Limited Liability
Companies (Jersey) Law 2018
A LAW to provide for the
establishment and regulation of limited liability companies, and for connected
purposes.
Commencement [see
endnotes]
PART 1
PRELIMINARY
1 Interpretation
(1) In this Law unless the
context otherwise requires –
“amendment statement” is to be construed in accordance
with Article 5(2);
“authorized person” means a person who is authorized in
writing by –
(a) every
person who is a member of the limited liability company; or
(b) in
the case of actions taken prior to the registration of the limited liability
company, every person who is intended to be a member of the limited liability
company upon such registration;
“certificate of registration”
means the certificate of registration issued under Article 4(5);
“Commission” means the Jersey Financial Services
Commission established under Article 2(1) of the Financial Services Commission
(Jersey) Law 1998;
“contribution” means any cash, property, other assets,
services rendered or other obligation to contribute cash, property, other
assets or to perform services, which a person contributes to a limited
liability company in the person’s capacity as a member, but does not
include any monies lent or agreed to be lent to a limited liability company;
“Court” means the Royal Court;
“declaration” shall be construed in accordance with Article 4(1)
and includes any amendment statement delivered under Article 5 made to the
declaration under Article 5;
“distribution” shall be construed in accordance with Article 32;
“electronic communication” has the meaning given by Article 1(1)
of the Electronic Communications
(Jersey) Law 2000;
“insolvent” means unable to pay debts as they fall due;
“limited liability company” shall be construed in
accordance with Article 2;
“LLC agreement”, means any agreement, written, oral or
implied, of the member or members (or the proposed member or members) as to the
affairs of a limited liability company and the conduct of its business and includes
any amendments or additions made to the LLC agreement;
“LLC interest” means any or all of the
following –
(a) a
member’s share of the profits and losses of a limited liability company;
(b) a
member’s right to receive distributions of the limited liability
company’s assets;
(c) a
member’s voting rights;
(d) any
other rights, benefits and obligations conferred or imposed upon a member by
the LLC agreement or this Law;
“Minister” means the Minister for External Relations;
“manager” means a person appointed as such under Article 21(1)
and includes a member in whom the management of the limited liability company
vests under Article 21(4);
“member” means a person who is admitted as a member of a
limited liability company under Article 13;
“prescribed” means prescribed in an Order made by the
Minister;
“register” means the register to be maintained under Article 48(2);
“registrar” shall be construed in accordance with Article 48(1);
“registered office” shall be construed in accordance
with Article 8;
“secretary” means the secretary appointed in accordance
with Article 9, and any reference to a secretary includes a person
carrying out any of the functions of the secretary;
“series” shall be construed in accordance with Article 12.[1]
(2) The Minister may by
Order amend this Article.
PART 2[2]
REGISTRATION ETC. OF LIMITED LIABILITY
COMPANY
2 Limited
liability company
(1) Subject to the
provisions of this Law, a limited liability company may be registered for any lawful
business, purpose or activity, whether or not for profit.[3]
(2) Subject to
Article 2A a limited liability company has legal personality that is
separate from that of its members.[4]
(3) A limited liability
company shall be dissolved and have its affairs wound up only pursuant to the LLC
agreement, or by this Law or another enactment.
(4) A limited liability
company has unlimited capacity and shall possess and may exercise all powers
and privileges granted by the LLC agreement, this Law or other enactment
together with any powers incidental thereto, including such powers and
privileges as are necessary or convenient to the conduct, promotion or
attainment of the business, purposes or activities of the limited liability
company.
(5) A limited liability
company shall consist of –
(a) one
or more persons who are members; and
(b) if
appointed, one or more persons who are managers.
(6) A person may be a
member and a manager at the same time in the limited liability company.
(7) Subject to the LLC
agreement, a member or manager may –
(a) lend
money to;
(b) borrow
money from;
(c) act
as surety, grantor or endorser for; or
(d) guarantee
or assume one or more obligations of, provide collateral for, and transact
other business with,
a limited liability company and, subject to any other enactment, has
the same rights and obligations with respect to any such matter as a person who
is not a member or manager.
(8) Subject to the LLC
agreement, a limited liability company may indemnify any member, manager or
other person from and against all claims and demands.
2A Limited
liability company that is a body corporate[5]
The States may by
Regulations make any amendments to this Law (other than this Article) that they
consider appropriate for and in connection with –
(a) conferring
a power to form a limited liability company that is a body corporate; and
(b) applying,
disapplying or modifying a provision of this Law in relation to a limited
liability company so formed.
3 LLC
agreement generally
(1) An
LLC agreement shall be entered into (if not already existing) before, after or
at the time of delivery of a declaration to the Registrar, and may be made effective
as of the date of the certificate of registration or at such other date as specified
in the LLC agreement.[6]
(2) Notwithstanding
anything in the LLC agreement to the contrary, a limited liability company registered
under this Law shall be governed by the law of Jersey.[7]
(3) A
limited liability company is not required to execute its LLC agreement and is
bound by its terms whether or not it executes it.
(4) Each
member and manager (if any) of a limited liability company is bound by the LLC
agreement (which shall be enforceable) whether or not the member or manager
executes the LLC agreement.
(5) An
LLC agreement of a limited liability company having only one member shall not
be unenforceable by reason of there being only one person who is a party to the
LLC agreement.
(6) An
LLC agreement may confer rights on a third party and provide for the way in
which those rights may be varied or extinguished. However, if an LLC agreement
does not provide otherwise, those rights may only be varied or extinguished
with the consent of the third party.[8]
(6A) Despite
not being a party to an LLC agreement, a third party is entitled to enforce any
rights conferred on the third party in an LLC agreement.[9]
(7) If
an LLC agreement provides for the manner in which it may be amended, it may be amended
only in that manner or as otherwise permitted by this Law and if the LLC
agreement is silent as to the manner of amendment, it may be amended with the
unanimous approval of all members or as otherwise permitted by this Law.
(8) An
LLC agreement may provide that a member or a manager who fails to perform in
accordance with, or to comply with the terms and conditions of, the LLC agreement
shall be subject to remedies, sanctions, penalties or consequences specified in
the LLC agreement.
(9) An
LLC agreement may provide that upon the happening of an event specified in the
LLC agreement, a member or manager shall be subject to remedies, sanctions,
penalties or consequences specified in the LLC agreement.
(10) Any
remedies, sanctions, penalties or consequences referred to in paragraphs (8)
and (9) shall not be unenforceable solely on the basis that they are in the
nature of a penalty or forfeiture.
4 Registration
of limited liability company
(1) An application for registration
of a limited liability company shall be in the form of a declaration, made and
signed by an authorized person and shall be delivered to the registrar by such
method or in such form as may be required by the registrar.
