Shows
Exploring Offshore LitigationUp Energy U-turn: Hong Kong Court of Appeal sets aside winding up order against Bermuda companyOver the past decade, the Hong Kong courts have given multiple important judgments concerning their power to wind up foreign companies. In a recent judgment, the Court of Appeal provided important clarification regarding a key element of this power.
Background
The judgment arises from the long-running cross-border insolvency of Up Energy Development Group Ltd. The Company is a Bermuda-incorporated coal mining business previously listed in Hong Kong. From early 2016, it experienced financial distress. By mid-2016, this led to different creditors presenting winding up petitions in Hong Kong (its place of listing) and Bermuda (its place of incorporation).
...2025-07-1104 min
Exploring Offshore LitigationUp Energy U-turn: Hong Kong Court of Appeal sets aside winding up order against Bermuda companyOver the past decade, the Hong Kong courts have given multiple important judgments concerning their power to wind up foreign companies. In a recent judgment, the Court of Appeal provided important clarification regarding a key element of this power.
Background
The judgment arises from the long-running cross-border insolvency of Up Energy Development Group Ltd. The Company is a Bermuda-incorporated coal mining business previously listed in Hong Kong. From early 2016, it experienced financial distress. By mid-2016, this led to different creditors presenting winding up petitions in Hong Kong (its place of listing) and Bermuda (its place of incorporation).
...2025-07-1104 min
Tokens of WisdomEpisode 66: Phil Graham, HarneysEpisode 66: Phil Graham, Harneys When I set out to do this show, my goal was to arm aspiring fund managers with the information they need to launch and operate a fund. In the legal realm, I happen to possess a lot of that information from my day job, but there’s so much more that goes into launching and operating a fund. And wise though I may be, my area of expertise doesn’t cover it all. So I’m going to bring in some friends to share their wisdom i...2025-07-0950 minExploring Offshore LitigationFrom insolvency to innovation: The BVI leads the conversationOver the past couple of weeks, key players in the financial services world converged on the shores of the British Virgin Islands for two globally significant conferences: INSOL BVI Seminar and Fintech on the Seas (FOTS). The BVI relished its opportunity to play host, showcasing the sophistication of its financial services sector and legal market to an elite global audience.
These events were a fantastic reminder of the relevance of this jurisdiction to the global legal industry. Delegates from all over the world, including the UK, Europe, the US, Asia, and the Caribbean, descended on the BVI, making it...2025-07-0104 min
Exploring Offshore LitigationMitigate or litigate? Binance's bold Defence against BSV claims upheld on appealThe appeal focused on "sub-class B" - around 75,000 individuals who held BSV on 11 April 2019 and continued to do so when proceedings began in July 2022. The claim sought damages quantified by reference to a supposed "foregone growth effect". This theory posited that the Respondents' alleged wrongdoing had prevented BSV from becoming a top-tier cryptocurrency like Bitcoin, in which scenario its value would have massively increased.
The Applicant claimed that sub-class B holders were entitled to damages due to the Respondents' preventing BSV from becoming a major cryptocurrency (and the associated increase in its value). Alternatively, the Applicant claimed that the...2025-06-3003 min
Exploring Offshore LitigationEnglish High Court strikes a blow to unmeritorious strike out applicationsAdam v Adam is a recent decision of the English High Court which provides a useful illustration of when pleadings ought to be struck out.
Factual background
The Adam brothers had been business partners. The brothers had agreed to dissolve the partnership, and the Claimant now sought an account from his brother, the Defendant, of his 50 per cent share of the partnership assets. The Defendant's case was that parts of the Claimant's pleadings were unclear and contradictory, and he therefore issued the strike out application in relation to those specific parts of the Claimant's Particulars of Claim.
...2025-06-2603 min
Exploring Offshore LitigationNo trust, no transfer - Singapore Court clarifies crypto ownership in liquidationThe applicants, acting as liquidators, sought court approval to distribute unclaimed digital assets and funds held in Eqonex Capital's custody to customers under a proposed trust arrangement. They also requested indemnity rights and for any remaining assets to vest with the Official Receiver upon the company's dissolution.
The case highlights the tension between liquidators' practical challenges in distributing unclaimed assets and the legal requirements for establishing trusts in crypto insolvencies. With only a small fraction of Eqonex's customers engaging in recovery efforts, the liquidators sought a streamlined solution, but the court prioritised strict adherence to trust law principles.
...2025-06-1303 min
Exploring Offshore LitigationUndue influence: Supreme Court clarifies lender duties for hybrid loan transactionsWaller-Edwards concerned undue influence in respect of a hybrid loan - that is a loan which is partly for joint borrowing by the couple and partly to discharge the debts of one party (often the husband) to the financial disadvantage of the other party (often the wife).
Ms Waller-Edwards opposed the lender's possession proceedings on the basis that she had entered the loan as a result of the undue influence of her former partner Mr Bishop. She also opposed the possession proceedings on the basis that, because some of the loan was being applied for Mr Bishop's sole benefit...2025-06-0903 minExploring Offshore LitigationUK Supreme Court examines the question of who may be liable to contribute to estate assets under the English statutory provision for fraudulent trading (Section 213 of the Insolvency Act)The decision will be of great interest to Cayman Islands and BVI practitioners, because Section 213 of the Insolvency Act is in substantially the same form as Section 147 of the Companies Act (in the Cayman Islands) and Section 255 of the Insolvency Act 2003 (in the BVI). As a Supreme Court decision, Bilta is highly persuasive.*
The underlying fraud discovered in Bilta involved a conspiracy related to the trading of carbon credits during the summer of 2009: payments intended to account for VAT to the relevant tax authorities were instead directed to third parties via multi-layered and high-speed transactions. Based on assumed facts...2025-06-0503 min
Exploring Offshore LitigationDown the rabbit hole: navigating BVI winding up applications against struck off and dissolved companiesThe BVI Business Companies Act, Revised Edition 2020 (BCA) expressly provides that where a company has been struck off and dissolved, a creditor may make a "claim" against the company and pursue the claim through to judgment or execution.
Whilst the Court was comfortable that the BCA enabled, for example, a monetary claim to be commenced and pursued by a creditor against a struck off and dissolved company, it was concerned that winding up proceedings, commenced by way of Originating Application, were not a "claim" within the meaning of the BCA.
To address the Court's concerns, Harneys took a...2025-06-0301 min
Exploring Offshore LitigationBVI shares: a 'trust' issue in English CourtsThis claim was part of a wider dispute between the claimants - a Russian bankruptcy trustee and a Russian bank - and the bankrupt individual, the former bank president. The bank claims that the bankrupt perpetuated a massive fraud against it. The trustee is seeking to recover property of the bankrupt in England, where he is now domiciled.
This decision concerned permission for the trustee to serve out of the jurisdiction the proceedings in which she claimed beneficial interest in the shares in the defendant BVI company (CGL). To succeed she needed to establish a serious issue to be...2025-05-0803 min
Exploring Offshore LitigationBVI shares: a 'trust' issue in English CourtsThis claim was part of a wider dispute between the claimants - a Russian bankruptcy trustee and a Russian bank - and the bankrupt individual, the former bank president. The bank claims that the bankrupt perpetuated a massive fraud against it. The trustee is seeking to recover property of the bankrupt in England, where he is now domiciled.
