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.
Legislative changes have been published to amend two Cayman Islands (‘Cayman’) laws which will provide an ‘opt-in’ regime to 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’). The Cayman Islands Government and the Cayman Financial Services regulator (the Cayman Islands Monetary Authority – ‘CIMA’) have been working with the European Regulator (the European Securities and Markets Authority (‘ESMA’) to keep Cayman at the forefront of the global mutual funds sector.
The UK government’s Budget on 8 July 2015 includes provisions that, from April 2017, it intends to bring all UK residential Property (‘UKRP’) held directly or indirectly by foreign domiciled persons into charge for inheritance tax (‘IHT’) purposes, even when the property is owned through an indirect structure such as an offshore company or partnership. The draft legislation is expected to be ready for the 2017 Finance Bill, following a consultation process with interested parties and stakeholders. This leaves time for those affected to take advice on the options available to them before the legislation comes into force (currently expected to be 6 April 2017).
Here we look at the proposals as announced in the budget and how they affect the way individuals not domiciled in the UK or trustees of excluded property trusts (see below) might hold UKRP - for example where the property is beneficially owned through companies incorporated outside the UK (such as the Cayman Islands (‘Cayman’)).
Primeo Fund (in Official Liquidation) v Michael Pearson as Additional Liquidator of Herald Fund SPC (in Official liquidation) (‘Primeo’)
What happens if a company goes into liquidation after a shareholder (‘Investor’) has asked for their shares to be redeemed but before payment is made? A recent decision in the Cayman Islands Grand Court clarifies this point.
The Cayman Islands (‘Cayman’) Tax information Authority (‘TIA’) has issued version 2.1 of the Guidance Notes on the International Tax Compliance Requirements of the Intergovernmental Agreements between the Cayman Islands and the United States of America and the United Kingdom, Version 2.1.. The minor updates follow consultation with the Cayman Islands Foreign Account Tax Compliance Act/ Common Reporting Standard Working Group (‘FATCA’/CRS’).
In an industry advisory accompanying the new version of the Guidance Notes the TIA also provided a list of the key updates, which is repeated below.
The much telegraphed UK new rules on capital gains tax (‘CGT’) on the disposal of residential property by non-resident individuals and entities have now come into effect. After 5 April 2015 CGT may be payable on UK residential property disposals. There has been a change to Private Residence relief for UK residents and a reduction in the threshold for properties owned by non-natural persons. Here we highlight some of the significant changes, whilst pointing out that there are qualifications, exemptions and reliefs which are complex and should be considered in detail with UK tax advisors before any disposal or acquisition of UK residential property by a non UK resident.
The Cayman Islands Ministry of Financial Services (‘the Ministry’) has advised Financial Institutions (‘FI’s) to prepare for new local regulations for the Common Reporting Standard (‘CRS’) which are expected by October 2015. The Ministry recommends FIs consider getting their IT and administrative systems ready to deal with the requirements for new account opening procedures from 1 January 2016, and the due diligence which will be required for 2016/2017 (see the Timetable below).
The Organisation for Economic Co-operation and Development ('OECD') has announced that a further seven countries have signed the template agreement for its automatic information exchange standard. Australia, Canada, Chile, Costa Rica, India, Indonesia and New Zealand are the latest additions, bringing the total to 61. When the agreed form of the Standard was announced at the Global Forum in October 2014, the Cayman Islands (‘Cayman’) signed up to be a member of the Early Adopters Group (‘EAG’).
On May 15th the Cayman Islands Money Authority published a public reminder that the pooling of monies for remittance, constitutes money services business and that such pooling requires a licence pursuant to the Money Services Law (2010 Revision).
Section 4 (1) and 4 (2) of Money Services Law (2010 Revision) states – “Subject to sections 3(2) and 31, any person who carries on money services business without first obtaining a licence under section 5, is guilty of an offence. A person guilty of an offence under subsection (1) is liable on summary conviction to a fine of ten thousand dollars and to imprisonment for one year and, in the case of a continuing offence, to a fine of one thousand dollars for each day during which the offence continues.”
For information on how to obtain a Licence under the Money Services Law (2010 Revision), please contact us on firstname.lastname@example.org.
A new regime is being finalised which will make the Cayman Islands (‘Cayman’) Alternative Investment Fund Manager Directive (‘AIFMD’)-compliant. The regime seems likely to be adopted before 22 July 2015, when the European Securities and Markets Authority (‘ESMA’) makes its recommendation to the European Commission on whether to extend the Alternative Investment Fund Managers Directive (‘AIFMD’) passporting regime to third countries (those outside the European Union (‘EU’)). The Cayman Islands Monetary Authority (‘CIMA’) is also working with the Ministry of Financial Services (the ‘Ministry’) on the possible framework for a new category of ‘AIFMD fund’.
30 April 2015 Deadline
On 27 April 2015 the Cayman Islands (‘Cayman’) Ministry of Finance circulated an Industry Advisory in which the Department for International Tax Cooperation (‘DITC’) reminded the financial services industry that Notifications are required to be submitted through the Automatic Exchange of Information (‘AEOI’ Portal) by Thursday, 30 April 2015. However whilst reminding Financial Institutions (‘FI’s) that should make every effort to conduct their notifications by the 30 April due date, the Advisory also stated that Notifications received on or before Tuesday 12 May 2015 ‘will not attract any adverse compliance consequences or enforcement measures’.
The Cayman Islands Monetary Authority (‘CIMA’) has proposed a new Statement of Guidance (‘SOG’) on Outsourcingfor all regulated entities (excluding regulated mutual funds). Although this proposed SOG is expressed to exclude regulated mutual funds it will catch other entities regulated by CIMA in the Cayman Islands (‘Cayman’) including administrators, banks, insurance companies and those entities regulated under the Securities and Investment Business Law.
Schroder Cayman Bank and Trust Company Ltd. v Schroder Trust A.G.
Trustees of a Cayman Islands (‘Cayman’) trust purported to make appointments of trust capital to trusts in Jersey. Both Cayman and Jersey have legislation which provides that their own law is the only (‘proper’) one which can be applied when making decisions on trusts created within their jurisdiction. On 9 March 2015 the Cayman Chief Justice gave his judgment that the appointments were void. Here we look at that decision and his decision that Cayman law was the proper one to apply.
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