AN ACT ADOPTING THE NEW PAYMENTS SYSTEM LAW OF LIBERIA

APPROVED JUNE 5, 2014

PUBLISHED BY AUTHORITY
MINISTRY OF FOREIGN AFFAIRS
MONROVIA, LIBERIA

PRINTED AUGUST 20, 2014

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TABLE OF CONTENTS

PREAMBLE	4
Part I - Definitions	4
Article 1<br>Definitions	4
Part II - Establishment and Oversight of Systems	7
Power to establish and designate systems	7
Revocation of a designation	10
Internal rules of designated systems	10
Access	10
Oversight of designated systems	11
Standards for designated systems	12
Directions to participants in designated system	12
Prohibition against operating undesignated systems	13
Prohibition against issuing or managing payment instruments and/or providing any other payment services without CBL authorization	13
Systemic risk	14
Retention of records	15
Meaning of public interest	15
Part III - Transparency	16
Transparency	16
Prior Information	16
Subsequent Information	16
Part IV - Minimum Obligations	17
Right to negotiate	17
Time limits	17
Availability of funds	17
Delay attributable to originator or beneficiary	18
Other rights	18
Obligation to transfer full amount	18
Refund in the event of non-execution	18
Protection of data of customers	19

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Use of agents in the execution of transfers

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Part V - Finality	19
Finality	19
Irrevocability	20
Settlement	20
Failure to settle	20
Collateral for payment and settlement obligations	20
Part VI - Admissibility of Evidence	21
Admissibility of evidence	21
Part VII - Winding down and Administration of Participants in CBL and Designated Systems	22
CBL and operator of relevant system to be notified of winding down, etc	22
Winding down or administration of participant, etc	22
Rules of CBL and designated systems to bind liquidators, etc.	22
Priority of certain instructions on winding down of participant	23
Part VIII - Resolution of Disputes	24
Disputes	24
Resolution of disputes	24
Part IX - General and Supplementary	25
Consultation obligations	25
Notification obligations	25
Power and authority of the CBL under this act	25
Power to publish by other means	26
Power to Delegate	26
Preservation of Secrecy	26
Use of confidential information for personal gain	27
Issuance of cheques against insufficient funds	28
General offence and penalty	28
Protection for actions done in good faith	29
Regulations	29
Savings and Transitional Provisions	29
Entry into Force	30

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PREAMBLE

WHEREAS, the Government of Liberia through the Central Bank of Liberia (CBL) is desirous of establishing an appropriate legal framework for the oversight and regulation of payments, clearing and settlement systems, including the settlement of securities, as a means of promoting efficiency and stability in the financial system in Liberia;

WHEREAS, such payments, clearing, and settlement systems are necessary for integrating the Liberian economy into the regional and international financial system; and

WHEREAS, the CBL has the statutory mandate to put into place policy measures and guidelines that shall strengthen the Liberian financial market infrastructure through providing sound and efficient payments, clearing and settlement systems as well as services that may evolve to affect the growth and development of the Liberian economy as may be necessary.

Now therefore, it is enacted by the Senate and the House of Representatives of the Republic of Liberia in Legislature Assembled:

PART I

DEFINITIONS

Article 1

Definitions

1.1 For the purpose of this Statute, unless the context otherwise requires:

• "Access" as used in Articles 5 and 6 means the eligibility or entitlement of a person to become a participant in a system as a user of that system;
• "Beneficiary" means the final recipient of a transfer for whom the corresponding funds are made available in an account to which one has access;
• "Bilateral netting" means an arrangement to net obligations between two parties;

