Doing business in Anguilla

A Q&A guide to doing business in Anguilla.

This Q&A gives an overview of key recent developments affecting doing business in Anguilla as well as an introduction to the legal system; foreign investment, including restrictions, currency regulations and incentives; and business vehicles and their relevant restrictions and liabilities. The article also summarises the laws regulating employment relationships, including redundancies and mass layoffs, and provides short overviews on competition law; data protection; and product liability and safety. In addition, there are comprehensive summaries on taxation and tax residency; and intellectual property rights over patents, trade marks, registered and unregistered designs.

To compare answers across multiple jurisdictions, visit the Doing business in... Country Q&A Tool.

This article is part of the multi-jurisdictional guide to doing business worldwide. For a full list of contents, please visit www.practicallaw.com/dbi-mjg.

Pam Webster, WEBSTER (Lex Mundi Member Firm)
Contents

Overview

1. What are the key recent developments affecting doing business in your jurisdiction?

The recent developments are:

  • In 2014, the government of Anguilla is considering introducing VAT.

  • In 2015, the Anguilla general election will take place.

  • The Foreign Account Tax Compliance Act (FATCA) final regulations were issued on 17 January 2013, however there has been no Inter Governmental Agreement (IGA) yet.

  • The Government is considering introducing a new Labour Code (it has already been presented in draft form).

 

Legal system

2. What is the legal system based on (for example, civil law, common law or a mixture of both)?

The legal system is based on English common law supplemented by local statutes. The system is administered by the Magistrate's Court, the High Court and the Court of Appeal of the Eastern Caribbean Supreme Court. There is a final right of appeal to the Privy Council in the UK. English case law precedents and those of other British Commonwealth countries are persuasive.

 

Foreign investment

3. Are there any restrictions on foreign investment (including authorisations required by central or local government)?

The Government of Anguilla depends on foreign investment, therefore, there are no restrictions. However, government approval is required to ensure that the investment is a good fit for Anguilla. Investment approval is in the form of a Memorandum of Understanding (MOU) between the government and the developer/investor. The investment approval is a two step process:

  • Investment approval in principle where the government determines that the project concept and the developer are acceptable.

  • Investment approval in full which is granted by Executive Council following successful negotiations between the parties.

Anguilla is a low tax jurisdiction. There is no corporate, personal (other than an interim local employment levy) or capital gains tax, and no restriction on repatriation of profits or on foreign exchange.

The upcoming FDI projects in Anguilla include:

  • Royale Caribbean.

  • Malliouhana (due to complete in October/November 2014).

  • Harrigan Town Plaza.

  • Cinnamon Reef.

  • Blowing Point Port Development.

  • Altamar Expansion.

  • Rendezvous Bay Project.

 
4. Are there any restrictions on doing business with certain countries or jurisdictions?

There are no restrictions on doing business with any countries or jurisdictions.

 
5. Are there any exchange control or currency regulations?

Anguilla welcomes foreign investors and one of the incentives is that there are no currency or exchange controls in Anguilla. Further, no approval needs to be obtained for the transfer of dividends, interest, royalties, other profits and repatriation of capital. Companies are allowed to repatriate all profits, dividends and management charges. In order to prevent money laundering or fraud, simple disclosures and declarations are required when transferring large sums of money in or out of the jurisdiction.

 
6. What grants or incentives are available to investors?

The following incentives may be granted by the government on a discretionary basis:

  • Customs duty exemptions provided during the construction phase and for refurbishment (4 times over a 20 year period).

  • Reduction of the customs administration charge from 5% to 2.5% during the construction phase.

  • Reduction of the Stamp Duty due under the Aliens Land Holding Licence Regulation Act from 12.5% to 5%.

  • Expedited processing of licenses, permits, and approvals.

When making its decision whether to grant an incentive, the government will look at, among other things, the size of the investment and the number of indigenous persons who will be employed as a result of the project.

