As the value of real property in the jurisdiction tends to hold or gradually appreciate over time, the purchase of real property remains a viable and attainable wealth-creating mechanism.

Tax consequences of transferring Bahamian real property held by a company for estate planning purposes
  • Bahamas
  • 23 July 2020

Bahamian real property is commonly held by a company which is incorporated in The Bahamas or another jurisdiction whose shares may be held by an individual or their nominee. A 'beneficial owner' is any person who is beneficially interested in the real property, including a beneficiary under a trust. This article considers the tax consequences of transferring Bahamian real property held by a company for estate planning purposes.

COVID-19: summary of legislation enacted in relation to corporate regulations and businesses
  • Bahamas
  • 04 June 2020

In response to the COVID-19 pandemic, the governor general declared a public state of emergency and implemented the Emergency Powers (COVID-19) Regulations 2020. Pursuant to the regulations, the prime minister implemented the Emergency Powers (COVID-19) (2) Order 2020 and the Emergency Powers (COVID-19) (Special Provisions) Order 2020. This article provides a summary of the provisions contained in the orders.

Has COVID-19 affected real estate transactions?
  • Bahamas
  • 28 May 2020

Restrictions on both domestic and international travel, lockdowns and curfews have been imposed in The Bahamas to restrict movement in an attempt to reduce the spread of COVID-19. While law firms have had to close their physical doors to the general public, real estate and resort development attorneys have embraced new and efficient procedures for closing transactions.


Belize

Contributed by Courtenay Coye LLP
International arbitration: outlook
  • Belize
  • 05 March 2020

Foreign arbitration is seen as an alternative method of dispute resolution that may be preferred to litigation. However, Belize case law has identified the difficulties that might be encountered by an award holder in attempting to enforce an award. It is also arguable that the option of foreign arbitration has been undermined by the passing of the Crown Proceedings (Amendment) Act and the Central Bank of Belize (International Immunities) Act 2017.

International arbitration: local court developments
  • Belize
  • 27 February 2020

Arbitration in Belize is governed by the Arbitration Act. As the act was last amended in 1980 (1980 Ordinance), it has become somewhat outdated. However, the 1980 Ordinance assisted in Belize's assimilation of a modern arbitration enforcement regime by incorporating the New York Convention into domestic law. This article looks at recent arbitration developments in the local courts, including cases concerning qualifications of or challenges to arbitrators and investor-state disputes.

International arbitration: key legislative developments
  • Belize
  • 20 February 2020

Arbitration in Belize is governed by the Arbitration Act. As the act was last amended in 1980, it has become somewhat outdated. However, these amendments assisted in Belize's assimilation of a modern arbitration enforcement regime by incorporating the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 into domestic law. In 2017 legislation was enacted that has directly affected the enforcement of foreign arbitral awards in Belize and abroad.

The importance of legal advice for timeshare rights
  • Belize
  • 16 July 2015

The Supreme Court recently highlighted the need to comply strictly with essential legal requirements when investing in property abroad. It found that US citizens who had purchased timeshare interests in a residential resort could not exercise their purported rights in priority of a bank's mortgage interest on the property because they had not registered their timeshares or paid the required stamp duty.

Directors' indemnities foolproof
  • Belize
  • 16 April 2015

The Belize Court of Appeal recently confirmed that indemnities given by a Belizean company to its directors deprived the company of a cause of action to pursue a claim against former directors for decisions taken during their term as company directors. Belize continues to recognise blanket indemnities given by a company to directors as legal.


Bermuda

COVID-19 company update
  • Bermuda
  • 26 March 2020

The Bermuda Registrar of Companies and the Bermuda Monetary Authority (BMA) recently issued information on the steps that they have taken to protect the public and ensure the continuity of business in Bermuda as it responds to the coronavirus. The registrar has implemented contingency measures to protect staff and members of the public, while the BMA has activated its business continuity plan and implemented social distancing protocols and remote working options for all external meetings.

Employment law guide: responding to COVID-19
  • Bermuda
  • 26 March 2020

The coronavirus (COVID-19) was recently declared a Public Health Emergency of International Concern by the World Health Organisation. The situation continues to develop rapidly. Given the transient nature of the Bermuda workforce, Bermuda-based employers should consider taking steps now to manage risks both proportionately and sensibly. This article provides guidance to help Bermuda employers address some of the key queries and concerns.

Implementation of Cape Town Convention in Bermuda
  • Bermuda
  • 19 March 2020

As a result of the Cape Town Convention on International Interests in Mobile Equipment coming into force in Bermuda, leasing companies, owners, lenders and other parties that deal with Bermudian entities participating in aircraft transactions and/or aircraft registered in Bermuda may opt to take the additional steps necessary to obtain the protections conferred by the convention. This article revisits key points concerning the implementation of the convention and declarations relating thereto.

