Offshore Tax Havens still issue International Banking Licenses
and capital requirements start as low as $25,000.00 for a restricted license issued in a highly respected financial centre.

Regulatory changes during the past few years have left only a few jurisdictions which still issue licenses for new bank startups. Some countries have stopped accepting new applications altogether while others have decided to issue licenses only to branches of internationally established banks. The few jurisdictions which do in fact welcome new private bank startups offer very reasonable qualification and capital requirements.  Minimum capital requirements start as low as $25K for a restricted Class B Banking License and from $250K for an unrestricted international license. Please visit www.offshore-bank-license.com for further details.

 

Anguilla Trusts Act

REVISED STATUTES OF ANGUILLA

CHAPTER T70

TRUSTS ACT

Showing the Law as at 15 December 2000

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

All rights reserved. No part of this publication may be reproduced in any form or by any means (including

photocopying) without the written permission of the Government of Anguilla except as permitted by the

Copyright Act or under the terms of a licence from the Government of Anguilla.

Government of Anguilla

Anguilla

Trusts Act R.S.A. c. T70

15/12/2000 3

TRUSTS ACT

TABLE OF CONTENTS

P

PRELIMINARY PROVISIONS

S

ART 1ECTION

1. Interpretation

2. Application of Act

3. Validity of trust

4. Creation of a trust

5. Duration of a trust and of accumulation of income

6. Restrictions upon validity of a trust

7. Property that may be held on trust

P

THE SETTLOR, BENEFICIARIES AND PURPOSES OF A TRUST

8. Who may be the settlor of a trust

9. Beneficiaries of a trust

10. Nature of a beneficial interest

11. Protective or spendthrift trusts

12. Letters or memoranda of wishes

13. Definition of charitable purpose

14. Trusts for non-charitable purpose

P

PROTECTORS AND TRUSTEES

15. Protector of a trust

16. Who may be the trustee of a trust

17. The number of trustees

18. Appointment of new or additional trustees

19. Appointment of trustee resident in Anguilla

20. Renunciation of trusteeship

21. Resignation or removal of trustees

22. Nature of trustees’ and protectors’ interests

23. Trust company may act by resolution

24. Trustees of more than one trust

25. Dealings by trustees with third parties

R.S.A. c. T70

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P

DUTIES AND POWERS OF TRUSTEES

26. General duties of trustees

27. Duty to supply information and duty of confidentiality

28. Duty of trustees to act together

29. Duty to act impartially

30. General powers of trustees

31. Powers of investment

32. Powers of trustees: Schedule 2

33. Delegation by trustees

34. Reimbursement of expenses

35. Payment of trustees

36. Power to appropriate

37. Power and duty of maintenance

38. Power of advancement

39. Accumulation and maintenance settlements

40. Receipt of parents or guardians

41. Power of appointment

42. Power of revocation or variation

P

TERMINATION OR FAILURE OF TRUSTS

43. Failure or lapse of interest

44. Application of property held on charitable trusts

45. Termination of trusts

46. Termination by beneficiaries

P

VARIATION OF TRUSTS

47. Power to provide for variation of terms of trust

48. Variation of trusts by the Court

P

BREACH OF TRUST

49. Liability for breach of trust

50. Constructive trusts

51. Tracing trust property

52. Beneficiary may relieve or indemnify a trustee

53. Power to relieve trustees from personal liability

54. Power to make beneficiaries indemnify

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ART 4ART 5ART 6ART 7Trusts Act R.S.A. c. T70

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P

POWERS OF THE COURT

55. Jurisdiction of the Court

56. General powers of the Court

57. Application for directions

58. Payment of costs

P

CHOICE OF GOVERNING LAW

59. Governing law

60. Matters determined by governing law

61. Exclusion of foreign law

P

PROVISIONS APPLICABLE TO A FOREIGN TRUST

62. Application of Part

63. Enforceability of a foreign trust

P

VARIANT TYPES OF TRUST

64. Variant types of trust

65. Provisions of variant types of trust

P

OPTIONAL REGISTRATION OF TRUSTS AND EXEMPTION FROM TAXES

66. Facility to register trusts

67. Exemption from taxes

P

SUPPLEMENTAL

68. Regulations

69. Citation

SCHEDULE 1: Authorised Trustee Investments

SCHEDULE 2: Powers of Trustees

 

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TRUSTS ACT

P

PRELIMINARY PROVISIONS

ART 1

Interpretation

1.

“bankrupt”, in relation to a company, includes a company that is insolvent and “bankruptcy” shall be

construed accordingly;

“beneficiary” means a person entitled to benefit under a trust or in whose favour a power to distribute

trust property may be exercised;

“breach of trust” means a breach of a duty imposed on a trustee by this Act or by the terms of the trust

or otherwise imposed on him as trustee by any rule of law or equity;

“company” means a body corporate wherever incorporated;

“Court” means the High Court;

“disposition”, in relation to property, means any form of conveyance, transfer, assignment, lease,

mortgage, pledge or other transaction by which any legal or equitable interest in property is

created, transferred or extinguished and “dispose” shall be construed accordingly;

“family”, in relation to an individual, means his father and mother, his spouse, the father and mother

of his spouse, his brothers and sisters and the brothers and sisters of his spouse, his children

and remoter issue and the spouses of such children and issue;

“formalities”, in relation to a disposition of property, means any documentary or other actions

required generally by the laws of a relevant jurisdiction for all dispositions of like form

concerning property of like nature without regard to—

(a) the fact that the particular disposition is made in trust;

(b) the terms of the trust;

(c) the circumstances of the parties to the disposition; or

(d) any other particular circumstances;

but includes any special formality required by reason that the party effecting the disposition is

not of full age, is subject to a mental or bodily infirmity or is a company;

“functions” includes rights, powers, discretions, obligations, liabilities and duties;

“governing law” means the law governing a trust executed in Anguilla or elsewhere;

R.S.A. c. T70

(1) In this Act—Trusts Act Anguilla

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“he”, “him” or “his”, in relation to a company, includes “it” and “its”, as the case may be;

“heirship right” means any right, claim or interest in, against or to property of a person arising or

occurring in consequence of that person’s death, other than the right, claim or interest created

by will or other voluntary disposition by the person or resulting from an express limitation in

the disposition of the property of such person;

“insolvency” includes the making of an administration order, the appointment of a receiver and the

bankruptcy of any person;

“insurance” includes assurance;

“interest”, in relation to a beneficiary, means his interest under a trust;

“Judge” means a Judge of the Court;

“minor” means a person who has not attained full age under the law of his domicile;

“personal relationship” includes any form of relationship by blood or marriage, including former marriage,

and in particular a personal relationship between two persons that exists if—

(a) one is the child of the other, natural or adopted (whether or not the adoption is recognised

by law), legitimate or illegitimate;

(b) one is married to the other, whether or not the marriage is recognised by law;

(c) one cohabits with the other or so conducts himself or herself in relation to the other as

to give rise in any jurisdiction to any rights, obligations or responsibilities analogous

to those of parents and child or husband and wife; or

(d) personal relationships exist between each of them and a third person;

but no change in circumstances causes a personal relationship once established to terminate;

“personal representative” means the executor or administrator of the estate of a deceased person;

“prescribed” means prescribed by regulation;

“profit” includes gain or advantage;

“property”—

(a) means property of any description, wherever situated, including any share in it;

(b) in relation to rights and interests, includes rights and interests whether vested, contingent,

defeasible or future;

“protective or spendthrift trust” has the meaning ascribed to it by section 11;

“protector” means a person appointed as protector under the terms of a trust and capable of enforcing

it, whether or not he has other functions conferred upon him in relation to the trust;

Anguilla

Trusts Act R.S.A. c. T70

15/12/2000 9

“provisions of this Act” includes the provisions of any order made under it;

“settlor”, in relation to a trust, means each person who directly or indirectly, on behalf of himself or

any other, as owner or as the holder of a power in that behalf, disposes of property to be held

in the trust or declares or otherwise creates the trust;

“terms of a trust” means the written or oral terms of a trust, and any other terms applicable to it under

its proper law;

“trust” means the relationship that exists when a person (known as a “trustee”) holds or has vested in

him, or is deemed to hold or have vested in him, property that does not form, or that has

ceased to form, part of his own estate—

(a) for the benefit of any person (known as a “beneficiary”) whether or not yet ascertained

or in existence;

(b) for any valid charitable or non-charitable purpose that is not for the benefit only of the

trustee; or

(c) for both (a) and (b);

and includes—

(d) the trust property; and

(e) the functions, interests and relationships under the trust;

“trust company” means a company that holds a trust company licence under the Trust Companies and

Offshore Banking Act;

“trust property” means property held on trust;

“trustee” includes a trust company;

“unit trust” means a trust established for the purpose, or having the effect, of providing, for persons

having funds available for investment, facilities for the participation by them as beneficiaries

under the trust in any profits or income arising from the acquisition, holding, management or

disposal of property.

(2) For the purposes of this Act, a company is resident in the place in which it has its registered

office.

(3) Any reference in this Act to an enactment is, unless the context otherwise requires, a reference

to that enactment as amended, extended, re-enacted, or applied by or under any other enactment,

including this Act.

Application of Act

2.

(1) Subject to subsections (2) and (4), this Act applies to trusts created before or after 1st

January, 1995.

R.S.A. c. T70

Trusts Act Anguilla

10 15/12/2000

(2) Sections 1, 3, 6 and 51 and Parts 8 to 10, 12 and 13 apply to all trusts; the other sections of

this Act shall apply only to trusts the proper law of which is the law of Anguilla.

(3) For greater certainty, section 18 of the Limitation Act applies to all trusts.

(4) Where, in the opinion of the Court, the application of this Act to a trust created before 1

st

January, 1995 would likely result in an injustice, the Court may, on application by a person interested

in the trust, instead of making an order under this Act make any order in relation to the trust that it

could have made under the Trustee Ordinance (Cap. 355) or the Trustees’ Relief Act (Cap. 357)

immediately before their repeal, and that order shall be as valid and effectual as if the Ordinance or

Act had not been repealed.

(5) For the purposes of this section, a trust is created at the time at which property is first

received by or vested in the trustee to be held by him in accordance with the terms of the trust.

Validity of trust

3.

Subject to the provisions of this Act, a trust is valid and enforceable in Anguilla.

Creation of a trust

4.

writing (including a will or codicil), by conduct, by operation of law or in any other manner.

(2) A unit trust may be created only by an instrument in writing.

(3) No formalities or technical expressions are required for the creation of a trust if the intention

of the settlor to create a trust is clearly manifested.

(4) A trust respecting land situated in Anguilla, other than a trust arising by operation of law,

is unenforceable unless evidenced in writing.

(1) A trust, other than a unit trust, may be created by oral declaration, or by an instrument in

Duration of a trust and of accumulation of income

5.

of the trust.

(2) The rules of law known as the rules against perpetuities shall not apply to a trust.

(3) For the avoidance of doubt, it is declared that the rules referred to in subsection (2)

include—

(a) the application or effect of those rules in respect of accumulations; and

(b) the rule of law prohibiting trusts of perpetual duration.

(4) The terms of a trust may direct or authorise the accumulation of all or part of the income

of the trust for a period not exceeding the maximum duration of the trust.

(1) An instrument creating or varying a trust may provide for the duration and date of termination

Restrictions upon validity of a trust

6.

with its terms.

Anguilla

(1) Subject to the provisions of this Act, a trust shall be valid and enforceable in accordanceTrusts Act R.S.A. c. T70

15/12/2000 11

(2) A trust shall be invalid and unenforceable—

(a) to the extent that—

(i) it purports to do anything contrary to the law of Anguilla,

(ii) it purports to confer any right or power or impose any obligation the exercise of

which or the carrying out of which is contrary to the law of Anguilla, or

(iii) it has no beneficiary identifiable or ascertainable, unless the trust was created for

a valid charitable or non-charitable purpose; or

(b) to the extent that the Court declares that—

(i) the trust was established by duress, fraud, mistake, undue influence or misrepresentation,

(ii) the trust is immoral or contrary to public policy,

(iii) the terms of the trust, other than a trust for a charitable purpose, are so uncertain

that its performance is rendered impossible, or

(iv) the settlor was, at the time of its creation, incapable under the law in force in

Anguilla of creating such a trust.

(3) A charitable purpose shall be deemed always to be capable of performance.

(4) Where a trust is created for 2 or more purposes of which some are lawful and others are

not, or where some of the terms of a trust are invalid and others are not—

(a) if those purposes cannot be separated or the terms cannot be separated, the trust is

invalid;

(b) if those purposes can be separated or the terms can be separated, the Court may

declare that the trust is valid as to the terms that are valid and the purposes that are

lawful.

(5) Where a trust is partially invalid, the Court may declare what property is to be held subject

to the trust.

(6) Property provided by a settlor and as to which a trust is invalid shall, subject to any order

of the Court, be held by the trustee in trust for the settlor absolutely or, if he is dead, as if it had

formed part of his estate at his death.

(7) Where a trust is created under the law of Anguilla, the Court shall not vary it or set it aside

or recognise the validity of any claim against the trust property pursuant to the law of another

jurisdiction or the order of a Court of another jurisdiction in respect of—

(a) the personal and proprietary consequences of marriage or the termination of marriage;

R.S.A. c. T70

Trusts Act Anguilla

12 15/12/2000

(b) succession rights (whether testate or intestate) including the fixed shares of spouses or

relatives;

(c) the claims of creditors in an insolvency; or

(d) the imposition of any foreign tax or duty.

(8) Subsection (7) shall have effect notwithstanding the provisions of the Reciprocal

Enforcement of Judgments Act.

Property that may be held on trust

7.

(2) A trustee may accept from any person property to be held on trust.

(3) A trustee shall not be bound to accept property to be held on trust but, where a trustee

accepts property subject to the performance of an obligation, the trustee shall be deemed to have

given to the settlor of that property for good consideration an undertaking to perform that obligation.

(4) Where a settlor declares a trust respecting property he does not own at the time of the

declaration, the trust is incompletely constituted at the time of the declaration and no rights or duties

arise under it.

(5) If the settlor subsequently receives property that was the intended subject matter of the

declaration of trust, the Court shall at the instance of the beneficiary or the trustee and, whether the

beneficiary has given consideration for the declaration of trust or not, compel the settlor to transfer

that property to the trustee or to hold that property on the terms of the trust.

P

THE SETTLOR, BENEFICIARIES AND PURPOSES OF A TRUST

(1) Any property may be held by or vested in a trustee upon trust.ART 2

Who may be the settlor of a trust

8.

may be the settlor of a trust.

(2) The settlor may also be a trustee, a beneficiary or a protector of the trust.

(1) Any person who has under the law of Anguilla the capacity to own and transfer property

Beneficiaries of a trust

9.

to some person (whether or not living at the time of creation of the trust) or otherwise by reference to

a description or to a class.

(2) The terms of a trust may—

(a) provide for the addition of a person as a beneficiary or the exclusion of a beneficiary

or the exclusion of a beneficiary from benefit under the trust;

Anguilla

(1) A beneficiary shall be identifiable by name or ascertainable by reference to a relationshipTrusts Act R.S.A. c. T70

15/12/2000 13

(b) impose an obligation on a beneficiary as a condition of benefit under the trust.

(3) Where a trust is in favour of a class of persons then, subject to the terms of the trust—

(a) the class closes when it is no longer possible for any other person to become a member

of the class;

(b) a woman over the age of 65 years shall be deemed to be no longer capable of bearing

a child; and

(c) where the interest of the class relates to income, and no member of the class exists, the

income shall be accumulated and retained until a member of the class exists or the

class closes.

(4) A beneficiary may—

(a) disclaim his whole interest under a trust; or

(b) subject to the terms of the trust, disclaim part of his interest under a trust, whether or

not he has received some benefit from his interest.

(5) Subject to the terms of the trust, a disclaimer—

(a) shall be in writing;

(b) may be temporary; and

(c) may, if the disclaimer so provides, be revoked in the manner and under the circumstances

specified in it.

(6) Where a beneficiary disclaims the whole or part of his interest under a trust the like consequences

shall apply under section 6(6) as if the trust were invalid with respect to that interest or that

part.

Nature of a beneficial interest

10.

(2) Subject to the terms of the trust, the interest of a beneficiary may be sold, pledged,

charged, transferred or otherwise dealt with in any manner whatsoever.

(1) The interest of a beneficiary is personal property.

Protective or spendthrift trusts

11.

(a) subject to termination;

(b) subject to a restriction on alienation of or dealing in that interest or any part of that

interest; or

R.S.A. c. T70

(1) The terms of a trust may make the interest of a beneficiary—Trusts Act Anguilla

14 15/12/2000

(c) subject to diminution or termination in the event of the beneficiary becoming insolvent

or any of his property becoming liable to seizure or sequestration for the benefit

of his creditors;

and the trust shall be known as a protective or a spendthrift trust.

(2) Where any property is directed to be held on protective or spendthrift trust for the benefit

of a beneficiary, the trustee shall hold that property—

(a) in trust to pay the income to the beneficiary until the interest terminates in accordance

with the terms of the trust or a determining event occurs; and

(b) if a determining event occurs and, while the interest of the beneficiary continues, in

trust to pay the income to such of the following, and if more than one in such shares,

as the trustee in his absolute discretion shall appoint—

(i) the beneficiary and any spouse or child of the beneficiary,

(ii) if there is no such spouse or child, the beneficiary and the persons who would be

entitled to the estate of the beneficiary if he had then died intestate and domiciled

in Anguilla.

(3) In subsection (2), a “determining event” means the occurrence of any event or any act or

omission on the part of the beneficiary, other than the giving of consent to an advancement of trust

property, that would result in the whole or part of the income of the beneficiary from the trust

becoming payable to any person other than the beneficiary.

(4) Any rule of law or public policy that prevents a settlor from establishing a protective or a

spendthrift trust of which he is a beneficiary is hereby abolished.

Letters or memoranda of wishes

12.

a memorandum of the wishes of the settlor with regard to the exercise of any functions conferred

on the trustee by the terms of the trust.

(2) A beneficiary of a trust may give to the trustee a letter of his wishes or the trustee may

prepare a memorandum of the wishes of the beneficiary with regard to the exercise of any functions

conferred on the trustee by the terms of the trust.

(3) Where a trust is in favour of a class of persons, a member of that class may give to the

trustee a letter of his wishes or the trustee may prepare a memorandum of the wishes of that member

with regard to the exercise of any functions conferred on the trustee by the terms of the trust.

(4) Where a letter of wishes or a memorandum of wishes is given to or prepared by the trustee

of a trust, the trustee may have regard to that letter or memorandum in exercising any functions conferred

upon him by the terms of the trust, but the trustee shall not be bound to have regard to that

letter or memorandum and shall not be accountable in any way for his failure or refusal to have regard

to that letter or memorandum.

Anguilla

(1) The settlor of a trust may give to the trustee a letter of his wishes or the trustee may prepareTrusts Act R.S.A. c. T70

15/12/2000 15

(5) No fiduciary duty or obligation shall be imposed on a trustee merely by the giving to him

of a letter of wishes or the preparation by him of a memorandum of wishes.

Definition of charitable purpose

13.

shall be regarded as charitable—

(a) the relief of poverty;

(b) the advancement of education;

(c) the advancement of religion;

(d) the protection of the environment;

(e) the advancement of human rights and fundamental freedoms;

(f) any other purposes that are beneficial to the community.

(2) A purpose shall not be regarded as charitable unless the fulfilment of that purpose is for

the benefit of the community or a substantial section of the community having regard to the type and

nature of the purpose.

(3) A purpose may be regarded as charitable whether it is to be carried out in Anguilla or

elsewhere and whether it is beneficial to the community in Anguilla or elsewhere.

(1) For the purposes of this Act, and subject to subsections (2) and (3), the following purposes

Trusts for non-charitable purposes

14.

(a) the purpose is specific, reasonable and capable of fulfilment;

(b) the purpose is not immoral, unlawful or contrary to public policy; and

(c) the terms of the trust provide for the appointment of a protector who is capable of

enforcing the trust and for the appointment of a successor to any such protector.

(2) If the Attorney General has reason to believe that there is no protector of a trust for a noncharitable

purpose or the protector is unwilling or incapable of acting, he may apply to the Court for

the appointment of a person to be protector of the trust, and the Court may, unless it feels that the person

is not fit, by order declare him to be the protector to enforce the trust.

(3) The order of the Court under subsection (2) is conclusive evidence of the appointment of

the protector to enforce the trust and the appointment takes effect as from the date of the order.

(4) Where any costs are incurred by the Attorney General in connection with any application

under subsection (2), the Court may make such order as it considers just as to the payment of those

costs out of the assets of the trust.

R.S.A. c. T70

(1) A trust may be created for a commercial or other purpose that is non-charitable if—Trusts Act Anguilla

16 15/12/2000

P

PROTECTORS AND TRUSTEES

ART 3

Protector of a trust

15.

(2) The protector has the following powers—

(a) unless the terms of the trust shall otherwise provide, the power to remove a trustee and

to appoint a new or additional trustee;

(b) the power to enforce the trust;

(c) such further powers as are conferred on the protector by the terms of the trust or the

provisions of this Act.

(3) The protector of a trust may also be a settlor, a trustee or a beneficiary of the trust.

(4) In the exercise of his office, the protector shall not be accounted or regarded as a trustee.

(5) Subject to the terms of the trust, in the exercise of his office a protector shall owe a

fiduciary duty to the beneficiaries of the trust or to the purpose for which the trust is created.

(6) Where there is more than one protector of a trust then, subject to the terms of the trust, any

functions conferred on the protectors may be exercised if more than one-half of the protectors for the

time being agree on its exercise.

(7) A protector who dissents from a decision of the majority of protectors may require his dissent

to be recorded in writing.

(1) The terms of a trust may provide for the office of the protector of the trust.

Who may be the trustee of a trust

16.

trustee of a trust.

(2) The trustee may also be a settlor, a beneficiary or a protector of the trust.

(1) Any person who has capacity other than a minor under the law of Anguilla may be the

The number of trustees

17.

shall be one.

(2) A trust shall not cease to be valid only on the ground that there is no trustee or fewer than

the number of trustees required by the terms of the trust.

(3) Where there is no trustee or fewer than the number of trustees required by the terms of the

trust, the necessary number of new or additional trustees shall be appointed and, until the minimum

number is reached, the surviving trustee, if any, shall act only for the purpose of preserving the trust

property.

Anguilla

(1) Unless the terms of the trust provide for a greater number, the minimum number of trusteesTrusts Act R.S.A. c. T70

15/12/2000 17

(4) Except in the case of a trust established for a charitable purpose—

(a) the number of trustees shall not be more than 4; and

(b) if at any time there are more than 4 persons named as trustees, only the first 4 persons

so named shall be the trustees of the trust.

Appointment of new or additional trustees

18.

trustee—

(a) the protector, if any;

(b) the trustees for the time being (but so that a trustee shall not be required to join in the

appointment of his replacement);

(c) the last remaining trustee;

(d) the personal representative or liquidator of the last remaining trustee; or

(e) if there is no such person or no such person willing to act, the Court;

may appoint a new or additional trustee.

(2) Subject to the terms of the trust, a trustee appointed under this section shall have the same

functions and may act as if he had been originally appointed a trustee.

(3) On the appointment of a new or additional trustee, anything requisite for vesting the trust

property in the trustees for the time being of the trust shall be done.

(1) Where the terms of a trust contain no provision for the appointment of a new or additional

Appointment of trustee resident in Anguilla

19.

apply to the Court for appointment of a person resident in Anguilla and nominated in the application

as an additional trustee.

(2) If satisfied that notice of the application has been served on the existing trustee, the Court,

after hearing any representations, may appoint a person who is willing to act as an additional trustee.

(3) Notwithstanding the provisions of section 17, the power contained in this section may be

exercised even it results in there being more than 4 trustees for the time being of the trust.

(4) The terms of a trust may expressly exclude the operation of subsections (1) and (2).

(1) Where there is no trustee resident in Anguilla, a beneficiary resident in Anguilla may

Renunciation of trusteeship

20.

trustee who knowingly intermeddles with the trust property shall be deemed to have accepted

appointment as a trustee.

R.S.A. c. T70

(1) No person shall be obliged to accept appointment as a trustee, but a person nominated asTrusts Act Anguilla

18 15/12/2000

(2) A person who has not accepted and is not deemed to have accepted appointment as a trustee

of a trust may within a reasonable period of time after becoming aware of his nomination as

trustee—

(a) disclaim his appointment by notice in writing to the other trustees of the trust, if any;

or

(b) if there are no other trustees or the other trustees cannot be contacted, apply to the

Court for relief from his appointment and the Court may make such order as it thinks

fit.

(3) A person nominated as a trustee who does not act under subsection (2) within a reasonable

period after becoming aware of his nomination shall be deemed to have accepted appointment as a

trustee.

Resignation or removal of trustees

21.

(2) A trustee shall cease to be a trustee immediately upon—

(a) the delivery of a notice of resignation under subsection (1);

(b) his removal from office by the Court;

(c) his removal from office by the protector of the trust; or

(d) the coming into effect of or the exercise of a power under a provision in the terms of

the trust under or by which he is removed from, or otherwise ceases to hold his office.

(3) A person who ceases to be a trustee or is a personal representative of a deceased trustee

shall do everything necessary to vest the trust property in the new or continuing trustees.

(4) A trustee who resigns or is removed—

(a) shall duly surrender all trust property held by or vested in him or otherwise under his

control; and

(b) may, before surrendering the trust property, require that he be provided with reasonable

security for liabilities whether existing, future, contingent or otherwise.

(5) A former trustee shall not be liable to any trustee or to any beneficiary or other person

interested under the trust for any act or omission in relation to the trust property or to his functions as

a trustee, except for any liability—

(a) arising from a breach of trust to which the trustee or, in the case of a trust company,

any of its officers or employees, was a party or was privy during the term of his

appointment; or

(b) in respect of an action to recover from the trustee or, in the case of a trust company,

any of its officers or employees, trust property or the proceeds thereof in his

possession or under his control.

Anguilla

(1) A trustee, other than a sole trustee, may resign by notice in writing to his co-trustees.Trusts Act R.S.A. c. T70

15/12/2000 19

Nature of trustees’ and protectors’ interests

22.

(a) the interest of a trustee or protector in the trust property is limited to that which is necessary

for the proper performance of the trust; and

(b) the trust property does not form part of the trustee’s or protector’s estate.

(2) Where a trustee or protector of a trust is also a beneficiary of the trust, subsection (1) does

not apply to his interest as a beneficiary.

(3) Where a trustee or protector becomes insolvent, or upon his property becoming liable to

distraint, seizure, sequestration or similar process of law, his creditors shall have no recourse against

the trust property except to the extent that the trustee or protector himself has a claim against it or a

beneficial interest in it.

(1) Subject to subsection (2)—

Trust company may act by resolution

23.

(a) act in connection with a trust by a resolution of the trust company or of its board of

directors or other governing body; or

(b) appoint an officer or employee to act on its behalf in connection with the trust.

A trust company may—

Trustees of more than one trust

24.

or thing in relation to a trust if he obtained notice of it by reason of his acting or having acted as trustee

of another trust.

(2) A trustee of a trust shall disclose to his co-trustees any interest that he has as trustee of another

trust if any transaction in relation to the first-mentioned trust is to be entered into with the trustees

of the other trust.

(1) A trustee is not, in the absence of fraud, affected by notice of any instrument, matter, fact

Dealings by trustees with third parties

25.

acting as trustee, a claim by the third party in respect of the transaction or matter shall, subject to subsection

(3), extend only to the trust property.

(2) If the trustee fails to inform the third party that he is acting as trustee—

(a) he incurs personal liability to the third party in respect of the transaction or matter;

and

(b) he has a right of indemnity against the trust property in respect of his personal liability,

unless he acted in breach of trust.

(3) Nothing in this section shall prejudice any claim for breach of warranty of authority.

(4) A

R.S.A. c. T70

(1) Where, in a transaction or matter affecting a trust, a trustee informs a third party that he isbona fide purchaser for value without notice of a breach of trust—Trusts Act Anguilla

20 15/12/2000

(a) may deal with a trustee in relation to trust property as if the trustee were the beneficial

owner thereof; and

(b) is not affected by the trusts on which the property is held.

(5) A third party paying or advancing money to a trustee is not concerned to see—

(a) that the money is needed in the proper exercise of the trust functions;

(b) that no more than is so needed is raised; or

(c) that the transaction or the application of the money is proper.

(6) In this section “third party” means a person other than a settlor, trustee, protector or beneficiary

of the trust.

P

DUTIES AND POWERS OF TRUSTEES

ART 4

General duties of trustees

26.

(a) act with due diligence;

(b) observe utmost good faith;

(c) act to the best of his skills and abilities; and

(d) exercise the standard of care of a reasonable and prudent man of business.

(2) A trustee shall carry out and administer the trust in accordance with this Act and, subject

to this Act, in accordance with the terms of the trust.

(3) A trustee shall owe a fiduciary duty to the beneficiaries of the trust, the members of a class

for whose benefit the trust was established, or the purpose for which the trust was established.

(4) A fiduciary duty that is owed to a purpose for which a trust was established may be

enforced by the protector of the trust or, in the case of a trust established for a charitable purpose, by

the Attorney General.

(5) A trustee shall, subject to the terms of the trust and to the provisions of this Act—

(a) ensure that the trust property is held by or vested in him or is otherwise under his

control; and

(b) preserve and, so far as is reasonable, enhance the value of the trust property.

Anguilla

(1) A trustee shall in the execution of his functions—Trusts Act R.S.A. c. T70

15/12/2000 21

(6) Except with the approval of the Court or in accordance with the terms of the trust or the

provisions of this Act, a trustee shall not—

(a) derive, directly or indirectly, any profit from his trusteeship;

(b) cause or permit any other person other than a professional advisor consulted by him

under section 30(6) directly or indirectly to derive any profit from his trusteeship; or

(c) on his own account enter into any transaction with his co-trustees or relating to the

trust property that may result in any such profit.

(7) The trustee of a trust shall keep accurate accounts and records of his trusteeship.

(8) A trustee shall keep trust property separate from his own property and separately identifiable

from any other property of which he is a trustee.

Duty to supply information and duty of confidentiality

27.

in writing to that effect, provide full and accurate information as to the state and amount of the trust

property and the conduct of the trust administration to—

(a) the Court;

(b) the settlor or protector of the trust;

(c) in the case of a trust established for a charitable purpose, the Attorney General;

(d) subject to the terms of the trust, any beneficiary of the trust who is of full age and

capacity; and

(e) subject to the terms of the trust, any charity for the benefit of which the trust was

established.

(2) Subject to the provisions of this Act and to the terms of the trust, and except as is necessary

for the proper administration of the trust or by reason of any other Act, the trustee of a trust shall

keep confidential all information regarding the state and amount of the trust property or the conduct

of the trust administration.

(3) Subject to the terms of the trust and to any order of the Court, a trustee is not obliged to

disclose documents that reveal—

(a) his deliberations as to how he should exercise his functions as trustee;

(b) the reasons for any decision made in the exercise of those functions; or

(c) any material upon which a decision referred to in paragraph (b) was or might have

been made.

R.S.A. c. T70

(1) A trustee shall, so far as is reasonable and within a reasonable time of receiving a requestTrusts Act Anguilla

22 15/12/2000

Duty of trustees to act together

28.

trust.

(2) Subject to subsections (3) and (4), no functions conferred on trustees shall be exercised

unless all the trustees agree on their exercise.

(3) Subject to the terms of the trust and to subsection (4), any functions conferred on trustees

of a charitable trust shall be exercised if more than one-half of the trustees for the time being of the

trust agree on their exercise.

(4) The terms of a trust may empower the trustees to act individually or by a majority with

respect to the exercise of some or all of the functions conferred on the trustees or to delegate the exercise

of these functions to one or more trustees.

(5) A trustee who dissents from a decision of the majority of trustees or of a co-trustee or of

the trustees to whom any functions have been delegated may require his dissent to be recorded in

writing.

(1) Subject to the terms of the trust, all the trustees of a trust shall join in execution of the

Duty to act impartially

29.

or purposes, whether concurrent or consecutive, a trustee shall act impartially as between these

beneficiaries and purposes.

(2) Subject to the terms of the trust and to the provisions of this Act, any rule of law that

requires a trustee to buy, hold or sell certain investments or to apportion the capital or income of the

trust fund between beneficiaries is hereby abolished.

(1) Subject to the terms of the trust, where a trust is established for one or more beneficiaries

General powers of trustees

30.

to the trust property all the powers of a beneficial owner.

(2) Subject to the terms of the trust and the provisions of this Act, a trustee shall exercise his

functions only in the interests of the beneficiaries or of the purpose for which the trust is established

and in accordance with the terms of the trust.

(3) Where the terms of a trust provide that the trustee may add or remove beneficiaries or purposes

for which the trust is established, then, if that power is exercised properly and on the basis of

valid considerations, the exercise of the power shall not be regarded as a breach of the duty of the

trustee under the trust.

(4) A trustee may sue and be sued as trustee.

(5) The terms of a trust may require a trustee to consult or obtain the consent of another person

before exercising any functions under the trust.

(6) Where he considers it necessary or desirable in the interests of the good administration of

the trust, a trustee may consult a lawyer, accountant, investment advisor or other person in relation to

the affairs of the trust.

Anguilla

(1) Subject to the terms of the trust and the provisions of this Act, a trustee shall have in relationTrusts Act R.S.A. c. T70

15/12/2000 23

(7) A person is not, merely by virtue of giving or refusing his consent to the exercise of any

functions or being consulted in relation to the affairs of the trust, deemed to be a trustee or to owe a

fiduciary duty to the beneficiaries of the trust.

Powers of investment

31.

money requiring investment in any investment or property of whatsoever nature and wheresoever

situated and whether producing income or not and whether involving any liability or not and upon

such security, if any, as the trustee shall in his absolute discretion think fit as if the trustee were the

absolute owner thereof.

(2) Where the terms of a trust or any other instrument provide that any money requiring

investment shall only be invested in “authorised trustee investments” or any similar expression, the

money shall be invested only in investments that are specified in Schedule 1.

(3) The terms of a trust may provide that Schedule 1 shall apply to the trust with such modifications

as are specified by the terms of the trust.

(4) A trustee shall not be liable for breach of trust by reason only of continuing to hold an

investment that has ceased to be an investment authorised by the terms of the trust or by the general

law.

