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Walkers is a leading international law firm. We advise on the laws of Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, Ireland and Jersey.
GlobalMap Oct2019
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AIFMD – Room for improvement

On 18 August 2020, the European Securities and Markets Authority (“ESMA”) sent a letter to the European Commission (the “Commission”) setting out suggested improvements to the Alternative Investment Fund Managers Directive (“AIFMD”) for consideration as part of the Commission’s current review of AIFMD. While the focus of the letter is on AIFMD, several suggestions also relate to amendments to the Undertakings for Collective Investment in Transferable Securities (“UCITS”) framework.

Two annexes to the letter contain the detail of the suggestions being put forward by ESMA. Annex I sets out 19 key issues relating to the legislative framework where ESMA recommends amendments. Annex II sets out suggested amendments to the AIFMD reporting regime and use of data.

 

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Updates to the Cayman Islands Beneficial Ownership Regime

The Cayman Islands beneficial ownership regime (“Regime”), which came into force on 1 July 2017, has been revised by amendments to the laws which came into force on 29 June 2020, with amendments to the associated regulations on 31 July 2020 (together, the “Amendments”).

The Regime requires Cayman Islands companies and limited liability companies (together “Companies”) to establish and maintain beneficial ownership registers unless they are exempt. Please see our previous advisory for further details in relation to the Regime.

Key changes introduced by the amendments include a shift of responsibility for issuing restrictions notices, a more detailed administrative fines regime, and an evidential assumption of breach where a beneficial ownership register remains in ‘enquiries pending’ status for three or more calendar months. 

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Guernsey Adopts New Statutory Regime For Migration of Limited Partnerships

Limited partnerships which are registered overseas may now migrate into Guernsey under the Limited Partnerships (Guernsey) (Migration) Regulations, 2020, which came into force on 30 July 2020.

The LP Migration Regulations mirror the migration procedures already in force for companies under the Companies (Guernsey) Law, 2008, which allow companies to migrate into and out of the jurisdiction. The LP Migration Regulations are a further step to simplify the procedure for moving existing overseas funds into Guernsey, following the introduction by the GFSC of a fast track application regime for the migration of fund managers in June 2020.

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Relying on Digital ID for AML/CFT Purposes in Jersey and Guernsey

The financial services regulators in both Guernsey and Jersey have for several years officially recognised that regulated firms may, subject to appropriate safeguards, use electronic or digital means to meet their AML/CFT obligations to identify and verify the identities of their customers. This is in line with the position taken by the FATF – the intergovernmental body whose Recommendations are the accepted international standard on AML/CFT – and followed by many other regulators around the world.

In our experience, regulated firms in the Channel Islands have in large part continued to rely on traditional, paper-based means of verifying identity – but in the last few months, lockdowns imposed around the world in response to the Covid-19 pandemic have made it highly impractical or impossible to verify customers’ identities by such means, which has brought digital systems for identification and verification of identity into focus, and may well accelerate the transition from paper based to digital systems as the default means of verifying identity.

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Adjourning a Winding up Petition: The Standing of a Secured Creditor in the Cayman Islands

In the recent judgment of the Grand Court of the Cayman Islands (the "Grand Court") in the matter of G3 Exploration Limited (Formerly Green Dragon Gas Ltd.) (the "Company"), Justice McMillan provided helpful guidance on the application of principles governing two pertinent areas of insolvency law in the Cayman Islands: (1) the standing of a secured creditor to petition; and (2) the circumstances in which the Court may direct the adjournment of a winding up petition.

The Court had previously ordered that the Company be placed into provisional liquidation to allow the joint provisional liquidators, Mr. Alexander Lawson and Mr. Christopher Kennedy of Alvarez & Marsal Cayman Islands Limited, and Ms. Tiffany Wong of Alvarez & Marsal Asia Limited (the "JPLs") to determine whether or not a restructuring of the Company deserved further consideration, or whether a winding up order should be made. The Company argued that there were sufficient grounds to provide for a further adjournment of the petition, relying upon the JPLs' findings that a restructuring remained viable. This position was also supported by another creditor of the Company.

The Court concluded that a further adjournment of the petition for a period of four months was in the ultimate interests of the Company's stakeholders, noting that "there was no immediate tangible benefit in granting a Winding Up Order and that there was credible evidence before the Court that there is a reasonable prospect that the Petitioner's debt would be paid within a reasonable time." In delivering the Reasons for Judgment, Justice McMillan focussed on the two particular issues of law identified above.

1. The Standing of a Secured Creditor to Petition

Justice McMillan noted that the question of a secured creditor's standing to present a winding up petition had not previously been dealt with by the Grand Court. In making his finding on this issue, Justice McMillan accepted that a secured creditor has standing to petition for the winding up a company in the Cayman Islands, and to the extent that the secured creditor's security is relevant, its relevance would be as to weight rather than to standing.

2. The Principles Governing the Adjournment of a Winding Up Petition

The four month adjournment was granted on the basis that the Court found there was a reasonable prospect that the petitioner's debt would be paid within a reasonable period of time, and conversely, there was no immediate tangible benefit to winding up the Company. In coming to this conclusion, Justice McMillan observed that the views of the secured petitioner were counterbalanced by the views of the other creditor and those of the JPLs, who both saw merits in an adjournment being granted. The Company itself was also seeking an adjournment. Whilst the ultimate success of the petitioner's debt being repaid pursuant to the proposed refinancing could not be guaranteed, the situation was deemed to be sufficiently promising for it to be examined further.

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