NATIONAL ASSEMBLEE A ADOPTETHE PRESIDENT OF THE PROMULGUE REPUBLICI'll tell you what.
VU The Constitution of 15 September 1992;
VU Law n°118/AN/11/6th L of 16 January 2011 repealing Law n°91/AN/05/5th L of 16 January 2005 bearing Statutes of the Central Bank;
VU Law No.119/AN/11/6th L of 16 January 2011 on the constitution and supervision of credit institutions and financial auxiliaries;
VU Law No.110/AN/11/6th L of 25 May 2011 on combating the financing of terrorism;
VU Law No. 111/AN/11/6th L of 25 May 2011 on combating terrorism and other serious offences;
VU Law n°112/AN/11/6th L of 25 May 2011 supplementing the law n°196/AN/02/4th L on laundering, confiscation and international cooperation in the product of crime;
VU Book 3 of the Trade Code on Corporate Rights;
VU Decree No.2016-109/PRE of 11 May 2016 appointing the Prime Minister;
VU Order No.2016-110/PRE of 12 May 2016 appointing members of the government;
VU Circular No. 201/PAN of 26/06/16 calling for the fifth public session of the 1st Ordinary Session of the year 2016;
The Council of Ministers heard in its meeting on 24 November 2016.
SECTION 1 : TITRE ET PORTEE
This Act is referred to as “National Payment System Act”. It applies throughout the Republic of Djibouti, and covers any service and payment system operated in part or entirely in the country.
SECTION 2: DEFINITIONS OF TERMS
Article 1: Definitions
Under this Act and unless the context requires a different meaning.
(a) “Agent” means any natural or legal person duly authorized to operate on behalf of a bank or payment service provider.
(b) “Banque” means a credit institution, in accordance with the definition of Article 3 the banking law N°119/AN/11/6th L.
(c) “Letter of exchange” is a title by which a “learner” gives a warrant to his debtor, says “the shot”, to pay a certain date a sum of money to a third person “that the beneficiary”. The amount for which it is issued corresponds to a debt (the provision) held by the shooter on the shot it must be liquid and payable on the date fixed for the payment. The letter of exchange is subject to mandatory form conditions specified in Article L.2272-110 of the Commercial Code.
(d) “Central Bank” means the Central Bank of the Republic of Djibouti (BCD).
e) “Central partner” (CC) means the entity that interposes between buyers and sellers, taking the role of buyer of any seller and seller of any buyer within the framework of a settlement system.
(f) “Centred Depositary of Titles” (DCT, CSD in English) means the entity in which registered securities are immobilized. The DCT allows to process this type of dematerialized transactions. The titles can be retained in the DCT either in dematerialized form (i.e. in electronic format) or in physical form. The DTC also provides asset custody and management services.
(g) “Cheque” means a title by which a person called “tiror” gives the order to a banker or to an institution assimilated, the “drawn”, to pay in sight a specified sum either to his or her benefit, or to a third person, the “beneficiary”, or to his or her order.
The cheque is subject to formal conditions that are specified in Art. L.2271-111 of the Trade Code.
(h) “Electronic cheque” means a cheque under digital representation (image) of the recto and reverse of the paper cheque (physical), which is generated, completed and signed within a secure system, thus ensuring a minimum of security standards, in accordance with the requirements of the Central Bank.
(i) “Compensation” means the process of transmission, reconciliation and/or confirmation of the transfer of funds or pre-regulation securities and which includes the compensation instructions and the definition of the final positions of the regulation.
(j) “Chamber of Compensation” means any entity that provides compensation or settlement services for a system, including the Central Bank.
(k) “Regulation system” means a set of procedures in which participants submit and exchange information relating to the transfer of funds or securities to other participants through a centralized system or in the same location, and which includes mechanisms for calculating the positions of participants bilaterally or multilaterally to facilitate the settlement of their obligations.
(l) “Close-out netting” means a compensation agreement under which, as a result of a predefined event by the parties to the agreement, all or part of the transactions covered by the compensation agreement are likely to be terminated, i.e., the maturity value is payable.
(m) “Garanty” means an asset delivered by the person who provides the guarantee in order to guarantee an obligation to the lessee. Guarantee agreements may take various legal forms; the guarantee can be obtained using the method of transfer of ownership or gage.
(n) “Credit card” means a card authorizing its holder (whose name is listed on the credit card) to carry goods or services on the holder’s account in the form of a credit subject to refund over a specified period of time.
(o) “Pay card” means any card issued by a credit institution or by an institution or service authorized to issue it and allowing its holder to withdraw or transfer funds.
