Corporate Mergers and Partnership Dissolutions
Cayman has grown to be one of the largest international financial centres in large part by continuing to evolve its legislation. Two cornerstone's of Cayman's legislative framework are the Companies Law and the Exempted Limited Partnership Law, both of which are to be amended in April 2009. The Companies Law amendments introduce more efficient and cost-effective means of merging or consolidating companies while preserving protections for secured creditors and dissenting minority shareholders. The amendments to the Exempted Limited Partnership Law bring the regime for the winding up and dissolution of partnerships into line with the new provisions relating to the winding up of companies which came into effect on 1 March 2009. Detailed Client Briefings on these changes are being distributed along with this Updater and are also available for viewing or downloading from our website at www.ogier.com.
OECD Recognises Cayman's Cooperation
The communiqué issued at the conclusion of the Group of Twenty (G20) summit in London on 2 April, 2009 included a renewed commitment by the G20 (which is comprised of the 19 largest national economies, the European Union, the IMF and the World Bank) to the standards of tax transparency and exchange of information in tax matters established by the OECD's Global Forum of Taxation almost a decade ago. As evidence of this renewed commitment, the G20 leaders, through the OECD's Global Forum, published three lists of jurisdictions; those who have substantially implemented the standards (the "white list"); those who have committed to implementing the standards (the "grey list"); and those who have not yet committed (the "black list").
Recognising Cayman as a jurisdiction which has committed to implementing the standards, Jeffrey Owens, the Director of the OECD's Centre for Tax Policy and Administration, noted ahead of the G20 summit that "the Cayman Islands was one of the first jurisdictions to commit to the new standards in May 2000" when it entered into a bilateral tax information exchange agreement (TIEA) with the United States. Since then, Cayman has concluded TIEAs with a further seven countries based on the Model Agreement on Exchange of Information on Tax Matters which it, along with 10 other jurisdictions, assisted in preparing and, in 2008, introduced legislation to permit the unilateral provision of tax information which Mr Owens noted was "innovative and could speed up the process of implementing the standard". With a total of 12 countries currently scheduled to the unilateral mechanism, Mr Owens went on to comment that he appreciated "the fact that the Cayman Islands has sought to simplify the means by which to broaden its information exchange relationships. The Cayman Islands is setting a good example".
With the OECD set to complete its review of Cayman's enabling legislation within the next few weeks, it is widely expected that, with tax transparency arrangements concluded with 4 of the G7 nations, 17 of the 30 OECD member states and bilateral treaties in place with all 27 EU nations pursuant to measures equivalent to the European Union Savings Directive, the Cayman Islands will progress to the white list at the first opportunity.
The outcome of the G20 summit represents a material change in the opinion of the major economic powers as to the vital role that smaller international financial centres (IFCs), such as the Cayman Islands, have to play in the global movement of capital. By recognising the internationally agreed standards of transparency and cooperation which exists in Cayman, the G20 leaders have, at long last, publicly recognised that the smaller IFCs are legitimate participants in global financial markets and the provision of global financial services. By 7 April 2009, less than a week after the publication of the black list, the Secretary General of the OECD, Angel Gurria, announced that the four jurisdictions featured on the black list (Costa Rica, Malaysia, Philippines and Uruguay) had provided commitments to the OECD to introduce tax transparency and information exchange sufficient for each of them to be removed to the grey list.
CIMA signs MOU with Brazilian Regulator
The Cayman Islands Monetary Authority ("CIMA") has announced that it had entered into a Memorandum of Understanding (the "MOU") with the Securities and Exchange Commission of Brazil (the Comissão de Valores Mobiliários ("CVM")).
The MOU affirms CIMA's commitment to cooperating and sharing information with international regulatory counterparts. This latest development establishes Cayman as a compliant and safe jurisdiction for Brazilian domestic fund managers who invest assets abroad as permitted by CVM Regulation 450 (as amended).
Monetary Authority Law
The Monetary Authority Law (1996) contains specific provisions relating to CIMA's power to investigate and to respond to requests for assistance from an overseas regulatory authority, including procedures that need to be followed, certain discretions that CIMA may apply in deciding whether or not to respond to a request, and conditions that CIMA may apply to a response, all of these exercisable whether or not CIMA has entered into an agreement with such overseas regulatory authority for the exchange of information. The Monetary Authority Law also contains provisions that permit CIMA to formalise the framework for the exchange of information by entering into memoranda of understanding with overseas regulatory authorities.
The Monetary Authority Law was amended in December 2008 to implement the agreed position reached with the International Organisation of Securities Commissions' recommendations on international cooperation. The amendments remove the distinction between routine and non-routine requests of an overseas regulatory authority (the latter of which previously required a referral to the Attorney General and Financial Secretary and an option to not provide assistance if it would not be in the public interest to give the assistance sought) and also enable CIMA to consent to the use of information in certain criminal investigations or proceedings.
