§ 102 — Power of Authority to issue written notice

102.—(1) The Authority may, if it thinks it necessary or expedient for the effective administration of this Act, for the protection of consumers or in the interest of the public or a section of the public, for ensuring the integrity and proper management of a designated payment system, or for ensuring the integrity of the e‑money stored in a payment account, issue to any of the following persons or classes of persons a written notice, either of a general or a specific nature, to comply with such requirements as the Authority may specify in the notice:(a)

any licensee or class of licensees;

(b)

any operator, or class of operators, of a relevant payment system;

(c)

any settlement institution, or class of settlement institutions, of a relevant payment system;

(d)

any participant, or class of participants, of a relevant payment system;

(e)

any person, or class of persons, that determines access to a relevant payment system;

(f)

any exempt payment service provider or class of exempt payment service providers;

(g)

any person, or class of persons, exempt under section 100;

(h)

any person that contravenes, has contravened, or is likely to contravene, any provision of this Act.

(2) Without limiting subsection (1), a notice may be issued —(a)

with respect to —(i)

the activities that may be carried out by a licensee, an exempt payment service provider, or a person exempt under section 100, in relation to its business;

(ii)

the standards, framework, policies and procedures for the prudent management of risks (including information technology risks) by a licensee, an exempt payment service provider or a person exempt under section 100, or by an operator or a settlement institution of a designated payment system;

(iii)

the financial soundness, financial management and stability of a licensee, an exempt payment service provider or a person exempt under section 100, or of an operator, a settlement institution or a participant of a designated payment system;

(iv)

the standards to be maintained by a licensee, an exempt payment service provider, or a person exempt under section 100, in the conduct of its business;

(v)

the arrangement and conditions that are to apply if a licensee, an exempt payment service provider or a person exempt under section 100, or an operator, a settlement institution or a participant of a designated payment system, appoints any person as an independent contractor to carry out any of the functions and duties of the licensee, exempt payment service provider, person exempt under section 100, operator, settlement institution or participant, as the case may be;

(vi)

the type, form, manner and frequency of returns and other information to be submitted to the Authority;

(vii)

the preparation and publication of reports on the performance of a licensee, an exempt payment service provider or a person exempt under section 100, or of an operator, a settlement institution or a participant of a designated payment system;

(viii)

the remuneration of an auditor appointed under this Act and the costs of an audit carried out under this Act;

(ix)

any measures to be taken by any of the following persons or classes of persons to address any discriminatory measure practised by one or more of those persons or classes of persons:(A)

any operator, or class of operators, of a relevant payment system;

(B)

any settlement institution, or class of settlement institutions, of a relevant payment system;

(C)

any participant, or class of participants, of a relevant payment system;

(D)

any person, or class of persons, that determines access to a relevant payment system;

(x)

the appointment of a person approved by the Authority —(A)

to advise an operator, a settlement institution or a participant of a designated payment system on the proper conduct of its business; or

(B)

to advise a class of participants of a designated payment system on the proper conduct of the business of a participant in that class of participants;

(xi)

the collection by or on behalf of the Authority of information from a licensee, an exempt payment service provider or a person exempt under section 100, or from an operator, a settlement institution or a participant of a designated payment system, in relation to the conduct of its business at such intervals or on such occasions as may be set out in the notice;

(xii)

the manner in which a licensee, an exempt payment service provider or a person exempt under section 100, or an operator, a settlement institution or a participant of a designated payment system, deals with its customers, and any conflicts of interests between the licensee, exempt payment service provider, person exempt under section 100, operator, settlement institution or participant (as the case may be) and its customers;

(xiii)

the duties of a licensee, an exempt payment service provider, or a person exempt under section 100, to its customers in the operation of payment accounts maintained for those customers (including duties in relation to the foreign exchange rate to be applied, where the currency for which the licensee, exempt payment service provider or person exempt under section 100 maintains a payment account for a customer is different from the currency received for payment into that payment account);

(xiv)

the duties of a licensee, an exempt payment service provider, or a person exempt under section 100, to its customers in relation to the safeguarding of money under section 23 (including duties in relation to the foreign exchange rate to be applied, where the currency in which the money is safeguarded is different from the currency received by the licensee, exempt payment service provider or person exempt under section 100 from, or on account of, a customer);

(xv)

the display or exhibition by a licensee, an exempt payment service provider, or a person exempt under section 100, of such cautionary statements as the Authority thinks fit in a conspicuous place at every place of business of the licensee, exempt payment service provider or person exempt under section 100; and

(xvi)

the provision by a licensee, an exempt payment service provider, or a person exempt under section 100, of cautionary statements in writing to the customers of the licensee, exempt payment service provider or person exempt under section 100;

(b)

to require any person that contravenes, has contravened, or is likely to contravene, any provision of this Act —(i)

to comply with, or to cease contravening, that provision;

(ii)

to take any action necessary to enable the person to conduct the person’s business in accordance with sound principles; and

(iii)

where the person is a company, to remove any of its directors; and

(c)

for any other purpose specified in this Act.

(3) It is not necessary to publish any written notice issued under subsection (1) in the Gazette.

(4) The Authority may at any time vary, rescind or revoke any notice issued under subsection (1).

(5) A person that fails to comply with any requirement specified in a notice issued under subsection (1) shall (if the failure to comply with that requirement is not an offence under any other provision of this Act) be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.

(6) In this section, “discriminatory measure” means any measure that is, or is likely to be, not equally disadvantageous or advantageous to all participants of the relevant payment system, in that the measure —(a)

prejudices or benefits one or more of those participants to a greater extent than the other participants; or

(b)

prejudices or benefits one or more of those participants without affecting the other participants.

