DOCSLIB.ORG

Jersey Law Course 2011-12 Company

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Jersey Law Course 2011-12 Company Jersey Law Course 2011-12 Company Law Dr Paul Omar The Institute is an independent, not-for-profit legal education and research body, established in 2008. It provides a focus for the study of the laws of the Channel Islands and their legal heritage and, more broadly, the challenges facing small jurisdictions and mixed legal systems. The Institute runs the Jersey Law Course (leading to the professional examinations for aspiring advocates and solicitors of the Royal Court) and offers tuition to students enrolled on the University of London LLB through the International Programmes. It also organises lunchtime lectures on aspects of Jersey law for the general public and continuing professional development events and conferences for the legal profession. More information is available at www.lawinstitute.ac.je. This publication is one of a series of guides to those areas of law covered by the syllabus for the Jersey Law Course. Each subject is taught by a team consisting of a visiting academic working closely with members of the Jersey legal profession. The guides have been formally approved for this purpose by the Board of Examiners established under the Advocates and Solicitors (Jersey) Law 1997. They are written as an educational aid rather than a comprehensive statement of the law. People referring to this guide for purposes other than study should bear this in mind. The authors, the Institute, and the Board of Examiners accept no liability for any loss that may arise from reliance on any of the guides. The Institute gratefully acknowledges funding from the States of Jersey for the original preparation of the guides, several Jersey law firms that made available their ‘student notes’ in 2008, and to members of the Board of Examiners. The law is stated as at 1st August 2011. The Institute welcomes comments on the guides, which should be sent to: The Manager, Institute of Law, 1 Seale Street, St Helier, Jersey JE2 3QG or email [email protected]. The authors of all the editions, including the 3rd (2011) edition are Dr Paul Omar and Jonathan Walker. Published by the Institute of Law © Institute of Law 2011 All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the Institute. ISBN: 978-1-908716-03-3 Company Law Study Guide 2011-2012 3 CONTENTS 0. Preface .................................................................... 11 Preface ....................................................................... 11 Official syllabus ............................................................. 11 Permissible materials ...................................................... 11 Bibliography ................................................................. 11 1. Introduction .............................................................. 13 History and Introduction to the Companies (Jersey) Law 1991 ...... 13 Definitions and Interpretation ............................................ 14 Types of Company .......................................................... 19 Application of Law/Regulations to Domestic/Foreign Companies .. 26 2. Legal Personality/Members’ Liability ............................... 28 Separate Legal Personality ................................................ 28 Interests of Justice? ........................................................ 32 Public Policy ................................................................. 32 Economic Entity Theory ................................................... 33 Limited Liability ............................................................. 34 Members’ Liability .......................................................... 35 3. Corporate and Contractual Capacity ................................ 38 Powers and Civil Capacity of a Company ............................... 38 Pre-Incorporation Transactions ........................................... 39 Setting Aside Transactions ................................................ 41 Corporate Seal/Document Authentication .............................. 42 Corporate Criminal Capacity .............................................. 43 4. Types of Company ...................................................... 46 Distinction between Private/Public Companies ........................ 46 General Requirements for all Companies and Service of Documents ................................................................................. 46 Private Companies: Status ................................................ 47 Private Companies: Status and General Exemptions from Compliance/Restrictions .................................................. 47 Public Companies: Status .................................................. 48 Public Companies: Additional Duties .................................... 50 Calculation of and Minimum Membership Requirements ............. 52 5. Company Formation .................................................... 54 4 Company Law Study Guide 2011-2012 Persons Authorised to form a Company and Forms of Company .... 54 Lawful Purpose .............................................................. 55 Documentation Requirements ............................................ 56 The Memorandum ........................................................... 56 The Memorandum of a Company with Shares .......................... 56 The Memorandum of Companies with Guarantor Members .......... 57 The Memorandum of Companies of Limited Duration ................ 57 Arts of Association for all Companies ................................... 58 Other Documents to be Delivered ....................................... 