Foundations
(Continuance) (Jersey) Regulations 2009
Part 1
Interpretation and recognized
entities
1 Interpretation
(1) In
these Regulations –
“Companies Law”
means the Companies (Jersey) Law 1991;
“company” has
the same meaning as in Companies Law;
“Foundations Law”
means the Foundations (Jersey) Law 2009;
“recognized
entity” means a body corporate incorporated or established outside Jersey
that is within a class of bodies corporate designated by the Minister under
Regulation 2.
(2) For
the purposes of these Regulations a foundation or a recognized entity is
solvent if, at the relevant time –
(a) it has
no liabilities;
(b) it has
liabilities that have fallen due, or that will fall due within 6 months,
that it will be able to discharge in full within 6 months;
(c) it has
other liabilities that it will be able to discharge in full as they fall due;
or
(d) it has
a combination of the liabilities mentioned in sub-paragraph (b) and (c).
(3) If
a penalty is specified after a provision of these Regulations, it indicates that
a contravention of the provision is an offence that is punishable by a penalty
not exceeding the penalty so specified.
2 Minister
may designate bodies corporate to be recognized entities
(1) The
Minister may designate classes of bodies corporate that are incorporated or
established outside Jersey to be recognized entities for the purposes of these
Regulations.[1]
(2) The Minister may
designate classes of bodies corporate under paragraph (1) by notice
published in a manner that will bring the notice to the attention of those who,
in the opinion of the Minister, are likely to be affected by it.
Part 2
Companies and Recognized entities may continue as foundations
Companies continuing as foundations
3 Company
may be incorporated as a foundation
If the requirements of this Part are complied with, a company may
continue as a foundation.
4 Notice
of proposed incorporation to be published
(1) An application to the
Commission by a company to be incorporated as a foundation can only be made by
a qualified person acting on behalf of the company.
(2) However, the qualified
person must first publish a notice of the intention of the company to apply to
the Commission for the company to be incorporated as a foundation.
(3) The notice must be
published at least once in the Jersey Gazette.
(4) On or before publishing
the notice under paragraph (3), the qualified person must send a copy of
the notice –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known by the qualified person to have a claim against the company exceeding
£5,000; and
(b) to
the registrar.
(5) The notice must state
whether, were the company to be incorporated as a foundation, the foundation would,
on its incorporation be solvent.
(6) The notice must also
contain a statement that a person aggrieved by the proposed incorporation may,
within the 28 days after the first publication of the notice, apply to the
Royal Court for an order to restrain the proposed incorporation.
(7) If, within the
28 days after the first publication of the notice a person aggrieved by
the proposed incorporation applies to the Royal Court for an order to restrain
the proposed incorporation, the Royal Court may make the order applied for.
(8) The Court may not make
the order applied for unless it is satisfied that the interests of the person
who made the application to the Court would be unfairly prejudiced if the
proposed incorporation were to take place.
(9) The Court may make the
order subject to such terms, if any, as it thinks fit.
5 Continuance
as an insolvent foundation
(1) This Regulation applies
if the notice under Regulation 4 does not state that, were the company to
be incorporated as a foundation, the foundation would, on its incorporation, be
solvent.
(2) The qualified person
acting on behalf of the company may not apply to the Commission for the company
to be incorporated as a foundation unless an Act of the Royal Court has been
obtained stating that the incorporation of the company as a foundation would
not be prejudicial to the interests of its creditors.
(3) The qualified person
acting on behalf of the company must send a copy of its application to the
Royal Court –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known to the qualified person, to have a claim against the company exceeding
£5,000; and
(b) to
the registrar.
(4) The Court must not hear
the application for at least 28 days after it is made to the Court.
6 Application
for incorporation of company as a foundation
(1) An application by a
qualified person for the incorporation of a company as a foundation must be
made to the Commission in a form and manner published by the Commission.
