:: JURIS MAGISTER Servicios Corporativos Internacionales - Libreria Jurídica - Sociedades Offshore - Fideicomisos

BRITISH VIRGIN ISLANDS

BANKS AND TRUST COMPANIES ACT, 1990

Arrangement of Sections

1. Short title

PART I - Preliminary

2. Interpretation.

PART II - Licences

3. Requirement for licence.
4. Application for licence.
5. Duration of licence.
6. Exemptions.
7. Existing businesses.
8. Notification of change in particulars of Licensee.
9. Principal office and authorized agent.
10. Types of licences.
11. Limitations on restricted banking licences.
12. Capital requirements.
13. Surrender of licence.

PART III - Transferability of Shares and Beneficial Interests

14. Shares not to be issued or transferred without approval.

PART IV - Administration

15. Inspector of Banks and Trust Companies.
16. Use of word "bank", etc.
17. Accounts.
18. Certain approvals required.
19. Number and approval of directors.
20. Specific powers of Governor.
21. Attorney General may apply to court.
22. Power of search.

PART V - Miscellaneous

23. Power of Inspector to require insurance.
24. Preservation of secrecy.
25. Offences.
26. Appeals.
27. Immunity.
28. Regulations.
29. Directions.
30. Repeal.
31. Commencement.

FIRST SCHEDULE

SECOND SCHEDULE

Short title.

1. This Act may be cited as the Banks and Trust Companies Act, 1990.

PART I - Preliminary

Interpretation
2.(1) In this Act,

"auditor" means a person who

(a) is qualified as an accountant by examination conducted

by one of the institutes of Chartered Accountants or Certified

Accounts in England and Wales, Ireland or Scotland, the

Canadian Institute of Chartered Accountants or the American

Institute of Certified Public Accountants and is a current

member in good standing of one of those institutes; or

(b) possesses such other qualification in accountancy as the

Governor in Council, by order, approves and is in good

standing with respect to such qualification;

"authorized agent" means a person designated an authorized agent by a

bank or trust company under paragraph (b) of subsection (1) of section 9;

"bank" means a person carrying on banking business;

"banking business" means the business of receiving (other than from a

bank or trust company) and holding on current, savings, deposit or similar

account money that is repayable by cheque or order and is capable of being

invested by way of advances to customers or otherwise but does not

include the receiving on savings, deposit or similar account money which

is paid by one company to another at a time when

(a) one is the subsidiary of the other; or

(b) both are subsidiaries of another company;

"financial year" means, in relation to a licensee under this Act,

(a) the period not exceeding 53 weeks at the end of which the

balance of the licensee's account is struck; or

(b) if no such balance is struck, or if a period in excess of 53

weeks is used, then, a calendar year;

"Governor" means the Governor in Council;

"Inspector" means the Inspector of Banks and Trust Companies appointed

under subsection (1) of section 15;

"licence" means a licence granted under subsection (3) of section 4;

"licensee" means a company holding a licence under this Act;

"Registrar" means the Registrar of the High Court;

"trust company" means a company carrying on trust business;

"trust" means the legal relationship created inter vivos or on death by a

person, known as a settlor or grantor, when assets have been placed under

the control of a person, known as a trustee, for the benefit of a person,

known as a beneficiary, or for a specified purpose or when a person

declares that he holds assets as trustee for the benefit of a beneficiary or a

specified purpose and

(a) the assets constitute a separate trust fund and are not part of

the trustee's own estate;

(b) title to the trust assets stand in the name of the trustee or in the

name of another person on behalf of the trustee; and

(c) the trustee has the power and the duty, in respect of which he

is accountable, to manage, employ or dispose of the assets in

accordance with the terms of the trust and the special duties

imposed on him by law;

"trust business" means the business of

(a) acting as a professional trustee, protector or administrator of a

trust or settlement;

(b) managing or administering any trust or settlement; and

(c) company management as defined by the Company

Management Act, 1990.

(2) For the purposes of this Act and subject to subsection (5), a company is

deemed to be a subsidiary of another if

(a) that other either

(i) is a member of it and controls the composition of its

board of directors, or

(ii) holds more than half in nominal value of its equity

share capital; or

(b) the first-mentioned company is a subsidiary of any company

that is the other's subsidiary.