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• "CBL" means the Central Bank of Liberia;
• "Central Securities Depositary" (CSD) means an entity in whose register securities are immobilized, and enabling securities transactions to be finally processed by book-entry. Securities can be held at the CSD either in dematerialized (that is, as electronic records) or physical form. A CSD might also provide custodial and asset services;
• "Clearing" means the process of transmitting, receiving and, in some cases confirming transfer instructions regarding funds, securities or other financial instruments prior to settlement and includes the netting of instructions and the establishment of final positions for settlement;
• "Clearing system" means a set of procedures whereby participants present and exchange information relating to the transfer of funds, securities or other financial instruments to other participants through a centralized system or at a single location and includes mechanisms for the calculation of participants positions on a bilateral or multilateral basis with a view to facilitate the settlement of their obligations;
• "Collateral" means an asset that is delivered by the collateral provider to secure an obligation to the collateral taker. Collateral arrangements may take different legal forms, collateral may be obtained using the method of title transfer or pledge;
• "Court" means the SUPREME COURT OF LIBERIA or any court of competent jurisdiction in Liberia;
• "Financial institution" includes banks and non-bank financial institutions as defined in the CBL legislations of 1999 (Act & FIA) relating to banks and non-bank financial institutions;
• "Gazette" means the Liberian official Gazette as published by the Ministry of Foreign Affairs the Republic of Liberia;
• "Gross settlement" means the settlement of funds or securities transfer instructions on an instruction by instruction basis;
• "Group of companies" means companies or other bodies corporate that are related to each other as holding company and subsidiary, or as subsidiaries of the same holding company;
• "Intermediary institution" means an institution which is neither that of the originator nor that of the beneficiary which participates in the execution of a transfer;
• "Management body" in relation to a designated system, means a body responsible for organizing, operating and managing the system;

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• "Member State" means a Member State of the WAMZ;
• "Multilateral netting" means an arrangement among three or more parties to net their obligations;
• "Netting" means the determination of the net payment obligations or entitlements between two or more institutions participating in a system within the scope of this Act or the determination of the net settlement obligations or entitlements between two or more institutions participating within such system, and "netting provisions", "netting agreements", "netting rules" and "netting practices" shall be construed accordingly;
• "Originator" means a person who orders the making of a transfer to a beneficiary;
• "Payment Instrument" means any instrument, whether tangible or intangible, that enables a person to obtain money, goods or services or to otherwise make payment or transfer money. These include, but are not limited to, cheques, funds transfers initiated by any paper or paperless device (such as automated teller machines, points of sale, internet, telephone, mobiles), payment cards, including those involving storage of money;
• "Payment Service" means any services enabling cash deposits and withdrawals, execution of funds transfers, issuing and/or managing of payment instruments and any other services functional to the transfer of money. The term does not include the provision of solely online or telecommunication services or network access;
• "Payments System" means a system for the processing, clearing and/or settlement of transfers of funds;
• "Participant" means a party who is recognized in the rules of a system as eligible to exchange, clear and settle through the system with other participants either directly or indirectly. A direct participant is a participant in a system who is responsible for the settlement of its own payments, those of its customers and those of the indirect participants on whose behalf it is settling. This includes the operator of a system;
• "Penalty Units" is taken to be a reference to an amount of money equal to the amount obtained by multiplying the amount of penalty units with a fixed sum as determined from time to time in the Regulations;
• "Real-Time Gross Settlement" (RTGS) means a settlement that effects final settlement of funds, payment obligations and book entry of securities and instruments on a real-time transaction-by-transaction basis as these occur during operating hours in a processing day;

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• "Securities" means financial instruments, such as bonds and shares;
• "Settlement" means the act of discharging obligations by transferring funds or securities between two or more parties;
• "Settlement system" means a system for the discharge of payment obligations as well as of settlement of obligations in relation to securities;
• "Systemic risk" means the risk that the failure of one or more participants in a system to meet their payment or settlement obligations may cause other participants to be unable to meet their obligations when due;
• "Transfer" means the sending of funds, securities or other financial instruments or a right relating to funds, securities or other financial instruments from one party to another party by:
  • a) conveyance of funds or physical instruments; or
  • b) accounting entries on the books of a financial intermediary; or
  • c) book entry movements of funds or physical instruments through a designated system, or a CBL system;
• "Transfer instruction" means an order or electronic message requesting the movement of funds, securities or other financial instruments or a right relating to funds, securities or other financial instruments from one party to another by means of book-entry;
• "Treaty" means the Revised Treaty of the Economic Community of West African States as amended;
• "CBL system" means a payments, clearing or settlement system established pursuant to Article 2;
• "WAMZ" means the West African Monetary Zone.