58 The Use of the Standard Table and Permitted Variations ............ 58 Permitted Names ........................................................... 59 Change of Name ............................................................. 60 Power to Require Change of Name ....................................... 60 Registration of the Company .............................................. 60 The Effect of Registration ................................................. 61 Consent to issue Shares .................................................... 62 6. Memorandum and Arts ................................................. 63 Effect of Memorandum and Arts .......................................... 63 Alteration of Memorandum and Arts ..................................... 64 Evidencing Constitutional Changes/Filing Special Resolutions ...... 69 7. Shares/Securities ........................................................ 70 Definition of Par Value/No Par Value/Shares/Share Fractions ...... 70 Nature and Numbering of Shares/Share Certificates .................. 70 Share Capital Statement in Memorandum .............................. 72 Rights in Relation to Shares ............................................... 73 Issue and Allotment of Shares ............................................ 73 Pricing of Share Issues and Prohibition of Commissions/Discounts . 74 “Fully” or “Partly” Paid Shares, Company Liens and Calls ........... 77 Liability for Defects in Issue/Allotment Process ....................... 78 Conversion between Types of Shares .................................... 81 Conversion between Types of Company ................................. 83 Creation of Classes of Shares ............................................. 83 Registers of Shares ......................................................... 83 Inspection of the Register ................................................. 85 Transfer and Certification Requirements ............................... 86 Rectification of the Register .............................................. 88 Company Law Study Guide 2011-2012 5 Capital Accounts ............................................................ 89 8. Prospectuses ............................................................. 92 Definition of Prospectus ................................................... 92 Regulation of Circulation .................................................. 92 Information in Prospectus ................................................. 94 Statements in Prospectus .................................................. 95 Civil Liability for Defects in Prospectus ................................. 96 Criminal Liability for Defects in Prospectus ............................ 98 9. Recovery of Shares ..................................................... 99 Redeemable Shares ......................................................... 99 Purchase of Own Shares .................................................. 101 Shares Redeemed/Purchased and Held as Treasury Shares ......... 102 Reduction of Capital: Special Resolution Phase ...................... 104 Reduction of Capital: Order of Confirmation Phase .................. 106 Outstanding Liability on Reduced Shares .............................. 108 Forfeiture of Shares ....................................................... 109 10. Rights attached to Shares ........................................... 111 Legally Required Rights/Impact of Memorandum and Arts ......... 111 Alteration/Variation of Class Rights .................................... 111 Objections to Alteration/Variation of Rights/Class Rights .......... 113 Particular Protection for Public Company Shareholders ............. 113 Distributions ................................................................ 114 Liability for and Consequences of Unlawful Distribution ............ 116 11. Company Administration and Organs ............................. 117 Location
Load more

Recommended publications
  • Film Producer Buys Seacole Bust for 101 Times the Estimate
    To print, your print settings should be ‘fit to page size’ or ‘fit to printable area’ or similar. Problems? See our guide: https://atg.news/2zaGmwp ISSUE 2454 | antiquestradegazette.com | 15 August 2020 | UK £4.99 | USA $7.95 | Europe €5.50 koopman rare art antiques trade KOOPMAN (see Client Templates for issue versions) THE ART M ARKET WEEKLY [email protected] +44 (0)20 7242 7624 www.koopman.art Face coverings Film producer buys Seacole now mandatory at auction rooms bust for 101 times the estimate across England A terracotta sculpture of Mary Seacole by Alex Capon (1805-81) sparked fierce competition at Dominic Winter. Wearing a face covering when Bidding at the South Cerney auction house attending an auction house in England began with 12 phones competing for the has now become mandatory. sculpture of Seacole, who nursed soldiers The updated guidance also applies to visitors to galleries and museums. during the Crimean War. Since July 24, face coverings have been It eventually came down to a final contest compulsory when on public transport as involving underbidder Art Aid and film well as in supermarkets and shops including producer Billy Peterson of Racing Green dealers’ premises and antique centres. The government announced that this Pictures, which is currently filming a would be extended in England from August biopic on Seacole’s life. 8 to include other indoor spaces such as Peterson will use the bust cinemas, theatres and places of worship. as a prop in the film. It will Auction houses also appear on this list. then be donated to the The measures, brought in by law, apply Mary Seacole Trust Continued on page 5 and be on view at the Florence Nightingale Museum.
