Trinidad and Tobago Securities and Exchange Commission has been faced with assertive challenges to the appliance of the Securities Act, 2012 (the SA 2012) and the Securities (General) By-laws, 2015, as they chronicle to the allotment of Aggregate Advance Schemes (CISs) constituted via trust. These challenges are based on the actuality that the SA 2012 contemplates that any “person” that distributes a aegis charge be registered as a Advertisement Issuer. The SA 2012 additionally contemplates that the analogue of actuality includes a “trust”.
As a consequence, any CIS that is constituted via assurance charge be:
• registered with the Commission as a Advertisement Issuer in accordance with Section 61(1) of the SA 2012; and
• registered with the Commission as a aegis in accordance with Section 62 (1) of the SA 2012.
Trusts however, were not advised to be “persons” beneath the Securities Industry Act, 1995 (the SIA 1995) which was repealed and replaced by the SA 2012 on 31st December 2012. As a result, there was no claim for the allotment of a Advertisement Issuer, back the Commission registered CISs, constituted as trusts, beneath the old law, SIA 1995.
In appearance of the accoutrement beneath the new law, SA 2012, CISs that are constituted as trusts are appropriate to be registered with the TTSEC as advertisement issuers. Although the SA 2012 is bright that trusts are “persons”, it is difficult in convenance to analyze the acknowledged actuality that should be registered as a Advertisement Issuer back because applications for allotment of CISs constituted as trusts. For instance, while the SA 2012 states that the Trustee would be appropriate to assurance the administration statement, in an appliance for allotment of a CIS as a aegis beneath Section 62; it does not specify who should assurance the allotment account in abutment of the appliance for allotment of the Advertisement Issuer, in account of a CIS constituted as a Assurance beneath Section 61. Further, the SA 2012 does not especially accompaniment who should be registered as a advertisement issuer, in account of a CIS, that is constituted as a Trust.
In addition, the SA 2012 is abundantly bashful on the operations and accepted adjustment of CISs. The connected acknowledgment accoutrement independent in the SA 2012 are geared added against the activities of acceptable companies and not CISs constituted as trusts. The majority of the Commission’s authoritative framework, for CISs, is currently independent in the Commission’s Guidelines for Aggregate Advance Schemes which were issued in 2008 (the CIS Guidelines). As a result, there are some differences in the authoritative requirements that a advertisement issuer, beneath the SA 2012, is appropriate to accede with, against the authoritative requirements that a CIS charge accede with beneath the CIS Guidelines.
In summary, the authoritative framework for the bounded CIS industry is abundantly accountable by the blemish of the SA 2012 in affiliation to CISs, as able-bodied as the actuality that the Commission is relying on the CIS Guidelines, as its primary tool, to outline the authoritative framework for the CIS industry. These issues will be addressed in the proposed Aggregate Advance Schemes by-laws (the CIS by-laws) currently afore the Ministry of Finance for final review.
In the interim, and awaiting the addition of the CIS by-laws, the Commission has bent that area a CIS is actuality registered with the Commission; and that CIS is constituted as a Trust, then:
• the Assurance charge be registered with the Commission as a advertisement issuer in accordance with Section 61 of the SA 2012;
• the Trustee would be amenable for signing the accordant allotment forms as able-bodied as for the Trust’s obligations beneath the SA 2012;
• the disclosures and advertisement obligations that are appropriate beneath the SA 2012 shall be in account of the Assurance and not the Trustee.
• Aggregate Advance Schemes constituted via assurance (Trust Form CIS), and registered as Advertisement Issuers, will be appropriate to accede with the accoutrement of the SA 2012; and any acknowledging legislation as they chronicle to Advertisement Issuers, save and except area the Commission indicates otherwise. These exceptions are categorical below:
A. Advertisement and Acknowledgment Requirements:
i. A Assurance Form CIS will be exempted from Section 65 of the SA 2012, which requires the alertness and filing of Audited Annual Comparative Banking Statements aural 90 canicule of the issuer’s banking year end. This absolution will be accepted accountable to the CIS acknowledging with the claim to book an Annual Report with the Commission (in accordance with Section 63 of the SA 2012) aural 120 canicule of the CIS banking year end provided that the Annual Report contains the CIS’ Audited Banking Statements for the accordant banking year end; and
ii. The accoutrement of Section 66 of the SA 2012 crave Advertisement Issuers to book Acting Banking Statements on a annual basis. A Assurance Form CIS however, will be appropriate to adapt and book Acting Banking Statements, on a semi-annual base instead of on a annual basis.
B. Other – The alms and acknowledged basic abstracts for Assurance Form CIS’ should accommodate the accordant disclosures apropos the alertness and filing of Annual Reports and Acting Banking Statements as declared at account A.
The above is a acting band-aid that the Commission has initiated, until the abstract CIS By-laws are fabricated into law, in an accomplishment to abode the ambiguity and deficiencies in the absolute legislation. Applicants or absorbed bodies are encouraged to acquaintance us for added advice or clarification.
Visit us @ www.ttsec.org or www.investucatett.com or chase us on Facebook; Twitter; Instagram and YouTube.
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