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AML in the Cayman Islands is complex and varies for each industry sector. Below is general guidance on AML Officer requirements. The Cayman Islands anti-money laundering regime includes the Proceeds of Crime Act (Revised), Terrorism Act (Revised), Proliferation Financing (Prohibition) Act (Revised), Anti-Money Laundering Regulations (Revised) and the Cayman Islands Monetary Authority’s (“CIMA”) Guidance Notes on the Prevention and Detection of Money Laundering (“ML”), Terrorist Financing (“TF”) and Proliferation Financing (“PF”) in the Cayman Islands, amongst others (the “Cayman AML Regime”). The Cayman AML Regime requires that Cayman Islands Financial Service Providers (“FSPs”) appoint an AML Compliance Officer (“AMLCO”), Money Laundering Reporting Officer (“MLRO”) and Deputy Money Laundering Reporting Officer (“DMLRO”), and each of those persons to comply with their specific roles and responsibilities.
AML Compliance Officer
The AMLCO is required to oversee the compliance function of the FSP. An FSP is required to appoint an AMLCO at the management level, who shall be the point of contact with the supervisory and other competent authorities. AMLCOs are required to have the authority and ability to oversee the effectiveness of FSPs’ anti-money laundering/countering the financing of terrorism (“AML/CFT”) systems, compliance with applicable AML/CFT legislation and guidance and the day-to-day operation of the AML/CFT policies and procedures.
An AMLCO must be a person who is fit and proper to assume the role and who:
- has sufficient skills and experience;
- reports directly to the Board of Directors (“Board”) or equivalent;
- has sufficient seniority and authority so that the Board reacts to and acts upon any recommendations made;
- has regular contact with the Board so that the Board is able to satisfy itself that statutory obligations are being met and that sufficiently robust measures are being taken to protect the FSP against ML/TF risks;
- has sufficient resources, including sufficient time and, where appropriate, support staff; and
- has unfettered access to all business lines, support departments and information necessary to appropriately perform the AML/CFT compliance function.
An FSP may demonstrate clearly apportioned roles for countering ML/TF where the AMLCO (or other audit, compliance, review function):
- Develops and maintain systems and controls (including documented policies and procedures) in line with evolving requirements;
- Ensures regular audits of the AML/CFT programme;
- Maintains various logs, as necessary, which should include logs with respect to declined business, politically exposed persons (“PEPs”), and requests from competent authorities particularly in relation to investigations;
- Advises the Board of AML/CFT compliance issues that need to be brought to its attention;
- Reports periodically to the Board or Board committees (e.g. audit committee), as appropriate, on the FSP’s systems and controls; and
- Responds promptly to requests for information by the relevant competent authorities
An FSP may designate its AMLCO to act as a MLRO or vice versa as far as the person is competent and has sufficient time to perform both roles efficiently. Where an individual is both an MLRO and AMLCO, that person should understand the roles and responsibilities.
Money Laundering Reporting Officer
Each FSP must designate a suitably qualified and experienced person as MLRO at management level, to whom suspicious activity reports (“SARs”) must be made by staff. FSPs must also designate a DMLRO, who should be a staff member of similar status and experience to the MLRO. In the absence of MLRO, the DMLRO shall discharge the MLRO functions.
Delegation and Outsourcing
FSPs are permitted to delegate/outsource the performance of certain AML obligations. FSPs must not enter into outsourcing arrangements where access to data without delay is likely to be impeded by confidentiality, secrecy, privacy, or data protection restrictions.
Persons who act as an AML officer may be subject to personal liability for failure to carry out their functions or for certain illegal activities and the entities they act for may suffer reputational damage for any such failures. For example, if the MLRO/DMLRO fail to disclose to the FRA that they suspect or know that another person is engaged in criminal conduct are liable to a penalty that is a fine and/or imprisonment for up to 5 years. The Proceeds of Crime Act lists five primary offences: (i) concealing or transferring criminal property; (ii) entering into arrangements for the facilitation or use of criminal property; (iii) acquisition, possession or use of criminal property; (iv) failure to disclose a suspicion of criminal conduct; and (v) tipping off. The penalties for these offences range from liability on summary conviction to a fine of US$6,000* or imprisonment for 2 years* or both to liability on conviction on indictment for such offences, the maximum penalty is imprisonment for a term of 14 years* or an unlimited fine, or both. In addition to the foregoing, CIMA may impose an administrative fund up to US$1.2 million* for breaches of the AML Regulations. The Cayman AML Regime is complex. As such, it is very important that the AML officers understand and carry out their roles in accordance with the requirements set out in the Cayman AML Regime and seek appropriate Cayman Islands legal advice.
* as at time of writing.
This publication is for general guidance and is not intended to be a substitute for specific legal advice. Specialist advice should be sought about specific circumstances. If you would like further information, please contact us or reach out to our experts below.
How Stuarts Can Help
Stuarts Investment Funds and Regulatory teams have extensive experience advising funds and other regulated entities in the Cayman Islands on corporate governance and compliance matters. Through our subsidiaries, Stuarts Corporate Services and Southern Management Services our team of experienced corporate professionals can provide you with a full suite of corporate governance and directorship services including Cayman resident directors and corporate secretarial services, to assist in meeting the ongoing regulatory obligations of your fund and regulated entities in the Cayman Islands.