Compliance

Changing Climate in Corporate Governance

Lance Barclay Compliance, Corporate Governance, Guernsey , , ,

International Finance Centres are known for their effective and efficient environment for undertaking cross border trade and the provision of products and services to assist and enhance business operations as well as the preserving of the generated wealth for the families and businesses that use them. Unfortunately we are still seen in the same vein as the wolves of Wall Street in a climate of greed is good and to hell with environmental impact. Is it time that this perception was changed? 

In the last decade, if not longer, there has been an undercurrent of change from beneficial owners and of businesses, whereby they have sought to be conscientious and use their wealth generated in the International Finance Centres for wider charitable purposes and causes close to their hearts inclusive of combating climate change. The same could be said about financial services businesses, though this has been for more local causes rather than world wide. Are we really utilising the innovations, products and services we have at our finger tips to their full potential to meet the environmental concerns of our clients, stakeholders and the wider world?

Regulators are also updating their regulatory frameworks to require that financial service businesses consider their impact in respect of climate change, as seen in Guernsey by the updates to the Finance sector Code of Corporate Governance. I would argue that this goes further than just making sure the office lights are turned off, recycling is undertaken and employees use more environmentally friendly forms of transport. Boards I believe should be looking at the business areas they are involved in and mitigating the effect these have on climate change world wide rather than just attending to their local footprint. This should not be in isolation, but in partnership with clients providing them with opportunities and innovations to assist them in ensuring that the impact of their business activities on the environment can also be mitigated. 

While business activities may be legal they may not be environmentally friendly, Boards of financial services businesses should look at their ethics and environmental risk appetite when engaging with clients that are in sectors that are higher risk for climate change. Where clients do engage in sectors that have a higher risk of environmental damage the Board should be aware of the issues relevant to climate change in that sector and should seek assurance that best practices and international standards are applied to mitigate that effect.  Boards should set out their environmental risk appetite and receive sufficient management information to assess the impact the financial service business has by providing products and services to these clients for their business activities. 

It is not just about the here and now impact of climate change but also the future and not all mitigations will produce net emissions or zero impact. Protecting against the effects of climate change should be looked at with a long term view and in the similar way that financial services businesses have provided for the preservation and enhancement of wealth over the years. This may be by allowing opportunities and investment in green technologies, the setting up green funds or in providing products and services that allow for the philanthropic support of education, innovation, research in understanding how to combat climate change and providing support for the communities that are most vulnerable. This allows for Boards of financial services business to show that they are meeting their obligations under the Finance Sector Code of Corporate Governance and their clients are able demonstrate that they are attending to their environmental responsibilities.

Good corporate governance assists in enhancing reputation allowing people to see that international finance centres, their stake holders and users are more than part of a greed is good culture, looking after their own self interests. It allows for clear evidence that demonstrates that they undertake their responsibilities seriously with a wider world appreciation.  Climate change may just be being felt on our shores but it is certainly knocking at our door.      

Act in Haste!

Lance Barclay AML/CTF, Compliance, Corporate Governance, Fraud, Guernsey, Self Help

Both regulators in Guernsey and Jersey have issued warnings regarding Fraudsters

Compliance monkey

targeting financial firms and their Customers. Coming back from a long weekend and back log of emails, the stresses that you are under in this unprecedented time, business objectives and customer expectations, this is the perfect storm for the Fraudster to exploit. In our isolation the use of malicious and fraudulent emails (Phishing) appears to be the current tool of choice and here are some tips, key indicators and red flags that and email may be malicious or fraudulent to keep your Firm, Customers and Yourself safe.

  • Is the email out of the blue or unsolicited with a time pressure to undertake some action?

  • Is the email address of the sender the same as your Customers in your records?
  • Is the spelling correct or have letters been substituted, do you even know the sender?
  • If there are links to respond to do not click them, hover your cursor over them and check the URL. Always go to the official site rather than click a link in an email especial if it requesting that you need to do so to undertake some action.
  • If the email is requesting that you need to download a file or attached document do not do this or click on it.
  • Are there grammatical or spelling errors in the email?
  • Does the email sound like client?
  • Does the email request some personal data or business data or security details?
  • Does the sender address you by name, is this usual? If the sender is unknown to you this could be an attempt to gain confidence, remember we all have personal details on the web that are easy to find.

If you see any red flags it is time to contact your IT department or provider and get them to check the email out and validate it.

When receiving requests to make transfers to accounts or pay invoices you need to be cautious, consider the following as red flags that either the email is a phishing attempt or that your customers email account has been compromised.

  • Is the request expected, in line with the known activity and business operation of the Customer?

fraud-1-630x420-770x4332624814175215932423.jpg

  • If the email asks to call them on a phone number to confirm the transaction, use the contact details that your firm has on file and not the ones in the email.
  • Check the transfer details, are they the same as the ones you have on the file for the customer or is this a new transaction? .
  • Is the transaction inline with the normal activity and known behaviour of the client?
  • Is the invoice for services that appear odd or from an unknown party?
  • Does the email request use any links or downloads such as an invoice or software? Always go to the main website and make payment from there as the link could be malicious. Any download may contain malicious software that will endanger your firm such as ransomware or can even spy on you.

Always confirm actions with the customer, using the details your firm has of the actions that are required to be undertaken. If you have any red flags then your IT department or provider needs to be informed and the email checked out.

