Bearer Agreement

The first bearer documents in almost all countries were banknotes. Subsequently, due to the monopolization of the issuance of banknotes by one or more banks (usually government), bearer instruments such as short-term bank credit obligations (certificates, bonds, notes) and long-term credit obligations from banks and companies, bonds, were introduced. As the form of corporate shares in the form of bearer securities has evolved, shares have also been issued. Historically, the first nominal shares appeared, and much later there were shares of the bearer. Their appearance was linked to the development of the stock exchange. In the case of a pledge certificate for a single non-British company or an instrument issued by a non-British company that is a support instrument (and which is not, moreover, under the definition of the support instrument according to the FA99/SCH15/PARA3), the tax is 0.2% of the market value of the co-responsibility constituted or transferable by the instrument. The bearer certificate indicates that the holder of the certificate is the rightful owner of the action. To obtain dividends, bearers must send the company a voucher containing the dividends to which they are entitled and which have been declared. The provision of shares on the basis of the physical handing over of a proof of shares to the purchaser was the accepted business practice. However, in view of the judgment of 3 June 2015 by the Civil Chamber of the Supreme Court of Poland, this practice must be considerably liberalized. In particular, the provision of shares to the bearer who effectively transfer their property should now be understood as any form of effective transfer of power over the shares sold and not just as their physical delivery.

However, in recent years, economically developed countries, particularly the United States, as well as international organizations such as the OECD (Organisation for Economic Co-operation and Development) and the FATF (Financial Action Group) have begun to exert considerable pressure on offshore jurisdictions. Their main requirement was not even that there be preferential taxation in low-tax areas, but a lack of transparency: there are no open registers, no indication of who actually owns companies. And although international organizations do not have the right to give binding instructions and cannot impose sanctions, some offshore jurisdictions have begun to improve their legislation in line with the recommendations of these international organizations. The FATF reflected in the “40 Recommendations” document its key guidelines for the prevention of money laundering. The recommendations were adopted in April 1990 and are amended almost every year. The FATF`s recommendations set out measures to ensure transparency of legal entities to allow the relevant authorities to access information about the economic beneficiary at any time. Changes to the legislation of offshore jurisdictions in the context of these recommendations most often concern the open register of shareholders and directors, the cancellation of bearer shares and information cooperation with the governing and supervisory bodies. Offshore centres have responded in various ways to criticism of their use of bearer shares.

In a number of low-tax areas, bearer shares have been banned (Bahamas, Isle of Man, Jersey, Mauritius). Now there are registered companies, but in a much smaller number than in other offshore areas. Some jurisdictions have taken compromise measures: on the one hand, they have tried to meet the requirements of international organisations and, on the other hand, the requirements of customers who register and use companies (British Virgin Islands and Belize).


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