(3) For the purposes of subsection (2), the composition of a company's board

of directors is deemed to be controlled by another company if that other company

by the exercise of some power exercisable by it without the consent or

concurrence of any other person can appoint or remove the holders of all or a

majority of the directorships.

(4) For purposes of subsection (3), the other company is deemed to have

power to appoint to a directorship with respect to which any of the following

conditions is satisfied:

(a) that a person can not be appointed to it without the exercise in

his favour by the other company of such a power as is

mentioned in subsection (3);

(b) that a person's appointment to the directorship follows

necessarily from his appointment as a director of the

company; or

(c) that the directorship is held by the other company itself or by

a subsidiary of it.

(5) In determining whether one company is a subsidiary of another

(a) any shares held or power exercisable by the other in a

fiduciary capacity are to be treated as not held or exercisable

by it;

(b) subject to paragraphs (c) and (d), any shares held or power

exercisable

(i) by any person as nominee for the other except where

the other is concerned only in a fiduciary capacity, or

(ii) by, or by a nominee for, a subsidiary of the other not

being a subsidiary which is concerned only in a

fiduciary capacity,

are to be treated as held or exercisable by the other;

(c) any shares held or power exercisable by any person by virtue

of the provisions of any debentures of the first-mentioned

company or of a trust deed securing any issue of such

debentures are to be disregarded; and

(d) any shares held or power exercisable by, or by a nominee for,

the other or its subsidiary, not being held or exercisable as

mentioned in paragraph (c), are to be treated as not held or

exercisable by the other if the ordinary business of the other

or its subsidiary, as the case may be, includes the lending of

money and the shares are held or the power is exercisable as

above-mentioned by way of security only for the purposes of

a transaction entered into the ordinary course of that business.

(6) For purposes of this Act,

(a) a company is deemed to be another's holding company if the

other is its subsidiary; and

(b) a body corporate is deemed the wholly-owned subsidiary of

another if it has no members except that other and that other's

wholly-owned subsidiaries and its or their nominees.

PART II - Licences

Requirement For Licence

3.(1) No person shall carry on banking business, and no trust company shall

carry on trust business, from within the Virgin Islands, whether or not such

business is carried on within or outside the Virgin Islands, unless the person or

the trust company, as the case may be, has obtained a licence under this Act for

the purpose.

(2) No company incorporated in the Virgin Islands shall carry on banking

business or trust business within or outside the Virgin Islands unless the comp

any has obtained a licence under this Act for the purpose.

Application for licence

4.(1) A licence is obtainable by making application therefor to the Governor in

the prescribed form.

(2) An application under subsection (1) shall contain the particulars set out in

the First Schedule and shall be accompanied by the fee prescribed in Part I of the

Second Schedule.

(3) The Second Schedule may be amended by an order made by the Governor

and an order made under this subsection shall be subject to affirmative resolution.

(4) If the Governor is satisfied that an application to carry on banking business

or trust business is not against the public interest and that the applicant is a person

qualified to carry on banking business or trust business, he may grant the

application and issue to the applicant a licence subject to such terms and

conditions as the Governor thinks fit.

(5) A decision to refuse to grant a licence, other than a licence in respect of a

business in existence at the date of the commencement of this Act, is final and is

not subject to any appeal.

(6) The Governor shall cause notice of the grant of a licence under this Act to

be published in the Gazette.

(7) A licence is issued under this Act shall be prominently displayed on the

premises where the business is carried on.

Duration of licence

5. A licence issued under this Act is valid until 31st December of the year in

which it is issued and is renewable during the month of January in the following

year upon payment of the fee prescribed in Part II of the Second Schedule.

Exemptions

6.(1) A person who is licensed under this Act is not required to be licensed

under the Business Professions and Trade Licences Act, 1989 to carry on

banking business or trust business.

(2) This Act does not apply to a person licensed under the Company

Management Act, 1990.

Existing businesses

7. A person who at the commencement of this Act is carrying on banking

business or trust business has a period of 3 months to comply with the

provisions of this Act.

