Statutes of PolyReg
Name, registered office, object
§1 Name and registered office
1 There is established, in accordance with the provisions of Art. 60 et seq of the Swiss Civil Code ("ZGB"), an association under the name "PolyReg General Self-Regulatory Organisation".
2 The association is to be entered in the Register of Commerce.
3 The registered office of the association is in Zurich.
1 The association is a self-regulatory organisation covering the whole of Switzerland and is independent of any trade association. It is established in accordance with Article 24 of the Swiss Federal Act on the Prevention of Money-Laundering in the Financial Sector ("MLA") to carry out the tasks provided for in the Act. It shall discharge the statutory duties of monitoring and supervising the financial intermediaries forming the membership and shall itself be subject to the supervision of the Money-Laundering Control Authority (Control Authority, Art. 17 MLA).
2 The association requires its members to provide high quality financial services which are legally and ethically irreproachable. Through training, directives, audits and internal sanctions, it shall ensure that its members comply with the regulations of the MLA at all times.
3 The association shall collect and administer the legally required data concerning its members and its own activities, carry out inspections to check compliance with the legal regulations, and issue the reports required in accordance with the MLA and the instructions of the control authority.
§3 Eligibility for membership
1 Membership of PolyReg shall be open to all natural persons and legal entities that provide services in the financial sector, have their registered office, a branch or a place of business in Switzerland, and act as financial intermediaries in the country within the meaning of Art. 2 para. 3 letters a-g MLA.
2 The members of the executive board and the executive director can and must be members of the association and comply with the statutes and regulations, even if they are not themselves financial intermediaries. They may not be regulated by PolyReg. However, this shall not prevent the establishment of separate employment or contractual relations to regulate complementary civil law matters.
3 The members of the arbitral tribunal and the auditors may not be members of the association.
§4 Membership requirements
1 Only natural persons and legal entities satisfying the following requirements may be accepted as members:
- The member itself, the persons it entrusts with the tasks of management and administration, and all employees working for it in the domain of financial intermediation must enjoy a good reputation with regard to their activity as financial intermediaries and be able to guarantee fulfilment of their obligations under the MLA and the regulations.
- The member undertakes to conduct its activity at all times in accordance with the object laid down in the statutes.
- The member undertakes to comply at all times with the obligations laid down in the MLA, the directives issued by the control authority, and the regulations stipulated in Art. 25 MLA.
2 These requirements shall further apply correspondingly to the members of the executive board and the special commission, the executive director, the arbitrators, the training officers, the independent investigators, the inspection agencies and the auditors. Apart from evidencing their specialist knowledge, these parties must be able to guarantee the ability to conduct irreproachable examinations and must be independent of the management and executive board of the financial intermediary to be inspected.
§5 Applications for membership
1 Applications for membership must be sent to the executive director, who will submit them to the board after checking the membership requirements and, where applicable, completing the documentation. The executive director may recommend the acceptance or rejection of the application.
2 The application must contain a written declaration that the applicant agrees unreservedly to comply with the statutes and regulations of PolyReg.
3 To demonstrate eligibility for membership, the applicant shall enclose documentation providing information on its organisational structure and business activity. This shall include by way of example not limitation:
- a current Register of Commerce extract (where already registered or required to do so);
- particulars of its corporate object and activities;
- the applicant's surname, first name and business name or a copy of its memorandum and articles of association;
- full contact details of places of business in Switzerland (address, telephone number, email address);
- the names of the proprietor or beneficial owners, the members of the management and authorised signatories, together with their respective shareholdings;
- information on the numbers and qualifications of employees working in connection with financial services;
- information on membership of trade associations;
- information on any previous membership of another SRO or previous rejection of a membership application by another SRO;
- evidence of good character (character reference, Register of Commerce extract, criminal record extract, declaration of any penal or administrative proceedings pending in connection with this business activity);
4 The executive board may lay down further regulations concerning the form and content of the application for membership and produce a new application form.
§6 Acceptance decision and appeal procedure
1 The executive board will decide to accept an application once it has satisfied itself that the applicant meets the requirements of the law and the statutes. Otherwise, the application will be rejected.