(2) A declaration shall
state the following particulars –
(a) the
proposed name of the limited liability company;
(aa) whether the
limited liability company is to be a body corporate or an unincorporated body;
(b) the
intended address of the registered office of the limited liability company upon
registration;
(c) the
name and address of each person who is to be a member of the limited liability
company upon registration;
(d) the
name and address of each person who is to be a manager of the limited liability
company upon registration;
(e) the
names and addresses of the secretary and deputy secretary (if any) who are to
be appointed under Article 9 upon registration;
(f) that
the person making the declaration is authorized to do so by every person
intending to be a member on the date the registration takes effect under
paragraph (8); and
(g) such
other particulars as may be prescribed.[10]
(3) A declaration shall be
accompanied by such documents as may be prescribed.
(4) The registrar shall
maintain a register of all declarations.
(5) If the registrar is
satisfied that –
(a) an
application made under paragraph (1) complies with paragraphs (2) and
(3);
(b) the
proposed name of the limited liability company complies with Article 7;
(c) the proposed
registered office complies with Article 8; and
(d) the
proposed secretary and deputy secretary (if any) complies with Article 9,
the registrar shall register the limited liability company and issue
a certificate of registration to the limited liability company.[11]
(6) The certificate of
registration shall specify –
(a) the
date on which the certificate of registration is issued;
(b) any
number or other identifying code allocated by the registrar to the limited
liability company; and
(c) whether
the limited liability company is a body corporate or an unincorporated body,
and, in accordance with Article 48(3), shall be signed by the
registrar and sealed with the registrar’s seal (if any).[12]
(7) A certificate of
registration shall be conclusive evidence that –
(a) a
declaration has been delivered to the registrar;
(b) the
limited liability company is registered under this Law;
(c) the
requirements of this Law have been complied with in respect of –
(i) registration,
(ii) all
matters precedent to registration, and
(iii) all
matters incidental to registration,
in respect of the limited liability company.[13]
(8) The registration of a
limited liability company shall have effect from the date of issue of its certificate
of registration and shall cease to have effect upon the cancellation of
registration of the limited liability company in accordance with Article 6.[14]
5 Amendment
of declaration[15]
(1) This Article applies to
a limited liability company if, during the existence of the limited liability
company, a manager of the limited liability company or, if there is no manager,
a member of the limited liability company becomes aware that, at the time the
declaration was delivered to the registrar under Article 4(1) –
(a) a
statement in the declaration was false; or
(b) information
in the declaration (other than details of the registered office of the limited
liability company) was inaccurate.
(2) A limited liability
company to whom this Article applies must, within 21 days of becoming aware,
deliver an amendment statement to the registrar that –
(a) is
signed by an authorized person;
(b) specifies
the information in the declaration that was false or inaccurate; and
(c) specifies
the correction that should be made to the declaration.
(3) A limited liability
company to whom this Article applies commits an offence if the limited
liability company fails to comply with paragraph (2).
(4) If the registrar is
satisfied that the correction complies with the requirements of this Law, the
registrar must register the amendment statement and give effect to the
change –
(a) in
the certificate of registration issued under Article 4; or
(b) if a certificate
of registration has been issued, by issuing an amended certificate of
registration.[16]
(5) Despite
paragraphs (1) to (4), a limited liability company may change its name
from time to time by giving notice to the registrar.[17]
6 Cancellation
of registration
(1) The
registrar shall cancel the entry in the register relating to the limited
liability company and issue a certificate of cancellation of the limited
liability company’s registration where –
(a) the registrar has been notified of the
completion of the winding up of the affairs of the limited liability company pursuant
to Regulations made under Article 60(2)(f); or
(b) the registrar has been notified under Article 36(2)
of the Bankruptcy
(Désastre) (Jersey) Law 1990.
(2) On
cancelling a limited liability company’s registration under paragraph (1)
the registrar shall publish a notice of that fact.
(3) A
certificate of cancellation of a limited liability company’s registration
issued by the registrar under paragraph (1) shall be conclusive evidence
as to the cancellation of the registration of the limited liability company.
(4) Notwithstanding
paragraph (3), where the registration of a limited liability company has
been cancelled under this Article, on an application made by –
(a) a
person who was a member immediately before the cancellation; or
(b) any
other person appearing to the Court to be interested,
the Court may at any time
within 10 years of the date of the cancellation make an order, on such
terms as the Court thinks fit, declaring the cancellation of the registration
void.
(5) In
making an order under paragraph (4), the Court may give such directions
and make such provisions as seem to the Court to be just, including directions
and provisions –
(a) with
the aim of placing the limited liability company and all other persons in the
same position as nearly as may be as if the registration of the limited
liability company had not been cancelled; and
(b) requiring
the registrar to publish a notice of the Court’s decision and the effect
of that decision on the cancellation of registration.
(6) The
person on whose application the order under paragraph (4) was made shall,
within 14 days after the making of the order (or such further time as the
Court may allow), deliver the relevant Act of Court to the registrar for
registration.
(7) A
person who fails to comply with paragraph (6) is guilty of an offence.
7 Name
of limited liability company
(1) The
registered name of a limited liability company shall end with the words
“Limited Liability Company” in full or either of the abbreviations
“LLC” or “L.L.C.” and notwithstanding its registered
name, a limited liability company may use such words and abbreviations interchangeably
when providing its name in the ordinary course of business where convenient,
provided such use is not misleading.
(2) An
application to reserve the name of a limited liability company may be made by
an authorized person and delivered to the registrar in a form approved by the
registrar stating the proposed name of the limited liability company and the
registrar may reserve that name for the exclusive use of the applicant.[18]
(3) The
registrar may refuse to register a declaration or an amendment statement or
reserve the name of a limited liability company where the name to be registered
is, in the registrar’s opinion, in any way misleading or otherwise
undesirable.
(4) If, in the opinion of the registrar, the
name by which a limited liability company has been registered is misleading or
otherwise undesirable, the registrar may direct the limited liability company to
change it.
(5) Subject
to paragraph (6), the limited liability company shall comply with a
direction under paragraph (4) within 3 months from the date of the
direction or such longer period as the registrar may allow.
(6) The
limited liability company may, within 21 days from the date of a direction
under paragraph (4), apply to the Court to set it aside and, if such
application is made, the Court may set the direction aside or confirm it.
(7) If
the Court confirms the direction, the Court –
(a) shall
specify a period, not being less than 28 days from the date the Court
confirmed it, within which the limited liability company shall comply with the
direction; and
(b) may
order the registrar to pay the limited liability company such sum (if any) as
it thinks fit in respect of the expenses to be incurred by the limited
liability company in complying with the direction where the Court is of the opinion
that the registrar has acted negligently, or in bad faith in respect of the
name that was registered prior to the making of the direction.
(8) A
change of name of a limited liability company shall take effect upon an amended
certificate of registration being issued in respect of it by the registrar under
Article 5(4)(b).[19]
(9) A
change of name of a limited liability company does not affect any rights or liabilities
of the limited liability company or render defective any legal proceedings by,
or against it, and any legal proceedings that might have been continued or
commenced against it under its former name may be continued or commenced
against it under its new name.
(10) Where
a limited liability company which has its name inscribed in the Public Registry
as being the holder of, or having an interest in, immovable property changes
its name, the limited liability company shall deliver to the Judicial Greffier
a copy of the amended certificate of registration issued by the registrar
pursuant to Article 5(4)(b) within 14 days after it is issued.[20]
(11) Upon
delivery of the copy referred to in paragraph (10), the Judicial Greffier
shall cause the new name to be registered in the Public Registry.
