Limited Liability
Companies (Jersey) Law 2018
A LAW to provide for the
establishment and regulation of limited liability companies, and for connected
purposes.
Adopted by the
States 11th September 2018
Sanctioned by
Order of Her Majesty in Council 12th December 2018
Registered by the
Royal Court 21st
December 2018
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 –
“amendment statement”
shall be construed in accordance with Article 5(1);
“authorized person”
means a person who is authorized in writing by –
(a) every
person who is a member of the limited liability company; or
(b) in
the case of actions taken prior to the registration of the limited liability
company, every person who is intended to be a member of the limited liability
company upon such registration;
“certificate of formation”
means the certificate of formation issued under Article 4(5);
“Commission” means
the Jersey Financial Services Commission established under Article 2(1) of
the Financial Services Commission (Jersey) Law 1998[1];
“contribution” means
any cash, property, other assets, services rendered or other obligation to
contribute cash, property, other assets or to perform services, which a person
contributes to a limited liability company in the person’s capacity as a
member, but does not include any monies lent or agreed to be lent to a limited
liability company;
“Court” means the Royal Court;
“declaration” shall
be construed in accordance with Article 4(1) and includes any amendment statement
delivered under Article 5 made to the declaration under Article 5;
“distribution” shall
be construed in accordance with Article 32;
“electronic communication”
has the meaning given by Article 1(1) of the Electronic Communications
(Jersey) Law 2000[2];
“insolvent” means unable to pay debts as they fall due;
“limited liability company”
shall be construed in accordance with Article 2;
“LLC agreement”,
means any agreement, written, oral or implied, of the member or members (or the
proposed member or members) as to the affairs of a limited liability company
and the conduct of its business and includes any amendments or additions made
to the LLC agreement;
“LLC interest” means
a member’s share of the profits and losses of a limited liability
company, a member’s right to receive distributions of the limited
liability company’s assets, and any other rights, benefits and
obligations conferred upon a member by the LLC agreement or this Law;
“Minister” means the
Chief Minister;
“manager” means a
person appointed as such under Article 21;
“member” means a
person who is admitted as a member of a limited liability company under Article 13;
“prescribed” means
prescribed in an Order made by the Minister;
“register” means the
register to be maintained under Article 48(2);
“registrar” shall be
construed in accordance with Article 48(1);
“registered office” shall
be construed in accordance with Article 8;
“secretary” means
the secretary appointed in accordance with Article 9, and any reference to
a secretary includes a person carrying out any of the functions of the
secretary;
“series” shall be
construed in accordance with Article 12.
(2) The
Minister may by Order amend this Article.
PART 2
FORMATION, REGISTRATION ETC. OF LIMITED
LIABILITY COMPANY
2 Limited
liability company
(1) Subject
to the provisions of this Law, a limited liability company may be formed for
any lawful business, purpose or activity, whether or not for profit.
(2) A
limited liability company has legal personality that is separate from that of
its members but is not a body corporate.
(3) A
limited liability company shall be dissolved and have its affairs wound up only
pursuant to the LLC agreement, or by this Law or another enactment.
(4) A
limited liability company has unlimited capacity and shall possess and may
exercise all powers and privileges granted by the LLC agreement, this Law or
other enactment together with any powers incidental thereto, including such
powers and privileges as are necessary or convenient to the conduct, promotion
or attainment of the business, purposes or activities of the limited liability
company.
(5) A
limited liability company shall consist of –
(a) one
or more persons who are members; and
(b) if
appointed, one or more persons who are managers.
(6) A
person may be a member and a manager at the same time in the limited liability
company.
(7) Subject
to the LLC agreement, a member or manager may –
(a) lend
money to;
(b) borrow
money from;
(c) act
as surety, grantor or endorser for; or
(d) guarantee
or assume one or more obligations of, provide collateral for, and transact
other business with,
a limited liability company and, subject to any other enactment, has
the same rights and obligations with respect to any such matter as a person who
is not a member or manager.
(8) Subject
to the LLC agreement, a limited liability company may indemnify any member,
manager or other person from and against all claims and demands.
3 LLC
agreement generally
(1) An LLC agreement shall be entered into (if
not already existing) before, after or at the time of delivery of a declaration
to the Registrar, and may be made effective as of the date of the certificate
of formation or at such other date as specified in the LLC agreement.
(2) Notwithstanding anything in the LLC
agreement to the contrary, a limited liability company registered and formed
under this Law shall be governed by the law of Jersey.
(3) A limited liability company is not required
to execute its LLC agreement and is bound by its terms whether or not it
executes it.
(4) Each member and manager (if any) of a
limited liability company is bound by the LLC agreement (which shall be
enforceable) whether or not the member or manager executes the LLC agreement.
(5) An LLC agreement of a limited liability
company having only one member shall not be unenforceable by reason of there
being only one person who is a party to the LLC agreement.
(6) An LLC agreement may provide rights to a
third party and the manner in which such rights may be varied or extinguished
(which, if the LLC agreement does not provide otherwise, is only with the
consent of such third party) and such third party shall be entitled to enforce
such rights notwithstanding that they are not a party to the LLC agreement.
(7) If an LLC agreement provides for the manner
in which it may be amended, it may be amended only in that manner or as otherwise
permitted by this Law and if the LLC agreement is silent as to the manner of
amendment, it may be amended with the unanimous approval of all members or as
otherwise permitted by this Law.
(8) An LLC agreement may provide that a member
or a manager who fails to perform in accordance with, or to comply with the
terms and conditions of, the LLC agreement shall be subject to remedies,
sanctions, penalties or consequences specified in the LLC agreement.
(9) An LLC agreement may provide that upon the
happening of an event specified in the LLC agreement, a member or manager shall
be subject to remedies, sanctions, penalties or consequences specified in the
LLC agreement.
(10) Any remedies, sanctions, penalties or consequences
referred to in paragraphs (8) and (9) shall not be unenforceable solely on
the basis that they are in the nature of a penalty or forfeiture.
4 Registration
of limited liability company
(1) An
application for registration of a limited liability company shall be in the
form of a declaration, made and signed by an authorized person and shall be
delivered to the registrar by such method or in such form as may be required by
the registrar.
(2) A
declaration shall state the following particulars –
(a) the proposed name of
the limited liability company;
(b) the intended address of
the registered office of the limited liability company upon registration;
(c) the name and address of
each person who is to be a member of the limited liability company upon
registration;
(d) the name and address of
each person who is to be a manager of the limited liability company upon
registration;
(e) the names and addresses
of the secretary and deputy secretary (if any) who are to be appointed under Article 9
upon registration;
(f) that the person
making the declaration is authorized to do so by every person intending to be a
member on the date the registration takes effect under paragraph (8); and
(g) such other particulars as
may be prescribed.
(3) A
declaration shall be accompanied by such documents as may be prescribed.
(4) The
registrar shall maintain a register of all declarations.
(5) If
the registrar is satisfied that –
(a) an
application made under paragraph (1) complies with paragraphs (2) and
(3);
(b) the
proposed name of the limited liability company complies with Article 7;
(c) the
proposed registered office complies with Article 8; and
(d) the
proposed secretary and deputy secretary (if any) complies with Article 9,
the registrar shall register the limited liability company and issue
a certificate of formation to the limited liability company.
(6) The
certificate of formation shall specify –
(a) the
date on which the certificate of formation is issued; and
(b) any
number or other identifying code allocated by the registrar to the limited
liability company,
and, in accordance with Article 48(3), shall be signed by the
registrar and sealed with the registrar’s seal (if any).
