In the article 2020 Vision, Fiduchi looked at what was on the horizon for our clients and us. Like many, when the article was published on 31 January, none of us expected the impact that COVID-19 would have on us all and our daily lives.
Despite COVID-19, business continues. This is the same for the legislative changes that we highlighted earlier in the year, particularly in respect of disclosure and provision of information and interacting with the Companies Registry in Jersey.
Here we discuss the important changes that have come into affect and what they mean for you our clients and what you can expect from us.
The Financial Services (Disclosure and Provision of Information) (Jersey) Law 2020 (“the Law”) and associated Orders and Regulations came into force on 6 January 2021. The new Law not only changes how we, as a regulated service provider, and others, including the public, interact with the Registry with the introduction of a Digital Registry. But more importantly, strengthens Jersey’s commitment to meet and comply with international transparency initiatives ensuring Jersey is compliant with FATF recommendation 24 on beneficial ownership.
Specifically, the new Law:
Beneficial Ownership means the individual who ultimately owns or controls an entity or the individual on whose behalf a transaction is being conducted by an entity. This includes an individual who exercises ultimate effective control over an entity where the effective control is either by a chain of ownership or by means of control other than by direct control.
Information about beneficial ownership has long been held with the Registry; beneficial ownership information will currently remain private. It will not be made public until an international consensus is reached on the public disclosure of such information.
The Register of Significant Persons is like other public registers of Directors or similar persons in other jurisdictions.
Significant Persons include Directors, Foundation Council members, a general partner of a limited partnership, manager of a limited liability company and limited partner involved in the management of a limited liability partnership. A secretary of a company is also included.
The information that will be disclosed includes for individuals, their name, month and year of birth, correspondence address, occupation and nationality. Where it is an entity, the type of entity, its registered name and number, registered office and date of incorporation. Other organisational types will provide similar information.
However, no such disclosure is required for anyone under 18 years of age.
The regulations afford the ability to make an application to the Registry for information not to be made public. Such application should be considered where it is believed that the Significant Person or someone who lives with or is related to them will be subject to violence, intimidation or physical or mental harm as a result of the publication of such information. Each application will be considered by the Registrar and either approved or refused. An appeals process exists.
All such applications will generally be made through the Nominated Person, although a Significant Person without a Nominated Person relationship can make their application, however, must ensure that they follow the correct application process.
The current annual return submission will now be replaced by an annual validation, again as at 1 January. The Nominated Person will complete the annual validation process, and Fiduchi will do this unless otherwise agreed.
The new law introduces the concept of “Nominated Person”, which is similar to the role of a filing agent in jurisdictions like the BVI. For many companies, foundations, limited partnerships, etc., their interaction with the Registry will be through their appointed service provider such as Fiduchi. Accordingly, it is Fiduchi who will be the appointed Nominated Person and will undertake all interactions with the Registry on behalf of its clients, including Significant Persons, unless otherwise agreed.
The Nominated Person is required to update the Registry with changes to information on both beneficial ownership and significant persons within 21 days of becoming aware. It is essential that our clients keep us appraised of such information. More importantly, the Nominated Person can manage the information held on the relevant registers directly through the new digital platform being introduced.
This means that the Nominated Person will file the Annual Confirmation, which replaces the current Annual return made as of 1 January each year. The Annual Confirmation, which will again be as at 1 January, requires the Nominated Person to make a declaration that the information held on the Register for the relevant entity is correct. It must be filed by the end of February each year (so no change in terms of timing to the regime that will be replaced).
The Law introduces several offences and penalties. It is a criminal offence to provide false and / or misleading information. The offences apply not just to the Nominated Person but also to Significant Persons. Where such an offence is committed, the penalty can include a custodial sentence, fine or both.
There are also fines and penalties for the late filing of relevant information.
For Fiduchi, it is essential that you, our clients, work with us and provide us with the information we require on a timely basis to ensure ongoing compliance.
Most of the above changes simply see Jersey move in line with many other jurisdictions in terms of disclosure of information in respect of bodies corporate incorporated here. The Law also formalises the interaction and relationship between service providers such as Fiduchi, and its clients and addresses, the anomaly where Fiduchi may not be in a position to file or interact with the Registry on behalf of clients.
In this first year, the Annual Confirmation will need to be submitted by 30 June 2021. This will include the submission of all relevant information for Significant Persons and up-dating any information in respect of beneficial owners and controllers. The register of Significant Persons will then go public from 1st October 2021.
We're six weeks into 2020 and Brexit has happened. So now what do Jersey Financial Services and it's clients need to consider? It's time to look ahead to the rest of 2020 (and beyond) and consider what changes are on the horizon. However, whether anyone can truly do so with the clarity of 20/20 vision is questionable. What we do know is that the world in which our clients and we operate in continues to be one of uncertainty.
The Government of Jersey has a long-standing commitment to Jersey being a well-regulated international finance centre, which complies with international standards in transparency. Such an approach can confuse clients as to the applicability of EU legislation to Jersey.
We will be working closely with our clients to ensure the proper disclosure of information in the new Significant Persons register. We will also be formalising the appointment of Fiduchi as their Nominated Person, although for our existing clients this has already happened. This will also include acting on behalf of relevant Significant Persons where we do not otherwise have an existing contractual relationship and contacting those persons directly.