30 June 2011

Mauritius : FSC Annual Report 2010 - Global Business

Management Companies

The FSC issued 22 Management Companies (‘MCs’) during the period under review compared to 18 for the financial year 2008-2009. There were 149 MCs as at 31 December 2010.

Market Trends

The MCs have shown sustained growth during the financial crisis. Based on audited financial statements filed with the FSC for 2009 and 2010, the turnover amounted to USD 226,344,000 whilst the PBT stood at USD 75,132,000.

Global Business Licences

During the period under review, 1,698 Category 1 Global Business Licences and 1,716 Category 2 Global Business Licences were issued by the FSC.


UK Government publishes proposals on Controlled Foreign Companies

The Government today published proposals for reforming the UK’s Controlled Foreign Company (CFC) rules, as part of its ambition to create the most competitive tax system in the G20.

This marks the next step towards introducing a modernised CFC regime in 2012 that better reflects the way that businesses operate in a globalised economy, and include the Government’s Budget 2011 commitment to introduce a partial exemption for finance companies that will normally result in a 5.75% tax charge on those overseas profits by 2014.

These proposals are designed to strike the right balance between improving the competitiveness of the UK corporate tax system and protecting the UK tax base against avoidance by:

  • targeting and imposing a CFC charge on artificially diverted UK profits, so that UK activity and profits are fairly taxed;
  • exempting foreign profits where there is no artificial diversion of UK profits; and
  • not taxing profits arising from genuine economic activities undertaken offshore.

David Gauke, Exchequer Secretary to the Treasury, said:

“The Government is clear that a key factor in achieving a sustainable recovery must be private sector growth. Multinational business plays an important role in this, but as the market-place has become increasingly globalised, the UK has lost tax competitiveness. These changes to the CFC regime, alongside our substantial programme of corporate tax reforms, will help us to rectify this and ensure that the corporate tax regime is once again an asset for the UK. Our proposals follow discussions with businesses and tax professionals and we welcome further input from them and other interested parties in response to the consultation.”

Consultation on Controlled Foreign Companies (CFC) reform (PDF 868KB)

Starbucks Launches Starbucks for iPhone App with Mobile Gifting Feature

New App Merges Features of myStarbucks and Starbucks Card Mobile; Introduces Mobile Starbucks Card eGift Capability

WHAT: Starbucks launches Starbucks for iPhone®, an app that introduces its popular Starbucks Card eGift feature on a mobile device for the first time and also combines the features of its two popular apps for iPhone and iPod® touch: myStarbucks and Starbucks Card Mobile. Now customers can access their favorite Starbucks Card features, use the mobile payment capability, track their My Starbucks Rewards and custom Starbucks features in one app, along with the new option to send a mobile gift.

Previously only available at Starbucks.com, Starbucks Card eGift allows customers to treat friends and family to their favorite Starbucks® beverage, food or merchandise by sending a gift straight from their iPhone or iPod touch. Starbucks Card eGifts can be customized with a personal message and sent using your contacts or Facebook friends list, for any amount between $5.00- $100.00. Starbucks Card eGifts work like an actual Starbucks Card – they can be redeemed at participating company-owned and licensed Starbucks store locations in the U.S., or online at starbucksstore.com.

With Starbucks for iPhone you can:

NEW: Send a Starbucks Card eGift using your contacts or Facebook friend list • Pay for Starbucks purchases right from your iPhone or iPod touch • Check your Starbucks Card balance • Reload your Starbucks Card account with any major credit card or PayPal • Find nearby Starbucks stores with the store locator feature • Track your My Starbucks Rewards Stars • Consolidate Starbucks Card balances • Access food and beverage nutrition information • Build a virtual beverage with the Drink Builder feature • Learn about Starbucks® coffees • Search for a job at Starbucks • Use the QR code reader to check out promotions

“Finding new ways to connect with our customers and elevate the experience in and and out of our stores drives our continued growth in the mobile space. We’re inspired by our customers and their feedback on MyStarbucksIdea.com which led us to develop the new Starbucks for iPhone App,” said Adam Brotman, vice president, general manager, Digital Ventures at Starbucks Coffee Company. “Customers asked for the convenience of one app bringing together the features they love to use. Also, since the introduction of Starbucks Card eGift, we’ve heard people wanted a mobile version. With the Starbucks for iPhone App we had the opportunity to bring together a collection of great features, and we’re excited to offer this new mobile experience to iPhone and iPod touch users.”

WHERE: The Starbucks for iPhone App is available for free from the App Store on iPhone and iPod touch or at http://sbux.co/StarbucksforiPhone. To learn more about Starbucks for iPhone visit http://www.starbucks.com/coffeehouse/mobile-apps.

WHEN: Available to download now.
COMPATIBLE DEVICES: iPhone and iPod touch

OECD calls for increased international tax co-operation


OECD Secretary-General Angel Gurría said countries must boost international co-operation as they redesign their tax systems to meet future revenue needs and economic competitiveness challenges.
Speaking to top tax officials from both OECD and G20 countries, Mr. Gurría encouraged governments to launch a new dialogue on the best means of achieving a competitive tax environment.
“When governments act together, they are stronger than when they act separately,” Mr Gurría said. “If we want to maintain sovereignty in the design of our tax systems, then we need to enhance our international co-operation.” (see full speech)
Mr Gurría’s call for increased international co-operation and dialogue came during a keynote address to the high-level conference “Challenges in Designing Competitive Tax Systems,” co-organised by OECD and the French Ministry of Finance.
The conference, which brought together more than 150 top tax officials from 42 countries, featured wide-ranging discussion on the main trends driving tax reform over the past 50 years in OECD and non-OECD countries. Participants also assessed the common pressures impacting tax policy and administration and what can be done to ensure competitive tax systems in the future.
Potential areas for future OECD work highlighted in Mr Gurría’s address include:
  • Development of better analytical tools to measure and more precisely define the competiveness of tax systems.
  • Creation of a common analytical framework to assess the cost of investment tax incentives, coupled with regular publication by governments of how much these incentives cost, and evaluation of whether they are achieving their stated goals.
  • New joint efforts to reduce compliance costs.
  • Better analysis of how globalisation and economic integration impact tax systems, to avoid disincentives for cross-border trade and investment; but also to limit the scope for tax avoidance via multiple deductions, the creation of untaxed income and other unintended consequences of international tax arbitrage.
  • Renewed international dialogue to ensure that existing international arrangements, including the OECD Model Tax Convention and Transfer Pricing Guidelines, meet future needs.

