Walkers Sponsors Virtual GAIM Ops Connect Series

While we may not be able to see our friends and colleagues in Grand Cayman this year, Walkers is sponsoring the virtual GAIM Ops Connect series.

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Walkers Tops Market Leading Rankings in Chambers Global Again

Walkers leads the way with 10 "Band 1" practice area rankings (out of a market leading 23 practice areas) and an overall "Band 1" ranking in 'Global Offshore'.

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AML Training Portal Launch

Walkers Professional Services Launches New e-Learning AML Training Portal

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Walkers Celebrates 5 Years in Bermuda

Walkers (Bermuda) Limited is pleased to celebrate the five year anniversary of its Bermudian operations in Hamilton, Bermuda.

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Events & Webinars

See upcoming virtual events and webinars.

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Major Updates to the BVI's Trusts and Probate Laws

Bills to bring in significant amendments to the BVI's trusts and probate legislation were gazetted on 12 March 2021. Below is a summary of the headline changes.

The Trustee (Amendment) Act, 2021 introduces a range of important new and updated provisions into the BVI's Trustee Act, 1961, including:

  • new "opt-in" rules which will empower the High Court to vary the terms of a trust, including the dispositive provisions, without the consent of adult beneficiaries if the High Court considers the variation to be expedient in the circumstances;
  • statutory rules allowing the High Court to set aside the flawed exercise of a fiduciary power, preserving in BVI law what has become known as the rule in Re Hastings Bass;
  • much-expanded "firewall" protecting BVI trusts from attacks based on foreign laws, including claims brought under forced heirship regimes or arising as a result of a personal relationship with a "person internal to the trust relationship";
  • updated and comprehensive provisions addressing the reservation or grant of powers to the settlor or other parties; and
  • new trustee record-keeping obligations in line with current international regulatory standards.

The Probates (Resealing) Act, 2021 expands the regime for resealing of foreign grants of probate or letters of administration by the High Court. Previously it was only possible to reseal grants from a limited number of jurisdictions including the United Kingdom and certain British territories. The new Act provides a detailed and comprehensive list of more than sixty jurisdictions which will be recognised for the purposes of resealing including all Commonwealth countries, Hong Kong and the United States.

These amendments are set to enhance further the BVI's standing as a leading jurisdiction for trusts and private client business. Walkers will be publishing a more detailed analysis of the new legislation, expected to come into force shortly, on our website.

Liquidity Risk Management a Key Focus in the Central Bank's Letter to FMCs

On 12 March 2021, the Central Bank published a copy of a letter dated 10 March 2021 which has been sent to the chair of the board of certain fund management companies ("FMCs"). The FMCs to which this letter was issued are those that were surveyed last year as part of the supervisory exercise involving investment funds that have significant exposures to corporate debt and real estate assets. While the letter is specifically addressed to these specific FMCs and relates to a sub-set of the funds managed by those FMCs, the Central Bank notes that the findings from the exercise which were published in a report by ESMA in November 2020 more broadly are important and should be noted by all FMCs.   

Specific action is required by FMCs that received this letter. The contents of the letter need to be brought to the attention of all members of the board of the FMCs, the relevant designated persons and to the relevant responsible person(s) within delegate fund service providers. Consideration of the contents of the letter is required to be concluded and the results presented to and approved by the board of the FMC no later than the end of June 2021, with an action plan to take any necessary steps promptly and in any event no later than the end of December 2021.

The Central Bank requires firms that received the letter to consider how their liquidity risk management frameworks and fund structures should be adapted to take into account the experience and lessons learned from the market and redemption activity in 2020 and the findings of ESMA's report. The Central Bank expects consideration to be given to the steps that are needed to increase funds’ resilience to future shocks and states that the following are important in considering what changes may be required:

