This article is an extract from GTDT Private Client 2023. Click here for the full guide.


Introduction

The 2020s are a turbulent time with considerable uncertainty: politically, economically, technologically, environmentally and internationally. All of these factors have an impact on everyone’s lives. While the wealthiest in the world may be more capable of preparing for and ameliorating the downsides of the changes such uncertainties will inevitably bring, these events nevertheless affect them, often profoundly. It is impossible to address all these concerns in such a short note, but we will touch on some of the trends that we see have become more pronounced for the private client arena in the past year.

 

Technological innovation: cryptocurrency and digital asset investments

Considerations for trustees and executors

The world of investing and the elements of a new digital age are converging at scale, with cryptocurrencies, digital assets and blockchain technology the driving force for digital transformation on a global level.

Despite the current global uncertainties and market fluctuations, it would be prudent to expect the upward trend in digital asset investments to continue, particularly as innovation within the underlying technology becomes more evolved and sophisticated. While there is certainly promise of robust supporting infrastructure and increased global regulation, the pace at which the digital marketplace is evolving means that clarity and regulation may be playing catch-up for some time. 

Nevertheless, the shape of crypto regulation continues to become clearer, and the UK has taken significant steps in the regulation of digital assets and service providers. All digital asset businesses carrying out digital asset activities within the scope of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the MLRs) in the UK must now be registered and compliant with the Financial Conduct Authority (FCA). Businesses that are already registered or authorised with the FCA for other activities are further required to register with the FCA if they are carrying on relevant digital asset activities. Further, new FCA rules are to be implemented for high-risk investments and the UK is beginning to regulate a few specific digital assets and service providers. The UK’s next planned step is to legislate for crypto investment risk warnings, which is to follow the new requirements recently put in place obliging digital asset exchange and custodian wallet providers to comply with reporting obligations implemented by the Office of Finance Sanctions Implementation.

These developments are consistent with the trend of increasing regulatory oversight into the digital asset sector. English courts are now seeing an escalation of complex disputes involving digital assets. A significant number of disputes relate to freezing injunctions and disclosure orders obtained in support of the tracing and recovery of misappropriated digital assets and the English courts have proved adaptable in applying established legal concepts in this new context. We are seeing a willingness from the English courts to expand the legal framework to provide relief for those bringing claims for cryptocurrency fraud and make available wide-ranging remedies by treating cryptocurrency as property. It is expected that the English courts will continue to determine a wide range of crypto-associated disputes, with the English Court of Appeal now considering the question of fiduciary obligations or a common law ‘duty of care’ in the context of crypto and digital asset investments.   

It is evident that the regulatory and disputes arena of cryptocurrency and digital assets is one that is metamorphosing at pace and it is highly likely that the UK will see further restrictions and obligations put in place to bring digital asset regulation more in line with other regulated markets such as the financial services sector. This still appears to be outpaced by the evolution of technology that continues to increase the potential for investors to facilitate new revenue streams by establishing new forms of digital investments in novel virtual landscapes. For those involved in estate administration or trusts, departing from dealing with traditional assets and estates to an entirely new form of digital assets and modern estates in the context of a continually evolving regulatory landscape can be a legal quagmire.  

 

Trustees and digital assets under a trust

With the expectation that the number of high-net-worth individuals and family offices looking to gain exposure to a digital asset class and frame their future legacies through virtual experiences will continue to increase, there are several important considerations trustees will need be mindful of before agreeing to invest in digital assets as trust property. 

At the outset, trustees must have a thorough understanding of their investment management powers and duties under the terms of trust instruments and identify whether trust deeds include provisions that expressly permit a trustee to make a speculative or high-risk investment. The inclusion of this type of provision will be crucial in providing an additional level of protection that digital asset investment is within the scope of a trustee’s mandated authority. 

Trustees must also have regard to their fiduciary duties when it comes to making trust investments, and in doing so, have regard to the need to diversify investments, consider the suitability of investments and protect trust assets. Section 4 of the Trustee Act of 2000 in particular, requires trustees to ensure that the level of investment risk is consistent with the investment policy mandated by the settlor. A trustee should pursue a variety of investments of different natures to reduce the overall risk exposure of a trust, and in doing so, should be mindful of their ongoing duty to monitor the suitability of such investments. 

