NEW MEASURES INTRODUCED BY: THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2019 & THE BUSINESS FACILITATION (MISCELLANEOUS PROVISIONS ACT) 2019
BANK OF MAURITIUS ACT 2004
The Bank of Mauritius Act 2004 has been amended to:
- allow use of funds from the Special Reserve Fund for fiscal policy purposes;
- provide that the Equal Opportunities Act will not apply to the Bank of Mauritius (the “BOM”) with respect to appointment of consultants;
- require the BOM to publish its report on monetary policy at least twice a year instead of at least once a year. The report will include a review of price and financial stability and an assessment of the policies;
- provide greater clarity on the governance, process of reserves management, investment objectives and actual investment of the foreign exchange reserves;
- provide for the BOM to determine the investment policy regarding the management of the official foreign reserves of Mauritius;
- allow the BOM to appoint external parties to manage the official foreign exchange reserve on its behalf;
- require the BOM to submit a report on the management of the official foreign exchange reserves to the Minister of Finance twice a year;
- allow crowdlending platforms to have access to and become participants of the Mauritius Credit Information Bureau (MCIB);
- allow the BOM to seek the collaboration and co-operation of the FSC and any other agency for the establishment of the Central KYC Registry; and
- allow the BOM to provide facilities, including intra-day credit, to payment, clearing and settlement systems and their participants, to ensure the safety, soundness and efficiency of such systems.
BANKING ACT 2004
The Banking Act has been amended to:
- provide for the protection of whistle-blowers;
- empower the BOM to suspend a banking licence;
- make wilful default become an offence for which a borrower may face criminal proceedings;
- allow the BOM to consider applications for a banking licence from a subsidiary of a bank incorporated abroad;
- require directors to report any matter which comes to their knowledge which is against the Companies Act, including AML/CFT matters;
- allow a financial institution to disclose information relating to risk-management functions as may be approved by the BOM; and
- provide for every financial institution to put in place policies and procedures requiring their employees to disclose any interest in relation to any matter which they may have with the financial institution and not take part in any deliberation or decision-making process.
Section 11 of the Banking Act 2004 has now been amended to empower the BOM to not only revoke but also suspend a banking licence, in cases where a particular bank has failed to comply with the provisions of the act or where a particular bank has failed to comply with any condition attached to its banking licence. Before suspending a licence under the Banking Act 2004, the BOM will give not less than 14 days’ notice in writing to the bank and after considering any representations made to it, the BOM will notify the bank of its decision.
COMPANIES ACT 2001
The Companies Act has been amended to:
- require the board of a public company to consist of at least one-woman director;
- provide that a small private company is a company which, amongst others, is not qualified as a ‘Public Interest Entity’ under the Financial Reporting Act;
- provide for the definition of beneficial owner with a view to fulfilling the requirements of OECD; and
- request the applicant to pay for the publication cost in relation to the notice for the vesting of the property of a company.
Under Section 2 of the Companies Act 2001, “small private company” has been defined as (a) a company which does not hold a global business licence, (b) a private company with a turnover of less than 50 million rupees in the last preceding year and a company and (d) an entity not specified in the First Schedule of the Financial Reporting Act 2004.
Under Section 91 of the Companies Act 2001, beneficial owner or ultimate beneficial owner has now been re-defined as “any natural person who ultimately owns or controls a company or the natural person on whose behalf a transaction or activity is being conducted in relation to a company”. Prior to this amendment, under the old version of the Companies Act 2001, beneficial owner or ultimate beneficial owner was defined as “any natural person who holds by himself or his nominee, a share or an interest in a share which entitles him to not less than 25% of the aggregate voting power exercisable at a meeting of shareholders”.
COURTS (CIVIL PROCEDURE ACT) 1856
The Courts (Civil Procedure) Act has been amended to:
- provide for the definition of authorised company, collective investment scheme and protected cell company; and
- allow for the filing and service, or the issue and service out of the jurisdiction of an initial process where any action, relief, dispute, third party claim in which a corporation holding Global Business Licence or an Authorised Company or a collective investment scheme company or protected cell company is one of the parties.