This decision concerned permission for the trustee to serve out of the jurisdiction the proceedings in which she claimed beneficial interest in the shares in the defendant BVI company (CGL). To succeed she needed to establish a serious issue to be...2025-05-0803 minExploring Offshore LitigationChasing glory - High Court of Hong Kong dismisses winding-up petition due to lack of assets for unsecured creditorsIn the recent decision involving Trillion Glory Limited and R&F Properties (HK) Company Limited, Madam Justice Linda Chan of the High Court of Hong Kong dismissed winding-up petitions filed by a secured creditor, on the basis that the secured creditor lacked a real interest in the proposed liquidations and there was no benefit in issuing a winding-up order due to the absence of assets for unsecured creditors.
Background
The Petitioner sought to wind up Trillion and R&F Properties, each part of the Guangzhou R&F Properties Co., Ltd group. The group, consisting of onshore and offshore...2025-04-3004 min
Exploring Offshore LitigationIndemnity costs follow abusive application to defer company's dissolution: In re Skye Assets Fund SPC (in voluntary liquidation)In the background to these proceedings, a former investor in one of the Company's segregated portfolios averred that he had good arguable claims against the Company for actionable misrepresentations which had induced him to invest.
He therefore brought two applications, in each case designed to ensure that his interests were adequately protected and that the voluntary liquidator (who was also the sole management shareholder and director of the Company, and the person responsible for its investment strategies) be properly held to account for his actions. Those applications were:
An application to defer the dissolution of the Company upon...2025-03-2003 minExploring Offshore LitigationFull disclosure or lose your freezing injunctionThe Claimants brought proceedings against the Defendants for trademark infringement and passing off. In support of the proceedings, the Claimants successfully obtained an ex parte worldwide freezing injunction (for £20 million) and an access and imaging order against the Defendants. The Defendants subsequently applied for the orders to be discharged for failure of fair representation by the Claimants' solicitor at the ex parte hearing.
After considering the parties' arguments, Mr Justice Fancourt was satisfied that the freezing injunction and the access and imaging order should be discharged, and that there would be no re-granting of any freezing injunction.
In c...2025-03-1203 min
Exploring Offshore LitigationFull disclosure or lose your freezing injunctionThe Claimants brought proceedings against the Defendants for trademark infringement and passing off. In support of the proceedings, the Claimants successfully obtained an ex parte worldwide freezing injunction (for £20 million) and an access and imaging order against the Defendants. The Defendants subsequently applied for the orders to be discharged for failure of fair representation by the Claimants' solicitor at the ex parte hearing.
After considering the parties' arguments, Mr Justice Fancourt was satisfied that the freezing injunction and the access and imaging order should be discharged, and that there would be no re-granting of any freezing injunction.
In c...2025-03-1203 min
Exploring Offshore LitigationA contract cannot be enforced if the performance of it is unlawful - what does "unlawful" mean though?The well-established Ralli Bros principle is an exception to the general rule that the enforceability of a contract governed by English law is determined without reference to illegality under foreign law. Under this principle, a contract shall not be enforced if the performance of it is unlawful in the place of performance. In the recent judgment of Litasco SA v Banque El Amana SA, the High Court of England clarified that 'unlawful' does not cover breaches of foreign court orders.
In the Litasco case, the Defendant issued a standby letter of credit as security for certain loan agreements. The...2025-02-2802 minExploring Offshore LitigationBVI and Cayman Islands continue to play dominant roles in arbitration in AsiaThe British Virgin Islands and the Cayman Islands also play an important role in the success of arbitration in Asia. Both jurisdictions have been among the top five geographical originators or nationalities of the parties to arbitration administered by the HKIAC for many years. In the statistics recently published by the HKIAC for 2024, the BVI and the Cayman Islands once again are ranked at number 3 and 4, respectively.
With the Hong Kong-Mainland China arrangement on interim measures being in place, the HKIAC have also processed applications to the Mainland Chinese courts under the arrangement to preserve evidence and assets. According...2025-02-2703 min
Exploring Offshore LitigationSupreme Court Construes the Meaning of Section 423 of the English Insolvency Act 1986On 19 February 2025, the Supreme Court handed down judgment in El-Husseiny v Invest Bank PSC. The case concerned the interpretation of section 423 of the English Insolvency Act 1986 which provides remedies to creditors in circumstances where a debtor has taken steps to defeat or prejudice their claims by entering into a transaction at an undervalue.
In this case, the first appellant and judgment debtor, Mr El-Husseiny caused the legal and beneficial title of multiple assets, including a property worth £4.5 million which was owned by one of his companies, to be transferred to his sons for no consideration. Consequently Mr El-Husseiny's shareholding i...2025-02-2602 minExploring Offshore LitigationDon't stick your head in the sand: Strict sanctions for breach of freezing injunctionsMr Bryce had been found to be in contempt for three specific breaches:
Failure to inform the applicant company's solicitors of his assets exceeding £10,000
Failure to swear and serve an affidavit verifying the disclosed information
Entering into a loan extension that diminished the equity of a relevant property
Mr Bryce's mitigation defence was that he was at the time suffering from depressive disorder, suicidal, and self-medicating with alcohol and drugs; hence he "put his head in the sand."
Mr Justice Bryan made a detailed review of the authorities regarding sanctions for contempt of court, committal a...2025-02-1902 min
Exploring Offshore LitigationDon't stick your head in the sand: Strict sanctions for breach of freezing injunctionsIn the recent case of SIA Investment Industry v Pardus Wealth Ltd, the English Commercial Court ruled on the appropriate sanction to be imposed on an individual respondent, who had been found guilty of contempt of court for failure to comply with several provisions of a freezing order.
Mr Bryce had been found to be in contempt for three specific breaches:
Failure to inform the applicant company's solicitors of his assets exceeding £10,000
Failure to swear and serve an affidavit verifying the disclosed information
Entering into a loan extension that diminished the equity of a relevant property2025-02-1902 min
Exploring Offshore LitigationHonouring excellence: Sir Anthony Smellie joins the Privy CouncilSir Anthony Smellie KCMG KC, former Chief Justice of the Cayman Islands, has received the prestigious honour of being appointed a Member of His Majesty's Most Honourable Privy Council and a member of the Judicial Committee of the Privy Council. These serve as a testament to Sir Anthony's distinguished career and contributions to the legal field, and are a reflection of the high quality of the Cayman judiciary.
Sir Anthony's judiciary journey began with his appointment as a Judge of the Grand Court of the Cayman Islands in 1993, becoming Chief Justice in 1998, a role he held until his retirement...2025-02-1101 min
Exploring Offshore LitigationAre you being served? Lessons from the English Court of AppealThe English Court of Appeal's decision in Khan v D'Aubigny is a must-read for litigators, tackling the perennial issue of valid service - whether under common law, contract, or statute. Though arising in a landlord-tenant context, the ruling offers guidance across all litigation, clarifying section 7 of the Interpretation Act 1978 (IA 1978), the common law presumption of service, and what qualifies as a "notice".