(2) It must be accompanied
by –
(a) a
copy of the charter and abridged regulations the foundation would have if it
were to be incorporated under the Foundations Law;
(b) unless
another method of payment is agreed, the published fee;
(c) if
any part of the proposed charter or abridged regulations is not in English, a
translation of the part into English;
(d) evidence
satisfactory to the Commission that Regulation 4 has been complied with; and
(e) if
Regulation 5 applies, a copy of the Act of the Royal Court.[2]
(3) The application must
also be accompanied by a certificate signed by the qualified person making the
application certifying –
(a) that
a qualified person, named in the certificate, would become the qualified member
of the council of the foundation were the company to be incorporated as a
foundation;
(b) that
the qualified person who signed the certificate is in possession of regulations
for the foundation that have been approved by the company and by the qualified
person named in the certificate;
(c) that
the address in Jersey, specified in the certificate, is the business address in
Jersey of the qualified person named in the certificate; and
(d) that
a person has been selected who would become the guardian of the foundation in
accordance with its regulations were the company to be incorporated as a
foundation.
(4) The application must
also be accompanied by a certificate signed by the qualified person making the
application certifying –
(a) that
each shareholder in the company has approved the application; and
(b) that,
if the company becomes incorporated as a foundation, the interests of the
creditors of the company will not be unfairly prejudiced.
(5) The application and any
document accompanying it must be authenticated in any manner determined by the
Commission.
(6) For the purpose of
paragraph (2)(d), Regulation 4 has not been complied with
until –
(a) the
28 days mentioned in Regulation 4(7) expire; or
(b) if during
those 28 days a person applies to the Royal Court for an order to restrain
the proposed incorporation, the application is withdrawn or is determined,
whichever last occurs.
(7) The Commission must, as
soon as practical, forward to the registrar the documents that accompanied the
application.
7 Commission
may require security for its expenses
(1) Following receipt of an
application under Regulation 6, the Commission may –
(a) estimate
the likely amount of its expenses in dealing with the application; and
(b) require
the company to give it security for that amount, to the satisfaction of the
Commission.
(2) If the Commission
requires security to be given under paragraph (1)(b), it need take no
further action in respect of the application until the security has been given.
(3) If the Commission, in
the course of considering the application, subsequently forms the view that its
expenses will be of a higher amount, it may require the company to give it
security for that higher amount, to its satisfaction.
(4) If the Commission
requires security for a higher amount to be given under paragraph (3), it
may refuse to consider the application further until that security has been
given.
(5) On determining the
application, the Commission must –
(a) ascertain
the actual amount of its expenses; and
(b) inform
the qualified person who made the application of the amount.
(6) The expenses shall be a
debt due and payable by the company to the Commission.
(7) Without prejudice to
any other mode of recovery, the Commission may recover the expenses by
realising the security if the expenses are not paid by the company on demand.
8 Commission
may require further information
(1) Following receipt of an
application under Regulation 6, the Commission may require the qualified
person to supply to the Commission such other document or information as the
Commission may reasonably require to determine whether to accept the
application.
(2) Any such document or
information must be authenticated in any manner determined by the Commission.
(3) If the Commission
requires a document or information under paragraph (1), it need take no
further action in respect of the application until the document or information
has been supplied.
9 Refusal
by Commission to accept an application to incorporate a company as a foundation
(1) The Commission may
refuse to accept an application for the incorporation of a company as a
foundation if it is satisfied that it is necessary to do so –
(a) in
order to protect the reputation and integrity of Jersey in financial and
commercial matters;
(b) in
the best economic interests of Jersey; or
(c) to
protect the international standing of Jersey.
(2) The Commission may also
refuse to accept an application for the incorporation of a company as a
foundation, if –
(a) the
Commission is not satisfied that the proposed objects of the foundation are
lawful; or
(b) the
registrar advises the Commission that the proposed name of the foundation is
misleading or otherwise undesirable or that it does not end with the word
“Foundation” or a word or words that mean that word in a foreign
language.