Also beware that you may also be subject to telephone (Vishing) or SMS (Smishing) fraud attempts that will also seek to make you undertake an action or provide personal or business details in the same manner as with Phishing.Always call the customer back on the details that your firm has and confirm with them any requested action. Rather than seeing this as a hassle customers will be impressed that you are so diligent and have good security, it will reassure them that you are the firm to be with and that you are proactive in protecting them and their data and assets. It may also alert them to the fact that they have already been hacked and can take appropriate action to minimise any loss.

Reporting of these attacks.

These attacks must be reported to the Compliance and MLRO team and onwards after assessment to the Board.The Board is accountable for the safety of the firms clients and client data and must be seen to be ensuring that it has considered the risks posed, put in place effective mitigation, appropriate systems and controls. This assessment must be reassessed after an attempted fraud and consideration of appropriate actions undertaken. Does this change the risk profile of the firm in anyway? Is there any further mitigation that can be done to protect the firm and its customers? Remember the Regulator will be looking for documentary evidence of consideration whether there has been an attack or not and certainly on their onsite visits.

Compliance and MLRO teams with the IT department or service provider need to collate the data, assess the threat and any further systems or controls that may be required to be considered by the Board and implemented. They need to consider if this is just a random attack, or whether it is targeted, is there a specific group of customers this affects? This information with any recommendation needs to be provided to the Board. Consideration must be given to the threat and may also require the of warning, training or refreshing of the firms employees to the risks and the policies, procedures and the controls that must be followed.

Fraudsters can be identified from the details that they provide to you, be it a phone number, email address or website URL. This being the case they must be reported to the Fraud or Financial Intelligence Unit as you would with a normal Suspicious Activity Report, if you are unsure give the Police or the Financial Intelligence Unit a call, they are there to assist you and help you. This also allows them to collect the data and establish if the jurisdiction, specific firms or a set of clients is being targeted, allowing them to warn industry and protect clients of the jurisdiction. Financial Intelligence Units have a wealth of good advice on there websites for the prevention and detection as well as the dealing with fraud.

In conclusion;

  • Don’t open email from unknown senders and take time to assess an email for red flags that it may contain malicious software or attachments or a fraud attempt.
  • Undertake callbacks using the customer details the firm has collated to confirm any actions.
  • Don’t undertake actions or give out personal data or business data to anyone who is unknown no matter how much they pressure you.
  • Contact your IT department, service provider and/or compliance department if you have any concerns, links or requests to download documents or software.
  • If it is found to be fraudulent or malicious report it to your compliance and MLRO departments.

Don’t be pressured by emails, phone calls, SMS’s and time pressures in to undertaking an action in haste only to repent at leisure.

You are Important!

Lance Barclay Compliance, Guernsey, Self Help , , , , , , ,

Compliance monkey

Some times there are some things that are more important than Compliance, and that is now and it’s YOU.

We find ourselves in a reality that was unthinkable at the start of 2020 and our best laid plans for the year have disappeared in the tempest that is Covid 19. Many of us are now working from home which adds new stresses and strains that we were not prepared for, and that we are now having to deal with. As someone who has worked remotely for several years I wanted to share some tips to help you stay productive motivated and most importantly safe and well.

Firstly define your work and down time hours and try to stick to them. You need to be flexible but don’t let work take over from your need for down time and self care. Make sure that your colleagues know when you are working and when not to disturb you. Once you finish for the day turn your email off, it can wait till tomorrow and if urgent your firm will be able to contact you.

Ease yourself into your day, have a morning routine to prepare yourself for work. I take the time to make a cup of tea, have breakfast and catch up on the news, but be careful of the media overload and anxiety it can cause. I take my tea and either look or sit outside enjoying the dawn, breathing and just centring myself, sometimes with a quick yoga or Kayak session.

Make sure that you have a separate and dedicated workspace and that it doesn’t invade your personal space.

Have a plan for the day and stick to it but stay flexible and adaptive in your approach. I start by reading through emails and prioritising tasks and jobs to ensure that my plan for the day is as good as it can be. Once done I like to send an email to my colleagues letting them know I am online and can be contacted.

Make sure you schedule breaks throughout the day, I normally take 5 minute breaks every hour or so. This allows you to give your mind a break and recover and refocus. This is the same as any physical training where breaks from activity are needed to refresh the muscles and keep performance up. Your work space at home may not be conveniently designed for prolonged periods of computer work. Get up and move, stretch and get a drink or snack, lessen the strain on your body as well as your mind.

Have lunch, you need this to refuel and switch off completely, try to do this away from your work space to negate your work taking over this personal time. I often try to include an element of physical exercise outside as well as experimenting with recipes and varying my lunch from day to day. Lately I have got back in to sea swimming which is energising and refreshing, but do what makes you feel good and takes your mind off work and any negativity, it is about what is good for you and what is needed to leave your refreshed and motivated.

Have an end of the day routine to ease yourself in to your personal time. Try to finish your tasks and don’t start a new task if you won’t be able to complete it by the end of the day. I finish the day by catching up on emails and notifications and start to plan for tomorrow. Let your colleagues know that you have finished for the day. Review what you did during the day, try not to be overly self critical of your performance, you can’t change what has been, focus on tomorrow and be kind to yourself.

