Payment System Act

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Payment System Act
CHAPTER 11.31
PAYMENT SYSTEM ACT
ARRANGEMENT OF SECTIONS
PART 1
PRELIMINARY
SECTION
1. Short title
2. Interpretation
PART 2
AUTHORITY OF THE CENTRAL BANK
3. Establishment of payment system and Central Bank’s exclusive authority
PART 3
THE PAYMENT SYSTEM
4. Characteristics of the payment system
5. The large value electronic funds transfer system
6. Cheque clearing system
7. Settlement for systems not operated by the Central Bank
8. Participation in systems not operated by the Central Bank
9. Technical assistance to operators of funds transfer systems
10. Netting arrangements
PART 4
DESIGNATION OF FUNDS TRANSFER SYSTEM
AND SETTLEMENT SYSTEM
11. Designation of funds transfer system and settlement system
12. Central Bank to establish standards for designated systems
13. Variation or revocation of standards
14. Cessation of standards
15. Establishment of access regime
16. Commencement and cessation of access regime
17. Variation of access regime
18. Commencement of variation
19. Revocation of access regime

20. Effective date of revocation
PART 5
INSOLVENCY AND BANKRUPTCY OF
SYSTEM PARTICIPANT OR AN OPERATOR
21. Bankruptcy and insolvency of an operator and system participant
22. Utilisation of deposits in event of bankruptcy and insolvency
PART 6
EXAMINATION, AUDIT AND INFORMATION
23. Validity of electronic data
24. Retention of records
25. Central Bank examination of books of an operator
26. Disclosure and access to books and records
27. System participant and operator to provide information
28. Annual audit, report and publication of financial statements
PART 7
COMPLIANCE, ARBITRATION AND REGULATION
29. Management’s duty to comply with the law
30. Settlement of disputes by arbitration
31. Directives by Central Bank
32. Regulations
33. Authority to make rules
34. Prudential Guidelines
PART 8
MISCELLANEOUS
35. Offences and penalties
36. Act to bind the Crown
SCHEDULE: Netting arrangement established by the Central Bank


CHAPTER 11.31
PAYMENT SYSTEM ACT
(Acts 5 of 2008 and 9 of 2011)
AN ACT TO ADVANCE OPERATION AND REGULATION OF THE PAYMENT
SYSTEM GENERALLY AND PARTICULARLY TO CODIFY PROCEDURES
GOVERNING THE PAYMENT SYSTEM AND TO PROVIDE FOR RELATED MATTERS.
Commencement
[1 September 2009]
PART 1
PRELIMINARY
Short title
1. This Act may be cited as the Payment System Act.
Interpretation
2. (1) In this Act—
“access”, in relation to a funds transfer system or settlement system, means the entitlement or eligibility of a person to become a participant in the system, as a user of the system, on a commercial basis on terms that are fair and reasonable;
“access regime”, in relation to a designated funds transfer system, means an access regime that has been established by the Central Bank under section 15;
“banking business” means the business of receiving funds through—
(i) the acceptance of monetary deposits which are repayable on demand or after notice or any similar operation;
(ii) the sale or placement of bonds, certificates, notes or other securities and the use of such funds, either in whole or in part, for loans or investment,
and includes, any other activity recognised by the Central Bank as banking practice and which a financial institution may additionally be authorised to do;
“Central Bank” means the Eastern Caribbean Central Bank established by the Eastern Caribbean Central Bank Agreement Act;
“central counter-party” means an entity that is the buyer to every seller and the seller to every buyer in a net settlement system;

“clearing” means the process of transmitting, reconciling or confirming payment orders or security transfer instructions prior to settlement and includes the netting of instructions and the establishment of final positions for settlement;
“clearing house” means—
(a) an arrangement between two or more system participants governing the clearing or netting of payment instructions between those system participants; and
(b) a central location or central processing mechanism through which financial institutions agree to exchange payment instructions or other financial obligations;
“collateral” means an asset or third-party commitment that is provided by the collateral provider to the collateral taker and accepted by the collateral taker to secure an obligation of the collateral provider;
“Currency Union” refers collectively to the territories of Anguilla, Antigua and Barbuda, The Commonwealth of Dominica, Grenada, Montserrat, Saint Christopher and Nevis, Saint Lucia and Saint Vincent and the Grenadines which use the Eastern Caribbean currency as their official currency;
“designated”, in relation to a funds transfer system or a settlement system, means a system which is classified as being systemically important and meeting prescribed standards established by the Central Bank in accordance with the provisions of this Act;
“document” means a document in any form and includes—
(a) any writing or printing on any material;
(b) any record of information or data, however compiled, and whether stored in paper, electronic, magnetic or any non-paper based form;
(c) any storage medium, including discs and tapes;
(d) books and drawings; and
(e) a photograph, film, tape, negative or other medium in which one or more visual images are embodied so as to be capable (with or without the aid of equipment) of being reproduced,
and without limiting the generality of the foregoing, includes any Court application, order and other legal process and any notice;
“electronic funds transfer” means funds transfer by electronic means, and includes the use of computer-telecommunications systems;
“financial institution” includes any person doing banking business, and all offices and branches of a financial institution in Montserrat shall be deemed to be one financial institution;