(3) If the Commission
refuses an application, it must, within 28 days, inform the qualified
person who made the application of the refusal and the reason for the refusal.
(4) The qualified person
may, on behalf of the company, within 28 days of being informed of the
refusal, appeal to the Royal Court.
(5) An appeal on a refusal
under paragraph (1) may be made on the grounds that the refusal by the
Commission to accept the application was unreasonable in all the circumstances
of the case.
(6) An appeal on a refusal
under paragraph (2)(a) may be made on the grounds that the proposed
objects of the foundation are lawful.
(7) An appeal on a refusal
under paragraph (2)(b) may be made on the grounds –
(a) that
the proposed name of the foundation is not misleading or otherwise undesirable;
or
(b) that the
proposed name does end with the word “Foundation” or a word or
words that mean that word in a foreign language.
10 Commission to
instruct registrar to incorporate a company as a foundation
The Commission must instruct the registrar to incorporate a company
as a foundation if –
(a) the Commission accepts
an application from a qualified person for the incorporation of the company as
a foundation; or
(b) an appeal to the Royal
Court by the qualified person under Regulation 9 is successful.
11 Incorporation of
a company as a foundation
(1) To incorporate a
company as a foundation the registrar must enter in the register –
(a) the
name of the foundation as shown in its proposed charter;
(b) the
name and business address in Jersey of the qualified person who is to be the
qualified member of the council of the foundation as shown in the certificate
mentioned in Regulation 6(3); and
(c) the
name of the company to be incorporated as the foundation,
and date the entries.
(2) Upon doing so the
registrar must –
(a) issue
the foundation with a registration number and inform the qualified member of
the council of the foundation of the incorporation of the foundation and its
registration number; and
(b) remove
the name of the company from the register kept under the Companies Law and add
to that register a note that the company has ceased to be incorporated as a
company and has been incorporated as a foundation, giving the name and
registered number of the foundation.
(3) An entry in the
register of the name of the foundation is conclusive evidence –
(a) that,
on the date mentioned in paragraph (1), the company was incorporated as a
foundation; and
(b) that
the requirements of the Foundations Law and this Part were complied with in
respect of all matters precedent or incidental to the incorporation of the
company as a foundation.
12 Effect of
incorporation of a company as a foundation
(1) From the date of the
incorporation of a company as a foundation under the Foundations Law, it ceases
to be a company incorporated under the Companies Law but continues as a
foundation with the name specified in respect of it in the register.
(2) On the incorporation of
the company as a foundation –
(a) the
property and rights to which the company was entitled immediately before the incorporation
of the foundation continue as the property and rights of the foundation;
(b) the
foundation becomes subject to any criminal and civil liabilities, and any
contracts, debts and other obligations, to which the company was subject
immediately before its incorporation as a foundation; and
(c) any
action and other legal proceedings that, immediately before the incorporation
of the company as a foundation, were pending by or against the company may be
continued by or against the foundation.
(3) On the incorporation of
the company as a foundation the qualified person named under Regulation 6(3)(a)
shall be taken to have become the qualified member of the council of the
foundation under Article 23(1) of the Foundations Law.
Recognized entities continuing as foundations
13 Recognized
entity may be incorporated as a foundation
If the requirements of this Part are complied with, a recognized
entity may continue as a foundation.
14 Notice of
proposed incorporation to be published
(1) An application to the
Commission by a recognized entity to be incorporated as a foundation can only
be made by a qualified person acting on behalf of the entity.
(2) However, the qualified
person must first publish a notice of the intention of the recognized entity to
apply to the Commission for the entity to be incorporated as a foundation.
(3) The notice must be
published in such manner as the registrar may direct.
(4) On or before publishing
the notice under paragraph (3), the qualified person must send a copy of
the notice –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known by the qualified person to have a claim against the recognized entity
exceeding £5,000; and
(b) to
the registrar.
(5) The notice
must –
(a) state
that the recognized entity specified in the notice will be seeking to be
incorporated as a foundation;
(b) specify
the jurisdiction in which the recognized entity is established or incorporated;
and
(c) specify
the type of recognized entity that it is.
