Jersey coat of arms

Sanctions and Asset-Freezing (Amendment No. 2) (Jersey) Law 2022

Article

1                 Amendment of the Sanctions and Asset-Freezing (Jersey) Law 2019. 3

2                 Article 1 (interpretation) amended. 3

3                 Article 2 (meaning of “financial services”, “funds”, “economic resources” and related expressions) amended. 4

4                 Article 2A (meaning of “owned”, “held”, “controlled”, “directly” and “indirectly”) and Schedule 2 (rules for interpretation of Article 2A) inserted. 4

5                 Article 3 (implementation of UK and EU sanctions provisions through Orders) amended   6

6                 Article 5 (general provisions Orders) amended. 7

7                 Article 15 (exceptions) amended. 7

8                 Article 16 (licences) amended. 8

9                 Article 18 (meaning of “terrorism” and related terms) amended. 8

10              Article 19 (designation by virtue of UK, EU or UN listing related to terrorism) amended   10

11              Article 20 (power of Minister to make interim terrorism designation) amended   10

12              Article 22 (power of Minister to make final terrorism designation) amended   10

13              Article 29 (interim designation of UN-listed person when UNSCR is implemented by UK or EU) amended   11

14              Article 32 (reporting obligations of relevant financial institutions and statutory authorities) amended   11

15              Article 36 (general power to disclose information) amended. 11

16              Article 37A (publication of procedures and memorandum of understanding) inserted   11

17              Article 43A (requests for assistance with UN de-listing) inserted. 12

18              Articles 45A (request from or to another country for terrorism designation) and 45B (request to UN for terrorism designation) inserted. 12

19              Article 46A (civil immunity) inserted. 13

20              Article 48 (savings, transitional and consequential provisions) amended. 14

21              Citation and commencement. 14

Schedule 2 added to Law    15

 


Jersey coat of arms

Sanctions and Asset-Freezing (Amendment No. 2) (Jersey) Law 2022

Adopted by the States                                                                      27th April 2022

Sanctioned by Order of Her Majesty in Council                       11th May 2022

Registered by the Royal Court                                                        13th May 2022

Coming into force                                                    in accordance with Article 21

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1        Amendment of the Sanctions and Asset-Freezing (Jersey) Law 2019

This Law amends the Sanctions and Asset-Freezing (Jersey) Law 2019.

2        Article 1 (interpretation) amended

In Article 1 –

(a)     in paragraph (1), after the definition “EU sanctions provision” there is inserted –

“ “FATF” means the international body known as the Financial Action Task Force;”;

(b)     in paragraph (1), in the definition “UK sanctions provision”, “, subject to paragraph (5),” is deleted;

(c)     for paragraph (2) there is substituted –

“(2)    In relation to a reference to an enactment of the UK or EU in this Law, or in an Order under this Law, unless otherwise provided –

(a)     Article 9(3) of the Interpretation (Jersey) Law 1954 applies to that reference as it applies to a reference to a Law; and

(b)     Article 6 of the Legislation (Jersey) Law 2021 applies in relation to that enactment of the UK or EU, and to any enactment of the UK or EU that repeals that enactment, as it applies in relation to Jersey legislation.”;

(d)     in paragraph (3) after “Order under this Law” there is inserted “, and a reference to an offence includes a reference to an offence under Article 1 of the Criminal Offences (Jersey) Law 2009 in relation to that offence”;

(e)     paragraphs (5) and (6) are deleted.

3        Article 2 (meaning of “financial services”, “funds”, “economic resources” and related expressions) amended

In Article 2 –

(a)     paragraphs (5), (6) and (7) are deleted;

(b)     for paragraph (8) there is substituted –

“(8)    The Minister may, by Order, amend this Article to make alternative or supplementary provision as to the meaning of “financial services”, “funds”, “economic resources” and related expressions used in Part 3 (including expressions that are also used elsewhere) if the Minister is satisfied that it is appropriate to do so to give effect to any enactment of the UK, to any UN sanctions resolution or to any standard promoted by FATF or by any other international body.”.