Notification of change in particulars of licensee

8. Where a change occurs in the particulars of a licensee as set out in the

application for the particulars licence, the licensee shall, as soon as possible

thereafter, inform the Governor of the change.

Principal office and authorized agent

9.(1) A licence shall not be granted to any person unless the person designates,

and notifies the Governor,

(a) a principal office in the Virgin Islands; and

(b) by name, two individuals, approved by the Governor and the

Inspector, to be that person's authorized agents in the Virgin

Islands.

(2) The functions of an authorized agent are to act as an intermediary between

the licensee and, as the case may be, the Governor or the Inspector, except that in

the absence or inability of one authorized agent may carry out the functions of

both authorized agents under this subsection.

(3) It shall be a condition of every licence granted that the licensee shall

forthwith notify the Governor in writing of any change of

(a) its principal office in the Virgin Islands; or

(b) any of the persons designated as an authorized agent pursuant

to paragraph (b) of subsection (1).

(4) Where the Governor has approved a person under paragraph (b) of

subsection (1) as an authorized agent, he may in writing revoke the approval.

Types of licences

10.(1) A licence issued under this Act must be in one of the following

categories:

(a) a general banking licence, for the purposes of carrying on

banking business within and outside the jurisdiction of the

Virgin Islands without any restrictions on that business;

(b) a restricted Class I banking licence, for the purpose of

carrying on banking business with the restrictions on that

business set forth in section 11;

(c) a restricted Class II banking licence, for the purpose of

carrying on banking business with the restrictions on that

business set forth in section 11 with the further restriction that

the licensee shall not receive or solicit funds by way of trade

or business from persons other than those listed in any

undertaking accompanying the application for the licence;

(d) a general trust licence, for the purpose of carrying on trust

business without any restrictions; and

(e) a restricted trust licence, for the purpose of carrying on trust

business with the restriction that the licensee shall not

undertake trust business for persons other than those listed in

any undertaking accompanying the application for the licence.

(2) There may be listed in a schedule to the application for a general trust

licence the name of any company engaging in trust business being a subsidiary of

the company applying for a general trust licence together with a description of the

particular type of trust business being carried on or to be carried on by the

subsidiary and the Governor may, upon granting the general trust licence to the

applicant company, include in the licence the name of each subsidiary to be

included in the licence together with the terms and conditions, if any, subject to

which the licence is extended to include each subsidiary.

Limitations on restricted banking licences.

11. The holder of a restricted Class I banking licence shall not

(a) take banking deposits from any person resident in the Virgin

Islands other than another licensee or a company incorporated

under the International Business Companies Act, 1984;

(b) invest in any asset that represents a claim on any person

resident in the Virgin Islands except a claim resulting from

(i) a transaction with another licensee, or

(ii) the purchase of bonds or other securities issued by the

Government, a statutory corporation or a company in

which the Government is the sole or majority

beneficial owner; or

(c) without the written approval of the Governor, carry on any

business in the Virgin Islands other than the business for

which the restricted Class I banking licence has been

obtained.

Capital requirements

12.(1) No general banking licence shall be granted to a company unless the

company

(a) has a fully paid up capital of not less than $2,000,000 or its

equivalent in foreign currencies, or such greater sum as the

Governor, by order, determines; and

(b) has deposited or invested the sum of $500,000 in such

manner as the Governor, by order, prescribes.

(2) No restricted Class I banking licence or restricted Class II banking licence

shall be granted to any company unless the company

(a) has a fully paid-up capital of not less than $1,000,000, or its

equivalent in foreign currencies, or such greater sum as the

Governor, by order, determines; and

(b) has deposited or invested a sum of $500,000 in such manner

as the Governor, by order, prescribes.

(3) No general trust licence shall be granted to any trust company unless the

trust company

(a) has a fully paid-up capital of not less than $250,000, or its

equivalent in foreign currencies, or such greater sum as the

Governor, by order, determines; and

(b) has deposited or invested a sum of money as may be

specified by the Governor but not to exceed $100,000, in

such manner as the Governor, by order, prescribes.

(4) The Governor may, on the recommendation of the Inspector, require a

licensee to increase its fully paid-up capital to such greater amount as the

Governor may determine for the nature of the banking business or trust business

being, or sought to be, undertaken.

