Cayman Islands: Establishing An Exempted Limited Partnership In The Cayman Islands

The purpose of this memorandum, which has been prepared for the assistance of anyone who is considering establishing an exempted limited partnership in the Cayman Islands, is to provide a summary of the main legal requirements and general principles applicable to the formation, registration, operation and termination of exempted limited partnerships.

This memorandum is intended to provide a general summary of the position under Cayman Islands law as at the date shown on the cover; it is not to be taken as specific legal advice applicable to particular issues or circumstances. Anyone considering establishing an exempted limited partnership should contact one of the Ogier partners listed on the last page.

Introduction

The Exempted Limited Partnership Law (Revised) of the Cayman Islands (the ELP Law) provides the principal statutory framework for the formation, registration, operation and termination of exempted limited partnerships in the Cayman Islands. In addition, certain provisions of the Partnerships Law (Revised) (the Partnership Law) and certain principles of common law supplement the ELP Law, or, more accurately, the ELP Law overlays and modifies those provisions and principles.

The ELP Law has recently been updated and the new law includes significant changes to the Cayman Islands' statutory framework that will increase the attractiveness of ELPs and will be appreciated by managers, investors and creditors alike. Private equity sponsors in particular will notice substantial improvements that are indicative of Cayman's continuing commitment to balanced and commercially sensible legislation. For an overview of the specific amendments to the ELP Law please see our briefing the Exempted Limited Partnership Law, 2014.

An exempted limited partnership may be an appropriate structure for a number of different purposes:

It is commonly used as a vehicle for investment funds, especially where the fund is formed to further a venture capital/private equity transaction; and, in this regard, it is possible to list the interests in the exempted limited partnership on various internationally recognised stock exchanges, including the Cayman Islands Stock Exchange.

• It is often an attractive structure for various tax-planning purposes, for instance, as the preferred tax method to hold assets in another jurisdiction.
• It may also provide an attractive method of trading in order to have the desired flexibility to introduce partners as passive investors on a limited-liability basis.

A Cayman Islands exempted limited partnership does not have a separate legal personality and, therefore, the powers, duties and responsibilities of the general partner(s) are of particular importance.

Establishing an exempted limited partnership

The Partnership Law stipulates that a partnership is the relation which subsists between persons (i.e. two or more persons) carrying on a business in common with a view to profit. The persons do not have to be individuals; one or more of them may be a body corporate. Whilst still requiring at least two persons to be partners, the ELP Law modifies this stipulation by providing that, to be an exempted limited partnership, the partnership must consist of (i) at least one person, called the general partner, who, in the event that the assets of the exempted limited partnership are inadequate, is liable for all of the debts and obligations of the exempted limited partnership and (ii) at least one person, called the limited partner, who, except in very limited circumstances is not liable for the debts or obligations of the exempted limited partnership in excess of the capital contributed by that person to the exempted limited partnership.

General partners

Often there is only one general partner, but there can be more than one. However, it is a requirement of the ELP Law that at least one general partner of an exempted limited partnership must have a presence in the Cayman Islands. More specifically, at least one general partner must:

• if an individual, be resident in the Cayman Islands; or
• if a company, be incorporated under the Companies Law (Revised) of the Cayman Islands or be an overseas company registered in the Cayman Islands as a foreign company under the Companies Law; or

if a partnership, be registered as an exempted limited partnership under the ELP Law or be an overseas foreign limited partnership registered in the Cayman Islands as a foreign limited partnership under the ELP Law.

Limited partners

To recap, for there to be a partnership, including an exempted limited partnership, there must be two or more persons carrying on business in common with a view to profit. In the case of an exempted limited partnership, the ELP Law modifies the requirement for carrying on business with a view to profit, for it is the general partner who undertakes the conduct of the business, while the limited partners are, in effect, passive investors who contribute capital in order that the business may be carried on with a view to profits being generated and allocated amongst the partners in accordance with the terms of the partnership agreement. In return, the limited partners generally obtain the benefit of limited liability to the extent of their interest in the exempted limited partnership.

Documents and procedure for registration

In order to gain the benefit of the ELP Law, a partnership must be registered as an exempted limited partnership under the ELP Law.

Registration is effected by paying to the Registrar of Exempted Limited Partnerships (the Registrar), an initial registration fee (details of which are set out at the end of this memorandum) and filing an accompanying statement, signed by or on behalf of a general partner, containing certain prescribed information, such as the name of the exempted limited partnership, the general nature of its business, the location of its registered office in the Cayman Islands, the term of the partnership (which may be fixed or of unlimited duration) and the name & address of the general partner(s). The statement must also include a statutory declaration that the exempted limited partnership shall not undertake any business with the public in the Cayman Islands other than so far as may be necessary for the carrying on of the business of the exempted limited partnership exterior to the Cayman Islands.

