Bahamas| Amendments to Stamp Act!

NASSAU, Bahamas (May 30, 2012) Prime Minister of the Bahamas, Perry G. Christie signed the Stamp (Amendment) Bill, 2012 to amend the stamp tax on Real Estate transactions over $250,000 to 10%.

The result of the new Stamp (Amendment) Act 2012 is that all real estate transactions over $100,000 will be now be stamped at 10%.

Unfortunately, the new Amendment has no bearing on the tax payable on properties valued at under $100,000.  The tax level remains the same for such properties.

If you require specific advice regarding stamp duties or otherwise, you should consult a Bahamian Real Estate Attorney.  You may contact a Bahamian Real Estate Attorney by clicking here.

Offshore Banking in The Bahamas

INTRODUCTION 

Offshore banking has grown rapidly in recent times. Offshore centres like The Bahamas serve as headquarters for the branches and subsidiaries of large financial organizations with international affiliations. They are important and useful because of the prevalence of relative tax freedom, absence of exchange restrictions, stability, quality infrastructure, modern communications and skilled human resources. Secrecy between a bank and its customer has diminished in recent times as international best practices demand transparency and openness.

BANKING SERVICES

Banks provide banking for corporations, individuals and businessmen including current accounts regular and term deposits, loan and deposit facilities, and wide range of credit instruments and facilities.

The list includes:

a. Current account services such as the transfer of monies by cheque, transfer of monies by standing orders, transfer of monies by the credit-transfer system, permission to run an overdraft, bank loans, safety deposit boxes, night-safe facilities, and banker’s draft facilities.

b. Deposit account services.

c. Savings account services.

d. Other services such as foreign exchange purchasing and selling for importers and exporters, acting as intermediaries in dealing with stockbrokers overseas, executorships and trustee services, insurance, financial advice to customers, credit ratings and credit worthiness, banker’s credit cards, discounting Bills of Exchange, and investment management services.

In fact, offshore banking services may be broken down into four important categories – private client services, corporate trust services, corporate banking services, and investment banking.

PRIVATE CLIENT SERVICES

This is one of the more traditional offshore banking activities involving financial planning and management for wealthy individuals and families and the structuring of the assets through the use of offshore banker provides the complete range of private banking services which include safe custody, investment management and banking facilities.

All financial techniques are available, from interest risk and foreign exchange management to single-premium life insurance – linked investment management structures.

This is logically coupled with the benefits of global networks and modern electronic banking techniques to ensure that discreetly out of sight never means out of reach.

CORPORATE TRUST SERVICES

Corporate Trust Services largely comprise the administration of offshore collective investment schemes, including mutual funds and pension funds. The promoter of the fund will seek a range of services, including shareholder registration, accounting and valuations for the funds, global custody and corporate secretarial services.

CORPORATE BANKING SERVICES

Corporate Banking Services cover a broad range of related financial activities with offshore insurance being a major sector. The offshore bankers services the needs of captive insurance subsidiaries through the provision of basic cash management and reporting, letters of credit, global money transfer, comprehensive depository services and tailored investment activities, particularly involving fixed income portfolios or relevant mutual funds.

The offshore banker also offers, aircraft leasing to foreign sales corporations, totally international on line, real time global cash management, the complete financing of debt and equity for offshore vehicles, offshore pensions and employee benefit arrangements and many more. The services may include the management of a substantial portfolio of foreign currency loans to foreign government and companies, to conduct international trade financing, or to deal in bonds and money-market obligations. These administrative functions are performed locally. Some are autonomous in substantive credit and funding decisions while others share these functions with their parent organizations.

OFFSHORE INVESTMENT BANKING

Offshore investment banking is the next significant and logical development. Investment management has long been a traditional activity supporting private and corporate banking customers.

Companies that wish to find new sources of capital, that need the flexibility and free to compete, whose products need to serve a global market without being tied to one jurisdiction, set of rules or regulations, will naturally orientate to the offshore financial markets.

ELECTRONIC BANKING

The last five years have seen dramatic rises in the numbers of offshore subsidiaries through which trading cooperate maximize tax efficiency. Such customers look to their bankers to allow cash management to be conducted as efficiently from The Bahamas as from London or New York.

