Arrangement

A LAW to amend further the Insurance Business (Jersey) Law 1996.

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

“ ‘code of practice’ means a code of practice under Article 42;”;

“ ‘compliance officer’ means a person so designated, under a code of practice, by a permit holder and having the function of monitoring whether the law of Jersey, and the codes of practice, are being complied with in the conduct of the business in respect of which the permit holder holds a permit;”;

“ ‘key person’ means a person employed or otherwise engaged by a permit holder as an officer of any one or more of the following classes in relation to the conduct of the business in respect of which the permit holder holds a permit –

(a)     compliance officer;

(b)     money laundering compliance officer;

(c)     money laundering reporting officer;”;

“ ‘money laundering compliance officer’ means a person employed or otherwise engaged by a permit holder to be in charge of monitoring whether the law of Jersey relating to money laundering is being complied with in the conduct of the business in respect of which the permit holder holds a permit;”;

“ ‘money laundering reporting officer’ means a person employed or otherwise engaged by a permit holder to receive reports from employees of the permit holder in relation to activities that may constitute money laundering and come to the attention of the employees in the conduct of the business in respect of which the permit holder holds a permit;”;

“ ‘public statement’ means a public statement issued under Article 43;”;

“ ‘vary’ includes amend, replace and revoke.”;

“ ‘relevant supervisory authority’, in relation to a country or territory outside Jersey, means an authority discharging in that country or territory any function that is the same as, or similar to, a function of the Commission;”.

“(2)    Regulations made under this Article may include provisions that exclude or modify the effect of the Regulations on any other enactment which is expressed to have effect in relation to insurance business to which Article 5 applies.”.

“(d)    the applicant or any person employed by or associated with the applicant for the purposes of the applicant’s business has been convicted of –

(i)      an offence (whether under the law of Jersey or of a country or territory outside Jersey) involving fraud or other dishonesty,

(ii)      an offence under –

(A)    this Law,

(B)     the Banking Business (Jersey) Law 1991[2],

(C)     the Collective Investment Funds (Jersey) Law 1988[3],

(D)    the Financial Services (Jersey) Law 1998[4],

(E)     any Regulation or Order made under any of those Laws,

(iii)     any offence similar to those listed in clause (ii) under the law of a country or territory outside Jersey,

(iv)     where clause (ii) or (iii) does not apply, an offence under any enactment (whether of Jersey or of a country or territory outside Jersey) relating to building societies, companies, consumer credit, consumer protection, credit unions, friendly societies, industrial and provident societies, insider dealing, insolvency, insurance, money laundering or terrorist financing, or

(v)     an offence (whether under the law of Jersey or of a country or territory outside Jersey) of perjury or conspiracy to pervert the course of justice;”;

“(g)    in the case of a Category A permit, the Commission is not satisfied as to the adequacy of the supervision by the supervisory authority in the jurisdiction outside Jersey in which the applicant is authorized to carry on business in terms of paragraph (2)(a);

(h)     the person who is the applicant has failed to comply with a direction given to the person at any time under Article 28 or 36;

(i)      the Commission has reason to believe that there has been a failure on the part of the applicant to follow a code of practice.”;

“7A   Display of permit and conditions

(1)     When the Commission grants a permit to an applicant under Article 7(1) it may give that person notice in writing of the manner in which that person shall display or otherwise make available to members of the public –

(a)     that permit, or the information contained in the permit, or both; and

(b)     a record of such conditions as the Commission may specify, being conditions –

(i)      to which the person’s permit is subject under Article 7(1), or

(ii)      to which the person’s permit is subject by virtue of an Order under Article 7(8).

(2)     Where the Commission varies or attaches any new condition to the grant of a permit under Article 7(5) it may give the holder of the permit notice in writing of the manner in which that person shall display or otherwise make available to members of the public a record of that condition as varied or the new condition, as the case may be.

(3)     The Commission may at any time vary any requirement in any notice it has given under paragraph (1) or (2) by further notice to the holder of the permit.

(4)     Without prejudice to the generality of paragraphs (1), (2) and (3), a notice under any of those paragraphs may require the permit, information or record of conditions, as the case may be, to be displayed at any address at which the holder of the permit carries on insurance business or to be published on the internet, or both.