In addition to the particulars of each general partner's name & address provided in the statement, the statement must be accompanied by a certified copy of the certificate of incorporation or registration (as appropriate) and a certificate of good standing issued by the Registrar. The proposed name must include the words 'Limited Partnership' or the letters 'L.P.' or "LP" and the Registrar may refuse to register an exempted limited partnership, or to register any change of name of an exempted limited partnership, where the proposed name is, in the opinion of the Registrar, identical to the name of an existing exempted limited partnership or so nearly resembles that name as to be calculated to deceive. There are certain other sensitive words which, in some cases, may not be included in the name of the exempted limited partnership at all and, in other cases, require the prior consent of the Registrar. On receipt of the initial registration fee, the above statement and the accompanying certificates in respect of each general partner, the Registrar will register the exempted limited partnership and issue a certificate of registration to the general partner(s). The certificate of registration is generally issued by the Registrar between three and five working days following the payment of the initial registration fee and the filing of the above statement, but there is an expedited service available, such that registration can be completed within 24 hours (the fee for which is set out at the end of this memorandum).

Tax treatment

Government that, for a period not exceeding 50 years from the date of the undertaking, no law which is enacted in the Cayman Islands imposing any tax to be levied on profits, income, gains or appreciations shall apply to the exempted limited partnership or to any partner, in respect of the operations of the exempted limited partnership, the assets of the exempted limited partnership or the interest of a partner in the exempted limited partnership. In addition, the undertaking may also provide that such taxes or any tax in the nature of estate duty or inheritance tax shall not be payable in respect of the obligations of the exempted limited partnership or the interests of the partners in the exempted limited partnership.

The partnership agreement

The partnership agreement sets out, in detail, the respective rights and obligations of the general partners and the limited partners, and it deals, in particular, with the matters set out in the registration statement discussed above. Typically, it also deals with the following matters:

• The general partner's powers and obligations in relation to the exempted limited partnership, including, in particular, the general partner's obligations in respect of the management of the partnership, the conduct of its business and any limitations on the general partner's authority.
  
  
• The method and procedure for the admission of additional partners, the retirement and withdrawal of existing partners and the transfer of interests in the exempted limited partnership.
  
  
• The maintenance of accounting and other records of the exempted limited partnership.
  
  
• The allocation and distribution of profits of the exempted limited partnership amongst the partners.
  
  

The granting by each limited partner in favour of the general partner of an irrevocable power of attorney authorising the general partner to perform various agreed functions on behalf of the limited partners.

The ELP Law provides that various statutory powers or prohibitions are subject to the express or implied provisions of the partnership agreement and, further, that the partnership agreement may not exclude certain statutory rights or obligations. It is, therefore, essential that, prior to its execution, a partnership agreement be reviewed against the ELP Law to ensure that the rights, powers and obligations provided for in the partnership agreement are not restricted in any way by the terms of the ELP Law.

Rights and obligations of a general partner

As noted above, an exempted limited partnership does not have a separate legal personality and it is a requirement of the Law that all letters, contracts, deeds, instruments or documents of whatever nature shall be entered into by or on behalf of the general partner on behalf of the exempted limited partnership. Consequently, the property and assets of the exempted limited partnership will be held in the name of the general partner for the benefit of the partnership and all actions, claims, demands or proceedings raised in respect of or against the assets of the exempted limited partnership will be raised by, and in the name of, the general partner on behalf of the exempted limited partnership.

The Law provides that any debt or obligation incurred by the general partner in the conduct of the business of an exempted limited partnership shall be a debt or obligation of the exempted limited partnership. There may be circumstances where it is unclear whether a general partner is acting on its own behalf or on behalf of the exempted limited partnership and, in these circumstances, there needs to be appropriate documentation and a clear indication as to the capacity in which a general partner is acting in order to ensure that a general partner does not incur a debt for which it, rather than the exempted limited partnership, is liable or vice versa. All documents executed by a general partner on behalf of the exempted limited partnership should clearly indicate that the general partner is acting on behalf of the exempted limited partnership.

Clear identification of the capacity in which a general partner is acting is of particular importance where a general partner acts as such in relation to more than one exempted limited partnership. In such circumstances, it is important that the acquisition of assets by the general partner or the undertaking by it of debts or obligations, in each case, on behalf of a particular exempted limited partnership is clearly documented and made apparent to the third party involved in order that the assets held by it as general partner of one exempted limited partnership are not adversely affected by the debts or obligations incurred by it on behalf of another exempted limited partnership. Due to the potential for the confusion of assets and liabilities of the various exempted limited partnerships involved and the potential prejudice to the limited partners, we recommend that detailed legal advice should be obtained prior to any general partner acting in relation to more than one exempted limited partnership.