2 The executive board may delegate the decisions on applications, wholly or partially, to the executive committee.
3 If the executive board rejects the application, the applicant may appeal to the arbitral tribunal provided for under the statutes.
§7 Acceptance of association officers
1 Under these statutes, the officers of the association must be members. Accordingly, before they are elected, it is necessary to check that they satisfy the membership requirements. The approval of the control authority must be obtained for all association officers and all employees who represent PolyReg externally.
2 An officer becomes a member of the association upon election. If the control authority has reserved the right to approve the filling of the position, membership begins when such approval is granted.
3 The association officer must sign a membership form that makes reference to the statutes of the association.
§8 Conditions for remaining a member
1 Members must at all times satisfy and comply with the conditions for membership.
2 Members must notify the executive director of any change in the particulars contained in their original membership application without delay and of their own volition. The executive director will report the changes to the executive board.
3 On the occasion of their regular inspections, the inspection agencies will check whether the obligations to notify the association have been complied with and whether the conditions for membership continue to apply.
4 The executive director will periodically check the information available from public sources, such as the Swiss Official Trade Gazette, to ascertain whether members continue to satisfy the conditions for membership and have reported any changes. He will then report to the executive board.
1 Members may withdraw from the association at any time by giving notice in writing to the executive director. In the event of withdrawal, the member remains liable for the subscription for the current period. The same applies to any association fees or fines already incurred, as well as subsequent fines resulting from an inspection procedure already scheduled at the time of withdrawal.
2 If a member withdraws after the executive board has ordered an inspection, whether by the independent investigator or by an examination agency, the inspection must proceed until completed. The withdrawal shall become effective only after the completion of the inspection and any ensuing sanction procedure.
3 From the date of its notice of withdrawal, the member shall no longer have the right to operate as a financial intermediary, unless it joins another self-regulatory organisation or is in possession of an authorisation from the control authority.
4 PolyReg officers shall withdraw from the association automatically from the effective date of their resignation or dismissal, or of their being voted out of office or not re-elected.
§10 Expulsion of members
1 The board may expel members on its own authority, or at the proposal of the executive director or an investigator:
- if they are in repeated breach of their obligations to report to the association;
- if they no longer satisfy the conditions for continued membership (§ 8 of the statutes) and, in particular, if they have not duly fulfilled their obligations under the MLA, or if they can no longer guarantee that business will be conducted irreproachably, whether personally or as an organisation;
- if, despite warning, they fail to meet their financial obligations (subscriptions, fees and fines/penalties).
2 A member must be expelled if it has wilfully or through gross negligence contravened the provisions of the MLA and particularly the obligation to notify. In the event of a plurality of persons, proceedings will be instituted in accordance with the special provisions of the regulations.
3 As a rule, a member will be given a warning and a grace period of up to three months to remedy the situation under the law or the statutes which has given rise to the threat of expulsion. This does not apply to cases where immediate expulsion is necessary.
4 In any event, the expulsion or warning may be accompanied by a fine, the amount of which will be determined by a decision of the executive board.
§11 Financial ConsequencesIn any event, a membership subscription already due at the time of a withdrawal or expulsion will be payable for the period in progress.
§12 Appeals to the arbitral tribunal
1 Executive board decisions to expel and fine members shall be notified in writing with a brief statement of the grounds.
2 A member who is expelled may appeal to the arbitral tribunal provided for under these statutes.
3 The arbitration officer shall notify the executive board of appeals received and shall initiate the constitution of the arbitral tribunal.
4 The appeal has a suspensive effect. In urgent cases, the executive board may lift the suspensive effect of the appeal and take precautionary measures. In the event of objection, such action by the executive board shall be subject to review by a single arbitrator, drawn by lot for this specific purpose.
§13 SectionsThe executive board will subdivide the members into sections on the basis of geographical and functional criteria (e.g. business line, language). In any event, members subject to a duty of professional secrecy will form a separate section. The sections do not constitute independent legal entities but are simply organisational units.
