Security Interests
(Registration and Miscellaneous Provisions) (Jersey) Order 2013
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;
“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;
(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 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 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 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
This Order may be cited as the Security Interests (Registration and
Miscellaneous Provisions) (Jersey) Order 2013.