The landlords served a section 21 notice under the Housing Act 1988, but the tenant, Mrs D'Aubigny, denied receiving three key documents - a Gas Safety Record (GSR), an Energy Performance Certificate (EPC), and the How to Rent booklet...2025-02-0503 min
Exploring Offshore LitigationWhen pigs really do fly: Bermuda hosts the ultimate layoverIn a recent event that sounds straight out of a comedy script, Bermuda played host to a most unexpected set of VIPs - Very Important Pigs. A KLM aircraft en route from the Netherlands to Mexico made an emergency stop on the island after the smell from its cargo of live pigs proved too much for the flight crew and pilots to handle. Yes, you read that correctly: the pigs were flying, but their odour was grounding!
A smelly situation
The flight, carrying both passengers and over a hundred live pigs, encountered an olfactory crisis mid-journey. The pungent...2025-01-3002 min
Exploring Offshore Litigation"Good arguable case" - Threshold for granting freezing injunctions clarifiedIn Dos Santos v Unitel SA, the English Court of Appeal clarified the threshold test of a "good arguable case" for granting worldwide freezing injunctions should be equivalent to that of a "serious issue to be tried" as applied in other types of interim injunctions, in accordance with the principles laid down in American Cyanamid.
Ms Isabel dos Santos founded Unitel, the largest mobile telecom company in Angola. She was a director of Unitel and was also a minority beneficial owner of the company via a BVI company (Vidatel Limited) until late 2020. Unitel commenced proceedings in the English Court...2025-01-2305 min
Exploring Offshore LitigationWhen silence speaks - The Singapore Court of Appeal's take on infra petita in arbitrationThe recent Singapore Court of Appeal case of DEM v DEL offers significant insights into the complexities surrounding arbitration awards, particularly concerning infra petita challenges (failure by a judge or arbitrator to consider a claim or essential issue) when the appellant is a non-participating party in the underlying arbitration.
The case involves a Singapore company, which acquired a franchised enrichment centre from the eventual Appellant and two other sellers. Various agreements were entered into, and when the Purchaser noticed lower-than-expected revenues, it initiated arbitration proceedings against all three sellers under the arbitration clauses in the agreements. The Purchaser settled...2025-01-2104 min
Exploring Offshore LitigationThe standard of proof as to the existence of an arbitration agreement in an application for an anti-suit injunction - the Hong Kong Court departs from the position under England & WalesIn the recent Hong Kong case of Friendship Shipping and Trading SA v IVL Dhunseri Polyester Company SAE, the Plaintiff applied for an anti-suit injunction (ASI) to restrain the Defendant from continuing Egyptian legal proceedings against it, contending that the parties had agreed to arbitrate any dispute in Hong Kong per the arbitration agreement contained in a charterparty that was incorporated by reference in the bills of lading.
One of the issues examined by the Court was the threshold that had to be established by a party seeking an ASI as to the existence of a valid and binding...2024-12-1002 min
Exploring Offshore LitigationPlead discreditable conduct properlyThe Commercial Court in England recently dismissed the Claimant bank's claim of a transaction to defraud creditors because the Bank had not properly pleaded the purpose for which it contended that the Defendant businessman had transferred assets to his family: Invest Bank PSC v El-Husseini.
The trial largely focussed on a single question: whether the Defendant transferred assets to and for the benefit of his family for the purpose of putting them beyond the reach of the Bank as a potential creditor?
The Defendant's debt arose from judgments obtained by the Bank in Abu Dhabi on his personal...2024-12-0402 min
Exploring Offshore LitigationPublic law defences in public interest liquidationsThe High Court in England has held that a defendant company may rely on public law defences in opposition to a petition seeking the winding up of the company on public interest grounds: The Commissioners for His Majesty's Revenue and Customs v Purity Limited.
Faced with a petition issued by His Majesty's Revenue and Customs (HMRC) to wind up the Company on public interest grounds under the UK Finance Act 2022 (FA 2022), arising from an allegation that the Company's business activities comprised a tax avoidance scheme, the Company sought judicial review of HMRC's decisions in the Administrative Court on public...2024-12-0303 min
Exploring Offshore LitigationEQUAL JUSTICE 平義社On 23 October, Hong Kong's arbitration community gathered for the annual Hong Kong Arbitration Charity Ball. The ball is one of the highlights of Hong Kong's legal calendar, and is attended by arbitration professionals from across the world. Harneys hosted a table at the event, and an enjoyable evening was had by all.
More importantly, though, the ball is an opportunity for attendees to hear from the event's charity partners and to learn more about their efforts to support the wider community in Hong Kong.
This year, one of those partners was Equal Justice 平義社. During the evening, attendees were fortun...2024-11-1405 min
Exploring Offshore LitigationPower of sale - end game on enforcing a Chinese arbitral awardIn a recent hearing to obtain a power of sale before the BVI Commercial Court, as part of the enforcement of an arbitral award, a power of sale was granted to the applicant without the need for any receiver to be appointed.
The applicant took steps to enforce a BVI judgment recognising an arbitral award issued by the SHIAC arbitral tribunal in Shanghai.
The judgment debt had remained outstanding for one and a half years despite the applicant having demanded repayment from the judgment debtor on numerous occasions, even on an instalment basis. In light of the failure...2024-11-1101 minExploring the Funds HubOngoing obligations of Approved Managers (BVI)Submission of annual returns
Provision
What to do and when?
Regulation 16/Guideline 6.4
An Approved Manager must file an annual return with the Financial Services Commission (the Commission) no later than 31 January each year.
The annual return must be in the prescribed form and must contain:
1. A statement that the Approved Manager is not in breach of the requirements of the Regulations
2. A confirmation that each director and senior officer of, and shareholder with a "significant interest" (generally speaking, more than ten per cent) in, the Approved Manager is fit and proper
3. Details...2024-09-0511 min
Chat OMPCyprus: the philosophy of skipperingIn the seventh episode of our Chat OMP podcast, William Peake interviews Pavlos Aristodemou, managing partner of our Cyprus office. Pavlos shares his unique journey at Harneys, including the evolution of the Cyprus office from a small boutique firm to an official Harneys location. He highlights the essential skills required to excel as a managing partner, drawing parallels to being the skipper of a boat, and offers valuable advice to junior lawyers on the importance of consistency.2024-07-3012 minChat OMPSmall islands, big dreams: A chat with BVI Managing Partner Tanya Cassie-ParkerIn our third episode, William Peake sits down with BVI Managing Partner Tanya Cassie-Parker as she reflects on her journey with Harneys and the growth and evolution of Harneys and the British Virgin Islands. It’s a wonderful journey covering compelling advice to younger lawyers and quite possibly the best fictional dinner party imaginable.2024-03-2712 minChat OMPSuccess in the Lion City: a chat with our Singapore Managing Partner Lishi FongIn our first episode, William sits down with Singapore Managing Partner Lishi Fong who joined Harneys in 2019. Lishi shares her career journey, what it’s like working and living in Singapore, and the challenges of managing your personal and professional life as a lawyer.Learn more about Lishi here: https://www.harneys.com/people/lishi-fong/2024-01-3109 min
Practically SpeakingDirector names publicly available from 1 January 2023As part of the BVI’s commitment to the FATF Recommendations on the availability of basic company information via a company registry, from 1 January 2023, the names of directors of BVI companies will be made available by the Registry of Corporate Affairs in the BVI (the Registry) for payment of a fee.What we know so far:A list of directors will be available via the Registry on payment of a fee of US$75If a BVI service provider is approached to obtain the information from the Registry, it is likely they will charge an additional fee The...2022-11-2404 min
みやたしのぶの投資小噺みやたしのぶの #投資小噺 - #ブログ 書くのが大変だからHarneys の Yucheng さんと #対談 しました。- #東アジア から #グローバル まで、話が壮大！みやたしのぶの #投資小噺 。
ブログを書くのが大変なので、話したい人に会って、聞きたいことを聞くこの #対談 、#オフショア #弁護士 事務所 Harneysのパートナー、Yucheng Fan さんとのお話の #第２話 です。
話が、#離島 に進出するアジア系の話から、東アジアの比較論、気づけば #グローバライゼーション ってなにそれ？美味しいの？的な話まで、まぁ、#ファンド の話もそこそこしましたが、何にせよ、仕事を忘れて盛り上がって話していましたw
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#myshortstories presented by Aizawa Asset Management Co., Ltd.
