On 6 September 2010, the Irish Minister for Enterprise, Trade and Innovation approved Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, the Isle of Man and Jersey as jurisdictions from which corporate funds will be permitted to redomicile to Ireland.
Accordingly, redomiciliations from these jurisdictions can now be effected pursuant to legislation which was specifically enacted in Ireland in late 2009 to facilitate the re-domiciliation of unregulated corporate funds to Ireland.
The Legislative Changes
New company law enhancements contained in the Companies (Miscellaneous Provisions) Act 2009 introduced a straightforward procedure to re-domicile corporate funds to Ireland. In the past, due to the absence of specific re-domiciliation provisions under Irish company law, a re-domiciliation to Ireland would typically be effected by establishing a new fund structure in Ireland, transferring the assets of the existing fund to the new Irish fund and ultimately winding up the “shell” of the original fund. While this did enable continuity, the Irish entity was effectively a new structure.
Under the new regime, a fund can migrate directly to Ireland retaining its corporate identity, track record (provided no significant change to investment policy or fee structure occurs) and existing contractual arrangements.
The new regime ensures re-domiciliation may now be approved by the shareholders of the migrating fund only. Furthermore, a more streamlined process of document registration has been introduced, resulting in a new single-filing registration process at the Irish Companies Registration Office (CRO). It should be noted that an Irish domiciled fund must be authorised by the Irish Financial Services Regulatory Authority (the “Financial Regulator”), a process which will occur simultaneously with registration at the CRO.
Advantages of the New System
The new regime has many advantages, including the following: -
- it introduces a legal framework to enhance the efficiency of the process to re-domicile unregulated funds to Ireland;
- it provides for the continuation of foreign investment companies in Ireland and allowing the existing corporate identity of the migrating company to be retained;
- there is no tax inefficient transfer of assets between funds; and the fund retains its existing contractual arrangements, its track record and its listing history.
A foreign investment company wishing to migrate to Ireland will apply to the CRO to be registered as a company in Ireland by way of continuation. This will be done by lodging a detailed form accompanied by several documents, including a statutory declaration of a director of the migrating company confirming certain facts about the status of the migrating company. An application to the Financial Regulator is made simultaneously to this application to the CRO.
As part of the Financial Regulator’s authorisation process, the entity acting as promoter and investment manager to the migrating company will require to be authorised by the Financial Regulator (if not already authorised as such).
The new procedure is effective as of 7 September 2010 for corporate entities seeking to redomicile from each of Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, the Isle of Man and Jersey. These jurisdictions were approved for inclusion in this process following an in-depth examination of the legal framework in each such jurisdiction. This now paves the way for those investment managers wishing to move their funds, currently domiciled in these jurisdictions, to Ireland.