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

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.

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Diving in to Compliance

Entering the waterMy weekends are spent reviewing overarching risk assessments and analysing specific risk assessments as well as undertaking the compliance review of policies and procedures, finishing with the review of performance of the systems and controls.  I am not taking work home with me nor am I moon-lighting or taking on further roles, I am though a qualified Diver and a qualified Solo Diver.

Diving can be a high risk pursuit and can lead to death even at shallow depths. My joy and passion is to go deep, exploring wrecks and reefs of the Channel Islands below 30 meters or 100ft and seeing the beauty and fragility of the alien world below illuminated in beautiful colours with its abundance of life.  The chance of swimming to the surface and surviving without any injury after a total gear failure or panic attack are slim at best, at these depths. The choices I make are calculated and risks are mitigated using similar principles that a Financial Services Business (“FSB”) would utilise.

I start every dive season off with an overarching risk assessment, looking at the risk I am prepared to take, what I want to achieve and the factors affect me. This is not overly different to the Anti-Money Laundering and Combatting Terrorist Financing (“AML/CTF”) Business Risk Assessment for any FSB in Guernsey.  My overarching risk assessment is where I look at what I want to achieve and the risks that I am prepared to take in essence what my risk appetite is, and it does vary year to year.

For a FSB the AML/CTF Business Risk Assessment looks at the risks posed by its products and services and its customers. In my case these translate to the types of diving I want to engage in, my planning and who I dive with.  My mitigation of the risks faced would be my diving gear and its set up and my overall health to make the dive.

I then put into action a monitoring programme taking into account my overarching risk assessment.  A full review of my diving gear is essential as is my fitness, this will involve servicing both gear, body and mind and reviewing them on a periodic basis.  This is similar to the provision of management information to the Directors of a FSB. They require to know the state of health of their policies, procedures, systems and controls, to ensure that they are maintained and remain in good condition and fit for purpose in order to mitigate the risks their business face. Knowing that my gear is in good condition and works is essential for whatever dive I do while the health of my body and mind will dictate the dive that can be undertaken safely. Resources must be put to where areas of concern are noted to ensure that the potential for errors or incidents are reduced to a minimum.

drift drivingThen it all comes down to the day, where I undertake a specific risk assessment of myself, the conditions, the type of dive to be undertaken and who I am diving with or if I am going solo. In a sense this is similar to the customer risk assessment that FSB’s undertake for each customer, in order to identify the risk they pose to the FSB and whether the risks are acceptable.

FSB’s by appreciating the risk posed and faced by the customer can decide whether they are prepared to engage in a business relationship with a customer.  In some cases when I have dived I have been satisfied with the risk I face and have dived but I have also be known to decide that the risks are too high or that my systems and controls are not up to the task and have declined the dive or undertaken an easier dive.  I always work on the idea that it is better to be on the surface wishing you were diving then being in trouble under the water away from help and wishing you were on the surface.

Due to the higher risks I take my systems and controls are tailored to me and include as a minimum two independent air cylinders.  I implement my systems and controls by dividing my body in to two halves, one side has computers connected to one cylinder and the other side has old-fashioned gauges connect to my other cylinder, the idea being that should one side fail I can rely on the other as back up.  It also means I can monitor the performance of my systems and controls effectively ensuring that any false readings or dangerous situations are detected early and evasive action taken.

The last thing I do after every dive is to review my systems and controls obtaining data from my computers, analysing this to ensure my policies and procedures remain fit for purpose.  I then assess my overarching risk assessment making changes if required. This has similarities to the quarterly and annual reviews that are done by management and Directors of a FSB to ensure that their businesses are meeting the regulatory framework and mitigating the risks that they face, in essence it’s just good corporate governance.