This series of #interviews is to feature favourite business persons in fund industry whom Shinobu Miyata, COO of Aizawa Asset Management, wants to meet and learn what Shinobu wants to learn.
This is the second episode of interview series inviting Mr. Yucheng Fan, Partner at #Harneys, an offshore law firm for #caymanisland and #britishvirginislands. His quite unique living experiences from #China, #Japan, #Europe and #asia lead me ask so many related (and unrelated) side topics, and we discussed #culturaldifference among #eastasia countries and what is meaning about #globalization ,versus #japan specific needs and demands in #fund #business.
Hope you enjoy!2022-11-1117 minみやたしのぶの投資小噺みやたしのぶの #投資小噺 - #ブログ 書くのが大変だからHarneys の Yucheng Fan さんと #対談 してみました。- #オフショア オフショア は #離島 だ！あいざわアセットマネジメントがお送りする #みやたしのぶの #投資小噺 。
ブログを書くのが大変なので、話したい人に会って、聞きたいことを聞くこの #対談 、#オフショア #弁護士 事務所 Harneysのパートナー、Yucheng Fan さんとのお話の #第一話 です。
いつもなら #自己紹介 はあっさり（？）終わるのに、あちこちでの海外経験に #ツッコミ どころ満載だったのに加えて、そのまま自然と #オフショア の離島生活の話で盛り上がったので、ほぼノーカットでお送ります！
それくらい、インタビューする私が楽しんでますので、ぜひご覧ください！
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#myshortstories presented by Aizawa Asset Management Co., Ltd.
This series of #interviews is to feature favourite business persons in fund industry whom Shinobu Miyata, COO of Aizawa Asset Management, wants to meet and learn what Shinobu wants to learn.
This is the first episode of interview series inviting Mr. Yucheng Fan, Partner at #Harneys, an offshore law firm for #caymanisland and #britishvirginislands. His quite unique living experiences from China, Japan, Europe and Asia lead me ask so many related (and unrelated) side topics, and we moved to a normal life in #offshore islands smoothly, I could not find good timing to edit... Indeed, I really enjoy this interview with Yucheng.
Hope you enjoy!2022-11-0919 min
The Student Lawyer PodcastLife as an Offshore Litigator with William Peake, Partner at HarneysIn this episode, Stephanie Anais speaks with William Peake, London based litigation Partner at Harneys, a global offshore law firm.
Having spent a vast amount of time working in the Cayman Islands and advising banks and investment vehicles and their liquidators, shareholders and directors in relation to disputes, William has exceptional knowledge of how to succeed as an offshore litigator.
During the episode, William discusses the benefits of having an offshore practice and explains why obtaining a dual qualification can enhance a lawyer’s onshore practices. Additionally, William talks about the Saad Litigation case, the lo...2022-09-141h 40
Take 10Practical tips for offshore litigation and the People’s Republic of ChinaIn this episode of our Take10 podcast, Asia Managing Partner Ian Mann is joined by Shanghai Managing Partner Vicky Lord to discuss the nuances and practicalities of offshore litigation from within the People’s Republic of China (PRC). Key takeawaysOur lawyers in Shanghai provide advice to clients in the PRC on their offshore dispute matters. The PRC has a number of foreign law firms within its borders, all regulated by the Ministry of Justice of the People's Republic of China, providing foreign law advice to clients on the ground in the PRC. At Harneys, our la...2021-04-2915 minTake 10The Pursuit of PassionIn this episode of our Take10 podcast, Partner Peter Ferrer is joined by Counsel Kimberly Crabbe-Adams as she provides insights into her experience growing up in the British Virgin Islands, pursuing her career in law, and the importance of passion.Key Takeaways:Kimberly first joined Harneys as part of a work-study programme while she was in high school in the BVI. After furthering her education in Canada and the UK, she held pupillages across our Corporate and Commercial, Banking and Finance and Investment Funds and Regulatory departments.She permanently joined the firm’s Litigation, Restructuring and In...2021-03-2413 min
Substance on SubstanceITA investigations and enforcement powers and new legislative developmentsIn the fourth episode of Substance on Substance season two, Philip Graham, our global head of Investment Funds and Regulatory, and Counsel Joshua Mangeot, our BVI economic substance specialist, consider the ITA’s investigation and enforcement powers under the Economic Substance (Companies and Limited Partnerships) Act 2018 and discuss some expected changes to the legislation, including limited partnerships registered in the BVI without legal personality being brought within the regime.
Key takeawaysCompanies and other legal entities which have not yet classified themselves or which have missed their first reporting deadline (which was 30 December 2020 for the majority of BVI companies incorporated before 2019) sh...2021-03-1813 minTake 10The inner workings of the Privy CouncilIn this episode of our Take10 podcast, Partner William Peake is joined by our London Litigation team, Counsels Francesca Gibbons and Deirdre MacNamara, and Associate Joshua Shuardson-Hipkin, to discuss the inner workings of the Judicial Committee of the Privy Council. Key Takeaways:The history of the Privy Council can be traced back to the Norman times during the 11th Century where petitions were brought before the Monarch to be either granted or denied. Over time, it was decided that a group of Privy Counsellors be formed to review the petitions and provide advice to the Monarch...2021-03-0114 minTake 10From content to community: the evolution of the Offshore Litigation BlogIn this episode of our Take 10 podcast, Litigation Partner William Peake joins Asia Managing Partner Ian Mann for an introduction and overview of The Offshore Litigation Blog, the platform that inspired the launch of our Take 10 podcast.Key takeawaysThe blog establishes a sense of community within the global litigation team at Harneys by providing a collaborative platform for our litigation lawyers of all levels to showcase their expertise and knowledge to a wide audience around the worldOur contributors are able to analyse complex cases and legislation and translate that into easy to read, digestible snippets...2021-01-2714 minTake 10Just and equitable winding upIn this episode of our Take10 podcast, guest speaker Victor Joffe QC of Temple Chambers joins Ian Mann to discuss Chu v Lau [2020] UKPC 24, a case that considers the test for winding up a company on the just and equitable ground, with particular reference to deadlock. Key takeawaysChu v Lau raises a number of interesting points about winding up on the just and equitable ground. In order to wind up a company on the just and equitable ground, certain conditions must be met, one of which is deadlock. There are two types of deadlock:Management (or fun...2020-12-0818 min
Substance on SubstanceSOS Substance on Substance: Season two - Reporting criteria and tax non-residence claimsIn a bumper episode for the holiday season, Phil and Josh venture into the weeds of the ES reporting requirements, giving a "deep-dive" into the reporting criteria and their long-awaited discussion of tax non-residence claims and Part 4 of the International Tax Authority (ITA) Rules. Key takeaways
Reports must be filed by every "corporate and legal entity" (which includes all BVI companies) under the Beneficial Ownership Secure Search System Act 2017 via the registered agent within six months of the end of the financial period.
