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offshore law

Defining an Offshore Law Firm

What is an offshore law firm?

An offshore law firm specializes in forming legal entities in different countries.  The services provided by an offshore law firm include forming offshore corporations, offshore private foundations, offshore trusts, and offshore bank accounts.  In addition, an offshore law firm should be able to provide international tax planning, offshore consulting, international contracts, corporate structuring, global asset protection, international planning, strategic consulting and wealth management. 

Some offshore law firms are merely based in one of the many tax haven countries but are able to create offshore corporations, foundations, and trusts in different tax haven countries by hiring another law firm to handle those entities.

A better offshore law firm has branches in different tax haven countries providing direct services for creating offshore corporations, offshore foundations, and offshore trusts.  This is the earmark of a true international offshore law firm.  An offshore law firm with branches in different continents providing offshore incorporation in more than 50 countries provides better personalized services depending upon the needs of the client than that of a one tax haven jurisdiction offshore law firm.

Clients from different countries need to use an offshore law firm which knows their language, customs, culture, local tax laws, which can custom tailor solutions based upon the client’s needs.

International business needs can be better met by an offshore law firm which has offices in different countries and several continents with the ability to design superb international business strategies.

An international offshore law firm is better suited to know and use international regulations, offshore jurisdictions, and international tax planning to make the business successful with intelligent financial strategies.

International project developments require a large enough international offshore law firm with global contacts to seek investors, partners, venture capital, and international tax planning.  Additional services would include researching viable market conditions, forming management teams, and creating an exit strategy.

Corporate finance is critical to any type of corporate business.  An international offshore law firm can provide custom financial advisory services and money management which can pinpoint cost saving measures, minimizes taxes, raise corporate share value, and manage important financial and strategic incidents.

International business consultancy is another service which a global offshore law firm can provide its clients.  An offshore law firm can put together a team of legal, accounting, financial advisors, and banking experts providing the best business strategies. 

International tax planning is an essential service to seek from an offshore law firm.  Legally lowering or eliminating clients’ income and corporate taxes should be to goal of any competent offshore law firm. 

Attractive business opportunities and investments is another benefit of using a worldwide offshore law firm whose contacts in different jurisdictions can find the best investment deals around the world. 

The final service provided by a global offshore law firm is the assistance with relocating to another country.  This entails providing immigration advice as to the best residency visas to apply for before or after entering the country as a temporary visitor.  Which immigration visas are for permanent residency and which visas can lead to full citizenship are important areas of advice obtained from an offshore law firm.    

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offshore law

British Virgin Islands: The Offshore Advantage: M&A In The BVI

As the largest law firm in the BVI, Harneys has consistently worked on the biggest and most complex mergers and acquisitions (M&A) involving BVI companies. As we head into the last quarter of 2017, M&A both globally and in the BVI in particular continues to be an active and vibrant market despite global geopolitical concerns.

Transactions the firm has been involved with in the last two years alone have included one of the highest value take private transactions in BVI history (UTi Worldwide) by way of statutory merger, the reverse takeover of Knowlton Capital Inc by LeniGas Cuba Limited by scheme of arrangement, and the largest ever domestic M&A transaction (the acquisition by share purchase of a majority stake in Road Town Wholesale Trading Ltd) as well as countless confidential deals.

The BVI's modern and flexible corporate statute, the BVI Business Companies Act 2004 (the Act) is specifically designed to facilitate these types of transaction, and the ease of exit continues to be a key factor driving the use of BVI structures for global investments. This article reflects on some of the reasons why the BVI continues to be at the forefront of global M&A.

Variety of acquisition structures

Perhaps the biggest advantage of the BVI is the range of possible acquisition tools, illustrated by the range of recent transactions Harneys has been involved with.