4        Article 2A (meaning of “owned”, “held”, “controlled”, “directly” and “indirectly”) and Schedule 2 (rules for interpretation of Article 2A) inserted

(1)     After Article 2 there is inserted –

“2A   Meaning of “owned”, “held”, “controlled”, “directly” and “indirectly”

(1)     A reference in this Law to an account, funds or economic resources “owned, held or controlled” by a person includes a reference to –

(a)     an account, funds or economic resources owned, held or controlled directly or indirectly by that person;

(b)     an account, funds or economic resources in which the person has any legal or equitable interest, regardless of whether the interest is held jointly with any other person and regardless of whether any other person holds an interest in the account, funds or economic resources;

(c)     any tangible property (other than immovable property), or bearer security, that is comprised in funds or economic resources and is in the possession of the person.

(2)     The fact that funds or economic resources are owned, held or controlled by a person (“P”) jointly with another person or otherwise does not prevent those funds being treated as being owned, held or controlled by P for the purposes of this Law (regardless of whether P is a designated person).

(3)     A reference in this Law to an account, funds or economic resources (an “item”) being owned, held or controlled “indirectly” by a person (“P”) includes a reference to the item being owned, held or controlled by another person (“T”), who is an individual, if –

(a)     T acts in relation to the item as the employee, agent or nominee of P, at the direction of P or otherwise on behalf of P; or

(b)     by virtue of any other arrangement (as defined in Schedule 2) between T and P, it is reasonable to believe that T will act in relation to the item –

(i)      in accordance with P’s directions or instructions, or

(ii)      with P’s consent or concurrence.

(4)     In this Law, a person who is not an individual (“C”) is owned, held or controlled “directly or indirectly” by another person (“P”) if any or all of the following conditions are met.

(5)     The first condition is that P is –

(a)     the holding body of C, as defined by Article 2 of the Companies (Jersey) Law 1991, but disregarding the requirement of that Article for P to be a body corporate; or

(b)     the beneficial owner of C, as defined by Article 2 of the Financial Services (Disclosure and Provision of Information) (Jersey) Law 2020, but disregarding the requirement of that Article for C to be an entity.

(6)     The second condition is that P –

(a)     holds directly or indirectly more than 50% of the shares in C;

(b)     holds directly or indirectly more than 50% of the voting rights in C; or

(c)     holds the right directly or indirectly to appoint or remove a majority of the board of directors of C.

(7)     The third condition is that it is reasonable, having regard to all the circumstances, to expect that P would (if P chose to) be able, in most cases or in significant respects, by whatever means and, whether directly or indirectly, to achieve the result that affairs of C are conducted in accordance with P’s wishes.

(8)     Schedule 2 contains provision applying for the purpose of interpreting paragraph (6).

(9)     For the purposes of this Law a relevant item is also owned, held or controlled “directly or indirectly” by a person (“P”) if the relevant item is owned, held or controlled by another person who is owned, held or controlled directly or indirectly by P, or by a chain of such other persons.

(10)    In paragraph (9) “relevant item” means –

(a)     an account, funds or economic resources; or

(b)     a person who is not an individual.

(11)    The Minister may, by Order, amend this Article and Schedule 2 to make alternative or supplementary provision as to the meaning of “owned”, “held”, “controlled”, “directly”, “indirectly” and related expressions used in Part 3 (including expressions that are also used elsewhere) if the Minister is satisfied that it is appropriate to do so to give effect to any enactment of the UK, to any UN sanctions resolution or to any standard promoted by FATF or by any other international body.”.

(2)     The Schedule to the Law is renumbered as Schedule 1 and the Schedule 2, contained in the Schedule to this Law, is inserted after the re-numbered Schedule 1.

(3)     Accordingly –

(a)     in the definition “special counsel” in Article 1(1) for “the Schedule” there is substituted “Schedule 1”;

(b)     in Article 42(1) for “The Schedule” there is substituted “Schedule 1”;

(c)     in Article 42(2) for “the Schedule” there is substituted “Schedule 1”.

