Foundations
(Jersey) Law 2009
A LAW to provide for the
incorporation of foundations and for related purposes.
Adopted by the
States 22nd October 2008
Sanctioned by
Order of Her Majesty in Council 10th June 2009
Registered by the
Royal Court 19th
June 2009
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
PART 1
PRELIMINARY
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“assigned”, in
respect of a right a founder of a foundation has in respect of the foundation
or its assets, means assigned by the founder or by a person to whom the right
has been assigned;
“beneficiary”, in
respect of a foundation that has the provision of a benefit to a person or to a
class of persons as its objects or as one of its objects, means a person who is
or is a member of a class of persons that –
(a) is
specified in the charter of the foundation; or
(b) has
been determined in accordance with the charter or regulations of the
foundation,
for the purpose of those objects or that object;
“business address”
means –
(a) in
respect of the qualified member of the council of a foundation, the business
address of the member as it appears in the register;
(b) in
respect of a foundation, the business address of the qualified member of its
council or, if there is no such qualified member, its last qualified member;
“Commission” means
the Jersey Financial Services Commission established by the Financial Services Commission (Jersey) Law 1998[1];
“foundation” means a
foundation incorporated under this Law;
“founder” in respect
of a foundation, means the person who instructed the qualified person to apply
for the incorporation of the foundation and includes any person who
subsequently becomes a founder of the foundation under Article 19;
“functions” includes
powers and duties;
“person appointed under the
regulations of the foundation”, in respect of a foundation,
means –
(a) a
member of the council of the foundation;
(b) the
guardian of the foundation; and
(c) any
other person appointed under the regulations of the foundation to carry out a
function in respect of the foundation;
“person with standing”,
in respect of a foundation, means –
(a) the
foundation;
(b) a
founder of the foundation;
(c) a
person, other than a founder of the foundation, who has endowed the foundation;
(d) if
any rights a founder of a foundation had in respect of the foundation and its
assets have been assigned to some other person, that other person;
(e) a
person appointed under the regulations of the foundation;
(f) a
beneficiary of the foundation;
(g) a
creditor of the foundation;
(h) in
respect of a specified purpose mentioned in Article 5(3)(b), a person who,
in the view of the Royal Court, can reasonably claim to speak on behalf of that
purpose; or
(i) the
Attorney General;
“published”
means –
(a) in
respect of a fee payable by virtue of this Law, published by the Commission in
accordance with Article 15(5) of the Financial
Services Commission (Jersey) Law 1998[2]; or
(b) in
any other case, published in a manner likely to bring it to the attention of
those affected;
“qualified member”,
in respect of the council of a foundation, means the qualified person who is
the qualified member of the council by virtue of Article 23;
“qualified person”
means a person registered under the Financial Services (Jersey) Law 1998
to carry on trust company business that permits the provision by the person of
the services mentioned in Articles 2(4)(a) and (d) of that Law;
“record” means
information stored in any form;
“register”, as a
noun, means the register kept by the registrar for the purposes of this Law;
“registrar” means
the registrar of companies appointed pursuant to Article 196 of the
Companies (Jersey) Law 1991[3].
(2) Where
a penalty is specified after a provision of this Law, it indicates that a
contravention of the provision is an offence that is punishable by a penalty
not exceeding the penalty so specified.
PART 2
incorporation of foundations
Application for the incorporation of a
foundation
2 Application
for the incorporation of a foundation
(1) A
qualified person may, on behalf of any other person, apply to the registrar for
the incorporation of a foundation.
(2) The
application must be made in a manner and form published by the registrar.
(3) It
must be accompanied by –
(a) a
copy of the proposed charter of the foundation;
(b) unless
another method of payment is agreed, the published fee; and
(c) if
any part of the proposed charter is not in English, a translation of the part
in English.
(4) 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, will become the qualified member
of the council of the foundation on the incorporation of the foundation;
(b) that
the qualified person who signed the certificate is in possession of regulations
for the proposed foundation that have been approved by both the founder of the
foundation 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 will become the guardian of the foundation in
accordance with its regulations on the incorporation of the foundation.
(5) The
application and any document accompanying it must be authenticated in any
manner determined by the registrar.
The charter of a foundation
3 Foundation
must have a charter
A foundation must have a charter that complies with the requirements
of this Law.
4 The
charter of a foundation – name of foundation
(1) The
charter of a foundation must specify the name of the foundation.
(2) The
name –
(a) must
not be misleading or otherwise undesirable; and
(b) must
end with the word “Foundation” or a word or words that mean that
word in a foreign language.
5 The
charter of a foundation – its objects
(1) The
charter of a foundation must specify the objects for which the foundation was
established.
(2) Those
objects –
(a) must
be lawful; and
(b) may
be charitable, non-charitable or both.
(3) The
objects may be –
(a) to
benefit a person or a class of persons; or
(b) to
carry out a specified purpose,
or to do both.
(4) It
is sufficient, for the purpose of paragraph (3)(a), for the charter to
provide that the person or class of persons may be determined in accordance
with the charter or regulations of the foundation.
(5) If
a foundation has the provision of a benefit to a person or to a class of
persons as its objects or as one of its objects, the charter or regulations of
the foundation may provide for the manner in which those objects or that object
may be amended –
(a) to
exclude a person or a class of persons;
(b) to
apply to a different person or to a different class of person; or
(c) to
include an additional person or an additional class of persons,
as the case may be.