Surrender of licence

13.(1) A licensee that has ceased to carry on the business in respect of which its

licence was granted may apply to the Governor to surrender its licence if the

licensee

(a) produces evidence that it has repaid all deposits and has

transferred all trust assets held or administered by it; or

(b) being a company, is being wound up voluntarily and

produces evidence that it is solvent and is able on demand to

repay all its other deposits held by it and all its other creditors

and has transferred all trust assets held or administered by it,

and the Governor may thereupon approve the surrender.

(2) In the case of an application under paragraph (b) of subsection (1) the

Attorney General may apply to the court for an order that the licensee be wound

up, either by the court, or subject to the supervision of the court, and where the

court so orders the provisions of the Companies Act relating to the winding up of

a company by or subject to the supervision of the court, mutatis mutandis, apply.

PART III - Transferability Of Shares And Beneficial Interests

Shares not to be issued or transferred without approval.

14. No shares or other interests, whether legal or equitable, in a bank or trust

company shall be issue, transferred or otherwise disposed of without the prior

written approval of the Governor, except that the Governor may exempt any bank

or trust company from the provisions of this section, subject to such terms and

conditions as the Governor considers necessary.

PART IV - Administration

Inspector of Banks and Trust Companies

15.(1) The Governor shall appoint a public officer to be known as the Inspector

of Banks and Trust Companies for the purpose of ensuring the proper

administration of this Act.

(2) The functions of the Inspector are

(a) to maintain a general review of banking and trust company

practice in the Virgin Islands;

(b) where he thinks fit or when required by the Governor, to

examine by way of the receipt of regular returns or in such

other manner as he thinks fit the affairs or business of any

licensee carrying on business within or outside the Virgin

Islands for the purpose of satisfying himself that all

provisions of this Act are being complied with and that the

licensee is in a sound financial position and is carrying on its

business in a satisfying manner, and to report to the Governor

the results of such examination;

(c) to assist in the investigation of any contravention of the laws

of the Virgin Islands that he has reasonable grounds to

believe has or may have been committed by a licensee or by

any of its directors or officers;

(d) to examine accounts and audited annual accounts forwarded

to him under section 17 and to report his findings to the

Governor; and

(e) to examine, and make recommendations to the Governor

with respect to, applications for licenses.

(3) In the performance of his functions under this Act and subject to the

provisions of section 24, the Inspector may at all reasonable times

(a) have access to the books, records, vouchers, documents,

cash and securities of any licensee;

(b) request any information, matter or thing from any person

whom he has reasonable grounds to believe is carrying on

banking business or trust business in the Virgin Islands in

contravention of section 3; and

(c) demand of the authorized agent of the licensee any reasonable

information or explanation for the purpose of enabling the

Inspector to perform his functions under the Act.

(4) For the purposes of subsection (3), the Inspector shall have access to the

name or title of an account of a depositor of a licensee or to the settlor, name or

title of a trust, only under the authority of any order of the court made on the

ground that there is no other way of obtaining the information required by him.

(5) The Inspector, with the written approval of the Governor, may authorize in

writing any other person to assist him in the performance of his functions under

this Act.

(6) The Inspector may, if it appears to him that there is reasonable ground for

suspecting that there is a contravention of this Act or that a contravention is likely,

apply to the court for an order authorizing him to take such action as he considers

necessary in the interests of the depositors, the beneficiaries of any trust, or other

creditors and to preserve any assets of the bank or trust company that is the

subject of the order.

Use of word "bank", etc.

16.(1) No person, other than a licensee, shall except with the approval of

the Governor,

(a) use or continue to use the words "bank", "savings", "savings

and loan", "trust", "trustee", "trust company" or "trust

corporation", or any of their derivatives, either in English or

in any other language, in the name, description or title under

which that person is carrying on business from within the

Virgin Islands, whether or not the business is carried on

within or outside the Virgin Islands;

(b) make or continue to make any representation in any

advertisement, billhead, circular, letter, letterhead, notice,

paper or in any other manner that that person is carrying on

banking business or trust business; or

(c) in any manner solicit or receive deposits from the public.

