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Off-Shore Centre (Miscellaneous Provisions) Act 1994

NIUE

OFF-SHORE CENTRE (MISCELLANEOUS PROVISIONS) ACT 1994

[Signed 28 March 1994]

No. 185

ANALYSIS

1. Short title
2. Definition
3. International Business Companies
4. Registrar and Deputy Registrar of International Business Companies

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An Act to provide for the application of miscellaneous provisions to the operation of the off-shore financial regime.

BE IT ENACTED by the Niue Assembly in Session assembled, and by the authority of the same, as follows:

1. Short title and Commencement - This Act may be cited as the Off-Shore Centre (Miscellaneous Provisions) Act 1994.

2. Definition – The term "serious criminal activity" where it appears in the following:

(a) Section 34(3)(g) Off-Shore Banking Act 1994

(b) Section 10(3) Niue Development Bond Act 1994

(c) Section 24(3)(g) Off-Shore Insurance Act 1994

(d) Section 21(3) Partnership Amendment Act 1994

(e) Section 64(8) Trustee Act 1994

(f) Section 3 of this Act

(g) Niue Bank Act 1994

shall mean the conviction for an offence committee under the criminal law of any jurisdiction for which the offender has been sentenced to an actual term of imprisonment of three years or more, providing such an offence would carry a similar penalty if committed in Niue.

3. International Business Companies - (1) This section shall apply to companies under the International Business Companies Act 1994.

(2) Cabinet may of its own motion or pursuant to an application in writing lodged with the Registrar by an international business company exempt such company or body from all or any part of the provisions of this Act and may impose such terms and conditions as it thinks fit as a condition under which such exemption is granted; an exemption granted under this subsection may be revoked by Cabinet at any time.

(3) Where the Registrar and/or Minister of Justice suspects that, any international business company has been involved in, or is associated with or related to any person who has been involved in the laundering of the proceeds of the sale of prohibited narcotic substances or the laundering of the proceeds gained from any serious criminal activity whether in Niue or elsewhere, then the Minister with the concurrence of Cabinet may make an order -

(i) prohibiting the initial incorporation of any international business company; or

(ii) directing any international business company to cease to carry on its business or part of its business either immediately or within such time as may be specified in the order.

(4) An order made under this section may be revoked or varied by the Minister of Justice with the concurrence of Cabinet.

(5) In making an order under this section the Minister of Justice and Cabinet shall not be required to act judicially and such order shall be final.

(6) No action shall lie against the Government or any statutory body or authority of Niue, any Minister, any judge or any public officer in respect of anything done or omitted in exercise or purported exercise by any Minister, any Judge or any public officer of its or his functions or duties under this Act.

(7) All proceedings, other than criminal proceedings, relating to international business companies commenced in any Court either under the provisions of this Act or for the purpose solely of determining the rights or obligations of officers, members or holders of debentures, and any appeal from a decision therein, shall, unless such Court otherwise orders, be heard in camera and no details of the proceedings shall be published by any person without leave of such Court.

(8) Where -

(a) in any proceedings for winding-up an international business company the Court is satisfied that the company or any officer thereof has failed to comply with any provision of this Act; or

(b) an international business company or any officer thereof is convicted by any Court of any offence under this Act,

such Court may, if it thinks fit, order that the records and registers of that company are to be deposited with the Registrar and that such records, books and registers and the entries in the Registrar's registers and records relating to that company are to be opened for public inspection.

(9) Any person or entity who, with respect to an international business company incorporated or continued under this Act and whether in Niue or elsewhere -

(a) divulges;

(b) attempts, offers or threatens to divulge;

(c) induces or attempts to induce other persons to divulge;

(d) incites, abets, counsels or procures any person to divulge; or

(e) is knowingly concerned in the divulging of; any information or communication in respect of, in relation to or concerning -

(i) the membership of or a beneficial ownership of, any shares or other interest in such a company;

(ii) the identity of any member of such a company or the interest (legal or beneficial) of any such member in such a company;

(iii) the management or officers of such a company;

(iv) any of the business, financial or other affairs or transactions of such a company;

(v) the assets or liabilities of such a company; or

(vi) the existence of, or the contents of, any register maintained by such a company or any other documentation held by the company,

shall be guilty of an offence against this Act.

