PRACTICAL GUIDELINES ON DUE DILIGENCE

Transcription

1 PRACTICAL GUIDELINES ON DUE DILIGENCE This dcument is just a guide cmpiling the mst frequently asked questins submitted t the Superintendency and the findings f the examinatins, and is intended t help reprting entities facilitate and standardize the accunt pening prcess. The basic elements prvided in this dcument are an illustrative and vluntary guide that shuld nt be interpreted as minr, additinal r supplementary requirements t meet the existing regulatin n the preventin f mney laundering, the financing f terrrism and financing the prliferatin f weapns f mass destructin. The regulatins n AML/CFT prvides that reprting entities must develp and keep current the plicies and prcedures t knw their custmers, related t thse with whm they maintain a cntractual relatinship, t prevent the misuse f banking and trust services. The plicies, prcedures and frms will cver the individuals that are part f the linking prcess. As prvided fr in Article 31 f Law 23 dated 27 April 2015, [the reprting entity] must make sure t understand, identify and verify the identity f the settlr and the final beneficiary f a trust. Due diligence will cntinue until cnfirming the natural persn that is the final beneficiary... When the custmer des nt facilitate cmpliance with the relevant due diligence measures, the regulated financial entities must nt pen r start a business relatinship r must nt cnduct any transactin, and shall reprt the suspicius transactin as prvided fr in Article 36 f Law 26 dated 27 April The infrmatin, data r dcuments cllected during the due diligence prcess must be kept current by reviewing the recrds maintained by the entity, satisfying the frequency established in Rule 10 f 2015 n updating f infrmatin.

2 I. INDIVIDUALS DOCUMENTS FOR OPENING AN ACCOUNT: Each bank must design a Knw yur custmer frm that must be fully filled ut, preferably disabling the fields that are nt applicable t the custmer, and establishing in its plicies, maximum perids fr retaining the knw yur custmer frm, as well as the cntrl methds acceptable t the entity t validate r verify the infrmatin, such as signature and frm cntents verificatin thrugh stamps r ther devices. Furthermre, the frms must be cmpleted with the dcuments and requirements each entity requires t meet the prvisins f Law 23 dated 27 April 2015 whereby the measures t prevent mney laundering, the financing f terrrism and financing the prliferatin f weapns f mass destructin are adpted, Executive Decree 363 dated 13 August 2015 and Rule 10 dated 27 July 2015 fr preventing the misuse f banking and trust services and Rule n the preventin f the misuse f services prvided by ther reprting entities under the supervisin f the Superintendency f Banks. The dcuments must be in SPANISH. If the dcuments are in English r anther language, they must be duly translated by a certified public translatr. This item specifically refers t the Linking Frm t pen an accunt. LEGAL DOCUMENTS: (LEGIBLE AND CURRENT) persnal identificatin dcument must be applicable t all individuals that are accunthlders, including signatries. Fr dmestic custmers: (ne f the 3 chices) Cpy f the Persnal identificatin card (we suggest, but is nt mandatry, that fr all new custmers, the cpy shuld be zmed ut and legible) r the fficial ID card applicatin frm, while the dcument is being prcessed. In the case f a Panamanian individual residing abrad, a cpy f the passprt can be accepted. In the case f underage individuals, the birth certificate r the child identificatin card must be prvided. Fr freign custmers: (ne f the 3 chices) Cpy f the main page f the passprt cntaining the custmer s general data, picture and signature and cpy f the page where the Entrance seal is stamped. The freigners that have btained a Panamanian residence card may be identified by the persnal identificatin card issued by the Electral Curt f Panama.

