FORTGATES’ ANNUAL AWARD TO TOP PERFORMING STUDENTS

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Click the website like here : http://villakaribu.com/  for photographs of the interior and exterior. There is also a video section lower down on this page.

Purchase price includes all contents apart from a few selected items of art and some small pieces of furniture.

The property also has an unused room on the ground floor of approx 280 sq ft that can be converted into a double roomed self contained flat for rentals.

Marigot has recently seen strong property price growth with the arrival of a new 5 star resort called Capella opening in the bay. View the resort here http://www.capellahotels.com/saintlucia/ This new resort, only opening late 2014, has committed to development of the bay and its high class Marina and future years will see increasingly strong growth in real estate in the area.

Please contact us at Fortgate at info@fortgateoffshores.com for more information. Ownership of this property is structured so that a sale can happen in a matter of days!

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In order to provide international banking services from the jurisdiction of Saint Lucia, a company whether existing, or newly incorporated, must first apply for either a Class A Bank License or a Class B bank License.  Both licenses are granted under the International Banks Act of Saint Lucia and international Banks are regulated by this piece of Legislation. You can find a full script of the legislation by clicking here http://www.saintluciaifc.com/pdf/legislation/bank_act.pdf.   The International Banks Act came into force in April 2000.

So why is it difficult to obtain a Class A or Class B bank license in Saint Lucia and why is this a good thing? There are is one answer to both of those questions. By rigorously scrutinizing applications for bank licenses, and adopting in all cases, a procedure of enhanced due diligence, St. Lucia has been able to accept a select few companies wishing to conduct international Banking services, and who offer low risk services that are easily regulated and monitored by the Financial Services Regulatory Authority of Saint Lucia. Now that isn’t to say the Saint Lucia regular is not up for a challenge and will not consider License applications that involve companies wishing to provide complex financial products, it simply means the regulatory ecosystem in Saint Lucia is centred on a low risk environment as its default position. As a result, many of the new banks entering into the jurisdiction tend to thrive despite the fact that it is, or has become exceedingly difficult to successfully set up an offshore bank. Difficulty, as we all know, arises where USD currency intermediary bank clearing services are required, together with the challenges presented by today’s continuously constricting regulatory landscape.

All of these challenges aside, if you are a company with an  already established banking infrastructure, such as intermediary banking services, SWIFT network access,  a banking intranet and client software platform, and the necessary human resources to fill your top managerial positions within the company, then you may be in a position to successfully apply for a Saint Lucia bank license. However, the success of your application will depend firstly on whether the primary investors of your bank clear the enhanced due diligence protocols relating to their source of wealth and political exposure if any, and whether the proposed underlying business of your new banking entity falls within the acceptable risk thresholds established by the Saint Lucia Regulator (FSRA).

In all cases, mortgage brokerage services, precious metals trading and escrow account services would be considered high risk services by the FSRA. However, this does not mean a license application with fail because these products are being offered. It does means however, that considerable resources will have to be deployed within the bank’s own internal regulatory functions as well as the FSRA’s own available resources, to ensure that these services are being monitored effectively. Our advise to our clients who are applying for a bank License is always the same. Simply put, if the project is strong, and the UBOs satisfy all enhanced due diligence requirements, the application is more than likely to succeed.

This means that the underlying business of the bank must be clearly laid out to show specifically every aspect of the bank’s business, from its uniqueness in the market as a new entrant, to the variety of products being offered and the competitiveness of the prices for which these products are to be sold. We encourage our clients to think of their application as a ‘project’ from start to finish, whose strength is determined by how marketable this project would be if it were being sold to an interested investor. If an investor would not be interested then why would the FSRA? The applicant must demonstrate with utmost clarity, the level  profitability of the underlying banking business, and above all the FSRA must understand why this particular project would succeed within the jurisdiction.

We at Fortgate understand these important nuances in applying for a bank license. If you would like to build a bank in St. Lucia talk to us and we will show you how to achieve this.

