Control of
Borrowing (Jersey) Order 1958
Part A1[2]
Interpretation
A1 Meaning
of retail investor
In this Order, “retail investor” means a person who is
not –
(a) a
person whose ordinary activities involve the person in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes
of the person’s business or who it is reasonable to expect will acquire,
hold, arrange or dispose of investments (as principal or agent) for the
purposes of that business;
(b) a
person who is authorised to carry on fund services business or investment
business (within the meanings given in Article 1(1) of the Financial Services (Jersey) Law 1998), or a person who is
authorised in another jurisdiction to carry on materially equivalent services
by way of business;
(c) an
employee of a person referred to in paragraph (b) who is engaged in
carrying on fund services business or investment business if the employee is
sufficiently financially sophisticated that they understand and can evaluate
the risks of investment and, if the person referred to in paragraph (b)
is –
(i) a company, a director of that company;
(ii) a
partnership, a partner of that partnership;
(iii) a
limited liability company, a manager or member of that limited liability
company;
(d) a limited liability company, limited liability
partnership, company or other body corporate that is wholly owned by 1 or more
persons referred to in paragraph (b) or (c);
(e) a
limited partnership all the limited partners of which are, or a trust
established for the benefit only of, 1 or more persons referred to in
paragraph (b) or (c);
(f) any
other person who is a professional investor within the meaning given in paragraph 1 of Annex A of the Jersey Private
Fund Guide published by the Commission;
(g) an
eligible investor within the meaning given in the Jersey Private Fund Guide published
by the Commission;
(h) an
expert investor within the meaning given in the Jersey Expert Fund Guide
published by the Commission; or
(i) a person not falling within any of
sub-paragraphs (a) to (h) whose status, by virtue of their activities,
business, employment or otherwise, and whether or not outside Jersey, is
substantively equivalent to that of a person described in any of those
sub-paragraphs.
Part 1
1 External
body corporate raising money in Jersey by issue of shares[3]
(1) This Article applies
only to a body corporate not incorporated under the law of Jersey.
(2) Such body corporate
shall not, without the consent of the Commission, raise money in Jersey by the
issue anywhere of any of its shares.
(3) For the purposes of
this Article such body corporate raises money in Jersey only if the money is
made available in Jersey.
(4) Notwithstanding paragraph (2),
the consent of the Commission is not required to the raising of money in Jersey
by the issue of shares of such body corporate if, and so long as, on the most
recent date on which money is so raised the amount thereof, together with the
amount so raised during the period of 12 months ending on that date, does not
exceed £50,000 or its equivalent in a currency other than sterling.
(5) The reference in paragraph (4)
to the equivalent in a currency other than sterling of £50,000 is a
reference to such sum of money in the currency other than sterling as, on the
basis of the rate of exchange prevailing on the date or the respective dates of
issue of the shares, is equivalent to £50,000.
2 Admission
to membership of Jersey body corporate[4]
A body corporate (other than a limited liability company registered
as a body corporate) incorporated under the law of Jersey shall not, without
the consent of the Commission –
(a) for
any purpose issue any shares; or
(b) admit
any person to membership otherwise than by reason of the issue or transfer of
shares.
3 External
body corporate having shares registered in Jersey[5]
(1) A body corporate not
incorporated under the law of Jersey shall not, without the consent of the
Commission, for any purpose issue any shares which are or are to be registered
in Jersey.
(2) Notwithstanding paragraph (1),
the consent of the Commission to the issue of such shares is not required where
the number of persons in whose name shares are or are to be registered in
Jersey does not exceed 10 (joint holders being counted as one person).
4 Issue
of securities other than shares[6]
(1) A body corporate shall
not, without the consent of the Commission, for any purpose issue any
securities if either it is incorporated under the law of Jersey or the
securities are or are to be registered in Jersey.