(6) The notice must also
state whether, were the recognized entity to be incorporated as a foundation,
the foundation would, on its incorporation be solvent.
(7) The notice must also
contain a statement that a person aggrieved by the proposed incorporation may,
within the 28 days after the first publication of the notice, apply to the
Royal Court for an order to restrain the proposed incorporation.
(8) If, within the
28 days after the first publication of the notice a person aggrieved by
the proposed incorporation applies to the Royal Court for an order to restrain
the proposed incorporation, the Royal Court may make the order applied for.
(9) The Court may not make
the order applied for unless it is satisfied that the interests of the person
who made the application would be unfairly prejudiced if the proposed
incorporation were to take place.
(10) The Court may make the order
subject to such terms, if any, as it thinks fit.
15 Continuance as an
insolvent foundation
(1) This Regulation applies
if the notice under Regulation 14 does not state that, were the recognized
entity to be incorporated as a foundation, the foundation would, on its
incorporation, be solvent.
(2) The qualified person
acting on behalf of the recognized entity may not apply to the Commission for
the recognized entity to be incorporated as a foundation unless an Act of the
Royal Court has been obtained stating that the incorporation of the recognized
entity as a foundation would not be prejudicial to the interests of its
creditors.
(3) The qualified person
acting on behalf of the recognized entity must send a copy of its application
to the Royal Court –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known to the qualified person, to have a claim against the recognized entity
exceeding £5,000; and
(b) to
the registrar.
(4) The Court must not hear
the application for at least 28 days after it is made to the Court.
16 Application for incorporation of recognized entity as a foundation
(1) An application by a
qualified person for the incorporation of a recognized entity as a foundation
must be made to the Commission in a form and manner published by the
Commission.
(2) It must be accompanied
by –
(a) a
copy of the charter and abridged regulations the foundation would have if it
were to be incorporated under the Foundations Law;
(b) unless
another method of payment is agreed, the published fee;
(c) if
any part of the proposed charter or abridged regulations is not in English, a
translation of the part into English;
(d) evidence
satisfactory to the Commission that Regulation 14 has been complied with; and
(e) if
Regulation 15 applies, a copy of the Act of the Royal Court.[3]
(3) The application must
also be accompanied by a certificate signed by the qualified person making the
application certifying –
(a) that
a qualified person, named in the certificate, would become the qualified member
of the council of the foundation were the recognized entity to be incorporated
as a foundation;
(b) that
the qualified person who signed the certificate is in possession of regulations
for the foundation that have been approved by the recognized entity and by the
qualified person named in the certificate;
(c) that
the address in Jersey, specified in the certificate, is the business address in
Jersey of the qualified person named in the certificate; and
(d) that
a person has been selected who would become the guardian of the foundation in
accordance with its regulations were the recognized entity to be incorporated
as a foundation.
(4) The application must
also be accompanied by a certificate signed by the qualified person making the
application certifying –
(a) that
the laws of the jurisdiction in which the recognized entity is established or
incorporated do not prohibit the entity from making the application;
(b) that
if those laws or the constitution of the recognized entity requires that an
authorization be given for the application, that it has been given;
(c) that,
if the recognized entity becomes incorporated as a foundation, it will, in due
course, cease to be an entity incorporated or established under the law of the
jurisdiction in which it was previously incorporated or established; and
(d) that,
if the recognized entity becomes incorporated as a foundation, the interests of
the creditors of the entity will not be unfairly prejudiced.
(5) The
application and any document accompanying it must be authenticated in any
manner determined by the Commission.
(6) For
the purpose of paragraph (2)(d), Regulation 14 has not been complied
until –
(a) the
28 days mentioned in Regulation 14(7) expire; or
(b) if during
those 28 days a person applies to the Royal Court for an order to restrain
the proposed incorporation, the application is withdrawn or is determined,
whichever last occurs.
