Security Interests
(Registration and Miscellaneous Provisions) (Jersey) Order 2013
Made 27th September 2013
Coming into force 1st
October 2013
THE CHIEF MINISTER, in pursuance of Articles 4A, 60(2)(b), 62(1) and 92 of the
Security Interests (Jersey) Law 2012[1], orders as follows –
1 Interpretation
In this Order, unless the context otherwise
requires –
“data entry requirements” means such requirements relating to the inputting of data on the
SIR system by users as may be specified in this Order or by the registrar under
Article 62(2) of the Law;
“Law” means the
Security Interests (Jersey) Law 2012[2];
“SIR” means the register
referred to in Article 60(2)(a) of the Law;
“SIR system” means
the automated system described in Article 79 of the Law and, for the purposes
of this Order, includes the SIR.
2 Disapplication
of registration provisions: security interests over certain trust property
(1) In
all circumstances, Articles 21(1)(b) and (2), 22(4), 62 to 82 and 84 of
the Law, and any other provision of the Law that requires, permits, or refers
to, registration in relation to a security interest, shall not apply in
relation to a security interest over the trust property of a trust (other than
a prescribed unit trust) where the grant of the security interest is by the
trustees of the trust.
(2) For
the purposes of paragraph (1), a prescribed unit trust is a trust in
respect of which the following requirements are satisfied –
(a) the
trust is a unit trust within the meaning of the Trusts (Jersey) Law 1984[3];
(b) express
provision is made in the instrument by which the trust was created to the
effect that the trustees of the trust may issue units in the trust;
(c) all
of those units are registered (in a register of holders of units in the trust)
in the name of one or more legal persons;
(d) none
of those legal persons –
(i) is a foundation
that has as an object the benefit of one or more individuals,
(ii) acts as trustee
for the benefit of one or more individuals, or
(iii) acts as the nominee of
one or more individuals;
(e) the
trust property of the trust includes immovable property (whether or not that
property is situated in Jersey);
(f) the
trust property of the trust is held directly by the trustees of the trust or
indirectly by the trustees of the trust through one or more legal persons;
(g) the
trustees of the trust have consent under Article 9 of the Control of
Borrowing (Jersey) Order 1958[4] in relation to the issue of
the units in the trust.
(3) For
the purposes of paragraph (2), “legal person” means a company
(or other person, or an association of persons, that is not an individual)
registered or otherwise formed anywhere in the world.
3 Duration
of registration
For the purposes of Article 67 of the Law, the maximum period
that a financing statement or financing change statement may be registered
shall be 99 years.
4 Registration
of proceeds of collateral
For the purpose of Article 25(a) of the Law a financing
statement does not contain a description of the proceeds that would be
sufficient to perfect a security interest in original collateral of the same
kind unless –
(a) in
the case where the proceeds are all present and after-acquired intangible
movable property that is proceeds, it describes the proceeds as such; or
(b) in
the case where the proceeds are not those described in sub-paragraph (a),
it describes the security by reference to specific items or types of proceeds
that are secured.
5 Demand
for registration of financing change statement
(1) The
SIR system may allow –
(a) a
demand under Article 75(2) or (4) of the Law to be served; or
(b) an
application under Article 76(1) of the Law to be made,
by the system.
(2) Any
term of an agreement entered into between a person named as grantor and a
person named as a secured party, or a person named as assignor and a person
named as assignee, in a financing statement or a financing change statement,
which purports to prohibit or restrict the use of the SIR system by either
party for the purposes of making a demand or application described in paragraph (1),
shall be of no effect.
(3) For
the purpose of satisfying himself or herself of the matters specified in Article 76(1)(a)
and (b) of the Law the registrar shall take into consideration –
(a) whether
the demand served under Article 75(2) or (3) of the Law was served by way
of the SIR system; and
(b) if
not, whether service has been effected by other means on all parties.