(p) “Retirement card” means any card issued by an institution, institution or service authorized to issue it and exclusively allowing its holder to withdraw funds.
(q) “Virement” means the entire channel of transfers required to make the payment to the recipient, starting with the payment order of the payer. The term includes any order of payment issued by the Bank or by the Payor's Payment Services Provider, or by an intermediary, to execute the payor's payment order.
(r) “Debit Card” means a card or access method by which the money is automatically deducted from an account in order to pay goods or services.
(s) “Transfer of debits” means the transfer series, launched by the recipient (determined on the payer’s consent to the recipient) to the recipient’s payment service provider or the payer’s payment service provider. The term includes any order of payment issued by the Bank or by the payment service provider of a beneficiary, or through the intermediary, and intended to execute the payment order.
(t) “Electronic currency” means any electronic, magnetic or other material or intangible device (IM card or software), capable of storing monetary value representing a receivable on the issuer, which is issued against receipt of funds for the purpose of making payment transactions, and which is accepted by persons other than the issuer.
(u) “Electronic submission of cheques” means electronic transmission, by an institution authorized to draw a cheque, a cheque image and its payment data, to the institution of the beneficiary to whom it is drawn.
(v) “Electronic life” means any transfer of funds launched by a person by way of instruction, authorization or order issued to a Payment Services Provider for the purpose of debiting or crediting an account domiciled in that provider electronically. This includes, in a non-exhaustive manner, transfers to points of sale, operations to automatic windows, direct deposits, withdrawals of funds, or transfers made by telephone, internet, cards or any other device.
(w) “gross rules” means the payment of funds or instructions for the transfer of securities treated individually, instruction by instruction.
(x) “Multilateral accounting” means an agreement between three or more parties to compensate for the obligations of each.
y) “National Payment System” means all services relating to the sending, receiving and processing of payment orders or transfers of money in local currency or foreign currency, including:
i. The issuance and management of means of payment,
ii. Compensation and settlement systems, including those capable of managing securities, as well as provisions and procedures relating to such systems and services, such as links, and
iii. Payment service providers, including system operators, various stakeholders and any third party acting on their behalf, either as agents or under outsourcing contracts, whether partially or entirely, as long as they operate entirely or partially in the territory of the Republic of Djibouti.
(z) “Net Rules” means a settlement procedure under which the final settlement of the transfer instructions occurs on a net basis at a specific time or in several separate occurrences determined prior to the day of treatment.
aa) “Net cancellation value” means the net amount obtained after compensation of obligations between parties, in accordance with the rules of regulation enacted by the Central Bank or under the compensation agreement between the parties.
(b) “Compensation Agreement” means a written agreement to convert several receivables or obligations into one net debt or one net obligation. This includes bilateral compensation, multilateral compensation, innovative compensation, close-out netting, compensation for payments or a combination of the whole.
cc) “Innovational accounting” means a compensation agreement between the parties to carry out a series of transactions with a receivable account where the rights and obligations of the parties relating to the account are extinguished at the time of their confirmation and replaced by a new single amount payable by a party to the other.
dd) “Compensation” means the definition of net payment obligations or the definition of net cancellation value of bond regulations between two or more participants within a system.
(e) “Operator” means the Central Bank or any other entity duly authorized (agreed) by the Central Bank to manage a system.
(ff) “Participant” means a party that, according to the rules of a system, is authorized to exchange, compensate and pay, directly or indirectly, amounts through the system with other participants. A direct participant is a participant in a particular system, who is responsible for the settlement of his own payments, those of his clients and those of the indirect participants on whose behalf he makes the settlement.
gg) “Payment Instruments” means any instrument, material or intangible, allowing a person to obtain money, goods or services, make payments or transfer money. This includes, in a non-exhaustive manner, cheques, transfers of funds issued by a physical or electronic device (automatic guidelines, points of sale, Internet, mobile phone), payment cards, including those capable of storing electronic money.
hh) “Payment Services Provider” means any entity that offers Payment Services.
(ii) “Payment services” means:
i. Services for the deposit and withdrawal of species;
ii. the realization of payments;
iii. the issuance and/or acquisition of payment instruments;
iv. delivery of remittance and receipt services; and
v. other functional services to the transfer of money.
This also includes the issuance of electronic currency and electronic currency instruments. The term does not include the exclusive provision of online services or telecommunications or network access services.
(jj) “Payment system” means any system or mechanism for processing, compensation and/or payment of funds.
kk) “Green real-time regulation” (RBTR) means a regulation that executes the final settlement of funds, payment obligations and dematerialized transactions of securities and instruments on a case-by-case and real-time basis, as they occur in normal working hours.