“funds transfer system” means a formal arrangement, based on private contract or statute law among participants, with common rules and standardised arrangements for the transmission and settlement of money obligations arising among the participants;
“Governor” means the Governor acting on the advice of Cabinet; (Amended by Act 9 of 2011)
“large value electronic funds transfer system” means the large value electronic funds transfer system established under section 4(1)(a) through which large-value and high priority funds transfers are made between participants in the system for their own account or on behalf of their customers;
“Minister” means the Minister responsible for Finance;
“money services business operator” means a person holding a licence under the Money Services Business Act to conduct money services business;
“netting” means the determination of net payment obligations between two or more settling participants within a payment clearing house or the determination of the net settlement obligations between two or more settling participants within the payment system;
“operator” means a person authorised or appointed to operate a funds transfer system or settlement system;
“payment” means the payer’s transfer of a monetary claim to a party acceptable to the payee and includes clearing and settlement;
“payment obligation” means an indebtedness that is owed by one settling participant to another as a result of the clearing of one or more payment instructions;
“payment system” means—
(a) a network of competing and complementary services that facilitate transactions involving the exchange of payment in return for goods, services, real and financial assets, including the instruments, rules, institutions, technical processes and procedures that facilitate the circulation of money and the transfer of value to discharge payment obligations; and
(b) several funds transfer systems and settlement systems that ensure the circulation of money;
“prescribed” means prescribed by regulation;
“retail funds transfer system” means the retail funds transfer system established under section 4(1)(b) which handles a large volume of payments of relatively low value in such forms as cheques, credit transfers, direct debits by various means including through Automated Teller Machines and Electronic Funds Transfer systems;
“settlement” means the act of discharging obligations in respect of funds or securities transfers by two or more parties;

“settlement obligation” means an indebtedness by one settling participant to another as a result of one or more settlement instructions;
“settlement rules” means the rules which determine how payment obligations are calculated, netted or settled and includes rules prescribing corrective, punitive or other action in the event that a settling participant is unable or is likely to become unable to meet its obligations to the clearing house, central counter-party or other settling participants;
“settlement system” means a system used to facilitate the settlement of transfers of funds or financial instruments;
“settling participant” means a participant who can settle transactions on his own account and for other participants;
“systemically important” means of fundamental importance to the—
(a) proper functioning of the Currency Union’s financial system; or
(b) maintenance of the Currency Union’s economic stability;
“system participant” means a party who participates in a funds transfer system or settlement system, which is operated, designated or regulated by the Central Bank.
PART 2
AUTHORITY OF THE CENTRAL BANK
Establishment of payment system and Central Bank’s exclusive
authority
3. (1) The Central Bank shall establish a payment system in Montserrat.
(2) The payment system established under subsection (1) shall be the sole payment system operating in Montserrat.
(3) The Central Bank shall, subject to the Money Services Business Act have exclusive authority for the operation, supervision and administration of the payment system established under subsection (1) and may issue guidelines and directives to govern its operation and regulation.
PART 3
THE PAYMENT SYSTEM
Characteristics of the payment system
4. (1) The payment system established under section 3(1), shall consist of the—
(a) large value electronic funds transfer system; and