—(1) The Authority may, if it thinks it necessary or expedient for the effective administration of this Act, for the protection of consumers or in the interest of the public or a section of the public, for ensuring the integrity and proper management of a designated payment system, or for ensuring the integrity of the e‑money stored in a payment account, issue to any of the following persons or classes of persons a written notice, either of a general or a specific nature, to comply with such requirements as the Authority may specify in the notice:(a)

any licensee or class of licensees;

(b)

any operator, or class of operators, of a relevant payment system;

(c)

any settlement institution, or class of settlement institutions, of a relevant payment system;

(d)

any participant, or class of participants, of a relevant payment system;

(e)

any person, or class of persons, that determines access to a relevant payment system;

(f)

any exempt payment service provider or class of exempt payment service providers;

(g)

any person, or class of persons, exempt under section 100;

(h)

any person that contravenes, has contravened, or is likely to contravene, any provision of this Act.

(2) Without limiting subsection (1), a notice may be issued —(a)

with respect to —(i)

the activities that may be carried out by a licensee, an exempt payment service provider, or a person exempt under section 100, in relation to its business;

(ii)

the standards, framework, policies and procedures for the prudent management of risks (including information technology risks) by a licensee, an exempt payment service provider or a person exempt under section 100, or by an operator or a settlement institution of a designated payment system;

(iii)

the financial soundness, financial management and stability of a licensee, an exempt payment service provider or a person exempt under section 100, or of an operator, a settlement institution or a participant of a designated payment system;

(iv)

the standards to be maintained by a licensee, an exempt payment service provider, or a person exempt under section 100, in the conduct of its business;

(v)

the arrangement and conditions that are to apply if a licensee, an exempt payment service provider or a person exempt under section 100, or an operator, a settlement institution or a participant of a designated payment system, appoints any person as an independent contractor to carry out any of the functions and duties of the licensee, exempt payment service provider, person exempt under section 100, operator, settlement institution or participant, as the case may be;

(vi)

the type, form, manner and frequency of returns and other information to be submitted to the Authority;

(vii)

the preparation and publication of reports on the performance of a licensee, an exempt payment service provider or a person exempt under section 100, or of an operator, a settlement institution or a participant of a designated payment system;

(viii)

the remuneration of an auditor appointed under this Act and the costs of an audit carried out under this Act;

(ix)

any measures to be taken by any of the following persons or classes of persons to address any discriminatory measure practised by one or more of those persons or classes of persons:(A)

any operator, or class of operators, of a relevant payment system;

(B)

any settlement institution, or class of settlement institutions, of a relevant payment system;

(C)

any participant, or class of participants, of a relevant payment system;

(D)

any person, or class of persons, that determines access to a relevant payment system;

(x)

the appointment of a person approved by the Authority —(A)

to advise an operator, a settlement institution or a participant of a designated payment system on the proper conduct of its business; or

(B)

to advise a class of participants of a designated payment system on the proper conduct of the business of a participant in that class of participants;

(xi)

the collection by or on behalf of the Authority of information from a licensee, an exempt payment service provider or a person exempt under section 100, or from an operator, a settlement institution or a participant of a designated payment system, in relation to the conduct of its business at such intervals or on such occasions as may be set out in the notice;

(xii)

the manner in which a licensee, an exempt payment service provider or a person exempt under section 100, or an operator, a settlement institution or a participant of a designated payment system, deals with its customers, and any conflicts of interests between the licensee, exempt payment service provider, person exempt under section 100, operator, settlement institution or participant (as the case may be) and its customers;

(xiii)

the duties of a licensee, an exempt payment service provider, or a person exempt under section 100, to its customers in the operation of payment accounts maintained for those customers (including duties in relation to the foreign exchange rate to be applied, where the currency for which the licensee, exempt payment service provider or person exempt under section 100 maintains a payment account for a customer is different from the currency received for payment into that payment account);

(xiv)

the duties of a licensee, an exempt payment service provider, or a person exempt under section 100, to its customers in relation to the safeguarding of money under section 23 (including duties in relation to the foreign exchange rate to be applied, where the currency in which the money is safeguarded is different from the currency received by the licensee, exempt payment service provider or person exempt under section 100 from, or on account of, a customer);

(xv)

the display or exhibition by a licensee, an exempt payment service provider, or a person exempt under section 100, of such cautionary statements as the Authority thinks fit in a conspicuous place at every place of business of the licensee, exempt payment service provider or person exempt under section 100; and

(xvi)

the provision by a licensee, an exempt payment service provider, or a person exempt under section 100, of cautionary statements in writing to the customers of the licensee, exempt payment service provider or person exempt under section 100;

(b)

to require any person that contravenes, has contravened, or is likely to contravene, any provision of this Act —(i)

to comply with, or to cease contravening, that provision;

(ii)

to take any action necessary to enable the person to conduct the person’s business in accordance with sound principles; and

(iii)

where the person is a company, to remove any of its directors; and

(c)

for any other purpose specified in this Act.

(3) It is not necessary to publish any written notice issued under subsection (1) in the Gazette.

(4) The Authority may at any time vary, rescind or revoke any notice issued under subsection (1).

(5) A person that fails to comply with any requirement specified in a notice issued under subsection (1) shall (if the failure to comply with that requirement is not an offence under any other provision of this Act) be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.

(6) In this section, “discriminatory measure” means any measure that is, or is likely to be, not equally disadvantageous or advantageous to all participants of the relevant payment system, in that the measure —(a)

prejudices or benefits one or more of those participants to a greater extent than the other participants; or

(b)

prejudices or benefits one or more of those participants without affecting the other participants.