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The HSM Group is pleased to be featured by Chambers & Partners in their 2024 Global Legal Guide.
Our Intellectual property practice, HSM IP, has once again been ranked as a top tier law firm in their Global (Caribbean-Wide) Intellectual Property 2024 Guide. This marks the fifth year in a row being ranked and highlights our ability to successfully handle Intellectual Property (IP) registrations, filings and infringement matters across the Caribbean.
Citing Chambers and Partners, a commenter shared that HSM IP is a firm that is “knowledgeable about the laws in various jurisdictions and is able to walk us through them.”
HSM Chambers has also been ranked for Real Estate (Cayman Islands) with HSM Partner Linda DaCosta. Our team is praised for handling contract negotiations, conveyancing, acting for banking institutions and ensuring timely completions.
Chambers and Partners is a prestigious hub for lawyer and law firm recommendations. They diligently research and feature the world’s best lawyers and have done so since 1990, covering over 200 jurisdictions.
World Trade Mark Review (WTR) has recognised HSM IP and Huw Moses in their latest guide: WTR 1000 2024 (Pan-Caribbean).
This is the seventh year in a row that HSM IP has been recommended by WTR 1000. HSM IP is honoured to receive this recognition as it highlights our practice as a world-class, go-to resource for trade mark services across the Caribbean.
Cited from WTR 1000’s website, commentators said:
“HSM IP pairs an expert grasp of the regional trademark landscape with affordable fees: “I thought the costs would be exorbitant and the process complicated, but after my initial meeting with Huw Moses I found the costs quite affordable and very little effort was needed on my part, due to the expert guidance from Huw and his team.”
The managing partner is further praised for his seamless portfolio management skills, which satisfy the commercial needs of each client, and his superior knowledge of the Caymanian IP space is hallmarked by his position on the Intellectual Property Steering Committee. He is additionally respected for his profuse awareness of the administrative and judicial IP systems in the wider region.”
The WTR 1000 identifies the leading trade mark practitioners and firms from around the globe, offering the definitive ‘go-to’ guide for those seeking legal trade mark expertise.
In the myriad varieties of insurance claims, attorneys can find themselves walking a tightrope when representing both insurance companies and insured parties concurrently. While this dual representation often provides a practical and cost-effective solution, it introduces challenges that require meticulous handling to maintain ethical standards and provide equitable representation for all parties.
- Conflicting Interests:
The fundamental challenge in dual representation lies in managing the potentially conflicting interests of insurance companies and insured parties. From the outset, care must be taken that the policy is valid and is sufficient to cover the damages claimed.
In circumstances in which coverage is disputed, or a policy may have been avoided by an insured, it is inadvisable for any single attorney or firm to act for both parties: a clear and obvious conflict of interest exists.
Prior to accepting instructions to represent both parties, a rigorous investigation is necessary to ensure that potential future conflicts are avoided. Such an issue may arise as to the sufficiency of coverage for a claim. For example, if injuries are significant enough, and threaten a claimant’s ability to work in the future, advice must be provided early to both parties as to the sufficiency of any cap on damages as described in any policy.
Similarly, an issue may arise in which an insurer exercises its discretion to settle a claim on a commercial basis, whereas the insured party remains adamant that they wish to dispute liability and run a trial. In such cases, the policy terms usually provide the insurer with a broad discretion to take whatever decision it decides is fair. If the insured party seeks to run a trial against the wishes of the insurance company they may find their insurer will refuse to cover the cost of litigation under the terms of the policy. The conflict between the commercial decisions of an insurer and access to justice for the insured is an issue which attacks the very core of the relationship between the parties.
- Information Asymmetry:
When an attorney is instructed by an insurance company to represent its interests as well as those of the insured, difficulties may arise in the exchange of information. If both parties are clients, and therefore entitled to an equal duty of disclosure and confidentiality, how may this be reconciled in a case in which the attorney discovers confidential information in the possession of the insurance company that may adversely affect the insured? Or the insured admits in private consultation to conduct that would potentially avoid the relevant policy, and which was not previously known to the insurer?