(b) retail funds transfer system.
(2) The large value electronic funds transfer system consists of the—
(a) interbank funds transfer system operated and administered by the Eastern Caribbean Central Bank; and
(b) securities settlement system.
(3) The retail funds transfer system consists of—
(a) the cheque clearing system operated and administered by the Eastern Caribbean Central Bank;
(b) the debit transfer system;
(c) the credit transfer system; and
(d) any other funds transfer system designated by the Central Bank.
(4) The retail funds transfer system handles the following types of transactions—
(a) business to business;
(b) business to person;
(c) person to person;
(d) person to business.
(5) Only the Central Bank and financial institutions which satisfy the eligibility criteria and comply with other requirements laid down in the rules of a funds transfer system may be members of that funds transfer system.
The large value electronic funds transfer system
5. (1) The large value electronic funds transfer system shall be the sole system for large value payments and settlement.
(2) Subject to subsection (3), the operational design of the large value electronic funds transfer system shall facilitate the expeditious transmission of instructions to permit payments to be made between parties to transactions—
(a) from and to accounts held at the Central Bank for that purpose; or
(b) from incoming transfers.
(3) The Central Bank may establish and administer a net settlement system in respect of a funds transfer system operated by it.
(4) The Central Bank shall be the central counter-party of a net settlement system established pursuant to subsection (3).

Cheque clearing system
6. The cheque clearing system referred to in section 4(3)(a) is the sole cheque clearing system in Montserrat for cheques drawn on licensed financial institutions carrying on business in the Currency Union.
Settlement for systems not operated by the Central Bank
7. (1) The Central Bank may provide settlement facilities in respect of—
(a) a funds transfer system designated under this Act; and
(b) any part of a retail funds transfer system established or operated by another person.
(2) In giving effect to subsection (1) the Central Bank shall consider whether the system—
(a) is or is likely to be a systemically important system having regard to the function, volume or value of that system; or
(b) involves or might involve material risks which the Central Bank can abate or help to manage.
(3) The Central Bank may—
(a) provide payments facilities to effect the settlement of securities transactions including transactions of the securities system operated by the Eastern Caribbean Central Securities Depository Limited licensed under section 45 of the Securities Act by—
(i) direct participation; or
(ii) participation of the Eastern Caribbean Central Securities Depository Limited through the real time gross settlement or otherwise; and
(b) make rules and enter into agreements respecting the systems and processes referred to in paragraph (a).
Participation in systems not operated by the Central Bank
8. The Central Bank may participate in—
(a) net settlement systems, securities settlement systems or any part of a retail funds transfer system established and operated by another person; and
(b) non-currency union payment systems,
on terms and conditions it considers necessary or desirable to accomplish its purposes.

Technical assistance to funds transfer systems
9. The Central Bank may, on terms and conditions it considers appropriate, provide technical, financial or any other assistance to another person for the establishment or operation of a funds transfer system.
Netting arrangements
10. (1) The discharge of settlement obligations between system participants is effected by means of entries processed through the settlement system in accordance with procedures described in the Schedule or any rules issued by the Central Bank.
(2) The obligation of a settling participant or central counter-party to make payment to and the corresponding right of a participant or central counter-party to receive payment from another settling participant or central counter-party shall be netted and a net settlement or close-out amount determined, entered and cleared in accordance with settlement rules.
(3) A settlement that is effected by means of an entry to the credit of an account maintained by the central counter-party is final and irrevocable and may not be reversed or set aside.
(4) An entry to or payment out of the account of a settling participant to settle a payment or settlement obligation in a settlement system is final and irrevocable and may not be reversed or set aside.
(5) The Governor may at any time amend the Schedule by Order published in the Gazette.
PART 4
DESIGNATION OF FUNDS TRANSFER SYSTEM
AND SETTLEMENT SYSTEM
Designation of funds transfer system and settlement system
11. (1) The Central Bank may designate a funds transfer system or settlement system—
(a) where that designation is in the public interest;
(b) on receipt—
(i) from the Financial Services Commission, of a copy of a licence issued to a money services business operator accompanied by a recommendation for designation of that money services operator pursuant to section 6(4) of the Money Services Business Act;
(ii) of information which establishes that a money services business operator who is licensed under the provisions of the Money Services Business Act is managing a

systemically important funds transfer system or settlement system; or
(c) where—
(i) systemic disruption in the financial system could result if the operator or a participant of the system becomes insolvent or goes into bankruptcy; and
(ii) any other matter specified in the regulations warrants designation of the funds transfer system.
(2) The Central Bank shall inform the operator of its decision to designate the funds transfer system or settlement system and shall publish notification of its decision in the Gazette and any other media it deems appropriate.
(3) The Central Bank may, in respect of any designation made under subsection (1)—
(a) impose restrictions or conditions to which the designation is subject;
(b) amend or revoke any condition to which the designation is subject; or
(c) make the designation subject to a new condition or new conditions.
(4) A variation of the conditions to which a designation is subject or a revocation of designation—
(a) shall have retroactive effect; and
(b) shall not affect—
(i) the validity or enforceability of the rules of the designated system;
(ii) any payment to or out of the account of a system participant or netting; or
(iii) any settlement that took place prior to the date on which the variation or revocation comes into force.
(5) The Central Bank—
(a) may vary or revoke a designation made under subsection (1) by giving written notice to the designated operator;
(b) shall publish in the Gazette a notice of its decision to vary or revoke a designation made under subsection (1); and
(c) may publish notice of its decision in any other appropriate media.