(12) A
limited liability company shall have clearly stated on all its business
letters, statements of account, invoices, order forms, notices and other
official publications, and on negotiable instruments and any letters of credit
signed on behalf of the limited liability company –
(a) its
name;
(b) any
number or other identifying code assigned to it by the registrar; and
(c) the
words “registered as a limited liability company in Jersey”.
(13) A
limited liability company that fails to comply with paragraph (5), (10)
or (12) shall be guilty of an offence.
8 Registered office
(1) A
limited liability company shall have a registered office in Jersey.
(2) A
limited liability company does not comply with paragraph (1) unless the
occupier of the premises that are the registered office authorizes for the time
being that the premises may be used as the registered office of the limited
liability company.
(3) Subject
to paragraphs (4) and (5), a limited liability company may change the
address of its registered office from time to time by giving notice to the
registrar.
(4) A
change of the address of the registered office of a limited liability company shall
take effect on the registration by the registrar of the notice given under paragraph (3),
but until the end of the period of 14 days beginning on the date on which
it is registered, a person may validly serve any document on the limited
liability company at its previous registered office.
(5) The
registrar may refuse to register a notice given under paragraph (3), if he
or she is not satisfied that the occupier of the premises that are to be the
registered office of the limited liability company authorizes the use of the
premises as the registered office of the limited liability company.
(6) A
limited liability company shall keep at its registered office the following records –
(a) a register
containing a list of the name and address of each member, manager, deputy
secretary and secretary of the limited liability company;
(b) a copy of the declaration;
(c) a copy of any other statement delivered to
the registrar under this Law;
(d) a copy of the certificate
of registration and any other certificate issued by the registrar under this Law;
(e) a copy of the LLC agreement and each
amendment made to it;
(f) a
statement of the amount of any contributions agreed to be made by each member
and the time at which, or events on the happening of which, the contributions
are to be made;
(g) a
statement of the amount of money and nature and value of any other property or
services contributed by each member and the dates that the contributions were
made;
(h) a statement
of the amount of contributions returned to members and the dates that the
contributions were returned; and
(i) such other particulars as may be
prescribed.[21]
(7) If
a limited liability company has 25 or more members, the list of names referred
to in paragraph (6)(a) must be kept in alphabetical order.[22]
(7A) In
relation to the list that is required to be kept under paragraph (6)(a), a
limited liability company –
(a) must
not enter notice of a trust, whether express, implied or constructive; and
(b) subject
to the LLC agreement, is not required to record the details of an assignee of
an LLC interest (being a person not yet admitted as a member).[23]
(8) The
documents kept under paragraph (6) shall be –
(a) prima
facie evidence of the information which is by that paragraph directed
to be contained in them; and
(b) subject to paragraph (9), available for
inspection and copying without charge at the limited liability company’s
registered office, during the ordinary business hours of the limited liability company,
at the request of a member or manager.
(9) Notwithstanding
paragraph (8), but subject to any other provision to the contrary in this
Law or any other enactment, the LLC agreement may restrict a member’s
access to –
(a) documents
kept under paragraph (6)(f), (g) or (h) to the extent that they relate to
contributions made by other members;
(b) any
other information –
(i) the disclosure of
which is believed in good faith to not be in the best interests of the limited liability
company or could damage the limited liability company or its business, or
(ii) which
the limited liability company is required by any other enactment or by agreement
to keep confidential.[24]
(10) The
limited liability company shall amend the list kept under paragraph (6)(a)
within 28 days after any change in the particulars contained in it.
(11) A
limited liability company shall send to the registrar copies of any of the
documents kept under paragraph (6) within 14 days of the registrar requesting
any such documents.
(12) A
limited liability company that fails to comply with the requirements of paragraph (6),
(7), (8)(b), (10) or (11) shall be guilty of an offence.
9 Limited
liability company secretary
(1) Every
limited liability company, from the date it is registered –
(a) must
appoint a secretary; and
(b) may
appoint a deputy secretary, in accordance with paragraph (3), to carry out
the secretary’s function if , for any reason the secretary is unable to
carry out that function.
(2) The
duty to have a secretary shall cease only upon cancellation of a limited
liability company’s registration under Article 6 or in any
circumstances described in Regulations made under this Law concerning the
secretary’s appointment.
(3) The
secretary or a deputy secretary must be –
(a) a
company that is –
(i) a member or
manager in the limited liability company and has a registered office in Jersey,
or
(ii) registered
under Part 2 of the Financial Services (Jersey) Law 1998 to carry on trust company business that permits the provision by
that company of the services mentioned in Article 2(4)(e) of that Law; or
(b) an
individual who is –
(i) a member or
manager in the limited liability company and ordinarily resident in Jersey, or
(ii) registered
under Part 2 of the Financial Services (Jersey) Law 1998 to carry on trust company business that permits the provision by
that individual of the services mentioned in Article 2(4)(e) of that Law.
(4) In
the event of a secretary’s appointment ceasing, or the requirements in paragraph (3)(a)
or (b) in relation to the secretary appointed ceasing to be satisfied, the
limited liability company must appoint a new secretary no later than
28 days after that cessation.
(5) A
limited liability company that fails to comply with the requirements in paragraphs (1)
or (4) shall be guilty of an offence.
10 Records
to be held by secretary
(1) Except
as provided in Regulations made under Article 60, the secretary shall keep
for 10 years at a place in Jersey all the accounting records and returns
of the limited liability company that are provided to the secretary by the
limited liability company under this Law.
(2) If
the secretary sends any document to the registrar or the Commission in
accordance with a requirement in this Law, the secretary shall keep a copy of
it, and the duty in paragraph (1) applies to any copies of documents
retained under this paragraph.
(3) A
secretary who fails to comply with paragraph (1) or (2) shall be guilty of
an offence.
11 Service
of documents on limited liability company
The service of a document
on a limited liability company may be effected by sending it by post or
delivering it to the registered office of the limited liability company.
12
[not
in force]
PART
3
MEMBERS
AND LLC INTERESTS
13 Admission
of members and LLC interests
(1) In
connection with the registration of a limited liability company, a person is
admitted as an initial member of the limited liability company upon the later
to occur of –
(a) the
issuance of the certificate of registration of the limited liability company; or
(b) the
time provided in and upon compliance with the LLC agreement or, if the LLC
agreement does not so provide, when the person’s
admission is reflected in the records of the limited liability company.[25]
(2) After
the registration of a limited liability company, a person
may be admitted as a member of the limited liability company in the following
circumstances –
(a) in
the case of a person acquiring an LLC interest from, or being issued with an
LLC interest by, the limited liability company, at the time provided in and
upon compliance with the LLC agreement, or if the LLC agreement does not so
provide, upon –
(i) the
consent of all members, and
(ii) the
person’s admission being reflected in the records of the limited
liability company;
(b) in
the case of an assignee of an LLC interest, as provided in Article 43 and
at the time provided in and upon compliance with the terms of the LLC agreement
or, if the LLC agreement does not so provide, when any such person’s
permitted admission is reflected in the records of the limited liability
company;
(c) in
all other cases, at the time provided in and upon compliance with the LLC
agreement, or if the LLC agreement does not so provide, upon –
(i) the
consent of all members, and
(ii) the
person’s admission being reflected in the records of the limited
liability company.[26]
(3) If
the requirements for or conditions to an admission contained in the LLC
agreement have been complied with in respect of a person (or, to the extent
permitted by the LLC agreement, waived), any such person, howsoever admitted,
shall without the requirement for any further actions or formalities, be deemed
to have become a member and adhered to and agreed to be bound by the terms and
conditions of the LLC agreement from that date as if that person and all
existing members and any other parties to the LLC agreement had together duly
executed and delivered the LLC agreement.
