COVID-19: A guide for regulated businesses

COVID-19: A guide for regulated businesses in Guernsey and Jersey

Continuity planning

The Jersey Financial Services Commission (JFSC) and the Guernsey Financial Services Commission (the GFSC, and together with the JFSC, the Regulators) have taken steps to enact their respective business continuity plans to ensure that they are each able to sufficiently manage the impact of the COVID-19 outbreak on their regulatory oversight function.

In turn, the Regulators also expect that all regulated businesses undertake a similar form of business continuity planning to ensure that they too "continue to operate effectively and meet regulatory obligations".

The general response by the Regulators to the COVID-19 response has so far been to assure businesses that they understand that working practices are likely to change as more staff work from home but expect businesses to have sufficient continuity and contingency measures in place so that regulatory obligations are adhered to.

The JFSC has advised regulated businesses to ensure (amongst other matters) that contingency plans are developed so that compliance monitoring is not diminished, the span of control function is not compromised, (especially where businesses are operating at minimum levels), that there is no interruption of individual specific accountabilities i.e. Principal Person and Key Person roles and any outsourcing arrangements are robust such that alternative arrangements can be enacted should the outsourced party be unable to fulfil the outsourced activities. 

Capital Adequacy and Solvency

The Regulators recognise the effect COVID-19 has had on balance sheets and have reiterated the need for regulated businesses to actively monitor capital, financial resource and solvency requirements and manage operational resilience.  Regulated businesses in Jersey should consider:

1. making sure that their finance functions are regularly monitoring forecast budgets against actual performance;
2. increasing the frequency of Adjusted Net Liquid Asset (ANLA) and Margin of Solvency calculations to maintain specified thresholds; and
3. updating and formally documenting that their directors (or partners, certificate holders or other senior managers) are satisfied that the business can maintain adequate resources in order to meet business commitments.

Concessions

The JFSC now expects and encourages regulated businesses to contact it via email or its available electronic portals.  Accordingly, the JFSC is happy to accept personal questionnaire declarations and financial statements electronically with electronic signatures.  For all documents which are signed electronically, please retain reliable and appropriate evidence identifying the person signing the documents, demonstrating (where appropriate) that the signatory has given authority for an electronic signature to be used. 

The JFSC has agreed to extend some of the forthcoming business deadlines for submissions of audited accounts, fund statistics returns and prudential returns (amongst others).  The JFSC is encouraging all regulated businesses to make their regulatory submissions before the revised deadlines, where possible.  Full details of the extensions can be reviewed here https://www.jerseyfsc.org/response-to-covid-19/information-for-regulated-businesses-coronavirus-covid-19/

Similarly the GFSC has indicated, amongst other matters, that:

1. returns to the Commission which would ordinarily require auditing (e.g. because they relate to a year end result) may be submitted in an unaudited form without a special concession being sought from the Commission; and
    
2. those financial returns for insurers, insurance intermediaries and managers, investment firms, funds and fiduciaries which would require submission by the end of April 2020, may be submitted at any point before the end of May 2020 in unaudited form.  Similarly, the deadline for submission of unaudited returns for other firms with a non-calendar financial year, is extended by 1 month (so, for example, a firm with a year-end of 31 January would not be required to file the financial return before the end of June, rather than the usual requirement to file by the end of May).

Where a regulated business foresees non-compliance with any of its regulatory obligations, the Regulators have requested that such regulated business contact their relevant regulatory supervisor in a timely manner. In particular, the GFSC has said that any firm which knows that it will not be able to make the revised filing deadlines should write to the Commission to explain what issues it is experiencing, how it is remediating those issues and when it expects to be able to file. The Regulators have also reinforced the regulatory obligation to be cognisant of suspicious activity and to note that reporting obligations still remain in place.  

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

Regulatory information can be found under Legal Notice