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11 April 2024

Guide To Companies In The Isle Of Man

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Appleby

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Appleby is one of the world’s leading offshore law firms, operating in 10 highly regarded and well-regulated locations. We provide comprehensive, expert advice and services across a number of key practice areas. We work with our clients to achieve practical solutions whether from a single location or across multiple jurisdictions.
This guide summarises the key features of Manx Companies under each regime, noting the key differences where relevant.
Isle of Man Corporate/Commercial Law
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The Isle of Man has two separate but co-existing company law regimes: The Companies Acts 1931-2004 (collectively referred to as the 1931 Act) and the Companies Act 2006 (the 2006 Act). We refer to all such companies in this guide as Manx Companies. The 1931 Act was closely based on the English Companies Act 1929 and is based on traditional English company law principles. The 2006 Act follows the international business company model that is available in a number of offshore jurisdictions and offers significant flexibility in terms of company administration.

Both regimes provide for several types of companies:

  • Companies limited by shares;
  • Companies limited by guarantee;
  • Companies limited by shares and guarantee; and
  • Unlimited companies.

This guide summarises the key features of Manx Companies under each regime, noting the key differences where relevant.

INCORPORATION

NAMES OF COMPANIES

The names of Manx Companies are subject to approval by the Companies Registry (the Registry). The Registry can refuse to register a name that it considers undesirable or that contains certain restricted words (e.g. words implying that an unregulated company is undertaking a regulated activity). It is therefore advisable to seek the Registry's prior approval for the chosen name.

PROCESS

A 1931 Act company is incorporated by submitting the following documents to the Registry:

  • Form 1: This sets out the intended name and registered office and the names of the first directors and secretary. It must be signed by the subscribers to the company's memorandum and articles (M&As) and by each officer of the company evidencing their consent to act; and
  • Memorandum and articles of association: Upon receipt of the incorporation papers, the Registry allots a unique registration number to the company and issues a certificate of incorporation. The Form 1 and M&As are registered and become a matter of public record.

Only licensed Isle of Man Registered Agents (RAs) can incorporate a 2006 Act company. This is done by submitting the company's proposed memorandum and (if they differ from the prescribed model articles) articles of association. Upon receipt by the Registry, these documents are registered, a company registration number is allocated and a certificate of incorporation issued.

Once incorporated, a Manx Company has separate legal personality and may continue in existence indefinitely. Generally, the members of a company (other than an unlimited company) will have no liability as a member for the company's liabilities. Members will only be liable to pay the amount (if any) unpaid on their shares.

TIMEFRAME

Standard incorporation of Manx Companies occurs within 48 hours of receipt of the incorporation documents. Quicker options are available at an additional cost.

LOCAL REQUIREMENTS

Registered office: All Manx Companies must have a registered office on the Isle of Man, and any change to a company's registered office must be notified to the Registry.

Company secretary: Every 1931 Act company must have a company secretary. This is not required for a 2006 Act company, but such a company must have an appropriately licensed RA at all times.

Resident directors: Subject to the economic substance rules that are referred to below, as well as tax considerations and certain regulatory requirements that are outside the scope of this guide, Manx Companies do not need Isle of Man resident directors.

Beneficial ownership: Every Manx Company is required to appoint a "nominated officer" who is a resident of the Isle of Man unless the company is in receipt of corporate services provided by a licensed corporate services provider. The nominated officer must keep various details for each beneficial owner, including details of the nature and extent (expressed as a percentage) of the beneficial owner's interest in the company.

Economic substance: Isle of Man tax resident companies that derive income from certain sectors are required to have a minimum level of substance in the Isle of Man. Most of these companies will have to demonstrate, among other things, that they are directed and managed in the Isle of Man and that they carry on their key income-generating activities in the Isle of Man

CONSTITUTIONAL DOCUMENTS

A Manx Company's M&As regulate its internal affairs and governance. These may be in the prescribed model form appropriate for the type of company, in the prescribed model form amended to suit the particular company or entirely bespoke. A Manx Company's M&As are publicly available from the Registry.

Any changes to a Manx Company's M&As must be notified to the Registry within one month.

POWER AND CAPACITY

With certain very limited exceptions, Manx Companies have unlimited capacity. In addition, in favour of any person dealing with a Manx Company in good faith, the power of the directors to bind the company is typically unlimited (subject to compliance with their fiduciary and other duties as directors).

SHARE CAPITAL AND SHARES

Every 1931 Act company having a share capital must have an authorised share capital, and every share must have a nominal or par value. If permitted by its M&As, a 1931 company may increase, consolidate and divide, convert or subdivide its authorised share capital or cancel unissued shares.

If permitted by its M&As, a 1931 Act company can issue different classes of shares. It may also buy back its own shares subject to compliance with certain statutory procedures.