There are four main methods of acquiring a BVI company: (i) a straightforward share purchase or contractual offer, (ii) a statutory merger, (iii) a scheme of arrangement and (iv) a plan of arrangement. Ultimately, which structure is most appropriate will depend on the facts of a particular case, including the nature of the selling entity, the onshore tax treatment and the preferences of individual clients and their advisers (US based clients, for example, may have a preference for mergers as the mechanism most often used in their home jurisdiction).

Contractual offer/Share purchase

Probably the simplest and still the most common way of conducting an M&A transaction is a contractual share purchase, where the existing shareholder(s) agree to sell and the buyer(s) agree to buy the shares. Although from a BVI legal perspective the only document required for a transfer of shares is a written share transfer instrument (a short, straightforward one page document) in all but the simplest intragroup transaction there will also be a share purchase agreement (SPA) setting out the commercial terms of the sale. The SPA will set out the consideration structure and any adjustment mechanics; buyer protection in the form of representations, warranties and indemnities; seller protections such as limitations on liability and disclosure; deal with any conditionality; and set out the completion arrangements, the last of which will be the only part of the SPA in which BVI law will be a major factor and which is seldom controversial. Provided the basic requirements of BVI law are adhered to, there is no issue with buying or selling BVI shares using an SPA governed by a foreign law.

The only real disadvantage of the contractual offer structure is that in the context of a company with a large shareholder base it only binds shareholders who are willing to sell, although this risk to the buyer can be managed contractually (for example through conditionality in the purchase agreement). If a buyer ultimately acquires more than 90 per cent of the issued shares he can avail himself of mandatory squeeze-out provisions under BVI law.

Statutory merger

When the BVI first introduced its merger code, the drafters looked at Delaware and Canada for guidance and the provisions of the Act will be familiar to anyone with experience of mergers in North America.

The key procedural requirement is that the directors of each constituent company must approve a Plan of Merger setting out the details of the parties and the terms of the merger.1 This must also be approved by the shareholders, unless the merger is between a subsidiary and a parent (unlikely in an M&A deal). Unless a higher threshold has been specified in the Mem & Arts the approval threshold is a simple majority vote.

The parties will also need to execute Articles of Merger and file these with the Registrar of Corporate Affairs in the BVI. The merger is effective when these documents are accepted by the Registry, which recently introduced a premium service for faster turnaround on major deals (on the UTi transaction mentioned above, within 30 minutes of filing).

A merger may be between two BVI companies (often a BVI SPV established by the buyer for that purpose) or between a BVI company and a foreign entity. Regardless of whether the target company or the merger sub is the surviving entity, the obligations and assets of the BVI target will flow to the surviving entity.

Similar to the role of an SPA on a contractual offer, the relatively straightforward BVI documents are likely to be supplemented with a longer Merger Agreement, setting out in more detail and putting on a contractual basis the commercial terms of the merger.

Scheme of arrangement

A scheme of arrangement is a statutory, court sanctioned process, which was initially envisaged as a restructuring tool, but which has become a popular method of acquiring companies in a number of common law jurisdictions (in particular the UK, where it is used for the vast majority of public takeovers). The process involves the applicant (invariably the target company) first seeking a court order to call a meeting of the effected 'creditors' (the shareholders). If the transaction is approved by more than 50 per cent in number and 75 per cent in value of the members of each 'class'2 of creditors, it will proceed to a court hearing for final approval ('sanction'). The key documents are the various court applications and supporting documents and the circular to members.

There may also be an 'implementation deed' or some other form of contractual framework between the buyer and target company setting out the terms on which they will cooperate to pursue the scheme.

Since Harneys acted on the BVI's first takeover by scheme of arrangement in 2010 there have been a number of others, although the cost and relative complexity of involving the court means that it is not suitable for every transaction. Schemes do have the key advantage that court sanction makes it virtually impossible for them to be subsequently challenged or derivative actions brought by aggrieved shareholders.