PART II

ESTABLISHMENT AND OVERSIGHT OF SYSTEMS

Article 2

Power to establish and designate systems

In addition to the powers given to the CBL under "An Act to Authorize the Establishment of the Central Bank of Liberia (1999)" the CBL shall have power to:

a) establish, operate, and participate into payments, clearing and settlement systems, subject to such rules as it may from time to time publish; b) act as a Central Securities Depositary for Government securities; c) extend intra-day credit (as determined by the Central Bank itself) to entities that are participating in systems as direct participants conditional upon sufficient collateral; and d) hold cash accounts for operators and direct participants, which may be used for the clearing and settlement of transfers into a system.

2.1 The Central Bank of Liberia may:

(a) designate and oversee any payments, clearing and settlement system subject to the provisions of this Act.
(b) authorise and regulate the issuance and management of payment instruments and/or the provision of any other payment services, subject to such rules as it may from time to time publish.

2.2 Subject to Article 2.3, the CBL may designate different systems:

(a) in respect of different classes of participants; and (b) for the processing, clearing and settlement of different classes of obligations.

2.3 The CBL shall not designate a system unless it is satisfied that:

(a) Only financial institutions approved by the CBL are permitted to become direct participants in the [clearing and/or settlement] system; (b) The system shall fairly represent the interests of all participants in the system; (c) The CBL shall be able to adequately monitor and regulate the system and the activities of its participants to ensure compliance with this Act and any other applicable legislation; (d) The system shall have adequate instruments to mitigate risks, including, but not limited to systemic risks; and (e) The rules and regulations governing the system are fair, equitable and transparent and make adequate provision for:
(i) admitting financial institutions into the system as participants, and regulating and terminating their participation;

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(ii) admitting non Bank financial institutions, issuing and/or managing payment instruments or providing any other payment services as indirect participants. This also includes imposing strict conditions to avoid any increase of risk into the system because of such indirect participation and stipulating the criteria based on which a participant may be authorized to introduce any person as indirect participant. (iii) controlling its participants' use of clearing and settlement systems or operations; (iv) appointing a management body or committee, representative of the participants to organize and manage the system; (v) appointing a system operator to provide clearing processing services to or on behalf of participants; and (f) The management body has ensured provision of a contingency plan in support of the operational clearing and settlement system; (g) The system duly regulates outsourcing of any activities by maintaining any liability for relevant acts of third parties within the management of the system itself and has governance schemes to permit the system always to control outsourced activities

2.4 A designation under Article 2.1 (b)

(a) shall be in writing and addressed to the management body of the system or such persons as the CBL may reasonably believe are the operators of that system; and (b) Has effect until it is revoked.

Article 3

Revocation of a designation

3.1 The CBL may revoke the designation of a system if in the opinion of the CBL, the system is no longer in the public interest or the system no longer fairly represents the interests of all participants in that system.

3.2 The revocation of the designation of a system shall be by notice in writing published in the Gazette; such revocation shall become effective after ninety days upon publication of said Gazette.

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Article 4

Internal rules of designated systems

4.1 The rules governing the establishment and operations of every designated system together with all amendments to such rules shall be kept at:

(a) The CBL; and
(b) The head office of every designated system and shall be open for inspection whereby members of the public may inspect the documents at all times during normal business hours.

4.2 Any amendment to the rules and regulations governing a designated system shall have no effect until approved by the CBL.

4.3 The operators of a designated system shall make rules for the discharge or settling of obligations under the system by way of:

(a) netting;
(b) set-off; or
(c) gross settlement subject to the approval of the CBL.

Article 5

Access

5.1 The CBL may grant financial and other institutions, access to a CBL system where, in its opinion, the participation of those institutions is in the interest of the efficient operation of the system.

5.2 Where, in the opinion of the CBL, such participation shall cease to be in the interest of the efficient operation of the system, the Bank may, by the giving of ninety days notice in writing, withdraw access from the institution concerned as of such date as may be specified in the notice.

