Cayman Islands: Comparison Of Delaware And Cayman Limited Partnerships

Last Updated: 21 December 2008
Most Read Contributor in Cayman Islands, September 2018

This note provides a general comparison of Delaware and Cayman limited partnerships. It does not attempt to guide the reading to any one jurisdiction over another, but instead highlights some of the features common to Cayman and Delaware limited partnerships, describes certain of the legal requirements in respect of the limited partnership laws in each jurisdiction and examines some of the factors to consider when deciding which jurisdiction to use. Prepared in conjunction with Debevoise & Plimpton.

 

CAYMAN ISLANDS

DELAWARE

Legislation

Exempted Limited Partnership Law (as amended) (the "Law").

Delaware Revised Uniform Limited Partnership Act (the "Act").

Constitution

An exempted limited partnership ("ELP") requires at least one limited partner ("LP") and at least one general partner ("GP"). At least one GP is required to be either an individual resident in the Cayman Islands, a company incorporated or registered as a foreign company in the Cayman Islands, or be an ELP itself. (Sections 4(2) and (5))

A limited partnership ("DELP") is defined as a partnership formed by at least two persons under the laws of the State of Delaware and having at least one general partner ("GP") and at least one limited partner ("LP"). (Section 17-101(8))

Legal form

An ELP as such is not an entity with separate legal personality, and cannot own property in its own right; the general statutory position is that the property of the ELP will be held on statutory trusts by the GPs jointly under section 6(2) of the Law.

Property of the ELP conveyed to or vested in or held on behalf of a GP or conveyed into or vested in the name of the ELP shall be held or deemed to be held by the GP, or GPs if more than one jointly, upon trust, as an asset of the ELP in accordance with the terms of the partnership agreement ("LPA"). Any debt or obligation incurred by a GP in the conduct of the business of an ELP shall be a debt or obligation of the ELP. (Sections 6(2) and 6(3))

A DELP formed under the Act shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the DELP's certificate of limited partnership. (Section 17-201(b))

Nature of business permitted

Any lawful purpose or purposes to be carried out and undertaken either in or from within the Cayman Islands or elsewhere in accordance with the Law provided that the ELP shall not undertake business with the public in the Cayman Islands other than so far as may be necessary for the carrying on of the business of that ELP exterior to the Cayman Islands. (Section 4(1))

A DELP may carry on any lawful business, purpose or activity, whether or not for profit, with the exception of the business of granting policies of insurance, or assuming insurance risks, or banking.

A DELP shall possess and may exercise all the powers and privileges granted by the Act or by any other law or by its partnership agreement ("LPA"), together with any powers incidental thereto, including such powers and privileges as are necessary or convenient to the conduct, promotion or attainment of the business, purpose or activities of the DELP. (Section 17-106)

Registration requirements

An ELP must be registered with the Registrar of Exempted Limited Partnerships (the "Registrar") which is achieved by a GP filing a statement pursuant to section 9 of the Law setting forth:

1. the name of the ELP (which must contain the words "Limited Partnership" or the letters "L.P.");

2. the address of its registered office in the Cayman Islands;

3. the general nature of the business of the ELP;

4. the duration of the term of the ELP (may be unlimited);

5. the full name and address of each GP; and

6. a declaration that the ELP will not undertake business with the public of the Cayman Islands other than so far as may be necessary for carrying on of the business of that ELP exterior to the Cayman Islands. (Sections 5, 6(1) and 9(1))

In order to form a DELP, at least one person (but not less than all of the GPs) must execute a certificate of limited partnership. The certificate of limited partnership shall be filed in the Office of the Secretary of State setting forth:

7. the name of the DELP (which, in accordance with section 17-102 of the Act, must contain the words "Limited Partnership" or abbreviation "L.P." or designation "LP");

8. the address of the registered office and the name and address of the registered agent for service of process required to be maintained in accordance with section 17-104 of the Act;

9. the name and the business, residence or mailing address of each GP; and

10. any other matters the partners determine to include therein.

