Migration into Jersey
The Companies (Jersey) Law 1991 allows a company registered in a foreign jurisdiction to migrate from its home jurisdiction to Jersey, provided that the laws of the foreign jurisdiction allow it to do so. Once a migration into Jersey becomes effective:
- the company's property and rights immediately before the migration continue in the Jersey company;
- the company continues to be subject to all criminal and civil liabilities, contracts, debts and other obligations; and
- all legal proceedings pending may be continued against the company.
Applications to migrate a foreign company to Jersey involve the following key actions:
- The company must adopt articles of association that conform to Jersey law and these must be filed with the Registrar of Companies.
- A statement of solvency must be signed by each director and proposed director.
- The particulars of the directors and secretary must be filed (but are not made public).
- Confirmation is required from legal counsel in the foreign jurisdiction that:
- the company can migrate;
- all necessary authorisations have been provided in the foreign jurisdiction; and
- on continuance in Jersey, the company will cease to be incorporated in the foreign jurisdiction.
- Evidence that creditors will not be unfairly prejudiced must be provided (this may be confirmed by a company director).
- Any other information required by the Registrar of Companies must be presented.
Potential applicants will also need to consider any other Jersey licensing or regulatory requirements, such as the Control of Housing and Work (Jersey) Law 2012. This will typically be relevant only to those companies seeking to conduct a business and engage employees within Jersey. Alternatively, a licence may be required under the Financial Services (Jersey) Law 1998 or the Collective Investment Funds (Jersey) Law 1988.
Jersey companies may also migrate to a foreign jurisdiction from Jersey and continue as a foreign incorporated company. The procedure to migrate out of Jersey can be lengthier than that to migrate into Jersey, as notice to creditors may need to be given.
Below is a summary of the key aspects of the process required under Jersey law in order to migrate from Jersey to a foreign jurisdiction.
The members and each separate class of members of the Jersey company must pass a special resolution (two-thirds majority under Jersey law) approving the migration. The written resolution or the notice of meeting (as the case may be) must include a summary of the proposed application and inform members that they may object within 21 days of the passage of the special resolution. An objection may be made by application to the Jersey courts on the grounds that the migration would unfairly prejudice the shareholders' interests.
Board of directors approval
A board meeting must be held in relation to the migration in order to approve:
- the proposal to migrate, the issue of all notices (including an ad in a local Jersey newspaper) and the circulation of the members' special resolution;
- the request for confirmations from the Jersey Department of the Comptroller of Taxes and the Department of Social Security;
- various statements of confirmation from the directors, including a solvency statement; and
- the final application to the Registrar of Companies.
Notice to creditors
Before a company applies to the Registrar of Companies in Jersey (unless all known creditors otherwise agree in writing), notice will be published in the Jersey Evening Post newspaper and sent to all creditors informing them of the company's intention to migrate and their right to object within 21 days of publication of the ad.
The application to the Registrar of Companies must include the following key documents:
- a certified copy of the members' special resolution;
- confirmation from the Jersey Department of the Comptroller of Taxes and the Department of Social Security that they do not object to the migration;
- confirmation from a lawyer in the jurisdiction to which the company seeks to migrate that:
- all of the company's property and rights will continue in the foreign jurisdiction;
- the foreign jurisdiction permits the migration;
- the company will remain subject to all civil and criminal liabilities, contracts, debts and other obligations; and
- all legal proceedings and other pending actions may be continued;
- evidence that:
- the creditors have been notified and have not applied to the Royal Court for a restraining order;
- the application has been determined; or
- the creditors' prior written consent has been obtained and no notice need be given;
- evidence that no member has applied to the Royal Court on grounds of unfair prejudice or any application has been determined; and
- a copy of the company's latest financial statements.
A coordinated approach to migration to a foreign jurisdiction is required and thus companies must liaise with their foreign advisers to ensure that all relevant formalities are met. After processing the application, the Registrar of Companies will issue a conditional consent, which will become unconditional once a certificate of incorporation from the relevant registrar or regulator in the foreign jurisdiction has been delivered to the Registrar of Companies. Once received, the Registrar of Companies will issue a formal certificate and the company will cease to be incorporated under Jersey law as of that date.
For further information on this topic please contact Raulin Amy or Anna Cochrane at Ogier by telephone (+44 1534 514 000) or email (firstname.lastname@example.org or email@example.com). The Ogier website can be accessed at www.ogier.com.
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