Diver OKThings do go wrong and no matter how good your policies, procedures, systems and controls are.  I have been in situations where I have had to shut down one side of my systems and controls due to sudden failure of a hose or regulator as well as having to rely on my old-fashioned gauges, watch and mental arithmetic when my computer has failed. It does not come down to luck that I am here writing this but that my risk assessments and planning have taken these situations into account.  My compliance monitoring has reduced these incidents and malfunctions to a minimum and I have put resources to the risks I face ensuring I am suitable trained and able to deal with incidents of this nature.

FSB’s that have a good corporate governance culture, a suitable compliance framework and a compliance monitoring programme that meets their needs and provides the required management information effectively, have in general survived the financial crisis and have adapted to business and regulatory changes with ease.  Where issues have surfaced they have been able to deal with them effectively and/or report at the earliest opportunity where required to the regulatory authorities or Financial Intelligence Unit.

(Pictures by kind permission of Colin Peters)

Briefing note 002- Trust Company Business On-Site Examination Findings from Jersey

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The Jersey Financial Services Commission (“JFSC”) has recently published its 2013 on-site regulatory examination findings in respect of Fiduciary business conducted in Jersey. These findings are pertinent to any financial service business, Compliance Officer and Money Laundering Reporting Officer (“MLRO”) in ensuring that they are adhering to the Guernsey regulatory framework. I believe that key points from the examination findings are as follows:

Evaluation of Suspicious Activity Report’s (“SAR’s”) and reporting to the Financial Intelligence Unit (“FIU”):

  • Delays in the acknowledgement of receipt of an internal SAR to the person disclosing.
  • Lack of detailed investigation by the MLRO to support the decision made.
  • Follow-up action resulting from internal reports not being undertaken or no evidence of follow-up action were noted.
  • Lack of autonomy by an MLRO and the decision to report to the FIU being made by Board rather than the MLRO.
  • Internal reports not being recorded accurately and being overlooked by the MLRO leading to late reporting to the FIU.

Corporate Governance:

  • Board discussions not being fully documented in some instances.
  • Concerns were identified in respect of the Board interaction, reporting lines and the functions of delegated risk committees of cross-divisional functions of a business.
  • Term’s of reference for delegated functions of the Board not being in place.

Business Risk Assessment (”BRA”) and Strategy:

  • Lacking details of the consideration of the following areas;
    • Organisational factors;
    • Jurisdiction of customers;
    • Underlying activities of Customers, including Politically Exposed Person risk;
    • Products and services specific to the business (third parties);
    • Delivery of those products and services;
    • Outsourcing risk to other branches or third parties and;
    • Not separating its BRA assessment from that of the Manager.

Conflicts of Interest:

  • No documented consideration of potential Conflicts of Interest where multiple licences are held and products are provided to customers who are common to both licenses.
  • Consideration and documentation of wider Conflicts of Interests, such as the investment in to customer structures by a Director.
  • Consideration of the risk where a significant shareholder of the business introduces customers.
  • Non-Executive Directors maintaining a direct relationship with a customer.
  • Conflicting roles of Compliance Officers the anti-money laundering function where the individuals also held a primary customer facing role.
  • Consideration of the impact of close staff relationships particularly at a senior level e.g. husband and wife.
  • Policies and procedures for declaring and monitoring were identified.

Compliance Function:

  • Inconsistent attendance at Board meetings by the Compliance Officer.
  • No separate reports in respect of Compliance and the anti-money laundering and combatting terrorist financing (“AML/CTF”) function.
  • Reports not containing the following;
    • Regulatory updates;
    • Progress of compliance monitoring;
    • Updated position on compliance registers, and;
    • Information on periodic reviews and accounting records.
  • In some cases there was a lack of documenting of matters brought to the attention of the Board.

Compliance Resourcing:

  • Back logs in periodic review cycle.
  • Delays in compliance monitoring
  • Not undertaking action in respect of regulatory updates.
  • Out of date policies and procedures
  • Ongoing projects and remedial work not completed.
  • Concerns in respect of the investigation and determination of SAR’s.
  • Meeting the day-to-day requirements of the compliance role, where the Compliance Officer or MLRO held other roles within the business.