Thanks to electronic banking, it can be, and what is more, the latest proprietary electronic banking systems now allow the corporate treasurer to view the day-to-day positions of

subsidiaries around the world – and even at different banks – on one screen, and to manage his global cash position that much efficiently.

KNOWING THE CUSTOMER

As markets grow and offshore financial services become more sophisticated, it is absolutely necessary for respectable bankers, lawyers, accountants, company managers and regulators to know their customers and clients. Offshore banking must take steps to ensure the business is clean. On the other hand, new forms of fraud and deception frequently arise.

The Bahamas has enacted money laundering laws and regulations, KYC guidelines, and measure severely punishing all dealings in the proceeds of crime, funding terrorism, international fraud, and drug trafficking.

TAX FREEDOM

Undoubtedly, The Bahamas satisfies the criteria for being both a tax haven and a offshore financial centre. There is no corporate tax, no personal income tax, no capital gains tax, no profits tax, no sales tax, and no inheritance or estate taxes. There are no withholding taxes on dividends, interest or royalties and no payroll taxes. The Bahamas is also not a party to any double agreement.

TAX INFORMATION EXCHANGE AGREEMENT

The recent world economic recession has caused most of the developing countries to take stringent measures to collect taxes from their citizens wherever they be located and however earned. Offshore centres have been required to disclose financial transactions of foreign investors, do away with banking secrecy, and to sign Tax Information Exchange Agreements (TIEA’s) with other countries. The TIEA’s provide for the foreign jurisdiction to obtain information about their citizens’ affairs in offshore jurisdictions. The Bahamas has signed on to over 30 TIEA’s.

Private Trust Business | The Bahamas

INTRODUCTION

Trust Companies deal in money belonging to persons other than themselves. The traditional function is to act as corporate trustee for inter vivos or testamentary trusts established by wealthy foreign investors seeking to preserve their assets for their heirs or other beneficiaries and managing these assets in accordance with accepted standards of fiduciary responsibility.

Under settled principles of English Common Law and the provisions of the Trustee Act of 1998, the trustee becomes the legal owner of the trust assets which fall under Bahamian legal jurisdiction. This feature which embodied flexibility in many kinds of trust instruments has enabled Bahamian trust assets to avoid attachment under the law of other jurisdictions, exchange control, disclosure, or nationality restrictions. They continue to be of legitimate use with careful tax-planning in particular circumstances.

TRUST SERVICES

In addition to the traditional fiduciary and related services for individuals, trust companies have developed a wide range of services for the corporate customer. Many new international mutual funds, unit trusts, and investment companies are again appearing on the market, dealing in equities, commodities, and money-market instruments; the sponsors of these entities are frequently selecting The Bahamas as the centre for their establishment or administration by a local financial institution.

Among the other corporate services offered by trust companies are the following:

• Serving as trustees for pension funds benefiting the foreign employees of international enterprises.

• Acting as registrar and transfer agent for the securities of publicly owned international companies.

• Setting up and running re-invoicing facilities for trading companies.

• Assisting foreign shipping concerns to register commercial vessels under the Bahamian flag and to incorporate the owning company in any jurisdiction.

• Arranging money-market investments and financial services for captive insurance companies.

• Serving as “emergency trustees” to become vested automatically with corporate assets upon the happening of adverse political or economic events in designated countries.

TRUST ACT

The Trust (Choice of Governing Law) Act 1989 gives protection to Bahamian trusts and their settlors in civil law countries against forced inheritance claims. The Act makes Bahamian law the proper law of the trust if the deed so declares, and makes the trust immune to foreign judgements.

PURPOSE TRUST ACT

The Purpose Trust Act 2004 added another dimension to the jurisdiction’s trust business. Trust benefits are for a purpose rather than persons or entities, and there is no one to whom beneficial entitlement in the trust property is vested.

 FRAUDULENT DISPOSITIONS ACT

The Fraudulent Dispositions Act 1991 establishes a 2 year limitation period for creditors’ attacks on asset protection trusts; the attacker has to prove fraud against the settler.