(6) Paragraph (5) is without prejudice to
Article 38.
6 The
charter of a foundation – first council members
(1) The
charter of a foundation may specify the names and addresses of the first
members of the council of the foundation.
(2) If
it does so, any subsequent change in those names and addresses is not an
amendment of the charter for the purposes of Article 38.
7 The
charter of a foundation – its endowment
(1) A
foundation need not have an initial endowment.
(2) However,
if it does have one, the details of the endowment must be specified in its
charter.
(3) If,
after the incorporation of a foundation, the foundation may be further endowed,
this must be stated in its charter.
8 The
charter of a foundation – winding up
(1) The
charter of a foundation must specify what is to happen to any assets of the
foundation that remain should the foundation be wound up and dissolved.
(2) It
is sufficient, for the purpose of paragraph (1), for the charter to
provide that the assets that remain shall be disposed of in the manner
specified in the regulations of the foundation.
9 The
charter of a foundation – its term
(1) If
a foundation is to be wound up and dissolved upon –
(a) the
happening of some event; or
(b) the
expiration of a fixed period of time,
details of the event or period must be specified in its charter.
(2) If
a person has the right to apply to have a foundation wound up and dissolved,
details of the right must be specified in its charter.
(3) Paragraph (2)
does not apply to, and is without prejudice to, any right arising under an
enactment or by customary law.
10 The
charter of a foundation – general
(1) The
charter of a foundation may, in addition to the matters required to be set out
in it by this Law, provide for any other matter in respect of the foundation.
(2) It
may, in particular –
(a) provide for the manner in which the charter or the regulations of the foundation may
be amended; and
(b) contain any provisions that must or may be
included in the regulations of a foundation.
The
regulations of a foundation
11 Foundation
must have regulations
(1) A foundation must have regulations that
comply with this Law.
(2) However, paragraph (1) is satisfied in
respect of a provision that must or may be included in the regulations of a
foundation if it is included in its charter.
(3) In any such case, a reference in this Law to
the provision in the regulations of a foundation shall be taken to be a reference
to the provision as it appears in its charter.
12 The regulations of a
foundation – its council
(1) The regulations of a foundation must –
(a) establish
a council to administer the foundation’s assets and to carry out its
objects;
(b) provide
for the appointment, retirement, removal and remuneration (if any) of its members;
(c) set out
how the decisions of the council are to be made and, if any decision requires
the approval of any other person, specify the decisions and that person; and
(d) set out
the functions of the council, and, if they must or may be delegated or
exercised in conjunction with any other person, the extent to which this must
or may be done.
(2) In
particular, the regulations of a foundation must set out a procedure that ensures
that a qualified person is appointed to be the qualified member of its council
as soon as reasonably practicable if its qualified member –
(a) dies;
(b) retires;
or
(c) otherwise
ceases to act or to be able to act.
(3) Despite
any provision of the regulations of a foundation to the contrary, if the
qualified member of its council –
(a) retires;
or
(b) is
removed,
the retirement or removal does not take effect until immediately
before the appointment of a new qualified person to be the qualified member of
the council has taken effect.
13 Foundation
must have a guardian
(1) A
foundation must have a guardian.
(2) The
guardian of a foundation –
(a) must
be appointed in accordance with this Law; and
(b) shall
have, in respect of the foundation, the functions specified in this Law and in
the charter and regulations of the foundation.
14 The
regulations of a foundation – its guardian
(1) The regulations of a foundation must provide
for the appointment of its guardian.
(2) Accordingly, the regulations of a foundation
must –
(a) identify
the initial guardian of the foundation;
(b) provide
how a guardian of the foundation may retire;
(c) provide
how a new guardian is to be appointed; and
(d) provide
for the guardian’s remuneration (if any).
(3) Apart
from –
(a) a
founder of a foundation; and
(b) the
qualified member of its council,
a person may not be both a member of its council and its guardian.
(4) The
guardian of a foundation must take such steps as are reasonable in all the
circumstances to ensure that the council of the foundation carries out its
functions.
(5) Accordingly,
the guardian of a foundation may require its council to account to the guardian
for the way in which it has –
(a) administered
the foundation’s assets; and
(b) acted
to further the foundation’s objects.
(6) The
regulations of a foundation may give its guardian the power to approve or
disapprove any specified actions of its council.
(7) Except
to the extent that the regulations of a foundation provide otherwise, the
guardian of a foundation may, if he or she considers that it is appropriate to
do so, sanction or authorize any action taken or to be taken by the council of
the foundation that would not otherwise be permitted by the charter or
regulations of the foundation.
(8) However,
the guardian must not do so unless he or she is satisfied –
(a) that
it is in the best interests of the foundation to do so; and
(b) that
the council, in taking the action, acted or will be acting in good faith.
(9) If
the guardian of a foundation, acting under paragraph (7), sanctions or
authorizes any action of the council of the foundation, the council shall, in
taking that action, be taken for all purposes to have acted in accordance with
the charter and regulations of the foundation.
(10) Nothing
in paragraph (7) shall be construed as permitting the guardian of a
foundation to sanction or to authorize any action taken or to be taken by the
council of the foundation that would be inconsistent with this Law or any other
enactment.
