Having obtained a judgment for money to be paid to you against a party with assets in the Cayman Islands, the next step is to enforce that judgment against those assets. Unless your judgment is from certain states in Australia, then your judgment may only be enforced at Common Law.
The Cayman Islands (‘Cayman’) Department for International Tax Cooperation (‘DITC’) has issued an Industry Advisory for Cayman financial institutions (‘FI’s) on the latest developments towards the implementation of the Common Reporting Standard or CRS. Progress includes updated Self Certification Forms, a list of participating jurisdictions, and the designation of certain limited life debt investment entities as Non Reporting Financial Institutions.
The CRS is part of the Organisation for Economic Co-operation and Development’s (‘OECD’) Standard for Automatic Exchange of Financial Account Information in Tax Matters ('the Standard’). As an early adopter, the Cayman Islands is getting procedures ready for FIs to be able to record tax residence in all new accounts opened from 1 January 2016.
Kam Leung Sui Kwan v Kam Kwan Lai and Ors
The Hong Kong Court of Final Appeal (‘HKCFA’) recently considered when a Hong Kong Court has jurisdiction to wind up a foreign holding company which does no business in Hong Kongand whose only assets are shares in a company also incorporated outside Hong Kong. The decision concerned a British Virgin Islands (‘BVI’) incorporated company (‘YKH’) but it will interest those operating a family owned business structure using Cayman Islands (‘Cayman’) holding companies.
When making a Will it is important to make sure everything is explained clearly and precisely: it contains your instructions for a time when you are no longer available to correct any mistakes. Here we take four recent cases from the Courts of England and Wales to show how easy it is to get things wrong, the consequences, and look at how those cases would be treated in the Cayman Islands.
Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Limited v Beavis
Contracts governed by Cayman Islands (‘Cayman’) law which contain clauses relating to the consequences of breach of contract, in particular standard terms and conditions, should be reviewed to take account of a new approach to penalty clauses.
It has been a long established rule in common law jurisdictions such as Cayman that a penalty clause is unenforceable. A decision of the highest appeal court in the UK, the Supreme Court (‘UKSC’), has reviewed the accepted approach to these clauses. It sets out for the future how to consider when the penalty rule applies, and what makes a contractual provision for consequences of breach penal. The decision would be highly persuasive authority in a Cayman Court and here we consider the review and its effect.
In re: Berau Capital Resources Pte Ltd.
A decision of the Southern District of New York Bankruptcy Court (‘SDNYBC’) (In re: Berau Capital Resources Pte Ltd (‘Berau’)) will be of interest to liquidators of Cayman Islands entities when considering whether they can seek Chapter 15 recognition in the US of their appointment and, thereby, get assistance in carrying out their functions from the US Courts. Whilst we draw attention to the decision as a point of interest, we do not offer advice on this or any matter of New York law, which should only be given by appropriately qualified US attorneys.
Progress continues on the Organisation for Economic Co-operation and Development’s (‘OECD’) Standard for Automatic Exchange of Financial Account Information in Tax Matters ('the Standard’). On 16 October 2015, the Cayman Islands Department of International Tax Co-operation (‘DITC’) published its regulations under the Standard. The OECD also recently launched a new Portal and released two new publications – a handbook on implementation of the Standard and a second edition of Offshore Voluntary Disclosure Programmes.
IRS transitional rules and Cayman DITC Updates
AEOI under FATCA begins
On 2 October 2015 the United States Internal Revenue Service (‘IRS’) announced that it had met a key deadline of 30 September 2015 for the exchange of financial account information with certain foreign tax administrations (those with reciprocal Intergovernmental Agreements), under the Foreign Account Tax Compliance Act (‘FATCA’). In an announcement to mark this significant step, IRS Commissioner John Koskinen recognised and appreciated efforts of jurisdictions for "the assistance of our counterparts... who have helped to make this possible". Cayman Islands reporting financial institutions (‘FI’s) should have already submitted their Notifications and Returns to the Cayman Islands Automatic Exchange of Information (‘AEOI’) Portal by 25 September 2015.
On 13 October 2015 the Chair of the European Securities and Markets Authority (‘ESMA’) confirmed that ESMA will assess the Cayman Islands for the possible extension of the Alternative Investment Fund Managers Directive (‘AIFMD’) passport.
A ‘key area’ of work
In an address to the Economic and Monetary Affairs Committee at the European Parliament, ESMA’s Chair identified three key areas on which further work by ESMA is required in the short term in regard to the extension of the passport to non-European Union (‘EU’) countries. The first was to continue its existing incomplete assessments, and the second that ESMA - will start to assess a second group of non-EU countries, namely Australia, Canada, Japan, the Cayman Islands, the Isle of Man and Bermuda....
A positive statement
The third key area of work was that ESMA - will focus on putting in place the extensive framework foreseen by the co-legislators in case the passport is indeed extended to one or more non-EU countries. This last element includes making preparations for ESMA's role in the functionning of the passporting system and to strengthened supervisory cooperation that that will be crucial to its success
It would seem positive that the Chair has announced that ESMA “will focus” on putting the framework in place and prepare for the “functioning” of the passport system before the European Commission (‘EC’) has announced its decision on whether to extended the AIFMD passport to non-EU countries. It indicates that ESMA itself, or at least its Chair, considers that the EC will extend the AIFMD passport. The EC decision was due on 22 October 2015 deadline, but so far there has been no announcement or information when one will be made.
The Cayman Islands Legislative Assembly has passed two new laws to provide an ‘opt-in’ regime which will eventually allow Cayman-domiciled funds and fund managers with European Union (‘EU’) connections to be included in the passport regime under the EU’s Alternative Investment Fund Managers Directive (‘AIFMD’).