5        Article 3 (implementation of UK and EU sanctions provisions through Orders) amended

In Article 3 –

(a)     for paragraph (4)(c) there is substituted –

“(c)    provide that a person is a designated person for the purpose of Part 3 if the person is –

(i)      a person against whom a prohibition is imposed by the EU sanctions provision for a purpose falling within paragraph (6), or

(ii)      a UK financial sanctions target, within the meaning of paragraph (7);”;

(b)     in paragraph (5) for “under paragraph (1) does not include” there is substituted “under paragraph (1) includes an amendment of any enactment other than this Law or the Human Rights (Jersey) Law 2000, but does not include”;

(c)     in paragraph (6) for “mentioned in paragraph (4)(c) are” there is substituted “mentioned in paragraph (4)(c)(i) are”;

(d)     after paragraph (6) there is inserted –

“(7)    For the purpose of paragraph (4)(c)(ii) a person is a “UK financial sanctions target” if –

(a)     a UK sanctions provision imposes financial sanctions; and

(b)     the person is designated (whether by name, description or otherwise, and under whatever procedure) under that provision, or under another UK sanctions provision in relation to that provision.

(8)     In paragraph (7) “imposes financial sanctions” and “designated” have the same meanings as they have in Part 1 of the Sanctions and Anti-Money Laundering Act 2018 of the UK.

(9)     If an Order makes provision described in paragraph (4)(c)(ii) in relation to a UK sanctions provision, the Order may provide, for the purpose of any of the prohibitions in Part 3 –

(a)     that a UK exception provision has effect –

(i)      as an exception under Article 15(3A) to that prohibition in Part 3, or

(ii)      as a ground for the grant of a licence under Article 16(3A)(b) in relation to that prohibition in Part 3; and

(b)     that a UK licence provision has effect as a ground on which the Minister may grant a licence under Article 16(3A)(b) in relation to that prohibition in Part 3.

(10)    For the purpose of paragraph (9) –

(a)     a “UK exception provision” is an exception, in the UK sanctions provision, to a prohibition in the UK sanctions provision corresponding to the prohibition in Part 3;

(b)     a “UK licence provision” is a power or duty, in the UK sanctions provision, to grant a licence in relation to a prohibition in the UK sanctions provision corresponding to the prohibition in Part 3;

(c)     a UK exception provision or UK licence provision may be given effect with or without adaptations and modifications under paragraph (4)(b);

(d)     a UK exception provision may be given effect subject to a condition, which may include a condition as to giving information to the Minister before or after relying on the exception; and

(e)     an Order imposing a condition under sub-paragraph (d) may provide –

(i)      that the exception does not apply unless the condition is met, or

(ii)      that Article 15(5) applies to a failure to comply with the condition.

(11)    Paragraphs (9) and (10) do not limit paragraph (1) or (4).”.

6        Article 5 (general provisions Orders) amended

After Article 5(4) there is inserted –

“(5)    Nothing in this Article prevents an Order under Article 3(1) that implements more than one UK sanctions provision from combining provisions that could otherwise be separated between a general provisions Order and a number of separate special Orders.”.

7        Article 15 (exceptions) amended

In Article 15 –

(a)     after paragraph (3) there is inserted –

“(3A) An act does not contravene a provision of this Part in relation to a designated person if –

(a)     an Order under Article 3(9)(a)(i) gives effect to an exception in relation to that designated person and to that provision;

(b)     the conditions, if any, specified in that Order for that purpose are met; and

(c)     the exception applies to the act.”;

(b)     in paragraph (4) for “with a payment referred to in paragraph (1)(b)” there is substituted “as described in paragraph (1)”.

8        Article 16 (licences) amended

After Article 16(3) there is inserted –

“(3A) In deciding whether to grant or refuse a licence, and whether to impose conditions, the Minister –

(a)     must seek to ensure that the grant of a licence will not lead to –

(i)      a UN sanctions resolution being contravened, or

(ii)      the purpose of the person’s designation being frustrated; and

(b)     may rely on a ground given effect by an Order under Article 3(9)(a)(ii) or (b).”.