15 The regulations of a
foundation – reimbursement of expenses
The regulations of a foundation may provide for a person appointed
under the regulations of the foundation to be reimbursed by the foundation any
reasonable expenses incurred by the person in carrying out his or her functions
in respect of the foundation.
16 The regulations of a
foundation – general
(1) The
regulations of a foundation may, in addition to the matters required to be set
out in them by this Law, provide for any other matter in respect of the
foundation.
(2) They
may, in particular, provide for –
(a) the manner in which the charter or the
regulations of the foundation may be amended; and
(b) the appointment, retirement, removal
and remuneration (if any) of persons (other than the members of the council of
the foundation and its guardian) to carry out functions in respect of the
foundation.
17 The
regulations of a foundation – supply of copies
(1) Unless the regulations of a foundation
provide otherwise, a foundation need not supply a copy of its regulations to a
person other than to a person appointed under the regulations of the
foundation.
(2) Paragraph (1) is without prejudice to
any obligation of a foundation to supply a copy of its regulations imposed by an
enactment or by an order of a court.
The
founder of a foundation
18 The
founder of a foundation
(1) A
founder of a foundation has such rights (if any) in respect of the foundation
and its assets as are provided for in its charter and regulations.
(2) Any
rights a founder of a foundation may have in respect of the foundation and its
assets may be assigned to some other person if the charter or regulations of
the foundation so provide.
(3) Where –
(a) a
founder of a foundation has rights in respect of the foundation and its assets;
or
(b) a
person has been assigned any rights of a founder in respect of a foundation and
its assets,
and the founder or person, as the case may be –
(c) dies;
or
(d) in
the case of a founder or a person that is not an individual, ceases to exist,
those rights vest in the guardian of the foundation unless its
charter or regulations provide otherwise.
19 Further
endowment of a foundation
Unless the regulations of a foundation provide otherwise, the
endowment of a foundation by a person does not –
(a) make
the person a founder; or
(b) vest
in the person a right vested in a founder of the foundation.
The council of a foundation
20 Foundation
must have a council
A foundation must have a council –
(a) to
administer the assets of the foundation; and
(b) to
carry out its objects.
21 The
council of a foundation – membership
(1) The
council of a foundation may have one or more members.
(2) It
must include a qualified person.
(3) A member must
be at least 18 years old.
(4) A
member must not be –
(a) a
person in respect of whom a curator has been appointed in pursuance of Article 43
of the Mental Health (Jersey) Law 1969[4], or a corresponding
provision of the law of a jurisdiction outside Jersey; or
(b) a
person who is disqualified for being a member of the council of a foundation or
a director of a company under this or any other enactment.
22 The
council of a foundation – acts of members
(1) The
members of the council of a foundation must conduct the foundation’s
affairs in accordance with its charter and regulations and this Law.
(2) The
members of the council of a foundation must –
(a) act
honestly and in good faith with a view to the best interests of the foundation;
and
(b) exercise
the care, diligence and skill that reasonably prudent persons would exercise in
comparable circumstances.
(3) An
act of a member of the council of a foundation is valid despite any defect that
may afterwards be found in –
(a) the
appointment of the member; or
(b) the
member’s qualifications.
23 The
council of a foundation – qualified member
(1) On
the incorporation of a foundation the qualified person named under
Article 2(4)(a) becomes the qualified member of the council of the
foundation.
(2) A
qualified person subsequently appointed to be the qualified member of the
council of the foundation must notify the registrar of his or her –
(a) appointment;
and
(b) business
address in Jersey.
(3) Notification
must be given in a form and manner published by the registrar.
(4) Unless
another method of payment is agreed the notification must be accompanied by the
published fee.
(5) The
appointment of a qualified person to be the qualified member of the council of
a foundation takes effect when the registrar enters a note of the name and
business address of the qualified person in the register and dates the entry.
(6) Although
the council of a foundation may include more than one qualified person it may
not have more than one qualified member at any one time.
(7) Accordingly
the registrar may refuse to enter in the register a note of the name of a
qualified person as the qualified member of the council of a foundation until
the registrar is satisfied that the person mentioned in the register as the
qualified member of the council –
(a) has
ceased to act in that capacity; or
(b) under
Article 12(3), will cease to act in that capacity upon the appointment of
the new qualified member of the council.
24 The
members of the council and others – personal liability
(1) This
Article applies, in respect of a foundation, to a person appointed under the
regulations of the foundation when acting or purporting to be acting in the
course of that appointment.
(2) Nothing –
(a) in
the charter or regulations of the foundation; or
(b) in
a contract between the foundation and a person to whom this Article applies,
shall relieve, release or excuse the person from any liability for
the person’s fraud, wilful misconduct or gross negligence.
(3) Any
insurance purchased and maintained by the foundation in respect of a person to
whom this Article applies must not include insurance in respect of –
(a) any
liability the person may incur –
(i) to
the foundation, or
(ii) to
pay a fine in respect of an offence; or
(b) any
costs the person may incur –
(i) in
defending criminal proceeding in which the person is convicted, or
(ii) in
defending civil proceeding brought by the foundation in which judgement is
given against the person.
The rights of persons under a foundation
25 Rights
of beneficiaries under a foundation
(1) A
beneficiary under a foundation –
(a) has
no interest in the foundation’s assets; and
(b) is
not owed by the foundation or by a person appointed under the regulations of the foundation a duty that is or is analogous to a fiduciary duty.