(2) Notwithstanding paragraph (1),
the consent of the Commission to the issue of such securities is not required
where –
(a) the
body corporate –
(i) is
incorporated under the law of Jersey, the securities to be issued are not
bearer securities and the number of persons in whose names the securities are
or are to be registered does not exceed 10 (joint holders being counted as one person),
(ii) is
incorporated under the law of Jersey and the securities to be issued are bearer
securities which are not or are not capable of being held by more than 10
persons (joint holders being counted as one person),
(iii) is
not incorporated under the law of Jersey, the securities to be issued are not
bearer securities and the number of persons in whose names the securities are
or are to be registered in Jersey does not exceed 10 (joint holders being
counted as one person), or
(iv) is
not incorporated under the law of Jersey, the securities to be issued are
bearer securities which are or are to be registered in Jersey and are not or
are not capable of being held by more than 10 persons (joint holders being
counted as one person); or
(b) such
securities are issued by the body corporate for the sole purpose of securing
money borrowed by it, if the borrowing is in the ordinary course of its
business and is from a person carrying on a banking undertaking.[7]
(3) In this Article
“securities” does not include shares.
(4) This Article does not
apply to a limited liability company registered as a body corporate.[8]
4A Issue of securities other than LLC interests[9]
(1) A limited liability
company must not, without the consent of the Commission, for any purpose issue
any securities if either the limited liability company is registered under the
law of Jersey or the securities are or are to be registered in Jersey.
(2) Despite
paragraph (1), the consent of the Commission to the issue of securities is
not required where –
(a) the
limited liability company –
(i) is registered under the law of Jersey
and the number of persons in whose names the securities are or are to be
registered does not exceed 10 (joint holders being counted as one person), or
(ii) is
not registered under the law of Jersey and the number of persons in whose names
the securities are or are to be registered in Jersey does not exceed 10 (joint
holders being counted as one person); or
(b) the
securities are issued by the limited liability company for the sole purpose of
securing money borrowed by it, if the borrowing is in the ordinary course of
its business and is from a person carrying on a banking undertaking.
(3) In this Article
“securities” does not include LLC interests.
5 Continuance
of external body corporate in Jersey[10]
A
certificate of continuance under Article 127O of
the Companies (Jersey)
Law 1991 shall not be issued to a body corporate unless it has obtained the
consent of the Commission to keep in issue, on its continuance in Jersey, its
shares, debentures and other securities that are in issue at the time when it
applies for the certificate of continuance.
5A Continuance of external limited liability
company in Jersey[11]
A certificate of continuance under Regulation 92 of the Limited Liability Companies (General Provisions)
(Jersey) Regulations 2022 must not be issued to a
limited liability company unless it has obtained the consent of the Commission
to keep in issue, on its continuance in Jersey, its LLC interests, debentures
and other securities that are in issue at the time when it applies for the
certificate of continuance.
6 Grant
of options to employees[12]
(1) Nothing in this Order
shall require the consent of the Commission to the grant by a company, a
company connected with it or a relevant trustee of options to acquire or
dispose of securities of the first-mentioned company where the options are
granted to or for the benefit of –
(a) bona
fide employees or former employees of the company or of another company with
which it is connected;
(b) spouses,
civil partners, surviving spouses or surviving civil partners, of such
employees or former employees; or
(c) children
or step-children under the age of 20 years of such employees or former
employees.[13]
(2) In this Article –
(a) “company”
includes any body corporate (other than a limited
liability company registered as a body corporate); and
(b) “relevant
trustee” means a person holding securities of a company in trust for the
purpose mentioned in paragraph (1).[14]
(3) For the purposes of
this Article –
(a) a
company is connected with another company if that other company –
(i) is
the holding company of the first-mentioned company,
(ii) is
the subsidiary of the first-mentioned company,
(iii) is a
subsidiary of the holding company of the first-mentioned company, or
(iv) holds
an interest in the equity share capital of the first-mentioned company for the
purpose of securing a contribution to that company’s own activities by
the exercise of any control or influence arising from that interest;
(b) a
company is a subsidiary of another company and the other company its holding
company if that other company –
(i) holds
a majority of the voting rights in it,
(ii) is
a member of it and has the right to appoint or remove a majority of its board
of directors, or
(iii) is a
member of it and controls alone, pursuant to an agreement with other members, a
majority of the voting rights in it,
or if it is a subsidiary of a company which is itself a subsidiary
of that other company;
(c) where
a company is connected with another company by virtue of any provision of sub-paragraph (a)
it is also connected with any company with which that other company is
connected by virtue of any provision of the same sub-paragraph; and
(d) where
a company is connected with another company, that other company is connected
with the first-mentioned company.