    [Show full text]
  • The Sources of Jersey Law Richard Southwell, QC
    Return to Contents The Sources Of Jersey Law Richard Southwell, QC This modest note is a voyage of personal exploration, not a statement of judicial views. Suppose that an English and Welsh/Scottish/Northern Irish QC receives the honour of appointment to the Court of Appeal of Jersey. He (or she) knows nothing of Jersey law and its sources. Where does he or she begin? The starting point now, as always since the Jersey Court of Appeal came into existence in 1964, is to consult Sir Godfray Le Quesne QC, whose advice, crisp, to the point and accurate, has unfailingly sustained several generations of non-Jersey members of the Court of Appeal. After that one must consult the books. Much help can be found in the Reports of the Commissioners appointed to enquire into the criminal law of Jersey (1847) ("the Criminal Report") and the civil, municipal and ecclesiastical laws of Jersey (1861) ("the Civil Report"). These Commissioners had the tasks of carrying out a thorough investigation of the laws and courts of Jersey, and not surprisingly they started with the sources of Jersey law, considering these under the two heads of common or customary law, and legislation. It is convenient to refer first to legislation, of which there are these kinds: 1. Royal Charters, which are listed in the appendix to the Criminal Report of 1847, including a charter attributed to the reign of King John (see the same Appendix at page 72) which, whether authentic or not, and of whatever date, has been recognised as correctly recording established privileges of the inhabitants of Jersey.
    [Show full text]
  • Hansard Report July 2019
    O F F I C I A L R E P O R T O F T H E S T A T E S O F T H E I S L A N D O F A L D E R N E Y HANSARD The Court House, Alderney, Wednesday, 24th July 2019 All published Official Reports can be found on the official States of Alderney website www.alderney.gov.gg Volume 7, No. 7 Published by the Greffier of the Court of Alderney, Queen Elizabeth II Street, Alderney GY9 3TB. © States of Alderney, 2019 STATES OF ALDERNEY, WEDNESDAY, 24th JULY 2019 Present: Mr William Tate, President Members Ms Annie Burgess Mr Mike Dean Mr James Dent Mr Kevin Gentle Mr Christian Harris Mr Louis Jean Mr Graham McKinley Mr Steve Roberts Mr Alexander Snowdon The Deputy Greffier of the Court Ms Sarah Kelly Business transacted Tribute to Lieutenant-Colonel Peter Walter MBE, MC & Bar ........................................................... 3 Apologies for absence ...................................................................................................................... 3 Convener’s Report of the People’s Meeting held on 17th July 2019 ............................................... 4 Procedural – Apology regarding the last sitting ............................................................................... 4 Billet d’État for Wednesday, 24th July 2019 ............................................................................ 4 I. Alderney Football Association Lease Extension – Item approved ......................................... 4 II. Single-use plastics – Debate without resolution ..................................................................
    [Show full text]
  • Re the B Trust [2006] JRC 185
    Re the B Trust [2006] JRC 185 ROYAL COURT {SAMEDI DIVISION} SIR PHILIP BAILHACHE (BAILIFF) AND JURATS LE BRETON AND ALLO JUDGMENT DATE: 6 DECEMBER 2006 Conflict of laws - Jersey - Principle of comity - English court purporting to vary Jersey trust - Whether Jersey court to enforce English order -Whether Jersey court to give directions to give effect to English order -Whether principles affected by amendment to statute - Observations as to appropriate course to be adopted by English courts in cases involving Jersey trusts ~ Trusts (Jersey) Law 1984, art 9 The husband and wife were among the beneficiaries of a Jersey trust. The trustee of the trust had submitted to the jurisdiction of the court in English matrimonial property proceedings between the husband and wife. The English court decided that the trust constituted a post-nuptial settlement under English law and made an order under the English Matrimonial Causes Act 1973 purporting to vary the Jersey trust by the creation of a sub-trust in favour of the wife. The trustee applied to the Jersey court for directions as to how it should respond to the English order. In the meantime an amendment to the Trusts (Jersey) Law 1984 had come into force. The husband argued that the statutory amendment rendered the English order unenforceable as the finding that the trust was a post-nuptial settlement was inconsistent with Jersey law and that art 9(4) as amended had removed the jurisdiction of the Jersey court to enforce the English order on the basis of comity. Held (giving substantial effect to the English order): (1) The function of the court was to decide whether, and if so to what extent, to give effect to the conclusions at which the English court had arrived.