(l) “Financing services “and” Remittance services” means a payment service that accepts liquid money or other payment instruments (including electronic currency instruments) in one place, and pays the corresponding sum in cash or in another form to a beneficiary in another physical place, by means of communication, message, transfer or any other compensation network of which it is a party.
mm) “Regulation Agent” means an entity that provides accounts to participants in a system to hold funds and settle transactions between participants in a system.
(nn) “Regulation rules” means the basic rules on which payment obligations are calculated or settled. They include measures to be taken in the event that a participant may not be able to meet their obligations with respect to a payment system, the compensation board, the central counterparty (CC) or other participants. These rules also cover the regulation of securities obligations.
oo) “Regulation system” means a system established and managed by the Central Bank or any other system for the performance of payment obligations and the regulation of securities obligations.
pp) “Regulation” means the act of fulfilling its obligations by transferring funds or securities between two or more parties.
Unless otherwise provided, the term “system” in this Act is indistinctly a system of payment, compensation and/or settlement.
CENTRAL BANQUE CHECKS
Article 2: In accordance with Article 7 of the BCD Statutes, the Central Bank must regulate and monitor the National Payment System as a whole in order to reduce potential risks and deficiencies.
To this end, it must:
(a) Develop policies to modernize the National Payment System;
(b) Accrediting Payment Services Providers and Systems Operators in accordance with the terms of this Act and any subsequent enforcement action;
(c) Clearly define the general or individual conditions, standards, rules and/or procedures in accordance with this Act and any other complementary measures of application relating to authorized entities and their activities, and ensure that such conditions, standards, rules and procedures are properly applied;
(d) Acting as a forum to discuss policy and mutual interest issues on the national payment system; and
(e) Mener has many other tasks related to payment, compensation or settlement systems or the issuance of payment instruments enabling him to exercise his responsibilities.
SECTION 4: OPERATIONAL ROLE OF CENTRAL BANQUE
Article 3: The Central Bank may grant facilities for payments, compensation, settlement systems, operators or their participants.
In this regard, the Central Bank may:
(a) Create, own, manage and participate in the ownership or management of settlement, payment and compensation systems;
(b) Play the role of Central Counterpart for participants;
(c) Hold cash accounts for operators and participants, usable to compensate and settle transfers in a system;
(d) Hold securities accounts for operators and participants, which can be used to ensure the proper functioning of the systems;
(e) Provide intra-day credits, the amounts of which are determined by the Central Bank, to entities participating in settlement, payment and compensation systems in accordance with section 30 of Act No.118/AN/11/6th L or any other provision successively amending this provision. Sufficient guarantees must be granted to the Central Bank for this purpose; and
f. Acting as a Centralized Depositary for Government Titles.
SECTION 5: COOPERATION WITH OTHER AUTORITES
Article 4: The Central Bank shall cooperate with other competent public bodies whose responsibility is to regulate and monitor financial institutions and other entities directly or indirectly involved in the provision and operation of payment services in the Republic of Djibouti, or to regulate, control and monitor the capital markets of the country. In this regard, the Central Bank has the authority to conclude memorandums of understanding.
Article 5: The Central Bank has the power to cooperate with other monetary authorities and international organizations responsible for regulating and monitoring payments. This also includes the authority to conclude memorandums of understanding.
SECTION 6: CREATION OF THE NATIONAL COUNCIL OF PAYMENT SYSTEMS
Article 6: The Central Bank has the power to establish a National Council of Payment Systems (hereinafter referred to as “the Board”) by way of instruction.
Article 7: The Commission's objective is to advise the Central Bank on the regulation and monitoring of the national payment system, including, in a non-exhaustive manner, the creation of operational and technical standards and other considerations related to payment services, compensation and payment and securities settlement.
Article 8: The Central Bank shall enact the relevant measures to define the Council's charter, which shall include, in a non-exhaustive manner:
(a) Membership and membership of the Council
(b) The scope and overall objectives
(c) Sources of the operational budget of the Council
SECTION 7: LICENCE PRINCIPLE
Article 9: No one may offer payment services or manage a system unless duly authorized to do so by the Central Bank. The powers of the licence in the granting of a licence also provide for the suspension or revocation of the licence in certain circumstances.
Article 10: To obtain a licence from the Central Bank, the applicant may be required to have a minimum capital. The amount of capital is defined based on the proposed type of service, the average value of payments, the total value and other factors that the Central Bank considers appropriate.
Article 11: The Central Bank may substitute the licensing requirement for a simple registration in the event that the provider proposes payment instruments that do not involve specific market risks or that it may not compromise competitiveness.
