Jersey legislative developments

Transcription

1 Jersey Legislation Overview 2015 Publication - 03/02/2015 Jersey legislative developments There have been a number of significant legislative developments in Jersey since our last Overview (November 2012), as reflected in the length of this briefing. Developments include the long-awaited amendments to the Companies (Jersey) Law 1991 in August 2014, the entry into force of the Discrimination (Jersey) Law 2013 in September 2014 and the imminent introduction of a Financial Services Ombudsman scheme. A brief summary of key legislation which came into force in 2014 or is imminent Companies (Amendment No.11) (Jersey) Law 2014, Companies (Exemptions) (Jersey) Order 2014 and Companies (Amendment) (Jersey) Order 2014 (the Amendment Laws) The Amendment Laws came into force on 1 August 2014 and make various changes to the Companies (Jersey) Law Amendments include: bringing the Companies (Jersey) Law 1991 into line with the UK Companies Act 2006 regarding the reduction of share capital; removal of the requirement for private companies to hold AGMs unless specified in the articles of association; and clarification that for a written resolution to be effective it need not be signed by all members, but by a relevant majority required to pass such resolution. An Ogier briefing on the Companies (Amendment No.11) (Jersey) Law 2014 is available here. Companies (Uncertificated Securities) (Amendment No.2) (Jersey) Order 2014 The Companies (Uncertificated Securities) (Amendment No.2) (Jersey) Order 2014 amends the Companies (Uncertificated Securities) (Jersey) Order 1999 and came into force on 1 August The amendments relate to the calculation of the time period for notices of shareholders meetings to be circulated and for individuals to be registered on the relevant register of securities in order to have the right to attend or vote at a meeting. Companies (Transfers of Shares Exemptions) (Jersey) Order 2014 The Companies (Transfers of Shares Exemptions) (Jersey) Order 2014 (the Order) came into force on 25 September It extends the ability for Jersey companies to facilitate the electronic holding and/or transfer of shares as already permitted under the Companies (Uncertificated Securities) (Jersey) Order 1999 in relation to CREST. The Order has extended the existing regime to exempt a Jersey company whose shares are listed on certain US and Canadian Markets (ie NYSE, NASDAQ and the Toronto Stock Exchange) from the requirements of Article 42(1)(a) and Article 50(1) of the Companies (Jersey) Law 1991 which stipulate that a 1

2 company: (a) cannot register a transfer of shares unless an instrument of transfer in writing has been delivered to it; and (b) must complete and have ready for delivery relevant share certificates of all shares subject to the transfer. Financial Services Ombudsman (Jersey) Law 2014 The Financial Services Ombudsman (Jersey) Law 2014 was registered by the Royal Court on 25 July 2014 but is yet to come fully into force. The Law creates a new body to handle complaints about financial services in Jersey. A chairman for the Ombudsman has already been appointed. The Ombudsman will have the power to investigate and determine customer complaints. Moreover the Ombudsman will have the power to make monetary awards or a direction, even if the court does not have the power to impose that monetary award or the action to be taken. An Ogier briefing on the powers and procedures of the Financial Services Ombudsman is available here. Revised JFSC Codes of Practice The JFSC Codes of Practice were updated on 1 July We would advise that, if you have not already done so, you familiarise yourself with the revised codes in light of the imminent enactment of the Financial Services (Amendment No.6) (Jersey) Law 201- which will permit the Jersey Financial Services Commission to issue fines to entities who breach the Codes of Practice (see further below). A link showing the changes to the Codes is available here. Freedom of Information (Jersey) Law 2011 The Freedom of Information (Jersey) Law 2011 came into force on 1 January It is similar to the UK Freedom of Information Act 2000 whereby members of the public can request information held by public authorities including the States Assembly, a Minister, the Judicial Greffe and the Viscount s Department. Parts 4 and 5 of the Law list the categories of information that a public authority does not have to supply and this includes information which is accessible to the applicant by other means, court information, personal information, information which relates to commercial interests (ie trade secrets) and information subject to legal professional privilege. If the Information Commissioner has reasonable grounds for believing that a public authority has failed to comply with its requirements to present information or it has altered, blocked destroyed or concealed documents with the intention of preventing the authority from supplying the information, the Bailiff can issue a warrant for the Information Commissioner to enter and search premises. Charities (Jersey) Law 2014 Certain parts of the Charities (Jersey) Law 2014 came into force on 21 November This enables the appointment of a charities commissioner whose duty it will be to administer the Charity Test (as defined below). Under the Law, there is no obligation for charitable organisations to become registered charities. In addition, the Law has introduced a new test to deduce what is charitable (the Charity Test). An entity will satisfy the Charity Test if: (1) all of its purposes are charitable 2

