Foundations
(Amendment of Law) (Jersey) Regulations 2015
Made 10th March 2015
Coming into force 17th
March 2015
THE STATES, in pursuance of Article 52 of the Foundations (Jersey) Law 2009[1], have made the following
Regulations –
1 Interpretation
In these Regulations “principal
Law” means the Foundations (Jersey) Law 2009[2].
2 Amendment
of Part 1
Article 1 of the
principal Law is amended by deleting the definition “qualified
person” and substituting the following definition –
“ ‘qualified person’ means –
(a) in
the case where such a person is to apply to the Registrar for the incorporation
of a foundation, a person registered under the Financial Services (Jersey)
Law 1998[3] to carry on trust company business
that permits the provision by the person of the services mentioned in
Article 2(4)(a) of that Law; or
(b) in
the case where such a person is to act as a qualified member, 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 Article 2(4)(d) of that Law;”.
3 Amendment
of Part 2
In Part 2 of the principal Law –
(a) for the heading “INCORPORATION OF FOUNDATIONS” there
shall be substituted the following heading –
“INCORPORATION AND
OBLIGATIONS OF FOUNDATIONS”;
(b) in Article 5 –
(i) after paragraph (4) there shall be inserted the
following paragraph –
“(4A) It is sufficient, for the purposes of
paragraph (3)(b), for the charter to provide that
the specified purpose may be determined in accordance with the charter or
regulations of the foundation.”,
(ii) in paragraph (5) after the words “may
be amended” there shall be inserted the word “, including”,
(iii) in paragraph (6) for the words “Article 38”
there shall be substituted the words “Articles 10 and 38”;
(c) after Article 23 there shall be inserted the following cross-heading –
“The obligations and
liabilities of members of the council and others”;
(d) after Article 24 there shall be inserted the following
Articles –
(1) Each
member of the council of a foundation shall take reasonable steps to ensure that
the foundation’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 foundation, the matters in respect of which the receipt and
expenditure takes place and a record of the assets and liabilities of the
foundation, including shares, interests and units held by the foundation in any
other legal person or arrangement.
(2) The
records required to be kept under Article 36(c) and (e) must be such as to
enable a member of the council of a foundation to comply with paragraph (1).
(3) A
member of the council of a foundation shall be entitled to inspect the
accounting records required to be kept under Article 36(c) and (e)
upon giving 2 working days’ notice in writing to the qualified
member of the foundation.
(4) Subject
to any provision for the disposal of records on the winding up of a foundation
pursuant to this Law or the Regulations made under Article 53, the accounting
records that a foundation is required to keep under Article 36(c) and (e)
must be preserved by the foundation for at least 10 years from the date on
which they are made.
(1) This
Article applies where an offence under this Law or any Regulations made under
this Law committed by a foundation or other body corporate, a limited liability
partnership or any other partnership with separate legal personality is
proved –
(a) to have been committed with the consent or connivance of a
person mentioned in paragraph (2); or
(b) to be attributable to any neglect on the part of a person
mentioned in paragraph (2).
(2) The
persons to whom paragraph (1) refers are –
(a) in the case of a foundation, a member of the council of the
foundation;
(b) in the case of an incorporated limited partnership, a
general partner or a limited partner who is participating in the management of
the partnership;
(c) in
the case of any other body corporate, a director, manager or other similar officer
of the body corporate;
(d) in the case of a limited liability partnership, a partner;
(e) in
the case of a separate limited partnership or any partnership with a separate
legal personality, except a limited liability partnership, a general partner or
a limited partner who is participating in the management of the partnership; or
(f) in any case, any other person purporting to act in a
capacity described in any of sub-paragraphs (a), (b), (c), (d) and (e).
(3) Where
this Article applies, the person shall also be guilty of the offence and liable
to the penalty provided for that offence in the same manner as the foundation,
incorporated limited partnership, other body corporate, limited liability
partnership, separate limited partnership or other partnership with separate
legal personality.
(4) Where
the affairs of a body corporate are managed by its members, paragraphs (1)
and (3) shall apply in relation to acts and defaults of a member in connection
with that member’s functions of management as if the member were a
director of the body corporate.”.
4 Citation
and commencement
These Regulations may be cited as the Foundations (Amendment of Law)
(Jersey) Regulations 2015 and shall come into force 7 days after the
day they are made.
a.c. goodyear
Assistant Greffier of the States