PART III
Supervision
Director
11. (1) For the purposes of
this Act there shall be a Director of Financial Services whose office shall be
a public office, and who shall be responsible for ensuring compliance with the
provisions of this Act.
(2) The Director shall be
appointed by the Public Service Commission.
(3) In the conduct of his or
her duties under the Act the Director shall be accountable to the Minister.
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Advisers
12. The Director may, with the
approval of the Minister, obtain the services of or appoint any competent
person for the purpose of carrying out a survey, investigation, inquiry or
function under this Act.
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Delegation by Director
13. (1) The Director may
delegate on such terms and conditions as he or she thinks fit, to any person
employed in the Department of Government responsible for international
financial services supervision, any of his or her powers or duties under this
Act, except the power conferred on him or her by this section.
(2) A delegation under
subsection (1) shall be revocable at anytime by the Director and a delegation
shall not prevent the exercise of such powers or duties by the Director.
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Functions of Director
14. (1) The functions of the
Director under this Act shall include
(a) monitoring the
business of international financial services representation conducted by
licensees under this Act;
(b) where the Director
thinks fit examining the affairs or business of any licensee for the purpose of
satisfying the
Director that the provisions of
this Act are being complied with;
(c) reporting to the
Minister regarding the examination of licensees with respect to the matters
referred to in paragraph (a) and (b);
(d) examining and making
recommendations, to the Minister with respect to all applications for licences.
(2) For performance of his or
her functions under this Act and to verify compliance with the provisions of
this Act by a licensee, the
Director is entitled at all
reasonable times
(a) to have access to
such books, records, vouchers, documents, securities and other assets and
information held by a licensee at any place of business as determined by the
Director;
(b) to require the
directors, officers and auditor of a licensee to provide information and
explanation of the condition and affairs of the licensee;
(c) to request any
information, return or certificate from a licensee, either from time to time or
on a regular basis; and
(d) to request from any
person information or expert advice relevant to the duties of the Director and
to provide to such person such assurances regarding the confidential treatment
of the information or any other assurances as the Director may reasonably
provide.
(3) Where a licensee or a
director, officer or auditor of a licensee fails to comply with a requirement
issued by the Director under this Act, the failure shall be grounds for the
recommendation by the Director to the Minister of the suspension, under section
19, of the licence of that licensee.
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Restriction on use of certain
terms
15. (1) A person other than a
licensee shall not
(a) use any word, either
in English or in any other language, in the description or title under which
such person carries on business in or from within Saint Lucia or otherwise
that, in the opinion of the Minister suggests the business of international
financial services representation as described in this Act; or
(b) make any
representation in any document or in any other manner that is likely to suggest
that the person is licenced to carry on the business of international financial
services representation as described in this Act when the person is not.
(2) A person who contravenes
subsection (1) commits an offence under this Act.
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Prohibited names
16. (1) The Minister may direct
a licensee who carries on the business of international financial services
representation under a name which is
(a) identical to that of
any other person, whether within or outside Saint Lucia, or which so nearly
resembles that name as to be likely or calculated to deceive or create
confusion as to the source or type of services rendered;
(b) calculated to
suggest falsely the patronage of or connection with some person whether within
or outside Saint Lucia; or
(c) calculated to
suggest falsely that the licensee has special status in relation to or derived
from the Government, or has the official approval of, or acts on behalf of, the
Government or of any of its departments or officials;
to change the name, and in
default of compliance by the licensee section 20 shall apply.
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Duties of licensee
17. (1) A licensee shall
maintain its principal place of business within Saint Lucia and at the
principal place of business shall maintain, in respect of its business of
international financial services representation
(a) books or records of
account as accurately reflect the business of international financial services
representation of the licensee and such information as may be required by the
Regulations;
(b) separate accounts in
the books or records under subparagraph (a) in respect of each company the
licensee represents or for which the licensee acts as registered office, and in
respect of each trust for which the licensee acts as trustee; and
(c) separate bank
accounts for each company or trust, into which shall be deposited all monies
and other financial assets held on behalf of each company which the licensee
represents and of each trust for which it serves as trustee.
(2) A licensee shall ensure
that all monies and other financial assets held in accordance with subsection 1
(c) are fully segregated from the licensee's own funds and that each bank
account is clearly designated as a client's trust account.
