ANTIGUA AND BARBUDA
NO. 17 OF 1998
INTERNATIONAL BUSINESS CORPORATIONS
(AMENDMENT) ACT, 1998
Arrangement of Sections
SECTION
1. Short title.
2. Amendment of section 2 of Cap. 222.
3. Amendment of section 5 of Cap. 222.
4. Amendment of section 6 of Cap. 222.
5. Amendment of section 9 of Cap. 222.
6. Amendment of section 61 of Cap. 222.
7. Amendment of section 182 of Cap. 222.
8. Amendment of section 183 of Cap. 222.
9. Amendment of section 226 of Cap. 222.
10 Amendment of section 227 of Cap, 222.
11. Amendment of section 228 of Cap. 222.
12. Amendment of section 229 of Cap. 221.
13. Amendment of section 230 of Cap. 222.
14. Amendment of section 231 of Cap. 222.
15. Amendment of section 235 of Cap. 222.
16. Amendment of section 236 of Cap. 222.
17. Amendment of section 238 of Cap. 222.
18. Amendment of section 240 of Cap. 222.
19. Amendment of section 242 of Cap. 222.
20. Amendment of section 244 of Cap. 222.
21. Amendment of section 245 of Cap. 222.
22. Amendment of section 246 of Cap. 222.
23. Amendment of section 259 of Cap. 222.
24. Amendment of section 260 of Cap. 222.
25. Amendment of section 261 of Cap. 222.
26. Amendment of section 262 of Cap, 222.
27. Amendment of Division H of Cap. 222.
28. Amendment of section 292 of Cap. 222.
29. Amendment of section 283 of Cap. 222.
30. Amendment of section 287 of Cap. 222.
31. Amendment of Part V of Cap. 222.
32. Amendment of section 316 of Cap. 222.
33. Amendment of section 317 of Cap. 222.
34. Amendment of section 335 of Cap. 222.
35. Amendment of section 347 of Cap. 222.
36. Amendment of section 351 of Cap. 222.
37. Amendment of section 354 of Cap. 222.
38. Amendment of section 360 of Cap. 222.
39. Amendment of section 361 of Cap. 222.
40. Amendment of section 371 of Cap. 222.
41. Insertion of sections 373 & 374 of Cap. 222.
42. Amendment of Schedule 11 to Cap. 222.
I Assent,
Dr. R.A. Walwyn, OBE,
Governor-General's Deputy.
28th October, 1998.
ANTIGUA AND BARBUDA
No. 17 of 1998
AN ACT to amend the International Business Corporations
Act, Cap. 222.
[12th November, 1998]
ENACTED by the Parliament of Antigua and Barbuda as follows:
1. This Act may be cited as the International Business Corporations (Amendment) (No.2) Act, 1998.
2. Section 2 of the International Business Corporations Act (in this Act referred to as the "principal Act") is amended as follows:
(a) in subsection (1)
(b) by repealing subsection (3) and substituting the following subsection:
"(3) The expressions "appropriate official", "Board", "Chairman", "licensee" "Superintendent", and "Supervisor". Care defined in Part III."
3. Section 5 of the principal Act is amended as follows:
(a) in subsection (1) by
(b) by inserting after subsection (2) the following subsection:
"(2a) In the case of a corporation proposing to do business banking, trust, or insurance business, the articles of incorporation and the prescribed fees must be accompanied by an application for a license in accordance with Part III."
4. Section 6 of the principal Act is amended by inserting after subsection (1) the following subsection:
"(1a) In respect of a proposed corporation not intending to carry on international banking, trust or insurance business, the articles of incorporation must state that the corporation will not carry on international banking, trust or insurance business."
5. Section 9 of the principal Act is repealed and the following section is substituted:
"9. (1) In the case of a corporation not proposing to do international banking, trust or insurance business on receipt of
(a) the articles of incorporation; and
(b) the prescribed fees,
the Director must issue a certificate of incorporation in accordance with section 327.
(2) In the case of a corporation proposing to do international banking, trust, or insurance business, on receipt of
(a) the articles of incorporation;
(b) tile prescribed fees; and
(c) the approval of the license under section 317 from the Board, the Director must issue a certificate of incorporation in accordance with section 327.
(3) The certificate issued under subsections (1) and (2) is conclusive proof of the incorporation of the corporation named in the certificate.".
6. Section 61 of the principal Act is repealed and the following section is substituted:
"6 1. A corporation must have at least one director, and in the case of banking, trust or insurance corporations, all directors must be natural persons, and at least one director must be a citizen and resident of Antigua and Barbuda."
7. Section 182 of the principal Act is amended by inserting after subsection (3) the following subsection:
"(4) In the case of a body corporate proposing to do business in banking, trust, or insurance, articles of continuance must be accompanied by an application for a license for such business pursuant to Part Ill.".
