Bermuda Monetary Authority Amendment Act 2001.pdf
BERMUDA MONETARY AUTHORITY AMENDMENT ACT 2001





BERMUDA

2001 : 31

BERMUDA MONETARY AUTHORITY AMENDMENT ACT 2001

[Date of Assent: 14 August 2001]

[Operative Date: 1 October 2001]


WHEREAS it is expedient to make provision for the Bermuda
Monetary Authority to assist foreign regulatory authorities .

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:⎯

Short title and commencement
1 This Act may be cited as the Bermuda Monetary Authority
Amendment Act 2001 and shall come into operation on such day as the
Minister may appoint by notice published in the Gazette.

Interpretation
2 In this Act the "principal Act" means the Bermuda Monetary
Authority Act 1969.

Inserts sections 30A to 30D in Principal Act
3 The principal Act is amended by inserting the following sections
after section 30⎯

"Powers exercisable to assist foreign regulatory authorities


1




BERMUDA MONETARY AUTHORITY AMENDMENT ACT 2001


2



Request for assistance by foreign regulatory authority
30A (1) The powers conferred by section 30B are exercisable by the
Authority for the purpose of assisting a foreign regulatory authority
which has requested assistance in connection with inquiries being
carried out by it or on its behalf.

(2) A "foreign regulatory authority" means an authority which,
in a country or territory outside Bermuda, exercises regulatory functions
corresponding to the regulatory functions of the Authority under this Act
or any other Act or regulations.

(3) The Authority shall not exercise the powers conferred by
section 30B unless it is satisfied that the assistance requested by the
foreign regulatory authority is for the purposes of its regulatory
functions.

(4) An authority's "regulatory functions" means any function
falling within subsection (2).

(5) In deciding whether to exercise those powers, the Authority
shall take into account, in particular⎯

(a) whether corresponding assistance would be given in that
country or territory to the Authority;

(b) whether the inquiries relate to the possible breach of a
law, or other requirement, which has no close parallel in
Bermuda or involves the assertion of a jurisdiction not
recognised by Bermuda;

(c) the nature and seriousness of the matter to which the
inquiries relate, the importance to the inquiries of the
information sought in Bermuda and whether the
assistance could be obtained by other means; and

(d) whether it is otherwise appropriate in the public interest
to give the assistance sought.

(6) The Authority may decline to exercise the powers conferred
by section 30B unless the foreign regulatory authority undertakes to
make such contributions towards the costs of their exercise as the
Authority considers appropriate.

(7) The authority shall decline to exercise the powers conferred
by section 30B(1)(c) unless it is satisfied that any statement that may be
given in the exercise of that power could not be used against the maker
of the statement in evidence in proceedings under the law of the
jurisdiction of the foreign regulatory authority.

(8) The Authority shall decline to exercise the powers conferred
by section 30B if the exercise of such power would breach subsection (9).

BERMUDA MONETARY AUTHORITY AMENDMENT ACT 2001


3



(9) Section 50(4) of the Trusts (Regulation of Trust Business)
Act 2001 applies to the disclosure of information obtained pursuant to
section 30B as it applies to the disclosure of information pursuant to
section 50(2) of that Act.

Power to require information
30B (1) Where in accordance with section 30A the Authority is
satisfied that assistance should be provided pursuant to a request by a
foreign regulatory authority and that the request is in relation to
information in Bermuda pertaining to the business of a financial
institution which is in its possession or under its control, the Authority
may by notice in writing served on the financial institution ⎯

(a) require the institution to furnish it with such
information as the Authority may require with respect to
any matter relevant to the inquiries to which the request
relates;

(b) require the institution to produce to it such document or
documents of such description as it may specify;

(c) require an officer, servant or agent of the institution to
attend before the Authority at a specified time and place
and answer any questions or otherwise furnish any
information with respect to any matter relevant to the
inquiries; or

(d) require the institution to otherwise give the Authority
such assistance in connection with those inquiries as
the institution may reasonably be able to give.

(2) Where documents are produced pursuant to this section
the Authority may take copies from them.

(3) Nothing in this section shall require the disclosure or
production by a person of information or documents which he would be
entitled to refuse to disclose or produce on the grounds of legal
professional privilege in proceedings in Bermuda.

(4) A statement by a person in compliance with a requirement
imposed by subsection (1)(c) shall not be used in evidence against him.

(5) Where a person claims a lien on a document, its production
under this section is without prejudice to his lien.

(6) In this section "documents" includes information recorded
in any form; and, in relation to information recorded otherwise than in
legible form, the power to require its production includes power to
require the production of a copy of it in legible form.


BERMUDA MONETARY AUTHORITY AMENDMENT ACT 2001


4



Exercise of powers by officer
30C (1) The Authority may authorise any of its officers or any other
competent person to exercise on its behalf any of the powers conferred
by section 30B.

(2) No such authority shall be granted except for the purpose of
investigating⎯

(a) the affairs, or any aspect of the affairs, of a person
specified by the Authority; or

(b) a subject matter specified by the Authority;

being a person who, or a subject matter which, is the subject of the
inquiries being carried out by or on behalf of the foreign regulatory
authority.

(3) No person shall be bound to comply with a requirement
imposed by a person exercising powers by virtue of an authority granted
under this section unless he has, if required, produced evidence of his
authority.

(4) Where the Authority authorises a person other than one of
its officers to exercise powers by virtue of this section , that person shall
make a report to the Authority in such manner as it may require on the
exercise of those powers and the results of exercising them.

Penalty for failure to comply with requirement
30D (1) A person who without reasonable excuse fails to comply
with a requirement imposed on him under section 30B commits an
offence and is liable on summary conviction to a fine of $5000 or to
imprisonment for six months or to both.

(2) A person who in purported compliance with any such
requirement furnishes information which he knows to be false or
misleading in a material particular, or recklessly furnishes information
which is false or misleading in a material particular commits an offence
and is liable on summary conviction to a fine of $25,000 or to
imprisonment for two years or to both.

BERMUDA MONETARY AUTHORITY AMENDMENT ACT 2001


i