3 The freigners that hld a permanent resident status as a refugee r asylee may be identified by the refugee ID card issued by the Natinal Immigratin Service. In the case f underage individuals, the birth certificate r the current passprt must be prvided. It is recmmended that the cpies bear the True cpy f the riginal seal, including the signature and date f the bank fficial prcessing the applicatin r checking the infrmatin in the system, because this will prve the bank has checked and cnfirmed [the data]. The perid within which dcuments can be accepted shuld als be established, e.g. it shuld nt be lnger than the established perid. Withut prejudice t the abve, banks may establish ther acceptable cntrl mechanisms fr the validatin r verificatin f the dcuments. We recmmend the Electral Curt system be used nly t verify the persnal identificatin dcument and t update files n dmestic custmers. REFERENCES: A bank reference fr the custmer and/r final beneficiary and fr each accunt signatry: must be submitted in hardcpy; therwise, the bank must recrd n the frm that it has cnfirmed the bank reference prvided by the custmer. Exceptinally, if the custmer has n bank reference, he/she must satisfy the requirement by means f a persnal reference r a business reference prvided by cmpanies, suppliers r data infrmatin agencies, e.g. APC. In the case f refugees, the reference culd be a letter r reslutin issued by the Natinal Office f Refugee Resettlement f the Ministry f Gvernment cntaining the backgrund data n the individual. DUE DILIGENCE: Banks must design frms permitting them t gather Due Diligence infrmatin n an individual t facilitate the prcess (enclsed is an example that can be used as a guide), but each bank r reprting entity must design its wn frms accrding t the cmplexity, size and risk f the entity. Banks may create Interview frms fr their custmers that will permit the bank t btain infrmatin n the custmer s incme, whether he/she is an emplyee, freelancer r retiree, his/her natinality and any ther relevant infrmatin t be checked, t establish the risk prfile and t determine what type f due diligence must be cnducted n the custmer. Exceptinally fr lw risk prfile custmers, if the Bank has exhausted all its effrts in dcumenting the custmer s prfile withut being able t btain an emplyment letter, scial security slip r prf f payment f wages, the bank may, with prir

4 authrizatin frm the Superintendency f Banks, request an Affidavit that will permit the bank t dcument the lw risk prfile custmer s incme up t a maximum mnthly transactin mvement f $5, The bank must have previusly established plicies and prcedures delineating the exceptinal cases, including cases related t the infrmal ecnmy, which the bank culd cnsider, establishing strict cntrls t alert n peratins exceeding the established parameter. Banks may design Visit and Appearance Reprt Frms (a prf f the visit made by the custmer t the bank must be kept n file). The frm must be fully cmpleted withut blank spaces and the frm s perid f currency must be established. This frm must include infrmatin n the persn preparing the dcument and must prvide a space fr his/her signature, including the signature f the persn apprving it and the Verified signature seal. The dcument must be updated when there is cntact with the custmer. Withut prejudice t the abve, banks may use ne frm that culd be applicable t interviews and visits, amng thers. Financial Prfile (Article 5 f Executive Decree 363 dated 13 August 2015; Article 6, paragraph 4 and Article 7 paragraph 7 f Rule dated 26 May 2015; Articles 4 and 9 f Rule dated 27 July 2015). The infrmatin must be duly cmpleted, with cpies f the supprting dcuments substantiating the answers, which may be delivered in electrnic frmat as lng as the bank has the authrizatins and security measures fr each case. All cpies must bear the True cpy f the riginal seal, the fficial s signature and the date. The date must fall within the established perid. The Transactinal Prfile Frm must be fully cmpleted, withut blank spaces and the perid f validity fr the frm must be established. This frm must include infrmatin n the persn preparing the dcument and must prvide a space fr his/her signature, including the signature f the persn apprving it and the Verified signature seal. The dcument must be accmpanied by the supprting dcuments substantiating the declared infrmatin. If the custmer is referred by anther persn, a Letter frm that persn must be included referring the new custmer and indicating that he/she has already cnducted prir due diligence. The verificatin f the dmicile can be cnducted thrugh dcuments, infrmatin r data btained frm ther surces in cases where the custmer risk prfile merits and in cases where the verificatin is required, dcuments culd be requested t verify the prcurement f utilities, such as: Water Electricity Telephne Other dcument:

5 Depending n the risk prfile, it may be advisable t have cntrl mechanisms n the validatin r verificatin, such as stamps r ther devices. The prcessing date must fall within the established perid. Review: Cntrl mechanisms must be established fr the review f searches cnducted thrugh the Internet, Wrld Check, Wrld Cmpliance, Prensa, which culd include the initials f the persn ding the checking, shuld nt take lnger than the established perid and shuld have the respective discarded infrmatin. If there is a ptential match, the Cmpliance Department must be cntacted fr the relevant disambiguatin. The searches must be cnducted primarily n high risk prfile custmers. Internet searches, ther search engines. Any ther dcument the fficial deems relevant r required by the parent cmpany s internal plicies r guidelines and that culd be verified: (establishing in the plicies, the maximum perids t keep the knw yur custmer frm, as well as the cntrl mechanisms acceptable t the entity t validate r verify the infrmatin, such as signature and frm cntents verificatin thrugh stamps r ther devices. Risk Matrix: High Medium Lw Other POLITICALLY EXPOSED PERSONS, HIGH-RISK CUSTOMERS, GOVERNMENT ORGANIZATIONS (If applicable) Banks must design frms f Plitically Expsed Persns and High-Risk Custmers, preferably disabling the fields that are nt applicable t the custmer and establishing in its plicies maximum perids fr retaining the knw yur custmer, plitically expsed persn r high-risk custmer frms, as well as the cntrl methds acceptable t the entity t validate r verify the infrmatin, such as signatures and frm cntent verificatin thrugh stamps r ther devices. This frm must include all infrmatin n the persn preparing it and prvide a space fr his/her signature. In additin t the abvementined dcuments, the frm must include, but is nt limited t: Results f the investigatin f the name (whether there is infrmatin n accusatins/criminal cnvictins, crruptin r bad business practices/activities related t the custmer r any f his/her relatives)

6 Results n negative news/negative searches in the media Des any member f the custmer s tp management, wners, cntrllers, r relatives r clse assciates f any f these persns hld r has held any gvernment psitin? Or des any gvernment rganizatin hld 10% r mre f the custmer s shares? Plitically expsed persn s reputatin and family backgrund Psitin held by the plitically expsed persn Current surce f funding f the plitically expsed persn Infrmatin n the incme/assets f the plitically expsed persn Year in which the plitically expsed persn started serving as a public emplyee Current psitin Last year the plitically expsed persn held ffice Infrmatin n whether the plitically expsed persn was appinted r elected Identificatin and explanatin f ther jbs and psitins f the plitically expsed persn Whether the plitically expsed persn has access and the authrity t mve gvernment funds Withut prejudice t the abve, banks may cnsider negative infrmatin as red flags that culd permit them t check family backgrunds, additinal infrmatin n the rigin f his/her wealth, business, amng thers. The infrmatin must be duly cmplemented with the supprting dcuments. Cntrl mechanisms must be put in place fr checking search engines r tls cnslidating dmestic r internatinal infrmatin related t AML, such as Internet, Wrld Check, Wrld Cmpliance, Prensa, Factiva. This culd include initialing, as well as establishing cntrl mechanisms acceptable t the bank t validate r verify the infrmatin, such as signature and frm cntents verificatin thrugh stamps r ther devices. The dcument must be apprved by the tp management f the bank. SIMPLIFIED DUE DILIGENCE: Is applicable t the fllwing cases, as prvided fr in Rule : - Simplified prcess accunts that can be pened by dmestic persns r freigners residing in Panama. The balance cannt be greater than ne thusand balbas at any mment. Cumulative mnthly depsits and withdrawals cannt exceed ne thusand five hundred balbas. - Christmas savings - Accunts pened fr payrll - Any ther prduct, with the prir authrizatin f the SBP. The fllwing infrmatin shall be cllected, as a minimum:

