Gibraltar

FIRST SUPPLEMENT TO THE GIBRALTAR

GAZETTE

No. 2,542 of 8th MARCH, 1990.

I ASSENT, DEREK REFFELL GOVERNOR.

8th March, 1990.

GIBRALTAR.

No. 12 of 1990.

AN ORDINANCE to amend the Bankruptcy Ordinance.

ENACTED by the Legislature of Gibraltar.

Title and commencement. 1. (1) This ordinance may be cited as the Bankruptcy (Amendment) Ordinance, 1990.

12 of 1990. Bankruptcy (Amendment) Ordinance, 1990.

(2) This Ordinance shall come into effect on such day as the Governor by notice in the Gazette shall appoint and different days may be so appointed for different purposes. New Section.

2. The Bankruptcy Ordinance is amended by inserting after Section 42 the following new section --

42A. (I) If:

(a) under or by virtue of any disposition made in respect of property the same becomes settled property; and

(b) the Settlor is an individual; and

(c) the Settlor is not insolvent at the date of the disposition;

(d) does not become insolvent in consequence thereof; and

(e) the disposition is registered in accordance with the requirements of any regulations, such disposition shall not be voidable at the instance of or upon application by any creditor of the Settlor.

Provided that this section shall apply only to dispositions made on or after a day to be specified by the Governor by notice in the Gazette.

(2) Without prejudice to the generality of the provisions contained in the preceding sub-section:

(a) notwithstanding the English Law (Application) Ordinance, the Fraudulent Conveyances Act 1571 shall not apply to any disposition to which this section applies;

(b) section 42 of the Ordinance shall not apply to any settlement to which, but for this proviso, it would have applied and which is a disposition falling within the provisions of subsection (1) of this section.

(3) For the purpose of this section:

(a) ''disposition'' means any disposition or series thereof, howsoever effected, and (without prejudice to the generality thereof) includes any transaction, gift, grant or transfer of property of any nature whatsoever;

(b) ''insolvent'' means in respect of a Settlor, any Settlor whose liabilities, both actual and contingent or prospective, exceed the value of his assets,

Provided that no claim by creditors shall be deemed to be a contingent or prospective liability of a Settlor who at the time of making the disposition does not have actual notice of such a claim or of the facts or circumstances which may render him liable to such a claim;

(c) ''settled property'' means any property held in or upon trust ,other than any property held by any person as nominee for another person, or as trustee for any other person who is absolutely entitled to the beneficial interest in such property;

(d) ''the Settlor'', in relation to any settled property, includes the maker of any disposition of property which in consequence thereof becomes settled property.''.

Passed by the Gibraltar House of Assembly on the 16th day of February, 1990.

C. M. COOM,
Clerk to the Assembly.

FIRST SUPPLEMENT TO THE GIBRALTAR

GAZETTE

No. 2,556 of 14th JUNE, 1990.

I ASSENT, DEREK REFFELL GOVERNOR.

14th June, 1990.

GIBRALTAR.

No. 30 of 1990 .

AN ORDINANCE to amend the Bankruptcy Ordinance.

ENACTED by the Legislature of Gibraltar.

Title.

1. This Ordinance may be cited as the Bankruptcy (Amendment)

(No. 2) Ordinance 1990.

Amendment to Section 42A.

2. Section 42A of the Bankruptcy Ordinance is amended by inserting a new subsection in the following terms --

''(4) The Financial and Development Secretary may by regulation make provision for the establishment of a register (''the register'') of dispositions to which subsection (1) applies, for all matters incidental to the maintenance of such a register, and, without prejudice to the generality of the foregoing, such regulations may include

(a) the appointment of a person to keep the register;

(b) the conditions (if any) to be satisfied before a disposition may be entered in the register;

(c) the information to be provided in respect of a disposition before it may be entered in the register;

(d) the fees and periodical fees payable in respect of entries in the register and matters related thereto;

(e) the circumstances in which an entry may be removed from the register;

(f) any obligations of the persons appointed under paragraph (a) in respect of secrecy in relation to entries in the register;

(g) provisions that any contravention of any regulation made under this subsection shall be a summary offence punishable by imprisonment for a term not exceeding three months or a fine not exceeding @@3131,000, or both, on conviction for any such offence.''.

Passed by the Gibraltar House of Assembly on the 30th day of May, 1990.

C. M. COOM
Clerk to the Assembly.

BANKRUPTCY (REGISTER OF DISPOSITIONS)

REGULATION 1990

Legal Notice No 158 of 1990

In exercise of the powers conferred on me by section 42A(4) of the Bankruptcy Ordinance, and of all other enabling powers, 1 make the following Regulations --

Title and commencement

1. These Regulations may be cited as the Bankruptcy (Register of Dispositions) Regulations, 1990, and shall take effect on the 1st day of December, 1990.

