Foundations
(Jersey) Law 2009
A LAW to provide for the
incorporation of foundations and for related purposes.
Commencement
[see endnotes]
PART 1
PRELIMINARY
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“abridged regulations” means those parts of the
regulations of a foundation comprising the information required to be
included in the regulations under Articles 12 and 14, but not including
any information from which a person can or may be identified or any other
information prescribed by Regulations;
“assigned”, in respect of a right a founder of a
foundation has in respect of the foundation or its assets, means assigned by
the founder or by a person to whom the right has been assigned;
“beneficiary”, in respect of a foundation that has the
provision of a benefit to a person or to a class of persons as its objects or
as one of its objects, means a person who is or is a member of a class of
persons that –
(a) is
specified in the charter of the foundation; or
(b) has
been determined in accordance with the charter or regulations of the
foundation,
for the purpose of those objects or that object;
“body corporate” includes, for the purpose of Article 56(1),
any body or entity incorporated or established outside Jersey whether by
registration, endowment or otherwise and whether or not having legal
personality;
“business address” means –
(a) in
respect of the qualified member of the council of a foundation, the business
address of the member as it appears in the register;
(b) in
respect of a foundation, the business address of the qualified member of its
council or, if there is no such qualified member, its last qualified member;
“Commission” means the Jersey Financial Services
Commission established by the Financial Services
Commission (Jersey) Law 1998;
“foundation” means a foundation incorporated under this
Law;
“founder” in respect of a foundation, means the person
who instructed the qualified person to apply for the incorporation of the
foundation and includes any person who subsequently becomes a founder of the
foundation under Article 19;
“functions” includes powers and duties;
“Minister” means the Minister for External Relations;
“person appointed under the regulations of the foundation”,
in respect of a foundation, means –
(a) a
member of the council of the foundation;
(b) the
guardian of the foundation; and
(c) any
other person appointed under the regulations of the foundation to carry out a
function in respect of the foundation;
“person with standing”, in respect of a foundation,
means –
(a) the
foundation;
(b) a
founder of the foundation;
(c) a
person, other than a founder of the foundation, who has endowed the foundation;
(d) if
any rights a founder of a foundation had in respect of the foundation and its
assets have been assigned to some other person, that other person;
(e) a
person appointed under the regulations of the foundation;
(f) a
beneficiary of the foundation;
(g) a
creditor of the foundation;
(h) in
respect of a specified purpose mentioned in Article 5(3)(b), a person who,
in the view of the Royal Court, can reasonably claim to speak on behalf of that
purpose; or
(i) the
Attorney General;
“published” means –
(a) in
respect of a fee payable by virtue of this Law, published by the Commission in
accordance with Article 15(5) of the Financial Services
Commission (Jersey) Law 1998; or
(b) in
any other case, published in a manner likely to bring it to the attention of
those affected;
“qualified member”, in respect of the council of a
foundation, means the qualified person who is the qualified member of the
council by virtue of Article 23;
“qualified person” means –
(a) 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 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;
“record” means information stored in any form;
“register”, as a noun, means the register kept by the
registrar for the purposes of this Law;
“registrar” means the registrar of companies appointed
pursuant to Article 196 of the Companies (Jersey)
Law 1991.[1]
(2) Where a penalty is
specified after a provision of this Law, it indicates that a contravention of
the provision is an offence that is punishable by a penalty not exceeding the
penalty so specified.
PART 2
incorporation AND OBLIGATIONS of foundations[2]
Application for the incorporation of a foundation
2 Application
for the incorporation of a foundation
(1) A qualified person may,
on behalf of any other person, apply to the registrar for the incorporation of
a foundation.
(2) The application must be
made in a manner and form published by the registrar.
(3) It must be accompanied
by –
(a) a
copy of the proposed charter and abridged regulations of the foundation;
(b) unless
another method of payment is agreed, the published fee; and
(c) if
any part of the proposed charter or abridged regulations is not in English, a
translation of the part in English.[3]
(4) The application must
also be accompanied by a certificate signed by the qualified person making the
application certifying –
(a) that
a qualified person, named in the certificate, will become the qualified member
of the council of the foundation on the incorporation of the foundation;
(b) that
the qualified person who signed the certificate is in possession of regulations
for the proposed foundation that have been approved by both the founder of the
foundation and by the qualified person named in the certificate;
(c) that
the address in Jersey, specified in the certificate, is the business address in
Jersey of the qualified person named in the certificate; and
(d) that
a person has been selected who will become the guardian of the foundation in
accordance with its regulations on the incorporation of the foundation.
(5) The application and any
document accompanying it must be authenticated in any manner determined by the
registrar.
