Central Bank of Barbados
The Central Bank of Barbados (the “Central Bank”) oversees the licensing and supervision of bodies corporate seeking to conduct business under the Financial Institutions Act (the “FIA”) and the International Financial Services Act (the “IFSA”).
Under the FIA, a financial institution includes commercial banks, trust companies, finance companies, merchant banks and brokerage houses. However, an “international financial service” is defined in the IFSA as:
- the business of receiving foreign funds through
- the acceptance of foreign money deposits payable upon demand or after a fixed period or after notice;
- the sale or placement of foreign bonds, foreign certificates, foreign notes or other foreign debt obligations or other foreign securities; or
- any other similar activity involving foreign money or foreign securities; or
- the business of using the foreign funds so acquired, either in whole or in part, for
- loans, advances and investments;
- the activities of the licensee for the account of or at the risk of the licensee;
- the purchase or placement of foreign bonds, foreign certificates, notes or other foreign debt obligations or other foreign securities; or
- any other similar activity involving foreign money or foreign securities; or
- the business of accepting in trust from person’s resident outside Barbados or from prescribed persons
- amounts of money in foreign currencies or in foreign securities or both;
- foreign personal property or foreign movable property; or
- foreign real property or foreign immovable property; or
- any other financial service, related or ancillary to an activity described in the IFSA, which the Central Bank may by regulations declare to be an international financial service for the purposes of the IFSA.
The FIA and IFSA provide the statutory requirements for the licensing of a financial institution and an institution providing an international financial service. The Central Bank has powers of audit and inspection under both statutes. Licensees under the FIA and the IFSA are required to submit financial statements to the Central Bank on a quarterly basis. The Central Bank has the power to require a licensee to submit such further information as the Central Bank may determine for the proper understanding of the financial statements or any return furnished by the licensee and any information in relation to any holding company, subsidiary or affiliate of the licensee.
The role of the auditor is addressed in the legislation. The Central Bank is empowered to appoint an auditor where a licensee fails to appoint any auditor or terminates the appointment of its auditor without appointing a replacement. The FIA and IFSA also impose a duty on the auditor to report to the Central Bank any instances where the operations of the licensee might not in his opinion be in compliance with the legislation, the regulations, the conditions of the licensee’s license or its articles of incorporation. Should the licensee appoint any auditor, the auditor must be approved by the Central Bank. For the purposes of the FIA and the IFSA, “auditor” means a person who is in good standing as a member of an association of chartered or public accountants or other similar body approved by the Central Bank as a reputable auditing association.
The legislation also gives the Central Bank powers to examine the affairs of a licensee, as the Central Bank considers necessary, so as to determine whether the provisions of the FIA and the IFSA or regulations made under the FIA and IFSA are being complied with or whether the licensee is in sound financial condition.
Should the Central Bank be of the opinion that after the examination of a licensee, it is carrying on business in an unlawful manner or its business is in an unsound financial position, the Central Bank may require the licensee take such remedial measures as it considers necessary and may restrict the transactions which the licensee can enter into. Further, the Central Bank can, with the approval of Minister of Finance, suspend the licensee’s licence for a period not exceeding three (3) months. Where a licensee is aggrieved by the decision of the Central Bank, the licensee may within thirty (30) days after it is notified of the Central Bank’s decision appeal to the Minister.
The Minister may cancel the licence of a licensee in circumstances specified at section 51(1) of the legislation. Furthermore, the Central Bank may inspect the books of holding companies, parent companies or any company that owns the majority of the shares in a Barbados licensee in the case of companies located in Barbados. It may also request information from the appropriate authorities outside Barbados where necessary. Upon giving prior notice to the Minister, the Central Bank may also seize the management and control of a licensee in a variety of circumstances specified at section 53 of the legislation, which also contains enhanced procedures for winding up and judicial management.
The Central Bank also enhances its regulatory powers by producing guideline publications for financial institutions. They are generally aimed at new and growing areas of risk management in the financial sector in Barbados. The guidelines form the basis on which the Central Bank conducts its routine monitoring of financial institutions’ risk management, but they do not have the power of law, and the Central Bank does not have power to enforce compliance. Compliance is, however, generally high.