Article 12: Banks that already offer payment services under a general banking licence are not required to obtain a new licence to offer payment services or to issue new payment instruments under this Act. However, they are required to comply with operational requirements, reporting and communications that may be required by the Central Bank, and are also subject to the monitoring requirements of entities authorized under this Act. They are required to obtain a license to manage systems.
Article 13: In order to obtain a licence, a request must be submitted to the Central Bank, in accordance with the terms and conditions set out in the regulations issued by the Central Bank in this regard, upon payment of the one-time costs prescribed by the Bank.
Article 14: A licence or right acquired under this Act, in whole or in part, is not transferable except in the cases prescribed by the Central Bank; any transfer that contravenes this law is considered null.
Article 15: A licence granted under this Act may be renewed in this manner and subject to the payment of such fees and/or other payments as prescribed by the regulations and, in the absence of regulations, under the administrative or other directives issued by the Central Bank.
Article 16: For the purposes of this Act, the Central Bank has the power to amend the conditions of a licence granted under this Act by substitution, addition, omission or any other amendment that it considers appropriate. When the Central Bank voluntarily decides to make amendments to the conditions of a licence, it must serve a notice to the licensee to inform the licensee of the reasons for the proposed amendment, and grant it a 15-day period, during which the licensee may submit its comments on the proposed amendment. When receiving any comments, the Central Bank shall consider them and decide whether to validate or amend the proposed amendment.
Article 17: The Central Bank may, at the request of the licensee, amend the conditions of a licence if it considers that the proposed amendment is justified and relevant.
SECTION 8: INDIVIDUAL AND GENERAL MEASURES OF CENTRAL BANQUE
Article 18: The Central Bank may, at any time, recommend general standards and criteria by regulation or recommendations to ensure the operation of payment services or the proper operation of systems; these general measures may be addressed to all entities or a specific category.
Article 19: At any time, the Central Bank may issue directives to payment service providers or licensed system operators on aspects of governance, management, operation, customer relationship with systems; and any other aspect that promotes the application of this Act.
Article 20: As part of the exercise of its functions under this Act, the Central Bank may, if it considers it necessary, examine, with or without written notice, the premises, apparatus, equipment, machinery, accounting books or any other document, account or transaction of a participant in the payment system, an authorized operator or a transmitter of payment instruments, as well as all of its establishments in the country or internationally.
SECTION 9: SYSTEM REGLES
Article 21: Each operator of a system must define a minimum of written rules for governance, management and operation for the system it manages, including rules for managing the risk of liquidity, credit and settlement, rules for defining the time when the payment and settlement instruction is final, the type of enterprise governance adopted, access, emergency devices and operational risk, the rights and obligations of the participants and of the operators. These rules must comply with the requirements of this Act and all rules, regulations, directives or other orders issued by the Central Bank for this purpose.
Article 22: If it considers it necessary, the Central Bank may amend or repeal the operator's rules, in accordance with the provisions of Article 20, as long as:
(a) the amendment or repeal is in the public interest;
(b) that respects the interests of current system participants;
(c) that respects the interests of persons wishing to have access to the system;
The Central Bank may also decide on any other issues it considers relevant.
Article 23: No operator can make changes to the system if they are likely to have an impact on the structure, operation or administration of the system, without having:
a. obtained prior approval from the Central Bank; and
b. issued at least 30 days notice to system participants following the validation of the Central Bank.
Article 24: Notwithstanding what is stated in Article 22, the Central Bank may allow the operator to make changes to an approved system without notifying the participants and without requesting the operator to make a notice of more than thirty (30) days, in accordance with paragraph (b) in Article 23, in the interest of monetary policy, financial stability, or simply in the public interest.
Article 25: The Central Bank may issue directives regarding a part or all of the themes of this section; in the event of a dispute between a rule, instruction, direction, agreement or direction established under this Act, these directives shall prevail.
SECTION 10: ACCESS TO SYSTEMS
Article 26: The rules on access to systems must be objective, non-discriminatory and proportionate; these rules must also not interfere with the said access other than to protect themselves against certain risks (risks of settlement, operational risks or business risks) and to protect the financial resources and operational stability of the payment system.
SECTION 11: EXTERNALIZATION OF ACTIVITIES
Article 27: If an operator or payment service provider wishes to outsource certain operational tasks, they must inform the Central Bank.
Article 28: The outsourcing of important operational tasks must in no way compromise the quality of the internal control of the operator or provider or the ability of the Central Bank to ensure compliance with all of the obligations provided for in this Act.
