Offshore
Funds, Flexibility And Strong Foundations – A Walk Around Guernsey

We talk to senior figures at Carey Olsen about the offshore law firm's work in Guernsey, how the pandemic and its aftermath affected the island, and what the future holds.
As this news service continues to explore the challenges and
opportunities in the Channel Islands of Guernsey and Jersey, we
talked recently to Russell Clark, managing partner and head of
the trusts and private wealth group for Carey Olsen in Guernsey,
and Matt Brehaut, partner in Carey Olsen's London office and
a member of the firm's Guernsey corporate practice. (See here for
an
overview of our coverage.)
How has the pandemic intensified legal work around the
structuring of wealth, estate and tax planning, will writing and
so on?
Russell Clark: Most people, not just those with considerable
wealth, recognise the need to plan for what will happen to their
assets when they are no longer able to manage them and how best
to provide for their dependents. Whether this is, at its most
simple, the preparation of a will or, at the other end of the
spectrum, the establishment of a family constitution, trusts,
foundations and private trust companies. However, for few people
is this planning a priority. It is frequently a task that falls
to the bottom of their to-do-list, overtaken by more exciting
projects or at least projects with a less maudlin underlying
premise. The gestation period, the time between clients
first thinking about succession planning and the implementation
of a strategy can be years, sometimes much longer.
That changed during the pandemic, particularly at the start, as
news and fear of the infection spread. What was something that
could always be postponed to another day suddenly took on more
urgency and clients who had been talking to us about planning
quickly started putting those plans into action.
Other clients who had not previously thought about structuring
their wealth did so and the time between initial instruction and
implementation was cut down rapidly. For some clients, who
unfortunately contracted the infection, we were taking
instructions and implementing them often within hours.
Guernsey had a very strict initial lockdown with the local
population effectively confined to their homes other than for
short periods of daily exercise. The roads were eerily quiet but
we were kept busy visiting local clients for whom the preparation
of or updating of their wills or appointing attorneys or
alternate directors had suddenly become a priority.
With Guernsey's property market booming, what sort of
help are clients looking for in terms of high-value property
transactions?
Russell Clark: Guernsey's property market is divided between the
Local Market, properties which are available for occupation by
qualified local residents or those given a permit to occupy such
accommodation on the grounds that their employment is essential
to the island, and the Open Market, properties which are
available for occupation by anyone with the right of abode in the
United Kingdom.
A remarkable effect of the initial lockdown was that both property markets became extremely busy. One reason for the much-increased attention in the Open Market was the perceived success of the way in which Guernsey dealt with the pandemic. The initial lockdown was so successful that Covid was eliminated from the local population enabling the economy to reopen.
Strict controls were maintained on external borders and
quarantine for those coming into the island was both imposed and
enforced but this allowed shops, offices and hospitality venues
to open and thrive when much of the rest of the world was still
in lockdown.
Enquiries as to how to relocate to the island were received from
all over the world. Valuable Open Market properties were being
sold to people determined to relocate to Guernsey who had never
in fact visited the properties, relying instead on virtual tours
via FaceTime with the agents (and one hopes a good survey). Our
property team has been very busy not only conveying high value
properties but also helping people who are new to the island in
settling in.
Indeed, conveyancing statistics for 2021 as a whole showed that
sales activity in the Guernsey Open Market was at its highest
ever level. Figures revealed that that there were a total of 127
Open Market transactions in 2021 – 30 more than in 2020, and also
exceeding the previous high of 101 in 2006 – the most of any year
since Unusualities of Guernsey, an independent compiler of local
conveyancing statistics, started recording statistics in
2004.
The rise of private equity funds in Guernsey: how much of
this work is being done by Carey Olsen? Where are the clients for
these sort of funds coming from? What sort of organisations run
these funds and why, in your view, are they seeking help from
Carey Olsen in Guernsey?
Matt Brehaut: Private equity funds remain the driving forces
behind the success of Guernsey's investment funds industry.
Indeed, the most recent edition of Monterey Insight's
Guernsey Fund Report found that for the year ending 30
June 2021, the island's funds sector had enjoyed its
strongest levels of growth in a decade with fund assets serviced
in Guernsey increasing to $532.7 billion – up 24.4 per cent
compared with a year previous. Within that, Carey Olsen advises
847 regulated investment funds which is more than five times the
number of our nearest competitor, and represents 83 per cent of
the entire Guernsey market by assets under management.