Then turn off, put your work away and start your personal time. By all means relax with a glass of wine or beer but don’t let it take over your personal time. Alcohol is a depressant and can lead to increasing your anxieties and worries, you also need to be fresh and motivated for tomorrow. If you do find that alcohol is starting to take over your life recognise that it is, take steps to regain control over it and seek help if needed.

Working from home is all about communication and as you are not in the office or able to see visual cues you need to over communicate. Communicating with your colleagues is not just to let them know when you are online but also let them know what you are working on and towards. If you need help or think you may need help ask for it, make time to understand what your colleagues have planned and are working on, and where you may be able to assist or help. We are remote and isolated but we have never been more electronically connected, use technology to interact, have video meetings and arrange team meetings where you can all interact.

Try to engage with your colleagues as you would normally do in the office. We all have that down time when we catch up on non-work related topics such as sports or television, remember keep things positive and try to avoid gossip, adding to anxieties and toxic conversations about colleagues, you may not have the whole picture and you won’t know how they are feeling or what they are dealing with. Try to schedule these conversations and interactions for your scheduled breaks as you are still on the firm’s time and should not abuse this.

You may find that a colleague uses this time to open up to you or leans on you for support. As you would do in the office make the time to hear your colleague but let others know you are unavailable and not to be contacted. Be empathetic to your colleague, what may seem trivial to you could be their whole world, support them and let them talk.

If you have concerns about a colleague let your Human Resources department know, they have the skills, training and resources to help and assist, try not to take the problems of others on your shoulders as that will also weigh you down and add to your stresses and strains. If you don’t have an Human Resources Department speak with a senior manger about your concerns, a problem shared is a problem halved, encourage and support your colleague to seek help that is out there.

Be aware of cues that may indicate someone is struggling such as them being withdrawn or making mistakes, maybe they just don’t seem like themselves. Ask them gently if there is something you can help with, strike up the conversation with them but respect their privacy, in some cases just let them know you are there and check in on them more regularly.

If you or anyone of your colleagues is struggling please know it is not a sign of weakness or failure. There are no prizes or bonuses for struggling through, you and your colleagues are part of team and together you are strong, can accomplish amazing feats and will succeed and get through this. Please remember that we are all in this together and it is OK and normal to have a bad day, feel down, anxious or frustrated. You are amazing, be kind to yourself and your colleagues, we can weather this storm together.

Stay safe, stay well and stay home.

I would be grateful to hear or have comments from readers for their tips on working from home or dealing with the day to day stresses and strains of our new day to day normality.

Paradise Papers – Seeing the Wood for the Trees

Lance Barclay Compliance, Compliance Monitoring, Corporate Governance , , , , , , , , , ,

The now infamous “Paradise Papers” contain personal data obtained from Appleby’s Bermuda office via an illegal hack. This data in part details the utilisation of International Finance Centres (IFC), by high net worth persons and corporates, for tax mitigation purposes. This post makes no comment on the legality or otherwise of using such data. Nor, is it a commentary about tax havens vs IFCs, the ethical considerations of society, and the freedoms for legal persons to engage in trade or invest in or through an IFC. Our focus instead is the failings that Trustees, Foundation Officials, Directors and Employees in Financial Services Businesses (FSB) must learn from in the wake of this saga. We do not purport to be a tax experts and so have not commented on the validity or otherwise of any advice given whether regarding tax or structuring. Our intention is to look at the compliance and “good business practice” considerations at the heart of good corporate governance. With offices in Guernsey, Jersey and having experience of working in Bermuda we believe analysis of legal and regulatory frameworks by jurisdiction offers a less valuable insight than a clear understanding of the general principles and terms of good corporate governance.

Tax Advice
In order for Trustees, Foundation Officials and Directors to fulfil their responsibility and work in the best interest of their clients they must understand and follow the professional tax advice received. They must evidence that they are compliant with this advice and periodically, depending on the type of arrangement they are administering or controlling, ensure that they have up-to-date tax advice on file. They must also evidence that these arrangements remain legal and all tax liabilities are settled when due. The following are instances where those responsible may find that they have failed to attain an appropriate standard:

• Legal arrangements over time becoming tax non-compliant;
• Legal arrangements set up with draft tax advice without the advice ever being formalised;
• Legal arrangements undertaking new activities outside the scope of the original tax advice;
• Failure to follow tax advice fully, e.g. the non-repayment of a commercial loan arrangement;
• Tax advice provided by those who are not appropriately qualified;
• Tax advice held by the client but never shown to the Trustees, Foundation Officials and Directors.

Control
To ensure tax and legal compliance the Trustees, Foundation Officials and Directors must exert control. Here again to fulfil their responsibilities they must clearly document evidence that they have overarching control of the activities of the legal arrangement. The following are instances where those responsible may find that they have failed to attain an appropriate standard:

• Beneficiaries committing the legal arrangement to a business arrangement without due consideration and approval of the Trustees, Foundation Officials and Directors in the first instance;
• Those responsible acting without due consideration;
• Those responsible committing the legal arrangement to business activities which do not accord with the arrangement’s rationale;
• Those responsible lack sufficient independence from the client;
• Those responsible are unable to evidence their control of the assets and/or activities of the arrangement.