While trustees may be under more pressure from settlors or even the evolving market to make speculative or higher-risk investments, they should exercise a high level of caution when considering the suitability of digital assets given their highly volatile and unpredictable nature. In carrying out a suitability assessment, trustees should consider the interests of different categories of beneficiaries and their potentially varying risk appetites, as well as the relative diversification of existing investments. It may be that trustees hold cryptocurrency and digital assets through an underlying company to enable settlors to take an active role in the day-to-day management and direction of the investment while the trustee retains ownership. It is crucial though that if such a structure is used, there are robust anti-Bartlett clauses in place to circumscribe the trustees’ duties to intervene in the affairs and responsibility of the digital assets.

Where digital assets as trust property are placed directly under the control of the trustee, trustees must be aware of the challenges that arise from custodianship. Whether a trustee takes possession of the private keys to the digital wallet that holds the digital asset, or whether this responsibility is delegated to a third party custodian, it is incumbent on a trustee to have a strong familiarity of the exact custody arrangements and the general methods of digital asset custody. Further, trustees should ensure they are appropriately protected from liability if something goes wrong with their custodial arrangements and they should understand their obligations in selecting a third party and the whether there are ongoing monitoring obligations of them.

It is essential that trustees take proper and regular advice to discharge their duty of care obligations to act within the scope of their mandated authority and to not expose the trust (unless expressly permitted) to high-risk investment outcomes. This is imperative in avoiding exposure to breach of trust claims that disgruntled beneficiaries may seek to pursue if their assets lose significant value. It is also prudent for trustees and advisers to ensure there are robust exoneration provisions in trust deeds that clearly recognise the volatility of digital asset investments and that cater for losses in their value while mitigating their own liability for the investment choices they may make. 

 

Inheritance and succession issues 

The decentralised nature of the asset ownership of cryptocurrency and digital assets can lead to practical difficulties for personal representatives dealing with an individual’s estate upon their death. Unlike a land registry or a share register, there is no controlled registry for digital assets, and so access relies solely on the ability to gain entry into the digital wallet that contains the ‘private key’. Therefore, digital assets are owned by whoever holds the private key, making that individual the putative owner that can deal with and transfer the asset. 

On death, unless the digital wallet and private key are known by the personal representatives, executors or beneficiaries, accessing the digital assets or proving ownership will be impossible. It is therefore essential that owners of digital assets follow practical steps to mitigate the risks of valuable digital assets becoming inaccessible on death. 

Firstly, owners of digital assets must identify the assets they own and make these known to their advisers or personal representatives. This inventory of digital assets should be reviewed regularly and include detailed and up-to-date instructions on how to access the private keys and wallets. Such an inventory should be stored securely, and advice should be taken on how to preserve confidentiality, while allowing access in the event of death. This information should not be included in a will, which becomes publicly recorded once a grant of probate is obtained following death. 

Secondly, owners should discuss with their advisers and prospective heirs who should benefit from their digital assets upon death and include instructions in their will or an accompanying letter of wishes informing personal representatives how the digital assets should be administered, for example, instructions setting out which asset or account should be closed or transferred. It would be sensible for owners to have discussions with their intended beneficiaries to ascertain whether they are in fact the most suitable person to inherit the digital asset, or whether it would be wasted on that beneficiary if he or she does not understand or feel comfortable with the technology, its uses and its risks. With digital landscapes and platforms evolving into new realms, executors should also understand how novel digital environments operate so that they can assist beneficiaries in understanding how inherited digital assets can be used and where.  

Trustees and executors will increasingly encounter cryptocurrency and digital assets and will be expected to hold them within their structures or administer estates involving them. It is therefore likely that there will be an increase in monitoring and assessment of the crypto impact on private wealth and trusts by those involved in trust and estate planning. In particular, we expect to see an increase of crypto in investment portfolios and trust structures, and trustees and executors will need to build upon their awareness of novel technologies and processes to adequately identify and subsequently minimise exposure to the associated challenges and risks of these types of investments.

 

Conflict: UK sanctions against Russia

Impact on trusts

On 29 June 2022, the UK government announced new measures to prevent Russia from accessing UK trust services. At the time of writing these measures have not yet been implemented. However, the UK has already imposed a wide variety of sanctions against Russia in response to Russia’s invasion of Ukraine, some of which will have an impact on the activities of trustees. In addition to financial sanctions restricting specific types of services, UK sanctions also include targeted measures that prohibit UK persons from transacting certain listed entities. Sanctions imposed by the UK against Russia are set out in the Russia (Sanctions) (EU Exit) Regulations 2019 (Russia Regulations).

Who has to comply with UK sanctions?

