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FoundAtions


approached it in the right way. You need somebody who speaks and breathes foundations to advise on the actual law itself, and that’s what he did.” As a result, there are several key differences between Jersey and Guernsey laws. “The Guernsey version is different to the Jersey law in the sense that the Guernsey law allows the founder to decide what rights its beneficiaries have,” explains Ferguson. “Whereas the Jersey law says that, unless otherwise provided, the beneficiary is going to have no rights. So it might sound a small difference but it’s quite important.” In addition to this, Guernsey law requires


a foundation to have an initial endowment to start it off. And finally, Guernsey law places fiduciary duty on the council members who administer the foundation itself, whereas Jersey law appears to negate any such duty. It is hoped that those differences of


emphasis will provide clear blue water between the islands’ offerings, allowing both jurisdictions to successfully market their foundations. And of course, success means


Europe, South America, the Middle East and some parts of the Far East, where trusts are not as well understood.” Despite some criticism at the rate of


different things to different people. While there will inevitably be disappointment in some quarters if there isn’t a rush for foundations, making them an instant hit, Peter Niven is realistic on what his hopes are. “I don’t see foundations as a product


which will suddenly overtake our tried-and- tested trusts. We are well known and have been for many years as a trust jurisdiction, and that will continue. But what we wanted to do in providing our service offering with the foundation is to add another tool to the kit, particularly in the civil law jurisdictions, like


take-up on Jersey, Russell Clark maintains that judging the success of Guernsey’s own foundation offering should be about more than just quantity. “It seems to me that the numbers argument is a bit of a silly one, because if you have a foundation that is being used to hold shares in a orphan structure, as part of a securitisation deal, say, where all it’s going to do is hold two shares of a company, that’s not doing very much for the economy of the island,” he says. “However, if you’ve got a foundation


that’s employing 10 people to act as a centre point for a phenomenally wealthy family’s philanthropic activity, and those 10 people wouldn’t otherwise be doing that, then it seems to me that having that one foundation is very worthwhile.” l


CHRISTIAN DOHERTY is a freelance financial journalist


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18 businesslife.co October/November 2011


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