Industry News May 2018
Welcome to our May Newsletter
Many thanks to those who attended our rearranged luncheon and Annual General Meeting on 23rd May. We are grateful to Natasha Kapp of Carey Olsen, for addressing members following the ten year anniversary of our Trust Law and highlighting some key developments during that period.
Draft Regulation of Fiduciaries Law
The GAT/STEP Combined Technical Committee have recently responded to the draft Regulation of Fiduciaries Law. Active consultation with GIBA, the GSCCA and other industry bodies was key in submitting our response. We await the Commission’s feedback in relation to the comments raised.
A further response concerning ‘Definitions’ across the Supervisory Laws will be submitted prior to the 30 June consultation deadline.
Consultation on Potential Amendments to the Companies Law
The GAT/STEP Combined Technical Committee are currently reviewing the consultation paper issued to seek feedback on the proposed amendments to the Companies (Guernsey) Law, 2008 (the “Companies Law”) and will issue a response prior to the closing date of 15 June 2018.
Responses will be considered by the Committee for Economic Development (the “Committee”) with a view to developing policy proposals.
The Consultation document can be viewed here: Consultation on potential amendments to the Companies (Guernsey) Law, 2008 – May 2018
Members are politely requested to raise any concerns regarding the provisions of the draft law by email to the Technical Committee at firstname.lastname@example.org no later than 11 June 2018.
Privy Council ruling restores confidence in Guernsey trusts
A landmark Privy Council ruling has been hailed as good news for Guernsey by an island-based lawyer.
Nick Robison acted for trustees of the Tchenguiz Discretionary Trust, who had appealed a Guernsey Court of Appeal ruling of 2015 to the Privy Council.
The Guernsey court had held that a creditor of a trustee may enforce a debt directly against the assets of a trust, even if the trustee had no right to indemnify itself from the trust in order to pay the debt.
The Privy Council overturned this aspect of the Court of Appeal judgment, which Mr Robison said would bring comfort to settlors that, in the event that a trustee unreasonably incurs a liability or acts in breach of trust – invalidating its indemnity – the assets in trust will still be protected from creditors.
In this case high-profile property investor Robert Tchenguiz was a beneficiary of the trust and the settlor was the Tchenguiz Family Trust. The trust was governed by Jersey law but administered in Guernsey. Its then trustees were Investec Trust (Guernsey).
The creditors were four BVI companies with a very substantial portfolio of investments which had been impacted by the credit crisis, which sought to sue Investec for approximately £180m.
Please read the full article HERE.
Guernsey reaffirms constitutional position and transparency record following beneficial ownership debate
Guernsey’s status as a mature jurisdiction and its strong record and clear position on the transparency of beneficial ownership has been set out by its Chief Minister.
Deputy Gavin St Pier used his address to Guernsey’s parliament to confirm that Guernsey’s constitutional relationship with the UK would remain unchanged by Brexit, and state the determination to defend the island’s political independence. He also set out how Guernsey meets all international standards on fighting financial crime and its commitment to protecting privacy for individuals’ legitimate personal interests.
In his speech, he said: “Guernsey is a well-regulated, co-operative jurisdiction playing an important role in international capital markets. Our legitimate current policy stance on the register of beneficial ownership meets the agreed international standards and maintains an effective balance between transparency and privacy.”
Guernsey, alongside other Crown Dependencies the Isle of Man and Jersey, worked with UK Government to clarify its constitutional position following a number of proposed amendments to the UK’s Sanctions and Anti-Money Laundering Bill, passing through the House of Commons earlier this month. These amendments sought to impose the UK’s domestic policy on the islands – an approach that is incompatible with the long-standing constitutional relationship.
Please click HERE to read more.
GDPR will see businesses fulfil ethical expectations, Carey Olsen conference told
The General Data Protection Regulation (GDPR) is rightly forcing companies to think ethically about their approach to customer data, according to Carey Olsen Partner Mark Dunster.
