Private Trust Companies Act 2015

Link to law: http://www.gibraltarlaws.gov.gi/articles/2015-16o.pdf
Published: 2015-09-17

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I ASSENT Private Trust Companies
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-16

PRIVATE TRUST COMPANIES ACT 2015
Principal Act

Act. No. 2015-16 Commencement (LN. 2015/159) 17.9.2015
Assent 1.7.2015



Amending
enactments
Relevant current
provisions
Commencement
date



ARRANGEMENT OF SECTIONS

Section
1. Short title and commencement.
2. Interpretation.
3. Registration of Private Trust Companies.
4. Establishment of Registrar and Register of Private Trust Companies.
5. Application for registration.
6. Revocation, de-registration and restoration.
7. Registrar immunity.
8. Requirements of Private Trust Companies.
9. Registered Administrator.
10. Use of words “Private Trust Company”.
11. Disclosure of information.
12. Offences.
13. Regulations.
14. Amendment of Schedules.

SCHEDULE 1
CONNECTED INDIVIDUALS

SCHEDULE 2
APPLICATION FORM FOR REGISTRATION OF A PRIVATE TRUST
COMPANY

SCHEDULE 3
FEES

SCHEDULE 4
DECLARATION OF COMPLIANCE

SCHEDULE 5
DESIGNATING INSTRUMENT
Private Trust Companies
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2015-16


Private Trust Companies
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2015-16
AN ACT TO MAKE PROVISION FOR THE VOLUNTARY
REGISTRATION OF PRIVATE TRUST COMPANIES AND FOR
MATTERS RELATED THERETO.


Short title and commencement.

1.(1) This Act may be cited as the Private Trust Companies Act 2015.

(2) This Act shall come into operation on the appointed by the Minister by
notice in the Gazette and different days may be appointed for different
provisions.

Interpretation.

2. In this Act, unless the context otherwise requires–

“the 1989 Act” means the Financial Services (Investments and Fiduciary
Services) Act of the laws of Gibraltar and any other law or
enactment replacing, substituting or amending it from time to time;

“Certificate of Registration” has the meaning given to it in section 5(2);

“Court” means the Supreme Court of Gibraltar;

“Class VII Licence” means a licence issued under Section 8 of the 1989
Act and classified as a Class VII licence under Schedule 1 to the
Financial Services (Licensing) Regulations 1991;

“Class VIII Licence” means a licence issued under Section 8 of the 1989
Act and classified as a Class VIII licence under Schedule 1 to the
Financial Services (Licensing) Regulations 1991;

“Companies Act” means the Companies Act 2014 of the laws of
Gibraltar and any other law or enactment replacing, substituting or
amending it from time to time;

“Connected Individual” means an individual whose relationship to
another is established in the manner set out in Schedule 1;

“Connected Trust Business” means Trust Business in respect of trusts
where the Settlor(s) of that or those trusts is / are either–

(a) the Designated Individual for the purposes of that Connected
Trust Business; or

(b) Connected Individuals of the Designated Individual;

Private Trust Companies
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2015-16
“Declaration of Compliance” shall mean the form set out in Schedule 4
or such other form as the Registrar may by notice published in the
Gazette prescribe from time to time for the purposes of this Act;

“Designated Instrument” shall have the meaning given to it in section
8(7)(a) and Schedule 5;

“Designated Individual” means the individual designated by a Private
Trust Company to be the Designated Individual for the purposes of
its Connected Trust Business;

“Income Tax Act” means the Income Tax Act 2010 of the laws of
Gibraltar and any other law or enactment replacing, substituting or
amending it from time to time;

“Minister” means the Minister with responsibility for financial services;

“Private Trust Company” means a company that has been registered as a
Private Trust Company under this Act;

“the Register” has the meaning given to it in section 4(2);

“Registered Administrator” means a company holding a valid Class VII
Licence or a valid Class VIII Licence;

“the Registrar” has the meaning given to it in section 4(1);

“Settlor” means any person who settles or gifts assets into a trust and
“Settlors” shall be construed accordingly;

“Trust Business” means the business of providing trustee services or
holding trusteeship of a trust or trusts or performing functions as
trustee of a trust or trusts and includes the holding of any one or
more trusteeships and for the avoidance of doubt a company
holding trusteeship of one trust shall be deemed to be undertaking
Trust Business.