5.3 Subject to Article 11, the CBL shall not withdraw access without giving the institution concerned a reasonable opportunity to make representations on the matter or hearing consistent with laws establishing the CBL, the Payments System Act, the Financial Institution Act of 1999, as well as regulations, guidelines, policies, directives of the CBL for the purpose of effective oversight.

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Article 6

Oversight of designated systems

6.1 In oversight of a system designated under Article 2.1, the CBL may:

(a) require information from its operators as to the operation of the system; (b) inspect the premises, equipment, computer hardware, software, any communication system, books of accounts, and any other document or electronic information relating to the system which it may require; (c) require changes to the terms of any rules, agreements or practices pursuant to which the system is operated so as to ensure that the system is operated efficiently and in the public interest; (d) require changes to the rules concerning access to the system so as to ensure that the system is operated efficiently and in the public interest; (e) exercise such other powers as may be prescribed by regulations.

6.2 In addition to any mandatory information required by the CBL, the management body of every designated system, and every participant in that system shall provide the CBL with such reports, returns and other information as the CBL may reasonably require regarding:

(a) the volumes and values of transfer instructions processed, cleared and/or settled in the system; (b) the volumes and values of the participants payment obligations and settlement obligations; and (c) any other information regarding the operation of the system.

6.3 The management body of a designated system shall be required to comply with the CBL’s directives given pursuant to Article 6.1.

6.4 Information and documents obtained by the CBL pursuant to the above powers shall be confidential and treated accordingly, subject to such disclosure as may, in the opinion of the CBL, be required in the public interest.

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Article 7

Standards for designated systems

7.1 The CBL shall, in writing, determine either general or individual standards to be complied with by the management body and participants in a designated system if it considers that determining the standards is in the public interest.

7.2 A standard takes effect on such date as may be specified and continues in force until it is revoked.

7.3 The CBL may, in writing, vary or revoke a standard.

7.4 Subject to Article 7.5, the CBL shall not determine or vary a standard unless it has complied with the provisions of Article 39.

7.5 Article 7.4 shall not apply if:

(a) the CBL considers that there is an urgent need for the determination or variation of the standard; or (b) in the case of a variation, the CBL considers that the variation is of a minor technical nature.

7.6 Where the CBL determines a standard, or varies or revokes a standard, it shall, as soon as practicable, provide notification under Article 39.

Article 8

Directions to participants in designated system

8.1 The CBL may give a directive to a participant in a designated system if the CBL considers that the participant has failed to comply with a standard.

8.2 The directive:

(a) may require the participant to take, or to refrain from, specified action, as the CBL considers appropriate having regard to the failure; (b) must be consistent with any applicable standards; (c) may indicate the time by which, or the period during which, it is to be complied with; (d) shall be given by notice in writing to the participant; (e) hall take effect on the day on which it is given or on such later date as may be specified and shall continue in force until it is revoked.

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Article 9

Prohibition against operating undesignated systems

9.1 A person shall not operate or participate in, an undesignated system or a system whose designation has been revoked.

9.2 Any person who contravenes Article 9.1 commits an offence and is liable on conviction to a fine not less than US$10,000.00 or its equivalent in Liberian dollar as penalty.

9.3 Where the CBL has reasonable grounds to believe that a person has contravened Article 9.1, the CBL may under a warrant issued by a Magistrate enter any premises, examine, and seize the books, accounts and records of such person to confirm whether such person is operating or participating in an undesignated system or a system whose designation has been revoked.

9.4 In the exercise of its powers in Article 9.3, the CBL may take copies of or extracts from any documents, or records examined. The CBL may at its discretion seize any equipment(s) or tool(s) that may be used to facilitate such violation under the strength of the warrant issue under Article 9.3 herein.

9.5 Any person who intentionally obstructs the CBL in the exercise of the powers conferred by Articles 9.3 or 9.4 commits an offence and is liable on conviction to a fine not exceeding US$15,000.00 or its equivalence in Liberian dollar as penalty or to imprisonment for a term not exceeding two years or to both.

Article 10

Prohibition against issuing or managing payment instruments and/or providing any other payment services without CBL authorization

10.1 Subject to Article 10.3, no person other than:

(a) a financial institution, or
(b) a person having obtained an authorization by the CBL under Article 2.1(b), shall, as a regular feature of his business, issue and/or manage payment instruments or provide any other payment service.

