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Walkers Announces 2019 Promotions

Walkers is pleased to announce that 18 attorneys across its global offices have been invited to join the partnership. In addition, 13 associates have been promoted to senior counsel.

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Ireland ESG Series – Part 2: BMR Amendment

Work has been continuing at a steady pace in Europe to implement the package of measures set out in the European Commission's action plan on sustainable finance. In part 1 of our environmental, social and corporate governance ("ESG") series we examined the Disclosures Regulation as one of the new regulations focused on sustainability in the financial services sector. In part 2 of this series we focus on the second of these regulations, the amendments to the Benchmarks Regulation ("BMR Amendment").


The BMR Amendment introduces two new benchmark classifications, namely, EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks as two distinct categories of low carbon benchmarks. The BMR Amendment also introduces additional information which benchmark administrators need to disclose in respect not only of EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks but all other types of benchmarks.

Further parts of this series will be issued as the regulations in respect of the other measures set out in the action plan on sustainable finance are published.

 

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Court of Appeal for Bermuda Clarifies Test for Leave to Appeal to the Privy Council

Although an appeal to the Judicial Committee of the Privy Council lies as of right for money judgments in excess of $12,000, leave to appeal from decisions of the Court of Appeal for Bermuda involving non-monetary claims (for example, claims for declaratory or injunctive relief) are at the discretion of the Court. Bermuda law provides that appeals to the Judicial Committee of the Privy Council for non-money claims will only be allowed for matters which raise questions of “greater general or public importance, or otherwise”. In a judgment dated 22 November 2019, the Court of Appeal for Bermuda has provided welcome clarification as to the application of this test, and confirmed that the “or otherwise” limb of the test cannot be used to seek leave to appeal decisions between private litigants involving the application of settled law Imran Siddiqui and Others v Athene Holding Ltd. (On an application for leave to the Privy Council) [2019] CA (Bda) 15 Civ.

Background
The application before the Court of Appeal for Bermuda (the “Court”) on 7 November 2019 (the “Application”) was an application for leave to appeal the Court’s earlier judgment of 20 September 2019 which had dismissed the appeal of certain first instance decisions declining to stay the proceedings on forum non conveniens grounds or to otherwise strike-out the action. By their Application, the appellants sought leave to appeal to the Judicial Committee of the Privy Council (the “Privy Council”).

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Bermuda Economic Substance and Investment Funds Amendment Legislation Tabled

Bermuda has tabled amendment legislation in the House of Assembly in the form of the Economic Substance Amendment (No 2) Act 2019 (the “Economic Substance Amendment Act”) and the Investment Funds Amendment (No 2) Act 2019 (the “IFA Amendment Act”). The amendments follow extensive consultation by the Bermuda Government with the OECD and the EU Code of Conduct Group and are in furtherance of the implementation by Bermuda of legislation that embraces a global initiative to combat base erosion and profit shifting (“BEPs”).

Executive Summary

  • The Economic Substance Amendment Act introduces changes to the definitions of the relevant activities of “holding entity” and “financing and leasing”, as well as to the definition relating to local entities.
  • The IFA Amendment Act implements changes to the Investment Funds Act, 2006 and related rules to provide enhanced supervisory and regulatory requirements relating to registered or authorised investment funds that operate segregated accounts and “closed-ended investment funds”; to provide for designation and classification requirements for certain “overseas investment funds” and “Professional Closed Funds”; and to provide for the enhancement of fit and proper requirements.
  • Assuming approval by Parliament, the amendments are expected to come into force on or around 20 December 2019 and will be followed by further anticipated

 

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Ireland ESG Series – Part 1: Disclosures Regulation

Work has been continuing at a steady pace in Europe to implement the package of measures set out in the European Commission's action plan on sustainable finance. Sustainable finance involves taking sustainability considerations into account as part of the financial decision making process. Financial market participants and financial advisors should consider the additional disclosures they may be required to include on their websites and in pre-contractual disclosures to investors from 10 March 2021 and/or in periodic reports from 1 January 2022 to comply with the requirements of the Disclosures Regulation.

In part 1 of our environmental, social and corporate governance ("ESG") series we examine the Disclosures Regulation as one of the new regulations focused on sustainability in the financial services sector. Part 2 in this series will focus on the second of these regulations, the amendments to the Benchmarks Regulation. Further parts of this series will be issued as the regulations in respect of the other measures set out in the action plan on sustainable finance are published.

 

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Bermuda Incorporated Segregated Accounts Companies Act Comes Into Force

The highly anticipated Incorporated Segregated Accounts Companies Act 2019 (the "ISAC Act") came into force on 26 November 2019. The ISAC Act introduces a new corporate vehicle, the Incorporated Segregated Accounts Company ("ISAC"), combining the flexibility of the traditional segregated accounts company ("SAC") available under the existing Segregated Accounts Companies Act 2000 (the "SAC Act") with the advantages of separate legal personality enjoyed by an incorporated company. The ISAC Act has been introduced as a standalone piece of legislation, with the goal of complementing rather than replacing the existing SAC Act, and thereby offering greater optionality and flexibility to participants within Bermuda's captive and (re)insurance market and asset management industry, who have historically utilised and embraced the segregated account structure.

Registered ISACs will have the capacity and rights of a natural person with separate legal personality, meaning each incorporated segregated account ("ISA") will be able to enter into contracts with other ISAs within the same ISAC family or third parties as well as with the ISAC company itself, providing enhanced diversification and segregation of policyholder or fund assets and liabilities. ISACs will have the option to appoint a separate board for each proposed ISA. Additionally, the limited liability of ISAs provides a robust legal means of protection from creditors and may therefore appeal to more conservative, risk-averse market participants, such as pension trustees in longevity swaps or investors in ILS funds. ISACs will also continue to appeal to managers looking to set up a mini master-feeder fund within the same vehicle. Finally, ISACs may allow corporate groups to be created with lower formation and management costs than stand-alone captive insurers and fund structures.

Notwithstanding the above, we expect the popularity of traditional SACs available under the SAC Act to continue, both for pre-existing users of those vehicles and for new entrants. Despite their unincorporated status, traditional SACs have been tested in the Bermuda Courts before (BNY AIS Nominees v New Stream Capital Fund Ltd [2009] S.C. (Bda) 178 Civ and 374 Civ (27 May 2010)) and have proven to be resilient structures for the segregation of assets and liabilities and protection from creditors while being simple to use and cost effective. We therefore expect ISACs and SACs to be used very much according to client choice and welcome the further flexibility these structures offer clients in Bermuda.

 

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