You can view our comprehensive guide to applying for and obtaining an International Banks License here: Fortgate Guidance on Establishment of a Class A or Class B Offshore Bank Further guidance on what information is required in order to apply for either a Class A or a Class B license can be found here: Guidance Notes Bank License

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Actually, there’s nothing to be afraid of. If you are getting the right advice about the new changes to UK financial services regulation, you should be by now, embracing that change. This is because that change, not only benefits consumers but the market as a whole, which of course includes you. So here we are, just about 6 months in and the new and improved FCA, the love child of the FSA, now permanently dismantled, is the new sheriff in town. What can regulated firms expect, especially those firms with offshore interests? Especially those firms with subsidiaries and businesses in jurisdictions that offer up a different regulatory landscape to that which is expected by the new and improved FCA? I have chosen to write this article because many of our clients, especially those who are themselves regulated, are interested to know how their offshore businesses are affected by the new FCA regulatory obligations and whether their onshore businesses are up to the task of meeting these new obligations.

Let me start first by saying, the FCA and the regulatory framework that comes with it, is not designed to stifle businesses. It is not designed to penalize companies for being innovative and seeking out solutions to the difficulties faced in a global financial services market. In fact, and to the contrary, one of the FCA’s underlying mandates is the promotion of a fair market and fair competition  in the context of consumer protection. I’m paraphrasing, but this is the essence of what the FCA hopes to achieve in this new era of regulation.

Many of our clients are non-domiciled companies and directors seeking to gain a foothold in the UK market. In order to do this it is important to first understand the regulatory climate that exists here. The first step in achieving this is to understand the minimum “threshold” conditions that must be met in order to qualify for permission to provide regulated services to the public. These conditions can be viewed in the FCA handbook http://fshandbook.info/FS/index.jsp under the heading Threshold Conditions. The minimum conditions to be met are in short:

1. Location of Offices: Essentially depending where the company is incorporated (UK or offshore) and depending on where your head offices are located, then certain requirements will apply. Generally if the company is incorporated in the UK then it’s head office and its registered office must be in the UK.

2. Effective Supervision: The FCA must be able to effectively supervise your company, regardless of how complex your company structure is and where your subsidiaries are domiciled.

3. Appropriate Resources: Your company must have the appropriate resources to provide the type of regulated services it wants to provide. These include not only financial resources, but also key personnel who are properly trained, and infrastructural resources such as IT etc must be up to the standard required to provide the regulated services you intend to provide.

4. Suitability. This condition primarily related to the integrity of the persons involved your company, their financial and fiscal aptitude, and their overall eligibility to run your company and service your clients.

5. Business Model. Your business model must be sufficiently laid out and withstand scrutiny in the context of the complexity and scope of your company and the services you provide.

So which conditions are most important to you? Well all of them are. In fact the FCA must apply all of these conditions in every case and each case is dealt with differently. In other words, the FCA will look at all of the circumstances surrounding your application for permission to provide regulated services, and no one company is considered to be a litmus test for another. What this really means is that you must look at your company and ensure that all of the services you intend to provide are rigorously tested by all 5 conditions above.

Apart from these threshold conditions, there are various source books which apply specifically to certain aspects of your business. One of the most important of these is the Senior Management Arrangement Systems and Controls Source Book or SYSC for short. The reason I have cited this as a important, is because the FCA will, in all cases, expect your company to demonstrate a clear arrangement of your key functions staff. This also goes without saying that you must indeed be able to demonstrate that you in fact have individuals within your company, who have designated key functions to cover all of the areas within your business. These will be areas the FCA considers most susceptible to being in default of either the threshold conditions or other high level standards including the Statements of Principle and Code of Conduct of Approved persons (APER), The Principles for Businesses (PRIN) and the Fit and proper test for approved persons.