These situations are likely to result in professional embarrassment, and a duty to withdraw the representation of at least one of the parties. If the issue arises shortly prior to, or during, a trial before the court, it is likely that the attorney, and/or firm, in question would be subject to heavy criticism for failing to note the risk early in the process, and may even become subject to a wasted costs award.
It is imperative, therefore, for attorneys to ensure that immediate and full enquiry is made of all relevant parties, circumstances, and the risk of any such conflict is nipped in the bud as early as possible.
- Ethical Dilemmas:
Rigorous adherence to professional codes of ethics is paramount for legal practitioners. Potential pitfalls are most common in circumstances where duties are owed to more than one client in the same proceeding.
A single attorney or firm retained by more than one client in the same matter present can present a simpler and more cost-effective solution in cases in which the interests of both clients are aligned.
- Informed Consent and Disclosure:
Obtaining informed consent is a pivotal step in dual representation. Attorneys must provide clear and comprehensive disclosure about the potential conflicts of interest to both the insurance company and the insured party. This process involves explaining the implications, risks, and benefits associated with dual representation. The roles of the insured and insurer ought clearly to be defined in the contract of engagement, with any waivers of duties relating to information exchange explained and signed by both parties.
Informed consent is not a one-time event but an ongoing process. Attorneys must continuously update both parties about any developments that could impact their representation and obtain reaffirmation of their consent as necessary throughout the process, as necessary.
Conclusion
While dual representation in insurance claims may offer practical advantages, the complexities and potential conflicts involved demand a sophisticated approach from attorneys. Navigating conflicting interests, information asymmetry, ethical dilemmas, and informed consent requires a keen eye, anticipation of conflicts and sometimes a deft touch. Attorneys must uphold the highest ethical standards, prioritise transparency, and consistently communicate with both the insurance company and the insured party to mitigate potential conflicts and ensure proper representation.
Alex Davies in HSM’s litigation team has extensive experience dealing with insurance matters, receiving instructions from insurance companies based locally and internationally, as well as acting for insured parties in claims in conjunction with, and against, their insurance companies. Alex’s practice includes advice on policy coverage, personal injury, fatal accidents, medical negligence, and complex road traffic matters.
The HSM Group has welcomed Gavin Dixon as an Associate for their immigration practice.
Gavin is a seasoned legal professional with a distinguished career in public service. Gavin has held several positions with the Cayman Islands Government including 10 years as an Immigration Officer and subsequently as a Senior Trade Officer for the Department of Commerce & Investment.
Prior to HSM, he was Crown Counsel for a substantial period at the Office of the Director of Public Prosecutions. This advocacy experience makes him well-versed before the Cayman Courts. Gavin was called to the Cayman Islands Bar in 2016.
In his role at HSM, Gavin specialises in immigration advice for non-contentious and contentious matters, including immigration appeals.
Gavin joins HSM’s established immigration team, which includes Managing Partner, Huw Moses; Senior Associate Alastair David; Immigration Services Manager Samantha Bartley; Immigration Services Supervisors: Pete Iton and Ariella Smith; Paralegal Cory Martinson; Immigration Services Assistants: Dwyane Wright (Senior Assistant), Chandra Bodden and Ayla Ramirez-Ebanks.
“Gavin brings a deep understanding of Cayman law and has shown dedication to justice during his tenure with the Cayman Islands Government,” shares HSM Managing Partner, Huw Moses OBE. “HSM’s immigration team is positioned to give clients the greatest level of support.”
Gavin Dixon outside of HSM’s building on 68 Fort Street, George Town
The HSM Group has announced Merary Eden as the recipient of their 2024-25 Article Clerkship Programme.
Over the next 18 months, Merary will gain a variety of legal experiences across corporate, immigration, employment, private client, real estate, intellectual property and more.
Merary joined HSM in July 2022 as a paralegal for the firm’s debt collection and litigation practice. She graduated from the University of Liverpool in July 2022 with a Bachelor of Laws Degree (Honours) (Class 2 Division 1) and prior to that she attained a Master of Business Administration Degree from the University of Tampa. Merary also attained a Professional Practice Course (Commendation) from Oxford Brookes University, which is affiliated with the Truman Bodden Law School in the Cayman Islands.
