Control of
Borrowing (Jersey) Order 1958
PART 1
1 External
body corporate raising money in Jersey by issue of shares[2]
(1) This Article applies
only to a body corporate not incorporated under the law of Jersey.
(2) Such body corporate
shall not, without the consent of the Commission, raise money in Jersey by the
issue anywhere of any of its shares.
(3) For the purposes of
this Article such body corporate raises money in Jersey only if the money is
made available in Jersey.
(4) Notwithstanding paragraph (2),
the consent of the Commission is not required to the raising of money in Jersey
by the issue of shares of such body corporate if, and so long as, on the most
recent date on which money is so raised the amount thereof, together with the
amount so raised during the period of 12 months ending on that date, does not
exceed £50,000 or its equivalent in a currency other than sterling.
(5) The reference in paragraph (4)
to the equivalent in a currency other than sterling of £50,000 is a
reference to such sum of money in the currency other than sterling as, on the
basis of the rate of exchange prevailing on the date or the respective dates of
issue of the shares, is equivalent to £50,000.
2 Admission
to membership of Jersey body corporate[3]
A body corporate (other than a limited liability company registered
as a body corporate) incorporated under the law of Jersey shall not, without
the consent of the Commission –
(a) for
any purpose issue any shares; or
(b) admit
any person to membership otherwise than by reason of the issue or transfer of
shares.
3 External
body corporate having shares registered in Jersey[4]
(1) A body corporate not
incorporated under the law of Jersey shall not, without the consent of the
Commission, for any purpose issue any shares which are or are to be registered
in Jersey.
(2) Notwithstanding paragraph (1),
the consent of the Commission to the issue of such shares is not required where
the number of persons in whose name shares are or are to be registered in
Jersey does not exceed 10 (joint holders being counted as one person).
4 Issue
of securities other than shares[5]
(1) A body corporate shall
not, without the consent of the Commission, for any purpose issue any
securities if either it is incorporated under the law of Jersey or the
securities are or are to be registered in Jersey.
(2) Notwithstanding paragraph (1),
the consent of the Commission to the issue of such securities is not required
where –
(a) the
body corporate –
(i) is
incorporated under the law of Jersey, the securities to be issued are not
bearer securities and the number of persons in whose names the securities are
or are to be registered does not exceed 10 (joint holders being counted as one person),
(ii) is
incorporated under the law of Jersey and the securities to be issued are bearer
securities which are not or are not capable of being held by more than 10
persons (joint holders being counted as one person),
(iii) is
not incorporated under the law of Jersey, the securities to be issued are not
bearer securities and the number of persons in whose names the securities are
or are to be registered in Jersey does not exceed 10 (joint holders being
counted as one person), or
(iv) is
not incorporated under the law of Jersey, the securities to be issued are
bearer securities which are or are to be registered in Jersey and are not or
are not capable of being held by more than 10 persons (joint holders being
counted as one person); or
(b) such
securities are issued by the body corporate for the sole purpose of securing
money borrowed by it, if the borrowing is in the ordinary course of its
business and is from a person carrying on a banking undertaking.[6]
(3) In this Article
“securities” does not include shares.
(4) This Article does not
apply to a limited liability company registered as a body corporate.[7]
4A Issue
of securities other than LLC interests[8]
(1) A limited liability
company must not, without the consent of the Commission, for any purpose issue
any securities if either the limited liability company is registered under the
law of Jersey or the securities are or are to be registered in Jersey.
(2) Despite
paragraph (1), the consent of the Commission to the issue of securities is
not required where –
(a) the
limited liability company –
(i) is registered under the law of Jersey
and the number of persons in whose names the securities are or are to be
registered does not exceed 10 (joint holders being counted as one person), or
(ii) is
not registered under the law of Jersey and the number of persons in whose names
the securities are or are to be registered in Jersey does not exceed 10 (joint
holders being counted as one person); or
(b) the
securities are issued by the limited liability company for the sole purpose of
securing money borrowed by it, if the borrowing is in the ordinary course of
its business and is from a person carrying on a banking undertaking.
(3) In this Article
“securities” does not include LLC interests.
5 Continuance
of external body corporate in Jersey[9]
A
certificate of continuance under Article 127O of the Companies (Jersey)
Law 1991 shall not be issued to a body corporate unless it has obtained the
consent of the Commission to keep in issue, on its continuance in Jersey, its
shares, debentures and other securities that are in issue at the time when it
applies for the certificate of continuance.
5A Continuance
of external limited liability company in Jersey[10]
A certificate of continuance under Regulation 92 of the Limited
Liability Companies (General Provisions) (Jersey) Regulations 202- must
not be issued to a limited liability company unless it has obtained the consent
of the Commission to keep in issue, on its continuance in Jersey, its LLC
interests, debentures and other securities that are in issue at the time when
it applies for the certificate of continuance.