Obligations relating to information
§14 Obligations of association officers relating to supervision and information
1 Within the framework of Art. 18 and 19 MLA and in accordance with the provisions of Art. 26 and 27 MLA, PolyReg officers are required to supply information to the control authority without restriction.
2 This condition shall not apply to the suspicions of members subject to a duty of professional secrecy in fields protected by professional secrecy legislation (Art. 321 of the Penal Code ("StGB")), where such suspicions were noted in the capacity of executive delegation, investigating officer, or examination agency of persons subject to professional secrecy or in co-operation with such an examination agency.
3 All officers must inform the executive director of any particular suspicions relating to their function, insofar as they have not already been reported to the executive board. As far as possible, reports shall be made in writing or by e-mail. Oral reports must be minuted by the executive director immediately.
4 The executive director will report to the chairman for the attention of the executive board. Reports will be presented individually and immediately in urgent cases and otherwise in the form of monthly summaries.
5 PolyReg officers must, of their own volition, inform the executive director of any change in personal circumstances that has an effect on the performance of their duties.
§15 Financial intermediaries' obligations to disclose information
1 Unless prevented from doing so by a statutory duty of secrecy, financial intermediaries are required to disclose in full to PolyReg all facts and occurrences relevant to the MLA.
2 Persons with a duty of professional secrecy are obliged to disclose information relating to facts subject to this duty only to special control officers (special examination agency, independent investigator, executive delegation) who are themselves subject to the same duty of professional secrecy and are further required to keep the information within the association.
3 Members must, of their own volition, inform the executive director of any change in the particulars given in their application for membership.
4 Any report supplied to the reporting office (Art. 9 MLA) by a member must be notified to the executive director in an anonymised form. The executive director must be briefed on the occurrence after the expiry of the regulation protection period. Even after the expiry of the protectio period, persons subject to professional secrecy must provide the information in an anonymised form or report to the executive board delegation.
§16 Reporting to the control authority
1 All reports to the control authority must be made in accordance with its directives, based on Art. 27 MLA. Reports shall include, in particular, the acceptance, withdrawal, expulsion or rejection of financial intermediaries and, unless otherwise instructed, a quarterly statement of the current membership and any changes in the members' managers and authorised signatories.
2 The control authority must further be informed of any proceedings instituted to expel or discipline a member, the appointment of an independent investigator, the outcome of the investigation and any disciplinary decisions.
3 The direct contact for the control authority is the executive director or, in his absence, the chairman.
§17 Data collection and administration
1 The association shall hold all relevant data on members, supervisory activities and occurrences in electronic form on a central database.
2 The association will treat this data as confidential unless legal obligations require disclosure. In particular, one member may not be given any information on the data of other members.
Organisation of the association
§18 Governing bodies and officers of the associationPolyReg shall act through the following governing bodies and officers:
- the general meeting of the association or a ballot of all the members;
- the executive board / the executive committee / the executive delegation;
- the executive director;
- the auditors.
§19 Organisational units
1 The executive board shall appoint, direct, instruct and supervise the following organisational units:
- the special commission on money-laundering / the chairman of the special commission
- the training committee / the training officer
- the arbitral tribunal / the arbitration officer
- independent investigators
- inspection agencies
2 The special commission, the training committee and the arbitral tribunal will be chaired by a member of the executive board. The other members of these bodies need not be members of the executive board.
3 The arbitration officer shall oversee the proceedings and act as secretary of an arbitral tribunal to be established in an individual case. The other arbitrators making the award must be independent of PolyReg and all parties to the proceedings and must not be members of the executive board or the association.
§20 Executive board
1 The executive board shall consist of the chairman, the deputy-chairman and at least two other members. A member of the executive board may carry out more than one function under the statutes concurrently.
2 The board shall replace outgoing members by the election of new members. It shall fix the number of board members itself on the basis of the workload. In the event of an expansion of the executive board, new members will be elected. This remains subject to the legal power of the general meeting of the association or a ballot of all the members to confirm or dismiss members of the executive board in accordance with Art. 65 para. 3 of the Civil Code ("ZGB").