Interpretation

2. In these Regulations, unless the context otherwise requires ''forms of enquiry'' means the tests applied by the trustee to establish the solvency of the settlor; ''Register'' means the Register established under Regulation 3 and ''register'' and ''registration'' shall have corresponding meanings; ''Registrar'' means the Registrar appointed under Regulation 3; ''trustee'' means a company with a permanent place of business in Gibraltar and authorised by the Commissioner to act as a trustee.

Establishment of Register

3. (1) The Financial and Development Secretary, or such person as he shall have appointed to carry out the duties of Financial and Development Secretary under these Regulations, shall establish a Register of dispositions and shall appoint a person as Registrar to keep that Register.

(2) There shall be entered on the Register the information specified in Schedule 1 in relation to any disposition which the Registrar is satisfied may be registered therein in accordance with these Regulations or which the Financial and Development Secretary directs in accordance with Regulation 5 (5) shall be registered.

(3) The Registrar shall maintain the Register and shall inform the Financial and Development Secretary of --

(a) the registration of any disposition;

(b) the removal from the Register of the registration of a disposition;

(c) the failure by a trustee to submit the annual or other notification in relation to any disposition required by Regulation 6.

Trustees

4. The Registrar shall register a disposition only where the trustee of that disposition Baking the application to register --

(a) is the sole corporate trustee of the disposition;

(b) is judged by the Financial and Development Secretary to have adequate financial and administrative resources to act as trustees --

(i) in relation to that disposition; and

(ii) in relation to that and any other disposition registered by that trustee;

(c) has obtained the prior written approval of the Financial and Development Secretary of the forms of enquiry administered to the settlor;

(d) has a level of professional indemnity insurance considered adequate by the Financial and Development Secretary in relation to the value of the business it undertakes as trustee, and in any case of not less than @@3131,000,000.

Registration

5. (1) An application to register a disposition shall be made to the Registrar by the trustee of that disposition.

(2) An application to register a disposition shall --

(a) specify --

(i) the name and address of the trustee;

(ii) the name of the disposition;

(iii) the date of making of the disposition and the duration thereof;

(iv) the country of ordinary residence of the settlor;

(b) include undertakings from the trustee making the application that

(i) the settlor has to the satisfaction of the trustee completed the forms of enquiry administered by the trustee;

(ii) the trustee has completed all reasonable enquiries based on the information available on public record necessary to substantiate the information provided by the settlor in the forms of enquiry;

(iii) the trustee has obtained an affidavit of the settlor confirming that the settlor is not insolvent;

(iv) the trustee satisfies the requirements of Regulation 4;

(c) be accompanied by the fee prescribed by Regulation 7 which fee shall not be refundable;

(d) be in the form prescribed by Schedule 2.

(3) where the Registrar registers a disposition, he shall supply to the trustee by whom the application to register the disposition was made --

(a) a copy of the application endorsed with the serial number allocated to that disposition in the Register; and

(b) a copy of the entry in the Register in respect of that disposition.

(4) In the event that the Registrar shall refuse to register a disposition the trustee by whom the application to register the disposition was made may refer the matter to the Financial and Development Secretary who shall consider the application.

(5) If in the opinion of the Financial and Development Secretary any application referred to him by virtue of subregulation (4) satisfies the requirements of these Regulations he may require that the disposition be registered.

Annual and other notifications

6. The trustee of a disposition registered under regulation 3 shell --

(a) at annual intervals after the date of registration, and within 28 days of the anniversary of the date of registration, either

(i) notify the Registrar that none of the matters specified in Regulation 5(2)(a) have changed; or

(ii) provide to the Registrar detail of any changes which have taken place in the matters specified in Regulation 5(2)(a), and shall pay to the Registrar the fee prescribed by Regulation 7;

(b) within 28 days of being so requested in writing provide to the Financial and Development Secretary information in relation to such disposition as the Financial and Development Secretary may require.

Fees

7. The fee prescribed in respect of an application for registration of a disposition and in respect of annual notification in accordance with Regulation 6(a) is @@313300 and @@313100 respectively and shall be paid to the Registrar. Termination of registration

8. The registration of a disposition under these Regulations shall terminate -

(a) if the trustee by whom the application for registration was made ceases to be a trustee of the disposition: Provided that the registration may continue if such trustee shall have been replaced by a trustee satisfying the requirements of regulation 4 and such change shall have been notified to the Registrar and approved by the Financial and Development Secretary;

(b) if the trustee creases to satisfy the requirements of regulation 4;

(c) if the trustee indicates it wishes to withdraw from the undertakings referred to in regulation 5(2)(b);

(d) if notifications required under regulation 6 have not been received by the due date;

Provided that the Registrar may in his absolute discretion reinstate a registration where notification has been received after the due date and upon payment of twice the fee prescribed by Regulation 7;

(e) on termination or expiration of the disposition;

(f) if the trustee by whom the application for registration was made applies to the Registrar for the termination of the registration; and in that event the trustee shall return to the Registrar the endorsed application and the Registrar shall strike out the entry in the Register in relation to that disposition.