FATF Guidance on Anti-Money Laundering and Terrorist Financing Measures and Financial Inclusion

The FATF has prepared a Guidance paper to provide support to countries and their financial institutions in designing Anti-Money Laundering and Terrorist Financing (AML/CFT) measures that meet the national goal of financial inclusion, without compromising the measures that exist for the purpose of combating crime.

The promotion of well regulated financial systems and services is central to any effective and comprehensive AML/CFT regime. However, applying an overly cautious approach to AML/CFT safeguards can have the unintended consequence of excluding legitimate businesses and consumers from the financial system.

There are many reasons (unrelated to AML/CFT measures) why financially excluded and underserved groups may not be able to take advantage of mainstream financial service providers. This Guidance paper focuses on ensuring that AML/CFT controls do not inhibit access to well regulated financial services for financially excluded and underserved groups, including low income, rural sector and undocumented groups. It extensively explores the initiatives to address financial inclusion within the AML/CFT context taken in developing countries, since this is where the challenge is the greatest, but it also considers examples of action taken in developed countries also.

The Guidance reviews the different steps of the AML/CFT process (Customer Due Diligence, record-keeping requirements, reporting of suspicious transactions, use of agents, internal controls), and for each of them presents how the Standards can be read and interpreted to support financial inclusion. This project was conducted in partnership with the World Bank and the Asia/Pacific Group on Money Laundering (APG) and in consultation with the financial industry.

INSEAD Issues The Global Innovation Index 2011 Switzerland ranks first among 125 economies on innovation levels

INSEAD, the leading international business school, today announced the findings of The Global Innovation Index (GII) 2011 edition. Switzerland topped this year's GII ranking, gaining three spots from its position in last year’s GII. Sweden and Singapore follow in the 2nd and 3rd positions, respectively. Joining INSEAD as Knowledge Partners for the report were Alcatel-Lucent, Booz & Company, the Confederation of Indian Industry (CII), and the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations.

This year’s rankings show that innovation has become a global phenomenon with six European economies (including Finland 5th, Denmark 6th, the Netherlands 9th and the United Kingdom 10th), two Asian (including Hong Kong, SAR, China 4th) and two North American economies (the United States 7th and Canada 8th) in the Top 10.

‘Innovation is critical to driving growth in both developed and emerging economies, especially during a time when the global economy is still in a state of recovery,’ said Soumitra Dutta, Roland Berger Professor of Business and Technology at INSEAD and editor of the study. ‘The GII has evolved into a valuable benchmarking tool to encourage private-public dialogue including policy-makers, business leaders and other stakeholders.’

WIPO Director General Francis Gurry stressed that ‘Innovation is central to economic growth and to the creation of new and better jobs. It is the key to competitiveness for economies, for industries and for individual firms.’ He added that ‘innovation and its many benefits do not come without the investment of time, effort and human and financial resources,’ noting that this report captures efforts by a large number of economies to provide an enabling environment that promotes innovation.

The five Nordic economies—Sweden (2nd), Finland (5th), Denmark (6th), Iceland (11th), and Norway (18th)—have very strong performances globally as well as regionally. Within the European Union (EU), the Netherlands and the UK are in the top 10, followed by Germany (12th), Ireland (13th), Luxembourg (17th), and Austria (19th) in the top 20.

The GII includes 16 economies from the Middle East and North Africa, of which two—Israel (14th) and Qatar (26th)—are ranked among the top 30; both high-income economies. Among Sub-Saharan African economies, Mauritius (53rd overall) achieves the top regional spot while South Africa (59th) is the runner-up. Ghana comes next at position 70, and ranked first among economies classified as low-income, all regions combined.

In Latin America and the Caribbean, Chile comes first (ranked 38th), followed by Costa Rica (45th) and Brazil (47th) among the top 50.

Of the four economies from South Asia in the GII, India is ranked 62nd overall, followed by Sri Lanka (82nd), Bangladesh (97th), and Pakistan (105th). From East Asia and the Pacific, besides the leading positions of Singapore (3rd) and Hong Kong (SAR, China, 4th), five more are in the top 30: New Zealand (15th), the Republic of Korea (16th), Japan (20th), Australia (21st), and China (29th), the top-ranked emerging economy.

Dr. Naushad Forbes, Chairman of the CII Innovation Council 2011-12 and Director of Forbes Marshall commented: ‘Today the whole world is talking about innovation in all forms starting from industry to government to society. After the recent economic slowdown the focus has shifted clearly towards the developing regions not only in terms of a booming potential market but also a hot spot for frugal innovations. Measuring this shift is important to know how we are doing, the GII is a starting point to do that and unquestionably in the right direction.’

The Global Innovation Index is computed as an average of the scores across inputs pillars (describing the enabling environment for innovation) and output pillars (measuring actual achievements in innovation). Five pillars constitute the Innovation Input Sub-Index: 'Institutions,' 'Human capital and research,' 'Infrastructure', 'Market sophistication' and 'Business sophistication'. The Innovation Output Sub-Index is composed of two pillars: 'Scientific outputs' and 'Creative outputs’. The Innovation Efficiency Index, calculated as the ratio of the two Sub-Indices, examines how economies leverage their enabling environments to stimulate innovation results.

The top 10 economies in the Innovation Efficiency Index are Côte d’Ivoire, Nigeria, China, Pakistan, Moldova, Sweden, Brazil, Argentina, India, and Bangladesh. Three BRIC economies (Brazil, India, and China) are in this select list, with the fourth, the Russian Federation, coming in at 52nd place. By region, the best performers are Côte d’Ivoire (1st), China (3rd), Pakistan (4th), Moldova (5th), Brazil (7th), Jordan (16th), and the US (26th). By income group, in descending order of income, leaders are Sweden (6th), Brazil (7th), Côte d’Ivoire (1st), and Bangladesh (10th).

