Undertakings for Collective Investment in Transferable Securities (UCITS) are (mainly) retail investment funds regulated at European Union (EU) level. Following the adoption of the first relevant EU (European Economic Community at that time) Directive in 1985, UCITS have established themselves during the course of time, as a reputed retail investment product both within as well as outside the EU. The first UCITS Directive of 1985 (85/611/EEC) has been repealed in 2009 by the so called UCITS IV Directive (2009/65/EC), whereas amendments had taken place in the meantime, e.g. as to the eligible assets, in which a UCITS may invest.
The UCITS IV Directive has been transposed into Cypriot Law by Law 78 of 2012 on Open Ended Undertakings for Collective Investment as amended (UCI Law). As to the current state of things, the UCI Law will have to undergo significant amendments by March 2016. The reason is that an EU Directive amending the UCITS IV Directive, the so called UCITS V Directive (2014/91/EU), will be entering into effect at that time and will subsequently have to be transposed into Cypriot law by then.
Regarding regulation and supervision of UCITS in Cyprus the competent authority therefore, including the imposition of administrative sanctions, is the Cyprus Securities and Exchange Commission (CySEC).
A widely used tool for securing the repayment of a loan or any other financial obligation of shipping companies towards their creditors is the creation of a mortgage over a ship in favor of the said creditor.
The concept behind the amendments brought by Law 88 of 2015
Law 78 of 2012 on Open-Ended Undertakings for Collective Investment (UCI Law) transposed into Cypriot Law the European Union (EU) UCITS IV Directive (2009/65/EC) on undertakings for collective investment in transferable securities (UCITS). The competent authority for regulation and supervision of UCITS in Cyprus is the Cyprus Securities and Exchange Commission (CySEC).
The UCI Law can be considered as the piece of legislation marking Cyprus’ efforts to emerge into an investment funds jurisdiction, having regard to the interest that the draft UCI Law had attracted during the consultation process.
The UCI Law has been amended for the first time earlier this year by Law 88 of 2015. The amendments so effected can be classified into following categories:
- Amendments for the purpose of enhancing the competitiveness of Cypriot UCITS, e.g. by no longer requiring that all Cypriot UCITS calculate and publish their net asset value (NAV) daily without taking any distinguishing factor into consideration; or by replacing the requirement for mandatory publications in two local newspapers with the requirement to provide relevant information to investors through a durable medium and through a relevant publication on the management company’s/investment company’s website (as applicable);
- Amendments with a view to initiating the upcoming transposition of the EU UCITS V Directive (2014/91/EU), which is due on March 2016, e.g. by aligning certain of the provisions on UCITS depositaries, within the meaning of section 10 of the UCI Law, with the provisions of the UCITS V Directive;
- Amendments for the purposes of relativising unconditional reliance on credit ratings issued by credit rating agencies by requiring enhancement of risk management policies and procedures; and
Amendments for the purposes of alignment with the EU-wide distinction of investment funds into UCITS and non-UCITS, i.e. Alternative Investment Funds (AIFs), introduced pursuant to the EU AIFM Directive (2011/61/EU). In accordance with the aforesaid distinction any reference to non-UCITS investment funds has been removed from the UCI Law, given that there is in the meantime a dedicated legal framework for all types of non-UCITS. This way the UCI Law becomes a 100% UCITS dedicated piece of legislation.
The present note undertakes to briefly inform on the rationale motivating the amendments to the UCI Law provisions and on their current content following the amendment.
Our long lasting and vast experience in international business consulting enables us to fully understand the needs of your business and contribute towards its success.
This publication concentrates on the business development between Cyprus and Iran in the context of the Double Tax Treaty Agreement signed between the Government of the Republic of Cyprus and the Government of the Islamic Republic of Iran on 4 August 2015.
This, along with strong incentives given by the Cyprus Government with regards to “Cyprus citizenship by investment” scheme is expected to further develop the cooperation potentials of the two contracting states in the upcoming years. Furthermore, we will endeavor to explain the benefits offered by Cyprus and the purposes served by Cypriot companies as Holding, Financing and Intellectual Property companies, as well as the benefits secured through the establishment of an International Cyprus Trust.