(4) If
a person who is not the sole grantor of a security interest or sole assignor of
a receivable serves a demand under Article 75 of the Law, that person shall as soon as practicable after serving such a demand give
notice in writing to each other grantor or assignor to whom the financing
statement or financing change statement relates of –
(a) the
date on which the demand was served;
(b) the
registration number of the financing statement or financing change statement to
which the demand relates;
(c) the
collateral or assignment of a receivable to which the demand relates;
(d) the
grounds for the demand; and
(e) the
nature of the demand.
(5) A
person who has served a notice under paragraph (4) shall –
(a) in
the case where the demand has been granted, give notice in writing as soon as practicable after it has been granted to
each other grantor or assignor to whom the financing statement or financing
change statement relates that it has been granted; or
(b) in
the case where the demand has not been granted (whether by the registrar under Article 76
of the Law or following a decision of the Royal Court under Article 77 of
the Law), give notice in writing
as soon as practicable after it has not been granted to each other grantor or
assignor to whom the financing statement or financing change statement relates that it has not been granted.
(6) Nothing
in paragraph (5) shall affect the duty in Article 64(3) of the Law in
respect of the service of any verification statement upon a grantor or
assignor.
6 Data
entry requirements, fees and notices on SIR system
(1) The
registrar shall place in a prominent position on the SIR system –
(a) a
notice drawing attention to the limitation of liability of the registrar under Article 60(3)
of the Law;
(b) any
data entry requirements that are published by the registrar; and
(c) any
fees that are published under Article 90(2) of the Law; and the methods by
which payment of fees may be made,
in a manner that will draw them to the attention of any user of the SIR
system affected by them.
(2) The
registrar shall not be required to –
(a) verify
the accuracy of any data contained in a financing statement or financing change
statement; or
(b) verify
that a person entering data onto the SIR system is entitled to make such an
entry,
except in so far as the registrar is required to do so under
Part 8 of the Law.
(3) Data
entry requirements shall not require a financing statement or financing change
statement to be updated once it has been registered.
7 Searching
the register
(1) For
the purpose of Article 83(2) the registrar shall ensure that the SIR system
permits access for searching of the SIR by –
(a) any
person, for the purpose of accessing any financing statements or financing
change statements registered against that person;
(b) a
grantor or secured party, for a purpose that relates to their security interest
in respect of which a financing statement or financing change statement has been registered;
(c) an assignor or assignee,
for a purpose that relates to their assignment of a receivable in respect of
which a financing statement or financing change
statement has been registered;
(d) any person, for the
purpose of establishing –
(i) whether intangible
property that is to be purchased or otherwise dealt with by the person is
subject to a security interest or a prior assignment,
(ii) whether to
provide credit to, or to obtain a guarantee, indemnity or security from, a
person named in the search,
(iii) whether to provide
credit to, or to obtain a guarantee, indemnity or security from, a person
related to a person named in the search,
(iv) whether to invest in,
with or through a person named in the search, or
(v) whether to invest in,
with or through a person related to a person named in the search;
(e) a
liquidator, receiver or administrator of a company, for a purpose that relates to the liquidation, receivership or administration of
that company;
(f) the Viscount or
other person appointed by a court in Jersey, for a purpose that relates to –
(i) the administration
of the bankruptcy of a person named in the search, or
(ii) the enforcement
of a court order or warrant;
(g) an
executor or administrator of a deceased’s estate, for a purpose that relates
to the administration of the estate of the deceased named in the search;
(h) a
police officer or employee of a police force or employee of a public sector
body, for a purpose that relates to upholding law and order;
(i) the
holder of a lien or security interest or a creditor, for a purpose that relates
to the enforcement of the lien, the security interest or the creditor’s rights, as the case may be;
(j) a person for the
purpose of advising another person in connection with any of the purposes
referred to in sub-paragraphs (a) to (i); or
(k) a person for the
purpose of establishing whether to take legal action against a person named in
the search.