(4) Subject
to an LLC agreement, a person may be admitted to a limited liability company as
a member of the limited liability company and may receive an LLC interest in,
or be granted other rights in respect of, the limited liability company without
making a contribution or being liable to make a
contribution to the limited liability company.
(5) Subject
to the LLC agreement, a person may be admitted as member of the limited
liability company, even if the member’s LLC interest does not comprise
one or more of the following –
(a) economic
rights;
(b) voting
rights;
(c) any
other rights.[27]
(6) Subject
to an LLC agreement, a person may be admitted as the sole member of a limited
liability company without making a contribution, or
being liable to make a contribution, to the limited liability company or
without acquiring an LLC interest that
comprises any economic rights in the limited liability company.[28]
(7) Subject
to an LLC agreement or any agreement with the limited liability company, a
member shall have no pre-emptive right to subscribe for any issue of LLC
interests or any other securities in a limited liability company.[29]
(8) Subject
to an LLC agreement, a member’s LLC interest may (but need not) be
evidenced by a certificate of LLC interest issued by the limited liability
company.
(9) A
certificate of LLC interest issued by or on behalf of a limited liability
company specifying that a person is a member of that limited liability company
(and specifying such additional information, if any, as the limited liability
company may determine) and purportedly signed (including by an electronically
affixed signature) with the express or implied authority of the limited
liability company, is admissible in evidence as proof of that person’s
membership of the limited liability company and as proof of that additional
information in respect of that member’s LLC interest as may have been
included in the certificate by the limited liability company.
(10) An
LLC interest of a member in a limited liability company is movable property.[30]
(11) A
member has no interest in any specific property of the limited liability
company.
(12) Notwithstanding
any other provision of this Law, a limited liability company shall not issue
bearer LLC interests, bearer certificates or bearer coupons and any issue or
purported issue of such shall be void.
(13) In
paragraph (12), “bearer” means a document where title to the
document or to what the document represents is transferred, or purported to be
transferred solely by delivery of such document.
14 Classes
of members
(1) An
LLC agreement may provide for classes or groups of members having such relative
rights, powers and duties as the LLC agreement may provide, and may make
provision for the future creation in the manner provided in the LLC agreement
of additional classes or groups of members having such relative rights, powers
and duties as may from time to time be established, including rights, powers
and duties senior to existing classes and groups of members.
(2) Unless
otherwise specified by the LLC agreement –
(a) the
rights, powers and duties of such classes or groups of members may only be
varied by a vote at a separate meeting or with the consent in writing of such
members; and
(b) in
respect of every such separate meeting, vote or consent in writing, the
provisions of this Law relating to meetings, votes and consent in writing of
members of the limited liability company shall apply as if reference to such
members were reference to such classes or groups of members.
15 Meetings
of members
(1) An
LLC agreement may make provisions relating to notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any members,
waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by
proxy, or any other matter with respect to the exercise of any such right to
vote.
(2) Unless
otherwise provided in the LLC agreement, a meeting of members may be held by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this paragraph shall constitute presence in person at
the meeting.
16 Voting
of members
(1) An
LLC agreement may –
(a) provide
for the taking of an action, including the amendment of the LLC agreement,
without the vote or approval of any member or class of LLC interest or group of
members;
(b) provide
that any member or class or group of members shall have no voting rights;
(c) grant
to all or certain identified members or a specified class of LLC interest or
group of members the right to vote separately or with all or any class of LLC
interest or group of members or managers, on any matter,
and voting by members may
be on a per capita, number, financial interest, class, group or any other basis.
(2) Subject
to an LLC agreement or except as otherwise provided by this Law, any vote (or
consent) of members shall be passed (or given) if passed (or given) by members
who together hold a majority of the total rights to the profits of the limited
liability company, but where that results in no members with a right to vote or
provide consent, the members may vote or consent by a simple majority in number.
(3) Subject
to an LLC agreement, on any matter that is to be voted on, consented to or
approved by members, the matter may be dealt with without a meeting, without
prior notice and without a vote by consent in writing, signed by the members
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all members entitled to
vote thereon were present and voted.
(4) Subject
to the LLC agreement, if a person (whether or not then a member), consenting as
a member to any matter provides that such consent will be effective at a future
time (including a time determined upon the happening of an event), such a
person shall be deemed to have consented as a member at such future time so
long as such a person is then a member.
(5) Subject
to an LLC agreement, on any matter that is to be voted on by members, the
members may vote in person or by proxy, and such proxy may be granted in
writing or by means of electronic communication.[31]
(6) Subject
to an LLC agreement, a consent transmitted by electronic communication by a
member or by a person or persons authorized to act for a member shall be deemed
to be written and signed for purposes of this Article.
17 Resignation
as a member on insolvency etc.
(1) Subject
to an LLC agreement, or unless all members otherwise consent, a person shall be
treated as having resigned as a member of a limited liability company immediately
upon the happening of any of the following events –
(a) the member –
(i) makes an
assignment for the benefit of creditors,
(ii) is
insolvent or becomes bankrupt or has entered against the member an order for
relief, in any bankruptcy or insolvency proceeding,
(iii) files
a petition or answer seeking for the member any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
enactment,
(iv) files
an answer or other pleading admitting or failing to contest the material
allegations of a petition filed against the member in any proceeding of this
nature, or
(v) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the
member or of all or any substantial part of the member’s assets; or
(b) 120 days
after the commencement of any proceeding against the member seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any enactment, if the proceeding has not been
dismissed; or
(c) if
within 90 days after the appointment without the member’s consent or
acquiescence of a trustee, receiver or liquidator of the member or of all or
any substantial part of the member’s assets, the appointment is not
vacated or stayed, or within 90 days after the expiration of any such
stay, the appointment is not vacated.
(2) If
a member who is an individual dies or a court of competent jurisdiction
adjudges the member to be incompetent to manage the member’s person or property,
then the member’s personal representative (or equivalent, as applicable)
may exercise all of that member’s rights for the purpose of settling the
member’s estate or administering the member’s property, including –
(a) any
power under an LLC agreement of an assignee to become a member;
(b) exercising
any rights of transfer in respect of all or part of the member’s LLC
interest.
