Entities formed in Bermuda, the British Virgin Islands (BVI) and the Cayman Islands are involved in the lion's share of a wide variety of cross-border transactions around the world, from dual listings to joint ventures and group reorganisations to investment funds to issuers in the structured finance markets.

The reasons traditionally cited for this phenomenal success include: legal systems based on English law; neutrality; a stable political system; AA sovereign risk ratings; service providers to the highest international standards; confidence in the court system; a convenient time zone; first class communications; a good climate; good hotels; and good meetings facilities.

However, the key factor in the success of the jurisdictions, aside from the very creation of the concept of exempted entities, is the willingness of their governments to address the legitimate needs of the international business sector of their economies and to keep regulation light but effective and their laws, particularly company laws, modern.

A shining example of this is the new Business Companies Act in the BVI, while Bermuda will permit companies to pass private acts of parliament. Many insurance companies have established segregated accounts in this way and the Jardine Matheson group of companies each have their own unique statutory takeover code.

The three most common entities used in cross-border transactions are:

. exempted companies (international business companies in the BVI);

. exempted segregated portfolio companies (exempted segregated account companies in Bermuda); and

. exempted limited partnerships (international limited partnerships in the BVI). Such entities are distinguished from local ones because they are restricted from carrying out domestic business and hence are exempt from a local ownership requirement. These entities can be incorporated or formed at very short notice and provide flexible vehicles with which to conduct cross-border transactions.

Bermuda has been pioneering the use of segregated accounts companies in the reinsurance sector through the adoption of private acts of parliament for many years and introduced public legislation in the form of the Segregated Accounts Companies Act in 2000. In a similar fashion, the BVI introduced segregated portfolio companies in 2002 by amending its Insurance Act and Cayman did so in 1998 by amending its Companies Law.

The potential for the use of these companies in mutual funds, insurance and structured finance programmes, without resort to trust or contractual limited recourse, is obvious. No licenses or permits are generally required by exempted entities which operate in the international business sector save for those operating in insurance, banking, securities investment business, mutual funds and companies management.

Control can be maintained by weighted votes, voting cutbacks, pre-emption rights, anti-takeover provisions (including shareholder rights plans) and other provisions in constitutional documents and shareholders' agreements.

Furthermore, there are no merger controls and no takeover codes of general application, with the exception in the Cayman for companies listed on the Cayman Islands Stock Exchange.

Control can be acquired through a general offer or a tender offer, a scheme of arrangement (which requires approval by the court in all three jurisdictions) or, in Bermuda and the BVI, by an amalgamation, merger or consolidation. Squeeze-outs can be effected at 51%, 75%, 90% or 95%, depending on the jurisdiction.

With regard to structured finance and securitisations, innovative structures involving purpose trusts (in the Cayman STAR trusts established under the Special Trusts – Alternative Regime of the Trusts Law) with no beneficiaries can ensure off-balance sheet treatment, bankruptcy remoteness and non-consolidation essential in structured finance and securitisation transactions.

Bermuda was at the forefront of the securitisation of reinsurance risk in the early 1990s through the issue of CAT bonds and Bermuda exempted companies are commonly used as 'transformers' to turn insurance contracts into derivative contracts or vice versa.

Cayman companies are popular issuers in the structured finance markets, essentially as a result of Cayman being a 'creditor-friendly jurisdiction'. There is, for example, no indigenous system of corporate rehabilitation such as administration in England or Chapter 11 in the US; liquidators of Cayman companies cannot disclaim onerous contracts; there is no general concept of a stay in relation to secured creditors; fraudulent preference is limited to those circumstances where a disposition is made with the intention of preferring one creditor over another; preferred creditors, in the case of an exempted company which has no employees in Cayman, are limited to unpaid government fees; netting, set-off and contractual subordination are enforceable by statute both before and after insolvency without the need for a security interest; and there is minimal recharacterisation risk so deeply subordinated debt is unlikely to be recharacterised as equity.

With regard to financing transactions, there are no debt restrictions and no restrictions on the use of derivatives.

A variety of instruments can be issued to finance transactions from equity to debt to hybrid instruments and complex derivatives, many rated by the rating agencies.

There are no financial assistance rules preventing companies assisting in the acquisition of their own shares (in Bermuda, subject to a solvency test).

Free movement of capital is promoted by a lack of exchange controls on nonresidents and exempted entities are able to pay dividends and make distributions without reference to any govern-mental authority.

All the jurisdictions will recognise foreign law as the governing law of any security interest. There are no perfection requirements in any of the jurisdictions, but each of the jurisdictions has the concept of a register of mortgages and charges. Priority is determined in Bermuda by the date of registration of the charge with the Registrar of Companies and in the BVI by the date of registration in the Register of Mortgages Charges and other Encumbrances maintained by the company at its registered office. Although the Companies Law of Cayman requires a register of mortgages and charges to be kept at the registered office of the company, the Companies Law does not provide for a statutory system of priority and priority will be determined by common law principles.

There is no tax leakage in transactions and the use of entities in the jurisdictions can result in a reduction in the global average rate of taxation for a multinational group.

Save for government registration fees there is no taxation on exempted entities and none of the jurisdictions impose any corporation tax, profits tax, income tax, withholding tax, capital gains tax, inheritance tax, capital transfer tax, estate duty, gift tax or wealth tax on those entities or their shareholders or partners save for those who are ordinarily resident in the jurisdictions. There is no capital duty and there are no thin capitalisation rules.

Finally, all three jurisdictions permit discontinuances (or deregistrations) and continuances which enable companies to move to another jurisdiction.

David Lamb is a partner at Conyers Dill & Pearman.