Article 29: For the purposes of section 27, an “operational task” is considered essential when a breach of its execution is likely to jeopardize compliance with the requirements of the terms of the operator's or service provider's licence, financial position, reliability or continuity of its services.
Article 30: The Central Bank must ensure that operators or service providers who decide to outsource certain key operational functions comply with the following conditions:
(a) outsourcing should not result in the delegation of management responsibilities;
(b) the relationship and obligations of the issuer to users for any payment instrument must not change;
(c) the conditions under which the payment service provider or operator must comply to obtain and maintain their licence by observing this Act shall not be compromised; and
(d) no other condition subject to the granting of the licence shall be repealed or amended.
SECTION 12: REVIEWS
Article 31: When a person wishes to offer payment services, especially when they are connected to a payment instrument to clients through an agent, the individual must provide the following information to the Central Bank:
(a) the name and address of the agent;
(b) a description of the internal control mechanisms that will be used by agents to comply with the money laundering and terrorist financing directives; and
(c) the identity of directors and persons responsible for the management of the officer responsible for the delivery of services and the evidence that they are persons worthy to carry out their responsibilities.
Article 32: When the Central Bank obtains the information set out in section 30, it shall have the contact information of the officer in a register made available to the public. No agent can carry out activities within the agency before being registered in this registry.
Article 33: Before registering the agent, the Central Bank may make further steps to verify the data provided, if it appears to be false.
Article 34: Once these verification measures are performed, if the Central Bank is not satisfied with the accuracy of the information provided, it must refuse to register the agent.
Article 35: The principal must ensure that agents acting on his behalf inform clients of their status as agents working on behalf of the principal.
SECTION 13: RESPONSIBILITY
Article 36: When payment service operators or providers trust third parties to carry out operational tasks, they must take appropriate measures to ensure that the requirements of this Act are met.
Payment service providers and operators remain fully responsible for the actions of their employees, agents, branches or entities to which the activities are outsourced.
SECTION 14: LAB/CFT LEGISLATION
Article 38: Payment service providers and operators of the approved system must meet the requirements and comply with the anti-money-laundering (LAB) and anti-trafficking (CFT) procedures and the regulations and other recommendations adopted by the Central Bank for this purpose.
Article 39: They must also ensure that any third party or agent acting on their behalf meets the requirements mentioned.
SECTION 15: CONSERVATION OF DOCUMENTS
Article 40: The Central Bank as part of its functions, system participants, system operators and payment service providers are required to retain all the supporting documents they obtain in the course of their operation for a period of 7 years from the date of creation of a file.
Article 41: The preservation of documents under section 40 may be by electronic means, in accordance with section 29 of this Act.
SECTION 16: ACCES AND DIVULGATION OF INFORMATION
Article 42: Any operator participating in the payment system or service provider must be able, if requested by the Central Bank, to provide all information requested and be able to communicate to the auditor designated by the Central Bank the books, accounts, accounts, cash instruments, securities, supporting documents and any documents relating to its activity or activity of its subsidiaries for the purposes of the inspection.
Article 43: However, the information is obtained by the Central Bank under the provisions of section 42, so it is not directly or indirectly disclosed to a third party, except:
(a) for the purpose of applying any of the terms of this Act;
(b) to protect the financial integrity, proper functioning or security of the system, if any;
(c) where the data is transmitted to a recipient legally authorized to obtain such information;
(d) in a court decision; or
(f) in respect of the obligations of the Republic of Djibouti with respect to international agreements.
Article 44: The Central Bank may conduct audits or contract the services of independent auditors to audit accounts, books, records and other records of a system operator, its participants, or a payment service provider. Where applicable, each of these entities must do its best to enable the Central Bank or its auditors to conduct the audit.
SECTION 17: ADMINISTRATIVE RIGHTS AND FRAIS
Article 45: The Central Bank may require operators and participants of systems or service providers to pay fees or fees to defray its direct and indirect costs associated with its monitoring and regulatory tasks.
Article 46: The Central Bank may also charge fees or fees for the provision of operational services and/or infrastructure in accordance with section 4 of this Act.
INFRACTIONS, CORRECTIVE MEASURES
SECTION 18: INFRACTIONS AND CORRECTIVE MEASURES
Article 47: The corrective measures and penalties for the offences described in this section shall be determined on a case-by-case basis by the Central Bank. The measure must be proportionate to the severity of the offence, its effect on systemic risk, the stage at which it was detected, in addition to knowing whether it was knowingly confessed by its perpetrator, and the most appropriate measure to remedy the offence.