Ben Verwaayen, CEO of Alcatel-Lucent, said: ‘The world faces many daunting societal challenges, which require bold, creative leaps to meet them. We need an environment where open innovation can thrive and be supported by dynamic collaboration between industries, enterprise, governments and the scientific community.’

Shumeet Banerji, Chief Executive Officer of Booz & Company added: ‘The ability to innovate is the great equalizer in the global economy. In the industrial era, nations relied on their natural resources to compete. Today, any country can advance with carefully focused investments in talent and R&D. The performance of some emerging economies in this year's GII shows what nations can accomplish with a focus on building 21st century economies.’

The top ten economies in the GII 2011 ranking are:

1. Switzerland6. Denmark
2. Sweden7. United States
3. Singapore8. Canada
4. Hong Kong (SAR)9. Netherlands
5. Finland10. United Kingdom


The GII is a collaborative effort


Alcatel-Lucent, Booz & Company, the Confederation of Indian Industry, and the World Intellectual Property Organization (WIPO) are Knowledge Partners in the GII. Knowledge Partners participated in the project by providing their input to the research underlying the GII, and contributing to the dissemination of the results. In addition, in 2011 for the first time, an Advisory Board comprised of nine international practitioners and experts who bring unique knowledge and skills in the realm of innovation was created to assist with the research and the dissemination of results.

Although the general framework of past editions was maintained, important efforts were made this year to incorporate novel objective metrics from international organizations and private sources. The European Commission Joint Research Centre (Ispra, Italy) performed an independent assessment of the robustness of the GII 2011 results by means of a thorough Statistical Audit, the results of which are included in the Report.

The Report includes analytical chapters to expose recent global innovation trends that can hardly be captured by traditional metrics. These were provided by Knowledge Partners, all leading actors in the area of innovation. Topics include: affordable innovations in India; insights on innovation in Latin America; the smart and sustainable cities; the global footprint of R&D, and metrics on creativity and copyright-related industries.

You can download the The Global Innovation Index 2011 Report here
You can download the executive summary of The Global Innovation Index 2011 Report here

Mauritius - Opportunities and benefits

Bedell Cristin (Mauritius) Partnership have produced a jurisdictional guide to Mauritius which outlines the many advantages in using Mauritius as a jurisdiction of choice to structure sophisticated legal transactions relating to the African and Asian markets.

Please click on this link to download a copy of this guide

29 June 2011

South Africa: Residency, permanent establishment and liability for tax of a Mauritian trust

One of the principal determinants of residence of a company or trust is the location of its Place of Effective Management. For the first time in ten years, we have obtained some insight into the manner in which South African courts may approach the interpretation of this term, which is so vital to certainty.

Mauritius Elected to the Chairmanship of UNCITRAL

Mauritius was elected to the Chairmanship of the United Nations Commission on International Trade Law (UNCITRAL) at the 44th session of the Commission held in Vienna this week. Mr. Salim Moollan, who has been the Mauritian delegate at UNCITRAL since 2006, succeeds to Mr.Ricardo Sandoval Lopez of Chile as the elected Chairperson for the next 12 months.

UNCITRAL is the core legal body of the United Nations in the field of international trade law, and a legal body with universal membership specialising in commercial law reform worldwide for over 40 years. Its mission is the modernisation and harmonisation of rules on international business. The Commission’s work is premised on the development of trade as a means to faster growth, higher living standards, and new opportunities through commerce. In order to increase these opportunities worldwide, UNCITRAL’s work focuses on the formulation of modern, fair and harmonised rules on commercial transactions.

In a statement in the National Assembly on 28 June, the Prime Minister, Dr Navin Ramgoolam, GCSK, FRCP, expressed his satisfaction at the election of Mauritius to the Chairmanship of UNCITRAL. “ The election of Mauritius to the Chairmanship of UNCITRAL with the support of the representatives of the 60 Member States of UNCITRAL will no doubt give further momentum to our long-term commitment to making Mauritius a hub for international arbitration in the years to come” he said.

The UNCITRAL, established by the United Nations General Assembly in 1966, plays an important role in developing that framework in pursuance of its mandate to further the law of international trade by preparing and promoting the use and adoption of legislative and non-legislative instruments in a number of key areas of commercial law. Those areas include dispute resolution, international contract practices, transport, insolvency, electronic commerce, international payments, secured transactions, procurement and sale of goods.

Mr. Moollan is already chairing one of UNCITRAL’s Working Groups dedicated to International arbitration. He is a barrister in independent practice from Essex Court Chambers in London and from the Moollan Chambers in Mauritius. In addition to his part-time work at UNCITRAL, Mr. Moollan is the Vice-President of the International Court of Arbitration of the International Chamber of Commerce, and a Visiting Lecturer in International Arbitration Law at King’s College, London.

28 June 2011

FSA hosts conference to launch debate about the future of conduct regulation

The Financial Services Authority (FSA) has today launched a debate about the type of regulator needed to restore customer trust in financial services.

In his speech to the conference, Hector Sants, FSA chief executive and PRA chief executive designate, said:

“It is not the regulator’s role to determine its own mandate. That is for society as a whole to agree. An independent regulator’s job is then to select the best tools to use.

“But unless the outcomes those tools are designed to achieve are aligned with society’s expectations, the regulator will not have the necessary mandate to operate, nor will it be a sustainable institution. As I have said before this was undoubtedly a problem for the FSA.”

In her speech at today’s meeting, Margaret Cole, interim managing director of the conduct business unit, said:

“The failures of the past ten years mean that change is essential. We have a once in a generation opportunity to shape the new regulatory structure and challenge past orthodoxies. We must not waste it.

The FCA approach document and today’s conference are our first steps in rising to this challenge. We have time between now and the end of 2012 when the FCA is due to be established to consider what kind of regulator society wants the FCA to be and what this means for its operating model.

“It is critical that the issues are widely debated. For the FCA to be a credible and effective regulator it must have the support and backing of Parliament and the public from the outset. What it can be expected to do and achieve and what is outside its remit, undesirable or impossible to achieve should be clearly understood. Central to this is the recognition that the FCA will not be able to prevent all failures either of individual firms or in the way that firms treat their customers.”

