Companies (Amendment No. 1) Regulations 200-

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made to approve and recommend that the lodging period for the Companies (Amendment No. 1) Regulations 200- be expedited

Subject:	Companies (Amendment No.1) Regulations 200- - approval and recommendation that lodging period be expedited
Decision Reference:	MD-E-2006-0005		Exempt clause(s):	N/A
Type of Report: (oral or written)	Written		Person Giving Report (if oral):	N/A
Telephone or e-mail Meeting?	N/A		Report File ref:
Written report – Title	Companies (Amendment No.1) Regulations 200- - approval and recommendation that lodging period to expedited
Written report – Author (name and job title)	Paul de Gruchy, Finance Industry Executive
Decision(s): a) That the Regulations be approved b) That the Regulations be lodged for States approval, with the request that the Regulations be put to the States on or before 31 January 2006.
Reason(s) for decision: The Companies (Amendment No.8) (Jersey) 200- is expected to come into force on 1 February 2006. The Bankruptcy (Désastre) (Jersey) Law 200- has been approved by the States but is awaiting Privy Council sanction and is unlikely to come into force for several months. The Regulations are necessary to ensure that the position of creditors of a cell of a cell company are protected until such time as the Bankruptcy Amendment comes into force and it is therefore essential that the Regulations come into force at the same time as the Companies Law Amendment.
Action required: Lodge the Regulations and request that the Regulation be put to the States no later than 31 January 2006.
Signature: Senator Philip Ozouf, Minister – Economic Development		Date of Decision: 16 January 2006

Companies (Amendment No. 1) Regulations 200-

ITEM NO______

MINISTER FOR ECONOMIC DEVELOPMENT

Companies (Amendment No. 1) Regulations 200- (the “Regulations”)

1. Introduction

1.1 The Minister is asked to approve the attached Regulations and to take the Regulations to the States for approval with a view to bringing the Regulations into force on 1 February 2006. It should be noted that this will require the States to decide that the Regulations are a matter of urgency under Article 26(7) of the Standing Orders and that therefore the usual six week lodging time in respect of the Regulations should be shortened.

2. Discussion

2.1 After significant delays, the Companies (Amendment No.8) (Jersey) Law (the “Amendment”) was approved by the States in July 2005. An appointed day act has been lodged for debate on 31 January and the Amendment is expected to come into force on1 February 2006.

2.2 The States approved in October 2005 the Bankruptcy (Désastre) (Amendment No.5) (Jersey) Law 200- (the “Bankruptcy Amendment”) and this matter is now awaiting Privy Council sanction. It is likely that the Bankruptcy Amendment will come into force in April or May of this year.

2.3 The Bankruptcy Amendment will confirm that the creditors of a cell of a cell company may bring an application to have that cell declared en désastre. However, until such time as the Bankruptcy Amendment comes into force the creditors of a cell have no such remedy.

2.4 While it is almost inconceivable that a cell company could be created and a cell of such a company become insolvent in the period before the Bankruptcy Amendment comes into force, the lack of remedies for a creditor is likely to seriously affect the attractiveness of cell companies to those who would otherwise seek to invest in or transact with cell companies.

2.5 The Regulations, which are made under a power included in the Amendment precisely so that any “teething issues” surrounding the introduction of cell companies could be addressed, will give creditors of a cell of a cell company the right to bring an application to have a cell declared en désastre. This will address the concern outlined in the previous paragraph. The Regulations will cease to have effect when the Bankruptcy Amendment comes into force and gives creditors identical rights on a more permanent basis.

2.6 Under Article 26(7) of the States’ Standing Orders, the States may reduce the lodging periods for any matter if they

“

2.7 The Companies (Jersey) Law is a flagship piece of legislation for the finance industry, and it is vital to take all steps necessary to ensure that the Amendment is launched successfully, and that the publicity surrounding the launch of the cell company product is positive. The Regulations are in no way contentious. The only alternative would be to either delay the introduction of the Amendment yet again, something that would damage the Island’s credibility greatly, or to introduce the Amendment without the Regulation, which would greatly limit the likely popularity of cell companies until such time as the mischief which the Regulations seek to address was addressed, whether by the delayed introduction of the Regulations or by the introduction of the Bankruptcy Amendment.

3. Recommendation

3.1 It is recommended that the Regulations be approved and lodged au greffe at the earliest opportunity, and that this matter be brought to the States for debate on 31 January 2006.

PAUL DE GRUCHY

Finance Industry Executive

Annex

Companies (Amendment No. 1) Regulations 200- (the “Regulations”)