- In March 2000, the Central Bank issued Know Your Customer Guidelines for Licensed Financial Institutions. These Guidelines are aimed at institutions licensed under the IFSA and the FIA. They are based on the Financial Action Task Force’s (“FATF”) 40 Recommendations to be implemented to fight money laundering, and have been supplemented by the Caribbean Financial Action Task Force’s (“CFATF”) 19 additional Recommendations. The Guidelines require such financial institutions to implement identification procedures and monitoring of customers, report suspicious transactions, maintain adequate records, implement systems of controls and communication, and ensure adequate training and awareness of staff. Training should generally cover:
- laws and guidelines;
- policies and procedures;
- know-your-customer requirements;
- know-your-business relationships;
- the identification of possible types of suspicious activities in all departments;
- case studies of traditional schemes and new money laundering “typologies”;
- reporting procedures; and
- personal obligation and liability under the Act. [Money Laundering and Financing of Terrorism (Prevention and Control) Act (the “MLFTA”)].
It is an offence under the MLFTA for financial institutions, their directors and employees, to warn customers when information on suspicious activities relating to them is being reported to the law enforcement authorities. The provisions of the MLFTA and provisions in other Acts designed to prevent money laundering are discussed in greater detail in section 7 (“Anti-Money Laundering Authority”).
- The Corporate Governance Guideline adds to the obligations for directors and senior managers as set out in major legislation like the Companies Act, and the MLFTA. The Bank undertakes periodic inspections of corporate governance practices in financial institutions, with particular attention to transactions between directors or their related interests and the financial institution, to ensure that such transactions are concluded at arm’s length and conflicts of interest are disclosed.
- The Operational Risk Management Guideline is based on the Basel Committee (2003) “Sound Practices for the Management and Supervision of Operational Risk”. The Central Bank undertakes periodic reviews of institutions’ operational risk management, occasionally requests copies of all internal audit reports and internal operational risk reports prepared for senior management and the board, and may solicit information on an institution’s operational risk management directly from external auditors. Where the Central Bank identifies deficiencies, financial institutions may be asked to submit an action plan to address them.
Most recently, in March 2008, the Central Bank issued three new guideline publications outlining minimum standards for managing liquidity, country and market risk.
- The Liquidity Risk Management Guideline is based on the principles outlined by the Basel Committee (2000) “Sound Practices for Managing Liquidity in Banking Organisations”. Financial institutions are required to submit a copy of their liquidity management policy, a quarterly regulatory return and a yearly analysis, and must also inform the Central Bank of breaches in internal limits or any current or future liquidity concerns as well as the proposed mitigation strategies.
- Under the Country Risk Management Guideline financial institutions are required to provide quarterly country risk management reports to the Central Bank. The Central Bank also reviews institutions’ country risk management programs through on-site inspection. Where an institution’s country risk provisions do not appear adequate it may be directed to undertake a reassessment.
- There are provisions in the Managing Market Risk Guideline for the Central Bank to not only monitor market risk, but also to monitor the adequacy of capital to support risks and to require institutions to increase their capital holdings where it deems the capital to be insufficient.
- The Central Bank has also issued guideline publications on electronic banking, foreign exchange and settlement risk management, stress testing and outsourcing. There is also an anti-money laundering guideline issued jointly with the Anti-Money Laundering Authority (see section 7 “Anti-Money Laundering Authority”).
The Exchange Control Act (“the ECA”) gives the Exchange Control Authority the power to regulate the purchase or trading of foreign currencies. The Minister of Finance has delegated the functions of Exchange Control Authority to the Central Bank which has to give approval before certain foreign currency transactions can go ahead. However, Barbados has been moving towards exchange control liberalisation since the mid-1990s and the Central Bank has delegated authority to approve payment for many trade transactions that previously required prior Central Bank approval. With only a few exceptions the Central Bank has granted commercial banks full authority for all current transactions with the Caribbean Community (“CARICOM”). Central Bank approval is still required for, among other things, the sale of real estate in Barbados to non-residents, lending to non-residents by residents of Barbados and direct investment into Barbados by residents of countries which are not members of CARICOM.
Companies operating in the offshore sector are exempted from Exchange Control Regulations in respect of their offshore activities.