SFO: Three more charged in relation to a £10 million "Ponzi" scheme

Three individuals have today appeared before Bradford Magistrates Court in response to a summons in connection with an alleged fraudulent investment scheme. The scheme targeted British nationals and other expatriates living in Mallorca, as well as investors in France and the USA. Over £10m was obtained from investors with losses believed to be around £6 million.

Daniel Hirst (D.O.B 11/09/76) of West Yorkshire; Linda Christine Hirst (D.O.B 24/10/49) of Surrey and Zoe Waite (D.O.B 19/09/75) of Surrey were charged with offences under the Proceeds of Crime Act 2002.

This follows the charging of John Neil Hirst (D.O.B 11/03/51) on 16 March 2011 with Conspiracy to Defraud and Money Laundering offences. [See note 2]

Background

Gilher Inc was a Panama and Seychelles registered company, operated by John Hirst, which invested funds on behalf of private clients. The investigation, which started in November 2009 following complaints made to the SFO by investors, has been conducted with the assistance of West Yorkshire and Surrey police forces and overseas law enforcement authorities. The involvement of other suspects is still being investigated.

Notes:

  1. The Serious Fraud Office is a government department responsible for investigating and prosecuting serious and complex fraud. The SFO is headed by the Director (Richard Alderman) who exercises powers under the superintendence of the Attorney General. These powers are derived from the Criminal Justice Act (1987).
  2. John Neil Hirst was charged on 16 March 2011 with Money Laundering and Conspiracy to Defraud offences in relation to running the Ponzi scheme.

KPMG: For Investment Managers, Meeting Wide-ranging Regulatory Reforms Calls for Balancing Act

There’s little argument in the global investment community that the raft of new regulatory reforms designed to address systemic risk, investor protection and governance are complex, overlapping and may have unintended consequences for the industry. The key to success will be leveraging them for advantage, according a new report from KPMG International.

The report, Evolving Investment Management Regulation - Meeting the Challenge, advises investment managers to begin now to navigate the varied pace and levels of regulation around the globe with new business models that can transform regulatory imperatives into catalysts for competitive opportunity and constructive outcomes.

At issue for the global investment management community is the set of multiple regulatory initiatives in various states of play across three key regions of the world – Europe, Asia Pacific and the Americas – reforms that impact retail distribution, product development, governance, alternative investments, capital markets and pensions. At the heart of the global reform is having the proper framework in place for risk and liquidity management and greater transparency, to ultimately regain investor confidence.

“The global investment management industry faces a period of unprecedented regulatory upheaval,” said Tom Brown, European head of investment management at KPMG in the UK. “There are an overwhelming number of overlapping, and even contradictory regulatory initiatives, at various stages of development globally. Investment managers are left to make sense of the patchwork of regulations which will inevitably lead to regulatory arbitrage with the telltale signs pointing strongly toward Asia, as Europe and the US become less competitive.”

“While the industry recognizes the need for regulation, some of which is undoubtedly beneficial for the industry, the volume of regulation can be viewed as over-the-top as numerous unintended consequences have emerged,” added Mr. Brown. “The challenge is achieving the right environment for restoring investors’ trust while striking the correct balance between investor protection and commercial viability. It is undoubtedly a balancing act that can only be achieved if regulators engage in open and honest dialogue with the industry but there will inevitably be trade-offs.”

“Understanding the totality of regulatory requirements and the strategic implications for a business is the key to put one ahead in the race,” Mr. Brown said. “With the UCITS (Undertakings for Collective Investments in Transferable Securities) IV effective July 1 in Europe for example, we expect and hope that fund managers will take advantage of the opportunities that the optional requirements present under this reform.”

The report examines the many overlapping regulatory initiatives facing the global investment management industry including PRIPS, UCITS IV, FATCA and AIFMD and offers regional perspectives from Europe, the US and Asia Pacific.

Europe

UCITS IV is the major focus for all European fund managers. As the implementation deadline approaches, fund groups are focusing on the mandatory elements rather than the optional changes which fund managers should be taking advantage of in order to generate further efficiencies. Tax is the primary obstacle blocking the path to creating a single European market through UCITS with further work required to ensure cross-border funds are successful and competitive.

Apart from UCITS, attention is focused on raising the bar on governance and the overall risk and control framework for investment managers as they navigate their way through the new regulatory environment.

The Americas

The report shows that almost a year after its enactment, the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act will result in the most comprehensive overhaul of regulation of financial markets since the Great Depression.

“Technology and greater transparency have caused the investment management industry to become more global in terms of strategies and distribution,” said John Schneider, Advisory Partner and head of Investment Management’s regulatory practice at KPMG LLP in the US.

“Although this global business approach has led to opportunity and growth, it remains uncertain whether global regulatory coordination will continue to lag and potentially impede access to certain regions or countries due to the competitive disadvantages created by increased regulation,” Schneider said.

During the financial crisis, the United States and other regulatory regimes continually voiced that regulatory reform must be a sustained and coordinated global effort. The rationale behind this goal, in part, was to ensure that regulation did not create a competitive disadvantage for one region versus another. With limited success in coordinating globally, the US and Europe at least appear to have enacted similar regulatory changes. At this point it remains unclear whether other regions and countries will follow suit.

Asia Pacific

Investment management regulation remains fragmented in Asia, with regulators in the region taking widely different approaches in areas such as funds distribution and product regulation. Some regulators are focused on maintaining the stability of their domestic investment management industries, whereas others have placed more emphasis on attracting overseas investment managers. This results in a mixed outlook for investment management regulation in the region.

KPMG: Investment Management Industry Underprepared for FATCA

A report from KPMG examining the investment management industry’s readiness for the US Foreign Account Tax Compliance Act (FATCA) reveals that a significant amount of work remains to be done prior to its commencement on January 1, 2013.

Only one-third (32 percent) of fund managers surveyed expect to be ready in time for the deadline, and a significant 42 percent have not yet assessed the time needed to comply.

While it appears the industry has a great deal of work left to do, most investment managers are not underestimating the effort or amount of change required to implement this requirement. Thirty-nine percent (39 percent) expect to change their distribution model and 32% expect some level of change to the structure of their product range to implement the requirement.

