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Ireland Trainee Solicitor Programme

Walkers is pleased to announce that we are now accepting applications for our 2018/19 Ireland Trainee Solicitor Programme.

 

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Approach to Blessing a Decision to Engage in Adverse Litigation

The Royal Court has provided helpful guidance to trustees of charitable trusts with regard to what is expected of them when seeking to engage in litigation on behalf of the trust and as to the approach that the Royal Court will take in blessing such a momentous decision.

The case of In the Matter of the F Charitable Trust [2017] JRC 142 concerned an exclusively charitable Jersey law trust (the Trust). The Representor Trustees had engaged in foreign legal proceedings, seeking recovery of a substantial debt (the Debt) which was owed to the Trust. The Trustees applied for Beddoe relief, seeking the Court’s sanction of the steps taken by it in proceedings that had occurred to date and a direction that they be permitted to maintain and pursue the proceedings either to conclusion, or to conclusion of the discovery process, whichever was the earlier. Owing to the charitable nature of the Trust, Her Majesty’s Attorney General (the AG) was joined to the application as the partie publique (which involves representing the public interest in civil matters such as proceedings concerning charities). 

 

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Guernsey Data Trusts: three important reasons why you should use them

Whilst the financial value in data is being increasingly recognised, data itself is starting to be seen as a commodity that perhaps is now more important than oil. However, whilst significant technical advancements continue to be made to safeguard data, advancements in the legal tools to protect data have possibly lagged behind. Further, different countries continue to introduce conflicting requirements for protecting and requiring disclosure of data (such as the EU's General Data Protection Regulation and the US PRISM program), creating the so called "splinternet" phenomenon and additional legal risks for international businesses.

To solve these issues, at Walkers we have been working on a project to develop an innovative legal structure to hold and protect data.

Guernsey Data Trusts

Trusts are extensively used in Guernsey to protect assets. A trust is a legal arrangement whereby a person (the settlor) transfers assets to another person (the trustee) to hold for the benefit of the settlor or other persons (the beneficiaries) or for a specified purpose. The trustee becomes the legal owner of the assets, which the trustee must manage for the benefit of the beneficiaries or for the specified purpose. The terms on which the trustee holds the assets are set out in a trust instrument document. A Guernsey trust can be used to hold any types of assets, and any share, right or interest in the assets, including tangible and intangible property, and other rights and interests. In relation to data, examples of rights could include intellectual property rights in the data as well as licences to access, process and store the data. 

Under a data trust, the trustee would hold the rights to the data, is legally responsible for the data and must apply the data for the benefit of the beneficiaries, or for the purpose of the trust. Importantly, the rights attaching to the data should be held by the trustee in Guernsey (although a third party data centre in Guernsey could be used to store the data) in accordance with Guernsey law requirements, including for data protection. The settlor and beneficiaries can be located anywhere in the world.

Authored by senior associate Stephen Ozanne, this article first appeared in EnVoyage Magazine.

 

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A Cayman Islands Perspective on the Private Funds Market

Ingrid Pierce and Matthew Goucke assess the private funds landscape in the Cayman Islands in relation to the global market.

In the world of private funds, 2017 has been anything but dull. Global events have influenced not only fund strategies and the geographies in which funds invest, but also where managers choose to locate their business operations. Funds are attracting international capital and are using multiple jurisdictions to domicile their products. The Cayman Islands continue to be the primary offshore jurisdiction for private fund managers in the US, the UK and parts of Asia, including Japan.

This article first appeared on whoswholegal.com in November 2017.

 

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The Path to Redemption Is Not Always Smooth

‘The Path to Redemption Is Not Always Smooth’: Unfortunate Consequences for Unredeemed Investors in the Cayman Islands.

A recent judgment of the Judicial Committee of the Privy Council (‘Privy Council’ or ‘Board’), the ultimate appellate court of the Cayman Islands, has provided certainty for investors and insolvency practitioners alike with respect to the enforceability and priority to be afforded to investors’ claims for unpaid redemption proceeds in the winding up of Cayman Islands investment funds. The judgment has, however, given rise to rise to commercially unfortunate results in that the effects of a mis-stated NAV now appear capable of being perpetuated in a winding up, regardless of the fund’s ability (or inability as the case may be) to lawfully make payment of redemption proceeds prior to the commencement of liquidation.

The Privy Council decision is the most recent in the ongoing liquidation proceedings of Herald Fund SPC (‘Herald’). Herald was, in terms of its constituent documents at least, a fairly typical Cayman Islands domiciled open-ended mutual fund, often referred to as a ‘hedge fund’. However, as explained below, Herald’s sole investment turned out to be a substantial investment in the Madoff Ponzi scheme and Herald ultimately ended up in official liquidation in the Cayman Islands.

This aspect of the proceedings involved an important point of statutory construction, namely how section 7(7) of the Companies Law operates in the factual context of Herald which involved claims to significant unpaid redemption proceeds which were sought to be enforced several years after the discovery of the Ponzi scheme and which with the benefit of hindsight were clearly based on a mis-stated NAV. The outcome of the proceedings is highly material to Herald’s various categories of stakeholders (the redemption claims being valued at almost USD 200m). The issue is one that has rarely confronted the Grand Court in any detail and certainly this was the first time it had been considered at the highest appellate level.

 

This article first appeared in Volume 14, Issue 6 of International Corporate Rescue and is reprinted with the permission of Chase Cambria Publishing - www.chasecambria.com

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You Gotta Have (Good) Faith | The Cayman LLC Law

The Limited Liability Company (LLC) in the Cayman Islands has proven to be a popular vehicle from the outset. One of the key selling points of the LLC is the ability for clients to mirror the terms of their onshore vehicles and structures; and for that reason, the Limited Liability Companies Law (the Cayman LLC Law) has been closely modelled on the Delaware vehicle of the same name. However, in response to our discussions with users of the Delaware product, the Cayman model has one key departure: it offers contracting parties a greater degree of flexibility and certainty when considering the duties owed by members to one another.

The Cayman Islands legislation did not import the implied covenant of good faith and fair dealing, which we understand is the only duty that cannot be waived, modified or eliminated in a Delaware LLC agreement. The resulting ability to expressly define the duties applicable to the parties to an LLC agreement entirely within that document affords the contracting parties, who are typically sophisticated and experienced, the flexibility to negotiate their agreement with the certainty that its terms will be considered entirely within the four corners of the contract. The uncertainty inherent in the implied covenant of good faith and fair dealing, with the potential that exists under Delaware law for an exercise of judicial discretion in a way that may run counter to the true intention of the parties, is avoided...

 

This article first appeared in The Drawdown; Private Equity Funds Cayman 2017.

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