Article 48: The Central Bank may take or impose one or more of the following administrative measures against an operator of the approved system, one of its participants, managers or employees, if it determines that one or more of them committed a violation: (i) of a provision of this Act; or (ii) of any of the measures enacted by the Central Bank under this Act:
(a) To send written warnings;
(b) To issue in writing cessation and forbearance orders to commit these offences and apply a corrective action;
(c) In writing, order to perform measures to comply with the Directive;
(d) Impose restrictions or fines up to 100,000 FDJ per day for each day the offence continues;
(e) temporarily suspend officials, managers, employees or perpetrators of the offence of their duties or consign them; or
(f) Suspend or revoke the license of an operator or payment service provider, or the authorization of a participant.
Section 19: Criminal offences and sanctions
Article 49: In the event that an administrator, manager or employee of a system operator or participant:
(a) Conducts the proper execution of an auditor under this Act or inspection by an inspector duly authorized by the Central Bank;
(b) Damage, destroyed, altered or falsified accounts, books and records of an authorized system operator or participant;
(c) Knows false information or fails to enter key elements in the accounts of an approved system, with the firm intention to deceive;
The perpetrator of the offence is liable to a fine of 5,000 000 FDJ to 15,000 000 FDJ and/or imprisonment for at least 10 years.
Article 50: Any person who contravenes or hinders the provisions of this Act or the regulations or directives enacted to implement it shall be liable to a fine of up to 10,000 000 CJS and/or a maximum prison sentence of 5 years.
REGULATION, COMPENSATION AND IREVOCABILITY
SECTION 20 : REGULATIONS
Article 51: Any participant in a system must:
(a) Open and maintain settlement accounts in the accounting books of the Central Bank or an authorized regulatory system operator; This includes minimum balances in accordance with the terms and conditions specified by the Central Bank (as a direct participant); or
(b) Designate another participant who has opened a settlement account as a settlement agent to settle the obligations due by the above-mentioned participant to another participant following the day's compensation (as an indirect participant).
Article 52: In the event that a participant designates a settlement officer under the provisions of section 51(b), the participant must, before the settlement officer makes an obligation on behalf of the participant, notify the operator of the designation in writing, by attaching a document confirming that designation.
Article 53: Any participant intending to terminate the designation of his or her regulatory officer must notify the operator in writing at least 7 days prior to the intended date.
SECTION 21: IRREVOCABILITY OF PAYMENT
Article 54: Any system shall establish the rules for the purpose of its activities, in accordance with the provisions of this Act, and as prescribed by the rules, regulations or directives issued by the Central Bank. This includes the rules establishing the irrevocable character of the orders once they are entered into the system, except for special conditions.
Article 55: The seizure of order or payment made under the provisions of section 54 cannot be revoked, reversed, or suspended, not even in the case of insolvency or bankruptcy proceedings, not even if the action falls on the basis of a similar law and whose purpose is the same. In addition, the seizure of order or payment is not subject to a provision of the law or to an order of an administrative or judicial authority giving rise to a stay of that payment.
SECTION 22: GARANTIE DE PAYMENT ET OBLIGATION
Article 56: The rights and remedies of an operator, participant, clearing house, central counterparty and any other third party in the system or the Central Bank with respect to the guarantees granted as a security right to payment or performance of an obligation contracted in a system may not be affected by insolvency or bankruptcy or any other similar law for the purpose and in effect. These rights and remedies may not be subject to a restraining order or provision as to the ability of creditors to exercise rights and remedies with respect to the guarantee.
LIQUIDATION AND REDRESSMENT OF THE OPERATOR
or a member of the system
SECTION 23 : THE CENTRAL BANQUE DOIT ETRE NOTIFIED OF A LIQUIDATION PROCEDURE
Article 57: Where an operator or participant of an approved system is placed under liquidation or is subject to recovery, the operator or participant referred to in the winding-up or recovery order or decision shall, as the case may be, file without delay a copy of the order or decision with the Central Bank.
SECTION 24: INTERDICTION
Article 58: Any operator or participant who is subject to liquidation or recovery proceedings or who submits a voluntary dissolution decision shall then be prohibited from operating or participating in a system until the disposition is terminated.
SECTION 25: LIQUIDATION OR REDRESSMENT OF A PARTICIPANT TO DO NOT FURT THE IREVOCABILITY OF PAYMENT
Article 59: Notwithstanding any provision contrary to a legislative text relating to insolvency or bankruptcy proceedings, the liquidation or recovery of a system participant shall not affect the purpose or irrevocability of a seizure of order or payment, which is final and irrevocable under sections 53 and 54 of this Act, before a copy of the central order or decision in question has been filed.