Registration of Private Trust Companies.

3. A company that wishes to undertake Connected Trust Business from or
within Gibraltar may register as a Private Trust Company in accordance
with the provisions of this Act.

Establishment of Registrar and Register of Private Trust Companies.

4.(1) There is established the office of the Registrar of Private Trust
Companies which shall be held by the Registrar of Companies appointed
under section 420(1) of the Companies Act.
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2015-16

(2) The Registrar shall establish and thereafter maintain a Register of
Private Trust Companies.

(3) Subject to subsection (4) any person may on the payment of the fee or
fees prescribed by the Minister from time to time inspect any records kept
by the Registrar for the purposes of this Act and may require–

(a) a copy in such form as the Registrar considers appropriate of
any information contained in those records; or

(b) a certified copy of, or extract from any such record.

(4) The right of inspection set out in subsection (3) above extends only to
the following information–

(a) the name of any Private Trust Company on the Register;

(b) the date on which any Private Trust Company was entered onto
the Register;

(c) the address of the registered office of any Private Trust
Company on the Register;
(d) the name of every director of any Private Trust Company on
the Register;

(e) the address of every director of any Private Trust Company on
the Register.

(f) the name of the Registered Administrator of any Private Trust
Company on the Register; and

(g) the address of the registered office of the Registered
Administrator of any Private Trust Company on the Register.

(5) The right of inspection extends to the originals of documents delivered
to the Registrar in printed form only where the record kept by the Registrar
of the contents of the document is illegible or unavailable.

(6) In all legal proceedings, a copy of an extract from a record certified in
writing by the Registrar to be an accurate record of the contents of any
document delivered to him under this Act, shall be admissible in evidence–

(a) as of equal validity with the original document; and

(b) as evidence of any facts stated in it of which direct oral
evidence would be admissible,

Private Trust Companies
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2015-16
and, for this purpose, it shall not be necessary to prove the
official position.

(7) Copies of or extracts from records furnished by the Registrar, instead
of being certified by him in writing to be an accurate record, may be sealed
with his official seal.

(8) Any person may require a Certificate of Registration of a Private Trust
Company, signed by the Registrar or authenticated by his official seal.

(9) No process for compelling the production of a record by the Registrar
shall issue from any court except with the leave of the Court, and any such
process shall bear on it a statement that it is issued with the leave of the
Court.

(10) Where−

(a) a person requires a copy of material on the Register under
subsection (3);

(b) that person expressly requests that the copy be certified as a
true copy; and

(c) the Registrar provides the copy in electronic form,

the Registrar’s certificate that the copy is an accurate record of the
contents of the original document shall be provided in accordance with
subsections (11) and (12).

(11) The certificate shall be authenticated by means of an electronic
signature which–

(a) is uniquely linked to the Registrar;

(b) indicates that the Registrar has caused it to be applied;

(c) is created using means that the Registrar can maintain under
his sole control; and

(d) is linked to the certificate and to the copy provided under
subsection (3) in such a manner that any subsequent change of
the data comprised in either is detectable.

(12) For the purposes of this section, an “electronic signature” means data
in electronic form which is attached to or logically associated with other
electronic data and which serve as a method of authentication.

Application for registration.
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5.(1) A company that is desirous of operating as a Private Trust Company
under this Act may apply for registration by–

(a) submitting to the Registrar–

(i) a copy of its Memorandum of Association and Articles
of Association; and

(ii) an application form for registration as a Private Trust
Company in the form set out in Schedule 2 or such other
form as the Minister may by notice published in the
Gazette prescribe from time to time;

(b) paying to the Registrar the first registration fee specified in
Schedule 3; and

(c) procuring the submission to the Registrar of a Declaration of
Compliance from the Registered Administrator pursuant to
section 9(3).

