05 July 2022
Bermuda: A jurisdiction that resolves trust issues
The world abounds with distrust and problems that are threatening globalisation and economies – arising from (among other things) the war in Ukraine, COVID-19, climate change, terrorism, corruption and disinformation spread through social media. Many governments’ coffers have been considerably depleted by the impact of these crises and attempts to address them.
In the meantime, many individuals and families with significant wealth have seen their fortunes grow considerably despite these crises. In this environment, misassumptions may readily run rife. So called ‘offshore financial services centres’ are often targeted by the media, civil society bodies and international bodies such as the OECD and the EU as being part of the problem: believed to be depriving governments of tax revenue that governments may properly apply for wider parts of society, hiding funds that have been laundered or intend to be used by terrorists.
Many governments, whether alone or through international institutions such as the OECD and the EU, have sought to implement global measures, whether they be sanctions or disclosure and reporting regimes (such as FATCA, the CRS, beneficial ownership registers and economic substance requirements) with the view of addressing their concerns. Uncommon forms of taxation (such as wealth taxes, minimum income tax rates on the wealthy and a global corporations' tax) are being seriously considered by many governments and international bodies and in some jurisdictions, have been implemented.
However, misassumptions can result in generalisations and policies that have unintended consequences. For example, disproportionate disclosure regimes may not only be inefficient and fail to address the perceived concerns but also may deprive law abiding citizens of their legitimate rights to privacy. They also may provide autocratic and corrupt regimes with poor human rights records extensive information regarding private individuals and their property. Corrupt governments may be less likely than wealthy philanthropists to apply resources to benefit wider parts of society. Imposing global tax regimes on all jurisdictions may impose a system of taxation and related infrastructure that is expensive to implement and may be damaging or simply a mismatch given the nature of the jurisdiction's economy and demographics.
Despite this world of distrust and misassumptions, Bermuda has continually demonstrated that it is not part of a problem but, to the contrary, a jurisdiction that is mindful of the constructive role it can and does play in the global economy.
Bermuda remains a preferred jurisdiction in which to establish and maintain trusts (and increasingly, family offices). Bermuda's Courts and regulatory regime carefully balance privacy with the objective of maintaining appropriate regulation to preserve Bermuda's stellar reputation as a premier international finance services jurisdiction.
An important feature of Bermuda trust law is that it contains many provisions that can resolve problems or otherwise address concerns regarding the administration of trusts. This feature is supplemented by Bermuda Courts, willingness to apply these provisions in a constructive manner. These and other qualities attract many high net worth families to establish trusts under Bermuda law or (indeed) to change the governing law of trusts to that of Bermuda.
From the perspective of trust administration, notably:
- Section 47 of the Trustee Act 1975 confers upon the Court the power to grant trustees powers to enter into any transaction not authorised under the trust's terms without requiring the consent of all adult beneficiaries provided the Court determines that it is expedient to do so. The Bermuda Court has consistently applied section 47 to grant trustees powers to vary, not only administrative provisions, beneficial interests under a trust.
- Section 4 of the Perpetuities Act 2009 provides the Court a specific streamlined jurisdiction to extend or disapply a perpetuity period of a trust provided the Court determines it expedient to do so. Since 1st August 2009, Bermuda trusts may be established without a perpetuity period, except that Bermuda land may only be held in trust for a maximum of 100 years.
- Section 47A of the Trustee Act (also known as "statutory Hastings Bass") provides the Court the power to set aside a flawed exercise of a fiduciary power if the Court determines that the power holder exercised the fiduciary power without properly considering all material relevant considerations and would have otherwise exercised the power differently, at another time or not at all.
- Bermuda Courts readily grant confidentiality orders (prevent public access to court proceedings and files and anonymising Court lists and judgements) in respect of proceedings concerning the internal administration of trusts, thereby protecting the legitimate interests of families to maintain their privacy.
- Bermuda's laws regarding beneficial ownership registers required for companies, partnerships and limited liability companies, reflect that such registers do not serve as a de facto trust register where there is a trust in such entity's ownership structure.
- Queens Counsel are readily granted access to appear before Bermuda Courts, thereby ensuring that families are able to be represented by the best advocates in the world in Bermuda Courts.
The Big 4 accountancy practices have offices in Bermuda, as do a number of major law firms and licensed trustees and corporate service providers with offices in other international financial services centres. These businesses are staffed with quality employees whether from Bermuda itself or expatriates living and working in Bermuda.
Bermuda is not a so-called ‘brass plaque jurisdiction’ and never has been. The island's modern infrastructure, robust legal system (with a committee of the Privy Council in London being the final appellate Court) and other qualities, provides many of the advantages of a larger ‘onshore’ jurisdiction.
Alongside London, New York and Zurich, Bermuda is one of the key reinsurance hubs in the world, a leader in both the property and casualty reinsurance and insurance captive markets. Many head or key strategic offices of these businesses are situated in Bermuda and the size of buildings in Bermuda's capital Hamilton from which these businesses staff operate and the sophistication of the infrastructure in Bermuda that facilitates the conduct of these businesses are testament to Bermuda's substance. Nevertheless, Bermuda has implemented legislation complying with international initiatives that require certain entities (corporations, partnerships and limited liability companies) to comply with economic substance requires in respect of the ‘relevant activities’ they carry out.
Bermuda's regulators have for decades required owners of companies to provide beneficial ownership information before they may be formed. Bermuda has long maintained and enforced anti-money laundering and anti-terrorist financing legislation to deter, prevent and detect the use of Bermuda entities for unsavoury activities. Bermuda has also implemented international initiatives for companies, limited liability companies and partnerships to maintain and file beneficial ownership information, such information which is not presently accessible by the public.
Bermuda – which combines a beautiful island with a strategic and convenient location and extensive direct air connectivity – is a jurisdiction that resolves trust issues. Watch this space for further initiatives being developed in Bermuda to attract family offices and high net worth families to the jurisdiction and businesses that wish to effectively maintain economic, social, governance ethos in their operations.
An original version of this article was first published by Bermuda Business Review 2022-2023.