Аббревиатуры названий компаний. Часть 2. G-I.
Некоторые аббревиатуры межнациональны и не имеют географических признаков, другие, — напротив, применяются в одном конкретном государстве и нигде больше. Но в любом случае они несут информацию о степени ответственности партнёров и в большинстве юрисдикций существуют чёткие требования о наличии конкретных аббревиатур в названии регистрируемой компаний.
Global Business Company – GBC – означает вид компании, которая зарегистрирована исключительно в островном государстве Маврикий.
General Partnership – GP –компания, объединяющая нескольких партнёров с неограниченно ответственностью.
International Business Company – IBC эта форма собственности применяется в оффшорных зонах практически по всему миру. Дословно наименование означает компания международного бизнеса. Достаточно распространённая форма собственности. Как и в других видах компаний, регистрируемых в оффшорах, основное условие – отсутствие бизнеса на территории данной юрисдикции и запрет на ведение дел с её резидентами- как физическими, так и юридическими лицами. Нюанс: степень ограничения ответственности участников данной формы собственности обозначается аббревиатурами Inc и LTD.
International Company – IC- по многим характеристикам совпадает с International Business Company.
Incorporated Cell Company — ICC — впервые была зарегистрирована на острове Гернси. В настоящее время часто встречается на острове Джерси, на Каймановых островах, на Британских Виргинских островах, на Бермудских островах, а также на территории Соединённых Штатов Америки- к примеру, в «оффшорном» штате Делавэр. Сочетает в себе характеристики PCC – компании с разделёнными портфелями и группы компаний.
Нюанс: в том время как PCC подразумевает регистрацию одного юридического лица, то ICC является группой компаний, нескольких юридических лиц, с осуществлением эффективного управления рисками данных компаний. Оптимальное использование подобного юридического лица- участие в схемах коллективного инвестирования.
Incorporated – Inc – эту форму собственности также можно встретить во многих оффшорных юрисдикциях и на территории Соединённых Штатов. Обычно подразумевает регистрацию юридического лица в виде корпорации.
Нюанс: на территории Австралии означает исключительно некоммерческие компании.
Guernsey Incorporated Cell Companies
This briefing note describes the key features of the incorporated cell company (“ICC”) and summarises the formation, structure and liquidation procedures particular to this type of company.
Key features
The Companies (Guernsey) Law, 2008 (the “Law”) provides for the creation of the incorporated cell company. An ICC is a company which has the power to establish incorporated cells as part of its corporate structure. Like a protected cell company (“PCC”), an ICC may comprise any number of incorporated cells (“Cells”). However, unlike a protected cell of a PCC an incorporated cell has many of the attributes of a non-cellular company. Each incorporated cell has its own board of directors, its own memorandum and articles of incorporation and each is a separate legal entity which must be registered at the Guernsey registry and can sue and be sued in its own name.
Because each Cell is a separate legal entity one Cell can enter into a transaction with another Cell. This is in marked contrast to the cells of a PCC. However, there are still some common requirements between the Cell and its ICC. Currently the Law requires that the identity of the board of directors of an ICC is the same as the directors of each Cell of that ICC. This restriction is to be relaxed in legislative amendments expected in May 2021. Thereafter, the composition of the board of the ICC and each Cell may differ provided that at least one of the directors of the Cell is also a director of the ICC.
ICC’s are appealing for two main reasons. They enable a form of corporate group structure to be created but with lower administration costs than a traditional group of stand-alone non-cellular companies. They may also be regarded as providing even more robust segregation of assets and liabilities than a PCC because the creation of incorporated cells is a more formal process than the creation of protected cells and segregation of the assets of an incorporated cell is slightly less dependent upon the actions of management.
Common uses for ICCs
ICCs are commonly used as umbrella investment funds with each Cell being used as an investment vehicle for different asset classes.
ICCs are also often used in insurance linked securities transactions. More information on insurance linked securities transactions can be found here.
More recently, Cells are used in longevity transactions whereby the Cell insures the liabilities of a pension fund and reinsures that liability with a third party reinsurer. Because Cells are separately registered legal entities and because they are able to take advantage of Guernsey’s migration and amalgamation legislation, they are more popular vehicles than protected cells for such transactions – see our briefing note on Longevity risk here.
GFSC consent: Incorporation & conversion
The written consent of the Guernsey Financial Services Commission (“GFSC”) must be obtained prior to the incorporation of an ICC.
There are a range of conversions possible with ICCs. The process to effect a conversion is the same regardless of the particular transaction being considered: the consent of the GFSC is always required as well as a special resolution of the shareholders of the entity which wishes to convert.
The conversions which are possible are:
Notably, an ICC cannot convert directly into a PCC.