9        Article 18 (meaning of “terrorism” and related terms) amended

In Article 18 –

(a)     in paragraph (1)(a) for “ “terrorism” has the same meaning” there is substituted “ “terrorism”, “act of terrorism” and “terrorist entity” have the same meanings”;

(b)     paragraph (1)(b) is deleted;

(c)     after paragraph (1) there is inserted –

“(1A) In this Part “involved person” means a person who –

(a)     is or has been involved in terrorist activity;

(b)     is owned or controlled (directly or indirectly) by a terrorist entity or by a person who is or has been involved in terrorist activity;

(c)     is acting on behalf of or at the direction of a terrorist entity or a person who is or has been involved in terrorist activity; or

(d)     is a member of, or has pledged allegiance in any way to or is otherwise associated with, a terrorist entity or a person who is or has been involved in terrorist activity.

(1B)   A reference in this Part to being involved in an activity includes being involved in whatever way and wherever any act constituting the involvement takes place.

(1C)   In this Article “terrorist activity” means –

(a)     engaging in, or being responsible or providing support for, the commission, preparation or instigation of an act of terrorism;

(b)     facilitating, promoting or encouraging terrorism;

(c)     providing or receiving training for the purpose of terrorism;

(d)     travelling or attempting to travel from or into the British Islands for the purpose of terrorism;

(e)     recruiting for terrorism;

(f)      soliciting funds, or otherwise procuring funds, for the purpose of financing the travel of a person recruited for terrorism;

(g)     organising, providing support for or otherwise facilitating the travel of a person recruited for terrorism;

(h)     being responsible for a coercive action against a person on behalf of, or in the name of, a terrorist entity or a person who is involved in an activity mentioned in any of sub-paragraphs (a) to (d);

(i)      supporting or assisting another person, knowing or believing that other person to be a terrorist entity or to be involved in an activity mentioned in any of sub-paragraphs (a) to (f);

(j)      providing financial services, or making available funds or economic resources, for the purpose of terrorism or for an activity mentioned in any of sub-paragraphs (a) to (h); or

(k)     being involved in assisting the contravention or circumvention of –

(i)      Part 3 in relation to a person designated under this Part, or

(ii)      a provision of the law of a country or territory other than Jersey that corresponds to a provision of Part 3 in relation to terrorism or in relation to a power corresponding to any of the powers in this Part.

(1D)   In paragraph (1C)(e) to (g) “recruiting for terrorism” means soliciting another person (who is “recruited for terrorism” whether the soliciting is successful or not) to –

(a)     become a member of a person, other than an individual, involved in an activity mentioned in any of sub-paragraphs (a) to (d) of that paragraph; or

(b)     participate in an act by, in conjunction with, in the name of, on behalf of or in support of, a person involved in an activity mentioned in any of those sub-paragraphs (a) to (d).

(1E)   In paragraph (1C)(h) –

(a)     “being responsible for” includes engaging in, being complicit in, providing support for, or promoting; and

(b)     “coercive action” means abduction, enslavement, forced marriage, rape or sexual violence.

(1F)   Nothing in any sub-paragraph of paragraph (1C) limits the meaning of any of the other sub-paragraphs of that paragraph.

(1G)   For the purpose of any provision requiring a suspicion that a person is an involved person, nothing in this Article is to be read as requiring that the person who has the suspicion is aware of any criminal proceedings.”.

10      Article 19 (designation by virtue of UK, EU or UN listing related to terrorism) amended

In Article 19 –

(a)     paragraph (1)(aa) is deleted;

(b)     paragraph (1)(b) is deleted;

(c)     paragraph (1)(c)(iii) is deleted;

(d)     for paragraph (4)(a) there is substituted –

“(a)    provide that a particular person falling within paragraph (1)(a), but not within paragraph (1)(c), is not a designated person for the purpose of this Law if the Minister is satisfied that the person –

(i)      is resident in, or established in, Jersey, and

(ii)      is not a person who could be designated by the Minister under Article 20 or 22; or”;

(e)     paragraph (4)(b)(ii) is deleted;

(f)      in paragraph (4)(b)(iii) for “(1)(c)(i), (ii) or (iii)” there is substituted “(1)(c)(i) or (ii)”.