UK sanctions do not have extraterritorial effect and only apply where an activity or transaction has a ‘nexus’ to the UK. UK sanctions will apply to:

  • individuals situated in the UK (irrespective of nationality); 
  • UK citizens, wherever they are located; 
  • UK-incorporated companies, wherever they do business; 
  • business conducted wholly or partially within the UK; and
  • any events taking place within the territory of the UK, including its airspace and on board any aircraft or vessel under UK jurisdiction. 

 

Trading in British pounds will not per se attract applicability of UK sanctions to a transaction.

We refer to entities and individuals who are required to comply with UK sanctions by virtue of a UK nexus as UK persons.

 

Professional services ban

As of 21 July 2022, subject to limited exemptions, UK persons are prohibited from providing, directly or indirectly, accounting services, business and management consulting services; or public relations services to a ‘person connected with Russia’ (Regulation 54C, Russia Regulations). A ‘person connected with Russia’ means:

  • individuals ordinarily resident in Russia;
  • individuals located in Russia;
  • entities incorporated or constituted under the law of Russia; or
  • entities domiciled in Russia.

 

Therefore, this prohibition will also regard the provision of services to Russian residents who are temporarily located in another country, including the UK, as well as UK citizens temporarily located in Russia.

Regulation 54B clearly sets out which activities are covered by the professional services prohibition. UK persons who act as trustees in structures that may have a connection with Russia (ie, either a Russian beneficiary or Russian assets) should familiarise themselves with the list of prohibited activities to ensure they do not inadvertently breach UK sanctions. By way of example, if assets in a trust with UK persons as trustees include shares in a Russian entity, the services restriction may prevent the trustees from effectively managing such assets, as they would be prohibited from providing guidance on the business policy and strategy of the Russian entity (as this may qualify as providing business and management consulting services). Similarly, UK trustees would be unable to provide any restricted accounting services to the Russian entity, or procure the provision of accounting services from a third party to the Russian entity (as this would qualify as circumvention of the services prohibition).

There are a few narrow exceptions to the services prohibition that are:

  • provided in relation to the discharge of or compliance with UK statutory or regulatory obligations (and not under a contract); or
  • necessary for official or diplomatic purposes.

 

Licences to authorise the provision of otherwise restricted services are also available in limited circumstances, including:

  • services required by non-Russian business customers in order to divest from Russia, or to wind down other business operations in Russia;
  • services provided to a person connected with Russia by a UK parent company or UK subsidiary of that parent company; and
  • civil society activities that directly promote democracy, human rights or the rule of law in Russia.

 

The Office of Financial Sanctions Implementation (OFSI) is the UK authority responsible for issuing licences.

 

Asset freeze restrictions

An additional component of UK sanctions programmes, including Russia, is the identification of persons (individuals and entities) subject to asset freeze restrictions (sanctioned persons). 

Subject to limited exemptions and licences, it is prohibited for UK persons to:

  • deal with the frozen funds or economic resources, belonging to or owned, held or controlled by a sanctioned person; and
  • make funds or economic resources available, directly or indirectly, to, or for the benefit of, a sanctioned person.

 

OFSI maintains a list of all sanctioned persons here: sanctionssearchapp.ofsi.hmtreasury.gov.uk. The list is regularly updated.

Even if the provision of services to a Russian entity or individual is otherwise permissible under Regulation 54C, a transaction by a UK person that involves a sanctioned person is likely to be prohibited.

It is each UK person’s duty to carry out sufficient due diligence to ensure they comply with asset freeze restrictions. As the effect of UK asset freeze restrictions extends to entities that are majority owned (ie, more than 50 per cent) or controlled by sanctioned persons, this will require UK persons to identify and carry out sanctions screening against the ultimate beneficial owners of entities they transact with. Establishing whether an entity is controlled by a sanctioned person may be particularly difficult and will require a case-by-case assessment of the specific circumstances to determine whether the sanctioned person can exert dominant influence over such entity or direct the entity in accordance with their wishes.

When making an assessment on an entity’s ownership and control, OFSI would not simply aggregate different sanctioned persons’ holdings in a company, unless, for example, the shares or rights are subject to a joint arrangement between the sanctioned parties or one party controls the rights of another. In case of doubt as to an entity’s sanctioned status, UK persons should reach out to OFSI for further guidance.