(2) No company incorporated in the Virgin Islands shall, except with the

approval of the Governor, be registered, or continue to be registered, by a name

which contains the words "bank", "savings", savings and loan", "trust", "trustee",

"trust company" or "trust corporation" or any of their derivatives, either in

English or in any other language, in the description or title under which the

company is carrying on business within or outside the Virgin Islands.

(3) The Governor may, before giving his approval under subsection (1) or (2),

require the production of such references and such information and particulars as

may be prescribed.

(4) The Governor may withdraw any approval given under subsection (1)

where he considers it to be in the public interest.

(5) The Governor may refuse to grant a licence to a bank or trust company or,

if the bank or trust company is already in possession of a licence, he may revoke

the licence if, in his opinion, the bank or trust company is carrying on or appears

likely to be carrying on banking business or trust business, as the case may be,

under a name that is

(a) identical with that of any other person whether within or

outside the Virgin Islands, or which so nearly resembles that

name as to be calculated to deceive;

(b) calculated to suggest falsely the patronage of or connection

with some person, whether within or outside the Virgin

Islands; or

(c) calculated to suggest falsely that the person

(i) has special status in relation to or derived from the

Government,

(ii) has the official approval of or acts on behalf of the

Government or of any department, branch, agency or

organ of Government, or any officer thereof, or

(iii) is recognized in the Virgin Islands as a national or

central bank or trust company.

Accounts.

17.(1) Every licensee shall have its accounts audited by an auditor annually

or at such other periods as the Governor or the Inspector may require.

(2) The audited accounts shall be forwarded to the Inspector within 3 months

from the end of the financial year of the licensee, unless prior written approval for

an extension has been granted by the Inspector.

(3) Where a licensee changes its auditor, the Inspector may require the former

auditor to explain the circumstances that gave rise to the change.

Certain approvals required.

18. A licensee shall not change its name or operate outside the Virgin Islands

any subsidiary, branch, agency or representative office without the prior written

approval of the Governor.

Number and approval of directors

19.(1) A licensee shall at no time have less than 2 directors.

(2) A licensee shall, before the appointment of a director or other senior

officer, apply to the Governor for his written approval of the appointment.

(3) Notwithstanding subsection (2), the Governor may exempt a licensee from

the requirements specified in that subsection if such an exemption

(a) ipso facto lapses if the director or senior officer becomes

bankrupt, makes an arrangement or composition with his

creditors or is convicted of an offence involving dishonesty;

and

(b) may be revoked by the Governor.

Specific powers of Governor.

20.(1) Where the Governor is satisfied that a licensee

(a) has ceased to carry on banking business or trust business;

(b) has gone into liquidation or is wound up or is otherwise

dissolved;

(c) has made any arrangement or composition with its creditors;

(d) is unable or appears likely to become unable to meet its

obligations as they fall due;

(e) is carrying on business in a manner detrimental to the public

interest, the interests of its depositors or of the beneficiaries of

any trust, or to the interests of other creditors;

(f) has contravened any provision of this Act; or

(g) has failed to comply with a condition of its licence,

he may take any of the actions set forth in subsection (2).

(2) The actions that the Governor may take in pursuance of subsection (1) re:

(a) revocation of the licence;

(b) imposition of new or additional conditions upon the licensee;

(c) the substitution of any director or officer of the licensee;

(d) the appointment, at the expense of the licensee, of a person to

advise the licensee on the proper conduct of its affairs and to

report to the Inspector thereon within 3 months of such

appointment;

(e) the appointment, at the expense of the licensee, of a person to

assume control of the licensee's affairs who shall mutatis

mutandis have all the powers of a person appointed as a

receiver or manager of a business appointed under the

Bankruptcy Act; or

(f) the requiring of the taking of such action by the licensee as the

Governor thinks fit.

(3) Notwithstanding subsection (1) of section 26, a licensee may within 7

days from the date of a decision taken under subsection (2) apply to the Governor

for a reconsideration of his decision if that decision involves the revocation of a

licence.

(4) A person appointed under paragraph (d) or (e) of subsection (2) or whose

appointment has been extended under paragraph (b) of subsection (5) may at his

discretion and in any case within 3 months from the date of his appointment or of

the extension of his appointment, as the case may be, prepare and furnish a report

to the Governor and the Inspector of the affairs of the licensee and may make

recommendations thereon.

