Offshore financial centre

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An offshore financial centre (or OFC), although not precisely defined, is usually a low-tax, lightly regulated jurisdiction which specializes in providing the corporate and commercial infrastructure to facilitate the use of that jurisdiction for the formation of offshore companies and for the investment of offshore funds.

Contents 1 Brief History 2 Definition 3 Taxation 4 Regulation 5 Confidentiality 6 Offshore structures 7 Ship and aircraft registrations 8 Insurance 9 Collective investment vehicles 10 Banks 11 List of main offshore financial centres 12 Recent developments 13 References 14 External links

[edit] Brief History

The term offshore financial centre is a neologism coined in the 1980s.

• Offshore Financial Centres, Richard Roberts, ISBN 1-85898-155-7 is the book citied for the origin of the term.

[edit] Definition

Offshore financial centres are often (but not always) current or former British Colonies or Crown Dependencies, and often refer to themselves as offshore jurisdictions.

In Tolley's International Initiatives Affecting Financial Havens (2001), Tim Bennett, ISBN 0-406-94264-1, the author in the Glossary of Terms defines an "offshore financial centre" in forthright terms as "a politically correct term for what used to be called a tax haven."

However, he then qualifies this by adding "The use of this term makes the important point that a jurisdiction may provide specific facilities for offshore financial centres without being in any general sense a tax haven."

The term is fluid to a certain extent, and it has been remarked more than once that whether a financial centre is characterized as "offshore" is really a question of degree.[4][5]

The IMF^[1] considers the following to be characteristics of an offshore financial centre:

• Jurisdictions that have relatively large numbers of financial institutions engaged primarily in business with non-residents;
• Financial systems with external assets and liabilities out of proportion to domestic financial intermediation designed to finance domestic economies; and
• Centres which provide some or all of the following services: low or zero taxation; moderate or light financial regulation; banking secrecy and anonymity.

Views of offshore financial centres tend to be polarized. Proponents suggest that reputable offshore financial centres play a legitimate and integral role in international finance and trade, offering huge advantages in certain situations for both corporations and individuals, allowing legitimate risk management and financial planning.

Critics argue that they drain tax from wealthy (and not so wealthy) nations, are insufficiently regulated, and facilitate illegal activities such as tax evasion and money laundering while avoiding legal risk under corporate veil.

Proponents point to the tacit support of offshore centres by the governments of the United States (who promote offshore financial centres by the continuing use of the FSC) and United Kingdom (who actively promote offshore finance in Caribbean dependent territories to help them diversify their economies and to facilitate the British Eurobond market).

OPIC, a U.S. government agency, when lending into countries with underdeveloped corporate law, often requires the borrower to form an offshore vehicle to facilitate the loan financing. One could argue that US external aid statutorily cannot even take place without the formation of offshore entities.

What is certainly true of offshore financial centres is that recently they have attracted a great deal more attention than in the past, and international initiatives spearheaded by the OECD, the FATF and the IMF have had a significant effect on the offshore finance industry.^[2] A number of smaller, less regulated jurisdictions figuratively went to the wall, and closed up shop. Most of the principle offshore centres that remained considerably strengthened their internal regulations relating to money laundering and other key regulated activities. On 23 February 2007 The Economist published a survey of offshore financial centres; although the magazine had historically been very hostile towards OFCs, the report represented a shift towards a very much more benign view of the role of offshore finance, concluding: "...although international initiatives aimed at reducing financial crime are welcome, the broader concern over OFCs is overblown. Well-run jurisdictions of all sorts, whether nominally on- or offshore, are good for the global financial system."[6]

[edit] Taxation

Although most offshore financial centres originally rose to prominence by facilitating structures which helped to minimize tax, tax avoidance has played an increasingly smaller role in the success of offshore financial centres in recent years.

Although most offshore financial centres still charge little or no tax, the increasing sophistication of onshore tax codes has meant that there usually is little tax benefit to moving a transaction structure offshore.

Most professional practitioners in offshore jurisdictions refer to themselves as being "tax neutral", referring to the fact that, whatever tax burdens the proposed transaction or structure will have in its primary operating jurisdiction or market, having the structure based in an offshore jurisdiction will not create any additional tax burdens.

