Section 64: Confidentiality

64. Confidentiality (1) (a) Subject to this Act, every person, including a service provider, who, by virtue of his professional relationship with a financial institution, has access to the books, accounts, records, financial statements or other documents, whether electronically or otherwise, of a financial institution shall— (i) in the case of a director or senior officer, take an oath of confidentiality in the form set out in the First Schedule; (ii) in the case of a director or service provider who is a non-resident, take an oath of confidentiality before the competent Court or authority in the country of residence of the director or service provider, in such form as the central bank may approve; or (iii) in any other case, make a declaration of confidentiality before the Chief Executive Officer or Deputy Chief Executive Officer of the financial institution in the form set out in the Second Schedule, before he begins to perform any duties under the banking laws. (aa) Paragraph (a) shall not apply where a service provider provides a financial institution with a written undertaking signed by its officer in charge and all its employees to the effect that they shall not, during and after their relationship with the financial institution, disclose, directly or indirectly to any person, any information relating to the affairs of any of its customers, including any deposits, borrowings, or transactions or other personal, financial or business affairs, without the written consent of the customer or his personal representative, and the financial institution requires the officer in charge of the service provider to make, on behalf of the service provider and all its employees, the declaration of confidentiality in the form set out in the Second Schedule. (b) For the purposes of paragraph (a), “professional relationship” means any relationship between a financial institution and a service provider of whom the central bank has been made aware of. [Issue 7] B3 – 46 Revised Laws of Mauritius (2) Except for the purpose of the performance of his duties or the exercise of his functions under the banking laws or as directed in writing by the central bank, no person referred to in subsection (1) shall, during or after his relationship with the financial institution, disclose directly or indirectly to any person any information relating to the affairs of any of its customers including any deposits, borrowings or transactions or other personal, financial or business affairs, without the prior written consent of the customer or his personal representative. (3) The duty of confidentiality imposed under this section shall not apply where— (a) a customer who had been issued a credit card or charge card by a financial institution, has his card suspended or cancelled by the financial institution by reason of his default in payment, and the financial institution discloses information relating to the customer’s name and identity, the amount of his indebtedness and the date of suspension or cancellation of his credit card or charge card to other financial institutions issuing credit cards or charge cards in Mauritius; (b) the customer is declared bankrupt in Mauritius or, in a case of a company, is being wound up; (c) the customer has passed away, testate or intestate, and the information is required by his appointed personal representative or his testamentary executor solely in connection with the succession estate; (d) civil proceedings arise involving the finan of suspension or cancellation of his credit card or charge card to other financial institutions issuing credit cards or charge cards in Mauritius; (b) the customer is declared bankrupt in Mauritius or, in a case of a company, is being wound up; (c) the customer has passed away, testate or intestate, and the information is required by his appointed personal representative or his testamentary executor solely in connection with the succession estate; (d) civil proceedings arise involving the financial institution and the customer or his account; (e) the information is required by a colleague in the employment of the same financial institution in Mauritius or an auditor or legal representative of the financial institution who requires and is entitled to know the information in the course of his professional duties; continued on page B3 – 47 B3 – 46 (1) [Issue 4] Revised Laws of Mauritius (f) the information is required by another financial institution for the purpose of assessing the creditworthiness of a customer, provided that the information is being sought for commercial reasons and is of a general nature; (g) the financial institution is served with a garnishee order attaching monies in the account of the customer; (h) any person referred to in subsection (1) is summoned to appear before a Court or Judge in Mauritius and the Court or the Judge orders the disclosure of the information; (i) the information is required for transmission to the Credit Information Bureau established under the Bank of Mauritius Act; (j) the financial institution is required to make a