Following the amendments to the Courts (Civil Procedure) Act 1856, the Courts will now have discretion to grant leave for the issue and service of process to initiate claims outside the Mauritian jurisdiction, where one of the parties to the dispute is either an authorised company, a global business company, a collective investment scheme or a protected cell company.
DEPOSIT OF POWERS OF ATTORNEY ACT 1928
The Deposit of Powers of Attorney Act has been amended to exclude the requirement for a power of attorney drawn outside Mauritius to be deposited with a notary in Mauritius in circumstances where:
- an evidence is to be given before a court or a Judge by a representative or agent authorised as provided for under article 1985 of the Code Civil Mauricien to give evidence on behalf of a person or body corporate; or
- an attorney registered, acting as mandataire ad litem, under the Law Practitioners Act.
The Deposit of Powers of Attorney Act will also be amended to increase the fine from Rs 500 to Rs 10,000 for contravention and conviction under the Act.
The penalty in case a person fails to register a power of attorney in Mauritius has now increased from 500 rupees to 10,000 rupees. The said fine shall be payable to the registry of the relevant Court where the person has been fined.
FINANCIAL SERVICES ACT 2007
The Financial Services Act has been amended to:
- cater for the independence of the FSC;
- ensure that decisions of the Enforcement Committee are published;
- clarify that penalties have to be paid into the General Fund;
- allow the FSC to carry out investigations and take measures to suppress financial crime;
- extend the scope of the offence with respect to licensees who provide false and misleading information;
- preclude the Chief Executive from transmitting an investigation report to the Board;
- cater for whistleblowing such that immunity is provided to any person who makes a disclosure in good faith to the FSC;
- allow the Chief Executive to issue directions with immediate effect to prevent any prejudice to be caused to the clients of a licensee;
- enable the FSC to appoint an administrator where it considers that the conditions of a licence are no longer met;
- provide for a method of service by registered post where the Enforcement Committee issues a notice to a licensee;
- allow the Financial Services Review Panel to publish its determination in such form and manner as it thinks fit;
- cater for the independence of the Financial Services Review Panel such that an application for review no longer has to be in the form and manner approved by the FSC;
- allow the FSC to regulate ‘crowdfunding’, Fintech Service Provider and Robotic Advisory Services;
- provide for the Financial Services Fund to transfer Rs 100 million to the Consolidated Fund;
- remit any balance in the General Reserve Fund in excess of Rs 100 million as at 1st July 2019 to the Consolidated Fund;
- allow an investigator of the FSC to have access to any program or data and to take extracts of any file, document or record held electronically in any computer or other electronic device; and
- widen the scope of “investigator” to include any staff of the FSC or any other person appointed by the FSC to conduct an investigation, either jointly or separately.
In order to strengthen the regulatory framework to tackle fraud, corruption and financial crimes and increase investors’ confidence in the Mauritian International Financial Services Sector , the Government will establish a Financial Crime Commission to act as an apex body to ensure greater coordination and better enforcement of laws by various agencies fighting fraud and corruption in Mauritius.
FINANCIAL REPORTING ACT 2004
The Financial Reporting Act has been amended to:
- provide for a representative of the Ministry of Financial Services and Good Governance to be a member of the Financial Reporting Council;
- require every licensed auditor to comply with relevant regulations issued by the Financial Intelligence Unit; and
- impose a fine not exceeding Rs 5 million where a licensed auditor or an audit firm has breached the Financial Reporting Act or any rule, code, guidelines or standards relating to auditing issued by the Financial Reporting Council.
