Global business and authorised companies

1. The permission and the list are different documents

A Global Business Licence and an Authorised Company authorisation are permissions under the Financial Services Act. Financial Services Act section 71 is the Global Business Corporation. Financial Services Act section 71A is the Authorised Company. Those sections do not incorporate the company. The certificate of incorporation still does that.

Part XXIX of the Companies Act then says which provisions of this Act do not apply, and which special provisions do apply, once the company holds the permission or is applying for it. The Thirteenth Schedule is the list of sections that do not apply. Part I of that Schedule is the list for a company holding a Global Business Licence or for an Authorised Company. Part II is a further list for an Authorised Company. The Fourteenth Schedule is the list of provisions that do apply.

Tamarind holds neither permission. The directors chapter states the ordinary rule: at least one director, a natural person, ordinarily resident in Mauritius. None of the lists below changes Tamarind’s board while it holds neither permission. This chapter is the list as a whole.

Companies Act, sections 343 and 345. Thirteenth Schedule. Fourteenth Schedule.

2. What the lists change

Part I of that Schedule lists provisions that do not apply to a company holding a Global Business Licence or to an Authorised Company. For the board, that list includes the public-company requirements in section 133 on independent directors and on the number of women. It also includes the annual return in section 223. Part II adds a further list for an Authorised Company only, including the secretary provisions. An Authorised Company is therefore outside the duty to appoint a secretary. A company that holds a Global Business Licence and is not an Authorised Company remains under the secretary provisions once it is outside the small-private-company test. An Authorised Company must still have at least one director. The Fourteenth Schedule provides that this director need not be ordinarily resident in Mauritius, and that a corporation may be a director, notwithstanding the ordinary rules on the number and qualifications of directors. That residence relaxation is stated for an Authorised Company. It is not the rule for Tamarind, and it is not stated there as the rule for a company that holds a Global Business Licence and is not an Authorised Company.

A company may hold its own shares only inside the limit in section 72. Except for a private company holding a Global Business Licence or an Authorised Company, the shares held must not exceed 15 per cent of the shares of that class previously issued. The exception is for that private company. It does not raise the 15 per cent cap for Tamarind.

The Fourteenth Schedule also provides that the directors of an investment company holding a Global Business Licence may enter into major transactions without shareholder approval under section 130. Shareholders of a private company holding a Global Business Licence, or of an Authorised Company, may by unanimous resolution agree that section 130 does not apply. The resolution lasts until a shareholder revokes it or the shareholders change. Tamarind is not an investment company and holds no Global Business Licence. A workshop at 80 per cent of its assets still needs the special resolution in section 130. The decisions chapter counts that vote.

The same buy-back after a Global Business Licence

Tamarind later takes a Global Business Licence and remains a private company. It buys back shares and wants to hold them. The constitution expressly permits the company to hold its own shares, and the board resolves not to cancel them. The 15 per cent cap does not apply, because the exception is a private company holding a Global Business Licence. The same company, before the licence, was inside the cap. The licence does not remove the need for the constitution to permit the holding, and it does not remove the board resolution.

An Authorised Company whose only director lives outside Mauritius can meet the director rule in the Fourteenth Schedule. Tamarind, without that authorisation, still needs one director ordinarily resident in Mauritius. Meera’s residence is what satisfies that rule today.

Companies Act, sections 72, 130, 343 and 345. Fourteenth Schedule.

What you should now be able to explain

The Financial Services Act grants the permission. Part XXIX and the two Schedules say which Companies Act rules then drop out or apply. An Authorised Company may have a single director who is not ordinarily resident, and that director may be a corporation. A private company with a Global Business Licence is outside the 15 per cent treasury cap. Tamarind, as it stands, is outside both lists.

Next: the Registrar’s reservation of a name, and the certificate that says the company is still on the register.