18 Liabilities
to third parties
(1) Except
as otherwise provided by this Law, the debts and other liabilities of a limited
liability company, whether arising in contract under customary law or
otherwise, shall be solely the debts and other liabilities of the limited
liability company, and neither a member nor a manager of a limited liability
company shall be personally liable for any such debts or other liabilities of
the limited liability company solely by reason of being a member or acting as a
manager of the limited liability company.
(2) Notwithstanding
paragraph (1), a member or manager may, in accordance with the LLC
agreement or otherwise, agree to be liable personally for any or all of the
debts and other liabilities of the limited liability company.
19 Member
may bind limited liability company
Subject to the LLC
agreement, a member shall have the authority to bind the limited liability
company if no manager has been appointed or holds office.
20 Resignation
of member
A member may resign from
and cease to be a member of a limited liability company only at the time or
upon the happening of events specified in an LLC agreement and in accordance
with the LLC agreement or as otherwise provided in this Law or with the consent
of all of the other members.
PART 4
MANAGERS
21 Management
of limited liability company
(1) An
LLC agreement may –
(a) provide
for the management of a limited liability company by a manager; and
(b) provide
for the appointment of a person as a manager of a limited liability company.
(2) If
an LLC agreement provides for the management of a limited liability company by
a manager and for the appointment of a person as a manager of a limited liability
company in accordance with paragraph (1), the management of the limited
liability company vests in that manager to the extent provided.[32]
(3) A
manager shall hold the offices and have the responsibilities accorded to the
manager by or in the manner provided in the LLC agreement.
(4) Where
the LLC agreement –
(a) does
not provide for the management of a limited liability company by a manager; or
(b) provides
for the management of a limited liability company by a manager but no manager
is appointed,
the management of the
limited liability company shall vest in its members.
(5) A
limited liability company may have more than one manager.
(6) Subject
to the LLC agreement, each manager shall have the authority to bind the limited
liability company.
(7) Subject
to this Law, a manager shall cease to be a manager only as provided in the LLC agreement.
(8) If
the LLC agreement provides for the appointment of a manager but is silent as to
removal, unless a contrary intention appears in the LLC agreement there shall
be taken to be included in the LLC agreement a provision that a manager may be
removed by a vote or with the consent of the members of the limited liability
company.
22 Contributions
by manager
(1) A
manager of a limited liability company may make contributions to the limited
liability company and share in the profits and losses of, and in distributions
from, the limited liability company as a member.
(2) A
person who is both a manager and a member has the rights and powers, and is
subject to the restrictions and liabilities, of a manager and, subject to the LLC
agreement, also has the rights and powers, and is subject to the restrictions
and liabilities, of a member to the extent of the manager’s participation
in the limited liability company as a member.
23 Classes
of managers
An LLC agreement may
provide for classes or groups of managers having such relative rights, powers
and duties as the LLC agreement may provide, and may make provision for the
future creation in the manner provided in the LLC agreement of additional
classes or groups of managers having such relative rights, powers and duties as
may from time to time be established, including rights, powers and duties
senior to existing classes and groups of managers.
24 Meetings
of managers
(1) An
LLC agreement may make provision relating to notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any manager or
class or group of managers, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy, or any other matter with respect to the exercise
of any such right to vote.
(2) Unless
otherwise provided in the LLC agreement, a meeting of managers may be held by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this paragraph shall constitute presence
in person at the meeting.
25 Voting
of managers
(1) An
LLC agreement may –
(a) provide
for the taking of an action, including the amendment of the LLC agreement,
without the vote or approval of any manager or class or group of managers,
including an action to create under the provisions of the LLC agreement a class
or group of LLC interests that was not previously outstanding;
(b) grant
to all or certain identified managers or a specified class or group of managers
the right to vote, separately or with all or any class or group of managers or
members, on any matter,
and voting by managers may
be on a per capita, number, financial interest, class, group or any other
basis.
(2) Subject
to the LLC agreement and except as otherwise provided in this Law, any matter
may be decided by a vote of the managers or class or group of managers on a
simple majority of votes.[33]
(3) Unless
otherwise provided in the LLC agreement, on any matter that is to be voted on,
consented to or approved by managers, the managers may take such action without
a meeting, without prior notice and without a vote if consented to, in writing
or by electronic communication, by managers having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all managers entitled to vote thereon were present and voted.
(4) Subject
to the LLC agreement, if a person (whether or not then a manager) consenting as
a manager to any matter provides that such consent will be effective at a
future time (including a time determined upon the happening of an event), then
such person shall be deemed to have consented as a manager at such future time
so long as such person is then a manager.
(5) Subject
to the LLC agreement, on any matter that is to be voted on by managers, the
managers may vote in person or by proxy, and such proxy may be granted in
writing or by means of an electronic communication.
(6) Subject
to the LLC agreement, a consent transmitted by means of an electronic
communication by a manager or by a person or persons authorized to act for a
manager shall be deemed to be written and signed for purposes of this Article.
26 Reliance
on information, reports etc. by member or manager
A member or manager of a
limited liability company shall be fully protected in relying in good faith
upon the records of the limited liability company and upon information,
opinions, reports or statements presented by another manager or member, an
officer or employee of the limited liability company, or committees of the
limited liability company, members or managers, or by any other person as to
matters the member or manager reasonably believes are within such other person’s
professional or expert competence including –
(a) information,
opinions, reports or statements as to –
(i) the
value and amount of the assets, liabilities, profits or losses of the limited
liability company, or
(ii) the
value and amount of assets or reserves or contracts, agreements or other undertakings
that would be sufficient to pay claims and liabilities of the limited liability
company or to make reasonable provision to pay such claims and liabilities; or
(b) any
other facts pertinent to the existence and amount of assets from which
distributions to members or creditors might properly be paid.
27 Delegation
of rights and powers to manage
(1) Subject
to the LLC agreement, a member or manager of a limited liability company has
the power and authority to delegate to one or more other persons their rights
and powers to manage and control the business and affairs of the limited
liability company, including to delegate to agents, officers and employees of a
member or manager or the limited liability company, and to delegate by a
management agreement or another agreement with, or otherwise to, other persons.
(2) Subject
to the LLC agreement delegation by a member or manager under paragraph (1) –
(a) shall
be irrevocable if it states that it is irrevocable; and
(b) shall
not cause the member or manager to cease to be a member or manager, as the case may be, of the limited liability company or
cause the person to whom any such rights and powers have been delegated to be a
member or manager, as the case may be, of the limited liability company.
28 Resignation
of manager
(1) A
manager may resign as a manager of a limited liability company at the time or
upon the happening of events specified in the LLC agreement and in accordance
with the LLC agreement.
(2) An
LLC agreement may provide that a manager shall not have the right to resign as
a manager of a limited liability company.
(3) Notwithstanding
that an LLC agreement provides that a manager does not have the right to resign
as a manager of a limited liability company, a manager may resign as a manager
of a limited liability company at any time by giving written notice to the
members and other managers.
(4) If
the resignation of a manager contravenes the LLC agreement, in addition to any
remedies otherwise available under any other enactment a limited liability
company may recover from the resigning manager damages for breach of the LLC agreement
and offset the damages against the amount otherwise distributable to the
resigning manager.
