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In In the matter of the M Trust [2017] JRC 198 | Jersey Law

In In the matter of the M Trust [2017] JRC 198, the Royal Court was asked to set aside the transfer of assets into a Jersey discretionary trust on the ground of mistake pursuant to Articles 11 and/or 47E of the Trusts (Jersey) Law 1984 (“TJL”).

The representor was the settlor (and sole discretionary beneficiary), who before setting up the trust, took advice from a UK tax adviser. The advice included the suggestion that due to the settlor’s non-UK domicile and the international nature of his work, he would benefit from setting up a trust in Jersey to hold certain assets. The settlor relied on this advice and accordingly, set up a Jersey trust.

A few years later and upon taking tax advice from a different tax advisor, it became apparent that the first adviser had failed to advise the settlor that as a deemed UK domiciliary, setting up a Jersey trust and in doing so, transferring the assets to the trustee, would incur a substantial UK tax liability.

Due to this, the settlor made an application to the Royal Court on the ground of mistake under both Articles 11 and/or 47E of the TJL.


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Updates to the Cayman Islands Beneficial Ownership Regime

The Cayman Islands beneficial ownership regime (“BOR”), which came into force on 1 July 2017, has been revised by amending legislation which came into force on 13 December 2017.

The BOR 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 Client Advisory for further details in relation to the BOR.

The amending legislation introduces certain key changes to the BOR. In particular, the amending legislation refines the categories of Company which are exempt from the BOR so that certain Companies which would have been in scope are now exempt and, conversely, certain Companies which would have been exempt are now in scope. Also, Companies which are exempt will now be required to submit a written confirmation with details of the exemption.


What are the key amendments to scope?

The amending legislation adds useful new exemptions to the BOR for Companies which are, or which are subsidiaries of one or more legal entities which are:

a) regulated in a jurisdiction considered by the Anti-Money Laundering Steering Group of the Cayman Islands as having equivalent anti-money laundering legislation to that of the Cayman Islands;
b) the general partner of a special purpose vehicle, private equity fund, collective investment scheme or investment fund which is registered or holds a licence under a regulatory law; or
c) holding directly a legal or beneficial interest in the shares of a legal entity licensed under certain Cayman Islands laws (namely the Banks and Trust Companies Law, the Companies Management Law, the Insurance Law, the Mutual Funds Law or the Securities Investment Business Law).

These new exemptions are in addition to the existing exemptions, further details of which are set out in our previous Client Advisory. However, pursuant to the amending legislation, Companies which are, or which are subsidiaries of, legal entities registered as excluded persons under the Securities Investment Business Law (“SIBL Excluded Persons”) are no longer exempt. Moreover, entities registered as SIBL Excluded Persons will not be regarded as “approved persons”. Thus, for example, a Company managed by a SIBL Excluded Person will no longer be exempt purely by virtue of the exemption for a Company “managed, arranged, administered, operated or promoted by an “approved person” as a special purpose vehicle, private equity fund, collective investment scheme or investment fund”.

The definition of “regulatory law” is amended to exclude the Directors Registration and Licensing Law. The amendments also clarify, for the avoidance of doubt, that a legal entity shall not be considered to be managed, arranged, administered, operated or promoted by an approved person solely as a consequence of the entity having appointed:

a) an individual who is an employee of a legal entity which holds a licence under a regulatory law as a director; or
b) an approved person to provide its registered office in the Cayman Islands.

What are the key amendments regarding provision of information?

Importantly, the amending legislation requires a Company that claims an exemption from the BOR to provide its corporate services provider (“CSP”) with written confirmation of the specific exemption, identifying the paragraph that provides for the exemption and including prescribed information about the regulated legal entity, regulated parent entity or approved person referred to in that paragraph. This written confirmation must be provided by the CSP to the competent authority. Further details of the specific information to be included in the written confirmation and the manner in which the Company must provide the written confirmation to its CSP will be set out in Regulations. We will issue a further update once the Regulations are available.

The amending legislation also imposes penalties on a CSP or any of its officers for failing to comply with its obligation to regularly deposit beneficial ownership information received from Companies as prescribed.

