January 5, 2021
The Council of Ministers has on 16/12/2020 decided to designate the Registrar of Companies as the competent authority to maintain in Cyprus the register of ultimate beneficial owners of companies and other legal entities.
This decision implements into Cyprus national law the 4th European Directive (EU) 2015/849 of the European Parliament and of the Council of 20th May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing. The relevant legislation was enacted in April 2018 but was not implement until 16/12/2020.
As a result of this decision:
- The Registrar of Companies is appointed as the competent authority for the maintenance of the central register of ultimate beneficial owners of companies and other legal entities, and
- The Registrar of Companies is authorised to collect information as to the true beneficiaries of companies and other legal entities.
The Registrar of Companies has announced that collection of the relevant data shall commence on 18thJanuary 2021 and must be completed by 19th July 2021. Companies and other legal entities must, within this period, register information concerning their ultimate beneficial owners by utilising the portal established for the purpose by the Registrar of Companies. Please note that the portal has been developed as an intermediate solution and access to it will, for the time being, be possible only for the competent authorities, upon a request being filed with the Registrar of Companies.
The information collected will be transferred to the final data base to be developed in the second half of 2021 and access to which will be granted the public at large, will be on the basis on the provisions of the 5thEuropean Directive (EU) 2018/843 of the European Parliament and of the Council of 30th May 2018 which has yet to be introduced into Cyprus law.
Nicosia January 2020
November 23, 2020
The law which governs the collection and processing of data concerning identified or identifiable individuals (“personal data”) is about to change. The General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, known as “GDPR”) will become applicable throughout the EU, including Cyprus, on 25 May 2018. […]
April 6, 2017
The Cypriot Companies Law, cap. 113 was amended in May 2015 with the addition of Part IVA. This part, entitled “Appointment of Examiner” incorporated the procedure of examinership into the Cypriot legal framework, following the model of the equivalent Irish legislation. The purpose of the examinership procedure is to provide a rescue mechanism for companies which are in insolvent, but can nevertheless be saved. The case law is clear that examinership aims in rescuing troubled companies for the benefit of the economy and not in aiding shareholders whose investment has proved unsuccessful.
The filing of the petition
An examiner can only be appointed by a Court Order. A petition requesting the Court to appoint an examiner can be filed by the company itself, by a creditor, by a shareholder holding at least 10% of the paid-up and voting share capital of the company, a guarantor of the company’s debts or any of the above jointly. The petition must be accompanied by an Independent Expert’s Report which outlines the prospects of viability of the company. The Independent Expert must be either an auditor or an insolvency practitioner, and may be the company’s existing auditor.
The legislation provides that once a petition is filed, the petitioner has three days within which to notify the Registrar of Companies and all “interested parties”, a term which includes all creditors of the company. Failing to comply with this requirement is a criminal offence (it has even been argued in one case that the legal effect of such non-compliance is to invalidate the entire process. This point was not decided by the Court however). There is conflicting Cypriot case law (first instance judgments) as to whether this tight deadline can be extended. The matter has not yet been examined by the Supreme Court. As the deadline is very tight, there is case law suggesting that the petitioner would be wise to file simultaneously with the petition, an application seeking directions from the Court as to the manner of notification within the deadline. For such application to have any meaning, it would of course have to be heard by the Court on the date it is filed.
Results of the filing of the petition
Subject to certain exceptions, from the date of the filing of the petition the company is placed under Court protection for a period of four months or until the petition is dismissed – whichever occurs earlier. In certain circumstances, this period can be extended for a further two months. During this period of court protection, no execution measures can be taken against the company and no securities it has granted may be realised (unless there is an examiner appointed and he/she concurs). Also, no winding up petition can be filed in relation to the company and no receiver may be appointed to it.
Criteria for appointment of an examiner
If prior to the filing of the petition, a receiver was appointed to the company for a continuous period of at least 30 days, the Court is obliged to refuse to hear it. Our law firm was recently successful in convincing the Court to reject an examinership petition on this ground, where we were acting for the receivers of the company in question (Re Polynikis Tourist Enterprises Ltd – to see the judgment in Greek click on the link http://www.cylaw.org/cgi-bin/open.pl?file=/apofaseised/pol/2017/4120170073.htm).
The Court also has discretion to refuse to even hear the petition if it is satisfied that the petitioner or the Independent Expert either failed to disclose material facts to the Court or did not act in good faith. The case law suggests that the petitioner and the Independent Expert owe a duty of good faith at all stages of the process.
If the petition is heard by the Court, the main criterion on which the decision whether to appoint an examiner turns, is whether there is a reasonable prospect that the company and all its business or any part thereof can survive as a going concern. According to the case law, this is a two-stage process for the Court. Firstly, the Court examines whether the company has a reasonable prospect of survival. In deciding this issue the Court will consider the Independent Expert’s Report and any other evidence it has available. If this threshold is satisfied, then the Court proceeds to examine whether in all the circumstances it is right to exercise its discretion and appoint an examiner. The Court is therefore not obliged to appoint an examiner, even if it accepts that there is a reasonable prospect of its survival.
The Cypriot experience
Experience shows that as a rule there must be co-operation between all interested sides for the successful appointment of an examiner. Until now the necessary consensus has not been easy to attain in Cyprus and thus there are no recorded cases of an examiner being appointed.
February 23, 2017
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GTDT: What are the most popular dispute resolution methods for clients in your jurisdiction? Is there a clear preference for a particular method in commercial disputes?