(7) A
certificate of formation shall be conclusive evidence that –
(a) a declaration has been
delivered to the registrar;
(b) the limited liability
company is formed under this Law;
(c) the
requirements of this law have been complied with in respect of –
(i) registration,
(ii) all matters
precedent to registration, and
(iii) all matters incidental
to registration,
in respect of the limited liability company.
(8) The
registration of a limited liability company and thereby its formation shall
have effect from the date of issue of its certificate of formation and shall
cease to have effect upon the cancellation of registration of the limited
liability company in accordance with Article 6.
5 Amendment of declaration
(1) If during the existence of a limited
liability company, a manager or, if there is no manager, any member becomes
aware that –
(a) any statement in a declaration was false
when made; or
(b) any change (other than a change of the
registered office of limited liability company) is made or occurs in respect of
any of the particulars of the declaration delivered to the registrar under
Article 4(1),
an amendment statement
signed by an authorized person specifying the nature of the change shall,
within 21 days of such a manager or member, as the case may be, becoming
aware of the false statement or of the date of the change, be delivered to the
registrar.
(2) Subject to Article 7, upon delivery of
an amendment statement under paragraph (1), if the registrar is satisfied
that the change complies with the requirements of this Law, the registrar shall
register the amendment statement and issue to the limited liability company an amended
certificate of formation giving effect to the change and in accordance with Article 48(3)
the certificate of formation shall be signed by the registrar and sealed with
the registrar’s seal (if any).
(3) A limited liability company that fails to deliver
an amendment statement in accordance with paragraph (1) shall be guilty of
an offence.
6 Cancellation
of registration
(1) The registrar shall cancel the entry in the
register relating to the limited liability company and issue a certificate of
cancellation of the limited liability company’s registration
where –
(a) the
registrar has been notified of the completion of the winding up of the affairs
of the limited liability company pursuant to Regulations made under Article 60(2)(f);
or
(b) the
registrar has been notified under Article 36(2) of the Bankruptcy (Désastre) (Jersey) Law 1990[3].
(2) On cancelling a limited liability company’s
registration under paragraph (1) the registrar shall publish a notice of
that fact.
(3) A certificate of cancellation of a limited
liability company’s registration issued by the registrar under paragraph (1)
shall be conclusive evidence as to the cancellation of the registration of the
limited liability company.
(4) Notwithstanding paragraph (3), where
the registration of a limited liability company has been cancelled under this
Article, on an application made by –
(a) a person who was a member immediately before
the cancellation; or
(b) any other person appearing to the Court to
be interested,
the Court may at any time
within 10 years of the date of the cancellation make an order, on such
terms as the Court thinks fit, declaring the cancellation of the registration
void.
(5) In making an order under paragraph (4),
the Court may give such directions and make such provisions as seem to the
Court to be just, including directions and provisions –
(a) with the aim of placing the limited
liability company and all other persons in the same position as nearly as may
be as if the registration of the limited liability company had not been
cancelled; and
(b) requiring the registrar to publish a notice
of the Court’s decision and the effect of that decision on the
cancellation of registration.
(6) The person on whose application the order
under paragraph (4) was made shall, within 14 days after the making
of the order (or such further time as the Court may allow), deliver the
relevant Act of Court to the registrar for registration.
(7) A person who fails to comply with paragraph (6)
is guilty of an offence.
7 Name
of limited liability company
(1) The registered name of a limited liability company
shall end with the words “Limited Liability Company” in full or either
of the abbreviations “LLC” or “L.L.C.” and
notwithstanding its registered name, a limited liability company may use such
words and abbreviations interchangeably when providing its name in the ordinary
course of business where convenient, provided such use is not misleading.
(2) An application to reserve the name of a
limited liability company may be made by an authorized person and delivered to
the registrar in the prescribed form stating the proposed name of the limited
liability company and the registrar may reserve that name for the exclusive use
of the applicant.
(3) The registrar may refuse to register a
declaration or an amendment statement or reserve the name of a limited
liability company where the name to be registered is, in the registrar’s
opinion, in any way misleading or otherwise undesirable.
(4) If, in the opinion of the registrar, the name by
which a limited liability company has been registered is misleading or
otherwise undesirable, the registrar may direct the limited liability company to
change it.
(5) Subject to paragraph (6),
the limited liability company shall comply with a direction under paragraph (4)
within 3 months from the date of the direction or such longer period as
the registrar may allow.
(6) The limited liability company
may, within 21 days from the date of a direction under paragraph (4),
apply to the Court to set it aside and, if such application is made, the Court
may set the direction aside or confirm it.
(7) If the Court confirms
the direction, the Court –
(a) shall specify a period,
not being less than 28 days from the date the Court confirmed it, within
which the limited liability company shall comply with the direction; and
(b) may order the registrar
to pay the limited liability company such sum (if any) as it thinks fit in
respect of the expenses to be incurred by the limited liability company in
complying with the direction where the Court is of the opinion that the
registrar has acted negligently, or in bad faith in respect of the name that
was registered prior to the making of the direction.
(8) A change of name of a limited liability company
shall take effect upon an amended certificate of formation being issued in
respect of it by the registrar under Article 5(2).
(9) A change of name of a limited liability company
does not affect any rights or liabilities of the limited liability company or
render defective any legal proceedings by, or against it, and any legal
proceedings that might have been continued or commenced against it under its
former name may be continued or commenced against it under its new name.
(10) Where a limited liability company which has its
name inscribed in the Public Registry as being the holder of, or having an
interest in, immovable property changes its name, the limited liability company
shall deliver to the Judicial Greffier a copy of the amended certificate of
formation issued by the registrar pursuant to Article 5(2) within
14 days after it is issued.
(11) Upon delivery of the copy referred to in paragraph (10),
the Judicial Greffier shall cause the new name to be registered in the Public
Registry.
(12) A limited liability company shall have clearly
stated on all its business letters, statements of account, invoices, order
forms, notices and other official publications, and on negotiable instruments
and any letters of credit signed on behalf of the limited liability company –
(a) its name;
(b) any number or other identifying code
assigned to it by the registrar; and
(c) the words “registered as a limited
liability company in Jersey”.
(13) A limited liability company that fails to comply
with paragraph (5), (10) or (12) shall be guilty of an offence.
8 Registered office
(1) A limited liability company shall have a registered
office in Jersey.
(2) A limited liability company does not comply
with paragraph (1) unless the occupier of the premises that are the
registered office authorizes for the time being that the premises may be used
as the registered office of the limited liability company.
(3) Subject to paragraphs (4) and (5), a
limited liability company may change the address of its registered office from
time to time by giving notice to the registrar.
(4) A change of the address of the registered
office of a limited liability company shall take effect on the registration by
the registrar of the notice given under paragraph (3), but until the end
of the period of 14 days beginning on the date on which it is registered,
a person may validly serve any document on the limited liability company at its
previous registered office.
(5) The registrar may refuse to register a
notice given under paragraph (3), if he or she is not satisfied that the
occupier of the premises that are to be the registered office of the limited liability
company authorizes the use of the premises as the registered office of the
limited liability company.