3 The executive board shall be responsible for establishing its own organisation.
4 The term of office is four years. Board members may be re-elected.
§21 Meetings of the executive board
1 Meetings of the executive board shall be convened by the chairman as often as may be required.
2 Any member of the executive board may call for a meeting to be convened, stating the matter to be discussed.
3 The executive board shall have a quorum if at least half of all the members are present. Resolutions are passed by a simple majority. In the event of a tie, the chairman has the casting vote.
4 Members are elected by an absolute majority of the votes cast. In each subsequent round of voting, the candidate with the fewest votes is eliminated. With effect from the second round, only candidates who obtained one or more votes in the first round may be elected.
5 Except in the case of elections, the executive board may arrive at decisions by circular letter, unless a member calls for discussion.
6 The meetings and decisions of the executive board will be recorded in minutes.
§22 The powers and tasks of the executive board
1 The executive board shall decide on all matters which are not reserved or transferred to the general meeting of the association or to other governing bodies by law or the statutes. The executive board may delegate its powers to the executive committee.
2 The executive board shall, where necessary, issue regulations laying down the powers of the other governing bodies and organisational units.
3 The duties of the executive board include, in particular:
- laying down, coordinating and supervising the various functions;
- issuing and amending the regulations in accordance with Art. 25 MLA, subject to the approval of the control authority;
- formulating training and development plans in accordance with the proposals of the special commission and implementing them in co-operation with the administrative office;
- sending notices to the reporting office in accordance with Art. 27 § 4 MLA;
- deciding on the appointment of an examination agency for the purpose of inspecting financial intermediaries in cases where there are suspicious facts or in other special circumstances;
- taking decisions to impose sanctions;
- implementing training and development plans;
- taking decisions to accept or to expel member;
- appointing the executive director and the staff of the administrative office;
- selecting the members of the special money-laundering commission;
- selecting and appointing the independent investigators
- designating the inspection agencies to work on behalf of the association;
- managing the assets of the association;
- drawing up the annual budget at the proposal of the executive director and fixing the membership subscription;
- preparing and presenting motions to be put to the general meeting or to a ballot of the membership.
The executive board shall also determine which persons are authorised to represent the association and the manner in which the legally binding signature of the association is to be exercised.
§23 Executive committee
1 The executive committee shall consist of the chairman, the deputy chairman and the executive director.
2 Any member of the committee may call a meeting at any time.
3 Decisions shall be taken by a simple majority.
4 Decisions may be adopted by circular letter.
5 The executive committee shall carry out the tasks assigned to it by the executive board and, in particular:
- direct supervision of the administrative office;
- preparation and notification of sanction decisions;
- checking membership conditions and, in cooperation with the executive director, checking the ongoing compliance of members with these conditions;
- making decisions on accepting or rejecting membership applications, in so far as this task is delegated by the executive board;
- deciding on the selection and appointment of an independent investigator and on the ordering of special audits of members
- any other business delegated by the executive board.
1 In external relations, the executive committee shall act in the name and on behalf of the full executive board.
§24 The executive board delegation
1 The executive board shall appoint a delegation consisting of at least two of its members, all of whom must be subject to the statutory professional secrecy rules applying to lawyers and notaries.
2 The executive delegation shall carry out all the executive board functions which require note to be taken of protected secrets vis-à-vis financial intermediaries subject to the obligations of professional secrecy.
3 The executive delegation shall keep this documentation separate and maintain complete professional secrecy.
§25 General meeting of the association
1 The ordinary general meeting shall be held annually. Extraordinary general meetings shall be held if the executive board so decides or if requested by at least a fifth of the membership.
2 The general meeting shall be convened by the chairman. As a rule, members will be notified of the items on the agenda twenty days before the meeting. In urgent cases, the chairman may reduce this period to three days.
3 In the general meeting, each member, whether a natural person, a legal entity or a partnership, shall have a single vote.
4 Motions proposed by members must be submitted to the executive board in writing, for the attention of the general meeting, within seven days of receipt of the invitation to the meeting.