Compliance Monitoring:

  • Compliance Monitoring Programme’s (“CMP’s”) task orientated rather than a schedule of testing of the operational procedures.
  • CMP’s not being seen or approved by the Board.
  • Ineffective reporting of the progress or completion of the CMP and of the remediation of compliance findings.
  • Compliance testing of the areas of the business lacking in detail.
  • Ineffective mapping of the business to the regulatory framework.

Business Acceptance Systems and Controls:

  • Procedures not being specific regarding the prescribed due diligence required for higher risk customers and business relationships.
  • Undertaking transactions prior to the acceptance of the customer by the Business.
  • The delay of obtaining verification documents and undertaking risk rating prior to the undertaking of customer transactions.

Customer Risk Management Systems and Controls:

  • Customer risk assessments not capturing fully the risks associated with customers or as detailed by the regulatory framework.
  • Customer risk assessment not capturing the risks identified by the business in the BRA.
  • Customer risk assessments not taking into account adverse information identified on the customer.
  • Weighting scores for risks not being appropriate to elevate overall the risk to high where required.
  • Lack of guidance to assist staff in the completion of the customer risk profile.

Customer Profile

  • Vague customer profiles not capturing the expected pattern and frequency of expected transactions.
  • Customer information held in various places rather than centrally.
  • Where the rationale for the business relationship was recorded as tax planning or mitigation, Licensee’s did not hold the relevant tax advice.

Politically Exposed Persons:

  • PEP’s being declassified contrary to the regulatory framework.
  • Immediate family members and close associates not being designated as PEP’s

In conclusion Licensees and the Boards must ensure that they have up to date compliance procedures, their functions are staffed and resourced appropriately and ensuring that they have suitable and sufficient management information for their compliance status being provided in a timely manner to them.  The role of the MLRO is coming more into focus with Regulators especially its assessment by the Board.  The MLRO function needs to be adequately resourced with a suitable and autonomous person, it is my opinion that this role will become more of a focus of regulatory visits and evidence of its review and suitability will required to be documented.  I would always advise that a separate compliance report and MLRO report is provided to the Board to ensure that matters are easily identifiable to the Board.  Conflicts of interest must be recorded and the risks assessed appropriately.   The BRA must take into account the risks that customers pose to the business and also the AML/CTF risks detailed by the regulatory framework and where they are not applicable they should be noted as such. What I believe is the most important finding to come out is, ensuring customer risk assessments and profiles are detailed and maintained ensuring that all risks are covered in the BRA.  I would advise that you assess your business to these findings and if any matters are found a remedial programme is put in place and signed off by the Board ensuring appropriate timescales and reporting is in place.

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Part of the Problem or Part of the Solution?

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One of the great things about compliance is that you get to assist licensees in creating and maintaining a suitable compliance framework. It is not just about meeting the regulatory requirements, part of the role is to also make a compliance framework that is suitable to also achieve the aims and objectives of the licensee’s business. I have worked as a compliance consultant, compliance officer and MLRO in the Regulated, Prescribed and Registered sectors of our financial services industry and each Licensee I worked for or provided advice to, was unique in its aims and objectives as were their products and services. For a Licensee to be successful in their business, aims and objectives as well as adherence to regulatory requirements, make up a bespoke compliance solution.

We are in an ever-changing business and regulatory climate, it’s not just the rules and the regulations that are changing but the approach the Commission takes in its supervision to Licensees. This leads to a real business problem for Directors in ensuring that their business meets the requirements and expectations of the Commission as well having to meet its own business aims and objectives. Compliance professionals can assist Licensees through their greater exposure to changes in industry practice and their exposure to the Commission and an understanding of the current supervision expectations. It’s really a no brainer having a compliance professional on tap and this will take away the worry of ensuring you are meeting the regulatory requirements and expectations while having a compliance framework that meets the aims and objectives of your business, or is it?