(6) A limited liability company shall keep at
its registered office the following records –
(a) a
document containing a list of the name and addresses of each member and manager
of the limited liability company;
(b) a
copy of the declaration;
(c) a
copy of any other statement delivered to the registrar under this Law;
(d) a
copy of the certificate of formation and any other certificate issued by the
registrar under this Law;
(e) a
copy of the LLC agreement and each amendment made to it;
(f) a statement of the amount of any
contributions agreed to be made by each member and the time at which, or events
on the happening of which, the contributions are to be made;
(g) a statement of the amount of money and
nature and value of any other property or services contributed by each member
and the dates that the contributions were made;
(h) a statement of the amount of contributions
returned to members and the dates that the contributions were returned; and
(i) such
other particulars as may be prescribed.
(7) The list of names referred to in paragraph (6)(a)
must be placed in alphabetical order.
(8) The documents kept under paragraph (6)
shall be –
(a) prima facie evidence of the information which is by
that paragraph directed to be contained in them; and
(b) subject
to paragraph (9), available for inspection and copying without charge at
the limited liability company’s registered office, during the ordinary business
hours of the limited liability company, at the request of a member or manager.
(9) Notwithstanding paragraph (8), but subject
to any other provision to the contrary in this Law or any other enactment, the
LLC agreement may restrict a member’s access to –
(a) documents kept under paragraph (6)(f),
(g) or (h) to the extent that they relate to contributions made by other
members and under the LLC agreement such information is intended to be kept
confidential;
(b) any other information –
(i) the disclosure of which is believed in
good faith to not be in the best interests of the limited liability company or
could damage the limited liability company or its business, or
(ii) which the limited liability company is
required by any other enactment or by agreement to keep confidential.
(10) The limited liability company shall amend the list
kept under paragraph (6)(a) within 28 days after any change in the
particulars contained in it.
(11) A limited liability company shall send to the
registrar copies of any of the documents kept under paragraph (6) within
14 days of the registrar requesting any such documents.
(12) A limited liability company that fails to comply
with the requirements of paragraph (6), (7), (8)(b), (10) or (11) shall be
guilty of an offence.
9 Limited
liability company secretary
(1) Every limited liability company, from the
date it is registered –
(a) must appoint a secretary; and
(b) may appoint a deputy secretary, in
accordance with paragraph (3), to carry out the secretary’s function
if , for any reason the secretary is unable to carry out that function.
(2) The duty to have a secretary shall cease
only upon cancellation of a limited liability company’s registration
under Article 6 or in any circumstances described in Regulations made
under this Law concerning the secretary’s appointment.
(3) The secretary or a deputy secretary must
be –
(a) a company that is –
(i) a member or manager in the limited
liability company and has a registered office in Jersey, or
(ii) registered under Part 2 of the
Financial Services (Jersey) Law 1998[4] to carry on trust company business that permits the provision by
that company of the services mentioned in Article 2(4)(e) of that Law; or
(b) an individual who is –
(i) a member or manager in the limited
liability company and ordinarily resident in Jersey, or
(ii) registered under Part 2 of the
Financial Services (Jersey) Law 1998 to carry on trust company business
that permits the provision by that individual of the services mentioned in Article 2(4)(e)
of that Law.
(4) In the event of a secretary’s
appointment ceasing, or the requirements in paragraph (3)(a) or (b) in
relation to the secretary appointed ceasing to be satisfied, the limited
liability company must appoint a new secretary no later than 28 days after
that cessation.
(5) A limited liability company that fails to
comply with the requirements in paragraphs (1) or (4) shall be guilty of
an offence.
10 Records to be
held by secretary
(1) Except as provided in Regulations made under
Article 60, the secretary shall keep for 10 years at a place in
Jersey all the accounting records and returns of the limited liability company
that are provided to the secretary by the limited liability company under this
Law.
(2) If the secretary sends any document to the
registrar or the Commission in accordance with a requirement in this Law, the
secretary shall keep a copy of it, and the duty in paragraph (1) applies
to any copies of documents retained under this paragraph.
(3) A secretary who fails to comply with paragraph (1)
or (2) shall be guilty of an offence.
11 Service
of documents on limited liability company
The service of a document
on a limited liability company may be effected by sending it by post or delivering
it to the registered office of the limited liability company.
12 Series of
members, managers, LLC interests or assets.
(1) Subject to the LLC agreement,
a limited liability company may apply to the registrar to create one or more
designated series consisting of members, managers, LLC interests or assets,
each of which shall have legal personality separate from that of its members,
the limited liability company and any other series thereof but shall not be a
body corporate.
(2) Subject to this Article, this Law shall
apply in relation to a series as if a reference in this Law –
(a) to a limited liability company were a
reference to the series;
(b) to a manager of a limited liability company
were a reference to a manager of the series;
(c) to an LLC agreement were a reference to the
LLC agreement provisions relating to the series;
(d) to the formation and dissolution of a
limited liability company were a reference to the formation of the series;
(e) to a member of a limited liability were a
reference to a member of the series;
(f) to an LLC interest in the limited
liability company were a reference to the assets and liabilities of the series;
(g) to the assets and liabilities of a limited
liability company were a reference to the assets and liabilities of the series;
(h) to the records of a limited liability
company were a reference to the records of the series; and
(i) to the secretary and deputy secretary
of a limited liability company were a reference to the secretary and deputy
secretary of the series.
(3) An application under paragraph (1)
shall be in the form of a declaration.
(4) The name of a series shall be the name of
the limited liability company followed by “Series”, in turn
followed by a name or number, or both, that clearly distinguishes that series
from any other of the same limited liability company.
(5) The registered office of the series shall be
the registered office of the limited liability company and service of a
document on a series may be effected by sending it by post or delivering it to
that registered office.
(6) A series may have separate rights, powers or
duties with respect to specified property or liabilities of the limited liability
company or profits and losses associated with specified property or liabilities,
and any such series may have a separate business purpose or investment
objective.
(7) A series of a limited liability company may
not own an LLC interest in the limited liability company but, subject to the
LLC agreement, a series of a limited liability company may own an LLC interest
in any other series of the limited liability company.
(8) Following the formation
of a series, and subject to the LLC agreement and paragraph (9) –
(a) the debts, liabilities
and expenses incurred, contracted for or otherwise existing whether arising in contract
under customary law or otherwise with respect to a particular series shall be
enforceable against the assets of such series only, and not against the assets
of the limited liability company generally or any other series of the limited
liability company; and
(b) none of the debts,
liabilities and expenses incurred, contracted for or otherwise existing with
respect to the limited liability company generally, or any other series of the
limited liability company, shall be enforceable against the assets of such
series.
(9) Paragraph (10) or
any other provision pursuant to that paragraph in an LLC agreement shall
not –
(a) restrict a series or
limited liability company on behalf of a series from agreeing in the LLC
agreement or otherwise that any or all of the debts, liabilities, and expenses
incurred, contracted for or otherwise existing with respect to the limited
liability company generally, or any other series of the limited liability
company, shall be enforceable against the assets of such series;
(b) restrict a limited
liability company from agreeing in the LLC agreement or otherwise that any or
all of the debts, liabilities and expenses incurred, contracted for or
otherwise existing with respect to a series shall be enforceable against the
assets of the limited liability company generally; or
(c) prevent a member or
manager agreeing in the LLC agreement, or otherwise, from being liable personally
for any or all of the debts and other liabilities of one or more series.
(10) Assets of a series may be
held directly or indirectly, including in the name of such series, through a
nominee or otherwise.
(11) Records maintained for a
series that reasonably identify its assets, including by specific listing,
category, type, quantity, computational or allocational formula or procedure
(including a percentage or share of any asset or assets) or by any other method
where the identity of such assets is objectively determinable, will be deemed
to account for the assets of such series separately from the other assets of
the limited liability company, or any other series thereof.