This Country Report addresses the following:
- Cyprus Tax Benefits
- New Treaty between Cyprus and Iran
- Cyprus Holding Company
- Cyprus Holding Company in International Investment
- Cyprus Back -to- Back Financing
- National Interest in Cyprus Financing Structures
- Cyprus IP Box Regime
- Capitals Gains Treatment
- Cyprus Shipping: Tonnage Tax Scheme
- Cyprus International Trust
For our full report please click Cyprus & Iran Country Report
Law 4072 of 2012 (the “Law”) introduced in Greece a new type of company, the Private Company (“PC”) (“Idiotiki Kefalaiouchiki Etaireia” or “IKE” in Greek) in order to meet the growing need for a modern and flexible limited liability middle- sized company.
After three years since its creation, the Private Company may be characterised as a success with the establishment up to this day of over 10000 Private Companies since 2012 and a clear preference of businesses to choose this type of company over the pre- existing structures, according to an announcement of the Ministry of Development in April 2014.
ADVANTAGES OF THE PRIVATE COMPANY IN RELATION TO OTHER TYPES OF GREEK COMPANIES
- Zero capital requirements.
- Quick establishment with minimum expenses (as usually the involvement of a Notary is not required) and simpliﬁed procedure.
- Provided the Articles comply with the requirements of the Law, they may be drafted accordingly to suit the particular needs of a type of business as well as of its members, enabling the company to be shaped either closer to a partnership or closer to a Societe Anonyme.
- Very ﬂexible corporate form (meetings can be held through teleconference and abroad, any amendments and changes are made by a private agreement).
- Corporate documentation may be drafted also in any oﬃcial EU language.
- Only the manager and the sole member (in case of a single- membered PC) are subject to compulsory registration at the local insurance organisation (as opposed to all members/ partners in other types of companies).
To read full text in English and/or Russian please click on the links below.
PRIVATE COMPANIES (IKE) ENG PRIVATE COMPANIES (IKE) RU
On the 14th of July 2015, Iran and the Permanent Members of the UN Security Council and Germany reached a historic agreement. The sanctions imposed on Iran for its nuclear activities were lifted after the agreement of Iran to gradually limit such activities.
Iran, the economy of which suffered its greater blow in the years following 2012, especially after the foreign direct investments in the country reached zero, is now able to return to the global markets.
The omens of an early financial recovery are, prima facie, impressive, whilst the impact on the global economy is anything but negligible. It is said that Iran will be able to recover in its pre-2012 position in less than two years-time.
Iran is one of the main oil-producing countries. Its production capabilities reach 1 billion barrels per day, whilst its stockpiles reserves are said to reach 30-40 million barrels on the day immediately following the lift of the sanctions. This effectively means that Iran will cause a reduction in the oil prices by 14%, i.e. USD 10, therefore large oil importers such as EU and US will be in a more advantageous position by having the capability to increase their petrochemical-related productions.
As oil-exports in Iran are reinstated, the country’s economic orbit will also start functioning again. This, in addition to the USD 107 billion worth of frozen assets and the USD 15 billion of revenue expected to be produced in Iran in the first year of sanction lift, will allow Iran to boost the sectors which were most profitable prior to 2012. Therefore, it is expected that Iran will boost its automobile, pharmaceuticals, manufacturing and tourism, banking and other services sectors. It has also been suggested that Iran should increase its competitiveness in high-technologies industries and the telecommunications sector, in an effort to modernise the same.
Cyprus – Iran cooperation: the cooperation potentials
The lift of the sanctions in Iran as well as the industries constituting the pillars of Iran’s economy, create important prospects of economic prosperity both for Iran as well as its’ trading partners. Cyprus, being in the forefront of this recent historic development, concluded, on the 4th of August 2015, an important cooperation agreement with Iran, namely the double tax treaty agreement (“DTT”).
The DTT effectively provides for favorable taxation of, inter alia, royalties and dividends.
Royalties are taxed at a fixed rate of 6% whilst the provisions on dividends distinguish between companies the beneficial owner of which holds at least 25% of the issued and allotted capital of the company that pays the dividends, and other cases. In relation to the former, the withholding tax rate is 5% whilst in all other cases is 10%.
Regarding dividends, it is important to note that, currently neither Iran nor Cyprus imposes withholding tax on dividends (the treaty rates will only apply in the event where the relevant legislation of either or both countries imposes such tax).
The provisions of the DTT constitute important incentives for the promotion of cooperation between the two countries, especially if viewed in light of the provisions of the Cyprus IP Box Regime, considered below.