(7) The
Commission must, as soon as practical, forward to the registrar the documents
that accompanied the application.
17 Commission
may require security for its expenses
(1) Following
receipt of an application under Regulation 16, the Commission
may –
(a) estimate
the likely amount of its expenses in dealing with the application; and
(b) require
the recognized entity to give it security for that amount, to the satisfaction
of the Commission.
(2) If
the Commission requires security to be given under paragraph (1)(b), it
need take no further action in respect of the application until the security
has been given.
(3) If
the Commission, in the course of considering the application, subsequently
forms the view that its expenses will be of a higher amount, it may require the
recognized entity to give it security for that higher amount, to its
satisfaction.
(4) If
the Commission requires security for a higher amount to be given under
paragraph (3), it may refuse to consider the application further until
that security has been given.
(5) On
determining the application, the Commission must –
(a) ascertain
the actual amount of its expenses; and
(b) inform
the qualified person who made the application of the amount.
(6) The
expenses shall be a debt due and payable by the recognized entity to the
Commission.
(7) Without
prejudice to any other mode of recovery, the Commission may recover the
expenses by realizing the security if the expenses are not paid by the
recognized entity on demand.
18 Commission
may require further information
(1) Following
receipt of an application under Regulation 16, the Commission may require
the qualified person to supply to the Commission such other document or
information as the Commission may reasonably require to determine whether to
accept the application.
(2) Any
such document or information must be authenticated in any manner determined by
the Commission.
(3) If
the Commission requires a document or information under paragraph (1), it
need take no further action in respect of the application until the document or
information has been supplied.
19 Refusal by
Commission to accept an application to incorporate a recognized entity as a
foundation
(1) The
Commission may refuse to accept an application for the incorporation of a
recognized entity as a foundation if it is satisfied that it is necessary to do
so –
(a) in
order to protect the reputation and integrity of Jersey in financial and
commercial matters;
(b) in
the best economic interests of Jersey; or
(c) to
protect the international standing of Jersey.
(2) The
Commission may also refuse to accept an application for the incorporation of a
recognized entity as a foundation, if –
(a) the
Commission is not satisfied that the proposed objects of the foundation are
lawful; or
(b) the
registrar advises the Commission that the proposed name of the foundation is
misleading or otherwise undesirable or that it does not end with the word
“Foundation” or a word or words that mean that word in a foreign
language.
(3) If
the Commission refuses an application, it must, within 28 days, inform the
qualified person who made the application of the refusal and the reason for the
refusal.
(4) The
qualified person may, on behalf of the recognized entity, within 28 days
of being informed of the refusal, appeal to the Royal Court.
(5) An
appeal on a refusal under paragraph (1) may be made on the grounds that
the refusal by the Commission to accept the application was unreasonable in all
the circumstances of the case.
(6) An
appeal on a refusal under paragraph (2)(a) may be made on the grounds that
the proposed objects of the foundation are lawful.
(7) An
appeal on a refusal under paragraph (2)(b) may be made on the
grounds –
(a) that
the proposed name of the foundation is not misleading or otherwise undesirable;
or
(b) that
the proposed name does end with the word “Foundation” or a word or
words that mean that word in a foreign language.
20 Commission
to instruct registrar to incorporate a recognized entity as a foundation
The Commission must
instruct the registrar to incorporate a recognized entity as a foundation
if –
(a) the
Commission accepts an application from a qualified person for the incorporation
of the recognized entity as a foundation; or
(b) an
appeal to the Royal Court by the qualified person under Regulation 19 is
successful.
21 Incorporation of
a recognized entity as a foundation
(1) To
incorporate a recognized entity as a foundation the registrar must enter in the
register –
(a) the
name of the foundation as shown in its proposed charter;
(b) the
name and business address in Jersey of the qualified person who is to be the
qualified member of the council of the foundation as shown in the certificate
mentioned in Regulation 16(3); and
(c) the
name of the recognized entity to be incorporated as the foundation and the name
of the jurisdiction in which it is established or incorporated,
and date the entries.