(6) Without limiting the
effect of Article 13 (publication of information and advice) of the Financial Services Commission
(Jersey) Law 1998, the Commission may publish information, or promote the publication
of information, or give advice in the form and manner it considers appropriate
to provide guidance on the information that should be included in or excluded
from abridged regulations.[4]
The charter of a foundation
3 Foundation
must have a charter
A foundation must have a charter that complies with the requirements
of this Law.
4 The
charter of a foundation – name of foundation
(1) The charter of a
foundation must specify the name of the foundation.
(2) The name –
(a) must
not be misleading or otherwise undesirable; and
(b) must
end with the word “Foundation” or a word or words that mean that
word in a foreign language.
5 The
charter of a foundation – its objects
(1) The charter of a
foundation must specify the objects for which the foundation was established.
(2) Those
objects –
(a) must
be lawful; and
(b) may
be charitable, non-charitable or both.
(3) The objects may
be –
(a) to
benefit a person or a class of persons; or
(b) to
carry out a specified purpose,
or to do both.
(4) It is sufficient, for
the purpose of paragraph (3)(a), for the charter to provide that the
person or class of persons may be determined in accordance with the charter or
regulations of the foundation.
(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.[5]
(5) If a foundation has the
provision of a benefit to a person or to a class of persons as its objects or
as one of its objects, the charter or regulations of the foundation may provide
for the manner in which those objects or that object may be amended, including –
(a) to
exclude a person or a class of persons;
(b) to
apply to a different person or to a different class of person; or
(c) to
include an additional person or an additional class of persons,
as the case may be.[6]
(6) Paragraph (5)
is without prejudice to Articles 10 and 38.[7]
6 The
charter of a foundation – first council members
(1) The charter of a
foundation may specify the names and addresses of the first members of the
council of the foundation.
(2) If it does so, any
subsequent change in those names and addresses is not an amendment of the
charter for the purposes of Article 38.
7 The
charter of a foundation – its endowment
(1) A foundation need not
have an initial endowment.
(2) However, if it does
have one, the details of the endowment must be specified in its charter.
(3) If, after the
incorporation of a foundation, the foundation may be further endowed, this must
be stated in its charter.
8 The
charter of a foundation – winding up
(1) The charter of a
foundation must specify what is to happen to any assets of the foundation that
remain should the foundation be wound up and dissolved.
(2) It is sufficient, for
the purpose of paragraph (1), for the charter to provide that the assets
that remain shall be disposed of in the manner specified in the regulations of
the foundation.
9 The
charter of a foundation – its term
(1) If a foundation is to
be wound up and dissolved upon –
(a) the
happening of some event; or
(b) the
expiration of a fixed period of time,
details of the event or period must be specified in its charter.
(2) If a person has the
right to apply to have a foundation wound up and dissolved, details of the
right must be specified in its charter.
(3) Paragraph (2) does
not apply to, and is without prejudice to, any right arising under an enactment
or by customary law.
10 The
charter of a foundation – general
(1) The charter of a
foundation may, in addition to the matters required to be set out in it by this
Law, provide for any other matter in respect of the foundation.
(2) It may, in
particular –
(a) provide for the manner in which the charter
or the regulations of the foundation may be amended; and
(b) contain
any provisions that must or may be included in the regulations of a foundation.
(3) The
business address of a foundation, unless its charter provides otherwise, is to
be taken to constitute the place of administration of the activities and assets
of the foundation.[8]
The regulations of a foundation
11 Foundation
must have regulations
(1) A
foundation must have regulations that comply with this Law.
(2) However,
paragraph (1) is satisfied in respect of a provision that must or may be
included in the regulations of a foundation if it is included in its charter.
(3) In any
such case, a reference in this Law to the provision in the regulations of a
foundation shall be taken to be a reference to the provision as it appears in
its charter.
12 The regulations of a
foundation – its council
(1) The
regulations of a foundation must –
(a) establish
a council to administer the foundation’s assets and to carry out its
objects;
(b) provide
for the appointment, retirement, removal and remuneration (if any) of its
members;
(c) set
out how the decisions of the council are to be made and, if any decision
requires the approval of any other person, specify the decisions and that
person; and
(d) set
out the functions of the council, and, if they must or may be delegated or
exercised in conjunction with any other person, the extent to which this must
or may be done.
(2) In particular, the regulations
of a foundation must set out a procedure that ensures that a qualified person
is appointed to be the qualified member of its council as soon as reasonably
practicable if its qualified member –
(a) dies;
(b) retires;
or
(c) otherwise
ceases to act or to be able to act.
(3) Despite any provision
of the regulations of a foundation to the contrary, if the qualified member of
its council –
(a) retires;
or
(b) is
removed,
the retirement or removal does not take effect until immediately
before the appointment of a new qualified person to be the qualified member of
the council has taken effect.