(5)     A notice under paragraph (1) shall take effect on such date as is specified in the notice.

(6)     A notice under paragraph (2) or (3) shall take effect in accordance with Article 8A.

(7)     A holder of a permit who carries on insurance business in breach of any requirements in a notice given under this Article which have effect in relation to that business shall be guilty of an offence and liable to a fine of level 2 on the standard scale.”.

“8      Notice of acts and reasons

(1)     The Commission shall give notice as follows –

(a)     if under Article 7 it refuses to grant a permit, it shall give notice to the applicant for the permit;

(b)     if under Article 7 it cancels a permit, it shall give notice to the person named in the permit as the permit holder;

(c)     if under Article 7, it attaches a condition to the grant of a person’s permit or, at any time after the grant of a person’s permit, it attaches an additional condition to the permit, or varies a condition attached to the permit, it shall give notice to the person;

(d)     if under any Order under this Law it refuses consent, refuses approval, or imposes a requirement, it shall give notice to the relevant permit holder.

(2)     A notice required under this paragraph (1) shall –

(a)     set out the terms of the refusal, cancellation, attachment of conditions, or variation of conditions, of which it is notice;

(b)     in the case of the attachment of conditions, set out also the terms of the conditions;

(c)     in the case of the variation of conditions, set out also the terms of the conditions as so varied;

(d)     give the reasons for the refusal, cancellation, attachment or variation (except to the extent that the refusal, cancellation, attachment or variation is made on the application of the relevant permit holder); and

(e)     give particulars of the rights of appeal conferred by Article 9.

(3)     A notice imposing a requirement under Article 7A or 25, a notice of an objection and direction under Article 23, or a notice under Article 36(6) of refusal of an application in whole or in part, shall –

(a)     give the reasons for the imposition of the requirement, the objection and direction or the refusal; and

(b)     give particulars of the rights of appeal conferred by Article 9.

(4)     A notice of a direction under Article 28 or 36 shall –

(a)     give the reasons for the giving of the direction;

(b)     specify when the direction is to have effect;

(c)     give particulars of the provisions of Article 36(5) and (6); and

(d)     give particulars of the rights of appeal conferred by Article 9.

(5)     If under this Article the Commission is required to give reasons in a notice, that requirement shall not require the Commission –

(a)     to specify any reason that would in the Commission’s opinion involve the disclosure of confidential information the disclosure of which would be prejudicial to a third party; or

(b)     to specify the same reasons, or reasons in the same manner, in the case of notices to different persons about the same matter.

8A     Delay in taking effect

(1)     Any of the following acts of the Commission shall not take effect until one month after notice of them is given under this Law, such date as is specified in the notice, or, if an appeal under this Law is lodged against the act or the decision relating to the act, before the appeal is determined by the Court or withdrawn, whichever is the latest time –

(a)     the imposition of a requirement under Article 7A(2) or (3) or Article 25(4);

(b)     the cancellation of a permit under Article 7;

(c)     the attachment under Article 7 of an additional condition to a person’s permit, or variation under that Article of the conditions attached to a person’s permit, at any time after the grant of the permit;

(d)     an objection and direction under Article 23.

(2)     Paragraph (1) shall not however have effect if –

(a)     the persons entitled to notice of the act agree with the Commission that the act take effect at a time earlier than the time that would apply under paragraph (1); or

(b)     the Court orders otherwise under paragraph (3).

(3)     If, on the application of the Commission, the Court is satisfied that it is in the best interests of persons with whom a permit holder has transacted or may transact insurance business that paragraph (1) should not have effect, or should cease to have effect in a particular case, or that the period specified in paragraph (1) should be reduced, the Court may so order.

(4)     An order under paragraph (3) may be made without prior notice to and without hearing the permit holder, or any other person, concerned.

(5)     An order under paragraph (3) shall have immediate effect, but any person aggrieved by the order may apply to the Court to vary or set aside the order.

(6)     In respect of an application under paragraph (3), the Court may make such order as it thinks fit, and in respect of an application under paragraph (5), the Court may make such order in respect of the relevant order under paragraph (3) as it thinks fit.