(2) Where
the registrar reasonably believes that a person is searching the SIR or
accessing the SIR system for a purpose that is inconsistent with any of the
purposes described in paragraph (1), the registrar may prevent or restrict
access to the system by that person.
(3) Nothing
in this Article requires the registrar to satisfy himself or herself that a
person is searching the register for a purpose described in paragraph (1).
8 Search
criteria and
search results
(1) The
registrar shall ensure that the SIR system permits a search of the register to
be made if any of the following criteria are included in a search
request –
(a) the
financing statement or financing change statement registration number;
(b) the
type of financing statement or
financing change statement;
(c) the
date of registration of the financing statement or financing change statement;
(d) the
expiry date of the financing statement or financing change statement;
(e) the
grantor’s or assignor’s name and, in the case of an individual, his
or her date of birth, or in the case of any other person, that person’s
registered number (if any).
(2) Where a
person makes a request through the SIR system for a limited search result in
respect of a financing statement or financing change statement contained in the SIR system, the
registrar shall ensure that the limited search result generated by the SIR
system contains the following information in respect of that financing
statement or financing change
statement –
(a) the
financing statement or financing change statement registration number;
(b) the
type of financing statement or
financing change statement;
(c) the
date of registration of the financing statement or financing change statement;
(d) the
expiry date of the financing statement or financing change statement;
(e) the
grantor’s or assignor’s name and, in the case of an individual, his
or her date of birth, or in the case of any other person, that person’s
registered number (if any).
(3) Where a
person makes a request though the SIR system for a full search result in
respect of a financing statement or financing change statement contained in the SIR system, the
registrar shall ensure that the SIR system enables the person searching to be
provided with a full copy of the financing statement or financing change statement.
9 Verification statements and
SIR system access codes
(1) When
a financing statement or financing change statement is registered the registrar
shall assign and send to the secured party or the assignee of a receivable, as
the case may be, a code enabling that person to access the financing statement or
financing change statement in the register being –
(a) in
the case of a secured party, a “secured party
PIN”; and
(b) in
the case of an assignee of a receivable, an
“assignee PIN”.
(2) A
verification statement shall contain –
(a) the
registration number given to the financing statement or financing change
statement to which the verification statement relates; and
(b) a
grantor or assignor unique access code (“grantor PIN” or
“assignor PIN”) that is assigned to the grantor or assignor, as the
case may be, to whom the financing statement or financing change statement
relates.
(3) A
verification statement shall not contain any secured party PIN or any assignee
PIN.
(4) A secured
party shall, if requested in writing to do so by the grantor named in a
financing statement or financing change statement, as soon as practicable and
without charge, provide to that grantor the registration number assigned to
that financing statement or financing change statement and the grantor PIN.
(5) The
assignor of a receivable shall, if requested in writing to do so by the
assignee named in a financing statement or financing change statement, as soon
as practicable and without charge, provide to the assignee of the receivable
the registration number assigned to that financing statement or financing
change statement and the assignor PIN.
10 Power
of registrar to disclose information
The
registrar may disclose a secured party PIN, assignee PIN, grantor PIN, assignor
PIN or the registration number given to the financing
statement or financing change statement or any other
information that may be required for the purpose of gaining access to the SIR
or SIR system to any person who the registrar reasonably believes is entitled
to such information.
11 Power
of registrar to certify registered financing statement or financing change statement
The registrar
may certify a copy of a registered financing statement or financing change
statement as a true copy.
12 Registrar’s
power to suspend SIR system for repair or maintenance
(1) The
registrar may suspend the operation of the SIR system if he or she considers it
expedient to do so for the purpose of maintaining or repairing the system.
(2) Before
suspending the operation of the SIR system the registrar shall publish a notice
of the date, time and duration of the intended suspension in a manner that will
enable it to be drawn to the attention of any user of the system.
(3) The
notice referred to in paragraph (2) shall be published at least 7 days
before the proposed date of suspension and specify the proposed length of the
suspension.
(4) The
notice requirement in paragraph (3) shall not apply where it is
impractical in all the circumstances for the registrar to give such notice.
