All BVI licensees, primarily those licensed under the Securities and Investment Business Act, 2010, the Banks and Trust Companies Act, 1990, the Company Management Act, 1990, the Insurance Act, 2008 and the Financing and Money Services Act, 2009, should note that persons who are approved by the British Virgin Islands Financial Services Commission (the FSC) as senior officers are required to provide a notification to the FSC when the approved senior officers resign from their approved positions.
The legislative requirement for providing this notification is contained in paragraph 17 of Part V to the Guidelines on the Approved Persons Regime, 2010 (the GAPR).
Who are senior officers?
"Senior officers" with respect to licensees, are persons who are appointed to undertake, or have responsibility for the internal audit function, the compliance function, the money laundering compliance function or a senior management function.
An employee of a licensee has a senior management function if they:
- act as chief executive officer of the licensee or occupies an equivalent position under a different name
- hold a position that requires them to be answerable to the board of the licensee
- have responsibilities that include direct involvement in the licensee's management or decision-making process at a senior level
Importantly, the terms "senior officer" and "senior manager" do not include a non-executive director of the licensee or an executive director, when acting as a director.
When does a person cease to be a senior officer?
Under the GAPR, a person ceases to be an approved senior officer if they are no longer in the employment of the licensee in respect of whom they were approved as a senior officer.
What needs to happen upon the resignation?
Where a person ceased to be an approved senior officer, the licensee in respect of whom the person was approved as a senior officer will, within seven days, notify the FSC in writing of that fact. The notification provided to the FSC will need to contain the following minimum information:
- the reason(s) for the person ceasing to be in the employment of the licensee
- the circumstance(s) surrounding the cessation of employment by the approved senior officer
- whether there are any specific issues with respect to the person which may relate to their fitness and propriety as a senior officer
- any other matter that may be required under the Financial Services Commission Act, 2001 (the FSC Act) or an applicable financial services legislation (as set out in Part 1 of Schedule 2 of the FSC Act).
The resignation of a senior officer from a licensee represents a change to the particulars to the licensee and the preparation and filing of this notification is often overlooked. This could lead to various forms of enforcement action being taken against licensees as a breach of the parent legislation under which the licensee's licence is granted.
The notification should be accompanied by:
- a copy of the senior officer's resignation letter
- a copy of the board resolution resolving to accept the senior officer's resignation and to instruct the registered agent of the licensee to update the register of officers (if applicable)
- an updated register of officers