The operations of securities and mutual funds in Barbados are regulated by the Securities Commission (“the Commission”), a body established by, and deriving its powers from, the Securities Act (“the SA”). The Commission has been fully functional since 2003 and has the broad objective of protecting investors by ensuring orderly, fair and equitable dealings in securities. All securities companies, brokers, investment advisers, dealers, traders and underwriters of securities must first be registered for such business by the Commission which issues certificates of registration, maintains a comprehensive list of registrants, and suspends or revokes registrations in the event of breaches. It approves the content of offering documents, regulates and reviews takeovers and other forms of business combinations, and monitors the solvency of registrants to protect the interests of investors. The Commission also sets standards of conduct for registrants, for example in relation to the prevention of conflicts of interest or any other conduct which would result in unfairness to a customer, and disclosure to customers on registrants’ policies on the payment of commissions where registrants have investment discretion over customers’ accounts. In carrying out its functions the Commission consults and co-operates with local agencies such as the Central Bank, the Barbados Stock Exchange and the Central Securities Depositary, as well as foreign organisations including international securities regulators.
Inquiries, investigations, examinations, regulations and orders are the Commission’s main regulatory tools.
- The Commission can conduct inquiries to assist in formulating rules, or to obtain information as a basis for recommending amendments to the securities legislation.
- The Minister of Finance may, on the recommendation of the Commission, make various regulations, for example, in relation to the method, type and form of record-keeping by registrants, and examination of and reporting on financial statements by independent accountants. Breach of a regulation is punishable on summary conviction by a fine of BDS $10, 000 or 2 years imprisonment.
- The Commission has the power to make a variety of orders (either of its own motion or on application by an interested person) imposing requirements on registrants. It can subpoena or summons a person to attend a hearing, testify to all matters relating to the subject of the hearing, and produce all relevant records in his possession or under his control. A person can also be compelled to give sworn evidence orally or in writing as the Commission sees fit. The Commission may, where it is felt necessary, order that all trading of specified securities shall cease for a specified period. A cease trade order can be issued without a hearing first being held, although a hearing should be held within a specified period after the order is issued. A person trading in contravention of an order may have to pay the Crown a maximum penalty of BB$ 50 000.
- An investigator may be appointed where the Commission suspects any player in the securities market of contravening the SA. The investigator has wide powers. Investigations are held in camera and full reports forwarded to the Commission.
- Similarly, an examiner may be appointed to scrutinise, and report on, the records and financial affairs of a registrant where the Commission suspects a breach of the SA. The registrant has a statutory duty to co-operate with examiner, and must also bear the costs of the examination.
The Commission also regulates companies wishing to carry on mutual fund business in Barbados under the Mutual Funds Act (“the MFA”) and its accompanying Regulations, which were enacted to provide for the regulation, authorisation and control of mutual funds and their managers and administrators carrying on business in or from within Barbados.
A mutual fund is defined as:
- a registered unit trust,
- a company,
- a partnership, or
- a society,
that has been granted a licence for the purpose of carrying on mutual fund business in or from Barbados in compliance with the Mutual Funds Act, but does not include:
- a person licensed under:
- Part II of the FIA, other than a finance company,
- the Insurance Act,
- the Exempt Insurance Act
- a friendly society within the meaning of the Friendly Societies Act;
- a society, credit union or association within the meaning of the Co-operative Societies Act;
- any company or partnership, whether Barbadian or foreign, that is primarily engaged in any industrial, commercial or charitable enterprise.
The Act provides for up to three types of licence, namely a mutual fund licence granted under section 8; a mutual fund administration licence, which includes a general administration licence granted under section 16; and a restricted administration licence granted under section 16.
Under section 8, an application for a mutual fund licence must be made in the prescribed form to the Commission established by the Mutual Funds Act 2002. The Commission must be satisfied that
- each promoter proposed to be appointed by or associated with the mutual fund is of sound reputation;
- the administration of the mutual fund will be undertaken by persons that (a) have sufficient expertise to administer the mutual fund; and (b) are of sound reputation;
- the business of the mutual fund and any offer of equity interest n it will be carried out in a proper manner; or (b) the operator of a mutual fund undertakes to ensure that when carrying on business in or from Barbados the mutual fund complies with all conditions contained in its licence; (c) in the case where a mutual fund is not incorporated in Barbados it
- has a place that will be its principal office in Barbados; and
- has appointed a person who is resident in Barbados and who as been approved by the Commission as its agent. The Commission may grant a mutual fund licence subject to such conditions as it considers appropriate.