6 Grant
of options to employees[11]
(1) Nothing in this Order
shall require the consent of the Commission to the grant by a company, a
company connected with it or a relevant trustee of options to acquire or
dispose of securities of the first-mentioned company where the options are
granted to or for the benefit of –
(a) bona
fide employees or former employees of the company or of another company with
which it is connected;
(b) spouses,
civil partners, surviving spouses or surviving civil partners, of such
employees or former employees; or
(c) children
or step-children under the age of 20 years of such employees or former
employees.[12]
(2) In this Article –
(a) “company”
includes any body corporate (other than a limited
liability company registered as a body corporate); and
(b) “relevant
trustee” means a person holding securities of a company in trust for the
purpose mentioned in paragraph (1).[13]
(3) For the purposes of
this Article –
(a) a company
is connected with another company if that other company –
(i) is
the holding company of the first-mentioned company,
(ii) is
the subsidiary of the first-mentioned company,
(iii) is a
subsidiary of the holding company of the first-mentioned company, or
(iv) holds
an interest in the equity share capital of the first-mentioned company for the
purpose of securing a contribution to that company’s own activities by
the exercise of any control or influence arising from that interest;
(b) a
company is a subsidiary of another company and the other company its holding
company if that other company –
(i) holds
a majority of the voting rights in it,
(ii) is
a member of it and has the right to appoint or remove a majority of its board
of directors, or
(iii) is a member
of it and controls alone, pursuant to an agreement with other members, a
majority of the voting rights in it,
or if it is a subsidiary of a company which is itself a subsidiary
of that other company;
(c) where
a company is connected with another company by virtue of any provision of sub-paragraph (a)
it is also connected with any company with which that other company is
connected by virtue of any provision of the same sub-paragraph; and
(d) where
a company is connected with another company, that other company is connected
with the first-mentioned company.
7 Government
securities[14]
No securities of any Government, other than the Government of the
United Kingdom or the States of Jersey or Guernsey, which are or are to be
registered in Jersey shall be issued for any purpose without the consent of the
Commission.
8 Prospectuses,
etc.[15]
(1) A person shall not,
without the consent of the Commission, circulate in Jersey any offer for
subscription, sale or exchange of any securities of any government, other than the
Government of the United Kingdom or the States of any of the Channel Islands,
unless such offer –
(a) does
not for the purposes of this Article constitute an offer to the public; or
(b) is
for the purposes of this Article valid in the United Kingdom or in the
Bailiwick of Guernsey.[16]
(2) A person shall not,
without the consent of the Commission, circulate in Jersey any offer for
subscription, sale or exchange of any securities of any body
corporate not incorporated under the law of Jersey unless –
(a) such
body corporate does not have a connection with Jersey which for the purposes of
this Article is a relevant connection; and
(b) such
offer –
(i) does
not for the purposes of this Article constitute an offer to the public, or
(ii) is
for the purposes of this Article valid in the United Kingdom or in the
Bailiwick of Guernsey and is, mutatis mutandis, circulated in Jersey only to persons similar to those to whom, and
in a manner similar to that in which, it is for the time being being circulated in the United Kingdom or in the Bailiwick
of Guernsey as the case may be.[17]
(3) A person shall not,
without the consent of the Commission, circulate in Jersey any offer for
subscription, sale or exchange of any units under a unit trust scheme not
governed by the law of Jersey unless such unit trust scheme is an unregulated
fund within the meaning of the Collective Investment Funds
(Unregulated Funds) (Jersey) Order 2008 or –
(a) such
unit trust scheme does not have a connection with Jersey which for the purposes
of this Article is a relevant connection; and
(b) such
offer –
(i) does
not for the purposes of this Article constitute an offer to the public, or
(ii) is
for the purposes of this Article valid in the United Kingdom or in the
Bailiwick of Guernsey and is, mutatis mutandis, circulated in Jersey only to persons similar to those to whom, and
in a manner similar to that in which, it is for the time being being circulated in the United Kingdom or in the Bailiwick
of Guernsey as the case may be.[18]
(4) For the purposes of
this Article –
(a) an
offer for subscription, sale or exchange of securities or units under a unit
trust scheme constitutes an offer to the public where the offer is not
addressed exclusively to a restricted circle of persons; and
(b) an
offer shall not be considered to be addressed exclusively to a restricted
circle of persons unless –
(i) the
offer is addressed to an identifiable category of persons to whom it is
directly communicated by the offeror or the offeror’s appointed agent,
(ii) the
members of that category are the only persons who may accept the offer and they
are in possession of sufficient information to be able to make a reasonable evaluation
of the offer, and
(iii) the
number of persons in Jersey to whom the offer is so communicated does not
exceed 50.