 

Investment ban

The UK also introduced a prohibition on new investments in Russia and on the provision of related investment services (Regulation 18B, Russia Regulations). Subject to limited exemptions, it is prohibited for UK persons to:

  • directly acquire any ownership interest in land located in Russia, or any ownership interest or control over an entity located in Russia;
  • indirectly acquire any ownership interest in land located in Russia or any ownership interest or control over an entity located in Russia if the purpose of the transaction is to directly or indirectly make funds or economic resources available to (or for the benefit of) a person connected with Russia;
  • directly or indirectly acquire any ownership interest in or control over an entity that has a place of business located in Russia (but which does not otherwise qualify as a ‘person connected with Russia’) for the purpose mentioned above;
  • directly or indirectly establish any joint venture with a person connected with Russia; or
  • open a representative office or establish a branch or subsidiary located in Russia.

The investment ban does not impact existing investments in Russia; however, an increase in the ownership stake in a Russian entity would be caught by this prohibition. As such, UK persons acting as trustees should be aware of this restriction as it may impact which assets they can invest into, as well as any restructuring involving Russian assets. 

 

Reporting obligations

The Russia Regulations impose certain reporting obligations on ‘relevant firms’, which is defined to include a firm or sole practitioner that provides certain trust or company services, including acting or arranging for another person to act as trustee of an express trust or similar legal arrangement or a nominee shareholder.

Relevant firms are required to inform OFSI as soon as practicable if they know or reasonably suspect that a person is a sanctioned person or has committed offences under UK financial sanctions regulations, where that information is received in the course of carrying on their business. Where a customer or client of a Relevant firm is a sanctioned person, the report to OFSI must include details of the nature, amount or quantity of any funds and economic resources held by or on behalf of the sanctioned person.

 

Impact of EU sanctions on UK trustees

Although following Brexit the UK has developed a sanctions regime independently from the EU, EU sanctions against Russia may still have an impact on UK trustees. EU sanctions do not have extraterritorial effect, and apply in a similar manner as UK sanctions (ie, where there is an EU nexus).

UK trustees who are located in the EU or are nationals of an EU member state will need to comply with EU sanctions in addition to UK sanctions. The EU also imposed a wide variety of sanctions against Russia, which are similar (but not identical) to those imposed by the UK, such as a ban on the provision of certain business services and asset freeze restrictions against certain individuals and entities.

Most relevant to trustees are the restrictions under Article 5m of Regulation 833/2014 prohibiting EU persons from registering, providing a registered office, business or administrative address or management services to, a trust or any similar legal arrangement having as a trustor or a beneficiary:

  • Russian nationals/residents;
  • entities established in Russia; and
  • entities that are directly or indirectly owned (more than 50 per cent) by or controlled by those stipulated in the above points, or are acting on their behalf or at their direction (a restricted trust).

 

It is also prohibited to, or arrange for another person to, act as a trustee, nominee, shareholder, director, secretary or similar for a restricted trust.

By way of exemption, the trust services ban does not apply where the trustee or beneficiary is a national of a member state or an individual with a temporary or permanent residence permit in a member state, a country member of the European Economic Area or in Switzerland.

Therefore, even though the UK has not yet implemented restrictions on the provision of trust services to Russia, any UK trustees who are also EU nationals, or who operate in the EU will need to comply with the above prohibition, unless an exemption applies or a licence from the relevant EU member state authority is obtained.

 

International transparency and related risks for private clients 

Introduction

Given the increasing global drive towards transparency and the cross-border sharing of information, trusts and corporate service providers are now more regularly the recipients of requests, demands and orders compelling the production of information held on their books. In addition to the traditional approach of obtaining disclosure orders from a local court, claimants (including government bodies) are relying on new tools such as Unexplained Wealth Orders and enforcing new reporting obligations in legislative initiatives such as the Common Reporting Standard and beneficial ownership registers. We address below the various international transparency regimes, the related disclosure risks for private clients and trust service providers and how best to navigate such regimes to seek to preserve legitimate privacy expectations.

 

Overview of transparency regimes 

The Foreign Account Tax Compliance Act (FATCA) was signed into law in the United States under President Obama in 2010. Notwithstanding that its primary focus is tax avoidance, it opened the floodgates for automatic exchange of information between governments and tax authorities on a global scale. FATCA requires certain foreign financial institutions to report directly to the IRS information about financial accounts held by US taxpayers or by foreign entities in which US taxpayers hold a substantial ownership interest. Information is exchanged between governments and their tax authorities and is not made public. The US had entered bilateral FATCA agreements with over 115 other jurisdictions by 2015, including the UK, British Virgin Islands and the Cayman Islands.