(3) A licensee shall obtain
written confirmation from each bank with whom an account referred to in
subsection (1)(c) is held that such money and other financial assets are being
held in trust and that there is no right of set off between any account so
designated and any other account.
(4) A licensee shall ensure
that all assets, other than financial assets referred to in subsection (2),
held on behalf of another person or trust are fully segregated from the
licensee's assets and that such assets are clearly designated as a client's
assets.
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Audited accounts
18. (1) A licensee shall have
its accounts audited annually or at such other times as the Minister may
reasonably require by an auditor who shall conduct the audit in accordance with
international accounting standards.
(2) The audited accounts shall
be forwarded to the Minister within three months of the end of the financial
year of the licensee, unless prior written approval for an extension has been
granted by the Minister.
(3) The auditor shall also
confirm whether the requirement for the handling of bank accounts of companies
and trusts represented by the licensee is being complied with as the date of
the licensee's financial year end, and whether the licensee has procedures in
place to ensure compliance during the remainder of the period to which the
accounts relate.
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PART IV
Penalities
Suspension
19. (1) Where the Director is
of the opinion that a licensee
(a) is carrying on the
business of international financial services representation in a manner
detrimental to the public interest, or the interest of its client companies or
trusts or their respective shareholders or beneficiaries;
(b) has ceased to carry
on the business of international financial services representation;
(c) is insolvent;
(d) has ceased to comply
with the requirements of section 24 of this Act; or
(e) has contravened a
provision of this Act or a requirement of or condition attached to the licence;
the Director shall decide
whether the matter is to be regarded as a compliance issue or as grave and
subsections (2) or (4) and shall apply respectively.
(2) Where a matter is regarded
as a compliance issue pursuant to subsection (1) or subsection 4 (d),
the Director shall write to the licensee a letter of concerns copied to the
Minister specifying
(a) the matters to be
rectified and a time within which the rectification is to be effected; and
(b) that the licensee is
to reply to the Minister within a specified time addressing the concerns raised
in the Director's letter and submitting the licensee's defence, position or
acts of rectification.
(3) A failure by the licensee
to comply with subsection (2) (b) may result in a suspension under this section
or a revocation under section 20.
(4) A matter which is regarded
as grave, pursuant to subsection (1), shall be brought to the attention of the
Minister by the Director as an application for suspension of the licensee's
licence and the Minister may
(a) revoke the licence
if in accordance with section 20;
(b) deny the application
if the matter is deemed by the Minister as not to warrant further action;
(c) approve the
application and suspend the licence;
(d) instruct the Director to
treat the matter as a compliance issue under subsection (2) if in the opinion
of the Minister it would be most appropriate to treat the matter as a
compliance issue.
(5) A suspension made under
this section may be in relation to new business, existing business or any
category of business of international financial services representation.
(6) Where a licence is
suspended under this section, the Director shall immediately provide written
notice of suspension together with an explanation of the cause of the
suspension, its effect, and the steps required for reinstating the licence to
the licensee who shall be afforded the opportunity to raise objections within
fourteen days of receipt of the notice and the Minister shall consider any
objections made.
(7) A suspension of a licence
made under this Act shall not exceed thirty days, unless the suspension is
extended by an order of the Court on application of the Director by originating
summons which shall specify
(a) the grounds upon
which the suspension should continue;
(b) the details of any
objections made by the licensee; and
(c) the period of
further suspension requested;
(8) A suspended licensee shall
in consultation with the Director appoint another licensee to act on behalf of
the clients of the suspended licensee but if the suspended licensee fails to
appoint another licensee, the Director in consultation with the Minister may
make such appointment as is necessary.
(9) A suspension of a licence
under this Act shall not in itself result in the deregistration of a trust or
company for which the licensee was providing international financial services
representation.
(10) The Minister may revoke a
suspension made under this Act at any time.
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Revocation
20. (1) The Minister may revoke
a licence if
(a) the licensee or a
person controlling the licensee is declared bankrupt or is liquidated or
wound-up;
(b) the licensee or any
person controlling the licensee is convicted of any crime involving theft,
deceit or abuse of trust;
(c) there is a failure
of the licensee to rectify the matter or matters causing the suspension of the
licensee's licence within a reasonable time, and in any event, in not more than
thirty days, following a suspension under section 19;
(d) the licensee is
carrying on, or has carried on, its business in a manner detrimental to the
public interest.