Merary is particularly interested in investment funds and is also excited to gain experience in trusts, wills and estate administration. HSM Partner Sarah Allison is her principal and will provide guidance to Merary as she progresses through her articles to become an attorney.
“We are pleased to have Merary undertaking her articles with HSM,” shares HSM Managing Partner, Huw Moses OBE. “HSM is committed to fostering legal talent and we look forward to her contributions across the firm’s practices.”
HSM IP was pleased to present the International Trademark Association’s (INTA) Unreal Campaign to over 25 students at the Cayman Islands Further Education Centre (CIFEC) on 8 December 2023.
HSM IP’s Mrinali Menon (Senior IP Manager) and Shirly Ramirez (IP Administrative Assistant) led two classroom presentations, in which they covered the importance of trade marks, intellectual property and the dangers of counterfeit products.
The INTA Unreal Campaign is a global programme taught all over the world and is geared towards 14- to 23-year-olds. HSM IP has delivered seven of these presentations in the Cayman Islands across different schools.
A trade mark is an important identifier. It can be a word, design, service mark, building shape and more. Mrinali and Shirly also stressed the economic impacts of people purchasing knockoffs and how these inferior products can affect people’s health as well as safety.
As part of the presentation, the students enjoyed a game of “spot a fake”, where they had to guess between two similar looking products and identify the reasons as to why one of them was the fake.
HSM IP Managing Partner, Huw Moses shares, “the holidays can make people more susceptible to counterfeit goods and we are proud to do our part in bringing awareness to this issue.”
HSM IP is a specialist intellectual property law practice based in the Cayman Islands and specialises in the Caribbean/Latin America market. They support major Fortune Global 500 brand owners, international law firms and other specialist IP practices.
If you would like the team at HSM IP to prepare this presentation for your school, please reach out to ip@hsmoffice.com.
(L-R): HSM IP’s Mrinali Menon and Shirly Ramirez standing in front of CIFEC students to deliver INTA’s Unreal Campaign.
Pursuant to the Financial Assistance Act, 2022 (the “Act”) passed by Parliament in October 2022, the Needs Assessment Unit “NAU”) became the Department of Finance (the “DFA”). The corresponding Financial Assistance Regulations, 2023 (the “Regulations”) and the Financial Assistance (Appeals) Regulations, 2023 (the “Appeal Regulations”) were approved by Cabinet on 10 October 2023. HSM Partner Sarah Allison covers the key updates and criteria.
The Act repeals the Poor Persons (Relief) Act (1997 Revision) and introduces a new procedure for issuing financial assistance to households which meet the eligibility criteria. The Act also establishes an Appeals Tribunal for incidental and connected purposes.
According to the Ministry of Investment, Innovation & Social Development: “the legislation forms one part of an overall reform and modernisation agenda to create meaningful and measurable changes in Government’s involvement in social development in the Cayman Islands, and more broadly to work collaboratively with community partners in overcoming existing barriers and hurdles .” [1]
Of note, the Regulations introduce a new and welcomed category of financial assistance enabling the DFA to cover up to CI$3,000 per month of a successful applicant’s accommodation costs, which now include mortgage payments. Prior to the Act, the provision of accommodation costs was limited to rental payments.
To be eligible for financial assistance, household members must be Caymanian, a spouse or civil partner of a Caymanian living with the Caymanian at the time of the application and for five years or more immediately preceding the application, or a guardian of a dependent who is Caymanian. Depending on the number of people in the household, the aggregate household income and savings must not exceed certain thresholds and the Director must be satisfied that the household’s expenses exceed the household income.
Upon receipt of an application for financial assistance, the Director of the DFA has 10 working days in which to evaluate the application and determine whether the application should be granted or refused.