(2) Where the Registrar is satisfied that all the requirements of this Act in
respect of the registration of a Private Trust Company have been complied
with it shall register the Private Trust Company by entering its name on the
Register and shall issue a Certificate of Registration in respect of that
Private Trust Company.

(3) A Private Trust Company shall apply to the Registrar annually to
renew its registration as a Private Trust Company and the Registrar shall
renew the registration of that company as a Private Trust Company on–

(a) the receipt of a Declaration of Compliance from the
Registered Administrator pursuant to section 9(5) and;

(b) the payment of the annual registration fee specified in Schedule
3.

(4) A company which–

(a) is registered as a Private Trust Company under subsection (2)
and (if applicable) has renewed its registration for the period of
operation under subsection (3); and

(b) complies with all the requirements of section 8(2) of this Act
shall be deemed not to be–

Private Trust Companies
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(i) holding out as a professional trustee for profit or reward
for the purposes of paragraph 2 of Schedule 3 to the
1989 Act;

(ii) soliciting for business as a professional trustee for profit
or reward for the purposes of paragraph 2 of Schedule 3
to the 1989 Act; or

(iii) undertaking a Controlled Activity for the purposes of
Section 3 of and Schedule 3 to the 1989 Act.

Revocation, de-registration and restoration.

6.(1) The Registrar may by notice in writing revoke a Private Trust
Company’s registration as a Private Trust Company where–

(a) that Private Trust Company is found to be in contravention of
the provisions of section 8 of this Act; and/or

(b) the Private Trust Company fails to apply to renew its
registration as a Private Trust Company within thirteen (13)
months of registration under section 5(2) or its last renewal
under section 5(3) of this Act

upon which the name of the Private Trust Company shall be removed
from the Register.

(2) A person who is aggrieved by any decision made by the Registrar
under subsection (1) may make an application to the Registrar to restore the
company to the Register.

(3) An application made under subsection (2) must be accompanied by–

(a) an affidavit of–

(i) the applicant’s interest in the matter, and

(ii) a statement of the facts on which the application is
based;

(b) a Declaration of Compliance signed by the Registered
Administrator of the Private Trust Company; and

(c) the fee prescribed in Schedule 3.

(4) In his discretion the Registrar may require that a person making an
application under subsection (1) give notice of that application (including
the facts on which the application is based and the relief sought) to such
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2015-16
other person as the Registrar may specify, being a person who appears to the
Registrar to be concerned or to have an interest.

(5) On receipt of an application under subsection (2) the Registrar, if
satisfied that there are good grounds for restoration of the company to the
Register, may direct the name of the company to be restored to the Register.

(6) Where an application to restore a company to the Register has been
made under subsection (2), in his discretion, the Registrar may refuse to
consider the application and require that the person by whom the application
was made apply to the Court for an order to restore the company.

(7) On an application to the Court under subsection (6), the Court may
refuse the application or order the Registrar to restore the company to the
Register.

(8) In any proceedings brought under subsection (6) the Court may
determine any question which may be necessary or expedient to decide in
connection with the restoration of the company to the Register.

(9) The Registrar shall be entitled to appear and be heard on any
application to the Court under subsection (6) and shall appear if so directed
by the Court.

(10) An order made by the Court under subsections (6) and/or (7) shall
direct that notice of the order shall be served on the Registrar in the
prescribed manner and, on receipt of the notice, the Registrar shall act
accordingly.

(11) A Private Trust Company may deregister as a Private Trust Company
by providing to the Registrar–

(a) written notice of its desire to deregister as a Private Trust
Company which such notice must be endorsed by the
Registered Administrator; and

(b) the Private Trust Company’s Certificate of Registration.

upon receipt of which the Registrar shall remove the name of
the Private Trust Company from the Register.

Registrar immunity.