There is no 'typical' type or location of clients for these
funds. We see investments from high net worth investors,
institutional investors, sovereign wealth funds, endowments and
pension funds, as well as smaller investors and family members
(facilitated by Guernsey's private investment funds regime). Nor
is there a typical organisation operating these funds. We work
with the full spectrum of firms, from first-time managers
launching their initial fund with the help of friends and family,
through to multi-billion blue chip firms launching their latest
vintage fund.
Clients use Carey Olsen due to the depth and breadth of our
funds' expertise. Our extensive market coverage means that we
have first-hand experience of all types of funds and can apply
that knowledge to serve our clients best. We maintain close links
with the top onshore law firms, with whom we regularly work on
fund establishments. Many of our lawyers are alumni of "magic
circle" and US firms in the City of London and beyond; we know
the partners and lawyers in these firms personally (in many cases
they are former colleagues) and can recommend the most suitable
firms in order to ensure that the best commercial, legal,
structuring and regulatory advice can be provided to the
client.
There are a lot of structuring "tools" in the box in
Guernsey today but are there areas that still need to be
developed to serve clients' needs and requests (types of trust,
foundation, corporate structures, other)?
Russell Clark: There is a saying that when the only tool in the
box is a hammer every problem looks much like a nail and so we
must remain vigilant to ensure that we equip our practitioners
with the tools they need to service their clients. As a
jurisdiction we scan the horizon to see what clients might need
and what our competitors are doing. There are some interesting
entities being set up in some jurisdictions but Guernsey's
partnership, trust, foundation and corporate regimes are all
modern and very flexible.
We have not yet come across trusts, foundation or corporate
entities that might be available in some jurisdictions for which
no equivalent result might be achieved using Guernsey structures.
There may be tweaks that might conceivably be made to those
existing structures to better market their use as, for example,
family investment companies, and the regulatory regime might also
be helpfully revised to create a regime for those who might want
their family offices to be regulated but I would regard such
developments as evolution rather than revolution.
If you could fast-forward by five years, where would you
see your firm? And what do you think the trusts/fiduciary
services sector will look like?
Russell Clark: Carey Olsen is currently the pre-eminent firm in
the Channel Islands, and I have every confidence that we will
continue as such. We cannot afford to become complacent with some
very strong competition in the islands but the firm was founded
in Guernsey in 1898 and has gone from strength to strength by
taking the long view and building strong relationships with our
clients, the firms we work alongside in other jurisdictions and
our local governments.
It is a strategy that has served us very well to date and I see
no reason to change our collegiate approach, which I believe will
also drive continued growth in our newer offices in the
Caribbean, Asia and, most recently, in Bermuda where we have seen
our colleagues there make significant strides forward in a
relatively short timeframe.
As regards the trust and fiduciary space in five years' time, I
still envisage that there will still be those very large
multinational trust companies that will be either listed or
private equity-backed which will be jurisdictionally agnostic,
bank-owned trust companies (and I anticipate by then there may
well be some banks trying to re-join the sector), and more, new
independent providers. Across the board there are some excellent
providers but I expect those that will thrive will be those who
have a determined focus on client service, low staff turnover and
a discerning eye as to the nature of the work that they are
willing to take on.
Besides private trust companies, what other structures
and forms of trusts are in strong demand, and why and from
whom?
Russell Clark: Non-charitable purpose trusts are ever popular in
the fund space. Most private client trusts created now tend to be
highly bespoke but, at their core, are discretionary in nature
regardless of where the clients hail from. Private Trust
Foundations, foundations created to act as trustee are also
becoming more popular for continental clients instead of private
trust companies as they eliminate the need to think about the
ownership of the trustee.
It can be argued that IFCs such as Guernsey have more
freedom to innovate, test ideas and challenge established
business models. When it comes to innovation in the offshore
world, where would you say Guernsey stands
out?
Russell Clark: It is true that smaller jurisdictions where the
industry is naturally closer to government and where the
government wishes to actively support the industry may be more
nimble than larger and perhaps slower-to-react jurisdictions. Put
simply, there are fewer hurdles to impede good ideas.
Guernsey has always taken pride as a jurisdiction in its
willingness to innovate and adapt to client demands. Our first
captive insurance company was formed in 1922. We developed the
protected cell company in 1997 – an innovation that has been
adopted now by many other jurisdictions.
But we are also a careful jurisdiction. We were the first Crown
Dependency to look seriously at the introduction of foundations
and the last to actually introduce them having seen how other
jurisdictions did so, taking into account the feedback from
practitioners and academics and then looking to make
improvements.
The same is true of our trust legislation. Many other
jurisdictions had trust statutes long before we did and we looked
at them carefully before producing something that was modern and
flexible. We have had to modify our trust legislation less often
than many other IFCs have done.