The partnership agreement will normally provide for the retirement of a general partner on the giving of a certain notice period. As noted above, an exempted limited partnership is required to have at least one general partner resident, incorporated or registered in the Cayman Islands and consequently the right of the sole remaining Cayman Islands' resident, incorporated or registered general partner to retire is normally conditional upon a suitable replacement general partner being appointed in advance.

In the event of the death, commencement of liquidation or bankruptcy proceedings, or the withdrawal, removal or making of a winding up or dissolution order in relation to the sole or last remaining Cayman Islands resident, incorporated or registered general partner, the exempted limited partnership may be automatically wound up unless a specified majority of the limited partners elect a replacement general partner. Further details relating to an automatic winding up of an exempted limited partnership are set out below.

Rights and obligations of a limited partner

Contributions

Generally, a limited partner is required to contribute to the exempted limited partnership the amount agreed to be contributed by it under the terms of the partnership agreement. Such amount may be contributed in a single payment or may be committed for contribution over a period or in installments as provided for in the partnership agreement.

There is no statutory requirement for contributions to be made in the form of money; so, unless the partnership agreement provides otherwise, contributions of property, investments or other assets are permitted.

Allocation of profits and return of contributions

Typically, the partnership agreement contains provisions relating to the allocation of profits amongst the partners, and these are likely to require detailed drafting and negotiation.

The partnership agreement also contains provisions relating to the return of contributions, in whole or in part, to the limited partners, and such provisions are subject to the terms of the ELP Law. The ELP Law provides that a limited partner shall be liable to return a payment representing a return of any part of his contribution or meet any commitment that has been released where that payment or release coincided with the insolvency of the partnership and the limited partner had actual knowledge of that insolvency. The liability of the limited partner in these circumstances is limited to a period of six months following the date of the payment or release. In this respect, insolvency of the partnership means that the exempted limited partnership is unable to discharge its debts as they fall due without recourse to any assets of the general partner which have not been contributed to the partnership.

Limitation of liability

To obtain and to maintain the benefit of limited liability in relation to the debts and obligations of the exempted limited partnership, a limited partner is prohibited from taking part in the conduct of the business of the partnership. Should a limited partner take part in the conduct of the business of the exempted limited partnership for any period, that limited partner may be liable to any person who transacts business with the partnership during that period with actual knowledge of his participation and who then reasonably believed the limited partner to be a general partner.

However, the ELP Law states that a number of things that do not amount to taking part in the conduct of the business of the partnership, such as approving or disapproving an amendment to the partnership agreement, or consulting with and advising the general partner with respect to the business of the partnership. Therefore, participation by a limited partner on an advisory board (such as an investment committee) is permissible, even where the recommendation of that advisory committee is binding on the general partner.

The ELP Law goes on to provide that the existence of the specific exemptions set out in the law does not imply that the possession or exercise by a limited partner of any other power will necessarily constitute the participation by the limited partner in the conduct of the business of the exempted limited partnership.

Admission of new partners and transfer of interests

The partnership agreement normally provides a procedure for admitting additional or replacement limited partners which is facilitated by the provisions of the ELP Law that then creates privity with the remaining parties of the partnership.

Maintenance of records and accounts

powers to inspect such records. In the absence of a provision to the contrary in the partnership agreement, the ELP Law provides that a limited partner may, at any time, demand and shall receive from the general partner true and full information regarding the state of the business and financial condition of the exempted limited partnership.

The ELPs contribution. One should note that details of the identities of the partners can now be separated from the financial details of their investment. Subject to the partnership agreement, the register of investor details is open to inspection by any partner and any other person with the consent of the general partner and the financial register is only open to inspection with the consent of the general partner.

In the event of the subsequent amendment of any of the prescribed particulars contained in the statement (described above) filed in connection with the registration of the exempted limited partnership, a general partner must file with the Registrar an updated statement of the prescribed particulars within certain specified periods depending on the nature of the proposed amendment. In addition, in order to preserve the registration of the exempted limited partnership, an annual registration fee (details of which are set out at the end of this memorandum) is payable to the Registrar in January of each year.

Winding up and dissolution of an exempted limited partnership

The termination of an exempted limited partnership consists of two distinct steps: its winding up and its subsequent dissolution.

Grounds of winding up

An exempted limited partnership may be wound up in the following circumstances:

Pursuant to the partnership agreement

An exempted limited partnership is to be wound up at the time or upon the occurrence of any event specified in the partnership agreement.