Central Bank to establish standards for Designated Systems
12. (1) The Central Bank may establish standards to be complied with by the operator or participants of a designated funds transfer system or designated settlement system where it is in the public interest.
(2) Standards established under subsection (1)—
(a) shall be published in the Gazette and any other appropriate media;
(b) shall come into force—
(i) subject to sub-paragraph (ii), on the day on which the standards are published in accordance with paragraph (a); or
(ii) on a date specified in the standards;
(c) may be varied as provided in section 13.
Variation or revocation of standards
13. (1) The Central Bank may vary or revoke any standards or any of them if the Central Bank considers it is appropriate to do so, having regard to—
(a) whether the variation or revocation would be in the public interest;
(b) the interests of the current participants in the system;
(c) the interests of people who, in the future, may desire access to the system; and
(d) any other matters the Central Bank considers relevant.
(2) The Central Bank—
(a) shall publish in the Gazette details of its decision to vary or revoke the standards and particulars of the variation or revocation; and
(b) may publish notice of its decision in any other media.
(3) Failure by the Central Bank to comply with subsection (2) does not invalidate the variation or revocation.
Cessation of Standards
14. The standards established in respect of a designated funds transfer system or designated settlement system cease to be in force on—
(a) the prescribed expiry date if any, of such standards;
(b) revocation of the standards by the Central Bank;
(c) voluntary cessation of operations of the designated funds transfer system or designated settlement system;

(d) dissolution of the designated funds transfer system or designated settlement system; or
(e) revocation or suspension of designation of the funds transfer system or settlement system.
Establishment of access regime
15. (1) The Central Bank may establish an access regime for the participants of a designated funds transfer system or designated settlement system.
(2) The access regime must be one that the Central Bank considers appropriate, having regard to—
(a) the public interest;
(b) the interests of the current participants in the system;
(c) the interests of persons who, in the future, may desire access to the system; and
(d) any other matters the Central Bank considers relevant.
(3) The Central Bank shall publish in the Gazette—
(a) details of its decision to establish an access regime; and
(b) particulars of the access regime.
(4) Failure to comply with subsection (3) does not invalidate the access regime.
Commencement and cessation of access regime
16. (1) An access regime—
(a) comes into force—
(i) subject to subparagraph (ii), on the day on which the particulars are published in accordance with section 15; or
(ii) on the date specified in the particulars establishing the access regime; and
(b) may be varied as provided in section 17.
(2) An access regime established in respect of a designated funds transfer system or designated settlement system ceases to be in force on—
(a) the prescribed expiry date, if any, of the access regime;
(b) revocation of the access regime;
(c) voluntary cessation of operation of the designated funds transfer system or designated settlement system;
(d) dissolution of the designated funds transfer system or designated settlement system; or

(e) revocation or suspension of designation of the funds transfer system or settlement system.
Variation of access regime
17. (1) The Central Bank may vary an access regime if the Central Bank considers it is appropriate to do so, having regard to—
(a) whether the variation would be in the public interest;
(b) the interests of the current participants in the system;
(c) the interests of people who, in the future, may desire access to the system; and
(d) any other matters the Central Bank considers relevant.
(2) The Central Bank—
(a) shall publish in the Gazette details of its decision to vary an access regime and the particulars of the variation; and
(b) may publish notice of its decision in any other media.
(3) Failure by the Central Bank to comply with subsection (2) does not invalidate the variation.
Commencement of Variation
18. Variation of an access regime comes into force—
(a) subject to subparagraph (b), on the day on which the decision to vary the access regime is published in accordance with section 17; or
(b) on the date specified in the decision to vary the access regime.
Revocation of access regime
19. (1) A participant in a designated funds transfer system or designated settlement system may apply to the Central Bank in the prescribed form for revocation of the access regime.
(2) The Central Bank may revoke an access regime in the public interest or for other compelling reasons.
Effective Date of Revocation
20. Revocation of an access regime takes effect on the date specified in the decision to revoke the access regime.


