insufficient evidence to make any factual findings under the
Financial Service Providers (Registration and Dispute Resolution)
breached natural justice in failing to disclose key facts
behind the deregistration, in particular an overseas article
suggesting Vivier had been accused of tax fraud in Ireland. The FMA
did not include reference to this article in its notice to
The FMA is required to disclose all relevant information behind
a decision to deregister and must provide the FSP with a cogent and
clear explanation of its reasons – standards the Court found
were not met in this instance.
The Court also considered it insufficient for the FMA to
deregister an FSP in sole reliance on the fact that it does not
provide services in or from New Zealand. By law, FSPs with a place
of business in New Zealand must be registered even if all their
financial services are provided overseas. Chapman Tripp's
commentary – FMA's deregistration powers constrained by
natural justice – is available
The FMA's appeal argues that the article was not the key
reason for the deregistration and that the evidence was that Vivier
used their office infrequently and had not filed financial
documents for the year leading up to the FMA's inquiry.
It has also drawn the Court's attention to
Excelsior Markets Ltd v FMA in which the High Court upheld
FMA's decision to deregister Excelsior Markets, a
Pakistani-owned foreign exchange firm, on the basis that
"most, if not all" of Excelsior Markets'
financial services were provided outside New Zealand.
In Excelsior, the Court agreed with Brewer J's comments in
Vivier that the purpose of the Act was to prevent offshore FSPs
using the New Zealand registration system to improve their
reputations by misrepresenting to consumers that they are licensed
under and/or regulated by New Zealand law in such a way as harms or
is likely to harm New Zealand's reputation.
Excelsior Markets had acknowledged that "international
investors were quite likely to see New Zealand as a well regulated
investment environment and to see advantages to dealing with a New
Zealand-based and registered financial service provider ... this
was seen as a competitive advantage in marketing
We believe a jurisdictional test which required the carrying on
of business from within New Zealand is more appropriate as it would
ensure entities must have a genuine connection to New
Zealand before they could sustain a registration.
Our submissions also:
support the FMA having the power to direct the Registrar to
oppose the strengthening of the FMA's powers in a way which
diverges from the fundamental question of whether an entity is
entitled to be registered, and
support the requirement for overseas companies to disclose the
status of their registration.
The committee set up to draft a Code on Resolution of Financial Firms, by the Ministry of Finance, Government of India, on September 28, 2016, released a draft bill – The Financial Resolution and Deposit Insurance Bill, 2016...
In a race to adopt technology innovations, Banks have increased their exposure to cyber incidents/ attacks thereby underlining the urgent need to put in place a robust cyber security and resilience framework.
RG 256 deals primarily with remediation programs conducted by licensees who provide personal advice to retail clients.
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