Foundations
(Continuance) (Jersey) Regulations 2009
Made 15th July 2009
Coming into force 15th
July 2009
THE STATES, in pursuance of Article 56 of the Foundations (Jersey)
Law 2009[1], have made the following
Regulations –
Part 1
Interpretation and
recognized entities
1 Interpretation
(1) In these Regulations –
“Companies Law”
means the Companies (Jersey) Law 1991[2];
“company” has
the same meaning as in Companies Law;
“Foundations Law” means the Foundations
(Jersey) Law 2009[3];
“recognized
entity” means a body corporate incorporated or established outside Jersey
that is within a class of bodies corporate designated by the Minister under
Regulation 2.
(2) For the purposes of these Regulations a
foundation or a recognized entity is solvent if, at the relevant time –
(a) it has no liabilities;
(b) it has liabilities that have fallen due, or
that will fall due within 6 months, that it will be able to discharge in
full within 6 months;
(c) it has other liabilities that it will be
able to discharge in full as they fall due; or
(d) it has a combination of the liabilities
mentioned in sub-paragraph (b) and (c).
(3) If a penalty is specified after a provision
of these Regulations, it indicates that a contravention of the provision is an
offence that is punishable by a penalty not exceeding the penalty so specified.
2 Minister
may designate bodies corporate to be recognized entities
(1) The Minister for Economic Development may
designate classes of bodies corporate that are incorporated or established
outside Jersey to be recognized entities for the purposes of these Regulations.
(2) The
Minister may designate classes of bodies corporate under paragraph (1) by
notice published in a manner that will bring the notice to the attention of
those who, in the opinion of the Minister, are likely to be affected by it.
Part 2
Companies and Recognized entities may continue as foundations
Companies continuing as foundations
3 Company
may be incorporated as a foundation
If the requirements of this Part are complied with, a company may
continue as a foundation.
4 Notice
of proposed incorporation to be published
(1) An
application to the Commission by a company to be incorporated as a foundation
can only be made by a qualified person acting on behalf of the company.
(2) However,
the qualified person must first publish a notice of the intention of the
company to apply to the Commission for the company to be incorporated as a
foundation.
(3) The
notice must be published at least once in the Jersey Gazette.
(4) On
or before publishing the notice under paragraph (3), the qualified person
must send a copy of the notice –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known by the qualified person to have a claim against the company exceeding
£5,000; and
(b) to
the registrar.
(5) The
notice must state whether, were the company to be incorporated as a foundation,
the foundation would, on its incorporation be solvent.
(6) The
notice must also contain a statement that a person aggrieved by the proposed
incorporation may, within the 28 days after the first publication of the
notice, apply to the Royal Court for an order to restrain the proposed
incorporation.
(7) If,
within the 28 days after the first publication of the notice a person
aggrieved by the proposed incorporation applies to the Royal Court for an order
to restrain the proposed incorporation, the Royal Court may make the order
applied for.
(8) The
Court may not make the order applied for unless it is satisfied that the
interests of the person who made the application to the Court would be unfairly
prejudiced if the proposed incorporation were to take place.
(9) The
Court may make the order subject to such terms, if any, as it thinks fit.
5 Continuance
as an insolvent foundation
(1) This
Regulation applies if the notice under Regulation 4 does not state that,
were the company to be incorporated as a foundation, the foundation would, on
its incorporation, be solvent.
(2) The
qualified person acting on behalf of the company may not apply to the
Commission for the company to be incorporated as a foundation unless an Act of
the Royal Court has been obtained stating that the incorporation of the company
as a foundation would not be prejudicial to the interests of its creditors.
(3) The
qualified person acting on behalf of the company must send a copy of its
application to the Royal Court –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known to the qualified person, to have a claim against the company exceeding
£5,000; and
(b) to
the registrar.
(4) The
Court must not hear the application for at least 28 days after it is made
to the Court.
6 Application
for incorporation of company as a foundation
(1) An
application by a qualified person for the incorporation of a company as a
foundation must be made to the Commission in a form and manner published by the
Commission.