SECTION 26: CENTRAL BANQUE REGLES AND AGREED SYSTEMS TO LIQUIDERS
Article 60: If an institution that is part of a system is placed under liquidation or recovery or is declared insolvent by a court, any provision contained in a written compensation agreement related to the participant, or any rule and practice of compensation applicable to the system, shall apply to the liquidator or administrator, as the case may be, to the participant concerned in respect of any obligation of payment or settlement:
(a) that was determined by compensation prior to the liquidation decision or the recovery order as the case may be; and
(b) that is to be settled on or after the day on which the winding-up or recovery order or settlement is terminated on or after the liquidation or recovery date, if any.
Article 61: Section 60 of this section applies notwithstanding any provision to the contrary in any other law in force in the Republic of Djibouti.
SECTION 27: PRESERVATION OF HUMAN RIGHTS
Article 62: The provisions of this section shall not restrict or prevent any person from asserting their rights under the law until such rights affect the purpose of the payment instruction, the regulation, or the validity and enforceability of a compensation agreement concluded under that Part.
SECTION 28: CONFLIT IN THE PROVISIONS OF INTERNATIONAL LAW
Article 63: In the event of insolvency of a foreign participant, his/her rights and obligations relating to the regulation are governed by the laws of the Republic of Djibouti.
Article 64: The rights and obligations of a participant in a foreign system are governed by the laws governing this system abroad.
ELEMENTS ON BASE
SECTION 29: ELECTRONIC AND OPTICAL REVIEW
Article 65: The existence, content and timelines of any transfer order, its seizure in a system and its enforcement are always admissible evidence, whether at the civil, commercial, criminal or administrative level, that the transfer order is made for the benefit of participants or third parties, in writing or on a sustainable, electronic, optical or printed format of the electronic or optical document, in order to ensure its traceability.
SECTION 30: REVIEW OF ELECTRONIC AND OPTICAL ARCHIVES
Article 66: Records of a system, operator, payment service provider, issuer of payment instruments or participant may be maintained on a sustainable basis to ensure traceability in an optical or electronic format or by printing the electronic or optical document.
SECTION 31 : PRESENTATION OF ELECTRONIC SUBSTANCES
Article 67: A bank may decide to submit a cheque for payment to the Bank on which the cheque is drawn by transmitting the key elements of the cheque electronically or otherwise, rather than presenting the physical cheque.
Article 68: The presentation of an electronic cheque for payment must not necessarily be done at the prescribed place or during working hours.
Article 69: If, prior to the closure of the offices on the next business day, following the presentation of an electronic cheque, the Bank on which the cheque is drawn requests the issuing Bank to submit the physical check:
(a) the electronic presentation of the cheque is not considered
(b) the electronic presentation of the cheque does not apply as part of a subsequent presentation of the cheque.
Article 70: Any request for section 69 above relating to the presentation of a cheque does not constitute a refusal to pay the cheque.
Article 71: If the presentation of a cheque is made in electronic format, the Bank that gave the cheque and the Bank on which it is drawn are subject to the same obligations in the collection and payment of the cheque, as if the physical cheque had been submitted for payment.
Article 72: For the purpose of clarifying this section, the key elements of a cheque are:
(a) the signature;
(b) the serial number of the cheque;
(c) the bank identification code on which the cheque is drawn;
(d) the account number of the banker of the cheque, and;
(e) the amount of the cheque entered by the cheque shooter.
ELECTRONIC VIREMENTS AND MONNAIA
SECTION 32: CENTRAL BANQUE
Article 73: Pursuant to the provisions of this Act, and in accordance with any other law in force relating to electronic transactions, the Central Bank shall issue relevant regulations, instructions and other measures within the framework of its powers in order to be able to cover all the issues raised with respect to orders of payment and transfers made by electronic messages, in particular with regard to the protection of users with regard to electronic payment instruments. These measures are complementary to those of this Act and should not interfere with it.
SECTION 33: TRANSPARENCE OF FRAIS
Article 74: The measures recommended by the Central Bank pursuant to section 32 require that any payment service provider that requires costs to its customers to make an electronic transfer must notify them in advance, in accordance with sections 76 and 77, including:
(a) fees apply; and
(b) the amount of these costs.
Article 75: The notice required under section 74 regarding any charges must be clearly displayed in the premises where the customer applies for electronic transfer.
Article 76: The notice referred to in section 75 regarding these costs must appear if requested by the Central Bank.
Article 77: A customer wishing to make an electronic transfer is entitled not to pay any fees in the absence of the notice required in accordance with the provisions of section 74, unless the customer has received this notice (see sections 75 and 76) and decides to complete the transaction after being informed of the terms and conditions.