Migration or amalgamation of a supervised ICC or Cell will also need GFSC consent
Names
The letters “ICC” or “Incorporated Cell Company” must be included in the ICC’s name and the words “Incorporated Cell” or the letters “IC” must be included in the incorporated cell’s name immediately before the word “Limited”.
Incorporation of a Cell
The members of an ICC may, by special resolution, authorise the incorporation of one or more incorporated cells. The resolution must specify the memorandum and articles of incorporation in respect of each Cell and an application to the Registry for the incorporation of the Cell(s) must be made within three months of the date on which the special resolution was passed.
Status of a Cell
A Cell is a company governed by the provisions of the Law. However, a Cell may not itself be an incorporated cell company or a protected cell company.
A Cell is not a subsidiary of its ICC. Whilst an ICC can own shares in its own Cells and one Cell may own shares in another Cell of the same ICC (unless prohibited by the Cell’s memorandum and articles of incorporation), a Cell cannot own shares in its ICC.
Separation of Assets and Liabilities
The directors of an ICC and its Cells must keep the assets and liabilities of the ICC separate and separately identifiable from the assets and liabilities of each of its Cells and the assets and liabilities of each Cell must be kept separate and separately identifiable from other Cells. However, the Law allows the assets of the ICC or its Cells to be collectively invested or managed, provided that they remain separately identifiable.
Transactions
An ICC cannot enter into transactions on behalf of its Cells and the Cells cannot enter into transactions on behalf of the ICC or other Cells. The directors and officers of an ICC and its Cells must clearly identify the ICC or Cell, as appropriate, in respect of every transaction that the ICC or its Cell enters into.
Administration of the Cells
The ICC is responsible for keeping a register of the members of each of its Cells at its registered office. Each Cell of an ICC must have the same registered office as its ICC. The register of secretaries of an ICC is deemed to constitute the register of secretaries for each of its Cells. Any resident agent of an ICC (responsible for checking beneficial ownership) is deemed to be the resident agent of each of its Cells. The ICC is also responsible for the completion and filing not only its own annual validation, but that of each of its Cells with the Registrar of Companies. It follows that the ICC should maintain records of its Cells in addition to those of its own.
Accounts and Auditors
Currently, the directors of the ICC are responsible for preparing accounts in respect of the ICC and its Cells in accordance with the Law and the ICC is responsible for keeping its accounting records and those in respect of each of its Cells. Changes to the Law (expected in May 2021), will mean the directors of the Cell (not the ICC) will be responsible for preparing the Cell’s accounts. The ICC may prepare consolidated accounts and a combined directors’ report in respect of the ICC and its Cells.
Like a non-cellular company, a Cell must appoint an auditor for each financial year unless it has passed a waiver resolution or the directors reasonably resolve that audited accounts are unlikely to be required.
Like a company, an ICC and its Cells must send a copy of its directors’ report, accounts and auditors’ report to each of its members within twelve months after the end of each financial year. If a member requests a copy of those documents, the company must send them out within seven days after the date of the request (provided that he has not previously made such a request within that financial year). Currently, the ICC is responsible for ensuring that the ICC and its Cells comply with these requirements. Changes to the Law (expected in May 2021) will remove these reporting responsibilities from the ICC and instead let them fall on the Cell and its directors.
Annual General Meetings
An ICC must hold general meetings of its members unless the members waive the requirement to do so. In the absence of any requirement in its memorandum and articles of incorporation or by a special resolution, a Cell is not obliged to hold an annual general meeting.
Amendment of constitution of Cells
A Cell may alter its memorandum or its articles of incorporation in accordance with the Law provided that the ICC itself has also passed a special resolution in favour of the alteration (unless the memorandum or articles of the Cell state that ICC approval is not required).
Winding up an ICC
The principles applicable to the compulsory or voluntary winding up of a non-cellular company apply equally to ICCs and their Cells. However, the winding up of an ICC must be carried out so as not to prejudice the affairs, business and property of any of its Cells. As a result, during the winding up an ICC may continue to carry on business to the extent necessary for its Cells to continue business. An ICC that is being wound up cannot be dissolved until each of its Cells has ceased to exist as a cell of that ICC and the court may stay dissolution of the ICC on that basis. The appointment of a liquidator in respect of an ICC will not affect the position of the directors of a Cell of the ICC unless the liquidator, the members of the Cell concerned, or the court so resolves in the course of the winding up.
Administration of an ICC
An application to the court for an administration order in respect of a company may be made by the company, its directors, any creditor (including a contingent or prospective creditor), or member of the company, the GFSC (if it is a supervised company or one engaged in financial services business) or the liquidator, in the case of a company which is in the process of winding up. This applies equally to ICCs and their Cells except that in the case of an ICC, any Cell may also make an application for the administration of its ICC, and in the case of a Cell of an ICC, the ICC may make such an application.