7. The Registrar shall not be liable in damages for anything done or omitted
in the discharge or purported discharge of any powers or functions
conferred on the Registrar by this Act unless the act or omission is shown to
have been in bad faith.
Private Trust Companies
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2015-16

Requirements of Private Trust Companies.

8.(1) A company shall not be registered as a Private Trust Company under
this Act unless it–

(a) is incorporated under the Companies Act as–
(i) a private company limited by shares;

(ii) a private company limited by guarantee and not having a
share capital;

(iii) a private company limited by guarantee and having a
share capital;

(iv) a private unlimited company; or

(b) has established domicile in Gibraltar under Part XIII of the
Companies Act and Part I of the Companies (Re-
Domiciliation) Regulations 1996.

(2) A company registered as a Private Trust Company under this Act–

(a) shall ensure that, at all times, it has a Registered Administrator
in appointment;

(b) shall ensure that, at all times, its Registered Administrator
holds a valid Class VII Licence or a valid Class VIII Licence
and has its registered office in Gibraltar;

(c) shall not–
(i) solicit Trust Business or;

(ii) carry on any business other than Connected Trust
Business; or

(iii) carry on Connected Trust Business in respect of anyone
other than–

(a) the Designated Individual; or

(b) Connected Individuals of the Designated
Individual; or

Private Trust Companies
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2015-16
(iv) carry on any activity other than its Connected Trust
Business or any activity incidental to its Connected Trust
Business.

(3) If, subsequent to its appointment as the Registered Administrator of a
Private Trust Company, the Registered Administrator ceases to hold a valid
Class VII Licence or a valid Class VIII Licence, the Private Trust Company
may continue to undertake Connected Trust Business for a period of four
weeks following the date on which the Registered Administrator ceases to
hold a valid Class VII Licence or a valid Class VIII Licence during which
period the Private Trust Company shall–

(a) appoint a Registered Administrator holding a valid Class VII
Licence or a valid Class VIII Licence; and

(c) notify the Registrar in writing (or in any form as the Minister
may by notice published in the Gazette prescribe from time to
time for these purposes) of the change of Registered
Administrator and the change of registered office.

(4) A Private Trust Company shall notify the Registrar in writing (or in
any form as the Registrar may by notice published in the Gazette prescribe
from time to time for these purposes) of any change of Registered
Administrator.

(5) A Private Trust Company shall within ten (10) days of being so
requested by its Registered Administrator provide to it all information
which the Registered Administrator requires in order to enable the
Registered Administrator to discharge its obligations under this Act.

(6) A Private Trust Company shall ensure that–

(a) there is no provision under its Memorandum of Association or
Articles of Association which may cause or allow the Private
Trust Company to breach any of the provisions of this Act;

(b) it shall not conduct its operations in any manner inconsistent
with this Act.

(7) A Private Trust Company shall maintain at its registered office–

(a) a single Designating Instrument in the form specified in
Schedule 5 (or such other form as the Minister may by notice
published in the Gazette prescribe from time to time) which
identifies the individual who shall be the Designated Individual
in relation to that Private Trust Company; and

Private Trust Companies
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(b) the trust deed and/or other document containing or recording
the trust and any deed instrument or document varying or
supplementing the trust in respect of each trust for which it
serves as trustee.

(8) In addition to all other requirements under this Act a Private Trust
Company shall hold at least one (1) meeting per calendar year at its
registered office where the Board of Directors and the Registered
Administrator shall be present.

(9) A Private Trust Company which acts in contravention of subsection
(2) of this section shall (subject to subsection (3)) be guilty of an offence
and shall–

(a) have its Certificate of Registration revoked and its name
removed from the Register under section 6(1); and

(b) be liable to punishment under section 12.

(10) A company which acts in contravention of any of the provisions of
this section other than the provisions of subsection (2) may have its
Certificate of Registration revoked and its name removed from the Register
under section 6(1).

Registered Administrator.

9.(1) No person other than a company holding a valid Class VII Licence or
a valid Class VIII Licence may act as a Registered Administrator of a
Private Trust Company.