The Cyprus IP Box Regime- the time is now
Intellectual property rights have already been widely recognised as the most valuable asset of a business. The same was recognised in a flamboyant manner by the Cyprus authorities in 2012, when the IP Box Regime was introduced. The IP Box Regime applies to all intellectual property rights and allows Cyprus companies which are the owners of intellectual property rights to be 80% exempted off withholding tax applying on the exploitation and disposition of such intellectual property rights as well as make use of a five year amortization period in respect of the acquisition of such rights.
Cyprus elected to opt for an IP Box the purpose of which was to attract new investments. Therefore the same does not restrict its application to companies that have borne the research and development costs. Nonetheless, the IP Box regime will be gradually forced to extinction, pursuant to the OECD Nexus Approach policy. Pursuant to the same IP Boxes should turn towards the promotion of research and development and not towards investment attraction. Therefore, the final call for applicants wishing to exploit the advantages of the IP Box regime is the 30th of June 2016. This date is considered as the lock down date, since no further entrants will be accepted whilst current entrants will not be allowed to exploit any additional intellectual property rights. The IP Box regime, as it currently stands, will continue to apply to existing entrants only, until the 30th of June 2021.
Geographical Proximity: a leap into Europe
It is no secret that Cyprus’ geopolitical position, the same being in the Mediterranean Sea and the crossroads of three continents, i.e. Europe, Asia and Africa, is a pole of attraction for many businesses around the globe.
Similarly, the island is expected to attract Iranian businesses as well as businesses wishing to do business in Iran. Apart from the many legislative and fiscal advantages some of which have already been mentioned above; the island is also a Member of the European Union as from the 1st of May 2004. This, in addition to the fact that Cyprus is in the center of some of the most important trade partners of Iran, namely Britain, Turkey and Saudi Arabia as well as in good terms with countries such as China (currently the most important trading partner of Iran) and India are expected to boost the potentials of the cooperation between Cyprus and Iran.
The Intellectual Property Rights Aspect
Iran provides for immense opportunities in the field of intellectual property, the reason being that Iran’s economy is based on sectors such as the automobile, pharmaceuticals, manufacturing and service provisions. Considering that the majority of its economy depends on exports into, inter alia, Europe and the US, it may be argued that the need for community and international trademarks, patents and pharmaceutical product certificates, copyrights and trade secret protection, branding, marketing and product advertising as well as corporate restructuring and fiscal advise is expected to be in high demand in the near future. Cyprus, offering the advantages already mentioned herewith, is undeniably ideal both in terms of geographical positions as well as in terms of legislative framework.
The DTT between Cyprus and Iran triggered the unfolding of the Cyprus legislative framework, jurisdictional advantages and the ability of the same to assist in Iran’s reinstatement in the global markets.
As far as intellectual property rights are concerned, the industrial activity of Iran, being export-depended, and the European flair of Cyprus, in conjunction with the recent advantages introduced by the DTT as well as the IP Box regime prove that the cooperation potentials between Iran and Cyprus are more than the wishful thinking of two Economy ministers.
Frequently, questions arise as to the comparison between the Cypriot and the Maltese Yacht Leasing Schemes. Although the principles on which both schemes are based are the same, there are some practical differences which may lead one to choose the one over the other.
We trust that the attached comparison will be a useful tool in order to understand these differences.
Christodoulos G. Vassiliades & Co LLC may assist with the implementation of the scheme in either jurisdiction.
Should you have any further questions or require any further assistance, please feel free to contact us.
Cyprus v Malta Comparison Guide
Registration of Ship Mortgages
The Firm is committed to providing high quality service in the field of Shipping Law. It offers legal services to ship owners, charterers, ship managers and ship financing institutions. Advice is given on the sale/ purchase of vessels, ship registration, charter agreements, ship financing and registration of mortgages. In a ship mortgage, a debtor (mortgagor) provides a creditor (mortgagee) an interest in a ship as security for the repayment of a loan or the performance of some other obligation.
There are various advantages of Maltese mortgages, some of which including the following. Mortgages have a high ranking form of security and they constitute executive titles. They may be assigned or amended. In the case of an assignment, the assignee of part of a debt or other obligation secured by a registered mortgage of a ship or share can demand that the assignment be entered in the register of the particular ship for the part so assigned. With regards to amendments, when a registered mortgage is amended, such amendment shall form an integral part of the registered mortgage and such amended mortgage shall have the same priority as it had before such amendment was noted. An amendment of a mortgage shall be effected for example in order to increase the amount of capital secured by such mortgage. A registered mortgage of a ship or share may be transferred to any person by an instrument of transfer executed by the transferor in the presence of, and attested by, a witness or witnesses. A ‘power of attorney’ may be granted to the Mortgagee in addition to the mortgage as a form of added security, which will only apply in case of default on the part of the Mortgagee.