§26 Ballot of the whole membershipBy order of the executive board, the general meeting may be replaced by a written ballot of the whole membership.
§27 Powers of the general meetingThe general meeting has the following powers:
- to elect the auditors;
- to approve the annual report of the executive board and the annual accounts, and to grant discharge to the board, the administrative office and the auditors;
- to confirm the new members appointed by the executive board on the occasion of the next general meeting;
- to remove arbitrators from the panel;
- to amend and add to the statutes;
- to dissolve the association.
1 Unless otherwise provided by law or the statutes, the adoption of the resolutions and elections of the general meeting requires a simple majority of all votes present or represented.
2 In the case of a ballot of the membership, the adoption of a resolution requires a simple majority of all the members.
3 In the event of a tie, the chairman shall have the casting vote.
4 Proxy voting for absent members is prohibited. Legal entities and partnerships must be represented by an authorised signatory.
5 A majority of two-thirds of all members is required for amendments of the statutes concerning the organisational form of the association or voting rights.
1 The general meeting shall elect a firm of auditors. The auditors shall remain in office until new auditors are elected.
2 The auditors shall examine the annual accounts and the books of the association and present a written report to the executive board for the attention of the general meeting. A representative of the auditors shall be present at the general meeting if the report contains qualifications or if the executive board so requests.
§30 Special money-laundering commission
1 The special commission is an expert advisory body. It shall consist of at least three experts in this field who shall be chosen by the board. The chairman of the commission will be determined by the executive board. The chairman will be or will become a member of the executive board.
2 The special commission will advise the board, the administrative office and the training officers on all money-laundering issues. It will ensure that the advice and training given to financial intermediaries are in line with the latest developments by:
- monitoring the relevant developments in money-laundering legislation;
- producing organisational and specialist instruction leaflets;
- proposing a training and development plan for members and advising the executive board and the training committee.
§31 Administrative office
1 The executive board will assign the management of the routine business of the association business to an administrative office, in so far as it has not been delegated to the executive committee. The administrative office will come under the authority of the executive director and will be the point of contact with the association for the control authority for combating money laundering.
2 The administrative office will act as the secretariat and bureau of the arbitral tribunal.
3 The manager of the administrative office (the executive director) will represent the association in external dealings in accordance with the orders and instructions of the executive board. The manager, if not a member of the executive board, will attend board meetings in an advisory capacity.
4 The tasks of the administrative office include particularly:
- administering the association;
- collecting and administering all current data on members and reporting any changes to the control authority for combating money-laundering in accordance with the instructions of the latter;
- supporting the special commission and the executive board in implementing training and development plans;
- archiving documentation concerning inspections and sanction proceedings for a period of ten years;
- providing members with advice and assistance on matters of internal organisation.
§32 Independent investigator
1 The executive committee may appoint an ad hoc independent investigator to conduct special inquiries in cases where financial intermediaries are suspected of a breach of the provisions of the MLA, the regulations or the statutes, or where further inquiries are needed in sanction proceedings.
2 The investigator must be independent of PolyReg and the financial intermediary under investigation. The investigator must satisfy the same requirements as an examination agency and must further demonstrate expert knowledge both of the MLA and the line of business of the financial intermediary under investigation.
3 If the financial intermediary under investigation is subject to a legal duty of professional secrecy, the independent investigator appointed must be subject to the same legal duty and report to the executive delegation.
4 The investigator will seek to determine, within his terms of reference, whether any breach has occurred which would justify the opening of a sanction procedure and, where applicable, will establish the factual basis for sanction proceedings.
5 If the investigator comes to the conclusion that proceedings should be instituted against the financial intermediary, he will provide the executive committee or executive delegation with a report to this effect. Otherwise, he will terminate his investigations and so inform the executive committee.
§33 Inspection agencies
1 To conduct the inspection of financial intermediaries which forms part of its supervisory function, the association may appoint inspection agencies, whether for an indeterminate period or for a fixed term.
2 The inspection agencies must be persons or companies which:
- enjoy a good reputation;
- can demonstrate sound specialist knowledge;
- can guarantee irreproachable inspections, and
- are independent of the financial intermediary being inspected.