TRUSTEE ACT

The Trustee Act 1998 is an important piece of legislation which updates Bahamian trust law on many fronts. Some of the more important provisions are as follows:

• A settlor can retain a wide range of powers without falling foul of “sham” trust legislation;

• Trustees are given wide statutory investment and management powers unless the trust deed negates them;

• Trustee’s indemnities are recited in the statute;

• A wide range of trust purposes is encompassed, including accumulation trusts;

• The role of Protector is recognized;

• Exemption from all taxes and from stamp duty (an initial $50 stamp is required on all trust deeds);

• Exemption from registration except where an interest in Bahamian property is to be protected; and

• Exemption from exchange control regulations for non-resident beneficiaries

TRUST ADMINISTRATOR

Much trust work in The Bahamas is handled by Public or Restricted Trust Administration companies, which are often affiliated to or owned by banks. Trust Administrators are licensed by the Central Bank under the Banks and Trust Companies Regulation Act 1965. The application process is lengthy and thorough, particularly for Public Trust Administrators. A foreign company can apply for a licence as a branch, or with subsidiary, which is necessarily a Bahamian-incorporated company (not an International Business Company). The licence when issued specifies that a Trust Administrator is either resident (subject to exchange controls)or non-resident.

The minimum capital requirement for Trust Administrators is $1m for Public and $100,000 for Restricted Administrators (the clients of a Restricted Administrator are specified in the licence and cannot be changed without approval). Capital is then expected to keep pace with the growth of the business, not falling below 5% of total assets. Public Trust Administrators must also post fidelity bond of $1m.

PERPETUITY PERIOD

The Perpetuities (Amendment) Act 2004 increased the period of perpetuity from 80 to 150 years.
 TRUST COMPANY

The client may find it advisable to establish a trust company in The Bahamas with a restricted or non-restricted trust licence. 

Family, Asset Protection, and Purpose Trusts

THE TRUST CONCEPT

Trusts are being used more and more today to protect the assets of professional against potential mal-practice suits and creditor actions.

1. The trust concept was originated by the Courts of Equity in the United Kingdom some 400 years ago and was subsequently recognized by Common Law Courts. The law governing trusts in The Bahamas are generally similar to those in the United Kingdom and other English speaking countries.

2. A Bahamian trust may be established by residents of any country in the world. The person setting up the trust is generally called the Settlor and when established by living persons to living persons the trust is called an inter vivos trust. The document establishing the trust is known as a Settlement Deed or Deed of Trust in the case of an inter vivos trust and a Declaration of Trust when the Settlor himself acts as trustee. The document specifics the property which is to be placed in trust, the way in which the trust funds are to be invested and administered, whether the income is to be accumulated, to whom the income is to be paid, how long the trust is to continue to continue and to whom the trust property will ultimately be disturbed.

3. Deeds of Trust can be extremely flexible and an inter vivos trust can be either revocable or irrevocable. In other words, the Settlor can decide whether to retain or to surrender the powers to amend or revoke the trust. The trust may provide wide discretionary investment powers and the trust property is not subject to restrictions on the accumulation of income. Trust property held by the trustee may be lodged in The Bahamas or in most parts of the world. No application to any court is required to pay Beneficiaries, and generally the law of the individual country of residence is not applicable to payments to them.

4. Although a trust cannot be established in perpetuity, the laws of The Bahamas governing the duration of trust are such that they enable them to last for several generations. The administration of trusts in The Bahamas is completely confidential.

ADVANTAGES OF TRUSTS

1. Continuity: The Settlor can be confident that his assets will be protected and be administered in accordance with his wishes, not only during his life but thereafter. It can often take the place of a Will.

2. Anonymity: Once the assets are transferred to the trustee, they become registered in the trustee’s name, and no reference is made to the Settlor or the beneficiaries.

3. Taxation: If the trust is discretionary and is in one of the recognized tax havens, because the beneficiaries do not have specified interests in the trust assets on which they can be taxed, there will often be freedom from income or capital taxes.

4. Exchange Control: If based in a suitable tax haven, the trust will not be subject to any exchange control restrictions.