8. Section 183 of the principal Act is amended by inserting after "section 182," the following:
"and in the case of a body corporate proposing to do business in banking, trust, or insurance, upon the issuance of a license for such business under section 229,".
9. Section 226 of the principal Act is amended by inserting after paragraph (b) the following paragraphs:
"(ba) "Board" means the Board of Directors of the Authority; and
"(bb) "Chairman" means the Chairman of the Board and includes the Deputy Chairman acting as the Chairman:".
10. Section 227 of the principal Act is repealed and the following section is substituted:
"227. (1) No license shall be required under this Part with respect to any international trade or business other than international banking, trust or insurance business.
(2) Any international banking, trust or insurance business shall be required to obtain a license under this Part in order to carry on such business.
(3) A certificate of incorporation may not be issued to a corporation whose articles of incorporation do not provide that the corporation is restricted from carrying on any international banking, trust or insurance business unless the Board has granted approval for a license under section 229.
(4) A corporation shall not carry on, within Antigua and Barbuda, any business activity that is not necessary or incidental to the international trade or business for which it is licensed under this Part.
(5) In this section "business activity" means any trade business, venture or concern for profit or gain.
(6) Nothing in this or any other Act shall prevent a corporation licensed to carry on an international banking, trust or insurance business from lending to the Government of Antigua and Barbuda.".
11. Section 228 of the principal Act is repealed and the following section is substituted:
"228. A person who intends to incorporate or continue a corporation under this Act to carry on an international banking, trust or insurance business shall, on behalf of the intended corporation, submit to the Authority an application in the prescribed form, along with the articles of incorporation or articles of continuance, as the circumstances require, and the annual license fee prescribed in the regulations, which fee shall be nonrefundable.".
12. Section 229 of the principal Act is repeated and the following section is substituted:
"229, The appropriate official upon the filing of an application for a license with the Director in accordance with section 228, and after such investigation and inquiry as is required pursuant to this part and upon approval of the Board, must issue such license if he has no reason to believe that it would be contrary to the public interest to do so.".
13. Section 230 of the principal Act is repealed and the following section substituted:
"230. If the Authority refuses to issue a license to a corporation, that decision may be appealed within thirty days of the refusal to the Minister of Finance, whose decision thereon shall be final.".
14. Section 231 of the principal Act is amended as follows
15. Section 235 of the principal Act is amended as follows
(a) by repealing subsection (2) and substituting the following subsection:
"(2) It is also a condition of a license issued under this Part that tire licensee will not establish any subsidiary within or outside of Antigua and Barbuda without approval of the Authority."; and
(b) by inserting after subsection (2) the following subsections:
"(3) It is also a condition of a license issued under this Part that the licensee full not establish any branch outside of Antigua and Barbuda without approval of the Authority.
(4) It is also a condition of a license issued under this Part that the licensee will not offer or provide any services on the Internet without approval of the Authority.".
16. Section 236 of the principal Act is amended in subsection (1) by repealing paragraph (c) and substituting the following paragraph:
"(c) is convicted of an offence under this Act, or in offence under the Money Laundering (Prevention) Act or a prescribed offence listed in the Second Schedule to the Money Laundering (Prevention) Act.".
17. Section 239 of the principal Act is repealed and the following section is substituted:
"238. A banking corporation, that is to say, a corporation that is licensed to carry on an international banking business solely or together with any other international trade or business, shall, as a condition of that license, comply with the minimal capitalization requirements and such other requirements as are prescribed in the regulations made under this Act.".
18. Section 240 of the principal Act is amended by inserting after "corporation" the Following
"must operate in a lawful and prudent manner, and".
19. Section 242 of the principal Act is amended in subsection (1) as follows:
(a) in paragraph (a),
(i) by inserting after "return" the following:
"calculated in United States dollars", and
(ii) by repealing "and" at the end of the paragraph and
(b) by inserting after paragraph (a), the following paragraphs:
"(aa) an annual audited return in the English language and calculated in United States dollars, prepared by an auditor approved by the Board, and providing an analysis of customers' liabilities to the corporation in respect to loans, advances and other assets of the corporation, a profit and loss statement, a balance sheet and the statement of assets and liabilities, which return shall be submitted not later than ninety days after the end of the year to which it relates;
(ab) an annual certification attesting to the ownership, directors and officers of the institution; and".
