Company migration to and from Guernsey25 Feb 2013
Part VII of the Companies (Guernsey) Law, 2008 as amended (the "Law") allows companies to migrate into and out of Guernsey (i.e. to or from the Guernsey Register of Companies (the "Register") to or from a jurisdiction with equivalent legislation).
The migration of a company can, in certain cases, be a more cost effective solution to moving a business from one jurisdiction to another. The company formed in the new jurisdiction will retain legal liability for all of its former contractual obligations without the need for complex and costly arrangements, or business transfer or assignment, or novation of existing contractual agreements, and without giving rise, in certain circumstances, to transfers of property which could result in liability to tax in certain jurisdictions.
It is also possible to utilise the migration provisions to take advantage of more flexible regulation, costs and business opportunities associated with certain types of regulated activity (such as investment funds) by moving them to a jurisdiction where the costs are lower.
Migration to Guernsey can also allow companies to take advantage of the provisions of Guernsey legislation which may not be available in other jurisdictions (such as the ability to convert a conventional company into a protected cell company or "PCC"), to amalgamate with another company or to save costs in mergers and acquisitions by virtue of simpler and more flexible financial assistance rules.
Supervised companies cannot migrate to Guernsey without the written consent of the Guernsey Financial Services Commission ("GFSC"). In deciding whether to grant the application, the GFSC must have regard to the protection of the public interest including the need to:
- protect the public against the effects of dishonesty, incompetence or malpractice;
- counter financial crime and the financing of terrorism in Guernsey and elsewhere; and
- protect and enhance the reputation of the Bailiwick as a financial centre.
Where the GFSC refuses an application, its decision may be appealed to court.
Applications for registration as a Guernsey company are made to the Guernsey Registrar of Companies (the "Guernsey Registrar" or "Guernsey Registry") and may only be made by a corporate services provider.
Migration into Guernsey
A company migrating into Guernsey must satisfy the following requirements:
- consent from the GFSC if it intends to be a supervised company in Guernsey or is the equivalent in the country from which it is migrating; and
- an application to the Guernsey Registrar providing the following:
- a copy of the certificate of incorporation in the current domicile;
- a copy of the proposed memorandum and articles in Guernsey;
- the names and details of the company's current directors;
- a statement of the directors of the company immediately after registration in Guernsey;
- details of the registered office in the current domicile and the proposed registered office in Guernsey;
- in the case of a company with a share capital, a statement of share capital comprising the number of issued shares, their aggregate value, the number of treasury shares and the amount paid up, and the amount (if any) unpaid in respect of each class of shares;
- in the case of a company with guarantee members, the aggregate amount of all its members;
- in the case of a cell company, a copy of the consent of the GFSC to its incorporation as required under section 10 of the Law;
- evidence that is acceptable to the Guernsey Registrar or the GFSC (as the case may be) that the company is not prohibited from being registered in Guernsey;
- evidence that is acceptable to the Guernsey Registrar or the GFSC (as the case may be) that the company will cease to be incorporated and registered under the law of any place outside Guernsey;
- the appropriate Registry fee, currently £100; and
- a declaration of compliance (migration) signed by the directors, confirming that all the requirements in respect of registration of the company in Guernsey have been fulfilled.
Upon receipt of the application for registration as a Guernsey company, the Guernsey Registrar registers the memorandum and articles in the Register, issues a certificate of registration and allocates a registration number.
The main protection provided by the company migration provisions is aimed at companies avoiding creditors by moving from one jurisdiction to another, or forum shopping and moving with a view, for example, to utilisation of preferential insolvency legislation from one jurisdiction over that in another.
For this reason, companies migrating both into and out of Guernsey must satisfy a test of solvency. The test is set out in section 527 of the Law, summarised below as follows:
- A company satisfies the solvency test if:
- the company is able to pay its debts as they become due in the normal course of its business;
- the value of the company's assets is greater than the value of its liabilities; and
- in the case of a supervised company, the company satisfies any other requirements as to solvency imposed in relation to it by or under the Protection of Investors (Bailiwick of Guernsey) Law, 1987, the Insurance Business (Bailiwick of Guernsey) Law, 2002, the Insurance Managers and Insurance Intermediaries (Bailiwick of Guernsey) Law, 2002, the Banking Supervision (Bailiwick of Guernsey) Law, 1994, the Regulation of Fiduciaries, Administration Businesses and Company Directors etc. (Bailiwick of Guernsey) Law, 2000 and any other enactment prescribed for these purposes by regulations of the GFSC.