Inspection agencies which are themselves association members in their capacity as financial intermediaries may not inspect each other.
3 The examination agency or the persons acting on its behalf will be trained and instructed in their duties by PolyReg.
4 To deal with the inspection of persons subject to professional secrecy, the association must appoint the necessary number of special inspection agencies similarly subject to professional secrecy. These special agencies will report exclusively to the executive delegation.
5 The executive committee or the executive director will use the agencies to conduct periodical examinations to determine whether members comply with their obligations under the MLA, the regulations and the statutes, as well as to clarify, in case of doubt, whether the conditions for acceptance or continued membership continue to obtain.
6 In the event of a breach of the internal duty of notification, as well as a related breach of the internal duties of disclosure and co-operation, the executive board must call for an inspection by an examination agency at the expense of the defaulting member.
7 The executive board may further decide to call in an examining agency outside the framework of regular periodical inspections if other special circumstances apply.
8 By accepting its mandate, the examining agency becomes subject to the same duties of disclosure and co-operation vis-à-vis the association as the member under inspection. The inspection itself will be carried out on the instructions of the association and for its attention.
§34 Inspection agencies specially requested by members
1 At the request of a member, the executive board may authorise the auditors who have audited the member's accounts to act as the examination agency for the member, provided that they are familiar with all the requirements of the MLA and satisfy the requirements applicable to inspection agencies.
2 PolyReg shall be authorised to direct and instruct such a specially requested examination agency in its inspection. The agency will report in the same way as the association's own inspection agencies.
§35 Arbitral tribunal
1 The seat of the arbitral tribunal shall be in Zurich.
2 The decisions of the arbitral tribunal shall be final.
§36 Composition and selection
1 The arbitral tribunal shall consist of the arbitration officer and at least six members, who must be independent of the association.
2 The arbitral tribunal shall consist of three arbitrators drawn by lot by the arbitration officer. The first arbitrator drawn shall act as chairman. If one of the parties involved is subject to professional secrecy obligations, the arbitrators and the secretary of the tribunal must be subject to the same obligations.
3 An arbitrator drawn by lot must stay to the end of the relevant procedure, regardless of his remaining time in office.
4 The arbitrators shall be subject to the recognised grounds for rejection. In addition, an arbitrator may be rejected if, on concrete grounds, he appears partial. Motions for the rejection of arbitrators will be decided by a single arbitrator chosen by further drawing of lots. A rejected arbitrator will be replaced by another arbitrator also drawn by lot.
5 If the regular panel of arbitrators is exhausted before the tribunal has been fully constituted, the member and the association shall alternately designate two arbitrators independent of them for each remaining nomination, of which the adverse party will select one.
6 Appeals relating only to the calculation and imposition of fees shall be examined by a single arbitrator, also drawn by lot. In cases of sanctions of lesser importance, the arbitration officer may further propose to the parties that the matter be examined by a single arbitrator. Objections to precautionary measures ordered by the executive board, respectively to the removal of the suspensive effect of the appeal, shall be examined by an additional arbitrator to be drawn by lot forthwith.
7 The drawing of lots shall be so organised that the arbitration officer first excludes arbitrators who are unavailable, or who are not fluent in the language of the proceedings, or who may be biased. In addition, the appellant may exclude a maximum of two arbitrators from the list of names to be drawn without giving reasons.
8 Arbitrators shall be elected for a period of three years and may be re-elected for further periods. They must inform PolyReg of their interlocking interests.
§37 Jurisdiction of the arbitral tribunal
1 Appeal may be made to the arbitral tribunal against decisions to reject membership applications, to expel or to sanction members, as well as decisions of the executive board, the inspection agencies and the independent investigators concerning the calculation and levying of fines and fees.
2 Furthermore, any member may appeal to the arbitral tribunal against a decision of the governing bodies of the association which is in the nature of a specific and individual order establishing or removing the obligations of the member.
3 Appeals may not be made to the arbitral tribunal against the appointment of an examination agency or an independent investigator, or against procedural orders issued by the governing bodies of the association, particularly with regard to simple warnings and the setting of time limits.