For example, international joint ventures are often structured as companies in an offshore jurisdiction when neither joint venture party wishes to form the company in the other party's home jurisdiction, but both parties wish to ensure that the company's jurisdiction of incorporation will not attract unwanted tax consequences.

Many offshore financial centres used to "ring fence" offshore companies formed in those jurisdictions (International Business Companies formed in the British Virgin Islands are a good example).

However, recent international pressure has brought an end to ring-fencing in most jurisdictions, and most offshore financial centres simply restructured their tax codes so that the activity of the offshore companies, whilst technically subject to tax in the jurisdiction, was never likely to result in tax being assessed.

Critics of offshore financial centres argue that a lack of transparency in offshore financial centres means that they are vulnerable to being used in illegal tax evasion schemes. A number of international organizations also suggest that offshore financial centres engage in "unfair tax competition" by having no, or very low tax burdens, and have argued that such jurisdictions should be forced to tax both economic activity and their own citizens at a higher level.

Another criticism leveled against offshore financial centres is that whilst sophisticated jurisdictions usually have developed tax codes which prevent tax revenues leaking from the use of offshore jurisdictions, less developed nations, who can least afford to lose tax revenue, are unable to keep pace with the rapid development of the use of offshore financial structures.

[edit] Regulation

Most offshore financial centres now promote themselves on the basis of "light but effective" regulation, and generally only seek to regulate high-risk financial business, such as banking, insurance and mutual funds.

Many capital markets bond issues are structured through a special purpose vehicle incorporated in an offshore financial centre specifically to minimize the amount of regulatory red-tape associated with the issue. Some offshore jurisdictions have sought to replicate this success with equity issues by forming local stock exchanges, but these have not been a notable success to date.

A number of internet-based businesses have recently set up business in offshore financial centres which, whilst lawful in the offshore financial centre, would not be lawful in its target market. These businesses often relate to pornography or gambling.

Critics of offshore financial centres suggest that they are not effectively regulated in all areas, and in particular that they are vulnerable to being used by organised crime for money laundering. However, partly in response to international initiatives and partly in a defensive move to protect their reputations, most offshore financial centres now apply fairly rigorous anti-money laundering regulations to offshore business.^[2] Some even argue that offshore jurisdictions are in many cases better regulated than many onshore financial centres.^[3] For example, in most offshore jurisdictions, a person needs a licence to act as a trustee, whereas (for example) in the United Kingdom and the United States, there are no restrictions or regulations as to who may serve in a fiduciary capacity.^[4]

Some commentators have expressed concern that the differing levels of sophistication between offshore financial centres will lead to "regulatory arbitrage",[7] and fuel a race to the bottom, although evidence from the market seems to indicate the investors prefer to utilise better regulated offshore jurisdictions rather than more poorly regulated ones.

[edit] Confidentiality

See also: Confidentiality

Critics of offshore jurisdictions point to excessive secrecy in those jurisdictions, particularly in relation to the beneficial ownership of offshore companies, and in relation to offshore bank accounts.

The criticisms are slightly difficult to assess. In most jurisdictions banks will preserve the confidentiality of their customers, and all of the major offshore jurisdictions have appropriate procedures for either law enforcement agencies to obtain information regarding suspicious bank accounts. Most jurisdictions also have remedies which private citizens can avail themselves of, such as Anton Piller orders, if they can satisfy the court in that jurisdiction that a bank account has been used as part of a legal wrong.

Similarly, although most offshore jurisdictions only make a limited amount of information with respect to companies publicly available, this is also true of most states in the U.S.A., where it is uncommon for share registers or company accounts to be available for public inspection.

In relation to trusts and unlimited liability partnerships, there are very few jurisdictions in the world that require these to be registered, let alone publicly file details of the people involved with those structures.

However, there are certainly well documented cases of parties using offshore structure to facilitate wrongdoing, and the strong confidentiality laws in offshore jurisdictions have clearly played a part in the selection of an offshore vehicle for those purposes.

[edit] Offshore structures

The bedrock of most offshore financial centres is the formation of offshore structures. Offshore structures are characteristically involve the formation of an:

• offshore company
• offshore partnership
• offshore trust
• private foundation^[5]

Offshore structures are formed for a variety of reasons.