Georges Bock, global chairman of KPMG’s funds tax group, commented, “At this stage it appears that unless the implementation date is postponed, a large part of the industry risks being unprepared. While investment managers accept that the cost of compliance will be significant, with more than a third (35 percent) expecting to spend more than €1m to implement and comply with FATCA, we predict that a significant proportion of the industry have completely underestimated the cost impact or are assuming that generous carve outs will be available.”

“FATCA represents a major challenge for the investment management community. It impacts product and market strategy, distribution strategy and business models, as well as the fundamental configuration of funds and legal entities. Its scope is significantly broader than the current qualified intermediary regime and its requirements cannot be met with existing processes and systems. In order to comply with FATCA, fund operators will have to fundamentally change their operating models, from the identification and documentation of customers, through the product portfolio, to internal processes and IT systems. Many are finding this process incredibly complex and time consuming.”

Tom Brown, European head of investment management at KPMG in the UK, commented, “If you consider FATCA in the context of all the other regulatory requirements currently facing the industry, it can seem very overwhelming. For many, compliance will be a major headache – but one that cannot be avoided. Individual firms need to thoroughly think through the strategic implications of FATCA as a matter of urgency. While 2013 may seem way off, most US financial institutions and foreign financial institutions (FFIs) have predicted that implementation will take up to 24 months. Time is running out.”

Complying with FATCA will be necessary for any FFIs that plan to continue investing in the US economy. In order to be FATCA compliant, investment funds will have to identify US persons that hold affected accounts or financial instruments on a direct and indirect basis – across the global business. Identifying and providing the relevant information to the IRS will pose a major challenge. Non-participation with the FATCA regime will be expensive and customer relationships will be at risk if clients are unnecessarily subject to withholding or have confidential account information provided to the IRS.

For some players the primary FATCA strategy will be to seek cost efficient solutions; for others, mitigating non compliance risk will be of prime importance; still others will focus on the search for new business.

27 June 2011

IMF Concludes Staff Visit to Seychelles

An International Monetary Fund (IMF) team led by Jean Le Dem visited Victoria during June 20-24, 2011. The team met with Vice President Danny Faure, Governor of the Central Bank of Seychelles Pierre Laporte, Minister of Home Affairs, Environment, Energy and Transport Joel Morgan, Principal Secretary of Finance Ahmed Afif, and other senior government officials as well as representatives of the private sector and diplomatic community.

At the conclusion of the visit, the mission issued the following statement:

“In June, the IMF Executive Board completed the third review under the Extended Arrangement. Discussions for the fourth review are scheduled to take place in early October 2011. The program remains on track, and the mission and the authorities see eye to eye on the challenges ahead.

“Preliminary data for the first quarter of 2011 are favorable. Economic activity continues to be on the rise, supported by a strong tourism sector. Consumer price inflation remains low (about 2 percent year-on-year) as the increase in international prices of food and fuel have not yet passed through to domestic prices. The present fiscal and monetary policy stances continue to be geared toward maintaining macroeconomic stability and reducing public debt.

“We are encouraged by the authorities’ progress in implementing the program of structural reforms, including preparations for the introduction a value-added tax in mid-2012; and steps toward eliminating Air Seychelles’s losses and strengthening competition in the financial sector.

“The mission wishes to thank the authorities for their warm hospitality and the high quality of the technical discussions.”

The Great Game: Clustering In Wholesale Financial Services

Dr Malcolm Cooper's paper “The Great Game: Clustering in Wholesale Financial Services” offers a unique perspective into the development, growth and sustainability of global financial centres in the post-crisis world. It explains why London and New York became so dominant, why they have been able to maintain their positions and the very real threats they now face.

Some key findings of the paper are:
  • The information technology infrastructure is critical to the success of financial services, who are amongst the largest and most sophisticated users of IT systems, but it is a “hygiene issue” not a source of competitive advantage.
  • Face-to-face communication is – and will remain – a key factor. For financial clusters to succeed they must have excellent transport infrastructure internally but also with other financial centres.
  • People are the most important factor and centres need to be able to attract the top talent. This is not just about remuneration, though financial services companies will continue to pay handsomely for the best people, but also the built environment and social factors such as culture and education.
Dr Cooper's analysis of today's financial centres is rooted in his understanding not only of their historical emergence geographically, and politically, for instance, in London, from the City coffee shops of the 17th century; but also in certain behavioural traits of financial services professionals, who he likens to those of the Swiss pike men who dominated Western European battlefields in the 15th and 16th centuries (both being groups of professionals with highly sought after skills whose rarity allowed them to command premium rates).

Launching the paper at a round table discussion at Gresham College Professor Michael Mainelli, Director of Z/Yen Group, said: “Malcolm reminds us that an industry which makes money from volatility only thrives in conditions of stability, particularly political, regulatory and tax certainty. For policy makers in aspiring financial centres, the gauntlet that Malcolm throws down is to create a stable regime while growing. For policy makers in leading financial centres, Malcolm points out that financial clusters are theirs to lose. The challenge is larger for the aspiring, but in today's climate a few leading centres seem to have policy makers who want to lose. For both, Malcolm's paper should be required reading.”

EDHEC-Risk Institute: Danger to UCITS' global status

UCITS have become a highly respected global brand, attracting customers from all over the world in the last few years. Their reputation is now in danger from two directions: from Asia in the long term and possibly, more immediately, from within Europe itself.

IMF Executive Board Reviews Efforts in Anti-Money Laundering and Combating the Financing of Terrorism

On June 1, 2011, the Executive Board of the International Monetary Fund (IMF) discussed the staff paper on Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT): Report on the Review of the Effectiveness of the Program.

Background

Over the past 10 years the Fund has contributed significantly to the efforts of the international community to combat money laundering and terrorist financing. The Fund’s AML/CFT program encompasses (i) assessments of countries’ compliance with the AML/CFT standard established by the Financial Action Task Force(FATF); (ii) the examination of AML/CFT issues in the context of Article IV surveillance; (iii) the provision of technical assistance; and (iv) research and policy development.

The AML/CFT program has experienced a number of successes and changes over the past years, particularly in the areas of assessments and technical assistance.

AML/CFT assessments are integrated into the joint IMF/World Bank financial sector assessment program (FSAP) and forms part of a broader effort within the international community to combat money laundering and terrorist financing. Since 2004, the Fund has conducted 34 assessments; these form part of a body of 186 assessments conducted by 11 assessor bodies, including the FATF and the World Bank, based on a comprehensive, uniform methodology. Many of the assessor bodies have benefitted from the Fund’s assistance in strengthening the quality of their assessments.