9        Appeals

(1)     A person aggrieved by an act of the Commission, being –

(a)     the imposition of a requirement under Article 7A or 25;

(b)     a refusal, or cancellation, under Article 7 of a permit;

(c)     the attachment under Article 7 of a condition to the grant of a person’s permit or of an additional condition to a person’s permit, or variation under that Article of the conditions attached to a person’s permit;

(d)     an objection and direction under Article 23;

(e)     the giving of a direction under Article 28 or 36;

(f)      the refusal of an application under Article 36(5) or granting of such an application only in part; or

(g)     a refusal of consent, refusal of approval, or imposition of a requirement, under any Order under this Law,

may appeal to the Court, in accordance with this Article, against that act.

(2)     An appeal under paragraph (1) may be made only on the ground that the act appealed against was unreasonable having regard to all the circumstances of the case.

(3)     A person’s appeal under this Article shall be lodged with the Court no later than the day that is one month after the day on which notice was served on the person of the relevant act.

(4)     On an appeal under this Article, the Court may make such interim or final order as it thinks fit.

(5)     If an appeal is made under paragraph (1)(e) with respect to a direction that makes a requirement referred to in Article 36(2)(c) or (d), the direction shall have no effect until the appeal is determined by the Court or withdrawn.

(6)     In other cases, an appeal made under paragraph (1)(e) with respect to a direction shall not suspend the operation of the direction.

(7)     An appeal made under paragraph (1)(f) in relation to an application under Article 36(5) shall not suspend the operation of the direction in connection with which the application was made.

9A     Commission may apply to Court for appointment of manager in prescribed circumstances

(1)     The Minister may, by Order on the recommendation of the Commission, prescribe circumstances in which the Commission may apply to the Court for the appointment by the Court of a person to manage the affairs, or any part of the affairs, of persons in so far as they relate to the carrying on of insurance business to which Article 5 applies.

(2)     An Order made under paragraph (1) may contain such incidental or supplementary provisions as the Minister thinks necessary or expedient.

(3)     The Court may, on an application made to it by the Commission in circumstances prescribed in an Order made under paragraph (1), appoint, on such terms as it considers to be appropriate, a person to manage the affairs, or any part of the affairs, of a person in so far as they relate to the carrying on of insurance business to which Article 5 applies.

(4)     Subject to the terms of his or her appointment, a person appointed under paragraph (3) shall have all the powers necessary to manage the affairs, or the part of the affairs, of the person in respect of whom the appointment was made in so far as they relate to the carrying on of insurance business to which Article 5 applies.”.

“(ii)    to require that person, or any other person who is or was at any time a director, chief executive, key person or auditor of, a shareholder controller in relation to, or an employee employed by, the permit holder, to provide an explanation of any of them; or”.

“23    Approval of directors, etc. in relation to Category B permit holders

(1)     Subject to paragraph (2), a permit holder to which this Article applies shall, before the end of the period of 14 days beginning with the day on which he or she becomes aware that any person has become or is about to become, or has ceased to be, a director, chief executive, key person or shareholder controller in relation to the permit holder, give written notice to the Commission of that fact.

(2)     This Article applies to a Category B permit holder.

(3)     Article 6(1)(a) to (d) shall apply to a notice under paragraph (1) as it applies to an application for a permit.

(4)     A notice under paragraph (1) that a person has ceased to be a director, chief executive, key person, or shareholder controller, in relation to a permit holder shall include a statement of the reasons for the change.

(5)     The Commission may, by notice in writing, require a permit holder to provide, by a specified date, specified information or documents (or information or documents within specified classes) about a person in respect of whom –

(a)     notice has been given under paragraph (1) that he or she has become or is about to become a director, chief executive, key person, or shareholder controller, in relation to the permit holder; or

(b)     notice has been given under Article 25(3) or (5) that he or she has been appointed as the permit holder’s actuary,

or about any other matter, in order for the Commission to decide whether to serve a notice of objection under paragraph (6).