4 The arbitral tribunal shall further be competent to resolve all legal disputes between the association and the members, or between the members themselves, in so far as the dispute concerns association matters.
§38 Procedure of the Arbitral tribunal
1 To have recourse to the arbitral tribunal, application must be made in writing to the arbitration officer or to the administrative office. In the event of an appeal against a decision of a governing body of the association in accordance with § 37 Paragraphs 1 and 2 of the statutes, the application must be made within 10 days of notification of the disputed decision (as evidenced by the postmark).
2 The arbitration officer shall be responsible for directing the course of the proceedings up to the point at which the written grounds of appeal and the response to the appeal have been presented. In particular, he must set the relevant time limits and warn the parties of the consequences of failing to meet them, as well as collect the registration fee. The arbitration officer may dismiss or adjourn appeal proceedings for procedural reasons where the relevant grounds arise prior to the constitution of the arbitral tribunal (for example, failure to present the grounds of appeal within the time limit, failure to pay the registration fee, withdrawal of the appeal, decision not to proceed with the appeal, review and simultaneous lifting of the disputed decision by the executive board, bankruptcy of an appellant member, etc). In such cases, it shall be possible to waive the fees for the appeal proceedings and the award of costs.
3 Once the written grounds of appeal and the reply have been presented, the arbitral tribunal shall be constituted in accordance with § 36 of the statutes. The subsequent conduct of the proceedings shall then be determined by the tribunal, which must hold at least one oral hearing (reply and rejoinder) or order a second exchange of submissions.
4 The appeal proceedings shall be conducted in one of the three official languages, the choice being determined by the official language in use at the complainant's registered office or the language in which the appeal application was lodged.
5 The arbitral tribunal shall have full freedom to examine contested decisions and shall not be tied to the effective findings of the lower jurisdiction.
6 The arbitral tribunal shall meet in closed session. It may come to its decision by circular letter, provided that all the arbitrators agree on the rapporteur and no-one calls for oral deliberations.
7 The arbitral tribunal shall, mutatis mutandis, apply the rules of arbitration laid down in the code of civil procedure of Zurich, with the following exceptions:
- The secretary shall not be entitled to give advice.
- Decisions concerning the award of costs and damages shall be governed by the principles of criminal law proceedings.
- No costs shall be awarded in proceedings to review fees.
- Documentary evidence and witness statements in English shall be acceptable even without translation.
- Court and lawyers' fees shall be calculated on the basis of the tariff laid down by the executive board or, in the absence of such tariff, by analogous application of the Court Fees Ordinance of the canton of Zurich.
- Security for costs may be required in all cases.
A member bringing an appeal shall, at the request of the arbitration officer, pay the following registration fee:
- CHF 500, where only a fee is at issue;
- CHF 1 000, where a sanction is at issue;
- CHF 2 000 where refusal of membership or expulsion from the Association is at issue.
After the arbitral tribunal has been constituted, it may require the member bringing the appeal to lodge further security and may give warning that the appeal will not be entertained in the event of default.
8 The parties to arbitration proceedings under the statutes shall waive the requirement of the deposit of the arbitral award with the competent authority, respectively notification of the award by the said authority. The files of the arbitration proceedings shall be kept on the member's file.
§39 Education and training
1 PolyReg shall organise training events for all member financial intermediaries, for independent investigators and for inspection agencies and shall determine their content and aims. Suitable outside specialists shall be engaged to conduct them.
2 All member financial intermediaries shall be required to take a basic training course and to take part in further training events at least once a year thereafter. The training shall be designed to meet specific needs. Firms which fail to comply with this requirement will be inspected by the examination agency and will be sanctioned.
3 The employees of member financial intermediaries shall be required to take part in the training if they have decision-making powers and are involved in activities in accordance with Art. 2 para. 3 MLA.
4 The executive board may, on receipt of a reasoned request from a member financial intermediary, recognise the equivalence of its in-house training and excuse it from the training courses held by the association, provided that the financial intermediary has its own training officer and submits a training programme satisfying the requirements of Art. 8 MLA. In such an eventuality, PolyReg will monitor the training programme and its implementation.