(5) Subject to the terms of the trust, in selecting investments a trustee or, as the case may be,

any investment advisor or other person to whom the trustee has delegated the management of the trust

property, shall have regard—

(a) to the need for diversification of investments in the trust insofar as is appropriate to

the circumstances of the trust; and

(b) to the suitability to the trust of the investments proposed.

(6) Subject to the terms of the trust, before investing money in any investment, a trustee shall

consider whether he should obtain appropriate advice as to whether the investment is suitable and

satisfactory and, if he considers that the obtaining of such advice is necessary, shall obtain and consider

such advice accordingly.

(7) Subject to the terms of the trust, a trustee shall determine whether and, if so, at what intervals

he should obtain appropriate advice as to whether the existing investments of the trust are suitable

and satisfactory and, if he considers that the obtaining of such advice is necessary, shall obtain

and consider such advice accordingly.

(8) For the purposes of subsections (6) and (7), advice is appropriate if it is the advice of a

person who is reasonably believed by the trustee to be qualified to give such advice, and that advice

may be given by a person notwithstanding that he gives it in the course of his employment, including

employment with a trustee of the trust.

(1) Subject to the terms of the trust and to the provisions of this Act, a trustee may invest any

Powers of trustees: Schedule 2

32.

trusts to which this section applies.

R.S.A. c. T70

(1) Subject to the terms of the trust, the powers contained in Schedule 2 shall apply to allTrusts Act Anguilla

24 15/12/2000

(2) The terms of a trust may provide that some or all of the powers contained in Schedule 2

shall be incorporated by reference and shall apply with or without modification and this section

applies to any trust the terms of which so provide.

Delegation by trustees

33.

Act or by the terms of the trust.

(2) Except where the terms of the trust provide to the contrary, a trustee may—

(a) delegate the management of trust property to, and appoint, investment managers

whom the trustee reasonably considers to be qualified to manage the investment of the

trust property;

(b) appoint and employ any lawyer, accountant or other person to act in relation to any of

the affairs of the trust or to hold any of the trust property; and

(c) authorise any person referred to in paragraph (a) or (b) to retain or receive any commission

or other payment usually payable for services of the description rendered.

(3) A trustee shall not be liable for any loss arising to the trust from a delegation or appointment

under subsection (2) or from the default of the delegate or appointee, if the trustee exercised the

standard of care of a reasonable and prudent man of business in—

(a) the selection of the delegate or appointee; and

(b) the supervision of the activities of the delegate or appointee.

(1) A trustee may not delegate the exercise of his functions unless permitted to do so by this

Reimbursement of expenses

34.

incurred by him in connection with the trust.

A trustee shall be entitled to be reimbursed out of the trust property all expenses properly

Payment of trustees

35.

shall be entitled to charge and be paid all usual professional or other charges for business transacted,

time spent and acts done by him or any partner or employee of his or of his firm in connection

with the trust including acts that a trustee who is not being engaged in any profession or business

could have done personally.

(2) Subject to the terms of the trust, a trust company shall be entitled to such remuneration as

may from time to time be agreed in writing between the trust company and the settlor or protector or,

in the absence of an agreement, in accordance with its standard terms and conditions as to the administration

of trusts current from time to time.

(3) Where the terms of trust provide that a trustee shall not receive any payment for acting as

trustee, payment may nevertheless be authorised—

(a) by the Court; or

Anguilla

(1) Subject to the terms of the trust, an individual trustee engaged in any profession or businessTrusts Act R.S.A. c. T70

15/12/2000 25

(b) by some or all of the beneficiaries of the trust;

but a beneficiary may not validly authorise payment if the beneficiary—

(c) is a minor or a person under legal disability;

(d) does not have full knowledge of all material facts; or

(e) is improperly induced by the trustee to authorise the payment.

(4) Where some only of the beneficiaries authorise payment to a trustee in accordance with

subsection (3), the payment shall be made out of the share of the trust property that in the opinion of

the trustee is referable to the interests of those beneficiaries who so authorise payment.

Power to appropriate

36.

trust property in or towards satisfaction of the interest of a beneficiary in the manner and in

accordance with the valuation that he considers appropriate.

Subject to the terms of the trust, a trustee may, without the consent of any beneficiary, appropriate

Power and duty of maintenance

37.

where any property is held by a trustee in trust for any beneficiary for any interest whatsoever—

(a) while the beneficiary is a minor, the trustee—

(i) may at his discretion pay to the parent or guardian of the beneficiary or otherwise

apply the whole or part of the income attributable to that interest for or towards

the maintenance, education or benefit of the beneficiary, and

(ii) shall accumulate the residue of the income as an accretion to the trust property

and as one fund with the trust property for all purposes but may, while the beneficiary

is a minor, apply those accumulations as if they were income of the then

current year; and

(b) if the beneficiary is no longer a minor and his interest has not yet vested in possession,

the trustee shall thenceforth pay the income attributable to the interest to the beneficiary

until his interest vests in possession or terminates.

Subject to the terms of the trust and to any prior interest or charge affecting the trust property,

Power of advancement

38.

the advancement or benefit of any beneficiary whose interest in the trust has not yet vested in possession,

but—

(a) any trust property so paid or applied shall be brought into account in determining the

share of the beneficiary in the trust property;

(b) no payment or application shall be made that prejudices any person entitled to any

prior interest unless the person is of full age and consents to the payment or application

or, if the person is not of full age, the Court consents; and

R.S.A. c. T70

Subject to the terms of the trust, a trustee may in his discretion pay or apply trust property forTrusts Act Anguilla

26 15/12/2000

(c) the part of the trust property so paid or advanced shall not exceed the presumptive

share of the beneficiary in the trust property.

Accumulation and maintenance settlements

39.

benefit of a beneficiary or a class of beneficiaries, the provisions of sections 37 and 38, unless the

terms of the trust otherwise provide, apply to the interest of such beneficiary or beneficiaries.

Where any property is directed to be held on accumulation and maintenance trusts for the

Receipt of parents or guardians

40.

shall be a sufficient discharge to the trustee for a payment made to or for the benefit of the beneficiary.

The receipt of a parent or guardian of a beneficiary who is a minor or is under legal disability

Power of appointment

41.

part of the trust property to, or to trustees for the benefit of, any person or valid charitable or noncharitable

purpose, whether or not the person was a beneficiary of the trust or the purpose was an

object of the trust prior to the appointment.

The terms of a trust may confer on the trustee or any other person power to appoint all or any

Power of revocation or variation

42.

capable of revocation, in whole or in part, or of variation.

(2) No such revocation or variation shall prejudice anything lawfully done by a trustee in

relation to the trust before he receives notice of the revocation or variation.

(3) Subject to the terms of the trust, if a trust is revoked in whole or in part, the trustee shall

hold the trust property that is the subject of the revocation in trust for the settlor absolutely or, if he is

dead, as if it had formed part of his estate at death.

(4) In so far as the terms of a trust make no provision for revocation of the trust, the trust is

irrevocable.

P

TERMINATION OR FAILURE OF TRUSTS

(1) A trust and any exercise of a power or discretion under a trust may be expressed to beART 5

Failure or lapse of interest

43.

(a) an interest lapses;

(b) a trust terminates; or

(c) there is no beneficiary and no person, whether or not then living, who can become a

beneficiary in accordance with the terms of the trust;

Anguilla

(1) Subject to the terms of the trust and to any order of the Court, where—Trusts Act R.S.A. c. T70

15/12/2000 27

the interest or property concerned shall be held by the trustee in trust for the settlor absolutely, or if he

is dead, as if it had formed part of his estate at death.

(2) Subsection (1) does not apply to a trust established for a charitable purpose to which section

44 applies.

Application of property held on charitable trusts

44.

(a) the purpose has been, as far as may be, fulfilled;

(b) the purpose cannot be carried out at all or not according to the directions given and to

the spirit of the gift;

(c) the purpose provides a use for part only of the property;

(d) the property, and other property applicable for a similar purpose, can be more effectively

used in conjunction, and to that end can more suitably be applied to a common

purpose;

(e) the purpose was laid down by reference to an area that was then, but has since ceased

to be, a unit for some other purpose, or by reference to a class of persons or to an area

that has for any reason since ceased to be suitable or to be practicable in administering

the gift;

(f) the purpose has been adequately provided for by other means;

(g) the purpose has ceased to be charitable by reason of being useless or harmful to the

community or otherwise; or

(h) the purpose has ceased in any other way to provide a suitable and effective method of

using the property;

the property or the remainder of the property, as the case may be, shall be held for such other charitable

purpose as the Court, on the application of the Attorney General or the trustee, may declare to be

consistent with the original intention of the settlor.

(2) Where trust property is held for a charitable purpose, the Court, on the application of the

Attorney General or the trustee, may approve any arrangement that varies or revokes the purposes or

terms of the trust or enlarges or modifies the powers of management or administration of the trustee,

if it is satisfied that the arrangement—

(a) is now suitable or expedient; and

(b) is consistent with the original intention of the settlor.

(3) The Court shall not make a declaration under subsection (1) or approve an arrangement

under subsection (2) unless satisfied that any person with a material interest in the trust or in any fund

subject to the terms of the trust has had an opportunity to be heard.

R.S.A. c. T70

(1) Where trust property is held for a charitable purpose and—Trusts Act Anguilla

28 15/12/2000

Termination of trusts

45.

by the trustee within a reasonable time in accordance with the terms of the trust to the persons

entitled thereto.

(2) The trustee may retain sufficient assets to make reasonable provision for liabilities, existing,

future, contingent or otherwise.

(1) On the termination of a trust, the trust property shall, subject to subsection (2), be distributed

Termination by beneficiaries

46.

where—

(a) all the beneficiaries are in existence and have been ascertained;

(b) none is a person under legal disability or a minor; and

(c) all beneficiaries are in agreement to do so;

the beneficiaries may, subject to subsection (2), require the trustee to terminate the trust and distribute

the trust property as the beneficiaries direct.

(2) A beneficiary of an interest under a protective or spendthrift trust may not enter into an

agreement referred to in subsection (1).

P

VARIATION OF TRUSTS

(1) Without prejudice to any power of the Court, and notwithstanding the terms of the trust,ART 6

Power to provide for variation of terms of trust

47.

(2) This section is in addition to section 48.

(1) The terms of a trust may be varied in any manner provided by its terms.

Variation of trusts by the Court

48.

representative, or the protector of a trust, approve on behalf of—

(a) a minor or a person under legal disability having directly or indirectly an interest,

vested or contingent, under the trust;

(b) any person unborn;

(c) any person who is presently unascertained but who may become entitled directly or

indirectly to an interest under the trust, as being at a future date or on the happening of

a future event a person of any specified description or a member of any specified

class; or

Anguilla

(1) The Court may, on the application of any beneficiary, the trustee, the settlor or his personalTrusts Act R.S.A. c. T70

15/12/2000 29

(d) any person, in respect of an interest that may accrue to him by virtue of the exercise of

a discretionary power on the failure or determination of an interest under a protective

or spendthrift trust;

any arrangement that varies or revokes the terms of the trust or enlarges or modifies the powers of

management or administration of the trustee, whether or not there is another person with a beneficial

interest who is capable of assenting to the arrangement, but the Court shall not approve an arrangement

on behalf of a person mentioned in paragraphs (a), (b) or (c) unless the arrangement appears to

be for his benefit.

(2) Where, in the management or administration of a trust, any sale, lease, pledge, charge, surrender,

release or other disposition, or any purchase, investment, acquisition, expenditure or other

transaction is, in the opinion of the Court, expedient, but cannot be effected because the necessary

power has not been conferred on the trustee by the terms of the trust or by law, the Court, on the

application of the trustee—

(a) may confer upon the trustee, generally or in any particular circumstances, the necessary

power, on such terms and subject to such conditions as the Court thinks fit; and

(b) may direct the manner in which, and the property from which, any money authorised

to be expended, and costs of any transaction, are to be paid or borne.

P

BREACH OF TRUST

ART 7

Liability for breach of trust

49.

concurs in a breach of trust is liable for—

(a) any loss or depreciation in value of the trust property resulting from the breach; and

(b) any profit that would have accrued to the trust had there been no breach.

(2) A trustee may not set off a profit accruing from one breach of trust against a loss or depreciation

in value resulting from another.

(3) A trustee is not liable for a breach of trust committed by another person prior to his

appointment or for a breach of trust committed by a co-trustee unless—

(a) he becomes or ought to have become aware of the breach; and

(b) he actively conceals the breach, or fails within a reasonable time to take proper steps

to protect or restore the trust property or to prevent the continuance of the breach.

(4) Where trustees are liable for a breach of trust, they are liable jointly and severally.

R.S.A. c. T70

(1) Subject to the provisions of this Act and to the terms of the trust, a trustee who commits orTrusts Act Anguilla

30 15/12/2000

(5) A trustee who becomes aware of a breach of trust shall take all reasonable steps to have

the breach remedied.

(6) Nothing in the terms of a trust shall relieve a trustee of liability for a breach of trust arising

from his own fraud or wilful misconduct.

Constructive trusts

50.

trust, shall be deemed to be a trustee of the profit or property, unless he derives or obtains it in good

faith and without actual, constructive or implied notice of the breach of trust.

(2) A person who becomes a trustee by virtue of subsection (1) shall deliver up the profit or

property to the person properly entitled to it.

(3) This section does not exclude any other circumstances in which a constructive trust may

arise.

(1) A person who derives a profit from a breach of trust, or who obtains property in breach of

Tracing trust property

51.

dealt with in breach of trust, or any property into which it has been converted, may be followed and

recovered unless—

(a) it is no longer identifiable; or

(b) it is in the hands of a

implied notice of the breach of trust.

Without prejudice to the personal liability of a trustee, trust property that has been charged orbona fide purchaser for value without actual, constructive or

Beneficiary may relieve or indemnify a trustee

52.

trustee against liability for a breach of trust.

(2) Subsection (1) does not apply if the beneficiary—

(a) is a minor or a person under legal disability;

(b) does not have full knowledge of all material facts; or

(c) is improperly induced by the trustee to act under subsection (1).

(1) A beneficiary may relieve a trustee of liability to him for a breach of trust or indemnify a

Power to relieve trustee from personal liability

53.

appears to the Court that the trustee has acted honestly and reasonably and ought fairly to be excused

for the breach of trust or for omitting to obtain the directions of the Court in the matter in which the

breach arose.

The Court may relieve a trustee wholly or partly of liability for a breach of trust where it

Power to make beneficiaries indemnify

54.

of a beneficiary, the Court, whether or not the beneficiary is a minor or a person under legal

Anguilla

Where a trustee commits a breach of trust at the instigation, at the request or with the concurrenceTrusts Act R.S.A. c. T70

15/12/2000 31

disability, may impound all or part of the interest of that beneficiary by way of indemnity to the trustee

or any person claiming through him.

P

POWERS OF THE COURT

ART 8

Jurisdiction of the Court

55.

(a) the proper law of the trust is the law of Anguilla;

(b) a trustee of the trust is resident in Anguilla;

(c) any property of the trust is situated in Anguilla;

(d) any part of the administration of the trust is carried on in Anguilla; or

(e) where, in any other case, the Court thinks it appropriate.

The Court has jurisdiction in respect of any matters concerning a trust where—

General powers of the Court

56.

protector, the Attorney General in the case of a trust established for a charitable purpose or, with the

leave of the Court, any other person, the Court may—

(a) make an order in respect of—

(i) the execution, administration or enforcement of a trust,

(ii) a trustee, including an order as to the exercise by a trustee of his functions, the

removal of a trustee, the appointment, remuneration or conduct of a trustee, the

keeping and submission of accounts, and the making of payments, whether into

Court or otherwise,

(iii) a protector, including an order appointing a protector,

(iv) a beneficiary or any person connected with a trust, or

(v) any trust property, including an order as to the vesting, preservation, application,

surrender or recovery thereof;

(b) make a declaration as to the validity or enforceability of a trust;

(c) direct the trustee to distribute, or not to distribute, the trust property;

(d) make such order in respect of the termination of the trust and the distribution of the

property as it thinks fit; or

R.S.A. c. T70

(1) On the application of a trustee, a beneficiary, a settlor or his personal representatives, aTrusts Act Anguilla

32 15/12/2000

(e) rescind or vary an order or declaration under this Act, or make a new or further order

or declaration.

(2) Where the Court appoints or removes a trustee under this section—

(a) it may impose such requirements and conditions as it thinks fit, including provisions

as to remuneration and requirements or conditions as to the vesting of trust property;

and

(b) subject to the Court’s order, a trustee appointed by the Court has the same functions,

and may act in all respects as if he had been originally appointed a trustee.

(3) If a person does not comply with an order of the Court under this Act requiring him to do

any thing, the Court may, on such terms and conditions as it thinks fit, order that the thing be done by

another person nominated for the purpose by the Court at the expense of the person in default or

otherwise, as the Court directs, and a thing so done has effect in all respects as if done by the person

in default.

Applications for directions

57.

affairs of the trust, and the Court may make such order as it thinks fit.

A trustee may apply to the Court for directions as to how he should or might act in any of the

Payment of costs

58.

under this Act to be paid from the trust property or in such manner and by such persons as it thinks

fit.

P

CHOICE OF GOVERNING LAW

The Court may order the costs and expenses of, and incidental to, an application to the CourtART 9

Governing law

59.

trust and to any evidence therein as to the intention of the settlor, and the other circumstances of the

trust are to be taken into account only if the terms of the trust fail to provide such evidence.

(2) A term of the trust expressly selecting the laws of Anguilla to govern the trust is valid,

effective and conclusive regardless of any other circumstances.

(3) A term of the trust that the laws of Anguilla are to govern a particular aspect of the trust or

that Anguilla or the courts of Anguilla are the forum for the administration of the trust, or any like

provision, is conclusive evidence, subject to any contrary term of the trust, that the parties intended

the laws of Anguilla to be the governing law of the trust and is valid and effective accordingly.

(4) If the terms of a trust so provide, the governing law of the trust may be changed to or from

the laws of Anguilla if—

Anguilla

(1) In determining the governing law of a trust, regard is first to be had to the terms of theTrusts Act R.S.A. c. T70

15/12/2000 33

(a) in the case of a change to the law of Anguilla, the change is recognised by the governing

law of the trust previously in effect; and

(b) in the case of a change from the law of Anguilla, the new governing law would recognise

the validity of the trust and the respective interests of the beneficiaries.

(5) A change in governing law shall not affect the legality or validity of, or render any person

liable for, any thing done before the change.

Matters determined by governing law

60.

Anguilla, or in regard to any disposition of property upon the trusts thereof including, without prejudice

to the generality of the foregoing, questions as to—

(a) the capacity of any settlor;

(b) any aspect of the validity of the trust or disposition or the interpretation or effect

thereof;

(c) the administration of the trust, whether the administration be conducted in Anguilla or

elsewhere, including questions as to the powers, obligations, liabilities and rights of

trustees and their appointment and removal; or

(d) the existence and extent of powers, conferred or retained, including powers of variation

or revocation of the trust and powers of appointment, and the validity of any

exercise thereof;

are to be determined according to the laws of Anguilla, without reference to the laws of any other

jurisdictions with which the trust or disposition may be connected.

(2) This section—

(a) shall not validate—

(i) any disposition of property that is neither owned by the settlor nor the subject of a

power in that behalf vested in the settlor,

(ii) any trust or disposition of immovable property situated in a jurisdiction other than

Anguilla in which the trust or disposition is invalid according to the laws of the

jurisdiction, or

(iii) any testamentary trust or disposition that is invalid according to the laws of the

testator’s domicile;

(b) shall not affect the recognition of foreign laws in determining whether the settlor is

the owner of the settled property or is the holder of a power to dispose of such

property;

(c) shall take effect subject to any express term of a trust or disposition to the contrary;

R.S.A. c. T70

(1) All questions arising in regard to a trust that is for the time being governed by the laws ofTrusts Act Anguilla

34 15/12/2000

(d) as regards the capacity of a company, shall not affect the recognition of the laws of its

place of incorporation; and

(e) shall not affect the recognition of foreign laws prescribing generally, without reference

to the existence or terms of the trust, the formalities for the disposition of

property.

Exclusion of foreign law

61.

the laws of Anguilla and no disposition of property to be held upon the trusts thereof is void, voidable,

liable to be set aside or defective in any fashion, nor is the capacity of any settlor to be questioned

by reason that—

(a) the laws of any foreign jurisdiction prohibit or do not recognise the concept of a trust;

or

(b) the trust or disposition—

(i) avoids or defeats rights, claims or interests conferred by foreign law upon any

person by reason of a personal relationship to the settlor or by way of heirship

rights, or

(ii) contravenes any rule of foreign law or any foreign judicial or administrative order

or action intended to recognise, protect, enforce or give effect to any such rights,

claims or interests.

P

PROVISIONS APPLICABLE TO A FOREIGN TRUST

Without limiting the generality of section 60, it is expressly declared that no trust governed byART 10

Application of Part

62.

(2) For the purposes of this Part, a foreign trust includes every trust not governed by the laws

of Anguilla.

(1) This Part applies only to a foreign trust.

Enforceability of a foreign trust

63.

the foreign law applicable to the validity, construction and administration thereof.

(2) A foreign trust shall be enforceable in Anguilla except to the extent that it purports to do

anything the doing of which is contrary to the law of Anguilla or to confer any right or power or

impose any obligation the exercise or carrying out of which is contrary to the law of Anguilla.

Anguilla

(1) Subject to subsection (2), a foreign trust or a severable aspect thereof shall be governed byTrusts Act R.S.A. c. T70

15/12/2000 35

P

VARIANT TYPES OF TRUST

ART 11

Variant types of trust

64.

recognised by the law or rules of his religion or nationality or that is customarily used by his community,

if—

(a) there is a recital to that effect in the instrument creating the trust; and

(b) the trust is of a type approved by the Attorney General by Order published in the

(1) A settlor may create a trust, in whatever form and by whatever name it is known, of a type

Gazette

(2) The instrument creating a trust may be written in a language other than English, if a version

in the English language certified by the original trustee to be a true translation is appended to the

instrument.

.

Provisions of variant types of trust

65.

property—

(a) for such term as is provided in the trust, to pay or apply the income and capital thereof

for the maintenance, education, advancement or benefit of the family of the settlor or

for the purposes of performing acts or services in honour of the settlor or the ancestors

of the settlor or for any one or more of them; and

(b) thereafter for the advancement of the settlor’s religion or for such other charitable

purpose as the settlor may specify or, if the settlor has not specified a charitable purpose,

for such charitable purpose as the trustee shall determine.

P

OPTIONAL REGISTRATION OF TRUSTS AND EXEMPTION FROM TAXES

A trust of a type approved under section 64(1) may provide that the trustee shall hold the trustART 12

Facility to register trusts

66.

“Register” means the Register referred to in subsection (2);

“Registrar” means the Registrar of Companies.

(2) The Registrar of Companies shall maintain a Register of Trusts.

(3) The settlor or a trustee of a trust may apply but, subject to the terms of the trust, shall not

be obliged to apply to the Registrar to enter the trust on the Register.

R.S.A. c. T70

(1) In this section—Trusts Act Anguilla

36 15/12/2000

(4) An application for entry on the Register shall be accompanied by—

(a) a certified copy of the instrument creating the trust, if any; and

(b) the prescribed fee.

(5) The Registrar shall, on receipt of an application for registration, a certified copy of the

instrument creating the trust, if any, and the required fee—

(a) enter on the Register the name of the trust, if any, the name of the settlor and the name

of the beneficiary or the purpose for which the trust is established; and

(b) issue to the trustee a certificate of registration.

(6) Where the terms of a trust that has been registered are varied, the trustee shall send to the

Registrar a notification of the variation together with the prescribed fee and the Registrar shall amend

the entry on the Register accordingly and issue an amended certificate of registration.

(7) Where a trust that has been registered terminates, the trustee shall notify the Registrar and

return the certificate of registration and the Registrar shall then cancel the entry on the Register and

the certificate of registration.

(8) The Register shall not be open for inspection except that the trustee of a trust may in

writing authorise a person to inspect the entry of that trust on the Register.

Exemption from taxes

67.

(a) the settlor is not resident in Anguilla;

(b) none of the beneficiaries are resident in Anguilla; and

(c) the trust property does not include any land situated in Anguilla or the shares of any

company beneficially owning any land situated in Anguilla.

(2) Subject to this Act, any exempt trust shall not be subject to any income tax, withholding

tax, asset tax, gift tax, profits tax, capital gains tax, distributions tax, inheritance tax, estate duty or

other like taxes based upon or measured by assets or income originating outside of Anguilla or in

connection with matters of administration that may occur in Anguilla, except as provided in

section 66.

P

SUPPLEMENTAL

(1) For the purposes of this Act, a trust is an exempt trust if—ART 13

Regulations

68.

Anguilla

The Governor may make regulations for the better carrying out of this Act including regulations—Trusts Act R.S.A. c. T70

15/12/2000 37

(a) prescribing anything that may be prescribed under this Act; and

(b) amending, making deletions from, adding to or replacing Schedule 1.

Citation

69.

This Act may be cited as the Trusts Act, Revised Statutes of Anguilla, Chapter T70.

___________

SCHEDULE 1

(Section 31)

AUTHORISED TRUSTEE INVESTMENTS

Interpretation

1.

“approved stock exchange” means—

(a) The International Stock Exchange of the United Kingdom and Republic of Ireland Limited

including the Unlisted Security Market of the International Stock Exchange;

(b) the New York Stock Exchange, the American Stock Exchange and the National Association of

Security Dealers’ Automated Quotation System of the United States of America;

(c) the major stock exchanges of Australia, Austria, Belgium, Canada, Denmark, Finland, France,

Germany, Hong Kong, India, Italy, Japan, Malaysia, Mexico, Netherlands, New Zealand,

Norway, Singapore, South Africa, Spain, Sweden and Switzerland; or

(d) the major stock exchanges of the countries of Central and South America;

“debentures” includes debenture stock and bonds, whether constituting a charge on assets or not, and loan stock

or notes;

“quoted company” means a company the ordinary shares in which are quoted on an approved stock exchange;

“quoted mutual fund” means an open end or closed end mutual fund the shares in which are quoted on an

approved stock exchange;

“quoted shares” means shares quoted on an approved stock exchange;

“quoted unit trust” means a unit trust the units in which are quoted on an approved stock exchange;

“securities” includes shares, debentures, treasury bills and tax reserve certificates;

“shares” include stock.

In this Schedule—

Authorised trustee investments

2.

The following are specified as authorised trustee investments—

R.S.A. c. T70

Trusts Act Anguilla

38 15/12/2000

(a) securities issued by, or the payment of interest on which is guaranteed by, the Government of

Anguilla;

(b) securities issued by, or the payment of interest on which is guaranteed by, any of the

following—

(i) the Government of the United Kingdom,

(ii) the Government of the United States of America,

(iii) the Government of any territory within the Commonwealth,

(iv) the African Development Bank, the Asian Development Bank, the European Union, the

European Investment Bank, the International Finance Corporation, the International

Monetary Fund or the International Bank for Reconstruction and Development;

(c) deposits with a company, incorporated, continued or registered under the Companies Act that

is a licensed financial institution within the meaning of the Banking Act or the Trust

Companies and Offshore Banking Act;

(d) debentures issued by a quoted company;

(e) units in a quoted unit trust;

(f) quoted shares;

(g) freehold property situated in Anguilla and leasehold property situated in Anguilla of which the

unexpired term at the time of the investment is not less than 40 years and mortgages of that

freehold or leasehold property;

(h) shares in a quoted mutual fund.

___________

SCHEDULE 2

(Section 32)

POWERS OF TRUSTEES

Trust for sale

1.

Fund Upon Trust to sell the same with power to postpone the sale thereof or of any part thereof for such period

as they shall in their absolute discretion think fit and shall stand possessed of all other investments comprised in

the Trust Fund Upon Trust at such discretion either to retain the same in the existing state thereof for such

period as they shall think fit or at any time or times to sell the same or any part thereof.

(2) The Trustees shall hold the net proceeds of any sale of investments comprised in the Trust Fund

and all other moneys held or received by them as capital moneys Upon Trust to invest the same at their

discretion in or upon any of the investments by this instrument authorised with powers to vary or transpose such

investments for or into others of a like nature.

(1) The Trustees shall stand possessed of any real property from time to time comprised in the Trust

Anguilla

Trusts Act R.S.A. c. T70

15/12/2000 39

Powers of investment

2.

currency and in any part of the world in the purchase of or upon the security of such common or preferred

stocks, shares, mutual fund shares, unit trust units or other securities or commodities (including precious

metals), bonds, notes, debentures, certificates of deposit or time deposits, land or other investments or property

of whatever nature (and whether or not income-producing or paying dividends or interest) and, whether

involving liabilities or not or upon such personal credit with or without security as the Trustees in their absolute

discretion think fit without being restricted to trustee investments prescribed under the proper law governing

this instrument and to the intent that the Trustees shall have the same powers in all respects as if they were

absolute owners beneficially entitled And in addition (but without prejudice to the generality of the foregoing)

the Trustees may invest the Trust Fund in the shares or debentures of any company whatsoever and

wheresoever incorporated without the need for diversification and without being liable for any loss occasioned

thereby.

TRUST moneys to be invested under the trusts of this instrument may be applied or invested in any

Power with regard to mode of application of capital and income

3.

the Trust Fund or any income thereof for the benefit of any beneficiary may at the discretion of the Trustees be

validly exercised (without prejudice to the generality of such power or to any other mode of application)—

(a) by paying or transferring the same to the trustees of any settlement (whether or not such

trustees are resident in Anguilla and whether or not the proper law of such settlement is the

law of Anguilla) the provisions of which are in the opinion of the Trustees for the benefit of

such beneficiary notwithstanding that such settlement may also contain trusts, powers or

provisions (discretionary or otherwise) in favour of other persons or objects; or

(b) (in case of any such person who is a minor) by paying or transferring the same to such minor’s

parent or guardian or some other person for the time being having the care or custody of such

minor upon the recipient undertaking to apply the same for the benefit of the minor;

And the Trustees shall not thereafter be under any obligation to see to the further application of the capital or

income so paid or transferred and the receipt of such trustees, parent, guardian or other person shall be a full,

sufficient and complete discharge to the Trustees.

ANY power by this instrument or by law conferred on the Trustees to pay, transfer, appropriate or apply

Additional powers

4.