PART 5
INSOLVENCY AND BANKRUPTCY OF
SYSTEM PARTICIPANT OR AN OPERATOR
Bankruptcy and insolvency of operator and system participant
21. (1) A system participant or an operator must notify the Central Bank if it becomes insolvent or becomes bankrupt and must give the notice as soon as practicable after proceedings are instituted.
(2) A system participant or an operator does not contravene subsection (1) if it takes reasonable steps to comply with that subsection.
(3) Subject to subsection (2), a system participant or an operator who contravenes subsection (1) commits an offence.
Utilisation of deposits, in event of bankruptcy or insolvency
22. (1) Notwithstanding anything to the contrary in the Bankruptcy Act, the Companies Act or sections 50, 51 and 55 of the Banking Act any asset of a settling participant which is provided prior to the issue of any bankruptcy, winding-up or receivership order against that settling participant to—
(a) the Central Bank;
(b) an operator; or
(c) a central counter-party,
as security in respect of its payment or settlement obligations, may be utilised by the Central Bank, the operator or the central counter-party to the extent required for the discharge of those settlement obligations of the system participant.
(2) Notwithstanding anything in the Bankruptcy Act, or the Companies Act or sections 50, 51 and 55 of the Banking Act if a settling participant goes into bankruptcy, receivership or is wound up—
(a) any provision contained in a netting agreement to which that system participant is a party;
(b) any provision contained in the rules of the settlement system or in clearing, netting and settlement agreements to which that settling participant is a party; or
(c) any rules and practices applicable to the settling participant,
is binding upon the liquidator, receiver or administrator in respect of any payment or settlement obligation—
(i) that has been determined through netting prior to the issuance of the bankruptcy, winding-up or receivership order; and

(ii) that is to be discharged on or after the date of the winding- up, receivership or bankruptcy, or the discharge of which was overdue on the date of the winding-up, receivership or bankruptcy order.
(3) A settling participant against which a bankruptcy, winding-up or receivership application has been lodged is prohibited from clearing or participating in any settlement system other than for the purposes of discharging payment obligations.
(4) Notwithstanding section 10 of the Bankruptcy Act, the rights and remedies of a participant, clearing house, central counter-party or the Central Bank to realise any collateral granted to it as security for a payment or the performance of an obligation incurred in a net settlement system may not be the subject of any stay provision or court order.
(5) A settling participant who participates in any settlement system in violation of subsection (3) commits an offence and is liable on conviction to a fine of $50,000.

PART 6
EXAMINATION, AUDIT AND INFORMATION
Validity of electronic data
23. (1) Information stored, disseminated or used by system participants and operators shall not be denied legal effect solely on the ground that—
(a) it is in the form of an electronic record; or
(b) it is not contained in the electronic record purporting to give it legal force and validity, but is referred to in another electronic record.
(2) Information recorded in electronic format may be produced in evidence in accordance with procedures established in the Evidence Act or applicable law.
Retention of records
24. (1) The Central Bank and system participants shall retain records obtained by them during the course of operation and administration of a funds transfer system or settlement system for a period of at least six years from the date of their creation.
(2) The retention of records under subsection (1) may be affected by electronic means.
Central Bank examination of books of an operator
25. (1) The Central Bank shall examine or cause an examination to be made of each designated funds transfer system and designated settlement

