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Monday, Apr 22nd 2024

The ACP Legal Association

  • OHADAC and ACP Legal

    The partisans of this project, called OHADAC (Organisation for the Harmonisation of Business Law in the Caribbean), decided to meet within the framework of the association ACP Legal, to help interested Caribbean States to implement the project.

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  • OHADAC in brief

    This brochure has been published by the ACP Legal Association.

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OHADAC Texts

Summary

DRAFT OHADAC MODEL LAW OF COMMERCIAL COMPANIES

Article 21

Plan for registered office transfer

1. The officers of any company wishing to transfer its registered office to a foreign country shall submit a plan for the transfer of the registered office indicating at least:

  1. The identification of the company whose transfer is envisaged.
  2. The new registered office of the company.
  3. Any information making it possible to identify the company in the place of its new registered office.
  4. The bylaws adapted to the laws of the country to which the transfer is to be carried out.
  5. The guarantee scheme devised to protect shareholders and creditors.
  6. The transfer schedule, clearly expressing the effective date of the transfer, which can under no circumstances be prior to the date of registration of the transfer in the relevant registry for the company’s new registered office.

2. The plan shall be made public and remain available for consultation within the State of the company for a period of at least three months prior to the adoption of the transfer resolution so that the creditors and shareholders may have a chance to study it and, where appropriate, request any additional guarantees that may appear necessary or oppose the proposed registered office transfer should there be grounds for so doing.

3. In the course of the said three-month period the competent authorities of the State of the company shall also be entitled to oppose the proposed transfer, provided it is in the public interest to do so.

Article 22

Approval of transfer

1. The registered office transfer shall be approved by the competent decision-making body of the company by the same majority as is required by the laws applicable to the company for a change in its legal form.

2. The approval of the transfer, which is to be carried out concomitantly with that of the amendment of the bylaws in order to adapt them to the new governing laws of the company, shall be registered with the relevant companies registry. It shall be verified that the resulting changes do not alter the company’s structure any more than is necessary to ensure adaptation to its new governing laws. Registration shall entail the provisional freezing of the register in respect of the company.

3. For a period of one month from the approval of the transfer, any shareholders having opposed it shall be entitled to exercise their right of separation. This right shall be exercised in compliance with the provisions of the laws of the State where the company’s registered office was situated prior to the transfer.

4. Following the said one-month period, provided all the formalities necessary for approving the transfer have been complied with, the competent authority of the State of the company shall issue a certificate attesting to the approval of the transfer of the registered office to a foreign country.

Article 23

Registration

1. The transfer shall be registered with the companies registry of the State to which the company’s registered office is transferred. For this purpose it will be necessary to verify that the adoption of the transfer resolution is consistent with the information contained in the certificate referred to in the previous article.

2. The competent authority of the State of the new registered office shall verify that the bylaws comply with the provisions of its law. It shall also verify that the company’s assets cover the registered capital to the extent required by the rules of its laws in the event of the formation of a new company.

3. The transfer shall only be possible if the migrating company adopts a legal form equivalent to its previous legal form in its State of origin.

4. Once the conditions set out in paragraphs 1, 2 and 3 of the present article have been complied with, the competent authority of the State of the company’s new registered office shall register the transfer with its registry. Once the registration has been completed, the registry shall issue the certificate, which shall be submitted to the corresponding registry in the State of origin so that the competent authority may cancel the registration of the company.

5. Any registrations regarding the company that may be contained in the companies registry of the State of origin shall be transferred to the new companies registry.

6. Should the transfer operation not be completed, the competent authorities of the receiving State shall issue a certificate attesting thereto, thereby allowing the registration of the registered office transfer to be cancelled and the provisional freezing of the register to be lifted.

7. If within one year of registering the transfer of the registered office in the State of origin the certificate provided for in paragraphs 4 or 5 of the present article is not submitted to the said State, the competent authority of the companies registry of the State of origin shall consult the companies registry of the receiving State to ascertain whether or not the transfer operation has been completed.

Downloads

EXPLANATORY NOTE.pdf

Draft OHADAC model law of commercial companies.pdf