(1) Power to receive any property from any person as an addition to the Trust Fund either by gift

vivos

(2) Power to borrow on the security of the Trust Fund and for such purpose to make any outlay out of

the Trust Fund or the income thereof and to enter into such contracts, mortgages, charges or undertakings

relating thereto as the Trustees may in their absolute discretion think fit;

(3) Power to lend any part of the Trust Fund to any person (whether or not a beneficiary) upon such

terms (if any) as to security repayment rate or interest and otherwise as the Trustees in their absolute discretion

may determine;

(4) With respect to any property comprised in the Trust Fund power to exercise all powers relating

thereto as if beneficially entitled thereto and without being restricted in any way by the office of trustee

including (without prejudice to the generality of the foregoing power)—

(a) Power to vote upon or in respect of any shares, securities, bonds, notes or other evidence

of interest in or obligations of any company, trust, association or concern whether or not

The Trustees shall have the following powers in addition to those conferred by law—interor by will or under the provisions of any other settlement or trust or otherwise;

R.S.A. c. T70

Trusts Act Anguilla

40 15/12/2000

the exercise of such power affects the security or the apparent security of the Trust Fund

or the purchase or sale or lease of the assets of any such corporation trust association or

concern;

(b) Power to deposit any such shares, securities or property in any voting trust or with any

depository designated thereby;

(c) Power to give proxies or power of attorney with or without power of substitution for

voting or acting on behalf of the Trustees as the owners of any such property; and

(d) Power to omit to register bonds or securities;

(5) Power (at the expense of the Trust Fund) to incorporate or register or to procure the incorporation

or registration of any company (with limited or unlimited liability) in any part of the world for any purpose,

including the acquisition of the Trust Fund or any part thereof and so that (if thought fit) the consideration on

the sale of the Trust Fund to any such company may consist wholly or partly of fully paid shares, debentures,

debenture stock or other securities of the company credited as fully paid that shall be allotted to or otherwise

vested in the Trustees and be capital moneys in the Trustees’ hands;

(6) Power at any time to apply part of the Trust Fund or the income thereof in effecting or joining in

effecting or otherwise acquiring any policy of assurance on the life of any beneficiary or of any other person or

any endowment or other policy and to maintain, surrender, exchange, exercise any option thereunder or

otherwise deal with such policies as if the Trustees were absolutely entitled thereto;

(7) Power to pay out at any time any part of the Trust Fund in purchasing or acquiring or making

improvements in or repairs to or on any land or building (whether freehold, leasehold or of any other tenure or

interest, and of whatsoever description and situate in any part of the world) in the occupation of or intended for

occupation by any beneficiary And power to permit any beneficiary to occupy until sale of any land or building

purchased or acquired as aforesaid or otherwise comprised in the Trust Fund upon such terms (as to payment or

non-payment of rent, outgoings, repairs or otherwise) as the Trustees may think fit;

(8) Power at any time or times to lay out any part of the Trust Fund in the purchase or other acquisition

of any yachts, boats, motor vehicles, works of art, household furniture, plate, linen, china, cutlery and other

articles of household use, ornament or equipment and other chattels for the use of any beneficiary whether

occupying a building purchased or acquired as aforesaid or otherwise And power to hand over to any such

beneficiary for his use any property so purchased or acquired by the Trustees as aforesaid or otherwise forming

part of the Trust Fund upon and subject to such terms and conditions (if any) as to insurance, preservation,

maintaining inventories and otherwise as the Trustees think fit;

(9) Power to grant options for such consideration and exercise at such time or times or within such

period as the Trustees think fit for the purchase of any property subject to the trusts of this instrument or the

acquisition of any interest therein;

(10) Power to keep the Trust Fund either in or out of Anguilla and, if the Trustees think fit, to hold in

any part of the world all or any securities or other property in bearer form or registered in the name of the

Trustees or nominees without disclosing the fiduciary relationship;

(11) In the event of any duties, fees or taxes whatsoever becoming payable in any part of the world in

respect of the Trust Fund or any part thereof in any circumstances whatsoever, power to pay all such duties, fees

or taxes out of the Trust Fund or the income thereof with discretion as to the time and manner in which the said

duties, fees or taxes shall be paid and the Trustees may pay such duties, fees or taxes notwithstanding that the

same shall not be recoverable from the Trustees or from any persons interested under the trusts of this

instrument or that the payment shall not be to the advantage of such persons;

Anguilla

Trusts Act R.S.A. c. T70

15/12/2000 41

(12) Power to make such reserves out of the Trust Fund or the income thereof as the Trustees deem

proper for expenses, taxes and other liabilities and to pay from capital or income or to apportion between capital

and income any expenses of making or changing investments and selling, exchanging or leasing (including

brokers’ commissions and charges) and generally to determine what part of the expenses of administering the

trusts of this instrument shall be charged to capital and what part to income;

(13) Power to make, execute and deliver deeds, assignments, transfers, leases, mortgages, instruments of

pledge creating liens, contracts and other instruments sealed and unsealed;

(14) Power to institute, prosecute and defend any suits or actions or other proceedings affecting the

Trustees or the Trust Fund and to compromise any matter of difference or to submit such matter to arbitration

and to compromise or compound any debt owing to the Trustees or any other claims and to adjust any disputes

in relation to debts or claims against them as trustees upon evidence that the Trustees shall deem sufficient and

to make partition upon such terms (including if thought fit the payment or receipt of equality money) as the

Trustees, shall deem desirable with co-owners or joint tenants besides the Trustees having any interest in any

property in which the Trustees are interested and to make partition either by sale or by set-off or by agreement

or otherwise;

(15) Power to make any distribution of the Trust Fund pursuant to the trusts of this instrument in cash or

in kind or partly in cash and partly in kind and in the case of a distribution to more than one person not strictly

rateably but on the basis of equal or other proportionate value (as the case may require) according to the

judgment of the Trustees, which shall be binding on all persons interested under this instrument;

(16) Power to take at the expense of the Trust Fund or the income thereof the opinion of legal counsel

concerning any question arising under this instrument or on any matter in any way relating to the Trust Fund or

the duties of the Trustees in connection with this instrument And the Trustees shall not be liable for any action

taken in good faith pursuant to or otherwise in accordance with the opinion or advice of such counsel;

(17) Power—

(a) to engage the services of such investment counsel adviser or manager (“the Investment

Adviser”) as the Trustees may from time to time think fit (including the Settlor or any trustee

of this instrument or any trust company or any parent subsidiary or affiliate of such trust

company) in order to obtain advice on the investment and reinvestment of the Trust Fund

AND to delegate to the Investment Adviser without being liable for any consequential loss

discretion to manage the portfolio or any part thereof within the limits and for the period

stipulated by the Trustees, and the Trustees—

(i) shall settle the terms and conditions for the remuneration of the Investment Adviser and

the reimbursement of the Investment Adviser’s expenses as in their uncontrolled

discretion they deem proper, and such remuneration and expenses may be paid by the

Trustees from and out of the Trust Fund; and

(ii) shall not be liable for any action taken in good faith pursuant to or otherwise in

accordance with the advice of the Investment Adviser;

(b) to employ and pay at the expense of the capital or income of the Trust Fund any agent or

agents in any part of the world whether solicitors, bankers, accountants, stockbrokers,

managers or other persons (including the Settlor or any trustee of this instrument or any trust

company or any parent subsidiary or affiliate of such trust company) to transact any business

or to do any act requiring to be transacted or done in execution of the trusts of this instrument

including the receipt and payment of money and the execution of documents and in any such

event the trustee, the trust company or the parent subsidiary or the affiliate of such trust

company is entitled to charge and be paid and to retain for his or its own account all usual

R.S.A. c. T70

Trusts Act Anguilla

42 15/12/2000

professional and other fees and commissions normally paid for such services including fees

and commissions shared with other agents;

Trustees may exercise powers despite personal interest

(18) Power for all or any of the Trustees—

(a) to exercise or join or concur in exercising all or any of the powers and discretions by this

instrument or by law given to the Trustees notwithstanding that such trustee may have a

personal interest in the mode or result of exercising any such power or discretion or may be

interested therein in some other fiduciary capacity but any trustee may abstain from acting

except as a merely formal party in any matter in which he may be so interested as aforesaid

and may allow his co-trustees to act alone in the exercise of such powers and discretion in

relation to such matter; and

To effect transactions

(b) to purchase or sell any property notwithstanding that the vendor or purchaser is the same as or

includes the Trustees or any of them PROVIDED that the price payable on any such purchase

or sale is certified as fair and reasonable by an independent valuer employed for the purpose

by the Trustees;

Residuary power

(19) Power to effect any transaction concerning or affecting the Trust Fund or any other property

whatsoever and to do all other acts and things that the Trustees may in their absolute discretion think expedient

in the interests of the Trust Fund or any beneficiary And for the purpose of this section, “transaction” includes

any sale, exchange, assurance, conveyance, grant, lease, surrender, reconveyance, release, reservation or other

disposition and any purchase or other acquisition and any covenant, contract, licence, option, right of preemption

and any compromise or partition and any company reconstruction or amalgamation and any other

dealing or arrangement, And “effect” has the meaning appropriate to the particular transaction And references

to property include references to restrictions and burdens affecting the property;

Powers of sale etc.

(20) All the powers of sale (by public auction or private contract), exchange, mortgaging, leasing or

other disposition, management, repair, building and improvement and all other powers of an absolute beneficial

owner in respect of any property for the time being comprised in the Trust Fund including, without prejudice to

the generality of the foregoing, the power of borrowing on the security of the Trust Fund and for such purpose

to make any outlay out of the income or capital of the Trust Fund and to make such contracts and to enter into

such undertakings relating thereto as the Trustees in their absolute discretion shall think fit;

(21) Power to spend capital moneys of the Trust Fund on erecting buildings on land for the time being

comprised in the Trust Fund or on demolishing and rebuilding or on altering or improving buildings on it or

otherwise on improving said land as the Trustees think fit (and any certificate of any architect or surveyor

employed by the Trustees or of any Trustee who is qualified as an architect or surveyor that the work specified

in such certificate consists only of alteration or improvement shall be conclusive as between the Trustees and all

persons interested under the Trust that any capital money spent on such work was properly spent by the

Trustees in exercise of the powers conferred by this subparagraph) And to employ any of the capital of the Trust

Fund in repairing, developing, enlarging, equipping, furnishing, insuring and maintaining the said land and

buildings and fixtures on it;

(22) Where the trust property includes any chattel, the Trustees may employ any of the capital of the

Trust Fund in repairing or insuring such chattel and may store, lend or hire it on such terms as the Trustees think

fit;

Anguilla

Trusts Act R.S.A. c. T70

15/12/2000 43

Power to give guarantees

(23) Power at any time in the Trustees’ discretion and on such terms as they deem fit to appropriate or to

apply the capital or income of the Trust Fund or any part thereof in order to secure the payment of money owed

by any beneficiary or the performance of any obligations of any beneficiary and to give any guarantee or to

become surety for any beneficiary and for such purposes to mortgage or charge any investments or property for

the time being forming part of the Trust Fund or to deposit or transfer any such investments or property with or

to any person by way of security;

To release fiduciary powers

(24) Power from time to time by deed revocable or irrevocable wholly or partially to release, extinguish

or restrict any power by this instrument or by law conferred on the Trustees notwithstanding the fiduciary

nature of any such power (but not so as to invalidate any prior exercise thereof).

Exclusion of apportionments

5.

income received shall be treated for all purposes as income accruing at the due date of payment whether or not

such dividends or income may have been earned and accrued wholly or partially in respect of a period prior to

such date.

UNLESS the Trustees in their absolute discretion shall otherwise determine all dividends and other

Protection of third parties in dealings with trustees

6.

Trustees shall be concerned to enquire into the propriety or validity of any act of the Trustees or to see to the

application of any money paid or property transferred to or upon the order of the Trustees.

(2) NO firm, association or company, any of whose securities are comprised in the Trust Fund, and no

purchaser or person dealing with any trustee purporting to act under any delegation of authority from any other

trustee shall be required to ascertain or enquire whether a case exists in which such delegation is permitted or

whether such delegated authority is still subsisting.

(3) WHEN anything is dependent upon the value of any property or the existence of any fact, a

certificate of the Trustees as to such value or fact shall be conclusive in favour of anyone acting thereon in good

faith.

(1) NO person or company dealing with the Trustees and no purchaser on any sale made by the

Power in relation to underlying company or companies

7.

subsidiary or affiliate of such trust company may act as a director, officer, manager or employee of any

company whose shares or debentures may be comprised in the Trust Fund or as a director, officer, manager or

employee of any subsidiary or holding company of any such company and may retain for himself or itself any

remuneration that he or it may receive as such director, officer, manager or employee, notwithstanding that any

votes or other rights attaching to such shares or debentures may have been instrumental either alone or in

conjunction with other matters or by reason of their non-exercise in procuring or continuing for him or it, his or

its position as such director, officer, manager or employee or that his or its qualifications for any such position

may be constituted in part or in whole by any such shares or debentures.

ANY trustee of this instrument and any director, officer or employee of a trust company or of a parent

Trustee not bound to interfere with company management

8.

business of any company in which the Trust Fund may be invested (and whether or not the Trustees have the

control of such company) And so long as no trustee of this instrument has notice of any wilful negligence,

wilful default or fraud or dishonesty on the part of the directors having the management of such company, they

may leave the same (including the payment or non-payment of dividends) wholly to such directors, And no

beneficiary is entitled as such beneficiary in any way to compel, control or forbid the exercise (including in any

particular manner) of any voting or other rights at any time vested in the Trustees with regard to such company,

THE Trustees shall not be bound or required to interfere in the management or conduct of the affairs or

R.S.A. c. T70

Trusts Act Anguilla

44 15/12/2000

including without prejudice to the generality of the foregoing, any powers the Trustees may have (even if also

directors of such company) of compelling such company to distribute any dividend.

___________

 

R.S.A. c. B10

Banking (Assigned Capital) Regulations R.R.A. B10-2

15/12/2000 7

Revised Regulations of Anguilla: B10-2

BANKING ACT (R.S.A. c. B10)

BANKING (ASSIGNED CAPITAL) REGULATIONS

Note: These Regulations are enabled under the definition of “assigned capital” in section 1 of the Banking Act,

R.S.A. c. B10.

Undertaking relating to the maintenance of assigned capital

1.

Form set out in the Schedule that an amount—

(a) equivalent to its net assets; or

(b) which supplements the amount required to be equivalent to its net assets;

which is not less than 5% of its liabilities, has been attributed or pledged as assigned capital.

Every foreign financial institution shall produce to the Central Bank an undertaking in writing in the

Citation

2.

Anguilla B10-2.

These Regulations may be cited as the Banking (Assigned Capital) Regulations, Revised Regulations of

_______________

R.R.A. B10-2

Banking (Assigned Capital) Regulations R.S.A. c. B10

8 15/12/2000

SCHEDULE

(Section 1)

LETTER OF COMFORT

We [Bank A] are the direct parent company of [Bank B] (hereinafter referred to as “our Branches”) which are

incorporated in …………………………………………………………………………………………..… and conduct banking

business at …………………….……………………………………………………………………………………………………..

in …………………………………………………………………….……………………………………………………….. .

We have set aside the amount specified in the Schedule to this letter in respect of each of our Branches, which

is equivalent to or supplements the amount which is required to be kept as assigned capital by each of our

Branches during the term of the Banking Business Licence, in accordance with Part 2 of the Banking Act and

the Banking (Assigned Capital) Regulations.

We will maintain the amount specified in the Schedule to this letter in respect of each of our Branches in

accordance with the law.

Regardless of this, we confirm to you that we accept ultimate responsibility for the maintenance of the required

amount of assigned capital by our Branches in any further way should this ever be required.

It is understood that the amount specified in the Schedule to this Letter of Comfort will be reviewed at the end

of each year in consultation with the Eastern Caribbean Central Bank in light of the balance sheet of our

Branches.

We will confirm annually any revision of the amounts specified in the Schedule to this Letter of Comfort.

This Letter of Comfort applies to each of our Branches and is valid during the term of the respective Banking

Business Licence.

Dated this …………………………….. day of ………………………….., 20…………… .

Authorised Officer:

Witness:

Address:

Occupation:

_______________

 

R.S A. c. P107

Protected Cell Companies Regulations, 2005 R.A. 5/2005 Regulation of Anguilla: 5/2005

Gazette Dated: 31 March 2005

PROTECTED CELL COMPANIES ACT (R.S.A. c. P107)

PROTECTED CELL COMPANIES REGULATIONS, 2005

Regulations made by the Governor, on the advice of the Commission, under section 25 of the Protected Cell Companies Act, R.S.A. c. P107.

Interpretation

1.

“Act” means the Protected Cell Companies Act, R.S. A. c. P107;

“Commission” means the Financial Services Commission established by the Financial Services Commission Act, R.S.A. c. F28;

“Registrar” means the Registrar of Companies;

“$” means the currency of the United States of America.

In these Regulations—

Application to be registered as a protected cell company to operate protected cell accounts

2.

An application for registration to operate protected cell accounts shall be made in the form as set out in Schedule 1.

Application to be authorised as a protected cell account of a protected cell company

3.

An application to be authorised as a protected cell account of a protected cell company shall be made in the form as set out in Schedule 2.

Application for approval of a protected cell account representative

4.

An application for the approval of a protected cell account representative shall be made in the form of a letter addressed to the Commission as set out in Schedule 3.

Application for directions of the Commission to modify provisions of the Act

5.

An application to the Commission to modify the provisions of sections 3, 5, 8 and 12 of the Act made by a protected cell company, or any company intending to file a notice pursuant to section 3 of the Act, shall be in the form of a letter accompanied by the information required in sections 24(1) and 24(4) of the Act as set out in Schedule 4.

Fees

6.

The payment of fees and late payment penalties by applicants are as set out in Schedule 5.

Notice of payments conditions imposed by the Commission under section 4(3) of the Act

7.

The Commission makes it a condition of registration of each protected cell company so registered and each protected cell account formed by each protected cell company that the payment of fees as detailed in schedule 5 is complied with within the deadlines set therein. R.S A. c. P107 Protected Cell Companies Regulations, 2005 R.A. 5/2005

Citation

8.

Made this 24th day of March, 2005

Alan Edden Huckle

GOVERNOR of Anguilla

___________ R.S A. c. P107

These Regulations may be cited as the Protected Cell Companies Regulations, 2005. Protected Cell Companies Regulations, 2005 R.A. 5/2005

SCHEDULE 1

(Section 2)

________________________________________________________

1. State the name of the company (which shall include the expression “Protected Cell Company” or “PCC”)

2. Address of the registered office of the company.

3. Address of the applicant’s place of business in Anguilla (if different from 2 above).

4. Name and address of the protected cell account representative and if different, the name and address of the person (s) (individual) resident in Anguilla who is/are authorized to represent the applicant and to accept service of documents on its behalf.

5. Address of any place (s) of business that the applicant may have outside of Anguilla.

6. Date of incorporation of the company, if already incorporated.

7. Please provide a statement verifying that the company has made provision to account for protected cell accounts in the manner as set out in section 12 of the Act. Explain any matters regarding the statement which you think the Commission should be aware of. R.S A. c. P107

8. Has the company included a statement in its articles of incorporation that the company is a protected cell company? Please provide a copy of that statement or verification from the Companies Registry that it is so included.

9. State the proposed business of the protected cell company to be registered and of the subsequent protected cell accounts to be administered (if known at the time).

10. If the proposed business of the protected cell company and of the underlying protected cell accounts is insurance, mutual fund business or another business licensed by the Commission, the appropriate application form to conduct such business should be completed and submitted to the Commission, unless the proposed company already has the appropriate licence.

11. Where the company applying to become a protected cell company has conducted business prior to this application, Attachment A of Schedule 1 of these Regulations should also be submitted, together with the appropriate attachments.

Application is hereby made for the registration of the protected cell company specified above and the undersigned it is certified that all the particulars contained in the Application and in the documents accompanying it or otherwise furnished in the support hereof are true and correct and that any change to the information submitted will be communicated to the Commission forthwith.

Dated this day of 20

___________________________

Name of Applicant

By its Director (s)

Signed ____________________ R.S A. c. P107

APPLICATION TO BE REGISTERED AS A PROTECTED CELL COMPANY TO OPERATE PROTECTED CELL ACCOUNTS

Notes

Protected Cell Companies Regulations, 2005 R.A. 5/2005 Protected Cell Companies Regulations, 2005 R.A. 5/2005

Attachment A to Schedule 1

To be completed by the applicant where the applicant company has conducted business prior to this application

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Dear Sir

Re:

We confirm that the company has conducted business prior to its registration and we apply in the name of ………………………………………………………………… (“the company”) to be registered as protected cell company under section 4 of the Protected Cell Companies Act, R.S. A. c. P107.

We hereby include the following information as attachments and make the following declarations.

i) The attached statutory declaration signed by ourselves which sets out a true and accurate description of the information required in section 3(2)(a)(i) through to section 3(2)(a)(v) of the Act.

ii) The attached evidence in writing that section 3(2) (b) of the Act has been complied with.

Please refer to sections 3(3) through to section 3(10) of the Act for further explanatory information on complying with the above declarations.

Yours faithfully,

____________________ ____________________

Director of the Company Director of the Company

____________________ _____________________

Signature Signature

Cc: Registrar

Date:

___________

R.S A. c. P107 Protected Cell Companies Regulations, 2005 R.A. 5/2005

SCHEDULE 2

APPLICATION BY A PROTECTED CELL COMPANY TO BE AUTHORISED TO FORM A PROTECTED CELL ACCOUNT

Dear Sir/Madam:

Re:

We apply in the name of …………………………………………………………………….(“the Company”) to register the following protected cell account (s)

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

………………………………………………………………………………………………………

We hereby confirm that:

1. We have done all the requisite due diligence on the protected cell account owners and source of

funds in line with the Anti-money Laundering Regulations 2000, the Guidance Notes, and all

applicable laws currently in force in Anguilla.

2. The governing instrument which details the rights, interests and obligations of the owners of R.S A. c. P107

the proposed protected cell account as specified in section 8(1) of the Act has been created and that it has been signed by all protected cell account owners.

3. Copies of any contract (s) which detail the rights, interests and obligations of counter parties as

specified in section 8(1) of the Act has/have been created and that the contract (s) has/have been signed by all relevant counter parties.

4. The above protected cell account (s) will not be undertaking insurance or mutual fund business

or any other business which would require a licence from the Commission.:

OR

5. The above protected cell account(s) will be undertaking ……………………..business which is

an activity licensed by the Commission. An application to undertake such business is attached

to this letter.

Application is hereby made for the authorization for the creation of the abovementioned protected cell account (s). The undersigned certify that all the particulars contained in the Application and in the documents accompanying it or otherwise furnished in the support hereof are true and correct and that any change to the information submitted will be communicated to the Commission forthwith.

Dated this day of 20

…………………..…

Name of Applicant

……………………..

Director of Applicant

……………………

Signature

Date:

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Protected Cell Companies Regulations, 2005 R.A. 5/2005

___________

R.S A. c. P107 Protected Cell Companies Regulations, 2005 R.A. 5/2005

SCHEDULE 3

APPLICATION FOR APPROVAL OF A PROTECTED CELL ACCOUNT REPRESENTATIVE

Date:

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Dear Sir,

Re:

We hereby apply for approval to appoint………………………………………………………………………….

of

as a protected cell account representative in Anguilla.

Yours faithfully,

………………………………..

Director of the Company

………………………………..

Signature

(state physical address)…………………………………………………………………………………………

___________

R.S A. c. P107 Protected Cell Companies Regulations, 2005 R.A. 5/2005

SCHEDULE 4

APPLICATION FOR DIRECTIONS OF THE COMMISSION TO MODIFY PROVISIONS OF THE ACT

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Dear Sir,

Re: (“The name of the company”)

We hereby apply in accordance with section 24 of the Act for the

We have attached a letter setting out the reasons why we believe these sections should be disapplied or modified.

Yours faithfully,

…………………………

Director of the Company

………………………….

Signature

Date:

(delete as appropriate) disapplication/ modification of the following sections of the Act. (delete as appropriate – Section 3, Section 5, Section 8 and or Section 12).

___________

R.S A. c. P107 Protected Cell Companies Regulations, 2005 R.A. 5/2005

SCHEDULE 5

(Section 30 of the Act)

FEES

Where the Protected Cell Company is applying for registration to conduct insurance business

Application fee $500

Licence fee $1,500

Annual fee $1,500

For the approval of each cell account $350

For the annual fee for each cell account $350 up to a maximum of $3,500 per annum

Where the Protected Cell Company is applying for registration to conduct mutual fund business

Application fee $350

Licence fee $350

For the approval of each cell account $350

For the annual fee for each cell account $350 up to a maximum of $3,500 per annum

Where the Protected Cell Company being registered is applying to conduct a non-licensed activity*

For the approval of each cell account $100 each for the first 10 cell accounts

For the annual fee for each cell account $100 each for the first 10 cell accounts

*For a protected cell company which conducts a non-licensed activity, a maximum of 15 cell accounts can be formed unless an exemption is granted by Commission upon receipt of a request in writing from the protected cell company directors or authorized agents. The first 10 cell accounts will be required to pay both an approval and annual fee. The remaining 5 cell accounts will be exempted from this requirement.

The normal registration/incorporation fee and annual filing fee for a company incorporated under the Companies Act 2000 is paid to the Registrar.

Date by which Annual Fees must be paid

The annual fee must be paid on or before every 31st of December during the currency of the registration of the protected cell company or approval of the protected cell account.

If the annual fee is not paid on or before every 31st December but is paid on or before the 31st March in the same year, a late payment penalty of 25% of the annual fee will be additionally payable.

If the annual fee is not paid on or before every 31st March in the same but is paid on or before the 30th June in the same year, a late payment penalty of 50% of the annual fee will be additionally payable. R.S A. c. P107

If the annual fee is not paid on or before every 30th June in the same year, the protected cell company will be in breach of the Act and the Commission will invoke section 29 to have the company removed from the register. If the non-payment of the annual fee for an individual cell account is not paid by this date, the Commission will require the protected cell company to remove the protected cell account from within the terms of its governing instrument.

Protected Cell Companies Regulations, 2005 R.A. 5/2005 ___________

Complete all sections and attach supplementary sheets where appropriate.

Completed forms should be submitted to:-

FINANCIAL SERVICES COMMISSION

P.O. BOX 1575

THE VALLEY

ANGUILLA

Tel: 1 264 497 5881

Fax: 1 264 497 5872

And be accompanied by the non-refundable Application Fee set out in Schedule 5.

 

REVISED STATUTES OF ANGUILLA

CHAPTER P107

PROTECTED CELL COMPANIES ACT

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

This Edition consolidates Act 7/2004, in force 1 October 2004

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

 

A

NGUILLA

REVISED STATUTES OF ANGUILLA

CHAPTER P107

PROTECTED CELL COMPANIES ACT

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

This Edition consolidates Act 7/2004, in force 1 October 2004

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

©

All rights reserved. No part of this publication may be reproduced in any form or by any means (including

photocopying) without the written permission of the Government of Anguilla except as permitted by the

Copyright Act or under the terms of a licence from the Government of Anguilla.

Government of Anguilla

Anguilla

Protected Cell Companies Act R.S.A. c. P107

15/12/2004 3

PROTECTED CELL COMPANIES ACT

TABLE OF CONTENTS

P

PRELIMINARY

S

ART 1ECTION

1. Interpretation

P

REGISTRATION

2. Application for registration to operate protected cell accounts

3. Notice and documents to be filed

4. Registration and register of protected cell companies

5. Removal from the register

P

MANAGEMENT AND ADMINISTRATION

6. Company to inform persons they are dealing with protected cell company

7. Protected cell account representative

8. Governing instruments and contracts

9. Allocation of assets and liabilities

10. Issue of securities linked to a protected cell account

11. Dividends, distributions, redemptions, repurchases and reduction of capital

12. Accounts, records and registers

13. Nature of protected cell accounts, application of assets and liabilities

14. Internal transactions

15. Creditor enforcement rights limited to account assets

16. Rights and obligations with respect to protected cell accounts

P

RECEIVERSHIP AND WINDING UP

17. Receivership orders

18. Application for receivership orders

19. Functions and powers of receiver

20. Discharge and variation of receivership orders

21. Remuneration of receiver

22. Winding up of protected cell companies

23. Application of assets

R.S.A. c. P107

ART 2ART 3ART 4Protected Cell Companies Act Anguilla

4 15/12/2004

P

GENERAL

24. Directions of Commission to modify the provisions of this Act

25. Regulations

26. Effect on transaction and interests in a protected cell account of infringement of this Act

27. Suits and actions against Registrar

28. Registrar to be indemnified in respect of foreign suits

29. Offences

30. Fees

31. Citation

Anguilla

ART 5Protected Cell Companies Act R.S.A. c. P107

15/12/2004 5

PROTECTED CELL COMPANIES ACT

P

PRELIMINARY

ART 1

Interpretation

1.

“account owner”, in relation to a protected cell account, means any person who is—

(a) the registered holder of shares which are—

(i) issued by the protected cell company, and

(ii) linked to that protected cell account;

(b) expressly identified in the governing instrument linked to a protected cell account as

being an account owner for the purposes of this Act in respect of that protected cell

account; or

(c) expressly designated in the records of the protected cell company as being an account

owner in respect of that protected cell account;

and the interests of an account owner in any of the foregoing capacities in relation to any

protected cell account are referred to in this Act as “account holdings”;

“appointed newspaper” means the

“Arbitration Act” means the Arbitration Act and includes any statutory modifications made thereto;

“Commission” means the Anguilla Financial Services Commission established under section 2 of the

Financial Services Commission Act;

“Companies Act” means the Companies Act and includes any statutory modifications made thereto;

“contract” includes written agreements, instruments or other writings (including electronic records)

which create or affect rights or obligations;

“counterparty” means any party (other than the protected cell company itself, save where section

14(1) applies) to a transaction to which the protected cell company is a party, and under which

assets or liabilities are wholly or partly linked to a protected cell account, but an account

owner shall not (in that capacity) also be a counterparty;

“court” means the High Court;

“creditor” means, in respect of any protected cell account (and in that regard may include a

counterparty of the protected cell account) or the general account respectively, any person to

whom any liability is owed by the protected cell company and such liability is linked to that

R.S.A. c. P107

(1) In this Act—Gazette;Protected Cell Companies Act Anguilla

6 15/12/2004

protected cell account or is a liability of the general account, as the case may be; but, except as

provided for in section 16(12), an account owner shall not (in that capacity) also be a creditor;

“dollar”or “$” means a dollar in the currency of the United States of America;

“general account” means an account comprising all of the assets and liabilities of a protected cell

company which are not linked to a protected cell account of that company;

“general shareholder” means any member of a protected cell company not being the holder of a share

linked to a protected cell account;

“governing instrument” means one or more written agreements, instruments, by-laws, prospectuses,

resolutions of directors, registers or other documents (including electronic records), setting out

the rights, obligations and interests of account owners in respect of a protected cell account;

“Governor” means the Governor in Council;

“insurance business” means insurance business as defined in section 1 of the Insurance Act;

“known creditors” means creditors whose identity and whereabouts are known to, or with due

diligence could be discovered by, the company, or other persons known to the company;

“linked” means referable by means of—

(a) an instrument in writing including a governing instrument or contract;

(b) an entry or other notation made in respect of a transaction in the records of a protected

cell company; or

(c) an unwritten but conclusive indication;

which identifies an asset, right, contribution, liability or obligation as belonging or pertaining

to a protected cell account;

“manager” means any person who, by virtue of the terms of a governing instrument or otherwise with

the consent of a protected cell company and the account owners of any protected cell account,

has control of a protected cell account;

“mutual fund” means a mutual fund within the meaning of section 1(1) of the Mutual Funds Act;

“officer” in relation to a protected cell company, includes director and secretary;

“operative date” means 1 October 2004;

“protected cell account” means a separate and distinct account (comprising or including entries

recording data, assets, rights, contributions, liabilities and obligations linked to such account)

of a protected cell company pertaining to an identified or identifiable pool of assets and

liabilities of such protected cell company which are protected cell or distinguished from other

assets and liabilities of the protected cell company for the purposes of this Act;

Anguilla

Protected Cell Companies Act R.S.A. c. P107

15/12/2004 7

“protected cell company” means a company which is registered under section 4 and, unless the

context otherwise requires, references to the “company” shall be construed as references to

such company;

“register” means the register of protected cell accounts companies maintained under section 4;

“registered” means registered under section 4;

“Registrar” means the Registrar of Companies;

“security”, in relation to a protected cell company, means any share, note, bond, debenture, evidence

of indebtedness, certificate, unit, warrant, or right conferring an option to acquire shares or any

other right issued by or pertaining to the company, but does not include a contract of insurance

unless the terms of the contract so provide;

“transaction” means any dealing of whatever nature, which may be evidenced by a governing

instrument (in the case of a transaction with an account owner) or contract (in the case of a

transaction with a counterparty), including the issue of any security, by which assets or

liabilities become linked to a protected cell account or by which the assets or liabilities linked

to a protected cell account are otherwise affected, or, in the case of assets linked to a protected

cell account which are intended by the parties to be applied to a risk of any nature, any dealing

which exposes such assets to liability or loss.

(2) For the purposes of this Act, excluding section 22(1)—

(a) a protected cell company shall be deemed to be solvent if the general account is able

to pay its liabilities as they become due; or where a protected cell company is

undertaking insurance business it shall be deemed to be solvent if the total amount of

its assets exceed the total amount of its liabilities by at least the minimum margin of

solvency that it is required to maintain under the Insurance Act;

(b) a protected cell account shall be deemed to be solvent if it is able to pay its liabilities

(excluding obligations to account owners in that capacity) as they become due.

P

REGISTRATION

ART 2

Application for registration to operate protected cell accounts

2.

(a) if it is engaged in insurance business; or

(b) if it is not so engaged, with the approval of the Commission;

may, by filing a notice under section 3, apply to be registered under section 4.

(2) From the date of registration under this Act, a protected cell company shall be bound by,

and may avail itself of, the provisions of this Act and from such date it may, without in any way

R.S.A. c. P107

(1) Any company to which the Companies Act applies—Protected Cell Companies Act Anguilla

8 15/12/2004

limiting the generality of the foregoing, establish one or more protected cell accounts to which the

provisions of this Act shall apply.

(3) The provisions of the Companies Act shall, subject to the provisions of this Act, and

unless the context requires otherwise, apply in relation to a protected cell company.

Notice and documents to be filed

3.

following information—

(a) the name of the company which shall include the expression “Protected Cell”, “PCC”

or any cognate expression approved by the Commission;

(b) a statement that the company intends to operate protected cell accounts;

(c) the address of the registered office of the company;

(d) the name and address of the protected cell account representative of the company;

(e) the nature of the business of the company;

(f) the date of incorporation of the company;

(g) a statement that the company has made provision to account for protected cell

accounts in the manner set out in section 12; and

(h) a statement that the articles of incorporation will include a provision that the company

is a protected cell company.

(2) Where the company has conducted business prior to its registration, the company, in filing

a notice under subsection (1), shall—

(a) file with the Registrar a statutory declaration made by at least 2 directors as at the date

of the notice setting out a true and accurate statement or description of—

(i) the assets and liabilities of the company as at a date within 3 months prior to the

date of the notice,

(ii) any transaction or event which, as of the date of the notice, has occurred, or is

expected to occur, between the date of the statement of assets and liabilities

prepared pursuant to subparagraph (i) and the date of registration of the company

as a protected cell company which, if it had occurred before the date of that

statement, would have caused material changes to the assets and liabilities

disclosed therein, and

(iii) the protected cell accounts the company intends to operate and the assets and

liabilities which the company proposes to assign to each of those protected cell

accounts,

and declaring that—

Anguilla

(1) The notice shall be in such form as the Commission may determine but shall contain theProtected Cell Companies Act R.S.A. c. P107

15/12/2004 9

(iv) on registration, the company and each protected cell account will be solvent

and—

(A) no known creditor of the company will be prejudiced,

(B) the known creditors of the company have consented in writing to the

company proceeding to register, or

(C) adequate notice has been given in accordance with subsection (3) to all

known creditors of the company and no creditor objects to the registration

otherwise than on grounds that are frivolous or vexatious,

(v) no creditor of the company will be prejudiced, or

(vi) the creditors of the company have consented in writing to the company

proceeding to register; and

(b) attach evidence of the consent in writing to registration of 75% in number of those

persons who would, on the registration of the company, be the account owners of the

protected cell accounts of the company and 75% in number of those persons who

would, on the registration of the company, be creditors.

(3) For the purposes of subsection (2)(a)(iv)(C) adequate notice is given if—

(a) a notice in writing is sent to each known creditor having a claim against the company

that exceeds $1,000; and

(b) notice is published in an appointed newspaper;

in each case stating that the company intends to register and that a creditor of the company may

object to the registration within 28 days from the date of such notice, or publication of such notice, as

the case may be.

(4) Subject to subsection (5), an account owner or creditor who objects to the registration of

the company may apply to the court for the annulment of the registration of the company.

(5) An application under subsection (4) may only be made by—

(a) not less than 20% in number of such persons who would, on the registration of the

company, be account owners;

(b) not less than 20% in number of such persons who would, on the registration of the

company, be creditors; or

(c) not less than 20% in number of such persons as are mentioned in paragraphs (a) and

(b) combined who would be account owners or creditors on registration:

but an application shall not be made by any person who has voted in favour of the registration or has

given to the company a statement in writing duly signed that he, having had notice, consents to the

registration.

R.S.A. c. P107

Protected Cell Companies Act Anguilla

10 15/12/2004

(6) An application under subsection (4) shall be made within 28 days from the date of

registration, and may be made on behalf of the persons entitled to make the application by one or

more of their number as they may appoint in writing for the purpose.

(7) On an application under subsection (4) the court may make an order annulling or

confirming the registration, either wholly or in part, and on such terms and conditions as it thinks fit,

and may, if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the

satisfaction of the court for the purchase or other disposition of the interests of dissentient persons,

and may give such directions and make such orders as it may think expedient for facilitating or

carrying into effect any such arrangement but no part of the capital of the company or of any

protected cell account shall be expended in the purchase or other disposition of the interests of

dissentient persons.

(8) Where a company—

(a) has conducted business prior to filing a notice under subsection (1); and

(b) has filed such notice;

it shall cause a copy of the notice to be contemporaneously given to all persons who, on the

registration of the company, would be account owners and to its known creditors.