(12) Subject to the LLC agreement,
any event specified under this Law or in an LLC agreement that causes a member
or manager to cease to be a member or manager with respect to a series shall
not, in itself, cause such member or manager to cease to be a member or manager
of the limited liability company or with respect to any other series thereof
(and vice versa).
PART
3
MEMBERS
AND LLC INTERESTS
13 Admission of
members and LLC interests
(1) In connection with the formation of a
limited liability company, a person is admitted as an initial member of the
limited liability company upon the later to occur of –
(a) the issuance of the
certificate of formation of the limited liability company; or
(b) the time provided in
and upon compliance with the LLC agreement or, if the LLC agreement does not so
provide, when the person’s admission is reflected in the records of the
limited liability company.
(2) After the formation of
a limited liability company, a person may be admitted as a member of the
limited liability company in the following circumstances –
(a) in the case of a person
acquiring an LLC interest from, or being issued with an LLC interest by, the
limited liability company, at the time provided in and upon compliance with the
LLC agreement, or if the LLC agreement does not so provide, upon –
(i) the consent of
all members, and
(ii) the person’s
admission being reflected in the records of the limited liability company;
(b) in the case of an assignee
of an LLC interest, as provided in Article 43 and at the time provided in
and upon compliance with the terms of the LLC agreement or, if the LLC
agreement does not so provide, when any such person’s permitted admission
is reflected in the records of the limited liability company;
(c) in all other cases, at
the time provided in and upon compliance with the LLC agreement, or if the LLC
agreement does not so provide, upon –
(i) the consent of
all members, and
(ii) the
person’s admission being reflected in the records of the limited
liability company.
(3) If the requirements for
or conditions to an admission contained in the LLC agreement have been complied
with in respect of a person (or, to the extent permitted by the LLC agreement,
waived), any such person, howsoever admitted, shall without the requirement for
any further actions or formalities, be deemed to have become a member and adhered
to and agreed to be bound by the terms and conditions of the LLC agreement from
that date as if that person and all existing members and any other parties to
the LLC agreement had together duly executed and delivered the LLC agreement.
(4) Subject to an LLC
agreement, a person may be admitted to a limited liability company as a member
of the limited liability company and may receive an LLC interest in, or be
granted other rights in respect of, the limited liability company without
making a contribution or being liable to make a contribution to the limited
liability company.
(5) Subject to an LLC agreement,
a person may be admitted to a limited liability company as a member of the
limited liability company without acquiring an LLC interest in the limited liability
company.
(6) Subject to an LLC
agreement, a person may be admitted as the sole member of a limited liability
company without making a contribution, or being liable to make a contribution,
to the limited liability company or without acquiring an LLC interest in the
limited liability company.
(7) Subject to an LLC
agreement or any agreement with the limited liability company, a member shall
have no pre-emptive right to subscribe for any issue of LLC interests or any
other interest in a limited liability company.
(8) Subject to an LLC
agreement, a member’s LLC interest may (but need not) be evidenced by a
certificate of LLC interest issued by the limited liability company.
(9) A certificate of LLC
interest issued by or on behalf of a limited liability company specifying that
a person is a member of that limited liability company (and specifying such
additional information, if any, as the limited liability company may determine)
and purportedly signed (including by an electronically affixed signature) with
the express or implied authority of the limited liability company, is
admissible in evidence as proof of that person’s membership of the
limited liability company and as proof of that additional information in
respect of that member’s LLC interest as may have been included in the
certificate by the limited liability company.
(10) An LLC interest of a member
in a limited liability company is movable property.
(11) A member has no interest in
any specific property of the limited liability company.
(12) Notwithstanding any other
provision of this Law, a limited liability company shall not issue bearer LLC
interests, bearer certificates or bearer coupons and any issue or purported
issue of such shall be void.
(13) In paragraph (12),
“bearer” means a document where title to the document or to what
the document represents is transferred, or purported to be transferred solely
by delivery of such document.
14 Classes of
members
(1) An LLC agreement may provide for classes or
groups of members having such relative rights, powers and duties as the LLC agreement
may provide, and may make provision for the future creation in the manner
provided in the LLC agreement of additional classes or groups of members having
such relative rights, powers and duties as may from time to time be
established, including rights, powers and duties senior to existing classes and
groups of members.
(2) Unless otherwise specified by the LLC
agreement –
(a) the rights, powers and duties of such
classes or groups of members may only be varied by a vote at a separate meeting
or with the consent in writing of such members; and
(b) in respect of every such separate meeting,
vote or consent in writing, the provisions of this Law relating to meetings,
votes and consent in writing of members of the limited liability company shall
apply as if reference to such members were reference to such classes or groups
of members.
15 Meetings of
members
(1) An LLC agreement may make provisions
relating to notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any members, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy, or any other matter with respect to
the exercise of any such right to vote.
(2) Unless otherwise provided in the LLC
agreement, a meeting of members may be held by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to
this paragraph shall constitute presence in person at the meeting.
16 Voting of members
(1) An LLC agreement may –
(a) provide for the taking of an action,
including the amendment of the LLC agreement, without the vote or approval of
any member or class of LLC interest or group of members;
(b) provide that any member or class or group of
members shall have no voting rights;
(c) grant to all or certain identified members
or a specified class of LLC interest or group of members the right to vote
separately or with all or any class of LLC interest or group of members or
managers, on any matter,
and voting by members may
be on a per capita, number, financial interest, class, group or any other basis.
(2) Subject to an LLC agreement or except as
otherwise provided by this Law, any vote (or consent) of members shall be
passed (or given) if passed (or given) by members who together hold a majority of
the total rights to the profits of the limited liability company, but where
that results in no members with a right to vote or provide consent, the members
may vote or consent by a simple majority in number.
(3) Subject to an LLC agreement, on any matter
that is to be voted on, consented to or approved by members, the matter may be
dealt with without a meeting, without prior notice and without a vote by
consent in writing, signed by the members having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all members entitled to vote thereon were present and voted.
(4) Subject to the LLC agreement, if a person
(whether or not then a member), consenting as a member to any matter provides
that such consent will be effective at a future time (including a time
determined upon the happening of an event), such a person shall be deemed to
have consented as a member at such future time so long as such a person is then
a member.
(5) Subject to an LLC agreement, on any matter
that is to be voted on by members, the members may vote in person or by proxy,
and such proxy may be granted in writing or by means of electronic communication
or as.
(6) Subject to an LLC agreement, a consent
transmitted by electronic communication by a member or by a person or persons
authorized to act for a member shall be deemed to be written and signed for
purposes of this Article.
17 Resignation as a
member on insolvency etc.
(1) Subject to an LLC agreement, or unless all
members otherwise consent, a person shall be treated as having resigned as a
member of a limited liability company immediately upon the happening of any of
the following events –
(a) the member –
(i) makes an assignment for the benefit of
creditors,
(ii) is insolvent or becomes bankrupt or
has entered against the member an order for relief, in any bankruptcy or
insolvency proceeding,
(iii) files a petition or
answer seeking for the member any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any enactment,
(iv) files an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against the
member in any proceeding of this nature, or
(v) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the member or of all or any
substantial part of the member’s assets; or
(b) 120 days after the commencement of any
proceeding against the member seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any enactment, if
the proceeding has not been dismissed; or
(c) if within 90 days after the appointment
without the member’s consent or acquiescence of a trustee, receiver or
liquidator of the member or of all or any substantial part of the member’s
assets, the appointment is not vacated or stayed, or within 90 days after
the expiration of any such stay, the appointment is not vacated.
