Financial Services
(Trust Company Business (Assets – Customer Money)) (Jersey)
Order 2000
1 Interpretation
(1) In this Order, unless
the context otherwise requires –
“approved bank” means a deposit taking institution
established in and authorized by the relevant supervisory authority in a member
state of the European Community or in Australia, Canada, Guernsey, Hong Kong,
the Isle of Man, Japan, Jersey, New Zealand, Singapore, Switzerland or the
United States of America;
“Commission” means the Jersey Financial Services
Commission;
“customer”, in respect of a registered person registered
to carry on trust company business, means –
(a) a person
who has entered into an agreement for the provision of services to be provided
by the registered person when carrying on that trust company business; or
(b) a person
who has received or may receive the benefit of services provided or arranged by
the registered person when carrying on that trust company business;
“customer money”, in respect of a registered person
registered to carry on trust company business, means trust company business
assets consisting of money that the registered person has control of or is
otherwise responsible for which the registered person is required to safeguard
in accordance with the responsibilities the registered person has accepted in
the course of carrying on that trust company business;
“customer pooled bank account”, in respect of a
registered person registered to carry on trust company business, means a bank
account that is opened by and in the name of the registered person that holds or
is intended to hold customer money in respect of 2 or more customers of the
registered person but does not include a designated joint account;
“designated joint account”, in respect of a registered person,
means a bank account that is opened by and in the name of the registered person
that holds or is intended to hold customer money in respect of 2 or more
customers of the registered person where –
(a) those
customers agreed in writing when the account was opened that it would be a
designated joint account; and
(b) money
in the account is to be used to finance a joint enterprise;
“joint enterprise” means an enterprise into which the
persons participating enter for commercial purposes related to a business
carried on by those persons; and where a person participating is a company,
each company with which it is connected shall also be regarded as a person
participating in the enterprise;
“Law” means the Financial Services (Jersey) Law 1998;
“money”, in respect of customer money, includes cash,
cheques and other payable orders and money deposited in accounts, in each case,
in any currency.
(2) If customer money
referred to in this Order is trust property the trust and the beneficiaries
under the trust shall be treated for the purposes of this Order as one
customer.
2 Records of customer money to be kept
(1) A registered person
must keep adequate records of customer money.
(2) The records
must –
(a) show
each transaction in respect of the money in a manner that allows the
transaction to be identified and traced;
(b) be
kept in a manner that allows the balance due to each customer to be identified
and traced; and
(c) be in
a form that allows the records to be reconciled on a timely basis so that any
error can be corrected promptly.
3 Reconciliation of customer money
A registered person must promptly carry out a reconciliation between
the records of customer money kept by the registered person and any statement
received from a bank in which customer money is kept.
4 Interest on customer money
(1) A registered person
must in so far as it is reasonable and practicable to do so ensure that
interest is received on customer money.
(2) A registered person
shall credit interest received on a customer’s money to the customer.
(3) Paragraphs (1) and
(2) shall not apply to any extent the customer otherwise agrees.
5 Customer money not to be mixed with other money
(1) A registered person
must ensure that in so far as it is possible and practicable to do so customer money
and other money is not mixed.
(2) It shall be a defence
for a registered person charged with an offence under paragraph (1) to
show that when the person became aware that the money was mixed it was
separated within 2 days of it being possible and practicable to do so.
6 Use of customer money
(1) A registered person
must ensure that a customer’s money is not used for another customer
without proper authority.
(2) A registered person
must ensure that customer money is not disbursed unless it is –
(a) properly
payable to a customer;
(b) properly
payable by or on behalf of, or in respect of a customer; or
(c) otherwise
properly transferred.
7 Customer money in a customer pooled bank account
(1) A registered person
must ensure that if customer money is kept in a customer pooled bank
account –
(a) the
account is with an approved bank;
(b) the
account includes words or other information in its title that clearly indicates
it to be a bank account for customer money of the registered person and not an
account for money that belongs beneficially to the registered person; and
(c) an
undertaking is given by the approved bank.
(2) The undertaking must be
to the effect that the bank –
(a) acknowledges
that money standing to the credit of the account is and shall be accepted by
the bank as being held by the registered person as a trustee; and
(b) accordingly
undertakes not to combine the account with any other account nor to exercise
any right of set-off or counterclaim or any security interest against money in
the account in respect of a debt or other obligation owed to it by the
registered person.
(3) A registered person
must ensure that a customer pooled bank account is not knowingly overdrawn.
8 Exemptions
(1) The Commission may on
the application of a registered person exempt the person from compliance with
any requirement of this Order.
(2) The Commission shall
not grant an exemption unless it has first satisfied itself that by virtue of
the trust company business the registered person carries on or intends to carry
on no customer of the person is likely to be prejudiced if the exemption is
granted.
(3) An exemption may be
granted subject to the registered person complying with conditions specified by
the Commission.
(4) An exemption granted
under paragraph (1) shall be of no effect if the registered person fails
to comply with any condition imposed under paragraph (3).
9 Citation
This Order may be cited as the Financial Services (Trust Company
Business (Assets – Customer Money)) (Jersey) Order 2000.