Next steps

It remains the case that no prosecution may be commenced against a Company for an offence under the BOR, unless the act or omission that constituted the offence took place at least one year after 1 July 2017. However, Companies should review their status to determine whether this is impacted by the amendments to the exemptions. Each in scope Company should liaise with its CSP to establish a beneficial ownership register if it has not already done so. Each exempt Company will need to provide written confirmation of the specific exemption upon which it relies.

Walkers has a detailed understanding of the BOR legislation including the recent amendments and is providing assistance to clients with all aspects. Please do not hesitate to contact our Regulatory & Risk Advisory Practice Group or your usual Walkers contact should you have any questions.


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Good News on FX Forward Transactions for Irish Buy Side including Irish UCITS and AIFs

With the deadline of 3 January 2018 fast approaching for counterparties to commence exchanging variation margin for physically-settled FX forward transactions, there is good news for Irish buy side (non-institution) firms including Irish UCITS and AIFs preparing for the operational risks and challenges posed by the requirements.

On 19 December 2017, the Central Bank of Ireland (CBI) issued a statement welcoming the recent European Supervisory Authorities (ESAs) statement on the variation margin requirements under EMIR for physically settled FX forwards acknowledging the challenges being faced by counterparties and proposing amendments to exempt institution-to-non-institution transactions from the EMIR uncleared margin rules (UMR).

The CBI statement acknowledges the proposed exemption and confirms that, in accordance with the ESAs recommendation to competent authorities, the CBI will apply its risk-based supervisory powers in the day-to-day enforcement of applicable legislation in a proportionate manner.

The CBI statement follows the statement by the UK Financial Conduct Authority that it will not require firms whose physically settled FX forwards are likely to be outside the scope of the amended requirements to continue putting processes in place to exchange variation margin.

These developments align with the updated version of the EMIR amending regulation published by the EU Council on 15 November 2017 which proposes to take physically-settled FX forwards outside the scope of the UMR (with the exception of transactions between credit institutions).

The CBI statement is set out in full below:

Statement on the Variation Margin requirements under EMIR for physically settled FX forwards

The Central Bank welcomes the recent European Supervisory Authorities (ESAs) statement on the variation margin requirements under EMIR for physically settled FX forwards. The Central Bank notes that the ESAs are undertaking a review of the relevant requirements and will propose some targeted amendments. These are likely to continue to require the exchange of variation margin for physically-settled FX forwards in a risk based and proportionate manner but to limit the scope to transactions between institutions (credit institutions and investment firms).

The Central Bank confirms that, in accordance with the recommendation from the ESAs and pending the outcome from their review, the Central Bank will apply its risk-based supervisory powers in the day-to-day enforcement of applicable legislation in a proportionate manner.”


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Ireland Finance Bill 2017 - Stamp Duty Update

Irish Non-Residential Property: 6% Stamp Duty Rate Extended

Budget 2018 increased stamp duty on Irish non-residential property transactions from 2% to 6% in respect of instruments executed on or after 11 October 2017. The first draft of Finance Bill 2017 published on 19 October 2017 provided for this increase as well as certain transitional measures.

The final version of Finance Bill 2017 which was signed into law on 25 December 2017 extends the 6% stamp duty charge to transfers of shares or interests in companies, funds or partnerships, that derive more than 50% of their value from Irish non-residential property. The measure seeks to prevent circumventing the increased stamp duty charge on non-residential property transactions by effecting the transfer through a sale of shares or partnership interests where lower stamp duty (1% stamp duty on transfers of Irish shares) or no stamp duty (transfers of non-Irish shares) may have applied.
For more information on the stamp duty changes please see our advisory at the link below.


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2018 Asset Management and Investment Funds Outlook

It is already becoming clear that many of the themes and trends that dominated the asset management and investment funds agenda in 2017 are likely to continue throughout 2018 and it is very much a case of more of the same. Such continuances include the trend of consolidation within the asset management industry as managers seek to alleviate cost pressures through increased economies of scale, the growth of exchange-traded funds (ETFs) and passive strategies as well as the growth in alternative asset classes, such as private credit. The launch of alternative investment funds employing debt-focused strategies is a particular trend that we continue to see our clients following. However, it is the shadow of Mifid II and Brexit that continue to loom over the industry as we head into 2018, and these items are likely to place significant demands upon the asset management industry during the year ahead.


This article originally appeared in HFM Week's Special Ireland Report 2018. 

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