(6)     If it appears to the Commission at any time, on the information before it (and having regard particularly to the criteria for refusal of an application set out in Article 7(4)), that a person who –

(a)     has become or is about to become a director, chief executive, key person of any particular class, or shareholder controller, in relation to the permit holder; or

(b)     has been appointed as the permit holder’s actuary,

is not a fit and proper person to be (as the case requires) a director, chief executive, key person of that class, or shareholder controller, in relation to the permit holder, or the permit holder’s actuary, the Commission shall serve on the person and on the permit holder a written notice of objection, directing that the person shall not, as the case requires –

(i)      continue to be, or become, a director, chief executive, key person of the particular class, or shareholder controller, in relation to the permit holder; or

(ii)      continue to be the permit holder’s actuary.

(7)     If a permit holder fails to give notice under paragraph (1) or Article 25(3) or (5) about a person or fails to comply with a notice under paragraph (5) about a person, the Commission may serve on the person, and on the permit holder, a written notice of objection, directing that the person in question shall not, as the case requires –

(a)     continue to be, or become, such a director, chief executive, key person of the particular class, or shareholder controller in relation to the permit holder; or

(b)     continue to be the permit holder’s actuary.

(8)     A permit holder who –

(a)     fails to give notice in accordance with paragraph (1); or

(b)     fails to comply with the requirements of a notice under paragraph (5),

shall be guilty of an offence.

(9)     A person who –

(a)     becomes (as the case requires) a director, chief executive, key person of a particular class, or shareholder controller, in relation to a permit holder; or

(b)     continues to be (as the case requires) a director, chief executive, key person of a particular class, or shareholder controller, in relation to a permit holder or continues to be a permit holder’s actuary,

following service on him or her of a notice of objection under paragraph (6) or (7) in that connection, shall be guilty of an offence.

(10)    A person guilty of an offence under paragraph (8) or (9) shall be liable to imprisonment for a term of 6 months and to a fine.”.

“(4)    A person appointed under paragraph (1) shall have such duties and responsibilities as may be prescribed and where such person contravenes or fails to comply with any Order made under this paragraph, the Commission may, by notice in writing, require the permit holder to terminate his or her appointment within such period as the Commission may specify in the notice.”;

“(6)    The Commission may, by notice in writing, require the permit holder to cause the person appointed under paragraph (1) to take such action as the Commission may specify in the notice within such period as the Commission may specify in the notice.”.

“(1A) A direction under this Article may be of unlimited duration or of a duration specified in the notice of the direction.

(1B)   The power to give directions under this Article shall include the power by direction to vary a direction given under this Article.”.

“(2)    Article 29 does not preclude the disclosure of information for the purpose of enabling or assisting a relevant supervisory authority to exercise any of its supervisory functions.”.

“;

(d)     to a person by the Commission showing whether or not any person holds a permit under this Law, including any conditions to which that permit is subject under Article 7(1) or 7(5).”.

“36    Power to issue directions

(1)     If it appears to the Commission that –

(a)     any requirements in relation to a person’s holding of a permit are no longer satisfied;

(b)     it is in the best interests of persons with whom a permit holder has transacted or may transact insurance business, or in the best interests of creditors of a permit holder;

(c)     it is in the best interests of one or more permit holders;

(d)     it is desirable in order to protect the reputation and integrity of Jersey in financial and commercial matters; or

(e)     it is in the best economic interests of Jersey,

the Commission may, whenever it considers it necessary, give, by notice in writing, such directions as it may consider appropriate in the circumstances.

(2)     Without prejudice to the generality of paragraph (1), a direction under this Article may –

(a)     require anything to be done or not to be done, or impose any prohibition, restriction or limitation, or any other requirement, and confer powers, with respect to any transaction or other act, or to any assets, or to any other thing whatsoever;

(b)     require that a director, chief executive, shareholder controller, key person, or person having functions, in relation to a permit holder, be removed or removed and replaced by another person acceptable to the Commission;

(c)     require that any individual –

(i)      not perform a specified function (or any function at all) for,

(ii)      not engage in specified employment (or any employment at all) by, or

(iii)     not hold a specified position (or any position at all) in the business of,

a specified permit holder (or any permit holder at all);

(d)     require a permit holder or former permit holder to cease operations and to wind up his or her affairs, in accordance with such procedures and directions as may be specified in the direction, which may provide for the appointment of a person to take possession and control of all documents, records, assets and property belonging to or in the possession or control of the permit holder or former permit holder;

(e)     prohibit the issue, re-issue or continuance of a particular advertisement for insurance;

(f)      require that any particular advertisement for insurance be modified in a specified manner;

(g)     prohibit the issue, re-issue or continuance of advertisements (for insurance) of any description; or

(h)     require that advertisements (for insurance) of any description be modified in a specified manner.