  • the alignment between the liquidity profile of funds’ investments, the risk profile of investors, redemption policies and settlement periods and the development of new policies to correct misalignments in a timely manner. The Central Bank notes that this is of particular importance for funds investing in less liquid assets or assets that have demonstrated variable levels of liquidity in 2020;
  • ensuring that the full suite of liquidity management tools ("LMTs") are in place and used appropriately. The Central Bank notes that this should include consideration of the circumstances where LMTs are appropriate outside of stress scenarios. The Central Bank expects fund management companies to consider the extent to which the use of swing pricing or anti-dilution levies are required to ensure that transaction costs, including liquidity premia, associated with redemptions are borne by those exercising their redemption rights, limiting the effect of large redemption flows on remaining investors, particularly in times of stress and market volatility;
  • the policies and procedures in place relating to the use of LMTs should include appropriate disclosure in fund documentation and communication with investors to ensure clarity and transparency around the regular use of LMTs and conditions for their implementation;
  • there should be an assessment of all other factors that could impact fund liquidity or trigger unplanned sale of assets;
  • a realistic and conservative estimate of the percentage of a fund’s assets that can be liquidated over certain time periods should be prepared and fund management companies should ensure that redemption policies are aligned with this. The Central Bank states that any misalignment in this regard should be corrected in a timely manner;
  • information should be available on the profile of the investor base to better understand any potential risks associated with redemption patterns, particularly in stressed market conditions; and
  • designing and testing funds’ liquidity risk management frameworks and planning for future market disruption events should not assume government or central bank intervention of the nature or scale seen in 2020.
ESMA's report identified five priority areas for action which would enhance the preparedness of these fund categories for potential future adverse liquidity and valuation shocks:

  1. ongoing supervision of the alignment of the funds’ investment strategy, liquidity profile and redemption policy;
  2. ongoing supervision of liquidity risk assessment;
  3. fund liquidity profile reporting;
  4. increase of the availability and use of LMTs; and
  5. supervision of valuation processes in a context of valuation uncertainty.
In this report, ESMA notes that some funds presented potential liquidity mismatches due to their liquidity set up, which should be addressed, and that this is especially the case for funds investing in asset classes illiquid by nature while offering a combination of high redemption frequency and short notice periods. In addition, ESMA states that concerns around the valuation of portfolio assets have clearly emerged, especially for real estate funds for which the crisis could have a more significant impact over the longer term and notes that real estate funds do not frequently adopt LMTs in their liquidity set-up. Against this background, ESMA notes that fund managers authorised under the UCITS and AIFM Directives should enhance their preparedness to potential future adverse shocks that could lead to a deterioration in financial market liquidity and valuation uncertainty.

Ireland Update – Investment Limited Partnerships (Amendment) Act 2020 Update

Earlier today, the Irish Department of Finance advised that the Minister for Finance has signed a statutory instrument which sets out the commencement dates in respect of the provisions of the Investment Limited Partnerships (Amendment) Act 2020 (the "Act"). The majority of the provisions of the Act will be commenced on 1 February 2021. Certain provisions relating to beneficial ownership requirements for both investment limited partnerships and common contractual funds will not be effective until 1 March 2021.

Click here for more information on the amendments to the Irish investment limited partnership regime.

Update on the Cayman Islands and the FATF’s List of Jurisdictions Under Increased Monitoring

The second Plenary of the Financial Action Task Force (“FATF”) under the German Presidency took place on 22, 24 and 25 February 2021. As part of the Plenary outcomes published on 25 February, the FATF recognised that the Cayman Islands has satisfied 60 of 63 actions to strengthen its anti-money laundering, countering terrorist financing and countering proliferation financing measures that were prescribed in the Mutual Evaluation Report published by the Caribbean FATF in March 2019. The Cayman Islands has been included on the FATF’s list of “jurisdictions under increased monitoring” (“Monitoring List”) pending completion of the final three actions. The inclusion of the Cayman Islands on the Monitoring List has no direct consequences for investors or clients using Cayman Islands structures.

Click to view advisory

BVI Update: "Black Swan" Legislation Passed

On 31 December 2020, the BVI House of Assembly passed the so-called "Black Swan" Bill amending section 24 of the Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap. 80) so as to confer jurisdiction on the BVI Court to grant interim relief in support of foreign proceedings. The Bill is expected to pass into law and come into force early in 2021.

In May 2020, in Broad Idea International Limited v Convoy Collateral Limited (BVICMAP 2019/0026), the Eastern Caribbean Court of Appeal (Pereira CJ;, Blenman and, Michel JJAA) ruled that the BVI Court lacked jurisdiction to grant a free standing freezing injunction against a BVI company where that company was not a party to substantive proceedings either in the BVI or elsewhere and that legislation would be required before the BVI Court could grant such relief. In so holding, the Court of Appeal determined that the case of Black Swan Investments ISA v Harvest View Limited (BVIHCV 2009/399) ("Black Swan") was wrongly decided and should be overruled. Convoy Collateral Limited's appeal from the decision of the Court of Appeal' is due to be heard by the Judicial Committee of the Privy Council on 16 and 17 February 2021.

Walkers partners Rosalind Nicholson and Murray Laing act for Broad Idea International Limited. Walkers are instructing Richard Morgan QC and Andrew McLeod of Maitland Chambers.

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