7 [15]
8 Foreign
prospectuses[16]
(A1) This Article applies only in
respect of an offer for subscription, sale or exchange of securities or units
under a unit trust scheme if the offer –
(a) is
issued by a person that is not incorporated or established in Jersey; and
(b) is
circulated to retail investors in Jersey.[17]
(1) A person shall not,
without the consent of the Commission, circulate in Jersey any offer for
subscription, sale or exchange of any securities of any government, other than the
Government of the United Kingdom or the States of any of the Channel Islands,
unless such offer –
(a) does
not for the purposes of this Article constitute an offer to the public; or
(b) is
for the purposes of this Article valid in the United Kingdom or in the
Bailiwick of Guernsey.[18]
(2) A person shall not,
without the consent of the Commission, circulate in Jersey any offer for
subscription, sale or exchange of any securities of any body
corporate not incorporated under the law of Jersey unless –
(a) such
body corporate does not have a connection with Jersey which for the purposes of
this Article is a relevant connection; and
(b) such
offer –
(i) does
not for the purposes of this Article constitute an offer to the public, or
(ii) is
for the purposes of this Article valid in the United Kingdom or in the
Bailiwick of Guernsey and is, mutatis mutandis, circulated in Jersey only to persons similar to those to whom, and
in a manner similar to that in which, it is for the time being being circulated in the United Kingdom or in the Bailiwick
of Guernsey as the case may be.[19]
(3) A person shall not,
without the consent of the Commission, circulate in Jersey any offer for
subscription, sale or exchange of any units under a unit trust scheme not
governed by the law of Jersey unless such unit trust scheme is an unregulated
fund within the meaning of the Collective Investment Funds (Unregulated Funds)
(Jersey) Order 2008 or –
(a) such
unit trust scheme does not have a connection with Jersey which for the purposes
of this Article is a relevant connection; and
(b) such
offer –
(i) does
not for the purposes of this Article constitute an offer to the public, or
(ii) is
for the purposes of this Article valid in the United Kingdom or in the
Bailiwick of Guernsey and is, mutatis mutandis, circulated in Jersey only to persons similar to those to whom, and
in a manner similar to that in which, it is for the time being being circulated in the United Kingdom or in the Bailiwick
of Guernsey as the case may be.[20]
(4) For the purposes of
this Article –
(a) an
offer for subscription, sale or exchange of securities or units under a unit
trust scheme constitutes an offer to the public where the offer is not
addressed exclusively to a restricted circle of persons; and
(b) an
offer shall not be considered to be addressed exclusively to a restricted
circle of persons unless –
(i) the
offer is addressed to an identifiable category of persons to whom it is directly
communicated by the offeror or the offeror’s appointed agent,
(ii) the
members of that category are the only persons who may accept the offer and they
are in possession of sufficient information to be able to make a reasonable
evaluation of the offer, and
(iii) the
number of persons in Jersey to whom the offer is so communicated does not
exceed 50.
