Memorandum of Understanding with Panel on Takeovers and Mergers.

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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 (21/07/2009) regarding: Memorandum of Understanding with Panel on Takeovers and Mergers.

Decision Reference: MD-E-2009-0126
Decision Summary Title :	Memorandum of Understanding with the Panel on Takeovers and Mergers		Date of Decision Summary:	17 July 2009
Decision Summary Author:	Finance Industry Development Executive		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:
Written Report Title :	Memorandum of Understanding with the Panel on Takeovers and Mergers		Date of Written Report:	17 July 2009
Written Report Author:	Finance Industry Development Executive		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Signing of the Memorandum of Understanding (“the MoU”) between the Minister for Economic Development (“the Minister”), the Panel on Takeovers and Mergers (“the Panel”) and the Jersey Financial Services Commission (“the Commission”).
Decision(s): The Minister approved and signed the Memorandum of Understanding in triplicate and forward the signed copies to the Jersey Financial Services Commission for signing.
Reason(s) for Decision: To ensure that the Panel’s jurisdiction in Jersey continues to be compatible with that in other jurisdictions where it operates (the UK, Guernsey and the Isle of Man) and to provide for consultation with the Panel on various matters affecting it.
Resource Implications: There are no measurable financial or manpower costs for the States. It is envisaged that the consultation provisions in the MoU will rarely be invoked and then as part of a more general consultation process.
Action required: The Minister to sign the Memorandum of Understanding in triplicate and forward the signed copies to the Jersey Financial Services Commission for signing.
Signature: Senator A.J.H.Maclean		Position: Minister for Economic Development
Date Signed:		Date of Decision (If different from Date Signed):

Memorandum of Understanding with Panel on Takeovers and Mergers.

MEMORANDUM OF UNDERSTANDING
WITH PANEL ON TAKEOVERS AND MERGERS

1 THE ISSUE AND RECOMMENDATION

It is recommended that the Minister for Economic Development (“the Minister”) should sign the attached Memorandum of Understanding (“the MoU”) between the Minister, the Panel on Takeovers and Mergers (“the Panel”) and the Jersey Financial Sercices Commission (“the Commission”) in triplicate.

BACKGROUND

Takeovers and mergers in Jersey have for some time been regulated by the Panel for Takeover and Mergers (“the Panel”), a body based in the UK. The Panel historically regulated takeovers in both the UK and the Crown Dependencies on an informal basis. Although this is considered to have worked well in practice, the European Union’s Takeover Directive (2004/25/EC) (“the Directive”) required that the Panel, as a designated supervisory authority, should be recognised by national law (Art 4(1) of the Directive). The implementation of the Directive in UK national law was included in the Companies Act 2006, as Chapter 1 of Part 28 (“Chapter 1”).
Now that the Panel has been placed within a statutory framework in the UK, they do not consider it appropriate to continue to administer takeovers in Jersey unless an equivalent framework applies here. The Companies (Takeovers and Mergers Panel) (Jersey) Law 2009 (“the Law”) set up such a framework. The Law came into force on 1 July 2009.
Similar statutory arrangements have been made in Guernsey by the Companies (Panel on Takeovers and Mergers) Ordinance, 2009, which also came into force on 1 July 2009. The Isle of Man have followed the alternative route of allowing the UK to extend the effect of Chapter 1 to the Isle of Man by the Companies Act 2006 (Application of Takeover Provisions) (Isle of Man) Order 2008 (SI 2008/3122).

THE MEMORANDUM OF UNDERSTANDING

The MoU seeks to ensure that Panel’s jurisdiction in Jersey remains parallel with that in the UK. (Equivalent memoranda are also being entered into between the Panel and the other Crown Dependencies.)
Paragraphs 1 to 10 of the MoU are introductory, setting out the background and the parties.
Paragraphs 11 to 13 of the MoU acknowledge the importance of equivalent rules applying everywhere that the Panel exercises its functions. Paragraph 13 indicates that should legislative changes make this impossible, the Minister and the Panel will consult each other with a view to resolving the situation. Failing that, the Panel may request the Minister to revoke the Order by which it is appointed.
Paragraph 14 of the MoU provides for the Minister to be informed of changes to the Takeover Code.
Paragraph 15 of the MoU provides for consultation between the Minister and Panel in relation to any levy to be raised in the UK. (NB No levy ever has been raised in the UK and it is not anticipated that any levy will be raised in the near future.)
Paragraph 16 provides for consultation between the Minister and the Panel in relation to any proposed alterative or additional regulation of takeovers and mergers in Jersey. Paragraph 18 similarly provides for consultation if any legislation affecting the operation of the Law is proposed.
The Commission is also a party to the MoU, but Paragraph 17 is the only paragraph which relates to it. This provides that the Commission and the Panel will keep each other informed of their actions in cases where they have overlapping jurisdiction.
Paragraphs 19 to 22 are standard clauses providing for points of contact, that the MoU is not legally binding, that the terms of the MoU may be disclosed and for commencement, amendment and termination.

RECOMMENDATION

4.1 It is recommended that the Minister should sign the attached MoU in triplicate. The signed copies should then be forwarded to the Commission for signing by them.

Finance Industry Development Executive

20 July 2009