Legitimate reasons include:

• Asset holding vehicles. Many corporate conglomerates employ a large number of holding companies, and often high-risk assets are parked in separate companies to prevent legal risk accruing to the main group (ie. where the assets relate to asbestos, see the English case of Adams v Cape Industries). Similarly, it is quite common for fleets of ships to be separately owned by separate offshore companies to try to circumvent laws relating to group liability under certain environmental legislation.
• Asset protection. Wealthy individuals who live in politically unstable countries utilise offshore companies to hold family wealth to avoid potential expropriation or exchange control restrictions in the country in which they live. These structures work best when the wealth is foreign-earned, or has been expatriated over a significant period of time (aggregating annual exchange control allowances).^[6]
• Avoidance of forced heirship provisions. Many countries from France to Saudi Arabia (and the U.S. State of Louisiana) continue to employ forced heirship provisions in their succession law, limiting the testator's freedom to distribute assets upon death. By placing assets into an offshore company, and then having probate for the shares in the offshore determined by the laws of the offshore jurisdiction (usually in accordance with a specific will or codicil sworn for that purpose), the testator can sometimes avoid such strictures.
• Collective Investment Vehicles. Mutual funds, Hedge funds, Unit Trusts ans SICAVs are formed offshore to facilitate international distribution. By being domiciled in a low tax jurisdiction investors only have to consider the tax implications of their own domicile or residency.
• Derivatives trading. Wealthy individuals often form offshore vehicles to engage in risky investments, such as derivatives trading, which are extremely difficult to engage in directly due to cumbersome financial markets regulation.
• Exchange control trading vehicles. In countries where there is either exchange control or is perceived to be increased political risk with the repatriation of funds, major exporters often form trading vehicles in offshore companies so that the sales from exports can be "parked" in the offshore vehicle until need for further investment. Trading vehicles of this nature have been criticised in a number of shareholder lawsuits which allege that by manipulating the ownership of the trading vehicle, majority shareholders can illegally avoid paying minority shareholders their fair share of trading profits.
• Joint venture vehicles. Offshore jurisdictions are frequently used to set-up joint venture companies, either as a compromise neutral jurisdiction (see for example, TNK-BP) and/or because the jurisdiction where the joint venture has its commercial centre has insufficiently sophisticated corporate and commercial laws.
• Stock market listing vehicles. Successful companies who are unable to obtain a stock market listing because of the underdevelopment of the corporate law in their home country often transfer shares into an offshore vehicle, and list the offshore vehicle. Offshore vehicles are listed on the NASDAQ, AIM, the Hong Kong Stock Exchange and the Singapore Stock Exchange. It is estimated that over 90% of the companies listed on Hong Kong's Hang Seng are incorporated in offshore jurisdictions. An article in the Daily Telegraph in March 2007 indicated that 35% of companies listed on AIM during 2006 were from OFCs.[8]
• Trade finance vehicles. Large corporate groups often form offshore companies, sometimes under an orphan structure to enable them to obtain financing (either from bond issues or by way of a syndicated loan) and to treat the financing as "off-balance-sheet" under applicable accounting procedures. In relation to bond issues, offshore special purpose vehicles are often used in relation to asset-backed securities transactions (particularly securitisations).

Illegitimate purposes include:

• Creditor avoidance. Highly indebted persons may seek to escape the effect of bankruptcy by transferring cash and assets into an anonymous offshore company.^[7]
• Market manipulation. The Enron and Parmalat scandals demonstrated how companies could form offshore vehicles to manipulate financial results.
• Money laundering. A number of high profile money laundering investigations have indicated schemes facilitated by offshore structures.
• Tax evasion. Although numbers are difficult to ascertain, it is widely believed that individuals in wealthy nations unlawfully evade tax through not declaring gains made by offshore vehicles that they own.
• Terrorist financing. It is often suggested that offshore vehicles might be used to assist terrorist financing, although exhaustive investigations have yet to obtain any evidence of this. Proponents of offshore jurisdictions argue that because their regulatory structures tend to be designed to focus closely on high risk geo-political areas, and since September 11, 2001 attacks all financial institutions tend to scrutinise United Nations embargoed persons lists with enormous care in international transactions, trying to use an offshore structure for terrorist financing would be like putting a red flag on it.