PART 5
FINANCE
29 Form
of contribution
The contribution of a
member to a limited liability company may be in the form of cash, property or
services rendered, or an undertaking or other obligation to contribute cash or
property or to perform services.
30 Liability
for contribution
(1) Subject
to the LLC agreement, a member is liable to a limited liability company to
perform any promise to contribute cash or property or to perform services, even
if the member is unable to perform because of death, disability or any other
reason.
(2) If
a member does not make the required contribution of property or services, the
member is liable at the option of the limited liability company to contribute
cash equal to that portion of the agreed value (as stated in the records of the
limited liability company) of the contribution that has not been made.
(3) The
option to contribute cash under paragraph (2) shall be in addition to, and
not in lieu of, any other rights, including the right to specific performance,
that the limited liability company may have against such member pursuant to the
LLC agreement or applicable law.
(4) Subject
to the LLC agreement, any liability for, or obligation on, a member to make a
contribution under this Article or to return money or other property paid or
distributed in contravention of Part 6 may be compromised only with the
consent of all the members.[34]
(5) Notwithstanding
any such compromise under paragraph (4), a creditor of a limited liability
company who extends credit, after the entering into of an LLC agreement or an
amendment thereto which, in either case, reflects the obligation, and before
the amendment thereof to reflect the compromise, may enforce the original
obligation to the extent that, in extending credit, the creditor reasonably
relied on the obligation of a member to make a contribution or return.
(6) A
conditional obligation of a member to make a contribution or return money or
other property to a limited liability company may not be enforced unless the
conditions of the obligation have been satisfied or waived as to or by such
member.
(7) In
this Article “conditional obligation” includes a contribution
payable upon a discretionary call of a limited liability company prior to the
time the call occurs.
31 Allocation
of profit and losses
The profits and losses of a
limited liability company –
(a) shall
be allocated among the members, and among classes or groups of members, in the
manner provided in the LLC agreement; or
(b) if
the LLC agreement does not provide for the allocation as in paragraph (a),
profits and losses, shall be allocated on the basis of the agreed value (as
stated in the records of the limited liability company) of the contributions
made by each member to the extent they have been received by the limited
liability company and have not been returned.
32 Allocation
of distributions
Distributions of cash or
other assets of a limited liability company –
(a) shall
be allocated among the members, and among classes or groups of members, in the
manner provided in the LLC agreement; or
(b) if
the LLC agreement does not provide for the allocation as in paragraph (a),
distributions, shall be made on the basis of the agreed value (as stated in the
records of the limited liability company) of the contributions made by each
member to the extent they have been received by the limited liability company
and have not been returned.
PART 6
DISTRIBUTIONS
33 Payment
of distributions
(1) An
LLC agreement may provide for the distribution of the assets of the limited
liability company in such manner, time and form as provided therein, including
distributions in cash and in kind.
(2) An
LLC agreement may provide for the establishment of a record date with respect
to distributions by a limited liability company.
34 Distributions
upon resignation
Except as otherwise provided
in this Part, upon resignation any resigning member is entitled to receive any
distribution to which such member is entitled pursuant to the LLC agreement
and, if not otherwise provided in the LLC agreement, such member is entitled to
receive, within a reasonable time after resignation, the fair value of such
member’s LLC interest as of the date of resignation based upon such
member’s right to share in distributions from the limited liability
company.
35 Distribution
in kind
(1) Subject
to the LLC agreement, a member, regardless of the nature of the member’s
contribution, has no right to demand and receive any distribution from a
limited liability company in any form other than cash.
(2) Subject
to the LLC agreement, a member may only be compelled to accept the member’s
allocated percentage of a distribution of any asset in kind from a limited
liability company to its members, if that percentage is equal to the percentage
in which the member shares in distributions from the limited liability company.
36 Right
to distribution
Subject to Article 37,
any Regulations made under Article 60 and the LLC agreement, at the time a
member becomes entitled to receive a distribution, the member has the status
of, and is entitled to, all remedies available to a creditor of a limited
liability company with respect to the distribution.
37 Limitation
on distribution[35]
(1) A
limited liability company must not make a distribution to a member or release a
member from the performance of an obligation if the limited liability company
is insolvent or if the result of the distribution or release is that the
limited liability company becomes insolvent.[36]
(2) For
a period of 6 months from the date of receipt by a member of a
distribution or purported release from the performance of an obligation in
contravention of paragraph (1) or in the case of fraud, the member is liable to
the limited liability company for the amount of the distribution or for
performance of the obligation purportedly released.
(3) In
this Article, “distribution” does not include amounts constituting
reasonable compensation for present or past services or reasonable payments
made in the ordinary course of business under a bona fide retirement plan or
other benefits programme.
PART 7
ASSIGNMENT OF LLC INTEREST
38 Assignment
of LLC interest
(1) Subject
to the LLC agreement, an LLC interest is assignable in whole or in part.
(2) Notwithstanding
anything to the contrary under any other enactment, an LLC agreement may
provide that an LLC interest may not be assigned prior to the dissolution and
winding up of the limited liability company.
39 Assignee
right to participate in management of limited liability company[37]
The assignee of an LLC
interest (being a person not yet admitted as a member) has no right to
participate in the management of the business and affairs of a limited
liability company except as provided in the LLC agreement or otherwise upon the
vote or consent of all of the members of the limited liability company.
40 Assignee
right to exercise rights and powers of a member
Subject to the LLC agreement –
(a) an
assignment of an LLC interest does not entitle the assignee (being a person not
yet admitted as a member) to become or to exercise any rights or powers of a
member; but
(b) an
assignment of an LLC interest entitles the assignee to share in such profits
and losses, to receive such distribution or distributions, and to receive such
allocation of income, gain, loss, deduction, or credit or similar item to which
the assignor was entitled, to the extent assigned.
41 No
liability solely as a result of the assignment
Subject to this Law, the
LLC agreement and except to the extent assumed by agreement, until an assignee
of an LLC interest becomes a member, the assignee shall have no liability as a
member solely as a result of the assignment.
42 Ceasing
of rights of member on assignment
(1) Subject
to the LLC agreement, a member ceases to be a member and to have the power to
exercise any rights or powers of a member upon a person to whom the member has
assigned all of the member’s LLC interest becoming a member but the
granting of a security interest, or the creation of any other encumbrance in or
against, any or all of the LLC interest of a member shall not in itself cause
the member to cease to be a member or to have the power to exercise any rights
or powers of a member.
(2) Whether
or not an assignee of an LLC interest becomes a member, the assignor is not
released from liability to the limited liability company under Articles 30(1)
and 37(2).[38]
43 Right
of assignee to become a member
An assignee of all or part
of an LLC interest may become a member in respect of the assigned LLC
interest –
(a) if
permitted in the LLC agreement, in accordance with the terms of the LLC
agreement; or
(b) if
the LLC agreement is silent on such matters, with the approval of all of the
members of the limited liability company.
44 Rights,
powers and liabilities of assignee upon becoming a member
(1) An
assignee who has become a member has, to the extent assigned and transferred,
the rights and powers, and is subject to the restrictions and liabilities, of a
member contained in the LLC agreement, this Law and any other enactment.
