Financial Services Commission (Amendment) Act, 2021

Summary

This Act amends the Financial Services Commission Act, 2001 to change how the BVI Financial Services Commission handles late filing penalties where an authorised or registered agent, or an act of God, is responsible for a licensee's failure to file a document on time. It broadens existing penalty provisions to cover 'other persons' as well as licensees, and inserts a new section 54B creating a formal waiver mechanism and related agent notification duties.

• Extended scope: Section 54A is amended so that references to 'licensee' throughout its penalty provisions also capture 'other persons', and clarifies that an agent's liability does not absolve the licensee or other person of its own liability.
• New waiver regime (section 54B): The Commission may waive a monetary penalty for late filing where the failure is wholly or partly due to the default of an authorised or registered agent, or to an act of God, subject to specified conditions being met.
• Agent notification duty: An authorised or registered agent that fails to file a document or perform an action on behalf of a licensee must forthwith notify the licensee or other person of the failure and the reasons for it.
• Waiver application requirements: A licensee or other person seeking a waiver must submit a written application describing the circumstances and responsibility, supported (in most cases) by a sworn affidavit, with the agent confirming or denying responsibility in writing.
• Act of God claims: Where the failure is attributed to an act of God, the responsible party must describe the event in writing, explain the business impact, and indicate when the failure will be rectified.
• Commission's powers: After considering a waiver application, the Commission may suspend an agent from new business, direct a change of agent, require corrective action, take enforcement action against the agent, or require the licensee to pay all, part, or none of the penalty.
• Offence for non-notification: An authorised or registered agent who fails to notify the licensee of a filing failure as required commits an offence, punishable on summary conviction by a fine not exceeding ten thousand dollars.

The Act commences on a date to be appointed by the Minister via Gazette notice, except that the new section 54B waiver provisions are deemed retroactively effective from 17 March 2017, though they do not apply where a penalty for a filing failure has already been paid.

Key obligations

• An authorised or registered agent must forthwith notify the licensee or other person if it has failed to file a document or perform a required action, and must state the reasons for the failure.
• A licensee or other person seeking a penalty waiver due to agent default must submit a written application describing the circumstances, identifying responsibility, and generally supporting this with a sworn affidavit.
• An authorised or registered agent must confirm in writing whether it accepts or denies responsibility for a filing failure attributable wholly or partly to it.
• A party relying on an act of God to seek a waiver must describe the event in writing, explain the business impact, and indicate when the failure will be rectified.
• An authorised or registered agent who fails to comply with the notification duty under section 54B(2) commits an offence and is liable on summary conviction to a fine not exceeding ten thousand dollars.

Applies to

licensees, authorised agents, registered agents, other persons regulated under financial services legislation, insurance managers, authorised representatives

Deadlines

• such date as the Minister may, by Notice published in the Gazette, appoint: General commencement date of the Act (other than section 3).
• 17th day of March, 2017: Section 3 (inserting new section 54B on penalty waivers) is deemed to have come into force retroactively from this date, except where a penalty for the relevant filing failure has already been paid.

Related documents

• This document amends Financial Services Commission Act (Revised Edition 2020)