(5) For the purposes of
this Article an offer is valid in the United Kingdom if an identical offer is
for the time being being circulated in the United Kingdom
without contravening the Borrowing (Control and Guarantees) Act, 1946 of
the United Kingdom or the Financial Services Act 1986 of the United
Kingdom or the Companies Act 1985 of the United Kingdom or the equivalent
provisions in Northern Ireland.[21]
(6) For the purposes of
this Article an offer is valid in the Bailiwick of Guernsey if –
(a)
(i) it
relates to a collective investment scheme authorized under the Protection of
Investors (Bailiwick of Guernsey) Law 1987 and complies with the
requirements of that Law and any subordinate legislation made thereunder,
(ii) it
complies with the requirements of the Borrowing (Control) (Bailiwick of
Guernsey) Law 1947 and any subordinate legislation made thereunder, and
(iii) an
identical offer is for the time being being
circulated in the Bailiwick of Guernsey; or
(b)
(i) the
consent of the Finance and Advisory Committee of the States of Guernsey to the
raising of money by the issue of such securities or units of a unit trust
scheme has been granted under the Borrowing (Control) (Bailiwick of Guernsey)
Law 1947 or any subordinate legislation made thereunder and such consent
is in force,
(ii) an
identical offer is for the time being being
circulated in the Bailiwick of Guernsey, and either
(iii) the
securities referred to in clause (i) are
securities of a body corporate incorporated under the law of the Bailiwick of
Guernsey, or
(iv) the
unit trust scheme referred to in clause (i) is
governed by the law of the Bailiwick of Guernsey.[22]
(7) Where any circumstances
mentioned in paragraph (8) or (9) exist, such circumstances but no other
circumstances shall be deemed to amount to a connection with Jersey which for
the purposes of this Article is a relevant connection.
(8) In the case of any
offer for subscription, sale or exchange of securities of any
body corporate not incorporated under the law of Jersey, the
circumstances to which paragraph (7) has reference are as
follows –
(a) the
management or administration of such body corporate is wholly or partly carried
on in Jersey;
(b) control
of such body corporate is exercised in or from within Jersey;
(c) at
the time of such offer one or more of every 3 members of the board of directors
of such body corporate is resident in Jersey;
(d) such
body corporate has entered into, or is about to enter into, an agreement with a
person resident in Jersey material to such offer;
(e) a
business material to such offer is carried on directly or indirectly by such
body corporate in or from within Jersey;
(f) such
offer is an offer for exchange of securities of such body corporate for
securities of a body corporate incorporated under the law of Jersey;
(g) such
offer is an offer for exchange of securities of such body corporate for units
of a unit trust scheme if either the scheme is governed by the law of Jersey or
the units are or are to be registered in Jersey.
(9) In the case of any
offer for subscription, sale or exchange of units of a unit trust scheme not
governed by the law of Jersey, the circumstances to which paragraph (7)
has reference are as follows –
(a) any
person appointed or to be appointed as manager, administrator, distributor or
trustee of such scheme is a body corporate and any of the circumstances
referred to in paragraph (8) (a), (b), (c), (d) or (e) apply;
(b) such
an offer is an offer for exchange of units of such scheme for securities of a
body corporate incorporated under the law of Jersey;
(c) such
an offer is an offer for exchange of units of such scheme for units of another
unit trust scheme if either that other scheme is governed by the law of Jersey
or the units of that scheme are or are to be registered in Jersey.