Nicos Georgiades & Nataly Papandreou: The most popular dispute resolution methods for clients in Cyprus are litigation and arbitration, though there has been a cumulative increase in the prevalence of mediation. Conciliation is also used as an alternative dispute resolution (ADR) mechanism but less often. Although litigation remains the most prevalent dispute resolution regime with regards to commercial disputes, it is unclear whether this is the result of a specific preference as opposed to indulging in traditional and familiar, pre-existing litigation practices. Depending on the nature of the commercial dispute, however, parties may resort to arbitration; for example, where issues requiring extensive expertise to be resolved are likely to determine the outcome the case, such as in construction disputes.
GTDT: Are there any recent trends in the formulation of applicable law clauses and dispute resolution clauses in your jurisdiction? What is contributing to those trends? How is the legal profession in your jurisdiction keeping up with these trends and clients’ preferences?
Nicos Georgiades & Nataly Papandreou: There are no recent trends in the formulation of applicable law clauses and dispute resolution clauses in Cyprus.
April 15, 2015
The international tax landscape is changing. It is becoming increasingly clear that it is not a matter of moving from one jurisdiction to another. The initiatives undertaken by the G20 and the OECD are global in their reach and wide in their scope. The purpose of this note is to give you some information as to the recent trends and developments, that make it essential for international clients to have proper / appropriate / relevant “substance” in Cyprus.
Substance needs to be an important aspect of clients’ activities and we strongly recommend that clients discuss this issue with their legal and tax advisors. It is important to remain ahead of the developments and be well prepared for the challenges that lie ahead.
SUBSTANCE in Cyprus is vital in order to:
- support Cyprus tax residency status
- avoid creating a taxable presence in another jurisdiction
- support transfer pricing challenges
- defend beneficial ownership increased anti-avoidance and anti-abuse provisions
- exchange information transparently and confidently
- Corporate “substance” refers to having appropriate people and assets in place to perform the activities of the company
- Substance is important due to international trends such as the OECD BEPS work and increasing pressure from Russia in particular to question structures as being artificial
- If a structure is proved to be artificial, any tax benefits (through access to Double Tax Treaties, EU Directives) may be denied
- Substance is therefore the key to keeping tax cost at its planned level.
- To advise on proper substance, it entails reviewing a client’s existing structure and advising on what needs to be done in order to enhance the set-up in Cyprus
Triggering points that more substance is required:
1) Set-up already scrutinized by a foreign tax authority
2) Group is in the public eye and subject to scrutiny either by virtue of its size and/or because of its owner(s), for example PEP shareholder
3) Transactions/revenue flows are (or are expected to be) material and Cypriot company customarily passes the revenue to another entity (dividends/interest/royalties) instead of reinvesting it
4) Company has foreign directors who customarily participate in BoD meetings via telephone
5) Cyprus local directors lack the experience/CV to take decisions and are in essence service providers, servicing a number of companies
6) Company routinely transacts business through written resolutions approved by directors who are abroad when they consider and sign these resolutions
7) Company has issued general powers of attorney with wide powers to non-residents
8) Company is thinly capitalised (high debt/equity ratio)
9) Cypriot company maintains a Representative Office abroad which claims is not a profit-centre
10) Company does not have owned/rented premises, only a registered office address (“letter box company”)
The message is:
“Cyprus still remains a very attractive, competitive and business friendly jurisdiction for setting up international business and headquarters of companies but it is imperative that, going forward, more sophistication is required to ensure appropriate set up (substance) is in place and this is maintained and improved.”
January 5, 2015
Nicos Georgiades, a well-established corporate litigator and the partner of our firm in charge of Corporate Litigation along with Argyris Nicolaou an associate lawyer in our firm have co-authored the chapter relating to the Republic of Cyprus in the third edition of the book International Fraud & Asset Tracing published by The European Lawyer Reference. The chapter covers several topics including the management of an internal investigation, data protection, access to employee’s emails, legal privilege, anti-bribery and anti-corruption legislation and asset/document preservation.
November 23, 2014
The British Virgin Islands (the “BVI”) had at the end of 2012 enacted record-keeping rules for companies already registered and new, and limited partnerships to comply with OECD requirements. These rules were revised in September 2014 and the key requirements are:-
(1) Records must be maintained for at least five (5) years from the commencement or termination of a transaction.
(2) These records and underlying documentation can be kept in the BVI or elsewhere.
(3) In cases where this documentation is kept outside the BVI the company concerned must inform in writing its BVI registered agent of the physical address where these records are kept and of any change in their location.
It should be noted that companies must still meet their existing obligation to keep records that:-
(1) Are sufficient to show and explain the company’s transactions.
(2) Enable the financial position of the company to be determined with reasonable accuracy.
The recently introduced rules state that these records must include:-
(1) sums of money received and expended;
(2) sales and purchases of goods; and
(3) assets and liabilities.
The term “underlying documentation” is defined as including “accounts” but does not mean that companies have an obligation to produce and maintain financial statements. The term means that they are required to keep “accounting records”.
It should also be noted that companies and partnerships that contravene the record-keeping obligation are liable to penalties. The new rules do not for the time being impose penalties for non-compliance. However, companies are required to comply with requests for information from the BVI tax authority which is responsible for dealing with requests from overseas tax authorities pursuant to the relevant tax information exchange agreements to which the BVI is a party.