The format of reporting via the BOSS(ES) database is prescribed by the ITA and reflects EU...2020-11-2719 min
Substance on SubstanceSOS Substance on Substance: Season two - Key points for directors as economic substance reporting deadlines approachIn the second episode of our Substance on Substance Season two, Philip Graham, our global head of Investment Funds and Regulatory, and Joshua Mangeot, our BVI Economic Substance specialist, give an update on points directors and operators of BVI entities should be aware of regarding the economic substance reporting deadlines.
Key takeaways
Directors need to first assess where they are in the compliance reporting cycle - most BVI companies incorporated before 2019 will have to file their first report by early December 2020
Obligations depend on the classification and greatly vary in what is required
Allowing a company to incur fines or...2020-11-2011 min
The Funds DownloadThe seven hottest questions in the crypto spaceIn our final episode of The Funds Download season one, our host and the Global Head of Funds and Regulatory, Philip Graham, is joined by Partners Lewis Chong and Matt Taber, and Associate Marc Piano, our in-house crypto experts. They consider the most frequently asked questions encountered in their extensive experience with guiding emerging managers in this industry.2020-11-1317 min
Substance on SubstanceThe Funds Download: The seven hottest questions in the crypto spaceIn our final episode of The Funds Download season one, our host and the Global Head of Funds and Regulatory, Philip Graham, is joined by Partners Lewis Chong and Matt Taber, and Associate Marc Piano, our in-house crypto experts. They consider the most frequently asked questions encountered in their extensive experience with guiding emerging managers in this industry.2020-11-1217 min
Substance on SubstanceSOS Substance on Substance: Season two - BVI economic substance reporting FAQsOur BVI economic substance specialists Counsel Joshua Mangeot and Director of Client Services Amy Roost address some FAQs regarding the reporting process, which are relevant to all BVI companies.
Key Takeaways:
The reporting deadlines for most BVI companies and other relevant entities are imminent - and in some cases have already passed. Most BVI entities must ensure reports are submitted by their registered agent (RA) before 30 December 2020 or face significant fines and penalties - and even personal liability.
Deadlines have not been allowed to be extended by the EU despite COVID-19 but the regulator has issued practical guidance in this...2020-10-1511 minThe Funds DownloadDisrupting the disrupters – The impact of distributed ledger technology and smart contracts in the Investment Funds industryIn the ninth episode of our Funds Download podcast series, our host and the global head of Funds and Regulatory, Philip Graham, is joined by Partner Matt Taber and Associate Marc Piano, to focus on how the FinTech evolution continues to provide a platform for serious innovation in the industry.2020-09-1113 min
Substance on SubstanceThe Funds Download: Disrupting the disrupters – The impact of distributed ledger technology and smart contracts in the Investment Funds industryIn the ninth episode of our Funds Download podcast series, our host and the global head of Funds and Regulatory, Philip Graham, is joined by Partner Matt Taber and Associate Marc Piano, to focus on how the FinTech evolution continues to provide a platform for serious innovation in the industry.2020-09-0913 minTake 10Reflective loss rule - paired back for the modern ageIn this episode of our Take10 podcast, Ian Mann is joined by guest speaker Victor Joffe QC of Temple Chambers to discuss the UK Supreme Court case of Sevilleja v Marex Financial Ltd [2020] UKSC 31, a case that looked at whether the rule against reflective loss prevented creditors of a company from claiming directly against a third party for asset-stripping the company.Key Takeaways:Sevilleja v Marex – The facts:Mr Sevilleja controlled two BVI companies which were sued by Marex Financial Ltd. In the Court of Appeal, Marex was successful in obtaining a judgment of over...2020-09-0614 min
Substance on SubstanceThe Funds Download: The meteoric rise of CryptocurrencyHost and the global head of Funds and Regulatory, Philip Graham is joined by Partner Lewis Chong and Associate Marc Piano, to discuss the hot topic of Cryptocurrency; how it has evolved, its recent resurgence and the essential role offshore jurisdictions play in supporting this dynamic industry. 2020-09-0333 minThe Funds DownloadThe meteoric rise of CryptocurrencyHost and the global head of Funds and Regulatory, Philip Graham is joined by Partner Lewis Chong and Associate Marc Piano, to discuss the hot topic of Cryptocurrency; how it has evolved, its recent resurgence and the essential role offshore jurisdictions play in supporting this dynamic industry. 2020-09-0333 minThe Funds DownloadUnnecessary red tape or essential global standards Regulation in the investment management industryIn the seventh episode of our Funds Download podcast series, our host and the Global Head of Funds, Philip Graham, is joined by the Head of our Regulatory and Tax Department, Aki Corsoni-Husain, to talk us through the global regulatory framework that all aspiring fund managers and service providers should be aware of.2020-08-1913 min
Substance on SubstanceThe Funds Download: Unnecessary red tape or essential global standards? Regulation in the investment management industryIn the seventh episode of our Funds Download podcast series, our host and the Global Head of Funds, Philip Graham, is joined by the Head of our Regulatory and Tax Department, Aki Corsoni-Husain, to talk us through the global regulatory framework that all aspiring fund managers and service providers should be aware of.