(5) The Governor may, on receipt of a report under subsection (4),

(a) revoke the appointment of the person appointed under

paragraph (d) or (e) of subsection (2);

(b) extend the period of appointment of the person appointed

under paragraph (d) or (e) of subsection (2);

(c) subject to such conditions as the Governor may impose,

allow the licensee to reorganize its affairs in such manner as

the Governor approves; or

(d) revoke the licence and instruct the Attorney General to apply

to the court for an order that the licensee be forthwith wound

up by the court; in which case, the provisions of the

Companies Act relating to the winding up of a company by

the court apply mutatis mutandis for the purpose of giving the

necessary effect to this provision.

(6) Whenever the Governor revokes a licence under paragraph (a) of

subsection (2) or paragraph (d) of subsection (5) or under subsection (5) of

section 16, he shall cause notice of the revocation to be published in the Gazette

and may also cause to be published, whether within the Virgin Islands or

elsewhere, in such newspaper or other publication as he may think fit in the

circumstances.

Attorney General may apply to court

21. The Attorney General may, upon being instructed by the Inspector in any

case in which a licensee or a person who has at any time been a licensee is being

wound up voluntarily, apply to the court for leave to intervene on behalf of any

interested party if he considers that the winding up is not being conducted in the

best interests of its depositors, the beneficiaries of any trust, or other creditors,

and the court may make such order as it shall consider appropriate.

Power of search

22. (1) If a Judge or Magistrate is satisfied by information on oath, whether oral

or written, given by the Inspector or a person authorized by the Inspector that

(a) there is reasonable ground for suspecting that an offence

against this Act has been or is being committed and that

evidence of the commission of the offence is to be found at

any premises, or in any vehicle, vessel or aircraft specified in

the information; or

(b) that any documents, cash, or securities that ought to have

been produced under subsection (3) of section 15 and have

not been produced are to be found at any premises, vehicle,

vessel or aircraft specified in the information,

he may issue a search warrant authorizing the Inspector, together with any other

person named in the warrant, to enter the premises specified in the information

or, as the case may be, any premises upon which the vehicle, vessel, or aircraft so

specified may be, at any time within one month from the date of the warrant, and

to search the premises or the vehicle, vessel or aircraft.

(2) The Inspector or any other person authorized by a warrant to search any

premises or any vehicle, vessel or aircraft may search every person who is found

in or who he has reasonable grounds to believe to have recently left or to be about

to enter those premises, or that vehicle, vessel or aircraft, and may seize any

document, cash or securities found in the premises or in the vehicle, vessel or

aircraft which he has reasonable grounds for believing ought to have been

produced under subsection (3) of section 15, except that no female shall, in

pursuance of any warrant issued under this section, be searched except by a

female.

(3) Where by virtue of this section a person has any power to enter any

premises, or a vehicle, vessel or aircraft, he may use such force as is reasonably

necessary for the purpose of exercising that power.

PART V - Miscellaneous

Power of Inspector to require insurance

23. The Inspector may require a licensee to effect a policy of insurance with a

reputable insurance company against

(a) losses arising out of claims by negligence or breach of duty

by the licensee or any employee;

(b) the dishonesty of employees or of the licensee;

(c) loss of documents; and

(d) such other risks as the Inspector may from time to time

stipulate, in such amount and of such a nature as the Inspector

may determine to be fit and proper, having due regard to the

nature and type of business carried on by the licensee; and in

the event that the insurance is withdrawn, cancelled or not

renewed, the licensee shall immediately notify the Inspector

and shall cease to carry on its business until the insurance has

been reinstated or replaced.

Preservation of secrecy

24.(1) Except for the purpose of the performance or exercise of his duties or

functions under this Act or when lawfully required to do so by the court or under

the provisions of any other law, neither the Inspector nor any person acting under

his authority shall disclose any information relating to any application under the

provisions of this Act, or to the affairs of a licensee or of a company managed by

a licensee, which he has acquired in the performance or exercise of such duties or

functions.

