British Virgin Islands: Directors' Duties Under Cayman Islands Law

There is no statutory codification in the Cayman Islands of the general duties, obligations and liabilities owed by directors to Cayman companies and the general duties are based on a combination of English common law, statute and regulatory guidance. In most cases directors are responsible to the company and not, in the absence of special circumstances, to the shareholders as individuals. For these purposes as a general rule, the company is defined by reference to the interest of both present and future shareholders of the company as a whole and the consent of individual disadvantaged shareholders is not required where directors choose a particular course of action.

If a company is in financial difficulty the interests of the company will also include the interests of the creditors. In other words, those with the greatest economic interest in the company at any given time (predominantly shareholders if the company is solvent and a continuing business, but predominantly creditors if it is insolvent or winding down) are the parties with reference to whom the directors' duties to the company are assessed.

In special circumstances, the directors may owe duties to individual shareholders. For instance, the articles of association (Articles) or a shareholders' agreement may impose specific duties towards shareholders, and representations made by directors to shareholders may impose fiduciary duties to the shareholders (eg the courts may recognise a fiduciary duty owed by directors to individual shareholders in the context of advice given by the directors to the shareholders as to whether they should sell their shares to a bidder).

The common law duties of directors

At common law a director owes two types of duty to the company, fiduciary duties and duties of skill, care and diligence.

Fiduciary duties An individual director must act in good faith in his dealings with or on behalf of the company and exercise the powers and fulfil the duties of the office honestly. Fiduciary duties covered by the general obligation include:

A duty to act in good faith

A director has a duty to act in good faith in what he considers is the best interests of the company and not for any collateral purpose.

A duty to exercise powers in the company's interests

A director must exercise his powers in the company's interests and in accordance with the relevant provisions of the company's constitutional documents and not for any personal or improper purpose.

Unfettered discretion

A director must not fetter the future exercise of his powers and so should not agree to exercise his powers in accordance with the instructions of some third party irrespective of the best interests of the company. This is of particular relevance to a nominee director or one who represents a particular shareholder, whose duties will always be to the company not to the appointor.

Secret profits

A director's fiduciary position precludes him from taking a personal profit from any opportunities that result from the directorship, even if the director is acting honestly and for the good of the company, unless the Articles provide otherwise. Subject to the Articles, any profit so arising must be paid over to the company. This applies whether the profit arises from a contract with the company or a third party.

To avoid conflicts of interest The general rule is that a director must not put himself in a position where there is an actual or potential conflict between a personal interest or duties owed to third parties and his duty to the company. For instance, if a director directs business to a company in which he is interested, perhaps because the person is also a director of that company, then the director is in danger of breaching his fiduciary duty.

Disclosure

Notwithstanding the general duty to avoid a conflict of interest, a director may enter into a contract where a conflict of interest might arise if the articles allow it or if the company gives its approval in a general meeting of shareholders. The Articles commonly provide that a director will not be disqualified by his office from contracting with the company, or be liable to account to the company for any profit realised from such contract, provided that disclosure is made.

Acting in other capacities

A director is not prohibited from acting as an officer or employee of the company (other than auditor), as a director of another company, or from representing the interests of a shareholder or another third party, provided that the company consents and the director can continue to act in the best interests of the company.

However, a director in such position must preserve independent discretion as to how he exercises his powers and, if a conflict arises, he must not subordinate the interests of the company to those of the other company or third party as a means of resolving the conflict.

Duty to act with skill, care and diligence In recent years English and Commonwealth authorities have moved away from the traditional purely subjective test referencing the individual director whose conduct is being judged towards a combined objective and subjective test for the applicable standard of skill and care which a director will be required to have.

Following these cases it is likely that the applicable skill and care test will be that of:

"A reasonable diligent person having both – (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and (b) the general knowledge, skill and experience that that director has". (Re D'Jan of London Limited [1994] 1 BCLC 561).