Having worked in many sectors of our financial services industry undertaking various roles to do with regulatory compliance and anti-money laundering and countering financing of terrorism does not mean that I am the font of all practical or theoretical knowledge in this area to be paid homage to and worshipped, I can assure you all I am not always right! Like everyone I am strong in some areas, adequate in others, and weak in a few (well maybe one or two). I always ensure that anything I undertake is something I can do well, and I believe it is refreshing to Directors when I turn round and tell them that what they are asking is out of my remit and refer them to compliance professional’s or experts who is more suitable. It is what compliance professionals and experts are there to provide isn’t it?

For compliance professionals contracts are their bread and butter.  This can lead them to grab everything that comes their way, with potentially their financial security coming at the expense of the quality of service and relations with a Licensee.  There is also the potential to obtain contracts for the financial security of the compliance professional rather than the financial best interest of the Licensee, leading to conflicts of interests.  I have previously advised Licensees to keep projects in-house due to the cost involved and more importantly that they were actually best placed to do the work themselves. It was great to be contacted later to be advised by the Licensee that they had decided that they were actually best placed to do the work and offered me a smaller contract which they did not have the expertise to undertake on their own.  Honesty means that Licensees will come back to you and also recommend your services, trust is a currency of the highest value.

Part of any compliance professional’s work is in writing and producing compliance documents and programmes to facilitate the Licensee’s compliance framework. It is all too easy for Licensees, who do not have the necessary compliance expertise in this area to unknowingly engage and pay for an all singing all dancing document that meets the regulatory requirements and some more, but won’t easily facilitate the achievement of the businesses aims and objectives. I once assisted a Licensee on review of the suitability of their compliance procedures that had been previously provided by a compliance professional. Their manual was at a very high level having a multitude of committees and quangos written into their procedures that would not be out-of-place in a global financial institution but totally unworkable for a firm that employed less than ten people locally and had a Board of six directors (inclusive of two employees). Though this document showed the theoretical prowess of the previous consultant, the manual was unworkable for the Licensee’s business and showed a lack of understanding of the regulatory framework. The Licensee had abandoned trying to follow the draconian requirements of this manual and had instead reverted to good industry practice, leading to the corporate governance headache of not following their own procedures. In this case the Licensee ended up paying twice to ensure that they had a suitable compliance procedures for their business.

Unfortunately there are compliance professionals out there who take on business they can’t service or do not have the expertise to manage effectively and/or facilitate adequately. There are compliance professionals who gold plate policies and procedures to impress their knowledge on the Licensee and obviously fail by not tailoring the policies and procedures to the business, leading to further costs being incurred by the Licensee. Unfortunately some compliance professionals negatively portray the Commission as a Vlad the Impaler archetype to scare Licensees into taking on unnecessary work due to potential misunderstanding of the rules or regulations or work the licensee would be best place to undertake themselves.

What can a Licensee do to minimise getting something that they do not require and ensure that they get the service they have paid for? It is all about doing your due diligence and I believe that the following points will be able to help a licensee.

  • Understand what knowledge and qualifications a compliance professional has.  They should be able to provide qualifications and a resume.
  • Get references or speak to previous customers of the compliance professional to get a feel of the suitability of the compliance consultant. The benefits of Guernsey is that it is quite easy to find out about people.
  • Talk to the compliance professional get a feel of their experience and knowledge, are they just about enhancing themselves, are they financially independent and are they interested in actually providing something that will enhance your business.
  • Is the compliance professional informing you as to potential or actual the regulatory issues or are they about scaring you into using their service.
  • Has the compliance professional got the capability and capacity? If it’s a firm is the actual person that will be undertaking work for you qualified, suitable and have the time?
  • Shop around with other compliance professional’s to see what they have to say about the work you need to be undertaken.