(2) Notwithstanding
paragraph (1), unless otherwise provided in an LLC agreement, an assignee
that becomes a member in respect of all or part of an LLC interest –
(a) is
liable for the obligations of the assignor to make contributions as provided
for in Article 30 in respect of the LLC interest (or part thereof) so
transferred unless they were unknown to the assignee at the time the assignee
became a member and could not be ascertained from the LLC agreement; and
(b) is
not liable for any other obligations of the assignor with regard to
distributions.
45 Acquisition
by limited liability company of interest of member or manager
(1) Subject
to the LLC agreement, a limited liability company may acquire, by purchase,
redemption or otherwise, any LLC interest or other interest of a member or
manager in the limited liability company if immediately following the
acquisition, the LLC does not become insolvent.
(2) Notwithstanding
an acquisition referred to in paragraph (1), a limited liability company
may not become a member of itself and any such LLC interest so acquired by the
limited liability company shall be deemed cancelled.
PART 8
MISCELLANEOUS AND FINAL PROVISIONS
46 [39]
47 Fiduciary
and other duties owed and not owed
(1) A
manager owes a duty to the limited liability company to act in good faith in
respect of the rights, authorities and obligations that are exercised or
performed by the manager or to which the manager is subject in connection with
the management of the limited liability company. [40]
(1A) Subject
to the LLC agreement and to the duty referred to in paragraph (1), a
manager does not owe any duty (fiduciary or otherwise) to the limited liability
company or any member or other person in respect of the limited liability
company.[41]
(2) Subject
to this Law, the rights and duties of the members in a limited liability company
shall, as between themselves, be determined by the LLC agreement.
(3) Subject
to the LLC agreement, an act or omission of a manager that constitutes a breach
of a duty to act in good faith may be authorised or ratified if –
(a) all
the members of the limited liability company authorise or ratify the act or
omission; and
(b) after
the act or omission, the limited liability company will be able to discharge
its liabilities as they fall due.[42]
48 Appointment and functions of registrar
(1) The registrar of
companies appointed under Article 196 of the Companies (Jersey) Law 1991 shall be the registrar of
limited liability companies.
(2) The registrar shall
maintain a register of limited liability companies which shall contain any
declaration, return or statement, or copy of any such declaration, return or
statement, delivered to the registrar and the issue of any certificate by the
registrar pursuant to this Law.
(3) Any certificate issued
by the registrar under this Law shall be signed by the registrar and sealed
with the registrar’s seal (if any).
(4) The Commission may
direct a seal to be prepared for the authentication of documents required for
or in connection with the registration of limited liability companies.
(5) Any functions of the
registrar under this Law may, to the extent authorized by the registrar, be
exercised by an officer on the staff of the Commission.
(6) The registrar, on
application or of his or her own motion, if the registrar is satisfied that it
is necessary to do so, may remove from the register material that –
(a) derives
from anything invalid or ineffective or that was done without the authority of
the limited liability company; or
(b) is
inaccurate, or is derived from something that is inaccurate or forged.
(7) Before exercising the
power in paragraph (6), the registrar must publish his or her policy as to
applications made under this Law, including –
(a) who
may make an application;
(b) the
information to be included in and documents to accompany an application;
(c) the
notice to be given of an application and of its outcome;
(d) a
period in which objections to an application may be made;
(e) how
an application is to be determined; or
(f) the
appeal process that will apply in a case where a person is aggrieved by the
registrar’s decision to remove the material.
49 [43]
50 Fees,
charges and forms
(1) Subject to paragraph (2),
the Commission may require the payment to it of fees in respect of the performance
by the registrar of his or her functions under this Law or a charge for the
provision by the registrar of any service, advice, or assistance.
(2) A fee referred to in
under paragraph (1) is payable if it has been published and is in effect
in accordance with Article 15 of the Financial Services Commission
(Jersey) Law 1998.
(3) The Commission may in
addition to the payment of fees under paragraph (1), require –
(a) the
payment to it of fees in respect of the performance by the registrar of his or
her functions under this Law;
(b) the
payment of a fee for the provision by the registrar of –
(i) any service or
assistance, or
(ii) any
documents, or information; and
(c) the
payment of a late delivery fee if a copy of a document is not delivered to the
registrar and required by this Law, which shall be payable when the copy of the
document is delivered.
(4) Where a fee mentioned
in paragraph (1) is payable in respect of the performance of a function by
the registrar, the registrar does not need to take any action until the fee is
paid.
(5) Where the fee mentioned
in paragraph (1) is payable on the receipt by the registrar of a document
required to be delivered to the registrar, the registrar shall be taken not to
have received the document until the fee is paid.
(6) The Commission may
publish forms and other documents to be used for any of the purposes of this
Law, together with details of the manner in which any such document to be delivered
to the registrar is to be delivered or authenticated.
51 Form
of documents to be delivered to registrar
Where any Article of this Law requires a document to be delivered to
the registrar, but the form of the document has not been published, it shall be
sufficient compliance with that requirement if –
(a) the document is
delivered in a form and manner that are acceptable to the registrar; or
(b) any information to
which the requirement relates is delivered in material, other than a document,
that is acceptable to the registrar,
and the document or material, as the case may be, is accompanied by
the published fee, if any.
52 Inspection
and production of documents kept by registrar
(1) Subject to the
provisions of this Article, a person may –
(a) inspect
a document delivered to the registrar under this Law and kept by the registrar
or, if the registrar thinks fit, a copy thereof;
(b) require
a certificate of the registration of a declaration or copy, certified or
otherwise, of any other document or part of any other document referred to in
sub-paragraph (a),
and a certificate given under sub-paragraph (b) shall be signed
by the registrar and sealed with the registrar’s seal (if any).
(2) A copy of or extract
from a record kept by the registrar, certified in writing by the registrar
(whose official position it is unnecessary to prove) to be an accurate copy of
such record delivered to the registrar under this Law, shall in all legal
proceedings be admissible in evidence as of equal validity with the original
record and as evidence of any fact stated therein of which direct oral evidence
would be admissible.
(3) The registrar may
publish details of the times during which, and the manner by which, a document
may be inspected or issued under paragraph (1).
53 Destruction
of old records
(1) Where a limited
liability company has been dissolved, the registrar may, at any time after
10 years from the date of the dissolution, destroy any records relating to
that limited liability company in the registrar’s possession or under the
registrar’s control.
(2) After 10 years
from the dissolution of a limited liability
company no responsibility rests on a member, manager or a person to whom
custody of the records has been committed, by reason of any record not being forthcoming
to a person claiming to be interested in it.[44]
54 Form
of limited liability company’s records
(1) The records that a
limited liability company is required by this Law to keep may be kept in the
form of a bound or loose-leaf book, or photographic film, or may be entered or
recorded by a system of mechanical or electronic data processing or any other
information storage device that is capable of reproducing any required
information in intelligible written form within a reasonable time.