(9) If there is any material alteration of the particulars set out in subsection (2) between the

date of the notice filed pursuant to subsection (1) and the date of registration, then the company shall

give further notice to the Registrar of such alteration of particulars.

(10) The notice filed pursuant to subsection (1) and any documents accompanying that notice

shall be treated as confidential by the Registrar and all public officers having access thereto, but this

subsection does not preclude the disclosure of information for the purpose of enabling the

Commission to exercise any functions conferred upon it by this Act.

Registration and register of protected cell companies

4.

(2) Upon application and upon payment of such fee as may be prescribed, the Registrar, if

satisfied—

(a) that the company is capable of complying with this Act; and

(b) that the Commission consents in writing to the registration;

may register the company as a protected cell company.

(3) The Commission may—

(a) impose such conditions, whether on the company or any person with it, on the

granting of its consent to the registration of a company as it may consider necessary to

ensure the reputation of Anguilla and, in particular, to vet the account owners of

protected cell accounts and to ensure compliance with this Act; and

Anguilla

(1) The Registrar shall maintain a register of protected cell companies.Protected Cell Companies Act R.S.A. c. P107

15/12/2004 11

(b) require the company to take certain steps or to refrain from adopting or pursuing a

particular course of action or to restrict the scope of its protected cell accounts

business in a particular way.

(4) The Commission may revoke or vary any condition or requirement imposed under

subsection (3) by giving notice thereof to the company.

(5) After registering a company pursuant to subsection (2), the Registrar shall issue a

certificate showing the date of registration.

(6) The Registrar shall place a copy of the certificate referred to in subsection (5) on the

public file maintained by him in respect of the company.

(7) The register shall be available for inspection by members of the public.

(8) Where the Registrar refuses to register a company pursuant to subsection (2), he shall not

be bound to assign any reason for his refusal and his decision shall not be subject to appeal or review

in any court.

Removal from the register

5.

company attaching thereto evidence of the consent in writing of 75% in number of the account

owners of the protected cell accounts of the company and of 75% in number of any counterparties

who are creditors, shall remove the company from the register and the provisions of this Act shall

cease to apply to the company.

(2) A request under subsection (1) shall be in such form as the Registrar may determine, but

shall include a statutory declaration made by a majority of the directors of the protected cell company

to the effect that no creditor of the company will be prejudiced by, or that the known creditors have

consented in writing to, the removal of the company from the register and shall have attached to the

declaration a true and accurate statement of—

(a) the assets and liabilities of the company as at a date within the 3 months prior to the

date of the request;

(b) a description of any transaction or event which, as of the date of the request, is

expected to occur between the date of the statement of assets and liabilities prepared

pursuant to paragraph (a) and the date of the removal of the company as a protected

cell company which, if it had occurred before the date of the statement of assets and

liabilities, would have caused significant changes to the assets and liabilities disclosed

therein; and

(c) the protected cell accounts which the company has operated and the assets and

liabilities which were linked to each of those protected cell accounts.

(3) If there is any material alteration of the particulars set out in subsection (2) between the

date of the request given pursuant to subsection (1) and the removal of the company from the register,

the company shall give notice to the Registrar of such alteration in particulars.

R.S.A. c. P107

(1) Subject to this section, the Registrar, on receipt of a request in writing by a protected cellProtected Cell Companies Act Anguilla

12 15/12/2004

(4) A protected cell company shall circulate contemporaneously with the request to the

Registrar under subsection (1) notice of that request to all account owners of the protected cell

company and to all creditors.

(5) An account owner of a protected cell account or any creditor who is aggrieved by a

request made pursuant to subsection (1) may, within 21 days of receipt of notice of the request, apply

to the Registrar to refuse to remove the protected cell company from the register or, if the removal has

already occurred, to reinstate the company on the register.

(6) Where an application has been made under subsection (5) and the Registrar has made a

decision on the application, any person who is aggrieved by that decision may, within 21 days of the

decision, appeal to the court and the court shall hear the matter and make such order as it thinks fit.

(7) The making of a request pursuant to subsection (1) shall not of itself effect the removal of

a protected cell company from the register and the Registrar in his absolute discretion shall determine

whether to give effect to the removal of the company from the register and, in this regard, may

require such information from the company as he considers necessary to render such decision.

(8) Without prejudice to the provisions of Part 6 Division 2 of the Companies Act (which

relates to the powers of the Minister to investigate the affairs of a company), the Registrar may,

whether on his own initiative or on application by an account owner or a counterparty, remove a

protected cell company from the register where the company has materially breached—

(a) the provisions of this Act or a condition or requirement imposed under section 4(3); or

(b) the terms of any direction given pursuant to section 24 or regulation made under

section 25;

but the rights and obligations of any account owner and of any creditor shall be unaffected by the

removal, and the powers of the company shall continue in respect of such accrued rights and

obligations but solely for the discharge thereof.

(9) Where the Registrar intends to remove a protected cell company from the register pursuant

to subsection (8), he shall give the company notice of that intention and, before giving effect to the

removal of the company from the register, he shall take into account any representations made by the

company within such period as may be specified in the notice.

P

MANAGEMENT AND ADMINISTRATION

ART 3

Company to inform persons they are dealing with a protected cell company

6.

(a) inform any person with whom it enters into a transaction that it is a protected cell

company;

(b) where the transaction relates to a protected cell account, for the purposes of that

transaction, identify or specify that protected cell account; and

Anguilla

A protected cell company or any person associated with it shall—Protected Cell Companies Act R.S.A. c. P107

15/12/2004 13

(c) include reference to the fact that the company is a company registered under the

Protected Cell Companies Act on its letterhead and contracts.

Protected cell account representative

7.

representative in Anguilla who shall be a person approved by the Commission as the protected cell

account representative of the company.

(2) The particulars of the protected cell account representative of a protected cell company

shall be included in the register of directors and officers of the company maintained pursuant to

section 152 of the Companies Act.

(3) It is the duty of the protected cell account representative within 30 days of—

(a) his reaching the view that there is a reasonable likelihood of a protected cell account

or the general account of a protected cell company for which he acts becoming

insolvent; or

(b) it coming to his knowledge or his having reason to believe that the protected cell

company for which he acts—

(i) has failed to comply with—

(A) any requirement or condition imposed under section 4(3),

(B) any requirement imposed by section 8, 11 or 12,

(C) any direction given under section 24, or

(D) any regulation made under section 25; or

(ii) has become involved in any criminal proceedings in Anguilla or elsewhere;

to make a written report to the Commission and the Registrar setting out all the particulars of the case

that are available to him relating to the insolvency, failure or involvement.

(1) A protected cell company shall appoint and maintain a protected cell account

Governing instruments and contracts

8.

evidenced in a governing instrument and the rights, interests and obligations of counterparties shall be

evidenced in the form of contracts.

(2) The governing instrument in relation to any protected cell account shall be deemed to be

governed by the laws of Anguilla and the parties thereto shall be deemed to submit to the jurisdiction

of the courts of Anguilla and, in relation to such governing instrument—

(a) a person shall become an account owner and shall become bound by the governing

instrument if such person complies with the conditions, if any, for becoming an

account owner as set out in the governing instrument;

R.S.A. c. P107

(1) The rights, interests and obligations of account owners in a protected cell account shall beProtected Cell Companies Act Anguilla

14 15/12/2004

(b) an account owner shall take such interest in a protected cell account as may be

stipulated in respect of him in accordance with the terms of the governing instrument

and, absent such stipulation or other compelling indication (in the discretion of the

directors of the company, exercised reasonably), the extent of the interest of such

account owner shall be nil;

(c) if no other provision for management is specified in the governing instrument, the

protected cell company shall manage the protected cell account and may—

(i) appoint and supervise the officers, managers, employees and other persons who

have management of the protected cell account, and

(ii) enter into financial arrangements for payment for services including the charging

of fees, disbursements and other charges which the manager shall be authorized to

withdraw from the protected cell account;

(d) unless otherwise provided in the governing instrument, the protected cell company

may take any action, including—

(i) the amendment of the governing instrument,

(ii) the appointment of one or more managers,

(iii) for the benefit of the protected cell account only, the sale, lease, exchange,

transfer, pledge or other disposition of all or any part of the assets of the protected

cell account, or the orderly winding-up of the affairs and termination of the

protected cell account,

or may provide for the taking of any action to create under the provisions of the

governing instrument a class, group or series of account holdings that was not

previously outstanding, without the vote or approval of any particular manager or

account owner, or class, group or series of managers or account owners;

(e) the protected cell company may, if and to the extent that voting rights are granted

under the governing instrument, set forth provisions relating to—

(i) notice of the time, place or purpose of any meeting at which any matter is to be

voted on,

(ii) waiver of any such notice,

(iii) action by consent without a meeting,

(iv) the establishment of record dates,

(v) quorum requirements,

(vi) voting in person, by proxy or in any other manner, or

(vii) any other matter with respect to the exercise of any voting rights;

Anguilla

Protected Cell Companies Act R.S.A. c. P107

15/12/2004 15

(f) unless otherwise provided in the governing instrument in relation to a protected cell

account, the protected cell company may in respect of that account grant to, or

withhold from, all or certain managers or account owners, or a specified class, group

or series of managers or account owners, the right to vote, separately or with any or

all other classes, groups or series of managers or account owners, on any matter, such

voting being on a per capita, number, financial interests, class, group, series or any

other basis;

(g) unless otherwise provided in the governing instrument in relation to a protected cell

account, the protected cell company in respect of that account may create further

protected cell accounts to which all or any part of the assets, liabilities, profits or

losses linked to any existing protected cell account may be transferred, and for the

conversion of the interest (or any part thereof) of all or certain account owners in an

existing protected cell account into interests of account owners in the separate

protected cell account; and

(h) unless otherwise provided in the governing instrument in relation to a protected cell

account, the protected cell company in respect of that account may set forth

provisions therein regarding—

(i) the governance of the business (or any aspect thereof) of the protected cell

account and the rights, powers and duties of the company, any manager and the

account owner and their respective servants, agents, employees, successors or

assigns,

(ii) the identity of the protected cell account to which the transaction and any assets

or liabilities are linked, and

(iii) the extent of the interest of the account owners and others (if any) therein and

subordination thereof (if any).

(3) Any contract governing a transaction with a counterparty, including those executed

outside Anguilla, shall include the name of the counterparty, and, unless otherwise provided therein,

shall include an implied term that the parties select the law of Anguilla as its governing law and

submit to the jurisdiction of the courts of Anguilla.

(4) Unless otherwise expressly agreed in writing by the parties to the transaction—

(a) by virtue of a governing instrument or contract which is binding on those parties in

relation to the affected protected cell accounts or general account, as the case may be,

and which is executed by parties having authority in relation to those accounts; and

(b) in the case of a mutual fund only where the document or documents mentioned in

paragraph (a) clearly indicate an intention of the parties to extend liability to more

than one protected cell account or the general account as permitted by this section and

contain a specific reference to this subsection and to section 13(5),

any contract pertaining to a transaction shall be deemed to contain a statement that the rights of the

counterparty shall not extend to, and the counterparty will not have recourse to, the assets which are

linked to any other protected cell account or to the general account.

R.S.A. c. P107

Protected Cell Companies Act Anguilla

16 15/12/2004

(5) For the avoidance of doubt, it is hereby declared that any provision of a contract or

governing instrument relating to the segregation of assets or liabilities of a protected cell account shall

be governed by and construed in accordance with this Act, and the parties may not contract otherwise

in such regard.

Allocation of assets and liabilities

9.

mutual fund company (and in the case of a mutual fund company only where the relevant contract or

governing instrument contains a specific reference to sections 8(4) and 13(5)) may allocate an asset or

liability between 2 or more protected cell accounts and the general account.

(2) Where a protected cell company has allocated an asset or liability pursuant to subsection

(1), the extent to which the asset or liability is linked to each protected cell account shall be clearly

indicated in the contract or governing instrument effecting the allocation.

(1) Notwithstanding any other provision of this Act, a protected cell company that is not a

Issue of securities linked to a protected cell account

10.

the same protected cell account, the proceeds of issue of which shall be included in the assets linked

to that protected cell account.

(2) Where a protected cell company has effected a transaction by issuing a security linked to a

protected cell account, the issue of the security shall be identified as being linked to the protected cell

account in the accounts, books and records required to be kept by the company pursuant to this Act.

(3) Notwithstanding any enactment to the contrary except section 157 of the Companies Act,

no record or register or that part of a record or register detailing any ownership of such security shall

be open to public inspection save that any owner thereof shall be entitled to receive a copy of the

information contained therein pertaining to such security.

(4) For the avoidance of doubt, the provisions of section 157 of the Companies Act shall not

apply to a protected cell company that is a mutual fund.

(5) The proceeds of the issue of shares or other securities, other than securities linked to a

protected cell account, shall be included in the general assets of the protected cell company only and

the general shareholders shall have no rights to the assets of any protected cell account by reason only

of being a general shareholder.

(1) A protected cell company may create and issue securities in one or more classes linked to

Dividends, distributions, redemptions, repurchases and reduction of capital

11.

securities of any class linked to a protected cell account whether or not a dividend or distribution is

declared on any other class of securities linked to the same or any other protected cell account or any

other securities issued by the company.

(2) Notwithstanding any other provision of this Act, a dividend shall not be declared or paid,

or a distribution declared or made, in respect of securities or other account holdings linked to a

protected cell account if there are reasonable grounds for believing that—

(a) the protected cell account is not, or would after the distribution or dividend payment

not be, solvent; or

Anguilla

(1) A protected cell company may pay a dividend or make a distribution in respect ofProtected Cell Companies Act R.S.A. c. P107

15/12/2004 17

(b) the realisable value of the assets of the protected cell account would thereby be less

than the aggregate of its liabilities and stated share capital of all classes.

(3) Dividends or distributions in respect of securities linked to a protected cell account shall

be paid or made on or in respect of those securities by reference only to the assets and liabilities of the

protected cell account linked to those securities, and not by reference to the general account or any

other protected cell account, and otherwise in accordance with the rights of such securities.

(4) Section 52 of the Companies Act does not apply to a protected cell company in relation to

a dividend or distribution in respect of a protected cell account, declared, paid or made under this

section.

(5) Notwithstanding sections 40(2) and 42(2) of the Companies Act, a protected cell company

may repurchase or redeem the shares or other account holdings using the assets linked to the relevant

protected cell account provided that—

(a) on the date of repurchase or redemption after taking into account the repurchase or

redemption, there are reasonable grounds for believing that the relevant protected cell

account is solvent; or

(b) all creditors with claims linked to that protected cell account on that date have

expressed in writing their concurrence to the repurchase or redemption.

(6) Paragraph (2)(b) and subsection (5) of this section and section 12(4) shall not apply to a

mutual fund.

(7) A protected cell company which is a mutual fund may redeem or repurchase for

cancellation shares using the assets linked to the relevant protected cell account provided that, on the

date of redemption or repurchase, there are reasonable grounds for believing that the relevant

protected cell account is solvent and would remain so after the redemption or repurchase.

(8) A protected cell company which is a mutual fund on the redemption or repurchase of

shares linked to a protected cell account may—

(a) repay the capital paid on such shares out of paid in capital, additional paid in capital or

other reserves of the company linked to the relevant protected cell account; or

(b) pay the premium, if any, out of realised or unrealised profits, additional paid in capital

or other reserves of the company linked to the relevant protected cell account, on such

terms and in such manner and at such price as may be determined having regard to the

asset value of such shares as ascertained in accordance with the governing instrument.

(9) A protected cell company which is a mutual fund on the redemption or repurchase of

shares linked to a protected cell account may effect the redemption or repurchase out of the assets of

the company linked to the relevant protected cell account, on such terms and in such manner and at

such price as may be determined having regard to the asset value of such shares as ascertained in

accordance with the governing instrument.

(10) In any case where a protected cell company in respect of a protected cell account has share

capital, if authorised in a general meeting of the account owners of the protected cell account to

which the shares are linked and subject to the governing instrument in relation to that protected cell

R.S.A. c. P107

Protected Cell Companies Act Anguilla

18 15/12/2004

account, on such terms as it may decide, the company may reduce its capital in any way, and in

particular, without prejudice to the generality of the foregoing power, by—

(a) extinguishing or reducing the liability on any of its shares in respect of capital not paid

up;

(b) either with or without extinguishing or reducing liability on any of its shares,

cancelling any paid up capital that is lost or unrepresented by available assets; or

(c) either with or without extinguishing or reducing liability of any of its shares and either

with or without reducing the number of such shares, paying off any paid up capital

that is in excess of the requirements of the company.

(11) No company shall reduce the amount of its share capital in respect of a protected cell

account—

(a) unless, at a date not more than 30 days and not less than 15 days before the date on

which the reduction of the share capital is to have effect, the company causes a notice

to be published in an appointed newspaper stating—

(i) the amount of the capital of the protected cell account as last determined by the

company,

(ii) the amount to which the share capital of the protected cell account is to be

reduced, and

(iii) the date on which the reduction is to have effect; and

(b) if, on the date the reduction is to be effected, there are reasonable grounds for

believing that the protected cell account is not, or after the reduction would not be,

solvent.

(12) Unless the governing instrument pertaining to the affected protected cell account

otherwise provides, where the capital of a protected cell account is reduced by the cancellation of

shares and part only of a class of shares is to be cancelled, the shares to be cancelled shall be

selected—

(a) by lot in such manner as the directors shall determine;

(b) as nearly as may be in proportion to the number of shares of the class registered in the

name of each account holder; or

(c) in such other manner as the directors determine with the consent of the majority of the

account owners of the class to be cancelled.

(13) Where shares are to be cancelled in order to reduce the capital of a protected cell company

in respect of a protected cell account, the shares shall be acquired at the lowest price at which, in the

opinion of the directors, the shares are obtainable, but not exceeding an amount, if any, stated in or

determined by the governing instrument.

Anguilla

Protected Cell Companies Act R.S.A. c. P107

15/12/2004 19

(14) Where a company in respect of a protected cell account having share capital reduces the

amount of that share capital, then within 30 days after the date as from which the reduction has effect

the company shall file a memorandum, with a copy of the notice referred to in subsection (11)(a) in

the office of the Registrar stating that this section has been duly complied with.

(15) If any company fails to comply with subsection (11), (12) or (13) every officer of the

company is liable to a fine of $5,000, and if the company fails to comply with subsection (14) the

company is liable to a fine of $20 for every day during which such failure continues.

Accounts, records and registers

12.

(a) maintain records that will enable financial statements to be prepared in accordance

with accepted accounting principles so that the records shall, to the best of the

knowledge, information and belief of the directors and officers of the company,

clearly show the share capital, proceeds or rights issues, securities, reserves, assets,

liabilities, income and expenses, dividends and distributions that are linked to each

protected cell account;

(b) maintain a record of each transaction entered into by the company; and

(c) maintain a general account which records in accordance with this Act all of the assets

and liabilities of the company which are not linked to a protected cell account and

which discloses any assets intended by the parties to be applied to a risk of any nature,

and which therefore exposes such assets to liability or loss.

(2) For the purposes of subsection (1)(a), “reserves” includes retained earnings, contributed

surplus and stated capital account.

(3) The records referred to in subsection (1) shall be kept in accordance with sections 126 and

127 of the Companies Act, provided that in the case of a protected cell company to which the

Insurance Act applies, the records may be kept at the principal office.

(4) The records maintained with respect to a protected cell account may be inspected by any

account owner of that protected cell account, but an account owner shall not have a right to inspect

the records relating to any other protected cell account or (in such capacity) the general account.

(5) A protected cell company shall prepare or cause to be prepared financial statements in

respect of each protected cell account and the relevant provisions of Part 2 Division 6 of the

Companies Act shall apply, with the necessary modifications, to the preparation of financial

statements under this section provided that the account owner of a protected cell account may agree in

writing to waive his right to have laid before a general meeting financial statements or the auditor’s

report thereon for an indefinite period but such waiver shall be expressed to be revocable at the option

of such account owner.

(6) Subject to subsection (5), a copy of the financial statements of a protected cell account

shall be made available to the account owner of a protected cell account at such intervals and for such

periods as are agreed between the protected cell company and the account owner of the protected cell

account, but in any event shall be made available not less frequently than once in each financial year.

R.S.A. c. P107

(1) A protected cell company shall—Protected Cell Companies Act Anguilla

20 15/12/2004

(7) If—

(a) the records maintained with respect to a protected cell account; or

(b) the financial statements of a protected cell account;

are not made available for inspection by any account owner of that protected cell account, the court

may, on application by the affected account owner, by order compel immediate production of the

records or financial statements.

(8) A protected cell company shall maintain a register of account owners setting out their

respective interests in any protected cell account together with the particulars required in respect of

members of the company as set out in section 152 of the Companies Act.

(9) The register of account owners shall not be open to public inspection and, in the case of a

protected cell company which is a mutual fund, the register of account owners shall not be open to

inspection by any person without the consent of the company, provided that an account owner shall

be entitled to receive a copy of the information in the register pertaining to his interest in the

company.

(10) The register of account owners shall be

directed or authorised to be inserted therein.

prima facie evidence of any matters by this Act

Nature of protected cell accounts, application of assets and liabilities

13

account does not create a legal person distinct from the protected cell company.

(2) Notwithstanding any enactment or rule of law to the contrary, but subject to this Act, any

liability linked to a protected cell account shall be a liability only of that account and not the liability

of any other account and the rights of creditors in respect of such liabilities shall be rights only in

respect of the relevant account and not of any other account, and, for the avoidance of doubt, any

asset which is linked by a protected cell company to a protected cell account—

(a) shall be held by the protected cell company as a separate fund which is—

(i) not part of the general account and shall be held exclusively for the benefit of the

account owners of the protected cell account and any counterparty to a transaction

linked to that protected cell account, and

(ii) available only to meet liabilities to the account owners and creditors of that

protected cell account; and

(b) shall not be available or used to meet liabilities to, and shall be absolutely and for all

purposes protected from, the general shareholders and from the creditors of the

company who are not creditors with claims linked to protected cell accounts.

(3) For the purposes of this Act, the Companies Act and otherwise at law, the assets recorded

in the general account shall be the only assets of a protected cell company available to meet liabilities

of the protected cell company that are not linked to a protected cell account.

Anguilla

. (1) Notwithstanding any other provision of this Act, the establishment of a protected cellProtected Cell Companies Act R.S.A. c. P107

15/12/2004 21

(4) No assets of the general account may be transferred from the general account to a

protected cell account unless, on the date from which the transfer is to be effective, and taking into

account that transfer, the general account is solvent or all the shareholders and creditors of the general

account on that date have expressed in writing their concurrence to the transfer, and in the event a

transfer is made to a protected cell account in breach of this subsection, on an application by an

affected party, the court may declare that the transfer is void, without prejudice to the rights of

fide

(5) Unless otherwise expressly agreed in writing by the affected parties—

(a) by virtue of one or more contracts, governing instruments or other documents which

are binding on those parties in relation to the affected protected cell accounts or

general account, as the case may be, and which are executed by parties having

authority in relation to those accounts; and

(b) in the case of a mutual fund only where the documents mentioned in paragraph (a)

clearly indicate an intention of the parties to extend liability to more than one

protected cell account or the general account as permitted by this section and contain

a specific reference to this subsection and to section 8(4);

where a liability of a protected cell company to a person arises from a transaction or matter relating

to, or is otherwise imposed in respect of or attributable to, a particular protected cell account, that

liability shall—

(c) extend only to, and that person shall, in respect of that liability, be entitled to have

recourse only to, the assets linked to that protected cell account;

(d) not extend to, and that person shall not, in respect of that liability, be entitled to have

recourse to, the assets linked to any other protected cell account; and

(e) not extend to, and that person shall not, in respect of that liability, be entitled to have

recourse to, the general account.

(6) Where a liability of a protected cell company to a person—

(a) arises otherwise than in respect of a particular protected cell account; or

(b) is imposed otherwise than in respect of a particular protected cell account;

that liability shall extend only to, and that person shall, in respect of that liability, be entitled to have

recourse only to, the general account.

(7) In the event that a protected cell account has insufficient assets to pay all of its obligations

in full, the order and priority of the rights in relation to assets linked to a protected cell account shall

(without prejudice to the rights of any parties holding valid security interests against assets linked to

that protected cell account and any valid preferential claims in respect of that protected cell account)

be determined by the terms of the governing instrument and any contracts pertaining to that account,

and any ambiguity in respect of the order and priority rights shall be resolved as follows—

(a) the claims of creditors shall rank ahead of the claims of account owners;

R.S.A. c. P107

bonapurchasers, for value without notice.Protected Cell Companies Act Anguilla

22 15/12/2004

(b) the claims of creditors

(c) the claims of account owners

(8) A protected cell company may, with the consent in writing of all account owners of, or

counterparties who are creditors with claims linked to, a given protected cell account, transfer to the

general account or another protected cell account an asset from the protected cell account to which it

is linked, if the protected cell account to which such asset is linked, taking into account the proposed

transfer, remains solvent, and, in the event a transfer is made to the general account in breach of this

subsection, on an application by an affected party, the court may declare that the transfer is void,

without prejudice to the rights of

(9) Any asset transferred in accordance with subsection (8) shall cease to be linked to the

protected cell account from which it was transferred on the date of the transfer.

(10) Subject to the terms of the governing instrument relating to a given protected cell account,

on dissolution of the protected cell company or termination of the protected cell account and after

paying creditors of the protected cell account, any property linked to that protected cell account shall

be paid

owners, shall be deemed to fall into the general account.

(11) Without prejudice to the rights of parties to resolve disputes by reference to arbitration or

to the court, where—

(a) there is, on grounds that are reasonable, uncertainty as to whether any given interest in

a protected cell account is an interest as a counterparty or an interest as an account

owner, that interest shall be deemed to be an interest as a counterparty;

(b) a given liability is not linked to a particular protected cell account, or where there is,

on grounds that are reasonable, uncertainty as to whether the liability is linked to a

protected cell account, that liability shall be deemed to be the liability of the general

account.

inter se shall rank pari passu; andinter se shall rank pari passu.bona fide purchasers for value without notice.pro rata to the account owners of such protected cell account or, if there are no account

Internal transactions

14.

(a) a protected cell company acting in respect of the general account may enter into

transactions with the company acting in respect of one or more protected cell

accounts; and

(b) a protected cell company acting in respect of a protected cell account may enter into

transactions with the company acting in respect of one or more other protected cell

accounts.

(2) For the avoidance of doubt—

(a) a transaction referred to in subsection(1); and

(b) any transaction between the company in respect of one protected cell account and a

third party;

Anguilla

(1) Notwithstanding any enactment or rule of law to the contrary—Protected Cell Companies Act R.S.A. c. P107

15/12/2004 23

shall have effect or otherwise (as the case may be) as the transaction would have done under the

general law if the transaction had been entered into between the company and a third party, and

without restricting the generality of the foregoing—

(c) such a transaction shall be void, voidable, illegal or reversible at the instance of any

creditor of the company in respect of the relevant protected cell account or at the

instance of the company itself in respect of the relevant protected cell account or at

the instance of any other person if the transaction would have been void, voidable,

illegal, or reversible (as the case may be) by such person under any rule of law which

would have applied to the transaction if the transaction had been entered into between

the company and a third party in the same circumstances; and

(d) an account owner, counterparty, or receiver of any given protected cell account shall

have standing to pursue, on behalf of the relevant protected cell account, any rights of

action (including recourse to arbitration under subsection (4)) available to the

protected cell company in respect of that protected cell account pursuant to this

section.

(3) Notwithstanding any enactment or rule of law to the contrary—

(a) where a manager or officer of or other person on behalf of a protected cell company or

a protected cell account is also acting in respect of the general account and one or

more of the protected cell accounts or in respect of 2 or more protected cell accounts

which are entering into a transaction, he may so act notwithstanding any material

interests or conflicts which may exist as between the manager, officer or directors or

which any of them may have in acting in respect of such accounts; and

(b) where—

(i) a given protected cell account enters into a transaction as described in paragraph

(a), and

(ii) the governing instrument of the protected cell account so authorises, or a majority

of the account owners consent in writing to the entry into of such a transaction,

then the manager, officer or such other person, the protected cell company and the

company in respect of any protected cell accounts (as the case may be) shall not be

held liable to the company in respect of that protected cell account or any of its

account owners in respect of any conflict of interest arising in relation to the

transaction.

(4) Any dispute which arises in connection with a transaction under subsection (1)—

(a) as between the company in respect of a given protected cell account and the company

in respect of any one or more other protected cell accounts; or

(b) as between the company in respect of the general account and the company in respect

of one or more protected cell accounts;

R.S.A. c. P107

Protected Cell Companies Act Anguilla

24 15/12/2004

may (notwithstanding any submission to the governing law of choice otherwise provided for in this

Act or otherwise) be referred to the court or may be submitted to arbitration under the Arbitration

Act.

(5) If the managers, officers, legal advisers or others representing the company in respect of

the separate interests of the affected accounts cannot agree on whether a particular matter should be

referred to court or to arbitration, then that matter shall be referred to arbitration.

Creditor enforcement rights limited to account assets

15.

every contract and governing instrument entered into by a protected cell company the following

terms—

(a) that no party shall seek, whether in any proceedings or by any other means whatsoever

or wheresoever, to make or attempt to make liable any assets attributable to any

protected cell account of the company in respect of a liability not attributable to that

protected cell account;

(b) that if any party shall succeed by any means whatsoever or wheresoever in making

liable any assets attributable to any protected cell account of the company in respect

of a liability not attributable to that protected cell account, that party shall be liable to

the company to pay a sum equal to the value of the benefit thereby obtained by him;

and

(c) that if any party shall succeed in seizing or attaching by any means or otherwise

levying execution against any assets attributable to any protected cell account of the

company in respect of a liability not attributable to that protected cell account, that

party shall hold those assets or their proceeds on trust for the company and shall keep

those assets or proceeds separate and identifiable as such trust property.

(2) All sums recovered by a protected cell company as a result of any such trust as is

described in subsection (1)(c) shall be credited against any concurrent liability pursuant to the implied

term set out in subsection (1)(b).

(3) Any asset or sum recovered by a protected cell company pursuant to the implied term set

out in subsection (1)(b) or (1)(c) or by any other means whatsoever or wheresoever in the events

referred to in those subsections shall, after the deduction or payment of any costs of recovery, be

applied by the company so as to compensate the protected cell account affected.

(4) Notwithstanding section 13(4) and (8), in the event of any assets attributable to a protected

cell account being taken in execution in respect of a liability not attributable to that protected cell

account, and in so far as such assets or compensation in respect thereof cannot otherwise be restored

to the protected cell account affected, the company shall—

(a) cause or procure its auditor, acting as expert and not as arbitrator, to certify the value

of the assets lost to the protected cell account affected; and

(b) in priority to all other claims against the account, transfer or pay, from the assets of

the account to which the liability was attributable, to the protected cell account

Anguilla

(1) There shall be implied (except in so far as the same is expressly excluded in writing) inProtected Cell Companies Act R.S.A. c. P107

15/12/2004 25

affected, assets or sums sufficient to restore to the protected cell account affected the

value of the assets lost.

Rights and obligations with respect to protected cell accounts

16.

company which is linked to a particular protected cell account is deemed to be owned by the company

as a separate fund which is not part of the general account and which is not part of the company’s

own assets.

(2) To the extent provided in the governing instrument any person (including an account

owner) may give directions to the protected cell company or other persons in the management of the

protected cell account and the managers shall have regard to such directions.

(3) Except to the extent otherwise provided in the governing instrument but subject to

subsection (5)(b), neither the power to give directions to the protected cell company or other persons

nor the exercise thereof by any person (including an account owner) shall cause the person giving

directions to be a trustee or officer of the company or protected cell account.

(4) Except to the extent otherwise provided in the governing instrument, the account owners

are entitled to the same limitation of personal liability as is enjoyed by shareholders of companies

limited by shares under the Companies Act.

(5) A protected cell company may—

(a) sue and be sued in respect of a particular protected cell account, and service of process

upon the company in accordance with subsection (7) shall be sufficient;

(b) be sued for debts and other obligations or liabilities contracted or incurred by the

company in respect of a particular protected cell account, and for any damages to

persons or property resulting from the negligence of the company acting in the

performance of duties with respect to that account;

(c) exercise the same rights of set-off (if any) as between accounts as apply under the

general law in respect of companies, including, on an insolvent liquidation of the

company, the same rights of set-off which arise in an insolvent liquidation of a

company.

(6) The property of a protected cell account is subject to orders of the court as it would have

been if the protected cell account were a separate legal person (and notwithstanding that it is not a

separate legal person).

(7) A protected cell company may be served with process in the manner prescribed in section

243 of the Companies Act in all civil actions or proceedings involving or relating to the activities of a

protected cell account or a breach by the company of a duty to the protected cell account, or to any

account owner thereof or to a counterparty to a transaction linked thereto.

(8) Except to the extent it may be agreed otherwise by virtue of the governing instrument or

contract, as the case may be, an account owner of a protected cell account and any counterparty who

is a creditor in respect of a transaction linked to that protected cell account shall have an undivided

beneficial interest in the assets linked to a protected cell account, and, after satisfying in full the

R.S.A. c. P107

(1) Notwithstanding any enactment or rule of law to the contrary, any asset of a protected cellProtected Cell Companies Act Anguilla

26 15/12/2004

claims of creditors of the protected cell account, account owners shall share in the profits and losses

of the protected cell account in such proportions of the residual undivided beneficial interest in the

protected cell account owned by that account owner as may be specified in any governing instrument

relating to such protected cell account.

(9) An account owner’s or counterparty’s beneficial interest in a protected cell account is

personal property notwithstanding the nature of the property of the protected cell account.

(10) Except to the extent it may be agreed otherwise by virtue of the governing instrument or

contract, as the case may be, an account owner or counterparty has no interest in specific protected

cell account property.

(11) Except to the extent it may be agreed otherwise by virtue of the governing instrument or

contract, as the case may be, an account owner’s or counterparty’s beneficial interest in the protected

cell account is freely transferable.

(12) Subject to the protected cell company complying with section 11, and except to the extent

it may be agreed otherwise by virtue of the governing instrument or contract, as the case may be, at

the time an account owner or counterparty becomes entitled to receive a payment, distribution,

allocation or dividend pursuant to any governing instrument, he has the status of, and is entitled to all

remedies available to, a creditor of the protected cell account with respect to the payment,

distribution, allocation or dividend, and the governing instrument or contract may provide for the

establishment of record dates with respect to such payment, distribution, allocation or dividend.

