MORE ON E-MONEY ISSUERS / EMIs

Technology Service Providers (TSPs) are one type of entity permitted to apply to the Central Bank of Trinidad & Tobago (CBTT) (Homepage | Central Bank of Trinidad and Tobago (central-bank.org.tt) to be registered as an e-money issuer (EMI) in Trinidad & Tobago under the E-Money Issuer Order, 2020 & the E-Money Issuer (Amendment) Order, 2023 (see E-MONEY ISSUERS or EMIs – Tenoreque Legal (tenorequelegalandconsulting.com) for the definition of an EMI).

A TSP is defined as “an entity or a person who provides hardware or software that allows a Payment Service Provider to provide payment services or instruments as well as the clearing and settlement of instruments.” (Section 2 of the E-Money Issuer Order, 2020). To be registered as a TSP the entity has to satisfy the requirements of the E-Money Issuer Order, 2020 & the E-Money Issuer (Amendment) Order, 2023 and to be able to conduct payment service activities, it has to also be registered as a Payment Service Provider (PSP). Both of these registrations can be done simultaneously. PSP registration is made according to the Central Bank Act and is conducted under the CBTT’s Payment Systems Guideline No. 3. At the time of writing this blog, no application fee is required for PSP registration however registration and other fees are associated with EMI registration (which will be discussed in a subsequent blog).

PSPs are entities that provide “services that are necessary to support the issuance of payment instruments as well as the acceptance, clearance and settlement of claims generated from the use of these payment instruments.” (Clause 2, Payment Systems Guideline No. 3). PSPs include institutions licensed under the Financial Institutions Act, 2002 to do “banking business” or “business of a financial nature”. “Banking business” and “business of banking” includes payment card business and business of commercial banking and “business of a financial nature” includes the issuance of e-money (see Clause 3, Payment Systems Guideline No. 3). (For a definition of e-money see E-MONEY ISSUERS or EMIs – Tenoreque Legal (tenorequelegalandconsulting.com)).

In addition to TSPs, the other categories of persons, other than licensees, that may apply to the CBTT to be an EMI are  (i) entities registered with the Central Bank as a Payment Service Provider (PSP) or Payment System Operator (PSO) (ii) Money Remitters registered with the Financial Intelligence Unit – Trinidad and Tobago (fiu.gov.tt) (iii) Mobile Network Operators authorised by the Telecommunications Authority of Trinidad and Tobago (Home – TATT); and (iv) other financial institutions, such as credit unions, insurance companies and the Trinidad and Tobago Unit Trust Corporation (Homepage – Unit Trust Corporation (ttutc.com)) (see Section 3 (1)  of the E-Money Issuer Order, 2020).

The three main regulators for EMIs in Trinidad & Tobago are the – CBTT, Trinidad & Tobago Securities & Exchange Commission (TTSEC | You Invest. We protect. Everyone Benefits!) and the FIUTT.  Depending on an EMI’s business model, products or services, other regulators may govern the entity’s operations.

 

An EMI Application should be considered and completed by entities that want to be an EMI, have a finished e-money product or service and have submitted all required documentation in anticipation of moving to the next step of the Trinidad & Tobago regulatory process.

Under the E-Money Issuer Order, 2020, EMIs are only permitted to conduct EMI activities in our local currency – Trinidad & Tobago Dollars, and the activities that EMIs can engage in are (a) issuance of e-money accounts (b) cash-in (c) cash-out (d) provision of payment services; and (e) money transfers or remittances.

 

EMIs are prohibited from (a) co-mingling e-money account holder’s funds with the EMI or any other entity or person (ii) buying, selling or dealing in foreign currency (iii) granting credit; and (iv) issuing or permitting joint accounts.

 

See FINTECH | Central Bank of Trinidad and Tobago (central-bank.org.tt) , Fintech in Trinidad & Tobago #law #shorts #youtube #youtubeshorts #fintechtt and https://thelegalcornerpodcast.buzzsprout.com/1876478/13359516  for more information and stay tuned for further fintech blogs

E-MONEY ISSUERS or EMIs

The Central Bank of Trinidad & Tobago (CBTT) (Homepage | Central Bank of Trinidad and Tobago (central-bank.org.tt)) has overarching responsibility for payment systems in Trinidad and Tobago (T&T) including but not limited to, the authority to make regulations for the issuance of electronic money (e-money), the transfer of funds by electronic means and the oversight of payment systems.