Investments
The Paradise Papers have also raised questions regarding the suitability and legality of investments undertaken by legal entities. Trustees, Foundation Officials and Directors must ensure that the investments or business activities undertaken by the entity are in line with its intended purpose. Those responsible must also ensure the legality of any investment or business activity does not breach any international sanctions. Though investments or business activities do not require due diligence to the same standard of beneficial ownership due diligence, sufficient research and evidence must be attained to ensure such activity is in the best interest and in line with the objective of the legal arrangement. At the same time sufficient checks must be undertaken to ensure legal compliance and suitability with its objectives both at initiation and on an on-going basis thereafter. The following are instances where those responsible may find that they have failed to attain an appropriate standard:

• Investing or engaging in a business relationship with legal entities related to a sanction regime or jurisdiction;
• Not undertaking sufficient due diligence to ensure that the investment or business engagement does not involve sanctioned legal persons or sanctions breaches;
• Investing or business relationships that are out of line with the entity’s purpose.

Source of Wealth and Funds
Trustees, Foundation Officials and Directors must ensure that they have sufficient understanding and evidence of their clients’ Source of Wealth and Funds (commensurate with their risk classification) to prevent and detect criminality and terrorist financing. Understanding the origin of assets and their usage assists those responsible in forming a picture of the true beneficial ownership, intention and nature of the relationship. This also allows those responsible to have sufficient transparency and enable effective reporting required by international regulatory and legal bodies.

Ethics of Doing Business
Those responsible must ensure that they have given ethical consideration to the activities of any legal arrangement. Ethical considerations must accord with the documented risk appetite and it must be understood that legal arrangements engaged in aggressive tax mitigation or higher risk industries pose a higher reputational risk to the Trustees, Foundation Officials and Directors, their business and those of the jurisdictions in which they are active. As such, these relationships must be properly understood and documented as they may be open to future challenge.

The ethics of doing business must also consider whether sufficient knowledge, qualifications and experience are inherent in those responsible. Trustees, Foundation Officials and Directors must document and evidence their consideration of whether a business relation, either new or continuing is within their realm of knowledge, understanding and experience. Where this is not the case they should remove themselves from responsible positions or obtain suitably experienced individuals as their replacement.

The integrity and professional actions of those responsible will ultimately be assessed by the authorities to ensure that the best interests of stakeholders have been met at all times. This responsibility includes timely reporting of non-compliance with appropriate authorities.

Compliance
While the Trustees, Foundation Officials and Directors remain responsible and accountable for both and their own and the legal arrangements activities, a suitably resourced compliance function is required to assist and advise. Compliance must be a proactive force within a FSB rather than merely a tick box exercise. It must assist in ensuring that the business has attained appropriate tax and legal advice as well as ensuring it is understood and followed. Those responsible must demonstrate the required control and oversight of activities undertaken for and on behalf of the legal arrangement. Findings and recommendations must be reported back to those responsible and any remediation must be tracked to ensure that the business can demonstrate compliance, integrity and appropriate levels of knowledge and understanding of the entity’s activities.

Data Security
The Paradise Papers also clearly highlight the importance of implementing suitable and sufficient data security controls to protect stakeholders. These controls are not just IT system-focussed and must include effective staff training to reduce the risk of an unintentional data leak. Data security systems and processes must be monitored, tested and kept up-to-date. It goes without saying that failure to implement an efficient and effective control environment may lead to a catastrophic loss of data with disastrous reputational consequences for all stakeholders. FSB’s must also be aware and ensure that any 3rd parties who hold data do so effectively and have the necessary safeguards and review processes.

Conclusion Compliance monkey

IFCs adhere to international standards and best practice. While recent data hacks have revealed that there are practitioners out there who have not abided by these requirements, the vast majority are conscientious and highly professional.

However, the current political backdrop is unfavourable to offshore jurisdictions and we should expect greater scrutiny in our professional activities for the foreseeable future. Applying the highest standards of corporate governance is our best path to a successful future.
If you have any concerns or would like to know more please either contact myself

De-Mystifying the High-Risk Territory

Lance Barclay AML/CTF, Compliance, Guernsey

Compliance monkeyThere is much talk these days regarding the difficulty of providing products and services to those persons who are in high risk territories.  The main gripe is that the Guernsey Regulatory Framework is stifling and strangulating licensees when it comes to high risk territories. This seems to be at odds with the presentations and assertions of the Commission about Guernsey being open for business and empowering its licensees to engage in risk to develop and grow.  What is the truth, are we being misinformed and if so by who?

When it comes to high risk territories licensees must be aware of the obligations in the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Regulations, 2007 as amended (“the Regulations”) and the Handbook for Financial Services Businesses on countering Financial Crime and Terrorist Financing (“the Handbook”).  Regulation 5 (1) (c) states the following;

“(c) a business relationship or an occasional transaction – (i) where the customer is established or situated in a country or territory that does not apply or insufficiently applies the Financial Action Task Force Recommendations on Money Laundering, or (ii) which the financial services business considers to be a high risk relationship, taking into account any notices,”

The Handbook goes further at rule 58 where it states the following;

“is connected to any of the countries or territories listed in Part A or Part C of Instructions on Business from Sensitive Sources issued by the Commission; is designated as high risk.”