The provisions relating to shares and share capital in the 2006 Act are less prescriptive than those in the 1931 Act. There is no concept of authorised capital or par value for 2006 Act companies. However, if a 2006 Act company has shares with a par value, it may consolidate and divide, redenominate or subdivide its shares subject to any contrary provisions in its M&As.

1931 Act companies must seek sanction of the Courts to reduce their share capital, whereas 2006 Act companies can typically do so by a directors' resolution, subject to satisfying a statutory solvency test.

The 1931 Act does not include statutory pre-emption rights, so if the shareholders of a 1931 Act company require pre-emption rights to apply, they must expressly write them into the company's M&As.

The 2006 Act includes a basic pre-emptive rights provision, but it only applies if the company's M&As expressly apply it. Most 2006 Act companies do not apply the statutory pre-emption rights – any pre-emptive rights are typically drafted in more detail than the statutory provision and included in a bespoke set of M&As or in a separate shareholders' agreement, which (unlike the M&As) would not be a public document.

DIRECTORS

1931 Act companies must have at least two individual directors. Corporate directors are not permitted.

2006 Act companies can have a single director, which may be a body corporate (provided that it, or its parent company, is regulated to act as such).
The management of a Manx Company is usually vested in the board of directors, and proceedings at board meetings are governed by the company's M&As.

Ordinarily, the directors of Manx Companies exercise their powers by resolutions passed at a board meeting or as written resolutions. Resolutions passed at board meetings require the approval of the majority of the directors present and voting at the relevant meeting.

Written resolutions must be in writing and must ordinarily be signed by every director entitled to receive notice of a meeting of directors. The M&As of a 2006 Act company may, however, allow for written resolutions to be passed by a simple majority of directors.

SHAREHOLDERS AND SHAREHOLDER MEETINGS

All 2006 Act companies and most 1931 Act companies can have a single member. Certain 1931 Act companies must have at least two members.

There is no requirement for 2006 Act companies to hold annual general meetings (AGM), and certain 1931 Act companies can waive the requirement to hold AGMs.

Ordinarily, the members of Manx Companies exercise their powers by resolutions passed at a members' meeting or as written resolutions. The 1931 Act requires certain resolutions to be passed by at least 75% of the members, whereas decisions of a 2006 Act company's members are usually taken by simple majority, subject to any higher majority specified in the M&As.

Written resolutions of 1931 Act companies must be signed by every member, whereas the M&As of a 2006 Act company often permit the passing of written resolutions with the written consent of a simple majority of members. The procedure for passing members' written resolutions is more onerous for 1931 Act companies than for 2006 Act companies.

There is no statutory requirement for a Manx Company to hold its members' meetings in the Isle of Man.

ACCOUNTS AND AUDITS

1931 Act companies must produce annual accounts (including a balance sheet, profit and loss account and directors' report) and, subject to certain exemptions, the accounts must be audited.

The 2006 Act simply requires a company to keep reliable accounting records that explain its transactions, enable its financial position to be determined with reasonable accuracy and allow financial statements to be prepared. There is no audit requirement in the 2006 Act.

FILING REQUIREMENTS IN THE ISLE OF MAN

All Manx Companies are required to file with the Registry:

  • the M&As and any amendments;
  • any change of name;
  • any change of registered office address;
  • any change of RA (for a 2006 Act company);
  • annual returns;
  • any charges created (including any subsequent variation or release of such charges);
  • various applications and filings in connection with its dissolution, restoration or winding up; and
  • various applications and filings in connection with any re-registration, merger, consolidation, scheme of arrangement, transfer of domicile or conversion into a protected cell company.

1931 Act companies must also register details of any change in their directors or secretary.

2006 Act companies typically do not have to file details of any change in their directors (although these details are disclosed on a company's annual return), any changes to their share capital or any members' resolutions. 1931 Act companies must do so.

PROTECTED CELL COMPANIES

A protected cell company (PCC) is a type of Manx Company that permits the creation of "cells" in which the company's assets and liabilities are statutorily segregated. PCCs are commonly used in the investment funds and insurance industries, particularly for captive insurers.

A PCC is a single legal entity that attributes its assets and liabilities either to itself (the core) or to the individual cells it creates. The assets and liabilities that are attributed to each cell are ring-fenced from each other by statute. This means that, although the PCC is a single legal entity and cells do not have separate legal personality, its creditors in respect of one cell have no recourse to the assets of any other cell.

A PCC's directors are required to keep cellular assets and liabilities separate from the assets and liabilities of the core and each of the other cells.

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.

ARTICLE
11 April 2024

Guide To Companies In The Isle Of Man

Isle of Man Corporate/Commercial Law

Contributor

Appleby is one of the world’s leading offshore law firms, operating in 10 highly regarded and well-regulated locations. We provide comprehensive, expert advice and services across a number of key practice areas. We work with our clients to achieve practical solutions whether from a single location or across multiple jurisdictions.
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