(2) If a member who is an individual dies or a
court of competent jurisdiction adjudges the member to be incompetent to manage
the member’s person or property, then the member’s personal
representative (or equivalent, as applicable) may exercise all of that
member’s rights for the purpose of settling the member’s estate or
administering the member’s property, including –
(a) any power under an LLC agreement of an
assignee to become a member;
(b) exercising any rights of transfer in respect
of all or part of the member’s LLC interest.
18 Liabilities to
third parties
(1) Except as otherwise provided by this Law,
the debts and other liabilities of a limited liability company, whether arising
in contract under customary law or otherwise, shall be solely the debts and other
liabilities of the limited liability company, and neither a member nor a manager
of a limited liability company shall be personally liable for any such debts or
other liabilities of the limited liability company solely by reason of being a
member or acting as a manager of the limited liability company.
(2) Notwithstanding paragraph (1), a member
or manager may, in accordance with the LLC agreement or otherwise, agree to be liable
personally for any or all of the debts and other liabilities of the limited
liability company.
19 Member may bind
limited liability company
Subject to the LLC
agreement, a member shall have the authority to bind the limited liability
company if no manager has been appointed or holds office.
20 Resignation of
member
A member may resign from
and cease to be a member of a limited liability company only at the time or
upon the happening of events specified in an LLC agreement and in accordance
with the LLC agreement or as otherwise provided in this Law or with the consent
of all of the other members.
PART 4
MANAGERS
21 Management of
limited liability company
(1) An LLC agreement may –
(a) provide for the management of a limited
liability company by a manager; and
(b) provide for the appointment of a person as a
manager of a limited liability company.
(2) If an LLC agreement provides for the management
of a limited liability company by a manager and for the appointment of a person
as a manager of a limited liability company in accordance with paragraph (1),
the management of the LLC shall vest in that manager to the extent provided.
(3) A manager shall hold
the offices and have the responsibilities accorded to the manager by or in the
manner provided in the LLC agreement.
(4) Where the LLC agreement –
(a) does not provide for the management of a
limited liability company by a manager; or
(b) provides for the management of a limited
liability company by a manager but no manager is appointed,
the management of the
limited liability company shall vest in its members.
(5) A limited liability company may have more
than one manager.
(6) Subject to the LLC agreement, each manager shall
have the authority to bind the limited liability company.
(7) Subject to this Law, a manager shall cease
to be a manager only as provided in the LLC agreement.
(8) If the LLC agreement provides for the
appointment of a manager but is silent as to removal, unless a contrary
intention appears in the LLC agreement there shall be taken to be included in
the LLC agreement a provision that a manager may be removed by a vote or with
the consent of the members of the limited liability company.
22 Contributions by
manager
(1) A manager of a limited liability company may
make contributions to the limited liability company and share in the profits
and losses of, and in distributions from, the limited liability company as a
member.
(2) A person who is both a manager and a member
has the rights and powers, and is subject to the restrictions and liabilities,
of a manager and, subject to the LLC agreement, also has the rights and powers,
and is subject to the restrictions and liabilities, of a member to the extent
of the manager’s participation in the limited liability company as a
member.
23 Classes of
managers
An LLC agreement may
provide for classes or groups of managers having such relative rights, powers
and duties as the LLC agreement may provide, and may make provision for the
future creation in the manner provided in the LLC agreement of additional
classes or groups of managers having such relative rights, powers and duties as
may from time to time be established, including rights, powers and duties
senior to existing classes and groups of managers.
24 Meetings of
managers
(1) An LLC agreement may make provision relating
to notice of the time, place or purpose of any meeting at which any matter is
to be voted on by any manager or class or group of managers, waiver of any such
notice, action by consent without a meeting, the establishment of a record
date, quorum requirements, voting in person or by proxy, or any other matter
with respect to the exercise of any such right to vote.
(2) Unless otherwise provided in the LLC
agreement, a meeting of managers may be held by means of conference telephone
or other communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to this
paragraph shall constitute presence in person at the meeting.
25 Voting of
managers
(1) An LLC agreement may –
(a) provide for the taking of an action,
including the amendment of the LLC agreement, without the vote or approval of
any manager or class or group of managers, including an action to create under
the provisions of the LLC agreement a class or group of LLC interests that was
not previously outstanding;
(b) grant to all or certain identified managers
or a specified class or group of managers the right to vote, separately or with
all or any class or group of managers or members, on any matter,
and voting by managers may
be on a per capita, number, financial interest, class, group or any other
basis.
(2) Subject to the LLC agreement and except as
otherwise provided in this Law, any matter may be decided by a vote of the
managers or class or group of managers shall be decided on a simple majority of
votes.
(3) Unless otherwise provided in the LLC
agreement, on any matter that is to be voted on, consented to or approved by
managers, the managers may take such action without a meeting, without prior
notice and without a vote if consented to, in writing or by electronic communication,
by managers having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all managers
entitled to vote thereon were present and voted.
(4) Subject to the LLC agreement, if a person
(whether or not then a manager) consenting as a manager to any matter provides
that such consent will be effective at a future time (including a time
determined upon the happening of an event), then such person shall be deemed to
have consented as a manager at such future time so long as such person is then
a manager.
(5) Subject to the LLC agreement, on any matter
that is to be voted on by managers, the managers may vote in person or by
proxy, and such proxy may be granted in writing or by means of an electronic
communication.
(6) Subject to the LLC agreement, a consent
transmitted by means of an electronic communication by a manager or by a person
or persons authorized to act for a manager shall be deemed to be written and
signed for purposes of this Article.
26 Reliance on
information, reports etc. by member or manager
A member or manager of a
limited liability company shall be fully protected in relying in good faith
upon the records of the limited liability company and upon information,
opinions, reports or statements presented by another manager or member, an
officer or employee of the limited liability company, or committees of the
limited liability company, members or managers, or by any other person as to
matters the member or manager reasonably believes are within such other person’s
professional or expert competence including –
(a) information, opinions, reports or statements
as to –
(i) the value and amount of the assets,
liabilities, profits or losses of the limited liability company, or
(ii) the value and amount of assets or
reserves or contracts, agreements or other undertakings that would be
sufficient to pay claims and liabilities of the limited liability company or to
make reasonable provision to pay such claims and liabilities; or
(b) any other facts pertinent to the existence
and amount of assets from which distributions to members or creditors might
properly be paid.
27 Delegation of
rights and powers to manage
(1) Subject to the LLC
agreement, a member or manager of a limited liability company has the power and
authority to delegate to one or more other persons their rights and powers to
manage and control the business and affairs of the limited liability company, including
to delegate to agents, officers and employees of a member or manager or the
limited liability company, and to delegate by a management agreement or another
agreement with, or otherwise to, other persons.
(2) Subject to the LLC
agreement delegation by a member or manager under paragraph (1) –
(a) shall be irrevocable if
it states that it is irrevocable; and
(b) shall not cause the
member or manager to cease to be a member or manager, as the case may be, of
the limited liability company or cause the person to whom any such rights and
powers have been delegated to be a member or manager, as the case may be, of
the limited liability company.
28 Resignation of
manager
(1) A manager may resign as a manager of a
limited liability company at the time or upon the happening of events specified
in the LLC agreement and in accordance with the LLC agreement.
(2) An LLC agreement may provide that a manager
shall not have the right to resign as a manager of a limited liability company.
