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Walkers' international Private Capital & Trusts team has been named in the highest tier by independent publisher eprivateclient for the sixth consecutive year.

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Walkers' Guide to Token Issuances, DAOs and Foundation Companies in the Cayman Islands

Since the inception of Walkers' Global Fintech Group in 2017, the virtual assets and blockchain sectors have grown materially and become increasingly sophisticated. In response to the demand from our clients we have worked on a wide range of mandates in this space. We have continually been at the forefront of innovation in this area and have advised our clients on how to navigate through the complex legal and regulatory issues that frequently arise. As a result we have obtained significant experience in advising clients on their journey from a small team looking for seed capital through to a fully decentralised operation.

In this guide we will consider the most common roadmap which we see used in connection with blockchain based projects. We will then look at some of the key questions which we regularly advise our clients on. These relate to why the Cayman Islands is the best choice for these types of projects, why foundation companies are increasingly used as legal wrappers for decentralised autonomous organisations ("DAOs") and how to undertake a token issuance in the context of the Virtual Assets (Service Providers) Act (the "VASP Act"). We will also consider the key service providers which need to be engaged to facilitate the structures discussed below.


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Privy Council considers the enforcement of foreign arbitral awards in the Cayman Islands

On 19 May 2022, the Privy Council's judgment in Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) (Respondent) v MatlinPatterson Global Opportunities Partners (Cayman) II LP and others (Appellants) (Cayman Islands) [2022] UKPC 21 provided guidance on the appropriate standard of due process to apply when considering challenges to enforcement of arbitration awards under the New York Convention.

The ruling unanimously upheld a decision of the Cayman Islands Court of Appeal to permit enforcement of a New York Convention award made in an ICC arbitration seated in Brazil, notwithstanding the debtor's arguments that (i) it was not a party to the arbitration agreement, (ii) there had been procedural defects in the arbitration hearing that afforded a right to resist enforcement, and (iii) that the ultimate award had been outside the scope of the submission to arbitration.

More interestingly, on the second of those issues the Board held that the parties had been afforded a sufficient opportunity to present their case despite the Tribunal having based its decision on a point of law which was not raised in the course of the arbitration hearing, and which was then not raised by the Tribunal with the parties to invite their comments prior to issuing its decision. As such, the resisting debtor had no opportunity to address the issue in argument.

Notwithstanding that position, the Board permitted enforcement of the award in the Cayman Islands because the tribunal made its decision on a factual basis which was well understood by the parties and fully argued during the hearing–the only failure was to afford the parties an opportunity to make legal arguments. A distinction was drawn between cases in which a party was denied the opportunity to answer a significant factual allegation or evidence (which the Board considered to be "…fundamentally unfair") and cases where the complaint related to legal reasoning. It was noted that in civil law jurisdictions courts frequently took a more proactive approach to applying the law than was familiar in common law systems – "…it is expected that the judge will bring his or her own knowledge of the law to bear in deciding a case, independently and in addition to the legal arguments and materials adduced by the parties".

It was accepted that that as a general rule of Brazilian law, a tribunal was not obliged to inform the parties that a particular legal theory or legal rule would be applied prior to making a decision on the basis of that theory or rule, and as such there had not been any violation of due process. The Board were at pains to point out that in looking at the standard of fairness that should be applied to international arbitration, whilst it was not simply a search for the lowest common denominator of standards in differing national systems, the court should attempt to identify a set of minimum requirements which would "generally, even if not universally, be regarded throughout the international legal order as essential to a fair hearing". What was not an adequate basis for challenge was merely demonstrating that the process did not conform with the approach to due process in the legal culture of the state where the award was sought to be enforced.

As such, whilst candidly accepting that the case was a difficult one, the Board ultimately therefore held that the parties had been given an adequate opportunity to present their case before the Tribual (and subsequently the courts in Brazil), and thus that the Cayman Islands Court of Appeal was correct to enforce the arbitration award in the Cayman Islands. In order to justify a conclusion that a party had been denied the opportunity to present its case, it was said that "..what is required is proof, not merely that a procedure was adopted which was irregular or undesirable, but of fundamental unfairness which goes to the essence of the right to be heard".

Whilst issued in the context of enforcement in the Cayman Islands, this decision will be of interest to practitioners in all common law jurisdictions who have implemented the New York Convention.

Jersey Funds Law Series – ESG Funds and Sustainable Investments

The Jersey Financial Services Commission (the “JFSC”) has recently introduced new disclosure requirements in respect of funds which are marketed on the basis of making investments which contribute to either an environmental or social objective (“Sustainable Investments”) (“ESG Funds”), to address the risk of Sustainable Investments being mislabelled. This was in response to growing international concern about firms marketing investments that appear more environmentally and socially focussed than they really are, and changes to international regulation.