Blockchain and cryptocurrency regulation 2020
  • Bermuda
  • 20 February 2020

The current government was elected in 2017, having undertaken to create new economic pillars in Bermuda, identify new opportunities for economic diversification and seek local and overseas investment to develop new local industry and thereby create jobs in Bermuda. Since its election, the government has enthusiastically embraced the fintech sector and the potential that it offers and has repeatedly expressed its intention for Bermuda to be a significant centre for this industry.

Pension scheme amendments
  • Bermuda
  • 23 January 2020

Provisions of the National Pension Scheme (Occupational Pensions) Amendment Act 2019 recently came into force. Employers should now be familiar with some of the upcoming changes, which include the requirement to keep records in relation to payroll and employee-related pension information.


British Virgin Islands

Taking charge: Commercial Court delivers judgment on its jurisdiction to grant charging orders
  • British Virgin Islands
  • 06 June 2019

The Commercial Court recently confirmed that the BVI courts have jurisdiction to grant charging orders. Charging orders are a critically important tool, particularly when enforcing foreign judgments, as they allow creditors to take a proprietary interest over assets owned by a debtor and can ultimately facilitate the sale of such assets to allow creditors to realise their debts.

Scope of disclosure orders and contempt of court
  • British Virgin Islands
  • 30 May 2019

A BVI court recently considered a contempt application seeking further disclosure by way of an 'unless' order and whether cross-examination of the respondents should be ordered to determine the issue of contempt. This decision highlights the exceptional nature of cross-examination orders and the high standard of proof required for contempt orders.

Relief all round – Court of Appeal upholds relief from sanction
  • British Virgin Islands
  • 02 May 2019

The BVI Court of Appeal recently denied an appellant declaratory relief and upheld the respondents' relief from sanction, as granted by the lower court. While this judgment will inevitably provide some comfort to those that find themselves facing sanctions having inadvertently failed to comply with a rule, practice direction or order, it is a timely reminder for everyone that it is better to remain vigilant and compliant than to rely on the court's jurisdiction to grant relief from sanction.

No more second chances: Court of Appeal guidance on strike out
  • British Virgin Islands
  • 25 April 2019

The Court of Appeal recently clarified the procedural considerations required following the strike out of an action pursuant to Civil Procedure Rule 26.3. All three of the appellants' procedural grounds of appeal were rejected by the court, which held that (among other things) a judge must give a party which has a defective pleading an opportunity to put right any defect.

Misplaced trust – what happens when your trustee goes AWOL?
  • British Virgin Islands
  • 04 April 2019

In a recent case, an applicant succeeded in the increasingly commonplace but frustrating situation where the beneficiary of a revocable bare trust cannot obtain execution of the trust due to an uncooperative or defunct corporate nominee. The court ultimately granted the vesting order sought by the beneficial owner and appointed an insolvency practitioner as the statutory proper person.


Cayman Islands

Contributed by Ogier
Snapshot: bringing claims against Cayman entities subject to insolvency processes
  • Cayman Islands
  • 22 October 2020

To ensure the orderly and collective resolution of a company's affairs, the Companies Law imposes a moratorium on commencing or proceeding with any suit, action or other proceedings against the company once liquidators are appointed by the court (including on a provisional basis). Once these officeholders are appointed, proceedings can be commenced or proceeded with against the company in question only with the leave of the Grand Court, subject to such terms as the court may impose.

Q&A: earning residency through business investment
  • Cayman Islands
  • 15 October 2020

The Cayman Islands has two residency by business investment programmes: the Certificate of Direct Investment and the Residency Certificate (Substantial Business Presence). This Q&A provides insight into each programme, including whether applicants can eventually apply for a Cayman passport, how many applicants typically apply for residency and the associated costs.

Court of Appeal enforces foreign arbitral award in favour of Brazilian airline
  • Cayman Islands
  • 08 October 2020

The Court of Appeal has overturned an earlier decision of the Grand Court, thereby allowing the enforcement of an International Chamber of Commerce arbitral award issued in favour of a Brazilian airline. The decision raises important and difficult issues relating to the enforcement of foreign arbitral awards which are the subject of robust challenge before the courts of supervisory jurisdiction.

Update on economic substance
  • Cayman Islands
  • 01 October 2020

The Cayman Islands has comprehensive economic substance legislation, under which in-scope entities that carry on particular activities must demonstrate economic substance in the Cayman Islands. The Tax Information Authority, which is responsible for monitoring and enforcing the substance requirements in the Cayman Islands, recently published guidance on economic substance for geographically mobile activities.

Cayman injunctions in aid of foreign proceedings
  • Cayman Islands
  • 24 September 2020

Where a potential judgment debtor in onshore proceedings threatens to dissipate its assets, the plaintiff may face a pyrrhic victory with no assets against which to enforce its judgment. Where the defendant is a Cayman company or has assets in the Cayman Islands, the Cayman court has statutory jurisdiction to grant a freezing injunction in aid of those foreign proceedings, which can extend to the worldwide assets of the defendant.