Ian Watts  – providing legal services in Gibraltar since 2002

Introduction

Nowadays, the field of company law is largely dominated by statutory provisions which are continually being amended (especially in offshore jurisdictions) to reflect the challenges and changes that are imbued in this ever-evolving commercial world – Gibraltar is an international offshore centre of high repute, as a corollary of which, the local legislature has promulgated responsible company and financial services legislation to adapt to this process.

Gibraltar Financial Services

The overall supervisory watchdog of the local financial services market is the Financial Services Commission which, inter alia, by the Financial Services Act 2007, is entrusted with the duty of monitoring financial services business in Gibraltar and to take punitive action against those infringing financial services laws, including those engaged in financial crime[1].

Gibraltar Companies Act 2014

The principal statute on corporate law in Gibraltar is the Companies Act 2014 (‘the Act’) which replaced earlier Gibraltarian Acts of Parliament (formerly styled Órdinances[2]). The infrastructure of the Act is premised largely, but not entirely, on the modern English Companies Act. Despite successive local amendments to the former Ordinances, the progenitor (or grandparent) of the Act is nevertheless the English Companies Act 1929 (19 & 20 Geo.5.c.23).

Gibraltar & EU Company Law

In keeping with its EU Law obligations, the Gibraltar legislature furthermore has transposed into Gibraltar law via the Act, several European Framework Directives mainly to do with the financial accounting of companies. There is also transposed into the Act community law provisions contained in Directive 2014/95/EU which lays down rules on the disclosure of non-financial statements in the Annual Returns of large public-interest companies.

Incorporation of a Gibraltar Company

At its most basic level, the Act provides for the registration of companies in Gibraltar which takes place with depositing certain documentation (inter alia, the Memorandum & Articles of Association of a company) with the Registrar of Companies House, Gibraltar, together with payment of the requisite fees.

Many people avail themselves of the assistance of local professionals in company incorporation, but it is entirely possible for individuals to do this initial step themselves (note, that a Statement of Compliance that the incorporation procedure has complied in all material respects with the Companies Act needs to be delivered to the Registrar of Companies;  this must be signed by a practising lawyer in Gibraltar or a person named as director or secretary of the company in the Articles of Association). Here is the link to the Companies House, Gibraltar website (with information and forms for downloading): https://www.companieshouse.gi/. 

Separate Legal Personality Principle

Upon the incorporation of a Gibraltar Company, the newly-born juristic personality has bestowed upon it the benefits of the principle in Salomon v Salomon [1897] AC 22 – that is to say, the doctrine of separate corporate personality: however, despite the benefits of the doctrine, there are instances when the ‘çloak’ or ‘veil’ of incorporation can be lifted by the Gibraltar Courts in cases of sharp practice and abuse.

Types of Gibraltar Companies

There are three types of companies that can be registered under the Act: (a) a company limited by shares; (b) a company limited by guarantee; and (c) an unlimited company. Companies may be either private or public.

Outline of Companies Act 2014

The Act creates a fairly comprehensive framework for companies registered in Gibraltar – it is neatly divided into 18 parts – to summarise its bare-bones:

• Part I – is an introductory section distinguishing, inter alia, between limited and unlimited companies, as well as ‘public’ and ‘private’ companies.
• Part II – deals with, inter alia, the formation of companies; the requirements as to registration of companies and notifications to the Registrar of Companies in the case of companies that are a Collective Investment Scheme licensed, authorised or otherwise regulated by the Financial Services (Collective Investments Schemes) Act 2011.
• Part III – deals with alteration of companies such as the conversion from a private limited company to a public one, including the de-regulation of a private limited company to a limited liability partnership (an LLP). Part III also makes for provision for contracts entered into by Gibraltar companies.
• Part IV – inter alia, deals with company prospectuses; the rules of redemption or purchase of shares in the case of private limited companies; powers to issue shares at a discount; rules relating to the reduction of share capital; variation of shareholder rights; petitions for unfair prejudice and the transfer of shares.
• Part V – deals with, inter alia, the registration of charges over a company, with the Registrar of Companies House, with special rules relating to debentures.
• Part VI – deals with matters akin to management and administration of companies, the filing of Annual Returns, provisions as to general meetings and derivative actions or claims in cases of errant of delinquent directors.
• Part VII- deals, inter alia, with accounting and auditing requirements, directors’ and auditors’ reports, parent and subsidiary undertakings, preparation of ‘Group Accounts’, reconstructions and amalgamations, the division of companies and furthermore, there are provisions on mergers and acquisitions.
• Part VIII – deals with, inter alia, company arrangements and reconstructions, mergers (including mergers and division of public companies).
• Part IX – inter alia, deals with the distribution of profits and assets with provisions relating to insurance and investment companies.
• Part X – deals with the dissolution of companies by the placing of a company into liquidation. In essence, it deals with the position regarding voluntary liquidations – inter alia, there are savings for the application of the provisions of the Insolvency Act 2011 in the case of voluntary liquidations where a company is insolvent, powers of the voluntary liquidator, it lays down offences that may be committed during the course of a winding-up as well as provisions relating to the striking off of Gibraltar Companies.
• Part XI – deals with, inter alia, general provisions as the Registrar of Companies House, and general documentation to be submitted to the Registrar.
• Part XII – deals with overseas companies carrying on business in Gibraltar.
• Part XIII – deals with the re-domiciliation of foreign companies into Gibraltar.
• Part XIV – deals with branch disclosure provisions pertaining to companies incorporated outside the United Kingdom and Gibraltar, with a branch in Gibraltar.
• Part XV – deals with the changes in the registration scheme of overseas companies having a place of business in Gibraltar.
• Part XVII – deals with the restrictions on the sale or offering of shares in Gibraltar of foreign corporations (with provisions on exceptions to this).
• Part XVIII – creates, inter alia, miscellaneous offences under the Act, with penalties thereof. It also deals with the service of documents on Gibraltar Companies.

For the full text of the Act, here’s the link: http://www.gibraltarlaws.gov.gi/articles/2014-19o.pdf

Protected Cell Companies & Companies dealing in Insurance

Although the main statute is the Companies Act 2014, Gibraltar, like other offshore jurisdictions, has legislation in place on Protected Cell Companies (PCC’s): Protected Cell Companies Act 2001. There is also legislation enacted in relation to special types of companies dealing in the insurance business, see: Financial Services (Insurance Companies) Act 2009.

Further Information

For further information on Gibraltar Companies, please contact Ian Watts.

©Ian Watts, Barrister-at-Law, 2017-2023. All Rights Reserved.

[1] Financial Services Legislation is legion in Gibraltar: however, the focus on the present article is on the Companies Act 2014 & Gibraltar Partnership Law. For further information on Gibraltar financial services, see this link to the FSC Website: http://www.fsc.gi/

[2] By s.33(5) of the Gibraltar Constitution Order 2006, all statutory laws passed by the Gibraltar Parliament are known as ‘’Acts’’ (previously styled Ordinances).