 

Business vehicles

7. What are the most common forms of business vehicle used in your jurisdiction?

The International Business Company (IBC) is the most common form of vehicle for offshore business. It has features common to models used in a number of offshore jurisdictions and is suitable for companies that will not be doing business on the island. IBCs have a simple and swift formation process and limited reporting requirements. An IBC can be used in conjunction with other entities, such as a trust, foundation or various forms of partnership, as circumstances may require. IBCs are regulated under the International Business Companies Act. Their key features include:

  • An IBC can have only one director, who can be a nominee or any recognised person under Anguillian law, including a company, trust or partnership.

  • An IBC can purchase or redeem its shares.

  • Treasury and bearer shares are permitted.

  • Share register inspection is restricted to registered shareholders.

  • There are no financial audit or statement requirements.

  • Domicile can easily be transferred to and from Anguilla.

  • Meetings can be held anywhere, by telephone or other electronic means.

 
8. In relation to the most common form of corporate business vehicle used by foreign companies in your jurisdiction, what are the main registration and reporting requirements?

Registration and formation

Anguilla's Commercial Online Registration Network (ACORN) enables instant and secure electronic incorporation and registration. An IBC can be incorporated instantly from anywhere in the world 24 hours a day, 365 days a year. A company's name must end with a word, phrase or abbreviation which indicates limited liability status. There are still many company names available and they can be reserved ahead of incorporation.

Reporting requirements

Reporting requirements are limited to the name of the company, its registered office and agent and its authorised capital.

Share capital

There are no minimum or maximum share capital requirements and the share capital can be denominated in any currency approved by the Registrar of Companies.

Non-cash consideration

Apart from money, shares can also be issued for:

  • Services rendered.

  • Personal property (including other shares, debt obligations or other securities in the company).

  • An estate in real property.

  • A promissory note.

  • Another binding obligation to contribute money or property.

  • Any combination of these.

In the absence of fraud, the decision of the directors as to the value of the consideration received is conclusive, unless a question of law is involved.

Rights attaching to shares

Restrictions on rights attaching to shares. There are no restrictions on rights attaching to shares unless specifically imposed by the IBC’s articles or bye-laws.

Automatic rights attaching to shares. Unless otherwise specified in the articles or bye-laws or upon the issue of a share, each share of an IBC has the following rights attached to it:

  • The right to one vote at any meeting of the shareholders of the company (provided, if it is a meeting of the shareholders of a class, the holder of the share is a member of that class).

  • The right to an equal share in dividends declared and paid by the company.

  • The right to an equal share in any distribution of the surplus assets of the company.

 
9. In relation to the most common form of corporate business vehicle used by foreign companies in your jurisdiction, outline the management structure and key liability issues.

Management structure

Subject to its articles or bye-laws, the business and affairs of an IBC must be managed by a board of directors that consists of one or more persons (individuals or companies). There can be one or more directors, who can be nominees (nominees can be a company, trust or partnership).

Management restrictions

There are no restrictions on foreign managers. Directors can be of any nationality and resident in any country.

Directors' and officers' liability

No director, officer, agent, liquidator or shareholder of an IBC is liable for any debt, obligation or default of the company. However, parties can be liable for their own conduct or acts.

Parent company liability

A parent company is not liable for the debts, obligations or default of its subsidiary company, although it can be liable for its own conduct or acts.

 

Employment

Laws, contracts and permits

10. What are the main laws regulating employment relationships?

The main laws regulating employment relationships are:

  • Fair Labour Standards Act.

  • Employment of Women, Young Persons and Children Act.

  • Employment of Children (Restriction) Act.

  • Trade Dispute (Arbitration and Injury) Act.

  • Workmen's Compensation Act.

  • The Trade Union Act.

The above legislation applies to all employees, both local and foreign, working in Anguilla. The Fair Labour Standards Act provides that there is no prohibition on an employer conferring on an employee benefits which are more favourable than those provided in the Act. However, it is not open to an employer to impose terms on an employee which are less favourable than those provided in the Act.

 
11. Is a written contract of employment required? If so, what main terms must be included in it? Do any implied terms and/or collective agreements apply to the employment relationship?

Contracts of employment can be either written or oral.

The minimum details which must be included in a written contract of employment include (Fair Labour Standards Act):

  • The name and address of the employer.

  • The name and address of the employee.

  • The date of commencement of the employment and, if for a fixed term, the date of termination.