(2) However,
if –
(a) a
beneficiary under a foundation becomes entitled to a benefit under the
foundation in accordance with the charter or the regulations of the foundation;
and
(b) the
benefit is not provided,
the beneficiary may seek an order of the Royal Court ordering the
foundation to provide the benefit.
(3) Except
as provided by paragraph (4), the beneficiary must seek the order within
the period of 3 years from the time when the beneficiary became aware of
his or her entitlement to the benefit.
(4) If
the beneficiary has not attained the age of 18 years when he or she became
aware of his or her entitlement to the benefit, the period referred to paragraph (3)
begins to run on the day on which the beneficiary attains that age.
26 Foundations
not obliged to provide information
(1) Except
as specifically required by or under this Law or by the charter or regulations
of the foundation, a foundation is not required to provide any person (whether
or not a beneficiary) with any information about the foundation.
(2) The
information mentioned in paragraph (1) includes, in particular,
information about –
(a) the
administration of the foundation;
(b) the
manner in which its assets are being administered;
(c) its
assets; and
(d) the
way in which it is carrying out its objects.
(3) Paragraph (1) is without prejudice to
any other obligation of a foundation to supply any
information about the foundation imposed by an enactment or by an order of a court.
The incorporation of a foundation
27 Registrar
may refuse application for incorporation
(1) The
registrar may refuse to accept an application for the incorporation of a
foundation if –
(a) the
registrar is not satisfied that its proposed objects are lawful; or
(b) the
registrar considers that its proposed name 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.
(2) If
the registrar does so refuse, the registrar must inform the applicant of the
refusal and the reason for the refusal.
(3) The
applicant may, within 28 days of being informed of the refusal, appeal to
the Royal Court.
(4) The
Royal Court may order the registrar to accept the application if it considers –
(a) that
the proposed objects of the foundation are lawful; or
(b) that
the proposed name of the foundation is not misleading or otherwise undesirable or
that it does end with the word “Foundation” or a word or words that
mean that word in a foreign language,
as the case may be, but must otherwise confirm the registrar’s
decision to refuse to accept the application.
(5) This
Article also applies, with necessary amendments, to any application to register
a change in the charter of a foundation that involves a change in its objects
or a change of its name.
28 Incorporation
The registrar must
incorporate a foundation if –
(a) the registrar accepts an application from a
qualified person for the incorporation of the foundation on behalf of a person;
and
(b) the registrar is satisfied that the
requirements of this Law in respect of the incorporation of the foundation have
been complied with.
29 Means of incorporation
(1) To
incorporate a foundation the registrar must enter in the register –
(a) the
name of the foundation; and
(b) the
name and business address in Jersey of the qualified member of the council of the
foundation as shown in the certificate mentioned in Article 2(4),
and date the entries.
(2) The
registrar must also issue the foundation with a registration number.
(3) An
entry in the register of the name of a foundation is conclusive
evidence –
(a) that,
on the date mentioned in paragraph (1), the foundation was incorporated
under this Law; and
(b) that
the requirements of this Law were complied with in respect of all matters
precedent or incidental to the incorporation of the foundation.
The effect of the incorporation of a
foundation
30 Corporate
status
(1) A
foundation is an incorporated body with the name specified in respect of it in the
register.
(2) Except
as provided by paragraph (3), a foundation, acting through its council, is
capable of exercising all the functions of a body corporate.
(3) A
foundation may not directly –
(a) acquire,
hold or dispose of immovable property in Jersey; or
(b) engage
in commercial trading that is not incidental to the attainment of its objects.
31 Legal competence of
foundations
(1) The
doctrine of ultra vires does not apply in
respect of a foundation.
(2) Accordingly,
the capacity of a foundation is not limited by –
(a) anything
in its charter or regulations; or
(b) any
act by a person appointed under the regulations of the foundation.
The application of laws to a foundation
32 Jersey
law to prevail in respect of foundations
(1) A
question that arises in respect of –
(a) a
foundation; or
(b) the
endowment of a foundation,
must be determined in accordance with the law of Jersey without
reference to the law of a jurisdiction outside Jersey.
(2) The
question may be (without limiting the generality of paragraph (1)) a
question as to –
(a) the
capacity of the founder of a foundation to seek the incorporation of the foundation
or the capacity of a person to endow it;
(b) the
validity, interpretation or effect of the charter or regulations of a
foundation or of an amendment of them;
(c) the
administration of the foundation, whether it is conducted in Jersey or elsewhere,
including questions as to the functions, appointment and removal of a person
appointed under the regulations of a foundation; or
(d) the
existence and extent of functions in respect of a foundation, including
(without limiting the generality of this provision) powers of amendment,
revocation and appointment, and the validity of the exercise of such a
function.
(3) Paragraph
(1) –
(a) does
not validate the endowment of a foundation with property that is neither owned
by a founder or by some other person endowing a foundation nor the subject of a
power of disposition vested in a founder or in such other person;
(b) does
not affect the recognition of the law of a jurisdiction outside Jersey in
determining whether a founder of a foundation or some other person endowing a
foundation is or was the owner of property or the holder of such a power;
(c) is
subject to an express provision to the contrary in the charter or regulations
of a foundation;
(d) does
not, as regards the capacity of a corporation, affect the recognition of the
law of its place of incorporation;
(e) does
not affect the recognition of the law of a jurisdiction outside Jersey
prescribing (without reference to the existence of the foundation or the terms
of its charter and regulations) the formalities for the disposition of
property;
(f) does
not validate a trust or disposition of immoveable property situate in a
jurisdiction outside Jersey that is invalid under the law of the jurisdiction;
and
(g) does
not validate a testamentary disposition that is invalid under the law of the
testator’s last domicile.