Under section 17, the holder of a general administration licence is authorised to act or carry on business as a mutual fund administrator in respect of an unlimited number of mutual funds. On the other hand, the holder of a restricted administration licence is authorised to act or carry on business as a mutual fund administrator solely in respect of the mutual funds specified in the licence. A restricted administration licence will only be granted if the Commission is satisfied that applicant will be administering only specified mutual funds. A restricted administration licence will not be granted to a person who does not have a registered office in Barbados. The Commission must be satisfied that the applicant for a mutual fund administration licence has sufficient expertise to administer authorised mutual funds, is of sound reputation, and has given an undertaking that it will administer authorised mutual funds in a proper manner.
The duties of a mutual fund administrator are:
- to manage the fund in accordance with the MFA and the constitutive documents of the fund in the exclusive interest of the fund;
- to comply with the conditions contained in the mutual fund administration licence;
- to discharge all obligations respecting the administration of the fund with due diligence;
- to provide the Commission with notice of intention to change the principal office or any agent;
- to ensure that the financial resources required for the discharge of the obligations of administration are adequate and a surplus of assets over liabilities of not less than 10 per cent is maintained; and
- whenever the minimum surplus referred to in paragraph (e) is not maintained, inform the Commission immediately of that fact and of the extent of the deficiency.
An administrator shall be liable to the holder of the shares in the fund for any loss resulting from the failure to fulfill the obligations imposed upon it or for the proper fulfillment of such obligations. A mutual fund administrator may provide the principal office to a mutual fund and shall, prior to providing such office (a) submit, in writing, to the Commission the prescribed details in respect of the mutual fund; and (b) pay the prescribed licence fee in respect of the mutual fund. The Commission has extensive powers of control over mutual fund administrators.
The Commission, an inspector, or any person performing services for or on behalf of the Commission, a mutual fund administrator and any member of their staff shall not
- disclose any information relating to (i) any applications made for a licence under the Mutual Funds Act; (ii) the affairs of a mutual fund; (iii) the affairs of a mutual fund administrator; or (iv) the affairs of an investor in a mutual fund, which is acquired in the course of their duties or the exercise of their functions under the Mutual Funds Act; and
- use any information referred to in paragraph (a) for their own benefit.
The Commission may disclose to a mutual fund regulating authority outside of Barbados general information of a statistical nature about a mutual fund or mutual fund administrator that does not disclose the identity of investors.
Office of the Supervisor of Insurance and Pensions
The Supervisor of Insurance (“the Supervisor”) is empowered to regulate the conduct of insurance under the Insurance Act (“the IA”) and the Exempt Insurance Act (“the EIA”) to regulate the conduct of insurance business in Barbados. The Supervisor has a staff of 19, and reports to the Minister of Finance.
Only bodies corporate can carry on domestic insurance business in Barbados and they must be registered by the Supervisor, who will issue a certificate of registration. There are share capital and deposit requirements for registration which vary depending on the intended class of insurance business. Registered insurers are required to establish and maintain a statutory fund for each class of insurance business and report the particulars of the assets comprising the fund to the Supervisor. The Supervisor also has wide investigative powers and may require a registered insurer to produce any information relating to its insurance business in Barbados, or may appoint an Inspector to investigate the affairs or any part of the affairs of a registered insurance company. The Supervisor may also act as arbitrator in disputes between insurers and policyholders.
Following an investigation the Supervisor may, if it is deemed necessary, present a petition to the court for winding up of a company carrying on insurance business, pursuant to the Companies Act, or a petition for the company or any part of its insurance business to be placed under court-appointed judicial management. Alternatively, instead of making a winding-up order, the court may reduce the contracts of an insurance company which has been proved to be unable to pay its debts.