(3)     A direction under this Article may be of unlimited duration or of a duration specified in the notice of the direction.

(4)     The power to give directions under this Article shall include the power by direction to vary a direction given under this Article.

(5)     Any person to whom a direction is given under this Article may apply to the Commission to have it withdrawn or varied and the Commission shall withdraw or vary the direction in whole or in part if it considers that there are no longer any grounds under paragraph (1)(a) to (e) that justify the direction or part of the direction concerned.

(6)     If the Commission refuses an application under paragraph (5), or grants such an application only in part, it shall give notice in writing of that fact to the applicant.

(7)     A person who fails to comply with a direction in respect of which notice is given under paragraph (1) to the person shall be guilty of an offence and liable to imprisonment for a term of 2 years and to a fine.”.

“(3)    Regulations made under this Law may contain such transitional, consequential, incidental or supplementary provisions as appear to the States to be necessary or expedient for the purposes of the Regulations.

(4)     The power to make Orders, or the power to make Regulations, under this Law may be exercised –

(a)     either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case; and

(b)     so as to make, as respects the cases in relation to which it is exercised –

(i)      the full provision to which the power extends or any lesser provision (whether by way of exception or otherwise),

(ii)      the same provision for all cases in relation to which the power is exercised, or different provision for different cases or classes of case, or different provision as respects the same case or class of case for different purposes of the Order or Regulations,

(iii)     any such provision either unconditionally or subject to any specified condition.”.

“(b)    amend any such code.”.

“43    Public statement

(1)     The Commission may issue a public statement concerning a person if that person appears to the Commission to have contravened any of the following –

(a)     Article 5(2);

(b)     Article 7;

(c)     Article 15;

(d)     Article 35;

(e)     Article 36;

(f)      Article 38;

(g)     a Regulation, or an Order, made under this Law.

(2)     The Commission may issue –

(a)     a public statement with respect to, or setting out, any direction that the Commission has given under Article 28 or 36;

(b)     a public statement concerning a person if that person appears to the Commission to have failed to comply with a code of practice; or

(c)     a public statement concerning a person if the Commission believes that the person is carrying on insurance business, whether in Jersey or elsewhere, and it appears to the Commission to be desirable to issue the statement –

(i)      in the best interests of persons who have transacted or may transact insurance business with the person, or

(ii)      in the best interests of the public.

43A   Notice of public statement

(1)     If a public statement identifies a permit holder, the Commission shall serve notice on the person.

(2)     If a public statement identifies any person who does not hold a permit, and at any time before the Commission issues the public statement it is reasonably practicable for the Commission to serve notice on the person, the Commission shall do so.

(3)     A notice under paragraph (1) or (2) shall –

(a)     give the reasons for issuing the statement;

(b)     give the proposed or actual date of issue of the statement;

(c)     contain a copy of the statement;

(d)     give particulars of the right of appeal under Article 43C in respect of the statement; and

(e)     if the statement is issued, in accordance with a decision under Article 43B(3), before the day specified in Article 43B(1) in relation to the statement, give the reasons for issuing it before that day.

(4)     Paragraph (3) shall not require the Commission –

(a)     to specify any reason that would in the Commission’s opinion involve the disclosure of confidential information the disclosure of which would be prejudicial to a third party; or

(b)     to specify the same reasons, or reasons in the same manner, in the case of notices to different persons about the same matter.

(5)     In this Article and Articles 43B and 43C, a reference to the identification of a person in a public statement does not include the identification, in the statement, of the Commission or of any other person in their capacity of exercising functions under this Law.

43B   Notice period

(1)     If service is required under Article 43A(1) or (2) in relation to a public statement, the Commission shall not issue the public statement earlier than the expiration of one month following the date of the last such service in relation to the public statement.

(2)     Paragraph (1) shall not apply if –

(a)     each of the persons identified (within the meaning of Article 43A) in the relevant public statement agrees with the Commission that the statement may be issued on a date earlier than the date that would apply under that paragraph; and

(b)     the statement is in fact issued on or after the earlier date.