(2) A limited liability
company shall take reasonable precautions –
(a) to
prevent loss or destruction of;
(b) to
prevent falsification of entries in; and
(c) to
facilitate detection and correction of inaccuracies in,
the records required by this Law to be kept.
(3) Each manager of a
limited liability company shall take reasonable steps to ensure that the
limited liability company’s records are prepared and kept properly and
accurately and that, in particular, they contain entries of all sums of money
received and expended by the limited liability company, the matters in respect of
which the receipt and expenditure takes place and a record of the assets and liabilities
of the limited liability company in any other legal person or arrangement.
(4) A secretary must take reasonable
precautions –
(a) to
prevent loss or destruction of;
(b) to
prevent falsification of entries in; and
(c) to
facilitate detection and correction of inaccuracies in,
the records the secretary is required by Article 10(1) and (2)
to be kept.
(5) A person who ceases to
be the secretary of a limited liability company in accordance with Article 9(2)
must –
(a) retain
all the documents of the limited liability company kept by that person in
accordance with Article 10 and take the reasonable precautions described
in paragraphs (2)(a) and (b) as if the person were still the secretary
until such time as the person delivers those documents in accordance with sub-paragraph (b)
to the new secretary appointed under Article 9(4), or such other person as
may be specified in Regulations made under Article 58; and
(b) deliver
those documents to the new secretary appointed under Article 9(4) within
14 days of being notified of the name and address of the new secretary, or
to such other person as may be specified in Regulations under Article 60,
within such period as may be specified in those Regulations.
(6) A limited liability
company that fails to comply with paragraph (2), is guilty of an offence
and liable to a fine of level 3 on the standard scale.
(7) A manager who fails to
comply with the requirements of paragraph (3) shall be guilty of an
offence.
(8) A secretary who fails to
comply with the requirements of paragraph (4) shall be guilty of an
offence.
(9) A person who fails to
comply with the requirements of paragraph (5) shall be guilty of an
offence.
55 Registration
in the Public Registry
The Judicial Greffier shall register in the Public Registry all Acts
of Court and orders affecting immovable property made under this Law.
56 Offences of giving false
or misleading etc. information
(1) A person who makes a
statement in any document, material, evidence or information which is required
to be kept under Article 8(6) or to be delivered to the registrar under
this Law that, at the time and in the light of the circumstances under which it
is made, is false or misleading with respect to any material fact, or that
omits to state any material fact the omission of which makes the statement false
or misleading, shall be guilty of an offence.[45]
(2) A person shall not be
guilty of an offence under paragraph (1) if the person did not know that
the statement was false or misleading and with the exercise of reasonable
diligence could not have known that the statement was false or misleading.
(3) A person who carries on
a business under a name or title which includes the words “limited
liability company” or any contraction of those words when the person is
not registered as a limited liability company under this Law or otherwise
established as a limited liability company in another jurisdiction, shall be
guilty of an offence.
(4) A person who wilfully
takes or uses any name, title, addition or description implying that the person
is a member or manager in a limited liability company when the person is not,
or implying that a person is a member or manager in a body which is not a
limited liability company when the body is a limited liability company, shall
be guilty of an offence.
57 Criminal
liability of managers[46]
(1) Where an offence under
this Law committed by a limited liability company is proved to have been
committed with the consent or connivance of, or to be attributable to any
neglect on the part of a person who is a manager of the limited liability
company or any person purporting to act in any such capacity, the person is
also guilty of the offence and liable in the same manner as the limited
liability company to the penalty provided for that offence.
(2) Where the affairs of a
limited liability company are managed by its members, paragraph (1) applies in
relation to acts and defaults of a member in connection with the member’s
functions of management as if the member were a manager of the limited
liability company.
58 Limitation
of liability
(1) No person or body to
whom this Article applies shall be liable in damages for anything done or
omitted in the discharge or purported discharge of any functions under this Law
or any enactment made, or purportedly made, under this Law unless it is shown that
the act or omission was in bad faith.
(2) This Article applies
to –
(a) the
States;
(b) the
Minister or any person who is, or is acting as, an officer, employee or agent
in an administration of the States for which the Minister is assigned
responsibility;
(c) the
Commission, any Commissioner or any person who is, or is acting as, an officer,
servant or agent of the Commission; and
(d) the
registrar, the deputy registrar, an assistant registrar or any person who is,
or is acting as, an officer, employee or agent of the registrar.
(3) The limitation of
liability under this Article does not apply so as to prevent an award of
damages made in respect of an act on the ground that the act was unlawful as a
result of Article 7(1) of the Human Rights (Jersey) Law 2000.
59 Penalties
(1) The penalty for an
offence under Articles 5(3), 6(7), 7(13), 8(12), 9(5), 10(3) or 54(6),
(7), (8) or (9) shall be a fine not exceeding level 3 on the standard
scale.[47]
(2) The penalty for an
offence under Articles 56(1), (3) or (4) shall be a fine and
2 years imprisonment.
60 Regulations
(1) The States may by
Regulations make such other provision as the States think fit for the purposes
of carrying this Law into effect.
(2) Without prejudice to
the generality of paragraph (1), Regulations made under this Article may –
(a) create
offences, and specify penalties for such offences not exceeding imprisonment
for 2 years and a fine;
(b) provide
for mergers and demergers of limited liability companies;
(c) provide
for mergers of limited liability companies with bodies that are incorporated in
Jersey but are not limited liability companies;
(d) provide
for mergers of limited liability companies with bodies incorporated outside
Jersey;
(e) provide
for the continuation of limited liability companies in Jersey and outside
Jersey;
(f) provide
for the winding up and dissolution of solvent and insolvent limited liability
companies or a series established under Article 12;
(g) provide
for the disqualification of persons for office as members or managers,
secretaries or deputy secretaries of limited liability companies;
(h) provide
for the circumstances in which the duty to appoint a secretary ceases and the
duties of a secretary or former secretary in respect of keeping or delivery of
accounting records;
(i) provide
for the accounts and audit of limited liability companies;
(j) provide
for and apply in respect of limited liability companies, with or without
modifications –
(i) any provisions in
or made under the Companies (Jersey) Law 1991, or
(ii) any
provisions in or made under the Foundations (Jersey) Law 2009,
that apply, in respect of a company or foundation under either of
those Laws, to a matter to which paragraph (1) refers;
(k) make
such consequential, incidental, supplementary and transitional provision as may
appear to be necessary or expedient, including provision making amendments to
any other enactment as appear to the States to be expedient –
(i) for the general
purposes, or any particular purpose, of this Law,
(ii) in
consequence of any provision made by or under this Law.[48]
61 Orders
(1) The Minister may by
Order make provisions prescribing any matter which is to be prescribed under this
Law.
(2) An Order made under
this Law may contain such incidental provisions as the Minister may consider to
be necessary or expedient.
(3) The Minister shall
consult the Commission before making any Order under this Law.
62 Rules
of Court
The power to make Rules of Court under the Royal Court (Jersey) Law 1948 shall include a power to
make Rules for the purposes of this Law.
63 Citation and commencement
This Law may be cited as the Limited Liability Companies (Jersey)
Law 2018 and shall come into force on such day or days as the States may by Act appoint.