9 Unit
trusts
(1) A person shall not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a unit trust scheme by the issue of any
unit under the scheme; or
(b) for any purpose issue any units under a unit trust scheme if
either the scheme is governed by the law of Jersey or the units are or are to
be registered in Jersey:
Provided that this paragraph shall not apply to the issue, or to the
raising of money by the issue, of any unit or sub-unit under a unit trust
scheme if the issue does not cause the total number of issued units or
sub-units to exceed the total number outstanding on 12th May 1941,
including units or sub-units which at the said date the trustees could be
required by the managers of the trust to issue.[23]
(2) For the purposes of
this Article a person raises money in Jersey only if the money is made
available in Jersey.[24]
Part 2
10 Partnerships
with limited partners[25]
(1) A person shall not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a limited partnership by the creation of
any partnership interest;
(b) for
any purpose create any interests under a limited partnership if either that
limited partnership is governed by the law of Jersey or the interests are or
are to be registered in Jersey; or
(c) circulate
to retail investors in Jersey an offer, which is
issued by a person that is not incorporated or established in Jersey, for
subscription, sale or exchange of any partnership interest created under any
limited partnership other than one to which paragraph (2) refers.[26]
(2) The limited
partnerships to which this paragraph refers are –
(a) a
limited partnership formed under the Limited Partnerships (Jersey) Law 1994;
(b) a
separate limited partnership formed under the Separate Limited Partnerships (Jersey)
Law 2011; and
(c) an
incorporated limited partnership formed under the Incorporated Limited Partnerships (Jersey)
Law 2011.
(3) For the purposes of
this Article, a person raises money in Jersey only if the money is made
available in Jersey.
(4) In this Article,
‘partnership interest’ means a partner’s share of the profits
and losses of a limited partnership and the right to receive distribution of
partnership assets and other benefits conferred by the partnership agreement.
11 Limited
liability partnerships[27]
(1) A person shall not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a limited liability partnership by the
creation of any partnership interest;
(b) for
any purpose create any partnership interests in a limited liability partnership
if either that limited liability partnership is governed by the law of Jersey
or the interests are or are to be registered in Jersey; or
(c) circulate
to retail investors in Jersey an offer, which is issued by a person that is not
incorporated or established in Jersey, for subscription, sale or exchange of
any partnership interest created under a limited liability partnership not
registered in accordance with the 2017 Law.[28]
(2) For the purposes of
this Article, a person raises money in Jersey only if the money is made
available in Jersey.
(3) In this Article –
“2017 Law” means
the Limited Liability
Partnerships (Jersey) Law 2017; and
“partnership interest”
has the same meaning as in the 2017 Law.[29]
11A Limited liability companies[30]
(1) A person must not,
without the consent of the Commission –
(a) raise
money in Jersey for the purposes of a limited liability company by the creation
of any LLC interest;
(b) for
any purpose create any LLC interest in a limited liability company if either
that limited liability company is governed by the law of Jersey or the
interests are or are to be registered in Jersey;
(c) circulate
to retail investors in Jersey an offer, which is issued by a person that is not
incorporated or established in Jersey, for subscription, sale or exchange of
any LLC interest created under a purported limited liability company not registered
in accordance with the Limited Liability Companies (Jersey)
Law 2018.[31]
(2) For the purposes of
this Article, a person raises money in Jersey only if the money is made
available in Jersey.
Part 3
12 Provisions
as to consent of Commission
(1) Any consent granted by
the Commission under this Order –
(a) may
be either general or special;
(b) may
be revoked by the Commission;
(c) may
be absolute or conditional; and
(d) may
be limited so as to expire at the end of a specified period unless renewed.
(2) Any consent granted by
the Minister[32] under the Control of
Borrowing Order 1956, shall have effect as if it had been granted under the
corresponding provision of this Order.
12A Fees[33]
The Commission may, in
accordance with Article 15 of the Financial
Services Commission (Jersey) Law 1998, publish fees that –
(a) shall
be payable by a person upon the application to the Commission for a grant of a
consent; and
(b) shall
be payable by the holder of a consent, at such intervals and upon the
occurrence of such events as the Commission may determine.