5. Family Companies: Trusts can be used to cover the situation where several family members of a family have shareholdings in the same company or group of companies. If all the shareholdings are placed into one trust, with appropriate provisions, this can ensure that the ownership of these shares does not pass out of the family on the death of one of the participants.

ASSET PROTECTION TRUSTS

A standard deed of trust to establish an Asset Protection Trust recites the name of the Trustee and the Settlor, the name of the Trust, the assets being placed in trust initially, the Trusts upon which the assets will be held, the powers and duties of the Trustee, provisions for a Successor Trustee, a change of the forum for administration of the Trust Assets, the remuneration of the Trustee, the interest and the names of the Beneficiaries, and the governing law.

The Deed can be modified to accommodate a Protector when deemed necessary.

The Deed also provides for the Trustee to have regard to the wishes and suggestions of the Settlor. Since the Trustee is to act solely at its discretion, any letter setting forth the wishes of the Settlor is of no legal effect as far as the Trustee is concerned. However, in practice the letter provides guidelines for the Trustee and the Trustee usually adopts these guidelines. In some instances, the Trustee gives an undertaking to the Settlor outside the Trust Deed that in the exercise of its discretion in dealing with the Trust Assets, it will implement the Settlor’s wishes.

The Deed may be drafted, if the Settlor wishes, to ensure that the Trustee acts solely upon the directions of the Settlor during his lifetime.

Although for taxation reasons, it is normally preferable to use an irrevocable trust nonetheless, the trustee usually power at its discretion to advance capital of the trust and, if it is decided for any reasons to bring the trust to an end, the Settlor could ask the Trustee to exercise its discretion to pay out all the capital of the trust.

PURPOSE TRUSTS

By The Purpose Trusts Act 2004 (“The Act”), The Bahamas introduced purpose trusts for special purposes. These trusts have many estate planning and commercial uses including:

• The holding of shares of a private trust company. In this structure the Settlor and members of his family and his advisors may be appointed directors of the private trust company and thereby assume some responsibility for the management of the trust. This is often useful when the assets of the trust are of an unusual nature.

• A trust which has both philanthropic and charitable purposes.

• Asset purchase or financing transactions to provide security for an entity which finances the purchase of an asset and corresponding liability with the intent to keep the asset from appearing on the purchaser’s balance sheet.

• Separating voting from economic control.

The trust benefits are for a purpose rather than for persons or entities, and there is no one to whom beneficial entitlement in the trust property is vested.

This post is for your information only and nothing in this post is intended to constitute a legal opinion.  The law constantly changes and evolves.  Accordingly, if you require specific advice you should contact a Bahamian trust Attorney or Bahamian commercial attorney.  You can contact a Bahamian trust attorney or Bahamian commercial attorney by clicking here.

Questions regarding Bahamian law

I have noticed through tracking the types of search engine queries that have led to views of my blog, that there have been some very specific searches relating to various areas of Bahamian law.  I invite you to send me a message on this site or to my e-mail if you have specific questions that are not dealt with in any of my posts.  The posts are designed to be as general as possible and only to answer basic questions.  In a lot of cases, specific questions will require specific information about your situation, which is why I welcome personal queries.  I am happy to assist in any way that I can.

You may feel free to contact me by clicking here.

Registration of Foreign Companies in The Bahamas

The Companies Act 1992 which came into force on the 1st August, 1992 contains provisions for the registration of foreign Companies in The Bahamas.

A foreign Company, for purposes of registration under the Act, includes any body formed outside The Bahamas whether it is an incorporated body or an unincorporated one.

If a foreign Company wishes to begin or carry on any business or undertaking in The Bahamas after the 1st August, 1992 then it must register under the Act. (This requirement is waived however in the case of foreign Companies who have carried on an undertaking in The Bahamas prior to that date.)

Examples under the Act of what will amount to an ‘undertaking’ include the keeping of a place of business; the holding of a licence (or being required to do so) for specific business; the holding of a licence (or being required to do so) for selling its own securities. If a foreign Company has a local telephone listing in The Bahamas an undertaking is presumed.