(2) Subsection (1) does not apply to the disclosure by the Inspector or any

person acting under his authority, with the consent of the licensee, to a banking

supervisory authority outside the Virgin Islands of general information about the

licensee.

(3) Any person who contravenes subsection (1) is guilty of an offence and is

liable on summary conviction to a fine not exceeding $2,500 or to imprisonment

for a term not exceeding one year or both.

Offences.

25.(1) A licensee or any director or officer of a licensee who knowingly or

wilfully supplies false or misleading information to the Governor or the Inspector

is guilty of an offence and liable on summary conviction to a fine not exceeding

$50,000 or to imprisonment for a term not exceeding 2 years or both.

(2) Any person who operates a banking business or a trust business in

contravention of section 16 is guilty of an offence and is liable on summary

conviction to a fine not exceeding $10,000 or to a term of imprisonment not

exceeding one year or both, and in the case of a continuing offence to a fine not

exceeding $1,000 for each day during which the offence continues.

(3) Any licensee who advertises inviting either directly or indirectly other

parties to commit breaches of the laws of the country in which the advertisement

appears or to which such advertisement is directed is guilty of an offence and is

liable on summary conviction to a fine not exceeding $1,000 or to imprisonment

for a term not exceeding 6 months or both.

(4) Where a limited liability company is convicted of an offence against

subsection (3), every director and every officer concerned with the management

of the company is liable to be convicted for that offence unless he satisfies the

court that the offence was committed without his knowledge or consent and that

he took all reasonable steps to prevent the commission of the offence.

(5) Any person who

(a) fails to comply with a request made of him by the Inspector

or by any other person acting under this Act;

(b) assaults or obstructs the Inspector or other person in the

performance of his functions under this Act;

(c) uses any insulting language to the Inspector or other person

in the performance of his functions under this Act;

(d) by the offer of any gratuity, bribe or any other inducement

prevents or attempts to prevent the Inspector or other person

from performing his functions under this Act; and

(e) contravenes any provision of this Act for which no

punishment is specifically provided,

is guilty of an offence and is liable on summary conviction to a fine not

exceeding $1,000 or to imprisonment for a term not exceeding 12 months or

both.

Appeals.

26.(1) An appeal lies to the High Court from any decision of the Governor

(a) revoking a licence under subsection (5) of section 16 or under

paragraph (a) of subsection (2) or paragraph (d) of subsection

(5) of section 20;

(b) withdrawing any approval under subsection (4) of section 16;

or

(c) requiring a licensee to take certain steps which the Governor

may specify under section 20.

(2) An appeal against the decision of the Governor shall be by motion.

(3) The following procedure applies to appeals from the Governor;

(a) the appellant within 21 days after the day on which the

Governor has given his decision shall serve a notice in

writing, signed by the appellant or his solicitor, on the

Attorney General of his intention to appeal and of the general

grounds of his appeal except that any person aggrieved by a

decision of the Governor may upon serving notice on the

Attorney General apply to the court within 14 days after the

day on which the Governor has given his decision for leave to

extend the time within which notice of appeal prescribed by

this section may be served, and the court upon hearing of the

application may extend the time prescribed by this section as

it deems fit;

(b) the Attorney General shall, within 21 days of receiving the

notice of appeal, obtain a copy of the Governor's decision and

transmit to the Registrar without delay a copy thereof together

with all papers relating to the appeal, except that the Governor

is not compelled to disclose any information if he considers

that the public interest would suffer by such disclosure and a

certificate given by the Governor under the Public Seal is

conclusive that disclosure is not in the public interest;

(c) the Registrar shall set down the appeal for hearing on such

day as is convenient, and shall cause notice of the hearing to

be published, in such manner, as the court may direct; and

(d) the court may adjourn the hearing of any appeal and may,

upon the hearing thereof, confirm, reverse, vary or modify

the decision of the Governor or remit the matter with the

opinion of the court thereon to the Governor.

(8) An appeal against a decision of the Governor shall not operate as a

suspension of the decision of the Governor.

Immunity.

27. No liability attaches to the Governor, the Inspector or any person acting

under the authority of the Governor or the Inspector for an act done in good faith

in the discharge or purported discharge of his functions under this Act.

Regulations.