13 Foundation
must have a guardian
(1) A foundation must have
a guardian.
(2) The guardian of a
foundation –
(a) must
be appointed in accordance with this Law; and
(b) shall
have, in respect of the foundation, the functions specified in this Law and in
the charter and regulations of the foundation.
14 The
regulations of a foundation – its guardian
(1) The
regulations of a foundation must provide for the appointment of its guardian.
(2) Accordingly,
the regulations of a foundation must –
(a) identify
the initial guardian of the foundation;
(b) provide
how a guardian of the foundation may retire;
(c) provide
how a new guardian is to be appointed; and
(d) provide
for the guardian’s remuneration (if any).
(3) Apart from –
(a) a
founder of a foundation; and
(b) the
qualified member of its council,
a person may not be both a member of its council and its guardian.
(4) The guardian of a
foundation must take such steps as are reasonable in all the circumstances to
ensure that the council of the foundation carries out its functions.
(5) Accordingly, the
guardian of a foundation may require its council to account to the guardian for
the way in which it has –
(a) administered
the foundation’s assets; and
(b) acted
to further the foundation’s objects.
(6) The regulations of a
foundation may give its guardian the power to approve or disapprove any
specified actions of its council.
(7) Except to the extent
that the regulations of a foundation provide otherwise, the guardian of a
foundation may, if he or she considers that it is appropriate to do so,
sanction or authorize any action taken or to be taken by the council of the
foundation that would not otherwise be permitted by the charter or regulations
of the foundation.
(8) However, the guardian
must not do so unless he or she is satisfied –
(a) that
it is in the best interests of the foundation to do so; and
(b) that
the council, in taking the action, acted or will be acting in good faith.
(9) If the guardian of a
foundation, acting under paragraph (7), sanctions or authorizes any action
of the council of the foundation, the council shall, in taking that action, be
taken for all purposes to have acted in accordance with the charter and
regulations of the foundation.
(10) Nothing in paragraph (7)
shall be construed as permitting the guardian of a foundation to sanction or to
authorize any action taken or to be taken by the council of the foundation that
would be inconsistent with this Law or any other enactment.
15 The regulations of a
foundation – reimbursement of expenses
The regulations of a foundation may provide for a person appointed
under the regulations of the foundation to be reimbursed by the foundation any
reasonable expenses incurred by the person in carrying out his or her functions
in respect of the foundation.
16 The regulations of a
foundation – general
(1) The regulations of a
foundation may, in addition to the matters required to be set out in them by
this Law, provide for any other matter in respect of the foundation.
(2) They may, in
particular, provide for –
(a) the
manner in which the charter or the regulations of the foundation may be
amended; and
(b) the appointment, retirement, removal
and remuneration (if any) of persons (other than the members of the council of
the foundation and its guardian) to carry out functions in respect of the
foundation.
17 The
regulations of a foundation – supply of copies
(1) Unless
the regulations of a foundation provide otherwise, a foundation need not supply
a copy of its regulations to a person other than to a person appointed under
the regulations of the foundation.
(2) Paragraph (1)
is without prejudice to any obligation of a foundation to supply a copy of its
regulations imposed by an enactment or by an order of a court.
The founder of a foundation
18 The
founder of a foundation
(1) A founder of a
foundation has such rights (if any) in respect of the foundation and its assets
as are provided for in its charter and regulations.
(2) Any rights a founder of
a foundation may have in respect of the foundation and its assets may be
assigned to some other person if the charter or regulations of the foundation
so provide.
(3) Where –
(a) a
founder of a foundation has rights in respect of the foundation and its assets;
or
(b) a
person has been assigned any rights of a founder in respect of a foundation and
its assets,
and the founder or person, as the case may be –
(c) dies;
or
(d) in
the case of a founder or a person that is not an individual, ceases to exist,
those rights vest in the guardian of the foundation unless its
charter or regulations provide otherwise.
19 Further
endowment of a foundation
Unless the regulations of a foundation provide otherwise, the
endowment of a foundation by a person does not –
(a) make the person a
founder; or
(b) vest in the person a
right vested in a founder of the foundation.
The council of a foundation
20 Foundation
must have a council
A foundation must have a council –
(a) to administer the assets
of the foundation; and
(b) to carry out its
objects.
21 The
council of a foundation – membership
(1) The council of a
foundation may have one or more members.
(2) It must include a
qualified person.
(3) A member must be at
least 18 years old.