A DELP is formed at the time of the filing of the initial certificate of limited partnership in the Office of the Secretary of State or at any later due or time specified in the certificate of limited partnership if, in either case, there has been substantial compliance with the requirements of section 17-201 of the Act. (Section 17-201)

Registered Office

An ELP shall have a registered office situated in the Cayman Islands for the service of process and to which all notices and communications may be addressed. (Section 6(4))

Each DELP shall have and maintain in the State of Delaware a registered office (which may but need not be a place of its business in the State of Delaware) and shall have a registered agent, whose business office is identical with the DELP's registered office, for service of process on the DELP. (Section 17-104

Restrictions on number of partners

Unlimited number of partners allowed as a matter of Cayman Islands' law. In effect, subject to the US Internal Revenue Code and the US Investment Company Act of 1940.

Unlimited number of partners allowed, subject to the US Internal Revenue Code and the US Investment Company Act of 1940.

Changes to certificate of limited partnership/registration statement

If any change is made or occurs in any matter specified in paragraphs (a) to (e) of the ELP's Section 9 Registration Statement (as set out under paragraphs (1) – (5) under 'Registration Requirements', above), a GP must within 60 days of such change file with the Registrar a statement specifying the nature of the change.

A statement signed in respect of any arrangement or transaction consequent upon which any person will cease to be a general partner in any ELP, shall, within 15 days of such arrangement or transaction, be filed with the Registrar and, until such statement is so filed, the arrangement or transaction shall, for the purposes of the Law and the LPA, be deemed to be of no effect.

Without the written consent of each person thereby affected, no arrangement or transaction shall take effect to the extent that it seeks to relieve or discharge a GP from the obligations of a GP with regard to any debt or obligation of the ELP to a person incurred before such arrangement or transaction takes effect. (Section 10)

A certificate of limited partnership is amended by filing a certificate of amendment thereto in the Office of the Secretary of State. The certificate of amendment shall set forth:

1.the name of the DELP; and

2. the amendment to the certificate.

A GP who becomes aware that any statement in a certificate of limited partnership was false when made, or that any matter described has changed making the certificates false in any material respect, shall promptly amend the certificate.

Notwithstanding the requirements of the paragraph above, no later than 90 days after the happening of any of the following events an amendment to a certificate of limited partnership reflecting the occurrence of the event or events shall be filed by a GP:

1. the admission of a new GP;

2. the withdrawal of a GP; or

3. a change in the name of the DELP, or except as otherwise provided in sections 17-104(b) and (c) of the Act, a change in the address of the registered office or a change in the name or address of the registered agent of the DELP.

A certificate of limited partnership may be amended at any time for any other proper purpose the GPs may determine. (Section 17-202)

Amendment to partnership agreement

Notwithstanding any term in the LPA to the contrary, any term of the LPA may be amended orally by the partners.

However, usually, the LPA will set out the manner in which an agreement may be amended and this is likely to be either by:

1. the GP with limited partner consent acting by a specified majority;

2. the GP only (generally only administrative matters); and

3. the GP with the consent of affected partners (economic rights and regulatory matters, eg ERISA issues).

An LPA may provide for the taking of an action, including the amendment of the LPA, without the vote or approval of any LP or class or group of LPs or any GP or class or group of GPs. (Section 17-302(a))

If an LPA provides for the manner in which it may be amended, it may be amended in that manner or with the approval of all the partners or as otherwise permitted by law. (Section 17-302(f))

Powers and liabilities of general partners/withdrawal of general partners

In the event that the assets of the ELP are inadequate, the GP shall be liable for all of the debts and obligations of the ELP. (Section 4(2))

A GP shall act at all times in good faith in the interests of the ELP. (Section 4(3))

Any debt or obligation incurred by a GP in the conduct of the business of the ELP shall be a debt or obligation of the ELP. (Section 6(3))