  • The employment category, rate of pay and the pay interval (which cannot be greater than one month).

  • The length of any probationary period and the period of termination notice.

  • The hours of work and overtime and premium rates, if any.

  • The period of annual holidays, sick leave and, for a female employee, maternity leave and the applicable rates of pay in each case.

 
12. Do foreign employees require work permits and/or residency permits?

Foreign employees who are not 'belongers' require a work permit under the Control of Employment Act. These permits are renewable annually, except for the financial services and technology sectors where three-year work permits are available. An applicant must produce satisfactory medical and character references before his application is considered. Due to the shortage of skilled labour, more than 95% of applications are approved. Government policy is to grant work permits only where there are no suitably qualified or skilled locals to fill the position. Employers must advertise the position for two weeks and satisfy the Labour Department that no qualified local person is available and/or interested.

Termination and redundancy

13. Are employees entitled to management representation and/or to be consulted in relation to corporate transactions (such as redundancies and disposals)?

Employees are not entitled to management representation and/or to be consulted in relation to corporate transactions.

 
14. How is the termination of individual employment contracts regulated?

An employment relationship cannot be terminated unless there is a valid reason for the termination connected to the employee's capacity or conduct, or based on the operational requirements of the undertaking, establishment or service.

Legislation does not make the distinction between unfair and unjustified dismissal. Where an employee (or any person or organisation acting on his behalf) alleges that he has been illegally or unfairly dismissed, and no settlement of the issue is reached in direct discussions with the employer, the dispute can be referred for settlement to the Labour Commissioner. Either the employer, the employee or anyone or any organisation respectively acting on their behalf may refer the dispute (Fair Labour Standards Act). The onus of proof rests on the employer.

Where the Labour Commissioner finds that the dismissal was unfair or illegal, the Tribunal has the power to order either that the employee be reinstated (if it considers that remedy appropriate and feasible) or that the employee be paid compensation in lieu of reinstatement.

 
15. Are redundancies and mass layoffs regulated?

Where an employer contemplates terminating the employment of five or more employees on the grounds of redundancy, he must inform the Labour Commissioner as soon as practicable and in any event not less than three months before the effective date, save in exceptional circumstances.

The notification to the Labour Commissioner must state:

  • The number and categories of employees to be made redundant.

  • The reasons for the redundancies.

  • The period over which the redundancies are to take place.

  • Whether there has been any consultation with any trade union representing the employees or, in the absence of such a trade union, with the employees themselves, and, if so, the results.

 

Tax

Taxes on employment

16. In what circumstances is an employee taxed in your jurisdiction and what criteria are used?

An employee is subject to the interim employment levy if he carries out work in Anguilla for an Anguilla employer. The concept of tax residency does not exist in Anguilla.

 
17. What income tax and social security contributions must be paid by the employee and the employer during the employment relationship?

During the employment relationship, both employer and employee must contribute 5% of the employee's remuneration as a social insurance contribution. Additionally, an interim stabilisation levy was introduced in 2011, with both employer and employee required to contribute 3% of the amount of the employee's remuneration. This applies to both foreign and local employees.

Tax resident employees

Tax resident employees must contribute the following:

  • Levy. Employees pay 3% of their salary and the employer pays 3%, that is up to EC$12,000 per month.

  • Social Security. Employees pay 5%, that is up to EC$7,000.00 per month.

Non-tax resident employees

Non-tax resident employees pay the same as tax resident employees once they apply for a work permit and work in the jurisdiction.

Employers

Employers must contribute the following:

  • Levy. If self-employed, they pay 6% of earnings.

  • Social Security. 5% up to EC$7,000.00 per month.

Business vehicles

18. When is a business vehicle subject to tax in your jurisdiction?

Tax resident business

See Question 16.

Non-tax resident business

See Question 19.

 
19. What are the main taxes that potentially apply to a business vehicle subject to tax in your jurisdiction (including tax rates)?

There is no tax levied on the activities of business vehicles in Anguilla, with the exception of the employer contributions outlined in Question 17.

Dividends, interest and IP royalties

20. How are the following taxed:
  • Dividends paid to foreign corporate shareholders?

  • Dividends received from foreign companies?

