GIBRALTAR Law and Practice Contributed by: Adrian Pilcher, Stuart Dalmedo and Louise Anne Turnock, ISOLAS LLP
modern legislative framework for all financial and professional service sectors in Gibraltar. The reform consolidated approximately 90 pieces of legislation within an enhanced, more accessible and modernised structure, which introduces cross-sectoral terminology and pow - ers for the Gibraltar Financial Services Com - mission (GFSC), aimed at ensuring consistency across all regulated activities. The Regulations complement the new struc - ture, concepts and terminology of the FSA by consolidating prudential business conduct and other requirements applicable to each financial service industry within respective sets of sector- specific Regulations. Common Law Common law relates to the body of uncodified laws based on legal precedents established by the courts. The common law and the rules of equity from time to time in force in England and Wales apply to Gibraltar, subject to any modifications or exclusions made by His Majesty in Council, an Act of the UK Parliament or an Act passed by the Gibraltar Parliament pursuant to the Gibraltar English Law (Application) Act 1962. While Gibraltar’s legal system is based on that of England and Wales, Gibraltar’s statute law has developed differently in so far as the Gibral - tar Parliament has enacted and amended laws to suit Gibraltar’s own particular requirements. Accordingly, it is important to note that English common law is not binding in Gibraltar but can be a highly persuasive authority in Gibraltar legal proceedings where the statutory background is sufficiently similar.
The fiduciary duties that directors owe to a com - pany, for example, are products of common law and are not codified in statute. Insolvency Act 2011 The Insolvency Act 2011 contains provisions relating to the insolvency and winding up of companies in Gibraltar. Corporate Governance Code for Collective Investment Schemes In 2013, the Gibraltar Funds and Investments Association (GFIA) introduced a Code of Con - duct for Collective Investment Schemes (the “Code” ), which was meant to address best practices in the context of experienced investor funds and private funds. The Code captured existing accepted princi - ples of good practice and guidance, and fur - ther developed these principles by capturing Gibraltar-specific issues such as the governance of self-managed funds and oversight of expe - rienced investor funds structured as protected cell companies. As well as dealing specifically with the role and responsibilities of a fund director, the Code seeks to set out directors’ duties during each stage of the life cycle of a typical fund, and defines what is expected in respect of the effective oversight and supervision of service providers to the fund. It also covers specific elements of the composi - tion of a fund’s board and its collective skill set. In 2018, through a specific addendum to the Code, Gibraltar became the first jurisdiction in the world to issue specific standards for the structure of crypto funds, including corporate governance, risk management, valuation, cus - tody, safekeeping and security, and a host of other important touchpoints (the Corporate
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