3 purposes, or purposes that are purely ancillary or incidental to any of its charitable purpose; and (2) in giving effect to those purposes, it provides a public benefit (in Jersey or elsewhere) to a reasonable degree. An Ogier briefing on the Charities (Jersey) Law 2014 is available here. Residential Tenancy (Condition Reports) (Jersey) Order 2014 The Residential Tenancy (Condition Reports) (Jersey) Order 2014 came into effect on 31 October This Order is intended: (a) to reduce the number of disputes between parties on the termination of a tenancy agreement which is covered by the Residential Tenancy (Jersey) Law 2011 and (b) to encourage improvements in property management standards. The Order imposes an obligation on a landlord to complete a condition report at or before the commencement of a residential tenancy. The tenant has an opportunity to view and, if considered necessary, make amendments to the report. At the end of the tenancy agreement the report will be used by the landlord to ensure that the property is in the same condition as at the commencement of the tenancy (subject to reasonable wear and tear). Discrimination (Jersey) Law 2013 The Discrimination (Jersey) Law 2013 came into force on 1 September The Law has been introduced not only to enable Jersey s compliance with obligations under international laws but also to identify certain personal characteristics which are protected from discrimination. The first such protected characteristic to be introduced under the Law is race. Accordingly an individual is protected from direct and indirect discrimination, victimisation and/or harassment on the basis of their race. Under Article 5 of the Law, the States may add further protected characteristics and it is anticipated that sex, age and disability will be introduced as additional protected characteristics in the future. Income Tax (Amendment No.44) (Jersey) Law 2014 The Income Tax (Amendment No.44) (Jersey) Law 2014 came into force on 1 January This amendment to the Income Tax (Jersey) Law 1961 permits Jersey trustees to offer non-residents access to qualifying recognised overseas pension schemes (QROPS). Classification as a QROPS permits the transfer of UK pension benefits without incurring an unauthorised payment and scheme sanction charge. A scheme must satisfy the following conditions to qualify: it is established outside the UK and is regulated as a pension scheme in the jurisdiction in which it is established; it is recognised for tax purposes in the jurisdiction in which it is established; and it is listed on HMRC s QROPS register. FATCA Developments In June 2014, the States Assembly ratified the following agreements: The Agreement between the Government of the United Kingdom and Northern Ireland and the Government of Jersey to improve tax compliance dated 22 October 2013; and The Agreement between the Government of the United States of America and the Government of Jersey to improve international tax compliance and to implement FATCA dated 13 December The implications of these agreements are that: 3

4 they anticipate the introduction of a common reporting standard which will permit the automatic exchange of tax information; financial institutions in Jersey will provide the Comptroller of Taxes with financial account information in respect of specified persons in an attempt to avoid tax evasion in the UK and the US. The Comptroller will forward this information to HMRC and the IRS. If financial institutions do not provide the financial account information to the IRS there is a threat of imposing 30% withholding tax; and from 2015 all financial account information must be reported to the Comptroller by 30 June of the year following the reporting year. The FATCA Automated Exchange of Information Web Portal will be going live from 2 February This is the platform that financial institutions will use to submit the information that they are required to disclose about their US and UK customers. The Comptroller will then collate and forward these filings on to the IRS and HMRC. A test portal was opened by the Taxes Office on 29 December A Government econsultation on issues related to the common reporting standard has been launched and closes on 30 January Updated Guidance Notes from Jersey Finance on the above two agreements and financial institutions obligations can be found here. Tax Information Exchange Agreements and Double Taxation Agreements Please see below a list of the latest countries with which Jersey has entered into Tax Information Exchange Agreements and which came into force in 2014 or which are due to come into force in 2015: Belgium estimated in force first half of 2015 precise date not yet known Brazil estimated in force first half of 2015 precise date not yet known Hungary effective from 13 February 2015 Indonesia estimated in force first half of precise date not yet known Italy estimated in force first half of 2015 precise date not yet known Latvia effective from 1 March 2014 Romania estimated in force second half of 2015 precise date not yet known Switzerland effective from 14 October 2014 Slovenia effective from 24 June 2014 Jersey is also expected to enter into Tax Information Exchange Agreement with Chile, the Republic of Korea and Spain. Jersey entered into a Double Taxation Agreements with Luxembourg which came into effect from 5 August 2014, and is expected to enter into a Double Taxation Agreement with the Seychelles. 4

