Hong Kong (December 2, 2024) – We are very pleased to announce that our Firm has been recognised in The ALB Fast 30 list for a second year in a row.

This recognition reinforces the firm’s growth strategy, the determination and dedication of our teams in Hong Kong, Cayman Islands, and the BVI to contribute to providing high quality technical legal advice and commercial solutions, and outstanding client service, and continuous drive to stay at the forefront of the fast-changing business and technological landscapes in Asia.

We value that ALB appreciates the rapid and robust growth of Loeb Smith in the past year.

View Full PDF

Hong Kong (November 26, 2024) Loeb Smith Attorneys, one of the leading offshore corporate law firms with a strong growing presence in the APAC region, advises in the going private merger transaction of First High-School Education Group, an education service provider primarily focusing on high schools in Western China (the “Company”). The Company has entered into a definitive agreement and plan of merger for the short form merger transaction (the “Merger”) on November 22, 2024.

Loeb Smith Attorneys has served as Cayman Islands legal counsel to the Special Committee and the team of lawyers advising on the transaction was led by Partner Ivy Wong and included team member Frost Wu in Hong Kong. Partner and Head of the firm’s Corporate and Investment Funds Group, Gary Smith, commented, “This is another testament of the depth and breadth of our firm’s expertise and our teams of attorneys’ ability and credentials to provide seasoned legal insights and support to clients in their different corporate actions and endeavors. It also showcases our commitment to our clients in Asia and our transactional profile involving a wide range of corporate law services in the current financial climate.”

Partner Ivy Wong in Hong Kong also commented, “It has been a pleasure working with the professional parties in the region to advise on this short form Merger to achieve the strategic goals of different stakeholders without having to go through the complexities and time required of a regular merger. We expect to see that the trend of merger transactions will continue, while others continue to seek fundraising opportunities on major stock exchanges, whether in the US or elsewhere.”

Zhongqin Asset Appraisal Co., Ltd. is acting as financial advisor to the Special Committee. Wilson Sonsini Goodrich & Rosati, Professional Corporation, is acting as U.S. legal counsel to the Special Committee.

The Merger is currently expected to close in the first half of 2025 and is subject to customary closing conditions.

Loeb Smith Attorneys is pleased to announce that our team has been rated as a Leading Firm in client satisfaction 2024 by the Legal 500.

Every year the Legal 500 team speak to clients and peers about the top law firms around the globe.

After in-depth client feedback research for over a 6-years period and all aspects of law firm practice were analyzed and measures based on client service and customer experience from responsiveness, efficiency, communications, billing transparency, through lawyer quality and industry profile, only the firms in the top percentile firms receive this kite mark badge to recognize the high level of customer satisfaction they are delivering.

Loeb Smith Attorneys is very proud to have received this ranking from the Legal 500 as it comes from direct engagement with our clients. Special thanks to our much-valued clients and partners as their continued trust and support in us are the key reasons for our achievement.

This achievement is another testament to our team’s expertise and Loeb Smith Attorneys’ commitment in client services.

With offices in the British Virgin Islands, the Cayman Islands and Hong Kong, Loeb Smith Attorneys has won numerous awards over this year and has achieved high rankings in well-known international legal directories.

We are pleased to announce that IFLR1000 has released its 2024-2025 Hong Kong rankings and Loeb Smith Attorneys’ Hong Kong office is awarded “Recommended Firm 2024” and ranked in two categories: “Investment funds: Offshore” and “Financial and corporate: Offshore”.

About Loeb Smith Attorneys 

Loeb Smith Attorneys is one of the leading offshore corporate law firms considered one of the most active and knowledgeable firms for advising on offshore investment funds formation and launch of all asset classes including public securities, private equity, venture capital, real estate, and virtual assets. Other areas of strength and growth are advising on M&A, Finance, Corporate Restructurings, Capital Markets, Regulatory Compliance, Investments, Logistics, Shipping and Aviation.