(4) The –
(a) incorporation
of a foundation; or
(b) the
endowment of a foundation,
is not void, voidable, liable to be set aside, invalid or subject to
an implied condition because of a reason specified in paragraph (6), (7)
or (8).
(5) None
of the following, namely –
(a) a
foundation;
(b) a
founder of a foundation;
(c) an
assignee of a right a founder of a foundation may have had in respect of the
foundation or its assets;
(d) a
person, other than a founder of a foundation, endowing a foundation;
(e) a
person appointed under the regulations of a foundation;
(f) a
beneficiary under a foundation;
(g) a
third party,
is subject to an obligation or liability or deprived of a right,
claim or interest arising from or under the foundation because of a reason specified in paragraph (6), (7) or (8).
(6) The
first reason is that the law of a jurisdiction outside Jersey –
(a) prohibits
or does not recognize foundations; or
(b) prohibits
the endowment of foundations.
(7) The
second reason is that –
(a) the
incorporation of a foundation; or
(b) the
endowment of a foundation,
avoids or defeats or potentially avoids or defeats a right, claim,
interest, obligation or liability conferred or imposed by the law of a
jurisdiction outside Jersey on a person –
(c) by
reason of a personal relationship to –
(i) a founder,
(ii) a person, other
that a founder of the foundation, endowing the foundation,
(iii) an assignee of a right
a founder of a foundation may have had in respect of the foundation or its
assets, or
(iv) a beneficiary under the
foundation; or
(d) by
way of foreign heirship rights.
(8) The
third reason is that –
(a) the
incorporation of a foundation; or
(b) the
endowment of a foundation,
contravenes or potentially contravenes a rule of law or a judicial
or administrative judgment, order or action of a jurisdiction outside Jersey
intended to recognize, protect, enforce or give effect to a right, claim,
interest, obligation or liability mentioned in paragraph (7)
whether –
(c) by
seeking to invalidate the incorporation of the foundation or the endowment of
the foundation; or
(d) by
imposing an obligation, a liability or a limitation or other condition or
restriction on –
(i) the foundation,
(ii) a founder of the
foundation,
(iii) a person, other than a
founder of the foundation, endowing the foundation,
(iv) an assignee of a right
a founder of the foundation may have had in respect of the foundation or its
assets,
(v) a person appointed
under the regulations of the foundation,
(vi) a beneficiary under the
foundation, or
(vii) a third party.
(9) Despite
any other enactment or rule of customary law, a judgment or order of a court of
a jurisdiction outside Jersey that concerns a question mentioned in paragraph
(1) shall not –
(a) be
recognized, enforced or otherwise given effect to; or
(b) give
rise to a right, obligation or liability or raise any estoppel,
if the court in giving the judgment or making the order failed to
take the operation of this Article into account.
(10) This
Article applies –
(a) wherever
and whenever a foundation is endowed; and
(b) despite
any other provision of this Law.
(11) The
reference in paragraph (1) to the law of Jersey shall not be taken to
include the Jersey rules of private international law other than as provided by
this Article.
(12) In
relation to –
(a) a
foundation; and
(b) an
endowment of a foundation,
the law of Jersey relating to legitime
and the rights of a surviving spouse do not apply except where a founder or any
other person endowing the foundation is domiciled in Jersey.
33 Rule
donner et retenir ne vaut not to apply
The rule donner et retenir ne vaut
shall not apply to –
(a) a
question concerning the validity, effect or administration of a foundation; or
(b) a
transfer of property by or to a foundation or by or to an entity owned in whole
or in part by a foundation.
PART 3
ADMINISTRATION of
foundations
34 Service of documents
A document required to be served on a foundation must be served on
the foundation by leaving it at, or by sending it by post to, its business
address.
35 Foundation
to include name and address in its written
communications
A foundation must include
its name and business address in its written communications, including those
transmitted by electronic means.
Penalty: Fine of level 3 on the standard scale.
36 Documents
to be kept at business address of foundation
A foundation must keep at its business address –
(a) a
copy of its charter and regulations as they are for the time being in force;
(b) a
register showing the names and addresses of the members of its council;
(c) records
sufficient to show and explain its transactions;
(d) a
record of the appointment of the guardian of the foundation showing the date of
his or her appointment and his or her name and address;
(e) records
that disclose, with reasonable accuracy, its financial position;
(f) a
register of the names and addresses of those who have endowed the foundation.
Penalty: Fine
of level 3 on the standard scale.
37 Foundation to pay
fees and charges
(1) A
foundation must pay to the registrar the published annual administration fee.
(2) The
fee must be paid before the end of February of each year following the
foundation’s year of incorporation.
(3) The
annual administration fee must be accompanied by such additional amount as the
States may determine by Regulations.
(4) The
registrar must pay the additional amount to the Treasurer of the States.
