Re-Domiciliation of a Foreign Company to Gibraltar

Place of Business

Foreign companies are permitted to carry on business in Gibraltar or from Gibraltar, provided that they register under Part XII or Part XIV of the Companies Act. These are known as ‘overseas companies’.

Part XII (Place of Business) Registration applies to all overseas companies incorporated outside Gibraltar that establish a place of business in Gibraltar. A place of business is a premises where there is a physical or visible indication that the company may be contacted.

A foreign company will also have to register if it habitually conducts business from a particular location in Gibraltar, even where there is no physical sign of the company’s connection to it.

Registration as a place of business is for a company that cannot register as a branch either because it is incorporated in the UK, or is not a limited company, or the company’s activities are not sufficient to define it as a branch.

Branch

Part XIV (Branch) Registration applies to any foreign limited company that is incorporated outside the UK and Gibraltar and has a branch in Gibraltar. The concept of branch, agency or other establishment implies a place of business that has the appearance of permanency, has a management and is materially equipped to negotiate business with third parties.

It means that, although aware of the existence of a legal link with the overseas head office, third parties do not have to deal directly with the parent body and can transact business at the place of business constituting the branch.

Gibraltar redomiciliation for foreign companies

However, under Part XIII of the Companies Act, companies that are incorporated in certain jurisdictions outside Gibraltar can also be re-domiciled in Gibraltar.

Once it has registered in Gibraltar, a foreign company that has redomiciled becomes a Gibraltar Company. The process of ‘redomiciliation’ enables a foreign company to shift its place of incorporation from one jurisdiction to Gibraltar while maintaining the same legal identity.

Re-domiciliation therefore allows a company to maximise continuity of its operations while enabling it to shift its place of incorporation. Its corporate history, management structure, assets, intellectual and other property rights, contracts, and regulatory approvals will generally remain intact.

If a foreign company were not permitted to redomicile to Gibraltar, it would be required to establish a new Gibraltar entity, either by transferring assets from the foreign entity to a Gibraltar entity, or by a Gibraltar holding company acquiring shares in the foreign entity.

These mechanisms can trigger complex, lengthy and costly administrative or regulatory issues, such as re-negotiations of contracts, or might result in complex group structures having to be maintained when they could otherwise be rationalised. They can also have undesirable or unnecessary tax consequences, crystalising liabilities as a result of a change of legal identity.

The advantage of re-domiciling a company is that there is no need to transfer its assets, as would be the case if a new company were established in Gibraltar.

A company can re-domicile into Gibraltar from the following countries: European Economic Area (EEA) member states, all UK Overseas Territories and Crown Dependencies, British Commonwealth member states, as well as Liberia, Panama, Singapore, Switzerland, Cyprus, Hong Kong, Malta and the US.

Application to establish a domicile in Gibraltar

An application by a company to establish a domicile in Gibraltar must be made to the Registrar under the Companies (Re-Domiciliation) Regulations 1996 and must be accompanied by an approved resolution of the company containing:

The name of the company and the name, if different, under which registration as a re-domiciled company is sought.
The jurisdiction of incorporation of the company and the name and address of the competent authority in that jurisdiction in respect of that incorporation.
The date of incorporation.
The address of the registered office in Gibraltar.
Any proposed amendments to the memorandum and articles of association that are to take effect on the company’s registration as a re-domiciled company in Gibraltar.

The application must be accompanied by a certificate of good standing in respect of the company issued by the competent authority in its current place of registration, evidence of the consent of any relevant licensing authority, evidence that no proceedings for insolvency have been commenced against the company in the jurisdiction in which it is incorporated.

In the case of a public company, the application must also be accompanied by the most recent prospectus or statement in lieu of prospectus and, if it is a listed company, evidence of the consent of the relevant regulatory body to the redomiciliation and evidence of the current membership of the company.

The information and evidence must be in the English language or must be accompanied by a certified translation into the English language. The name of the redomiciled company must comply with the requirements of the Companies Act and the applicant must have a registered office in Gibraltar.

Certificate of domicile

When the Registrar is satisfied that all of the requirements of regulations have been met and that the company has given notice of its intention to establish a domicile in Gibraltar to the authority of its origin, it will retain all the filed documents and certify that the company has established its domicile in Gibraltar.

The certificate of registration will be conclusive evidence that all of the requirements of the Act and its Regulations have been complied with and that the company has been duly registered.

The Registrar shall publish a notice in the Gibraltar Gazette that a certificate has been issued, stating the name and registered address of the company and the jurisdcition from which it has re-domiciled.

Establishing a domicile in Gibraltar

From the date of the issue of a certificate of registration, the company is a body corporate registered and deemed to be incorporated in Gibraltar.

The company’s property and its business will continue to be vested in the company. The company also continues to be liable for all of its claims, debts, liabilities and obligations. No previous proceedings, order, liability or obligation against the company or any of its officers or members are in any way diminished or released as a consequence of the company’s redomiciliation.

If the company has a charge that was created before it was redomiciled to Gibraltar, it has a period of 30 days from the day following its registration in Gibraltar to register the charge.

Cessation of domicile

The regulations also require the company to satisfy the Registrar that it has ceased to be a company domiciled in the country of its incorporation or in which it was previously domiciled. It can continue to exist under the jurisdiction of its incorporation, but must relinquish its previous domicile.

The company has a period of six months to notify the Registrar by filing a notice of cessation that it has ceased to be a company domiciled in the jurisdiction in which it was incorporated.

Redomiciliation out of Gibraltar

A Gibraltar company is permitted to establish domicile outside Gibraltar in any of the same jurisdictions from which Gibraltar permits inward redomiciliation. To protect investors and creditors, as well as the public at large, the consent of the Registrar in Gibraltar is needed to establish a new domicile abroad.