The GP shall maintain or cause to be maintained a register of partnership interests at the registered office of the ELP, setting forth the name, address, amount and date of the contribution or contributions of each partner, and the amount and date of any payment representing a return of any part of the contribution of any partner (the "Register"). The Register is required to be updated within 21 business days of any change in the particulars therein. The Register is open to public inspection during usual business hours. A GP who defaults in complying with the duty to update the Register, is guilty of an offence and liable on summary conviction to a fine of CI$25.00 for each day that such default continues, and shall indemnify any person who thereby suffers any loss. (Section 11)

The GP has a duty to maintain or cause to be maintained a register of mortgages of interests in the ELP. This shall be maintained at the registered office in writing on one or more sheets (whether bound or unbound) and shall record the identity of the mortgagor and mortgagee, the date of creation of the mortgage, the partnership interest or part thereof subject to mortgage and the date of receipt of notice of the mortgage. Any LP mortgaging his interest (or part thereof) in the ELP must serve written notice at the registered office of the ELP of such mortgage together with a copy thereof signed by the mortgagor and the mortgagee and must pay such fee, if any, as may be provided in the LPA. Any mortgage of an LP's interest is subject to the GP's prior written consent. The register of mortgages shall be open to inspection by any person during all usual business hours. A failure to comply with the duty to maintain the register is an offence and each GP in default shall, upon summary conviction, incur a penalty of CI$25.00 for each day that the default continues. (Section 7(7))

Except as provided in the Act or in the LPA, a GP has the rights and powers and is subject to the restrictions of a partner in a partnership without LPs.

Except as provided in the Act, a GP has the liabilities of a partner in a partnership without LPs to persons other than the partnership and the other partners. Except as provided in the Act or in the LPA, a GP has the liabilities of a partner in a partnership without LPs to the partnership and to the other partners.

Unless otherwise provided in the LPA, a GP has the power and authority to delegate to one or more other persons the GP's rights and powers to manage and control the business and affairs of the DELP. (Section 17-403)

Admission of limited partners

A person may, with the consent of the GP, become an LP without the consent of the existing LPs. (Section 7(6)(c))

As provided in and upon compliance with the LPA. (Section 17-301(a))

Contributions

Contributions may be made in cash, property or other assets which a partner contributes to the capital of an ELP (but shall not include any moneys lent by a partner to an ELP). (Section 2)

A person may be admitted to a DELP as an LP and may receive a partnership interest in the DELP without making a contribution or being obligated to make a contribution to the DELP. (Section 17-301(d))

The contribution of a partner may be in cash, property or services rendered, or a promissory note or other obligation to contribute cash or property or to perform services. (Section 17-501))

Default

To the extent that any provision of the LPA is construed as penal, it will not be enforceable

An LPA may provide that:

1. an LP who fails to perform in accordance with, or to comply with the terms and conditions of , the LPA shall be subject to specified penalties and specified consequences; and

2. at the time or upon the happening of events specified in the LPA, an LP shall be subject to specified penalties or specified consequences. (Section 17-306)

An LPA may provide that the interest of any partner who fails to make any contributions that he is obligated to make shall be subject to specified penalties for, or specified consequences of, such failure. Such penalty or consequence may take the form of reducing or eliminating the defaulting partner's proportionate interest in the DELP, subordinating his partnership interest to that of non-defaulting partners, a forced sale of his partnership interest, forfeiture of his partnership interest, the lending by other partners of the amount necessary to meet his commitment, a fixing of the value of his partnership interest by appraisal or by formula and redemption or sale of his partnership interest at such value, or other penalty or consequence. (Section 17-502(c))

Liability of limited partners to third parties

An LP shall not take part in the conduct of the business of the ELP, and all letters, contracts, deeds, instruments or documents whatsoever shall be entered into by the GP on behalf of the ELP.