2020-08-1913 minPractically SpeakingSuccession planning and BVI assets – A few practical pointersOur podcast series Practically Speaking, was launched to provide our listeners with practical advice and insights on issues applicable to stakeholders of BVI entities.In our eighth episode, Transactional Partner Rachel Graham and Senior Associate within Harneys’ Private Wealth team, Matthew Howson discuss the following:What happens when a non-resident holder of BVI shares passes away, whether they held the shares absolutely or via a nomineeship? How to bridge the gap between the law of the BVI company and the law of the Deceased’s home jurisdiction: covering some near universal misperceptions. What works to ensure that B...2020-07-2921 min
Substance on SubstanceThe Funds Download: Accessing the Asia marketIn the sixth episode of our Funds Download podcast series, our host and the global head of Funds and Regulatory, Philip Graham, is joined by head of Funds and Regulatory, Asia, Maggie Kwok, to share insights from the region.2020-07-2316 minThe Funds DownloadAccessing the Asia marketIn the sixth episode of our Funds Download podcast series, our host and the global head of Funds and Regulatory, Philip Graham, is joined by head of Funds and Regulatory, Asia, Maggie Kwok, to share insights from the region.2020-07-2316 min
Substance on SubstanceThe Funds Download - Boundless opportunities for the Latin America marketIn the fifth episode of our Funds Download podcast series, our host and the global head of Funds and Regulatory, Philip Graham, is joined by Harneys Fiduciary Managing Director of the Americas, Maria Pia Buchi, to examine market trends originating from Latin America and how investment fund products are structurally so important in the plumbing of the region.2020-07-0921 minPractically SpeakingEstablishing substance in the BVIOur podcast series Practically Speaking was launched to provide our listeners with practical advice and insights on issues applicable to stakeholders of BVI entities. In our seventh episode, Transactional Partner Rachel Graham and Director of Fiduciary & Custodial Kerry Graziola discuss how to establish substance for relevant in scope entities in the BVI, outlining: The obligations facing both passive and active entities conducting holding business and how they differ. The requirements for direction and management and how they might be managed practically in a Covid 19 world. How the ITA has been responding to the current travel climate and it...2020-07-0916 minThe Funds DownloadBoundless opportunities for the Latin America marketIn the fifth episode of our Funds Download podcast series, our host and the global head of Funds and Regulatory, Philip Graham, is joined by Harneys Fiduciary Managing Director of the Americas, Maria Pia Buchi, to examine market trends originating from Latin America and how investment fund products are structurally so important in the plumbing of the region.2020-07-0921 minPractically SpeakingDemystifying the continuation or re-domiciliation of foreign companiesOur podcast series Practically Speaking, was launched to provide our listeners with practical advice and insights on issues applicable to stakeholders of BVI entities. In our sixth episode, Transactional Partner Rachel Graham and Transactional Counsel Thomas Dugdale discuss the following:What a continuation, “re-domiciliation” or “migration” is Why continue or migrate to another jurisdictionPractical considerations of continuing your company in or out of a jurisdictionHow continuations might affect creditors and other interested partiesCommonly encountered issues and solutionsTo read more about continuations into the BVI click here 2020-06-2313 minThe Funds DownloadLuxembourg: an Investment Funds giantIn the fourth episode of our Funds Download podcast series our host and global head of Funds and Regulatory, Philip Graham, is joined by the head of our Luxembourg Investment Funds team, Vanessa Molloy, to take a closer look at the reasons why Luxembourg is such a successful investment funds jurisdiction, and the main factors to consider if you are thinking of establishing a Luxembourg structure. 2020-06-1612 min
Substance on SubstanceThe Funds Download - Luxembourg: an Investment Funds giantIn the fourth episode of our Funds Download podcast series our host and global head of Funds and Regulatory, Philip Graham, is joined by the head of our Luxembourg Investment Funds team, Vanessa Molloy, to take a closer look at the reasons why Luxembourg is such a successful investment funds jurisdiction, and the main factors to consider if you are thinking of establishing a Luxembourg structure. 2020-06-1612 minTake 10Privatisations: 2020 the year of coming homeIn this episode of our Take10 podcast, Paula Kay joins Ian Mann to discuss privatisation, the process by which a company transfers from public to private ownership and control. Key TakeawaysWhy privatise?Given the current economic and geopolitical climate, publicly listed companies are facing great pressure and are looking for ways to either exit from their current stock exchange and relist elsewhere, or to exit the stock exchanges completely.Increased reporting requirements as a result of the US-China trade war has also played a role in many organisations’ desire to privatise. Opti...2020-06-1409 minPractically SpeakingPrivate Investment FundsOur podcast series Practically Speaking was launched to provide our listeners with practical advice and insights on issues applicable to stakeholders of BVI entities. In our fifth episode, Director of Client Services Amy Roost and Global Head of Investment Funds, Philip Graham discuss the following: Private Investment Funds (PIFs), what they are and why they were introduced the various ways in which you can determine whether this new regime affects your BVI entity the need for PIFs to apply to be recognised by the Financial Services Commission in the BVI on or before the June 30, 2020 deadline the appl...2020-06-0808 min
Substance on SubstanceThe Funds Download - The Great Recession - when things go horribly wrongWhen things go horribly wrong; Lehman, Madoff and the global financial crisis of 2008/2009
In the third episode of our Funds Download podcast our host and the Global Head of Funds and Regulatory, Philip Graham, is joined by the Co-Head of Funds and Regulatory in the Cayman Islands, Matt Taber, the Global Head of Dispute Resolution, Phillip Kite and the Head of Dispute Resolution in the Cayman Islands, Nick Hoffman, to share their collective insights and knowledge acquired from the crash in 2008 and its aftermath.2020-06-0217 minThe Funds DownloadThe Great Recession - when things go horribly wrongWhen things go horribly wrong; Lehman, Madoff and the global financial crisis of 2008/2009In the third episode of our Funds Download podcast our host and the Global Head of Funds and Regulatory, Philip Graham, is joined by the Co-Head of Funds and Regulatory in the Cayman Islands, Matt Taber, the Global Head of Dispute Resolution, Phillip Kite and the Head of Dispute Resolution in the Cayman Islands, Nick Hoffman, to share their collective insights and knowledge acquired from the crash in 2008 and its aftermath.2020-06-0217 minPractically SpeakingThe liquidation process for BVI companiesOur podcast series Practically Speaking, was launched to provide our listeners with practical advice and insights on issues applicable to stakeholders of BVI entities. In our fourth episode, Transactional Partner Rachel Graham and Director of Fiduciary & Custodial Kerry Graziola discuss the following: the liquidation process in the BVI the external factors that might affect how quickly the company can be liquidated how to reorganise the company to help simplify the liquidation process the on-going duties and annual reporting obligations under the economic substance regime Our recently updated article on Bringing your BVI company to an end: st...2020-05-2806 min