5 and a status update on key legislation in the pipeline Aircraft Registration (Jersey) Law 2014 The Aircraft Registration (Jersey) Law 2014 received Privy Council approval on 8 October 2014 and was registered by the Royal Court on 17 October 2014 but is awaiting an Appointed Day Act. This Law will form the framework to establish the Jersey Aircraft Registry which will cover the registration of private aircraft, aircraft engines, aircraft mortgages and in due course aircraft engine mortgages. The Chief Minister s Department has also recently issued a closed consultation on the extension to Jersey of the Cape Town Convention on international interests in mobile equipment and the Protocol thereto on matters specific to aircraft equipment. The closing date was 28 November Security Interests (Jersey) Law 2012 Part II The Security Interests (Jersey) Law 2012 will be extended to permit the creation and registration of security interests over tangible moveable property (ie properties and personal possessions). It is expected that this extension will come into force in early Financial Services Commission (Amendment No.6) (Jersey) Law 201- The Financial Services Commission (Amendment No.6) (Jersey) Law 201- was adopted by the States on 9 December 2014 and is now awaiting UK Privy Council approval before being registered by the Royal Court. This Law will provide the Jersey Financial Services Commission with the power to impose civil financial penalties on businesses for serious contraventions of the Codes of Practice. This Law is a response not only to comments made by the International Monetary Fund in its 2008 assessment of the Island s financial regulatory standards but also to the increasing international expectation that regulators should be able to impose financial penalties. The level of financial penalty is to be decided by the Chief Minister by an Order. Current indications are that the level of fine could be up to 8% of relevant income although this has yet to be defined. A JFSC consultation on the proposed civil financial penalties tariff has been published and will close on 16 February Employment (Amendment No.8) (Jersey) Law 2014 This Law was registered by the Royal Court on 14 November 2014 but has yet to come into force. The Law amends the Employment (Jersey) Law 2003 to introduce statutory family friendly rights to Jersey for the first time, including maturity leave, paternity leave and their right to request flexible working. The provisions relating to family-friendly rights in the new Law will come into effect on 1 September 2015, at the same time as sex discrimination legislation. The remaining provisions, which introduce relatively minor changes to the Employment (Jersey) Law 2003 that do not relate to family-friendly rights or rely on protection against sex discrimination, will come into effect on 1 April

6 An Ogier briefing on the Employment (Amendment No.8) (Jersey) Law 2014 and a consultation on sex discrimination legislation is available here. Review of transparency of beneficial ownership of companies The misuse of legal persons in an attempt to hide beneficial ownership has become a major focus for the G8 countries. The United Kingdom sought and obtained the agreement of its Crown dependencies and Overseas Territories to assist in clamping down on the misuse of legal persons. To that effect Jersey issued a public consultation (a link to that is available here) on this matter on 4 February 2014, which closed on 30 April In the consultation document the Chief Minister outlined Jersey s action plan to tackle this issue. Jersey is already well placed in this area with its current requirements for company incorporation and on-going administration of companies to be undertaken by regulated trust and company service providers. These services could not be met by these providers if they did not know the beneficial ownership of the companies they are administering. Part of Jersey s action plan is to support improvements in international co-operation and timely exchange of beneficial ownership information. A Government response to the consultation is still awaited and is expected to follow on from finalisation of the UK proposals in this area and the outcome of the EU deliberations on the draft Fourth Anti-Money Laundering Directive. The relevant UK Bill, the Small Business, Enterprise and Employment Bill, is currently at the House of Lords Committee stage. The draft compromise text of the EU Fourth AML Directive was released on 12 January On 15 January, the Chief Minister s Department published a summary document on the current position regarding the Directive and its possible impact for Jersey. Proposed amendments to Wills and Succession (Jersey) Law 1993 A consultation paper outlining proposed amendments to the Wills and Succession (Jersey) Law 1993 was published on 28 July The public consultation period ended on 30 November The proposed amendments would ensure that on the death of an individual, their spouse or civil partner would have the legal right to continue living in the matrimonial home. It is also proposed that this right will not extend to spouses or civil partners where at the date of death of their respective spouse or civil partner neither party was residing together or they had since had a judicial separation or the surviving spouse or civil partner had deserted the deceased without cause. This proposed amendment would bring Jersey s law in line with the UK position. Residential Tenancy (Deposit Scheme) (Jersey) Regulations 2014 Currently, the only way to recover a disputed rent deposit is to lodge a claim in the Petty Debts Court. This is a costly and daunting experience for most tenants. These new Regulations will come into force on 28 February 2015 and provide an alternative to the Petty Debts Court. Under the Regulations, a dispute over the rent deposit relating to a lease of nine years or less will be dealt with by an independent third party the Deposit Scheme s administrator. If a landlord fails to submit the rent deposit into the Scheme, the landlord will have committed an offence and will be liable to a fine. 6