A July 2015 Cayman islands (‘CI’) judgment dismissed a winding up petition (‘Petition’), holding that it was an abuse of process for Petitioners to present a petition to wind up a CI Exempted Limited Partnership (‘ELP’) when they were contractually precluded from doing so by a term of the Limited Partnership Agreement (‘LPA’) which they had agreed to and signed. Here we look at the Judge’s reasons, published by the Grand Court (‘Court’) on 16 September 2015.
New regulations for the annual returns of Cayman Islands Mutual Funds (‘Funds’) come into force on 15 September 2015. The Mutual Funds (Annual Returns) (Amendment) Regulations 2015 (the ‘New Regulations’) set out additional information which needs to be provided in an Annual Return.
The Companies (Amendment) Law 2015
The Cayman Islands Registrar of Companies (‘the ROC’) has introduced a short waiver period for companies to register changes in the details of directors and officers (‘D&O’s) of Cayman companies. The waiver is to ease the transition to the new system to register such changes under the new Cayman Islands Companies (Amendment) Law 2015 (the ‘Law’). The waiver will apply regardless of when the changes being submitted were made, and how many late changes are submitted. Unpaid penalty notices issued before 1 September 2015 will be cancelled.
In March 2015 the Cayman Islands Monetary Authority (‘CIMA’) introduced a Rule and a Regulatory Procedure (‘RP’) on cancellation of licence and or certificate of registration of a Regulated Mutual Fund (‘Fund’). The effect of the Rule and RP is that Funds will need to provide audited accounts for their last financial year of operation (or part year), and that CIMA will not exercise its discretion to grant a waiver of that requirement as freely as it has done in the past. CIMA allowed a transition period before the new RP in regard to audits would be enforced which will come to an end on 1 October 2015.
CIMA Private Sector Consultation Papers -18 August 2015
The Cayman Islands Monetary Authority (‘CIMA’) has circulated two Private Sector Consultation Papers (‘PSCP’s) on a proposed new Rule – Corporate Governance for Insurers (‘R-CGI’) and on a new Statement of Guidance - Corporate Governance (‘SOG-GC’). CIMA is asking each of the private sector associations it has contacted to provide consolidated responses on or before Monday, 18 September 2015.
Alternative Investment Management Association press release 19 August 2015
In a press release today on the extension of the AIFMD passport to jurisdictions outside the EU,Jack Inglis the CEO of the Alternative Investment Management Association (‘AIMA’), said: “We are confident that Cayman will be granted the passport…”.
SOLOMON HARRIS AWARDED “OFFSHORE LAW FIRM” AT US CAPTIVE SERVICES AWARDS 2015
Solomon Harris is delighted to announce that it has been awarded “Offshore Law Firm” at the 2015 US Captive Services Awards hosted by Captive Review. The awards were held in Burlington, Vermont on 10 August 2015 to recognise excellence and innovation in the American marketplace. The awards are now in their fourth year and recognise and reward those providers of captive insurance products and services who have outperformed their competitors and demonstrated the highest levels of excellence over the past 12 months. This year more than 74 firms from across the North American captive insurance industry competed for 26 awards.
In conferring the award on Solomon Harris, the judging panel commented, “The growing specialist insurance firm continues to consolidate its expertise in the captive sector and in Paul Scrivener they have one of the most respected legal individuals in the industry. Scrivener was heavily involved in consultation, on behalf of the private sector, with Cayman regulators when drafting the new portfolio insurance company legislation.”
We were also very pleased to see the Cayman Islands regain the award for “Offshore Captive Domicile” with the judges being impressed by the jurisdiction’s innovative step forward in passing new portfolio insurance company legislation in 2015 and acknowledging its leading expertise in healthcare captives in a challenging environment for that sector.
Paul Scrivener, commented, “We are delighted for this endorsement of the quality of our captive insurance team. We have managed to win the Offshore Law Firm award three times in the past four years which I think is great testimony to our strong brand in the captive insurance sector. We were equally delighted to see the Cayman Islands recognised as the leading offshore captive domicile and the credit given for its innovative incorporated cell company legislation.”
The European Securities and Markets Authority (‘ESMA’) has published its Advice and Opinion to the European Commission (‘EC’) on the extension of the existing Alternative Investment Fund Manager Directive (‘AIFMD’) passporting regime (see below) to Alternative Investment Funds (‘AIF’s) from outside the European Union (‘EU’) and to AIF Managers (‘AIFM’s) marketing non-EU AIFs such as funds based in the Cayman Islands.
Solomon Harris is very pleased to announce that it has been nominated for both “Offshore Law Firm” and “Cell Company Initiative” at the 2015 US Captive Service Awards hosted by Captive Review. The awards are now in their fourth year and recognise and reward those providers of captive insurance products and services who have outperformed their competitors and demonstrated the highest levels of excellence over the past 12 months.
Paul Scrivener of Solomon Harris commented, “We are delighted to have been shortlisted in two categories this year. Our nomination for “Cell Company Initiative” is a joint nomination with McDermott Will & Emery for our combined work in assisting to launch Cayman’s very first portfolio insurance company earlier this year.”
The Awards ceremony will be held on 10 August in Burlington, Vermont.
The Companies (Amendment) Bill 2015
A Cayman Islands Bill proposes extending the time limit to register changes in directors and officers with the Registrar of Companies by thirty days. It also proposes changes to the penalties payable for any default, including limits on the amount payable, and new sanctions for intentional default. It also includes new provisions designed to assist clients who have larger groups of Cayman companies. The Bill is expected to go before the Cayman Legislative Assembly in August.
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