The court may make an administration order in respect of an ICC or one of its Cells if it:
Administration prevents a company from being wound up and prevents proceedings from being commenced or continued without the leave of the court.
Since each Cell of an ICC is a separate legal person, each is treated as a separate entity for tax purposes. It is possible for an ICC to have Cells that are resident in Guernsey for tax purposes as well as Cells which are non-resident and exempt.
Understanding Cell Companies and their uses
Helpful guide
Introduction
Cell companies offer many benefits, but what are these? Morever, why would you want to use a cell company in the first place? These are some of the questions answered by Fiduchi’s Associate Director of Corporate Services Terry Northcott.
What is a cell company?
A cell company is simply a company that can create one or more cells that contain assets and liabilities that are distinct from its own assets and liabilities and from those of any other cells that it may create. There are two types of cell company available in Jersey; the Protected Cell Company (PCC) and the Incorporated Cell Company (ICC).
Cell companies evolution
PCCs were first developed in Guernsey in the late 1990s and were soon introduced by other jurisdictions once their benefits and advantages became apparent. In 2006, Jersey enhanced the cellular concept and became the first jurisdiction to introduce ICCs. Several other jurisdictions have now emulated Jersey’s innovative ICC regime.
So, what are these benefits and advantages of a cell company?
The core benefit is the clear and obvious вЂring-fencing’ of corporate assets and the fact that this is done at a legislative level. Under the law, the assets and liabilities of a company can be segregated into different cells and, where one of those cells enters into a transaction, a claim by any person in connection with that transaction will only apply to that particular cell’s assets. In short (unless the articles of incorporation state otherwise), a creditor of a cell will have no right of recourse to the cell company’s other assets or to the assets of any other cell that may exist.
Correspondingly, investor returns of one cell are not affected by any negative returns within any other cell. Each cell pays its dividends based on its own assets, liabilities and profitability. В
What are the main characteristics of a cell company?
The law is clear that cells are not subsidiaries of their cell companies. В Each cell may be formed with its own constitution and with a different share structuring. This means that cell companies can establish cells that issue par value shares at the same time as having cells with no par value or unlimited shares etc.
The cell company does not need to hold shares in a cell (and usually does not). However, despite this lack of an ownership relationship between the cell company and its cells, a cell may only change its constitution by way of a special resolution of its members and of the cell company – this allows the cell company to retain some control.
Each cell can have different shareholders and will have its own directors who will manage the cell (who may be different from those of the cell company). Each cell has the same secretary and registered office as its cell company but will have its own constitutional documents and registers.
Each cell must prepare a set of accounts in the same manner as any ordinary Jersey company. As such, the cell company and each cell are free to choose their own basis of preparation and acceptable accounting principles.
The law allows cell companies to convert to generic companies and generic companies to switch to cell companies. In addition, PCCs can convert to ICCs and ICCs can convert to PCCs, and individual cells can convert into ordinary companies.
What’s the difference between вЂprotected’ and вЂincorporated’ cell companies?
The difference is straightforward but important. В Each cell of an ICC is fully incorporated as a company in its own right. В As such, each cell has separate legal personality from the ICC and any other cell. An ICC cell can hold assets in its own name, incur liabilities in its name and necessarily act in the same manner as any other Jersey company.
A PCC takes a different approach.  The cells of a PCC are not a corporate body and do not have a legal personality separate to the PCC.  However, special provisions within the law require a protected cell to be treated as though it is a separate legal entity. The PCC attributes assets either to itself or to different cells, and anything so attributed is ring-fenced under the law from the PCC’s own assets and those of other individual cells. In this way, the law protects the assets of any one cell, and the non-cellular assets of the cell company itself, against the liabilities of other individual cells.
What can a cell company be used for?
Traditionally, cell companies were used for captive insurance structures, and then for collective investment fund structures and securitisation structures. Indeed, many jurisdictions limited the use of cell companies to these specific industries. Jersey imposes no such limitation, and although, as a matter of policy, cell companies should not be used for ordinary trading activities, a Jersey cell company may be established for any lawful purpose.
This flexibility has seen cell companies used in Jersey for increasingly different structures such as very private funds, umbrella funds, property holding structures, Sharia-compliant structures, financial guarantee vehicles, SPVs and joint ventures.
At Fiduchi, we have managed cell companies for:
It is expected that we will see increased use of cell company structures within the Jersey Private Fund Regime, where the ability of the cell company to efficiently manage the segregated assets of different investors through clearly segregated cells may be considered especially attractive.
