Investment Business Appeal Tribunal Regulations 2004.pdf
INVESTMENT BUSINESS APPEAL TRIBUNAL REGULATIONS
2004


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BR 72 / 2004

INVESTMENT BUSINESS ACT 2003

2003 : 20

INVESTMENT BUSINESS APPEAL TRIBUNAL REGULATIONS
2004


ARRANGEMENT OF REGULATIONS

1 Citation
2 Interpretation
3 Time for and manner of

bringing appeals
4 Notice of appeal
5 Establishment of the

tribunal
6 Respondent
7 Grounds of appeal
8 Supply of documents by

the Authority
9 Preliminary hearing
10 Interim relief
11 Amendment of grounds of

appeal

12 Evidence and procedure
13 Membership of the

tribunal
14 Procedure after hearing
15 Withdrawal of appeal
16 Costs
17 Time and miscellaneous

powers
18 Tribunal's power to

determine its own
procedure

19 Service of notices etc.
20 Irregularities
21 Consolidation of appeals

SCHEDULE


In exercise of the powers conferred upon the Minister of Finance
by section 36(2) of the Investment Business Act 2003, the following
regulations are made:⎯

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Citation
1 These Regulations may be cited as the Investment Business
Appeal Tribunal Regulations 2004.

Interpretation
2 In these Regulations, unless the context otherwise requires —

"the Act" means the Investment Business Act 2003;

"appellant" means a person who under the Act is entitled to
appeal or has appealed, as the case may be, to the tribunal
against a decision of the Authority or against a finding on
which such a decision is based;

"chairman" means the chairman of the tribunal appointed under
section 34(2) of the Act, and includes a deputy chairman
when acting in the absence of the chairman;

"panel" means the panel of members of the appeal tribunal
appointed by the Minister under section 34(4) of the Act;

"preliminary hearing" means a hearing held pursuant to
regulation 9;

" secretary" means the person appointed by the Minister to act
as secretary to the tribunal;

"tribunal" means a tribunal established pursuant to regulation
5.

Time for and manner of bringing appeals
3 An appeal shall be brought by sending a notice of appeal to the
secretary of the appeal tribunal, Ministry of Finance, Hamilton not later
than—

(a) in the case of an appeal against a decision of the
Authority (or any finding relating thereto) to revoke a
licence, 10 days from the date on which the Authority
serves notice in writing on the appellant of its decision;
or

(b) in the case of an appeal against a decision of the
Authority to impose or vary a restriction on an
Investment Provider's licence as a matter of urgency ⎯

(i) 28 days from the date on which the Authority
imposes or varies the restriction by written
notice to the Investment Provider under section
23(2) of the Act; or

(ii) 10 days from the date on which the Authority
gives written notice to the Investment Provider

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under section 23(7) of the Act of its decision
under section 23(6) of the Act,

whichever is the later; or

(c) in any other case, 28 days from the date on which the
Authority serves notice in writing on the appellant of its
decision.

Notice of appeal
4 (1) The notice of appeal shall be signed by or on behalf of the
appellant and shall contain the following particulars—

(a) the appellant's name;

(b) his address, or where the appellant is an institution the
address of its registered office;

(c) the address, if different from that referred to in sub-
paragraph (b), to which applications, notices and other
documents in connection with the appeal should be sent
to the appellant within Bermuda;

(d) the name and address of any person appointed by the
appellant to represent him or it in connection with the
appeal; and

(e) a statement of the decision or finding of the Authority
against which the appeal is made.

(2) The appellant shall, upon sending notice of appeal to the
secretary, send forthwith a copy of the notice to the Authority, to any
person to whom a copy of the notice was sent under section 22(7) of the
Act, and, in the case of an appeal under section 33(2) of the Act, to the
Investment Provider concerned.

Establishment of the tribunal
5 On receipt of a notice of appeal the secretary shall forthwith
request the chairman to select from the panel the other two members of
the tribunal to hear the appeal.

Respondent
6 On every appeal the Authority shall be the respondent.

Grounds of appeal
7 (1) The appellant shall send to the secretary a notice setting
out the grounds of appeal, which, in the case of an appeal other than an
appeal under section 33(2)(a) shall contain sufficient particulars to show
why the appellant considers the decision appealed against was unlawful
or was not justified by the evidence on which it was based or in the case

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of an appeal under section 33(2)(a) shall contain sufficient particulars to
show why the appellant considers the finding appealed against was not
justified by the evidence on which it was based—

(a) within 28 days from the date on which the Authority
served notice in writing on the appellant of its decision,
in the case of an appeal against the decision of the
Authority (or any finding relating thereto) to revoke a
licence; and

(b) within 14 days of serving the notice of appeal, in any
other case.

(2) The appellant shall upon sending the notice of grounds of
appeal referred to in paragraph (1), send a copy of the notice to the
persons to whom a copy of the notice of appeal was sent pursuant to
regulation 4(2).