The Fund has provided AML/CFT technical assistance on topics such as financial sector regulatory issues, law reform, good governance and institution building. Since 2008 the Fund’s technical assistance program is almost completely financed with external resources. The central pillar of this new approach was the establishment of the AML/CFT multi-donor trust fund which provides the Fund with approximately USD 25 million for the FY2010-2014 period. Donor states that support the trust fund are Canada, France, Japan, Korea, Kuwait, Luxembourg, the Netherlands, Norway, Qatar, Saudi Arabia, Switzerland, and the United Kingdom. The establishment and governance of the trust fund helps ensure that the AML/CFT technical assistance program focuses on areas where the Fund’s comparative advantage results in specific, value-adding contributions to global AML/CFT efforts.

Five years since the last review, the current review of the Fund’s AML/CFT program pointed to a way forward in several areas. This includes moving towards a targeted, risk-focused approach to AML/CFT assessments, revisiting the mandatory coverage of AML/CFT in all FSAP assessments, and providing clearer guidance on the circumstances where AML/CFT should be examined in the context of the Fund’s bilateral surveillance or financial sector work.

Executive Board Assessment

Executive Directors welcomed the opportunity to discuss the effectiveness of the AML/CFT program. They noted that the Fund’s work has significantly contributed to the international community’s response to money laundering and the financing of terrorism.

Directors recognized that AML/CFT assessments are an important part of the ROSC and FSAP programs and rely on close cooperation and coordination with other key players, notably the FATF and the World Bank. Directors noted that, although useful, the comprehensiveness of the FATF standards sets a high benchmark. Compliance remains low, assessments are resource intensive, and country specific issues may not receive full attention. In this context, a few Directors called for further evidence of the effectiveness of AML/CFT assessments.

Against this background, Directors saw merit in exploring ways to strengthen AML/CFT assessments, including the possibility of conducting targeted, risk-based assessments. While Directors acknowledged the potential benefits of a risk-based approach, many Directors preferred to keep options open pending FATF discussions of these issues next year.

Directors agreed that, under a framework for risk-based assessments, the first AML/CFT assessment for a member would be comprehensive while subsequent assessments would focus on those areas that present the greatest risk of money laundering and/or terrorist financing taking place without being detected or sanctioned. This approach would produce better targeted and more focused assessments.

Directors agreed that a shift to targeted and risk based AML/CFT ROSCs would need to be agreed with the standard setter and other stakeholders. In particular, the methodology for conducting such assessments and criteria for the selection of issues to be assessed with respect to specific countries need to be developed in cooperation with the FATF and the FATF-style regional bodies along with other stakeholders. Directors agreed that staff, in continued close cooperation with the World Bank, should raise these issues with FATF and report to the Board within two years. To the extent that there is a sufficient consensus within the international community to move to a risk-based approach, Fund staff should also make a specific proposal on how to move forward, including an analysis of the associated resource implications.

Directors recognized that the FSAP framework has provided an effective mechanism for addressing AML/CFT issues on a consistent basis. Most Directors agreed to maintain the mandatory link of AML/CFT assessments with every FSAP, although a number of Directors expressed the view that, going forward, the incorporation of AML/CFT into an FSAP should be determined on a case-by-case basis, as is the case for other standards and codes and if justified by the level of money laundering and terrorist financing risks.

Directors continued to support Fund collaboration with the FATF, including its International Cooperation Review Group (ICRG) process towards non-cooperative jurisdictions (NCJs). Consistent with guidance provided in the recent Board review of the Standards and Codes Initiative, Directors agreed that staff should continue to participate in the ICRG, play a “good offices” role, and provide relevant information on member countries under review with the consent of the relevant members, while refraining from participating in those aspects of the process that are coercive in nature. Directors noted that staff participation in such cases should not be seen as an endorsement of possible public statements on NCJs.

The majority of the Board endorsed the approach and considerations outlined in the paper for the coverage of AML/CFT issues and their related predicate crimes in the context of modular financial stability assessments under the FSAP and bilateral surveillance. However, a number of other Directors expressed the view that the framework proposed by staff, although useful, required further elaboration before it could be applied for the purposes of financial stability assessments and bilateral surveillance under Article IV. In addition, Directors broadly supported the continued inclusion of AML/CFT issues in Article IV discussions on a voluntary basis, while a number of Directors favored a more consistent treatment across members of these issues in bilateral surveillance.

Directors welcomed the strategic delivery of the Fund’s AML/CFT technical assistance program, which is now almost exclusively funded by external resources.

Directors noted that the next review of the AML/CFT program would be expected to be completed within the next five years.

26 June 2011

Wragge & Co: Before you take the plunge - International arbitration

Arbitration is a method of private, final and binding dispute resolution before a neutral tribunal. The tribunal derives its jurisdiction from the parties' agreement to submit their disputes to arbitration. Arbitration is supported by statute and international conventions and has become the favoured method for resolving cross-border commercial disputes.


In this, the second part of our mini series on international arbitration, we take a look at the issues to consider when making decisions on where, and under what rules, arbitration will take place.

In this, the third part of our mini series on international arbitration, we look at when parties might issue proceedings in their home courts, and what the options are if they do.

In this, the fourth and final part of our mini series on international arbitration, we look at why this is and consider some key points to bear in mind. We look at this from the perspective of a successful claimant wanting to enforce an English award overseas. However, claimants wishing to enforce overseas awards will have similar issues to consider.

25 June 2011

OECD - Global SIFIs, Derivatives and Financial Stability

This paper looks at Global Systemically Important Financial Institutions (GSIFIs) and the global derivatives business. The derivatives business has grown exponentially versus global GDP in sharp contrast to the primary securities on which derivatives are based. Inter-connectedness risk and unconstrained potential leverage remain the most urgent tasks still facing the financial reform process. Concentrated oligopolistic derivatives markets and the ability of banks to shift promises and/or use their IRB models to estimate ex-ante risk capital – capital that might be needed in the event of a crisis – undermine the intent of financial reform. Nor do netting and clearing eliminate aggregate risk of losses and bankruptcy. The paper repeats the need to implement two of the OECD’s long-standing reform recommendations: a binding leverage ratio based on equity and the separation of high risk investment banking activities from traditional banking. A derivatives transactions tax is also put forward as a possible option that would counter the cross-subsidisation of risk from the too-big-to-fail (TBTF) problem.