11      Article 20 (power of Minister to make interim terrorism designation) amended

For Article 20(2) there is substituted –

“(2)    The Minister may make an interim terrorism designation of a person if –

(a)     the Minister reasonably suspects that the person is an involved person; and

(b)     the Minister considers that it is appropriate that financial restrictions should be applied in relation to the person for purposes connected with –

(i)      protecting members of the public (whether in Jersey or elsewhere) from terrorism,

(ii)      preventing terrorism (whether in Jersey or elsewhere), or

(iii)     otherwise complying with resolution 1373 (2001) of the UN Security Council.”.

12      Article 22 (power of Minister to make final terrorism designation) amended

For Article 22(2) there is substituted –

“(2)    The Minister may make a final terrorism designation of a person if –

(a)     the Minister reasonably believes that the person is an involved person; and

(b)     the Minister considers that it is appropriate that financial restrictions should be applied in relation to the person for purposes connected with –

(i)      protecting members of the public (whether in Jersey or elsewhere) from terrorism,

(ii)      preventing terrorism (whether in Jersey or elsewhere), or

(iii)     otherwise complying with resolution 1373 (2001) of the UN Security Council.”.

13      Article 29 (interim designation of UN-listed person when UNSCR is implemented by UK or EU) amended

(1)     Article 29(2)(a) is deleted.

(2)     Accordingly Article 40(1)(g) is deleted.

14      Article 32 (reporting obligations of relevant financial institutions and statutory authorities) amended

In Article 32(1)(b)(ii) for “has committed” there is substituted “has committed, is committing or intends to commit”.

15      Article 36 (general power to disclose information) amended

In Article 36(1)(j) after “under a UN sanctions resolution” there is inserted “or in connection with a function under Article 43A, 45A or 45B or otherwise for the purpose of countering terrorism”.

16      Article 37A (publication of procedures and memorandum of understanding) inserted

After Article 37 there is inserted –

“37A Publication of procedures and memorandum of understanding

(1)     The Minister must publish a statement of the Minister’s procedures for the performance of the Minister’s functions under Articles 43A, 45A and 45B.

(2)     The first statement for each of those Articles must be published no later than the end of 2022, and the Minister must publish any subsequent change to the statement.

(3)     The Minister must seek to agree a memorandum of understanding with Her Majesty’s Government in the UK as to the coordination of the performance of the Minister’s functions under Articles 43A, 45A and 45B with the performance of the equivalent functions of that Government.

(4)     The Minister must publish the memorandum of understanding, if any, agreed from time to time under paragraph (3).”.

17      Article 43A (requests for assistance with UN de-listing) inserted

After Article 43 there is inserted –

(a)     is from a UN-listed person who is a designated person;

(b)     is for the Minister to request Her Majesty’s Government in the UK to use its best endeavours to secure that the person ceases to be a UN-listed person; and

(c)     it does not fall within paragraph (3).

(3)     A request falls within this paragraph if –

(a)     the designated UN-listed person has made a previous request under this Article or under section 25 of the Sanctions and Anti-Money Laundering Act 2018 of the UK; and

(b)     the grounds on which the current request is made do not include a significant matter that has not previously been considered by the Minister or by Her Majesty’s Government in the UK.”.

18      Articles 45A (request from or to another country for terrorism designation) and 45B (request to UN for terrorism designation) inserted

After Article 45 there is inserted –

(a)     consult the financial intelligence unit established under Article 41B of the Proceeds of Crime (Jersey) Law 1999;

(b)     make a decision as to whether it appears appropriate to designate the person under Part 4; and

(c)     inform the overseas country of the decision.

(3)     Paragraph (4) applies if the Minister makes a request to an overseas country for that overseas country to take a measure that corresponds to designation under Part 4.