A mortgage over a Maltese ship shall have effect towards third parties only once it is duly recorded in the Register. Mortgages are recorded by the Registrar in the order in time in which they are produced to him for registration. If there are more mortgages than one registered in respect of the same ship or share, the mortgages shall be entitled in priority, one over the other, according to the date and time at which each mortgage is recorded in the register. Through a memorandum under his hand, the Registrar has to notify on each mortgage, that such mortgage has been recorded by him and has to state the day and hour of that record. In the case that the mortgage instrument states that it is prohibited to create further mortgages over a vessel without the prior written consent of the mortgagee, the registrar shall not record such further mortgage unless the consent in writing of the holder of a prior mortgage is produced to him. Any mortgage that is registered in violation of this is null and void. If a further mortgage is executed in favour of an existing mortgagee, the mortgagee’s consent shall not be required. In the case that the mortgage instrument states that it is prohibited to effect the transfer of the ship that is being mortgaged, or of a share therein, without the previous written consent of the mortgagee, the registrar shall not record any transfer of such ship or of a share therein unless the consent in writing of such mortgagee is produced to him, saving where the transfer is made pursuant to a court order in a sale by auction of such a ship or pursuant to any other court order. Any transfer that is registered in violation of this is null and void.
Rights of Mortgagee
In the event of default of any term or condition of a registered mortgage or of any document or agreement referred to therein, the mortgagee shall, upon giving notice in writing to the mortgagor, be entitled a) to take possession of the ship or share therein in respect of which he is registered; b) have power absolutely to sell the ship or share in respect of which he is registered; and c) have power to apply for any extensions, pay fees, receive certificates, and generally do all such things in the name of the owner as may be required in order to maintain the status and validity of the registration of the ship.
Maltese Mortgage Form and Deed of Covenants
Ship mortgages may be registered in the Registry of Shipping by filing a Mortgage Deed. Apart from this mortgage deed, there is a deed which complements the mortgage form which is the ‘deed of covenants’. It contains certain provisions which cannot be included in the mortgage form. It contains provisions regarding the mortgagee’s right to carry out inspections on the vessel, the mortgagor’s obligation to provide the mortgagee with certain information and so on.
Foreign mortgages are recognised as mortgages with the status, rights and powers specified in the Merchant Shipping Act provided that certain conditions are met. The mortgage (i) must have been validly recorded in the registry of ships of the country under those laws the ship is documented, (ii) the registry is a public registry, (iii) the mortgage appears upon a search of the registry and (iv) such mortgage is granted a preferential and generally equivalent status as a mortgage under the Merchant Shipping Act under the laws of the country where the mortgage is registered.
In an effort to enhance the competitiveness, fairness and simplicity of the Cyprus Tax system and make it more attractive to foreign investors, the Cyprus Government passed on the 9th of July 2015 among others the introduction of “Domicile” concept. The introduction of the non-domicile rules aims to attract high-earners relocate to Cyprus and use Cyprus as a business centre, by transferring the headquarters of their business and creating real substance.
The Case before the Amendment of the Law
An individual who spends a period or an aggregated period of more than 183 days in a tax year in the Republic of Cyprus is subject to both Income Tax and Special Defence Contribution (SDC). Domestic or foreign-sourced income of a Cyprus resident, taking the form of dividends, interest or rent was subject to SDC.
The Amendment of the Special Defence Contribution
According to the amendment of the Law and the non-domicile rules introduced, an individual who is a tax resident of Cyprus under the provisions of the Income Tax Law (183 days rule mentioned before) BUT he is “not-domiciled” in the Republic of Cyprus, will be exempt from SDC.
Christodoulos G. Vassiliades & Co. LLC is pleased to share its detailed Vessel Registration Guide in relation to the following jurisdiction in which we provide relevant services:
- The Cyprus Ship Registry
- The Belize Ship Registry
- The Malta Ship Registry
- The Marshall Islands Ship Registry
- The Panama Ship Registry
- The Liberian Ship Registry
CGV Vessel Registration Guide