If the LP takes part in the conduct of the business of an ELP in its dealings with persons who are not partners, that LP shall be liable, in the event of the insolvency of the ELP, for all debts and obligations of that ELP incurred during that period in which he conducted himself as though he were a GP provided always that the LP shall be liable only to a person who transacts business with the ELP during such period with actual knowledge of such participation and who then reasonably believed such LP to be a GP.

An LP does not take part in the conduct of the business of an ELP by:

1. being a contractor for or an agent or employee of the ELP or of a GP or acting as a director, officer or shareholder of a corporate GP;

2. consulting with and advising a GP with respect to the business of the ELP;

3. investigating, reviewing, approving or being advised as to the accounts or business affairs of the ELP or exercising any rights conferred by the Law;

4. acting as surety or guarantor for the ELP either generally or in respect of specific obligations;

5. approving or disapproving an amendment to the partnership agreement; or

6. voting as a LP on:

(a) the dissolution and winding up of the ELP;

(b) the purchase, sale, exchange, lease, mortgage, pledge or other acquisition or transfer of any asset or assets by or of the ELP;

(c) the incurrence or renewal of indebtedness by the ELP;

(d) a change in the nature of the business of the ELP;

(e) the admission, removal or withdrawal of a GP or LP and the continuation of business of the ELP thereafter; or

(f) transactions in which one or more of the GPs have an actual or potential conflict of interest with one or more of the LPs. (Section 7)

The above is a non-exhaustive list of matters which do not amount to an LP taking part in the conduct of the business of an ELP and shall not import any implication that the possession or exercise of any other power by an LP will necessarily constitute the taking part by such LP in the business of the ELP.

An LP is not liable for the obligations of a DELP unless he is also a GP or, in addition to the exercise of his rights and powers as an LP, he participates in the control of the business. However, if the LP does participate in the control of the business, he is liable only to persons who transact business with the DELP reasonably believing, based upon the LP's conduct, that the LP is a GP.

An LP does not participate in the control of the business within the meaning of the Act by:

1.being an independent contractor for, or an agent or employee of, the DELP or a GP, or an officer, director or stockholder of a corporate GP, or limited partner of a partnership that is a GP of the DELP, or a trustee, administrator, executor, custodian or other fiduciary or beneficiary of an estate or trust which is a GP, or a trustee, officer, advisor, stockholder or beneficiary of a business trust which is a GP or member, manager, agent or employee of a limited liability company which is a GP;

2. consulting with or advising a GP or any other person with respect to any matter, including the business of the DELP, or acting or causing a GP or any other person to take or refrain from taking any action, including by proposing, approving, consenting or disapproving, by voting or otherwise, with respect to any matter, including the business of the DELP;

3. acting as surety, guarantor or endorser for the DELP or a GP, guarantying or assuming one or more obligations of the DELP or a GP, borrowing money from the DELP or a GP, lending money to the DELP or a GP, or providing collateral for the DELP or a GP;

4. calling, requesting or attending or participating at a meeting of the partners or the LPs;

5. winding up a DELP pursuant to section 17-803 of the Act;

6. taking any action required or permitted by law to bring, pursue or settle or otherwise terminate a derivative action in the right of the DELP;

7. serving on a committee of the DELP or the LP or partners or appointing, electing or otherwise participating in the choice of a representative or another person to serve on any such committee, and acting as a member of any such committee directly or by or through any such representative or other person;

8. acting or causing the taking or refraining from the taking of any action, including by proposing, approving, consenting or disapproving, by voting or otherwise, with respect to one or more of the following matters:

(a) the dissolution and winding up of the DELP or an election to continue the DELP or an election to continue the business of the DELP;

(b) the sale, exchange, lease, mortgage, assignment, pledge or other transfer of, or granting of a security interest in, any asset or assets of the DELP;

(c) the incurrence, renewal, refinancing or payment or other discharge of indebtedness by the DELP;

(d) a change in the nature of the business;

(e)the admission, removal or retention of a GP;

(f) the admission, removal or retention of a LP;