  • Interest paid to foreign corporate shareholders?

  • Intellectual property (IP) royalties paid to foreign corporate shareholders?

There is no tax levied on dividends, interest or royalty payments.

Groups, affiliates and related parties

21. Are there any thin capitalisation rules (restrictions on loans from foreign affiliates)?

There are no thin capitalisation rules.

 
22. Must the profits of a foreign subsidiary be imputed to a parent company that is tax resident in your jurisdiction (controlled foreign company rules)?

There are no controlled foreign company rules.

 
23. Are there any transfer pricing rules?

There are no transfer pricing rules.

Customs duties

24. How are imports and exports taxed?

Import duties are one of the government's principal sources of revenue. The rate structure is complex; however, principal rates are between 15% and 35%.

The principal legislation regulating imports and exports is:

  • The Customs Act. This Act provides for the imposition of duties.

  • The Customs Administrative Costs Recovery Act. This Act imposes a levy of 5% of the value of certain goods relieved from duty.

  • The Export Duty Act. This Act imposes a duty on a very limited range of goods such as livestock, lobsters and raw materials such as salt, sand and stone.

There are no other applicable export taxes.

Double tax treaties

25. Is there a wide network of double tax treaties?

As a British Overseas Territory, Anguilla does not generally enter into treaties or become a member of international organisations in its own right. However, Anguilla complies with the Organisation for Economic Co-operation and Development's (OECD) requirement to seek to enter into tax information exchange agreements with other jurisdictions, with 17 of such agreements already in place. Three more agreements are currently in the process of being completed with more set to follow

 

Competition

26. Are restrictive agreements and practices regulated by competition law? Is unilateral (or single-firm) conduct regulated by competition law?

There are no competition or anti-trust laws in Anguilla.

 
27. Are mergers and acquisitions subject to merger control?

There is no merger control. However, should an Anguilla-resident business be subject to acquisition by a foreign entity, an Alien Land Holding Licence must be secured from the government.

 

Intellectual property

28. Outline the main IP rights in your jurisdiction.

Patents

Definition and legal requirements. The registration in Anguilla of a UK patent confers on the holder the like privileges and rights, subject to the like conditions, as if the patent had been granted in the UK with an extension to Anguilla. Upon registration in Anguilla patent applications have priority in accordance with the Paris Convention.

There are civil penalties for their unauthorised exploitation. A UK or European patent grantee can re-register within three years of having obtained a UK grant by virtue of registration under the UK Patents Act 1977 and by virtue of the Convention on the Grant of European Patents. The Registrar must be given written notice of any change in ownership, which is then published.

Registration. The existence and registration of patents in Anguilla is governed by the Patents Act (Revised Statutes of Anguilla (RSA), Ch. P15), which determines what are patentable inventions.

Enforcement and remedies. In legal proceedings involving companies, the company itself, together with the directors, manager, secretary or similar officers will be prosecuted where it is proven that the offence was committed with the consent or connivance of such person.

Length of protection. A patent is protected for 20 years from the date of filing or in accordance with the UK or EP patent being extended. Patents are non-renewable. However, in order to maintain the patent or application, a prescribed annual fee is payable to the Registrar one year after the filing date application. A grace period of six months is given for late payment of the prescribed annual fee on payment of the prescribed surcharge. However, if the annual fee is not paid, the patent application is deemed to have been withdrawn or the patent will lapse.

Trade marks

Definition and legal requirements. Any person, other than the registered proprietor, wishing to use a registered trade mark, in relation to any goods or services for which it has been registered, requires the agreement of the registered proprietor.

The registered proprietor has the right to file court proceedings against any person who infringes the trade mark by using it without his agreement, or who performs acts which make it likely that infringement will occur. The right extends to the use of a sign similar to the registered trade mark and use in relation to goods and services similar to those for which the trade mark has been registered, where confusion may arise.

The rights do not extend to acts in respect of articles which have been put on the market in Anguilla by the registered owner or with his consent.

Protection. Trade marks are registered in Anguilla under the Trade Marks Act (RSA, Ch.T30). The Act makes provision for registration in Anguilla of trade marks that have already been registered in the United Kingdom. In order to effect registration, the following must be submitted:

  • The original or a certified copy of the Certificate of the Comptroller-General relating to the UK registration.