system from time to time or whenever in its judgment such an examination is necessary or expedient in order to determine that the funds transfer system or settlement system is in a sound financial condition and that the requirements of this Act have been complied with in the conduct of its business.
(2) The operator of a designated funds transfer system or designated settlement system shall produce for the inspection of an examiner appointed by the Central Bank, at such time as the examiner specifies all books, minutes, accounts, cash, instruments, securities, documents and vouchers relating to its business as requested by the examiner for the purpose of this Act.
(3) If any books, minutes, accounts, cash, instruments, securities, documents and vouchers are not provided or information is not supplied in accordance with subsection (1), the defaulting operator commits an offence and is liable on conviction to a fine of $50,000 and in the case of a continuing offence to a further penalty of $1,000 for each day on which the offence is continued after conviction.
(4) Where an operator of a designated funds transfer system or designated settlement system knowingly supplies information or produces any item pursuant to subsection (2) which is false in any material particular, the operator commits an offence and is liable on conviction to a fine of $50,000.
(5) The Central Bank may assess a designated funds transfer system or designated settlement system for the reasonable expenses of conducting an examination under this section.
Disclosure and access to books and records
26. (1) An operator of a designated funds transfer system or designated settlement system shall produce for the inspection of any examiner appointed by the Central Bank at such time as the examiner specifies all books, minutes, accounts, cash, instruments, securities, documents and vouchers relating to its business and the business of its affiliates as requested by the examiner for the purpose of this Act.
(2) If any books, minutes, accounts, cash, instruments, securities, documents and vouchers are not provided or information is not supplied in accordance with subsection (1), the defaulting operator commits an offence and is liable on conviction to a fine of $50,000.
(3) Where the operator knowingly supplies information or produces an item pursuant to subsection (2) which is false in any material particular, the operator of the designated funds transfer system or designated settlement system commits an offence and is liable on conviction to a fine of $50,000.
System participant and operator to provide information
27. (1) A system participant and an operator shall provide any information requested by the Central Bank relating to the volumes or values of payment and settlement instructions or payment and settlement obligations.

(2) Any information obtained by the Central Bank in response to a request made under subsection (1) is confidential and shall not be disclosed to any third party by the Central Bank, its servants or agents except—
(a) with the written consent of the system participant or operator;
(b) in the course of performance of his duties within the scope of his employment;
(c) when lawfully required to make disclosure by any court of competent jurisdiction within Montserrat;
(d) under the provisions of any law of Montserrat; or
(e) as deemed necessary by the Central Bank to protect the integrity, effectiveness or security of the payment system.
(3) Any person who contravenes the provisions of subsection (1) or (2) commits an offence.
Annual audit, report and publication of financial statements
28. (1) An operator of a designated funds transfer system or designated settlement system shall appoint annually an auditor satisfactory to the Central Bank whose duties—
(a) shall be to examine the books and records and to make a report on the annual financial statements and financial position, and in every such report the auditor shall state whether in the auditor’s opinion the balance sheet and profit and loss account give a true and fair view of the state of affairs of the funds transfer system or settlement system and of its results for the period then ended; and
(b) include all or any of the following duties as may from time to time be imposed on the auditor by the operator of the designated funds transfer system or designated settlement system at the request of the Central Bank—
(i) to submit such additional information in relation to the audit of the funds transfer system or settlement system as the Central Bank considers necessary;
(ii) to carry out any other examination or establish any procedure in any particular case;
(iii) to submit a report on any of the matters referred to in sub- paragraphs (i) and (ii);
(iv) to submit a report on the financial and accounting systems and risk management controls of the funds transfer system or settlement system; and
(v) to certify whether suitable measures to counter money laundering and to combat the financing of terrorism have been adopted by the funds transfer system or settlement

system and are being implemented in accordance with the Act.
(2) The operator shall remunerate the auditor in respect of the discharge by the auditor of all or any of the duties set out in subsection (1).
(3) Where in the course of the performance of his duties an auditor is satisfied that—
(a) there has been a serious breach of or non-compliance with this Act or any regulation, notice, order, guideline or direction issued under the Act; or
(b) there is evidence that a criminal offence involving fraud or other dishonesty may have been committed,
the auditor shall immediately report the matter to the operator and the Central Bank.
(4) The Central Bank may request copies of reports submitted to the operator by both its internal and external auditors.
(5) An auditor shall simultaneously with its report to an investigative, regulatory or other institution on a funds transfer system or settlement system, report to the Central Bank any matter it is required to report to such institution.
(6) An operator who fails to secure compliance with a request under subsection (1)(b) commits an offence and is liable on conviction to fine of $50,000 for each such failure to comply.
(7) If an operator fails to appoint an auditor satisfactory to the Central Bank, the Central Bank may appoint an auditor for such funds transfer system or settlement system and the remuneration of the auditor so appointed shall be determined by the Central Bank and paid by the operator.
(8) The Central Bank may appoint an auditor to conduct an independent audit of a funds transfer system or settlement system, in accordance with the instructions of the Central Bank, and to report the findings or results to the Central Bank.
(9) An auditor appointed under subsections (1) and (8) is not liable for breach of any duty solely by reason of compliance with subsections (1), (3) or (5), or any other request for information by the Central Bank.
(10) For the purposes of this Act—
(a) no person having an interest in any funds transfer system or settlement system otherwise than as a depositor and no director, manager, secretary, employee or agent of a funds transfer system or settlement system is eligible for appointment as auditor for such funds transfer system or settlement system.
(b) a person appointed as auditor who shall, after an appointment, acquire any interest in a funds transfer system or settlement system otherwise than as a depositor, or become a director, manager, secretary, employee or agent of such funds transfer