- In determining for the purposes of the Law whether the value of a company's assets is greater than its liabilities, regard shall be had to:
- the most recent accounts of the company;
- all other circumstances that the directors know or ought to know affect, or may affect, the value of the company's assets and the value of the company's liabilities; and
- valuations of assets and estimates of liabilities which are reasonable in all the circumstances.
Conclusion – migration in
Generally, provided that all the information required in connection with an application is available, migration into Guernsey can be carried out quickly and is similar to the provisions, costs and timescale for the formation of a new company. However, in any outward migration, time constraints in the current domicile of the company must be taken into account.
Detailed advice should be sought as to the provisions of Guernsey regulation where the company conducts any form of regulated activity, as separate consents will also be required in addition to the consent for migration into Guernsey. Regulated activities include banking (deposit taking), conducting controlled investment business, insurance and the provision of trust and fiduciary services.
There are separate requirements for approval of regulated businesses and these should be identified and established well before any migration is contemplated. The GFSC will not give permission for the inward migration of a company which is to conduct regulated business unless that company has passed through the appropriate consent process for that regulated activity beforehand.
Migration out of Guernsey
Under section 87 of the Law, a company may apply to the Guernsey Registrar to be removed from the Register. This means removed for the purposes of becoming registered as a company under the law of a district, territory or place outside Guernsey.
An application for removal from the Register may only be made by a corporate services provider. The company must:
- pass a special resolution resolving that it be removed from the Register;
- give written notice to all its creditors stating that it intends to apply to be removed from the Register (see further below);
- if supervised, obtain the written consent of the GFSC;
- immediately before removal, satisfy the solvency test as defined under section 527 of the Law and not be in liquidation;
- apply to the Guernsey Registrar for removal from the Register in the form prescribed by the Guernsey Registrar;
- seek confirmation of no objection from HM Procureur; and
- if supervised, seek confirmation of no objection from the Guernsey Administrator of Income Tax.
In relation to giving written notice to creditors, it is best practice to obtain their consent in advance. This avoids a potential application by one or more of them under section 100 of the Law that the migration would unfairly prejudice them and that it should be blocked or should only proceed subject to certain terms and conditions.
The application to the Guernsey Registrar must include or be accompanied by:
- evidence acceptable to the Guernsey Registrar that the company has passed the relevant special resolution, has given the appropriate notice to its creditors or alternatively obtained their consent, is not in liquidation/administration/en desastre and satisfies the solvency test;
- confirmation that HM Procureur and the Administrator of Income Tax have no objection to the removal;
- evidence acceptable to the Guernsey Registrar that on the date of removal from the Register, the company will be incorporated under the law of the district, territory or place in question (a legal opinion is usually regarded as sufficient evidence);
- such other information and documents as the Guernsey Registrar may require;
- a declaration of compliance (migration) signed by a director confirming that all of the requirements in respect of the removal of a company from the Register have been fulfilled; and
- such fee as may be prescribed by the Guernsey Registry.
Upon receipt of the above, the Guernsey Registrar gives notice of the proposed transfer on its website (www.guernseyregistry.com) for a period of 28 days. The migration takes place on the next working day after the notice period expires.
Not less than 28 days after the day on which the Guernsey Registrar gave notice:
- the statement in the company's memorandum and articles that its registered office is in Guernsey is removed;
- the company's name is removed from the Register;
- the company ceases to be a company within the meaning of the Law;
- the Guernsey Registrar files in the Register a notice that the company's name has been removed from the Register for the purpose of incorporation under the law of the district, territory or place specified in the notice; and
- the Guernsey Registrar gives notice of the fact that the company has been removed from the Register in such manner and for such period as he sees fit.
The costs of migration out of Guernsey are higher than the costs for migration into Guernsey. The following disbursements are required for migration out of Guernsey:
- disbursement payable to the GFSC upon the submission of the application for consent for supervised companies, £2,040;
- disbursement payable to the Guernsey Registrar on submission of the application for removal of a company from the Register, £1,500; and
- fees to the Guernsey Registrar in respect of the special resolution, £10.
Legal fees (not including the above disbursements) for a migration out of Guernsey are likely to be in the range of £1,500 to £5,000.
The costs of a migration into Guernsey are similar to a normal company formation.
Estimated legal fees are subject to wide variability for a number of reasons, for example:
- regulated companies (trust, fund or insurance companies) may require additional information to be prepared in Guernsey and the destination of migration;
- where Bedell Cristin are responsible for organisation and liaison with a lawyer and/administrators in preparation of an affidavit of foreign law;
- the approach taken by regulator/registrar/advisers in the foreign jurisdiction; or
- where accounts and other information are not up to date or insufficiently detailed for the GFSC and additional correspondence and time or additional/supplemental affidavits are therefore required.