Incorporated Cell Companies
The concept of cell companies was first introduced in Malta in 2004, and has since evolved into a number of different types of cell company structures. The cellular concept provides for the establishment of a cluster of incorporated cells grouped under an incorporated cell company structure. Assets and liabilities are attributed either to the incorporated cell company itself, or to a particular separate cell of the cell company.
Maltese legislation already provided for the concept of a segregated multi-fund company, even prior to the introduction of the cell concept itself. The fundamental difference between the segregated multi-fund company and the traditional non-cellular company is that the latter provides a flexible corporate vehicle within which assets and liabilities can be ring-fenced, or segregated, so as only to be available to the creditors and shareholders of each particular sub-fund. The incorporated cell company enhances the feature of ‘segregation’ within the multi-fund structure.
The possibility of setting up a multi-fund company licensed as a collective investment scheme containing multiple, segregated sub-funds with ring-fenced assets and liabilities has existed under Maltese law, since 2003. The pertinent legislation also provides for the registration and licensing of schemes as incorporated cells with separate legal personality under the umbrella of the Incorporated Cell Company (ICC). The overall scheme has to function as a collective investment scheme but can still be structured in a way which allows it to achieve high efficiency levels.
The launch of the SICAV ICC generated a lot of interest. Most of the demand revolved around a ‘platform’ model that would involve an ICC providing administrative services to any number of incorporated cells licensed as collective investment schemes. These requests further led to the development of Recognised Incorporated Cell Companies (‘RICCs’).
| Key Features of an ICC | |
|---|---|
| Separation of assets and liabilities | The SICAV Regulations provide that a segregated multi-fund company may elect to have the assets and liabilities of each sub-fund treated as a patrimony separate from the assets and liabilities of each other sub-fund. Similarly, both the SICAV ICC and RICC Regulations provide for separation of assets and liabilities between the cell company and each cell. The difference between the two structures lies in the fact that in an ICC, liability is limited through the separate legal identity of each cell, whereas in a segregated multi-fund company, limitation of liability is achieved through the option of segregation of assets and liabilities of each sub-fund stipulated by virtue of the company’s memorandum of association |
| Separate Legal Personality | The main difference between an ICC and a segregated multi-fund company structure lies in the legal status of their parts. The incorporated cells enjoy a separate legal personality in the same way as their ICC does. Conversely, in a segregated multi-fund company structure, the SICAV and its sub-funds together represent one legal entity. Thus due to this lack of legal personality a sub-fund in a segregated multi-fund company structure cannot transact in its own name. |
Categories of ICCs
An ICC can take one of two forms, either:
Common Features of ICCs
The two categories of ICCs referred to above have very different purposes but enjoy many common features as far as their structure and mechanics are concerned. These are examined in further detail below.
Establishment of a Cell
An incorporated cell is created by virtue of a resolution of the board of directors which:
Once the resolution has been passed, the memorandum and articles of association adopted by the resolution of the board of directors are filed with the Registrar of Companies and a certificate of registration is issued in terms of the Companies Act.
Continuation Provisions
An ICC or a similar structure domiciled outside Malta may continue as a SICAV ICC or RICC in Malta. For further details on the re-domiciliation / continuation of companies process click here.
Transformations
A limited liability company may, by extraordinary resolution and provided it is authorised to do so by its memorandum of association, go through a transformation. A limited liability company may, be transformed:
The transformation must be approved by the board of directors. Furthermore, a transformation cannot be carried out except with the prior written consent of the Authority and it has to be carried out in accordance with the terms and conditions stipulated by the Authority.
Incorporation of Cells
A non-cellular company may transform itself into an incorporated cell by entering into an incorporation agreement with an ICC. The incorporation agreement must be approved by the board of directors and by an extraordinary resolution of both the non-cellular company and the ICC. Furthermore, the incorporation agreement must also be approved by the Authority.
Division
A segregated multi-fund company which has one or more segregated sub-funds may be divided into an ICC and one or more incorporated cells. In a division of a segregated multi-fund company, each of the directors of the company shall sign a declaration stating that he/she has made a full enquiry into the affairs of the company and each of its segregated sub-funds, and that, having so done, he is of the opinion that the company and each of its segregated sub-funds are able to discharge their liabilities as they fall due and that there are no creditors of the company or of the segregated sub-funds whose interests will be unfairly prejudiced by the division. A division can only occur with the approval of the Authority.
Relocations
An incorporated cell of an ICC may enter a relocation agreement and move from one ICC structure to another subject to approval by the Authority. The incorporated cell must pass an extraordinary resolution to relocate and must amend its memorandum and articles of association accordingly. The relocation agreement must be entered into between the incorporated cell and the receiving ICC structure.
The relocation agreement has to be submitted to the Authority for prior approval. Furthermore, it will also have to be approved by:
There are certain distinctions between the two types of ICCs that one must bear in mind when choosing the right structure:
