Isle of Man: Offshore Business Sectors
Although the number of banks established in the Isle of Man has fallen slightly over recent years, the calibre and scale of banking operations has been showing marked improvement. The Royal Bank of Scotland International, the Royal Bank of Canada, Coutts (Northern European HQ) and Merrill Lynch have all moved to the Isle in the last few years and NatWest has ring-fenced its offshore business by moving to the Island.
Several international banks with branches on the island offer global payment-processing solutions, and Manx Telecom offers an Island-based secure e-payment platform which can take multi-currency and Sterling-based transactions, enabling Island businesses to market their products globally.
Manx Internet banking operations tended initially to share the rather limited success that attended Internet banking operations generally. One of the more high-profile Isle of Man Internet banks was F Sharp, a subsidiary of the Bank of Ireland, and in October 2001 it was merged back into the offshore operations of its parent, Bank of Ireland, to be known in future as Bank of Ireland F Sharp. In recent years, however, most of the better known Manx banks have begun to offer Internet facilities.
Total deposits at the end of June 2013 were GBP55.18bn, a fall of more than GBP4bn since March 2013, and significantly less than the peak of GBP69.96bn on December 31, 2008.
The Island's banking industry is dominated by subsidiaries or branches of the main UK clearing banks and some foreign banks. The majority of banks in the Isle of Man are engaged in providing private banking services to UK expatriates and to foreign nationals. The services offered often extend beyond deposit taking to establishing and administering trusts and managing the underlying companies and assets held by those trusts, including investment management. The growth in other areas of the Island's finance sector, including captive insurance, life assurance, collective investment schemes, investment management and ship management, means that these organisations have sums of money to invest and therefore require investment management services. Some banks also act as trustees to collective investment schemes.
Banks are regulated by the Financial Services Commission under the Financial Services Act 2008. This new legislation, which came into force on August 1, 2008, consolidated several pieces of financial services legislation, including the Financial Supervision Act 1988 and the Banking Act 1998, into one Act and simplified the licensing regime. The underlying regulations remain largely unchanged however, although the term 'banking' has been reclassified as 'deposit taking.'
A licence to carry on the Class 1 regulated activity of Deposit Taking permits a business operating in or from the Isle of Man (with certain specified exclusions) to accept deposits of money, where:
- the money received by way of deposit is lent to others; or
- any other activity of the person accepting the deposit is financed wholly, or to a material extent, out of the capital of or interest on the money received by way of deposit.
Unless otherwise agreed with the Commission, all businesses which either held banking licences and accepted deposits, or held building society authorisations until July 31, 2008, will normally hold licences to conduct Class 1 Deposit-taking with effect from January 1, 2009. Banks and building societies that additionally conducted investment business until July 31, 2008, will normally also hold licences to conduct Class 2 Investment Business with effect from January 1, 2009. Banks that managed another bank or building society until July 31, 2008 are expected to hold licences to conduct Class 7 Management or Administration Services with effect from January 1, 2009.
Prior to the new legislation, banks operated under either a full or restricted banking licence. The Financial Supervision Commission regulated the banking and investment industry under the powers created by the Financial Supervision Act 1988 and the Investment Business Act 1991.
An unrestricted banking licence permitted a bank to conduct investment business without holding a separate investment business licence. However, unless otherwise agreed with the Commission, all businesses which held banking licences and were conducting investment business are now expected to hold licences to conduct Class 2 Investment Business.
A Managed Bank employs the services of another licensed bank in the Isle of Man, the "Approved Manager", to provide the day to day management and administrative functions to it. The Managed Bank may not employ any staff in the Island without the consent of the Commission and it must operate from the premises of the "Approved Manager". Unless otherwise agreed with the Commission, all banks that were approved under the old legislation to manage another bank or building society are expected to hold licences to conduct Class 7 Management or Administration Services.
The Commission’s General Licensing Policy provides guidance for banking licenceholders. A licenceholder and its key staff are required to be 'fit and proper' persons. The Commission’s licensing policy is to apply a test of fitness and propriety in the key areas of integrity, competence and solvency.
The fit and proper test is both an initial test at the time of granting a licence and a continuing test in relation to the conduct of regulated activities. The test takes into account integrity, solvency and competence. The licensing policy provides guidance on the key requirements, such as:
- Real Presence - the Commission will not licence a mere shell; the company’s management and control must be in the Isle of Man.