(5) For the purposes of
this Article an offer is valid in the United Kingdom if an identical offer is
for the time being being circulated in the United
Kingdom without contravening the Borrowing (Control and Guarantees) Act, 1946
of the United Kingdom or the Financial Services Act 1986 of the United
Kingdom or the Companies Act 1985 of the United Kingdom or the equivalent
provisions in Northern Ireland.[19]
(6) For the purposes of
this Article an offer is valid in the Bailiwick of Guernsey if –
(a)
(i) it
relates to a collective investment scheme authorized under the Protection of
Investors (Bailiwick of Guernsey) Law 1987 and complies with the
requirements of that Law and any subordinate legislation made thereunder,
(ii) it
complies with the requirements of the Borrowing (Control) (Bailiwick of
Guernsey) Law 1947 and any subordinate legislation made thereunder, and
(iii) an
identical offer is for the time being being
circulated in the Bailiwick of Guernsey; or
(b)
(i) the
consent of the Finance and Advisory Committee of the States of Guernsey to the
raising of money by the issue of such securities or units of a unit trust
scheme has been granted under the Borrowing (Control) (Bailiwick of Guernsey)
Law 1947 or any subordinate legislation made thereunder and such consent
is in force,
(ii) an
identical offer is for the time being being
circulated in the Bailiwick of Guernsey, and either
(iii) the
securities referred to in clause (i) are
securities of a body corporate incorporated under the law of the Bailiwick of
Guernsey, or
(iv) the
unit trust scheme referred to in clause (i) is
governed by the law of the Bailiwick of Guernsey.[20]
(7) Where any circumstances
mentioned in paragraph (8) or (9) exist, such circumstances but no other
circumstances shall be deemed to amount to a connection with Jersey which for
the purposes of this Article is a relevant connection.
(8) In the case of any offer
for subscription, sale or exchange of securities of any body
corporate not incorporated under the law of Jersey, the circumstances to which paragraph (7)
has reference are as follows –
(a) the
management or administration of such body corporate is wholly or partly carried
on in Jersey;
(b) control
of such body corporate is exercised in or from within Jersey;
(c) at
the time of such offer one or more of every 3 members of the board of directors
of such body corporate is resident in Jersey;
(d) such
body corporate has entered into, or is about to enter into, an agreement with a
person resident in Jersey material to such offer;
(e) a
business material to such offer is carried on directly or indirectly by such
body corporate in or from within Jersey;
(f) such
offer is an offer for exchange of securities of such body corporate for
securities of a body corporate incorporated under the law of Jersey;
(g) such
offer is an offer for exchange of securities of such body corporate for units
of a unit trust scheme if either the scheme is governed by the law of Jersey or
the units are or are to be registered in Jersey.
(9) In the case of any
offer for subscription, sale or exchange of units of a unit trust scheme not
governed by the law of Jersey, the circumstances to which paragraph (7)
has reference are as follows –
(a) any
person appointed or to be appointed as manager, administrator, distributor or
trustee of such scheme is a body corporate and any of the circumstances
referred to in paragraph (8) (a), (b), (c), (d) or (e) apply;
(b) such
an offer is an offer for exchange of units of such scheme for securities of a
body corporate incorporated under the law of Jersey;
(c) such
an offer is an offer for exchange of units of such scheme for units of another
unit trust scheme if either that other scheme is governed by the law of Jersey
or the units of that scheme are or are to be registered in Jersey.
9 Unit
trusts
(1) A person shall not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a unit trust scheme by the issue of any
unit under the scheme; or
(b) for any purpose issue any units under a unit trust scheme if
either the scheme is governed by the law of Jersey or the units are or are to
be registered in Jersey:
Provided that this paragraph shall not apply to the issue, or to the
raising of money by the issue, of any unit or sub-unit under a unit trust
scheme if the issue does not cause the total number of issued units or
sub-units to exceed the total number outstanding on 12th May 1941,
including units or sub-units which at the said date the trustees could be
required by the managers of the trust to issue.[21]
(2) For the purposes of
this Article a person raises money in Jersey only if the money is made
available in Jersey.[22]
PART 2
10 Partnerships
with limited partners[23]
(1) A person shall not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a limited partnership by the creation of
any partnership interest;
(b) for
any purpose create any interests under a limited partnership if either that
limited partnership is governed by the law of Jersey or the interests are or
are to be registered in Jersey; or
(c) circulate
in Jersey any offer for subscription, sale or exchange of any partnership
interest created under any limited partnership other than one to which
paragraph (2) refers.
(2) The limited
partnerships to which this paragraph refers are –
(a) a
limited partnership formed under the Limited Partnerships
(Jersey) Law 1994;
(b) a
separate limited partnership formed under the Separate Limited Partnerships
(Jersey) Law 2011; and
(c) an
incorporated limited partnership formed under the Incorporated Limited
Partnerships (Jersey) Law 2011.