    [Show full text]
  • ARTICLE 29 Data Protection Working Party
    ARTICLE 29 Data Protection Working Party 02072/07/EN WP 141 Opinion 8/2007 on the level of protection of personal data in Jersey Adopted on 9 October 2007 This Working Party was set up under Article 29 of Directive 95/46/EC. It is an independent European advisory body on data protection and privacy. Its tasks are described in Article 30 of Directive 95/46/EC and Article 15 of Directive 2002/58/EC. The secretariat is provided by Directorate C (Civil Justice, Rights and Citizenship) of the European Commission, Directorate General Justice, Freedom and Security, B-1049 Brussels, Belgium, Office No LX-46 06/80. Website: http://ec.europa.eu/justice_home/fsj/privacy/index_en.htm OPINION OF THE WORKING PARTY ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA set up by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 On the level of protection of personal data in Jersey THE WORKING PARTY ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA, Having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1, ("the Directive") and in particular Articles 29 and 30 paragraph 1 (b) thereof, Having regard to the Rules of Procedure of the Working Party2, and in particular Articles 12 and 14 thereof, HAS ADOPTED THE FOLLOWING OPINION: 1. INTRODUCTION: LAW ON DATA PROTECTION IN JERSEY 1.1.
    [Show full text]
  • Draft Law Revision (Jersey) Law 200
    STATES OF JERSEY r DRAFT LAW REVISION (JERSEY) LAW 200- Lodged au Greffe on 10th June 2003 by the Finance and Economics Committee STATES GREFFE DRAFT LAW REVISION (JERSEY) LAW 200- European Convention on Human Rights The President of the Finance and Economics Committee has made the following statement - In the view of the Finance and Economics Committee the provisions of the Draft Law Revision (Jersey) Law 200- are compatible with the Convention Rights. (Signed) Senator T.A. Le Sueur REPORT This draft Law represents a second step towards making the written law of Jersey more accessible for the public. The first step has been the creation, under the aegis of the Jersey Legal Information Board, of a database, in electronic form, of the written laws of Jersey, from 1771 onwards. The database, in itself, is a valuable asset. Not only is it a permanent archive of the written law as enacted, its maintenance in electronic form provides swift access to the law and facilitates better research of the law through the use of search functions. However it has a greater purpose, in that it is also an essential tool for the preparation of a law revision, which is the subject of this draft Law. Why a law revision is needed Many of the written laws of Jersey have been in force for decades and have been amended many times. They may use outmoded terminology and refer to appointments and things which have fallen into disuse or have been replaced. A reader must look at all the amendments to a law in order to understand its effect.
    [Show full text]
  • Jersey & Guernsey Law Review | Miscellany
    Jersey & Guernsey Law Review – June 2011 MISCELLANY Terrorist asset freezing and the evolving constitutional relationship 1 One of the perennial vexed questions about the constitutional relationship between the United Kingdom and the Channel Islands is whether the UK Parliament at Westminster has power to legislate for the Islands without their consent. At the turn of the 20th century the celebrated constitutional lawyer Professor AV Dicey had no doubts— “… whatever doubt may arise in the Channel Islands, every English lawyer knows that any English court1 will hold that an Act of Parliament clearly intended to apply in the Channel Islands is in force there proprio vigore, whether registered by the States or not.”2 This view was given some support by a judgment of the Royal Court in 1960, which appeared to accept that the Bankruptcy Act 1914 of the United Kingdom, even though it had not been registered in the Court, was in force in the Island. The case was not argued but the Court observed in passing that the UK Parliament had power to legislate for the Island, and that there was no provision that required that an Act applying in express terms must be registered in the rolls of the Court before taking effect.3 2 Although acknowledging the convention that Parliament did not legislate for the Islands in domestic matters, the Kilbrandon Commission in 1973 echoed these views— “There appear, in any event, to be good grounds for accepting the more extreme view that if Parliament has power to legislate for the Islands at all, which we believe not to be in doubt, there are no circumstances in which it could be precluded from exercising this power.”4 Kilbrandon justified the existence of the power not on raw force, but on “convenience”.5 3 Although many constitutional lawyers in the Islands did not agree with these statements, another eminent English constitutional lawyer also doubted their accuracy 1 It is not clear whether Dicey intended to include the Judicial Committee of the Privy Council within the term “English court”.