(2) Upon
doing so the registrar must –
(a) issue
the foundation with a registration number and inform the qualified member of
the council of the foundation of the incorporation of the foundation and its
registration number; and
(b) inform
the appropriate official or public body in the jurisdiction mentioned in
paragraph (1)(c) that the entity has been incorporated as a foundation.
(3) The
information to be provided under paragraph (2)(b) must be provided
electronically or by some other means of instantaneous or near instantaneous
transmission.
(4) An
entry in the register of the name of the foundation is conclusive
evidence –
(a) that,
on the date mentioned in paragraph (1), the recognized entity was
incorporated as a foundation; and
(b) that
the requirements of the Foundations Law and this Part were complied with in
respect of all matters precedent or incidental to the incorporation of the
recognized entity as a foundation.
22 Effect of
incorporation of a recognized entity as a foundation
(1) From
the date of the incorporation of a recognized entity as a foundation under the Foundations
Law, the recognized entity continues but as a foundation with the name specified
in respect of it in the register.
(2) On
the incorporation of the recognized entity as a foundation –
(a) the
property and rights to which the entity was entitled immediately before the
incorporation of the foundation continue as the property and rights of the
foundation;
(b) the
foundation becomes subject to any criminal and civil liabilities, and any
contracts, debts and other obligations, to which the entity was subject
immediately before its incorporation as a foundation; and
(c) any
action and other legal proceedings that, immediately before the incorporation
of the entity as a foundation, were pending by or against the entity may be
continued by or against the foundation.
(3) On
the incorporation of the recognized entity as a foundation the qualified person
named under Regulation 16(3)(a) shall be taken to have become the
qualified member of the council of the foundation under Article 23(1) of
the Foundations Law.
Part 3
Foundations may continue as
recognized entities
23 Foundation may
continue as a recognized entity
If the requirements of this Part are complied with, a foundation
ceases to be incorporated under the Foundations Law on being established or
incorporated as a recognized entity.
24 Notice of
proposed continuance of a foundation as a recognized entity to be published
(1) An application to the
Commission for permission for a foundation to be established or incorporated as
a recognized entity can only be made by the qualified member of its council
acting on behalf of the foundation.
(2) However, the qualified
member must first publish a notice of the intention of the foundation to apply
to the Commission for the foundation to be established or incorporated as a
recognized entity.
(3) The notice must be
published in such manner as the Commission may direct.
(4) On or before publishing
the notice under paragraph (3), the qualified person must send a copy of
the notice –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known by the qualified person to have a claim against the foundation exceeding
£5,000;
(b) to
the registrar; and
(c) to
the guardian of the foundation.
(5) The notice to the
guardian must be accompanied by a copy of the documents required to establish
or incorporate the foundation as a recognized entity.
(6) The notice published
under paragraph (3) must –
(a) state
that the foundation specified in the notice has decided to be established or
incorporated as a recognized entity of a type specified in the notice; and
(b) specify
the jurisdiction in which it is intended to establish or incorporate the
recognized entity.
(7) The notice must also
state whether, were the foundation to be established or incorporated as a
recognized entity, the recognized entity would, on its establishment or incorporation
be solvent.
(8) The notice must also
contain a statement that a person aggrieved by the proposed establishment or
incorporation of the foundation as a recognized entity may, within the
28 days after the first publication of the notice, apply to the Royal
Court for an order to restrain the proposed establishment or incorporation.
(9) If, within the
28 days after the first publication of the notice a person aggrieved by
the proposed establishment or incorporation of the foundation as a recognized
entity applies to the Royal Court for an order to restrain the proposed
establishment or incorporation, the Royal Court may make the order applied for.
(10) The Court may not make the
order applied for unless it is satisfied that the interests of the person who
made the application would be unfairly prejudiced if the proposed establishment
or incorporation were to take place.
(11) The Court may make the order
subject to such terms, if any, as it thinks fit.