Procedure for Registration

1. The foreign Company must file:

(a) a Statement containing information as in the attached Form I;

(b) if the Statement at (a) is in a language other than English, a translation thereof into English certified as a true copy. This Certificate should be given by a Notary Public or a translator before a Notary Public;

(c) a Declaration by a Director as in the attached Form II;

(d) a Declaration by an Attorney as in the attached Form III. We are available to assist in this connection; and

(e) a copy of the Charter and Bye-laws or other constitutional documents of the foreign Company certified as a true copy. This Certificate should be given by the proper officer of the Registry or Agency where the foreign Company is registered [in The Bahamas this would be the Register General]. If possible the document should be further legalised by Apostille in those jurisdictions where the Apostille is available.

If the copy of the Charter and Bye-laws are not in English a certified translation will be required. 

2. There is a registration fee in the amount of $50.00.

3. The Registrar General shall issue a Certificate of Registration and publish a notice in the Gazette.

Effect of Registration

The foreign Company upon registration may carry on its undertaking in The Bahamas in accordance with its Certificate and with the general provisions of the Act.

Miscellaneous

1.   The foreign Company must maintain a registered office in The Bahamas the address of which must be notified to the Registrar General.

2.   The name and the place of business of the foreign Company must be exhibited outside the registered office and outside all its other places of business in The Bahamas.

3.   The name must also be given on all commercial and other instruments of the foreign Company.

4.   If the proposed undertaking of the foreign Company is to be carried on with a view to obtaining a turnover or the receipt of money from that business within The Bahamas then the foreign Company will be obliged to obtain an annual licence under the Business Licence Act. The foreign Company can however apply to The Bahamas Exchange Control for their designation as “non-resident” in which circumstance fees payable in respect of its business licence will be a flat $100.00 per annum (and not as otherwise, a fee based on the turnover). If you require further detail on this, let us know.

(FORM I)

[ NAME OF COMPANY]

STATEMENT GIVEN IN PURSUANCE OF SECTION 182(1)

OF THE COMPANIES ACT, 1992

(a) THE NAME OF THE COMPANY IS [name ]

(b) THE COMPANY WAS INCORPORATED IN [country or state ]

(c) THE COMPANY WAS INCORPORATED ON

(d) THE COMPANY WAS INCORPORATED AND ORGANIZED UNDER THE LAWS OF ON 19 , BY

(e) THE CORPORATE INSTRUMENTS OR CONSTITUTIONAL DOCUMENTS OF THE COMPANY ARE ITS [state whether Charter, Byelaws, Memorandum of Association, Articles of Association or whatever as the case may be]

(f) THE DURATION ACCORDING TO ITS CORPORATE INSTRUMENTS OF THE COMPANY IS [state Perpetual or other period as the case may be]

(g) THE LIABILITY OF THE SHAREHOLDERS IS LIMITED TO THE EXTENT OF [state: the payment of share capital or however else liability may be limited as the case may be]

(h) THE PROPOSED UNDERTAKING OF THE COMPANY IN THE BAHAMAS IS to [ insert purpose]

(i)   THE COMPANY INTENDS TO COMMENCE ITS UNDERTAKING IN THE BAHAMAS [state date, period after registration, period after being licensed, etc. as the case may be.]

(j)   THE AUTHORISED OR STATED CAPITAL OF THE COMPANY IS [state authorised or nominal capital amount] DIVIDED INTO [state number] SHARES [state par value, if any]. THE NUMBER OF SHARES THAT HAVE BEEN SUBSCRIBED FOR ARE [state number]. THE NUMBER OF SHARES THAT ARE FULLY PAID UP ARE [state number]

(k) THE PRINCIPAL ADDRESS OF THE COMPANY OUTSIDE THE BAHAMAS IS [state address of registered office]

(l)   THE PRINCIPAL ADDRESS OF THE COMPANY IN THE BAHAMAS IS           , Nassau, Bahamas

(m) DETAILS OF THE DIRECTORS OF THE COMPANY ARE THE FOLLOWING:-

 

NAME ADDRESS OCCUPATION

                                                                                                                                          (FORM II)

[Country]

[City]

DECLARATION MADE PURSUANT TO SECTION 182(2)

OF THE COMPANIES ACT 1992

_____________________________________________

I, the undersigned Director of [name of Company] hereby declare for and on behalf of the said Company that the particulars relating to it and which are set out in the attached Statement are correct and true.