At first glance the minimum requirements are that by applying the full instructions on Business from Sensitive Sources you would have a lists of high risk jurisdictions that the Commission would be happy with in meeting the requirements of the Regulation and the Handbook. The Commission have empowered Financial Services Businesses in Guernsey to actively engage and establish their own risk appetite and as such the Instructions on Business from Sensitive resources only represents the minimum requirements.  The Handbook at section 70 goes further to recommend that a high risk factor regarding territory would also include the following;

“customers based in, or conducting business in or through, a country or territory with known higher levels of bribery and corruption, or organised crime, or involved in illegal drug production/processing/distribution, or associated with terrorism; involvement of an introducer from a country or territory which does not have an adequate AML/CFT infrastructure;”

Just by looking at Transparency International perception index this allows the potential for a greater number of territories that could be designated as high risk. There are also those territories that Guernsey has Sanction regimes on which pose an association with terrorism and as such could be deemed high risk. The question is must these territories be high risk?

The Commission have through rule 57 empowered Directors and Boards to take a proactive view of risk where a business relationship has a high risk element (that is not a high risk element specified in Regulation 5(1)(a-c) or listed at part A or Part C of the Instruction on Business from Sensitive Sources) but this element does not mean that the actual risk of the relationship is high.  A Financial Service Business where it has compelling mitigating factors that it documents, can choose a lower and more realistic risk rating. Therefore, a territory that the Financial Services Business may class as high due to internal policy or procedure or that an international body classifies as high does not necessarily make the whole relationship high risk.

Some examples of where and how rule 57 can be applied;

  • An entity that is administer and controlled in Guernsey is conducting business in a territory that is not on the Business from Sensitive Sources Instruction but has a high bribery and corruption rating, there are controls in place to mitigate associated risk of bribery and corruption risk do we have to have this as high risk? If the licensee can demonstrate compelling mitigating factors to meet rule 57 of the Handbook, it could choose to down grade the risk if its policy procedures and controls allow.

 

  • An entity that we administer and control is conducting business in a territory that is on the Business from Sensitive Sources, there are controls in place to mitigate associated risk do we have to have this as high risk? This must be rated as high risk as it falls under the Regulations and the Handbook as having to be rated as high risk.

 

  • A Beneficiary resides in a Sanctioned country which the Financial Services Business deems as high risk, do they need to be classified as such? If the licensee can demonstrate that the beneficiary and the entity that will be receiving any transaction is not subject to a Sanction notice and demonstrates the compelling mitigating factors to meet rule 57 of the Handbook, it could choose to down grade the risk if its policy procedures and controls allows.

 

  • A customer born in a higher risk country due to bribery and corruption but residing and employed in Guernsey and all funds for the business relationship have been earnt in Guernsey do they have to be high risk? Though a Licensee must obtain information on Place of Birth and Nationality under the rule 86 of the Handbook there is no requirement to risk rate on this basis and it could be discriminatory.

 

  • There are also occasions where part of a structure or an entity is registered in a higher risk jurisdiction, such as a Panamanian foundation that is controlled and administered in Guernsey. The question that must be asked is does a brass plaque in a higher risk country create a higher risk? Regarding the Regulation and the Handbook the Panamanian Foundation could be said to be based in Guernsey due to the management and control element and as such would not fall under a higher risk country element as the due diligence requirements would be undertaken by the Guernsey Fiduciary to the requirements of the Handbook and the Regulation.

 

  • The use of corporate entities registered in other higher risk jurisdictions by a Guernsey licensee for its customers, the Corporate Service Provider in the higher risk territory is only the Registered Agent for corporate entities and only undertakes the required statutory functions of the Territory are these structures require to be high risk? Though higher risk jurisdictions can be used to provide a corporate entity they may not apply the same anti-money laundering measures and countering terrorist financing measures as we are required to do in Guernsey. In these cases, it could be said that the business relationship is based and established in Guernsey as the corporate entity is controlled and administered by a Guernsey Licensee who must comply the Guernsey Regulatory Framework requirements.  Does a brass plaque really carry a risk or money laundering and terrorist financing or should we be more worried about the risk of the beneficial owners and controllers?

From this brief review of the pertinent sections of the Regulations and the Handbook, the Commission have in fact created a framework when it comes to territory that does allow for consideration of risk and not everything is or should be classified as high though some must be.  Unfortunately, it is possible that licensees themselves, through either lack of knowledge, understanding or misinterpretation of the Regulation and Handbook are creating their own frameworks that are inflexible to allow compelling mitigation to be taken in to account when it comes to risking Territory risk where permissible.  This inflexable framework would contribute to the strangulation of a Financial Services Business and the potential offering of products and services to new markets and developing countries.

Remember the Commission are there to use enforcement action on those who fall below minimum requirements and/or do not apply their own policies and procedures. There are countless other examples where rule 57 of the Handbook can be utilised so please contact me if you are interested in further clarification.Compliance monkey

Reflections of 2016

Lance Barclay AML/CTF, Compliance, Compliance Monitoring, Corporate Governance, Due diligence, Guernsey , , ,

Compliance monkeyAs the sun gets lower, the evenings longer and we get closer to the end of a year I cannot help but think what a year it has been and begin to reflect.  For me personally it has been a year that has been full of hard work, assistance and resolution of problems and all this led me to the beautiful Island of Bermuda to undertake a contract for a client.  Not only a fantastic opportunity to show case my skills and knowledge but a joy to work for some fantastic people and meet old and new friends as well as to experience another regulatory culture. While I would rather be pondering the last year and this post from a pool in Bermuda instead of next to a fire on a brisk cold day, Guernsey still very much holds my heart, though Bermuda is a close second.