(2) It
must be accompanied by –
(a) a
copy of the charter the foundation would have if it were to be incorporated
under the Foundations Law;
(b) unless
another method of payment is agreed, the published fee;
(c) if
any part of the proposed charter is not in English, a translation of the part
into English;
(d) evidence
satisfactory to the Commission that Regulation 4 has been complied with; and
(e) if
Regulation 5 applies, a copy of the Act of the Royal Court.
(3) The
application must also be accompanied by a certificate signed by the qualified
person making the application certifying –
(a) that
a qualified person, named in the certificate, would become the qualified member
of the council of the foundation were the company to be incorporated as a
foundation;
(b) that
the qualified person who signed the certificate is in possession of regulations
for the foundation that have been approved by the company and by the qualified
person named in the certificate;
(c) that
the address in Jersey, specified in the certificate, is the business address in
Jersey of the qualified person named in the certificate; and
(d) that
a person has been selected who would become the guardian of the foundation in
accordance with its regulations were the company to be incorporated as a
foundation.
(4) The
application must also be accompanied by a certificate signed by the qualified
person making the application certifying –
(a) that
each shareholder in the company has approved the application; and
(b) that,
if the company becomes incorporated as a foundation, the interests of the
creditors of the company will not be unfairly prejudiced.
(5) The
application and any document accompanying it must be authenticated in any
manner determined by the Commission.
(6) For
the purpose of paragraph (2)(d), Regulation 4 has not been complied
with until –
(a) the
28 days mentioned in Regulation 4(7) expire; or
(b) if during
those 28 days a person applies to the Royal Court for an order to restrain
the proposed incorporation, the application is withdrawn or is determined,
whichever last occurs.
(7) The
Commission must, as soon as practical, forward to the registrar the documents
that accompanied the application.
7 Commission
may require security for its expenses
(1) Following
receipt of an application under Regulation 6, the Commission
may –
(a) estimate
the likely amount of its expenses in dealing with the application; and
(b) require
the company to give it security for that amount, to the satisfaction of the
Commission.
(2) If
the Commission requires security to be given under paragraph (1)(b), it
need take no further action in respect of the application until the security
has been given.
(3) If
the Commission, in the course of considering the application, subsequently
forms the view that its expenses will be of a higher amount, it may require the
company to give it security for that higher amount, to its satisfaction.
(4) If
the Commission requires security for a higher amount to be given under
paragraph (3), it may refuse to consider the application further until
that security has been given.
(5) On
determining the application, the Commission must –
(a) ascertain
the actual amount of its expenses; and
(b) inform
the qualified person who made the application of the amount.
(6) The
expenses shall be a debt due and payable by the company to the Commission.
(7) Without
prejudice to any other mode of recovery, the Commission may recover the
expenses by realising the security if the expenses are not paid by the company
on demand.
8 Commission
may require further information
(1) Following
receipt of an application under Regulation 6, the Commission may require
the qualified person to supply to the Commission such other document or
information as the Commission may reasonably require to determine whether to
accept the application.
(2) Any
such document or information must be authenticated in any manner determined by
the Commission.
(3) If
the Commission requires a document or information under paragraph (1), it
need take no further action in respect of the application until the document or
information has been supplied.
9 Refusal
by Commission to accept an application to incorporate a company as a foundation
(1) The
Commission may refuse to accept an application for the incorporation of a
company as a foundation if it is satisfied that it is necessary to do
so –
(a) in
order to protect the reputation and integrity of Jersey in financial and
commercial matters;
(b) in
the best economic interests of Jersey; or
(c) to
protect the international standing of Jersey.
(2) The
Commission may also refuse to accept an application for the incorporation of a
company as a foundation, if –
(a) the
Commission is not satisfied that the proposed objects of the foundation are
lawful; or
(b) the
registrar advises the Commission that the proposed name of the foundation is
misleading or otherwise undesirable or that it does not end with the word
“Foundation” or a word or words that mean that word in a foreign
language.
