On 21 July, the Monetary Authority of Singapore (MAS) published a consultation paper seeking views on a proposed new omnibus act that will allow the MAS to adopt a financial sector–wide regulatory approach to financial institutions across the financial sector.
The new omnibus act will contain provisions relating to the following areas:
Under the existing regime, MAS issues prohibition orders (POs) to bar persons from conducting certain activities or from holding key roles in financial institutions (FIs) for a period of time in cases of serious misconduct, and such powers reside in the Securities and Futures Act (Cap 289) (SFA), the Financial Advisers Act (Cap 110) (FAA), and the Insurance Act (Cap 142) (IA). The unintended consequence is that MAS cannot issue POs to persons regulated under other acts administered by MAS even if such persons have committed serious misconduct in the financial industry.
Under the new act, MAS may issue a PO against any person. The sole ground for issuing a PO is proposed to be the fit and proper test; such criteria is currently set out in the MAS Guidelines on Fit and Proper Criteria (Guideline No: FSG-G01) and comprises the following elements:
Under the existing regime, the effect of POs is that a person who has been issued a PO is prohibited from taking up specified positions (i.e., directorship, substantial shareholding, management) and conducting certain activities that are regulated under the SFA, FA, and IA.
Under the new act, MAS proposes additional functions to the scope of prohibition under the POs which are deemed critical to the integrity and functioning of FIs; namely, the following:
Further, MAS proposes for the new act to include a power to prescribe additional specific functions in subsidiary legislation, which would allow MAS to respond swiftly to include new functions as the financial industry develops and new risks emerge.
The Financial Action Task Force (FATF) recently revised the FATF Standards (Standards) to require countries to regulate VASPs to mitigate AML/CFT risks. FATF terms virtual assets as a “digital representation of value that can be digitally traded, or transferred, and can be used for payment or investment purposes.” MAS notes two key enhancements to the scope of the Standards that are pertinent for implementation. Firstly, FATF has defined five activities of VASPs that jurisdictions should regulate for AML/CFT. This first enhancement is covered in proposed amendments to the Payment Services Act.
Secondly, the Standards require VASPs to be licensed or registered in the jurisdiction where they are created. Accordingly, MAS proposes to introduce a new class of FIs, which are entities that are created in Singapore but are carrying on a business of providing virtual asset activities outside of Singapore. Such entities will be termed digital token (DT) service providers and will be regulated under the new act.
DT Service Providers
MAS proposes that a DT be defined as either of the following:
Each of the following is a DT service for the purposes of the new act:
MAS intends to put in place licensing and ongoing requirements on DT service providers to ensure that such entities have a meaningful presence in Singapore such that MAS has adequate supervisory oversight over them, even if they provide DT services outside of Singapore.
MAS proposes all of the following criteria to be fulfilled by a DT service provider at the point of admission:
Once a DT service provider is licensed (licensee), MAS proposes the following ongoing requirements:
AML/CFT Requirements to Be Imposed on DT Service Providers
Due to the anonymity and speed of DT services, MAS considers all transactions relating to DT services to carry higher inherent money laundering/terrorism financing risks. MAS also treats all transactions involving DTs as cross-border in nature. MAS therefore intends to issue a Notice to Digital Token Service Providers on Prevention of Money Laundering and Countering the Financing of Terrorism (FSM Notice). MAS intends to regulate DT service providers primarily for money laundering/terrorism financing risks. To this end, the DT service provider must establish and staff an adequate AML/CFT compliance function in Singapore.
MAS will consult on the full FSM Notice in due course, but anticipates that the AML/CFT requirements for DT service providers would be aligned with the requirements imposed on DPT service providers in MAS Notice PS-N02, Prevention of Money Laundering and Countering the Financing of Terrorism – Holders of Payment Service Licence (Digital Payment Token Service), which was consulted on in June 2019 and issued on 5 December 2019.
Existing MAS-regulated FIs that carry on a business of providing DT services outside of Singapore will also need to be licensed under the new act.
As Singapore aims to be a smart nation, ensuring safety and soundness of the system is key to maintaining confidence in the financial sector. MAS has issued its Notices on Technology Risk Management and Notices on Cyber Hygiene (Tech-Risk Notices), which set out requirements on resilience of critical systems, incident reporting, and cyber hygiene.
Under the new act, MAS proposes to introduce powers to issue directions or make regulations on technology risk management instead of relying on powers in the respective acts to specify technology risk management requirements for regulated activities.
Additionally, MAS is of the view that the current maximum penalties that can be imposed for breaches of Tech-Risk Notices are not commensurate with the potential severity of a disruption to essential financial services and potential impacts to FIs’ customers. Therefore, under the new act, MAS proposes to introduce a power to issue directions to or make regulations concerning any FI or class of FIs for the management of technology risks.
MAS proposes that the maximum penalty for breaches of regulations and Tech-Risk Notices issued to be S$1 million. As in the case of other MAS-administered acts, under the new act, MAS will use a composition framework that takes into account the severity of the breach to determine a composition amount.
Providing Mediators, Adjudicators, and Employees of an Operator of an Approved Dispute Resolution Scheme with Statutory Protection from Liability
Under the existing regime, MAS requires FIs prescribed under the MAS (Dispute Resolution Scheme) Regulations 2007 to subscribe as members of an approved dispute resolution scheme.
To strengthen the confidence and autonomy of an approved dispute resolution operator’s mediators, adjudicators, and employees in carrying out their duties, MAS intends to provide them with statutory protection from liability. The proposed amendment would bring the level of protection for employees, adjudicators, and mediators of an approved dispute resolution scheme operator more in line with that of other public dispute resolution bodies.
Under the new act, a mediator, adjudicator, or employee of an operator of an approved dispute resolution scheme will not be liable for an act or omission done with reasonable care and in good faith. Mediators, adjudicators, and employees will, however, continue to be liable for acts involving willful misconduct, negligence, fraud, or corruption.
For harmonization, MAS intends to move over and/or replicate in the new act provisions in the MAS act that apply across some or all FI classes in the new act. MAS will also be inserting a new provision to impose a general duty to use reasonable care not to provide false information to MAS.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers, who are solicitors of Morgan Lewis Stamford LLC, a Singapore law corporation affiliated with Morgan, Lewis & Bockius LLP:
Wai Ming Yap