There has followed various transparency regimes in Europe (and beyond) largely driven by the Organisation for Economic Cooperation for Development (the OECD), and the EU, with a focus on more than tax evasion, but on financial wrong doing, anti-money laundering and risk mitigation. European driven transparency regimes include:

  • The Common Reporting Standard (CRS), which was introduced in 2014, and requires the exchange of information to enable tax authorities to understand the extent of financial assets held abroad by their residentsThis can include disclosure of information about trusts (including the name of the trust), details of the trustees and beneficiaries and other power holders (including protectors). Information is usually disclosed to the tax authorities and then automatically exchanged with other jurisdictions signed up to automatic exchange of information. This is not made public. Over 100 countries have signed up to it (including the UK, the Cayman Islands, the British Virgin Islands, and recently Ukraine, but notably not the US). The UK’s approach is to unify, as far as possible, the requirements of both FATCA and CRS.
  • Various EU anti-money laundering directives, whereby the scope was increased more generally to transparency under the Fourth Anti-Money Laundering Directive (4AMLD) in 2015 that focused on ultimate beneficial ownership for the purposes of risk mitigation and money laundering prevention. Under 4AMLD, Ultimate Beneficial Ownership (UBO) lists were made publicly accessible, and trusts (or any similar arrangement) were to observe beneficial ownership regulations (the Trust Registration Service in the UK was implemented following 4AMLD).
  • DAC 6, which are mandatory disclosure rules that came into force on 1 July 2020 in all EU member states, aimed at deterring potentially aggressive cross-border tax planning arrangements. Trustees will be involved in cross-border arrangements if they have an EU nexus and serve foreign clients, or in the case of non-EU trustees if they serve EU clients. These rules require disclosure where the arrangement is cross-border and fall within a designated hall mark, and in certain cases one of the main benefits is obtaining tax advantage. Information to be disclosed includes details of the cross-border arrangement and details of the promoter (the person who designed the arrangement). Hallmark D was adopted in the UK (requiring arrangements intended to avoid CRS reporting to be disclosed and the use of opaque offshore structures).
  • The Mandatory Disclosure Regime (MDR), the purpose of which is to provide tax administrations with information on arrangements that (purport to) circumvent the CRS and structures that disguise the beneficial owners of assets held offshore. OECD is currently working on an exchange of information framework for the new rules, to be developed under the multilateral Convention on Mutual Administrative Assistance, which with currently over 115 participating jurisdictions, offers the most global international legal basis for the exchange of the information disclosed under the new rules. The UK is adopting MDR. Canada has also recently legislated to adopt the MDR. Both the Cayman Islands and the British Virgin Islands have legislation in place to counter CRS or FATCA contravention. 

 

The UK has and continues (post Brexit) to be an advocate for transparency regimes and is also in favour of taking a hard line on tax evasion, economic crime that funds criminal and terrorist activity (particularly if it is hiding behind apparently legitimate entities). This was seen through the UK’s General Anti-Abuse Rule (GAAR), which was introduced in 2013, to deter taxpayers from using tax avoidance schemes and the introduction of the following transparency regimes and tools in England and Wales:

 

Beneficial owner registers 

  • TRS: a register of beneficial owners of UK trusts, and some non-UK trusts, maintained by HMRC. Key information to be disclosed includes information about the trust, including its name, the date it was set up and details of trust assets in certain cases; the name, date of birth and NI number of the beneficial owners (including the settlor, the trustees, the beneficiaries and any individual who has control over the trust such as the protector). This is not public but accessible by third parties in limited circumstances: (1) where there is a ‘legitimate interest’ or a ‘third country entity’ that requests trust data, (2) obliged entities entering into a business relationship with the trust and (3) law enforcement agencies.
  • Register of people with significant control (PSC): a public register of information about persons who meet legislated thresholds of influence or control over UK corporate entities. It is maintained by Companies House. Key information to be disclosed, and which is publicly available on Companies House, includes the PSC’s name, date of birth, nationality, service address, usual residential address (although this will not be public), which PSC conditions they satisfy and the date on which the person became a PSC.
  • The register of beneficial owners of overseas entities that own UK property that came into force in March 2022 under the Economic Crime (Transparency and Enforcement) 2022 Act. Information required to be disclosed includes (and will be publicly searchable on Companies House): the beneficial owner’s name, date of birth, nationality, service address and usual residential address (although this will not be public). Where a beneficial owner of the entity is a trustee, certain information (about beneficiaries, trustees settlors, grantors, interested persons) about the trust needs to be provided to Companies House, although that information will not be made public. 