(3) Notwithstanding that an LLC agreement
provides that a manager does not have the right to resign as a manager of a
limited liability company, a manager may resign as a manager of a limited
liability company at any time by giving written notice to the members and other
managers.
(4) If the resignation of a manager contravenes
the LLC agreement, in addition to any remedies otherwise available under any
other enactment a limited liability company may recover from the resigning
manager damages for breach of the LLC agreement and offset the damages against
the amount otherwise distributable to the resigning manager.
PART 5
FINANCE
29 Form
of contribution
The contribution of a
member to a limited liability company may be in the form of cash, property or
services rendered, or an undertaking or other obligation to contribute cash or
property or to perform services.
30 Liability for contribution
(1) Subject to the LLC agreement, a member is liable
to a limited liability company to perform any promise to contribute cash or
property or to perform services, even if the member is unable to perform
because of death, disability or any other reason.
(2) If a member does not make the required
contribution of property or services, the member is liable at the option of the
limited liability company to contribute cash equal to that portion of the
agreed value (as stated in the records of the limited liability company) of the
contribution that has not been made.
(3) The option to contribute cash under paragraph (2)
shall be in addition to, and not in lieu of, any other rights, including the
right to specific performance, that the limited liability company may have
against such member pursuant to the LLC agreement or applicable law.
(4) Subject to the LLC agreement, the obligation
of a member to make a contribution or return money or other property paid or
distributed in contravention of this Article may be compromised only by consent
of all the members.
(5) Notwithstanding any such compromise under paragraph (4),
a creditor of a limited liability company who extends credit, after the
entering into of an LLC agreement or an amendment thereto which, in either
case, reflects the obligation, and before the amendment thereof to reflect the
compromise, may enforce the original obligation to the extent that, in extending
credit, the creditor reasonably relied on the obligation of a member to make a
contribution or return.
(6) A conditional obligation of a member to make
a contribution or return money or other property to a limited liability company
may not be enforced unless the conditions of the obligation have been satisfied
or waived as to or by such member.
(7) In this Article “conditional
obligation” includes a contribution payable upon a discretionary call of
a limited liability company prior to the time the call occurs.
31 Allocation of
profit and losses
The profits and losses of a
limited liability company –
(a) shall be allocated among the members, and
among classes or groups of members, in the manner provided in the LLC agreement;
or
(b) if the LLC agreement does not provide for
the allocation as in paragraph (a), profits and losses, shall be allocated
on the basis of the agreed value (as stated in the records of the limited
liability company) of the contributions made by each member to the extent they
have been received by the limited liability company and have not been returned.
32 Allocation of
distributions
Distributions of cash or
other assets of a limited liability company –
(a) shall be allocated among the members, and
among classes or groups of members, in the manner provided in the LLC agreement;
or
(b) if the LLC agreement does not provide for
the allocation as in paragraph (a), distributions, shall be made on the
basis of the agreed value (as stated in the records of the limited liability
company) of the contributions made by each member to the extent they have been
received by the limited liability company and have not been returned.
PART 6
DISTRIBUTIONS
33 Payment of
distributions
(1) An LLC agreement may provide for the
distribution of the assets of the limited liability company in such manner,
time and form as provided therein, including distributions in cash and in kind.
(2) An LLC agreement may provide for the
establishment of a record date with respect to distributions by a limited
liability company.
34 Distributions
upon resignation
Except as otherwise provided
in this Part, upon resignation any resigning member is entitled to receive any
distribution to which such member is entitled pursuant to the LLC agreement
and, if not otherwise provided in the LLC agreement, such member is entitled to
receive, within a reasonable time after resignation, the fair value of such
member’s LLC interest as of the date of resignation based upon such
member’s right to share in distributions from the limited liability
company.
35 Distribution in
kind
(1) Subject to the LLC agreement, a member,
regardless of the nature of the member’s contribution, has no right to demand
and receive any distribution from a limited liability company in any form other
than cash.
(2) Subject to the LLC agreement, a member may only
be compelled to accept the member’s allocated percentage of a
distribution of any asset in kind from a limited liability company to its
members, if that percentage is equal to the percentage in which the member
shares in distributions from the limited liability company.
36 Right to
distribution
Subject to Article 37,
any Regulations made under Article 60 and the LLC agreement, at the time a
member becomes entitled to receive a distribution, the member has the status
of, and is entitled to, all remedies available to a creditor of a limited
liability company with respect to the distribution.
37 Limitation on
distribution
(1) Subject to paragraph (2), a limited
liability company shall not make a distribution to a member if, at the time
when and immediately after payment is made, the limited liability company is
insolvent.
(2) For the purposes of paragraph (1), “distribution”
shall not include amounts constituting reasonable compensation for present or
past services or reasonable payments made in the ordinary course of business
pursuant to a bona fide retirement plan or other benefits programme.
(3) For a period of 6 months from the date
of receipt by a member of a distribution or purported release from an
obligation in contravention of paragraph (1) or in the case of fraud, such
member shall be liable to the limited liability company for the amount of the
distribution or for performance of the obligation purportedly released.
PART 7
ASSIGNMENT OF LLC INTEREST
38 Assignment of LLC
interest
(1) Subject to the LLC agreement, an LLC
interest is assignable in whole or in part.
(2) Notwithstanding anything to the contrary
under any other enactment, an LLC agreement may provide that an LLC interest
may not be assigned prior to the dissolution and winding up of the limited
liability company.
39 Assignee right to
participate in management of limited liability company
The assignee of an LLC
interest not admitted as a member shall have no right to participate in the
management of the business and affairs of a limited liability company except as
provided in the LLC agreement or otherwise upon the vote or consent of all of
the members of the limited liability company.
40 Assignee right to
exercise rights and powers of a member
Subject to the LLC agreement –
(a) an assignment of an LLC interest does not
entitle the assignee (being a person not yet admitted as a member) to become or
to exercise any rights or powers of a member; but
(b) an assignment of an LLC interest entitles
the assignee to share in such profits and losses, to receive such distribution
or distributions, and to receive such allocation of income, gain, loss, deduction,
or credit or similar item to which the assignor was entitled, to the extent
assigned.
41 No liability
solely as a result of the assignment
Subject to this Law, the
LLC agreement and except to the extent assumed by agreement, until an assignee
of an LLC interest becomes a member, the assignee shall have no liability as a
member solely as a result of the assignment.
42 Ceasing of rights
of member on assignment
(1) Subject to the LLC agreement, a member
ceases to be a member and to have the power to exercise any rights or powers of
a member upon a person to whom the member has assigned all of the member’s
LLC interest becoming a member but the granting of a security interest, or the
creation of any other encumbrance in or against, any or all of the LLC interest
of a member shall not in itself cause the member to cease to be a member or to
have the power to exercise any rights or powers of a member.
(2) Whether or not an assignee of an LLC
interest becomes a member, the assignor is not released from liability to the
limited liability company under Articles 30(1) and 37(3).
43 Right of assignee
to become a member
An assignee of all or part
of an LLC interest may become a member in respect of the assigned LLC
interest –
(a) if permitted in the LLC agreement, in
accordance with the terms of the LLC agreement; or
(b) if the LLC agreement is silent on such
matters, with the approval of all of the members of the limited liability
company.
44 Rights, powers
and liabilities of assignee upon becoming a member
(1) An assignee who has become a member has, to
the extent assigned and transferred, the rights and powers, and is subject to
the restrictions and liabilities, of a member contained in the LLC agreement,
this Law and any other enactment.