(3) In the case of an appeal under section 33(1) of the Act the
appellant may omit any information from the notice of grounds of appeal
referred to in paragraph (1) on the ground that it is confidential or
commercially sensitive, in which event it shall include such information
in a notice of supplementary grounds of appeal, which it shall send to
the secretary and the Authority, with an explanation in writing of the
reasons for the omission, at the same time as it sends the notice of
grounds of appeal under paragraph (1).

Supply of documents by the Authority
8 (1) Within 14 days of receiving the copy of the notice of appeal
under regulation 4, the Authority shall send to the secretary four copies
of the documents listed in the Schedule to these Regulations and shall
send to the appellant and, in the case of an appeal under section 33(2) of
the Act, to the investment provider concerned, a list of those documents
together with a copy of any of those documents which the Authority has
not already supplied to the appellant or, in the case of an appeal under
section 33(2) of the Act, to the Investment Provider concerned (as the
case may be).

(2) Where the Authority gave a copy of a notice to a person
under section 22(4) of the Act, or gave a notice to a person under section
22(7) of the Act, and under section 22(12) of the Act omitted any matter
which did not relate to him the Authority may omit that matter from any
copy of that document supplied to that person under paragraph (1).

Preliminary hearing
9 (1) Subject to paragraph (2), the secretary shall send to the
appellant, the Authority and, in the case of an appeal under section 33(2)
of the Act, to the investment provider concerned, a notice informing them

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of the time and place of the preliminary hearing which, unless the
appellant and the Authority otherwise agree, shall be—

(a) not earlier than 5 days after the date on which the notice
is sent; and

(b) not earlier than 21 days and not later than 35 days after
the date of receipt by the secretary of the notice of
appeal unless the chairman otherwise directs on the
ground that he considers that the preliminary hearing
should be held as a matter of urgency.

(2) The preliminary hearing shall be in private and shall be
heard by the chairman.

(3) The appellant and the Authority and, in the case of an
appeal under section 33(2) of the Act, the investment provider concerned
may appear at the preliminary hearing and may be represented by a
barrister and attorney or by any other person.

(4) The chairman shall give such directions as he considers
necessary or desirable for the conduct of the appeal and shall fix the
time and place of the hearing at the preliminary hearing or, if there is no
preliminary hearing, by notice to the parties and in the case of an appeal
under section 33(2) of the Act, to the Investment Provider concerned.

(5) Without prejudice to the generality of paragraph (4) and
subject to regulation 21(2), the chairman shall consider whether any
matters contained in a notice of supplementary grounds of appeal
submitted under regulation 7(3) should be disclosed to any other person
and may direct accordingly.

Interim relief
10 (1) On an application for the suspension under section 33(4) of
the Act of the operation of any restriction or any variation of a restriction
which is the subject of an appeal, the tribunal may determine it on the
basis of written representations if the parties and, in the case of an
appeal under section 33(2) of the Act, the investment provider concerned
so agree in writing or may direct the parties and, in the case of an appeal
under section 33(2) of the Act, the investment provider concerned to
appear before it.

(2) The tribunal shall notify its determination and the reason
for it to the Authority and to the party who made the application for
interim relief and may do so to any other party to the appeal or to any
person to whom notice of appeal has been given under regulation 4(2).

Amendment of grounds of appeal
11 (1) An appellant may amend a notice of grounds of appeal or
supplementary grounds of appeal at any time before the preliminary

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hearing and shall forthwith notify the Authority and the secretary in
writing of the amendment.

(2) An appellant may amend a notice of grounds of appeal or
supplementary grounds of appeal in the course of the preliminary
hearing with the leave of the chairman or at any time thereafter with the
leave of the tribunal.

(3) The chairman or the tribunal shall not give leave unless he
or it has afforded the Authority an opportunity to make representations
on the proposed amendment.

(4) Leave may be granted on such terms (if any), including
terms as to costs or expenses, as the chairman or the tribunal (as the
case may be) thinks fit.

(5) Where a notice of grounds of appeal is amended the
appellant shall forthwith notify any person to whom a copy of the notice
was sent pursuant to regulation 7(2) and where a notice of
supplementary grounds of appeal is amended the chairman shall
consider whether any matters contained therein should be disclosed to
any other person and may direct accordingly.

Evidence and procedure
12 (1) For the purposes of the appeal the chairman may, on the
application of a party to the appeal or on his own motion, by direction
given at the preliminary hearing or by notice in writing require the
appellant, the Authority or any other person, at a time and place stated
in the notice, to attend and give evidence or produce any document in
that person's custody or under his control which relates to any matter in
question at the hearing; provided that—

(a) no person other than the appellant or the Authority shall
be required, in obedience to such direction or notice, to
attend and give evidence or to produce any such
document unless the necessary expenses of his
attendance are paid or tendered to him; and

(b) no person shall be compelled to give any evidence or
produce any document which he could not be compelled
to give or produce if the hearing were a proceeding in a
court of law; and

(c) in exercising the power conferred by this paragraph the
chairman shall take into account, in particular, the need
to protect information which relates to a person who is
not a party to the appeal and which is commercially
sensitive or was communicated or obtained in
confidence.