(e) the licensee is
beneficially owned directly or indirectly by a person who is not
(i) of sound reputation;
(ii) solvent; or
(iii) a fit and proper
person; or
(f) the licensee has to
comply with section 16.
(2) The Minister shall, before
he or she revokes a licence
(a) suspend the licence;
(b) give the licensee
written notice of the suspension pending revocation and the grounds on which he
or she intends to do so;
(c) afford the licensee
an opportunity to make written objections within thirty days after the mailing
of the notice; and
(d) take any objections
made by the licensee under subparagraph (c) into consideration, and, if
the Minister decides to revoke a licence, the Minister shall cause the
documents revoking the licence to be served on the licensee.
(3) Subsection (7) to (10) of
section 19 applies to a suspension made under subsection (2);
(4) The revocation of a licence
takes effect on the date of service on the licensee of the document revoking
the licence.
(5) The Director shall publish
notice of the revocation of a licence in the Gazette.
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Disqualification
21. (1) If it appears to the
Director that a person is not qualified, not of sound reputation, not solvent
or otherwise not a fit and proper person to be appointed or remain as director,
manager or officer of a company that is a licensee, the Minister may direct
that the person shall not, be appointed or remain as a director or officer.
(2) The Minister shall give
written notice to the licensee of any decision to make a direction under this
section and may additionally provide a statement of reasons for the decision
and, except where the Minister is satisfied that urgent action is necessary,
the notice shall be served on the licensee not less than twenty-eight days
before the date on which the decision is to take effect.
(3) A direction by the Minister
under subsection (1) may be
(a) given subject to
conditions;
(b) varied from time to
time; and
(c) revoked at any time.
(4) A person shall not accept
or continue in any appointment referred to in subsection (1).
(5) A licensee shall not
appoint or continue the appointment of a person in contravention of a
direction.
(6) A person who contravenes
subsection (4) or (5) commits an offence and upon summary conviction is liable
to a fine of fifty thousand dollars or to imprisonment for a term not exceeding
five years.
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Appeals
22. (1) An appeal lies to the
Court, by summons or on motion, from any decision of the Minister to suspend or
revoke a licence under section 19 or 20 respectively, from a direction under
section 21, from a decision to refuse to renew a licence under section 7, or
from a decision to refuse to grant a licence under section 6.
(2) An appeal under this
section must be brought within fourteen days after the service of the relevant
notice or documentation on the person whose licence has been suspended,
revoked, not renewed or not granted.
(3) The decision of the Court
on appeal may be further appealed as provided under applicable law.
(4) The Director shall cause
notice of the Court's decision to be published in the Gazette.
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PART V
Powers of Search
Search powers
23. (1) If a Magistrate is
satisfied by information on oath, either oral or written, given by the Director
(a) that there are
reasonable grounds for suspecting that an offence against this Act or any other
law in force in Saint Lucia relating to the international financial services
has been or is being committed and the evidence of the commission of the
offence is to be found at any premises specified in the information, or in any
vehicle, vessel or aircraft; or
(b) that any books,
records or other documents which ought to have been produced under section 14
or any other law in force in Saint Lucia relating to the international
financial services and have not been produced is to be found at any premises or
in any vehicle, vessel or aircraft;
the Magistrate may grant a
search warrant authorising the Director, together with any other person named
in the warrant and any police officer, to enter the premises, vehicle, vessel
or aircraft at any such time within thirty days from the date of the warrant,
and to search the premises vehicle, vessel or aircraft.
(2) The Director or any other
person authorised by a warrant under subsection (1) to search any premises,
vehicle, vessel or aircraft, may search any person who is found in or whom the
person has reasonable grounds to believe has recently left or to be about to
enter those premises, vehicle, vessel or aircraft, and may seize any books
records or other documents, found in the premises, vehicle, vessel or aircraft
which the person authorised has reasonable grounds to believe should have been
produced under section 14 or any other law in force in Saint Lucia relating to
the international financial services, but a female shall not in pursuance of
any warrant issued under subsection (1), be searched except by a female.
(3) Where by virtue of this
section, a person is authorised to enter any premises, vehicle, vessel or
aircraft, he or she may use such force as is reasonably necessary for the
purpose of exercising that power.
(4) A person shall not obstruct
the Director or another person in the exercise of authority conferred under
this section.
(5) A person who contravenes
subsection (4) commits an offence and Article 602 of the Criminal Code shall
apply.
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