(10) Notwithstanding subsection (9) of this section, an offence shall not be committed where information is divulged or made available to the extent reasonably required in the circumstances:

(a) by an officer of an international business company to the Registrar or any Minister, for the purpose of complying with, or facilitating the giving effect to of, the provisions of this Act;

(b) by an officer of an international business company to any person for the purpose of carrying on the business of the company or is otherwise in the best interest of members: Provided that nothing herein shall permit compliance with any demand or request for information by any foreign government or any court or tribunal of any country other than Niue where the divulging of the information will, or is likely to, result in the payment of any tax, penalty or any fine by the company; or

(c) by an officer of an international business company to any government including the Government of Niue or any court or tribunal of any country including the Niue but only if and to the extent that the court in Niue so directs, having been satisfied that the information is required and will be used only for the purpose of an investigation or prosecution of any person in relation to the sale, or the laundering of the proceeds of sale, of any prohibited narcotic substances or the laundering of the proceeds of any serious criminal activity, whether that sale or laundering occurred in Niue or elsewhere or for the purposes of an investigation or prosecution in Niue of any person in relation to any other illegal activities;

(d) by any person to an officer of an international business company or trustee company in the course of the performance of the duties of that officer;

(e) by an officer of an international business company to a member of the company where all of the directors of that company consent to such disclosure;

(f) by an officer of an international business company to any other person where all of the directors of that company consent to such disclosure;

(g) by an officer of an international business company to a legal practitioner for the purpose of obtaining legal advice for the benefit of that officer;

(h) by the Registrar to another person at the request of an officer of an international business company.

(11) Nothing in this section shall prevent the Court from requiring any person to produce documents or to give evidence in any criminal proceedings or in any civil proceedings of any facts relevant in such proceedings in a court in Niue.

(12) In recognition of the desirability of maintaining secrecy in respect of the activities of all international business companies registered under this Act, the Minister shall be obliged to do all things which, in his opinion, are necessary to give full effect to the provisions of this section.

(13) This section shall bind all instrumentalities of the Government in their executive, legislative and judicial capacities.

(14) This section shall apply to every international business company and to every foreign company to the extent to which that information relates to any branch of the foreign company in Niue or any business which it conducts in Niue or in relation to any person who is a resident of Niue.

(15) The Crown guarantees to all international companies and foreign companies that there shall be no compulsory acquisition or expropriation of the property of such companies, or their investors, situated in Niue except -

(a) in accordance with the due process of law;

(b) for a public purpose defined by law; and

(c) in payment of compensation as defined by law.

(16) The articles of an international company may provide that on the happening of any specified event (including without limitation where any foreign government expropriates any membership interest of a member of an international company) then the provisions of this section shall apply.

(17) Upon the occurrence of any specified event:

(a) the membership interest of any member of an international company affected by that event shall automatically vest in the specified person and if more than one specified person, to those specified persons in the proportions in the manner stated in the articles of the international company; and

(b) no other person (including the original owner) shall have any rights in or to the membership interest.

(18) Every holder of a membership interest in an international company shall be entitled to nominate one or more specified persons and if more than one specified person is nominated by a holder of a membership interest, the proportions and manner in which the membership interest shall vest in each of those specified persons shall be stated.

(19) A holder of a membership interest in an international company shall be entitled at any time and from time to time to nominate or remove a specified person by notice in writing to the international company.

4. Registrar and Deputy Registrars - (1) There shall be a suitably qualified person pointed as Registrar of International Business Companies, who shall be appointed by the Niue Public Service Commission under the provisions of Part XXXI of the Niue Act 1966.

(2) The Registrar shall be responsible for the administration of, and compliance with the International Business Companies Act 1994.

(3) There may also be appointed by the Niue Public Service Commission under the provisions of Part XXXI of the Niue Act 1966, a Deputy Registrar of International Business Companies, who shall, subject to the control of the Registrar, possess, exercise, and perform the same powers, functions, and duties, as the Registrar; and every reference in this Act, or the International Business Companies Act 1994, to the Registrar shall, so far as practicable, extend and apply to the Deputy Registrar accordingly.

(4) (a) In addition to, or instead of the appointment of any Deputy Registrar under subsection (3) hereof, Cabinet shall have the power to authorise by warrant, the appointment of any suitably qualified person to act in the capacity of a Deputy Registrar of International Business Companies, to enable the registration of international business companies pursuant to this Act and the International Business Companies Act 1994 by a registered agent, or other person or institution approved by Cabinet, where that registered agent, person or institution have their principal place of business outside of Niue.

(b) Any Deputy Registrar so appointed shall, subject to the control of the Registrar, possess, exercise, and perform the same powers, functions and duties as the Registrar; and every reference in this Act, or in the International Business Companies Act 1994, to the Registrar shall, so far as practicable, extend and apply to a Deputy Registrar appointed under this subsection accordingly.

(5) Any warrant issued by Cabinet pursuant to subsection (4) of this section may be revoked.

SIGNED AND SEALED at the Assembly Chambers this 28th day of March 1994.

This Act was passed by the Niue Assembly on the 14th Day of March 1994.

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