Considered a leading law firm in the Fintech and Blockchain Technology space, Loeb Smith also advises on token issuances, application for VASP licences for Web 3.0 businesses, Metaverse infrastructure and other virtual asset service providers, and utilising Cayman and BVI structures to develop virtual asset platforms for DAOs. Loeb Smith’s clients are investment managers, financial institutions, onshore counsels, and HNWIs who the firm advises on day-to-day legal issues and complex, strategic matters.

Some of our firm’s recent accolades are: winning Leading Firm in Client Satisfaction 2024 award by Legal 500; ranked in Investment Funds category and listed as one of the Firms To Watch for Corporate & Commercial by Legal 500 in 2024; named as Recommended Firm by IFLR 1000 from 2021 to 2024; named in Offshore Client Choice List by Asian Legal Business from 2021 to 2023; ranked amongst Top 30 Asia’s Fastest Growing Law Firms by Asian Legal Business in 2023 and 2024; ranked in The A-List: Top Offshore Lawyers by Asia Business Law Journal in 2022 and 2024; named as one of the ALB Hong Kong Firms to Watch 2024; winning Best Law Firm – Fund Domicile at Hedgeweek US Emerging Manager Awards 2023 and 2024; winning Best Law Firm – Fund Domicile at Private Equity Wire US Emerging Manager Awards 2023 and 2024; winning Best Law Firm – Fund Domicile at Private Equity Wire US Awards 2023; and winning The Best Offshore Law Firm – Client Service at With Intelligence HFM Asia Services Awards 2024.

Loeb Smith Attorneys is pleased to announce that our Hong Kong team has been ranked on the firms to watch list published by Asian Legal Business 

Hong Kong’s status as a global financial centre has fostered a highly competitive legal market. Fast growing law firms have emerged as significant contributors, demonstrating exceptional capabilities and a deep understanding of local business needs. ALB continues to identify and recognise these standout firms for their achievements.

With offices in the British Virgin Islands, the Cayman Islands and Hong Kong, our latest accolade is another testament to our team’s expertise and Loeb Smith Attorneys’ commitment in Asia.

Visit ALB to read the announcement:

https://www.legalbusinessonline.com/features/rankings-alb-hong-kong-firms-watch-2024 

About Loeb Smith Attorneys 

Loeb Smith Attorneys is one of the leading offshore corporate law firms considered one of the most active and knowledgeable firms for advising on offshore investment funds formation and launch of all asset classes including public securities, private equity, venture capital, real estate, and virtual assets. Other areas of strength and growth are advising on M&A, Finance, Corporate Restructurings, Capital Markets, Regulatory Compliance, Investments, Logistics, Shipping and Aviation.

Considered a leading law firm in the Fintech and Blockchain Technology space, Loeb Smith also advises on token issuances, application for VASP licences for Web 3.0 businesses, Metaverse infrastructure and other virtual asset service providers, and utilising Cayman and BVI structures to develop virtual asset platforms for DAOs. Loeb Smith’s clients are investment managers, financial institutions, onshore counsels, and HNWIs who the firm advises on day-to-day legal issues and complex, strategic matters.

Some of our firm’s recent accolades are: winning Leading Firm in Client Satisfaction 2024 award by Legal 500; ranked in Investment Funds category and listed as one of the Firms To Watch for Corporate & Commercial by Legal 500 in 2024; named as Recommended Firm by IFLR 1000 from 2021 to 2024; named in Offshore Client Choice List by Asian Legal Business from 2021 to 2023; ranked amongst Top 30 Asia’s Fastest Growing Law Firms by Asian Legal Business in 2023 and 2024; ranked in The A-List: Top Offshore Lawyers by Asia Business Law Journal in 2022 and 2024; named as one of the ALB Hong Kong Firms to Watch 2024; winning Best Law Firm – Fund Domicile at Hedgeweek US Emerging Manager Awards 2023 and 2024; winning Best Law Firm – Fund Domicile at Private Equity Wire US Emerging Manager Awards 2023 and 2024; winning Best Law Firm – Fund Domicile at Private Equity Wire US Awards 2023; and winning The Best Offshore Law Firm – Client Service at With Intelligence HFM Asia Services Awards 2024.

