1. Purpose

This client briefing has been prepared in order to assist directors of companies which have listed debt securities on The International Stock Exchange (TISE or theExchange) pursuant to the listing rules (the Listing Rules) of The International Stock Exchange Authority Limited (the Authority). The Listing Rules are available on TISE's website.

Background

So what precisely is an asset protection trust and what is it, over and above a normal trust that an asset protection trust is seeking to achieve? This paper considers these issues from a Jersey law perspective and fundamentally asks the question to what extent a Jersey trust, once established, will protect assets from creditor claims.

The Bankruptcy Filing

Sale Hearing

On September 20, 2008, the Bankruptcy Court approved the sale of certain assets of Lehman Brothers Holdings Inc. ("LBHI") and Lehman Brothers Inc. ("LBI"),1 including those related to its Canadian Capital Markets and Investment Banking businesses, to Barclays Capital, Inc. ("Barclays"). The sale was approved despite the filing of over 80 objections raising a number of procedural and substantive issues. The Purchase and Sale Agreement was subsequently amended, and a clarifying letter filed, to address a number of the questions and concerns raised.

The Royal Court in Jersey has a varied and challenging workload. The cases that have come before it this quarter certainly live up to that description. Here we discuss just a handful of cases that the Royal Court has determined, that, whilst in some respects are unremarkable, in other respects serve to illustrate the breadth of the experience that the Royal Court judiciary possesses.

Representation of Private Equity Fund Finance Limited [2018] JRC 194

Case Summary

The case of Capita Trustees Ltd, RS, NS, The Trustees in Bankruptcy of RS - In the matter of the Dunlop Settlement [2013] JRC 029 concerns an application by Capita Trustees Limited (Capita) in its capacity as trustee of the Dunlop Settlement (the Trust) for approval to it entering into an agreement intended to settle various claims made against the Trust by creditors (the Agreement), the net effect of which would be to exhaust the assets of the Trust.

The Facts

The Royal Court of Jersey can receive requests from outside Jersey by courts prescribed under the Bankruptcy (Désastre) (Jersey) Law 1990 or based on principles of comity. Such requests may involve a Jersey company or any other company with assets or information situated in Jersey. Insolvency practitioners appointed under a law or by a court outside Jersey will have no authority, as a matter of Jersey law, to act in Jersey. It is normal, therefore, for an application to be made for recognition of the appointment of such practitioners and to authorise them to exercise powers in Jersey.

The Banking Business (Depositors Compensation) (Jersey) Regulations 2009 came into force on 6 November 2009, establishing a compensation scheme providing individual depositors with protection of up to £50,000 per person, per Jersey banking group, in the event of the bankruptcy of a Jersey bank.

The liquidity crisis has increased the need for creative procedures to avoid sudden death bankruptcy in order to salvage existing value.

A Jersey company or a company incorporated elsewhere but administered in Jersey may become involved in insolvency procedures under Jersey law or the law of a jurisdiction outside Jersey.

In the matter of Centurion Management Services Limited and Article 155 of the Companies (Jersey) Law 1991 [2009]JRC227

Introduction

This judgment of the Royal Court in Jersey illustrates circumstances in which the court has been prepared to exercise its jurisdiction to order that a company be wound up on the grounds that it is just and equitable so to do.