I will not go into these in detail, but the point to be made here is that, if you do not define clear roles for  functions such as Anti Money Laundering (MLRO), Risk, Audit and Accounting, Due Diligence, Regulatory monitoring, then you will likely be subject to an FCA notice or subject to review. There must be clear reporting lines, and each of these high level functions must be accountable, so that their own work is subject to review and supervision. Depending on the size and complexity of your business, these functions may need more resources injected into them, in order to meet the high level standards described above.

But even if you have all of these high level standards covered, you still need to understand how the FCA will supervise you. The Supervision section of the FCA handbook gives a clear understanding of how firms are supervised. Firstly the FCA’s approach to supervision is forward thinking and interventionist. What does this mean? Well it means the FCA will not wait for firms to make mistakes or get things wrong. The FCA will proactively identify themes it believes should be the subject of review and choose companies they think would benefit from a review of their businesses in the context of those themes. So the FCA may well simply send you a notice indicating your firm is subject to review and conduct that review at anytime.

This means you must always be prepared and indeed proactively conduct your own thematic reviews, but more importantly it means you must constantly be thinking about the services you offer and how you can offer these services better. Are you managing your risk? Are you applying appropriate resources to your high level functions? Are you complying with the guidelines in every case? Your own internal regulation should be dynamic and ever changing, improving to suit your company’s growth and should be reactive to compensate for any changes in the market or your customers demands.

Other aspects of the FCA’s approach to supervision include its consumer centric approach. Your company must be thinking about its customers and whether you are dealing with them in a fair and open manner. Your customers must come first not just because this is the basis of good business practice, but also because it also  happens to be the basis of meeting your regulatory obligations. The FCA will focus on big issues and act robustly when things go wrong. The FCA will also be oriented towards firms doing the right thing and encourage firms in that regard.

What all of this means is a much more interactive approach to supervision, with the FCA being much more active in the market and much more involved with the firms it regulates. This approach seeks to be preventative in its effect, rather than reactionary. The FCA wants to stop things from happening before they happen! And the FCA certainly means business in that regard. If you visit the Canary Wharf headquarters on any given day, all of the conference rooms are filled, and for a reason, firms are being interviewed constantly and thematic reviews are being assessed. It’s in your face evidence that the new FSA, that is now the FCA, is certainly up to the task in following through on its mandate.

So what do we advise our clients who are operating global businesses? You must ensure your offshore structures are visible, and regulated themselves to a standard similar to the FCA. You must ensure you have chosen an offshore jurisdiction that regulates its market at a high standard and you must position your offshore structures so that they are clearly accountable to their onshore counterparts in terms of the overall operation of your business. So everything must be run as one entity, fully integrated and internally regulated. For me, as a rule of thumb, I apply the FCA high level standards across the board, regardless of the jurisdiction the firm is operating in. This ensures uniformity and makes for a stronger case to pass the “effective supervision” threshold. If the FCA feels it can’t reasonably supervise your offshore structure, then this becomes problematic. The idea here is to show that everything is being run at a standard similar to that which is expected by the FCA. Across the board!

At Fortgate, our approach to dealing with our clients who either already provide regulated services in the UK or those who are seeking to apply for permission, is to adopt a bottom up approach to ensure you meet the new standards that are in place. Many of our clients have close links to offshore companies, either funds or other asset management structures, and ask us about how these structures will be integrated with their UK financial services business. We always start by looking at your business’ foundation. The core of what your business involves and move upwards from there. This is a strip down approach, where we strip your business to its bare essentials and build on those essentials. We believe with a strong foundation and all of the essentials in place, your business will stand up to FCA scrutiny in all cases.

To do this we apply our tried and true understanding of how the FCA handbook is applied and our precise interpretation of the conditions and high level standards. Our expert opinion comes from our own involvement in the UK financial services market and also our constant monitoring of the supervisory outcomes the FCA deploys, where firms do not act within the parameters of the Financial Services and Markets Act. To know what action the FCA has taken is only half of the solution, knowing why the FCA has taken the action it takes completes the puzzle. So far so good. I think 2015 will be an exciting year, both for firms and for consumers.