In looking to the challenges of the future and what the next year may hold for us is it time to reflect on the past year, the regulatory framework and what is needed to ensure that our business moves forward, prospers and continues to uphold the regulatory standards and meet future challenges, and there is no better way to do this than look back over the last year.

There have unfortunately been instances where the Guernsey Financial Services Commission (GFSC) has had to take enforcement action in 2016, never an easy decision but essential in today’s world to assist in the safeguarding and continual success of our international reputation and prosperity.  I do not think it is right to dissect these cases as these are disclosed on the GFSC website but rather look at what lessons can be learnt to avoid a repeat to our businesses and to protect the Directors and Stakeholders.

Risk, Identification and Verification

Most of these incidents reported by the Commission are in respect of Anti-Money Laundering and Counter Terrorist Financing (AML/CTF) within businesses.  That is not to say that all these incidents related to actual financial crime but rather that businesses were not meeting the standards and expectation imposed by our regulatory framework to ensure that verification documentation mitigated the risk of the Island being utilised by criminals.

The identification and verification of customers and controllers to a business relationship is a continuing matter that is reported by the GFSC.  In many cases business’s application of a “risk based approach” had failed to ensure that the due diligence and enhanced due diligence for customers and required parties to a business relationship or occasional transaction, had been obtained and met the standards required by the regulatory framework, inclusive of rules and guidance issued by the GFSC for certification and the suitability of certifiers. It must be remembered that wherever you are licensed you must meet that jurisdictions regulatory requirements as a minimum!

Monitoring and Sanctions

Periodic monitoring of customers was another area where businesses struggled.  It was found in some cases that this monitoring was not undertaken or if undertaken did not meet the regulatory requirements. It was found that risk assessments were inadequate and not reviewed as required by a business’s policy and procedures to meet the obligations of the GFSC, especially where customers had been assessed as high risk.  The review of the rationale for the business relationship and transactions undertaken was found to missing or inadequate, leading to the GFSC questioning whether appropriate and effective policies and procedures were in place inclusive of suspicious activity reporting.

The review of customers to Sanction lists was also noted as an area of concern. While this may be undertaken at the start of a relationship and periodically is it suitable just to wait for these trigger events?  Is the review of transactions subject to sanction screening to ensure that sanctioned legal persons or those entities that they control are not financed? It may be that the GFSC believe terrorist financing to be a low risk to the Bailiwick but this will do nothing to deter terrorist financiers if they find a gap in our defences.  A definite area I think the GFSC will look to assess when conducting on-site examinations and through thematic reviews in 2017, so be warned!

Corporate Governance

Corporate Governance has also come to the forefront not only in the AML/CTF area but also in more prudential assessments of a business.  In all cases enforced by the GFSC the findings go back to the corporate governance requirements of the regulatory framework with the accusation that directors failed to ensure that they acted to ensure that the business could meet the Guernsey regulatory requirements.  THE GFSC also in some cases questioned the independence and integrity of directors due to the regulatory failings identified.  Not only will this area come more to forefront with shareholder activist and the spotlight of international bodies but also from the GFSC to ensure that Directors are suitable and safeguarding Stakeholders and the business.

With the Guernsey regulatory framework changing to meet the international requirements which are evolving it is difficult for any Director to ensure that their Business remains compliant.  Businesses in this ever-changing environment are at risk of falling behind the times.  While only minor infringements of the regulatory framework may be the result, if these infringements are many, systemic and material they may require to be reported to the GFSC.  By the Board bringing these issues to the GFSC, in some cases, remediation without the threat of enforcement can be undertaken, it is after all in the GFSC interest that businesses remediate and enhance themselves to meet the regulatory framework.  It is best to be able to show and have evidence that the Board have discussed the issues affecting the business and the action to be undertaken rather than hearsay in any regulatory inquiry!

Reflections

So, reflect on this year, look at the enforcement cases to ensure that you do not fall foul of history, review your business plans and business assessments to make sure you have the policies and procedures in place to meet the regulatory framework and the requirements of the Business.  Review the Compliance function is it suitable and sufficient? Consider its independence or whether there needs to be independent oversight or outside assistance?  Does the compliance monitoring facilitate management information that is required for Directors to undertake their duties and safeguard the business and stakeholders?  Look outside of your own regulatory regime to other sectors as if something is happening in one there is a good chance that those developments will feed in to your own sector’s regulatory requirements.  Look outside to other jurisdictions as developments there may impact on the regulatory framework where you are.

If you have a last Board meeting of 2016 or even an early 2017 Board meeting set the agenda to reflect on 2016 ensuring that history does not repeat itself. If you do find that you are not in compliance, please ensure that you have the issues and remediation documented whether you consider it material or not to report to the GFSC.

Instruction 01/2016

Lance Barclay AML/CTF, Compliance, Corporate Governance, Due diligence, Guernsey

Compliance monkeyThe Commission have released their latest Business from Sensitive Sources Instruction, no 01/2016 (“the Instruction”) for Financial Services Businesses and Prescribed Businesses replacing the previous instruction 04/2015 that was issued back in November 2015.  The upshot is that Myanmar, Loa PDR and Vanuatu are now included in Part B of the Instruction which lists countries and territories with improving Global AML/CTF Compliance, while Algeria, Angola and Panama have been removed altogether from the Instruction. For Financial Services Businesses and Prescribed Businesses, it would appear to be that they can now apply a risked based approach to relationships or transaction through or from Myanmar, Loa PDR and Vanuatu, and as much is said in the Commission’s statement on their Instruction, but is that really the case?

