This memorandum has been prepared for the assistance of our clients in connection with the provisions relevant to migration of companies into and out of Guernsey under the Companies (Guernsey) Law, 2008 (the "Companies Law"). It is intended to provide only a summary of the main legal and general principles and it is not intended to be comprehensive in scope. It is strongly recommended that you seek specific legal advice on such matters and we would be pleased to assist in this respect. A series of briefings on other specific aspects of Guernsey companies has been produced by Ogier and is available on our website www.ogier.com. Transitional provisions have also been made (a separate briefing addresses the operation of these).

The memorandum has been prepared on the basis of the law and practice in Guernsey as at 1 July 2008.

Introduction

The Companies Law came into full force on 1 July 2008.

Migrations into Guernsey

Under the Companies Law there is no requirement for the company migrating to Guernsey to make application to the Guernsey Courts. The formal application to migrate is made to the Registrar of Companies (the "Registrar"). However, where the overseas company intends to be, or is already equivalent to, a "supervised company", (essentially a company which requires regulation by the Guernsey Financial Services Commission) a protected cell company or an incorporated cell company written consent from the Commission must be obtained.

Procedure for migrations into Guernsey

Under the Companies Law an overseas company migrating into Guernsey will be required to provide evidence as to certain factual information about the company, obtain a foreign law legal opinion and provide a director's declaration of compliance.

The foreign law legal opinion needs to provide evidence that on the date of registration in Guernsey the company will cease to be incorporated and registered under the law of the foreign jurisdiction from where it was migrating. A company cannot migrate into Guernsey if it does not pass a statutory solvency test or if it is in any insolvent process (e.g. administration). All formal applications to migrate into Guernsey will be made to the Registrar via a corporate service provider. Ogier can act in this capacity. Upon receipt of the application the Registrar shall register the memorandum and articles in the Register of Companies, issue a certificate of registration and allocate a registration number to the company.

Migrations out of Guernsey

Under the Companies Law there is no requirement for the migrating company to place a notice of its intention in La Gazette Officielle. There is no statutory period between notifying creditors and making formal application. The formal application to migrate is made to the Registrar of Companies (the "Registrar"). However, where the Guernsey company is a "supervised company" written consent from the Commission must be obtained.

For clarification, the Companies Law provides that where the Guernsey company is an incorporated cell company it cannot be removed from the Register unless all of its incorporated cells are also removed. Similarly, an incorporated cell cannot be removed from the Register unless its incorporated cell company is also removed.

Procedure for migrations out of Guernsey

Under the Companies Law a migrating company will be required to hold board and shareholder meetings, pass and file a special resolution, notify its creditors, obtain approval of HM Procureur and the Administrator of Income Tax, obtain a foreign law legal opinion and provide a director's declaration of compliance.

The foreign law legal opinion needs to provide evidence that on the date on which the company's name is removed from the Register it will be incorporated under the law of the foreign jurisdiction to which it is migrating. A company cannot migrate if it does not pass a statutory solvency test or if it is in any insolvent process (e.g. administration).

All formal applications to migrate out of Guernsey will be made directly to the Registrar via a corporate service provider. Ogier can act in this capacity. Upon receipt of the application by the Registrar notice of the proposal will be given in such manner and for such period as the Registrar thinks fit. Not less than 28 days after such notice the company's name shall be removed from the Register.

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.