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10.2 Any person who contravenes Article 10.1 commits an offence and is liable on conviction to a fine not exceeding US$10,000.00 or its equivalent in Liberian dollar as penalty or to imprisonment for a term not exceeding one year or to both.

10.3 Article 10.1 shall not apply to:

(a) the Post Office Savings Bank;
(b) a person acting as the duly appointed agent of the person to whom the payment is due; or (c) the transmission of money or transfer of instructions between companies which are members of the same group of companies; or (d) any person exempted by the CBL pursuant to Article 10.4.

10.4 The CBL may by notice in the Gazette exempt any person or class of persons from the provisions of Article 10.1, if the CBL is satisfied that such an exemption will be in the public interest and will not cause undue risk to any designated system.

Article 11

Systemic risk

11.1 Where, in the opinion of the CBL,

(a) there is systemic risk, or
(b) any person is engaging in or is about to engage in any act, omission or course of conduct with respect to the system that may result in systemic risk, or is contrary to the public interest in the integrity, effectiveness or security of the system, the CBL may issue a directive in writing requiring any such person:
(i) to cease engaging in the act, omission or course of conduct concerned; (ii) to perform such acts as are necessary to remedy the situation as the CBL may specify; or (iii) to provide the CBL with such information and documents relating to the matters specified in the directive, within such period as the CBL may indicate therein.

11.2 Any person who fails to comply with a directive issued by the CBL pursuant to Article 11.1 shall be liable to pay to the CBL a penalty of not more than US$10,000.00 or its equivalent in Liberian dollars and in the case of non-compliance by a financial institution, every Director, Chief Executive Officer, Partner, Manager or other officer of that institution who fails to take all reasonable steps necessary to secure compliance by the institution with the directive, shall be liable to pay to the CBL a penalty of not more than US$10,000.00 or its equivalent in Liberian dollars. The application of this penalty to an institution is based on 11.1 (a) and to an individual is based on 11.1 (b).

11.3 In addition to the penalty for non-compliance with its directives, the CBL may make an administrative action consistent with regulation issued by the CBL in directing a person or any Director, Chief Executive, Partner, Manager or other officers of a financial institution to comply with the directive in such terms as the CBL may determine; thereby observing the due process of law administratively.

Article 12

Retention of records

12.1 Notwithstanding anything to the contrary in any enactment relating to the retention of records, all records created during the course of operation and administration of a CBL system or a designated system shall be retained for a minimum period of seven years from the date of each particular record.

12.2 Records may be kept in any form including, but not limited to electronic form, as may be approved by the CBL.

Article 13

Meaning of public interest

13.1 In determining, for the purposes of this Part, if particular action is or shall be in, or contrary to, the public interest, the CBL shall have regard to the desirability of systems:

(a) being, in its opinion;
(i) financially safe for use by participants;
(ii) efficient;
(iii) competitive; and
(b) which, in its opinion, do not materially cause or contribute to increased risks to the financial system.

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PART III - TRANSPARENCY

Article 14

Transparency

14. Payment instruments and systems shall be operated and administered transparently, so that users are aware of the conditions upon which transfers will be effected.

Article 15

Prior information

15. Upon request, the provider shall make available to their actual and prospective customers in a readily comprehensible form, information on conditions for execution of transfers, including at least the following:

(a) an indication of the time needed for the funds to be credited to the account of the beneficiary’s institution; (b) an indication of the time needed for the funds credited to the account of the institution to be credited to the beneficiary’s account; (c) details of charges payable by the customer; and (d) details of any complaint and redress procedures available to the customer and arrangements for access to them.

Article 16

Subsequent Information

16.1 Unless expressly agreed to the contrary, subsequent to the execution or receipt of a transfer, providers shall supply their customers with clear information in a readily comprehensible form, including at least the following:

(a) a reference enabling the customer to identify the transaction; (b) the original amount of the transfer; and (c) the amount of all charges payable by the customer.