A corporation can be licensed to carry out international insurance business from Barbados under the EIA but in order to conduct exempt insurance business from within Barbados a company must be licensed by the Minister of Finance. There is a capital requirement of at least BB$250 000 paid-up capital, or where the company is an approved mutual insurance company, minimum contributed reserves of BB$250 000. The conditions of the licence usually vary depending on the class or classes of insurance business being undertaken. There are reporting obligations to the Supervisor of Insurance before a licensee can begin conducting exempt insurance business, and also during the period of business. The Minister has powers to suspend or revoke a licence, but an aggrieved party has some rights of appeal.
The Supervisor of Insurance can also license a company carrying on international insurance business as a qualifying insurance company (“QICâ€). A certificate of qualification entitles a QIC to insure a maximum 10 per cent of local risk. The Supervisor can cancel a certificate of qualification where it is felt necessary, but the insurer has a right of review of the decision, and a new certificate may be issued. Under the Fourth Schedule of the IA, QICs are required to maintain a specified solvency level, deposits and reserves.
In addition to the legislation, there are insurance guidelines which enhance the regulatory system. Barbados is a member of several regional and international insurance organisations including the International Association of Insurance Supervisors (IAIS), the Offshore Group of Insurance Supervisors (OGIS), the International Association of Insurance Fraud Agencies (IAFA), the Caribbean Association of Insurance Regulators, and the Caribbean Financial Action Task Force (CFATF). The insurance supervisory department is periodically assessed by the CFATF and the International Monetary Fund, which monitor its level of compliance with international standards.
International Business Unit
The International Business Unit (“the Unitâ€) regulates international business companies (IBCs), international societies with restricted liability, international trusts and foreign sales corporations.
Under the International Business Companies Act (“the IBC”), a company intending to carry on international manufacturing or international trade and commerce in Barbados must be licensed to do so by the Minister of Finance. In practice, the Minister has delegated regulatory powers to the Unit. To be licensed as an IBC the company must be resident in Barbados (i.e. either incorporated in Barbados or if incorporated overseas, registered under the laws of Barbados) and must satisfy the Unit that it is financially capable of carrying on the business of international manufacturing or international trade and commerce and of complying with any prescribed conditions. Licences are renewable before 1st January each year and there is a prescribed renewal fee. A company that does not renew a licence within the stipulated time must pay a penalty fee in addition to the renewal fee. Renewal of a licence may be refused, or a licence cancelled, but a company has the right to make representation in writing once notified of the intended action. Where a licence is cancelled or renewal is refused the aggrieved party may, within a specified time, challenge the decision by application to the High Court. IBCs have filing and reporting obligations similar to those that apply to domestic companies under the Companies Act.
The Societies With Restricted Liability Act (“the SRLA”) allows one or more persons to establish an SRL by registering with the Registrar of Corporate Affairs and Intellectual Property (“the Registrar”) who issues certificates of organisation and maintains a Register of Societies. The SRL comes into existence on the date shown on the certificate of organisation. A society must have its registered office in Barbados and records must be kept and maintained in accordance with Part V of the SRLA. A society organised outside Barbados and having the legal characteristics that would enable it to be organised in Barbados as an SRL may apply to the Registrar for a certificate of continuance in order to move operations to Barbados, provided it is not prohibited under the laws of its overseas jurisdiction from doing so. There are also provisions to facilitate SRLs moving their operations out of Barbados. A society that meets certain requirements in the SRLA may apply to the Unit for a licence to function as an international society with restricted liability (“ISRL”). Where a society does not comply with the SRLA the Registrar may strike it off the Register of Societies, but may also restore it to the register if the society makes the prescribed application and pays the relevant fee. The Minister of International Business (under powers now delegated to the Unit) can at any time appoint an inspector to investigate and report on the affairs of a society, at the society’s expense. The society and its members are required to co-operate or face penalties.
To qualify as an international trust under the International Trusts Act (“the ITA”) the trust must meet the following criteria:
- the creator of the trust as well as any beneficiaries (excluding various international financial entities such as exempt insurance companies, IBCs and offshore banks) must be resident outside Barbados at the time the trust is created and at such times when the creator adds new property to the trust;
- at least one of the trustees must be resident in Barbados; and
- the trust property must not include any immovable property or an interest in any immovable property situate in Barbados.
International trusts can only be created by instrument in writing, and where the trust deed is in a language other than English the deed must be accompanied by a certified English translation. International trusts are registered with the Ministry of International Business.