(2) Notwithstanding paragraph (1), unless
otherwise provided in an LLC agreement, an assignee that becomes a member in
respect of all or part of an LLC interest –
(a) is liable for the obligations of the
assignor to make contributions as provided for in Article 30 in respect of
the LLC interest (or part thereof) so transferred unless they were unknown to
the assignee at the time the assignee became a member and could not be
ascertained from the LLC agreement; and
(b) is not liable for any other obligations of
the assignor with regard to distributions.
45 Acquisition by
limited liability company of interest of member or manager
(1) Subject to the LLC agreement, a limited
liability company may acquire, by purchase, redemption or otherwise, any LLC
interest or other interest of a member or manager in the limited liability
company if immediately following the acquisition, the LLC does not become insolvent.
(2) Notwithstanding an acquisition referred to
in paragraph (1), a limited liability company may not become a member of
itself and any such LLC interest so acquired by the limited liability company
shall be deemed cancelled.
PART 8
MISCELLANEOUS AND FINAL PROVISIONS
46 Rules of
customary Law
The rules of customary Law
applicable to partnerships shall apply to limited liability companies except in
so far as they are inconsistent with the express provisions of this Law or the
nature of a limited liability company including that –
(a) the liability of its members is limited to
their contributions pursuant to this Law; and
(b) it is managed by its members or by one or
more managers that may or may not be members, in accordance with this Law.
47 Fiduciary and
other duties owed and not owed
(1) A manager in exercising the manager’s
powers and discharging the manager’s duties, shall –
(a) act honestly and in good faith with a view
to the best interests of the limited liability company; and
(b) exercise the care, diligence and skill that
a reasonably prudent person would exercise in comparable circumstances.
(2) Subject to this Law, the rights and duties
of the members in a limited liability company shall, as between themselves, be
determined by the LLC agreement.
48 Appointment and functions of registrar
(1) The
registrar of companies appointed under Article 196 of the Companies
(Jersey) Law 1991[5] shall be the registrar of
limited liability companies.
(2) The
registrar shall maintain a register of limited liability companies which shall
contain any declaration, return or statement, or copy of any such declaration,
return or statement, delivered to the registrar and the issue of any
certificate by the registrar pursuant to this Law.
(3) Any
certificate issued by the registrar under this Law shall be signed by the
registrar and sealed with the registrar’s seal (if any).
(4) The
Commission may direct a seal to be prepared for the authentication of documents
required for or in connection with the registration of limited liability
companies.
(5) Any
functions 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.
(6) The
registrar, on application or of his or her own motion, if the registrar is satisfied
that it is necessary to do so, may remove from the register material
that –
(a) derives from anything invalid
or ineffective or that was done without the authority of the limited liability company;
or
(b) is inaccurate, or is
derived from something that is inaccurate or forged.
(7) Before
exercising the power in paragraph (6), the registrar must publish his or
her policy as to applications made under this Law, including –
(a) who may make an
application;
(b) the information to be
included in and documents to accompany an application;
(c) the notice to be given
of an application and of its outcome;
(d) a period in which
objections to an application may be made;
(e) how an application is
to be determined; or
(f) the appeal
process that will apply in a case where a person is aggrieved by the
registrar’s decision to remove the material.
49 Annual
administration fee
(1) The
Commission may require the payment to it by a limited liability company of a
published annual administration fee.
(2) The
annual administration fee is payable if it has been published and is in effect
in accordance with Article 15 of the Financial Services Commission
(Jersey) Law 1998.
(3) The
States may by Regulations provide that, in addition to the annual
administration fee, a limited liability company shall pay to the Commission
annually such amount as the Minister may by Order specify.
(4) The
annual administration fee and the annual additional amount (if any) shall be payable
by a limited liability company to the Commission by the time specified in the
notice of fees published by the Commission in accordance with paragraph (2)
or, if no such time is specified, before the end of February in each year
following the year in which the limited liability company is established.
(5) An
annual administration fee and an annual additional amount (if any) are debts
due by a limited liability company to the Commission, and are recoverable
accordingly in a court of competent jurisdiction.
(6) The
Commission shall pay to the Treasurer of the States the additional amounts that
are paid to the Commission under an Order made under paragraph (2).
50 Fees,
charges and forms
(1) Subject
to paragraph (2), the Commission may require the payment to it of fees in
respect of the performance by the registrar of his or her functions under this
Law or a charge for the provision by the registrar of any service, advice, or
assistance.
(2) A fee
referred to in under paragraph (1) is payable if it has been published and is
in effect in accordance with Article 15 of the Financial Services
Commission (Jersey) Law 1998.
(3) The
Commission may in addition to the payment of fees under paragraph (1),
require –
(a) the
payment to it of fees in respect of the performance by the registrar of his or
her functions under this Law;
(b) the
payment of a fee for the provision by the registrar of –
(i) any service or
assistance, or
(ii) any documents, or
information; and
(c) the
payment of a late delivery fee if a copy of a document is not delivered to the
registrar and required by this Law, which shall be payable when the copy of the
document is delivered.
(4) Where
a fee mentioned in paragraph (1) is payable in respect of the performance
of a function by the registrar, the registrar does not need to take any action
until the fee is paid.
(5) Where
the fee mentioned in paragraph (1) is payable on the receipt by the
registrar of a document required to be delivered to the registrar, the
registrar shall be taken not to have received the document until the fee is
paid.
(6) The
Commission may publish forms and other documents to be used for any of the
purposes of this Law, together with details of the manner in which any such
document to be delivered to the registrar is to be delivered or authenticated.
51 Form of documents
to be delivered to registrar
Where any Article of this Law requires a document to be delivered to
the registrar, but the form of the document has not been published, it shall be
sufficient compliance with that requirement if –
(a) the
document is delivered in a form and manner that are acceptable to the
registrar; or
(b) any
information to which the requirement relates is delivered in material, other
than a document, that is acceptable to the registrar,
and the document or material, as the case may be, is accompanied by
the published fee, if any.
52 Inspection
and production of documents kept by registrar
(1) Subject
to the provisions of this Article, a person may –
(a) inspect a document
delivered to the registrar under this Law and kept by the registrar or, if the
registrar thinks fit, a copy thereof;
(b) require a certificate
of the registration of a declaration or copy, certified or otherwise, of any
other document or part of any other document referred to in sub-paragraph (a),
and a certificate given under sub-paragraph (b) shall be signed
by the registrar and sealed with the registrar’s seal (if any).
(2) A
copy of or extract from a record kept by the registrar, certified in writing by
the registrar (whose official position it is unnecessary to prove) to be an
accurate copy of such record delivered to the registrar under this Law, shall
in all legal proceedings be admissible in evidence as of equal validity with
the original record and as evidence of any fact stated therein of which direct
oral evidence would be admissible.
(3) The
registrar may publish details of the times during which, and the manner by
which, a document may be inspected or issued under paragraph (1).
53 Destruction
of old records
(1) Where
a limited liability company has been dissolved, the registrar may, at any time
after 10 years from the date of the dissolution, destroy any records
relating to that limited liability company in the registrar’s possession
or under the registrar’s control.
(2) After
10 years from the dissolution of an incorporated limited liability company
no responsibility rests on a member, manager or a person to whom custody of the
records has been committed, by reason of any record not being forthcoming to a
person claiming to be interested in it.