At the end of the day it is the Licensee and its Directors who are responsible for the suitability of their compliance framework and adherence to it, the Commission will hold them accountable for any failings regardless of who undertook the work. A compliance professional can be part of the problem if you do not do your due diligence on them or understand the needs of your business but, if you have done your research and you are aware of the requirements that you need to meet, they can definitely be part of the solution in achieving a suitable and sufficient compliance framework that meets the regulatory obligations, expectations and the business aims and objectives of the Licensee.

The need for effective reporting at Board level

The current financial crisis has brought many failings to the forefront, none more so than the failings of the Corporate Governance framework in businesses. The Corporate Governance framework allows for both business objectives and ethical drivers to be incorporated into a business whilst seeking to protect both the Business, its stakeholders and investors or customers. Are failings in Corporate Governance solely as documented in the newspapers and media reports down to the Board’s greed and disregard for its stakeholders, or was the compliance framework in these businesses defunct by opaque reporting by key functions?

We have been lucky in Guernsey to have been insulated from the crisis at large, but I know from experience and we all know from the Commissions industry presentations that Corporate Governance is a key regulatory theme that will be assessed on their regulatory visits to licensees, to assess the risk and reward culture of a business and assist in mitigating these risks successfully. While it has been acknowledged by the Commission that they believe that this is a healthy area, could there be licensees that have put together a good document but the statements made by them do not resemble their Business or their Business’s current prudential business plan or their current regulatory compliance status?

What must be remembered is that any Corporate Governance assessment undertaken by the regulator on a licensee will look at a multitude of documents and reports that make up the core of any Board meeting, such as compliance reports, risk mitigation, internal audit as well as the business plan. These reports must be factual, clear and concise and encompass the whole status of the business in order that the directors can evidence their oversight and rationale for their understanding of the business. Theses documents and reports must all fall into the Corporate Governance assessment by the Board of the Business.

Has the Board questioned the effectiveness of its compliance framework, from the Compliance monitoring programme to the actual board reports it receives? Has the Board allowed the compliance function and other key functions to provide an independent review or are these key functions in fear of upsetting the Board and reporting only what they deem the Board should know or focus on? The importance of independent, full and factual reporting by these key functions is of the up most importance. It is vitally important that those of us who undertake these key roles provide effective reporting on all areas of the Business so that the Board can discharge their obligations successfully. We must not be in fear of providing reports that show areas that require action or gaps as by doing so we only assist the Board in becoming ineffective.

I have been privileged to have worked for and with Boards who have proactively sought to allow their key functions to independently report to them allowing the Board to successfully document and encompass their key functions in to their Corporate Governance framework. This has assisted the Business in the formulation of strategy, goals and effective work practices. For those licensees who I have assisted in remedial work in this area, though it has been hard to start off with the end result has been commented on by these Boards as being beneficial to their Business, optimising understanding and discussion on current and future business opportunities, obligations and assisting in evidencing of why certain opportunities were not followed up.

In my experience the failings in a Business’s Corporate Governance framework are down to opaque and ineffective reporting by the Business’s key functions leading to the blind following the blind. Where ineffective compliance reporting or monitoring has been identified during a regulatory visit the Board are often criticised and this is generally reported by the Commission as a failure in Corporate Governance. While the business of the Business is vital the understanding of the Board as to its current regulatory compliance is as important and cannot be underestimated. If the Board are aware of issues that require to be enhanced or remediated it can deal with them, most of the time hand in hand with fulfilling its business objectives, but to be effective the Board must have the oversight by effective reporting.

The culture of Corporate Governance must not be seen as a tick box exercise or as a regulatory obligation that serves no practical use to a business. I would advocate that a good culture need not be expensive in time or cost but rather a tool to optimise the Business for all stakeholders. As stakeholders move from being passive the need to document and show your culture of Corporate Governance becomes more of a focal point in the overall success of your Business and its cost effectiveness, and in the next few blogs I will go more in to detail on this. An effective Corporate Governance framework adds to safeguarding a business by requiring effective reporting from the key functions allowing for the dynamism and entrepreneurial spirit that has become part of our industry to be exercised by the Board in the continual development of its products and services.