IN WITNESS WHEREOF I have hereunto set my hand this        day of  2005 .

_______________________________________

[Name of declarant]

DIRECTOR, [Name of Company]

(FORM III)

COMMONWEALTH OF THE BAHAMAS

New Providence

DECLARATION MADE PURSUANT TO SECTION

182(2) OF THE COMPANIES ACT 1992

_________________________________________

I, the undersigned, a Counsel and Attorney-at-Law of  #4 Cable Beach Court , West Bay Street, Cable Beach, New Providence, Bahamas and an associate of Anthony Thompson & Company Counsel and Attorneys-at-Law hereby declare that [ name of company] has complied with the requirements of section 182 of the Companies Act 1992 in order to register as a foreign Company and have issued to it a Certificate of Registration.

 

_____________________________

[Attorney’s name]

Before me, at Nassau, New Providence this       day of 2012

_____________________________

NOTARY PUBLIC

This post is intended for your information only and nothing contained in this post is intended to constitute a legal opinion.  If you require specific advice you should contact a Bahamian corporate attorney or Bahamian corporate services provider.  You can contact a Bahamian corporate attorney or a Bahamian corporate services provider by clicking here.

Problems at work in The Bahamas (unfair dismissal | Employment law | Labour Law)

Get advice early

Employment law can be complicated, and few people have a clear idea of all their rights at work. If you think your employer has treated you unfairly, it is important to get legal advice at the earliest opportunity. In some circumstances there are particular steps you must follow to sort problems out with your employer before you can take a complaint to an employment tribunal, as well as specific deadlines for making such complaints. Generally, the longer you leave a problem, the harder it is to solve.

An attorney can:

• explain your options;
• tell you if you have a legal case against your employer;
• help you decide whether your case is worth taking further; and
• explain what you should do next.

Finding an attorney

If you need to find a Bahamian employment lawyer, you can click here and e-mail your query.

If you are a trade union member, you may be able to get legal advice from a union official or an attorney appointed by the union.

Starting the process

Once you have found an attorney, you should explain your situation briefly over the phone and set a date for a meeting.

Make sure that you mention the dates of the events you are concerned about. If you plan to take someone with you to the meeting, mention this and ask if there are any documents you need to bring.

What your attorney will need to know

At the meeting your attorney is likely to ask you:

• how long you have worked for your employer;
• how much you earn;
• the details of your problem at work;
• what events have led you to your current situation;
• whether you have any relevant documents;
• whether there are any documents which you do not have that might be relevant to the case; and
• what, if anything, you have already done to sort the matter out.

Exploring the alternatives

Once you have explained your circumstances in detail, your attorney can explain your options. If your attorney believes you have a case and you want to take it further, you need to decide how you are going to do this.

If you have not already done so, you may need to try to sort the problem out with your employer direct before taking any other action. Your attorney can help you set out your case and, if appropriate, try to negotiate a settlement for you. If you are happy to carry out negotiations directly with your employer, your attorney can offer useful advice on how best to go about doing this.

If you cannot solve the problem with your employer direct, an employment tribunal may be your best option. If so, your Bahamian employment lawyer can help by preparing your case or representing you at court or the tribunal.

Following your employer's procedures

It is important to try to sort out your problem with your employer direct first, either informally or using their formal complaints/grievance procedure.

If you have started using your employer's complaints procedures or if your employer has started to take action against you (for example, about your behaviour, the quality of your work, your ability to do your job or your attendance) you should try to go to any meetings that are arranged and use any appeal procedures your employer has in place.

You should try to solve your problem with your employer direct because:

• matters can often be sorted out quite quickly this way; and
• employment tribunals can reduce your compensation if you haven't tried to sort out the matter with your employer before taking your case to them.

Compromise agreements

If you can reach an agreement with your employer without going to a tribunal, this can be recorded in a 'compromise agreement'. This is a legal document which confirms the terms of the settlement you have agreed, in exchange for which you give up your legal claim against your employer. You may be able to get your employer to make a contribution to your legal costs as part of the agreement.