Author -Tonjaka E. Hinkson B.A. (Ont.) L.L.B. (Lond) BVC(Lond)-Barrister at Law

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Let’s say you are playing a game of poker. A tried and true winning strategy is never to expose all of your chips at once. The idea is to play it safe, only exposing a limited amount of chips, whilst at the same time making decisions that optimize your own gains when acquiring chips from the other players. Throughout the game, you are therefore periodically taking your chips off the table, while only betting a limited number so that you only ever have a small number of chips up for grabs at any given time. This is in essence what asset protection is, and what an offshore account is meant for. It is meant to allow you to take your chips off the table. It allows you to take your money out of the equation. So what  are you protecting your money from exactly?

The reasons for protecting your assets and your money are numerous. If you run a business, then the contracts you constantly enter into whenever you complete a transaction exposes you to liability. Anything can happen. Mistakes can happen, unforeseen events can happen, all of which may affect your ability to perform your obligations under the contract. If you become exposed in this way, you can be sued, and if the person suing you wins, then the money which will be available to liberate the judgment against you, will be your companies assets. These assets will be either in bank accounts or may be actual physical assets, if the person suing you goes so far as to seek a winding up of your company.

Your personal assets may also be exposed to the general risk to you that is inherent in everyday life. You may be involved in a civil suit brought against you personally. Alternatively, market fluctuations may also expose your money to risk where your money is kept in a fund or pension. Finally tax liability and how much tax you expose yourself to “onshore” is another important consideration where asset protection is concerned. In fact, I would argue, minimizing your exposure to onshore tax liability and also general liability from civil action, are two concerns that go hand in hand in the context of asset protection. An offshore account, and structuring your company through an offshore IBC or Trust company, reduces the exposure to you for liability and protects these assets by removing them from the poker table and gives you control over which assets you reveal, and therefore expose as part of your wealth.

So how much wealth should you have before you start thinking about utilizing an offshore account? This is relative. It is a big misconception to believe that offshore accounts are for the super rich. I tell people all the time, if you have assets that matter to you, like money in a bank account that you feel you need to tuck away safely, out of reach from potential creditors, then you should be thinking about an offshore account. Many of these offshore accounts carry no charges on deposits, or monthly payments, and allow your funds to simply sit there out of sight and out of reach from “predators”. We have clients spanning the entire gambit of financial wealth, and each of these entities consider their offshore interests a means to protecting themselves and their businesses or their personal wealth. But wealth is relative. What’s that saying? One man’s ten thousand dollars is another man’s one million dollars. I of course made that up , but I think you get the point!

Finally, what if you are an American Citizen?  FACTA or the Foreign Account Tax Compliance Act is the signature legislation passed in the U.S., that permits banks to release information on bank accounts owned or beneficially owned by American Citizens to the I.R.S. This is a requirement placed on the bank which holds the account and not the account holder. This means that the bank must automatically report the level of deposits held by American citizens where this amount exceeds US$50,000.00. It is not relevant to the reporting requirement, that the account is not actually in the name of an American citizen, all that is needed is that the account is beneficially owned by an American citizen. Ownership could be through a company or a trust or some other corporate structure the  account holder has set up to open the account. From there, anyone with more than US$50,000.00 on deposit is reported to the IRS, and the bank will provide the account details of these individuals who are American citizens.

Despite the implementation of FACTA there is still a strong necessity to protect your assets if you are an American citizen. America is one of the most litigious Countries in the world and Americans constantly sue each other over business arrangements and civil disputes. There is definitely a strong incentive to take your most valued chips off of the table, in the event they are exposed to liability. Even if the IRS’s reach has been extended globally to every American on the planet, that does not mean in the commercial context, protecting your assets is any less important, especially when these assets become extremely valuable to you. This is where an offshore account can help you and this is why it is important to think about setting up an offshore company and corporate account even if you are an American citizen.