(3) If
the Commission refuses an application, it must, within 28 days, inform the
qualified person who made the application of the refusal and the reason for the
refusal.
(4) The
qualified person may, on behalf of the company, within 28 days of being
informed of the refusal, appeal to the Royal Court.
(5) An
appeal on a refusal under paragraph (1) may be made on the grounds that
the refusal by the Commission to accept the application was unreasonable in all
the circumstances of the case.
(6) An
appeal on a refusal under paragraph (2)(a) may be made on the grounds that
the proposed objects of the foundation are lawful.
(7) An
appeal on a refusal under paragraph (2)(b) may be made on the
grounds –
(a) that
the proposed name of the foundation is not misleading or otherwise undesirable;
or
(b) that
the proposed name does end with the word “Foundation” or a word or
words that mean that word in a foreign language.
10 Commission
to instruct registrar to incorporate a company as a foundation
The Commission must instruct the registrar to incorporate a company
as a foundation if –
(a) the
Commission accepts an application from a qualified person for the incorporation
of the company as a foundation; or
(b) an
appeal to the Royal Court by the qualified person under Regulation 9 is
successful.
11 Incorporation
of a company as a foundation
(1) To
incorporate a company as a foundation the registrar must enter in the
register –
(a) the
name of the foundation as shown in its proposed charter;
(b) the
name and business address in Jersey of the qualified person who is to be the
qualified member of the council of the foundation as shown in the certificate
mentioned in Regulation 6(3); and
(c) the
name of the company to be incorporated as the foundation,
and date the entries.
(2) Upon
doing so the registrar must –
(a) issue
the foundation with a registration number and inform the qualified member of
the council of the foundation of the incorporation of the foundation and its
registration number; and
(b) remove
the name of the company from the register kept under the Companies Law and add
to that register a note that the company has ceased to be incorporated as a
company and has been incorporated as a foundation, giving the name and
registered number of the foundation.
(3) An
entry in the register of the name of the foundation is conclusive
evidence –
(a) that,
on the date mentioned in paragraph (1), the company was incorporated as a
foundation; and
(b) that
the requirements of the Foundations Law and this Part were complied with in respect
of all matters precedent or incidental to the incorporation of the company as a
foundation.
12 Effect
of incorporation of a company as a foundation
(1) From
the date of the incorporation of a company as a foundation under the
Foundations Law, it ceases to be a company incorporated under the Companies Law
but continues as a foundation with the name specified in respect of it in the
register.
(2) On
the incorporation of the company as a foundation –
(a) the
property and rights to which the company was entitled immediately before the
incorporation of the foundation continue as the property and rights of the
foundation;
(b) the
foundation becomes subject to any criminal and civil liabilities, and any
contracts, debts and other obligations, to which the company was subject
immediately before its incorporation as a foundation; and
(c) any
action and other legal proceedings that, immediately before the incorporation
of the company as a foundation, were pending by or against the company may be
continued by or against the foundation.
(3) On
the incorporation of the company as a foundation the qualified person named
under Regulation 6(3)(a) shall be taken to have become the qualified
member of the council of the foundation under Article 23(1) of the
Foundations Law.
Recognized entities continuing as
foundations
13 Recognized entity
may be incorporated as a foundation
If the requirements of this Part are complied with, a recognized
entity may continue as a foundation.
14 Notice
of proposed incorporation to be published
(1) An
application to the Commission by a recognized entity to be incorporated as a
foundation can only be made by a qualified person acting on behalf of the
entity.
(2) However,
the qualified person must first publish a notice of the intention of the
recognized entity to apply to the Commission for the entity to be incorporated
as a foundation.
(3) The
notice must be published in such manner as the registrar may direct.
(4) On
or before publishing the notice under paragraph (3), the qualified person must
send a copy of the notice –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known by the qualified person to have a claim against the recognized entity
exceeding £5,000; and
(b) to
the registrar.