Although these structures are characteristically set up as companies, they can also be set up as trusts or partnerships, and many offshore jurisdictions offer specialised forms of these entities (for example, the STAR trusts in Cayman and the VISTA trusts in the British Virgin Islands).

[edit] Ship and aircraft registrations

See also: Flags of convenience

Many offshore financial centres also provide registrations for ships (notably Bahamas and Panama) or aircraft (notably Bermuda and the Cayman Islands). Critics suggest that permitting vessels to fly flags of convenience makes ships more difficult to arrest, and permits the evasion of labour laws applicable to seamen. Similar criticisms are rarely made in relation to aircraft registration for a variety of reasons.

Aircraft are frequently registered in offshore jurisdictions where they are leased or purchased by carriers in emerging markets but financed by banks in major onshore financial centres. The financing institution is reluctant to allow the aircraft to be registered in the carrier's home country (either because it does not have sufficient regulation governing civil aviation, or because it feels the courts in that country would not cooperate fully if it needed to enforce any security interest over the aircraft), and the carrier is reluctant to have the aircraft registered in the financier's jurisdiction (often the United States or the United Kingdom) either because of personal or political reasons, or because they fear spurious lawsuits and potential arrest of the aircraft (particularly in the U.S. States). For example, in 2003 Pakistan International Airlines, the state carrier, re-registered its entire fleet in the Cayman Islands as part of the financing of its purchase of eight new Boeing 777s; the U.S. bank refused to allow the aircraft to remain registered in Pakistan, and the airline refused to have the aircraft registered in the U.S.

[edit] Insurance

See also: Captive insurance

A number of offshore jurisdictions promote the incorporation of captive insurance companies within the jurisdiction to allow the sponsor to manage risk. In more sophisticated offshore insurance markets, onshore insurance companies can also establish an offshore subsidiary in the jurisdiction to reinsure certain risks underwritten by the onshore parent, and thereby reduce overall reserve and capital requirements. Onshore reinsurance companies may also incorporate an offshore subsidiary to reinsure catastrophic risks.

Critics argue that attractions of an offshore financial centre in these circumstances include favourable tax regimes, and low or weakly enforced actuarial reserve requirements and capital standards, but evidence that offshore actual reserve requirements and capital requirements are weak or poorly enforced is difficult to come by in an industry that is most effectively regulated by the markets.

Proponents of offshore markets suggest that only experienced market participants tend to form offshore affiliates in the insurance market, and this is a very useful way to facilitate arbitrage of risk pricing between insurance and re-insurance markets.

In Bermuda the insurance and re-insurance market has grown so large and sophisticated, that it is now the third largest reinsurance market in the world.^[8] There are also signs the primary insurance market is becoming increasingly focused upon Bermuda; in September 2006 Hiscox PLC, the FTSE 250 insurance company announced that it planned to relocate to Bermuda citing tax and regulatory advantages.[9]

[edit] Collective investment vehicles

See also: Offshore funds

Many offshore jurisdictions specialise in the formation of collective investment vehicles, or mutual funds. The market leader is the Cayman Islands (the Cayman Islands have been estimated to home to about 75% of world’s hedge funds, with nearly half the industry's estimated $1.1 trillion AUM^[9]), followed by Bermuda, although a market shift has meant that a number of hedge funds are now formed in the British Virgin Islands.^[10]

By incorporating the investment vehicles (usually an offshore company, offshore trust or private foundation) offshore, the promoters seek to minimise additional tax complications for incoming investors.

But the greater appeal of offshore jurisdictions to form mutual funds is usually in the regulatory considerations. Whilst most well regulated offshore jurisdictions do regulate who may form mutual funds, and restrict the class of investors who may subscribe in the fund accordingly, offshore jurisdictions tend to impose few if any restrictions on what investment strategy the mutual funds may pursue. Offshore jurisdictions also tend not to limit or regulate the amount of leverage which mutual funds can employ in their investment strategy. This has had the natural effect of pushing more and more high risk funds (particularly hedge funds) offshore.