Speaking after Carey Olsen’s GDPR and e-Privacy conference in Guernsey earlier this week, Mr Dunster said GDPR, which comes into effect on Friday 25 May, was bringing about a much-needed and deep-seated behavioural change relating to the responsibility of data ownership and processing.
“If you want to have a successful business you need to have a business where people think they are treated fairly as a customer. GDPR is simply regulation catching up with that expectation,” said Mr Dunster.
The primary focus of GDPR is to protect the personal data of citizens of the European Union (EU) wherever it is held, processed or transferred. While the Channel Islands stand outside the EU, the legislation affects all local companies undertaking business in the EU or profiling EU citizens. The Data Protection (Bailiwick of Guernsey) Law, 2017, which reflects the new requirements of GDPR, comes into force the same day that GDPR comes into effect across all EU Member States.
Mr Dunster said: “If you have an over-reliance on rules, you generate an industry trying to find a way around those rules and it leads to a moral bankruptcy. You need to stick to core values, which is what GDPR does. It might sound like a biblical reference, but other people’s data should be treated in the same way as you would want them to treat your data.”
Carey Olsen Counsel Carly Parrott, who spoke at the event on the risks, opportunities and challenges of managing data protection and employees, said HR departments would be under some of the most intense scrutiny following the introduction of GDPR and Guernsey’s law.
Please read HERE.
Commission’s 2017 Annual Report
The Commission has published its 2017 annual report and financial statements.
Amongst the key themes explored in the report is a focus on ‘Green Finance’ with a regulatory initiative expected to be launched by the Commission in June to be known as the Guernsey Green Fund. It will be open to all types of funds and compliance with green criteria will be required.
In addition to the Guernsey Green Fund, the Commission has also announced its intention to work with the global insurance industry on an initiative which aims to make it easier for insurance companies to invest in long-term Green assets. By widening the pool of purchasers for green investments this, in turn, will make it easier for insurance companies to offer sustainable long-term returns to policyholders.
With regard to its financial position at the end of 2017, the Commission is reporting that it has moved from a negative net assets position at the end of 2016 of approximately £2.3million, to a rather healthier position at the end of 2017 with an operating surplus before exceptional items of £579,000.
In commenting about the outturn for 2017, Director General, William Mason, said: “The most noticeable change from previous years is the elimination of the Commission’s liability for employees who were historically members of the States of Guernsey’s Public Sector Pension Scheme (PSPS). During 2017, an agreement was reached which saw the States of Guernsey formally adopting the Commission’s liabilities in relation to members of the PSPS on the basis of a realistic valuation of the liabilities. This has resulted in a large, albeit technical, surplus on the Commission’s Statement of Comprehensive Income.”
The Commission will be taking into consideration its improved financial position when deciding later this year whether or not to seek any increase in the current level of fees which it charges licensees.
To view the document, please click here.
Managing Money Laundering and Terrorist Financing Risks: A Report on the Practices in the Fiduciary Sector
The Commission has published a report on its thematic review of the financial crime governance, risk and compliance frameworks within smaller firms within the fiduciary sector. The Financial Crime Supervision and Policy Division report which focused on the controls in place to manage and mitigate money laundering and terrorist financing risks can be found HERE.
This thematic report confirms that most of fiduciaries surveyed understand the importance of financial crime governance, risk and compliance, but also reflects that a minority failed to factor into their compliance frameworks the risks specific to their business.
GIBA Summary Minutes
Summary Minutes of the meeting held on 10 April 2018 can be viewed via this link:
Remember to check our Events Calendar for Industry presentations and other events that may be of interest.
STEP Lecture Series 2017/18
Kindly sponsored by Mourant, details of the upcoming lectures in the 2017/18 series are listed below.
Lunchtime Lecture No. 10 will take place on 13th June 2018 at 12pm.
Yann Mrazek, Managing Partner, M/HQ will present on STEP CPD – UEA (newly introduced) Foundation regimes.