GOOD GOVERNANCE AND INTEGRITY REPORTING ACT 2015
The Good Governance and Integrity Reporting Act will be amended to –
- include the Mauritius Police Force in the definition of the “enforcement authority”;
- capture unexplained wealth which cannot be satisfactorily accounted for in the definition of “unexplained wealth”;
- provide for the definition of local authority, public sector agency and statutory body;
- make any property acquired or been in the possession or under the custody or control of a person before 1st January 2016 will fall under the purview of the Act;
- provide for unexplained wealth of more than Rs 2.5 million to be under the purview of the Act;
- cause information given by the Integrity Reporting Services Agency to another agency be subject to conditions that it may specify;
- allow public sector agencies to exchange information with the Integrity Reporting Services Agency which is relevant to the latter for the purpose of discharging its functions;
- allow the Board of the Integrity Reporting Services Agency not hold monthly meetings;
- include the duty of confidentiality while reporting on the unexplained wealth of a person;
- empower the Commissioner of Police to make a written report to the Integrity Reporting Services Agency where, in the exercise of his functions, the latter has reasonable ground to suspect that a person has acquired unexplained wealth;
- restrict transfer, pledging or disposal of a property where a statutory request has been served;
- provide for renewal of the inscription of privilege;
- allow the Integrity Reporting Services Agency to report to the Integrity Reporting Board and recommend an award where it is of the opinion that a public body, body corporate or any other person has disclosed any matter which has led to the confiscation of unexplained wealth;
- allow the Judge in Chambers to make an Unexplained Wealth Order or an order for the payment of its monetary equivalent in the case of a Mauritian citizen wherever he is located;
- exempt the Integrity Reporting Services Agency from payment of any duty, levy, rate, charge, fee or taxes; and
- add a new schedule to include any Ministry or Government Department, Local authority, Statutory Body and the Mauritius Police Force.
Under Section 2 of the Good Governance and Integrity Reporting Act 2015, the definition of “unexplained wealth” has been broadened to include any property “held by a person for another person to an extent which is disproportionate to the emoluments or other income of that other person and which cannot be satisfactorily accounted for.” Additionally, any property under the ownership of a person to an extent which is disproportionate to his emoluments and other income or any property which cannot be satisfactorily accounted for by the person who owns, possesses, has custody or control of the property may amount to unexplained wealth under the present act.
LAND (DUTIES AND TAXES) ACT 1984
The Land (Duties and Taxes) Act has been amended to:
- modify the procedure to be followed when the Registrar-General is dissatisfied with the value mentioned in any deed witnessing the transfer of property. The notice to be given by the Registrar-General must now be accompanied by a summary of the valuation report, approved by the Registrar- General, which must include the reason for the assessment, the valuation methodology and comparable transactions used where applicable, in order to make an assessment. If the difference between the value of the immovable property assessed and the value in the deed does not exceed 100,000 rupees, notice is not required to be given by the Registrar- General;
- provide that a transferor who is dissatisfied by a claim for additional land transfer tax may object to the decision of the Receiver in the same manner as an objection to the objection unit under the Registration Duty Act; and
- enable the Ministry of Finance and Economic Development to remit or refund any duty or tax leviable where a person makes an application for an exemption under the Eight Schedule of the Land (Duties and Taxes) Act 1984, within three years, instead of one year, from the registration date of the deed.
LIMITED LIABILITY PARTNERSHIPS ACT 2016 & LIMITED PARTNERSHIPS ACT 2011
The Limited Liability Partnerships Act will be amended to provide for the definition of beneficial owner to be in line with the requirements of OECD and the Limited Partnerships Act will be amended to provide for the definition of beneficial owner with a view to fulfil the requirements of OECD.
Under both the acts, the definition of “beneficial owner” and “ultimate beneficial owner” has been given the same meaning under Section 91(8) of the Companies Act 2001 (re: point no. 3 above).
OMBUDPERSON FOR FINANCIAL SERVICES ACT 2018
The Ombudsperson for Financial Services Act has been amended to:
- ease procedures for making a complaint;
- allow the Ombudsperson or any officers of his office to make on-site visits in a financial institution to ensure that guidelines, instructions or other requirements imposed by the Ombudsperson are being complied with;
- provide for any person to lodge a complaint in writing with the Ombudsperson in the case of a non-receipt of a decision from the Financial Institution within 10 days from the date of the written representation;
- allow any person aggrieved by the decision of the Ombudsperson to apply to the Supreme Court for a judicial review of the decision or award within 21 days; and
- provide for the Ombudsperson to compound any offence committed by a person under the Act with the consent of the Director of Public Prosecutions where the person agrees in writing to pay such amount.