system or settlement system shall immediately cease to be such auditor.
PART 7
COMPLIANCE, ARBITRATION AND REGULATION
Management’s duty to comply with the law
29. (1) A director, manager, secretary or other officer concerned in the management of a system participant shall take all reasonable steps to secure compliance by the participant with the requirements of this Act.
(2) A director, manager, secretary or other officer concerned in the management of a system participant who contravenes subsection (1) commits an offence and is liable on conviction to a fine of $50,000 or to imprisonment for a term of six months or to both.
Settlement of disputes by arbitration
30. (1) Any dispute between system participants concerning any matter arising under this Act shall be submitted to arbitration by a tribunal of arbitrators appointed pursuant to subsection (2).
(2) If the dispute is—
(a) between only two parties, each party shall be entitled to appoint one arbitrator, and the two parties shall together appoint a third arbitrator, who shall be the Chairman of the tribunal.
(b) if the dispute is between three or more parties, each party shall be entitled to appoint one arbitrator and all the parties shall together appoint an additional arbitrator, who shall be the Chairman of the tribunal.
(3) If within thirty days of receipt of the request for arbitration, any party has not appointed an arbitrator or if within thirty days of the appointment of the arbitrators the parties have not appointed the third arbitrator or, as the case may be, the additional arbitrator, any party to the dispute may request that the High Court make the required appointment.
(4) The procedure of the tribunal shall be fixed by the arbitrators, but the Chairman of the tribunal shall have full power to settle all questions of procedure in any case of disagreement.
(5) A majority vote of the arbitrators shall be sufficient to reach a decision which shall be final and binding on the parties.
(6) The Chairman of the tribunal shall be entitled to vote, and in the event of a tie, shall have a casting vote.

Directives by Central Bank
31. (1) The Central Bank may issue directives to any person regarding a designated funds transfer system or designated settlement system regarding the application of the provisions of this Act and may in such directive require any person to—
(a) cease or refrain from engaging in any conduct or perform such other acts as are necessary to remedy the situation;
(b) perform such acts as are necessary to comply with the directive or to effect the changes; or
(c) provide the Central Bank with such information and documents, relating to the matter as specified in the directive.
(2) In considering whether to issue a directive the Central Bank may have regard to any or all of the following matters—
(a) that reasonable grounds exist to believe that any person is engaging or is about to engage in any conduct with respect to the payment system, that results or is likely to result in systemic risk;
(b) that reasonable grounds exist to believe that any person is engaging or is about to engage in any conduct with respect to the payment system, that is or will be contrary to the public interest relative to the integrity, effectiveness, efficiency or security of the payment system;
(c) the public interest;
(d) the integrity, effectiveness, efficiency or security of the payment system;
(e) national or Currency Union stability; and
(f) any other matters that the Central Bank considers appropriate.
(3) Any person who neglects, refuses or fails to comply with a directive issued under subsection (1) commits an offence.
(4) Without prejudice to any proceedings which may be instituted, the Central Bank may apply to the High Court for an order directing a system participant to comply with a directive issued under subsection (2)(a).
(5) The Central Bank may impose restrictions against an operator or system participant who acts in contravention of this Act or Regulations, rules or directives issued pursuant to this Act.
(6) In this section “systemic risk” refers to a scenario in which the failure of one or more settling participants to meet their payment obligations or their settlement obligations is likely to cause any or all of the other system participants to be unable to meet their respective payment or settlement obligations.

Regulations
32. The Governor may, on the recommendation of the Central Bank, make Regulations for giving effect to this Act, and, without limiting the generality of the foregoing, may make Regulations respecting—
(a) reports or other information to be supplied by designated funds transfer systems or designated settlement systems and any other matter associated with their use;
(b) records to be kept, returns and reports to be made to the Central Bank or the Minister by persons who are appointed auditors under the Act;
(c) form of reports and returns to be made by designated funds transfer systems or designated settlement systems and the times when such reports and returns shall be made;
(d) forms necessary for the administration of this Act;
(e) penalties that may be imposed for violations of Orders or Regulations made under this Act not exceeding a fine of $50,000 or imprisonment for a term of twelve months;
(f) minimum criteria for fit and proper persons; and
(g) any other matter required for the efficient administration of this Act.
Authority to make rules
33. (1) The Central Bank may make rules to give effect to the provisions of this Act.
(2) Notwithstanding the generality of subsection (1) the Central Bank may make rules respecting—
(a) accounts at the Central Bank, including—
(i) access (including by virtual private network), and
(ii) balances;
(b) conditions for the interconnection to and participation in the Payment System, large value electronic funds transfer system or other funds transfer systems or settlement systems operated, or designated by the Central Bank;
(c) features of the cheque clearing system, settlement systems, and funds transfer systems;
(d) finality of payment and settlement, netting, loss allocation and apportionment;
(e) bank records and processes, and documents, including electronic documents and signatures;

