Commentary. Panamanian Private Interest Foundation Law SPECIAL EDITION OMC. with Templates of Foundation Charter & By-Laws provided by OMC

Transcription

1 Commentaries and Treatises on Liechtenstein and International Law Edited by Dr. Markus H Wanger Vol. 25 Commentary Panamanian Private Interest Foundation Law SPECIAL EDITION OMC i with Templates of Foundation Charter & By-Laws provided by OMC t i.-' "... i r. ' ' - A Commentary for I, < "^.^ -ss : Practitioners Markus H Wanger

2 TABLE OF CONTENTS About Overseas Management Company Table of Contents Preface Article 1 Definition Sources of law Relevance of Foundations in Panama History Reasons for forming a foundation Foundation or Trust? Definition of a foundation Chart: Organisation of a foundation Public foundations Patrimony Article 2 Foundation charter and regulations Charter and regulations Civil Code Article 3 Not for profit private foundation Limited mercantile activities Article 4 Constitution Effectiveness Constitution "inter vivos" Constitution "mortis causa" Founder a physical person Formal requirements Applicable Law Article 5 The Foundation Charter The compulsory content Name of the foundation Initial patrimony of the foundation Foundation Council Domicile of the foundation Name and address of registered agent Purposes of the foundation Types of foundations Purpose Pure family foundation Mixed family foundations Corporate foundations Asset management foundation 12

3 Staff Welfare Foundation Other Types of Foundations Organisation of Foundations Irrevocable foundation Revocable foundations Discretionary and non-discretionary foundations Types of discretion of the foundation council Right to appoint beneficiaries Right to appoint beneficiaries Right to specify the benefits Right to amend these provisions The discretionary foundation with respect to tax considerations Visions and Roles of Foundations Visions Roles Beneficiaries Right to amend the foundation charter Duration of the foundation Procedure for liquidation and distribution of the patrimony Any other lawful clause that the founder may deem convenient Consequences of defective Charter Article 6 Language Foreign language Article 7 Amendments to foundation council Formal requirements Article 8 Fee and maintenance tax Fiscal Code Fine Article 9 Juridical Personality Beginning of Juridical Personality Additional authorization Article 10 Formalisation of transfer of assets to the foundation Transfer of pledged assets to the foundation Definition of assets Article 11 Separate Patrimony Patrimony of the foundation Separate patrimony for all legal purposes Legal Shelter Pledge of initial capital Asset Protection 13

4 Juridical Person Creation of collateral or mortgage of the assets Article 12 Irrevocability of Foundations and transfer of assets thereto Revocation Irrevocability Exception from the rule Prior to registration at the Public Registry Revocation by the founder Founder Procedure of revocation Consequences of Revocation Foundation charter Revocation according the foundation charter Revocation causes of foundations like for donations Irrevocability of transfer of assets Grounds for nullification of a transfer of assets Article 13 Revocation of foundation mortis causa Source of law Revocation right of the founder Founder a physical person Formal requirements Heirs of the founder Article 14 Opposability in inheritance matters remarks Forced Heirship Legal consequences Article 15 Creditor protection Statute of limitation Article 16 Patrimony Origin of patrimony Statute of limitation Present or future assets Formalities Article 17 Foundation Council Foundation Charter Members of foundation council Article 18 Obligations and Duties of Foundation Council 14

5 Obligation and duty to administer the assets of the foundation Obligation and duty to enter into acts, contracts or lawful businesses Obligation and duty to inform the beneficiaries of the foundation Information right granted by foundation charter or its regulations Obligation to deliver to the beneficiaries of the foundation the assets or resources set up in their favour Obligation and duty to carry out all acts or contracts Obligations and duties include rights Article 19 Protector, Committee and Supervisory Body Appointment Procedures Sample Regulation for Protector Article 20 Accounting Accounting provisions Accounting rules Accounting necessary Indemnification of foundation council Liability Diligence of a bonus paterfamilias Diligence of a "reasonable person" Gross negligence or fraud Sample of gross negligence Statute of limitation Article 21 Removal and appointment of foundation council members Appointment and removal of members of the foundation council By the founder By any third defined party Removal of members of foundation council Article 22 Judicially removal of foundation council members Reasons for Removal Incompability Lack of diligence of a bonus paterfamilias Crime against private property or public faith Incapacity or impossibility Insolvency or bankruptcy proceedings Article 23 Removal of foundation council members upon request of founder or Applicants for removal proceedings Tenor of the judgement beneficiary Article 24 Supervisory Bodies 15

6 Catalogue of rights and duties Auditor Protector The powers of the protector Article 25 Dissolution Reasons Expiry of the duration of the foundation Achivement or failure to achieve the purpose of the foundation Insolvency, illiquidity or bankruptcy Loss or total extinction of assets Revocation of the foundation Any other reasons established in the foundation charter or the foundation law Procedure Chart of Deregistration Liquidation Deregistration Invalidation Article 26 Contestation of acts of the foundation by Beneficiaries Beneficiary Founder as beneficiary Foundation council members as beneficiaries Entitlement to benefits Prospective beneficiaries Discretionary Beneficiaries Ultimate beneficiaries Personal right Enforcement Law Judicial claim Article 27 Tax exempt The rule Outbound taxation Inbound tax Article 28 Redomicilation Germany Liechtenstein Redomiciliation Chart of a Redomicilation of a Liechtenstein Foundation Outlook Article 29 16

7 Certificate of Continuation Declaration of continuation of foreign foundation Content of certificate of continuation Sample Resolution of Continuation Article 30 Certification for Public Registry Certification Sample Certification for Public Registry Recording and registration Power of Attorney Sample Power of Attorney Deletion from former Registry Article 31 Prior responsibilities, duties and rights of the foundation Protection of beneficiary Article 32 Outbound Redomicilation Article 33 Section of Private Foundations Article 34 Anti Money Laundering rules Categories of criminal offences Article 35 Professional secrecy Secrecy and confidentiality Penalties Legal duty to disclose Article 36 Summary Proceedings Controversy Arbitration Place of arbitration Advantage Arbitration Clause Article 37 Effectiveness Effectiveness of the law Amendments 17

8 Appendices PANAMA LAW No. 25, June 12, 1995, "Whereby Private Interest Foundations are regulated" Ley No. 25, de 12 de Junio de 1995, Por la cual se regulan las Fundaciones de Interes Privado PANAMA PRIVATE FOUNDATIONS, EXECUTIVE DECREE NO. 417,of August 8, 1995, "Whereby the Section of Private Foundations is created in the Direction of the Public Registry and the registration of the constitution, amendment and extinction of such Foundations are regulated." Bibliography Glossary English - Spanish Espanol - Ingles Templates (provided by Overseas Management Company, OMC) Foundation Charter (Flexible Type) By-Laws (Flexible Type) Foundation Charter (Liechtenstein Type) By-Laws (Liechtenstein Type) Index 18