report or provides additional information on a suspicious transaction to the Financial Intelligence Unit under the Financial Intelligence and AntiMoney Laundering Act; (k) the financial institution is required to provide information in compliance with section 48 or an order pursuant to the Asset Recovery Act; (l) the financial institution, other than a cash dealer, is required to provide information and particulars, and to do any other act, under Sub-part BA of Part VIII of the Income Tax Act. (m) in respect of credit information, the information is required for transmission to the guarantor of a credit facility contracted by the customer; (n) disclosure of information is required for the purpose of section 30, 32 or 32A; or (o) the information is required by the central bank for the purpose of assisting the Financial Services Commission established under the Financial Services Act in the discharge of its functions under that Act or its obligations under any international agreement, convention or treaty to which it is a party. (4) Subject to subsections (6) and (7), where the head office of a financial institution— (a) incorporated outside Mauritius requires information from its branch in Mauritius about any transaction of that branch; or (b) incorporated in Mauritius requires information from its branch outside Mauritius about any transaction of that branch, the information shall be disclosed. (5) Subject to subsections (6) and (7), where the parent financial institution of a subsidiary operating in Mauritius and subject to consolidated supervision requires information from the subsidiary about any transaction of the subsidiary, the information shall be disclosed. B3 – 47 [Issue 9] Banking Act (6) Where the information which is required under subsection (4) or (5) relates to a transaction with a customer other than a financial institution, no information other than credit facilities granted to or foreign exchange transactions with the customer shall be disclosed. (7) No information relating to deposits taken from or foreign exchange transactions with a central bank or any other entity or agency, by whatever name called, which performs the functions of a central bank, shall be disclosed. (7A) (a) Nothing in this section shall preclude a financial institution from disclosing to the head office or the holding company of the financial institution, whether in or outside Mauritius, or any other person, designated by the head office or holding company to perform such functions, any information relating to the affairs of the financial institution or its customers for the purpose of conducting centralised functions of audit, risk management, compliance, finance, information technology or such other centralised function as the central bank ma ial institution from disclosing to the head office or the holding company of the financial institution, whether in or outside Mauritius, or any other person, designated by the head office or holding company to perform such functions, any information relating to the affairs of the financial institution or its customers for the purpose of conducting centralised functions of audit, risk management, compliance, finance, information technology or such other centralised function as the central bank may approve. (b) Any person who has access to any information disclosed by the financial institution under paragraph (a) shall comply with the duty of confidentiality imposed under this section. (8) Where an officer of a foreign financial institution or an officer of a central bank or banking regulator in a foreign country or any other entity or agency, by whatever name called, having the responsibility to supervise financial institutions or performing the functions of a central bank, proposes to conduct an inquiry, audit or inspection of a branch or a subsidiary of such financial institution in Mauritius or to conduct such other action that would involve the duty of confidentiality imposed under this section, he shall obtain the prior written authorisation of the central bank and be subject to the duty of confidentiality imposed under this section and any condition that the central bank may impose before information of a confidential nature be made available to him. (8A) A financial institution shall seek the prior approval of the central bank before providing any confidential information to any person who intends to carry out due diligence on the financial institution with a view to acquiring a shareholding in the financial institution. (9) The Director-General under the Prevention of Corruption Act, the Chief Executive of the Financial Services Commission established under the Financial Services Act, the Commissioner of Police, the Director-General of the Mauritius Revenue Authority established under the Mauritius Revenue Authority Act, the Enforcement Authority under the Asset Recovery Act, or any other competent authority in Mauritius or outside Mauritius who requires any information from a financial institution relating to the transactions and accounts of any person, may apply to a Judge in Chambers