(2) A company holding a valid Class VII Licence or a valid Class VIII
Licence shall not agree to act as the Registered Administrator of a Private
Trust Company unless–

(a) it is in possession of a copy of the Designating Instrument
identifying the individual who shall be the Designated
Individual in relation to that Private Trust Company’s
Connected Trust Business; and

(b) it has taken all reasonable steps to satisfy itself that the Private
Trust Company complies with section 8(2)(c).

(3) Upon being appointed Registered Administrator of a Private Trust
Company, the Registered Administrator shall as soon as is reasonably
practicable submit to the Registrar a Declaration of Compliance.

(4) A Registered Administrator shall at all times maintain at its registered
office a list of all Private Trust Companies for which it acts as Registered
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Administrator as well as copies of the following documents in relation to
each Private Trust Company for which it acts as Registered Administrator–

(a) Memorandum of Association and Articles of Association;

(b) Designating Instrument; and

(c) up to date copies of the trust deed and/or other document
containing or recording the trust in respect of every trust under
the Private Trust Company’s trusteeship.

(5) The Registered Administrator of a Private Trust Company shall on a
periodic basis take all reasonable steps to satisfy itself that the Private Trust
Company continues to comply with the requirements of section 8(2)(c) and
having so satisfied itself shall annually submit to the Registrar a Declaration
of Compliance.

(6) The frequency with which the Registered Administrator reviews the
compliance of a Private Trust Company with section 8(2)(c) shall be
determined by the Registered Administrator on the basis of its assessment of
the risk that the Private Trust Company may fail to comply with that section
provided that the Registered Administrator must satisfy itself that the
Private Trust Company is in compliance with the requirements of section
8(2)(c) of this Act immediately prior to its submission of a Declaration of
Compliance under subsections (3) and (5) of this section.

(7) Where the Registered Administrator of a Private Trust Company
discovers that the Private Trust Company has contravened any provision of
section 8(2)(c) or where the Private Trust Company fails to provide to the
Registered Administrator all the information which the Registered
Administrator has requested and requires in order to discharge its duties
under this Act and which the Private Trust Company is required to provide
to the Registered Administrator under section 8(5) the Registered
Administrator shall submit a report of non-compliance to the Registrar.

(8) The Registered Administrator shall submit the report of non-
compliance to the Registrar under subsection (7)–

(a) in cases where the Registered Administrator discovers that the
Private Trust Company has contravened a provision of section
6(2)(c) within seven (7) days of the discovery; and

(b) in cases where the Private Trust Company has failed to provide
to the Registered Administrator all the information which the
Registered Administrator has requested and which the Private
Trust Company is required to provide to the Registered
Administrator under section 8(5), within forty-five (45) days
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from the date on which the request for information was
received by the Private Trust Company.

(9) The Registrar may on receipt of the report of non-compliance
submitted by the Registered Administrator pursuant to subsections (7) and
(8) by notice in writing revoke a Private Trust Company’s registration as a
Private Trust Company under section 6(1) without further inquiry or
examination and remove the name of the Private Trust Company from the
Register.

(10) A person who is aggrieved by any decision made by the Registrar
under subsection (9) may appeal to the Court.

(11) The Registered Administrator shall within a period of five (5)
working days notify the Registrar in writing (or in any form as the Minister
may by notice published in the Gazette prescribe from time to time for these
purposes) of–

(a) any change to its registered office;

(b) its proposed retirement or resignation as Registered
Administrator of a Private Trust Company; or

(c) the revocation or surrender of its Class VII License or Class
VIII License or any variation or amendment to its Class VII
License or Class VIII License which it considers material to its
office as Registered Administrator of a Private Trust Company.

(12) A person who, whether by action or omission, contravenes
subsections (1), (2), (3), (4), (5), (7), (8) or (11) of this section is guilty of an
offence and is liable on conviction to the punishment set out in section 12 of
this Act.