(g) a transaction or other matter involving an actual or potential conflict of interest;

(h) an amendment to the LPA or certificate of limited partnership;

(i) the merger or consolidation of a DELP;

(j) in respect of a DELP which is registered as an investment company under the Investment Company Act of 1940, any matter required by the Investment Company Act of 1940 to be approved by the holders of beneficial interests in an investment company, including the electing of directors or trustees of the investment company, the approving or terminating of investment advisory or underwriting contracts and the approving of auditors;

(k)the indemnification of any partner or other person;

(l) the making of, or calling for, or the making of other determinations in connection with contributions;

(m) the making of, or the making of other determinations in connection with or concerning, investments, including investments in property whether real, personal or mixed, either directly or indirectly, by the DELP; or

(n) such other matters as are stated in the LPA or in any other agreement or in writing;

9. serving on the board of directors or a committee of, consulting with or advising, being an officer, director, stockholder, partner (other than a GP of a GP of the DELP), member, manager, trustee, agent or employee of, or to be a fiduciary or contractor for, any person in which the DELP has an interest or any person providing management, consulting, advisory, custody or other services or products for, to or on behalf of, or otherwise having a business or other relationship with, the DELP or a GP of the DELP. (Section 17-303)

Series of LPs, GPs or partnership interests

Series partnerships are permissible under Cayman Islands' law as a matter of contract but note that there is no scope for statutory segregation as between the assets and/or liabilities of different series of interests. An LPA providing for different series of interests comprises solely a contractual arrangement effective as between the partners and is not effective in relation to third parties, such as creditors, in the absence of limited recourse language limiting the recourse of such third parties to the assets relevant to a particular series in the context of a particular document.

The GP should therefore manage cross-series liability by incorporating limited recourse language, where possible, when contracting with third parties.

An LPA may establish or provide for the establishment of designated series of LPs, GPs or partnership interests having separate rights, powers or duties with respect to specified property or obligations of the DELP, and, to the extent provided in the LPA, any such series may have a separate business purpose or investment objective. (Section 17-218(a))

Classes and voting

 

An LPA may provide for classes or groups of LPs or GPs having such relative rights, powers and duties as the LPA may provide, and may make provision for the future creation in any manner provided in the LPA of additional classes or groups of LPs or GPs having such relative rights, powers and duties as may from time to time be established, including rights, powers and duties senior to existing classes and groups of LPs or GPs.

The LPA may grant to all or certain identified LPs or a specified class or group of LPs (subject to section 17-303 of the Act), or to all or certain identified GPs or a specified group of GPs, the right to vote separately or with all or any class or group of the LPs or GPs, on any matter. Voting by LPs or GPs may be on a per capita, number, financial interest, class, group or any other basis.

Unless otherwise provided in an LPA, on any matter that is to be voted on by GPs or LPs, the GPs or LPs may take such action without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the GPs or LPs having not less than the minimum number of votes that would be necessary to authorise or take such action at a meeting at which all GPs or LPs entitled to vote thereon were present and voted. Unless otherwise provided in an LPA, on any matter that is to be voted on by GPs or LPs, the GPs or LPs may vote in person or by proxy.

An LP and any class or group of LPs have the right to vote only on matters as specifically set forth in subchapter 3 of the Act, on matters specifically provided by agreement, including an LPA, and on any matter with respect to which a GP may determine in its discretion to seek a vote of an LP or a class or group of LP if a vote on such matter is not contrary to an LPA or another agreement to which a GP or the DELP is a party. An LP and any class or group of LPs have no other voting rights. An LPA may provide that any LP or class or group of LPs shall have no voting rights. (Sections 17-302 and 17-405)

To veiw full article click here.

Cayman Islands
Ian Ashman, Partner

London
David Whittome, Partner

Jersey
James Gaudin, Partner

British Virgin Islands
Richard May, Partner

Hong Kong
Carol Hall, Partner

Dubai
Rod Palmer, Partner

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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