7 Jersey Legislation Tracker Consultation papers, draft and approved legislation Last updated 26 January 2015 Should you require any further information on any legislation contained in this briefing, please contact your usual Ogier contact or Raulin Amy using the details below. Legislation Name Aircraft Registration (Jersey) Law 2014 Banking Business (Amendment No.7) (Jersey) Law 2011 Bankruptcy (Désastre) (Jersey) Law 1990 Social désastre Cape Town Convention extension to Jersey Charities (Jersey) Law 2014 Common Reporting Standard - econsultation Employment Reference Current Status L L L Awaiting Appointed Day Act Awaiting Appointed Day Act Consultation closed 12 Apr-13 Chief Minister s Department closed consultation ended 28-Nov- 14 See Date in Force Consultation closes 30-Jan-15 Date of Date of Date in Adoption Registration Force Awaiting 08-Jul Oct-14 Appointed Day Act Awaiting 16-Mar Dec-11 Appointed Day Act 18-Jul Nov-14 Partially in force 21-Nov-14. Remainder awaiting Appointed Day Act. Appointed Day Act lodged au Greffe will bring certain 7

8 (Amendment No.8) (Jersey) Law 2014 Financial Services Commission (Amendment No.6) (Jersey) Law 201- (Civil penalties) Financial Services Ombudsman (Jersey) Law 2014 Freedom of Information (Jersey) Law 2011 Freedom of Information and Data Protection (Amendments) (Jersey) Law 2014 Intellectual Property (Registered Rights) (Jersey) Law 201- L P151/2014 L See Date in Force Awaiting Privy Council approval 09-Dec-14 See Date in Force 18-Jul Nov-14 provisions into force 01-Apr-15 and remaining provisions 01-Sep Apr Jul-14 In force one month after day on which it is registered Parts 1, 2 and 6 and Schedule 1 came into force on registration. Schedules 3 and 4 and Article 9 came into force 25-Nov-14. Parts 3 to 5 will come into force in accordance with a further Appointed Day Act. L In force 04-May Oct Jan-15 L In force 21-May Jul Jan-15 Draft legislation not yet lodged 8

9 Limited Liability Partnerships (Jersey) Law 201- (and Regulations) Limited Partnerships (No.2) (Jersey) Law 201- Proceeds of Crime (Amendment- Financial Intelligence) (Jersey) Law 201- Review of transparency of beneficial ownership of companies- Consultation Paper Security Interests (Jersey) Law Part II Trusts (No.7) (Jersey) Law 201- Wills and Succession (Jersey) Law 1993 Chief Minister s Department consultation on changes P158/2014 Law with Law Draftsman Pre-consultation stage Awaiting Privy Council approval 09-Dec-14 Consultation period closed 30-Apr-14. Results of Consultation awaited Chief Minister approved law drafting to amend the Security Interests (Jersey) Law Amending Law may be ready for entry into force in early 2016 Pre-consultation stage Consultation ended 30-Nov-14 Orders Name Reference Current Status Date Made Date in Force 9

10 Financial Services Ombudsman (Exempt Business) (Jersey) Order 2014 R&O In force 19-Sep Nov-14 Acts Name Act annulling Employment (Qualifying Period) (Jersey) Order 2014 Employment (Amendment No.8) (Jersey) Law 2014 (Appointed Day) Act 201- Reference P P9/2015 Current Status Rejected by States 21-Jan-15 Lodged au Greffe debate scheduled for 24-Feb-15 Date Made Date in Force Regulations Name Employment (Minimum Wage) (Amendment No.11) (Jersey) Regulations 2014 Financial Services Ombudsman (Case-Fee and Levy) (Jersey) Regulations 2015 Freedom of Information (Costs) (Jersey) Regulations 2014 Freedom of Information (Exemptions-Amendment of Law) (Jersey) Regulations 2014 Freedom of Information: extension to companies owned or controlled by the States Reference R&O Current Status Due to come into force 01-Apr-15 Date Made Date in Force 09-Dec Apr-15 R&O In force 21-Jan Jan-15 R&O In force 25-Nov Jan-15 R&O In force 09-Dec Jan-15 P149/2014 and P149/2014(Com) Approved by States 25-Nov-14 N/A 25-Nov-14 10

11 Freedom of Information (Jersey Heritage Trust) (Jersey) Regulations 2014 Freedom of Information (Miscellaneous Provisions) (Jersey) Regulations 2014 Freedom of Information (Schedule 1 to Law) (Amendment) (Jersey) Regulations 2014 Freedom of Information (Schedule 1 to Law) (Amendment No.2) (Jersey) Regulations 2014 Residential Tenancy (Deposit Scheme) (Jersey) Regulations 2014 About Ogier R&O In force 25-Nov Jan-15 R&O In force 24-Sep Jan-15 R&O In force 01-Jul Jan-15 R&O R&O See Date in Force Due to come into force 28-Feb-15 Regulation 1(1) in force 01-Jan Nov-14 Regulation 1(2) in force 01-Sep Jul Feb-15 Ogier provides practical advice on BVI, Cayman Islands, Guernsey, Jersey and Luxembourg law through its global network of offices. Ours is the only firm to advise on these five laws. We regularly win awards for the quality of our client service, our work and our people. Disclaimer This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations. Regulatory information can be found at ogier.com 11

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