28. The Governor may make regulations generally for carrying the purpose

and provisions of this Act into effect, and specifically, for the following

purposes:

(a) prescribing anything by this Act authorised or required to be

prescribed;

(b) controlling the form of advertising by licensees; and

(c) exempting any person or business, or class of person or

business from any provision of this Act.

Directions.

29. Without limiting or affecting section 28 the Inspector may, from time to

time, issue by publication in the Gazette, directions with relation to such matters

as he may think fit and appropriate and failure by any licensee to comply with

such directions shall be taken into consideration when any action is proposed to

be taken under section 20.

Repeal.

30. The Banking Act, 1972 is repealed.

Commencement.

31. This Act comes into operation on such date as the Governor by

proclamation published in the Gazette appoints.

First Schedule

(Section 4(2))

Particulars To Be Specified In Applications

Every company applying for a licence under this Act shall furnish in writing to

the Governor the following particulars which shall accompany the application:

(1) Name of applicant.

(2) Address in the Virgin Islands of principal office of applicant and, in the

case of a company incorporated in the Virgin Islands, its registered office.

(3) The names and addresses of all directors.

(4) The names and addresses of all shareholders.

(5) The names and addresses of all officers and managers.

(6) Names and addresses of solicitors, if any, to the applicant, together with a

letter from the solicitors confirming that they act for the applicant.

(7) Names and addresses of auditors of the applicant, together with a letter

from the auditors confirming that they act for the applicant.

(8) Evidence of the proper incorporation of the company in the Virgin Islands

or in the country of incorporation, as the case may be.

(9) Evidence in writing that the applicant itself or some person directly or

indirectly connected with the applicant is possessed of solid and practical

experience in banking business or trust business, as the case may be.

(10) The following:

(a) an undertaking in writing to provide and set apart a fully paid

up capital before or at the time it commences business, such

as the Governor may in his absolute discretion determine, or

by a guarantee under seal of such sum given by a holding or

parent or other company approved by the Governor; and

(b) the guarantee referred to in subparagraph (a) shall expressly

provide that its formal validity, its essential validity, its

interpretation and effect and the rights and obligations of the

parties to it are governed exclusively by the law of the Virgin

Islands and that the court of the Virgin Islands only shall be

the forum for these purposes.

(11) Character references in writing, together with such other evidence as the

Governor may require, that neither the applicant nor any director or officer of the

applicant has a criminal record either in the Virgin Islands or elsewhere.

(12) Annual accounts of its holding company, if any, for the preceding 3 years

and thereafter annually duly audited and certified by an independent auditor.

(13) Names of all subsidiary companies of the applicant with addresses of their

registered offices.

(14) A copy of the act, charter, certificate of incorporation or memorandum of

association and articles of association, as may be appropriate, verified by an

affidavit sworn by a director, secretary and duly authenticated as follows:

(a) in the case of a company incorporated in the Virgin Islands,

notarised; and

(b) in the case of a foreign company, certified and authenticated

under the public seal of the country, city or place under the

laws of which such country has been incorporated.

(15) References, including one from a bank or trust company.

(16) Statement of assets and liabilities at the end of the month prior to the

submission of the application certified by a director or senior officer.

(17) Statement of capital of any other company held, directly or through a

subsidiary, as an asset of the applicant.

Second Schedule

Part I (Section 4(2))

Fees For The Grant Of A Licence

(1) If a licence is granted on or before the 30th day of June in any year:

(a) a general banking licence $10,000

(b) a restricted Class I banking licence $ 8,000

(c) a restricted Class II banking licence $ 6,000

(d) a general trust licence $ 4,000

(e) a restricted trust licence $ 100

(2) If a licence is granted on or after the 1st day of July in any year:

(a) a general banking licence $ 5,000

(b) a restricted Class I banking licence $ 4,000

(c) a restricted Class II banking licence $ 3,000

(d) a general trust licence $ 2,000

(e) a restricted trust licence $ 50

Part II (Section 5)

Fees For The Renewal Of A Licence

(a) a general banking licence $10,000

(b) a restricted Class I banking licence $ 8,000

(c) a restricted Class II banking licence $ 6,000

(d) a general trust licence $ 4,000

(e) a restricted trust licence $ 100

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