BERMUDA Law and Practice Contributed by: Ian Stone and Leo Shaw, Wakefield Quin Limited
Listing Regulations, which include ongoing disclosure obligations relating to changes in the board, material related-party transactions and financial reporting. 5.3 Incorporation and Registration Companies in Bermuda are incorporated through the ROC. The incorporation process requires the filing of a memorandum of association and the payment of the prescribed fees. The company must confirm in its application whether it will carry out a relevant activity for the purposes of the Economic Substance Act 2018 and whether it is a Bermuda constituent entity for the purposes of the Corporate Income Tax Act 2023. Following enactment of the BOA, the former exchange control powers of the BMA are no longer relevant to incorporation. Key ongoing filings include: • the annual declaration and payment of the annual government fees (Section 131); • notification of changes to the register of directors and officers (Section 92A-B); and • since the BOA, the filing of beneficial ownership information with the ROC. The memorandum of association (but not the bye- laws) is a public document. The register of directors and officers and register of members are available for inspection by the public at the registered office. Finan - cial statements do not need to be filed with the ROC and are not publicly available. The beneficial owner - ship register is not publicly accessible. Failure to file can result in fines. Under Section 261 of the Companies Act, subject to following the pre - scribed process the ROC may strike a defunct com - pany off the register. 5.4 Global Anti-Money Laundering Bermuda’s AML/ATF framework is principally con - tained in the Proceeds of Crime Act 1997, the Anti- Terrorism (Financial and Other Measures) Act 2004 and the Proceeds of Crime (Anti-Money Launder - ing and Anti-Terrorist Financing) Regulations 2008 (together, the “AML Regulations”). The Financial Intel - ligence Agency (FIA), established under the Financial
Intelligence Agency Act 2007, is Bermuda’s financial intelligence unit. Regulated entities (eg, banks, insurers, investment businesses, trust companies, and corporate service providers) are required to: • establish and maintain AML/ATF compliance pro - grammes; • appoint a money laundering reporting officer; • conduct customer due diligence; • maintain records; and • file suspicious activity reports with the FIA. The board is responsible for commissioning and reviewing the annual AML audit under Regulation 17A and ensuring remediation of any findings. The BMA is the supervisory and enforcement authority, and is responsible as part of its regulatory function for moni - toring compliance with the AML Regulations. Directors might face personal liability for non-compli - ance, including criminal prosecution under the Pro - ceeds of Crime Act 1997 (carrying imprisonment and/ or fines) and regulatory enforcement by the BMA. The BMA’s supervisory assessment of the fitness and propriety of directors of regulated entities encompass - es compliance with applicable AML Regulations. The board of directors of a regulated entity is expected to have oversight of the entity’s AML/ATF compliance programmes. 6. Audit, Risk and Internal Controls 6.1 External Auditors Under Section 89 of the Companies Act, every com - pany must, at each AGM, appoint an auditor to hold office until the next AGM, unless the company has elected under Section 88 to dispense with the annual appointment of an auditor (whose election requires the unanimous consent of all members). The direc - tors may appoint the auditor where the members fail to do so. The auditor is required to report to the shareholders on the accounts examined by the auditor (Section 90).
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