(5) The
notice must –
(a) state
that the recognized entity specified in the notice will be seeking to be
incorporated as a foundation;
(b) specify
the jurisdiction in which the recognized entity is established or incorporated;
and
(c) specify
the type of recognized entity that it is.
(6) The
notice must also state whether, were the recognized entity to be incorporated
as a foundation, the foundation would, on its incorporation be solvent.
(7) The
notice must also contain a statement that a person aggrieved by the proposed
incorporation may, within the 28 days after the first publication of the
notice, apply to the Royal Court for an order to restrain the proposed
incorporation.
(8) If,
within the 28 days after the first publication of the notice a person
aggrieved by the proposed incorporation applies to the Royal Court for an order
to restrain the proposed incorporation, the Royal Court may make the order
applied for.
(9) The
Court may not make the order applied for unless it is satisfied that the
interests of the person who made the application would be unfairly prejudiced
if the proposed incorporation were to take place.
(10) The
Court may make the order subject to such terms, if any, as it thinks fit.
15 Continuance
as an insolvent foundation
(1) This
Regulation applies if the notice under Regulation 14 does not state that,
were the recognized entity to be incorporated as a foundation, the foundation
would, on its incorporation, be solvent.
(2) The
qualified person acting on behalf of the recognized entity may not apply to the
Commission for the recognized entity to be incorporated as a foundation unless
an Act of the Royal Court has been obtained stating that the incorporation of
the recognized entity as a foundation would not be prejudicial to the interests
of its creditors.
(3) The
qualified person acting on behalf of the recognized entity must send a copy of
its application to the Royal Court –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known to the qualified person, to have a claim against the recognized entity
exceeding £5,000; and
(b) to
the registrar.
(4) The
Court must not hear the application for at least 28 days after it is made
to the Court.
16 Application
for incorporation of recognized entity as a foundation
(1) An
application by a qualified person for the incorporation of a recognized entity
as a foundation must be made to the Commission in a form and manner published
by the Commission.
(2) It
must be accompanied by –
(a) a
copy of the charter the foundation would have if it were to be incorporated
under the Foundations Law;
(b) unless
another method of payment is agreed, the published fee;
(c) if
any part of the proposed charter is not in English, a translation of the part
into English;
(d) evidence
satisfactory to the Commission that Regulation 14 has been complied with; and
(e) if
Regulation 15 applies, a copy of the Act of the Royal Court.
(3) The
application must also be accompanied by a certificate signed by the qualified
person making the application certifying –
(a) that
a qualified person, named in the certificate, would become the qualified member
of the council of the foundation were the recognized entity to be incorporated
as a foundation;
(b) that
the qualified person who signed the certificate is in possession of regulations
for the foundation that have been approved by the recognized entity and by the
qualified person named in the certificate;
(c) that
the address in Jersey, specified in the certificate, is the business address in
Jersey of the qualified person named in the certificate; and
(d) that
a person has been selected who would become the guardian of the foundation in
accordance with its regulations were the recognized entity to be incorporated
as a foundation.
(4) The
application must also be accompanied by a certificate signed by the qualified
person making the application certifying –
(a) that the laws of the jurisdiction in which the
recognized entity is established or incorporated do not prohibit the entity
from making the application;
(b) that if those laws or the constitution of
the recognized entity requires that an authorization be given for the
application, that it has been given;
(c) that, if the recognized entity becomes
incorporated as a foundation, it will, in due course, cease to be an entity incorporated
or established under the law of the jurisdiction in which it was previously incorporated
or established; and
(d) that, if the recognized entity becomes
incorporated as a foundation, the interests of the creditors of the entity will
not be unfairly prejudiced.
(5) The application and any document
accompanying it must be authenticated in any manner determined by the
Commission.
(6) For the purpose of paragraph (2)(d),
Regulation 14 has not been complied until –
(a) the 28 days mentioned in
Regulation 14(7) expire; or
(b) if during those 28 days a person
applies to the Royal Court for an order to restrain the proposed incorporation,
the application is withdrawn or is determined,
whichever last occurs.