The UAE has recently launched Foundation Regimes in both Abu Dhabi Global Market (ADGM) and the Dubai International Financial Centre (DIFC). The Seminar will look at both regimes’ key features and their similarities and differences with other well-established regimes. It will also discuss the practical impact of these new tools locally and regionally. Followed by a Q&A.
STEP AGM & Evening Lecture No. 10 will take place on 14th June 2018 at 5.30pm.
Michelle McMahon, Innovest Advisory is providing an overview on Impact Investment, Main Street Impact Investors & The Acumen Fund.
STEP Conference 2018
Please don’t forget to book your place on the STEP Conference at Beau Sejour on 21st June – you can do this by following this link – STEP Conference Booking
STEP Summer Social
We have secured The OGH on Thursday 28th June 2018 for what will be an exciting summer evening for Industry guests. We will be using the Crown Club conservatory area with the garden, with exclusive use of the conservatory from 5pm-7pm. We will be providing Gin & Tonic, Prosecco and Beer stations and canapés and the evening will follow a networking theme. Please click on the image below to book your place now.
2018 SoundBox Sprint
As part of their commitment to support innovation, the Guernsey Financial Services Commission is hosting a one day event, Friday 22nd June, which will provide an opportunity for Bailiwick businesses or individuals to develop digital solutions to 3 pre-set challenges.
The SoundBox Sprint will provide a unique one stop access to key bailiwick decision makers and business subject experts, with the objective of driving forward innovative solutions to existing business issues.
The day will culminate with award presentations by a panel of judges to the prize winning entrants.
To register an expression of interest please send an email to email@example.com
Please click here for more details.
FATCA / CRS Practical Workshop For Trust Companies – 5 June (£395)
This workshop will look at the practical aspects of classifying entities typically found within the trust industry. Candidates will be asked to bring in an example structure chart to be used as a practical example in the class to discuss appropriate classifications for the entities, as well as the reporting obligation of the trustee for the various connected parties.
AML Refresher Training For Fund Administrators And Trust Practitioners – 28 June (£125)
This two hour workshop will give an overview of local and global updates in legislation, plus case studies in fund and trust administration.
The session will cover areas which fund administrators and trust practitioners need to be aware of, where vulnerabilities in the fund sector may be able to be exploited by financial criminals and how to go about reporting any suspicion. The workshop is aimed at administrators or managers in the fund administration and trust sectors.
MSc Corporate Governance/Graduate ICSA – Fast Track. Starts 7 September (£6,995)
This one year, fast track programme, provides dual qualifications – MSc Corporate Governance and Grad ICSA. Taught in Guernsey, this part-time course will be delivered on-island by Bournemouth University lecturers. This fast track route is open to holders of full ICSA Professional, CCAB, ACA, ACCA and CIMA or equivalent.
STEP Certificate In International Trust Management – 24 to 27 September (£1,575)
The STEP Certificate in International Trust Management offers you a detailed insight into the creation and administration of trusts in an international context and increases your knowledge of the practical and academic issues arising in the industry.
Introduction To Trust Law And Administration – 2 October (£275)
The aim of this course is for delegates to be given an overview of the Guernsey trust law and its application to trust administration. Although the theory will be covered the emphasis is on why things are done in the workplace.
Management and Leadership for Fiduciaries – 10 October (£295)
This one day course reinforces and combines the key qualities of management skills and technical knowledge of trusts. It will allow you to develop a more progressive and effective management approach to your team and business.
Please join We Are Guernsey for an update on Guernsey Finance activities in China from Wendy Weng, as well as the first update from the newest member of the team, Dorothy Kwok, who is leading the charge in Hong Kong.
Members of industry will be sharing their experiences and they will be happy to provide a market update as well as answer any questions you may have about doing business in the region. New captive structures from China have been authorised in the last year, and new fiduciary business from China and Hong Kong has increased to 5.6%. They expect new investments funds business to be developing shortly, so this event will be for everyone with an interest in China and Hong Kong, no matter the sector.