Via Legal Notice 284, the E-Money Issuer Order, 2020 came into effect, in Trinidad & Tobago, to allow other categories of persons, other than licensed financial institutions, to be eligible to issue e-money. These persons are referred to as e-money issuers and they are allowed to issue e-money. At the time of writing this blog, the E-Money Issuer Order was amended by Legal Notice 391 of 2023 – Legal Notice: THE E-MONEY ISSUER (AMENDMENT) ORDER, 2023 – Ministry of Finance. These amendments relate to the transactional limits and capital requirements of EMIs.

According to Section 2 of the  Trinidad & Tobago, E-Money Issuer Order, 2020,  an “e-money issuer” means a person under clause 3 of the E-Money Issuer Order, 2020 who is registered or who has applied to be registered to issue e-money under this Order and has been granted a provisional registration under clause 6.

A general definition of e-money (or electronic money) is that it is as monetary value represented by a claim on the issuer which is stored on an electronic device, issued on receipt of funds of an amount equal to the monetary value issued and accepted as a means of payment by a person other than the issuer (see Section 2(1) of The Financial Institutions Act, 2008 (central-bank.org.tt) of Trinidad & Tobago for a more detailed definition of electronic money). Some examples of e-money are e-wallets (digital wallets, mobile wallets), pre-paid cards etc.

See https://www.youtube.com/shorts/UjdDPfXbQEA,  https://thelegalcornerpodcast.buzzsprout.com/1876478/13359516 ,  https://tenorequelegalandconsulting.com/what-is-fintech/ and  https://tenorequelegalandconsulting.com/fintech-at-work/ for more information and stay tuned for further fintech blogs.

FINTECH AT WORK

Fintech is already at work all around us and it is likely that it is being used by us more often than we even realise. Individuals use fintech to access many bank services, including, online banking, paying for purchases with a smartphone using mobile wallets. Your local bank card with Visa’s contactless credentials tap-and-pay facilities for fast and secure transactions. In Trinidad & Tobago, when you make different company-related online payments (with the Registrar General’s Department) for example paying for intellectual property services at our Intellectual Property Office (https://payment.ipo.gov.tt/) or you use the CourtPay – Payment Portal of the Judiciary of Trinidad and Tobago – CourtPay (ttlawcourts.org) these are powered by fintech.

And further afield, more than 3/4 of Chinese people are using digital payments rather than cash, according to previous Deutsche Bank research. The widespread use of QR codes has also supported digitalisation in China through Alipay (https://www.alipay.com/)  and WeChat Pay (qq.com) and many people around the world use or have used Paypal to Send Money, Accept Payments and Pay Online | PayPal TT; or Afriex to Receive and Send Money to Africa | Money Transfer App | Afriex App.

 

See https://www.youtube.com/shorts/inSMwiWDvTg  https://thelegalcornerpodcast.buzzsprout.com/1876478/13359516  and https://tenorequelegalandconsulting.com/what-is-fintech/ for more information and stay tuned for further fintech blogs.

 

WHAT IS FINTECH?

Fintech is a word blend of the words “financial” and “technology”.

 

Under Trinidad and Tobago law, namely the E-Money Issuer Order, 2020, (https://www.central-bank.org.tt/sites/default/files/page-file-uploads/legal-notice-284-emoney-issuer-order-2020_2.pdf), fintech is defined as “technologically enabled financial innovation that could result in new business models, applications, processes or products with an associated material effect on financial markets and institutions and the provision of financial services.”

 

It involves the use of new and innovative technologies to automate and improve the delivery and use of financial services. Some examples of these new and innovative technologies are – artificial intelligence (AI) for example machine learning and natural language processing (AI being a type of technology that helps a machine to think like a person), cloud computing, the Internet of Things, QR codes, big data and data analytics, blockchain technology (a type of peer-to-peer (P2P) database that uses data ‘blocks’, all of which update one another automatically as they grow, to build an immutable (permanent record) and distributed ledger technology, to name a few.

See What is Fintech? #law #shorts #youtube #youtubeshorts #fintechtt and https://thelegalcornerpodcast.buzzsprout.com/1876478/13359516 for more information and stay tuned for further fintech blogs.

Am I out of time?

The following blog provides a high-level overview of time, time computation, limitation and compliance periods for current Trinidad & Tobago legal matters.

 

Computing time for litigious matters

Sometimes one of the first questions a client asks when they approach a lawyer (to conduct their matter) is, “Am I out of time?”

Many preliminary points are taken in relation to computation of time; and entire matters revolve around the computation of time (in relation to limitation and other issues).

[See: https://tenorequelegalandconsulting.com/limitation/  for some more on limitation.]

Computing time in legal matters is something lawyers are constantly required to do. Time computation is important. It is useful for persons to get familiar with and keep abreast of time, time computation and any new laws, regulations or measures that affect time (or its computation) for their legal matters.

 

For example:

  • The T&T Civil Proceedings Rules (CPR) deals with time and its computation fairly comprehensively.