(5) The
published annual administration fee or any additional amount mentioned in paragraph (3)
is, in each case, a debt due to the registrar from the foundation and may be
sued for accordingly.
38 Amendment
of charter
(1) A
foundation must notify the registrar of any amendment it proposes be made to
its charter.
(2) The
notification must be given in a form and manner published by the registrar.
(3) It
must be accompanied by –
(a) a
copy of the proposed charter as amended;
(b) unless
another method of payment is agreed, the published fee; and
(c) if
any part of the proposed charter as amended is not in English, a translation of
the part in English.
(4) The
proposed charter as amended takes effect as the charter of the foundation when
the registrar enters the charter in the register and dates the entry.
(5) An
attempt to amend the charter of a foundation otherwise than –
(a) in
accordance with its charter and regulations; or
(b) by
an order of the Royal Court,
is of no effect.
PART 4
REGISTRAR
39 Exercise
of functions of the registrar
A function of the registrar under this Law may, to the extent
authorized by the registrar, be exercised by an officer on the staff of the
Commission.
40 Register
to be kept and made available for public inspection
(1) The
registrar must keep a register for the purposes of this Law.
(2) The
registrar must include in the register the charter of each foundation.
(3) The
registrar must on payment of any published fee, make the register available for
public inspection at any reasonable time.
(4) On
payment of any published fee, the registrar must supply a person with a
certificate stating whether or not a named body is a foundation and, if it is,
the following details as they appear in the register –
(a) the
date of its incorporation;
(b) its
registration number;
(c) whether
it has paid its last annual administration fee and any additional amount
determined by the States by Regulations; and
(d) the
name and business address of the qualified member of its council or, if there
is no such qualified member, its last qualified member.
(5) On
payment of any published fee, the registrar must supply a person with a
certified copy of the charter of a foundation as included in the register.
(6) There
is admissible in evidence in legal proceedings –
(a) a
certificate supplied under paragraph (3); or
(b) a
certified copy of the charter of a foundation supplied under paragraph (5).
41 Keeping of records by registrar
(1) A
record delivered to the registrar under this Law may be kept by the registrar
in any form –
(a) that is approved by the
Commission; and
(b) that is capable of
being reproduced in a legible form.
(2) The
registrar is to be taken to have complied with an obligation to keep a record
if the registrar has complied with paragraph (1) in respect of the record.
(3) The
registrar may destroy a record kept by the registrar if –
(a) it
is an original record and the registrar has recorded and kept the information
in it in accordance with paragraph (1); or
(b) it
relates solely to a foundation that has been dissolved more than 10 years
previously.
42 Registrar
may change registration number of foundation
(1) The
registrar may, for good cause, change the registration number of a foundation.
(2) The
registrar must inform the foundation if he or she does so.
part 5
powers of The Royal Court
43 Applications
to Royal Court
(1) A
person with standing in respect of a foundation may apply to the Royal Court
for the Court to take, in respect of the foundation, any of the actions
specified in this Part.
(2) Where
the question or one of the questions to be determined by the Royal Court is
whether a person is a person with standing in respect of a foundation, the
reference in paragraph (1) to a person with standing shall be taken, for
the purpose of determining that question, to include such a person.
44 Powers
of Royal Court to order compliance
(1) If
the Royal Court is satisfied that, in respect of a foundation, a person has
failed to comply with –
(a) a
requirement of this Law or of the charter or regulations of the foundation; or
(b) an
obligation imposed on the person by this Law or the charter or regulations of
the foundation,
the Court may, by order, require the person to comply with the
requirement or obligation.
(2) If
the Royal Court is satisfied that a foundation, acting through its council, has
failed to carry out its objects or any of them, the Court may, by order,
require the foundation to do so.
(3) An
order under this Article may specify the action the person or foundation is
required to take.
45 Powers
of Royal Court to order amendment of charter or regulations of foundation
(1) The
Royal Court may, by order, propose amendments to the charter of a foundation or
amend the regulations of a foundation if the Court is satisfied –
(a) that
the change will assist the foundation to administer its assets or to attain its
objects; or
(b) that
those objects are no longer attainable and that the change will assist the
foundation to attain objects as near as reasonably possible to those objects.
(2) If
the order proposes amendments to the charter of the foundation, Article 38 shall have effect as if the proposal to
amend the charter was that of the foundation.
46 Power of Royal
Court to give directions
(1) This
Article applies if the Royal Court is satisfied –
(a) that
if it gives a direction it will assist a foundation to administer its assets or
to carry out its objects; or
(b) that
it is otherwise desirable for the Court to give a direction.
(2) The
Court may give a direction as to –
(a) the
meaning and effect of a provision or term in the charter or regulations of the
foundation;
(b) the
manner in which the council of the foundation is required to carry out the
administration of the foundation’s assets or the carrying out of its
objects;
(c) the
functions of the council of the foundation or of any of its members;
(d) the
functions of any other person appointed under the regulations of the
foundation;
(e) whether
a person is a beneficiary;
(f) the
rights of beneficiaries under the foundation as between themselves or as
between themselves and the foundation; or
(g) such
other matters as the Royal Court considers relevant to the foundation, its
charter, its regulations, the administration of its assets or the carrying out
of its objects.
(3) The
Royal Court may, in addition to giving a direction under paragraph (2),
make such an order as it thinks fit to give effect to the direction.