(13) To the extent that, at law or in equity, a protected cell company or manager has duties

(including fiduciary duties) and liabilities relating to a protected cell account or to an account owner

or to a counterparty—

(a) that company or manager acting under a governing instrument or contract is not liable

to the protected cell account or to any account owner or counterparty for the

company’s good faith reliance on the provisions of that governing instrument or

contract to which that account owner or counterparty is a party; and

(b) the company’s or manager’s duties and liabilities may be expanded or restricted by

provisions in a governing instrument to which the person is a party.

(14) Subject to section 15(1)(c) and (2), the provisions of this section and section 8 operate to

the exclusion of any rule of law relating to trusts treating with the same subject matter, and no rule of

law relating to trusts may be pleaded by any person to augment or modify the operation of this Act,

but nothing in this section shall be construed so as to deny—

(a) the remedy of tracing in law and in equity the assets or the proceeds of the assets of

any protected cell account where such assets or proceeds have been commingled with

the assets of any other protected cell account or the general account; or

(b) any remedies available under the doctrine of constructive trusts or similar equitable

remedies where those remedies would otherwise be available.

(15) To the extent permitted in the governing instruments of the affected protected cell

accounts, a company in respect of a protected cell account may be an account owner of one or more

other protected cell accounts of the same protected cell company.

Anguilla

Protected Cell Companies Act R.S.A. c. P107

15/12/2004 27

P

RECEIVERSHIP AND WINDING UP

ART 4

Receivership orders

17.

court is satisfied that—

(a) a particular protected cell account is not solvent, the general account is not solvent, a

liquidation has been commenced in relation to the company, or for other reasons it

appears to the court just and equitable that a receiver should be appointed;

(b) the making of a receivership order under this section would achieve the purposes set

out in subsection (3);

the court may make a receivership order in respect of that protected cell account.

(2) A receivership order may be made in respect of one or more protected cell accounts.

(3) A receivership order shall direct that the business and assets linked to a protected cell

account shall be managed by a receiver specified in the order for the purposes of—

(a) the orderly management, sale, rehabilitation, run-off or termination of the business of,

or attributable to, the protected cell account; or

(b) the distribution of the assets linked to the protected cell account to those entitled

thereto.

(4) No resolution for the winding up of a protected cell company of which any protected cell

account is subject to a receivership order shall be effective without leave of the court.

(1) Subject to the provisions of this section, if, in relation to a protected cell company, the

Application for receivership orders

18.

by—

(a) the protected cell company;

(b) the directors of the protected cell company;

(c) any creditor of the protected cell company in respect of that protected cell account;

(d) any account owner of that protected cell account;

(e) the Commission;

(f) the Registrar.

(2) The court, on hearing an application—

R.S.A. c. P107

(1) An application for a receivership order in respect of a protected cell account may be madeProtected Cell Companies Act Anguilla

28 15/12/2004

(a) for a receivership order; or

(b) for leave, pursuant to section 17(4), for a resolution for winding up;

may make an interim order or adjourn the hearing conditionally or unconditionally.

(3) Notice of an application to the court for a receivership order in respect of a protected cell

account shall be served upon—

(a) the protected cell company;

(b) the Commission;

(c) the Registrar; and

(d) such other persons (if any) as the court may direct;

each of whom shall be given an opportunity to make representations to the court before the order is

made.

Functions and powers of receiver

19.

(a) may do all such things as may be necessary for the purposes set out in section 17(3);

and

(b) shall have all the functions and powers of the directors and managers of the protected

cell company in respect of the business and assets linked to the protected cell account.

(2) The receiver may at any time apply to the court for—

(a) directions as to the extent or exercise of any function or power; or

(b) the receivership order to be discharged or varied.

(3) In exercising his functions or powers the receiver is deemed to act as the agent of the

protected cell company in respect of the protected cell account, and does not incur personal liability

except to the extent that his conduct amounts to misfeasance.

(4) Any person dealing with the receiver in good faith is not concerned to enquire whether the

receiver is acting within his powers.

(5) During the period of operation of a receivership order the functions and powers of the

directors and managers and any liquidator of the protected cell company cease in respect of the

business and assets linked to the protected cell account in respect of which the order was made.

(6) At any time after the appointment of a receiver in respect of a protected cell account, the

company or any account owner or creditor of that account may, where an action or proceeding against

the company in respect of that account is pending, apply to the court for a stay of those proceedings,

and, on such an application being made, the court may stay the proceedings accordingly on such

terms as it thinks fit.

Anguilla

(1) The receiver of a protected cell account—Protected Cell Companies Act R.S.A. c. P107

15/12/2004 29

Discharge and variation of receivership orders

20.

purpose for which the order was made has been achieved or substantially achieved or is incapable of

achievement.

(2) The court, on hearing an application for the discharge or variation of a receivership order,

may make any interim order it thinks fit or adjourn the hearing, conditionally or unconditionally.

(3) When making an order discharging the receiver, the court may release the receiver from

liability save in respect of misfeasance.

(1) The court shall not discharge a receivership order unless it appears to the court that the

Remuneration of receiver

21.

priority to all other unsecured claims from the assets linked to the protected cell account in respect of

which the receiver was appointed but not from any assets of the general account or any assets linked

to other protected cell accounts.

The remuneration of a receiver and any expenses properly incurred by him shall be payable in

Winding up of protected cell companies

22.

provisions of this Act, the Companies Act and any other Act which applies to the winding up of a

company, save that in the event of any conflict, the provisions of this Act shall prevail.

(2) For the purposes of determining whether a protected cell company may be wound up on

the ground of insolvency—

(a) the test of insolvency which applies under section 215 of the Companies Act and (in

the case of an insurance company) section 8(13) of the Insurance Act shall apply; and

(b) assets and liabilities linked to protected cell accounts shall not be taken into account.

(3) Where—

(a) an application for the winding up of a protected cell company is made pursuant to Part

5 of the Companies Act (which relates to winding up); and

(b) the protected cell company is solvent under section 1(2) of this Act;

the court shall not proceed on the petition on any other ground provided for in the Companies Act

unless the court is satisfied that to proceed would be just and equitable in all the circumstances.

(4) A protected cell company shall not be voluntarily wound up without the consent of the

Registrar.

(1) Subject to this section, a protected cell company shall be wound up in accordance with the

Application of assets

23.

of a protected cell company the liquidator shall deal with the assets and liabilities which are linked to

each protected cell account only in accordance with this Act and accordingly the liquidator shall

ensure that the assets linked to one protected cell account are not applied to the liabilities linked to

any other protected cell account or to the general account, unless an asset or liability is linked to more

R.S.A. c. P107

(1) Notwithstanding any statutory provision or rule of law to the contrary, in the winding upProtected Cell Companies Act Anguilla

30 15/12/2004

than one protected cell account, in which case the liquidator shall deal with the asset or liability in

accordance with the terms of any relevant governing instrument or contract.

(2) The remuneration to be paid to the liquidator shall be apportioned by the liquidator to each

protected cell account and the general account in such amounts as would best reflect the duties

performed by the liquidator and approved by the court.

(3) The liquidator, or any person affected by a decision of the liquidator, may apply to the

court for directions in relation to the remuneration of the liquidator.

P

GENERAL

ART 5

Directions of Commission to modify the provisions of this Act

24.

cell company or any company intending to file a notice pursuant to section 3, direct that—

(a) any or all of the provisions of sections 3, 5, 8 and 12 shall not apply to such company;

or

(b) those provisions or any of them shall apply to it subject to such modifications as may

be specified in the direction.

(2) A direction under this section may be made subject to conditions.

(3) A direction under this section may be revoked by the Commission at any time provided

that the company shall be given an opportunity to make representations to the Commission before the

revocation takes effect.

(4) An application for a direction under this section shall be supported by a statutory

declaration to the effect that no creditor of the company or of any protected cell account thereof shall

be prejudiced by the effect of the direction, if given, or that each creditor has consented in writing to

the giving of such direction made by at least 2 directors.

(5) A direction under this section is a public document available for inspection on the records

maintained by the Registrar in respect of the company.

(6) A direction under this section is not a statutory instrument having legislative effect.

(7) Where a direction is given under subsection (1), the relevant provision shall have effect

subject to the direction.

(1) The Commission may, on the application, or with the consent in writing, of any protected

Regulations

25.

the better carrying out of the provisions of this Act.

Anguilla

The Governor may, on the advice of the Commission, make regulations and prescribe fees forProtected Cell Companies Act R.S.A. c. P107

15/12/2004 31

Effect on transaction and interests in a protected cell account of infringement of this Act

26

void or voidable by reason only that at the relevant time the protected cell company fails to comply

with, or is in breach of, any provision of this Act.

. Subject to section 13(4) and (8), no transaction or interest in a protected cell account shall be

Suits and actions against Registrar

27.

their behalf in respect of anything done or omitted to be done in their official capacity in good faith

without negligence.

(2) Nothing in subsection (1) shall be deemed to interfere with applications or references to

the court under Part 5 of the Companies Act (which relates to winding up).

(1) No suit or action shall lie against the Registrar or Commission or any person acting on

Registrar to be indemnified in respect of foreign suits

28.

the jurisdiction of the court unless he is indemnified by or on behalf of the person who wishes him to

act against any judgment, order or costs that may be awarded against that person by deed, guarantee

or deposit, as he may require.

The Registrar shall not be required to prosecute, defend or take part in any proceedings outside

Offences

29.

(a) for any purpose under this Act makes a statement or declaration that he knows or has

reasonable grounds to believe to be false, deceptive or misleading in a material

particular;

(b) fails to comply with a condition or requirement under section 4(3) or section 6; or

(c) being a protected cell account representative, fails to perform his duty under section

7(3),

is guilty of an offence and is liable on summary conviction to a fine of $5,000 or imprisonment for 12

months, or to both.

Any person who—

Fees

30.

payable, a protected cell company registered under section 4 of the Protected Cell Companies Act

shall pay the annual fees prescribed as per regulations.

In addition to the annual fee payable under the Companies Act and licence fee otherwise

Citation

31.

Chapter P107.

____________

 

This Act may be cited as the Protected Cell Companies Act, Revised Statutes of Anguilla,

 

REVISED REGULATIONS OF ANGUILLA

under

MUTUAL FUNDS ACT

R.S.A. c. M107

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

Regulation Citation Page

MUTUAL FUNDS REGULATIONS

R.R.A. M107-1 3

Revises: R.A. 28/2004, in force 15 October 2004 (15/12/2004)

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

 

A

NGUILLA

REVISED REGULATIONS OF ANGUILLA

under

MUTUAL FUNDS ACT

R.S.A. c. M107

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

Regulation Citation Page

MUTUAL FUNDS REGULATIONS

R.R.A. M107-1 3

Revises: R.A. 28/2004, in force 15 October 2004 (15/12/2004)

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

©

All rights reserved. No part of this publication may be reproduced in any form or by any means (including

photocopying) without the written permission of the Government of Anguilla except as permitted by the

Copyright Act or under the terms of a licence from the Government of Anguilla.

R.S.A. c. M107

Government of AnguillaMutual Funds Regulations R.R.A. M107-1

15/12/2004 3

Revised Regulations of Anguilla: M107-1

MUTUAL FUNDS ACT (R.S.A. c. M107)

MUTUAL FUNDS REGULATIONS

Note: These Regulations are enabled under section 36 of the Mutual Funds Act, R.S.A. c. M107.

Interpretation

1.

“Act” means the Mutual Funds Act;

“Commission” means the Financial Services Commission created by the Financial Services Commission Act;

“$” means the currency of the United States of America.

In these Regulations—

Application for registration of a public fund

2.

(a) under section 6 of the Act where the fund has been constituted under the laws of Anguilla shall

be made in the forms as set out in Schedule 1 and Schedule 4 (where applicable);

(b) which has been constituted under the laws of a jurisdiction other than Anguilla shall be made

in the forms as set out in Schedule 1 and Schedule 4 (where applicable).

An application for registration of a public fund—

Application for recognition of a private or professional fund

3.

made in the forms as set out in Schedule 1 and Schedule 4 (where applicable).

An application for recognition of a private or professional fund under section 15 of the Act may be

Application for licensing of a manager or an administrator

4.

shall be made in the forms as set out in Schedule 2 and Schedule 4 (where applicable).

An application for the licensing of a manager or an administrator or both under section 19 of the Act

Application for approval of issue or transfer of shares or other interests

5.

an issue or transfer of shares or other interests in the form as set out in Schedule 5.

An applicant who has been granted a licence under section 20 of the Act shall apply for an approval of

Application for approval of directors

6.

shall apply for approval of a director in the form as set out in Schedule 6.

An applicant who has been granted registration under section 7 or a licence under section 20 of the Act

Notice of issue or transfer of shares or other interests or change of a director

7.

Commission in writing where there has been an issue or transfer of shares or other interests or a change of a

R.R.A. M107-1

An applicant who has been granted recognition under section 16 of the Act shall inform theMutual Funds Regulations R.S.A. c. M107

4 15/12/2004

director giving the name(s) of the person(s) to whom the shares or other interests were issued or transferred and

the name(s) of the new director(s).

Fees

8.

out in Schedule 3.

The payment of fees and late payment penalties by applicants under sections 2, 3 and 4 above are as set

Citation

9.

M107-1.

___________

R.S.A. c. M107

These Regulations may be cited as the Mutual Funds Regulations, Revised Regulations of Anguilla,Mutual Funds Regulations R.R.A. M107-1

15/12/2004 5

SCHEDULE 1

(Section 2)

Anguilla

MUTUAL FUNDS ACT

(Section 6 or 15)

APPLICATION TO BE REGISTERED AS A PUBLIC FUND OR

RECOGNISED AS A PRIVATE OR PROFESSIONAL FUND

Notes

Complete all sections giving reasons for non-compliance, if any, and attaching supplementary sheets where

appropriate.

Completed forms should be submitted to:—

FINANCIAL SERVICES COMMISSION

P.O. BOX 1575

THE VALLEY

ANGUILLA

Tel: 1 264 497 5881

Fax: 1 264 497 5872

And be accompanied by the non-refundable Application Fee set out in Schedule 3

________________________________________________________

1. State the type of fund: Public, Private or Professional.

2. Name of the fund.

3. Address of the applicant’s place of business in Anguilla.

4. Name and address of the person(s) (individual or otherwise) resident in Anguilla who is/are authorized to

represent the applicant and to accept service of documents on its behalf.

5. Address of any place(s) of business that the applicant may have outside of Anguilla.

6. Date the fund commenced business as a mutual fund (if applicable).

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

6 15/12/2004

7. State the legal constitution of the fund: company, partnership or unit trust.

8. State the country or jurisdiction of where the fund is constituted.

9. State the title of the law under which the fund is constituted.

10. Who are the directors of the fund? Please give full names and addresses. (NB: A public fund must have at

least 2 natural persons as directors).

11. If it is a public fund, who is the promoter? Please give full name and address and if a corporate entity full

details of beneficial shareholders and directors or if a partnership full details of general partners or if a unit

trust full details of the trustees.

12. (a) Proof of classification – private fund.

(i) Do the fund’s constitutional documents limit it to no more than 99 investors? (YES or NO).

(ii) If the answer is YES, state the relevant provision in the constitutional documents.

(iii) If the answer is NO, state the provision that requires invitations to purchase shares to be made on a

private basis. (See Guidance Note at the end of this Schedule)

(iv) Explain the method of making such an invitation and an indication of how many invitations will

be made.

12. (b) Proof of classification – professional fund. Describe how it will be ensured that the fund meets the

conditions for a professional fund. (See Guidance Note 2)

12. (c) State the name, jurisdiction of incorporation (if applicable), address of place of business, and business

activity of the following persons.

(a) Manager(s)

(b) Administrator

(c) Investment Advisor

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 7

(d) Custodian

13. Is the fund currently registered, licensed, recognized, or authorized under any law or regulations relating to

mutual funds, collective investment schemes/funds or securities in any country or jurisdiction or has the

fund been so registered, licensed, recognized or authorized in the past? (YES or NO):

If YES please supply full details:

14. Has the fund, or any of its officers, managers, administrators, investment advisers or custodians been the

subject of:

(a) A refusal of an application for registration, recognition, licensing or authorization by any authority in

any country or jurisdiction? or

(b) Suspension, cancellation or revocation of registration, licensing, recognition or authorization in any

country or jurisdiction?

If YES, to either of these questions, provide full details including reasons.

15. State the address in Anguilla (if applicable) or out of Anguilla (if applicable) where the fund’s accounting

records and financial statements (or copies thereof) will be kept.

16. (Applicable to public funds only). Specify name of auditors and attach evidence of the auditor’s

acceptance of their appointment or their willingness to act.

17. (Applicable to public funds only). Specify name of legal counsel, if any, and attach evidence of their

willingness to act.

18. (Applicable to public funds only) Please provide a prospectus which sets out as a minimum the following

information:

(a) Investment objectives, and types of investments and markets to be invested in

(b) Investment restrictions

(c) Risk factors of the fund

(d) Minimum and maximum investment, if applicable, for investors

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

8 15/12/2004

(e) Any rights and restrictions on shares, partnership interest, or units being offered

(f) Actual or expected size of shareholder investor base

(g) Valuation arrangements and frequency of valuations

(h) Redemption mechanisms

(i) Fee structure

(j) Custody arrangements

19. Provide evidence of approval of the prospectus by the directors of the fund.

20. (Applicable to private and professional funds only) Provide a business plan that addresses the issues raised

in paragraphs (a), (b), (c), (f), (g) and (h) of question 18 above.

21. (Application to public funds only). All directors, promoters and beneficial owners of 10% or more of the

net equity of the fund must complete Schedule 4.

Application is accordingly hereby made for the registration or recognition of the fund specified above and it is

certified that all the particulars contained in the Application and in the documents accompanying it or otherwise

furnished in the support hereof are true and correct and that any change to the information submitted will be

communicated to the Financial Services Commision forthwith.

Dated this ……………….day of ……………………………, 20……… .

…………………………..

Name of Applicant

By its Director/Secretary or other duly authorized person

Signed ……………………

AUTHORISATION TO SEEK ADDITIONAL INFORMATION

I/We hereby authorize you to contact all relevant authorities and authorise said authorities to provide you with

whatever information you may request.

(Signed)

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 9

GUIDANCE NOTES

1. The Act requires submission of proof that the fund is a private fund within the meaning of the Act. The

fund’s constitutional documents must contain a specific provision that states that it will have no more than 99

investors or that invitations to purchase shares in the fund must be made on a “private basis.” This could be

evidenced by a prohibition placed on the making of invitations to purchase shares other than to specified

persons (however described) and in a manner which is not calculated to lead to shares becoming available to

other persons or to a large number of persons; or a restriction to invitations which are made only by reason of a

private business connection between the respective parties. In all cases, an indication of the number of

invitations that will be made to purchase shares must be provided.

2. The shares of a professional fund must be made available only to “professional investors” defined in the Act

as either persons whose ordinary business involves dealing in investments of the same kind as those of the fund

or persons who have signed an appropriate declaration. A majority of the investors in a professional fund must

each initially invest at least US$100,000. A copy of the fund(s) offering document, or extracts thereof, which

stipulate minimum initial investment and subscription conditions must be provided.

__________

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

10 15/12/2004

SCHEDULE 2

(Section 4)

Anguilla

MUTUAL FUNDS ACT

(Section 19)

APPLICATION TO BE LICENSED AS A MANAGER,

ADMINISTRATOR OR BOTH

Notes

Complete all sections giving reasons for non-compliance, if any, and attaching supplementary sheets

where appropriate.

Completed forms should be submitted to:—

FINANCIAL SERVICES COMMISSION

P. O. BOX 1575

THE VALLEY

ANGUILLA

Tel: 1 264 497 5881

Fax: 1 264 497 5872

And be accompanied by the non-refundable Application Fee set out in Schedule 3.

________________________________________________________

1. Name of the applicant.

2. Type of licence: Manager, Administrator or Both

3. Registered office of the applicant.

4. Business address if different.

5. Contact person for this application along with contact details including telephone and fax numbers and

email address.

6. Date of incorporation.

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 11

7. Company registration number.

8. Name and statute under which the company is formed.

9. State the date of the end of the financial year.

10. Name and address of the applicant’s auditor. State the contact person.

11. Name and address of the applicant’s legal counsel. State the contact person.

12. State the authorized share capital.

13. State the paid-up share capital.

14. State the method by which paid-up share capital was raised.

15. (If applicable) state the amount and nature of the loan capital.

16. State the name, addresses and number of shares held by each shareholder. (If nominees hold shares by a

corporate secretary, entity or trust, state who holds the ultimate beneficial interest).

17. State all the directors of the applicant. The appointment of a non-Anguillian corporate director may not be

acceptable for an applicant for licensing. An applicant must have at least two directors.

18. Name and addresses of any Regulatory Authority to which the Applicant or other group companies report.

(Note: The Commission may seek references from any Regulatory Authority or other agency).

19. Name and address of banks with whom the manager/administrator will maintain clients’ money accounts.

(Indicate the main bankers).

20. Has the applicant, in the last seven years, received an indication from any bank that an account has not been

kept in a satisfactory manner? If so, explain the circumstances.

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Mutual Funds Regulations R.S.A. c. M107

12 15/12/2004

21. Has the applicant or any of its directors been the subject of a:

(a) Refusal of an application for registration, licensing, recognition or authorization by any authority in

any country or jurisdiction?

(b) Suspension, cancellation or revocation of registration, licence, recognition or authorization by any

authority in any country or jurisdiction?

(c) Regulatory or enforcement action by any authority in any country or jurisdiction?

Provide full details including reasons for the answer to each question if the answer is “YES”

22. Has a judgment been rendered or any suit, action or proceedings pending against the applicant or any

director thereof, in civil proceedings in any court or tribunal in any country or jurisdiction which has been

or is based in whole or in part on fraud, theft, deceit, misrepresentation, misappropriation or similar

conduct?

23. Has any director of the applicant been, or is being, charged, indicted or convicted in any country or

jurisdiction for any offence in any criminal or civil proceedings in relation to fraud, theft, deceit,

misrepresentation or misappropriation arising out of operating or dealing in mutual funds, collective

investment schemes/funds, securities, banking or insurance business or company management?

Provide full details if the answer is “YES.”

24. Has a Director of the Applicant, in any country or jurisdiction been -

(a) Declared bankrupt or been a party to bankruptcy or insolvency?

(b) Subject to proceedings relating to winding-up, dissolution or creditors’ arrangements?

(c) Subject to proceedings relating to receivership or creditors’ compromise?

Provide full details if the answer to any of the above is YES.

25. Provide details of any matter which you believe may be relevant to the assessment of the fit and proper

status of the Applicant or any of its Directors.

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 13

26. Provide details of the applicants’ indemnity cover (if applicable). A copy of the policy should be enclosed.

27. All directors of the applicant must complete Schedule 4.

Application is accordingly hereby made for the licence specified above and it is certified that all the particulars

contained in the Application and in the documents accompanying it or otherwise furnished in the support hereof

are true and correct and that any change to the information submitted will be communicated to the Commision

forthwith.

Dated this ……………….day of ……………………………, 20……… .

…………………………..

Name of Applicant

By its Director/Secretary or other duly authorized person

Signed ………………………

AUTHORISATION TO SEEK ADDITIONAL INFORMATION

I/We hereby authorize you to contact all relevant authorities and authorise said authorities to provide you with

whatever information you may request.

(Signed)

__________

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

14 15/12/2004

SCHEDULE 3

(Section 8)

Anguilla

MUTUAL FUNDS ACT

(Sections 6, 15, 19)

APPLICATION FEES TO BE REGISTERED, RECOGNISED OR GRANTED A LICENCE

MUTUAL FUNDS ACT

(Section 25)

ANNUAL FEES TO BE REGISTERED, RECOGNISED OR GRANTED A LICENCE

MUTUAL FUNDS ACT

(Section 11)

FOR THE ISSUANCE OF A CERTIFICATE OF COMPLIANCE

Application fees

The fee for:

(a) An application for registration under section 6 $500

(b) An application for recognition under section 15 $350

(c) An application for a licence under section 19 $250

Licence fees

Fee payable for the year in which registration, recognition or licence is granted pursuant to sections 7, 16 and 20

Where registration, recognition or licence is granted on or before 30th June in any year, the fee payable is

(a) For a registered public fund $500

(b) For a recognized professional or private fund $350

(c) For a person licensed as a manager or administrator $500

(d) For a person licensed as both manager and administrator $1000

Where registration, recognition or licence is granted on or after 1st July in any year, the fee payable is

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 15

(a) For a registered public fund $250

(b) For a recognized private or professional fund $175

(c) For a person licensed as a manager or administrator $250

(d) For a person licensed as both manager and administrator $500

Thereafter, the annual fee payable pursuant to sections 7, 16 and 20

(a) For a registered public fund $500

(b) For a recognized private or professional fund $350

(c) For a person licensed as a manager or administrator $500

(d) For a person licensed as both manager and administrator $1000

Date by which Annual Fees must be paid.

In accordance with section 25 of the Act, the annual fee must be paid on or before every 31st of January during

the currency of the licence.

If the annual fee is not paid on or before every 31st of January but is paid on or before the 31st of March in the

same year, a late payment penalty of 25% of the annual fee will be additionally payable.

If the annual fee is not paid on or before every 31st of March in the same year but is paid on or before the 30th

June in the same year, a late payment penalty of 50% of the annual fee will be additionally payable.

If the annual fee is not paid on or before every 30th June in the same year, section 26 of the Act will apply.

__________

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

16 15/12/2004

SCHEDULE 4

(Section 4)

INFORMATION IN SUPPORT OF AN APPLICATION TO REGISTER OR

RECOGNISE A MUTUAL FUND OR FOR A LICENCE AS MANAGER OR

ADMINISTRATOR OF A MUTUAL FUND IN ANGUILLA

Details required from each shareholder, beneficial shareholder or director of an applicant company, and

comptroller if not a director, and such other person(s) as they may require.

1. Full name:

2. Former name (if different from name given above):

3. Date and place of birth:

4. Nationality (if naturalised attach a copy of the naturalisation certificate, and state former nationality):

5. Full home address at present time:

6. List home addresses in full for previous five years where different from that given above, and give the

related dates:

7. Marital status. If married give full name of spouse including maiden name of wife.

8. Passport particulars (enclose copies of relevant pages).

9. Please provide a detailed curriculum vitae giving full details of your profession or occupation over the past

ten (10) years; include the names and addresses of all employers and the nature of your employment give

all relevant dates and state briefly the reasons for changes:

10. Give a list of all companies in which you have held or hold an interest of 25% or more during the past ten

years. Give brief particulars of the nature of the business of all such companies:

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 17

11. Give details of academic and professional qualifications and date(s) obtained:

12. Have you ever been employed in, or had an interest in

(a) A financial services activity or

(b) (State YES or NO). A gambling activity in any country?

13. In relation to the proposed operation are you acting wholly or partly as a nominee or agent for, or trustee of

another person, persons or organisations? (State YES or NO):

If YES, give the name and address of the person, or persons, or organisations and the precise nature of your

relationship and/or the arrangement:

14. Give the full details of your financial interest in the proposed operation, and the percentage ownership that

this will represent:

15. Have you or your spouse ever been declared bankrupt or been the subject of a bankruptcy petition, or ever

received a judgment against you in a civil court? (State YES or NO):

If YES give full details:

16. Has any company or firm of which you or your spouse was a partner, director or comptroller been the

subject of a winding up petition? (State YES or NO):

17. Have you ever applied for a financial services licence in any other jurisdiction? (State YES or NO).

If YES state type of licence, name of company, location and period held and where granted:

18. Have you ever been the subject of an investigation in relation to a financial institution, related institution or

gambling/lottery or refused a financial services licence or had an interest in any group which has been

refused a licence or related finding of suitability? (State YES or NO):

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

18 15/12/2004

If YES to either of the above, state where, when and for what reason:

19. Has any body corporate, partnership or unincorporated institution with which you were associated as a

director, shareholder, manager, officer or comptroller, anywhere, had its authorization revoked? If so give

particulars.

20. Have you ever appeared before any licensing agency or similar authority for any reason whatsoever? For

example, as a witness. (State YES or NO):

If YES provide details:

21. Have you as an individual, member of a partnership, or owner, director or officer of a corporation, ever

been a party to a lawsuit as either a plaintiff, or defendant as a result of misconduct? (State YES or NO):

If YES give details below: (List all cases without exception, including bankruptcies):

Plaintiff/Defendant:

Court and Case Number:

Location:

Result:

22. (i) Have you ever been convicted of any criminal offence in any country (excluding MINOR traffic

offences); or

(ii) Have you ever been arrested, detained, charged, indicted or summoned to answer for any criminal

offence including of which the result is still pending:

If you have answered YES to either (i) or (ii) please give details. (List all cases without exception):

Date of Arrest or Detention

Age

Charge

Location

Result

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 19

23. Has any body corporate, partnership or unincorporated institution with which you were associated as a

director, shareholder, manager, officer, or comptroller, anywhere, been compulsorily wound up or made

any compromise or arrangement with its creditors or ceased trading in circumstances where its creditors did

not receive or have not yet received full settlement of their claims, either while you were associated with it

or within one year after you ceased to be associated with it? If so, give particulars.

24. Will you participate actively in the management or operation of the proposed operation? (State YES or

NO):

If YES give full details:

25. Has your interest in the proposed operation been assigned, pledged or hypothecated to any person, persons,

firms, partnerships or companies; or have you entered into any agreement, whereby your interest is to be

assigned or pledged or sold either wholly or in part? (State YES or NO):

26. Have you made any arrangements for persons, firms or companies to advance money, or other equity, to

you to assist in financing your investment in the proposed operation? (State YES or NO):

27. Do your assets exceed your liabilities, including contingent liabilities, and are they likely to remain so for

the foreseeable future? (State YES or NO):

28. Explain how you intend to finance your investment in the proposed operation, if applicable:

29. Give below any further information relating to your finances which you wish to be taken into account:

30. Give the names, addresses and telephone numbers of three referees. Referees should not be relatives. They

should be told that the Commission might wish to contact them.

It is certified that all the particulars contained in this information declaration and in the documents

accompanying it or otherwise furnished in the support hereof are true and correct.

Dated this ……………….day of ……………………………, 20……… .

…………………………..

Name

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

20 15/12/2004

By its Director/Secretary or other duly authorized person

Signed ……………………..

AUTHORISATION TO SEEK ADDITIONAL INFORMATION

I/We hereby authorise you to contact all relevant authorities and authorise said authorities to provide you with

whatever information you may request.

(Signed)

__________

R.S.A. c. M107

Mutual Funds Regulations R.R.A. M107-1

15/12/2004 21

SCHEDULE 5

(Section 5)

Anguilla

MUTUAL FUNDS ACT

(Section 20)

APPLICATION FOR APPROVAL OF ISSUE OR

TRANSFER OF SHARES OR OTHER INTERESTS

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Dear Sir

Name of company

Re:

We apply herewith for your approval of the issue/transfer/ other dispositions* of shares/ other interests* in the

above-mentioned company.

Name and address of allottee or transferee of shares or other interests*

___________________________________________________________

___________________________________________________________

___________________________________________________________

If the interests being ________________________________________________________

issued, transferred or

otherwise disposed of ________________________________________________________

are not shares, please

give a description ________________________________________________________

thereof*

Number of shares and/or

percentage of total ________________________________________________________

interests to which

application relates ________________________________________________________

We attach Schedule 4 of these Regulations (Information in support of an Application) duly completed by any

new allottee or transferee.

Yours faithfully

*

Complete and/or delete as appropriate.

R.R.A. M107-1

Mutual Funds Regulations R.S.A. c. M107

22 15/12/2004

SCHEDULE 6

(Section 6)

Anguilla

MUTUAL FUNDS ACT

(Section 20)

APPLICATION FOR APPROVAL OF DIRECTORS

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Dear Sir

Re:

We apply herewith for approval for the appointment of

___________________________________* as a director of this licensed institution

We attach herewith Schedule 4 (Information in support of an Application) of these Regulations duly completed with

respect to the aforementioned person(s).

Yours faithfully

*

Completed and /or delete as appropriate

__________

 

REVISED STATUTES OF ANGUILLA

CHAPTER M107

MUTUAL FUNDS ACT

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

This Edition revises Act 8/2004, in force 1 October 2004

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

 

A

NGUILLA

REVISED STATUTES OF ANGUILLA

CHAPTER M107

MUTUAL FUNDS ACT

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

This Edition revises Act 8/2004, in force 1 October 2004

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

©

All rights reserved. No part of this publication may be reproduced in any form or by any means (including

photocopying) without the written permission of the Government of Anguilla except as permitted by the

Copyright Act or under the terms of a licence from the Government of Anguilla.

Government of Anguilla

Anguilla

Mutual Funds Act R.S.A. c. M107

15/12/2004 3

MUTUAL FUNDS ACT

TABLE OF CONTENTS

P

PRELIMINARY

S

ART 1ECTION

1. Interpretation

P

ADMINISTRATION

2. Duties of the Commission

3. Registers of the Commission

4. Mutual Funds Advisory Committee

P

PUBLIC FUNDS

5. Registration

6. Application for registration

7. Power to grant registration

8. Registration procedure

9. Accounting records and financial statements

10. Duty to publish and file a prospectus

11. Certificate of compliance

12. Investors’ rights

13. Limitation of action and amount recoverable

P

PRIVATE AND PROFESSIONAL FUNDS

14. Recognition

15. Application for recognition

16. Power to grant recognition

17. Recognition procedure

R.S.A. c. M107

ART 2ART 3ART 4Mutual Funds Act Anguilla

4 15/12/2004

P

ART 5

MANAGERS AND ADMINISTRATORS

18. Licensing

19. Application for a licence

20. Power to grant licences

21. Licensing procedure

22. Code of Practice

P

GENERAL

23. Notices to accompany applications

24. Form and conditions of certificates and licences

25. Annual fees

26. Cancellation of certificates or licences

27. Cancellation procedure

28. Appeal of cancellations

29. Appeal procedure

30. Grant or cancellation to be published

31. Power to grant exemptions

32. Restriction on the use of the words “fund”, “mutual fund” or “unit trust”

33. Access to information and records

34. Exemption from certain enactments

35. Offences and penalties

36. Regulations

37. Transitional

38. Citation

Anguilla

ART 6Mutual Funds Act R.S.A. c. M107

15/12/2004 5

MUTUAL FUNDS ACT

P

PRELIMINARY

ART 1

Interpretation

1.