16.2 Where the originator has specified that the charges for a transfer are to be wholly or partly borne by the beneficiary, the latter shall be informed thereof by the beneficiary’s institution.

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PART IV - MINIMUM OBLIGATIONS

Article 17

Right to negotiate

17. Notwithstanding the minimum obligations applicable to execution of transfers, as specified in this Part, parties may assume greater obligations either through agreement, or through the operation of rules of the system concerned.

Article 18

Time limits

18.1 The originator’s institution shall execute a transfer within the time limit agreed with the originator, or in the absence of express agreement, within the standard time limits applicable to the relevant system.

18.2 Where the agreed time limit is not complied with, the originator’s institution shall compensate the originator by a payment of interest calculated by applying the prevailing 91-day treasury bill discount rate or any such similar instrument that may be used by the CBL for said transaction, to the amount of the transfer for the period from the end of the agreed time limit to the date on which the funds are credited to the account of the beneficiary’s institution.

18.3 Where non-execution of a transfer within the agreed time limit is attributable to an intermediary institution, that institution shall be required to reimburse the originator’s institution in respect of any compensation paid to the originator.

Article 19

Availability of funds

19.1 The beneficiary’s institution shall make the funds resulting from a transfer available to the beneficiary within the time limit agreed with the beneficiary, or in the absence of express agreement, within the standard time limits applicable to the system.

19.2 Where the agreed time limit is not complied with, the beneficiary’s institution shall compensate the beneficiary by a payment of interest calculated by applying the prevailing 91-day treasury bill discount rate to the amount of the transfer for the period from the end of the agreed time limit to the date on which the funds are credited to the beneficiary’s account.

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Article 20

Delay attributable to originator or beneficiary

20. No compensation shall be payable pursuant to Articles 18 and 19 where the originator’s institution or, as the case may be, the beneficiary’s institution can establish that the delay is attributable to the originator or, as the case may be, the beneficiary.

Article 21

Other rights

21. Articles 18 and 19 shall not prejudice any other rights available to persons participating in the execution of the transfer.

Article 22

Obligation to transfer full amount

22.1 The originator’s institution, any intermediary institution and the beneficiary’s institution shall each be obliged to execute any transfer for the full amount thereof, unless the originator has specified that the costs of the transfer are to be borne wholly or partly by the beneficiary.

22.2 Article 22.1 does not limit any rights of the beneficiary’s institution to charge the beneficiary for the administration of his account.

22.3 This Article is subject to the rules of the system concerned.

Article 23

Refund in the event of non-execution

23.1 Subject to Article 23.3 where, after a transfer has been accepted by the originator’s institution, the relevant amount is not credited to the account of the beneficiary’s institution, then without prejudice to any other claim which may be made, the originator’s institution shall refund the originator with the amount of the transfer plus interest calculated by applying the prevailing 91-day treasury bill discount rate or any such similar instrument that may be used by the CBL for said transaction, to

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the amount of the transfer for the period between the date of the transfer and the date of the refund, and the charges relating to the transfer paid by the originator.

23.2 Where the transfer has been made using an intermediary institution, any such institution which has accepted the transfer shall reimburse the originator’s institution against its liability under Article 23.1, and in the event that the intermediary institution itself used another intermediary institution, it shall be reimbursed by that institution accordingly.

23.3 Where the transfer was not completed because of an error or omission in the instructions given by the originator to his institution or because of non-execution of the transfer by an intermediary institution expressly chosen by the originator’s institution; any other institutions involved shall use its best endeavours to obtain a refund of the amount of the transfer, and may be subject to charges for the expenses incurred in connection therewith.

Article 24

Protection of data of customers

24.1 The provider shall ensure that any data on the customer stored in a payment instrument or other device for the purpose of executing transfers shall not be used outside the scope of the service.

Article 25

Use of agents in execution of transfers

25.1 The provider shall ensure that the use of agents to execute transfers and manage payment instruments shall by no means affect the rights of the customer or unduly increase the risks in the use of the instrument.

PART V - FINALITY

Article 26

Finality

26.1 A system shall specify the rules applicable to achieve finality in its operations as provided for in this Part V.