Another benefit is that the scheme is binding on all shareholders and the right to dissent and claim fair value for shares under section 179 of the BCA is only permitted 'if the court allows' and is not automatic (a right which otherwise applies for various corporate transactions including mergers and mandatory squeeze-outs). Consequently, for reasonably large M&A transactions where a comfortable majority of shareholders are likely to be in favour but a minority will be stringently opposed, a scheme can be the ideal instrument to give both the buyer and the target company management certainty and minimize post-closing legal risk.

Plan of arrangement

A plan of arrangement is a statutory process similar to a scheme which can be used for mergers, consolidations, and sales of shares or assets (and certain other corporate actions). The BVI legislation is closely modeled on the statute in Canada, where plans are a common alternative to statutory mergers.

A plan of arrangement can be initiated by the directors of a BVI company if they have determined it is in the best interests of the company and relevant third parties (eg the shareholders and/or creditors). The directors will apply for the court for an order approving the plan, and it is at the discretion of the court to determine who is required to be given notice of the transaction and what additional approvals, if any, are required. In theory, this opens the possibility that the directors could use a plan to sell the company without getting approval from or even giving notice to the shareholders, although in practice it would be very unlikely that a court would approve such a transaction.

While plans have not yet been widely used for takeovers in the BVI, Harneys acted on the first ever plan of arrangement in the BVI under the Act and it represents a potentially simpler and more cost effective alternative to a scheme in some circumstances.

Flexible corporate law

While it would be a slight exaggeration to say that the answer to any BVI corporate law question is 'yes, if the Mem & Arts allow it', it is certainly true that the BVI corporate regime is extremely flexible. This flexibility means that it is very rare for a purely legal issue to delay closing a BVI deal.

There are a few key differentiators between the BVI and many other jurisdictions which can be helpful in the context of an M&A transaction:

Simple solvency test for dividends. Most buyers do not want to pay cash for cash left in the business (beyond a normalised level of working capital). Accordingly, most target companies will return surplus cash to their existing shareholders before closing. In the BVI, the payment of a dividend requires only a simple solvency determination by the directors – there is no need for a complex determination of distributable reserves or for artificial transactions to reduce share capital to create reserves.

No prohibition on financial assistance. There is no prohibition on a BVI company giving assistance for the purchase of its own shares (and for this purpose, unlike the UK, the BVI makes no distinction between public and private companies). This is helpful in leveraged transactions where debt and/or security created to help fund the purchase price will sit at the level of the target company.

Most decisions can be made by a director's resolution. In most M&A transactions the buyer will want to make certain changes at completion. At a minimum, this will usually involve changes to directors, but it may also include changes to the registered office/registered agent of the company, changes to bank mandates, amendment to the Mem & Arts and changes to accountants/auditors. In the BVI, all these decisions may be made at board level by majority decision, negating the need to have a second set of shareholder resolutions.3

Flexible ongoing governance regime. Of course, many M&A transactions do not involve the buyer taking a complete ownership stake in the business, and BVI law gives the parties a high degree of freedom to agree contractually and enshrine in the Mem & Arts the governance and shareholder arrangements they want to have in place going forward. We have worked on several deals in 2017 where a buyer was acquiring a majority of the shares but for tax and or regulatory reasons did not want 'control' and we have developed a range of bespoke solutions to address this while still protecting the buyer's interests.

No Takeover Code. BVI corporate law does not distinguish between public and private companies, and there are no additional hurdles or restrictions which apply to public M&A in the BVI (although there may be relevant securities or listing regulations in the jurisdiction(s) in which the company is admitted to trading).

Premium Service. As mentioned above, the BVI registry's premium service means that where an urgent approval is required, whether for a merger or simply to amend the Mem & Arts, it can be obtained quickly with a guaranteed four hour time frame during business hours.

Quick and easy incorporation. Where the target is BVI based, many buyers opt to use a BVI subsidiary as an acquisition vehicle (either to hold the shares, or to merge into the target). Establishing a BVI company is straightforward, quick and the cost is highly competitive when compared with other offshore jurisdictions.

