Bermuda Case Law & Legislation

Land tax payments scrutinized on newly built properties… This civil case has been ongoing for several years concerning the owners (“the Banks”) and their property named “Gatewood” in Paget. The Banks disputed the annual rental value (“ARV”) which was allocated to their newly built home by the Land Valuation department. The two contentious point of law in this case were:

Bermuda is Britain’s oldest overseas territory and the Privy Council in London is the final Court of Appeal from Decisions of the Court of Appeal in Bermuda. Further, the Supreme Court and Appeal Court of Bermuda are bound by decisions of the Privy Council in cases from all jurisdictions where the Privy Council is the final appellate court. It therefore pays to keep a close watch on Privy Council judgments. For example a judgment was recently delivered by Lord Neuberger on 23rd July, 2013 following a hearing in the case of Antigua Power Company Limited v The Attorney General of Antigua and Barbuda and others (285 KB PDF) [2013] UKPC 23 in which he delivered a withering attack on the Eastern Caribbean Court of Appeal for its delay in handling the first appeal.

Fozeia Rana-Fahy
There has been a significant increase in contentious and non-contentious trust matters arising from family disputes in relation to Bermuda trusts. Most often these involve wealthy international dynastic families or family corporations. The type of matters we see before the Bermuda Courts include applications for variation of trusts or sanctions of a compromise between the trustees and various classes of beneficiary and/or the consent of the court on behalf of minor beneficiaries; applications for directions eg. relating to disclosure or distribution of assets; applications to remove trustees for breach of their duties or recovery assets allegedly lost as a result of breach of the trustees’ duties; and applications to set aside the whole trust on the grounds of fraud, undue influence or the uncertainty and failure of the trust objects.

Jeremy Leese
Recent statutory amendments, introduced by the Companies Amendment Act 2013, mean that Bermuda companies listed on appointed stock exchanges are no longer required to file prospectuses in Bermuda. Previously, a Bermuda company listed on an appointed stock exchange (which covers many of the world’s major stock exchanges) had to file with the Registrar of Companies in Bermuda a copy, signed by or on behalf of all directors of the company, of any prospectus that had to be filed under the rules of that stock exchange (or pursuant to the rules of the relevant regulator in such jurisdiction). The legislation now in effect abolishes the requirement to also file such prospectus in Bermuda.

Andrew A. Martin
It has been widely reported that the Prime Minister of the UK, David Cameron, will call upon the British Overseas Territories (BOTs) which are regarded as low tax jurisdictions to “get their houses in order” (The Daily Mail, 5 June 2013) and that offshore financial centres such as Bermuda, Cayman, BVI, Jersey and Guernsey will be urged to “sign up to greater tax transparency” (Royal Gazette, 6 June 2013). Bermuda has always defended its status as a low tax jurisdiction, and has always made it clear that it is not a tax haven, nor a place where the fruits of tax evasion can be harboured. It is relevant to recall the efforts that Bermuda has made over the last 30 years to justify its claim to being a leading offshore financial centre, not a tax haven.

In my earlier post Bermuda Calling: Telecommunications Reform & Investment Opportunity, I described how telecommunications in Bermuda is undergoing root and branch reform with a view to not only making the industry more competitive but more attractive to investors. The overhaul in telecommunications, following extensive consultation with stakeholders, is embodied in two key pieces of legislation, the Regulatory Authority Act 2011 and the Electronic Communications Act 2011, both of which have become the twin foundation of Bermudian Regulatory Reform in the Telecommunications sector. Now, an update: On the 18th March 2013, Digicel issued an initial complaint to the Regulatory Authority stating that North Rock is providing bundling services and should not be doing so until Integrated Communication Operating Licenses (ICOLs) are issued. The complaint was a result of the examination of North Rock’s advertising material and flyers and their marketing campaign entitled “Blazing Bundles”.

Jennifer Haworth
Bermuda’s new One Bermuda Alliance Government has scrapped the “Measures to Inhibit Long-Term Residency” policy, more commonly known as the term limit policy, and undertaken a review of the Islands’ work permit policy, all with a view to encouraging economic growth and job opportunities for Bermudians. The initial announcement came on 30 January 2013 from Home Affairs Minister Michael Fahy who called the term limit policy a “barrier to job creation”. Government has also sought to reassure Bermudians that doing away with term limits will not negatively impact their job opportunities given that the work permit policy remains in place. Bermuda’s work permit policy requires that when the renewal of a guest worker’s permit is sought, the position must be advertised giving qualified Bermudians an opportunity to apply. In addition, Government indicated that it sought legal advice to reaffirm advice already received by the previous Progressive Labour Party Government which confirmed that the term limit policy is not necessary to prevent long term residency.