13 Definitions[34]
(1) In this Order, unless
the context otherwise requires –
“enactment” includes
an enactment of a legislature other than the States;[35]
“register”, in
relation to securities or units, includes a register of issued bearer
securities and bearer units and also includes any book in which securities or
units are registered;[36]
“registered”, in
relation to any security or unit, includes inscribed;
“registered in Jersey”
means, in relation to securities or units, registered in a register in Jersey;
“security”
includes shares, bonds, notes, debentures and debenture stock;
“unit” means, in
relation to a unit trust, any right or interest (described whether as a unit or
as a sub-unit or otherwise) which may be acquired under the scheme, being a
right or interest created or issued for the purpose of raising money for the
purposes of the scheme or a right or interest created or issued in substitution
(whether directly or indirectly) for any right or interest so created or
issued;
“unit trust scheme”
means any arrangements made for the purpose, or having the effect, of providing
facilities for the participation by persons, as beneficiaries under a trust, in
profits or income arising from the acquisition, holding, management or disposal
of securities or any other property whatsoever.
(2) Unless the contrary
intention appears, a reference in this Order to an enactment shall be construed
as a reference to that enactment as amended and to any enactment repealing and
re-enacting that enactment, with or without further amendment.[37]
14 Application
(1) This Order applies to
the borrowing or raising of money in pursuance of authority conferred by any law
passed by the States and confirmed by Order of Her Majesty in Council before
7th June 1947, being the date of registration of the Control of Borrowing (Jersey) Law 1947.[38]
(2) Nothing in this Order
shall apply to the transactions or acts of a company issuing units, within the
meaning of the Collective Investment Funds (Jersey) Law 1988 –
(a) which
holds a permit as a functionary specified in Group 1 of Part 2 of the
Schedule to that Law; or
(b) in
relation to which a certificate granted under Article 8B
of that Law is in force.[39]
(3) Nothing in this Order
shall apply to the transactions or acts of a unit trust or of a limited
partnership –
(a) that
is an unclassified fund within the meaning of the Collective Investment Funds (Jersey) Law 1988; and
(b) in
relation to which a certificate granted under Article 8B
of that Law is in force.[40]
(4) Nothing in this Order
requires a person to obtain consent under Article 1(2), 3(1),
9(1)(a) or (b), 10(1)(a) or (b), 11(1)(a) or (b) or 11A(1)(a) or (b) in relation to a
non-Jersey domiciled entity that is not an investment
fund.[41]
(5) Nothing in this Order
requires a person to obtain consent under
Article 9(1)(a) or (b) in relation to a Jersey unit trust scheme that is
not an investment fund.[42]
(6) In paragraphs (4)
and (5) and Article 14A(1), “investment
fund” means –
(a) a
collective investment fund (as defined in Article 3 of the Collective Investment Funds (Jersey)
Law 1988);
(b) a scheme
or arrangement that would be a collective investment fund were it not for the
offer of units in the scheme or arrangement not being an offer to the public under
Article 3(3) of the Collective Investment Funds (Jersey)
Law 1988; or
(c) a
scheme or arrangement not falling within sub-paragraph (a) or (b) the
status of which in its jurisdiction of domicile, by virtue of its activities,
business or otherwise, is substantively equivalent to that of a scheme or
arrangement described in any of those sub-paragraphs.[43]
14A Consents granted
before 13 April 2026[44]
(1) Paragraph (2)
applies if the Commission granted a person consent before 13 April
2026 –
(a) under
Article 1(2), 3(1), 9(1)(a) or (b), 10(1)(a) or (b), 11(1)(a) or (b) or 11A(1)(a) or (b) in relation to a non-Jersey domiciled
entity that is not an investment fund; or
(b) under
Article 9(1)(a) or (b) in relation to a Jersey unit trust scheme that is
not an investment fund.
(2) On and after 13 April
2026 –
(a) nothing
in this Order requires the person to continue to have the consent; and
(b) the
consent, including any condition attached to it, is treated as no longer having
effect.
(3) The amendment of this
Order by the Control of Borrowing (Jersey) Amendment Order 2026 (the “2026 Order”) does not affect the
validity of anything done in reliance on consent granted by the Commission
under this Order, or treated as granted by the Commission under this Order by
virtue of Article 12(2), before the 2026 Order came into force.
15 Citation
This Order may be cited as the Control of Borrowing (Jersey)
Order 1958.