Family Law in the Cayman Islands

On 1st January 2016, the Trade and Business Licensing Law, 2014 (the "Law") comes into force in the Cayman Islands and replaces the previous legislative framework in its entirety.  

 

The Law addresses some of the operational issues currently faced by the Department of Commerce & Investment ("DCI") and the Trade and Business Licensing Board (the "Board"). 

business resources in the Cayman Islands

Introduction

Definition and scope

A "trade and business" includes any profession, calling, vocation, occupation, trade, manufacture, mercantile, wholesale or retailing operation or an undertaking of any kind whatever, whether carried on seasonally, occasionally or otherwise.  

 

However, the Law does not apply to the following exempted circumstances:-  

  1. Any trade or business licensed or registered to be carried on under another Cayman Islands statute;

  2. The sale of agricultural products by Caymanian producers thereof;

  3. Artisans, craftsmen and other persons who do not carry on a business of their own but are themselves employed by other persons; and,

  4. Self-employed Caymanian fishermen.

 

Any corporation or body which satisfies the Board that it has been formed for purposes of social or public welfare, religion, charity, art or science.

Timing

The new legislation imposes time limits:

  1. all new applications are heard within 90 days of receipt; and,

  2. all renewals are handled within 30 days.  

 

An expedited process has also been introduced whereby upon the payment of a premium, applications will be dealt with within five business days.

The new legislation attempts to eradicate 'fronting' arrangements by introducing a requirement for enhanced "Know Your Customer" (KYC) information at the time of applying for a grant or renewal of a licence: 

 

  • Where a company is not Caymanian owned and controlled, the applicant is required to apply for a licence under the Local Companies Control Law (2015 Revision) prior to applying for a licence under the Law. 

 

  • The Board may take steps to carry out due diligence with regards to any person who has a beneficial interest in a trade or business for which an application for the grant or renewal of a licence is made under the Law. 

Business name

Provision is made within the legislation for revocation or refusal of a licence where a person is carrying on or intending to carry on, trade or business under a name which is likely to mislead prospective clients or customers, where: 

  • the name is identical to the name of any other person carrying on trade or business, whether in the Islands or not, or so nearly resembles that name as to be calculated to deceive;

 

  • the identity of the business is identical or similar to a registered trade mark unless it is established that the trade or business is the owner of the trade mark or it has a licence to use the trade mark;

 

  • the name is calculated to suggest, falsely, the patronage of or connection with some person or authority, whether in the Islands or not; or

 

  • calculated to suggest, falsely, that such person has a special status in relation to, or derived from, the Government or has the official backing or acts on behalf of the Government or any department, branch, agency or office of Government.

Fronting

the new trade and business licensing law (2014 Revision)

Provision is made within the legislation for revocation or refusal of a licence where a person is carrying on or intending to carry on, trade or business under a name which is likely to mislead prospective clients or customers, where: 

  • the name is identical to the name of any other person carrying on trade or business, whether in the Islands or not, or so nearly resembles that name as to be calculated to deceive;

 

  • the identity of the business is identical or similar to a registered trade mark unless it is established that the trade or business is the owner of the trade mark or it has a licence to use the trade mark;

 

  • the name is calculated to suggest, falsely, the patronage of or connection with some person or authority, whether in the Islands or not; or

 

  • calculated to suggest, falsely, that such person has a special status in relation to, or derived from, the Government or has the official backing or acts on behalf of the Government or any department, branch, agency or office of Government.

Any sale, transfer, charge or other disposition of a person's interest in the licence will require the prior written approval of the Board. This includes any changes to capitalisation which results in the transfer of a 'significant interest' in the business which constitutes transfer of control of a licensee. 

Transfer of Licence and Capitalisation

The Board and DCI now have enhanced powers to conduct any investigation it considers necessary in relation to the licensee. Upon the issue of a warrant, the DCI may:-

  • Enter any premises for the purpose of ascertaining compliance with the Law;

 

  • Compel the production of books, records and documents in the custody or control of the licensee;

 

  • Compel the appearance of an employee or officer of a licensee or any other person for the purpose of ascertaining compliance with the Law or the relevant licence;

 

  • Inspect, examine or make copies of any book, record or document in the possession of the licensee relevant to the licence held by the licensee;

 

  • Require verification of income and all other matters pertinent to the licence; and

 

  • Seize or remove any document or records relating to the licence for the purpose of examination and inspection.

Enforcement
Fixed Penalty Ticketable Offences

The Law enhances the DCI's enforcement powers by providing for administrative penalties and introduces a 'fixed penalty ticketing' scheme which is administered by DCI's 'trade officers'.

 

The payment of a fixed penalty within 28 days of being served is an option to discharge liability to conviction for the offence set out in the ticket.  A person who is served a ticket however has the option of entering a plea of not guilty and requesting a trial by notifying the Clerk of the Court. 

 

Fixed penalty ticketable offences include: 

  • For a first offence only, carrying on a trade or business in or from within the Islands without a valid licence.

 

  • Destroying or altering or causing to be destroyed or altered, any document, record, equipment or other property found in the course of a search.

 

  • Hindering or obstructing or preventing or interfering with a trade officer or police officer in the exercise of any power under the Law.

 

  • Failing to remove all advertising in contravention of the Law.

 

  • Failing to comply with a condition or restriction of the licence.

 

  • Failing to display the licence as required.

 

  • Failing to notify the Board of any change of address of the licensee.

 

  • Hindering or obstructing or preventing or interfering with the Board in the exercise of its powers.

 

  • Failing, without reasonable excuse, to answer any question relating to any register, book, record or other document or any relevant matter when required to do so by the Board.

 

  • Failing to comply with a direction of the Board.