Guernsey: The powers that be – how to navigate around the different types of powers of attorney in Guernsey and when you need a Notary
Is it always easy to spot a power of attorney?
Sometimes a document may contain a power of attorney. My article alluded to some service agreements or employment contracts, but security documents, property management agreements and many other agreements may also have a power of attorney hiding within them and as such care must be taken to ensure that the document has been executed properly and that any additional legal obligations (like the notice requirements under the Trusts (Guernsey) Law, 2007 (as amended)) are complied with. The document does not have to state on its face that it is a power of attorney for it to be a power of attorney.
What are the major aspects that the issuers should be reviewing in their constitutional documents for possible amendments?
The listed companies may be required to make appropriate amendments in their constitutional documents to firstly, include provisions that permit dissemination of corporate communications by the listed issuers to their securities holders; secondly, remove any provisions mandating hard copy dissemination as the only means of dissemination of corporate communications to securities holders; and thirdly, to allow an implied consent mechanism for electronic dissemination of corporate communications subject to other applicable laws, rules and regulations.
Is implied consent mechanism allowed under the laws of the Cayman Islands and Bermuda?
An implied consent mechanism simplifies the process of disseminating corporate communications and reduces the administrative burdens of listed issuers. Neither the laws under the Cayman Islands nor Bermuda contain any prohibition on shareholders’ consent being implied for the electronic dissemination of corporate communications.
However, please note that for Cayman Islands, section 8(1) of the Electronic Transactions Act of the Cayman Islands requires that the format of the electronic record and the means of delivery should be acceptable to the parties where a document, record or information is required or permitted by any contract (including memorandum and articles of association) to be delivered or sent to a person. For Bermuda, pursuant to section 2AA(3) of the Companies Act of Bermuda, the listed issuers should deliver an electronic record of a document to a person by electronic means to the person only at the address or number that has been notified by the person for the purposes of communication by electronic means.
Jersey: Guide to companies in Jersey
Can a company re-domicile to and from Jersey?
Yes, Jersey law permits companies incorporated in Jersey to re-domicile out of Jersey; and conversely allows companies incorporated outside Jersey to re-domicile into the island and become Jersey companies. The term “re-domiciliation” means the process by which a company or other legal entity incorporated in a particular jurisdiction moves its place of incorporation or registration (that is, it “redomiciles”) to a different jurisdiction. This process is also often described as “migration” or “continuation”. Jersey law also permits certain other entities to re-domicile into and out of Jersey, such as limited partnerships.
Is that the same as a Jersey company altering its tax residency?
A Jersey company can alter its tax residency by becoming resident in another jurisdiction. Jersey tax law allows a Jersey company to be resident elsewhere (and not resident in Jersey) provided that it is centrally managed and controlled outside Jersey in a country or territory where the highest rate at which any company may be charged to tax on any part of its income is 10% or higher, and the company is resident for tax purposes in that country or territory. This tax relocation is often a more popular route, providing the selected tax residency with the flexibility of a Jersey corporate structure.
Is foreign income of an international business company (IBC) taxable in Seychelles?
Yes, if it qualifies as Seychelles-sourced income under the under the Business Tax Act, 2009 (the BTA). Prior to 2018, IBCs were prohibited from carrying out business in Seychelles and were completely exempt from paying any business tax in Seychelles on their worldwide income. With the amendments to the International Business Companies Act, 2016, IBCs were permitted to carry out business in Seychelles. Consequential amendments to the BTA provide that any income that is sourced in or from Seychelles by an IBC would be considered as taxable in Seychelles; and the foreign income of an IBC would be considered as taxable in Seychelles if it is a member of a multinational group and the income falls with the scope of section 5(1)(A) of the BTA. Under the BTA, a company is considered as part of a multinational group if it has a parent or subsidiary that is resident in another jurisdiction outside Seychelles, and if these entities are a part of a group that are consolidated for financial accounting purposes. Foreign income of IBCs which do not fall within the above criteria would not be taxable in Seychelles.