(5) If
the registrar considers that suspension of the SIR system is necessary he or
she shall return the system to normal functioning as soon as reasonably
practicable.
13 Registrar’s
power to restrict access to information on register
(1) The
registrar may restrict access to all or part of the data held on the SIR system
to a person or generally if –
(a) a
Court has ordered that access to the data is not permitted; or
(b) the
registrar considers that access to the data should not be permitted.
(2) When
considering whether or not to permit access to data the registrar shall
consider –
(a) whether
it is necessary to withhold access to prevent a serious risk of harm to a
person whose details are recorded in the data;
(b) whether
the data is defamatory or a breach of copyright;
(c) whether
the search is for a purpose described in Article 7(1);
(d) the
interests of the person undertaking the search;
(e) the
interests of the secured party or assignee in ensuring that notice of the
security interest or assignment of a receivable is accessible; and
(f) whether
in all the circumstances the public interest in protecting the privacy of an
individual grantor’s or assignor’s information outweighs the public
interest in providing access to the data.
(3) The
registrar may restrict or deny access to all, or a part, of the SIR system if,
in the opinion of the registrar –
(a) there
is a fault affecting the system; or
(b) the
integrity of the SIR system or the SIR is, may be, or may have been,
compromised.
(4) The
registrar shall remove any data from the register if the Royal Court makes an
Order requiring its removal.
14 Service of
notices
(1) This
Article applies in respect of the giving or service of any notices or documents
except as otherwise provided by or under the Law or as ordered by a Court, and
in the absence of any agreement between the parties setting out arrangements
for the service or giving of notices or documents.
(2) Any
notice or document required by or under the Law to be given to or served on any
person may be given to or served on the person in question by any of the
following means –
(a) by
delivering it to the person;
(b) by
leaving it at the person’s proper address;
(c) by
sending it by post to the person at that address.
(3) Any
such notice or document –
(a) may
be given or served at the person’s address for service appearing in the
financing statement;
(b) in
the case of a company, foundation or partnership incorporated or registered in the
British Isles, may be given or served on its registered office;
(c) in
the case of any other company, partnership, foundation, unincorporated
association or any other entity, may be given to or served on a director,
secretary, partner, council member or other similar officer or any person who
purports to act in any such capacity, by whatever name called, or on the person
having the control or management of the business, as the case may be.
(4) For
the purposes of this Article and of Article 7 of the Interpretation
(Jersey) Law 1954[5] in its application to this
Article, the proper address of any person to or on whom a notice or document is
to be given or served by post shall be the person’s last known address
or, where a notice is given to or served as described in paragraph (2)(b)
or (2)(c), the last known address of the registered office (if there is one) or
main business address of the company, foundation or a foundation’s qualifying
members, partnership, unincorporated association or other entity.
(5) If an
address for service is contained in a financing statement in respect of a
person, that address shall also be treated for the purposes of this Article and
Article 7 of the Interpretation (Jersey) Law 1954[6] as the person’s proper
address.
15 Deemed
service of notices etc. by registrar
(1) This
Article applies where a notice or document is required to be given or served
upon a party by the registrar.
(2) If
the registrar serves the notice or document by sending it to the person by
electronic transmission or other similar means of communication (whether or not
the SIR system is used for such service), in the absence of proof to the
contrary, the notice or document shall be deemed to have been given or served if –
(a) the computer system used to transmit the
notice or document –
(i) has received an acknowledgement or
receipt to the electronic mail address of the registrar or the SIR system, or
(ii) has not generated a record that the
notice or document has failed to be transmitted; or
(b) the registrar proves that the notice or
document was transmitted by computer system to the electronic mail address
provided by the person on whom the notice or document is given or served.
16 Citation and
commencement
This Order may be cited as the Security Interests (Registration and Miscellaneous
Provisions) (Jersey) Order 2013 and shall come into force on 1st October 2013.
senator i.j. gorst
Chief Minister