    [Show full text]
  • Law of Jersey Protects Financial Institutions Reporting Criminal Suspicions
    Law of Jersey protects financial institutions reporting criminal suspicions Service area ⁄ Dispute Resolution and Litigation Location ⁄ Jersey Date ⁄ September 2019 In Verga v Nedbank, Mr V. claimed that the bank defamed or Also of interest to the regulated sector in Jersey was the finding otherwise wronged him in the course of reporting various that regulated businesses, such as banks, owe no general duty matters to the Police. The Police then initiated an investigation of care to the public at large, in particular in respect of their which resulted in criminal proceedings being brought in which Customer Due Diligence obligations. The decision confirms Mr. V was ultimately found not guilty. that these duties are regulatory duties, aimed at protecting the reputation of the Island and giving rise to criminal The Royal Court struck out Mr V.’s claims on the basis that the consequences if they are not followed. Those duties do not bank could claim immunity from suit and also that the claim render a regulated business liable to any person on the civil was time barred. basis. This is a case of real importance and relevance to all The decision confirms the existence of the defence of absolute individuals and entities working in the regulated sector in privilege from suit in defamation for words spoken to the Jersey. It shows that if regulated businesses comply with their police, in legal proceeding or written in witness statements and duties then the law will protect them. thus the applicability of the doctrine of legal proceedings immunity generally in Jersey. That doctrine provides Decision confirmation for persons involved in giving evidence in legal The Royal Court confirmed the wide scope of the statutory proceedings in Jersey that they will not (subject to very limited immunity from suit conferred by Article 32 of the Proceeds of narrow exceptions) be subject to “flank attack” from persons Crime (Jersey) Law 1999 (“POCL”).
    [Show full text]
  • COVID-19: the Potential Implications for Jersey Law Contracts
    MARC H 2020 COVID-19: The potential implications UPDATE for Jersey law contracts Update prepared by Stephen Alexander (Partner, Jersey) and Michael Edwards (Associate, Jersey) The outbreak of COVID-19 and the phenomenal rate of its spread has given rise to a unique crisis. It provokes a wide range of commercial and contractual issues for businesses in Jersey and beyond. And no business can count on avoiding its effects. The interpretation and construction of 'force majeure' clauses in Jersey law contracts is only one of these but a potentially very important one. Poorly advised businesses may find themselves taken advantage of. Prudent commercial parties will seek to take pre-emptive measures (where possible, pre- dispute) to protect their position and reduce disruption to their business imperatives. Factors such as human resourcing, supply chain breaks and economic uncertainty among others, will see many commercial parties understandably considering the affect that the COVID-19 pandemic is to have on pre-existing commercial contracts or contracts currently in contemplation. Some will seek to be released from present contractual obligations; others may be anxious to know if a counter-party is able to escape from its ongoing contractual obligations. Meanwhile others, attempting to minimise the disruption incurred, will want to know how they should tailor commercial contracts to reduce contractual uncertainty and mitigate exposure to loss in a new reality. Force Majeure A key feature of a commercial contract which determines whether the contract remains enforceable despite the occurrence of an unforeseen, unintended event, and consequently how risk of contractual frustration is apportioned, is the species of clause known as ‘force majeure’.
