MAURITIUS Law and Practice Contributed by: Valerie Bisasur, Jean-Vincent Dacruz and Shane Mungur, BLC Robert & Associates
• competence and capability; • honesty, integrity, diligence, fairness, reputa - tion and good character; and • financial soundness The criteria outlined in the Guideline are to be applied individually, but it is their cumulative effect that will determine whether a person meets the test. A failure to meet one criterion will not, of its own, necessarily mean failure to meet the fit-and-proper-person test. The process will involve a good measure of judgement, which must be exercised in a fair and judicious man - ner, always in the best interests of the institution and the sound conduct of its business. The application of fitness and probity tests may vary depending on the degree of a person’s influ - ence and on the person’s responsibilities in the affairs of the financial institution. The Banking Act and the fit and proper criteria contained in the Guideline further set out the responsibilities of the board, the CEO, the per - sons subject to the tests and external auditors. The board of directors must establish a fit-and- proper-person policy as well as implementation processes in line with the Guideline, and must apply the policy to directors, senior officers and shareholders that can exercise significant influence on the institution. The board’s further responsibilities include ensuring that nomina - tions, initiated by the board, of persons for elec - tion to the board of directors/senior officer must meet the test of the fit and proper person as set out in the Guideline before such nominations are placed before the shareholders’ meeting or the board of directors. In the event of the acquisition of shares by per - sons who are likely to exercise significant influ -
ence on the financial institution, they must meet the test of fit and proper persons before their shares are registered in the register of sharehold - ers, and the BoM must be advised if events have occurred that put into question their ability to meet the test. Providing the requirements of the Banking Act are complied with, including those with respect to prior notice to the Central Bank for the appointment of a senior officer, the notice should be accompanied by a completed questionnaire outlined and annexed to the Guideline along with complete information on any objections or con - trary views expressed by any director. It remains the board’s responsibility to keep the fitness and probity of all persons covered under the Guide - line under constant review. The board should, on a priority basis, take a decision in the case and initiate whatever action is necessary. The board’s proceedings should be properly docu - mented, and the board should advise the BoM of the relevant matter and its decision. The chief executive officer applies the fit-and- proper-person test to other management posi - tions below the senior officer level and reports to the board periodically on the result achieved. It is the individual responsibility of senior officers, directors and shareholders with significant influ - ence to demonstrate that they are fit and proper persons. They must, accordingly, complete the fit-and-proper-person questionnaire and pro - vide any additional information that the board of directors may require to complete its inves - tigation. They are further obliged to notify the board of any events or circumstances that have occurred after their initial fit-and-proper-person assessment that might change the assessment or at least have a material bearing on it. The board should investigate the information, on a
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