The Perpetuities (Amendment) Act, 2024 (the “Act”) (which is not yet in force) abolishes the mandatory 150-year perpetuity period for ordinary trusts established after the Act comes into force (except with respect to trusts holding land or interests in land situated in the Cayman Islands). By dis-applying the rule against perpetuities in respect of Cayman Islands ordinary trusts, such trusts will be able to last indefinitely.

What is the position before the Act comes into force? 

Prior to the Act, Cayman Islands trusts (except for STAR trusts which were not subject to the perpetuity rule) were subject to the rule against perpetuities, which means that these trusts could not last perpetually and instead are required to vest within a perpetuity period of 150 years, at which point the trust property was required to be distributed in accordance with the terms of the trust.

How does this affect existing trusts? 

Section 20(2) of the Act sets out the categories of interested parties (e.g. trustees, settlors and enforcers of existing trusts) who may apply to the Grand Court for an order declaring that the rule against perpetuities in respect of existing Cayman Islands trusts established before the Act comes into force does not apply to a disposition in respect of the trust and the property which is the subject of the disposition in respect of the trust. Such existing trusts would then be able to carry on indefinitely.

Key takeaway from this change 

The disapplication of the mandatory 150-year perpetuity period brings the Cayman Islands in line with many other offshore jurisdictions and reflects the jurisdiction’s focus on enhancing its laws to maintain its position as a premier offshore jurisdiction for clients globally in terms of, among other things, asset protection and family succession planning purposes.

View Full PDF

This publication is not intended to be a substitute for specific legal advice or a legal opinion. For specific advice on unfair prejudice claims in the BVI, please contact your usual Loeb Smith attorney or any of the following:

E: gary.smith@loebsmith.com
E: robert.farrell@loebsmith.com
E: ivy.wong@loebsmith.com
E: cesare.bandini@loebsmith.com
E. elizabeth.kenny@loebsmith.com
E: edmond.fung@loebsmith.com
E: vivian.huang@loebsmith.com
E: faye.huang@loebsmith.com
E: yun.sheng@loebsmith.com
E: frost.wu@loebsmith.com
E: max.lee@loebsmith.com

Introduction

Initial Coin Offerings (ICOs), used during the past few years as a source of raising capital for early stage blockchain projects, have started to appear so frequently in the financial and/or IT media during the last couple of years that they now seem to be part and parcel of the new social economy. Ethereum launched itself in 2014 by way of an ICO and is now the second largest crypto-currency. According to an ICO-tracking initiative by Coindesk.com, coin and/or token sales worth in excess of US$2.2 billion have been recorded to date.

In brief, ICOs represent a type of unregulated crowdfunding built on blockchain technology and use of cryptocurrencies. Coins or tokens may be issued to represent virtual currencies, equity interests, voting rights, units which are part of a company-wide reward or bonus scheme, membership interests, pre-paid services or products, etc.. However, together with all legitimate ICOs came over 2,000 phishing, hacks or Ponzi schemes, which led to rising interest and warnings from regulators worldwide, especially since another criticism related to ICOs is that investors rush to buy coins/tokens in the hope of “flipping” them later in the market without any due diligence or regard to the value of the underlying product, project or company.

In the first issue of our series dedicated to FinTech-specific risk factors which may impact the Cayman Islands fund industry, we focused on risk factors related to bitcoin and other cryptocurrencies in general (see Top Ten Risks for the Crypto-Currency Investor: A View from the Cayman Islands). In this second issue, we will take a closer look at ICOs, including views from regulators in various countries, and discuss certain provisions of the existing Cayman Islands laws which may be triggered in connection with an offering of coins / tokens.