By resolution of the partners

Unless otherwise specified in the partnership agreement, an exempted limited partnership continues until wound up and dissolved by resolution of all the general partners, and a two-thirds' majority of partners (a "Winding Up by Resolution").

Automatic winding up

The ELP Law provides for the automatic dissolution of an ELP following the death, the commencement of liquidation or bankruptcy proceedings, or the withdrawal, removal or making of a winding up or dissolution order in relation to the sole or last remaining general partner. (It also provides that other events - or dates - causing automatic dissolution may be specified in the partnership agreement.) In such an event, the exempted limited partnership will, subject to any express or implied term in the partnership agreement, be wound on the date (the automatic wind up date) falling 90 days after the date of the service of a notice on all the limited partners informing them of that event. However, the business of the exempted limited partnership may be resumed and continue if, before the automatic wind up date, the majority of partners elect a new general partner or partners. The necessary majority is such majority specified in the partnership agreement as being entitled to vote to elect a new general partner, or if no such majority is specified in the partnership agreement, a simple majority of the partners (determined by reference to capital contributions).

Unless the partnership agreement provides otherwise, if a new general partner is not elected by the automatic wind up date, the exempted limited partnership is wound up in accordance with the partnership agreement or in accordance with a court order made on the application of any partner or creditor of the exempted limited partnership.

Winding up by court order

The ELP Law preserves the power of the court, on the application of a partner or creditor of an exempted limited partnership, to make such orders and give such directions for the winding up and dissolution of an exempted limited partnership as may be just and equitable. The role of the court is, however, significantly expanded by virtue of the application, subject to certain limitations (see next) of the provisions of Part V of the Companies Law and the Winding Up Rules to the winding up and dissolution of exempted limited partnerships.

Winding up procedure

The procedure for winding up of an exempted limited partnership is substantially the same as that for the winding up a company under the Companies Law (Registered). For instance, the ELP Law incorporates express provisions relating to the application and distribution of exempted limited partnership property on winding up. It also imports clawback provisions in the Companies Law regarding the recovery of undue preferences and of dispositions at undervalue. It is beyond the scope of this memorandum to review such procedure in detail.

Suffice to say that any surplus remaining after satisfaction in full of all exempted limited partnership liabilities is distributed to the partners in accordance with their rights under the partnership agreement.

Dissolution

On completion of the winding up, the general partner or other liquidator must sign and file a notice of dissolution with the Registrar, following which the exempted limited partnership is dissolved. An exempted limited partnership cannot be dissolved before such a notice has been filed.

Strike off

This provision is substantially similar to the strike off provisions set forth in the Companies Law (but, unlike the position with a struck off company, the assets of a struck off partnership do not vest in the Financial Secretary, but continue to be held by the GPs). In particular, a GP, limited partner or creditor who objects to an ELP being struck off the register pursuant to this section, on the grounds that the ELP was at the time it was struck off the register carrying on business, in operation or otherwise, may apply to court for the ELP to be reinstated. The striking off the register of any ELP does not affect the liability, if any, of any GP or limited partner of the ELP, and the liability continues and may be enforced as if the ELP had at all times continued to be in existence.

The strike-off provisions therefore provide a convenient, simpler alternative to formal dissolution which will be suitable for some partnerships but the reinstatement provisions mean that strike-off is a less final method of terminating a partnership.

Deregistration

A general partner of an exempted limited partnership, if so permitted by the partnership agreement, may deregister the exempted limited partnership as an exempted limited partnership by filing a written notice of deregistration with the Registrar, together with written confirmation that such action is authorised by the partnership agreement. Upon deregistration, an exempted limited partnership ceases to be an exempted limited partnership, but is not dissolved. It therefore continues to exist as a partnership, and all partners will have unlimited liability for its debts. Such deregistration would enable the deregistered partnership to register under the laws of another jurisdiction which permitted such registration, but care needs to be taken to coordinate deregistration under the ELP Law and registration elsewhere, to avoid a period in which all the partners have unlimited liability.

Transfer by way of continuation

An ELP can apply to deregister in the Cayman Islands and transfer by way of continuation to another jurisdiction as a partnership, body corporate or any other form of entity under the laws of that jurisdiction.

Registration fees

The registration fees payable to the Register in relation to an exempted limited partnership, as at the date of this briefing note, are as follows:

• Initial registration fee: US $1,220 payable on first registration;
  
  
• Expedited registration fee: US $488 payable in addition to the initial registration fee;
  
  

Annual registration fee: US $1,463 (if registered with the Cayman Islands Monetary Authority (CIMA)) or US $2,439 (if not registered with CIMA) payable in January of each year following the year of initial registration.

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.