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BRITISH VIRGIN ISLANDS

BANKS AND TRUST COMPANIES ACT, 1990

PART IV - Administration
Inspector of Banks and Trust Companies

15.(1) The Governor shall appoint a public officer to be known as the Inspector of Banks and Trust Companies for the purpose of ensuring the proper administration of this Act.

(2)  The functions of the Inspector are

(a)  to maintain a general review of banking and trust company practice in the Virgin Islands;

(b)  where he thinks fit or when required by the Governor, to examine by way of the receipt of regular returns or in such other manner as he thinks fit the affairs or business of any licensee carrying on business within or outside the Virgin Islands for the purpose of satisfying himself that all provisions of this Act are being complied with and that the licensee is in a sound financial position and is carrying on its business in a satisfying manner, and to report to the Governor the results of such examination;

(c)  to assist in the investigation of any contravention of the laws of the Virgin Islands that he has reasonable grounds to believe has or may have been committed by a licensee or by any of its directors or officers;

(d) to examine accounts and audited annual accounts forwarded to him under section 17 and to report his findings to the Governor; and

(e)  to examine, and make recommendations to the Governor with respect to, applications for licenses.

(3)  In the performance of his functions under this Act and subject to the provisions of section 24, the Inspector may at all reasonable times

(a)  have access to the books, records, vouchers, documents, cash and securities of any licensee;

(b)  request any information, matter or thing from any person whom he has reasonable grounds to believe is carrying on banking business or trust business in the Virgin Islands in contravention of section 3; and

(c)  demand of the authorized agent of the licensee any reasonable information or explanation for the purpose of enabling the Inspector to perform his functions under the Act.

(4)  For the purposes of subsection (3), the Inspector shall have access to the name or title of an account of a depositor of a licensee or to the settlor, name or title of a trust, only under the authority of any order of the court made on the ground that there is no other way of obtaining the information required by him.

(5)  The Inspector, with the written approval of the Governor, may authorize in writing any other person to assist him in the performance of his functions under this Act.

(6)  The Inspector may, if it appears to him that there is reasonable ground for suspecting that there is a contravention of this Act or that a contravention is likely, apply to the court for an order authorizing him to take such action as he considers necessary in the interests of the depositors, the beneficiaries of any trust, or other creditors and to preserve any assets of the bank or trust company that is the subject of the order.

Use of word “bank”, etc.

16.(1)  No person, other than a licensee, shall except with the approval of the Governor,

(a)  use or continue to use the words “bank”, “savings”, “savings and loan”, “trust”, “trustee”, “trust company” or “trust corporation”, or any of their derivatives, either in English or in any other language, in the name, description or title under which that person is carrying on business from within the Virgin Islands, whether or not the business is carried on within or outside the Virgin Islands;

(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 banking business or trust business; or

(c)  in any manner solicit or receive deposits from the public.

(2)  No company incorporated in the Virgin Islands shall, except with the approval of the Governor, be registered, or continue to be registered, by a name which contains the words “bank”, “savings”, savings and loan”, “trust”, “trustee”, “trust company” or “trust corporation” or any of their derivatives, either in English or in any other language, in the description or title under which the company is carrying on business within or outside the Virgin Islands.

(3)  The Governor may, before giving his approval under subsection (1) or (2), require the production of such references and such information and particulars as may be prescribed.

(4)  The Governor may withdraw any approval given under subsection (1) where he considers it to be in the public interest.

(5)  The Governor may refuse to grant a licence to a bank or trust company or, if the bank or trust company is already in possession of a licence, he may revoke the licence if, in his opinion, the bank or trust company is carrying on or appears likely to be carrying on banking business or trust business, as the case may be, under a name that is

(a)  identical with that of any other person whether within or outside the Virgin Islands, or which so nearly resembles that name as to be calculated to deceive;

(b)  calculated to suggest falsely the patronage of or connection with some person, whether within or outside the Virgin Islands; or

(c)  calculated to suggest falsely that the person

(i)  has special status in relation to or derived from the Government,

(ii)  has the official approval of or acts on behalf of the Government or of any department, branch, agency or organ of Government, or any officer thereof, or

(iii)  is recognized in the Virgin Islands as a national or central bank or trust company.

Accounts.

17.(1)  Every licensee shall have its accounts audited by an auditor annually or at such other periods as the Governor or the Inspector may require.

(2)  The audited accounts shall be forwarded to the Inspector within 3 months from the end of the financial year of the licensee, unless prior written approval for an extension has been granted by the Inspector.

(3)  Where a licensee changes its auditor, the Inspector may require the former auditor to explain the circumstances that gave rise to the change.

Certain approvals required.

18.  A licensee shall not change its name or operate outside the Virgin Islands any subsidiary, branch, agency or representative office without the prior written approval of the Governor.

Number and approval of directors

19.(1) A licensee shall at no time have less than 2 directors.

(2)  A licensee shall, before the appointment of a director or other senior officer, apply to the Governor for his written approval of the appointment.