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(2) Except where the chairman otherwise directs, a witness
shall not be obliged to attend and give evidence or produce any
document in obedience to a direction or notice issued by the chairman
unless that direction or notice has been served on him not less than 5
days before the day appointed for the hearing.

(3) The chairman may set aside any direction or notice under
this regulation on the application of the person to whom the direction or
notice was addressed but shall not do so without first notifying any
person who applied for the direction or notice and considering any
representations made by that person.

(4) The secretary shall supply a copy of any document obtained
under this regulation to any party to the appeal if that party does not
already have a copy of the document and it shall be a condition of such
supply that the information so supplied shall be used only for the
purposes of the appeal.

(5) The hearing shall be in private.

(6) The appellant and the Authority may appear at the hearing
and may be represented by a barrister and attorney or by any other
person.

(7) At the hearing the appellant and the Authority shall each be
entitled to make an opening statement, to call witnesses to give evidence,
to cross examine witnesses called by the other party and to make a final
statement.

(8) In the case of an appeal under section 33(2) of the Act, the
investment provider concerned shall be entitled to be heard,
notwithstanding that the hearing is in private, and may be represented
by a barrister and attorney or by any other person.

(9) The tribunal may require any witness to give evidence on
oath or affirmation which may be administered for that purpose by the
chairman.

(10) Subject to paragraph (1), evidence may be admitted by the
tribunal whether or not it would be admissible in a court of law.

(11) If the appellant or the Authority or, in the case of an appeal
under section 33(2) of the Act, the investment provider concerned shall
fail to appear or be represented at the time and place fixed for the
hearing, the tribunal may proceed with the hearing or adjourn it to a
later date; and if it proceeds with the hearing, it shall take into
consideration any written representations which may have been
submitted by either party and, in the case of an appeal under section
33(2) of the Act, the investment provider concerned whether in
accordance with any provision contained in these Regulations or
otherwise.

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(12) The tribunal may from time to time adjourn the hearing
and, if the date, time and place of the adjourned hearing are announced
before the adjournment, no further notice shall be required.

Membership of the tribunal
13 Notwithstanding the provisions of regulation 5, an appeal may
with the consent of the parties continue to be heard in the absence of
any one member of the tribunal other than the chairman, and in that
event the tribunal shall be deemed to be properly constituted.

Procedure after hearing
14 (1) The tribunal shall, after the close of the hearing, notify its
determination and its reasons therefor in accordance with section 35(4)
of the Act (which provides for the giving of notice of a tribunal's
determination together with a statement of its reasons, to the appellant
and to the Authority).

(2) The tribunal may, after hearing representations from the
parties, make arrangements for the publication of its determination and
its reasons therefor but in doing so shall have regard to the desirability
of safeguarding commercially sensitive information or information given
to the appellant or the Authority in confidence and for that purpose may
make any necessary amendments to the text of the decision to conceal
the identity of the appellant or the source of any such information.

Withdrawal of appeal
15 (1) The appellant may withdraw the appeal at any time before
the hearing by giving notice in writing to the Authority and to the
secretary.

(2) The appellant may at the hearing give notice to the tribunal
that he or it desires to withdraw the appeal and thereupon the tribunal
shall bring the hearing to a close.

(3) The Authority may at any time withdraw its opposition to an
appeal by giving notice to the appellant and the tribunal.

(4) If an appeal is withdrawn, it shall be deemed to be
dismissed and the tribunal shall accordingly formally notify the persons
whom it would have notified under regulation 14(1) if it had determined
the appeal.

Costs
16 (1) Any costs or expenses directed to be paid under section
36(1) of the Act (which provides that the tribunal may give such
directions as it thinks fit for the payment of costs or expenses by any
party to the appeal) and required to be taxed shall be taxed by the
Registrar of the Supreme Court.

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(2) A direction under section 36(1) of the Act in respect of the
payment of costs by a party to the appeal shall, on application being
made to the Supreme Court by the party to whom costs have been
directed to be paid, be enforceable as if he had obtained a judgement of
that Court in his favour.

Time and miscellaneous powers
17 (1) Where the time prescribed by or under these Regulations
for doing any act expires on a Saturday, Sunday or public holiday and by
reason thereof the act cannot be done on that day, the act shall be in
time if done on the next working day.

(2) The periods referred to in regulations 7, 8 and 9 may be
extended by the chairman on such terms (if any) as the chairman after
consulting the parties thinks fit and any application for such extension
may be granted although it is not made until after the expiration of the
period.