A quick look at Chapter 3 of the Handbook and rule 58 sets out the Commissions requirement for designating high risk Business Relationships or Occasional Transactions.  These characteristics are those identified in section 1 (a) to (c) of Regulation 5 of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Regulations, 2007, as amended (“the Regulations”) and also those connected with Parts A or Part C of the Business from Sensitive Sources issued by the Commission. At first glance it would therefore appear that Business Relationships or Occasional Transactions with Myanmar, Loa PDR and Vanuatu do not necessarily need to be high risk as they are on Part B of the instruction.

What is important to realise is that section 5 (1) (c) (i) of the Regulation states that customers established in or situated in a country or territory that does not apply or insufficiently applies the Financial Action Task Force (“FATF”) recommendations on Money Laundering must be designated as high risk.  As part B of the Instruction relates to countries or territories who are improving but not meeting the FATF requirements on Money Laundering it would indicate to me that Myanmar, Loa PDR and Vanuatu, still require to designated as high risk in order that a Financial Service Business or a Prescribe Business can meet their obligations under the RegulationTO13-3s.

If this is not confusing enough for any Director, Compliance/ Risk Officer or Money Laundering Reporting Officer, please also be aware of your banking arrangements and relationships.  Though this Instruction on the face of things allows you to apply a risk based approach which may or may not be in line with the requirements of the Regulations, your Bankers may not deem these jurisdictions to be anything other than high risk.  You may have decided as a business to apply a risk based approach but if this is not in line with your Bankers you may find yourself in bother.

The only advice I can give is make sure that your risk designation of a client meets the requirements of the regulations and that of your Bankers.

Dear Board, don’t engage me to undertake your outsource compliance requirements until you have read this!

Lance Barclay Compliance, Corporate Governance, Guernsey , , , , , , , , ,

Compliance monkeyGuernsey has an amazing regulatory framework which has become quite a selling point with financial service businesses offering their products and services and those financial service businesses wanting to come and have operations here. Some will utilise outsource compliance professionals to assist them with the cost of set up, on-going costs,  ensuring their business can have knowledgeable and professional persons on-board while it establishes and grows its presence and offerings. Even established firms may need extra compliance support in their business to be able to ensure that they can at all times remain compliant with the Guernsey regulatory framework or ensure that remediation is appropriate and effective.

In the last year the use of outsource compliance professionals has come to the forefront of the regulatory radar, instances of their failure having been identified as contributing to businesses failing to adhere to the regulatory framework. There have been numerous communications from the Commission to the industry on the issues surrounding the requirements for utilising an outsourced compliance professional and failures where this has not been met, showing that the Commission are treating this seriously.

At the end of the day the responsibility for compliance to the regulatory framework is laid firmly at the feet of the Board and they are the first point of call when failings or regulatory deficiencies are identified by the Commission. The need to ensure a Licensee is meeting the regulatory requirements forms at the most basic level with the minimum criteria of licensing as well as being mentioned throughout the regulations, codes instructions, and guidance issued by the Commission.

So what needs to be considered by Boards? Here are some questions to be asked but at all times refer to the legislation regulations, rules,instruction and codes that pertain to your business and licence.

Prior to any engagement consider these points.

You wouldn’t employ anyone to undertake the role in a full-time capacity so why would you chose anyone to do your outsource function?

Prior to any engagement do your due diligence on the outsource company/ person, the person who will be your appointed compliance representative and the people who will be doing the work. At the very minimum the person who will be undertaking the work needs to be suitably qualified and knowledgeable of the area your business operates in and the regulatory rules that pertain to your licence.  You will need to ensure that you can evidence that they have been appropriately screened as you will be expected to have been as diligent with your provider as with your own staff!

You wouldn’t employ anyone who doesn’t have the time for your business?

Prior to any engagement you need to work out how much time will be required. This will change from the role that compliance professional will undertake, as an example an outsourced MLRO will have different time requirements to a compliance professional assisting with licensing.

When you actually look at it, if you have a compliance professional for two hours a week it would take them eighteen weeks to achieve one thirty-six hour working week in your business! Obviously cost is a major factor in this assessment and knowledge and experience never come cheap. The time any compliance professional spends on your business must be commensurate to the size, complexity and nature of your business and the role undertaken.

You need to be aware that a compliance professional will also be working for other firms, there is obviously a risk regarding resources. If their clients require more time or the outsource provider or person undertaking the role has issues with resources will you be affected? You need to ensure that there are controls in place or a plan B to mitigate these risk.

You wouldn’t have any old agreement?

You need to ensure that the outsource agreement meets the requirement of the Guernsey regulatory framework and is legally binding. The Board cannot discharge its responsibilities only delegate the work, it is often a good idea to have a Guernsey Advocate firm look over any agreement, especially if the Board are not familiar with Guernsey Law or this area.

During any engagement consider these points.

You wouldn’t want to be assessed by any old criteria, what criteria is the business or business area being assessed to?

Again this depends on the role you are utilising the outsourced compliance professional for, but you need to know how they are monitoring you and to what standard.  The Board must make sure that it can evidence and satisfy itself and the Commission that the Guernsey regulatory framework requirements have been met.

