This article covers the following topics in the context of a Jersey based business:
- Jersey Financial Services Commission and the Financial Services (Jersey) Law 1998
- JFSC Registry – General
- JFSC Registry – COBO consents under the Control of Borrowing (Jersey) Order, 1958
- Financial Services (Disclosure and Provision of Information) (Jersey) Law 2020
Jersey Financial Services Commission and the Financial Services (Jersey) Law 1998
- The Jersey Financial Services Commission (“JFSC”) is the regulator for the financial services industry in Jersey. The JFSC deals with, authorises and supervises regulated entities under the Financial Services (Jersey) Law 1998 (the “FSJL”). The JFSC is also regulator for a wider variety of businesses in the financial services sector covered by separate legislation (for example deposit taking and insurance). The focus of this note is the FSJL.
- We have summarised certain points to help you to understand whether an undertaking will need to be regulated by the JFSC under the FSJL, and whether notifications will need to be made to JFSC when certain ownership changes are due to occur.
- In summary:
(i) a person shall not carry on “financial service business” in or from within Jersey; and
(ii) a person being a company incorporated in Jersey shall not carry on such business in any part of the world;
unless the person is for the time being a “registered person” under the FSJL, and acting in accordance with the terms of his or her registration.
- The definition of “financial service business” in the FSJL is comprehensive, but essentially, is where, by way of business, a person carries on investment business, trust company business, general insurance mediation business, money service business, fund services business or AIF services business. These categories are specifically described in the FSJL, although there also are certain exemptions that can apply.
- The FSJL governs persons becoming, and changes to, principal persons, key persons or share holdings in relation to a registered person. For example, no person can become a principal person, or key person of any class, in relation to a registered person unless (a) he or she has notified the JFSC in writing of his or her intention to become a principal person, or key person of that class, in relation to the registered person; and (b) the JFSC has notified him or her in writing that there is no objection to his or her so becoming such a person in relation to the registered person. It is important to consider this at the start of any relevant transaction, and engage with advisors well in advance of any notification.
- In summary, principal persons include directors, persons exercising a significant degree of influence and persons holding, alone or with associates: directly or indirectly 10% or more of the share capital of the registered person; or exercising 10% or more of the total voting rights attaching to shares.
- In addition, a person who is a shareholder controller (ie 10% shareholders as described above) should not increase, reduce or dispose of his or her holding in a company concerned so that the proportion of the share capital or voting rights held by the person in the company reaches, exceeds or falls below 20%, 33% or 50%, or so that the company becomes the subsidiary of such person or ceases to be such subsidiary, as the case may be, unless the person has notified the JFSC in writing of his or her intention to increase, reduce or dispose of such holding, as the case may be, and the JFSC has notified the person in writing that there is no objection to the person’s so doing.
- The JFSC Codes of Practice are also comprehensive, and set out the principles and detailed requirements that must be complied with when conducting financial services business.
JFSC Registry – General
- The JFSC Registry (link here) holds and updates nine registers including Jersey companies, business names, foundations, partnerships and security interests.
- Many of the registry filings are done through regulated services providers, such as corporate services providers in Jersey, and certain information is available online. There is a recent “MyRegistry” system that is an online filing system to simplify matters in practice.
- The Jersey security interests register is key to banking and finance transactions for corporate finance transactions, where the name of a grantor can be searched on the public register.
- In relation to beneficial owners and controllers, the JFSC Companies Registry applies the FATF standards in respect of beneficial ownership and control and changes to beneficial owners and controllers must be notified within 21 days pursuant to the Financial Services (Disclosure and Provision of Information) (Jersey) Law 2020 (the “FSDP Law”). To this end, a general threshold of 10% or more upon incorporation and 25% or more upon a change of beneficial ownership and control may be applied by corporate and legal entities registered in Jersey. However caution is highlighted in this regard – it is important to be aware that the beneficial ownership and control test is a three tier test which has a degree of complexity in its application to each ownership scenario. A case by case risk assessment is required.
JFSC Registry – COBO consent under the Control of Borrowing (Jersey) Order, 1958 (“COBO”)
- Shares – This is typically a document whereby the JFSC will grant consent pursuant to Article 2 of COBO, for a Jersey company to issue an unlimited number of shares. There are usually certain conditions that apply to COBO consents that are important to consider. Essentially, the prior approval of the JFSC must be sought and obtained for any change to the beneficial owner or controller of a Jersey company unless certain conditions can be fulfilled (for example where the company is provided with company administration services by a person registered under the FSJL, or the change of ownership/control is under a certain threshold or the company is listed on a recognised stock exchange). Since the introduction of the beneficial ownership and control disclosure requirements in the FDSP Law referred to in “JFSC Registry – General above”, the FSC has confirmed that compliance with the requirements of that Law will satisfy these conditions in a COBO consent, but is important to check whether there are any other conditions within a COBO consent from JFSC.
- Other Securities – COBO consent from JFSC is required (pursuant to Article 4 of COBO) where securities other than shares (such as notes or other debt securities) are to be issued by a Jersey issuer and are capable of being held by more than 10 persons (if bearer securities) or where the number of persons in whose name the securities are to be registered is in excess of 10 (non-bearer securities). There are certain exemptions that can apply to this requirement. Where a consent has been issued, it is important to comply with those conditions which may impact an M&A transaction.