“administrator” means a person who—

(a) for valuable consideration provides a mutual fund with administrative services alone

or together with accounting services;

(b) is entitled to provide to mutual funds (by whatever name called), such services and

facilities as provided in paragraph (a) under the laws of a recognized Country or

Jurisdiction;

“auditor” means a person who has qualified as an accountant by examination of, and holds a

practicing certificate issued by, one of the Institutes of Chartered Accountants in England and

Wales, Ireland and Scotland, or the Canadian Institute of Chartered Accountants or the

American Institute of Certified Public Accountants, and who is a current member of good

standing of one of the above Institutes recognised by the Commission as such for the purposes

of this Act;

“Commission” means the Anguilla Financial Services Commission established under section 2 of the

Financial Services Commission Act;

“company” means a body corporate, wherever incorporated or constituted;

“constitutional documents” means—

(a) in the case of a company, the memorandum and articles of association, the articles of

incorporation or other instrument of incorporation;

(b) in the case of a partnership, the agreement or other instrument by which the

partnership is formed and governed;

(c) in the case of a unit trust, the trust deed or other instrument by which the unit trust is

organised or governed;

“Court” means the High Court;

“custodian” means the person who holds the property of the mutual fund in safe keeping;

“dollar” or “$” means a dollar in the currency of the United States of America;

“existing entity” means—

R.S.A. c. M107

(1) In this Act, unless the context otherwise requires—Mutual Funds Act Anguilla

6 15/12/2004

(a) a public fund;

(b) a private or professional fund; or

(c) a manager or administrator;

which was carrying on its business in or from within Anguilla immediately before 1st October

2004;

“family trust fund” means a fund which has been established for the benefit of one or more members

of the same family including father, sons, daughters, including adopted and stepchildren and

the immediate blood relations and respective spouses of any of these persons;

“financial year” means the period at the end of which the balance of accounts is determined for the

purpose of preparing the financial statements of a mutual fund, which period may be up to 18

months in the case of the first or last such period, or in the case of a change in the date from

which the period is determined, but which shall not otherwise exceed 12 months in duration;

“Governor” means the Governor in Council;

“investor” means a person who owns or holds shares (as herein defined) issued by a mutual fund;

“manager” means a person, not being an officer or an employee of a person licensed under this Act or

a mutual fund which has delegated management functions to a person licensed under this Act

who—

(a) for valuable consideration provides a mutual fund with management services alone or

together with investment advice or administrative services;

(b) is entitled to provide mutual funds (by whatever name called), with such services and

facilities as provided in paragraph (a) under the laws of a recognized Country or

Jurisdiction; or

(c) is designated as being a manager by the Commission.

“mutual fund” or “fund” means a company incorporated, a partnership formed, a unit trust organised

or other similar body formed or organised under the laws of Anguilla or of any other

Recognized Country or Jurisdiction which—

(a) collects and pools investor funds for the purpose of collective investment; and

(b) issues shares (as herein defined) that entitle the holder to receive on demand or within

a specified period after demand an amount computed by reference to the value of a

proportionate interest in the whole or in a part of the net assets of the company, the

partnership, the unit trust or other similar body, as the case may be;

and includes—

(c) an umbrella fund whose shares are split into a number of different class funds or subfunds;

and

Anguilla

Mutual Funds Act R.S.A. c. M107

15/12/2004 7

(d) a fund which has a single investor which is a mutual fund not registered or recognised

under this Act;

but excludes any body which is designated by regulations as not being a mutual fund;

“officer” includes—

(a) a director, alternate director, the president, a vice-president, and any other person

designated as an officer of a company by by-law, by resolution of the directors or by

any other instrument;

(b) a general partner of a partnership; and

(c) a trustee of a unit trust;

“partnership” means a contractual relationship which subsists between persons carrying on a business

in common with a view of profit and includes a partnership formed under the laws of Anguilla

or the laws of such other recognized Country or Jurisdiction thereof notwithstanding any

statutory definition to the contrary;

“person” includes an individual natural person, a mutual fund, any company, partnership, unit trust or

trustee or other legal entity recognised as such under the laws of another recognized Country

or Jurisdiction;

“private fund” means a mutual fund—

(a) the constitutional documents of which specify that it will have no more than 99

investors;

(b) the constitutional documents of which specify that an invitation to subscribe for or

purchase shares issued by the mutual fund is not to be made to the public. An

invitation is not made to the public if it is made—

(i) to specified persons (however described) and is not calculated to result in shares

becoming available to other persons, or

(ii) by reason of a private or business connection between the person making the

invitation and the investor; or

(c) which is designated as a private fund by regulations;

“professional fund” means—

(a) a mutual fund, the shares of which are made available only to professional investors

and the initial investment in which, in respect of each of the persons constituting a

majority of such investors, is not less than $100,000 or its equivalent in any other

currency, but this minimum initial investment limit shall not apply in respect of an

investment made by the manager, administrator, promoter or underwriter of the

professional fund;

(b) a mutual fund which—

R.S.A. c. M107

Mutual Funds Act Anguilla

8 15/12/2004

(i) was carrying on business or engaged in an activity as a mutual fund on 1st

October 2004,

(ii) the initial investments in respect of the majority of each of the investors in the

mutual fund have been not less than $100,000 or its equivalent in any other

currency, and

(iii) the shares of the mutual fund are, after 1st October 2004, made available only to

professional investors; or

(c) which is designated as a professional fund by regulations;

“professional investor” means a person—

(a) whose ordinary business involves dealing in investments; or

(b) who has signed a declaration that he, whether individually or jointly with his spouse,

has net worth in excess of $1,000,000 or its equivalent in any other currency and that

he consents to being treated as a professional investor;

“promoter” means a person acting alone or in conjunction with others directly or indirectly who takes

the initiative in forming or organising a mutual fund, but does not include an underwriter who

receives an underwriting commission without taking any part in the founding or organising of

the mutual fund business;

“prospectus” means any document the purpose of which is to make an invitation to the public or any

section thereof to subscribe for or purchase shares issued by a public fund;

“public fund” means a mutual fund which is not a private fund or a professional fund;

“recognised Country or Jurisdiction” means any Country or Jurisdiction recognised by the

Commission under subsection (3);

“regulations” or “the regulations” means regulations made under this Act;

“share” means share in the share capital of a mutual fund company and includes an interest in a

mutual fund partnership and a unit in a mutual fund unit trust;

“underwriter” means a person who—

(a) as principal, agrees to purchase shares issued by mutual funds with a view to offering

them to the public; or

(b) as agent for a mutual fund, offers for sale or sells to the public shares issued by the

mutual fund;

“unit trust” means an arrangement creating a trust under the laws of Anguilla or of any other

recognised Country or Jurisdiction in which unit holders participating in the arrangement are

the beneficiaries of the trust.

(2) In this Act—

Anguilla

Mutual Funds Act R.S.A. c. M107

15/12/2004 9

(a) in every company incorporated and every partnership formed or unit trust organised

under the laws of Anguilla for the purpose of carrying on business as a mutual fund, a

manager or administrator shall, if carrying on business anywhere outside Anguilla, be

deemed to be carrying on business from within Anguilla;

(b) the expression “carrying on business from within Anguilla” includes carrying on

business outside Anguilla from a place of business or a registered office within

Anguilla;

(c) a mutual fund which is not incorporated, formed or organised or carrying on its

business in or from within Anguilla shall be deemed to be carrying on business in

Anguilla if it makes an invitation to subscribe for or purchase shares to an individual

natural person within Anguilla, except where the purchase is a result of an approach

made by the individual natural person without any invitation to subscribe for or

purchase shares being made.

(3) The Commission may recognise any Country or Jurisdiction for the purposes of this Act

and shall cause a notice of such recognition to be published in the

P

ADMINISTRATION

Gazette.ART 2

Duties of the Commission

2.

(a) the duty to regulate mutual funds and managers and administrators in accordance with

this Act;

(b) in and for the discharge of that duty, the powers conferred upon it by this Act;

(c) the authority to prescribe such forms as it considers necessary for the purposes of this

Act or the regulations; and

(d) the authority to issue directions and policy guidelines for the purposes of this Act or

the regulations.

(2) The Commission may, upon request by any person to whom this Act applies and the

payment of such fee as may be prescribed by regulation, issue to such person a certificate of

compliance in such form as the Commission thinks fit.

(3) The Commission or any of its employees shall not knowingly have any financial interest

in any person registered, recognised or licensed under this Act.

(1) The Commission has—

Registers of the Commission

3.

R.S.A. c. M107

(1) The Commission shall keep separate registers for all—Mutual Funds Act Anguilla

10 15/12/2004

(a) registered public funds;

(b) recognised private funds;

(c) recognised professional funds; and

(d) licensed managers and administrators.

(2) The registers required under subsection (1) shall show—

(a) the information required under section 23(1) with respect to each registered public

fund, recognised private fund, recognised professional fund and licensed manager or

administrator;

(b) the date of registration, recognition or licence, as the case may be; and

(c) the status of such registration, recognition or licence if cancelled and the date thereof.

(3) Registers kept by the Commission shall be in such form as it may determine and shall be

open to public inspection during ordinary office hours on payment of an inspection fee of $5 or such

other amount as may be prescribed by regulation.

Mutual Funds Advisory Committee

4.

consist of not more than 5 persons appointed by the Commission from among members of the private

sector who are known to it to have adequate knowledge of and experience in the mutual funds

industry.

(2) The Commission shall designate one of the persons appointed under subsection (1) as

Chairman of the Mutual Funds Advisory Committee.

(3) The Mutual Funds Advisory Committee shall—

(a) advise the Commission on any matter referred to it by the Commission relating to the

mutual funds industry;

(b) on its own motion report and make recommendations to the Commission on any

matter relating to mutual funds as it sees fit; and

(c) have power to establish, subject to the approval of the Commission—

(i) its own working rules and procedures, and

(ii) as many sub-committees as it thinks necessary.

Anguilla

(1) There shall be a Committee called the Mutual Funds Advisory Committee which shallMutual Funds Act R.S.A. c. M107

15/12/2004 11

P

PUBLIC FUNDS

ART 3

Registration

5.

Anguilla unless it is registered under this Act.

No public fund shall carry on its business or manage or administer its affairs in or from within

Application for registration

6.

manage or administer its affairs in or from within Anguilla.

(2) An application for registration under subsection (1) shall be—

(a) made in the form and contain the information as set out in the regulations; and

(b) accompanied by—

(i) a statement setting out the nature and scope of the business to be carried on by the

applicant in or from within Anguilla, including the name of any other recognized

Country or Jurisdiction where the applicant is carrying on or intends to carry on

business,

(ii) the application fee of such other amount as may be prescribed by regulation,

(iii) certified copies of the instruments by which the applicant is constituted or such

other proof as may be satisfactory to the Commission that the applicant is

lawfully constituted under the laws of Anguilla or of any other recognized

Country or Jurisdiction,

(iv) the notices required under section 23(1), and

(v) such other documents or information as the Commission may reasonably require

for the purpose of determining the application.

(1) A public fund may apply to the Commission for registration to carry on its business or

Power to grant registration

7.

section 6.

(2) Notwithstanding subsection (1), the Commission shall refuse to grant registration if—

(a) the public fund or proposed public fund, as the case may be, has a name which is

undesirable or misleading;

(b) the public fund or proposed public fund, as the case may be, does not have a custodian

who is independent of the manager or administrator; or

(c) it determines that it is not in the public interest that such registration should be

granted.

R.S.A. c. M107

(1) The Commission may, in its discretion, grant or refuse to grant registration underMutual Funds Act Anguilla

12 15/12/2004

(3) Where the Commission, in the exercise of its powers under paragraph (2)(c), makes a

decision refusing to grant registration it shall not be bound to assign any reasons for its decision

which shall not be subject to appeal or review.

Registration procedure

8.

(a) register the public fund in the register maintained by it for the purpose under section

3; and

(b) issue a certificate to the registered public fund showing the date of registration.

(2) The Commission shall not register the proposed public fund if the public fund has not

complied with any of the requirements of section 6(2).

(1) Where the Commission grants registration pursuant to section 6, it shall—

Accounting records and financial statements

9.

(a) maintain adequate accounting records and prepare financial statements in respect of

each financial year in accordance with generally accepted accounting principles; and

(b) make such accounting records and financial statements available for examination by

the Commission or any person authorised by the Commission at—

(i) the public fund’s place of business or registered office in Anguilla, or

(ii) such other place as the public fund’s officers may see fit, provided that copies of

such records and statements or such other documents or information as the

Commission may consider necessary are made available to the Commission.

(2) The financial statements required under subsection (1) shall be—

(a) audited by an auditor acceptable to the Commission in accordance with generally

accepted auditing standards;

(b) accompanied by the report of the auditor thereon which shall include a statement of

the accounting principles under which statements have been prepared and a statement

of the auditing standards which have been applied in the audit of such statements; and

(c) provided to or made available for examination by all investors of the registered public

fund.

(1) Every registered public fund shall—

Duty to publish and file a prospectus

10.

any section thereof to purchase its shares unless prior to such invitation it publishes in writing a

prospectus signed by or on behalf of the board of directors (by whatever name called) or in the case of

a partnership, every partner other than a limited partner, and in the case of a unit trust, every trustee

which approved the contents of the prospectus or authorised its publishing, and files a copy thereof

with the Commission.

Anguilla

(1) No registered public fund shall in or outside Anguilla make an invitation to the public orMutual Funds Act R.S.A. c. M107

15/12/2004 13

(2) Every prospectus published pursuant to subsection (1) shall—

(a) provide full and accurate disclosure of all such information as investors would

reasonably require and expect to find for the purpose of making an informed

investment decision;

(b) contain a summary statement of investors’ rights as provided in section 12; and

(c) be accompanied by or contain reference to the availability of the financial statements

for the last financial year of the fund and the auditor’s report thereon if the fund has

completed a financial year in operation.

(3) If all or any part of the prospectus is not in the English language, the Commission may

require that an English translation of the prospectus or that part of the prospectus, verified in a

manner satisfactory to the Commission, be filed along with the prospectus.

(4) Where in a prospectus any of the disclosures required under paragraph (2)(a) ceases to be

accurate in a material particular, the registered public fund shall within 14 days of the change

occurring publish an amendment thereto giving accurate disclosures and provide a copy thereof to

each of its investors and to the Commission.

Certificate of compliance

11.

Anguilla shall every year, within 3 months of the end of its financial year, file with the Commission a

certificate of compliance from the competent authority that is responsible for the regulation and

supervision of the conduct of its business in that other recognized Country or Jurisdiction.

(2) A registered public fund to which subsection (1) applies is deemed to have complied with

that subsection if it is proven to the satisfaction of the Commission that the required certificate could

not be obtained for reasons beyond the control of the fund.

(3) Where a registered public fund which carries on business outside Anguilla carries on

business in more than one recognized Country or Jurisdiction other than Anguilla, the certificate

required to be filed under subsection (1) shall be from the competent authority in the recognized

Country or Jurisdiction in or from which it carries on its principal business.

(1) Every registered public fund, wherever it is constituted, which carries on business outside

Investors’ rights

12.

misrepresentation relating to any of the disclosures required under section 10(2)(a), a person who

purchased any shares pursuant to such prospectus or amendment thereto is deemed to have relied

upon the misrepresentation and shall have the rights provided in subsection (2).

(2) A person referred to in subsection (1) may elect to exercise a right of action—

(a) for the rescission of the purchase; or

(b) for damages;

against the fund.

R.S.A. c. M107

(1) If a registered public fund publishes a prospectus or any amendment thereto that containsMutual Funds Act Anguilla

14 15/12/2004

(3) For the purposes of this section, “misrepresentation” means—

(a) an untrue or misleading statement of any of the disclosures required under sections

10(2)(a) and 10(4); or

(b) an omission to disclose any of such disclosures.

(4) No person is liable under this section if he proves that the purchaser purchased the shares

offered by the prospectus or amendment thereto with knowledge of the misrepresentation.

(5) The right of action for rescission or for damages conferred by subsection (2) is in addition

to and without derogation from any other right the plaintiff may have at law.

Limitation of action and amount recoverable

13.

may not be commenced after—

(a) 180 days from the day that the plaintiff first had knowledge of the misrepresentation;

or

(b) one year from the date of the purchase transaction that gave rise to the cause of action;

whichever is earlier.

(2) In any action under section 12(2), the amount recoverable shall not exceed the amount for

which the shares were purchased or subscribed, including any fees or other charges paid by the

plaintiff.

P

PRIVATE AND PROFESSIONAL FUNDS

(1) Notwithstanding any provision of law to the contrary, any action pursuant to section 12 (2)ART 4

Recognition

14.

business or manage or administer its affairs in or from within Anguilla unless it is recognised under

this Act.

(2) A professional fund may carry on its business or manage or administer its affairs in or

from within Anguilla for a period of up to 14 days without being recognised under this Act.

(3) Notwithstanding subsection (1), a private or professional fund which is a fund which is

maintained by a group of family trusts for the sole purpose of facilitating investment and without any

solicitation being made for the sale of a right to participate in such fund shall be exempt from

recognition under this Act.

Anguilla

(1) No private fund and, subject to subsection (2), no professional fund shall carry on itsMutual Funds Act R.S.A. c. M107

15/12/2004 15

Application for recognition

15.

recognised under this Act if it provides—

(a) proof satisfactory to the Commission that it—

(i) is a private or professional fund within the meaning of this Act, and

(ii) is lawfully constituted under the laws of Anguilla; and

(b) the notices required under section 23(1).

(2) A private or professional fund that is constituted under the laws of a recognized Country

or Jurisdiction other than Anguilla may apply for recognition under this Act by sending to the

Commission a letter setting out the nature and scope of its business to be carried on from or within

Anguilla which shall be accompanied by—

(a) the application fee set out in the regulations or such other amount as may be

prescribed by regulation;

(b) the notices required under section 23(1); and

(c) proof satisfactory to the Commission that the applicant is—

(i) a private or professional fund within the meaning of this Act, and

(ii) lawfully constituted under the laws of another recognized Country or Jurisdiction.

(3) In the case of a professional fund, the matters required by subsections (1) and (2) shall be

provided within 14 days of the commencement of its business.

(1) A private or professional fund that is constituted under the laws of Anguilla may be

Power to grant recognition

16.

15(1) or (2).

(2) Where the Commission refuses to grant recognition under section 15(2), the provisions of

section 7(3) shall apply

(3) The Commission shall not refuse to grant recognition under section 15(1) unless—

(a) the applicant fails to comply with the requirements of that section; or

(b) it determines that it is not in the interests of investors or in the public interest that

recognition should be granted.

(4) Where the Commission refuses to grant recognition on the ground set out in paragraph

(3)(a), it shall give the applicant notice in writing of its decision.

(5) Where the Commission refuses to grant recognition on any of the grounds set out in

paragraph (3)(b), the provisions of section 7(3) shall apply

(1) The Commission may, in its discretion, grant or refuse to grant recognition under sectionmutatis mutandis.mutatis mutandis.

R.S.A. c. M107

Mutual Funds Act Anguilla

16 15/12/2004

Recognition procedure

17.

(a) enter the particulars relating to the private or professional fund in the relevant register

maintained by it for the purpose under section 3; and

(b) issue a certificate of recognition to the private or professional fund showing the date

of recognition.

P

MANAGERS AND ADMINISTRATORS

Where the Commission grants recognition to a private or professional fund, it shall—ART 5

Licensing

18.

Anguilla as a manager or administrator of a mutual fund unless that person is licensed for the purpose

under this Act.

(2) Subsection (1) does not apply to a person who—

(a) is not ordinarily resident or domiciled in Anguilla;

(b) is a manager or administrator of mutual funds (by whatever name called) formed or

organised under the laws of a recognised recognized Country or Jurisdiction; and

(c) has received written permission from the Commission to carry on business as manager

or administrator of mutual funds in or from within Anguilla.

(3) The Commission may exempt a person from the provisions of subsection (1) if, upon

application made to it accompanied by the prescribed application fee, the Commission is satisfied that

the applicant will not be managing or administering more than one specified mutual fund, whether

registered or recognized in Anguilla or another jurisdiction, as evidenced by a written undertaking.

(4) The Commission may otherwise exempt a person from the provisions of subsection (1) in

accordance with the provisions of section 31.

(1) No person shall carry on or hold himself out as carrying on business in or from within

Application for a licence

19.

to the Commission to carry on business in or from within Anguilla as—

(a) manager;

(b) administrator; or

(c) both manager and administrator of mutual funds.

(2) An application shall be accompanied by—

Anguilla

(1) A person who wishes to do so may make an application for a licence under section 18(1)Mutual Funds Act R.S.A. c. M107

15/12/2004 17

(a) the application fee of such other amount as may be prescribed by regulation;

(b) a statement of the financial and human resources and administrative facilities

available to the applicant for the competent and efficient conduct of its business; and

(c) such other documents or information as the Commission may reasonably require for

the purpose of considering the application.

Power to grant licences

20.

under section 19(1).

(2) The Commission shall not grant a licence unless it is satisfied that the applicant—

(a) is a fit and proper person to be engaged in the business proposed;

(b) has or has available to him adequate knowledge, expertise, resources and facilities

necessary for the nature and scope of the business proposed; and

(c) has appointed an auditor satisfying such conditions as may be prescribed by the

Commission.

(3) An applicant which provides services to one private mutual fund or one professional

mutual fund and whose business is only to appoint other service providers or to receive fees or both,

is exempted from the requirement to appoint an auditor under paragraph (2)(c).

(4) Notwithstanding subsections (1) and (2), the Commission shall refuse to grant a licence if

it determines that it is not in the public interest that a licence should be granted.

(5) Where the Commission refuses to grant a licence to an applicant, the provisions of section

7(3) shall apply

(1) The Commission may, in its discretion, grant or refuse to grant a licence to any applicantmutatis mutandis.

Licensing procedure

21.

(a) enter the particulars of the applicant in the register maintained by it for the purpose

under section 3; and

(b) issue a licence to the applicant showing the date on which the licence is granted.

Where the Commission grants a licence to an applicant, it shall—

Code of Practice

22.

section 20 to comply with the requirements of the Code which may include matters relating to—

(a) conduct of business;

(b) financial resources;

(c) the giving of notice of specified events;

R.S.A. c. M107

(1) The Commission may prescribe a Code of Practice directing the holder of a licence underMutual Funds Act Anguilla

18 15/12/2004

(d) advertising;

(e) clients’ money and custody of investments; and

(f) accounting records and audit requirements.

(2) A Code of Practice prescribed under subsection (1) may provide for such enforcement

mechanisms as the Commission may consider necessary to ensure compliance with the provisions of

the Code.

P

GENERAL

ART 6

Notices to accompany applications

23.

recognition or a licence made under this Act shall be accompanied by a notice of—

(a) the address of the applicant’s place of business and its address for service in Anguilla;

(b) the name and address of a person resident in Anguilla who is authorised to represent

the applicant and to accept service on its behalf; and

(c) the address of any place or places of business that the applicant may have outside

Anguilla.

(2) If any information contained in any of the notices required to accompany the application

pursuant to subsection (1) is altered at any time thereafter, the applicant, upon being a registered

public fund, a recognised private or professional fund or a licensed manager or administrator, as the

case may be, shall give in writing to the Commission particulars of the alteration within 21 days after

the alteration is made.

(1) In addition to any other requirement under this Act, every application for registration,

Form and conditions of certificates and licences

24.

conditions, restrictions or limitations as the Commission sees fit to specify therein.

(2) A certificate of registration or recognition or a licence shall—

(a) be in such form as may be directed by the Commission;

(b) be admitted in all courts as

(c) remain in force until it is cancelled.

(1) A certificate of registration or recognition or a licence may be granted subject to terms,prima facie evidence of the facts stated therein; and

Annual fees

25.

Anguilla

(1) Where—Mutual Funds Act R.S.A. c. M107

15/12/2004 19

(a) a public fund is granted registration;

(b) a private or professional fund is granted recognition; or

(c) a person is granted a licence;

there shall be payable for the year, in which such registration, recognition or licence is granted, the

fees as may be prescribed by regulation.

(2) On or before the 31st day of January every year following the year in which registration,

recognition or a licence is granted there shall be payable the annual fee and any penalties for late

payment of such fee as may be prescribed by regulation.

(3) An unpaid annual fee may be sued for by the Commission by action as a civil debt to be

recoverable summarily and the Commission may require, and the Court may order, the payment of a

penalty in an amount equal to the amount of the fee for late payment of the fee.

Cancellation of certificates or licences

26.

licenced manager or administrator, the Commission may, subject to sections 27 and 28, cancel a

certificate or a licence, as the case may be—

(a) at the request of the holder thereof; or

(b) where the holder thereof—

(i) has ceased to carry on business in or from within Anguilla,

(ii) has contravened any provision of this Act, the regulations or the Code of Practice

prescribed under section 22, or any term, condition, restriction or limitation

attached to the holder’s certificate or licence, as the case may be,

(iii) has been convicted of an offence under section 35(1) or of a serious criminal

offence in any recognized Country or Jurisdiction,

(iv) has knowingly and wilfully supplied false, misleading or inaccurate information

or failed to disclose information required for the purposes of any provision of this

Act or the regulations,

(v) is carrying on business in a manner detrimental to the interests of mutual funds

investors or to the public interest, or

(vi) is declared bankrupt or is being wound-up or otherwise dissolved.

With respect to a registered public fund or a recognised private or professional fund, or a

Cancellation procedure

27.

(a) give the holder thereof notice in writing of the grounds on which it intends to do so;

R.S.A. c. M107

(1) Before cancelling a certificate or a licence under section 26(b), the Commission shall—Mutual Funds Act Anguilla

20 15/12/2004

(b) afford the holder an opportunity to make written representations to it within a period

of 30 days after receipt of the notice; and

(c) take any such representations into consideration.

(2) Where in the exercise of its powers under section 26(b) the Commission decides to cancel

a certificate or licence, it shall give notice in writing to the holder thereof of such cancellation and the

reasons therefor.

Appeal of cancellations

28.

licence may appeal such decision in accordance with section 29.

The holder of a certificate or a licence aggrieved by the decision cancelling such certificate or

Appeal procedure

29.

Services Commission Act.

Any appeal to be made under this Act shall be in accordance with Part 7 of the Financial

Grant or cancellation to be published

30.

certificate or a licence under this Act.

The Commission may publish in the Gazette notice of every grant or cancellation of a

Power to grant exemptions

31.

interest, it may direct that all or any of the provisions of this Act or the regulations shall—

(a) not apply; or

(b) apply subject to such modifications as it may specify in the direction, to any person or

any class of persons.

(2) A direction under this section may be—

(a) subject to any conditions as the Commission may see fit to specify therein; and

(b) revoked at any time at the discretion of the Commission.

(1) Where the Commission is satisfied that to do so would not be prejudicial to the public

Restriction on the use of the words “fund”, “mutual fund” or “unit trust”

32.

(a) use or continue to use the words “fund”, “mutual fund” or “unit trust” either in

English or in any other language, in the name, description or title under which that

person is carrying on business in or from within Anguilla; and

(b) make or continue to make any representation in any advertisement, billhead, circular,

letter, letterhead, notice, paper or in any other manner that that person is carrying on

business as a fund or mutual fund.

Anguilla

Except with the written consent of the Commission, no person shall—Mutual Funds Act R.S.A. c. M107

15/12/2004 21

Access to information and records

33.

provisions of the Financial Services Commission Act, the Commission or any person acting under its

authority may, at all reasonable times, in writing, direct any person to whom this Act applies to—

(a) furnish information; or

(b) provide access to any records, books, or other documents;

relating to the business of that person being carried on under this Act which are reasonably necessary

to enable the Commission or any person acting under its authority to ascertain compliance with the

provisions of this Act or the regulations.

For the purpose of discharging its duties under this Act and the regulations and subject to the

Exemption from certain enactments

34.

(a) required to be licensed under the Trades, Businesses, Occupations and Professions

Licensing Act;

(b) subject to the provisions of the Stamp Act.

(2) Notwithstanding any statutory provision or rule of law to the contrary—

(a) a public fund that is registered or a private or professional fund that is recognised

under this Act; and

(b) an investor in any such registered public fund or recognised private fund or

professional fund who is not ordinarily resident or domiciled in Anguilla;

are in all respects exempt from any and all stamp duty.

(1) No company which is licensed under this Act is—

Offences and penalties

35.

(a) wilfully makes a misrepresentation in any document required to be filed, furnished or

delivered under this Act or the regulations, or in any prospectus issued in respect of a

private or professional mutual fund;

(b) wilfully makes any statement or gives any information required for the purposes of

this Act or the regulations that he knows to be false or misleading;

(c) knowingly fails to disclose any fact or information required to be disclosed for the

purposes of this Act or the regulations; or

(d) being in charge of or having possession of or control over any information, records,

books or other documents referred to in section 33, refuses or wilfully neglects to

comply with any lawful direction given under that section;

commits an offence under this Act and is liable on summary conviction to a fine of not less than

$10,000 and not more than $25,000 or to imprisonment for a period of 12 months.

R.S.A. c. M107

(1) A person who—Mutual Funds Act Anguilla

22 15/12/2004

(2) Any person who, without reasonable cause, contravenes a provision of this Act or the

regulations for which no penalty is provided commits an offence against this Act or the regulations, as

the case may be, and is liable on summary conviction—

(a) in the case of a body corporate or unincorporated, or a trust, a fine of $50,000; and

(b) in the case of an individual natural person, to a fine of $5,000 or to imprisonment for

a period of 1 month or to both.

(3) A prosecution for an offence under this Act may be commenced within 5 years from the

date of the commission of the offence but not thereafter.

Regulations

36.

(a) prescribing fees payable under this Act;

(b) designating arrangements which are not mutual funds;

(c) designating mutual funds or a class or classes thereof as private or professional funds;

(d) designating a class or sub-classes of a public fund;

(e) authorising the Commission to require that any document, statement, report,

certificate, release, agreement, or other information that is reasonably necessary to

enable the Commission to ascertain compliance with this Act be filed with, furnished

or delivered to it;

(f) defining, for the purposes of this Act, terms or expressions used in this Act that are

not defined in this Act;

(g) prescribing any matter required to be or which may be prescribed under this Act;

(h) relating to—

(i) the constitution, powers and duties of the manager, administrator and custodian,

(ii) the issue and redemption of shares,

(iii) the appointment, removal and powers and duties of auditors,

(iv) the restriction or regulation of investment and borrowing powers,

(v) the preparation of periodical reports,

(vi) the rights of investors, and

(vii) the contents of constitutional documents, in respect of a registered public fund or

a sub-class of such fund;

Anguilla

The Governor may, on the advice of the Commission, make regulations—Mutual Funds Act R.S.A. c. M107

15/12/2004 23

(i) relating to the matters which should be contained in a prospectus of a registered public

fund or a sub-class of such fund; and

(j) generally for the better administration of this Act and for carrying the intent and

purpose of its provisions into effect.

Transitional

37.

engaged in any activity in relation to which he is required to be licensed under this Act shall, within 3

months of the coming into force of this Act, comply with the provisions of this Act.

(2) Any mutual fund which, on 1st October 2004, is carrying on its business or managing or

administering its affairs in or from within Anguilla shall, within 6 months from that date, comply with

the provisions of this Act.

(3) Where a mutual fund fails to comply with subsection (2), it shall pay a non-compliance

penalty of $5,000 for each month or part thereof during which it fails to comply with that subsection

up to a period of 12 months.

(4) If after the period of 12 months prescribed under subsection (3) a mutual fund fails to

comply with the provisions of the Act, it commits an offence and may be proceeded against under

section 35(2).

(5) Where a mutual fund is proceeded against under section 35(2), it shall, in addition to any

penalty imposed on it, pay the non-compliance penalty to which it is liable under subsection (3).

(1) Any manager or administrator who, on 1st October 2004, is carrying on any business or

Citation

38.

This Act may be cited as the Mutual Funds Act, Revised Statutes of Anguilla, Chapter M107.

____________

 

 

REVISED REGULATIONS OF ANGUILLA

under

INSURANCE ACT

R.S.A. c. I16

Showing the Law as at 15 December 2004

Regulation Citation Page

INSURANCE REGULATIONS

R.R.A. I16-1 3

Revises: R.A. 29/2004, in force 15 October 2004 (15/12/2004)

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

 

A

NGUILLA

REVISED REGULATIONS OF ANGUILLA

under

INSURANCE ACT

R.S.A. c. I16

Showing the Law as at 15 December 2004

Regulation Citation Page

INSURANCE REGULATIONS

R.R.A. I16-1 3

Revises: R.A. 29/2004, in force 15 October 2004 (15/12/2004)

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

©

All rights reserved. No part of this publication may be reproduced in any form or by any means (including

photocopying) without the written permission of the Government of Anguilla except as permitted by the

Copyright Act or under the terms of a licence from the Government of Anguilla.

R.S.A. c. 16

Government of AnguillaInsurance Regulations R.R.A.I16-1

15/12/2004 3

Revised Regulations of Anguilla: I16-1

INSURANCE ACT (R.S.A. c. I16)

INSURANCE REGULATIONS

Note: These Regulations are enabled under section 2

1 of the Insurance Act, R.S.A. c. I16.

Interpretation

1.

“Act” means the Insurance Act;

“Commission” has the same meaning as in the Financial Services Commission Act;

“licensee” has the same meaning as in the Insurance Act;

“$” means the currency of the United States of America.

In these Regulations—

Application for an insurance licence

2.

follows—

Class ‘A’ Insurer’s licence Schedule 1

Class ‘B’ Insurer’s licence Schedule 2

Insurance Agent’s or Broker’s licence Schedule 3

Insurance Manager’s licence Schedule 4

Information in support of an Application Schedule 5.

An application for an insurance licence under section 5(1) of the Act shall be in the form as set out as

Fees

3.

Schedule 6.

The payment of fees and late payment penalties for the various insurance licences are prescribed in

Approval for the issue or transfer of shares and other interests

4.

transfer or disposal of shares or other interests shall make an application for such approval in the form set out in

Schedule 7.

Every licensee seeking the approval of the Commission under section 12 of the Act for the issue,

Approval of Directors

5.

of a director or other senior officer shall make an application in the form set out in Schedule 8.