This agreement with the CVM simply sets forth a reciprocal framework that enables both CIMA and the CVM to cooperate with specific requests for information from each side.
The MOU covers assistance by CIMA to facilitate the performance by CVM of its functions to enforce or secure compliance with laws and regulations in Brazil concerning:
(a) insider dealing, market manipulation, misrepresentation of material information and other fraudulent or manipulative practices relating to securities and derivatives, including solicitation practices, handling of investor funds and customer orders;
(b) the registration, issuance, offer, or sale of securities and derivatives, and reporting requirements related thereto;
(c) market intermediaries, including investment and trading advisers who are required to be licensed or registered, collective investment schemes, broker dealers, and transfer agents; and
(d) markets, exchanges, and clearing and settlement entities.
Requests for assistance must be made in writing and must include a detailed description of the facts underlying the investigation and details of the laws and regulations that may have been violated.
The assistance available under the MOU includes but is not limited to:
1. providing information and documents held in the files of CIMA regarding the matters set forth in the request for assistance;
2. obtaining information, documents or copies thereof regarding the matters set forth in the request for assistance, including:
- contemporaneous records sufficient to reconstruct all securities and derivatives transactions, which may include records of all funds and assets transferred into and out of bank and brokerage accounts relating to these transactions;
- records that identify: the beneficial owner and controller, and for each transaction, the account holder; the amount purchased or sold; the time of the transaction; the price of the transaction; and the individual and the bank or broker and brokerage house that handled the transaction;
- information identifying persons who beneficially own or control non-natural persons organised in the Cayman Islands; and
- taking or compelling a person's statement, or, where permissible, testimony under oath, regarding the matters set forth in the request for assistance.
CVM may use the information it obtains from CIMA solely for:
- the purposes set forth in the request for assistance, including ensuring compliance with the applicable laws and regulations; and
- a purpose within the general framework of the use stated in the request for assistance, including conducting a civil or administrative enforcement proceeding, assisting in a self regulatory organisation's surveillance or enforcement activities, assisting in criminal prosecution, or conducting any investigation for any general charge applicable to the violation of the provision specified in the request where such general charge pertains to a violation of the laws and regulations administered by CVM. This use may include enforcement proceedings that are public.
Save as set forth above or in response to a legally enforceable demand (following consultation with CIMA), CVM may not disclose non-public documents it receives and must use its best efforts to protect the confidentiality of non-public documents and information received under the MOU.
Following on from the first MOU CIMA entered into with Banco Central do Brasil in February 1999 (subsequently updated in March 2006), the MOU with CVM is a further milestone in the history of strong cooperation between Cayman and Brazilian regulatory authorities and is evidence of the close business ties between the two countries.
The MOU also is good news for Brazilian managers of Brazilian domestic funds looking to use Cayman Islands vehicles as a platform for international investment permitted by CVM Regulation 450. Although Cayman has been used to establish such vehicles for some time, the signing of the MOU should remove any residual doubts over the use of Cayman as a jurisdiction to establish such vehicles and should facilitate Cayman-based custodians and registrar and transfer agents to act on such structures.
More Upgrades to Cayman's AML regime
Cayman continues to hold a leading position amongst global financial centres with the announcement of recent upgrades to the Money Laundering Regulations (2008 Revision) ("Regulations") and the Cayman Islands Monetary Authority's ("CIMA") Guidance Notes on the Prevention and Detection of Money Laundering ("Guidance Notes"). These changes have been implemented from a recent set of recommendations by the Caribbean Financial Action Task Force.
The Regulations and the Guidance Notes apply to persons carrying on "relevant financial business" in or from the Cayman Islands. Essentially, "relevant financial business" means (a) a business carried on by a person who is required to be licensed or registered with CIMA or (b) a business engaging in any of the activities listed in the Second Schedule to the Regulations.
This update considers the impact of the changes on affected financial service providers.
1 Compliance Officer
In addition to the requirement to appoint a Money Laundering Reporting Officer ("MLRO"), the Regulations now require someone at management level, to be designated a Compliance Officer ("CO") who is responsible for monitoring and ensuring internal compliance with the laws relating to money laundering.
Under the revised Guidance Notes, the CO is specifically responsible for:
- the development of internal policies, procedures and control, including an appropriate compliance management arrangement, and adequate screening of employees;
- an appropriate employee training programme; and " an audit function to test the system.
The MLRO and the CO may be the same person. In respect of both positions, the relevant officer must:
- have appropriate experience and skill;
- report directly to, and have regular contact with the Board (or equivalent);
- have sufficient seniority and authority so that the Board reacts to and acts upon any recommendations made;
- have sufficient resources; including a deputy CO; and
- have unfettered access to data and business personnel to appropriately perform the function.