for an order of disclosure of such transactions and accounts or such part thereof as may be necessary. [Issue 9] B3 – 48 Revised Laws of Mauritius (10) The Judge in Chambers shall not make an order of disclosure unless he is satisfied that— (a) the applicant is acting in the discharge of his or its duties; (b) the information is material to any civil or criminal proceedings, whether pending or contemplated or is required for the purpose of any enquiry into or relating to the trafficking of narcotics and dangerous drugs, arms trafficking, offences related to terrorism under the Prevention of Terrorism Act or money laundering under the Financial Intelligence and Anti-Money Laundering Act; or (c) the disclosure is otherwise necessary, in all the circumstances. (11) Subject to this Act, the central bank or any person making an inspection or conducting an examination for it under Part V shall not reveal, unless required by a Court so to do, to any person any information in relation to the affairs of a customer obtained in the course of an inspection made or of an examination conducted under Part V. (12) Notwithstanding subsection (11), the central bank and Anti-Money Laundering Act; or (c) the disclosure is otherwise necessary, in all the circumstances. (11) Subject to this Act, the central bank or any person making an inspection or conducting an examination for it under Part V shall not reveal, unless required by a Court so to do, to any person any information in relation to the affairs of a customer obtained in the course of an inspection made or of an examination conducted under Part V. (12) Notwithstanding subsection (11), the central bank may disclose to the auditor of a financial institution any information received under or for the purposes of this Act where it considers that disclosing the information would enable or assist it in the discharge of its supervisory responsibilities. (13) The central bank may publish, at such times as it may determine, information or data furnished under this Act provided that the information or data do not disclose the particular financial situation of any financial institution or customer, unless the consent of the financial institution or the customer, as the case may be, has been specifically obtained. (14) Nothing in this section shall preclude the disclosure of information by the central bank, under conditions of confidentiality— (a) to a central bank or any other entity or agency, by whatever name called, which performs the functions of a central bank in a foreign country for the purpose of assisting it in exercising functions corresponding to those of the central bank under this Act; (b) to Statistics Mauritius, to enable the Director of Statistics Mauritius to discharge, or assist him in discharging, any of his functions under the Statistics Act. (15) This section shall be without prejudice to the obligations of Mauritius under any international treaty, convention or agreement and to the obligations of the central bank under any concordat or arrangement or under any existing or future memorandum of understanding for cooperation and exchange of information between the central bank and the Financial Services Commission established under the Financial Services Act, or between the central bank and any other foreign regulatory agency performing functions similar to those of the central bank. B3 – 49 [Issue 9] Banking Act (16) In the event of any conflict or inconsistency between this section and any other enactment, other than the Bank of Mauritius Act, section 45 (4) of the Dangerous Drugs Act, the Financial Intelligence and AntiMoney Laundering Act, sections 123 and 124 of the Income Tax Act and the Mutual Assistance in Criminal and Related Matters Act, this section shall prevail. [S. 64 amended by s. 30 of Act 24 of 2005 w.e.f. 1 October 2005; s. 2 (g) of Act 15 of 2006 w.e.f. 1 July 2006 and 7 August 2006; s. 97 (1) of Act 14 of 2007 w.e.f. 28 September 2007; s. 4 (d) of Act 17 of 2007 w.e.f. 22 August 2007; s. 2 (r) of Act 18 of 2008 w.e.f. 19 July 2008; s. 3 (f) of Act 14 of 2009 w.e.f. 30 July 2009; s. 3 (f) of Act 14 of 2009 w.e.f. 30 July 2009; s. 3 (j) of Act 10 of 2010 w.e.f. 24 December 2010; s. 4 (b) of Act 20 of 2011 w.e.f. 31 August 2011; s. 4 (f) of Act 38 of 2011 w.e.f. 15 December 2011; s. 65 (1) of Act 9 of 2011 w.e.f. 1 February 2012; s. 27 of Act 24 of 2012 w.e.f. 10 November 2012; s. 4 of Act 1 of 2013 w.e.f. 18 April 2013; s. 3 (o) of Act 27 of 2013 w.e.f. 21 December 2013; s. 4 (l) of Act 9 of 2015 w.e.f. 14 May 2015; s. 3 (o) of Act 18 of 2016 w.e.f. 7 September 2016.] PART IX – CONSERVATORSHIP s. 3 (j) of Act 10 of 2010 w.e.f. 24 December 2010; s. 4 (b) of Act 20 of 2011 w.e.f. 31 August 2011; s. 4 (f) of Act 38 of 2011 w.e.f. 15 December 2011; s. 65 (1) of Act 9 of 2011 w.e.f. 1 February 2012; s. 27 of Act 24 of 2012 w.e.f. 10 November 2012; s. 4 of Act 1 of 2013 w.e.f. 18 April 2013; s. 3 (o) of Act 27 of 2013 w.e.f. 21 December 2013; s. 4 (l) of Act 9 of 2015 w.e.f. 14 May 2015; s. 3 (o) of Act 18 of 2016 w.e.f. 7 September 2016.] PART IX – CONSERVATORSHIP