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Jersey Funds

When a Jersey ESG Fund (i.e. a Jersey Private Fund or a Collective Investment Fund) is marketed on the basis of investing in a Sustainable

Investment as part of its investment objective, it must disclose (via website, or pre-contractual document, private placement memorandum, offer document, or documents in which the terms of investing in the fund are contained such as a subscription agreement) all material information in relation to the sustainable investment strategy and objectives; including but not limited to:

  • alignment with any specific taxonomy, or where there is no alignment to a specific taxonomy a statement to that effect;
  • the proportion of investments that are sustainable;
  • the basis on which due diligence, benchmarking, and performance measurement and reporting, are likely to be conducted; and
  • any limitations to methodologies and data.
Funds Services Businesses

Similarly, when a funds services business (i.e. a Jersey fund service provider regulated for the conduct of fund services business under the Financial Services (Jersey) Law 1998, the “FS Law”) (a “Registered Person”) provides services in relation to an ESG Fund, the Registered Person is under an obligation to disclose the same material information in respect of such an ESG Fund, but only if:

  • the Registered person cannot evidence that the ESG Fund has complied with the equivalent requirement in the Code of Practice for Certified Funds; and
  • the Registered person is the governing body of the ESG Fund (e.g. self-managed fund, general partner or trustee) or otherwise accepts responsibility for the website, pre-contractual document, prospectus, or documents in which the terms of investing in the ESG Fund are contained such as a subscription agreement.
Where a Registered person is not subject to the disclosure requirements set out above, the Registered Person must still notify the JFSC, in writing, within five business days of the Registered person becoming aware of the ESG Fund not disclosing such material information in relation to the sustainable investment strategy and objectives of the ESG Fund.

Investment Business

Persons registered to carry on Investment Business under the FS Law that provide investment advice on ESG Funds must either inform and make available to the client, the appropriate disclosure information in relation to the sustainable investment strategy and objectives of the ESG Fund, or inform the client if no such disclosure information is available.

Updates to JFSC’s JPF Guide and Codes of Practice

Following feedback to the JFSC’s sustainable investments consultation, each of the below have been amended to set out the relevant disclosure requirements in respect of ESG Funds:

  • Certified Funds Code of Practice;
  • Fund Services Business Code of Practice;
  • Investment Business Code of Practice; and
  • Jersey Private Fund Guide.
Effective Dates

For Jersey Private Funds, Collective Investment Funds and Funds Services Business, the effective date for new funds created on or after 15 July 2021 is 15 July 2021, and for funds which existed prior to 15 July 2021 the effective date of 17 January 2022 applies. For Investment Business, the effective date for new funds is January 2022.

Walkers’ Jersey funds team has advised on the launch of a number of ESG Funds and was actively involved in the consultation and drafting stages of the new ESG rules summarised in this briefing. Please contact your usual Walkers contact if you wish to find out more.

Cayman Update: Return of Mistaken Payments held on Constructive Trust

On 26 April 2022, Chief Justice Smellie QC in Re Premier Assurance Group SPC Ltd. (in Official Liquidation) sanctioned a decision by the joint official liquidators ("JOLs") of Premier Assurance Group SPC Ltd (in Official Liquidation) (the "Company") to return (or procure the return of) certain payments held by or on behalf of the Company referable to one of its segregated portfolios, Premier Assurance Segregated Portfolio ("PASP"), to the respective payors on the basis that such sums were paid by mistake. The Court held that such payments received after the presentation of the winding up petition against the Company on 26 October 2020 (the "Winding Up Petition") are held by the Company (referable to PASP) as constructive trustee from the moment that such funds were received.

In summary, the JOLs sought Court sanction to return (or procure the return of) over 6,000 premium payments held by or on behalf of the Company referable to PASP, which had been received from participants who hold or have held insurance policies referable to PASP (the "Participants"). Such payments (which were referred to collectively as the "Mistaken Payments") were made after the deemed commencement date of the winding up of the Company on 26 October 2020 and generally represented direct debits which had not been cancelled by the Participants.


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Bermuda – An Ideal Location for International Business

This briefing explains Bermuda’s adoption of rigorous international tax and regulatory standards, which, in conjunction with local laws, make Bermuda an ideal location for investment funds and other investment and finance vehicles. Bermuda is a leading global finance centre with top-tier financial services professionals. International companies select Bermuda as their jurisdiction of choice for its political and financial stability that facilitates investment in a tax-neutral environment whilst maintaining best-in-class regulatory standards.


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