(7) The Commission must, as soon as practical,
forward to the registrar the documents that accompanied the application.
17 Commission may
require security for its expenses
(1) Following receipt of an application under
Regulation 16, the Commission may –
(a) estimate the likely amount of its expenses
in dealing with the application; and
(b) require the recognized entity to give it
security for that amount, to the satisfaction of the Commission.
(2) If the Commission requires security to be
given under paragraph (1)(b), it need take no further action in respect of
the application until the security has been given.
(3) If the Commission, in the course of
considering the application, subsequently forms the view that its expenses will
be of a higher amount, it may require the recognized entity to give it security
for that higher amount, to its satisfaction.
(4) If the Commission requires security for a
higher amount to be given under paragraph (3), it may refuse to consider
the application further until that security has been given.
(5) On determining the application, the
Commission must –
(a) ascertain the actual amount of its expenses;
and
(b) inform the qualified person who made the
application of the amount.
(6) The expenses shall be a debt due and payable
by the recognized entity to the Commission.
(7) Without prejudice to any other mode of
recovery, the Commission may recover the expenses by realizing the security if
the expenses are not paid by the recognized entity on demand.
18 Commission may
require further information
(1) Following receipt of an application under
Regulation 16, the Commission may require the qualified person to supply
to the Commission such other document or information as the Commission may
reasonably require to determine whether to accept the application.
(2) Any such document or information must be
authenticated in any manner determined by the Commission.
(3) If the Commission requires a document or
information under paragraph (1), it need take no further action in respect
of the application until the document or information has been supplied.
19 Refusal by
Commission to accept an application to incorporate a recognized entity as a
foundation
(1) The Commission may refuse to accept an
application for the incorporation of a recognized entity as a foundation if it
is satisfied that it is necessary to do so –
(a) in order to protect the reputation and
integrity of Jersey in financial and commercial matters;
(b) in the best economic interests of Jersey; or
(c) to protect the international standing of
Jersey.
(2) The Commission may also refuse to accept an
application for the incorporation of a recognized entity as a foundation,
if –
(a) the Commission is not satisfied that the
proposed objects of the foundation are lawful; or
(b) the registrar advises the Commission that
the proposed name of the foundation is misleading or otherwise undesirable or
that it does not end with the word “Foundation” or a word or words
that mean that word in a foreign language.
(3) If the Commission refuses an application, it
must, within 28 days, inform the qualified person who made the application
of the refusal and the reason for the refusal.
(4) The qualified person may, on behalf of the
recognized entity, within 28 days of being informed of the refusal, appeal
to the Royal Court.
(5) An appeal on a refusal under
paragraph (1) may be made on the grounds that the refusal by the
Commission to accept the application was unreasonable in all the circumstances
of the case.
(6) An appeal on a refusal under
paragraph (2)(a) may be made on the grounds that the proposed objects of
the foundation are lawful.
(7) An appeal on a refusal under
paragraph (2)(b) may be made on the grounds –
(a) that the proposed name of the foundation is
not misleading or otherwise undesirable; or
(b) that the proposed name does end with the
word “Foundation” or a word or words that mean that word in a
foreign language.
20 Commission to
instruct registrar to incorporate a recognized entity as a foundation
The Commission must
instruct the registrar to incorporate a recognized entity as a foundation
if –
(a) the Commission accepts an application from a
qualified person for the incorporation of the recognized entity as a
foundation; or
(b) an appeal to the Royal Court by the
qualified person under Regulation 19 is successful.
21 Incorporation of
a recognized entity as a foundation
(1) To incorporate a recognized entity as a
foundation the registrar must enter in the register –
(a) the name of the foundation as shown in its
proposed charter;
(b) the name and business address in Jersey of
the qualified person who is to be the qualified member of the council of the
foundation as shown in the certificate mentioned in Regulation 16(3); and
(c) the name of the recognized entity to be
incorporated as the foundation and the name of the jurisdiction in which it is
established or incorporated,
and date the entries.