Therefore, there is a minimum objective standard based upon the functions given to the director in question but the standard can be raised where the director in question has more knowledge, skill and experience than would normally be expected; if, for example, he has been recruited as an expert in a particular business of the company. Directors also have a continuing duty, both collectively and individually, to acquire and maintain a sufficient knowledge and understanding of the company's business to enable them to properly discharge their duties as directors (Re Barings PLC, Secretary of State for Trade and Industry v Baker (No 5) [1999] 1 BCLC 433, 439 and confirmed in the Grand Court of the Cayman Islands first instance judgment in Weavering Macro Fixed Income Fund Limited (in liquidation) v Stefan Peterson and Hans Ekstrom [2011] 2 CILR 203).

Attention to the business

A director is not bound to give continuous attention to the affairs of the company. His duties are of an intermittent nature and he is not bound to attend all meetings but he should attend all meetings which he is reasonably able to be present at.

Delegation

A director is not liable for the acts of co-directors or other company officers solely by virtue of the position. A director is entitled to rely on his co-directors or company officers as well as subordinates who are expressly put in charge of attending to specific tasks, provided such reliance is honest and reasonable. A director cannot, however, absolve himself entirely of responsibility by delegation to others and a duty to supervise delegates remains. As a general rule, before delegating responsibility to others, the directors in question should satisfy themselves that the delegates have the requisite skills to discharge the functions delegated to them. In addition, the directors must ensure that they monitor and supervise delegate performance on a periodic basis, ensuring that their delegates have fulfilled their obligations. It is not possible to wholly delegate all supervisory functions.

Experts

Directors may rely on the advice of an independent outsider, and in respect of fields where they do not have expertise may be considered negligent if they reach a decision without first obtaining appropriate expert (eg legal) advice. Directors must take reasonable care to select an adviser who is qualified to give the advice, and, having received it, the directors must then exercise their own judgment in the light of that advice.

Financial responsibilities of directors

Directors must exercise skill and care in financial matters. It is the responsibility of the directors to ensure that the company fulfils its obligations to keep proper books of accounts. In addition, liability may attach to a director in the following contexts:

(a) Control over the company's borrowings

The Articles may place a limit on the amount the company can borrow without shareholder approval. If the directors exceed their borrowing powers the loan is generally valid unless the lender is aware of some irregularity, but the directors risk personal liability.

(b) Dividends

The company may only declare and pay dividends if it can be sourced from any one or more of (i) profits, or (ii) the proceeds of a fresh issue of shares and/or share premium account and following the date on which the dividend is proposed to be paid, the company is able to pay its debts as they fall due in the ordinary course of business. The directors risk personal liability for a breach of this requirement.

(c) Return of capital

The company may only redeem or repurchase shares to the extent payments can be sourced from any one or more of (i) profits, or (ii) the proceeds of a fresh issue of shares, share premium account and/or capital and provided that following the date on which the payment is proposed to be paid, the company is able to pay its debts as they fall due in the ordinary course of business. The directors risk personal liability for a breach of this requirement.

(d) Insolvency and Fraudulent Trading Laws

Please see below for the scope of potential liability.

Statutory obligations

Although there is no codification of directors' duties under Cayman Islands law, the Companies Law (Revised) (the Companies Law) contains numerous provisions relating to the obligations of directors of Cayman Islands companies and prescribes penalties for breach. The most serious of these involving dishonesty or the authorising of illegal payments carry both criminal and civil penalties.

Examples of the more material provisions include:

  • where the director wilfully authorises or permits any distribution or dividend in contravention of the Companies Law;
  • where the director knowingly or wilfully authorises or permits any payment out of capital by a company for a redemption or purchase of its own shares when the company is insolvent;
  • where there has been a failure to maintain the books of account, minutes of meetings, or the statutory registers of members, mortgages and charges or directors (which includes alternate directors);
  • where there has been a failure to provide information or access to documents to specified persons as required by the Companies Law;
  • where the director makes or authorises a false annual return to the Registrar; and
  • where an exempted company is found to have been carrying on domestic business in the Cayman Islands.

