GIBRALTAR Law and Practice Contributed by: Emma Lejeune, Stuart Dalmedo, Nicholas Isola, James Castle and Louise Anne Turnock, ISOLAS LLP
days of the date which the annual return is made up to. Companies are also required to deliver annual accounts to Companies House. The account - ing principles to be observed when preparing the accounts vary, depending on the size of the company, and range from an abridged balance sheet to full accounts (including balance sheet, profit and loss account, notes, directors’ report and auditors’ report). The annual accounts must be filed within 12 months (in the case of a private company) or ten months (in the case of a public company) of the financial year-end. Special rules apply in the case of a company’s first reporting period. Companies are also required to deliver certain information and shareholder resolutions when particular changes occur within the company. The Companies Act applies various filing dates depending on the event which triggered a filing requirement. In the majority of cases where fil - ing of documentation is required, the Companies There is a separation between ownership and control in companies limited by shares. Share - holders are the owners of a company and the directors are responsible for a company’s man - agement and day-to-day running, owing a fidu - ciary duty to the company. Act imposes a 30-day filing period. 3.4 Management Structures Most of the obligations and responsibilities of the directors and shareholders are set out in a company’s articles of association. However, the Companies Act does prescribe certain statu - tory obligations and responsibilities – for exam - ple, under the Act, any changes to a compa - ny’s name or articles of association require the approval of a company’s shareholders. These
statutory requirements cannot be overridden by a company’s articles of association. 3.5 Directors’, Officers’ and Shareholders’ Liability Directors’ and Officers’ Liability Under the Companies Act, the officers of a com - pany may be held criminally liable for certain offences which include where the officers fail to comply with certain filing and reporting obliga - tions. Directors are subject to common law, equitable and fiduciary duties. Broadly, these include the following duties: • to exercise skill and care; • to act in good faith and in the best interests of the company; • to act within the powers conferred by the company’s memorandum and articles of association and to exercise powers for a proper purpose; • not to fetter their discretion; • to avoid conflicts of interest; and • not to make a secret profit. The concept of “piercing the corporate veil” is recognised in Gibraltar and personal liability may therefore be imposed in certain situations – for example, where the directors permit an insolvent company or prospectively insolvent company to continue trading unless they can demonstrate that it is beneficial for the creditors to continue to do so. Under the Companies Act, any provision that seeks to exempt or indemnify a director or officer of the company from any liability which by virtue of any rule of law would otherwise attach to them in respect of any negligence, default, breach of duty or breach of trust of which they may be
296 CHAMBERS.COM
Powered by FlippingBook