7 Custmer identificatin and verificatin. Full name, age, sex, emplyment r emplyment situatin, marital status, prfessin r ccupatin, natinality, residence. Any ther dcument, accrding t the custmer type and custmer activity that the bank deems apprpriate t dcument. OPENING ONLINE ACCOUNTS: Digital media may be used t pen accunts, but the same requirements fr the facet-face accunt pening prcess will be applicable. The banks are respnsible fr validating all infrmatin received frm the accunthlders. Additinally, banks must have submitted the methd and prcedure t be used fr this verificatin t the SBP and have btained the SBP s prir apprval. This will nly be applicable t lw risk custmers. II. LEGAL ENTITIES DOCUMENTS FOR OPENING AN ACCOUNT: Each bank must design a Knw yur custmer frm that must be fully filled ut, preferably disabling the fields that are nt applicable t the custmer, and establishing in its plicies, maximum perids fr retaining the knw yur custmer frms, as well as the cntrl methds acceptable t the entity t validate r verify the infrmatin, such as signature and frm cntents verificatin thrugh stamps r ther devices. The frms MUST NOT be altered with crrectin fluid. Furthermre, the frms must be cmpleted with the dcuments, frms and requirements each entity requires t meet the prvisins f Law 23 dated 27 April 2015 whereby the measures t prevent mney laundering, the financing f terrrism and financing the prliferatin f weapns f mass destructin are adpted, Executive Decree 363 dated 13 August 2015 and Rule 10 dated 27 July 2015 amended by Rule 1 dated February 2017 fr preventing the misuse f banking and trust services. The dcuments must be in SPANISH. If the dcuments are in English r anther language, they must be duly translated by a certified public translatr. This item specifically refers t the Linking Frm t pen an accunt. LEGAL DOCUMENTS: 1. Crpratins: Articles f incrpratin f the crpratin applicable t all legal entities that will be accunthlders f the accunt (Legal entities such as Hlders, Signatries, Directrs, Dignitaries (Chairman, Secretary), Members f the Fundatin Cuncil, Prtectrs, Funders, Administratrs, Partners r their equivalent, Legal Representative, Agents and Beneficiaries/Sharehlders). The articles f incrpratin f the crpratin are applicable nly t the legal entity, nt t the hlders, signatries, directrs and dignitaries.

8 Tw different requirements are invlved here: The articles f incrpratin, applicable t the legal entities and, n the ther hand, the identificatin f dignitaries, directrs, agents and legal representatives. a) Fr Panamanian crpratins: Cpy f the Articles f Incrpratin, its amendments and pwers f attrney, if any Certificatin issued by the Public Registry, in riginal r cpy, r infrmatin btained frm the Public Registry s database verifying the existence and data f the legal entity. Each financial reprting entity must establish validity perids fr the crpratin s dcuments, e.g., the certificatin issued by the Public Registry must fall within the established perid and can be printed frm the new Public Registry s Platfrm (SIR) b) Fr freign crpratins: Cpy f the Articles f incrpratin Cpy f Gd Standing, Incumbency, Certificate f Incrpratin, appintment f directrs and dignitaries. In the case f Panamanian crpratins, it is recmmended that the Public Registry f Panama s electrnic identifier be checked. It is recmmended that the cpies bear the True cpy f the riginal seal, including the signature and date f the bank fficial prcessing the applicatin r checking the infrmatin in the system, because this will prve the bank has checked and cnfirmed [the data]. The perid within which dcuments can be accepted shuld als be established, e.g. shuld nt t be lnger than the established perid f validity. 2. Private interest fundatins: Articles f incrpratin f the private interest fundatin that must be applicable t all persns that are part f the accunt pening prcess (hlder, signatries, members f the Fundatin Cuncil, Prtectrs, Administratrs, Funders, Legal Representative, Agents and Beneficiaries). a) Fr Panamanian private interest fundatins: Cpy f the funding charter f the private interest fundatin, as well as its amendments and pwers f attrney, if any. Certificate issued by the Public Registry, in riginal r cpy, r infrmatin btained frm the Public Registry s database verifying