Employment tribunals

An employment tribunal is chaired by a lawyer and made up of two independent 'wing' members with experience of employment relations. It is up to the tribunal to:

• weigh up the evidence;
• consider the law; and
• decide whether your claim against your employer is justified.

In doing this the tribunal may also consider:

• what policies or procedures your employer has for dealing with problems at work;
• your behaviour and your employer's behaviour throughout the time you were employed; and
• what steps you and your employer have already taken to solve the problem.

Decisions are made by majority vote and decisions are either announced straight away or follow in writing. If the tribunal decides in your favour, it has the power to award you compensation. Or if you are claiming for unfair dismissal, it can sometimes order your employer to give you your job back, though this is rare.  

Claiming unfair dismissal

Generally, you are only entitled to make a claim for unfair dismissal once you have been employed for a year or more, full or part-time. However, if you are dismissed for any of the reasons described below, your dismissal is 'automatically unfair'. This means that you are protected by law from the first day of your employment. These reasons include:

• trade union membership or duties;
• whistle-blowing (telling your employer or someone else about anything illegal or dangerous you know is happening at work);
• health and safety issues; and
• exercising a legal right, such as your right to a minimum wage, paid leave, leave for family reasons including pregnancy or maternity, a written statement of your terms and conditions of employment, or an itemised pay statement.

Discrimination

If you believe that you are being treated less favourably than other employees for any of the reasons set out below, you may have a discrimination claim. You are protected against discrimination based on any of the following.

• Your sex (including reasons related to being pregnant or being married)
• Your sexuality (sexual orientation)
• Your race (including your skin colour, nationality, and ethnic background)
• Your religion and beliefs
• Your disability
• Your age

You can make a claim to the tribunal if you have been less favourably treated at any stage of your employment. This includes how you were treated when you applied for the job and were interviewed, as well as during your employment or after your employment ends. Your attorney can tell you more about this.

Attorneys' charges

Charges can vary between attorneys. They depend on:

• the experience and knowledge of the attorney; and
• how complicated your case is.

If your attorney acts as a consultant in helping you to prepare your case but does not actually represent you, their charges are likely to be based on an hourly rate. However, if the case goes to a tribunal, other types of fee arrangement may be more suitable.




This post is for your information only and nothing contained in this post is intended to constitute a legal opinion.  If you require detailed advice you should contact a Bahamian Labour attorney.  You may contact a Bahamian labour attorney by clicking here.

Licensing of Banks and Trust Companies in The Bahamas

The Bahamas is one of the world’s largest international financial centres, with progressive legislation and a cohesive regulatory structure. With convenient air travel, a highly-skilled workforce, modern infrastructure, and a politically sound government, The Bahamas has become the jurisdiction of choice for banking and financial services.

 The jurisdiction’s commitment to maintaining a tax neutral platform, offering exemption from taxes on income, capital gains, profits, gifts, inheritance and estate, taxes, and common law and statutory recognition of confidentiality in customer relations contributes to its global success in banking and financial services. With an asset base in excess of $200 billion, The Bahamas’ banking centre is positioned among the top ten countries in the world, behind the United States, Switzerland, and the United Kingdom.

The international community has continued to affirm The Bahamas as a safe jurisdiction for the deposit of financial assets of both individuals and corporations.

Banks and trust companies in The Bahamas are supervised by The Central Bank of The Bahamas (“the Central Bank”), a responsive regulator which ensures the highest standards of operations and conduct in the financial services industry. The Bahamas has instituted Know-your-customer procedures and has passed a series of laws in relation to banks and in conformity with international concerns, including but not limited to legislation geared towards eradicating international financial crime e.g. the Financial Transactions Reporting Act, 2007 and the Proceeds of Crime Act, 2008.  The private sector also has in place regulations to govern banks and trust companies. The Association of International Banks and Trust Companies of The Bahamas also governs itself and its operations by its code of conduct, which deters the use of financial operations for criminal activities and maintains confidentiality in banking and financial affairs.

Bank or Trust Company Defined

The Banks and Trust Companies Regulation Act, 2000 defines “banking business” as “the business of accepting deposits of money which may be withdrawn or repaid on demand or after a fixed period or after notice and employing those deposits in whole or in part by lending or otherwise investing them for the account and at the risk of the person accepting them.”