The new beneficial ownership regime of the Cayman Islands (the “New BO Regime”), which aims to streamline the Cayman Islands’ beneficial ownership framework and to enhance transparency and access to adequate, accurate and current beneficial ownership particulars, became effective on 31 July 2024 when the Beneficial Ownership Transparency Act, 2023 (the “Act”) came into force. The Act, together with the Beneficial Ownership Transparency Regulations, 2024 and the Guidance on Complying with Beneficial Ownership Obligations in the Cayman Islands published by the Cayman Islands’ Ministry of Financial Services & Commerce (the “Ministry”), form part of the New BO Regime.

We had provided a brief overview of the principal proposed changes or additions to be introduced by the Beneficial Ownership Transparency Bill, 2023 through our legal briefing “Cayman Islands: Proposed Legislation to expand Cayman Islands’ beneficial ownership framework” published on 20 October 2023. Such principal changes or additions have been adopted in the New BO Regime and we shall repeat such principal changes or additions below as a refresher for all stakeholders affected by the New BO Regime.

Expansion of scope 

• The scope of entities covered by the New BO Regime has been significantly expanded by:

1. 1. including limited partnerships and exempted limited partnerships into the definition of “legal person”, hence bringing these partnerships into the scope of the New BO Regime; and
   2. removing certain exemptions under the previous beneficial ownership framework, including removal of the exemption for any legal entity registered under a regulatory law such as the Mutual Funds Act (As Revised), the Private Funds Act (As Revised), the Securities Investment Business Act (As Revised) and the Virtual Asset (Service Providers) Act (As Revised).

• For an investment fund registered under the Mutual Funds Act (As Revised) or registered under the Private Funds Act (As Revised), however, the New BO Regime provides that such fund does not have to supply the full required particulars of beneficial owners as mandated in other cases, and instead such fund will only need to provide its corporate services provider with the contact details of a licensed fund administrator or another contact person licensed or registered under a Cayman Islands regulatory law for providing beneficial ownership information located within the Cayman Islands. Within 24 hours of a request being made by the Minister responsible for financial services (the “Minister”) (or at any other time as the Minister may reasonably stipulate), such licensed fund administrator or contact person of the fund shall provide the Minister with the requested beneficial ownership information.
• In light of the above, Cayman entities are suggested to review whether they fall within the expanded scope of the New BO Regime and whether the exemptions which they previously relied upon may no longer be applicable.

Revision of “beneficial owner” definition 

• The definition of “beneficial owner” has been revised under the New BO Regime in order to align with the concepts and wordings used in that of the Cayman Islands Anti-Money Laundering Regulations (As Revised) (the “AML Regs”), such revisions include but are not limited to:

1. 1. replacing “hold” with “ultimately owns or controls” when describing the 25% threshold in shares, voting rights or partnership interests; and
   2. categorising an individual who “otherwise exercises ultimate effective control over the management” of a legal person as its beneficial owner.

• By making the definition of “beneficial owner” in the New BO Regime and the AML Regs more consistent with each other to certain extent, it should now be easier for relevant stakeholders to interpret and apply these laws and regulations.

Additional beneficial ownership information required  

• The New BO Regime expands the scope of required particulars of the relevant beneficial owner by requesting for the nationality and/or the nature of ownership or exercise of control of the relevant beneficial owner. These types of information were not required to be provided in the previous beneficial ownership framework.
• Through expanding the scope of required particulars, the New BO Regime allows for the Minister (and certain specified Cayman Islands authorities and regulated bodies) to access more transparent beneficial ownership information, which may facilitate their identification of money laundering and/or terrorist financing risks.