Can the new CO function be delegated?
Historically, regulated investment funds have relied on a provision in Section 8 of the Guidance Notes that allows for de facto delegation of the MLRO reporting function to a Cayman or Schedule 3 service provider (usually the fund's administrator). We anticipate that CIMA will approve a similar course for the CO function. However, until such time as CIMA issues further policy or guidance, administration agreements should expressly delegate the CO function to the third party although they need not specifically name the CO. Eligible Introductions Following the amendments, the Regulations now impose more stringent requirements under which a financial service provider ("FSP") may accept an eligible introduction ("EI") from a third party (rather than perform its own full due diligence on the client). The Regulations now require:
(a) that the level of the client identification undertaken by the third party be known. This can be accomplished by requiring the EI to be accompanied by the actual client identification documents (which, in essence, will be certified copies of the identification documents);
(b) that the EI's own AML procedures are satisfactory. Realistically, this can only be achieved by a review by the FSP of the third party's policies;
(c) confirmation that the third party will retain documentation under the time limit of its own AML regime; and
(d) confirmation that the third party will notify the FSP if any of the following happens: the client relationship terminates; the documentation is going to be destroyed; or the terms of the client relationship changes such that reliance on the EI is no longer acceptable.
It is important to note that a FSP relying on an EI from a third party remains liable for any failure by the third party to obtain and record satisfactory evidence of the identity of the ultimate client.
Can fund administrators continue to rely on an Eligible Introduction?
In practice, the majority of investor exemptions in respect of the requirement to collect full due diligence documentation, falls under either of the following categories: (i) funds being received from an account in the investor's name with a Schedule 3 bank; or (ii) where the investor is regulated in its own right. An additional exemption is the acceptance (from a regulated third party) by the fund administrator of an EI. This avoids duplication in respect of the collection of full due diligence on the fund's investors. If a fund administrator wishes to continue to accept EIs, the EI itself will need to be redrafted to reflect the policies stated in points (a) to (d) above, as will the fund's policies and procedures.
Simplified client due diligence
The amendments to the Regulations have increased client identification requirements in certain circumstances and changed the criteria under which simplified client due diligence (usually exemptions) can be accepted. Specifically:
a) where a FSP is required to maintain procedures to identify its clients and has doubts about the accuracy of any evidence of a client's identity, it must obtain satisfactory additional evidence;
b) simplified client due diligence measures (i.e. reliance on exemptions) will be unacceptable in high-risk scenarios. These scenarios may include:
1. a client who is not physically present for identification purposes (i.e. non face-to-face business);
2. politically exposed persons ("PEPs");
3. cross-border correspondent banking relationships; and
4. where a risk assessment reveals a higher risk of money laundering.
The FSP's AML policies and procedures will need to be updated to reflect these changes.
To the extent that a FSP has delegated the maintenance of their AML procedures, the FSP should ensure that appropriate policies exist in respect of the acceptance of simplified due diligence.
In addition to the existing requirements in respect of retention of client identification records, a FSP should also retain relevant account files and business correspondence for a period of five years from the termination of the relationship. This includes correspondence which may be relevant or useful to an investigation, including enquiries regarding complex or unusual transactions.
The FSP's AML policies and procedures will need to be updated to reflect these changes.
To the extent that a FSP has delegated the maintenance of their AML procedures, the FSP should ensure that the delegation now includes the retention of business correspondence and account files.
Subject to the nature and size of its business, a FSP must now undertake an "internal" audit. This is in addition to the already existing requirement for a "financial" audit. Where implemented, the audit will assess:
a) the overall integrity and effectiveness of the AML procedures, including client identification and internal controls;
b) the risks and exposure to the business;
c) compliance with relevant laws and regulations;
d) monitoring of high risk transactions, relationships and reporting procedures; and
e) training procedures and employees knowledge and awareness of the AML regime.
When is it necessary to undertake an internal AML audit?
CIMA's guidance requirements to undertake an internal AML audit state that it should be appropriate to the size and scope of the FSP's operations. In addition, CIMA states that FSP's may satisfy that requirement by:
- Reliance on the internal AML audit of its parent company (where such an arrangement exists); and
- Periodic outsourcing of the internal AML audit through the use of an external vendor. Where the financial audit is outsourced, the AML could be undertaken by the same external vendor. However, unlike the financial audit that is conducted annually as mandated by law, an outsourced AML audit could be conducted less frequently if no major internal control issues have been identified.
Delegation of audit function
To the extent that a FSP has delegated the maintenance of their AML procedures, the FSP should (where applicable) ensure that the delegation now covers an internal AML audit.