24 June 2011

McKinsey - Will the goose keep laying golden eggs? Is the turbulence behind us?

Despite signs of recovery, the European asset management industry's short-term performance is stronger than its long-term health appears to be.

Download (PDF—973K)

HFM Week Guernsey Special Report, June 2011

Lyndon Trott, Chief Minister of Guerrnsey, provides the introduction to this year's HFM Week report into Guernsey's funds industry published in June 2011.

This overview looks at latest news, statistics, trends and developments from the legal, accounting, management, administration and custody servicing of alternative investments including hedge funds, private equity and property funds, as well as other niche asset classes.

Contributions from:

  • Peter Niven, Guernsey Finance
  • Carl Rosumek, Guernsey Financial Serrvices Commission (GFSC)
  • Tamara Menteshvili, Channel Islands Stock Exchange (CISX)
  • Gavin Farrell and Valerie Rouse, Mourant Ozannes
  • Robert Varley, Babbe
  • Paul Wilkes, Collas Crill
  • David Dorey, Bedell Fund Services
  • Patricia White, Legis Fund Services
  • Richard Bray, Active Group
  • Keith Johnson, Deutsche Bank

Offshore Pilot Quarterly (June 2011, Volume 14 Number 2)

Preface

Oscar Wilde said: “The only thing to do with good advice is to pass it on. It is never of any use to oneself”. I believe I am doing just that and I would recommend this particular issue of the Offshore Pilot Quarterly to anyone who is dipping his toe into offshore financial waters for the first time.

The Shaw Paradox

“There are only two qualities in the world: efficiency and inefficiency, and only two sorts of people: the efficient and the inefficient”. Certainly in the case of business I would agree with George Bernard Shaw and most of my readers need to be mindful of this fact as they pursue their offshore endeavours. Sometimes, however, it is not as straightforward as Shaw suggests because the efficient can derail themselves and lose their hard-earned reputations by failing to recognise the need to strike the right balance between capability and capacity. This means applying the Toyota test to their business because what is germane to vehicles with motors is equally relevant to those without them and which are used in traditional offshore planning.

Following the car manufacturer’s problems with safety failures last year, Akio Toyoda, president of the company, made two statements which have universal application, whatever the widget might be. Firstly, he said: “We pursued growth over the speed at which we were able to develop our people and our organisation” and, secondly, that in future he would see to it that “members of the management team actually drive the cars”. Despite the Japanese philosophy of “kaizen” (constant improvement through small, positive steps) quality in this instance, notwithstanding the skill of the workers, played hostage to quantity; proficiency was sacrificed for profit.

This is a classic case of those at the top not knowing what is going on beneath them; the frightening thought is that Toyota is just one example – albeit an international high-profile case – of what is happening right across the board in business and which contributed considerably to the woes of the Great Recession. Consider that when Lehman Brothers went under in 2008 it was almost impossible to know who the debtors and the creditors were as a result of the way business had been conducted. You had a situation where departments, whether dealing with credit default swaps or currency forward transactions, were using different technological systems that didn’t integrate with each other; to compound the confusion, the regulators did not have a grip on either the activity or exposure levels present in the over-the-counter derivatives market (not to mention large parts of structured finance); worryingly, the face value of derivatives was over US$600,000 billion in June 2009.

In the March Offshore Pilot Quarterly I wrote about the need to analyse, listen and read; the quality of the information source in all three cases is key to the process (beware twits using Twitter) because if it’s of a high standard it puts the odds in your favour, provided the decisions you make are evidence-based. The conundrum for the public is this: the capable can still produce a service inefficiently and the incompetent can be efficient in what they do. We all remember how professional mortgage lenders were before the housing collapse in providing mortgages until their incompetence became apparent. If the provider has proven competence, but his service is inefficient, then more often than not, as Mr. Akio Toyoda put it, there is a miss-match between growth and the ability to deliver. Another possibility, of course, is that the business is driven to maximise profit because debts created to sustain it must be serviced and cash flow is crucial. If, like Cassius in Shakespeare’s play, Julius Caesar, the business has too lean and hungry a look, this is probably a good reason to be very cautious in your dealings with it.

Remember, too, that the need to balance the books can lead a business into uncharted waters, straying from core services into new areas of (hopefully) profit but which, without attention to detail, can have the effect of diluting the overall quality of the company’s business, besides making its operations more complex. As I also wrote in March, doing business in general has become more complicated and while Henry David Thoreau, a philosopher whom Ralph Waldo Emerson described as the bachelor of thought and Nature, urged us to “simplify, simplify, simplify” this belief has frequently been replaced (often because of pecuniary motives) with the doctrine of “mystify, mystify, mystify” – particularly the unsuspecting client.

Eyebrows and Noses

When choosing offshore service providers, if none of the danger signals or observations already made give you cause for concern, then the next important quality to look for is enthusiasm, which is usually accompanied by a desire to continually improve the service, both of which are the hallmarks of craftsmanship. Titian, the Venetian painter and 16th-century master, even at the age of 90, believed that he was still learning his craft. Craftsmanship, much like the need for simplification, is an important aspect of business but it is too often overlooked. This is a pity because what I think business needs more of today is just that. A proponent of craftsmanship is Richard Sennett, professor of sociology at the London School of Economics, who lectures on the subject – one which is not to be confused with academic qualifications, any more than competence, as I say, is to be considered akin to efficiency. What the professor wonders about is whether or not a dedication to craft, and the desire to do it well, can survive in the 21st century, especially, it must be said, in large organisations where there often seems to be an inverse result: the larger the company, the more the quality is diluted.

Qualifications, as with craftsmanship, must be tailored to the job at hand. An MBA qualification, for example, is a useful general business tool but I also recognise that dentistry calls for special skills and even if an MBA degree will help a dentist and his partners manage their very large thriving practise better, it is not fundamental to the skills needed by them. It is no coincidence that following one financial faux pas after the other, banking regulators in the UK have asked if it should be necessary for senior staff at banks to possess Chartered Institute of Bankers qualifications. A ridiculous question if the subject was doctors, but consider the damage bungling bankers have caused to the health of global economies this century.