Substance on SubstanceThe Funds Download - A shadow over the global economyIn the second episode of our Funds Download podcast, our host and the global head of Funds and Regulatory, Philip Graham, is joined by the co-head of Funds and Regulatory in the Cayman Islands, Matt Taber, the global head of Dispute Resolution, Phillip Kite, and the head of Dispute Resolution in the Cayman Islands, Nick Hoffman. They relive the events of the financial crises of 2008/2009 and examine what valuable lessons were learnt by the Funds industry as a result.2020-05-2718 minThe Funds DownloadA shadow over the global economyIn the second episode of our Funds Download podcast, our host and the global head of Funds and Regulatory, Philip Graham, is joined by the co-head of Funds and Regulatory in the Cayman Islands, Matt Taber, the global head of Dispute Resolution, Phillip Kite, and the head of Dispute Resolution in the Cayman Islands, Nick Hoffman. They relive the events of the financial crises of 2008/2009 and examine what valuable lessons were learnt by the Funds industry as a result.2020-05-2618 minPractically SpeakingPushing the envelopeDuring this episode of our Practically Speaking podcast series, Rachel Graham and Amy Roost discuss the ins and outs of de-enveloping BVI companies, outlining:which companies may want to de-envelope and why commonly used structures involving BVI companies for holding real estate and other assetsoptions available for de-enveloping assets from these structureskey steps to be taken before de-enveloping can occur, including the need for the company to be in good standingrelevant timings2020-05-1407 minThe Funds DownloadA view from the AmericasIn our first episode Global Head of Investment Funds, Philip Graham, and Partner Matt Taber, examine the investment funds market in Q1 2020, and make projections of the emerging issues as we step into Q2. Key takeaways“Business as usual” in January and FebruaryRegulatory changes including the new private fund regimesBlacklists, volatility and distressed funds in MarchA loft is as good a place as any to record a podcast2020-05-1109 minTake 10CEFC Shanghai - landmark common law recognition of PRC administrators in Hong Kong. Would BVI/Cayman Islands follow suit?In this episode of our Take 10 podcast, Andrew Johnstone and Ian Mann discuss the decision in CEFC Shanghai: the first PRC office holder to be recognised under the common law in Hong Kong.Key Takeaways:CEFC ShanghaiCEFC Shanghai was a PRC company in Administration. The Administrators sought common law recognition in Hong Kong in order to stop a garnishee order nisi from being made final.The House of Lords decision of Galbraith v Grimshaw [1910] AC 508 not followed, but obiter dicta in Privy Council decision of Grupo Torras SA v Al-Sabah [2014] 2 CLC 636 followed.The decision i...2020-05-0710 min
Substance on SubstanceThe Funds Download - A view from the AmericasIn our first episode Global Head of Investment Funds, Philip Graham, and Partner Matt Taber, examine the investment funds market in Q1 2020, and make projections of the emerging issues as we step into Q2. 2020-05-0709 minTake 10Directors' Duties during troubling timesIn this episode of our Take 10 podcast, Julie Engwirda and Ian Mann discuss directors’ duties and obligations where a company is experiencing financial pressure. Key Takeaways: 2020 has seen the global economy affected in unprecedented ways. With major loss of revenue, global stock market crashes, and millions of jobs affected, directors across all sectors are having to reassess their businesses and plan for an uncertain future. Directors will need to adapt to the changing landscape to ensure survival of their businesses, with an emphasis on maximising cash flow whilst minimising expenses. Having cash flow issues does not necess...2020-04-2310 minPractically SpeakingThe impact of Covid-19 on Economic Substance compliance and directors dutiesTransactional Partner Rachel Graham and Director of Client Services Amy Roost host the first episode of our new podcast series: Practically Speaking. This series was launched to provide our listeners with practical advice and insights on issues applicable to stakeholders in BVI. We hope that the series will be of interest to directors, shareholders, trustees and others concerned with BVI entities. In this episode, Rachel Graham and Amy Roost discuss two topics: the implications of COVID-19 on economic substance compliance and reporting, and matters directors should be considering if they find their company is moving towards financial d...2020-04-1610 min
Substance on SubstanceSOS Substance on Substance – Our final thoughtsIn the fifteenth and final episode of Harneys’ Substance on Substance series for 2019, Philip Graham and Joshua Mangeot (plus special guest George Weston) examine the journey of economic substance in the BVI to date, from the inception of the Act to the final ITA Rules and discuss how BVI entities are coming to terms with these developments.
Key takeaways
-We are seeing an increasing level of conversancy with the key concepts of economic substance, following the draft ITA Code being released in April and the final Rules being released in October
-We are seeing an increasing amount of entities cl...2020-01-2807 min
Substance on SubstanceSOS Substance on Substance - Timing of compliance and reporting obligationsSOS Substance on Substance: Episode fourteen – Timing of compliance and reporting obligations
In the fourteenth instalment of Harneys’ Substance on Substance series, Philip Graham and Joshua Mangeot discuss timing for compliance and reporting and address the ongoing obligation on BVI companies and other legal entities to identify “relevant activities”. This obligation came into effect from 1 October 2019 but is distinct from the reporting obligations which will generally commence in 2020 (except in the case of previously “exempt persons”, who now need to be reporting beneficial ownership information if they carry on any relevant activities).
Key Takeaways
• The amendments to the Beneficial Own...2020-01-2708 min
Substance on SubstanceSOS Substance on Substance - Impact on directors and fiduciary service providersSOS Substance on Substance: Episode thirteen – What should directors and fiduciary service providers be considering?
In the thirteenth instalment of Harneys’ Substance on Substance series, Joshua Mangeot and special guest George Weston discuss BVI directors’ duties in the context of the Economic Substance (Companies and Limited Partnerships) Act 2018 (the ES Act) and provide an update on amendments to the Beneficial Ownership Secure Search System Act 2017 (the BOSS Act).
Key takeaways:
• We have received numerous queries from directors and officers of BVI companies and fiduciary and corporate services providers (CSPs) regarding their responsibilities in this area – the majority of questions relate to BVI com...2020-01-2609 min
Substance on SubstanceSOS Substance on Substance - Economic substance legislation and liquidationsEconomic substance legislation and its impact on liquidations
In the twelfth instalment of Harneys’ Substance on Substance series, Philip Graham and Joshua Mangeot discuss how BVI entities currently in liquidation or considering this option should approach the BVI economic substance (ES) requirements. They also consider the position of liquidators and points they should be aware of in this regard.
Key takeaways:
• We are not seeing many clients move to liquidate BVI vehicles as, once they have classified themselves, many BVI entities find they are either (i) exempt from the ES requirements as they are not carrying on any “relevant activity” or are “...2020-01-2506 min
Substance on SubstanceSOS Substance on Substance - ITA guidance to BVI industry participantsIn the eleventh instalment of Harneys’ Substance on Substance series, Philip Graham and Josh Mangeot summarise the presentation which representatives from the BVI Government, BVI Finance and the International Tax Authority (ITA) delivered to BVI industry participants on 16 October 2019.
Key takeaways:
• The ITA Rules were formally published on 9 October 2019. The rules with statutory effect under the BVI Beneficial Ownership (Secure Search System) Act 2017 (BOSS) will come into effect when a further amendment to BOSS is enacted. This is expected to be passed by the BVI House of Assembly in one sitting within the next few days, as the proposed chan...2020-01-2408 min
Substance on SubstanceSOS Substance on Substance - the RulesClassify, Classify, Classify
In the tenth instalment of Harneys’ Substance on Substance series, Philip Graham and Josh Mangeot discuss the release of the final version of the guidance formerly known as the “Code”, which was published by the ITA on 9 October 2019 as its newly-titled Rules and explanatory notes (the Rules).
Key Takeaways
• With the certainty provided by the final Rules, it is vital that all directors and operators of BVI entities classify their entities as a matter of priority, if they have not already done so. There is an ongoing legal obligation on BVI entities under the Beneficial Ownership (Secure Search S...2020-01-2306 min
Substance on SubstanceSOS Substance on Substance - Intellectual Property BusinessIn the ninth instalment of Harneys’ Substance on Substance series, Philip Graham and Josh Mangeot discuss points to consider if your BVI entity may hold intellectual property (IP).
Key takeaways:
• A key focus of the EU and OECD has been on IP, as part of the base erosion and profit-shifting (BEPS) initiative.
• The BVI definition of IP rights includes the typical types of IP (eg, copyrights, patents, trademarks, brand and technical know-how) although the list is non-exhaustive. If you are in doubt as to whether an asset may be IP, we recommend that you take legal advice.
• It is importan...2020-01-2206 min
Substance on SubstanceSOS Substance on Substance – Substance Solutions in the BVIIn the eighth instalment of the Harneys Substance on Substance series, Philip Graham and Ross Munro discuss Substance Solutions in the BVI.
