A Guide To Foundation Companies In The Cayman Islands

• Law Firm: Ogier
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law, Directors and Officers
• Author: Mr Anthony Partridge
• Published date: 10 February 2023

The Cayman Islands Foundation Companies Act 2017 (the Foundation Act) came into force in 2017. This guide summarises the main legal requirements and principles applicable to foundation companies.

Introduction

By enacting the Foundation Act, the Cayman Islands introduced a novel form of vehicle into its legal system. A foundation company has features and flexibility that have been designed to allow a company, retaining separate legal personality and limited liability, to function like a civil law foundation or common law trust.

When looking at other jurisdictions, the approach taken by the Foundation Act is unique and the creative solution appeals to many clients. Its uses include acting as a holding vehicle for shares in a private trust company, as a protector or enforcer of a trust, as a special purpose vehicle in finance or commercial transactions (including in crypto-currency and other technology offerings), as well as a traditional succession planning vehicle.

For private clients, foundation companies may be an attractive alternative to trusts, particularly for those clients in civil law jurisdictions where there might generally be more familiarity with companies or there are concerns about the tax treatment of trusts. A foundation company offers many of the same features of a trust because it can be used as a structure for succession planning and asset protection. Clients from common law jurisdictions may also be attracted to a foundation company to hold higher-risk assets such as shares in family businesses because of the limitation of liability.

It is possible for foundation companies to act as "ownerless" vehicles which will make them effective solutions in the context of private trust companies, management shares of investment funds, or in wider commercial transactions.

Corporate status

As a company incorporated under the Companies Act (Revised), a foundation company will be governed by that law except where it is inconsistent with the Foundation Act. It will therefore be a body corporate with a legal personality distinct from its members, directors and other connected persons.

Incorporation

Any new or existing company incorporated under the Companies Act (Revised) may apply to the Registrar of Companies (the Registrar) to be declared to be a foundation company provided that the conditions for a foundation company have been met. If satisfied that all of the conditions have been met, the Registrar will issue a certificate of incorporation (or in...