(4) A member must not
be –
(a) a
person in respect of whom a delegate has been appointed under Part 4 of
the Capacity and
Self-Determination (Jersey) Law 2016, or equivalent arrangements
have been made under a corresponding provision of the law of a jurisdiction
other than Jersey; or
(b) a
person who is disqualified for being a member of the council of a foundation or
a director of a company under this or any other enactment.[9]
22 The
council of a foundation – acts of members
(1) The members of the
council of a foundation must conduct the foundation’s affairs in
accordance with its charter and regulations and this Law.
(2) The members of the
council of a foundation must –
(a) act
honestly and in good faith with a view to the best interests of the foundation;
and
(b) exercise
the care, diligence and skill that reasonably prudent persons would exercise in
comparable circumstances.
(3) An act of a member of
the council of a foundation is valid despite any defect that may afterwards be
found in –
(a) the
appointment of the member; or
(b) the
member’s qualifications.
23 The
council of a foundation – qualified member
(1) On the incorporation of
a foundation the qualified person named under Article 2(4)(a) becomes the
qualified member of the council of the foundation.
(2) A qualified person
subsequently appointed to be the qualified member of the council of the
foundation must notify the registrar of his or her –
(a) appointment;
and
(b) business
address in Jersey.
(3) Notification must be
given in a form and manner published by the registrar.
(4) Unless another method
of payment is agreed the notification must be accompanied by the published fee.
(5) The appointment of a
qualified person to be the qualified member of the council of a foundation
takes effect when the registrar enters a note of the name and business address
of the qualified person in the register and dates the entry.
(6) Although the council of
a foundation may include more than one qualified person it may not have more
than one qualified member at any one time.
(7) Accordingly the
registrar may refuse to enter in the register a note of the name of a qualified
person as the qualified member of the council of a foundation until the registrar
is satisfied that the person mentioned in the register as the qualified member
of the council –
(a) has
ceased to act in that capacity; or
(b) under
Article 12(3), will cease to act in that capacity upon the appointment of
the new qualified member of the council.
The obligations and liabilities of
members of the council and others[10]
24 The
members of the council and others – personal liability
(1) This Article applies,
in respect of a foundation, to a person appointed under the regulations of the
foundation when acting or purporting to be acting in the course of that
appointment.
(2) Nothing –
(a) in
the charter or regulations of the foundation; or
(b) in a
contract between the foundation and a person to whom this Article applies,
shall relieve, release or excuse the person from any liability for
the person’s fraud, wilful misconduct or gross negligence.
(3) Any insurance purchased
and maintained by the foundation in respect of a person to whom this Article
applies must not include insurance in respect of –
(a) any
liability the person may incur –
(i) to the
foundation, or
(ii) to
pay a fine in respect of an offence; or
(b) any
costs the person may incur –
(i) in defending
criminal proceeding in which the person is convicted, or
(ii) in
defending civil proceeding brought by the foundation in which judgement is
given against the person.
24A Obligation to
ensure proper and accurate accounting records[11]
(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.
24B Criminal
liability of members of council and other officers[12]
(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.
The rights of persons under a foundation
25 Rights
of beneficiaries under a foundation
(1) A beneficiary under a
foundation –
(a) has
no interest in the foundation’s assets; and
(b) is
not owed by the foundation or by a person appointed under the regulations of the foundation a duty that is or is analogous to a fiduciary duty.
(2) However,
if –
(a) a
beneficiary under a foundation becomes entitled to a benefit under the
foundation in accordance with the charter or the regulations of the foundation;
and
(b) the
benefit is not provided,
the beneficiary may seek an order of the Royal Court ordering the
foundation to provide the benefit.
(3) Except as provided by
paragraph (4), the beneficiary must seek the order within the period of
3 years from the time when the beneficiary became aware of his or her
entitlement to the benefit.
(4) If the beneficiary has
not attained the age of 18 years when he or she became aware of his
or her entitlement to the benefit, the period referred to paragraph (3)
begins to run on the day on which the beneficiary attains that age.
26 Foundations
not obliged to provide information
(1) Except as specifically
required by or under this Law or by the charter or regulations of the
foundation, a foundation is not required to provide any person (whether or not
a beneficiary) with any information about the foundation.
(2) The information
mentioned in paragraph (1) includes, in particular, information
about –
(a) the
administration of the foundation;
(b) the
manner in which its assets are being administered;
(c) its
assets; and
(d) the
way in which it is carrying out its objects.
(3) Paragraph (1)
is without prejudice to any other obligation of a foundation to supply any information about the foundation imposed by an enactment or by an order of a court.
The incorporation of a foundation
27 Registrar
may refuse application for incorporation
(1) The registrar may
refuse to accept an application for the incorporation of a foundation
if –
(a) the
registrar is not satisfied that its proposed objects are lawful; or
(b) the
registrar considers that its proposed name is misleading or otherwise
undesirable or that it does not end with the word “Foundation” or a
word or words that mean that word in a foreign language.