    [Show full text]
  • Conference Proceedings : Insights Into Trust Law
    S ATKINS CONFERENCE PROCEEDINGS : INSIGHTS INTO TRUST LAW Jersey & Guernsey Law Review – February 2013 Conference Proceedings INSIGHTS INTO TRUST LAW: THE CHANNEL ISLANDS AND BEYOND Scott Atkins Overview 1 This Institute of Law conference in October 2012 provided an excellent opportunity to reflect upon the rapid development of trusts law in the Channel Islands. The remarkable success of the Trusts (Jersey) Law 1984 (“the 1984 Law”) is evidenced by its export and use in numbers of other jurisdictions. It was adopted shortly after 1984 by Guernsey and both Islands have kept their Laws under almost constant review to ensure that they keep pace with market requirements. 2 Professor Andrew Le Sueur, Director of Studies at the Institute of Law, opened the Conference by providing a brief history of the development of the Institute and thanking speakers and delegates for attending. A judicial perspective on the Trusts Law 3 The provision of information by trustees was the focus of the paper presented by Sir Michael Birt, the Bailiff of Jersey. He explained that there were three areas to consider: (i) a trustee supplying information to a beneficiary; (ii) an outgoing trustee supplying information to an incoming trustee; and (iii) the provision of information from a trustee to a third party. 4 It was arguably the third area that had generated the most recent case-law and which showed a distinction between the development of the law in Jersey and Guernsey. By definition, the question of whether a trustee should give information to a third party involved consideration of whether the trustee owes a general duty of confidentiality to the beneficiary.
    [Show full text]
  • Honorary Police and the Parish Hall Enquiry System in the Channel Island of Jersey
    _________________________________________________________________________Swansea University E-Theses Constructing justice in an island community: honorary police and the parish hall enquiry system in the Channel Island of Jersey. Miles, Helen M How to cite: _________________________________________________________________________ Miles, Helen M (2007) Constructing justice in an island community: honorary police and the parish hall enquiry system in the Channel Island of Jersey.. thesis, Swansea University. http://cronfa.swan.ac.uk/Record/cronfa42251 Use policy: _________________________________________________________________________ This item is brought to you by Swansea University. Any person downloading material is agreeing to abide by the terms of the repository licence: copies of full text items may be used or reproduced in any format or medium, without prior permission for personal research or study, educational or non-commercial purposes only. The copyright for any work remains with the original author unless otherwise specified. The full-text must not be sold in any format or medium without the formal permission of the copyright holder. Permission for multiple reproductions should be obtained from the original author. Authors are personally responsible for adhering to copyright and publisher restrictions when uploading content to the repository. Please link to the metadata record in the Swansea University repository, Cronfa (link given in the citation reference above.) http://www.swansea.ac.uk/library/researchsupport/ris-support/ Constructing Justice in an Island Community: Honorary Police and the Parish Hall Enquiry System in the Channel Island of Jersey Helen M. Miles Submitted to the University of Wales in fulfilment of the requirements for the Degree of Doctor of Philosophy Swansea University November 2007 ProQuest Number: 10797959 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted.
    [Show full text]
  • Jersey Law Commission: Appointment of Commissioners
    STATES OF JERSEY JERSEY LAW COMMISSION: APPOINTMENT OF COMMISSIONERS Presented to the States on 20th January 2021 by the Chief Minister STATES GREFFE 2021 R.8 2 REPORT The purpose of this report is to advise States Members of the nomination of a number of new Law Commissioners, in accordance with the procedure for appointments established in P.205/2009. The States, by Act dated 30th July 1996, adopted a Proposition of the Legislation Committee and approved the establishment of a Jersey Law Commission. The Commission was established to carry out research and conduct consultations with a view to identifying anomalies in Jersey legislation, as well as obsolete or redundant legislation, and making recommendations to simplify and modernise the law of Jersey. The Commission is an independent body that works in close consultation with the Legislation Advisory Panel. A number of Law Commissioners have recently completed their terms of office, and there is therefore a requirement for additional Commissioners to be appointed. The duties of Law Commissioners are as follows: • To attend monthly meetings of the Jersey Law Commission • To review and comment upon consultation papers commissioned by the Commission • To help determine the nature and scope of topics regarding law reform to be undertaken by the Commission, and where appropriate to take on the role of Topic Commissioner to oversee the appointment of a Topic Practitioner and the work of the Topic Practitioner in developing a report on the topic in question. • To be prepared to discuss the Commission’s conclusions in relation to a topic and present to the Legislation Advisory Panel, when invited to do so.
    [Show full text]