The amount of financial assistance granted for accommodation shall be determined by the Director in accordance with the size and composition of the household. The duration of financial assistance for which a household will be approved to receive financial assistance will be for a period of 1 – 3 months or up to 3 years depending on whether the applicant is temporarily unemployed, has dependents, is temporarily or permanently disabled, or has an emergency. The provisions seek to align with the Cayman Islands Older Persons Policy and Disability Policy
For those eligible to apply for assistance under the Act, this legislative change will come as a welcome one in the current financial climate.
[1] https://www.gov.ky/iisd/financial-assistance-bill-2022
Mrinali Menon has joined HSM IP in the Cayman Islands as their new Senior Intellectual Property (IP) Manager. Overseeing a team of 10 IP specialists, Mrinali has over eight years of global legal experience, having worked in the United States (New York) and India.
She has a diverse background in handling contentious and non-contentious intellectual property matters, including trade mark prosecution, acquisition, licensing, technology transfer, data privacy and cybersecurity. Before joining HSM IP she has been involved in numerous lawsuits relating to infringement, media and entertainment disputes, cybersquatting and online counterfeiting.
Mrinali has a dual degree in law, including a Master’s Degree in Law (LL.M.) from Columbia Law School, New York, and a Bachelor’s Degree in Law (B.A. LL.B.) from Symbiosis Law School, India. She is also a part-time Instructor at Columbia University, New York where she covers IP and Technology Law.
Mrinali has been accepted into International Trademark Association’s (INTA) Brand Restrictions Committee for the 2024-2025 term. The Committee informs policymakers about the important role of trade marks in the economy and society, and the need for balanced regulations that address public health concerns while respecting private property rights.
“We are thrilled to have Mrinali join HSM IP,” commented HSM IP Managing Partner, Huw Moses OBE. “Her international experience will be a great resource for our clients while her leadership and teaching background will support our internal team development.”
Mrinali Menon outside of HSM’s building on 68 Fort Street, George Town, Cayman Islands
The HSM Group was featured recently in The Legal 500 2024 Caribbean rankings.
Our intellectual property practice, HSM IP, is a ranked firm for their cross-Caribbean expertise. Citing The Legal 500 website, they shared: “As the only specialist IP firm in the Cayman Islands, HSM IP has been notably active in advising the Cayman government on its IP legislation as well as assisting a broad range of clients with trade mark, design and patent prosecution matters across the entire Caribbean region. The group also has experience in IP infringement and enforcement work and counts Fortune 500 companies, global law firms and specialist IP practices on its client roster.” Managing Partner Huw St. J. Moses, OBE leads the team of 11 IP specialists.
Client testimonies include: “The team is extremely responsive and able to provide practical, commercial guidance where necessary.” “Kate Cleary is extremely responsive and easy to deal with.” “HSM is known for its trade mark representation in the Caribbean region. They are one of a few firms that specialise and excel in this region.”
HSM’s property work is highlighted as a Firm to Watch for Real Estate (Cayman Islands). Citing The Legal 500 website, they shared “Linda DaCosta heads up HSM’s real estate practice, which is noted for advising local and overseas purchasers, vendors, investors and developers on a mix of residential and commercial property transactions.”
HSM Partner Christian Victory is ranked as a Next Generation Partner for Investment Funds (Cayman Islands). Christian has over 20 years of legal experience and is well-respected in the industry. He is knowledgeable in all matters relating to Cayman Islands funds and investment services, including the formation and establishment of, and on-going advice to mutual funds and hedge funds, master-feeder structures and the formation of stand-alone vehicles.
The Legal 500 has been analysing the capabilities of law firms across the world for more than 30 years. Law firms and attorneys are ranked by thorough research processes and are highly credited if featured.
These features highlight HSM’s ability to successfully handle a wide range of legal matters.
Thank you to our valuable clients for recommending us.
Following the recent removal of the Cayman Islands from the FATF grey list, the Cayman Islands has published the Beneficial Ownership Transparency Act, 2023 to better align the beneficial ownership regime more closely with the Cayman Islands’ anti-money laundering regulations. While the Act provides that Cabinet may make regulations extending access to beneficial ownership registers to the general public, public access would only be implemented once further regulations are made and approved by Parliament and will be subject to a “legitimate interest test.” This will include access to parties who are genuinely seeking information so as to prevent or combat money laundering and terrorist financing (for instance media and civil society organisations under specific circumstances).