(2) If the registrar does
so refuse, the registrar must inform the applicant of the refusal and the
reason for the refusal.
(3) The applicant may,
within 28 days of being informed of the refusal, appeal to the Royal
Court.
(4) The Royal Court may
order the registrar to accept the application if it considers –
(a) that
the proposed objects of the foundation are lawful; or
(b) that
the proposed name of the foundation is not misleading or otherwise undesirable
or that it does end with the word “Foundation” or a word or words
that mean that word in a foreign language,
as the case may be, but must otherwise confirm the registrar’s
decision to refuse to accept the application.
(5) This Article also
applies, with necessary amendments, to any application to register a change in
the charter of a foundation that involves a change in its objects or a change
of its name.
28 Incorporation
The registrar must
incorporate a foundation if –
(a) the
registrar accepts an application from a qualified person for the incorporation
of the foundation on behalf of a person; and
(b) the
registrar is satisfied that the requirements of this Law in respect of the
incorporation of the foundation have been complied with.
29 Means
of incorporation
(1) To incorporate a
foundation the registrar must enter in the register –
(a) the
name of the foundation; and
(b) the
name and business address in Jersey of the qualified member of the council of
the foundation as shown in the certificate mentioned in Article 2(4),
and date the entries.
(2) The registrar must also
issue the foundation with a registration number.
(3) An entry in the
register of the name of a foundation is conclusive evidence –
(a) that,
on the date mentioned in paragraph (1), the foundation was incorporated
under this Law; and
(b) that
the requirements of this Law were complied with in respect of all matters
precedent or incidental to the incorporation of the foundation.
The effect of the incorporation of a foundation
30 Corporate
status
(1) A foundation is an
incorporated body with the name specified in respect of it in the register.
(2) Except as provided by
paragraph (3), a foundation, acting through its council, is capable of
exercising all the functions of a body corporate.
(3) A foundation may not
directly –
(a) acquire,
hold or dispose of immovable property in Jersey; or
(b) engage
in commercial trading that is not incidental to the attainment of its objects.
31 Legal competence of
foundations
(1) The doctrine of ultra vires does not apply in respect of a
foundation.
(2) Accordingly, the
capacity of a foundation is not limited by –
(a) anything
in its charter or regulations; or
(b) any
act by a person appointed under the regulations of the foundation.
The application of laws to a foundation
32 Jersey
law to prevail in respect of foundations
(1) A question that arises
in respect of –
(a) a
foundation; or
(b) the
endowment of a foundation,
must be determined in accordance with the law of Jersey without
reference to the law of a jurisdiction outside Jersey.
(2) The question may be
(without limiting the generality of paragraph (1)) a question as
to –
(a) the
capacity of the founder of a foundation to seek the incorporation of the
foundation or the capacity of a person to endow it;
(b) the
validity, interpretation or effect of the charter or regulations of a foundation
or of an amendment of them;
(c) the
administration of the foundation, whether it is conducted in Jersey or
elsewhere, including questions as to the functions, appointment and removal of
a person appointed under the regulations of a foundation; or
(d) the
existence and extent of functions in respect of a foundation, including
(without limiting the generality of this provision) powers of amendment,
revocation and appointment, and the validity of the exercise of such a
function.
(3) Paragraph (1) –
(a) does
not validate the endowment of a foundation with property that is neither owned
by a founder or by some other person endowing a foundation nor the subject of a
power of disposition vested in a founder or in such other person;
(b) does
not affect the recognition of the law of a jurisdiction outside Jersey in
determining whether a founder of a foundation or some other person endowing a
foundation is or was the owner of property or the holder of such a power;
(c) is
subject to an express provision to the contrary in the charter or regulations
of a foundation;
(d) does
not, as regards the capacity of a corporation, affect the recognition of the
law of its place of incorporation;
(e) does
not affect the recognition of the law of a jurisdiction outside Jersey
prescribing (without reference to the existence of the foundation or the terms
of its charter and regulations) the formalities for the disposition of
property;
(f) does
not validate a trust or disposition of immoveable property situate in a
jurisdiction outside Jersey that is invalid under the law of the jurisdiction;
and
(g) does
not validate a testamentary disposition that is invalid under the law of the
testator’s last domicile.
(4) The –
(a) incorporation
of a foundation; or
(b) the
endowment of a foundation,
is not void, voidable, liable to be set aside, invalid or subject to
an implied condition because of a reason specified in paragraph (6), (7)
or (8).