5 The financial intermediary shall bear the costs of the training events, which may be invoiced directly by the training-provider
1 Persons elected by the governing bodies of the association must have the necessary professional training and experience for their function, as well as being of good reputation and independent of the member financial intermediaries (Art. 24 para. 1 letter c. MLA). They are subject to the recognised grounds for rejection by analogy with Article 95 et seq. of the Judicature Act of the canton of Zurich.
2 Arbitrators must hold a current licence to practise as lawyers or notaries and have at least five years' experience in their field. Alternatively, they must hold a federal licence to practise as an accountant or bookkeeper.
3 All arbitrators and governing bodies of the association are subject to the recognised grounds for rejection by analogy with Article 95 et seq. of the Judicature Act of the canton of Zurich
§41 LiabilityAny liabilities of the association shall be met exclusively from its assets. Individual members shall bear no liability over and above the last annual subscription due.
§42 Registration fee and annual subscription
1 The association will charge each financial intermediary member a one-off registration fee and an annual subscription. The amount of the subscription will depend on the number of authorised signatories and staff engaged in work relevant to the MLA, as well as the economic significance of the association's activities in the financial sector. The executive board will draw up a flat-rate scale for subscriptions.
2 The executive board will decide, on the basis of the budget, the amount of the annual subscription payable by member financial intermediaries. The subscription must be sufficient to permit due execution of the duties laid down by law. Appropriate reserves must be built up to meet foreseeable duties and expenditure.
3 The executive board will publish a tariff for special association services, in particular, the arbitral tribunal, sanction proceedings and special inspections.
4 PolyReg will charge members inspected by their own special examination agency a fee of 10% of the total audit costs to cover the expenses associated with monitoring and overseeing this process.
5 Governing body members will not pay subscriptions and will not be liable for the financial obligations of the association.
6 The costs of mandating inspection agencies and independent investigators will be borne by the financial intermediaries under investigation, who will be invoiced by the association.
1 The executive board will conclude agreements with its appointed persons and inspection agencies concerning the assessment of their compensation.
2 The governing bodies of the association will be remunerated for their work on the basis of their time and responsibilities.
Self-regulatory proceedings and sanctions
§44 Proceedings and monitoring
1 In order to document implementation of and compliance with the duties of care stipulated under the MLA, financial intermediaries are required to maintain a standardised and centrally managed register (the "MLA register") containing, for each customer, all the data and documentation relevant to the MLA. In addition, customer profiles shall be produced and used to help in monitoring current transactions. The executive board will issue a checklist laying down the minimum compulsory contents of the MLA register to be kept by the financial intermediaries.
2 PolyReg, acting through its appointed inspection agencies, will conduct on-site checks from time to time to verify compliance with the legal and regulatory requirements. The checks must comply with the provisions of the regulations based on Art. 25 MLA. The inspection agencies will prepare written reports of their findings.
3 The member's MLA register and the underlying customer files shall be open for inspection by the examination agency entrusted with the task of checking compliance with the duties of care, as well as by the independent investigator.
1 Sanctions will be applied for established breaches of the obligations laid down by the association or of the obligations under the MLA and regulations, namely, care obligations (Art. 3-8 MLA), reporting obligations (Art. 9 MLA) and training obligations (Art. 8 MLA).
2 The board may impose the following sanctions on member financial intermediaries:
- fine of CHF 300 to CHF 300 000;
- threat of expulsion;
3 All cases of wilful breaches shall further be punishable by fines. The amount of the fine will be determined on the basis of the seriousness of the breach, the degree of fault, and the financial position of the financial intermediary concerned.
4 The investigation costs and the expenses for rulings and copying may also be charged together with the sanctions.
5 The fines paid shall be allocated to the PolyReg association funds.
§46 Coming into forceThese statutes shall come into force on 6th July 2004, after approval by the control authority for combating money laundering.
PolyReg: Zurich, the 11th June 2004