- Track record - a licence applicant must demonstrate a proven track record in the successful conduct of the regulated activity for which it seeks a licence, either by being part of a group that already undertakes the activity in another jurisdiction or by key persons having operated at a senior level in a relevant licensed business.
- Staffing – for most classes of business, the applicant should be managed by two “resident officers” who are supported by staff with suitable experience to fulfil the key roles.
Unlicensed banking operations remain a problem and have become known as 'brass plate' companies. These 'rogue' operations are, when reported, investigated by the Enforcement Division of the FSC.
The Banking Act (as amended) recognised the contractual duty of a banker to keep the affairs of his customer confidential and the customers' entitlement to confidentiality. There were very few limited exceptions to these principles, set out in the Financial Supervision Act 1988, and these included circumstances where disclosure was required to assist criminal proceedings or to enable the FSC to discharge its statutory functions.
All banking licence holders are required to participate in the Depositors Compensation Scheme. The FSC is the Scheme Manager. The Banking Business (Compensation of Depositors) Regulations 1991 extends to all licensed banking institutions, except those listed by name in the Schedule. Under the Compensation of Depositors Regulations 2008 as amended by Tynwald on October 23, 2008, and further amended in October, 2010, the DCS compensates people who have money in current and deposit accounts in the Isle of Man with up to GBP50,000 of net deposits per individual depositor or GBP20,000 for most other categories of depositor. Cover is calculated per depositor, per deposit taker, if a bank fails.
Prior to the 2008 regulation, deposits were protected up to 75% of the first GBP20,000 per depositor and the Scheme extends to the sterling equivalent of foreign currency deposits.
The Scheme was successfully operated in respect of the default of BCCI which had a branch in the Isle of Man.
The government announced in July 2001 that it would become the first Crown Dependency with a financial ombudsman which means that customers worldwide will have access to an independent dispute-resolution scheme covering Isle of Man-based financial institutions. The 'Financial Services Ombudsman Scheme' covers complaints about financial advice and products across the range of personal finance such as banking, credit, insurance and investments. The scheme is open to individuals with a financial complaint against an Isle of Man firm that the firm has been unable to resolve. As of 1st August 2008 the legislation under which the Financial Services Ombudsman Scheme (the Scheme) is established changed from the Financial Supervision Act 1988 as amended by the Fair Trading (Amendment) Act 2001, to the Financial Services Act 2008.
In June, 2005, the Isle of Man's Financial Supervision Commission announced that a project was underway to update the Banking (General Practice) Regulatory Code 1999. The key drivers for this project were to update the Banking Code in line with current requirements whilst taking into account the recommendations made by the International Monetary Fund (IMF) inspection team following its visit in 2002.
As a result, the Banking (General Practice) Regulatory Code 1999 was replaced by the Banking (General Practice) Regulatory Code 2005 on July 1, 2006.
The Commission published its approach to Basel II adoption in February 2006.
Said the Commission: "The EU has issued the Capital Requirements Directive (CRD) which all regulators of member states must implement." Although this encouraged adoption from 1st January 2007, the CRD contained a qualification that, where a bank had committed to the standardised approach by 1st January 2008 it was allowed to continue reporting under Basel I during 2007.
"The Isle of Man is not part of the EU and is not under any legal obligation to require locally incorporated banks to report under Basel II from 1st January 2007 or 1st January 2008."
However, the Commission said it understood that locally incorporated banks which are subsidiaries of banks in countries requiring Basel II reporting in 2007 might wish to begin similar reporting to the Commission, whether under standardised or more advanced approaches (re parallel runs). With this in mind the Commission sought to make available the necessary reporting forms and guidance during 2007.
The Commission said it would require locally incorporated banks to report under Basel II with effect from January 1, 2008 for the standardised approaches, with some degree of flexibility on a case by case basis for later adoption.
Basel II required the Commission to make some changes to the Banking (General Practice) Regulatory Code 2005, as amended (the Code). It was expected that these changes would be minor and focus on capital, risk management, and reporting forms (which are specified in the schedule to the Code). In addition, the Commission anticipated that guidance notes would be utilised to supplement the Code to ensure compliance with Basel II principles contained within Pillar 1 and Pillar 2.