Introducing the Intermediary

There are many tools in Guernsey’s Anti-Money Laundering and Combatting Terrorist Financing framework (“AML/CTF”) that can be used to allow customers to access the financial services and products as efficiently and effectively as possible. One of the most interesting and often wrongly utilised of these tools is the intermediary route and I would like to try to de-mystify this tool for you.

An Intermediary is a Financial Service Business (“FSB”) who enters in to a business relationship with you on behalf of its client or clients. The FSB must meet the provisions as stipulated in The Handbook for Financial Services Business on Countering Financial Crime and Terrorist Financing (“the Handbook”) at chapter 6. For example the FSB must be either an Appendix C business or a wholly owned subsidiary vehicle of an Appendix C Business, a wholly owned pension trustee subsidiary vehicle of an Appendix C Business and Lawyers or Estate Agents operating in Guernsey for the purposes of purchasing Guernsey real estate, though the funds must have been received by a bank operating in an Appendix C jurisdiction or Guernsey Bank.

Not all FSB’s who are Appendix C businesses can be an Intermediary and it relates to the products and services that are sought and the type of FSB who requires these products and services, these are listed in the Handbook and chapter 6. It must be stressed for Fiduciaries that they can only be Intermediaries if they are licensed under the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc. (Bailiwick of Guernsey) Law 2000.

Where you have deemed that the FSB meets the requirements of the Handbook and is an Intermediary you can obtain reduced Customer Due Diligence. The Intermediary must confirm to you in writing that it has appropriate risk grading processes to differentiate between high and low risk clients, that it has effective policies and procedure to identify and verify Politically Exposed Person’s and obtain enhanced due diligence. The Intermediary must provide you with sufficient rationale in order that you can understand the purpose and the nature of the proposed business relationship and most importantly that Intermediary will only operate the account. You must assess that the Intermediary can undertake these obligations and requirements throughout the course of the business relationship.

When assessing an intermediary relationship I believe the key is who is authorised to provide you with instructions. If it is the underlying customer or customers who can provide you with instructions you have an introducer relationship and not an intermediary relationship. Where this is the case you must cease to treat the intermediary as such and obtain the required due diligence on the underlying customer or customers.

The current framework in Guernsey does not allow for Prescribed Businesses such as Guernsey Advocates to utilise the intermediary route, is this right? Advocates when conducting or preparing for transactions generally do so for other Appendix C Law firms, who must comply with international standards in AML/CTF. The Guernsey Advocates are generally acting on instructions from an Appendix C Law firm in preparing for transactions that are occurring outside Guernsey but involve Guernsey legal bodies, such as the issue of shares for a Guernsey entity listed on the AIM market or the purchase of a property held in a Guernsey legal body. The Appendix C law firm’s customer may not even be aware that a Guernsey Advocate firm is or has been engaged to assist or prepare for the transaction. I would contend that there is an argument that this route be opened up for Advocates to allow for the efficient and cost-effective provision of legal services to the international community and assist with promoting Guernsey as a destination for business and also for the use of Guernsey legal bodies.

Introducer Certificates the Pro’s and Con’s

Does anyone else find it so frustrating to constantly provide client due diligence when accessing financial services products or even when accessing legal services?  Is this constant due diligence treadmill stopping us and potentially our clients from accessing products and services?  I personally feel that this is unfortunately the case and in some cases I am aware that this has caused clients to utilise other jurisdictions or miss out on investment or business opportunities.  I believe that there is a solution to this which could add to the attraction of Guernsey as a place to do business as well as allowing clients greater access to the products and services that can be offered.