(2) Upon doing so the registrar
must –
(a) issue the foundation with a registration
number and inform the qualified member of the council of the foundation of the
incorporation of the foundation and its registration number; and
(b) inform the appropriate official or public
body in the jurisdiction mentioned in paragraph (1)(c) that the entity has
been incorporated as a foundation.
(3) The information to be provided under
paragraph (2)(b) must be provided electronically or by some other means of
instantaneous or near instantaneous transmission.
(4) An entry in the register of the name of the
foundation is conclusive evidence –
(a) that, on the date mentioned in
paragraph (1), the recognized entity was incorporated as a foundation; and
(b) that the requirements of the Foundations Law
and this Part were complied with in respect of all matters precedent or
incidental to the incorporation of the recognized entity as a foundation.
22 Effect of incorporation
of a recognized entity as a foundation
(1) From the date of the incorporation of a
recognized entity as a foundation under the Foundations Law, the recognized
entity continues but as a foundation with the name specified in respect of it
in the register.
(2) On the incorporation of the recognized
entity as a foundation –
(a) the property and rights to which the entity
was entitled immediately before the incorporation of the foundation continue as
the property and rights of the foundation;
(b) the foundation becomes subject to any
criminal and civil liabilities, and any contracts, debts and other obligations,
to which the entity was subject immediately before its incorporation as a
foundation; and
(c) any action and other legal proceedings that,
immediately before the incorporation of the entity as a foundation, were
pending by or against the entity may be continued by or against the foundation.
(3) On the incorporation of the recognized
entity as a foundation the qualified person named under Regulation 16(3)(a)
shall be taken to have become the qualified member of the council of the
foundation under Article 23(1) of the Foundations Law.
Part
3
Foundations may continue as
recognized entities
23 Foundation
may continue as a recognized entity
If the requirements of this Part are complied with, a foundation
ceases to be incorporated under the Foundations Law on being established or
incorporated as a recognized entity.
24 Notice
of proposed continuance of a foundation as a recognized entity to be published
(1) An
application to the Commission for permission for a foundation to be established
or incorporated as a recognized entity can only be made by the qualified member
of its council acting on behalf of the foundation.
(2) However,
the qualified member must first publish a notice of the intention of the
foundation to apply to the Commission for the foundation to be established or
incorporated as a recognized entity.
(3) The
notice must be published in such manner as the Commission may direct.
(4) On or
before publishing the notice under paragraph (3), the qualified person
must send a copy of the notice –
(a) to
each creditor who, after the qualified person has made reasonable enquiries, is
known by the qualified person to have a claim against the foundation exceeding
£5,000;
(b) to
the registrar; and
(c) to
the guardian of the foundation.
(5) The
notice to the guardian must be accompanied by a copy of the documents required
to establish or incorporate the foundation as a recognized entity.
(6) The
notice published under paragraph (3) must –
(a) state
that the foundation specified in the notice has decided to be established or
incorporated as a recognized entity of a type specified in the notice; and
(b) specify
the jurisdiction in which it is intended to establish or incorporate the
recognized entity.
(7) The
notice must also state whether, were the foundation to be established or
incorporated as a recognized entity, the recognized entity would, on its
establishment or incorporation be solvent.
(8) The
notice must also contain a statement that a person aggrieved by the proposed
establishment or incorporation of the foundation as a recognized entity may,
within the 28 days after the first publication of the notice, apply to the
Royal Court for an order to restrain the proposed establishment or
incorporation.
(9) If,
within the 28 days after the first publication of the notice a person
aggrieved by the proposed establishment or incorporation of the foundation as a
recognized entity applies to the Royal Court for an order to restrain the
proposed establishment or incorporation, the Royal Court may make the order
applied for.
(10) The
Court may not make the order applied for unless it is satisfied that the
interests of the person who made the application would be unfairly prejudiced
if the proposed establishment or incorporation were to take place.
(11) The
Court may make the order subject to such terms, if any, as it thinks fit.