9 the existence and data f the legal entity. Each financial reprting entity must establish validity perids fr the fundatin s dcuments, e.g., that the certificatin issued by the Public Registry must fall within the established perid and can be printed frm the new Public Registry s Platfrm (SIR) Cpy f the fundatin s regulatins, if any b) Fr freign fundatins: Cpy f the Charter f incrpratin f the fundatin Cpy f Gd Standing, Incumbency, Certificate f Incrpratin, appintment f members, funders and beneficiaries. Cpy f the fundatin s regulatins, if any It is recmmended that the cpies bear the True cpy f the riginal seal, including the signature and date f the bank fficial prcessing the applicatin r checking the infrmatin in the system, because this will prve the bank has checked and cnfirmed [the data]. The perid within which dcuments can be accepted shuld als be established, e.g. it shuld nt be lnger than the established perid. 3. Trust funds: Cpy f the trust fund agreement Infrmatin n the trust cmpany (the same legal dcumentatin requested fr the legal entity). It is imprtant t knw the entity that regulates them. Request additinal infrmatin in the case f freign trustees. E.g. are they FATF members. Infrmatin n the settlr (the same legal dcumentatin requested f individuals r legal entities). In the case f legal entities, infrmatin n the directrs, dignitaries, legal representative, agents, sharehlders hlding 10% r mre f the stck. Infrmatin n the trustee r beneficiary (the same legal dcumentatin requested f individuals r legal entities). In the case f legal entities, infrmatin n the directrs, dignitaries, legal representative, agents, sharehlders hlding 10% r mre f the stck. Infrmatin n the final beneficiaries (the same legal dcumentatin requested f individuals) Infrmatin n prtectrs, cmmittees r any ther individual r legal entity that is part f the trust fund r that hlds decisin-making r cntrlling pwer ver the assets, management rights r that can prvide instructins t the trust cmpany.

10 Cntrl methds acceptable t the entity must be put in place t validate r verify the infrmatin, such as signature and frms cntent verificatin thrugh seals r ther methds. It is recmmended that dcument validity perids be established, e.g. n lnger than the established perid. In the case f dmestic custmers, the Electral Curt will be used nly t check the identificatin card and t update files. In the case f freign custmers referred by intermediaries (the custmer did nt visit the cuntry), the requested legal dcuments must be duly legalized (authenticated by Cnsulates r Embassies) r must bear the Apstille (fr member cuntries f The Havre Cnventin). Withut prejudice t the abve, entities may establish cntrl methds permitting the reasnable authenticatin and validity f the dcument cming frm abrad, ther than authenticatin by cnsulates/embassies r apstille. As a minimum, custmer prfiles must be signed by the custmer and by a respnsible persn at the entity. 4. Banks: In additin t the required infrmatin n legal entities, a frm fr Financial Entities can be created, especially in cases f crss-brder banking crrespndent services r fr banks having peratins in nn-cperative jurisdictins, that will permit btaining, as a minimum, the fllwing infrmatin: Percentage f shares listed n an exchange List f the stck exchanges where they are listed Type f bank Type f business cnducted/cuntry where the business activities are mainly cnducted Infrmatin n the license, license issuing cuntry and regulatry bdy Infrmatin n whether it is a lcal bank, freign bank, central bank r develpment bank Number f ffices/branches Number f emplyees The frm must be fully cmpleted withut blank spaces and the perid f validity f the frm must be established. This frm must include infrmatin n the persn preparing the dcument and must prvide a space fr his/her signature, including the signature f the persn apprving it and the Verified signature seal.