47 Power
of Royal Court to protect interests under a foundation
The Royal Court may, in respect of a foundation, by order, appoint a
person to protect the interests of a person the Court is satisfied is or may
come to be a beneficiary under the foundation, where –
(a) the
person is unborn; or
(b) the
Court is satisfied that the person is unable to act on his or her own behalf.
48 Power
of Royal Court to dismiss or appoint a qualified member
(1) If
the Royal Court is satisfied that it is in the interest of a foundation to do
so, it may, by order –
(a) remove
the qualified member of the council of the foundation; or
(b) appoint
a qualified person to be the qualified member of the council of the foundation,
or do both.
(2) Paragraphs
(2), (3), (4) and (5) of Article 23 shall apply in respect of a qualified
person appointed by an order of the Court to be the qualified member of the
council of a foundation.
49 Power
of Royal Court to take action on behalf of others
(1) This
Article applies where the Royal Court is satisfied, in respect of a foundation,
that a person has failed to comply with –
(a) a
requirement of this Law or of the charter or regulations of the foundation; or
(b) an
obligation imposed on the person by this Law or by the charter or regulations
of the foundation.
(2) The
Royal Court may, by order, comply with the requirement or obligation on behalf
of the person who has failed to do so.
(3) The
Court shall not do so unless it is satisfied –
(a) that
to do so will assist the foundation in the administration of its assets or the
attainment of its objects; or
(b) that
it is otherwise desirable that it should do so.
(4) Where
the Court does so, its order shall have the same effect as if it were an action
taken by the person required to comply with the requirement or obligation.
50 General
power of Royal Court in respect of orders
(1) An
order made by the Royal Court under this Part in respect of a foundation may,
in particular, provide for the appointment or removal of a person appointed
under the regulations of the foundation.
(2) Any
order made by the Court under this Part –
(a) may
be made on such terms; and
(b) may
impose such conditions,
as the Court thinks fit.
51 Limitation on
certain actions in the Royal Court
(1) This
Article applies, in respect of a foundation, to a breach of duty by a person
appointed under the regulations of the foundation when carrying out or when
purporting to be carrying out the functions of the appointment.
(2) Except
as otherwise provided by paragraphs (3) and (4), the period within which
an action founded on a breach of duty to which this Article applies may be
brought in the Royal Court is –
(a) the
period of 3 years from the time when the person bringing the action became
aware of the breach; or
(b) the
period of 18 years from the date of the breach,
being whichever period first expires.
(3) Except
as otherwise provided by paragraph (4), the period within which an action
founded on a breach of duty to which this Article applies may be brought in the
Royal Court against a person appointed under the regulations of a foundation
who has ceased to hold the appointment is –
(a) the
period of 3 years from the date on which the person ceased to hold the
appointment; or
(b) the
period mentioned in paragraph (2),
being whichever period first expires.
(4) The
limitations mentioned in paragraphs (2) and (3) in respect of a breach of duty
to which this Article applies do not apply –
(a) in
respect of any fraud to which a person appointed under the regulations of the
foundation was privy; or
(b) to
the recovery from a person appointed under the regulations of the
foundation –
(i) of any property
of the foundation that is in the person’s possession or under the
person’s control, or
(ii) of property in
the person’s possession or under the person’s control that is the
proceeds of any property of the foundation.
part 6
amendment of this Law and of other
legislation
52 Power
to amend Parts 1 and 2 by Regulations
(1) The
States may amend Parts 1 and 2 of this Law by Regulations.
(2) The
power conferred on the States by paragraph (1) includes the power to make
Regulations –
(a) to make such transitional
provisions; and
(b) to make such consequential,
incidental or supplementary amendments to any other provision of this Law or to any other enactment,
as appear to the States to be necessary or expedient.
53 Companies
(Jersey) Law 1991 amended
(1) For
Article 78 of the Companies (Jersey) Law 1991[5] there is substituted the
following Article –
(1) If it appears to the Minister, the
Commission, or the Attorney General, that it is expedient in the public
interest that a person should not without the leave of the court –
(a) be a director of or in any way whether
directly or indirectly be concerned or take part in the management of a
company;
(b) be a member of the council of a foundation
incorporated under the Foundations (Jersey) Law 2009[6] or in any other way directly
or indirectly be concerned or take part in the management of such a foundation;
or
(c) in Jersey in any way whether directly or
indirectly be concerned or take part in the management of a body incorporated
outside Jersey,
the Minister, the Commission,
or the Attorney General may apply to the court for an order to that effect
against the person.
(2) The court may, on such an application, make
the order applied for if it is satisfied that the person’s conduct in
relation to a body corporate makes the person unfit to be concerned in the
management of a body corporate.
(3) An order under paragraph (2) shall be
for such period, not exceeding 15 years, as the court directs.
(4) A person who acts in contravention of an order
made under this Article is guilty of an offence.”.
(2) Schedule 1
to the Companies (Jersey) Law 1991 is amended by omitting from column 1
“78(6)” and substituting “78(4)”.
54 Bankruptcy
(Désastre) (Jersey) Law 1990 amended
(1) The
Bankruptcy (Désastre) (Jersey) Law 1990[7] is amended in accordance
with this Article.