20. Section 244 of the principal Act is amended as follows:
(a) in subsection (1) by repealing "in the performance or exercise of those duties or functions or pursuant to an order of a court of competent jurisdiction in Antigua and Barbuda" and substituting the following:
"(a) in the performance or exercise of those duties or functions-
(b) pursuant to a request by an examiner or inspector under this Act;
(c) pursuant to a request by the Supervisory Authority under the Money Laundering (Prevention) Act; and
(d) pursuant to an order of a court of competent jurisdiction in Antigua and Barbuda.";
(b) by inserting after subsection (1) the following subsection:
"(1 a) It shall be unlawful for a person to disclose any information relating to the business affairs of a corporation or a customer of a corporation that he has acquired in the performance of his duties
(a) as an employee of Government; or
(b) as a Director, agent, employee of the Authority or person designated by the Authority to perform functions under this Act, except in the performance or exercise of those functions in compliance with a requirement of this Act or any other statute, or pursuant to an order of a court of competent jurisdiction in Antigua and Barbuda.";
(c) in subsection (4) by repealing "Nothing in this Act impairs" and substituting the following:
(d) in subsection (5) by inserting after "Act" the following:
"Money Laundering (Prevention) Act,".
21. Section 245 of the principal Act is repeated and the following section is substituted:
"245. "The annual audited returns provided under section242 shall remain confidential. except that the balance sheets and profit and loss statements required in such returns shall be published in the Gazette, at the cost of the banking corporation."
22. Section 246 of the principal Act is repealed and the following section is 246 substituted:
"246. A trust corporation, that is to say, a corporation that is licensed to carry on an international trust business solely or together with any other international trade or business, shall, as a condition of that license, comply with the minimal capitalization requirements and such other requirements as prescribed in the regulations issued under this Act "
23.Section 259 of the principal Act is repealed and the following section is substituted:
"259. (1) The appropriate official or an examiner appointed by the Board shall examine the affairs of every bank, trust or insurance corporation at least once a year.
(2) When the Board has reasonable grounds for believing that a bank, trust or insurance corporation is not in a sound financial condition, or is not operating in a reasonable and prudent manner, or is otherwise not operating in compliance with this Act, it shall immediately appoint one or more examiners from within or outside the Authority to examine the affairs of the corporation. and notify the corporation in writing of the examination, the purpose of the examination, the reasonable grounds for the examination and the names of the examiners appointed.".
24. Section 260 of the principal Act is repealed and the following section is substituted:
"260. (1) A corporation shall, at such time as the examiner fixes, produce for the examiner all books, minutes, cash, securities, vouchers, customer identification, customer account and transaction records, and all other documentation and records relating to its assets, liabilities, and business generally or to any bank, trust or insurance activity, and shall give the examiner such information concerning its affairs business and activities as the Examiner requests of it.
(2) An examiner may not copy or otherwise record information relative to the name or the account of any depositor or the name of any settler or beneficiary of a trust if the deposit agreement or instrument establishing account or trust, as the case may be, directs that it be kept secret,
(3) Notwithstanding subsection (2), if the examiner has reasonable suspicion that accounts or transactions could constitute or be related to money laundering, he shall immediately file a written report of the suspicious activity with the Supervisory Authority through the Director, identifying the account by name and number and reporting the basis of this suspicion.
(4) A suspicious activity report filed in accordance with subsection (3) shall be treated in the same manner and have the same legal effect as a suspicious activity report filed by a financial institution under the Money Laundering (Prevention) Act. 1996.
(5) Where an examiner is not being granted access to all records, documentation and information he requires, the appropriate official or the Director may apply to the court for an order to produce the information necessary for a successful examination, and the court if satisfied that it is required in the public interest by the examiner for the proper performance of his duties under this Part shall grant the order.
(6) Failure of the corporation to comply with the order of the court shall be grounds for immediate revocation of its license by the Board.".
25. Section 261 of the principal Act is amended
(a) in subsection (1), by repealing paragraph (b) and substituting the following:
"(b) the appropriate official may, in order to advise the corporation on the action to be taken by it to remedy the situation, appoint for that purpose a person, who, in the opinion of the appropriate official, has had training and experience in the same business that the corporation carries on.
(b) by inserting after subsection (1) the following subsections:
"(la) If the corporation is dissatisfied with the report, recommendations, remedial measures or other results of any examination, it may appeal in writing to the Board within ten days of receiving written notification of such finding or action.
(1b) Upon receipt of an appeal filed in accordance with subsection (la), all action relative to findings of the examination shall be suspended, and the Board shall render a decision on the appeal in writing within thirty days.
(1c) If the corporation is dissatisfied with a decision rendered in accordance with subsection (lb), it may appeal in writing to the Minister of Finance within ten days of receiving written notification of that decision and the Minister shall render a decision on the appeal in writing within thirty days, and such decision shall be final."; and
(c) in subsection (2), by repealing "appropriate official" and substituting
"Authority".
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