(5) None of the following,
namely –
(a) a
foundation;
(b) a
founder of a foundation;
(c) an assignee
of a right a founder of a foundation may have had in respect of the foundation
or its assets;
(d) a
person, other than a founder of a foundation, endowing a foundation;
(e) a
person appointed under the regulations of a foundation;
(f) a
beneficiary under a foundation;
(g) a
third party,
is subject to an obligation or liability or deprived of a right,
claim or interest arising from or under the foundation because of a reason specified in paragraph (6), (7) or (8).
(6) The first reason is
that the law of a jurisdiction outside Jersey –
(a) prohibits
or does not recognize foundations; or
(b) prohibits
the endowment of foundations.
(7) The second reason is
that –
(a) the
incorporation of a foundation; or
(b) the
endowment of a foundation,
avoids or defeats or potentially avoids or defeats a right, claim,
interest, obligation or liability conferred or imposed by the law of a
jurisdiction outside Jersey on a person –
(c) by
reason of a personal relationship to –
(i) a founder,
(ii) a
person, other than a founder of the foundation, endowing the foundation,
(iii) an
assignee of a right a founder of a foundation may have had in respect of the
foundation or its assets, or
(iv) a
beneficiary under the foundation; or
(d) by
way of foreign heirship rights.[13]
(8) The third reason is
that –
(a) the
incorporation of a foundation; or
(b) the
endowment of a foundation,
contravenes or potentially contravenes a rule of law or a judicial
or administrative judgment, order or action of a jurisdiction outside Jersey
intended to recognize, protect, enforce or give effect to a right, claim,
interest, obligation or liability mentioned in paragraph (7)
whether –
(c) by
seeking to invalidate the incorporation of the foundation or the endowment of
the foundation; or
(d) by
imposing an obligation, a liability or a limitation or other condition or
restriction on –
(i) the foundation,
(ii) a
founder of the foundation,
(iii) a
person, other than a founder of the foundation, endowing the foundation,
(iv) an
assignee of a right a founder of the foundation may have had in respect of the
foundation or its assets,
(v) a person appointed
under the regulations of the foundation,
(vi) a
beneficiary under the foundation, or
(vii) a third
party.
(9) Despite any other
enactment or rule of customary law, a judgment or order of a court of a
jurisdiction outside Jersey that concerns a question mentioned in paragraph (1)
shall not –
(a) be
recognized, enforced or otherwise given effect to; or
(b) give
rise to a right, obligation or liability or raise any estoppel,
if the court in giving the judgment or making the order failed to
take the operation of this Article into account.
(10) This Article
applies –
(a) wherever
and whenever a foundation is endowed; and
(b) despite
any other provision of this Law.
(11) The reference in paragraph (1)
to the law of Jersey shall not be taken to include the Jersey rules of private
international law other than as provided by this Article.
(12) In relation to –
(a) a
foundation; and
(b) an
endowment of a foundation,
the law of Jersey relating to legitime
and the rights of a surviving spouse do not apply except where a founder or any
other person endowing the foundation is domiciled in Jersey.
33 Rule
donner et retenir ne vaut not to apply
The rule donner et retenir ne vaut shall not apply to –
(a) a question concerning
the validity, effect or administration of a foundation; or
(b) a transfer of property
by or to a foundation or by or to an entity owned in whole or in part by a
foundation.
PART 3
ADMINISTRATION of foundations
34 Service of documents
A document required to be served on a foundation must be served on
the foundation by leaving it at, or by sending it by post to, its business
address.
35 Foundation
to include name and address in its written
communications
A foundation must include
its name and business address in its written communications, including those
transmitted by electronic means.
Penalty: Fine of level 3 on the standard scale.
36 Documents
to be kept at business address of foundation
A foundation must keep at its business address –
(a) a copy of its charter
and regulations as they are for the time being in force;
(b) a register showing the
names and addresses of the members of its council;
(c) records sufficient to
show and explain its transactions;
(d) a record of the
appointment of the guardian of the foundation showing the date of his or her
appointment and his or her name and address;
(e) records that disclose,
with reasonable accuracy, its financial position;
(f) a register of the
names and addresses of those who have endowed the foundation.
Penalty:
Fine of level 3 on the standard scale.
37 [14]
38 Amendment
of charter
(1) A foundation must
notify the registrar of any amendment it proposes be made to its charter.
(2) The notification must
be given in a form and manner published by the registrar.
(3) It must be accompanied
by –
(a) a
copy of the proposed charter as amended;
(b) unless
another method of payment is agreed, the published fee; and
(c) if
any part of the proposed charter as amended is not in English, a translation of
the part in English.
(4) The proposed charter as
amended takes effect as the charter of the foundation when the registrar enters
the charter in the register and dates the entry.