The point is that the world has changed. The global financial market does not end at your local main street and at your local bank. Banks exists to serve the same exact function all over the world. It just so happens that some of these banks are located in Countries like St Lucia, which offers a very low tax incentive. Technology has advanced now to the point where connectivity is in real time and services can be offered and transactions executed in real time and across international borders. We at FortGate pride ourselves by offering services to companies and individuals in all four hemispheres. We do this despite the time difference and despite the language barriers. The reason our clients do well is because we understand the nature of globalization, and we have embraced it. Our clients do well because they too have embraced it, and the success that follows is immeasurable.

Author-Tonjaka Ewart Kho-Hinkson-Barrister at Law,  B.A. (Ont.), L.L.B (Lond.), BVC

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Saint Lucia’s common law is made up of domestic legislation and case law primarily emanating from Saint Lucia and the regional Caribbean, as well as some use of UK case Law and other common law jurisdictions. Both of these systems exist in tandem and in some respects, the Civil Code overrides any existing common law precedent and indeed any existing Saint Lucia legislation, unless that legislation makes it clear that the Code in any specific case is to be overridden. This means the Code is “gospel” except in the rare cases where a new law comes along and says otherwise.

As a result of this duality there are two separate types of Trusts that can be established in Saint Lucia. The First is a domestic Saint Lucia Trust. This trust is governed by the provisions of the Saint Lucia Civil Code which in turn states that all Saint Lucia Trusts are to be governed by the law of trusts in force, from time to time of England and Wales. In other words, a Saint Lucia Trust is for all intents and purposes, a UK trust. The Second type of Trust is an International Trust. This type of Trust is governed by the International Trustees Act and is regulated by this Act.

Both types of trusts, Saint Lucia Trusts and International Trust, are tax exempt with regards the income generated by the trust, so long as this income is generated outside Saint Lucia. The Saint Lucia Civil Code however, provides for the appointment of a body corporate as a trustee of a Saint Lucia trust. That body corporate can be a tax exempt Interntional Business Company or IBC as provided byThe international Trustees Act. Therefore when read together, the duality that exists between the Code and the Act clearly allows for an IBC to be appointed as Trustee under St. Lucia’s laws. Thus, a Saint Lucia trust can have as its appointed Trustee, a Saint Lucia International Business Company or IBC which is tax exempt. The assets of a Saint Lucia trust can also be owned by an International Business Company or by any company or person for that matter, which is not unusual to offshore trust structures.

An International Trust on the other hand must be registered with the Regulator and only a local trustee is able to perform this task. A Saint Lucia tax exempt company or IBC is an eligible trustee for an International Trust, but to be treated as an International Trust it must be registered by a local trustee. A Saint Lucia Trust therefore need not have an appointed institutional trustee at its helm, but will still enjoy tax exempt status so long as the income generated is outside the jurisdiction. Both an international Trust and Saint Lucia Trust can be established as a unit trust for the purposes of establishing a fund.

So what are the differences between a Saint Lucia Trust and an International Trust? Except for a few provisions relating to asset protection in relation to an International Trust, both types of trusts are identical. The asset protection clauses contained in the International Trustees Act, can easily be duplicated in terms of implementation, in a Saint Lucia Trust, by simply separating the Trustees from the ownership of the underlying assets of the trust.  The advantage of a Saint Lucia Trust, in addition to its tax exempt status, is that there is no need to appoint a locally licensed Trustee. The client is free to appoint any one as Trustee through the incorporation of a trust company or IBC , with directors chosen from any persons available to the client. This saves considerable running costs, as there are no fees chargeable by an institutional trustee.

It is unlikely this current state of the law will ever change, as it would mean denying Saint Lucian residents the benefit Saint Lucia’s Trust law in favor of the international trust law that has been enacted. Just as with many other provisions of Saint Lucia’s Civil Code, this duality in the law of trusts, between the Saint Lucia Civil Code and The International Trustees Act,  will continue to coexist which is for the most part, consistent with Saint Lucia’s legal historical record, where these dualities have existed for over one hundred years.