No need for an extensive tax covenant and no transfer taxes

There is no stamp duty levied in the BVI on a transfer of share in a BVI company unless the company owns a direct or indirect interest in BVI property. As there are no corporate taxes in the BVI (assuming no property, employees or business being conducted in the BVI) there is usually no need for a complicated and heavily negotiated tax covenant apportioning pre-completion taxes and reliefs.

The common law edge

The legal system in the BVI is based on English common law, while its corporate statute has taken provisions and best practices from a range of jurisdictions including the US (principally Delaware), UK, Canada and Australia. As a result, BVI corporate law works harmoniously with the law of contract in other common law countries, and it is not unusual to have the principal transaction documents governed by a different governing law – for example a US law governed merger agreement or an English law governed SPA.

When the parties do decide to use BVI as a governing law, or where the choice of acquisition tool mandates it (such as a scheme of arrangement) they get access to a sophisticated legal system with ultimate appeal to the UK Privy Council. In addition, English case law is persuasive in the BVI, which means that lawyers have the advantage of a huge body of precedent from the world's second largest legal jurisdiction for M&A transactions.

Conclusion

The BVI is one of the easiest countries in the world in which to undertake everything from billion dollar mega-mergers to the sale of non-trading holding companies owning a few acres of real estate. The diversity of acquisition options, allied with a flexible corporate legal system means that a structure can be found that will suit any client's needs. The BVI Government and regulators recognize the importance of keeping the jurisdiction ahead of its peers, and Harneys works closely with these bodies and other industry stakeholders to develop innovative solutions and ensure that it evolves to meet the demands of clients around the world. Harneys continues to be at the forefront of this exciting area of law, and involved with some of the largest and most innovative transactions taking place today.

Footnotes

1The plan must include: (i) the name of each constituent company to the merger; (ii) the name of the surviving company in the merger; (iii) in respect of each constituent company the designation and number of outstanding shares of each class of shares the number of shares of each class of shares in each subsidiary company owned by the parent company; (iv) the terms and conditions of the proposed merger including the manner and basis of converting shares in each company to be merged into shares, debt obligations or other securities in the surviving company, or money or other assets, or a combination thereof; and statement of any amendment to the memorandum or articles of the surviving company to be brought about by the merger.

2Calculating the relevant classes for the purposes of a scheme is not straightforward (it does not follow that because a company only has one class of shares in issue, they can all vote as one class on a scheme). Under case law, "a class must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult with a view to their common interest".

3Fundamental changes to the Mem & Arts may require shareholder approval. In addition the Mem & Arts may set out a higher threshold for certain decisions. Finally, as noted above, the threshold for approval of various different acquisition structures varies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Offshore Law Firm Prepares for Panama Papers-Like Exposé After Admitting Breach

Appleby, a Bermuda law firm that handles the finances for some of the world's richest people, admitted yesterday to a security breach that took place last year.

The company said it's now preparing for a suite of public revelations after several foreign media agencies have approached it for comment.

Media agency behind Panama Papers probing law firm

The main media organization that reached out is the International Consortium of Investigative Journalists (ICIJ), the driving force behind the Panama Papers exposé from the spring of 2015.

The Panama Papers incident took place after an anonymous source shared data from Panamian law firm Mossack Fonseca. The source shared with journalists over 2.6 TB of emails and internal documents about the law firm's 214,488 customers, some dating back to the 1970s.

Over 11.5 million files were exposed and journalists mining the data are still publishing stories even today, some of them losing their lives because of it.

Appleby readying for media storm

Now, Appleby is readying itself and its customers for an incoming media storm that might drag clients' and the organization's name through the dirt.

"These enquiries have arisen from documents that journalists claim to have seen and involve allegations made against our business and the business conducted by some of our clients," Appleby said in a statement.

"We are an offshore law firm who advises clients on legitimate and lawful ways to conduct their business. We do not tolerate illegal behaviour.