(3)  Notwithstanding subsection (2), the Governor may exempt a licensee from the requirements specified in that subsection if such an exemption

(a) ipso facto lapses if the director or senior officer becomes bankrupt, makes an arrangement or composition with his creditors or is convicted of an offence involving dishonesty; and

(b) may be revoked by the Governor.

Specific powers of Governor.

20.(1) Where the Governor is satisfied that a licensee

(a)  has ceased to carry on banking business or trust business;

(b)  has gone into liquidation or is wound up or is otherwise dissolved;

(c)  has made any arrangement or composition with its creditors;

(d)  is unable or appears likely to become unable to meet its obligations as they fall due;

(e)  is carrying on business in a manner detrimental to the public interest, the interests of its depositors or of the beneficiaries of any trust, or to the interests of other creditors;

(f)  has contravened any provision of this Act; or

(g)  has failed to comply with a condition of its licence, he may take any of the actions set forth in subsection (2).

(2)  The actions that the Governor may take in pursuance of subsection (1) re:

(a)  revocation of the licence;

(b)  imposition of new or additional conditions upon the licensee;

(c)  the substitution of any director or officer of the licensee;

(d)  the appointment, at the expense of the licensee, of a person to advise the licensee on the proper conduct of its affairs and to report to the Inspector thereon within 3 months of such appointment;

(e)  the appointment, at the expense of the licensee, of a person to assume control of the licensee's affairs who shall  mutatis mutandis have all the powers of a person appointed as a receiver or manager of a business appointed under the Bankruptcy Act; or

(f)  the requiring of the taking of such action by the licensee as the Governor thinks fit.

(3)  Notwithstanding subsection (1) of section 26, a licensee may within 7 days from the date of a decision taken under subsection (2) apply to the Governor for a reconsideration of his decision if that decision involves the revocation of a licence.

(4)  A person appointed under paragraph (d) or (e) of subsection (2) or whose appointment has been extended under paragraph (b) of subsection (5) may at his discretion and in any case within 3 months from the date of his appointment or of the extension of his appointment, as the case may be, prepare and furnish a report to the Governor and the Inspector of the affairs of the licensee and may make recommendations thereon.

(5)  The Governor may, on receipt of a report under subsection (4),

(a)  revoke the appointment of the person appointed under paragraph (d) or (e) of subsection (2);

(b) extend the period of appointment of the person appointed under paragraph (d) or (e) of subsection (2);

(c)  subject to such conditions as the Governor may impose, allow the licensee to reorganize its affairs in such manner as the Governor approves; or

(d)  revoke the licence and instruct the Attorney General to apply to the court for an order that the licensee be forthwith wound up by the court; in which case, the provisions of the Companies Act relating to the winding up of a company by the court apply mutatis mutandis for the purpose of giving the necessary effect to this provision.

(6)  Whenever the Governor revokes a licence under paragraph (a) of subsection (2) or paragraph (d) of subsection (5) or under subsection (5) of section 16, he shall cause notice of the revocation to be published in the Gazette and may also cause to be published, whether within the Virgin Islands or elsewhere, in such newspaper or other publication as he may think fit in the circumstances.

Attorney General may apply to court

21. The Attorney General may, upon being instructed by the Inspector in any case in which a licensee  or a person who has at any time been a licensee is being wound up voluntarily, apply to the court for leave to intervene on behalf of any interested party if he considers that the winding up is not being conducted in the best interests of its depositors, the beneficiaries of any trust, or other creditors, and the court may make such order as it shall consider appropriate.

Power of search

22. (1) If a Judge or Magistrate is satisfied by information on oath, whether oral or written, given by the Inspector or a person authorized by the Inspector that

(a)  there is reasonable ground for suspecting that an offence against this Act has been or is being committed and that evidence of the commission of the offence is to be found at any premises, or in any vehicle, vessel or aircraft specified in the information; or

(b)  that any documents, cash, or securities that ought to have been produced under subsection (3) of section 15 and have not been produced are to be found at any premises, vehicle, vessel or aircraft specified in the information, he may issue a search warrant authorizing the Inspector, together with any other person named in the warrant, to enter the premises specified in the information or, as the case may be, any premises upon which the vehicle, vessel, or aircraft so specified may be, at any time within one month  from the date of the warrant, and to search the premises or the vehicle, vessel or aircraft.

(2)  The Inspector or any other person authorized by a warrant to search any premises or any vehicle, vessel or aircraft may search every person who is found in or who he has reasonable grounds to believe to have recently left or to be about to enter those premises, or that vehicle, vessel or aircraft, and may seize any document, cash or securities found in the premises or in the vehicle, vessel or aircraft which he has reasonable grounds for believing ought to have been produced under subsection (3) of section 15, except that no female shall, in pursuance of any warrant issued under this section, be searched except by a female.

(3)  Where by virtue of this section a person has any power to enter any premises, or a vehicle, vessel or aircraft, he may use such force as is reasonably necessary for the purpose of exercising that power.