Insolvency and fraudulent trading laws

The insolvency regime in the Cayman Islands includes certain offences for directors. Section 147 - Fraudulent trading Where any person (ie a director or officer) was knowingly a party to the carrying on of business by the company with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, the liquidator may apply to court for an order requiring those persons to contribute to the company's assets.

Section 134 - Fraud in anticipation of a winding up It is a criminal offence punishable by a fine or conviction for five years, to commit fraud in anticipation of a winding up by a director, officer (including a shadow director (see below for the definition)), professional service advisor or voluntary liquidator, who within 12 months preceding the commencement of the winding up has, with intent to defraud the company's creditors or contributories:

  • concealed US$12,250 or more of the company's property or debt;
  • removed US$12,250 or more of the company's property;
  • concealed, destroyed or falsified any documents relating to the company's property;
  • made a false entry, parted with, altered or made an omission in any documents relating to the company's property or affairs; or
  • pawned, pledged or disposed of property obtained on credit and not paid for.

Section 135 - Transactions in fraud of creditors

Transactions in fraud of creditors are also a criminal offence similarly punishable by a fine or conviction for five years, where in the case of any company advised to be wound up by the court or voluntarily any officer of the company (including a director) or professional service advisor to a company (a) is found to have made a gift of, or has charged the company's property, (b) connived in levying execution against it; or (c) concealed or removed the company's property, in each case with intent to defraud the company's creditors or contributories.

Section 136 - Misconduct in the winding up

Various aspects of misconduct in the course of the winding up are also criminal offences under the Companies Law. Section 136 provides that where a company is being wound up by the court or voluntarily, any person who is or was a director, officer (including a shadow director) or professional service advisor to the company who does not make full disclosure to the liquidator of all of the company's property or documents in his custody or control and the details of any property disposed of other than in the ordinary course of business or who permits any false debt to be proved in the winding up or who destroys or falsifies any documents or makes any fraudulent entry in any accounts or documents with intent to defraud the company's creditors or contributories, commits an offence, punishable by a fine or imprisonment for five years.

Sections 101-103 – Obligations to co-operate with liquidator

These sections provide obligations for directors of a Cayman company being wound up to co-operate with the liquidator and in particular to prepare a statement in the required form as to the affairs of the company and if required by a Cayman court to transfer any documents or other property belonging to the company to the liquidator, to swear an affidavit in respect of written questions of the liquidator or to meet with the liquidator and answer oral queries in respect of the company and its affairs.

Section 137 - Material omission in statement of affairs

These provisions authorise a liquidator to require directors, officers, professional service advisors and employees of the company to submit a statement of affairs to the liquidator setting out their knowledge of the assets and liabilities of the company. The ability of the liquidator to require these parties to submit a statement of affairs is enhanced by a corresponding provision which criminalizes and makes punishable by a fine or imprisonment for five years, any material omission by any past or present director, officer (including shadow director), manager or professional service advisor, in any such statement of affairs, made with intent to defraud the company's creditors or contributories.

Shadow directors

A shadow director is any person in accordance with whose directions or instructions the directors of a company are accustomed to act. A person is not deemed to be a shadow director however by reason only that the directors act on advice given by him in a professional capacity, so that an investment manager of a company making recommendations as to the purchase or sale of investments should not, for example, usually constitute a shadow director.

As noted above, shadow directors are potentially liable under section 134, section 136 and section 137 of the Companies Law. Each is a criminal offence and the penalty in respect of each of those sections is a fine and/or imprisonment for a term of five years.

Theft and fraud, securities laws and money laundering

Theft and fraud

A director can be criminally liable under the Penal Code (Revised) for offences of theft and fraud including:

  • making false statements with an intent to deceive members or creditors; and
  • false accounting.

Securities laws

A director of a company listed on the Cayman Islands stock exchange can be criminally liable:

  • if he is involved in misleading statements or practices, which may induce someone to buy or sell shares or other securities; and
  • for insider trading under the Securities Investment Business Law (Revised). Civil liability in respect of securities may flow from other breaches of securities laws, and from common law matters, such as claims for fraudulent or negligent misrepresentation.