You wouldn’t want any report, do the reports provided give the full picture of the work being undertaken?

The reports that are provided to the Board must be meaningful and contain accurate management information. This allow the Board to see the whole picture of their business or the area that the outsourced provided has been contracted to service and assess the level of compliance to the regulatory framework. If areas or remediation work have been identified are the Board kept appropriately up to date?

You wouldn’t want to keep on anyone who isn’t performing, is the outsource provider performing to the required standards?

Throughout any engagement the Board must consistently monitor and evidence its monitoring of the outsource provider and/or those undertaking the work for the Licensee. Is the Board satisfied with the work undertaken, is the monitoring of the business meeting the requirements of the Guernsey regulatory framework, has the business changed in its complexity, nature or size and is the person doing the role still suitable?

The most important aspect to any outsource relationship is that you have the right person/firm, they add something to your business, provide you with the accurate management information, they get on with you and are honest to you regarding their business and yours. By hopefully considering and evidencing these requirements a Board will be able to show that they have acted to ensure that their business meets the requirements of the Guernsey regulatory framework. In the unfortunate case where things have not worked out the Board will be able to evidence that they were aware of the issues at the earliest opportunity and have acted to mitigate any non-compliance and remediate the situation.

The Sum of All the Parts

Lance Barclay AML/CTF, Compliance, Due diligence, Guernsey , , , , , ,

Compliance monkeyThe Guernsey Anti-Money Laundering and Countering Terrorist Financing (“AML/CTF”) framework has continually developed to take in to account good practice, external pressures, requests and recommendations of onshore governments, quangos and international organisations  to ensure that financial crime in all its guises is effectively tackled. The Commission have sought to and I would say that they have largely achieved a cohesive framework that effectively mitigates against the use by criminals of Guernsey as an international finance centre while not over burdening the Financial Service Business operating here.

This cohesive framework has been achieved over the course of the years by open dialogue with local industry bodies, licensees and working effectively and productively with those outside of Guernsey to achieve a proportionate approach for  the products and services that are provided to clients wishing to utilise the jurisdiction. Most notably in 2013 the AML/CTF framework in Guernsey changed extensively and this resulted in general insurance products being removed, but did it remove all the products and services that can classified as General Insurance?

With regard to the Insurance sector in Guernsey, a legal entity can be licensed for general business or for long-term business. Long term business is defined in the Insurance Business (Bailiwick of Guernsey) Law, 2002 as contracts on human life, human longevity, marriage and birth, linked long-term, permanent health, capital redemption, pension fund management and credit life assurance. Due to the nature and the requirements of some clients, an insurance licensee with a general business categorisation may want to offer some of these products to their clients to supplement the range of products and services they currently or can offer their clients, but without the need to be licensed for long-term business.  Section 2(4) of the Insurance Business (Bailiwick of Guernsey) Law, 2002 does allow for an Insurance licensee to elect that a contract for a term of not more than 18 months that may be regarded as a long-term business contract and can be deemed to be general business.

This would appear to allow a general insurer to fit such products into their licence requirements e.g. general insurance, without the requirements to adhere to the Guernsey AML/CTF framework as per the changes that were made to the Commission’s AML/CTF Handbook (” Commission’s Handbook”), in 2013.  It should be noted that the treatment of these products, though allowed to be done in certain circumstances by an Insurance licensee does not change the definition of those products in the Insurance Business (Bailiwick of Guernsey) Law, 2002.

In the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Regulations, 2007 at schedule 1 it states that a Financial Services Businesses for the purposes of the Regulations are detailed in part 1 of the schedule, except where they are incidental or are other activities as listed at Part 2 of the Schedule. Part 1 of the schedule includes the carrying on of “Long Term Business as defined by the Insurance Business (Bailiwick of Guernsey) Law, 2002 as being a Financial Services Business for the purposes of the Regulation and the Commission’s Handbook, it does not include any change in the treatment of an Insurance product by an Insurance Licensee. The Commission’s Handbook at section 4.8 specifically deals with the treatment of life or other investment linked insurance policies and as such these appear to directly fall in to the Guernsey AML/CTF regime. Effectively this is saying that if a product falls under the long-term definition stated in the Insurance Business (Bailiwick of Guernsey) Law, 2002 though a Licensee it may regard it as being General business they remain subject to the AML/CTF Regulations. Thus a licensee must adhere to the requirements of the Commission’s Handbook and AML/CTF framework when dealing with such products.

The sum of all these parts would indicate that an Insurance licensee effecting or carrying out life or other long-term products regardless of how a Licensee may be able to classify these products as general business under the Insurance Business (Bailiwick of Guernsey) Law, 2002, they would still fall under the AML/CTF regulations and Commission’s Handbook by way of the requirements of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Regulations, 2007 held at schedule 1. An Insurance Licensee regardless of how it treats such products under its licence would be required to have in place an effective AML/CTF framework.  A licensee must be able to evidence the suitability of its AML/CTF framework and compliance with the AML/CTF requirements pertaining to its business to the Commission.

An Insurance licensee must ensure that at all times they meet the requirements for the minimum criteria for licensing, schedule 4 of the Insurance Business (Bailiwick of Guernsey) Law, 2002. This includes a requirement to meet and adhere to any rules, codes, guidance, principles and instructions issued from time to time under any other enactment as may be applicable to the business, and this would also be inclusive of the Guernsey AML/CTF framework.