  • A notarised power of attorney.

If satisfied as to the validity of the application, the Registrar will issue a certificate of registration and the applicant has the same rights and privileges in the use of the trade mark as would be conferred on him by UK law.

The registration is valid for the remainder of the mark's original registration period in the UK. Renewals depend on the renewal of the mark in the UK and payment of a renewal fee in Anguilla. An advantage of registration under the UK Act is that an applicant may dispense with some of the formal requirements such as advertising which are required under the Anguilla Act.

Enforcement and remedies. There are civil and criminal penalties for infringement.

Length of protection and renewability. Registration is valid for ten years and is renewable for further consecutive periods of ten years upon payment of the relevant fee. The Act also provides for the invalidation and removal of marks from the register on the grounds of non-use, and for changes in ownership and the correction of errors.

Registered designs

Definition. An industrial design can be registered if it is new. An industrial design that is contrary to public order or morality is not registrable. The design must relate to physical appearance and aesthetic effect. Disclosure to the public of an industrial design is not taken into consideration if the disclosure:

  • Occurred within 12 months preceding the filing date or, where applicable, the priority date of the application.

  • Was due to acts committed by the applicant or his predecessor in title or an abuse committed by a third party with regard to the applicant or his predecessor in title.

Registration. Industrial designs are protected under the Industrial Designs Act, (RSA, Ch.I11) which fulfils the requirements for protection under the World Trade Organisation Treaty. Protection is by registration with the Registrar of Companies.

Enforcement and remedies. On the request of the owner of a registered industrial design or a licensee (where he has requested the owner to institute court proceedings for a specific relief and the owner has refused or failed to do so) the court can grant an injunction to prevent infringement or an imminent infringement, award damages and grant any other remedy provided for in the general law. Any person who intentionally performs an act which constitutes an infringement is guilty of an offence and is liable on summary conviction to a fine or imprisonment.

Length of protection and renewability. Protection is for an initial period of five years from the filing date. Two consecutive periods of five years are granted subject to payment of the prescribed fee.

Unregistered designs

There is no recognition, protection or enforcement of unregistered designs.

Copyright

Definition and legal requirements. Copyright is governed (as regards infringements) by the Anguilla Copyright Act (RSA, Ch.C120), and (as regards general copyright law) by the UK Copyright Act 1956 as extended to Anguilla. Protection is afforded to the owners and authors of all literary and artistic works of an original nature in the literary and artistic domain. This includes dramatic and choreographic works and even extends to sermons.

The economic rights of the copyright owner are assignable in whole or in part and any assignment must be made in writing. Moral rights under the Act are not transmissible by the owner except by testamentary disposition or by operation of law upon the death of the owner/author. The owner/author can waive those rights provided that the waiver is in writing and specifies the nature and extent of the waiver.

Protection. There is no provision for registration of copyright. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, or of their content, quality and purpose. Ideas, the official text of legislation and political speeches are not protected.

Enforcement and remedies. Criminal liability arises in instances of infringement. A person found guilty can be fined and/or imprisoned for infringement of a right protected under the Act. Civil remedies, most commonly injunctive relief, damages, seizure and destruction, are available to a wronged party.

The law is very stringent in the prosecution of infringement and the usual privilege against self-incrimination and spousal incrimination does not apply under the Act.

Length of protection and renewability. Copyright is protected for the author's life plus 50 years or, in the case of joint authorship, after the death of the last surviving author. This period may vary in the case of works of applied art, collective work or work published anonymously.

Confidential information

Definition and legal requirements. The Confidential Relationships Act (RSA, Ch.C85) prohibits the disclosure of confidential information relating to a person's financial business, subject to certain exceptions. The common law principle of confidentiality between a client and his lawyer or banker also applies. There are also limited confidentiality provisions under the Electronic Transactions Act (RSA, Ch.E38).