(4)     The Minister must give to the overseas country –

(a)     a reason for the request; and

(b)     any information that the Minister is able to disclose to support the request.

45B   Request to UN for terrorism designation

(1)     This Article applies if the Minister reasonably believes that a person, who is not a UN-listed person, should be a UN-listed person in relation to, or should otherwise be subject to measures under, any one or more of the following (the “relevant resolution”) –

(a)     any of the UN Security Council resolutions mentioned in Article 19(1)(c);

(b)     UN Security Council resolution 1373 (2001);

(c)     any other UN sanctions resolution, as adopted from time to time, that states that its purposes include countering terrorism.

(2)     The Minister must request Her Majesty’s Government in the UK to use its best endeavours to secure that the person becomes a UN-listed person under the relevant resolution.

(3)     For the purpose of paragraph (1), in considering whether a person should be a UN-listed person, the Minister must in particular –

(a)     have regard to any designation criterion or procedure established by any organ of the United Nations for the purpose of the relevant resolution;

(b)     have regard to any recommendation adopted by FATF in relation to the relevant resolution; and

(c)     consult the financial intelligence unit established under Article 41B of the Proceeds of Crime (Jersey) Law 1999.

(4)     When making a request under paragraph (2), the Minister must give to Her Majesty’s Government in the UK –

(a)     the reason for the request; and

(b)     any information that the Minister is able to disclose to support the request.

(5)     Paragraph (2) applies –

(a)     whether or not any criminal proceedings have been taken against the person; and

(b)     whether or not the Minister decides to designate the person under this Law.”.

19      Article 46A (civil immunity) inserted

After Article 46 there is inserted –

“46A Civil immunity

(1)     A person is not liable to any civil proceedings to which that person would, in the absence of this Article, have been liable in respect of an act, if at the time of the act the person reasonably believed that the act was necessary to comply with an obligation or prohibition imposed –

(a)     by this Law;

(b)     by an enactment under this Law; or

(c)     by a direction or other instruction given under this Law or under an enactment under this Law.

(2)     Nothing in paragraph (1) limits any other ground on which, in the absence of this Article, the person may claim not to be liable for an act.”.

20      Article 48 (savings, transitional and consequential provisions) amended

In Article 48, paragraphs (1) and (2) are deleted.

21      Citation and commencement

This Law may be cited as the Sanctions and Asset-Freezing (Amendment No. 2) (Jersey) Law 2022 and comes into force on a day to be specified by the Minister by Order.

 


SCHEDULE

(Article 4(2))

Schedule 2 added to Law

“SCHEDULE 2

(Article 2A(8))

Rules for Interpretation of Article 2A(6)

1        Application of Schedule 2

(1)     The rules set out in the following paragraphs of this Schedule apply for the purpose of interpreting Article 2A(6).

(2)     They also apply –

(a)     for the purpose of interpreting this Schedule; and

(b)     as mentioned in Article 2A(3)(b).

2        Joint interests

If 2 or more persons each hold a share or right jointly, each of them is treated as holding that share or right.

3        Joint arrangements

(1)     If shares or rights held by a person and shares or rights held by another person are the subject of a joint arrangement between those persons, each of them is treated as holding the combined shares or rights of both of them.

(2)     A “joint arrangement” is an arrangement between the holders of shares or rights that they will exercise all or substantially all the rights conferred by their respective shares or rights jointly in a way that is pre-determined by the arrangement.

(3)     “Arrangement” has the meaning given by paragraph 12.

4        Calculating shareholdings

(1)     In relation to a person who has a share capital, a reference to holding “more than 50% of the shares” in that person is to holding shares comprised in the issued share capital of that person of a nominal value exceeding (in aggregate) 50% of that share capital.

(2)     In relation to a person who does not have a share capital –

(a)     a reference to holding shares in that person is to holding a right or rights to share in the capital or, as the case may be, profits of that person; and

(b)     a reference to holding “more than 50% of the shares” in that person is to holding a right or rights to share in more than 50% of the capital or, as the case may be, profits of that person.