Money laundering offences

Directors could incur criminal liability for assisting in money laundering, "tipping off" money launderers and failure to inform the appropriate Cayman authorities of suspected money laundering. Please contact us for further details of Cayman Islands anti-money laundering legislation.

Duties owed to third parties

Personal liability for contracts

Where directors act outside the scope of their authority they may be liable to compensate a contract counterparty for breach of the implied warranty of their authority.

Personal liability for torts

There are two potential situations: the first is where the company commits a tort (for example, a negligent act or negligent misrepresentation relied upon by the recipient) through an employee or agent, and the question is whether a director, not being the servant or agent responsible, is liable to the victim. The second is whether a director, who acts so as to cause the company to be liable in tort, can be sued personally by the victim.

In the first instance, a director is not liable for the torts committed by a company simply by virtue of his being a director, but he may be personally liable if he has authorised, directed or procured the commission of the tort, even if he did not know, or did not care, whether the acts so authorised were tortious. In the second instance, the test for personal liability is whether the relevant director has assumed responsibility, either on an actual or imputed basis.

Segregated portfolio companies

Directors of any Exempted Segregated Portfolio Company (an SPC) have additional duties under Part XIV of the Companies Law. These include:

  • the duty to establish and maintain the segregation of a portfolio's assets from other segregated portfolios and the general assets of the SPC; and
  • the duty to ensure that the SPC states the capacity in which it is contracting in relevant transaction documentation.

It should be noted that any errors in attributing assets and liabilities to the incorrect Portfolio may be corrected by the board of directors without the directors incurring personal liability. Please see our guide on Segregated Portfolio Companies for a more detailed discussion of SPCs.

Indemnification

The Articles may provide for the indemnification of a director or an officer for breach of duty, save in limited circumstances such as where the director has been fraudulent or dishonest or where there has been wilful neglect or wilful default in the fulfilment of fiduciary duties. Re City Equitable Fire Insurance [1925] Ch 407 defined what is meant by wilful neglect or default as:

"an act, or an omission to do an act, is wilful where the person of whom we are speaking knows what he is doing and intends to do what he is doing. But if that act or omission amounts to a breach of his duty, and therefore to negligence, is the person guilty of wilful negligence? In my opinion that question must be answered in the negative unless he knows that he is committing, and intends to commit, a breach of his duty, or is recklessly careless in the sense of not caring whether his act or omission is or is not a breach of duty."

The Cayman Islands Court of Appeal has reiterated that the Re City Equitable definition applies under Cayman Islands law in its decision issued in February 2015 in Weavering Macro Fixed Income Fund Limited (in liquidation) v Stefan Peterson and Hans Ekstrom (CICA 10 of 2011) and whether a director is guilty of wilful neglect or default, so that they would be unable to rely on an indemnification provision in the Articles, depends on the facts and evidence in any specific case.

Operating companies will commonly obtain directors and officers' insurance.

Directors of regulated mutual funds - additional obligations

The Cayman Directors Registration and Licensing Law (DRLL) requires that all prospective directors of a Cayman Islands regulated corporate mutual fund be registered or licensed with the Cayman Islands Monetary Authority (CIMA) prior to being appointed as directors. This requirement applies to individuals and corporate directors and a failure to do so could expose directors to heavy penalties under the DRLL, including fines and imprisonment.

CIMA has also issued a Statement of Guidance for Regulated Mutual Funds in January 2014 (Statement of Guidance) which sets out a number of corporate governance principles for regulated Cayman Islands mutual funds. These include various principles and guidance on the minimum expectations for sound governance of regulated mutual funds.

For further information on the DRLL or the Statement of Guidance please contact your usual Harneys contact.

Conclusion

The Companies Law and the common law impose various duties and responsibilities on directors. Directors should always consider these duties and responsibilities when considering a course of conduct with respect to the company and its interests and specific legal advice should be taken where conflicts arise or duties are unclear.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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