There was considerable legislative activity in Anguilla during the year 2005.
Three significant pieces of legislation have been submitted to the House of Assembly as follows and it is anticipated that they will soon be enacted:
- A Foundations Act ("FA"), based on civil law principles, has now been completed by the Legislation Committee of the Anguilla Financial Services Association and has been submitted to Government for enactment. The FA provides for the establishment, operation and regulation of civil law type foundations in Anguilla.
- A Netting Act ("NA"), based on model ISDA legislation, ensures the enforceability in accordance with their terms, of bilateral netting agreements, multi-branch netting agreements and certain collateral arrangements as well as bilateral and multi-branch netting agreements.. The NA seeks to protect current market participants from risks associated with international insolvencies. As a consequence foreign participants and counterparties are more likely than not to be attracted to the Anguilla market place.
- An International Business Companies (Amendment) Act which provides for the immobilization of bearer shares essentially by prescribing that bearer shares must be deposited into the custody of a licenced financial services provider in Anguilla who has been specifically authorized by the FSC to act as a custodian. However, no additional licence fees or "penalty" fees are imposed on bearer shares.
The following were enacted during the year 2005:
- The Banking Act 2005 ("BA") provides for the regulation of banking business of domestic banks in Anguilla under the supervision of the Eastern Caribbean Central Bank ("ECCB"). (The ECCB regulates domestic banks in all of the other English speaking Eastern Caribbean territories.) The BA repeals and replaces the old Banking Act.
- The Securities (Amendment) Act 2005 ("SA") has enacted provisions making it less onerous for licensing and exchange membership of foreign market participants, and listing and trading foreign securities, on the Eastern Caribbean Securities Exchange. The SA also provides for the establishment, jurisdiction and powers of a Disciplinary Committee.
- The Stamp Duty (Amendment) Act 2005 further clarifies that Government land which is transferred is exempt from stamp duty. Also an express exemption is provided for the sale of any securities of the Eastern Caribbean Securities Exchange.
- The Anti-Money Laundering Regulations 2005 ("AMLR") were issued pursuant to the Money Laundering Reporting Authority Act (Revised Statutes of Anguilla Chapter M100). The AMLR further define the powers of the Financial Services Commission ("FSC") and the Money Laundering Reporting Authority to regulate the financial services industry and financial transactions generally.
- The Mutual Legal Assistance (Tax Matters) Act 2005 ("MLATMA") makes provision for giving effect to the Directive of the Council of the European Union relating to exchange of information on taxation of savings income in the form of interest payments. It would appear that although the MLATMA applies to human persons of the European Union, it does not apply to a non-European Union company (say an Anguilla company) beneficially owned by European Union persons.
- The Trust Companies and Offshore Bank (Amendment) Act 2005 ("TCOBA") and the Company Management (Amendment) Act 2005 ("CMA") essentially are tidying-up measures to clarify that the FSC regulates the respective financial services providers licensed pursuant to the TCOBA and the CMA. However significantly the TCOBA now expressly provides that a licensee must keep its books and records in Anguilla.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.