Protection. The Confidential Relationships Act provides stringent penalties for the improper release of confidential information, whether by private individuals or public officials. The Act does not protect against inquiry with respect to criminal activity considered a serious offence in Anguilla. The governments of Anguilla and the United States have ratified a mutual legal assistance treaty that extends the exchange of information between them regarding activities considered criminal in both jurisdictions. The treaty is aimed specifically at drug-related and money-laundering taint.

Enforcement and remedies. Strict provisions guarantee the confidentiality of sensitive business records. Any person, other than a professional person, who is in possession of confidential information to which he is not entitled, who offers or divulges, or attempts to offer or divulge, the information is liable on summary conviction to a fine or imprisonment.

Length of protection and renewability. Protection continues for as long as the information remains confidential.

 

Marketing agreements

29. Are marketing agreements regulated?

There is currently no regulation of marketing agreements

 

E-commerce

30. Are there any laws regulating e-commerce (such as electronic signatures and distance selling)?

There is a general provision for digital signatures in the Electronic Transactions Act. However, for the ACORN Companies Registry system (see Question 8), provision is made in section 4 of the Companies Registry Act for the filing of documents in the Companies Registry in electronic form and in section 6 for the electronic authentication of documents (digital signatures).

In proceedings in a court, tribunal or arbitration, whether of a legal, judicial, quasi-judicial or administrative nature, the admissibility of an electronic record or an electronic signature in evidence cannot be denied solely on the grounds that it is an electronic record or an electronic signature (Electronic Transactions Act).

Contracts can be concluded using electronic signatures provided the requirements of the Electronic Transactions Act are satisfied (that is, the electronic signature is "as reliable as was appropriate for the purpose for which the electronic record was generated or communicated, in all the circumstances").

An electronic signature is deemed reliable if all of the following apply:

  • The means of creating the electronic signature is, within the context in which it is used, linked to the signatory and to no other person.

  • The means of creating the electronic signature was, at the time of signing, under the control of the signatory and of no other person.

  • Any alteration to the electronic signature, made after the time of signing, is detectable.

  • Where a purpose of the requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.

 

Advertising

31. Outline the regulation of advertising in your jurisdiction.

There is currently no regulation of advertising in Anguilla.

 

Data protection

32. Are there specific statutory data protection laws? If not, are there laws providing equivalent protection?

There is no data protection legislation currently enacted in Anguilla.

 

Product liability

33. How is product liability and product safety regulated?

Anguilla has a conventional Sale of Goods Act, but no other specific consumer protection legislation. There are no specific provisions governing advertising, though the common law relating to misrepresentation will apply.

 

Main business organisations

Government of Anguilla

W www.gov.ai/

Main activities. Information about the departments and agencies of Government. Current information on policies and programmes and general information for prospective investors.

Anguilla Finance Limited

W http://anguillafinance.ai/

Main activities. Financial and commercial advice in respect of Company Management, Captive Insurance, Banking, Trusts and Foundations, Mutual Funds.

Anguilla Financial Services Commission

W www.fsc.org.ai/

Main activities. Supervision of financial services.

Anguilla Laws

W www.anguillalaws.com/Acts.asp

Main activities. Anguilla statutes available for purchase.

Anguilla Commercial Online Registration Network (ACORN)

W www.anguillafsc.com/

Main activities. Companies, Trusts and Foundations, Intellectual Property, Financial Services Legislation.



Online resources

Anguilla Legislation

W www.anguillalaws.com/Acts.asp

Description. This is an official website which contains up to date legislation. It is maintained by the Attorney General’s office.



Contributor profiles

Pam Webster, Managing Partner

WEBSTER

T +1 264 461 2060
F +1 264 461 3096
E pwebster@websterlawbwi.com
W www.websterlawbwi.com

Professional qualifications. Eastern Caribbean Supreme Court, Barrister and Solicitor

Areas of practice. Bankruptcy; company law; construction law; government relations; real estate and property; insurance.

Languages. English, French

Professional associations/memberships.

  • Anguilla Bar Association.
  • Anguilla Financial Services Association (Chairman, Marketing Committee 1995-1996, President 2001- present).
  • Anguilla Finance Limited (Chair).
  • International Tax Planning Association.
  • International Fiscal Association.
  • International Bar Association.
  • Society of Trust and Estate Practitioners.

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