25 Continuance
as an insolvent recognized entity
(1) This
Regulation applies where the notice under Regulation 24 does not state
that, were the foundation to be established or incorporated as a recognized
entity, the recognized entity would, on its establishment or incorporation, be
solvent.
(2) The
qualified member acting on behalf of the foundation may not apply to the
Commission for permission for the foundation to be established or incorporated
as a recognized entity unless an Act of the Royal Court has been obtained
stating that the establishment or incorporation of the foundation as a
recognized entity would not be prejudicial to the interests of its creditors.
(3) The
qualified member acting on behalf of the foundation must send a copy of its
application to the Royal Court to each creditor who, after the qualified member
has made reasonable enquiries, is known by the qualified member to have a claim
against the foundation exceeding £5,000.
(4) The
Court must not hear the application for at least 28 days after it is made
to the Court.
26 Application
by foundation for permission to be established or incorporated as a recognized
entity
(1) An
application to the Commission by the qualified member of the council of a
foundation for permission for the foundation to be established or incorporated
as a recognized entity must be made to the Commission in a form and manner
published by the Commission.
(2) It
must be accompanied by –
(a) unless
another method of payment of the amount is agreed, the published fee;
(b) the
approval of the application by the guardian of the foundation;
(c) evidence
satisfactory to the Commission that Regulation 24 has been complied with;
and
(d) if
Regulation 25 applies, a copy of the Act of the Royal Court.
(3) The
application must also be accompanied by a certificate signed by the qualified
member certifying that the laws of the jurisdiction in which the foundation
proposes to continue allow its continuance there as a recognized entity
established or incorporated under those laws and that those laws provide that
upon the continuance of the foundation as a recognized entity in that
jurisdiction –
(a) the
property and rights to which the foundation is entitled immediately before its
establishment or incorporation as a recognized entity will become the property
and rights of the recognized entity;
(b) the
recognized entity will become subject to any criminal and civil liabilities,
and any contracts, debts and other obligations, to which the foundation is
subject immediately before its establishment or incorporation as a recognized
entity; and
(c) any
actions and other legal proceedings that, immediately before the establishment
or incorporation of the foundation as a recognized entity, are pending by or
against the foundation may be continued by or against the recognized entity.
(4) The
application and any document accompanying it must be authenticated in any
manner determined by the Commission.
(5) For
the purpose of paragraph (2)(c), Regulation 24 has not been complied
until –
(a) the
28 days mentioned in Regulation 24(8) expires; or
(b) if during
those 28 days a person applies to the Royal Court for an order to restrain
the proposed establishment, the application is withdrawn or is determined,
whichever last occurs.
(6) The
Commission must, as soon as practical, forward to the registrar the documents
that accompanied the application.
27 Commission
may require security for its expenses
(1) Following
receipt of an application under Regulation 26, the Commission
may –
(a) estimate
the likely amount of its expenses in dealing with the application; and
(b) require
the foundation to give it security for that amount, to the satisfaction of the
Commission.
(2) If
the Commission requires security to be given under paragraph (1)(b), it
need take no further action in respect of the application until the security
has been given.
(3) If
the Commission, in the course of considering the application, subsequently
forms the view that its expenses will be of a higher amount –
(a) it
may require the foundation to give it security for that higher amount, to its
satisfaction; and
(b) it
may refuse to consider the application further until that security has been
given.
(4) On
determining the application, the Commission must –
(a) ascertain
the actual amount of its expenses; and
(b) inform
the qualified member of the council of the foundation of the amount.
(5) The
expenses shall be a debt due and payable by the foundation to the Commission.
(6) Without
prejudice to any other mode of recovery, the Commission may recover the
expenses by realizing the security if they are not paid by the foundation on
demand.
28 Commission
may require further information
(1) Following
receipt of an application under Regulation 26, the Commission may require
the qualified member to supply to the Commission such other documents and
information as the Commission may reasonably require to determine whether to
accept the application.
(2) Any
such document or information must be authenticated in any manner determined by
the Commission.