The additional powers given to the Ombudsperson for financial services is a welcome measure as it will streamline and enhance the procedures available to complainants to make complaints against financial institutions in Mauritius.
NON-CITIZENS (PROPERTY RESTRICTION) ACT 1975
The Prime Minister will be empowered to give his covering approval for the acquisition of shares by a non-citizen after the transfer has been made if he is satisfied of the credentials of the non-citizen and that omission to seek prior authorisation for the transaction was due to a mistake or oversight.
REGISTRATION DUTY ACT 1804
The Registration Duty Act has been amended to:
- Introduce an administrative fee at a prescribed rate which is to be levied on any deed deposited for registration at the Registrar- General. Where a deed is not presented to the Registrar- General within the prescribed time limit, in addition to the administrative fee, a surcharge equal to 50 per cent of the amount of the administrative fee shall be payable; and
- Introduce an objection unit to hear objections against revised valuation made by the Receiver of Dues in relation to a transfer of movable property. A person who is dissatisfied with the revised valuation made by the Receiver in relation to a transfer of movable property may, on the payment of the duty or tax claimed by the Receiver and no later than 15 days after receiving notice of the Receiver’s decision, object to the notice by registered post.
The objection unit has a period of 4 months from the date on which the objection is made to deal with the objection. Where the Receiver considers an objection, he shall by notice in writing amend the claim or maintain the claim.
If an agreement is reached before the objection unit, the person aggrieved shall not be entitled to lodge written representations with the Assessment Review Committee.
Where the value assessed is reduced pursuant to a decision of the objection unit or a decision of the Assessment Review Committee or pursuant to a decision of the Supreme Court or the Judicial Committee of the Privy Council, any amount of tax paid in excess shall be refunded to the transferor and any amount of duty paid in excess shall be refunded to the transferee, together with interest at the legal rate, free of income tax, from the date the payment is effected to the Registrar-General to the date it is refunded.
SECURITIES ACT 2005
The Securities Act has been amended to:
- clarify that an acquisition is significant when the value of the asset is at least 10% of the net assets of the reporting issuer;
- allow for an investigation to be conducted under Section 44A of the Financial Services Act relating to Special Investigations;
- provide for the authorisation of agents of investment dealers; and
- provide for the authorisation and supervision of Real Estate Investment Trusts (“REIT”).
REIT will not be liable to income tax, provided it satisfies the conditions as may be prescribed. However, every beneficiary or participant to a REIT, will be liable to income tax on his share of distribution made by the REIT at the rate specified in the First Schedule of the Income Tax Act.
INSOLVENCY ACT 2009
The Insolvency Act 2009 has been amended to:
- restrict the qualification of insolvency practitioners to individuals ordinarily resident in Mauritius, which reflects the current practice;
- clarify that a body corporate may not act as liquidator of a company;
- abolish remuneration based on a percentage of gross realisation proceeds and replace with the requirement for a prescribed fee where there is no agreement between a liquidator and creditors;
- provide for a prescribed ranking of claims in the receivership of companies;
- introduce the requirement for an administrator to hold meetings of classes of creditors at the watershed meeting at which creditors decide the fate of the administration;
- introduce additional provisions to ensure that dissenting creditors are not discriminated against and that creditors receive at least what they would receive in an insolvent liquidation of the company;
- abolition of a requirement of reciprocity before foreign insolvency proceedings can be recognized in Mauritius in cross-border insolvencies; and
- clarify that appeals from decisions of the Bankruptcy Division of the Supreme Court does not give rise to an automatic stay of proceedings inasmuch as it is the Appellate Court which will have discretion to determine whether a stay of proceedings will be granted.
Although the regulations prescribing such ranking are yet to be published at the time of writing, it is a welcome change that will end several uncertainties about the interplay between the Insolvency Act and the Civil Code on this issue and now decisions of the Bankruptcy Division, which after all is a specialist division, are not unduly delayed or hampered simply by lodging an appeal