Financial Services Commission (Amendment) Act, 2021

No. 14 of 2021 VIRGIN ISLANDS FINANCIAL SERVICES COMMISSION (AMENDMENT) ACT, 2021 ARRANGEMENT OF SECTIONS Section 1…Short title and commencement. 2…Section 54A amended. 3…New section 54B inserted.

2 No. 14 of 2021 Financial Services Commission (Amendment) Act, 2021 Virgin Islands I Assent (Sgd.) John J. Rankin, CMG Governor. 7 th May, 2021 VIRGIN ISLANDS No. 14 of 2021 An Act to amend the Financial Services Commission Act, 2001 (No. 12 of 2001) and for other matters connected therewith. [Gazetted 13th May, 2021] ENACTED by the Legislature of the Virgin Islands as follows:

1. (1) This Act may be cited as the Financial Services Commission (Amendment) Act, 2021. (2) This Act shall, subject to subsection (3), come into force on such date as the Minister may, by Notice published in the Gazette, appoint. (3) Section 3 shall be deemed to have come into force on the 17th day of March, 2017, but it shall not, in relation to the filing of a document, apply to a licensee or other person who has already paid a penalty for a failure to file the document within a prescribed period.
2. Section 54A of the Financial Services Commission Act, 2001 (hereinafter referred to as the “principal Act”) is amended – (a) in subsections (1), (3), (4) and (11), by inserting after the word “licensee” wherever it occurs, the words “or other person”; (b) in subsection (6) (b), by inserting after the word “paid”, the words “immediately or”; Short title and commencement. Section 54A amended. No. 12 of 2001

3 (c) by repealing subsection (10) and substituting the following new subsection – “(10) Subject to section 54B (1), the liability of an authorised or a registered agent under this section does not absolve a licensee or other person from any liability for a breach or an offence committed by the licensee or other person.”; and (d) by repealing subsection (12) and substituting the following new subsection “(12) This section and section 54B apply to an authorised representative, insurance manager or any other person, who acts in the capacity of an agent with respect to a licensee or other person, appointed under this Act or any financial services legislation, as if the reference in this section and section 54B to “authorised or registered agent” were a reference to such authorised representative, insurance manager or other person acting in the capacity of an agent.”. 3. The principal Act is amended by inserting after section 54A, the following new section 54B. (1) Where a licensee or any other person is liable to a monetary penalty under this Act or a financial services legislation for a failure to file a document within a prescribed period and the failure is attributable either wholly or partly to – (a) the default of an authorised or a registered agent of the licensee or other person; or (b) an act of God, the Commission may, if satisfied that the conditions specified in subsection (3) have been met and justify a waiver, waive the application or imposition of the penalty prescribed for the failure in relation to the licensee or other person. (2) An authorised or a registered agent shall, where it is required to file a document or perform some other action on behalf of a licensee or other person under this Act or a financial services legislation, forthwith notify the licensee or other person – (a) if the authorised agent or registered agent has failed to file the document or perform the action in compliance with this Act or the New section 54B inserted. “Waiver of penalty.

4 financial services legislation concerned, the fact of that failure; and (b) provide the reason or reasons for the failure to file the document or perform the action concerned. (3) The conditions referred to in subsection (1) are that (a) in the case of a failure attributable wholly or partly to the default of an authorised or a registered agent – (i) the licensee or other person submits an application in writing requesting a waiver of the penalty; (ii) the licensee or other person describes the circumstances giving rise to the failure and who is responsible for the failure, including, where the licensee or other person is only partly responsible for the failure, identifying that part for which it is responsible; (iii) the authorised or registered agent of the licensee or other person confirms in writing that the failure is attributable wholly or partly to the default of the authorised or registered agent; (iv) where the failure is only partly attributable to the authorised or registered agent, an explanation in writing from the authorised agent or registered agent identifying the part attributable to it and the part attributable to the licensee or other person; and (v) the information required under sub￾paragraphs (i) to (iv) are set out in an affidavit sworn to by the licensee or other person, except that the

5 information required under sub￾paragraph (iii) may be omitted if the authorised or registered agent has denied responsibility for any failure; or (b) in the case of a failure attributable to an act of God in circumstances where the required action to avert the failure rests with the licensee or other person or with the authorised agent or registered agent, the licensee or other person or the authorised or registered agent, as the case may be – (i) describes in writing the nature of the act of God that gave rise to the failure; (ii) describes what aspects of its business was affected and to what extent, thereby giving rise to the failure; and (iii) provides an indication as to when it will rectify the failure (if the failure has not already been rectified). (4) Where an authorised or a registered agent denies that the failure to file a document within a prescribed period is attributable to it, it shall so indicate in writing. (5) Where the Commission, after considering an application under subsection (1) which complies with the requirements of subsection (3), including subsection (4) (if applicable), forms the opinion that the failure to file a document within a prescribed period is attributable wholly or partly to the default of – (a) an authorised or a registered agent, the Commission may, without prejudice to any penalty it may impose under section 54A (1), (2) or (3) – (i) suspend the authorised agent or registered agent from taking on new business for such period and on such

6 conditions as the Commission may determine; (ii) direct the licensee or other person to change its authorised or registered agent and seek the Commission’s approval of a new authorised or registered agent; (iii) direct the authorised or registered agent to make such changes within the authorised or registered agent as the Commission deems fit to prevent any recurrence of the failure; or (iv) take such other action, including enforcement action, against the authorised or registered agent as the Commission considers fit; or (b) a licensee or other person, the Commission may– (i) require the licensee or other person to pay the full penalty applicable for the failure; (ii) require the licensee or other person to pay such portion of the penalty applicable for the failure as the Commission considers fit; or (iii) waive the imposition of any penalty if the Commission is satisfied that the circumstances of the failure justify such a waiver. (6) Where any matter is required under this section to be in writing, such matter shall be addressed and submitted to the Commission. (7) An authorised or a registered agent who fails to comply with subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding ten thousand dollars.”.

7 Passed by the House of Assembly this 22nd day of April, 2021. (Sgd.) Neville A. Smith, Deputy Speaker. (Sgd.) Phyllis Evans, Clerk of the House of Assembly.