(5) An attempt to amend the
charter of a foundation otherwise than –
(a) in
accordance with its charter and regulations; or
(b) by an
order of the Royal Court,
is of no effect.
PART 4
REGISTRAR
39 Exercise
of functions of the registrar
A function of the registrar under this Law may, to the extent
authorized by the registrar, be exercised by an officer on the staff of the
Commission.
40 Register
to be kept and made available for public inspection
(1) The registrar must keep
a register for the purposes of this Law.
(2) The registrar must
include in the register the charter and abridged regulations of each
foundation.[15]
(3) The registrar must on
payment of any published fee, make the register available for public inspection
at any reasonable time.
(4) On payment of any
published fee, the registrar must supply a person with a certificate stating
whether or not a named body is a foundation and, if it is, the following
details as they appear in the register –
(a) the
date of its incorporation;
(b) its
registration number;
(c) whether
it has paid its last annual administration fee and any additional amount
determined by the States by Regulations; and
(d) the
name and business address of the qualified member of its council or, if there
is no such qualified member, its last qualified member.
(5) On payment of any
published fee, the registrar must supply a person with a certified copy of the
charter and abridged regulations of a foundation as included in the register.[16]
(6) There is admissible in
evidence in legal proceedings –
(a) a
certificate supplied under paragraph (3); or
(b) a
certified copy of the charter and abridged regulations of a foundation supplied
under paragraph (5).[17]
41 Keeping of records by registrar
(1) A record delivered to
the registrar under this Law may be kept by the registrar in any
form –
(a) that
is approved by the Commission; and
(b) that
is capable of being reproduced in a legible form.
(2) The registrar is to be
taken to have complied with an obligation to keep a record if the registrar has
complied with paragraph (1) in respect of the record.
(3) The registrar may
destroy a record kept by the registrar if –
(a) it is
an original record and the registrar has recorded and kept the information in
it in accordance with paragraph (1); or
(b) it
relates solely to a foundation that has been dissolved more than 10 years
previously.
42 Registrar
may change registration number of foundation
(1) The registrar may, for
good cause, change the registration number of a foundation.
(2) The registrar must
inform the foundation if he or she does so.
part 5
powers
of The Royal Court
43 Applications
to Royal Court
(1) A person with standing
in respect of a foundation may apply to the Royal Court for the Court to take,
in respect of the foundation, any of the actions specified in this Part.
(2) Where the question or
one of the questions to be determined by the Royal Court is whether a person is
a person with standing in respect of a foundation, the reference in paragraph (1)
to a person with standing shall be taken, for the purpose of determining that
question, to include such a person.
44 Powers
of Royal Court to order compliance
(1) If the Royal Court is
satisfied that, in respect of a foundation, a person has failed to comply
with –
(a) a
requirement of this Law or of the charter or regulations of the foundation; or
(b) an
obligation imposed on the person by this Law or the charter or regulations of
the foundation,
the Court may, by order, require the person to comply with the
requirement or obligation.
(2) If the Royal Court is
satisfied that a foundation, acting through its council, has failed to carry
out its objects or any of them, the Court may, by order, require the foundation
to do so.
(3) An order under this
Article may specify the action the person or foundation is required to take.
45 Powers
of Royal Court to order amendment of charter or regulations of foundation
(1) The Royal Court may, by
order, propose amendments to the charter of a foundation or amend the
regulations of a foundation if the Court is satisfied –
(a) that
the change will assist the foundation to administer its assets or to attain its
objects; or
(b) that
those objects are no longer attainable and that the change will assist the
foundation to attain objects as near as reasonably possible to those objects.
(2) If the order proposes
amendments to the charter of the foundation, Article 38
shall have effect as if the proposal to amend the charter was that of the
foundation.
46 Power
of Royal Court to give directions
(1) This Article applies if
the Royal Court is satisfied –
(a) that
if it gives a direction it will assist a foundation to administer its assets or
to carry out its objects; or
(b) that
it is otherwise desirable for the Court to give a direction.
(2) The Court may give a
direction as to –
(a) the
meaning and effect of a provision or term in the charter or regulations of the
foundation;
(b) the
manner in which the council of the foundation is required to carry out the
administration of the foundation’s assets or the carrying out of its
objects;
(c) the
functions of the council of the foundation or of any of its members;
(d) the
functions of any other person appointed under the regulations of the
foundation;
(e) whether
a person is a beneficiary;
(f) the
rights of beneficiaries under the foundation as between themselves or as
between themselves and the foundation; or
(g) such
other matters as the Royal Court considers relevant to the foundation, its
charter, its regulations, the administration of its assets or the carrying out
of its objects.
(3) The Royal Court may, in
addition to giving a direction under paragraph (2), make such an order as
it thinks fit to give effect to the direction.