"It is true that we are not infallible. Where we find that mistakes have happened we act quickly to put things right and we make the necessary notifications to the relevant authorities," the firm said.

Applyby also said it revised its security policies and said it was disappointed that the media was choosing to use information leaked by illegal means for its articles.

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(CNS Business): One of Cayman’s leading offshore law firms is bracing for potential exposure of its business and that of its clients in the international media after admitting that it suffered a cyber security breach last year.

 Some of the information has found its way to the International Consortium of Investigative Journalists (ICIJ), which plans to publish some of what they have. While Appleby admitted that data was compromised in the hack, they gave no details of who did it, when it happened or how many clients were affected but denied any wrongdoing by it or its clients.

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Bermuda cyber hack: Offshore law firm data hack leaves super-rich bracing for financial details to be released

Bermuda-based Appleby, which has offices in British tax havens, said some client data 'compromised' in 2016 cyber incident - leak comes 

A leading offshore law firm with clients including the super-rich and international corporations has revealed it suffered a “data security incident” that may result in customers' private information being leaked.

Bermuda-based Appleby, which has offices in a number of British overseas territories, said some of its data had been “compromised” in the 2016 cyber incident.

The firm issued a statement after it was contacted by a group of investigative journalists probing allegations concerning its “business and the business conducted by some of our clients”.

Without specifying, Appleby said it had taken the allegations “extremely seriously” and after investigating the claims itself concluded “there is no evidence of any wrongdoing, either on the part of ourselves or our clients”.

According to a report by the Daily Telegraph, a number of media organisations are preparing to release details of the leaks over the coming days.

Appleby said: “We are an offshore law firm who advises clients on legitimate and lawful ways to conduct their business.

“We do not tolerate illegal behaviour. It is true that we are not infallible. Where we find that mistakes have happened, we act quickly to put things right and we make the necessary notifications to the relevant authorities.

“We are committed to protecting our clients' data and we have reviewed our cyber security and data access arrangements following a data security incident last year which involved some of our data being compromised.

“These arrangements were reviewed and tested by a leading IT forensics team and we are confident that our data integrity is secure.”

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Mesothelioma Law Firm

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Mesothelioma Law Firm

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The pursuit of happiness in the law

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A panel of legal experts have explored how to define success in the legal profession, and how lawyers can assess whether they are ready for a career change.

Speaking at the International Bar Association (IBA) conference in Sydney earlier this month, six experienced lawyers have explored the way a successful career is defined in the legal profession.

One of the key themes of the discussion is that success is about more than just money.

Shelley Dunstone, the principal of career consultancy Legal Circles, said she defines success using Maslow’s hierarchy of needs. In this psychological theory, self-actualisation is the most advanced of human needs.

“I view success in terms of Maslow’s concept of self-actualisation,” Ms Dunstone said.

“Self-actualisation is about achieving your potential, becoming what you want to be, making something of yourself.

“I encourage people to aspire to something, and sometimes when I ask lawyers: ‘What are your aspirations? What do your aspire to in your practice and in your career?’, sometimes they really give me a funny look because their practice is all about meeting other people’s expectations.

“They actually don’t have any aspirations of their own in their lives, and I think aspiration is a necessary ingredient for happiness and success.”

The panel also highlighted the importance of self-awareness, to help lawyers understand when it’s time to make changes in their careers. While some may choose to leave the law altogether, others alter the way they practise to improve their wellbeing.  

Panel chair Robert Bata, vice-chair of the senior lawyers committee of the IBA, said adaptability is a valuable trait in the profession.

“One of the words that we hear an awful lot of is disruption: disruptive technologies, disruptive business models and so forth, but the reality is that we also have to disrupt ourselves,” he said.

“I think that, when we talk about what’s the key to success or what’s the key to happiness by being successful, it’s the extent to which you are able to rethink who you are and what you want to be, and not fit yourself, necessarily, into a mould.”