Many offshore jurisdictions (Bermuda, British Virgin Islands, Cayman Islands and Guernsey) also allow promoters to incorporate segregated portfolio companies (or SPCs) for use as mutual funds; the unavailability of a similar corporate vehicle onshore has also help fuel the growth of offshore incorporated funds. SPCs are particularly well suited for the formation of umbrella funds.

[edit] Banks

See also: Offshore bank

Traditionally, a number of offshore jurisdictions offered banking licences to institutions with relatively little scrutiny. International initiatives have largely stopped this practice, and very few offshore financial centres will now issue licences to offshore banks that do not already hold a banking licence in a major onshore jurisdiction.

The most recent reliable figures for offshore banks indicates that the Cayman Islands has 285^[11] licensed banks, the Bahamas ^[12] has 301. By contrast, the British Virgin Islands only has 7 licensed offshore banks.

[edit] List of main offshore financial centres

See also: List of offshore financial centres

There are a large number of offshore financial centres (by some measures, there are more countries that are offshore financial centres than not), but the following jurisdictions could be considered to be "market leading" jurisdictions for various reasons:

• Bahamas, which has a considerable number of registered vessels. The Bahamas used to be the dominant force in the offshore financial world, but fell from favour in 1970s after independence.^[13]
• Bermuda, which is market leader for captive insurance, and also has a strong presence in offshore funds and aircraft registration.
• British Virgin Islands, which has the largest number of offshore companies.^[14]
• Cayman Islands, which has the largest value of AUM in offshore funds, and is also the strongest presence in the U.S. securitisation market.
• Gibraltar, which, whilst not dominating the offshore market in any particular specialisation, retains a strong presence in most fields.
• Jersey, which is a dominant player in the European securitisation market and the European REIT market.
• Luxembourg, which is the market leader in Undertakings for Collective Investments in Transferable Securities and is believed to be the largest offshore Eurobond issuer, although no official statistics confirm this.
• Panama, which is a significant international maritime centre. Although Panama (with Bermuda) was one of the earliest offshore corporate domiciles, Panama lost significance in the early 1990s.^[15] Panama is now second only to the British Virgin Islands in volumes of incorporations.[10]

Although there are many, many other offshore jurisdictions, some of which are relatively sophisticated (for example, Guernsey and the Isle of Man are particularly well developed and well regulated offshore centres, although they tend to be overshadowed by Jersey; and the offshore aircraft registration market, unusually, is not dominated by one jurisdiction but is fragmented amongst Bermuda, Cayman, Aruba, Netherlands Antilles and the Seychelles), those seven jurisdictions are generally considered to be the key market participants, and to possess the most sophisticated offshore infrastructure.

See also the list of Non-Cooperative Countries or Territories (FATF Blacklist)

[edit] Recent developments

See also: European Union withholding tax

The European Union has recently made a large number of offshore financial centres (Barbados and Bermuda being the notable exceptions) sign up to the European Union withholding tax and exchange of information directive. Under those regulations, brought into force by local law, banks in those jurisdictions which hold accounts for EU resident nationals must either deduct a 15% withholding tax (which is split between the offshore jurisdiction and the country of the national's residence), or permit full exchange of information with the country of the national's residence.

A number of larger jurisdictions which are also sometimes considered as being offshore (notably Hong Kong and Singapore) refused to sign up to the directive.

Although recently new, anecdotal evidence suggests that the effect of the withholding tax has been limited, although it is disputed whether this is because the regulations lacked effectiveness, or because the predicted amount of funds in offshore bank accounts transpired to have been greatly exaggerated. Similarly, the widely predicted capital flight to Hong Kong and Singapore appears not to have materialised. It has also been suggested that the regulations implemented were simply too basic, and relatively easy to circumvent in jurisdictions familiar with putting together sophisticated financial structures.[11]

However, a ruling by the Special Commissioners in the United Kingdom in May 2006 indicated that the Revenue authorities can still compel UK based banks to release information in relation to offshore bank deposits where illegality is suspected, even where the customer had elected to pay a withholding tax rather than to exchange information.[12]

[edit] References

[edit] External links

• The Economist survey on offshore financial centres
• IMF's 2000 report on OFCs