Author- Tonjaka Kho-Hinkson B.A (Ont) L.L.B (Lond.) BVC (Lond.)-Barrister at Law

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Some jurisdictions, however, do require some financial reporting and I view these as “quasi-offshore jurisdictions”. In Singapore for example, all  foreign companies, including those that benefit from lower Capital gains tax payments, are required to make periodic financial reports available to Singapore’s tax authority. It should also be noted that Singapore does not offer a total exemption on Capital gains taxes for any of its foreign companies, which puts it squarely in the category of a “quasi- offshore jurisdiction”.

Some jurisdictions require that you have a local director who is ordinarily resident in the country. So if you establish an offshore company in that country, you will be required to pay for a local director to be appointed to your company. This again ensures further measures are in place for financial reporting beyond the responsibilities imposed on the client. In Saint Lucia, there is no requirement for any of the directors of a Saint Lucia offshore company, to be ordinarily resident in Saint Lucia.

In other jurisdictions, only Registered Agents can hold offshore accounts on behalf of companies. Therefore if you set up an offshore company in that country, your bank account is operated through your Registered Agent. The government policy here is clearly to ensure close monitoring of accounts by the Registered Agent, and allow for any unscrupulous activity to be reported to the regulators. In Saint Lucia all of the information acquired about the client initially, is used to determine eligibility for an offshore account, and once the account is opened, the client has full control over it. So the Registered Agent had better do his or her job right to start with, because once the account is opened, there is nothin more he or she can do, and the Registered Agent has no control or knowledge about the activities of the account once it is opened.

All of this means that the role of a Registered Agent in Saint Lucia is extremely important and extremely onerous,with regards to maintaining the integrity of the system that we currently have in place. We are like the gatekeepers of the Kingdom and we must be vigilant in determining who we give the keys to! In most, if not all instances, the only interaction the client will have with any authority, is with the Registered Agent. As there is no financial reporting required, there is no interaction with the Regulator or Saint Lucia’s tax agency. Registered Agents in Saint Lucia are therefore an extension of the Financial Services Regulatory Authority, and we are tasked with conducting a thorough, systematic, due diligence check before taking on a client. Due Diligence is primarily the gathering of background information about a client to determine that clients eligibility to own an offshore company and an offshore account. Eligibility is determined based on the Clients identity, Country of residence, source of funding and other factors which are meant to safeguard against money laundering and terrorism financing and other illegal activities.

Registered Agents therefore have a massive responsibility, especially in Saint Lucia, to maintain the honesty and good will of the International Financial Services Industry in Saint Lucia. As a result, Registered Agents in Saint Lucia are carefully picked. There is a stringent application that must be made to the Regulator and only those with sufficient integrity and expertise in the field are chosen to be Registered Agents. It is also important that persons within the Industry in Saint Lucia can vouch for you as a suitable candidate. The system is deliberately set up this way to counterbalance the  nature of the offshore industry in Saint Lucia. With no financial reporting, no local director required, and total exemption from taxes, the system in Saint Lucia is built in such a way that Registered Agents are trained in the knowledge required to ensure, that persons who wish to establish an offshore structure and open offshore accounts in Saint Lucia are vetted, and their business activities are known to, and understood by, the Registered Agent. Any illegal activity discovered by the Agent must be immediately reported to the Financial Services Regulatory Authority in Saint Lucia, who then act on the information. We are therefore like the wardens of the Industry, working to protect its integrity and keeping it at the highest standard possible.

It is clear this system works. Saint Lucia has never been blacklisted by the Financial Action Task Force and maintains one of the most reputable Offshore industries in the Caribbean. Our Registered Agents recognize this and as we all have a stake in the industry, both financially and as citizens of our country, we are all committed to providing not only the highest calibre of service to our clients, but to protecting the goodwill and integrity of the industry as a whole. I for one am quite proud of what we have achieved in such a short space of time as a nation, and I am very excited to see what the future will bring.

Author -Tonjaka E. Hinkson B.A. (Ont.) L.L.B. (Lond) BVC(Lond)-Barrister at Law

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