However, lawyers may not always find it easy to make career changes. Ronda Muir, principal of consultancy Law People Management and author of Beyond Smart: Lawyering with Emotional Intelligence, said lawyers often struggle to recognise emotional cues telling them it may be time for a change.

“I think a lot of success is being in touch with your own emotional constitution, being able to recognise and understand what your emotions are telling you,” Ms Muir said.

“I’m a big fan of emotional intelligence and it’s something that lawyer’s tend not to have high scores in, so I think being in touch with your emotions is something very important to lead you to success.”

Ms Muir listed some emotional signs for lawyers to watch out for.

“So because we’re maybe not so good at understanding what we’re feeling about our careers, here are some things to look for, opportunities for change,” she said.

“One of them is physical signs, [for example] low energy. You feel low in energy, it might be telling you something about your emotional state. Frequent illness, [being] slow to heal, eating disorders and addictions. These are all things that could be telling you how you feel about your current situation.

“Mental signs: reduced focus, slower processing time, no ‘flow’. Flow is a psychological term where you are so engrossed and enjoy so much what you’re doing that you don’t even look up. Time can go by so fast. So hopefully there [are] times in your career that you have that sense of flow.

“Emotional signs: do you feel disengaged? You don’t feel that close to the mission or the people or the objectives or the organisation that you’re with? Do you feel low or depressed?

“Negative self-talk: are you telling yourself negative things? ‘I’m not very good, this is not very fun, I don’t like what I’m doing.’ Negative self-talk comes from a place of unhappiness, so that might be sign to tell you that ‘You know, maybe I need to make a change’.

“Limited joy: come home late, tired. Get up, tired. Not that much joy in what you’re doing. So if any of these are signs you feel, maybe that’s one of your opportunities for making a change.”

Panel members

Robert Bata, founder and principal, WarwickPlace Legal, LLC

Shelley Dunstone, principal, Legal Circles

Irina Paliashvili, managing partner, RULG-Ukrainian Legal Group

Ronda Muir, principal, Law People Management, LLC

Douglas Raftesath, principal, Meridian Lawyers

Nilam Sharma, managing director, Nilam Sharma Ltd

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New Law firm gains international presence

An Australian NewLaw firm has announced a “groundbreaking” alliance with a US and UK firm.

Nexus Law Group has revealed it has partnered with US-headquartered Rimon Law and UK-headquartered Excello Law to share knowledge and boost its capability to service clients globally.

The alliance will see over 200 lawyers come together and enable Nexus to expand its offering further.

According to a statement from the NewLaw group, it is envisaged that the alliance of the three firms will be “underpinned by an extension of Nexus’ unique OpenLaw practice management system, built to connect independent lawyers by automatically capturing and paying referrals between them”.

“We intend to join like-minded firms throughout Asia to complete the picture on this Alliance,” added Nexus managing partner Marcus McCarthy.

“All member firms will have access to the next version of the OpenLaw software and will be able to publish jurisdiction-specific documents on our soon-to-be-published online smart contracts platform.

“This is a really exciting time for us and we are committed to forging a new and better path for the legal profession, just like Rimon and Excello.”

Mr McCarthy noted that all three firms share a like-minded approach to innovative legal service delivery and share a similar story in that they are each founded so that lawyers could effectively combine their capabilities, free of the restrictions of practising in traditional large firms.

“As long as there is that shared mindset of ‘connected independence’, the OpenLaw software makes it is easy to plug in all lawyers together globally, even in different firms, as if they were lawyers in the office next door,” he said.

“That is what the system was designed to do – that is a model without borders and there is no upper limit to this practice structure.

“This is a fantastic development in the NewLaw space, bringing together a solid global resource of great lawyers and, at last, positions a serious NewLaw to compete effectively with the larger global firms. Traditional firms who have been through mergers or formed international alliances wouldn’t believe how comparatively easy this was to accomplish. It’s proof of the viability of the NewLaw approach on a global scale.”

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