5        Voting rights

(1)     A reference to the voting rights in a person is to the rights conferred on shareholders in respect of their shares (or, in the case of a person not having a share capital, on members) to vote at general meetings of the person on all or substantially all matters.

(2)     In relation to a person that does not have general meetings at which matters are decided by the exercise of voting rights –

(a)     a reference to holding voting rights in the person is to be read as a reference to holding rights in relation to the person that are equivalent to those of a person entitled to exercise voting rights in a company; and

(b)     a reference to holding “more than 50% of the voting rights” in the person is to be read as a reference to holding the right under the constitution of the person to block changes to the overall policy of the person or to the terms of its constitution.

6        Rights held by person itself

In applying Article 2A(6) and this Schedule, the voting rights in a person are to be reduced by any rights held by the person itself.

7        Rights to appoint or remove members of the board

A reference to the right to appoint or remove a majority of the board of directors of a person is to the right to appoint or remove directors holding a majority of the voting rights at meetings of the board on all or substantially all matters.

8        Board of directors

A reference to a board of directors, in the case of a person who does not have such a board, is to be read as a reference to the equivalent management body of that person.

9        Shares or rights held “indirectly”

(1)     A person holds a share “indirectly” if the person has a majority stake in another person and that other person –

(a)     holds the share in question; or

(b)     is part of a chain of persons –

(i)      each of whom (other than the last) has a majority stake in the person immediately below it in the chain, and

(ii)      the last of whom holds the share.

(2)     A person holds a right “indirectly” if the person has a majority stake in another person and that other person –

(a)     holds that right; or

(b)     is part of a chain of persons –

(i)      each of whom (other than the last) has a majority stake in the person immediately below it in the chain, and

(ii)      the last of whom holds that right.

(3)     For these purposes, a person (“A”) has a “majority stake” in another person (“B”) if –

(a)     A holds a majority of the voting rights in B;

(b)     A is a member of B and has the right to appoint or remove a majority of the board of directors of B;

(c)     A is a member of B and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in B; or

(d)     A has the right to exercise, or actually exercises, dominant influence or control over B.

(4)     In the application of this paragraph to the right to appoint or remove a majority of the board of directors, a person (“A”) is to be treated as having the right to appoint a director if –

(a)     any person’s appointment as director follows necessarily from that person’s appointment as director of A; or

(b)     the directorship is held by A itself.

10      Shares held by nominees

A share held by a person as nominee for another is to be treated as held by the other (and not by the nominee).

11      Rights treated as held by person who controls their exercise

(1)     Where a person controls a right, the right is to be treated as held by that person (and not by the person who in fact holds the right, unless that person also controls it).

(2)     A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only –

(a)     by that person;

(b)     in accordance with that person’s directions or instructions; or

(c)     with that person’s consent or concurrence.

12      “Arrangement”

“Arrangement” includes –

(a)     any scheme, agreement or understanding, whether or not it is legally enforceable; and

(b)     any convention, custom or practice of any kind.

13      Rights exercisable only in certain circumstances

(1)     Rights that are exercisable only in certain circumstances are to be taken into account only –

(a)     when the circumstances have arisen, and for so long as they continue to obtain; or

(b)     when the circumstances are within the control of the person having the rights.

(2)     But rights that are exercisable by an administrator or by creditors while a person is subject to relevant insolvency proceedings are not to be taken into account while the person is subject to those proceedings.

(3)     “Relevant insolvency proceedings” means –

(a)     proceedings for bankruptcy;

(b)     proceedings under the insolvency law of another country or territory during which a person’s assets and affairs are subject to the control or supervision of a third party or creditor.

(4)     Rights that are normally exercisable but are temporarily incapable of exercise are to continue to be taken into account.

14      Rights attached to shares held by way of security

Rights attached to shares held by way of security provided by a person are to be treated for the purposes of this Schedule as held by that person –

(a)     where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with that person’s instructions; and

(b)     where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in that person’s interests.”.


Page Last Updated: 13 May 2022