New law gives BVI FSC discretion to restrict publication of enforcement actions

The Financial Services Commission Act 2001 was amended by the Financial Services Commission (Amendment) Act 2017 (the Amendment) on 1 May 2017. The key provisions in the Amendment are new sections which relate to the routine publication, on the Financial Services Commission’s (the FSC) website or elsewhere, of fines and penalties levied by the FSC. 

The key changes are: 

  • Where the FSC considers that the nature of the breach or offence giving rise to the enforcement action, or type of enforcement action taken, is of such a nature as not to warrant publication of the name of a licensee or other person, the FSC can decide not to publish the name of the licensee or other person on the enforcement page of its website or elsewhere. (Section 37(6A))
  • The FSC now has the discretion to determine the types of cases where publication of the enforcement may be restricted. (Section 37 (6B))
  • To the extent the FSC does decide to publish the enforcement action taken against a licensee or other person on the enforcement page of its website, the FSC now has the capability to determine the period within which the publication may remain published; determine that the publication shall remain for an indefinite period; specify the condition(s) that should be satisfied before publication is terminated or removed; or take such other action in relation to the publication as it may consider fit. (Section 37(8))

The Amendment is deemed to have come into force on 1 January 2017.
 
Harneys understand that in practice the FSC would only apply its discretion to restrict publication where an affected licensee or other person makes an application to it seeking confidentiality of the enforcement action taken. Harneys Regulatory Group is at the forefront of the industry in terms of making representations for firms in front of the FSC.

Should you require any assistance in approaching the FSC for relief in enforcement action matters, please do feel free to contact the authors or your usual Harneys contact.