Foreign sales corporations are licensed by the International Business Unit under the Barbados Foreign Sales Corporation Act (“the BFSC”) following application and the payment of an application fee. However new incorporations of foreign sales corporations in Barbados have effectively ceased since 2004 when the United States repealed the Tax Reform Act of 1984 and the Extra-Territorial Inclusion Act following an adverse World Trade Organisation ruling. The Unit regulates the remaining foreign sales corporations on the island.
Registrar of Cooperative Societies
The Cooperative Societies Act (“the CSA”) sets out the regulatory framework for credit unions, housing and workers’ societies, and other co-operative societies. An entity wishing to carry on business as a co-operative society in Barbados must apply for registration in the prescribed form to the Registrar of Co-operative Societies, who issues certificates of registration and maintains a Register of Societies. There is a continuing obligation after registration to comply with various co-operative principles set out in s. 4 of the CSA. Co-operative societies must file annual and monthly returns and any financial statements presented at members’ meetings. The Registrar can call a special meeting of a society where necessary, and can also hear disputes among members, between members and a society, and among societies. Powers also include the right to appoint an examiner to investigate and report on the state of a society’s books, to appoint a receiver or receiver-manager to protect members’ interests, and to dissolve a society either directly or through a liquidator. The CSA establishes a Co-operative Societies Appeals Tribunal which hears appeals against decisions of the Registrar.
Anti-Money Laundering Authority
The regulatory agency that is primarily responsible for supervising financial institutions in the fight against money-laundering is the Anti-Money Laundering Authority, established in August 2000, under the Money Laundering (Prevention and Control) Act 1998 which was subsequently amended in 2002 to become the Money Laundering and Financing of Terrorism (Prevention and Control) Act (the “MLFTA”). A Financial Intelligence Unit has also been established to carry out the Authority’s supervisory function over financial institutions, including the conduct of investigations, encompassing gathering, analysing and disseminating suspect transaction reports.
Financial Institutions are defined under the MLFTA as:
- any person who carries on business under the Financial Institutions Act; and
- a deposit taking institution;
- any person whose business involves money transmission services, investments services or any other services of a financial nature;
- a credit union within the meaning of the Co-operatives Societies Act;
- a building society within the Building Societies Act;
- a friendly society within the meaning of the Friendly Societies Act;
- an insurance business within the meaning of the Insurance Act;
- an off-shore bank within the meaning of the Off-shore Banking Act;
- an exempt insurance company within the meaning of the Exempt Insurance Act;
- an international business company within the meaning of the International Business Companies Act;
- a society with restricted liability within the meaning of the Societies with Restricted Liability Act;
- a mutual fund, mutual fund administrator and a mutual fund manager;
- international trusts within the meaning of the International Trusts Act;
Under the MLFTA, financial institutions are required to establish and maintain, for a period of five years, records of all business transactions exceeding BDS $10,000 or its equivalent in foreign currency, as well as evidence of a person’s true identity or the true identity of the person on whose behalf or for whose benefit he is acting in the proposed transaction. Financial institutions are also required to report to the Authority any business transaction which an officer or employee reasonably suspects involves proceeds of crime or is of an unusual nature. The Authority, upon receipt of such a report, if it believes on reasonable grounds that the business transaction involves proceeds of crime, must send the report to the Commissioner of Police.
The MLFTA requires all customer accounts of a financial institution to be kept in the true name of the account holder. A financial institution should develop and implement a customer acceptance policy. Additionally, a financial institution shall report to the Authority any business transaction where the identity of the person involved, the transaction or any other circumstance concerning that business transaction gives any officer or employee of the financial institution reasonable grounds to suspect that the transaction involves proceeds of crime or is of an unusual nature. It also requires financial institutions to permit a member of the Authority or a person authorised by it to enter into its premises during normal working hours and inspect the records kept indicating business transaction records exceeding BB$10,000 and evidence of the identity of the person who or on whose behalf or for whose benefit any transaction was carried out.
The Authority is also responsible for establishing training requirements and providing training for financial institutions, as well as for conducting investigations into money laundering so as to ensure compliance by a financial institution with the MLFTA.