(3) If
the Commission requires a document or information under paragraph (1), it
need take no further action in respect of the application until the document or
information has been supplied.
29 Commission
may refuse an application
(1) The
Commission may refuse to accept an application by a foundation for permission
for the foundation to be established or incorporated as a recognized entity if
it is satisfied that it is necessary to do so –
(a) in
order to protect the reputation and integrity of Jersey in financial and
commercial matters;
(b) in
the best economic interests of Jersey; or
(c) to
protect the international standing of Jersey.
(2) If
the Commission refuses an application under paragraph (1), it must, within
28 days, inform the qualified member who made the application of the
refusal and the reason for the refusal.
(3) The
qualified member may on behalf of the foundation, within 28 days of being
informed of the refusal, appeal to the Royal Court.
(4) An
appeal on a refusal under paragraph (1) may be made of the grounds that
the refusal by the Commission to accept the application was unreasonable in all
the circumstances of the case.
30 Commission
to give permission for a foundation to be established or incorporated as a
recognized entity
The Commission must give its permission for a foundation to be
established or incorporated as a recognized entity if –
(a) the
Commission accepts an application from the qualified member of the foundation
for the establishment or incorporation of the foundation as a recognized
entity; or
(b) an
appeal to the Royal Court by the qualified member under Regulation 29 is
successful.
31 Registrar
to be informed of continuance of a foundation as a recognized entity
(1) If a foundation becomes
established or incorporated as a recognized entity in accordance with
permission given by the Commission under this Part, the qualified person who
was the qualified member of the council of the foundation must, as soon as
practicable, inform the registrar accordingly.
(2) The
information must be given to the registrar in a form and manner, and must be
accompanied by such documents or evidence, as the registrar may publish.
(3) Upon
the notice under paragraph (1) being given to the registrar, the registrar
must enter in the register, in respect of the foundation, a note
that –
(a) states
that the foundation has ceased to be a foundation because it has been
established or incorporated as a recognized entity;
(b) specifies
the name of the recognized entity and the type of recognized entity that it has
become;
(c) specifies
the jurisdiction in which the recognized entity is established or incorporated;
and
(d) specifies
the date on which the foundation was established or incorporated as a
recognized entity in that jurisdiction.
(4) The
foundation ceases to be incorporated under the Foundations Law on the date
mentioned in paragraph (3)(d).
(5) An
entry in the register of a note in respect of a foundation under
paragraph (3) is conclusive evidence –
(a) that,
on the date mentioned in paragraph (3)(d), the foundation ceased to be
incorporated under the Foundations Law; and
(b) that
the requirements of the Foundations Law and this Part were complied with in
respect of the foundation ceasing to be a foundation under the Foundations Law.
(6) If a foundation becomes
established or incorporated as a recognized entity in accordance with
permission given by the Commission under this Part, the qualified person who
was the qualified member of the council of the foundation immediately before it
became established or incorporated as a recognized entity, must retain the
records or a copy of the records of the foundation that were in his or her
possession at that time for 10 years after the foundation ceased to be incorporated under the Foundations Law.
Part 4
Offences
32 Offences
(1) A person must not, in connection with an
application under these Regulations, knowingly or recklessly provide to the
Commission or to the registrar –
(a) information that is false, misleading or
deceptive, whether, in each case, by the inclusion or omission of any material
information; or
(b) a document that contains any such
information.
Penalty: Imprisonment for 2 years and a fine.
(2) A person must not, in connection
with an application under these Regulations knowingly or recklessly publish a
notice that contains information that is false, misleading or deceptive in a
material particular.
Penalty:
Imprisonment for 2 years and a fine.
(3) A
person must not fail to comply with Regulation 31(1) or (6).
Penalty: A
fine of level 4 on the standard scale.
Part
5
Citation and commencement
33 Citation
These Regulations may be cited as the Foundations (Continuance) (Jersey)
Regulations 2009.
34 Commencement
These Regulations come into force forthwith.
m.n. de la haye
Greffier of the States