The current solution is that the regulated or registered business can if the introducer meets the requirements of an Appendix C business, utilise the introducer regime as stipulated by the Guernsey Financial Services Commissions (GFSC).  This allows the registered or regulated business to rely on a certificate confirming identity while promising that the due diligence they hold and maintain meets the Guernsey requirements and will be provided when requested from the regulated or registered business.  The regulated or registered business then has to test the introducer throughout the life of the business relationship, to ensure that the introducer can meet the obligations of the introducer certificate and that the due diligence does meets the Guernsey standards. The unfortunate downfall of this system is that sometimes an introducer won’t adhere to the obligations of the introducer certificate or requirements of the rules governing due diligence in Guernsey leaving the regulated or registered business with quite a headache, and remedial work to undertake.

Where an introducer provides clients to regulated or registered business by the use of introducer certificate, for example an IFA providing 300 clients to invest in various Funds at a Guernsey Fund provider, the introducer can become disillusioned with Guernsey and the regulated or registered business when year on year they receive requests to provide the copies of due diligence for a selection of these clients introduced by them.  This is a burdensome process for the introducer, taking them away from their business, only to provide documentation for which they can not necessarily recover the cost from their client.  Unfortunately some will not want to or be willing to keep their obligations, leading to problems for the regulated or registered business.  The solution to this problem is to undertake a 100% testing programme where copies are provided to the receiving regulated or registered business with the introducer form.  There is only the need to periodically on a risk based approach go back to the introducer to confirm that the clients details have not changed during the life of the business relationship, such as the address, and if the details have changed that the copies of the updated due diligence are provided.  Undertaking this approach allows the regulated or registered business potentially less risk as the due diligence will already have been assessed and deemed suitable at the start of the business relationship and less risk of the introducer not subsequently meeting or adhering to their obligations by not providing the required due diligence. This allows for beneficial relationships to develop between the regulated or registered business and the enhancement of Guernsey as a place to do business.

Where clients have a business relationship with a regulated or registered business that is over a period of years, rather than a one off legal transaction where the business relationship is only for a matter of days or weeks.  If the introducer sells these clients during the course of the business relationship to another provider or is taken over, new introducer certificates will have to be obtained by the registered or regulated business or the clients will need to provide due diligence in order that the rules of the GFSC can be met.  Therefore I would always recommend for these longer term business relationships that due diligence is obtained rather than relying on the introducer certificate.

The rules issued by the GFSC state that clients who are introduced cannot then be introduced again by the regulated or registered business e.g. no introducer chains.  This can lead to the issues of a regulated or registered business unknowingly becoming involved in an introducer chain and having then to obtain the client due diligence, which can have an adverse effect on the business relationship with the client and the relationship with the introducer.  This also has the potential for higher cost to the client or loss of earnings by not being able to access an investment product to take advantage of price and in the worst case scenario the client may miss the investment opportunity altogether.

But what if Guernsey could offer a due diligence depository overseen by a regulating authority subject to stringent audits? Just think if clients provided their due diligence to this depository who then ensured that it met the regulatory standards, could this avoid altogether the need to obtain copies of due diligence or have a testing programme?  This depository could then provide registered or regulated businesses with an introducer certificate which would be more reliable and there would be less potential of unknowingly becoming part of an introducer chain or finding out the introducer was unable to meet its obligations. Could this reduce compliance cost to a regulated business and make Guernsey more competitive, the Jurisdiction of choice? Clients would be able to access products and services offered by other regulated or registered business with ease and certainty without suffering from the due diligence treadmill. Why stop at just offering this service to local registered and regulated businesses why not take an international approach and service other jurisdictions.  This could then lead to an enhancing of our economy while diversifying it at the same time.  We have all the right ingredients in Guernsey to undertake this opportunity we just need the political want to do this. But until my utopia happens please think carefully about the use of introducer certificates, sometimes it is actually easier and more beneficial for a registered or regulated business to get original due diligence and can save time money and cost in man hours to undertake the monitoring and any remedial work.

Getting the right fit for the BRA

Being the holiday season its time to sit back relax and take stock of all that has happened in 2013. Time for any Compliance professional to take stock of the year and to review the key business documents of a licensee and assess if they remain fit for purpose or need to be enhanced.