Secrecy

9. (1) Subject to the provisions of this Regulation, the Financial and Development Secretary and every person having any official duty in the administration of these Regulations shall regard and deal with all documents, information and declarations relating to dispositions in respect of which application for registration is made or which are or have been registered or in respect of which annual or other notifications are made under the provisions of these Regulations as secret and confidential.

(2) A person having possession of or control over any document, information or declaration relating to such a disposition as is mentioned in subregulation (1) who at any time communicates or attempts to communicate such information or anything contained in any such document or declaration to any person otherwise and for the purposes of these Regulations or the Income Tax Ordinance or the Estate Duties ordinance or for the purposes of any criminal or civil proceedings in which such document, information or declaration is material is guilty of an offence and is liable on summary conviction to a fine of 1,000 lira.

(3) No person employed in carrying out the provisions of these Regulations shall be required to produce in any court or before any authority or person for any purpose whatsoever any document or declaration in his possession in pursuance of these Regulations or to divulge or communicate to any court any matter or thing coming to his notice in the performance of his duties under these Regulations except as may be necessary for the purpose of carrying into effect the provisions of these Regulations or for the purposes of any criminal or civil proceedings in which such document, declaration, matter or thing is material.

Penalties for incorrect information

10. A person who without reasonable excuse gives any incorrect information, such information being required of him for the purpose of obtaining registration of a disposition or otherwise carrying these Regulations into effect, is guilty of an of fence and is liable on summary conviction to a fine of 1,000 lira or to three months imprisonment or both.

Schedule 1

Regulation 3(1)

Information to be entered on the register

There shall be entered on the Register by the Registrar the information specified below in respect of each disposition registered.

1. Name of trustee.

2. Address of the permanent place of business in Gibraltar of the Trustee.

3. Name of the Disposition.

4. Serial Number of Disposition in the Register.

5. The date of making of the disposition.

6. The duration of the disposition.

7. The country of ordinary residence of the Settlor.

8. Confirmation that the requirements of 5(2)(b) of the Regulations have been met to the satisfaction of the Registrar.

9. Confirmation that the Registration Fee has been paid.

Schedule 2

Regulation 5(2)(d )

Application for registration of a disposition Bankruptcy (Register of Disposition) Regulations 1990

Application form for registration of a disposition

1. Serial Number: (to be completed by the Registrar).

2. Particulars of Disposition --

Name:

Date of making:

Duration:

3. Country of ordinary residence of Settlor:

4. Particulars of Trustee --

Name:

Address of permanent place of business in Gibraltar:

Telephone Number:

It is hereby certified that:

(a) the settlor has satisfactorily completed forms of enquiry;

(b) all reasonable enquiries to substantiate from public records the information provided by the settlor in the forms of enquiry have been completed;

(c) the trustee has obtained an affidavit of the settlor of the disposition named in this Application Form to the effect that the settlor is not insolvent;

(d) the trustee satisfies the requirements of Regulation 4 of the Regulations.

For: .............................. (Trustees)
.............................. (position)

(a) This form must be completed in duplicate and signed on behalf of the Trustee by the Senior Executive Officer of the Trustee or his Deputy.

(b) This form must be accompanied by the fee prescribed in the Regulations.

TRUSTS (RECOGNITION) ORDINANCE 1989

No. 16 of 1989

An ordinance to make Law of Gibraltar relating to Trusts accord with the provisions of the Convention of the Law applicable to Trusts and their Recognition.

Enacted by the Legislature of Gibraltar.

Short title and commencement

1. This Ordinance may be cited as the Trusts (Recognition) Ordinance 1989 and shall come into operation on such day as the Governor may by notice published in the Gazette appoint.

The Crown to be bound

2. This Ordinance shall bind the Crown.

Application of Convention

3. (1) The provisions of the Convention on the Law applicable to trusts and on their Recognition agreed at The Hague on 20 October 1984, set out in the Schedule hereto, shall have the force of law in Gibraltar.

(2) Those provisions shall, so far as applicable, have effect not only in relation to the trusts described in Articles 2 and 3 of the Convention but also in relation to any other trusts of property arising under the law of Gibraltar or by virtue of a judicial decision whether in Gibraltar or elsewhere.

(3) In accordance with Articles 15 and 16 such provisions of the law as are therein mentioned shall, to the extent therein specified, apply to the exclusion of the other provisions of the Convention.

(4) In Article 17 the reference to a State includes a reference to any country or territory (whether or not a party to the Convention) which has it own system of law.

(5) Article 22 shall not be construed as affecting the law to be applied in relation to anything done or omitted before the coming into operation of this Ordinance.

Schedule

Section 3

Convention of the law applicable to trusts and on their recognition

THE CONVENTION IS REPRODUCED IN FULL IN WORKSHEET 7

Passed by the Gibraltar House of Assembly on the I st day of August, 1989.

C. M. Coom,
Clerk to the Assembly