Every licensee seeking the approval of the Commission under section 13 of the Act for the appointment

Citation

6.

I16-1.

___________

R.R.A.I16-1

These Regulations may be cited as the Insurance Regulations, Revised Regulations of AnguillaInsurance Regulations R.S.A. c. 16

4 15/12/2004

SCHEDULE 1

(Section 2)

Anguilla

INSURANCE ACT

(Section 5 (1))

APPLICATION FOR A CLASS ‘A’ INSURER’S LICENCE IN ANGUILLA

Notes

Complete all sections giving reasons for non-compliance, if any, and attaching supplementary sheets where

appropriate.

Completed forms should be submitted to:—

FINANCIAL SERVICES COMMISSION

P O BOX 1575

THE VALLEY

ANGUILLA

Tel: 1 264 497 5881

Fax: 1 264 497 5872

And be accompanied by a non-refundable Application Fee of US$500

_____________________________________________________________

1. Name or proposed name of applicant.

2. Address of:

a) Registered Office in Anguilla….…………………………………………………….

b) Principal Office………………………………………………………………………

c) Head Office…………………………………………………………………………..

3. List all names (including any previous names) addresses and nationalities of all beneficial shareholders and

ultimate beneficial shareholders, together with the number and class of shares (to be) held directly or on

their behalf (large publicly held corporations need only list those beneficial shareholders owning over 25%

of their shares).

In those cases where shares are beneficially owned by a corporate body or bodies or the company is part of

a group, the chain of connection (group organization chart showing all associated and affiliated companies)

to the ultimate beneficial owners must be shown.

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 5

4. Name and address of one person resident in Anguilla who is authorized to accept service of process in legal

proceedings and notices on behalf of the applicant and who is proposed for approval under section 8(3) of

the Act.

5. In the case of external insurers:

a) Branch applicants must provide written confirmation that their head office accepts full responsibility

for all policies and contracts issued by the branch and also for all acts, omissions and liabilities of the

branch.

b) Where the applicant is a subsidiary company state whether the parent company will provide a

guarantee in respect of all policies and contracts issued by the subsidiary and also for all acts,

omissions and liabilities of the subsidiary.

6. State whether the insurance business being, or proposed to be, transacted is ‘general’ or ‘long term’ or both.

(As defined in section 1 of the Act)

7. In respect of general domestic business state the applicant’s policy regarding availability of funds for

prompt settlement of normal claims.

8. In respect of long-term domestic business state the applicant’s policy regarding investment of annual

premium income.

9. List all insurance agents and insurance brokers, if any, in Anguilla, who have or are to have the applicant’s

underwriting authority to accept domestic business on its behalf.

10. Provide the latest audited financial statements of the immediate parent, and, if applicable, the consolidated

accounts of the group.

11. Attach a written undertaking stating the issued capital of the applicant, if not an external insurer.

12. Provide a list of all directors, officers, managers and administrators showing their respective positions with

the insurer; together with each person’s curriculum vitae.

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

6 15/12/2004

13. Attach evidence of the auditor’s acceptance of their appointment or their willingness to act.

14. For long-term business please give the name and address of the appointed actuary and attach evidence of

their willingness to act.

15. Have any of the parties connected with this application ever applied, either individually or in conjunction

with others, for authority to transact insurance business in any other jurisdiction and such application has

been refused? If so please give details.

16. For external insurers, please provide a copy of the licence or registration from the home supervisory

authority.

17. Attach a business plan detailing how the applicant will conduct and administer its insurance business in

Anguilla and the levels and types of business it intends to undertake.

18. For new companies, to what date will the company make up its first set of audited accounts, and what date

will it use annually thereafter?

19. All beneficial owners, directors, and controllers of the applicant may be required by the Commission to

complete and submit with this application Schedule 5 of the Regulations (Information in support of an

application).

Application is accordingly hereby made for the licence specified above and it is certified that all the particulars

contained in the Application and in the documents accompanying it or otherwise furnished in the support hereof

are true and correct and that any change to the information submitted will be communicated to the Financial

Services Commision forthwith.

Dated this ………………… day of ……………………………….., 20……… .

……………………………..

Name of Applicant

By its Director/Secretary or other duly authorized person

Signed …………………………………

___________

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 7

SCHEDULE 2

(Section 2)

Anguilla

INSURANCE ACT

(Section 5(1))

APPLICATION FOR A CLASS ‘B’ INSURER’S LICENCE IN ANGUILLA

Notes

Complete all sections giving reasons for non-compliance, if any, and attaching supplementary sheets where

appropriate.

Completed forms should be submitted to:—

FINANCIAL SERVICES COMMISSION

P.O.BOX 1575

THE VALLEY

ANGUILLA

Tel: 1 264 497 5881

Fax: 1 264 497 5872

And be accompanied by a non-refundable Application Fee of US$500

_____________________________________________________________

1. Name or proposed name of applicant.

2. Address of:

(a) Registered Office…………………………………………………………………………………..

(b) Principal Office……………………………………………………………………………………

3. Address in Anguilla where full business records will be kept.

4. State which class of “B” licence is being applied for. Please refer to section 3 (1)(b) to (f) of the Act.

5. State whether the insurance business being, or proposed to be, transacted is ‘general’ or ‘long-term’ or

both. (As defined in section 1 of the Act).

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

8 15/12/2004

6. List all names (including any previous names) addresses and nationalities of all beneficial shareholders and

ultimate beneficial shareholders, together with the number and class of shares (to be) held directly or on

their behalf (largely publicly held corporations need only list those beneficial shareholders owning over

25% of their shares).

In those cases where shares are beneficially owned by a corporate body or bodies or the company or the

company is part of a group, the chain of connection (group organization chart showing all associated and

affiliated companies) to the ultimate beneficial owners must be shown.

7. Provide a list of all directors, managers and officers together with each person’s curriculum vitae.

8. If the applicant is to depend upon agent or service companies for the provision of underwriting,

management of financial accounting services, please provide details of such companies including evidence

of their agreement to provide such services.

9. If applicable, provide the latest audited financial statements of the applicant and, those of the immediate

parent, and the consolidated accounts of the group.

10. Attach a written undertaking stating the issued capital of the applicant.

11. Attach evidence of the auditor’s acceptance of their appointment or their willingness to act.

12. Attach evidence of the insurance manager’s acceptance of their appointment or their willingness to act.

13. For long-term business please give the name and address of the appointed actuary and attach evidence of

their willingness to act.

14. Name and address of one person resident in Anguilla who is authorised to accept service of process in legal

proceedings and notices on behalf of the applicant and who is proposed for approval under section 8(3) of

the Act.

15. Have any of the parties connected with this application ever applied, either individually or in conjunction

with others, for authority to transact insurance business in any jurisdiction? If so please give details.

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 9

16. If applicable, please provide a copy of the licence or registration from the home supervisory authority.

17. Attach a detailed business plan detailing how the applicant will conduct and administer its insurance

business in Anguilla and the levels and types of business it intends to undertake.

18. For new companies, to what date will the company make up its first set of audited accounts, and what date

will it use annually thereafter?

19. All beneficial owners, directors, and controllers of the applicant should complete and submit with this

application Schedule 5 (Information in support of an application).

Application is accordingly hereby made for the licence specified above and it is certified that all the particulars

contained in the Application and in the documents accompanying it or otherwise furnished in the support hereof

are true and correct and that any change to the information submitted will be communicated to the Financial

Services Commision forthwith.

Dated this ………………… day of ……………………………….., 20……… .

…………………………….

Name of Applicant

By its Director/Secretary or other duly authorized person

Signed ………………………….

___________

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

10 15/12/2004

SCHEDULE 3

(Section 2)

Anguilla

INSURANCE ACT

(Section 5(1))

APPLICATION FOR AN INSURANCE AGENT OR BROKER’S LICENCE IN ANGUILLA

Notes

Complete all sections giving reasons for non-compliance, if any, and attaching supplementary sheets where

appropriate.

Completed forms should be submitted to:—

FINANCIAL SERVICES COMMISSION

P O BOX 1575

THE VALLEY

ANGUILLA

Tel: 1 264 497 5881

Fax: 1 264 497 5872

And be accompanied by a non-refundable Application Fee of US$500

_____________________________________________________________

1. Name of applicant:

2. Date on which applicant commenced or proposes to commence carrying on business in or from within

Anguilla.

3. Address of:

(a) Registered Office in Anguilla……………………………………………………………

(b) Principal Office in Anguilla………………………….………………………………….

4. If incorporated:

(a) List all names (including any previous names), addresses and nationalities of all shareholders. In those

instances where shares are held by a corporate body or bodies the chain of connection to the ultimate

owner must be shown.

(b) Attach a curriculum vitae of all directors, managers, and officers.

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 11

5. If incorporated, attach the latest annual accounts, including those of each shareholder which is a body

corporate holding more than 25% of the applicant’s issued share capital or total voting rights, together with

similar accounts for the parent body, if any, of each such body corporate.

6. If not incorporated, state the names, addresses, nationalities and attach the curriculum vitae of the applicant

and any person acting as a manager or other officer or partner as the case may be.

7. Attach evidence of the approval from the company or companies for which you act, or propose to act, as

agent or as broker.

8. Attach a list of all sub-agents authorized by the applicant to solicit insurance business on its behalf, and of

all insurance agents associated with the applicant company.

9. Have any of the parties connected with this application ever applied either individually or in conjunction

with others, for authority to transact insurance business? If so please give details.

10. For Brokers only:

Attach evidence of the existence of professional indemnity insurance as may be required under section 9(2)

of the Act.

11. For Brokers only:

Attach a business plan.

12. All beneficial owners, directors and controllers of the applicant should complete and submit with this

application Schedule 5 (Information in support of an application).

Dated this ………………… day of ……………………………….., 20……… .

……………………………………………

(Name of applicant)

……………………………………………

(Signature of applicant if an individual)

___________

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

12 15/12/2004

SCHEDULE 4

(Section 2)

Anguilla

INSURANCE ACT

(Section 5(1))

APPLICATION FOR AN INSURANCE MANAGER LICENCE

Notes

Complete all sections giving reasons for non-compliance, if any, and attaching supplementary sheets where

appropriate.

Completed forms should be submitted to:—

FINANCIAL SERVICES COMMISSION

P. O. BOX 1575

THE VALLEY

ANGUILLA

Tel: 1 264 497 5881

Fax: 1 264 497 5872

And be accompanied by a non-refundable Application Fee of US$500

_____________________________________________________________

1. Name of applicant:

2. Date on which applicant proposes to commence carrying on business in or from within Anguilla.

3. Address or registered office in Anguilla and the name of one representative, who is authorized to accept on

behalf of the applicant service of process and any notices required to be served on it.

4. If incorporated

(a) Attach evidence of proper incorporation and a copy of the memorandum of association and articles of

association or other instrument of constitution of the applicant as may be appropriate; or if not yet

incorporated, the proposed documentation.

(b) List all names (including any previous names), addresses and nationalities of all shareholders and

directors. In those instances where shares are held by a corporate body or bodies the chain of

connection to the ultimate beneficial owner must be shown.

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 13

(c) Attach a curriculum vitae of each director and manager of the applicant.

5. If incorporated, attach the annual accounts for the two years preceding the year of application, if applicable,

and annual accounts of each shareholder which is a body corporate holding more that 25% of the

applicant’s issued share capital or total voting rights, together with similar accounts for the parent body, if

any, of each such body corporate.

6. If not incorporated, the names, addresses, nationalities and curriculum vitae of the applicant and any person

acting as a manager, or other officer or partner, as the case may be.

7. Attach a list of all insurers for whom the applicant is, or will be, engaged to act as manager or consultant, if

known.

8. Attach a business plan. The plan should detail the full insurance manager services that the manager will

provide and details of the resources available to the manager to be able to provide these services and the

intended physical presence to be undertaken in Anguilla.

9. Have any of the parties connected with the application ever applied, either individually or in conjunction

with others, for authority to transact insurance business or business of a financial services nature in any

other jurisdiction? If so, please give details.

10. Attach evidence of existing licensing or registration in the home jurisdiction, if applicable.

11. All beneficial owners, directors and controllers of the applicant should complete and submit with this

application Schedule 5 (Information in support of an application).

Application is accordingly hereby made for the licence specified above and it is certified that all the particulars

contained in this application and in the documents accompanying it or otherwise furnished in support hereof are

true and correct and that any change to the information submitted will be communicated to the Financial

Services Commission forthwith.

Dated this ………………… day of ……………………………….., 20……… .

………………………………

(Name of applicant)

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

14 15/12/2004

………………………………

(Signature of applicant if an individual)

OR by its *Director/*Secretary/*or other person duly authorized

………………………………………………. ………………………………………………..

Signature Position

___________________

*Delete words, which are not applicable

___________

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 15

SCHEDULE 5

(Section 2)

Anguilla

INSURANCE ACT

(Section 2)

INFORMATION IN SUPPORT OF AN APPLICATION FOR

AN INSURANCE LICENCE IN ANGUILLA

Details required from each applicant or, if incorporated, each shareholder holding 25% or more of the

applicant’s issued share capital, and each director of an applicant company, or partner if a partnership, and

comptroller if not a director, and such other persons as the Commission may require.

1. Full name

2. Former name (if different from name given above).

3. Date and place of birth

4. Nationality (if naturalised attach a copy of the naturalisation certificate, and state former nationality)

5. Full home address at present time:

6. List home addresses in full for previous five years where different from that given above, and give the

related dates:

7. Marital status. If married give full name of spouse including maiden name of wife.

8. Passport particulars (enclose copies of relevant pages).

9. Give full details of your profession or occupation over the past ten years; include the names and addresses

of all employers and the nature of your employment; give all relevant dates and state briefly the reasons for

changes:

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

16 15/12/2004

10. Give a list of all companies in which you have held an interest of 25% or more during the past ten years.

Give brief particulars of the nature of the business of all such companies.

11. Give details of academic and professional qualifications and date(s) obtained, if not already included in the

curriculum vitae.

12. Have you ever been employed in, or had an interest in

(a) A financial services activity, or

(b) (State YES or NO ) A gambling activity in any country?

13. In relation to the proposed insurance operation are you acting wholly or partly as a nominee or agent for, or

trustee of another person, persons or organisations? (State YES or NO).

If YES, give the name and address of the person, or persons, or organisations and the precise nature of your

relationship and/or the arrangement.

14. Give the full details of your financial interest in the proposed insurance operation, and the percentage

ownership that this will represent, if applicable.

15. Have you or your spouse ever been declared bankrupt or been the subject of a bankruptcy petition, or ever

received a judgement against you in a civil court? (State YES or NO).

If YES give full details.

16. Has any company or firm of which you or your spouse was a partner, director or officer been the subject of

a winding up petition? (State YES or NO).

17. Have you ever applied for a financial services licence in any other jurisdiction? (State YES or NO).

If YES state type of account, name of establishment, location and period held and where granted.

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 17

18. Have you ever been refused a financial services licence or had an interest in any group which has been

refused a license or related finding of suitability? State YES or NO).

If YES to either of the above, state where, when and for what reason.

19. Have you ever appeared before any licensing agency or similar authority for any reason whatsoever? For

example, as a witness. (State YES or NO).

If YES provide details.

20. Have you ever been barred from acting as a director? (State YES or NO).

If YES provide details

21. Have you as an individual, member of a partnership, or owner, director or officer of a corporation, ever

been a party to a lawsuit as either a plaintiff, or defendant as a result of misconduct? (State YES or NO).

If YES give details below: List all cases without exception, including bankruptcies:

Plaintiff/Defendant

Court and Case Number

Location

Result

22. Have you ever been arrested, detained, charged, indicted or summoned to answer for any criminal offence

or violation for any reason whatsoever, regardless of the result of the event, in any country? (Except

MINOR traffic offences) (State YES or NO).

If YES give details. List all cases without exception:

Date of Arrest or Detention

Age

Charge

Location

Result

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

18 15/12/2004

23. Will you participate actively in the management or operation of the proposed insurance operation? (State

YES or NO).

If YES give full details.

24. Has your interest in the proposed insurance operation been assigned, pledged or hypothecated to any

person, persons, firms, partnerships or companies; or have you entered into any agreement, whereby your

interest is to be assigned or pledged or sold either wholly or in part? (State YES or NO).

25. If applicable, have you made any arrangements for persons, firms or companies to advance money, or other

equity, to you to assist in financing your investment in the proposed insurance operation? (State YES or

NO).

26. Do your assets exceed your liabilities, including contingent liabilities and are likely to remain so for the

foreseeable future? (State YES or NO).

27. Give the names, addresses and telephone numbers of three referees, including a financial institution.

Referees should not be relatives. They should have been told that the Commission might wish to contact

them.

I certify that to the best of my knowledge and belief the information given in this form is complete and correct:

Date: …………………………………………… Signed: …………………………………………………

AUTHORISATION TO SEEK ADDITIONAL INFORMATION

I/We hereby authorise you to contact all relevant authorities and authorise said authorities to provide you with

whatever information you may request.

(Signed)

Please forward to:

The Financial Services Commission

P. O. Box 1575

The Valley

Anguilla

British West Indies

Tel: 1 264 497 5881

Fax 1 264 497 5872

___________

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 19

SCHEDULE 6

(Section 3)

Anguilla

INSURANCE ACT

(Section 20 (1)(f))

INSURANCE FEES

The fee for a licensing service in Column 1 below is the amount set out opposite in Column 2.

COLUMN 1 COLUMN 2

Service US$

Application fees (non-refundable)

(a) For filing application for a Class ‘A’ or Class ‘B’ licence under

section 3 (1) ……………………………………………………………………………………..

$500

(b) For filing application for an insurance agent, broker’s or

manager’s licence under section 3 (2) ………………………………………………….

$500

(c) For filing application for a sub agent or principal representative

(insurance) licence under section 3(2) ………………………………………………….

$100

Issue of Licence and Annual Renewal of a Licence fees

(d) For a Class ‘A’ licence (section 3 (1) (a)) ……………………………………………. $2,500

(e) For a Class ‘B’ Unrestricted or General licence (sections 3 (1)(b)

and (c)) …………………………………………………………………………………………… $2,000

(f) For a Class ‘B’ Association, Group or Single licence (sections 3

(1)(d), (e) and (f)) …………………………………………………………………………….. $1,500

(g) For an Insurance Agent, Broker or Manager licence (sections 3

(2)(a) and (b))…………………………………………………………………………………… $1,000

(h) For an Insurance sub-agent licence (section 3 (2)(c)) …………………………… $250

(i) For a Principal Representative (Insurance) licence (section 3

(2)(e)) ……………………………………………………………………………………………… $500

Note

prescribed licence fee only will be payable.

: If the issue of a licence under (d) to (i) above is granted on or after July 1 in any year, half of the

Date by which Annual Fees must be paid

In accordance with section 6 of the Insurance Act, the annual fee must be paid on or before every 15th of

January during the currency of the licence.

If the annual fee is not paid on or before every 15th of January but is paid on or before the 31st of March in the

same year, a late payment penalty of 25% of the annual fee will be additionally payable.

If the annual fee is not paid on or before every 31st of March in the same year but is paid on or before the 30th

June in the same year, a late payment penalty of 50% of the annual fee will be additionally payable.

If the annual fee is not paid on or before every 30th June in the same year, section 6(3) of the Act will apply.

___________

R.R.A.I16-1

Insurance Regulations R.S.A. c. 16

20 15/12/2004

SCHEDULE 7

(Section 4)

Anguilla

INSURANCE ACT

(Section 12)

APPLICATION FOR APPROVAL OF ISSUE OR TRANSFER

OF SHARES OR OTHER INTERESTS

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Dear Sir

Re:

We apply herewith for your approval of the issue/transfer/ other dispositions* of shares/ other interests* in the

above-mentioned company.

Name and address of allottee or transferee of shares or other interests*

________________________________________________________

________________________________________________________

If the interests being ________________________________________________________

issued, transferred or

otherwise disposed of ________________________________________________________

are not shares, please

give a description ________________________________________________________

thereof*

Number of shares and

percentage of total ________________________________________________________

interests to which

application relates ________________________________________________________

We attach Schedule 5 of these Regulations (Information in support of an Application) duly completed by any

new allottee or transferee.

Yours faithfully

___________________

* Complete and/or delete as appropriate

___________

R.S.A. c. 16

Insurance Regulations R.R.A.I16-1

15/12/2004 21

SCHEDULE 8

(Section 5)

Anguilla

INSURANCE ACT

(Section 13)

APPLICATION FOR APPROVAL OF DIRECTORS

Financial Services Commission

P.O. Box 1575

The Valley

Anguilla

Dear Sir

Re:

We apply herewith for approval for the appointment of

___________________________________* as a director of this licensed institution

OR to hold the title of

___________________________________*

We attach herewith Schedule 5 (Information in support of an Application) of these Regulations duly completed with

respect to the aforementioned person(s).

Yours faithfully

___________________

* Completed and /or delete as appropriate

___________

 

 

Anguilla Insurance Act

REVISED STATUTES OF ANGUILLA

CHAPTER I16

INSURANCE ACT

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

This Edition revises Act 6/2004, in force 1 October 2004

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

 

A

NGUILLA

REVISED STATUTES OF ANGUILLA

CHAPTER I16

INSURANCE ACT

Showing the Law as at 15 December 2004

This Edition was prepared under the authority of the Revised Statutes and Regulations Act,

R.S.A. c. R55 by the Attorney General as Law Revision Commissioner.

This Edition revises Act 6/2004, in force 1 October 2004

Published by Authority

Printed in

The Attorney General’s Chambers

ANGUILLA

©

All rights reserved. No part of this publication may be reproduced in any form or by any means (including

photocopying) without the written permission of the Government of Anguilla except as permitted by the

Copyright Act or under the terms of a licence from the Government of Anguilla.

Government of Anguilla

Anguilla

Insurance Act R.S.A. c. I16

15/12/2004 3

INSURANCE ACT

TABLE OF CONTENTS

S

ECTION

1. Interpretation

2. Insurance businesses to be licensed

3. Classes of licences and capital requirements

4. Ownership by trustees

5. Application for a licence

6. Payment of annual fee

7. Use of the word “insurance”, etc.

8. General requirements for licensed insurers

9. General requirements for other licensees

10. Annual returns by licensed insurers

11. Annual returns by other licensees

12. Shares not to be held, issued or transferred without the approval of the Commission

13. Number and appointment of directors

14. Cease and desist orders

15. Examination of a licensee

16. Enforcement action

17. Surrender of licence

18. Protected premium accounts

19. Additional requirements for foreign insurers carrying on long term business

20. Non-application, etc.

21. Regulations

22.

23. Offences

24. Transitional provisions

25. Citation

R.S.A. c. I16

Gazette NoticesInsurance Act Anguilla

4 15/12/2004

Anguilla

Insurance Act R.S.A. c. I16

15/12/2004 5

INSURANCE ACT

Interpretation

1.

“actuary” means a person who has qualified as an actuary by examination of the Institute of Actuaries

in England or the Faculty of Actuaries in Scotland or the American Academy of Actuaries in

North America, and who is a current member of good standing of one of the above

professional associations or another professional actuarial association which is recognised by

the Commission as such for the purpose of this Act;

“affiliate” means a person controlling, controlled by, or under common control with, another person;

“approved external insurer” means an insurer licensed as such under section 3(3);

“auditor” means a person who has qualified as an accountant by examination of, and holds a

practicing certificate issued by, one of the Institutes of Chartered Accountants in England and

Wales, Ireland and Scotland, or the Canadian Institute of Chartered Accountants or the

American Institute of Certified Public Accountants, and who is a current member of good

standing of one of the above Institutes or another professional accountancy body which is

recognised by the Commission as such for the purpose of this Act;

“Commission” means the Anguilla Financial Services Commission established under section 2 of the

Financial Services Commission Act;

“Companies Act” means the Companies Act and any amendments thereto;

“Company Management Act” means the Company Management Act and any amendments thereto;

“contract” includes policy;

“Court” means the High Court;

“dollar”or “$” means a dollar in the currency of the United States of America;

“domestic insurance business” means insurance business where the contract is in respect of the life,

safety, fidelity or insurable interest (other than in respect of property) of a person who at the

time of effecting the contract is ordinarily resident in Anguilla, or property that at the time of

effecting the contract is in Anguilla or, in the case of a vehicle, vessel or aircraft, or other

movable property is ordinarily based in Anguilla (but does not include re-insurance business);

“external insurer” means an insurer who is neither a local nor a foreign insurer and is registered as a

foreign company pursuant to the Companies Act or is constituted as a mutual association

acceptable to the Commission;

“Financial Services Commission Act” means the Financial Services Commission Act and any

amendments thereto;

R.S.A. c. I16

In this Act—Insurance Act Anguilla

6 15/12/2004

“financial year”, in relation to a licensee, means the period not exceeding 53 weeks at the end of

which the balance of the licensee’s accounts is struck or, if no such balance is struck or if a

period in excess of 53 weeks is employed, then a calendar year;

“foreign insurance business” means insurance business where insured risks are situated outside of

Anguilla;

“foreign insurer” means an insurer which carries on foreign insurance business and is constituted

through partnership, shareholding or other mutual association acceptable to the Commission;

“general business” means insurance business other than long term business, and for the removal of

doubt includes—

(a) credit life business, that is the business of effecting and carrying out contracts of

insurance against risk of loss to persons arising from the non-payment of debts due to

such persons by reason of the death of their debtors;

(b) employee group business, that is the business of effecting and carrying out contracts

of insurance on the lives of employees of the insured or of an affiliate of the insured;

“Governor” means the Governor in Council;

“insurance agent” means a person (not being an insurer) who solicits directly, or through sub-agents,

advertising or other means, domestic business on behalf of not more than one insurer doing

general business and not more than one insurer doing long term business;

“insurance broker” means a person (not being an insurer) who negotiates directly, or through

representatives or other means, contracts of insurance or of reinsurance on behalf of more than

one insurer, or for placement with insurers or re-insurers;

“insurance business” means the business of undertaking liability under a contract of insurance to

indemnify a person in respect of any loss or damage, including the liability to pay damages or

compensation contingent upon the happening of a specified event, and includes re-insurance

business, long term business and running-off business including the settlement of claims;

“insurance manager” means a person resident in Anguilla not being the employee of any insurer who

is, or has available to him, a person with such insurance knowledge and expertise as the

Commission may deem necessary for the conduct and management of the insurance business

of any one or more insurers in a competent manner;

“insurance sub-agent” means a person (not being an insurer, insurance agent or insurance broker) who

solicits directly or through advertising or other means, domestic business on behalf of an

insurance agent or on behalf of an insurance broker;

“insurer” means a person carrying on insurance business who is—

(a) a local insurer, a foreign insurer or an external insurer; or

(b) an association of individual underwriters, including Lloyds of London and other

associations of underwriters recognised by the Commission;

Anguilla

Insurance Act R.S.A. c. I16

15/12/2004 7

“intermediary business “ means the business of an insurance agent, insurance broker, insurance subagent,

insurance manager or principal representive (insurance);

“licence” means a licence granted under this Act;

“local insurer” means an insurer, other than a foreign or external insurer, incorporated or constituted

in and having its head office in Anguilla;

“long term business” means insurance business involving the making of contracts of insurance—

(a) on human life or contracts to pay annuities on human life; but excluding contracts for

credit life insurance and term life insurance for a period of 5 years or less other than

convertible and renewable term life contracts;

(b) against risks of the persons insured sustaining injury as the result of an accident or of

an accident of a specified class or dying as the result of an accident or of an accident

of a specified class or becoming incapacitated in consequence of disease or diseases

of a specified class, being contracts that are expressed to be in effect for a period of

not less than 5 years or without limit of time and either not expressed to be terminable

by the insurer before the expiration of 5 years from the taking effect thereof or are

expressed to be so terminable before the expiration of that period only in special

circumstances therein mentioned; and

(c) whether by bonds, endowment certificates or otherwise whereby in return for one or

more premiums paid to the insurer a sum or series of sums is to become payable to the

person insured in the future, not being contracts falling within paragraphs (a) or (b);

“net worth” means excess of assets (including any contingent or reserve fund secured to the

satisfaction of the Commission) over liabilities other than liabilities to partners or

shareholders;

“person” includes an individual natural person, a company, or other legal entity recognised as such

under the laws of another country or jurisdiction;

“policy holder” means the person with whom an insurer has effected a contract of insurance;

“prescribed” means prescribed by regulation;

“principal representative (insurance)” means a person who—

(a) operates in Anguilla and, not being a

maintains for an insurer full and proper records of the business activities of that

insurer;

and

(b) holds a general trust licence issued under the Trust Companies and Offshore Banking

Act;

or

(c) holds a licence issued under the Company Management Act;

R.S.A. c. I16

bona fide employee of a licensed insurer,Insurance Act Anguilla

8 15/12/2004

or

(d) holds an insurance manager’s licence granted under this Act and maintains an office

and qualified staff in Anguilla;

“significant interest” means a person holding 10% or more of the issued share capital and voting

rights of a company or in the case of a company publicly traded on a stock exchange approved

by the Commission, a holding of 25% or more;

“trust” means a trust formed under the Trusts Act;

“Trusts Act” means the Trusts Act and any amendments thereto.

Insurance businesses to be licensed

2.

kind in or from within Anguilla unless he holds a licence authorising him to carry on that kind of

business and the licence has not been suspended.

(2) No person shall carry on, or hold himself out as carrying on, business in or from within

Anguilla as—

(a) an insurance manager;

(b) an insurance broker;

(c) an insurance agent;

(d) an insurance sub-agent; or

(e) a principal representative (insurance);

unless he holds a licence issued in the appropriate category under this Act and the licence has not

been suspended.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable on

summary conviction to a fine of $25,000 or to imprisonment for 1 year or to both.

(1) No person shall carry on, or hold himself out as carrying on, insurance business of any

Classes of licences and capital requirements

3.

persons who wish to carry on insurance business in or from within Anguilla—

(a) Class ‘A’ Insurer’s Licence which shall permit a local or an external insurer to carry

on insurance business, including domestic insurance business, generally in or from

within Anguilla, providing that it has and maintains an issued and paid up capital of at

least $200,000;

(b) Class ‘B’ Insurer’s Unrestricted Licence which shall permit a foreign insurer to carry

on any foreign insurance business, including long-term foreign insurance business,

providing that it has and maintains an issued and paid up capital of at least $200,000;

Anguilla

(1) The Commission may grant licences under one or more of the following categories toInsurance Act R.S.A. c. I16

15/12/2004 9

(c) Class ‘B’ Insurer’s General Licence which shall permit a foreign insurer to carry on

general foreign insurance business, but not long-term foreign insurance business,

providing that it has and maintains an issued and paid up capital of at least $100,000;

(d) Class ‘B’ Insurer’s Association Licence which shall permit a foreign insurer to carry

on general foreign insurance business and long-term foreign insurance business, with

2 or more owners of the insurer, and its affiliates, and to carry on no more than 30%

of its foreign insurance business (based on net premiums written) or 100% of its

reinsurance business with persons who are not owners of the insurer or its affiliates,

providing that it has and maintains an issued and paid up capital of at least $100,000;

(e) Class ‘B’ Insurer’s Group Licence which shall permit a foreign insurer to carry on any

foreign insurance business, including long-term foreign insurance business, with a

single owner of that insurer and its affiliates, and employees of the owner or its

affiliates, providing that it has and maintains an issued and paid up capital of at least

$25,000;

(f) Class ‘B’ Insurer’s Single Licence which shall permit a foreign insurer to carry on any

foreign insurance business, including long-term foreign insurance business, with the

sole owner of the insurer, if a company, providing that it has and maintains an issued

and paid up capital of at least $10,000.

(2) The Commission may grant licences under one or more of the following categories to

persons who wish to carry on intermediary business in or from Anguilla—

(a) Insurance Agent’s Licence;

(b) Insurance Broker’s Licence;

(c) Insurance Sub-Agent’s Licence;

(d) Insurance Manager’s Licence;

(e) Principal Representative (lnsurance)’s Licence.

(3) An external insurer having its principal or registered office in a place outside Anguilla

where the regulation and supervision of insurers is acceptable to the Commission may be licensed as

an approved external insurer under Class ‘A’.

(4) The Commission may order a licensee to increase its paid up capital to such greater

amount as it may determine having regard to the nature and extent of insurance business being or

sought to be undertaken.

(5) A company licensed to carry on long-term business may not also be licensed to carry on

general business unless the Commission is satisfied that there are clear provisions requiring that such

risks be undertaken separately on both a going concern and winding up basis.

(6) A company licensed under this section must ensure that its paid up capital is maintained in

an amount not less than required by its licence or by the Commission under subsection (4) and must

report immediately to the Commission when its net worth falls below the amount equivalent to its

required paid up capital.

R.S.A. c. I16

Insurance Act Anguilla

10 15/12/2004

Ownership by trustees

4.

owned by trustees of a trust formed under the Trusts Act, and such trust may be a purpose trust or a

trust comprising one or more beneficiaries.

With the approval of the Commission, the shares of an insurer licensed under this Act may be

Application for a licence

5.

containing the information prescribed and shall be accompanied by the prescribed fee.

(2) The Commission may grant a licence, subject to such licensing terms and conditions as it

thinks fit, or it may refuse to grant a licence.

(3) The Commission shall refuse to grant a licence if the Commission is of the opinion that—

(a) an applicant is not—

(i) a fit and proper person, and

(ii) is not qualified to carry on insurance business;

(b) the persons having a significant interest, whether legal or equitable, directly or

indirectly, in the applicant and its directors and officers are not fit and proper persons

to have an interest in or be concerned with the management of a licensee, as the case

may be;

(c) the applicant does not satisfy the requirements of this Act in respect of the application

and will, upon issuance of the licence, not be in compliance with this Act in respect of

licensing; and

(d) issuing the licence is against the public interest.

(4) In determining for the purposes of this section whether a person is a fit and proper person,

regard shall be had to all circumstances, including that person’s—

(a) honesty, integrity and reputation;

(b) competence, capability and experience;

(c) financial soundness; and

(d) previous conduct and activities in business and financial matters.

(5) Every person who—

(a) applies for a licence shall notify the Commission forthwith of any change in the

information supplied in the application; and

(b) contravenes this subsection commits an offence.

Anguilla

(1) Every application for a licence shall be filed with the Commission in the form andInsurance Act R.S.A. c. I16

15/12/2004 11

(6) The Commission may require an applicant to provide additional information or

documentation that it considers necessary to determine the application.