54 Form
of limited liability company’s records
(1) The
records that a limited liability company is required by this Law to keep may be
kept in the form of a bound or loose-leaf book, or photographic film, or may be
entered or recorded by a system of mechanical or electronic data processing or
any other information storage device that is capable of reproducing any
required information in intelligible written form within a reasonable time.
(2) A
limited liability company shall take reasonable precautions –
(a) to prevent loss or
destruction of;
(b) to prevent
falsification of entries in; and
(c) to facilitate detection
and correction of inaccuracies in,
the records required by this Law to be kept.
(3) Each
manager of a limited liability company shall take reasonable steps to ensure
that the limited liability company’s records are prepared and kept
properly and accurately and that, in particular, they contain entries of all
sums of money received and expended by the limited liability company, the
matters in respect of which the receipt and expenditure takes place and a
record of the assets and liabilities of the limited liability company in any other
legal person or arrangement.
(4) A
secretary must take reasonable precautions –
(a) to prevent loss or
destruction of;
(b) to prevent
falsification of entries in; and
(c) to facilitate detection
and correction of inaccuracies in,
the records the secretary is required by Article 10(1) and (2)
to be kept.
(5) A
person who ceases to be the secretary of a limited liability company in
accordance with Article 9(2) must –
(a) retain
all the documents of the limited liability company kept by that person in accordance
with Article 10 and take the reasonable precautions described in paragraphs (2)(a)
and (b) as if the person were still the secretary until such time as the person
delivers those documents in accordance with sub-paragraph (b) to the new
secretary appointed under Article 9(4), or such other person as may be
specified in Regulations made under Article 58; and
(b) deliver
those documents to the new secretary appointed under Article 9(4) within
14 days of being notified of the name and address of the new secretary, or
to such other person as may be specified in Regulations under Article 60,
within such period as may be specified in those Regulations.
(6) A
limited liability company that fails to comply with paragraph (2), is
guilty of an offence and liable to a fine of level 3 on the standard scale.
(7) A
manager who fails to comply with the requirements of paragraph (3) shall
be guilty of an offence.
(8) A
secretary who fails to comply with the requirements of paragraph (4) shall
be guilty of an offence.
(9) A
person who fails to comply with the requirements of paragraph (5) shall be
guilty of an offence.
55 Registration
in the Public Registry
The Judicial Greffier shall register in the Public Registry all Acts
of Court and orders affecting immovable property made under this Law.
56 Offences of giving false
or misleading etc. information
(1) A
person who makes a statement in any document, material, evidence or information
which is required to be kept under Article 8(6) or to delivered to the
registrar under this Law that, at the time and in the light of the
circumstances under which it is made, is false or misleading with respect to
any material fact, or that omits to state any material fact the omission of
which makes the statement false or misleading, shall be guilty of an offence.
(2) A
person shall not be guilty of an offence under paragraph (1) if the person
did not know that the statement was false or misleading and with the exercise
of reasonable diligence could not have known that the statement was false or
misleading.
(3) A
person who carries on a business under a name or title which includes the words
“limited liability company” or any contraction of those words when
the person is not registered as a limited liability company under this Law or
otherwise established as a limited liability company in another jurisdiction,
shall be guilty of an offence.
(4) A
person who wilfully takes or uses any name, title, addition or description
implying that the person is a member or manager in a limited liability company when
the person is not, or implying that a person is a member or manager in a body which
is not a limited liability company when the body is a limited liability company,
shall be guilty of an offence.
57 Criminal
liability of partners, directors and other officers
(1) Where
an offence under this Law committed by a limited liability partnership, a
separate limited partnership, any other partnership having separate legal
personality or a body corporate is proved to have been committed with the
consent or connivance of, or to be attributable to any neglect on the part of –
(a) a
person who is a partner of the partnership, or director, manager, secretary, or
other similar officer of the body corporate; or
(b) any
person purporting to act in any such capacity,
the person is also guilty of the offence and liable in the same
manner as the partnership or body corporate to the penalty provided for that
offence.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
applies in relation to acts and defaults of a member in connection with the
member’s functions of management as if he or she were a director of the
body corporate.
58 Limitation
of liability
(1) No
person or body to whom this Article applies shall be liable in damages for
anything done or omitted in the discharge or purported discharge of any
functions under this Law or any enactment made, or purportedly made, under this
Law unless it is shown that the act or omission was in bad faith.
(2) This
Article applies to –
(a) the
States;
(b) the
Minister or any person who is, or is acting as, an officer, employee or agent
in an administration of the States for which the Minister is assigned
responsibility;
(c) the
Commission, any Commissioner or any person who is, or is acting as, an officer,
servant or agent of the Commission; and
(d) the
registrar, the deputy registrar, an assistant registrar or any person who is,
or is acting as, an officer, employee or agent of the registrar.
(3) The
limitation of liability under this Article does not apply so as to prevent an
award of damages made in respect of an act on the ground that the act was
unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000[6].
59 Penalties
(1) The
penalty for an offence under Articles 5(3), 6(7), 7(13), 8(12), 9(5), 10(3)
or 53(6), (7), (8) or (9) shall be a fine not exceeding level 3 on the
standard scale.
(2) The
penalty for an offence under Articles 56(1), (3) or (4) shall be a
fine and 2 years imprisonment.
60 Regulations
(1) The
States may by Regulations make such other provision as the States think fit for
the purposes of carrying this Law into effect.
(2) Without
prejudice to the generality of paragraph (1), Regulations made under this
Article may –
(a) create
offences, and specify penalties for such offences not exceeding imprisonment
for 2 years and a fine;
(b) provide
for mergers and demergers of limited liability companies;
(c) provide
for mergers of limited liability companies with bodies that are incorporated in
Jersey but are not limited liability companies;
(d) provide
for mergers of limited liability companies with bodies incorporated outside
Jersey;
(e) provide
for the continuation of limited liability companies in Jersey and outside
Jersey;
(f) provide
for the winding up and dissolution of solvent and insolvent limited liability
companies or a series established under Article 10;
(g) provide
for the disqualification of persons for office as members or managers,
secretaries or deputy secretaries of limited liability companies;
(h) provide
for the circumstances in which the duty to appoint a secretary ceases and the
duties of a secretary or former secretary in respect of keeping or delivery of
accounting records;
(i) provide
for the accounts and audit of limited liability companies;
(j) provide
for and apply in respect of limited liability companies, with or without
modifications –
(i) any
provisions in or made under the Companies (Jersey) Law 1991[7], or
(ii) any
provisions in or made under the Foundations (Jersey) Law 2009[8],
that apply, in respect of a company or foundation under either of
those Laws, to a matter to which paragraph (1) refers;
(k) make
such consequential, incidental, supplementary and transitional provision as may
appear to be necessary or expedient, including provision making amendments to
any other enactment as appear to the States to be expedient –
(i) for
the general purposes, or any particular purpose, of this Law,
(ii) in
consequence of any provision made by or under this Law.
61 Orders
(1) The
Minister may by Order make provisions prescribing any matter which is to be
prescribed under this Law.
(2) An
Order made under this Law may contain such incidental provisions as the
Minister may consider to be necessary or expedient.
(3) The
Minister shall consult the Commission before making any Order under this Law.
62 Rules
of Court
The power to make Rules of Court under the Royal Court (Jersey) Law 1948[9] shall include a power to
make Rules for the purposes of this Law.
63 Citation and commencement
This Law may be cited as the Limited Liability Companies (Jersey)
Law 2018 and shall come into force on such day or days as the States may by Act appoint.
dr. m. egan
Greffier of the States