Use of words “Private Trust Company”.

10.(1) Notwithstanding any provision of section 39 of the 1989 Act a
Private Trust Company may use the words “Private Trust Company” or the
letters “PTC” in the name by which the company is registered under the
Companies Act.

(2) A company shall not be registered under the Companies Act with the
words “Private Trust Company” or the letters “PTC” in the name of the
company unless that company is a Private Trust Company duly registered
under this Act.

(3) Where a Private Trust Company seeks to change the name of the
company it shall apply to the Registrar to do so and the Registrar may,
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subject to any conditions it may impose, consent to the change of name of
the Private Trust Company.

Disclosure of information.

11.(1) Subject to any provision in this Act to the contrary a person shall not
disclose any information relating to any application of a prospective Private
Trust Company or to the affairs of a Private Trust Company except when
authorised by the prospective Private Trust Company or the Private Trust
Company to do so or when lawfully required to do so by a court of
competent jurisdiction.

(2) Subsection (1) does not apply to a person carrying out any duty
imposed on him by the Income Tax Act or the Financial Services
(Information Gathering and Co-Operation) Act 2013 or the 1989 Act or
otherwise acting in pursuance of any international agreement to which
Gibraltar is a party.

Offences.

12. A person who is guilty of an offence under this Act is liable on
conviction to a fine not exceeding £25,000 or to a term of imprisonment not
exceeding six (6) months or to both.

Regulations.

13. The Minister may make regulations generally to give effect to this Act.

Amendment of Schedules.

14. The Minister may amend the Schedules by Order.


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SCHEDULE 1

CONNECTED INDIVIDUALS

1. For the purpose of this Act, the following persons shall be considered to
be a Connected Individual in relation to a Designated Individual–

(a) his/her spouse or civil partner; and

(b) the children and remoter issue of the Designated Individual and
his/her spouse or civil partner.

2. For any relationships listed in paragraph 1 that may be established by
blood that same relationship may also be established by adoption.

______________________

SCHEDULE 2

APPLICATION FORM FOR REGISTRATION OF A PRIVATE
TRUST COMPANY

1. Name of the private trust company:

2. Address of the registered office of the private trust company:

3. Names of the Directors of the private trust company:

4. Addresses of the Directors of the private trust company:

5. Name of the Registered Administrator of the private trust company:

6. Address of the Registered Administrator of the private trust company:


INSTRUCTIONS

This application form should be accompanied by:

(a) a copy of the certificate of incorporation under the Companies
Act in respect of the applicant company; and

(b) proof of payment of the appropriate registration fee.


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SCHEDULE 3

FEES
£

First registration fee 100
as a Private Trust Company

Annual registration fee
as a Private Trust Company 15

Change of name [
]


Restoration fee
of a company to the Register of Private Trust Companies
200

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SCHEDULE 4

DECLARATION OF COMPLIANCE

We, _______________________________, Registered Administrator of the
Private Trust Company, ________________________________ (the
“Company”), pursuant to section 9(3) / section 9(5) of the Private Trust
Companies Act 2015 (“the Act”), hereby declare that:

1. The Company is conducting only Connected Trust Business
and is not conducting or undertaking any other business.

2. The Company is not undertaking Connected Trust Business in
respect of anyone other than:

1. the Designated Individual; or

2. Connected Individuals of the Designated Individual.

3. The Company is not soliciting for Trust Business (as defined in
Section 2 of the Act).

We, _________________________, on the day of
20[ ], make this solemn declaration conscientiously believing it to
be true.
________________________________
Signed for and on behalf of the Registered Administrator


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SCHEDULE 5

DESIGNATING INSTRUMENT

[INSERT COMPANY NAME]

I, [INSERT DIRECTOR NAME], hereby confirm that in relation to
[INSERT COMPANY NAME], the Designated Individual pursuant to the
Private Trust Companies Act 2015 shall be:

[INSERT NAME OF DESIGNATED INDIVIDUAL].
Signed:


DIRECTOR