Payment of annual fee

6.

currency of the licence pay to the Commission the annual fee prescribed in respect of each class of

licence held.

(2) Without prejudice to the foregoing provisions of this section, if the annual fee referred to

in subsection (1) is not paid by the holder of a current licence on or before every 15th day of January

during the currency of the licence, the unpaid annual fee may be sued for by the Commission by

action as a civil debt and the Commission may by regulation order the payment of any penalties

accrued in respect of the late payment of the fee.

(3) The Commission may suspend or revoke a licence if the licence holder fails to pay the

prescribed annual fee together with the appropriate late payment penalty in full on or before 30th June

in the year in which the annual fee is due.

(1) Every holder of a current licence shall on or before every 15th day of January during the

Use of the word “insurance”, etc.

7.

(a) uses or continues to use the words “insurance”, “assurance”, “indemnity”,

“guarantee”, “underwriting”, “reinsurance”, “surety”, “casualty” or any other word

which in the opinion of the Commission connotes insurance business or any of their

derivatives in English or in any other language in the description or title under which

he carries on business in or from within Anguilla; or

(b) makes or continues to make any representation in any billhead, letter, letterhead,

circular, paper, notice, advertisement or in any manner whatsoever that he is carrying

on insurance business;

commits an offence.

(2) The Commission may suspend or revoke the licence of any person who carries on

insurance business, or acts as an insurance manager, an insurance broker, an insurance agent, an

insurance sub-agent or a principal representative (insurance) if the person carries on their business

under a name which is—

(a) identical with that of any other person, company, firm or business house whether

within Anguilla or not, or which so nearly resembles that name as to be calculated to

deceive;

(b) calculated to falsely suggest the patronage of or connection with some person of

authority whether within Anguilla or not;

(c) calculated to falsely suggest that such person has a special status in relation to or

derived from the Government of Anguilla, or has the official backing of or acts on

behalf of the Government of Anguilla or of any department or official thereof or is

recognised in Anguilla as a national insurer, insurance broker, insurance agent or

insurance manager; or

R.S.A. c. I16

(1) Any person who, not having the approval of the Commission or being a licensee—Insurance Act Anguilla

12 15/12/2004

(d) calculated to falsely suggest that the licensee is carrying on insurance business in a

different category from that in respect of which he is licensed.

General requirements for licensed insurers

8.

maintain in a bank in Anguilla, which holds a domestic licence, funds in cash, short-term securities or

other realisable investments approved by the Commission, the total value of which shall at least equal

the total of its—

(a) unearned premium reserve;

(b) outstanding claims reserve;

(c) reserve for claims incurred but not reported; and

(d) unexpired risks reserve.

(2) The Commission may require an approved external insurer to place with the Commission

an interest bearing deposit to meet existing and future liabilities for a period to be determined by the

Commission. The amount of the deposit will not exceed 40% of its annual premium income net of reinsurance

premiums with respect to each class of insurance undertaken.

(3) Every contract of domestic insurance business shall be subject to the jurisdiction of the

courts of Anguilla, notwithstanding any provision to the contrary contained in such contract or in any

agreement related to such contract. Every licensed insurer shall nominate one person resident in

Anguilla approved by the Commission who is authorised to accept on its behalf service of process in

any legal proceedings on behalf of such insurer, and any notices required to be served on it.

(4) Licensed insurers may only carry on insurance business in or from within Anguilla in

accordance with the information given in their licence applications and in accordance with the

provisions of the licence granted. Any proposed change in the nature of such business requires the

prior approval of the Commission. Such insurers shall furnish annually to the Commission a

certificate of compliance with this provision, in the prescribed form, signed by an independent auditor

approved by the Commission, by a licensed insurance manager or by such other person as the

Commission may approve.

(5) Every licensed insurer shall prepare annual accounts in accordance with generally

accepted accounting principles acceptable to the Commission, audited by an independent auditor

approved by the Commission except that the Commission may, in writing, exempt any licensed

insurer from the provisions of this subsection or part thereof.

(6) Every insurer licensed under Class ‘A’ other than an approved external insurer, who is

carrying on general business shall, in addition to the requirement in subsection (5), prepare annually a

financial statement in the prescribed form, certified by an independent auditor approved by the

Commission, to enable the Commission to be satisfied as to its solvency.

(7) Every insurer licensed under Class ‘A’ and Class ‘B’, excepting an approved external

insurer, a Class ‘B’ Insurers Group Licence and a Class ‘B’ Insurers Single Licence, who is carrying

on long-term business shall, in addition to subsection (5), prepare annually an actuarial valuation of

its assets and liabilities other than business written on owners and affiliates of the insurance company

Anguilla

(1) A licensee undertaking domestic insurance business shall in respect of its general businessInsurance Act R.S.A. c. I16

15/12/2004 13

certified by an actuary approved by the Commission, so as to enable the Commission to be satisfied

as to its solvency and furthermore—

(a) every such insurer carrying on both long-term business and general business pursuant

to section 3(5) shall keep separate accounts in respect of its long-term business;

(b) (i) all receipts by any such insurer of funds in respect of its long-term business shall

be placed in a separate long-term business fund, and

(ii) payments from the said long-term business fund shall not be made directly or

indirectly for any purpose other than those of the insurer’s long-term business,

except insofar as such payments can be made out of any surplus disclosed on an

actuarial valuation and certified by an actuary approved by the Commission to be

distributable otherwise than to policy holders; and

(c) every such insurer carrying on long-term business may establish any number of

separate accounts in respect of contracts that it issues providing—

(i) annuities on human life, and

(ii) contracts of insurance on human life;

with separate and distinct assets for each separate account and such separate account shall be kept

segregated one from the other and independent of all other funds of the insurer, and, notwithstanding

any other written law to the contrary, are not chargeable with any liability arising from any other

business of the insurer.

(8) Every insurer, other than an approved external insurer or an insurer who maintains

permanently in Anguilla its principal office and staff, shall appoint an insurance manager and shall

maintain permanently at a designated principal office in Anguilla, or some other location approved by

the Commission, full and proper records of its business activities.

(9) Every insurer other than an approved external insurer carrying on business other than

insurance business shall keep separate accounts in respect of its insurance business and shall

segregate the assets and liabilities of its insurance business from those of its other business.

(10) The Commission may prescribe that any insurer shall not, without the specific approval of

the Commission, make investments of a specified class and may in that case require such insurer to

realise investments of that class within such period as may be prescribed.

(11) No insurer shall without the prior approval of the Commission—

(a) amalgamate with or acquire an ownership interest in any one or more insurers or in

any other person; or

(b) other than in the normal course of insurance business, transfer its insurance operations

or a part thereof or accept transfer of the insurance operations or a part thereof from

another insurer.

(12) An insurer licensed under Class ‘B’ may not carry on domestic business except to the

extent that such business forms a minor part of the international risk of a policy holder whose main

R.S.A. c. I16

Insurance Act Anguilla

14 15/12/2004

activities are in territories outside Anguilla. Any such insurer shall apply to the Commission in

writing giving full particulars of any domestic business to be so carried on by the insurer.

(13) Every licenced insurer shall maintain a solvency margin equal to or greater than the

margin specified in Regulations or in an amount specified by the Commission and shall report

immediately to the Commission when such margin falls below the required level.

(14) Every insurer shall maintain reserves in an amount equal to or greater than the reserves

specified in Regulations and shall report immediately to the Commission when such reserves fall

below the required level.

(15) A licensed insurance broker may apply to the Commission to obtain a special dispensation

to place a policy or contract of domestic business with one or more insurers unlicensed in Anguilla

where—

(a) the said insurers have not been refused a licence under this Act;

(b) the said insurers are approved by the Commission as being of sound reputation;

(c) the said insurance broker can demonstrate to the satisfaction of the Commission an

evident need (in terms of additional capacity or policy coverage, or otherwise) that the

business be so placed;

and such dispensation, if granted, shall be subject to review at such intervals, if any, as the

Commission may specify when granting the dispensation and there shall be no appeal against the

refusal of any such dispensation or renewal thereof and subsection (3) shall apply to a policy placed

under this subsection.

General requirements for other licensees

9.

insurance business being long-term or general, is deemed for the purpose of this Act to be acting as an

insurance broker.

(2) The Commission may require a licensed insurance broker to maintain in force professional

indemnity insurance in respect of his insurance broking activities for an indemnity of not less than

$100,000 for any one loss, or such other figure as may be prescribed by the Commission. Such

professional indemnity insurance shall extend to include the activities on behalf of the broker or of his

sub-agents, if any. In the event that such professional indemnity insurance is withdrawn, or

cancelled, or the said insurance is not renewed, the said broker shall immediately notify the

Commission and shall forthwith cease to solicit further insurance business until such professional

indemnity insurance has been reinstated or replaced.

(3) A licensed insurance agent shall provide evidence satisfactory to the Commission of a

power of attorney, agency agreement or guarantee satisfactory to the Commission, between the agent

and the insurer for whom such agent acts. Such power of attorney, agency agreement or guarantee

shall extend to include the activities on behalf of the insurer and the agent or his sub-agents, if any. In

the event that such power of attorney, agency agreement or guarantee is withdrawn or such agreement

is determined the said agent shall immediately notify the Commission and shall forthwith cease to

solicit further insurance business until such power of attorney or guarantee has been reinstated.

Anguilla

(1) An insurance agent, who acts on behalf of more than one insurer in respect of one class ofInsurance Act R.S.A. c. I16

15/12/2004 15

(4) A licensed insurance sub-agent may not solicit or carry on insurance business on behalf of

more than one insurance agent, or on behalf of more than one insurance broker. If power of attorney,

agency agreement or guarantee, as the case may be, referred to in subsection (3) is for any reason

withdrawn from the said sub-agent, then the licence of the said sub-agent is

such time as such professional indemnity insurance, power of attorney, agency agreement or

guarantee, as the case may be, is reinstated.

(5) A licensed insurance manager or a licensed principal representative (insurance) shall use

his best endeavours to carry on business only with insurers of sound reputation. In the event that such

insurance manager or a licensed principal representative (insurance) feels cause for concern regarding

the probity or soundness of any insurer or re-insurer for whom or with whom he is carrying on

business, he shall report the same forthwith to the Commission. In the event that either party to an

agreement relating to representation between a Class ‘B’ insurer and an insurance manager or

principal representative (insurance) intends to terminate the same, 60 days written notice of such

proposed termination shall be given to the Commission by such insurance manager or principal

representative (insurance).

(6) A licensed insurance manager or a licensed principal representative (insurance) who also

carries on insurance business as an insurance broker or as an insurance agent is required to be

licensed in respect of each such activity.

ipso facto suspended until

Annual returns by licensed insurers

10.

Commission within 6 months of the end of its financial year the following returns—

(a) a certificate of solvency or of compliance with insurance legislation specifically

enacted in the country or place where the said external insurer is constituted for its

supervision and regulation, or some equivalent document acceptable to the

Commission;

(b) if the said insurer has a branch or other subsidiary activity in Anguilla, written

confirmation that the said insurer accepts responsibility for all contracts issued by

such branch or subsidiary activity and also for all acts, omissions and liabilities of

such branch or subsidiary activity;

(c) in respect of the said insurer’s general domestic business, such information as the

Commission may require concerning the availability of funds for prompt settlement of

claims under such business;

(d) in respect of the said insurer’s long term domestic business, such information as the

Commission may require concerning the investment of premium income received by

the said insurer from such business;

(e) details of reinsurance contracts and arrangements in respect of domestic insurance

business;

(f) if the said insurer is licensed under Class ‘A’ for long term business, an actuarial

valuation of its assets and liabilities certified by an actuary approved by the

Commission, in accordance with section 8(7);

R.S.A. c. I16

(1) Each approved external insurer who is carrying on domestic business shall furnish to theInsurance Act Anguilla

16 15/12/2004

(g) a list of insurance agents and insurance brokers who have the said insurer’s authority

to effect domestic business on its behalf;

(h) written confirmation that the information set out in the application for the said

insurer’s licence, as modified by subsequent notifications of changes in accordance

with section 5(5)(a), remains correct, and gives a full and fair picture of the said

insurer’s business;

(i) details of insurance business being undertaken in Anguilla in the form prescribed;

(j) audited annual accounts as required under section 8(5).

(2) Every insurer licensed under Class ‘A’ other than an approved external insurer shall

furnish to the Commission within 6 months of the end of its financial year the following annual

returns—

(a) the audited annual accounts as required under section 8(5);

(b) a certificate of compliance as required by section 8(4);

(c) if the said insurer is licensed under Class ‘A’ for general business, a financial

statement in the prescribed form, certified by an independent auditor approved by the

Commission, in accordance with section 8(6);

(d) if the said insurer is licensed under Class ‘A’ for long-term business, an actuarial

valuation of its assets and liabilities, certified by an actuary approved by the

Commission, in accordance with section 8(7);

(e) details of re-insurance contracts and arrangements in respect of domestic insurance

business;

(f) a list of insurance agents and insurance brokers who have the insurer’s authority to

effect domestic business on its behalf.

(3) Each insurer who holds a licence under Class ‘B’ shall furnish to the Commission within 6

months of the end of its financial year an annual return in the form prescribed and including—

(a) the audited annual accounts as required under section 8(5);

(b) a certificate of compliance as required under section 8(4);

(c) such other information as the Commission may require in order to satisfy itself as to

the solvency of the insurer and that the such insurer is complying with this Act.

(4) Returns shall be in the form and manner and contain such information as may be

prescribed.

(5) Regulations may be prescribed to include additional returns or additional information to be

submitted by licensees under this section.

Anguilla

Insurance Act R.S.A. c. I16

15/12/2004 17

(6) When a licensee changes its auditor, the Commission may require the former auditor to

explain the circumstances responsible for such change.

Annual returns by other licensees

11.

end of each calendar year the following returns in respect of his domestic business—

(a) confirmation in writing that the said agent in respect of a class of insurance business is

acting for one insurer only and the name of that insurer;

(b) evidence of the existence of a power of attorney, agency agreement or guarantee;

(c) a list of the sub-agents, if any, authorised by the said agent to solicit domestic business

on his behalf and on behalf of the insurer whom he represents; and

(d) confirmation in writing that the information set out in the application for the said

agent’s licence, as modified by subsequent notifications of changes in accordance

with section 5(5)(a), remains correct and gives a full and fair picture of the said

agent’s business.

(2) Every licensed insurance broker shall furnish to the Commission within 3 months of the

end of his financial year the following information in respect of his domestic business—

(a) a list of all insurers for whom the said insurance broker is authorised to act, and the

premium income to each such insurer during the last financial year;

(b) evidence of the existence of professional indemnity insurance in respect of his

activities as an insurance broker as required under section 9(2);

(c) a list of the sub-agents, if any, authorised by the said insurance broker to solicit

domestic business on his behalf and on behalf of the insurers whom he represents; and

(d) confirmation in writing that the information set out in the application for the said

insurance broker’s licence, as modified by subsequent notifications of changes in

accordance with section 5(5)(a), remains correct and gives a full and fair picture of

the said insurance broker’s business.

(3) Every licensed insurance sub-agent shall furnish to the Commission before the renewal of

his licence—

(a) confirmation in writing that the said sub-agent is acting for one insurance agent only,

or for one insurance broker only, and the name of such insurance agent or insurance

broker; and

(b) confirmation in writing that the information set out in the application for the said subagent’s

licence, as modified by subsequent notifications of changes in accordance

with section 5(5)(a), remains correct and gives a full and fair picture of the said subagent’s

insurance activities.

R.S.A. c. I16

(1) Every licensed insurance agent shall furnish to the Commission within 3 months of theInsurance Act Anguilla

18 15/12/2004

(4) Every licensed insurance manager shall furnish to the Commission within 3 months of the

end of his financial year the following information—

(a) a list of all insurers for whom the said insurance manager acts; and

(b) confirmation in writing that the information set out in the application for the said

insurance manager’s licence, as modified by subsequent notifications of changes in

accordance with section 5(5)(a), remains correct and gives a full and fair picture of the

said insurance manager’s activities.

(5) Returns shall be in the form and manner and contain such information as may be

prescribed.

(6) Regulations may be prescribed to include additional returns or additional information to be

submitted by licensees under this section.

Shares not to be held

12.

jointly with an associate, or dispose of 10% or more of the issued share capital of a company, which

is a licensee under the Act, without the prior approval of the Commission.

(2) In respect of a licensee whose shares or the shares of whose parent holding company, if

any, are publicly traded on a stock exchange approved by the Commission, no person may acquire,

hold, whether legally or beneficially, directly or indirectly, or dispose of 25% or more of the issued

share capital of a company, which is a licensee under the Act, without the prior approval of the

Commission.

(3) (a) A licensee; or

(b) a person holding a significant interest, who disposes of shares that would result in his

no longer holding a significant interest; and

(c) a person acquiring a significant interest;

who does not seek the prior approval of the Commission under subsections (1) and (2) commits an

offence.

(4) In subsections (1) and (2) the reference to shares being transferred or disposed of includes

not only the holding, transfer or disposal of the legal interest in the shares but also the holding,

transfer or disposal of any beneficial interest in the shares.

(5) The Commission may refuse to grant approval under subsections (1) and (2) if it is of the

opinion that a person seeking to hold a significant interest is not a fit and proper person.

, issued or transferred without the approval of the Commission(1) No person may acquire, hold, whether legally or beneficially, directly or indirectly, or

Number and appointment of directors

13.

(2) No appointment of a director or other senior officer of a licensee shall be made without the

prior approval of the Commission, unless the licensee is exempted in writing by the Commission.

Anguilla

(1) A licensee, which is a company, shall have not less than 2 directors.Insurance Act R.S.A. c. I16

15/12/2004 19

(3) The Commission may refuse to grant approval under subsection (2) if it is of the opinion

that a person seeking appointment is not a fit and proper person.

Cease and desist orders

14.

(a) has committed, is committing, or is about to commit, an act that is an unsafe or

unsound practice in conducting the business of its licence;

(b) has pursued, is pursuing, or is about to pursue, a course of conduct that is an unsafe or

unsound practice in conducting the business of its licensee;

(c) is conducting business for which it does not hold the appropriate licence; or

(d) is carrying on insurance business without a licence;

the Commission may direct the licensee—

(e) to cease or refrain from committing the act or pursuing the course of conduct; and

(f) to perform such acts as in the opinion of the Commission are necessary to remedy or

ameliorate the situation; or

issue a directive under section 31 of the Financial Services Commission Act.

(2) A person who, without reasonable cause, fails to comply with a directive given by the

Commission pursuant to subsection (1) is guilty of an offence and is liable on summary conviction to

a fine of $10,000 and on conviction on indictment to a fine of $100,000, and if the offence of which

he is convicted is continued after conviction he commits a further offence and is liable to a fine of

$10,000 for every day on which the offence is so committed.

(1) Where the Commission is of the opinion that a person—

Examination of a licensee

15.

(a) have access to and may take copies of all books and records and any documents in

order to examine the affairs or business of any licensee or other person carrying on, or

who has at any time carried on insurance business for the purpose of satisfying itself

that this Act and Regulations have been or are being complied with and the licensee is

in a sound financial position and is carrying on his business in a satisfactory manner;

(b) examine all annual returns submitted to the Commission under sections 10 and 11;

(c) request such other information as may be required to assess the business being

undertaken by the licensee and its financial situation.

The Commission shall—

Enforcement action

16.

with the modifications specified in this section.

(2) For the purposes of Part 5 of the Financial Services Commission Act—

R.S.A. c. I16

(1) Section 28 of the Financial Services Commission Act applies to licensees under this ActInsurance Act Anguilla

20 15/12/2004

(a) an insurer is deemed to be insolvent if the total value of its assets does not exceed the

total amount of its liabilities by at least the minimum margin of solvency that it is

required to maintain under section 8(13); and

(b) “customer”, includes a policyholder.

(3) In addition to the grounds specified in section 28(1) of the Financial Services Commission

Act, the Commission may take enforcement action against a licensed insurer if the Commission is of

the opinion that the licensee’s insurance business, or any part of its insurance business, is not being

carried on in accordance with sound insurance principles.

(4) Where the Commission is entitled to take enforcement action against a licensed insurer

under section 28 of the Financial Services Commission Act, in addition to the powers exercisable

under that section, the Commission may arrange for the compulsory transfer of the obligations of the

licensee, who is or appears likely to become unable to meet its obligations as they fall due, to another

insurer that accepts the transfer.

(5) Where the Commission is entitled to take enforcement action against a licensed insurer

under section 28 of the Financial Services Commission Act it may, in addition to the directives

specified in section 31 of the Financial Services Commission Act, issue one or more of the following

directives to the insurer—

(a) not to vary any existing contracts of insurance;

(b) to limit to a specified amount the aggregate premiums to be received by it, whether

net or gross of reinsurance premiums;

(c) to refrain from making investments of a specified class or description;

(d) impose conditions, or further conditions, as the case may be, upon the licence and

amend, suspend or revoke any such condition;

(e) to cause an actuary or such other person as may be specified by the Commission, at

the cost of the licensee, to undertake an investigation into the insurer’s financial

position and to submit a report to the Commission.

Surrender of licence

17.

(a) has ceased to carry on or has not commenced the business in respect of which the

licence was granted; or

(b) is being wound up voluntarily and produces evidence that it is solvent and able

forthwith to repay all its creditors;

and the Commission may thereupon approve the surrender and cancel the licence.

A licensee may apply to the Commission to surrender its licence if it—

Protected premium accounts

18.

Anguilla

(1) As used in this section, and unless the context requires otherwise—Insurance Act R.S.A. c. I16

15/12/2004 21

(a) “creditor” means a person to whom an obligation is owed and includes any person

who alleges or pursues a claim or cause of action in behalf of or in the name of a

creditor or for the ultimate benefit of a creditor;

(b) “intent to defraud” means an intention of a policy holder wilfully to defeat an

obligation owed to a creditor;

(c) “long-term premium” means any money, money’s worth or property (including

existing policies of insurance or annuities) that is paid or transferred to an insurer

licensed under this Act as, or held by such insurer as security for payment of a

bona fide

which premium is paid in connection with—

(i) an annuity on human life,

(ii) contract of insurance on human life,

(iii) a policy of insurance containing features of both subsections (i) and (ii);

(d) “obligation” means an obligation or liability due to a specific creditor that existed on

or before the date of a transfer of a long-term premium to a protected premium

account and of which the policy holder had actual knowledge or notice;

(e) “protected policy holder” means, for purposes of this section, a person who makes a

contract with an insurer for a policy of long-term insurance and who pays or is

obligated under that contract or an associated contract or policy to pay a longterm

premium; and

(f) “protected premium account” means an account or sub-account established by an

insurer with an independent custodian to hold one or more long-term premiums

paid or to be paid, or to secure payment to the insurer, which account is from or

accounted for by the insurer separate from the general operating accounts of the

insurer and from any protected premium accounts established for other unrelated

policy-holders.

(2) This section applies to—

(a) any action or proceedings in any jurisdiction relating to the transfer or payment of

money or other property, or the exchange of an existing policy, as a long-term

premium payment to an insurer licensed hereunder in return for a contract or policy of

long-term insurance, whether the money or property so transferred has its

or outside Anguilla after such transfer or disposition, so long as the transfer, payment

or exchange of policies takes place after 1st October 2004; and

(b) any action or proceeding by a creditor alleging fraudulent conveyance, fraud or a

cause of action sounding in fraud against a protected policy holder who has paid a

long-term insurance premium to an insurer, and/or against the insurer to which or for

whose benefit such premium was paid, to the exclusion of any other remedy, principle

or rule of law of any jurisdiction, whether provided by statute or based on principles

of equity or the common law.

R.S.A. c. I16

premium under a contract of long-term insurance issued by that insurer,situs withinInsurance Act Anguilla

22 15/12/2004

(3) For purposes of this section, a premium shall be deemed paid when it is transferred to an

insurance agent or broker, or when an existing contract or policy is exchanged in lieu of payment of a

premium.

(4) No creditor of a protected policy-holder who has paid a long-term premium to an insurer

may set aside or seek to set aside a transfer or payment of any long-term premium by the protected

policy-holder to that insurer if such premium, less commissions charged or paid by or to the insurer,

is placed in a protected premium account prior to or following such transfer unless it is determined, in

a final order or judgment by the Court, that the transfer or payment of the premium by the protected

policy holder was made with the principal intent to defraud that creditor.

(5) For purposes of this section, the onus of proof of the protected policy holder’s intent to

defraud a creditor lies on the creditor.

(6) Notwithstanding anything to the contrary in this Act, no action or proceedings may be

commenced in any jurisdiction to rescind, avoid, set aside or divert any payments of a long-term

premium to which this section applies later than 3 years after the date of transfer or payment of that

premium, or later than 3 years after the date of transfer or payment of the first premium, if the

contract or policy calls for payments in instalments.

(7) A policy holder shall not have imputed to him any intent to defraud a creditor by reason

that the policy holder—

(a) is an owner, director or officer of the insurer to which the protected premium was

paid; or

(b) the policy holder is the settlor, trustee, protector or a beneficiary of a trust which is a

beneficiary under the policy as to which a protected premium account is maintained.

(8) This section shall apply to actions, proceedings and arbitrations against protected policy

holders, beneficiaries of policies with protected policy holders, insurers, and each of their officers,

directors, employers and agents.

(9) So long as a protected premium account maintained under this section is accounted for by

the insurer separate from every other such account, and independent of all other funds of the insurer,

and notwithstanding the provisions of any law or principle of common law or equity to the contrary,

no protected premium account or the insurer which owns or establishes such account shall be

chargeable with or liable for—

(a) any liability, obligation or loss arising from any general or other business of the

insurer maintaining such account;

(b) the claims of any creditor or of any person, except as provided in this section or

expressly in the policy as to which such protected premium account is maintained; or

(c) any liability, obligation or loss arising from or primarily relating to any other policy

holder of the insurer, whether that other policy holder is entitled to the protections of

this section or not.

(10) Neither the cash, liquidation or residual value under any policy as to which a protected

premium account is maintained, nor dividends or other income paid to, by or for any such account,

Anguilla

Insurance Act R.S.A. c. I16

15/12/2004 23

shall be subject to any lien, charge, charging order, encumbrance, injunction, attachment or

sequestration by any court except to the extent provided in a final order under subsection (4) herein.

(11) No residual interest of an insurer, or any interest of a beneficiary in or under a policy, or

policy, to which this section applies may be subject to any injunction, lien, charge, charging order,

encumbrance, attachment or sequestration.

(12) A long-term premium paid by or for an insurer into a protected premium account shall be

conclusively presumed to be a premium payment for insurance, and no protected premium account

shall be construed to be a trust account or give rise to any inference that the relationship between the

policy holder and the insurer is that of beneficiary and trustee, principal and agent, or broker and

customer.

(13) A transfer of a long-term premium into a protected premium account may be rescinded or

set aside only as provided in this section and then only to the extent necessary to satisfy the actual

obligation to the creditor at whose instance the transfer has been set aside.

Additional requirements for foreign insurers carrying on long term business

19.

from its general business accounts or from those of any of its protected premium accounts, to another

insurer or re-insurer to insure or reinsure the life of any life insured by the insurer, the proceeds of the

insurance or reinsurance for which such premiums were paid shall first be applied to provide the

benefits specified in the policy issued by the insurer and shall not be available for any other purpose

unless and until the insurer’s obligation to pay such benefits has been met in full.

(2) Notwithstanding any law to the contrary, where any person shall acquire a policy of the

type referred to in section 18(1)(c)(i), (ii) or (iii)and issued by an insurer of which he, or a trust settled

by him, is the protected policy holder, the said policy and the proceeds thereof including periodic or

non-periodic payments or any refund or death benefit shall inure exclusively to the benefit of the

protected policy holder and/or the person for whose use and benefit such policy, proceeds, payments

or refund or death benefit is designated under the policy and all the foregoing shall be exempt from

the claims of any creditor of the protected policy holder and/or such person and any creditor of the

estate of the protected policy holder and/or such person.

(3) Notwithstanding any law to the contrary, where any person shall die leaving a policy

referred to in section 18(1)(c)(i), (ii) or (iii) and issued on his life by an insurer, the death proceeds

payable under said insurance shall inure exclusively to the benefit of the person for whose use and

benefit such insurance is designated in the policy in effect on death, and the said proceeds shall be

exempt from the claims of any creditor of the insured, his estate, of any beneficiary under the policy

or his estate, and of the protected policy holder or estate of the protected policy holder.

(4) When a policy referred to in section 18(1)(c)(i), (ii) or (iii) is effected by any person on his

own life or on another life in favour of some person other than himself or, if such a policy is assigned

or in any way made payable to any such person, the lawful beneficiary or assignee thereof, other than

the insured or the person so effecting such policy or executors or administrators of such insured or the

person effecting such policy, shall be entitled to its proceeds and avails against the creditors and

representatives of the insured and of the person effecting such policy whether or not the right to

change the beneficiary is reserved or permitted and whether or not the policy is made payable to the

person whose life is insured or the measuring life under an annuity, if the beneficiary or assignee shall

R.S.A. c. I16

(1) Notwithstanding any law to the contrary, where an insurer has paid premiums, whetherInsurance Act Anguilla

24 15/12/2004

predecease such person; and the company issuing such policy shall be discharged of all liability

thereon by payment of its proceeds in accordance with its terms.

(5) Notwithstanding any law to the contrary, unless a policy referred to in section 18(1)(c)(i),

(ii) or (iii) is effected for the benefit of such creditor, the cash surrender value of a policy issued by an

insurer shall not be attached, garnished or subject to any sort of legal process in favour of any creditor

of the protected policy holder, the insured, the estates of any protected policy holder or insured, or of

any beneficiary or the estate thereof under the policy or of the beneficiary of any trust which is the

protected policy holder of a policy referred to in section 18(1)(c)(i), (ii) or (iii) and issued by an

insurer.

(6) Policies referred to in section 18(1)(c)(i), (ii) or (iii) and issued by an insurer, which by

their terms are subject to amendment, assignment, modification, alteration, novation, cancellation or

redemption by the protected policy holder or the insurer, shall not be subject to amendment,

assignment, modification, alteration, novation, cancellation or redemption during any period during

which the protected policy holder is acting under duress imposed by any lawful authority or otherwise

other than a lawful authority in Anguilla.

(7) In the case where a payment or policy amendment, assignment, modification, alteration,

novation, cancellation or redemption is made by an insurer or by any person acting on its behalf in

contravention of this section, such insurer or person acting on its behalf shall be guilty of an offence.

In addition, an insurer and any person acting on its behalf that is found guilty shall be liable in a civil

action for damages, jointly and severally, to the protected policy holder, beneficiary, or any other

person to whom the payment should have been held to benefit under this section, for the amount of

the payment made in contravention of this section, or the value of any policy amendment, assignment,

modification, alteration, novation, cancellation or redemption, plus any other reasonably foreseeable

damages incurred as a result of the contravening act, including but not limited to reasonable

attorney’s fees incurred by the person or persons so damaged; but in no case shall such damages be

awarded in excess of $100,000.

(8) It shall be a defence to a charge under this section that the company or the person who

acted therefore reasonably believed that the person who requested and/or ultimately received the

payment was entitled to the payment under this section and the policy and was acting free of duress or

order imposed upon him by any lawful authority or otherwise and a company or the person who acted

therefore, charged with the offence proves that the company or such person had such a reasonable

belief by admission into evidence of the inquiries made or caused to be made, by the company or the

person who acted therefore, of—

(a) the person who requested and/or ultimately received the payment;

(b) the protected policyholder;

(c) the person whose life is insured or the measuring life under an annuity contract; and

(d) at least one other person, which may be a commercial agency, that could reasonably be

expected to know or to discover if the person who requested and/or ultimately

received the payment was entitled to the payment under this section and the policy

and was acting under duress or order imposed upon him by any lawful authority or

otherwise.

Anguilla

Insurance Act R.S.A. c. I16

15/12/2004 25

Non-application, etc.

20.

Businesses, Occupations and Professions Licensing Act.

(2) No company which is licensed pursuant to the Company Management Act or trust

company which is licensed pursuant to the Trust Companies and Offshore Banking Act is required to

be licensed as a principal representative (Insurance).

(3) This Act has no application to or effect upon—

(a) governmental pension arrangements;

(b) the validity of policies of insurance in existence at 1st October 2004;

(c) the Friendly Societies Act.

(4) Contracts of insurance executed for or in connection with the foreign insurance business

of a licensed insurer under this Act shall be exempt from stamp duty.

(1) No company which is licensed under this Act is required to be licensed under the Trades,

Regulations

21.

(a) prescribing anything by this Act required to be prescribed;

(b) exempting any person or class of persons or business or class of business from any

provision of this Act;

(c) prescribing forms to be used;

(d) prescribing the format and content of any returns to be made under this Act;

(e) prescribing capital and liquidity margins, solvency ratios, reserves and technical

provisions to be maintained by licensees under this Act;

(f) prescribing the payment of fees and penalty fees due under this Act or amending the

fees;

(g) prohibiting certain investments or disallowing certain assets for the purposes of any

provision of this Act;

(h) providing for the valuation and safe-keeping of assets;

(i) prescribing standards of corporate governance and internal controls, to which

licensees shall be subject;

(j) providing for such matters as may be necessary or convenient for carrying out or

giving effect to this Act and its administration.

(2) Regulations may make different provisions in relation to different persons, circumstances

or cases.

R.S.A. c. I16

(1) The Governor may, on the advice of the Commission, make regulations—Insurance Act Anguilla

26 15/12/2004

Gazette

22.

published in the

NoticesThe Commission shall cause notice of the issue, revocation or suspension of a licence to beGazette.

Offences

23.

he does not believe (the onus of proof of his belief being upon him) is guilty of an offence and liable

on summary conviction to a fine of $10,000 and to imprisonment for 2 years.

(2) A person who contravenes or fails to comply with any of the provisions of this Act or any

regulations made hereunder commits an offence and, except where provision by or under which the

offence is created provides the penalty to be imposed, is liable on summary conviction to a fine of

$5,000 or to imprisonment for 1 year or to both.

(1) A person who, for any purpose of this Act, makes any representation in the truth of which

Transitional provisions

24.

deemed to have been granted a licence under this Act subject to such terms and conditions as may

have been imposed on the granting of the licence under that Act.

A person holding a licence under the Insurance Act immediately before 1st October 2004 is

Citation

25.

This Act may be cited as the Insurance Act, Revised Regulations of Anguilla, Chaper I16.___________