(2) In
Article 1(1) of the Law –
(a) for
the definition “company” there is substituted the following
definition –
“ ‘company’ means –
(a) a company registered under the Companies Law
(including a company originally registered under the Loi (1861) sur les
Sociétés à Responsabilité Limitée);
(b) a foundation;
(c) a corporation constituted
under Article 4 of the Loi (1862) sur les teneures en
fidéicommis et l’incorporation d’associations[8];
(d) an association constituted by Act of the
States; and
(e) a body corporate incorporated outside Jersey,
and references to directors
and other officers of a company and to voting power at a general meeting of a
company shall be interpreted with the necessary modifications;”;
(b) for
the definition “director” there is substituted the following
definitions –
“ ‘director’ means any person occupying the
position of –
(a) director; or
(b) in the case of a foundation, a member of the
council of the foundation,
by whatever name called;
‘foundation’
means a foundation incorporated under the Foundations (Jersey) Law 2009[9];”;
(c) for
the definition “registrar” there is substituted the following
definition –
“ ‘registrar’ means, in relation
to –
(a) a company registered under the Companies Law;
(b) a foundation; or
(c) a limited liability partnership,
the registrar appointed
pursuant to Article 196 of the Companies Law;”.
(3) For
Article 3(1)(c) of the Law there is substituted the following
sub-paragraph –
“(c) the
Commission, in the case of a person who –
(i) holds
or has held a permit under the Insurance
Business (Jersey) Law 1996 or the Collective Investment Funds (Jersey) Law 1988,
(ii) is
or was registered under the Banking
Business (Jersey) Law 1991 or the Financial Services (Jersey) Law 1998,
or
(iii) is
a foundation.”.
(4) For
Article 36(2) of the Law there is substituted the following
paragraph –
(a) a company registered under the Companies Law;
or
(b) a foundation,
the Viscount must notify the
registrar in writing of the date of payment of the final dividend.”.
(5) For
Article 38(2) of the Law there is substituted the following
paragraph –
“(2) Subject to paragraph (3),
if the debtor is –
(a) a company registered under the Companies
Law; or
(b) a foundation,
it shall be dissolved with
effect from the date on which the registrar receives the notice under Article 36(2),
which notice the registrar shall thereupon register.”.
55 Financial
Services (Jersey) Law 1998 amended
(1) The
Financial Services (Jersey) Law 1998[10] is amended in accordance
with this Article.
(2) In
Article 1(1) of the Law, after the definition “financial service
business”, there is inserted the following definition –
“ ‘foundation’
means a foundation incorporated under the Foundations (Jersey) Law 2009[11];”.
(3) For
Article 2(3), (4), (5) and (6) of the Law there is substituted the
following paragraphs –
“(3) A person carries on trust
company business if the person carries on a business that involves –
(a) the provision of company administration services;
(b) the provision of trustee or fiduciary
services; or
(c) the provision of services to foundations,
and in the course of
providing those services the person provides any of the services specified in
paragraph (4).
(a) acting as a company formation agent, a
partnership formation agent or a foundation formation agent;
(b) acting as or fulfilling the function of or
arranging for another person to act as or fulfil the function of director or
alternate director of a company;
(c) acting as or fulfilling the function of or
arranging for another person to act as or fulfil the function of a partner of a
partnership;
(d) acting as or fulfilling the function of or
arranging for another person to act as or fulfil the function of a member of
the council of a foundation;
(e) acting or arranging for another person to
act as secretary, alternate, assistant or deputy secretary of a company;
(f) providing a registered office or
business address for a company, a partnership or a foundation;
(g) providing an accommodation, correspondence
or administrative address for a company, a partnership or a foundation or for
any other person;
(h) acting as or fulfilling or arranging for
another person to act as or fulfil the function of trustee of an express trust;
(i) acting as or fulfilling or arranging
for another person to act as shareholder or unitholder as a nominee for another
person.
(5) In this Article a reference to a company,
trust, partnership or foundation is a reference –
(a) to a company, trust, partnership or
foundation wherever incorporated or otherwise established; and
(b) to any similar or equivalent structure or
arrangement, howsoever named.
(6) For the purposes of this Article a person
acts as a company formation agent, a partnership formation agent or a
foundation formation agent if the person arranges for the registration,
formation or incorporation, or the sale, transfer or disposal, of companies,
partnerships or foundations, as the case may be.”.
part 7
Closing provisions
56 Regulations
(1) The
States may, by Regulations, provide –
(a) for
the dissolution of foundations;
(b) for
the continuance in Jersey as foundations of bodies
corporate, whether or not incorporated in Jersey;
(c) for
foundations incorporated in Jersey to be permitted to seek continuance outside
Jersey; and
(d) for the merger of foundations, including the merger of foundations with any bodies corporate,
whether or not incorporated in Jersey.
(2) Regulations
made under paragraph (1) may create offences and prescribe penalties.
(3) Regulations
made under paragraph (1) may –
(a) provide
for the Minister of Economic Development to exercise a discretion in respect of
matters prescribed by the Regulations;
(b) permit
the Commission to publish fees that may be imposed by the Regulations; and
(c) permit
the Commission and the registrar to publish material in respect of matters
prescribed by the Regulations.
57 Citation and commencement
(1) This
Law may be cited as the Foundations (Jersey) Law 2009.
(2) It
shall come into force 28 days after it is registered.
m.n. de la haye
Greffier of the States