Episode Eight
Phil and Ross highlight the options available to BVI entities once they have classified themselves under the Economic Substance legislation and have determined that they need to put substance in place in the BVI.
Key takeaways:
• After the classification process is completed, BVI entities who have determined that they are conducting “holding business” will ask whether their current set up in the BVI is enough to meet their Economic Substance obligations.
• There are a large number o...2020-01-2107 min
Substance on SubstanceSOS Substance on Substance – Holding BusinessIn the seventh instalment of Harneys’ Substance on Substance series, Philip Graham and Joshua Mangeot give an update on timing of the ITA Code and consider some FAQs around the “holding business” and “finance and leasing business” definitions.
Episode Seven
Phil and Josh discuss the “holding business” and “finance and leasing business” definitions under the economic substance legislation and provide some practical examples of how Harneys considers the law will be applied in practice.
Key takeaways:
• We are waiting for the International Tax Authority (ITA) to publish its final Code. We understand the enabling legislation required for this to happen has been read...2020-01-2008 min
Substance on SubstanceSOS Substance on Substance - What should directors be doing now?In the sixth episode of Harneys’ Substance on Substance series, Philip Graham and Joshua Mangeot examine good governance principles for BVI entities in the context of the classification process and what entities should be doing now in light of their statutory obligations
Episode Six
Phil and Josh discuss the release of the BVI Economic Substance Code (the Code) and the responsibilities of directors of BVI companies.
Key takeaways:
• The House of Assembly postponed the second and third reading of the Beneficial Ownership Secure Search System (Amendment) No 2 Act, 2019 due to Hurricane Dorian; they will meet next week to pass the law...2020-01-1906 min
Substance on SubstanceSOS Substance on Substance - Common misunderstandings regarding the ES timetableIn the fifth episode of Harneys’ Substance on Substance series, Philip Graham and Joshua Mangeot confirm that the first economic substance (ES) compliance “financial period” has commenced for all BVI companies and other relevant legal entities and also address some common misunderstandings regarding the ES timetable.
Episode Five
Phil and Josh discuss the release of the finalised International Tax Authority (ITA) ES Code, confusion on classification and compliance deadlines, and to which types of entity the ES requirements apply.
Key takeaways:
• The final form of the ITA Code is known and it should be available for formal release to the p...2020-01-1804 min
Substance on SubstanceSOS Substance on Substance - Re-domiciliationIn the fourth episode of Harneys’ Substance on Substance series, Philip Graham and Josh Mangeot discuss the option of continuing a BVI entity out of the jurisdiction (sometimes called a “re-domiciliation” or “migration”) as a response to the economic substance legislation.
Episode Four
Phil and Josh discuss (a) the global trend towards adopting economic substance (ES) requirements, (b) the need to classify individual entities’ activities and tax status to determine whether they are subject to the BVI ES requirements at all, and (c) the importance of that classification and properly weighing the costs of compliance against the transaction costs and ongoing oper...2020-01-1707 min
Substance on SubstanceSOS Substance on Substance - Implications of The BOSS (Amendment) No 2 Act, 2019In the third installment of Harneys’ SOS Series, Phil Graham and Josh Mangeot examine the implications of the first reading of the BOSS (Amendment) No 2 Act, 2019 in the House of Assembly, which is the enabling legislation for bringing into force the International Tax Authority (ITA)’s economic substance Code in the BVI. It is expected that the second and third reading will take place in the House as soon as possible, and will come into law shortly thereafter.
Episode Three
Phil and Josh discuss the process involved in the Code being finalised in the BVI and what steps entities should be t...2020-01-1605 min
Substance on SubstanceSOS Substance on Substance - Entity classificationThe SOS series was launched to provide our audience with the latest news on developments in the Economic Substance space, cutting through the confusion to deliver expert guidance from our Economic Substance Analysis team.
Episode 2
In the second episode, Phil Graham and Josh Mangeot discuss the key aspects of an industry update provided by BVI Finance on 12 July 2019. The update clarified that the commencement dates for entities’ first “financial period” remain unchanged and discussed the BVI International Tax Authority (ITA)’s stated approach to the use of its investigation powers as they relate to BVI entities, registered agents and other corporat...2020-01-1505 min
Substance on SubstanceSOS Substance on Substance - Timing updates and classification requirementsHarneys launches its S.O.S. series, delivering hot takes on critical topics around the Economic Substance legislation.
Each episode will give the very latest updates on this ever-changing environment, with an aim to provide consistency and certainty for our audience.
First up, Phil Graham and Josh Mangeot discuss the immediate implications of the presentation Neil Smith, Director of International Business delivered to the BVI private sector on Wednesday 10th July.
Key takeaways:
• An update on the timing of the release of the Code and Guidance Notes
• A steer from the ITA on what they will be expe...2020-01-1408 minTake 10The role of Emmadart in China Milk and China ShanshuiIn this episode of our Take10 podcast, Ian Mann and Dayton Riddle discuss whether a board of directors of a Cayman Islands company has the right to petition to wind up the company without shareholder approval, for restructuring or insolvency purposes.We hope you have enjoyed our Take 10 series this year and we look forward to providing you with more insightful podcasts in the new year.Stayed tuned and thanks for listening!2019-12-1509 minTake 10Derivative ActionsIn this episode of our Take 10 podcast, Ian Mann and Julie Engwirda discuss the shareholder remedy of derivative actions, particularly multiple derivative actions in the British Virgin Islands.2019-12-0310 minTake 10The Privy CouncilIn this episode of our Take10 podcast, Ian Mann and Jayesh Chatlani discuss their experiences in the Privy Council, the final court of appeal for offshore Caribbean jurisdictions.2019-10-2910 minTake 10Supreme TycoonIn this episode of our Take10 podcast, Ian Mann and Dayton Riddle discuss common law recognition and the case of Supreme Tycoon.Key takeaways: The Hong Kong Court determined that it could recognise a foreign voluntary liquidation of a Company.The Court distinguished Supreme Tycoon from Lord Sumption’s obiter dicta in Singularis noting that the key is whether the foreign proceeding was “a process of collective enforcement of debts for the benefit of a general body of creditors.”The mere fact that the foreign liquidation was voluntary did not bar the Hong Kong Court from recognition...2019-10-0209 minTake 10Unfair prejudice and quasi partnerships - the Dinglis judgmentIn this episode of our Take10 podcast, Ian Mann and Gareth Murphy discuss lessons learned from the recent shareholder case of Dinglis.Key takeaways: There was no quasi-partnership;There was no unfair prejudice for breach of understandings;There was unfair prejudice for breach of fiduciary duties; andA minority discount applies as no quasi-partnership existed.2019-09-0110 min
Exploring the Funds HubThe BVI and Cayman Islands are tax-neutral jurisdictions. What does this mean for your fund?Primarily, it means that BVI and Cayman companies are not subject to corporate taxation on income, capital gains or share transfers. Instead, the BVI and Cayman governments raise revenue through other means such as income taxes on resident individuals (in the BVI), real estate taxes, sales and import duties and, in relation to corporate vehicles, through incorporation and licence fees.
In Cayman the government goes one step further and will issue a tax exemption certificate to a typical Cayman fund (in return for a fee) confirming that for a period of 20 years (where the fund is a company) the...2015-12-2903 min