Bermuda’s Economic Substance Portal launched as of 1 May 2020 to provide a reporting platform for filings from entities that are required to file declarations under the economic substance regime in the jurisdiction which impacts companies that carry on ‘Relevant Activities’, including banking, insurance, fund management, financing, leasing, headquarters, shipping, distribution and service centres, intellectual property and holding entities.
Bermuda successfully launched the Digital Asset Business Act (DABA) in 2018 which established the foundation for a comprehensive legislative and regulatory framework designed to support and facilitate growth in the financial technology (Fintech) sector. The digital asset business regulatory regime also encompasses prudential rules (including the Digital Asset Business (Client Disclosure) Rules 2018, the Digital Asset Business (Cybersecurity) Rules 2018, and the Digital Asset Business (Prudential Standards) (Annual Return) Rules 2018) which help to ensure that Bermuda is a leading jurisdiction in the regulation of digital assets and the regulatory regime is fit for purpose.
The Investment Funds Act 2006 (IFA) was amended by the Investment Funds Amendment Act 2019 (IFA Revision) and became operative on 1 January 2020. The IFA Revision introduced some important changes to investment fund regulation in Bermuda with the intention of further strengthening the regulatory framework in Bermuda for funds. These changes are intended to address economic substance for collective investment vehicles which previously did not require any registration under the IFA or regulation by the Bermuda Monetary Authority (BMA) pursuant to the IFA. Consequently, closed-ended Bermuda investment funds and overseas investment funds which are managed or carry on promotion in or from within Bermuda are now required to seek registration or designation with the BMA during a transition period of 6 months. Our Memorandum considers these new categories together with some supplemental changes under the IFA Revision.
Stephanie P. Sanderson, Alexandra Fox, and Kit Cunningham recently authored the Bermuda Chapter of the Legal 500 Global Guide to Fintech (2nd Edition).
This country-specific Q&A provides an overview to Fintech law in Bermuda. It covers open banking, regulation of data, cryptocurrencies, blockchain, AI and insurtech. The Q&A is part of the global comparitive guide to Fintech.
The Incorporated Segregated Accounts Companies Act 2019 received assent on 26 November 2019, introducing a new company structure product – the incorporated segregated account company (ISAC). This legislation has been developed to create a new and innovative product to meet the needs of business stakeholders in Bermuda. In an ISAC structure, each segregated account constitutes an incorporated entity distinct from the other incorporated segregated accounts within the same structure. The premise that incorporated entities enjoy separate legal personality is a widely accepted and upheld legal principle. The ISAC provides greater certainty via a statutory and common law basis for the segregation of assets and liabilities by creating separate bodies corporate.
Bermuda is a large Intellectual Property (IP) centre as its developed, and business focus, and infrastructure have created an allure and need for an IP framework. Many well-known brands and companies are represented and conduct business in Bermuda. Traditionally, many multinational and blue chip companies have benefitted from utilising Bermuda strategically to capitalise on particular tax benefits. A typical structure would result in a Bermuda-based company collecting fees and other revenue associated with the intellectual property they hold and to the repatriation of funds in accordance with Bermuda’s strategic legislative framework. Although recent economic substance requirements have created the need for a company to show economic substance in Bermuda, many companies subject to the economic substance requirements see the benefit of remaining in Bermuda and implementing substance within the jurisdiction to support the advantages offered by Bermuda’s IP framework. The prevalence of a global economy has made IP protection essential in this technological age. The continued growth, use, and development of the internet, technology and their associated goods and services, has led to the erosion of traditional geographical borders. As a result, it can be difficult to determine the origin of such goods and services and easier for fraudsters to pass off their goods and/or services.
In a Notice dated 12 November 2019, the Bermuda Monetary Authority confirmed that it will not object to BMA-supervised entities conducting business with licensed cannabis cultivators, processors or sellers, as long as the conduct of such business is not contrary to any offences that may be provided for in the laws of a foreign jurisdiction which amount to “criminal conduct” within the meaning of section 3 of the Proceeds of Crime Act 1997 of Bermuda. The Notice will be of particular interest to investment managers and investment funds in this sector (or that are interested in establishing in the sector) as it provides additional clarification that the establishment and registration of funds with investment strategies linked to the cannabis industry are permitted provided the activities are legal where business is being conducted and do not amount to criminal conduct under Bermuda law.
Stephanie P. Sanderson, Corporate Partner at BeesMont Law Limited, provides a legal and regulatory update with respect to Bermuda. The update covers legislative and regulatory updates to Bermuda’s technology and innovation framework as well as the economic substance regime, the Bermuda Regulatory Authority’s Cyber Risk Report, Outsourcing regulation, financial sanctions, and updates to the insurance and investment funds regulatory regimes, respectively.
The Digital Asset Business Amendment Act 2019 (DAB Amendment Act) was brought into force on 8 October 2019 and amends the Digital Asset Business Act 2018 (DABA) to adapt to market expectations and ensure the regulatory regime remains fit for purpose. The DABA legislation regulates digital asset business carried on in or from within Bermuda and protects the interests of clients or potential clients of persons conducting digital asset business. Amendments include the expansion of DABA to include clarity over market makers, digital asset benchmark administrators, digital asset trust services, and digital asset derivative exchange providers.
Stephanie P. Sanderson, Partner, provides a detailed guide on issuing an initial coin offering in Bermuda based on the current legislation. The guide covers the application process, what needs to be included in the offer document and the key compliance requirements which need to be met for a successful initial coin offering.