Regular readers recall my previous references to Walter Bagehot whose 1873 book, Lombard Street, is considered by many as a masterpiece on central banking. In those days Lombard Street was the 19th-century London equivalent of New York’s Wall Street. Bagehot provided sage views, one of which was that the “amateur element” of central banking must be diminished and, at the same time, the trained banking element has to be increased. Unfortunately, 138 years later we find that his opinions, such as those on lending and strengthening the banking system, went unheeded or were forgotten in the hyped, hectic days of banking before the Great Fall this century. It must be so if one considers these words from his book: “I have written in vain if I require to say now that the problem is delicate, that the solution is varying and difficult, and that the result is inestimable to us all”.

Obviously, Ayn Rand’s book, “Atlas Shrugged”, dedicated to the praise of self-interest in a world inhabited by powerful men who owe no debt to the inferior masses of mankind, proved to be a more popular approach in the long run (one of its avid fans was Alan Greenspan, the former chairman of the US Federal Reserve)

Interestingly, however, before the full impact of the modern world of banking was felt in the City of London, particularly with the arrival of the American banks in large numbers during the 1960s, the City itself was still a gentleman’s club where, to a large degree, amiability rather than ability ruled. In the 1970s Anthony Montague Browne, Winston Churchill’s last private secretary, joined Gerrard & Reid, a discount house in the City, and he commented how he was surprised to find how many bankers, even if technically trained, displayed a “sheer lack of intellectual horsepower or any general historical or political knowledge”. In fact, Maynard Keynes, the late economist, had this to say about Montagu Norman, a former governor of the Bank of England during the era: “… always absolutely charming, always absolutely wrong”. Norman made judgements by instinct rather than analysis and when asked how he made up his mind on major questions, he said he did so by tapping his nose three times. He was famous for conveying disapproval by raising his eyebrows; since then the conduct of central, not to mention other, bankers has had most of us raising ours as well.

Horses and Wrestlers

Although I advocate training for your trade and preparation for your profession, there are instances where extremes arise and when judgement is bullied by bureaucracy. Philosophy is a fine case in point and which only became a profession during the last few centuries. Both Socrates and Baruch Spinoza were neither professors nor tenured dons, anymore than England’s ecclesiastical courts, which applied the virtues of equity by measured judgement, were peopled by lawyers; their robes were those of the church rather than the courts. The Chancellor of the Court of Equity (usually a bishop) was not only the King’s chaplain, but was also said to be his conscience. Equity required moral judgement to be undertaken by men who (hopefully) like Aristotle and Spinoza possessed a combination of common sense and tolerance, embracing compassion for the human condition, and all of which infused their thought.

As I have written before, many trust issues are about sound reasoning and not the contents of statute books; sometimes courts could benefit more from it – and remember that Robert Jackson, the American chief prosecutor at the Nuremberg war-crimes tribunal after the Second World War, attended just one year of law school. Plato may have wished for states to be ruled by philosopher-kings but I argue that business needs more wholesome philosophy injected into it, one that is imbued with, what I just mentioned, measured judgement.

Things equestrian, not just equity, can shine a light on fractured reasoning. Probably, like myself, you have never had reason to consider that horses in the wild eat tough grass which will gradually wear down their teeth, whereas in captivity they are fed softer food and their teeth grow unchecked. Unless the teeth are filed down (the process is called “floating”) the teeth can grow too long and will cut the horse’s cheeks. Floating must be done by hand and it is hard work because besides needing first to calm the animal, its mouth must then be held open and its teeth vigorously filed.

Floaters, however, are not trained veterinarians and in the American state of Texas the State Board of Veterinary Medical Examiners outlawed them, despite the fact that very experienced floaters are tantamount to skilled artisans. The State Board, however, considers a floater as practising veterinary medicine without a license for which fines and possibly prison can be the result; the fact that veterinarians have no specialist training themselves in the field was immaterial. In the event, four seasoned Texan floaters filed suit – as opposed to teeth – in order to be able to continue earning a living. The floaters, with support from the Institute of Justice which champions the cause of economic freedom, won their case (although I understand that the issue is far from over). In the 1950s less than 5% of workers in America needed licences and despite some three decades of deregulation the percentage is now nearly 30%. In some states those affected include florists, handymen, wrestlers and second-hand book sellers.

But how do you licence honesty? Today the City of London, where I worked in the late 1970s, is a changed place. Old school ties – not to mention those of the family kind – are no longer the sine qua non they once were. Innovation – shunned and fought against by the old City guard – has changed London’s financial landscape which, for gentlemen bankers, had its cataclysmic moment with what was called the Big Bang in October 1986, when new radical rules came into force, heralding the entry of foreign banks and trading companies along with a more US-style business culture. Tonamura-San, then head of Nomura International plc in London, perhaps put it best: “I am not good enough to play cricket at Lords, but I am about good enough to play baseball in Regent’s Park”.

Whatever the game, one of the cornerstones of business was lost in the new banking era, and which had been identified back in the 1930s by the late Henry Grunfeld, co-founder of S.G. Warburg & Co., the merchant bank, a man described as one of the principal architects of the City of London’s revival after the Second World War. Mr. Grunfeld, upon arrival in London as a refugee from the Gestapo, spoke of the presence of an ethos of trust in the City; this essential commercial commodity runs in tandem with everything I have written about up to this point and it should be at the forefront of your mind when picking the offshore professional who will manage your international affairs. Ethics, efficiency, ability and craftsmanship make up the quartet to ponder, whether the skill calls more for the hands (floaters) or the head (banking) and, of course, the practitioner with them does not need to understand Latin to live instinctively by the code, Dictum Meum Pactum – my word is my bond.

To paraphrase Mr. Bagehot, the choice of an offshore service provider may be delicate but the decision is inestimable to the individual; most certainly it shouldn’t cause you to ever raise your eyebrows.

Offshore Pilot Quarterly has been published since 1997 by Trust Services, S. A. and is written by Derek Sambrook