If you would like to meet with Wendy and Dorothy during their visit 3-11 September, please contact Kate – firstname.lastname@example.org
The event will take place in the Colborne Room at The OGH Hotel. Refreshments and registration served from 8:30am, with the presentations starting at 9am. The debrief will finish at approximately 10am.
To attend please email email@example.com
The Global Elite Gala Dinner
WE ARE GUERNSEY are pleased to be sponsoring The Global Elite Gala Dinner in London on Thursday 4th October.
Legal Week are delighted to celebrate the achievement, excellence and success of the Global Elite trust and private client lawyers with an invitation-only black tie gala dinner.
For more information on Private Client Global Elite by Legal Week, please visit their website here.
If you are interested in attending this event with, please email Emily – firstname.lastname@example.org
Guernsey Private Wealth Forum 2018
Join We Are Guernsey at the Private Wealth Forum hosted by Guernsey Finance which takes place at Graysons Christ Church Spitalfields in London during the afternoon of Thursday 8th November. GAT are actively involved in the organisation of this event and hope that many Members will be in attendance.
More information on the event will follow shortly as well as registration details, however if you are interested in sponsoring this event, please email Declan – Declan@weareguernsey.com
We would like to give thanks to our Sponsors for their support.
- Asset Risk Consultants
- Alternative Solutions Limited
- Carey Olsen
- Walkers (Guernsey) LLP
As the industry representative body for Fiduciary licence holders, GAT is a Non-Profit Organisation and therefore relies on both income and marketing power to continue to operate and serve the industry.
The increased economic and regulatory pressures over the last few years have led to a significant rise in costs as GAT has had to become more active on a regular basis, particularly in relation to the multiple consultations in play and the changing environment for the fiduciary offering.
Amongst other benefits, our Sponsors provide feature articles, technical materials, notices of upcoming events or other items of interest for our monthly Newsletters. This year some will be partnering with GAT to provide technical seminars for our Members.
GDPR and Guernsey’s new Data Protection Law
By the time you read this GDPR and Guernsey’s new Data Protection Law will be in force.
Although I write this a few days before the 25th May, my prediction is that the sky has not fallen in, the World is still trading and no one has been fined €20M or 4% of their turnover. This is good and hopefully I am correct.
My second prediction is that many of us now have a better understanding of what we need to do to protect data, keep it secure and understand why we should be doing that, also a good thing.
Lots of people I have talked to think GDPR and the local legislation that has been driven around the Globe is an arduous task with little benefit.
Whilst I agree some of the more detailed aspects of GDPR may have limited benefit, the focus on individuals and how companies hold, maintain and process personal information about us has to be a good thing.
There are some real benefits behind GDPR. I can have more confidence that:
- Companies only hold information about me that they need to hold.
- I can contact a company and ask to be told the information they have about me.
- If there is a data breach it will be reported.
- If a company deliberately ignores the regulation they will be brought to account.
- Compliance with the law will become part of standard operating procedures.
Not every organisation has all of the required systems in place now, but the culture of managing data properly is spreading.
Please read the article in full ASL_GDPR_Sponsor_Article_May2018
Careless Talk Costs – You Never Know Who’s Reading
When negotiating difficult trust matters, candid correspondence can lower temperatures and enable parties to work constructively to resolve disputes.
One way to share information safely during disputes is the use of Without Prejudice communications. Such correspondence ordinarily attracts privilege from production in court. As a matter of public policy this allows information to be provided to and shared between the parties involved in a dispute without fear that that information might be used against them in court later.
There are, however, situations when a party might wish to disclose Without Prejudice correspondence in court, for example when a trustee might be under a duty to make full and frank disclosure. This tension between protection and duty necessitates careful thinking before corresponding under the cloak of Without Prejudice privilege. To that end a recent Royal Court case has considered the status of Without Prejudice correspondence in the context of administrative applications by Guernsey trustees.
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