47 Power
of Royal Court to protect interests under a foundation
The Royal Court may, in respect of a foundation, by order, appoint a
person to protect the interests of a person the Court is satisfied is or may
come to be a beneficiary under the foundation, where –
(a) the person is unborn;
or
(b) the Court is satisfied
that the person is unable to act on his or her own behalf.
48 Power
of Royal Court to dismiss or appoint a qualified member
(1) If the Royal Court is
satisfied that it is in the interest of a foundation to do so, it may, by
order –
(a) remove
the qualified member of the council of the foundation; or
(b) appoint
a qualified person to be the qualified member of the council of the foundation,
or do both.
(2) Paragraphs (2),
(3), (4) and (5) of Article 23 shall apply in respect of a qualified
person appointed by an order of the Court to be the qualified member of the
council of a foundation.
49 Power
of Royal Court to take action on behalf of others
(1) This Article applies
where the Royal Court is satisfied, in respect of a foundation, that a person
has failed to comply with –
(a) a
requirement of this Law or of the charter or regulations of the foundation; or
(b) an
obligation imposed on the person by this Law or by the charter or regulations
of the foundation.
(2) The Royal Court may, by
order, comply with the requirement or obligation on behalf of the person who
has failed to do so.
(3) The Court shall not do
so unless it is satisfied –
(a) that
to do so will assist the foundation in the administration of its assets or the
attainment of its objects; or
(b) that
it is otherwise desirable that it should do so.
(4) Where the Court does
so, its order shall have the same effect as if it were an action taken by the
person required to comply with the requirement or obligation.
50 General
power of Royal Court in respect of orders
(1) An order made by the
Royal Court under this Part in respect of a foundation may, in particular,
provide for the appointment or removal of a person appointed under the
regulations of the foundation.
(2) Any order made by the
Court under this Part –
(a) may
be made on such terms; and
(b) may
impose such conditions,
as the Court thinks fit.
51 Limitation
on certain actions in the Royal Court
(1) This Article applies,
in respect of a foundation, to a breach of duty by a person appointed under the
regulations of the foundation when carrying out or when purporting to be
carrying out the functions of the appointment.
(2) Except as otherwise
provided by paragraphs (3) and (4), the period within which an action
founded on a breach of duty to which this Article applies may be brought in the
Royal Court is –
(a) the
period of 3 years from the time when the person bringing the action became
aware of the breach; or
(b) the
period of 18 years from the date of the breach,
being whichever period first expires.
(3) Except as otherwise
provided by paragraph (4), the period within which an action founded on a
breach of duty to which this Article applies may be brought in the Royal Court
against a person appointed under the regulations of a foundation who has ceased
to hold the appointment is –
(a) the
period of 3 years from the date on which the person ceased to hold the
appointment; or
(b) the
period mentioned in paragraph (2),
being whichever period first expires.
(4) The limitations
mentioned in paragraphs (2) and (3) in respect of a breach of duty to
which this Article applies do not apply –
(a) in
respect of any fraud to which a person appointed under the regulations of the
foundation was privy; or
(b) to
the recovery from a person appointed under the regulations of the
foundation –
(i) of any property
of the foundation that is in the person’s possession or under the
person’s control, or
(ii) of
property in the person’s possession or under the person’s control
that is the proceeds of any property of the foundation.
part 6
amendment of this Law
52 Power
to amend Parts 1 and 2 by Regulations
(1) The States may amend
Parts 1 and 2 of this Law by Regulations.
(2) The
power conferred on the States by paragraph (1) includes the power to make
Regulations –
(a) to make such transitional
provisions; and
(b) to
make such consequential, incidental or supplementary amendments to any other
provision of this Law or to any other enactment,
as appear to the States to be necessary or expedient.
part 7
Closing provisions
53 Regulations
(1) The States may, by
Regulations, provide –
(a) for
the dissolution of foundations;
(b) for
the continuance in Jersey as foundations of bodies
corporate, whether or not incorporated in Jersey;
(c) for
foundations incorporated in Jersey to be permitted to seek continuance outside
Jersey; and
(d) for the merger of foundations,
including the merger of foundations with any bodies corporate, whether or not
incorporated in Jersey.
(2) Regulations made under
paragraph (1) may create offences and prescribe penalties.
(3) Regulations made under
paragraph (1) may –
(a) provide
for the Minister to exercise a discretion in respect of matters prescribed by
the Regulations;
(b) permit
the Commission to publish fees that may be imposed by the Regulations; and
(c) permit
the Commission and the registrar to publish material in respect of matters
prescribed by the Regulations.[18]
54 Citation
This Law may be cited as the Foundations (Jersey) Law 2009.