One such document that requires to be reviewed at least annually is the Business Risk Assessment (BRA) to ensure it is fit for the regulatory framework and the Licensee.  The BRA though is a document  that licensees struggle with and the Guernsey Financial Services Commission (Commission) constantly find as deficient. What lessons can we learn that will allow our 2014 BRA’s to be fit for the licensee and for the rules and regulations?

Essentially the BRA is a high level overarching document that the Board of a licensee must have in place. It evidences what the business is about, identifies the risks associated with its products and services, clients and the jurisdictions that it undertakes business in or through. The Commission have commented on how these documents tend to fall short of the mark, being generic, over simplified and not representative of the licensee.

Whenever I re-draft or assist a licensee with a BRA I take the approach of creating a document that tells the story of the licensee ensuring that it flows into the policies, procedures and forms. I use the BRA to create the framework from which the licensee’s policies and the procedures enlarge upon and stipulate the full requirements of the licensee requirements and the regulatory framework.

My BRA’s look at what the licensee business plan is, the Money Laundering, Bribery and Corruption and Terrorist Financing (ML/BC/TF) risks that the business is exposed to from following its business plan. I then look at how the licensee will mitigate the risks by the implementation of its policies, periodic reviews and training. How it will differentiate its high risk’s from its low risk’s to ensure that a risk based approach can be applied successfully and cost effectively. My BRA’s look at how the Board will be kept informed of the ML/BC/TF risks and what their responsibilities are, from ensuring policies and staff are sufficient to  how they will review the existing and new business.

Licensees often complain that I am stating the obvious in my BRA’s, that the BRA will not stop a criminal or terrorist and so add little to no value to a business. The BRA is not about stopping criminals but assisting in their identification and prevention of a licensee being an unwitting conduit for them, criminals will always seek to abuse the financial system to their own ends. Unfortunately though licensees will be unknowingly utilised by criminals and they, their clients and insurers may suffer reputation loss and in the worst cases material loss. A licensee can never negate these risks in all cases, though the BRA does allow a business to protect itself, and so adds value.

We live in a contentious and litigious society, it is now not the case that a crime has to have been committed, but has a licensee done enough to reduce the possibility of a crime occurring or to protect against being a conduit in a crime as required by the regulatory framework.  The Commission whether on a regulatory visit or dare I say it, when things have gone wrong and Lawyers and Advocates are involved they will review the BRA intently to assess if a licensee has acted recklessly by not assessing or identifying the risks posed by their business. It goes without saying that a licensee who has considered in-depth the risks posed by the business activities and the preventative measures that they have employed (stating the obvious) is going to be treated more sympathetically than a business who did not evidence their consideration of the risks that they faced.

There have been numerous regulatory cases over the last few years that were not about ML/BC/TF having occurred but that licensee’s did not have suitable and sufficient policies or information at hand for the Board or the MLRO to consider and mitigate the risks posed and inherent in their business.  If you need help in assessing or redrafting your BRA the Commission has guidance on what they deem are the minimum requirements. You can ask Consultants to review your BRA and provide suggestions if required. You can simply ask around your fellow peers to see if they can assist or provide guidance.

It must be remembered that the Board of a licensee must take full responsibility and can’t contract out of their responsibility for having a suitable BRA. The Board and the MLRO must ensure that the BRA is fit for purpose and identifies and mitigates the risks while evidencing the preventative measures, and most importantly meets the regulatory requirements. The Compliance professional is only there to suggest what they believe is suitable in how the Licensee has evidence the consideration of the risks that it faces.

Over the course of 2013 a licensee’s business, the risks posed by clients,  products and services it offers inclusive of the jurisdiction that they are associated with or their clients are associated with will have changed.  Now is the perfect time to take stock of the current status of the licensee, its future intentions and go forward in to 2014 with the risk duly considered and mitigated.

Merry Christmas one and all.