(3)     Paragraph (1) shall not apply if –

(a)     the Commission decides on reasonable grounds that the interest of the public in the issue of the relevant public statement on a date earlier than the date that would apply under that paragraph outweighs the detriment to the persons identified in the statement, being the detriment attributable to that earliness; and

(b)     the statement is in fact issued on or after the earlier date.

(4)     In making a decision under paragraph (3), the Commission is not prevented from choosing as the date of issue of a public statement the date of service (if any) of notice of the statement.

(5)     Despite this Article, if an appeal is made to the Court under Article 43C(1), and the Court orders that the statement not be issued before any specified date or event, the Commission shall not issue the statement before the date or event so specified.

(6)     In a case to which paragraph (1) applies, if an appeal is made under Article 43C(2) to the Court against a decision to issue a public statement, the Commission shall not issue the statement before the day on which that appeal is determined by the Court or withdrawn.

43C   Appeals and orders about public statements

(1)     A person aggrieved by a decision of the Commission under Article 43B(3) may appeal to the Court, in accordance with this Article, against the decision.

(2)     A person aggrieved by a decision of the Commission to issue a public statement that identifies the person may appeal to the Court, in accordance with this Article, against the decision.

(3)     An appeal under paragraph (2) may be made only on the ground that the decision of the Commission was unreasonable having regard to all the circumstances of the case.

(4)     A person’s appeal under this Article shall be lodged with the Court, no later than –

(a)     if notice is served on the person under Article 43A in relation to the public statement, the day that is one month after the date of the last such service on the person in relation to the public statement; or

(b)     if no such notice is served on the person, the day that is one month after the issue of the public statement.

(5)     Nothing in paragraph (4) prevents the lodging of an appeal, before a notice is served or a public statement is issued.

(6)     On an appeal under this Article, the Court may make such interim or final order as it thinks fit, including an order that the Commission not issue the relevant public statement or, if the public statement has been issued, that the Commission issue a further public statement to the effect set out in the order or stop making the statement available to the public.”.

“44    Service of notices

(1)     No notice or other document required by this Law to be given to the Commission shall be regarded as so given until it is received.

(2)     Subject to paragraph (1), any notice or other document required or authorized by or under this Law to be given to the Commission may be given by facsimile, electronic transmission or by any similar means that produces a document containing the text of the communication in legible form or is capable of doing so.

(3)     Any notice, direction or other document required or authorized by or under this Law to be given to or served on any person other than the Commission may be given or served on the person in question –

(a)     by delivering it to the person;

(b)     by leaving it at the person’s proper address;

(c)     by sending it by post to the person at that address; or

(d)     by sending it to the person at that address by facsimile, electronic transmission or other similar means that produces a document containing the text of the communication in legible form or is capable of doing so.

(4)     Any such notice, direction or other document may –

(a)     in the case of a company incorporated in Jersey, be served by being delivered to its registered or principal office;

(b)     in the case of a partnership, company incorporated outside Jersey or unincorporated association, be given to or served on a person who is a principal person in relation to it, or on the secretary or other similar officer of the partnership, company or association or any person who purports to act in any such capacity, by whatever name called, or on the person having the control or management of the partnership business, as the case may be, or by being served on the person or delivered to the person’s registered or administrative office.

(5)     For the purposes of this Article and of Article 7 of the Interpretation (Jersey) Law 1954[5] in its application to this Article, the proper address of any person to or on whom a notice, direction or other document is to be given or served by post shall be the person’s last known address, except that –

(a)     in the case of a company incorporated in Jersey, or its secretary, clerk or other similar officer or person, it shall be the address of the registered or principal office of the company in Jersey; and

(b)     in the case of a partnership, or a person who is a principal person in relation to a partnership, it shall be that of its principal office in Jersey.

(6)     If the person to or on whom any notice, direction or other document referred to in paragraph (3) is to be given or served has notified the Commission of an address within Jersey other than the person’s proper address within the meaning of paragraph (5), as the one at which the person or someone on the person’s behalf will accept documents of the same description as that notice, direction or other document, that address shall also be treated for the purposes of this Article and Article 7 of the Interpretation (Jersey) Law 1954 as the person’s proper address.”.