Recognition of Guidance Notes by the Court
The Regulations now make it clear that the courts will take into account non-compliance with regulatory guidance (i.e. the Guidance Notes) in determining whether a FSP has complied with anti-money laundering legislation. In effect, this reinforces the legal scope of the Guidance Notes.
"Applicant for business"
The Regulations now further define what is meant by an "applicant for business" i.e. a client, which is defined as:
- a person acting on behalf of, or with the authority of the applicant for business; and
- the natural person or persons who ultimately own or control the applicant for business.
Access to information by MLRO
When considering an internal suspicious activity report, the Regulations now require that full (not just reasonable) access be given to the MLRO in respect of all information.
How should an existing Cayman investment fund respond to the recent changes to Cayman's AML regime?
Pending any further guidance from CIMA, we recommend that an existing Cayman investment fund do the following:
a) Expressly delegate the CO function;
b) Amend its AML policies and procedures to reflect the changes by:
1. including the requirement for the fund to undertake periodic internal AML audits that are appropriate to the size and scope of its operations;
2. in relation to the fund's retention policies, adding reference to business correspondence files and account files;
3. updating its simplified client due diligence procedures;
4. updating its policies regarding acceptance of EIs if it wishes to continue accepting EIs;
c) Redraft the form EIs to comply with the changes in that regard (assuming it wishes to continue accepting EIs);
d) Comply with the amended policies and procedures.
To the extent that the fund has delegated some or all of the new requirements to a regulated party in a Schedule 3 country, it should ensure that the regulated party similarly includes those requirements in its own AML policies and procedures and complies with them.
"Relevant financial business" - Private Trust Company
The list of activities in Schedule 2 that constitute "relevant financial business" has been updated to include the provision of registered office services to a Private Trust Company ("PTC").
Under regulations pursuant to the Banks and Trust Companies Law (2007 Revision), a Private Trust Company (as defined) that is registered with CIMA is no longer required to obtain a license to act as such. In addition, a PTC must satisfy the following requirements:
- it must have "PTC" or "Private Trust Company" in its name;
- it must make an annual declaration to the effect that it is only carrying on business with "connected persons" (typically, some sort of family connection);
- it must provide the names of its directors; and
- it must also provide details of the trust company with which it has its registered office, which must be a licensed trust company.
A provider of registered office services to a PTC and the PTC itself will need to consider which has responsibility for, and will comply with, Cayman AML regime. It is hoped that CIMA will shortly issue guidance about which entity has those responsibilities.
Cayman leads on Tax Cooperation Agreements
As a further evidence of Cayman's long-standing history of participation and commitment to the OECD Global Forum on Taxation (2000) on principal standards for transparency and exchange of information on tax matters, the list of countries with which Cayman has in place official cooperation agreements has increased to twenty. This list encompasses four of the G-7 countries and 17 of the 30 Organisation for Economic Co-operation and Development (OECD) member states.
The countries now able to request tax information (both civil/administrative and criminal matters) from Cayman under the latest unilateral mechanism are Austria, Belgium, Czech Republic, Germany, Holland, Ireland, Japan, Luxembourg, the Netherlands, Slovak Republic, South Africa, Switzerland and the UK. This news fell quickly on the heels of bilateral agreements (including tax information agreements) that were announced in early March with the Nordic countries of Denmark, Faroe Islands, Finland, Greenland, Iceland, Norway and Sweden. Existing bilateral arrangements have been in place with the US since 2001.
This latest set of unilateral agreements supports a healthy list of accolades from various global regulatory bodies, including the latest report given on the jurisdiction by the Caribbean Financial Action Task Force ("CFATF") which noted that Cayman has "a strong compliance culture" and that it was compliant or largely compliant with FATF and CFATF recommendations putting Cayman near the top of the list of both onshore and offshore jurisdictions in terms of anti-money laundering and cooperation initiatives. The International Monetary Fund ("IMF") has also found Cayman to have "a sound framework in place for the provision of mutual assistance through domestic law and international treaties and arrangements". The IMF has recently conducted its latest review of Cayman, with the report expected in due course.
Both the Cayman Islands Monetary Authority and the Cayman Government have long held the view that establishing appropriate regulation is crucial to long term commercial success. In 2000 it was one of the first non OECD jurisdictions to adopt the principles of transparency and exchange of information, going on to complete the tax information agreement in 2001 with the United States. 2005 saw agreements with 27 European Union member states under which the jurisdiction has agreed to report savings income pursuant to the European Union Savings Directive. Over the years, Memoranda of Understanding on tax related issues have also been signed with Bermuda, Brazil, Canada, Isle of Man, Jamaica, Panama, the United Kingdom, and eight regulatory authorities in the Caribbean. Bilateral arrangements with the United Kingdom are also expected to be announced imminently.
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.