With implementing regulations to be introduced in a phased approach during 2024, the new law will bolster the Cayman Islands’ continuing commitment to transparency while also protecting privacy and confidentiality in line with evolving global standards and best practices.
The primary changes are to:
- introduce a new definition of beneficial owner;
- bring additional forms of legal entity within scope;
- remove and replace existing exemptions; and
- introduce additional line items for reporting purposes.
Affected entities and their corporate service providers will need to update their systems and processes urgently in order to satisfy these new requirements.
As is currently the case, ordinary resident companies, not engaging a corporate services provider for the provision of registered office services, must establish and maintain their own beneficial ownership registers.
Beneficial Owner
The overall objective of the regime is to ensure transparency of the beneficial ownership of Cayman Islands entities. Under the new law, a Beneficial Owner in relation to a legal person means an individual who either (a) ultimately owns or controls, whether directly or indirectly, 25% or more of the shares, voting rights or partnership interests in a legal person; or (b) otherwise exercises ultimate effective control (through a chain of ownership or other than by direct control) over the management of the legal person; or (c), where there is no individual fitting within (a) or (b), an individual who exercises control of the legal person through other means (for example as a director or a CEO), but does not include an individual acting solely as a professional advisor or professional manager as defined in the new law.
If no individual meets any of the criteria with respect to a legal person but the trustees of a trust meet one of the Beneficial Owner criteria, in their capacities as trustees of a trust, those trustees are then the beneficial owners of the legal person if they have ultimate effective control over the trust.
Extended Scope
The meaning of ‘legal person’ has also been amended to include partnerships (excluding foreign partnerships registered in the Cayman Islands) and extends to all companies (excluding foreign companies registered in the Cayman Islands); limited liability companies; foundation companies; limited partnerships; limited liability partnerships and exempted limited partnerships.
Removal and Replacement of Exemptions
Former automatic exemptions for listed entities (or their subsidiaries), for entities licenced under a Cayman Islands regulatory law and for private and mutual funds will be replaced. Such legal persons will be required to provide written confirmation to their corporate services provider in order to show an alternative route to compliance as follows:
A licensed fund administrator or contact person for private or mutual funds will be required to provide the Registrar of Companies with the requested beneficial ownership information within 24 hours of a request being made or at any other time as the Registrar may reasonably stipulate.
All other exemptions will be removed.
Additional Required Particulars
Additional line items added to required particulars for individuals include nationality and the nature in which the individual owns or exercises control of the legal person.
Similarly, required particulars of a reportable legal entity will include the nature of the reportable legal entity’s ownership or its exercise of control of the legal person.
Conclusion
As a leader in ongoing anti-money laundering initiatives, the Cayman Islands continues to show its commitment to transparency with the publication of the Beneficial Ownership Transparency Act, 2023 in line with international standards.
With the Cayman Islands’ continued focus on quality, innovation and expertise, it seems reasonable to expect that the changes brought about by the Act will be absorbed by the market and in no way hinder the Cayman Islands’ continued success.
HSM can assist with all beneficial ownership matters and provide the necessary advice as to the application of the new beneficial ownership regime. Please connect with the key contacts below for any enquiries.
The HSM Group specialises in Corporate and Commercial Law, Litigation, Restructuring, Insolvency, Private Client, Immigration, Employment Law, Family Law, Property, Debt Solutions and Intellectual Property in addition to providing comprehensive corporate services through HSM Corporate Services Ltd.
This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. Alternative solutions also exist which may better suit the requirements of a particular individual or entity.
Key Contacts:
Christian Victory
Partner / Head of Corporate and Commercial
Tel: 1 345 815 7360
cvictory@hsmoffice.com
Kathy Macdonald
Associate
Tel: 1 345 815 7356
kmacdonald@hsmoffice.com
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