Provision of leeway to create a public beneficial ownership register 

• Currently, the beneficial ownership information provided to the Minister is not available to the public.
• Noting that the Cayman Islands Government made a commitment to the UK Government in 2019 to introduce a public register of beneficial ownership, the New BO Regime grants the Cayman Islands Cabinet the power to, subject to the affirmative resolution by the Cayman Islands Parliament, make regulations empowering the Minister to provide access of certain beneficial ownership information to the public. However, in light of the November 2022 judgment made by the European Court of Justice which held that indiscriminate public access to information on beneficial ownership of legal persons was a disproportionate and serious interference with the fundamental rights to respect for private life and to the protection of personal data, the Ministry emphasised that the Cayman Islands Parliament would only approve any such regulations to be made by the Cayman Islands Cabinet after discussions with the UK and its other overseas territories, as well as Crown Dependencies, relating to “the necessary privacy safeguards” have been concluded.
• As such, so long as the relevant regulations have not been approved by the Cayman Islands Parliament, there will not be a public register of beneficial ownership information under the New BO Regime.

Current status  

Though being brought into force on 31 July 2024, the Ministry of Financial Services and Commerce has confirmed that the New BO Regime will not attract any enforcement action against non-compliance until early next year. In addition, until the Ministry notifies that filings under the New BO Regime shall re-commence, the requirement to file beneficial ownership information under the previous beneficial ownership framework has been suspended for the time being.

Conclusion 

As we have commented in our previous legal briefing, the New BO Regime is a welcomed and keen effort by the Cayman Islands to bring itself in line with the FATF international standards in combating money laundering and terrorist financing, which it is believed will continue to solidify its status as a globally-recognised offshore financial centre. Relevant Cayman entities are encouraged to actively review changes made by the New BO Regime and evaluate its applicability to them before the relevant Cayman authorities carry out any enforcement action early next year.

Prior to the Act coming into effect, Loeb Smith has been providing guidance and advice to clients on how to implement changes to facilitate compliance with the requirements under the New BO Regime. We are fully equipped to assist clients in navigating and ensuring full compliance with the requirements of the New BO Regime, so please do not hesitate to reach out if such needs arise.

View Full PDF

This publication is not intended to be a substitute for specific legal advice or a legal opinion. For specific advice on the New BO Regime, please contact your usual Loeb Smith attorney or any of the following:

E: gary.smith@loebsmith.com
E: robert.farrell@loebsmith.com
E: ivy.wong@loebsmith.com
E. elizabeth.kenny@loebsmith.com
E: cesare.bandini@loebsmith.com
E: vivian.huang@loebsmith.com
E: faye.huang@loebsmith.com
E: yun.sheng@loebsmith.com

In the prevailing economic conditions, shareholders in offshore companies registered in the British Virgin Islands (BVI) are increasingly being forced to consider their rights against directors who may have been responsible for mismanagement of company affairs. Minority shareholders are keen to understand the availability of remedies that allow them to overcome “wrongdoer control”, i.e., where the composition and direction of the board is controlled by majority shareholders.

 Scope of duties

The BVI Business Companies Act, 2004 (as amended) sets out the law governing the “duties of directors and conflicts”. This includes:

• The duty to “act honestly and in good faith” and in what the director believes to be in the company’s best interests; and
• A requirement that directors, after becoming aware they are “interested in a transaction entered into or to be entered into by a company”, shall “disclose the interest” to the company’s board.

What is the standard of care that a director owes? The act provides that a director “when exercising powers or performing duties as a director, shall exercise the care, diligence and skill that a reasonable director would exercise in the same circumstances, taking into account but without limitation:

1. The nature of the company;
2. The nature of the decision; and
3. The position of the director and the nature of the responsibilities undertaken by him.

This duty is qualified to the extent that the director is entitled to rely on the register of members, books, records, financial statements and other information prepared or supplied, and on professional or expert advice given by, for example:

Requiring the company or any other person to pay compensation to the member; and

Appointing a receiver or liquidator of the company.

The summary set out above was first published in Asia Business Law Journal and you can find it at the following link:
https://law.asia/bvi-shareholder-remedies/

View Full PDF