11 REFERENCES: A bank reference fr the custmer and/r final beneficiary and fr each accunt signatry: must be submitted in hardcpy; therwise the bank must recrd n the frm that it has cnfirmed the bank reference prvided by the custmer. Exceptinally, if the custmer has n bank reference, he/she must satisfy the requirement by means f a persnal reference r a business reference prvided by cmpanies, suppliers r data infrmatin agencies, e.g. APC. IDENTIFICATION OF THE FINAL BENEFICIARY (depending n the type f legal entity): Banks and trust cmpanies must d their utmst t identify the sharehlders hlding a percentage greater r equal t ten percent (10%) f the stck issued fr the relevant crpratin, and if the final beneficiaries cannt be identified by means f the shares, the reprting entity must make sure t btain the fllwing: Fr registered shares cmpanies, the bank r trust cmpany must request at least ne f the fllwing dcuments: Affidavit signed by the Chairman and Secretary f the crpratin r by the prxy, if applicable. Cpy f the share certificate verifying the name f the registered share wners, if shares have been issued. Cpy f the share registry. Fr crpratins issuing bearer share certificates, the bank r trust cmpany must request the fllwing: Cpy f the bard f directrs meeting minutes r sharehlders meeting minutes filed in the Public Registry in which the crpratin is authrized t adhere t the custdial regime established by means f Law 47 f Bearer share custdian certificate verifying wh the wners f the bearer shares issued by the crpratin are, t determine wh the final beneficiary is, i.e., the relevant individual. Fr ther legal entities whse final beneficiaries cannt be identified by sharehlding, the reprting entity must make sure t btain the fllwing: Meeting minutes, certificatin r affidavit detailing the final beneficiary (beneficiaries), signed by the authrized representatives r persns. DUE DILIGENCE: Banks must design frms permitting them t gather Due Diligence infrmatin n a legal entity and n all f the individuals cnfrming the legal entity, depending n the

12 type f crpratin (wners, signatries, directrs, dignitaries, members f the fundatin cuncil, prtectrs, funders, administratrs, partners, r their equivalent, legal representative, Agents and final beneficiaries). Each bank r reprting entity must design its wn frms accrding t the cmplexity, size and risk f the entity. Banks may create Interview frms fr the legal entities that will permit the bank t btain infrmatin n the type f cmpany (perating r equity), t determine the size f the cmpany, annual incme and surce f funding, current equity, amng thers, in rder t be reviewed and t knw what supprting additinal infrmatin must be requested accrding t their risk. Withut prejudice t the abve, banks may use ne frm that culd be applicable t interviews and visits, amng thers. If the custmer is referred by anther persn, a Letter frm that persn must be included referring the new custmer and indicating that he/she has already cnducted prir due diligence. The Transactinal Prfile Frm must be fully cmpleted, preferably disabling spaces that are nt applicable t the client and the perid f maximum validity fr the frm must be established in the bank r trust cmpany plicies fr the knw yur custmer frms and the cntrl methds acceptable t the entity fr validating r checking the infrmatin, such as checking signatures and frm cntents thrugh stamps r ther devices. The dcument must be accmpanied by the supprting dcuments substantiating the declared infrmatin. The dcument must be accmpanied by the supprting dcuments substantiating the declared infrmatin. Cpies must bear the True cpy f the riginal seal, including the signature and date f the bank fficial prcessing the applicatin. Reviews: Printut f the Taxpayer Recrd Number fr Panamanian crpratins. Reviews (Internet searches, Wrld Check, Wrld Cmpliance, Prensa must bear the initials f the persn cnducting the searches, shuld nt take lnger than the established perid and shuld have the respective discarded infrmatin. If there is a ptential match, the Cmpliance Department must be cntacted fr the relevant disambiguatin. Searches must be cnducted mainly fr high-risk custmers. Internet searches, ther systems Any ther dcument the fficial deems relevant and that culd be verified:

13 Cntrl methds acceptable t the entity t validate r verify the infrmatin, such as signature and frm cntents verificatin thrugh stamps r ther devices shuld be established. The prcessing date shuld fall within the established perid Any ther dcument the fficial deems relevant t pen the accunt Dcument descriptin: Cntrl methds acceptable t the entity t validate r verify the infrmatin, such as signature and frm cntents verificatin thrugh stamps r ther devices, shuld be established. Risk Matrix: High Medium Lw Other