“Trust business” is defined as “the business of acting as trustee, executor or administrator.”

Who May Own a Bank or Trust Company in The Bahamas

Individuals may participate in the ownership of banks, but only with a minimum 25% participation from a Central Bank approved financial institution. The Central Bank also favours granting licenses to the branches and subsidiaries of established, reputable banks and trust companies originating from jurisdictions with similar regulatory controls in place. Parallel-owned banks, i.e. where a bank in one jurisdiction has the same or similar ownership as a bank in another jurisdiction and where one is not a subsidiary of the other, are not eligible to apply for licensing.

License Classifications

There are four classes of licenses issued by the Central Bank:

 Public License: A public bank and/or trust company is one which is permitted to carry   on banking and/or trust business with members of the public.

 Restricted License: A restricted bank and/or trust company is one which is allowed to   carry on business for certain specified persons which are usually named in the license.

 Nominee Trust License: A nominee trust license restricts the services that may be offered by a licensee to the provision of nominee services only. Nominee services include the holding of securities and other assets in the licensee’s name and the provision of corporate directors and officers on behalf of its parent company’s clients.

 Non-Active License: A non-active bank or trust company is one which is either in voluntary liquidation and requires monitoring of its winding up or one that is an approved dormant licensee.

Procedures and Documentation

Any person or company wishing to carry on banking or trust business is required to make an application to the Governor of the Central Bank for the grant of a license. The Central Bank licenses all banks and trust companies operating in and from within The Bahamas.

In the case of a bank or trust company making application for a license to operate a subsidiary, branch or representative office or in the case of a corporate applicant which is not a bank or trust company, the following information is required:

 name of the corporate applicant (if not a bank or trust company);

 address of head or parent office of the corporate applicant including mailing address;

 for a subsidiary bank or trust company, the corporate name;

 address of the proposed office in The Bahamas;

 scope of activities proposed;

 an outline of planned business activities in The Bahamas;

 where the applicant is a body corporate:

-       History, activity, present structure and organization;

-       Annual reports (including audited consolidated financial statements) of the corporate applicant or parent for the three consecutive financial years immediately preceding the date of application;

-       Unaudited consolidated financial statements of the applicant or parent as at the end of the most recent quarter prior to submission of the application, certified by a director or senior officer.

In the case of individual applicants for a license to operate a bank or trust company, applications may be made as a group (so long as the group consists of more than five individuals), the following information is required:

 name of each individual making application;

 business and personal address of each individual applicant including mailing address;

  proposed corporate name of the bank or trust company;

  address of the proposed entity in The Bahamas;

 purpose of opening the bank or trust company;

 a description of planned business activities; and

 where the application is made by a group;

-       date of formation, history, present structure and organization of the group applicant, and details of all business activities of the group;

-       detailed comments regarding the position within the group, of any dominant member(s) of the group;

-    a current statement of assets and liabilities, certified by public accountant and prepared no earlier than three months prior to the date of application for each member of the group who is to acquire, own, hold or exercise voting control of share capital in excess of 10% of the share in a proposed licensee or

-    A concise net worth statement certified by a public accountant for each member of the group who is to acquire, own, hold or exercise voting control of share capital in a proposed licensee of 10% or less, and which statement indicates that the individual member’s net worth is at least five (5) times the value of the shares to which the individual member is subscribing.

Corporate and other applicants are also required to provide a host of other documentation to enable the Central Bank to assess the soundness of the applicant and the integrity of its members. The Central Bank has promulgated “General Information and Guidelines for License Applications” which sets out the procedures and documentation necessary for license applications (see specifically Part 2, page 7).  We will be happy to provide you with a copy of the guidelines if you are unable to obtain same from the Central Bank's website.

Timeframe

The typical timeframe for processing a license application is 2 months; however, the time frame is dependent upon the nature of the application.

This postis for your information only and nothing contained in this post is intended to constitute a legal opinion.  If you require any detailed advice you should contact a Bahamian commercial attorney.  You can contact a Bahamian commercial attorney by clicking here.