(3) For the purposes of
this Article, a person raises money in Jersey only if the money is made
available in Jersey.
(4) In this Article,
‘partnership interest’ means a partner’s share of the profits
and losses of a limited partnership and the right to receive distribution of
partnership assets and other benefits conferred by the partnership agreement.
11 Limited
liability partnerships[24]
(1) A person shall not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a limited liability partnership by the
creation of any partnership interest;
(b) for
any purpose create any partnership interests in a limited liability partnership
if either that limited liability partnership is governed by the law of Jersey
or the interests are or are to be registered in Jersey; or
(c) circulate
in Jersey any offer for subscription, sale or exchange of any partnership
interest created under a limited liability partnership not registered in
accordance with the 2017 Law.[25]
(2) For the purposes of
this Article, a person raises money in Jersey only if the money is made
available in Jersey.
(3) In this Article –
“2017 Law” means the Limited Liability
Partnerships (Jersey) Law 2017; and
“partnership interest” has the same
meaning as in the 2017 Law.[26]
11A Limited liability
companies[27]
(1) A person must not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a limited liability company by the creation
of any LLC interest;
(b) for
any purpose create any LLC interest in a limited liability company if either
that limited liability company is governed by the law of Jersey or the
interests are or are to be registered in Jersey;
(c) circulate
in Jersey any offer for subscription, sale or exchange of any LLC interest
created under a purported limited liability company not registered in
accordance with the Limited Liability Companies
(Jersey) Law 2018.
(2) For the purposes of
this Article, a person raises money in Jersey only if the money is made
available in Jersey.
PART 3
12 Provisions
as to consent of Commission
(1) Any consent granted by
the Commission under this Order –
(a) may
be either general or special;
(b) may
be revoked by the Commission;
(c) may
be absolute or conditional; and
(d) may
be limited so as to expire at the end of a specified period unless renewed.
(2) Any consent granted by
the Minister[28] under the Control of
Borrowing Order 1956, shall have effect as if it had been granted under the
corresponding provision of this Order.
12A Fees[29]
The Commission may, in
accordance with Article 15 of the Financial Services Commission (Jersey) Law 1998, publish fees that –
(a) shall be payable by a
person upon the application to the Commission for a grant of a consent; and
(b) shall be payable by the
holder of a consent, at such intervals and upon the occurrence of such events
as the Commission may determine.
13 Definitions[30]
(1) In this Order, unless
the context otherwise requires –
“enactment” includes an enactment of a legislature other
than the States;[31]
“register”, in relation to securities or units, includes
a register of issued bearer securities and bearer units and also includes any
book in which securities or units are registered;[32]
“registered”, in relation to any security or unit,
includes inscribed;
“registered in Jersey” means, in relation to securities
or units, registered in a register in Jersey;
“security” includes shares, bonds, notes, debentures and
debenture stock;
“unit” means, in relation to a unit trust, any right or
interest (described whether as a unit or as a sub-unit or otherwise) which may
be acquired under the scheme, being a right or interest created or issued for
the purpose of raising money for the purposes of the scheme or a right or
interest created or issued in substitution (whether directly or indirectly) for
any right or interest so created or issued;
“unit trust scheme” means any arrangements made for the
purpose, or having the effect, of providing facilities for the participation by
persons, as beneficiaries under a trust, in profits or income arising from the
acquisition, holding, management or disposal of securities or any other
property whatsoever.
(2) Unless the contrary
intention appears, a reference in this Order to an enactment shall be construed
as a reference to that enactment as amended and to any enactment repealing and
re-enacting that enactment, with or without further amendment.[33]
14 Application
(1) This Order applies to
the borrowing or raising of money in pursuance of authority conferred by any law
passed by the States and confirmed by Order of Her Majesty in Council before
7th June 1947, being the date of registration of the Control of Borrowing (Jersey)
Law 1947.[34]
(2) Nothing in this Order
shall apply to the transactions or acts of a company issuing units, within the
meaning of the Collective Investment Funds
(Jersey) Law 1988 –
(a) which
holds a permit as a functionary specified in Group 1 of Part 2 of the
Schedule to that Law; or
(b) in
relation to which a certificate granted under Article 8B of that Law is in
force.[35]
(3) Nothing in this Order
shall apply to the transactions or acts of a unit trust or of a limited
partnership –
(a) that
is an unclassified fund within the meaning of the Collective Investment Funds
(Jersey) Law 1988; and
(b) in
relation to which a certificate granted under Article 8B of that Law is in
force.[36]
15 Citation
This Order may be cited as the Control of Borrowing (Jersey)
Order 1958.