25 Continuance as an
insolvent recognized entity
(1) This Regulation applies
where the notice under Regulation 24 does not state that, were the
foundation to be established or incorporated as a recognized entity, the
recognized entity would, on its establishment or incorporation, be solvent.
(2) The qualified member
acting on behalf of the foundation may not apply to the Commission for
permission for the foundation to be established or incorporated as a recognized
entity unless an Act of the Royal Court has been obtained stating that the
establishment or incorporation of the foundation as a recognized entity would
not be prejudicial to the interests of its creditors.
(3) The qualified member
acting on behalf of the foundation must send a copy of its application to the
Royal Court to each creditor who, after the qualified member has made
reasonable enquiries, is known by the qualified member to have a claim against
the foundation exceeding £5,000.
(4) The Court must not hear
the application for at least 28 days after it is made to the Court.
26 Application by
foundation for permission to be established or incorporated as a recognized
entity
(1) An application to the
Commission by the qualified member of the council of a foundation for
permission for the foundation to be established or incorporated as a recognized
entity must be made to the Commission in a form and manner published by the
Commission.
(2) It must be accompanied
by –
(a) unless
another method of payment of the amount is agreed, the published fee;
(b) the
approval of the application by the guardian of the foundation;
(c) evidence
satisfactory to the Commission that Regulation 24 has been complied with;
and
(d) if
Regulation 25 applies, a copy of the Act of the Royal Court.
(3) The application must
also be accompanied by a certificate signed by the qualified member certifying
that the laws of the jurisdiction in which the foundation proposes to continue
allow its continuance there as a recognized entity established or incorporated
under those laws and that those laws provide that upon the continuance of the
foundation as a recognized entity in that jurisdiction –
(a) the
property and rights to which the foundation is entitled immediately before its
establishment or incorporation as a recognized entity will become the property
and rights of the recognized entity;
(b) the
recognized entity will become subject to any criminal and civil liabilities,
and any contracts, debts and other obligations, to which the foundation is
subject immediately before its establishment or incorporation as a recognized
entity; and
(c) any
actions and other legal proceedings that, immediately before the establishment
or incorporation of the foundation as a recognized entity, are pending by or
against the foundation may be continued by or against the recognized entity.
(4) The application and any
document accompanying it must be authenticated in any manner determined by the
Commission.
(5) For the purpose of
paragraph (2)(c), Regulation 24 has not been complied
until –
(a) the
28 days mentioned in Regulation 24(8) expires; or
(b) if
during those 28 days a person applies to the Royal Court for an order to
restrain the proposed establishment, the application is withdrawn or is
determined,
whichever last occurs.
(6) The Commission must, as
soon as practical, forward to the registrar the documents that accompanied the
application.
27 Commission may
require security for its expenses
(1) Following receipt of an
application under Regulation 26, the Commission may –
(a) estimate
the likely amount of its expenses in dealing with the application; and
(b) require
the foundation to give it security for that amount, to the satisfaction of the
Commission.
(2) If the Commission
requires security to be given under paragraph (1)(b), it need take no
further action in respect of the application until the security has been given.
(3) If the Commission, in
the course of considering the application, subsequently forms the view that its
expenses will be of a higher amount –
(a) it
may require the foundation to give it security for that higher amount, to its
satisfaction; and
(b) it
may refuse to consider the application further until that security has been
given.
(4) On determining the
application, the Commission must –
(a) ascertain
the actual amount of its expenses; and
(b) inform
the qualified member of the council of the foundation of the amount.
(5) The expenses shall be a
debt due and payable by the foundation to the Commission.
(6) Without prejudice to
any other mode of recovery, the Commission may recover the expenses by
realizing the security if they are not paid by the foundation on demand.
28 Commission may
require further information
(1) Following receipt of an
application under Regulation 26, the Commission may require the qualified
member to supply to the Commission such other documents and information as the
Commission may reasonably require to determine whether to accept the
application.