(f) collateral in all its forms, nature, effectiveness and means of realisation;
(g) payment instruments such as cheques (including certified cheques) and electronic transfers, including arrangements respecting authenticity and integrity;
(h) security, reliability, identification, authentication and contingency arrangements;
(i) administration;
(j) expenses and fees;
(k) payment system planning;
(l) designated funds transfer systems or designated settlement systems;
(m) establishment of a framework for administration of truncated cheques or cheques held either at the institution of deposit or afterwards;
(n) alternative dispute resolution machinery; and
(o) appointment of auditors.
(3) The Rules shall be published in the Gazette.
(4) The Central Bank may at any time amend or replace Rules made under this section and such amendment or replacement shall be published in the Gazette or in any other media.
Prudential guidelines
34. The Central Bank may issue to operators and system participants prudential guidelines as may be necessary for administering the provisions of this Act, and without limiting the generality of the foregoing, may issue guidelines respecting—
(a) policies, practices and procedures for evaluating financial soundness of operators and participants;
(b) policies, procedures and systems for identifying, monitoring and controlling country risk, institutional risk, market risk, liquidity risk, operational risk and such other risks as the Central Bank shall specify;
(c) liquidity requirements;
(d) corporate governance;
(e) auditors;
(f) disclosure; and
(g) anti-money laundering and combating the financing of terrorism matters.

PART 8
MISCELLANEOUS
Offence and penalty
35. A person who contravenes or fails to comply with any provision of this Act, where the provision does not expressly create an offence or provide for a penalty, commits an offence and is liable on conviction to a fine of $100,000.
Act to bind the Crown
36. This Act binds the Crown. _____________
SCHEDULE
(Section 10)
NETTING ARRANGEMENT ESTABLISHED BY THE CENTRAL BANK
1. Notwithstanding any other law—
(a) in a netting arrangement obligations may be terminated, termination values may be calculated and a net amount become payable and be
paid in accordance with the netting arrangement;
(b) paragraph (a) applies notwithstanding—
(i) any disposal of rights that may be netted under the netting
arrangement;
(ii) the creation of any encumbrance or other interest in relation to
those rights; or
(iii) the operation of any encumbrance or any other interest in relation
to those rights, in contravention of the netting arrangement.
2. For the purposes of any law the assets and liabilities of a party to the netting
arrangement shall include any net obligation owed to a party under the netting
arrangement and does not include obligations terminated under the netting
arrangement.
3. If a system participant goes into insolvency or bankruptcy—
(a) the party may do anything permitted or required by the netting arrangement in order to net obligations incurred before or on the day
on which the bankruptcy or insolvency order is made; and
(b) subject to paragraph 5 the obligations that are or have been netted under the netting arrangement are to be disregarded in the bankruptcy or insolvency;

(c) any net obligation owed by the party under the netting arrangement that has not been discharged is provable in the bankruptcy or
insolvency;
(d) any net obligation owed to the party under the netting arrangement that has not been discharged may be recovered by the receiver or
administrator for the benefit of creditors; and
(e) the netting and any payment made by the party under the netting arrangement to discharge a net obligation is not to be voidable in the
bankruptcy or insolvency.
4. Paragraphs 1 and 3 have effect despite any other law.
5. The receiver or administrator may recover from the bankrupt or insolvent party
for the benefit of creditors an amount equal to the amount of the obligation if—
(a) a party to a netting arrangement becomes bankrupt or insolvent;
(b) an obligation owed by the bankrupt or insolvent party to another party to the netting arrangement has been netted under the netting
arrangement; and
(c) a direct payment by the bankrupt or insolvent party owing the obligation to the other party would have been voidable in accordance
with bankruptcy or insolvency proceedings if it had been made to
settle the obligation on the day the netting occurred.
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