 

Unexplained wealth orders

This was introduced in 2018 as a tool to require an individual to explain their interest in a particular property, including the source of the wealth used to obtain the property. 

Many offshore jurisdictions such as the British Virgin Islands and the Cayman Islands have also increased their beneficial ownership reporting, namely, in the Cayman Islands, subject to certain prescribed exemptions, the Cayman Island’s incorporated companies, LLCs and LLPs are required to keep a register of their beneficial ownership filed at their registered office address with a licenced service provider. The register is public but can be searched by certain law enforcement and tax authorities of the Cayman Islands. It can also be shared with the UK authorities on the basis of an agreement for sharing beneficial ownership information. In the British Virgin Islands, the Beneficial Ownership Secure Search System & the Economic Substance regimerequires registered agents to create a database of beneficial ownership information relating to the in-scope entities for which they act. These databases are private but may be searched upon request from certain authorities via the beneficial ownership secure search system.

 

Risks for private client, and what’s next?

It is clear globally that we are heading in a direction of transparency. More legislation is being implemented to elicit more information about structures that complicate beneficial ownership analysis and to identify early warnings of any loopholes undermining CRS and the various transparency regimes. In the future it seems there will be a drive globally for information on trusts and beneficial owner registers to become publicly accessible, not just exchanged between.

This drive for transparency and other potential exposures (such as through data leaks – Pandora, Panama and Paradise Papers and data hacks) has meant that there is a lot more information on trusts making its way into the public domain (or is at risk of being disclosed), leading to a number of risks for private clients and trust fiduciaries, including:

  • safety and security concerns for private clients who legitimately set up structures in a jurisdiction that is protected from corruption and political unrest, who now worry about potential kidnapping and ransom risks for their family members identified as beneficiaries;
  • illegitimate attempts by others to obtain wealth if details of the assets of structures have been published, but also attacks from within structures by younger family members and often beneficiaries if they find out details of the assets and disagree with the manner in which wealth was generated; and
  • the exposure of family secrets and cultural rifts leading to inter-family strife, often in circumstances where families have structured wealth not for tax reasons but because confidentiality is important to their way of life, namely to protect children from finding out they are wealthy for them to pave their own way in life.

 

Top tips for navigating requests

Notwithstanding the above, trust structures do still have an important role for asset preservation. It is important to understand how to navigate the various transparency regimes so that the right and expectation to privacy remains a relevant and important discussion, such as:

  • When establishing a structure, emphasise and advocate greater transparency from the outset. Too many trust disputes arise because of secrecy among family members that could be avoided if information is shared during their lifetime rather than fearing confrontation (that will happen in any event post death of the economic settlor).
  • When considering whether to comply with various regimes or requests, key questions to ask are:
    • Is the request based on a formal demand from a government or law enforcement body or an order from a court with jurisdiction over the recipient, and is clearly binding on the recipient, or is it an informal request under HMRC’s information powers with which it is in the interest of the recipient to engage, usually in order to avoid a less flexible formal request being issued?
    • Has the request been properly and appropriately directed to the recipient by the relevant entity subject to an obligation to register information?
    • Is the request for information within the requesting body’s entitlement under the applicable powers and guidance?
    • Do you dispute the basis on which the information is requested (eg, disagree that they are a PSC on a proper analysis)?
    • Is the information requested in the possession or under the control of the recipient?
    • Is the information subject to legal professional privilege, and does the owner of the information wish to waive privilege?
    • Is there is a risk of a financial penalty or criminal prosecution for failure to comply?
    • Is there is a risk of sanctions or other restrictions being imposed on the person’s ability to deal with shares (as in the PSC regime) or UK land (as in the Overseas Entities Act), or the risk of confiscation of property (as with Unexplained Wealth Orders)?
  • Consider a form of disclosure, such as:
    • disclosing relevant information and considering whether it is appropriate to redact any third party or irrelevant subsidiary material contained in the documents;
    • where information is sent electronically, considering appropriate levels of security (including encryption) and safe custody of files (if sending information in hard copy consider secure physical delivery and storage methods);
    • considering whether the process of determining the information needed and complying with the request gives rise to any obligations to report under applicable anti-money laundering or anti-bribery regulations; and
    • considering whether information disclosed in the UK might give rise to exposure in any other jurisdiction such that a voluntary disclosure should be considered in that other jurisdiction.