(2) Any such document or
information must be authenticated in any manner determined by the Commission.
(3) If the Commission
requires a document or information under paragraph (1), it need take no
further action in respect of the application until the document or information
has been supplied.
29 Commission may
refuse an application
(1) The Commission may
refuse to accept an application by a foundation for permission for the
foundation to be established or incorporated as a recognized entity if it is
satisfied that it is necessary to do so –
(a) in
order to protect the reputation and integrity of Jersey in financial and
commercial matters;
(b) in
the best economic interests of Jersey; or
(c) to
protect the international standing of Jersey.
(2) If the Commission
refuses an application under paragraph (1), it must, within 28 days,
inform the qualified member who made the application of the refusal and the
reason for the refusal.
(3) The qualified member
may on behalf of the foundation, within 28 days of being informed of the
refusal, appeal to the Royal Court.
(4) An appeal on a refusal
under paragraph (1) may be made of the grounds that the refusal by the
Commission to accept the application was unreasonable in all the circumstances
of the case.
30 Commission to
give permission for a foundation to be established or incorporated as a
recognized entity
The Commission must give its permission for a foundation to be
established or incorporated as a recognized entity if –
(a) the Commission accepts
an application from the qualified member of the foundation for the
establishment or incorporation of the foundation as a recognized entity; or
(b) an appeal to the Royal
Court by the qualified member under Regulation 29 is successful.
31 Registrar to be
informed of continuance of a foundation as a recognized entity
(1) If a foundation becomes
established or incorporated as a recognized entity in accordance with
permission given by the Commission under this Part, the qualified person who
was the qualified member of the council of the foundation must, as soon as
practicable, inform the registrar accordingly.
(2) The information must be
given to the registrar in a form and manner, and must be accompanied by such
documents or evidence, as the registrar may publish.
(3) Upon the notice under
paragraph (1) being given to the registrar, the registrar must enter in
the register, in respect of the foundation, a note that –
(a) states
that the foundation has ceased to be a foundation because it has been
established or incorporated as a recognized entity;
(b) specifies
the name of the recognized entity and the type of recognized entity that it has
become;
(c) specifies
the jurisdiction in which the recognized entity is established or incorporated;
and
(d) specifies
the date on which the foundation was established or incorporated as a
recognized entity in that jurisdiction.
(4) The foundation ceases
to be incorporated under the Foundations Law on the date mentioned in paragraph (3)(d).
(5) An entry in the
register of a note in respect of a foundation under paragraph (3) is
conclusive evidence –
(a) that,
on the date mentioned in paragraph (3)(d), the foundation ceased to be
incorporated under the Foundations Law; and
(b) that
the requirements of the Foundations Law and this Part were complied with in
respect of the foundation ceasing to be a foundation under the Foundations Law.
(6) If a foundation becomes
established or incorporated as a recognized entity in accordance with
permission given by the Commission under this Part, the qualified person who
was the qualified member of the council of the foundation immediately before it
became established or incorporated as a recognized entity, must retain the
records or a copy of the records of the foundation that were in his or her
possession at that time for 10 years after the foundation ceased to be incorporated under the Foundations Law.
Part 4
Offences
32 Offences
(1) A
person must not, in connection with an application under these Regulations,
knowingly or recklessly provide to the Commission or to the
registrar –
(a) information
that is false, misleading or deceptive, whether, in each case, by the inclusion
or omission of any material information; or
(b) a
document that contains any such information.
Penalty: Imprisonment for 2 years and a fine.
(2) A person must not, in connection
with an application under these Regulations knowingly or recklessly publish a
notice that contains information that is false, misleading or deceptive in a
material particular.
Penalty:
Imprisonment for 2 years and a fine.
(3) A person must not fail
to comply with Regulation 31(1) or (6).
Penalty: A
fine of level 3 on the standard scale.[4]
Part 5
Citation
33 Citation
These Regulations may be cited as the Foundations (Continuance)
(Jersey) Regulations 2009.