(3) The chairman may, after consulting the parties—

(a) postpone the date fixed for the hearing of an appeal; or

(b) alter the place appointed for any hearing;

and, if he exercises either of the above powers, the secretary shall notify
each party, any witnesses concerned and, in the case of an appeal under
section 33(2) of the Act, the investment provider concerned of the revised
arrangements.

Tribunal's power to determine its own procedure
18 Subject to the provisions of the Act and of these Regulations, the
tribunal shall have power to determine its own procedure.

Services of notices etc.
19 (1) Any notice or other document to be sent, served or given to
any person for the purposes of the appeal may be delivered or may be
sent by registered letter—

(a) in the case of a document directed to the tribunal, to the
address set out in regulation 3;

(b) in the case of a document directed to the appellant or
his representative, to the address provided in the notice
of appeal in accordance with regulation 4 or such other
address as may subsequently be notified to the tribunal
and the Authority;

(c) in the case of a document directed to the Authority, to
the Secretary to the Board, Bermuda Monetary

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Authority, Burnaby House, 26 Burnaby Street, Hamilton
HM11;

(d) in any other case, to the last known address of the
person to whom the document is directed;

and documents falling within (b) or (d) above, if sent, served or given to
the authorised representative of any person, shall be deemed to be sent,
served or given to that person.

(2) Any such notice or other document may be sent, served or
given by facsimile, telex or other electronic means which produce a
document containing the text of the communication.

Irregularities
20 (1) Any irregularity resulting from failure to comply with any
provision of these Regulations before the tribunal has reached its
decision shall not of itself render the proceedings void.

(2) Where any such irregularity comes to the attention of the
tribunal before it has reached its decision, the tribunal may, and shall if
it considers that any person may have been prejudiced, take such steps
as it thinks fit before reaching its decision to cure the irregularity.

(3) Clerical mistakes in any document recording a decision of
the chairman or tribunal, or errors arising in such a document from an
accidental slip or omission, may be corrected by the chairman under his
hand.

Consolidation of appeals
21 (1) Where in making its decision the Authority made a finding
that a person is not a fit and proper person to hold the particular
position in the investment provider which he holds or is to hold or
imposed a requirement that a person be removed as a controller or
officer of the investment provider and both the investment provider and
the person concerned appeal against the decision, or where the
investment provider appeals against the decision and the person
concerned appeals against the finding, the chairman may at the
preliminary hearing or at some other time direct that the appeals shall
be consolidated:

Provided that the chairman shall not make such a direction
without giving all parties concerned an opportunity to show cause to why
such a direction should not be made.

(2) If the chairman directs that the appeals shall be
consolidated the secretary shall send to the person concerned a copy of
any notice of supplementary grounds of appeal submitted by the
investment provider under regulation 7(3) unless all of the matters
contained in the notice have been disclosed to the person concerned

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under regulations 9(5) or 11(5) or unless the investment provider when
showing cause why such a direction should not be made under
paragraph (1) represented that it did not wish the notice of
supplementary grounds of appeal to be disclosed to the person
concerned and the person concerned consented to the notice not being
disclosed to him.



SCHEDULE Regulation 8

DOCUMENTS TO BE SENT TO THE TRIBUNAL BY THE
AUTHORITY

1 In the case of an appeal against a decision of the Authority (or
any finding relating thereto) to revoke a licence, to restrict a licence or to
vary restrictions imposed on a licence⎯

(a) a copy of any notice served under section 22(1) or 22(4)
of the Act;

(b) a copy of any written representations made in
accordance with section 22(5) thereof;

(c) a copy of any notice served under section 22(7) thereof;
and

(d) a copy of any written representations made in
accordance with section 22(9) thereof.

2 In the case of an appeal against a decision of the Authority to
impose or vary a restriction as a matter of urgency—

(a) a copy of any notice served under section 23(2) or 22(4)
(as applied by section 23(4) of the Act;

(b) a copy of any written representations made in
accordance with section 23(5) thereof; and

(c) a copy of any notice served under section 23(7) thereof.

3 In the case of an appeal against a decision of the Authority to
object to a person who wishes to become a shareholder controller or
controller of any description of an authorised institution—

(a) a copy of any notice served under section 28(1), 28(3),
29(1), 29(2) and 29(6) of the Act, together with a copy of
any information and documents required by a notice
under section 28(3) thereof; and

(b) a copy of any written representations made under
section 29(3) of the Act.

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4 In the case of an appeal against a decision of the Authority to
object to an existing shareholder controller of a licensed Investment
provider—

(a) a copy of the notices served under sections 30(1) and (2)
of the Act; and

(b) a copy of any written representations made under
section 30(3) of the Act.





Made this 27th day of October , 2004





Minister of Finance