SECTION 34: DISCUSSION
Article 78: The terms and conditions of electronic transfers involving a customer's account must be clearly communicated to the client by the payment service provider when the payment service provider wishes to place a transfer order in accordance with the instructions of the Central Bank.
Article 79: This information should include the following:
(a) the client's liability for unauthorized electronic transfer and the need to report without delay the loss, theft or fraudulent use of a card, access code or any unauthorized access occurrence;
(b) the telephone number of the person to be notified in case the client considers that an unauthorized electronic transfer has been or is likely to be made;
(c) the type and nature of electronic transfers that the client may make, including restrictions on the frequency or amount of such transfers;
(d) fees payable for electronic transfers or authorized to do so;
(e) the right of the customer to interrupt the payment of a pre-authorized electronic transfer and the procedure to commence the order of interruption of payment;
(f) the right of the client to receive information on electronic transfers;
(g) the responsibility of the Bank or payment service provider to the client;
(h) the circumstances under which the Bank or other payment service provider is required, in the normal course of business, to disclose information relating to the client's account to third parties; and
(i) the customer's notice that fees may be required to effect a transfer from an ATM, electronic terminal or any other device that is not operated by the card issuer.
Article 80: The bank or any other payment service provider shall periodically notify the customer in writing or by any other means indicated by the Central Bank, at least twenty-one (21) days before the effective date, of any major change in the terms of the account of the client being the subject of a disclosure of information, unless that change is to be applied immediately in a manner that ensures or restores the security of an electronic transfer system or account of a customer.
SECTION 35: ELECTRONIC MONNAIA EMISSION
Article 81: In addition to the general requirements set out in this Act with respect to obtaining a licence to practise as a payment service provider, an applicant must be able to justify that the following conditions are met:
(a) The award of electronic currency does not involve the granting of credit.
(b) The electronic currency must be returned against exchange of the equivalent in Djibouti francs or another highly liquid currency or assets accepted by the Central Bank.
(c) Electronic currency issuers must be able to provide statistics on the credited electronic currency and the values acquired in their periodic financial statements; They must also be able to provide the Central Bank with reliable and relevant data to monitor and control the quantity and speed of electronic currency supply in the economy.
(d) Issuers are required to redeem the value of the electronic currency in the central bank's currency, equivalence when the application is made. Management of the underlying coverage and redemption of the electronic currency value by the issuer to the account holder must be clearly defined.
SECTION 36: RULES OF DIFFERENDENCE
Article 82: Any dispute between the operators and/or the participants of a system on any matter relating to this Act may be referred to arbitration by a court of arbitrators designated in accordance with sections 83 and subsequent or subject to the courts of common law of the Republic of Djibouti.
Article 83: If the dispute:
(a) Implicates only two parties, each party has the right to appoint an arbitrator, and both parties may jointly designate a third party, which shall assume the presidency of the court.
(b) If the dispute involves three or more parties, each party has the right to appoint an arbitrator and all parties shall jointly appoint an additional arbitrator, who shall serve as the chair of the court.
Article 84: If, within thirty (30) days after receipt of the request for arbitration, a party has not designated an arbitrator or, within thirty (30) days for the purpose of appointing arbitrators, the parties have not designated the third arbitrator or the additional arbitrator (as shown in the case of a figure) any party to the dispute may request that the President of the Court of First Instance in the form of the referees make such designation.
Article 85: The proceedings of the court shall be determined by the arbitrators, but the president of the court has full powers to resolve all procedural matters in case of disagreement.
Article 86: A majority vote is sufficient to reach a decision, which is final and binding on the parties.
Article 87: The president of the court has the right to vote, and in the event of equality, his voice counts.
SECTION 37: PROTECTION OF ACTS
Article 88: No action or other legal proceedings may be brought against the Central Bank or its agents and employees in respect of an act done in good faith under this Act.
SECTION 38: TRANSITIONAL PROVISIONS
Article 89: Banks and/or other operators and participants of the system or their administrators who operate on the effective date of this Act must comply with their (i) organization (ii) administration and (iii) operations to the requirements of this Act within six months of the effective date of this Act.
Article 90: For banks and/or other operators and participants of the system or their administrators, including (i) the organization (ii) the administration, or (iii) the transactions are not in accordance with one or more aspects of the requirements of the measures enacted by the Central Bank in accordance with this Act, then the said Bank or the said system or operator shall comply with the requirements of the measure within the time specified by the Central Bank.
SECTION 39: ABROGATION
Article 91: This Act, which repeals all previous provisions to the contrary, will be published and enforced as the State Law.