For instance, CPR 2.8 – 2.10 treats with (inter alia) clear days, short periods, what is a month etc. For example, time in days is treated as clear days and for a period of 5 days or less which includes Saturday, Sunday or a day the Court Office is closed, these days are not included in the calculation. And, a month is considered to be a calendar month.

[For a helpful website to calculate time over long periods – e.g. years see: https://dqydj.com/year-calculator/ ].

 

  • Additionally, Section 25 of the Interpretation Act of T&T may also be instructive in relation to time.

 

  • For a specialised matter with specific legislation (in the area), be mindful of the time limits and periods provided for therein. For e.g. the Judicial Review Act in T&T.

[See: https://tenorequelegalandconsulting.com/judicial-review/ for more on judicial review and https://tenorequelegalandconsulting.com/take-it-to-the-court-on-time/ for some more on time periods.]

 

  • Certain limitation extension orders or companies (or other) compliance extensions may be in effect that may affect time and its computation.

 

For example, during the Covid-19 pandemic (in T&T); by virtue of the last issued Limitation Extension Order – The Limitation of Certain Actions (Extension of Period) (No.3) Order, 2021, the period 27 March 2020 to 2 May 2022 should not be used in the computation of limitation periods under the Act.

Therefore, as a result of The Limitation of Certain Actions (Extension of Period) (No.3) Order, 2021,  many (court) claims may actually still be within time to be filed.

 

 Time for companies, corporate and other compliance

Additionally, in T&T, there has been an extension of the period for citizens to comply with legal requirements for effecting certain payments/actions/licences/registrations to 2nd August 2022.

This includes (but is not limited to) extending the time for – registering Bills of Sales for chattels (goods and property); Non-Profit Organisations (and filing of Risk Assessment Questionnaires); Members and Proprietary Clubs and charges and this extension of time applies to the waiver of Companies Registry penalties for late filing. [See: https://agla.gov.tt/wp-content/uploads/2022/04/Press-Release-Extension-for-Compliance-ending-August-2nd-2022.jpgfor more.]

Employment Contracts – Part 3  

Continuing with some components to consider for an employment contract:

  • Intellectual Property Rights

Many workplaces are fertile ground for a lot of ideation due to, among other factors, how much problem-solving occurs at work.

The work setting can be ripe for the development of inventive products and/or processes that either provide a new way of doing something, or a new technical solution to a problem etc.

T&T patent legislation provides that – in the absence of any provisions to the contrary in any contract of employment or for the execution of work, the right to a patent for an invention made in the performance of such contract of employment or in the execution of such work is deemed to accrue to the employer, or the person who commissioned the work.  Additionally certain rights that are conferred on the inventor, via the statute, shall not be restricted by contract.

However, when an invention is made by an employee (whose employment contract does not require them to engage in inventive activity), or in a field of activity different to that of his employer and without using information or means put at his disposal by the employer, the right to the patent for such invention accrues to the employee.

These are just a few factors, so do consider the intellectual property clause comprehensively so that it properly addresses any intellectual property issues, that may arise.

 

  • Notice period

Notice must be given according to the express terms of the contract or according to statute in certain retrenchment circumstances.

For the purposes of the contract, state the length of notice due to and from the employee. This may generally be a month but it can vary depending on the nature of the employment contract/type of worker/ the employee’s pay period and the employee’s seniority. It will also vary in different jurisdictions based on their laws and regulations.

 

  • Termination of contract & termination benefits

The employment contract may be terminated either by the employer or the employee and payment of termination benefits may be applicable. The Employer must have proper grounds for termination. There may be different reasons for dismissal but it may be useful to state the grounds for summary dismissal that will govern the relationship.

This clause should state whether there will be a right to terminate by payment in lieu of notice.

If the employee will be given company property during their employment (e.g. mobile, car, laptop, pass, keys etc.) state what needs to be returned, upon termination, and to whom. Also state whether the employee is required to reimburse the employer for any training (or other) costs upon termination.

If there is a fixed retirement age that is operational in the organisation state this age.

Circumstances will dictate what governs the payment of termination benefits. If the employee is entitled to payment of termination benefits this is governed by the employment contract.  Entitlement to payment of severance, for retrenchment, is governed by our retrenchment legislation.

 

Parts 1 to 3 of this Employment Contract Blog contains general guidance (on this subject) which does not constitute legal advice. Should you require specific legal assistance and advice please contact an Attorney-at-Law.

 

For more information see: Employment Contracts Part 1 , Employment Contracts – Part 2,

Patents (ipotrinbago.com) and The Retrenchment and Severance Benefits Act, Chapter 88:13 (industrialcourt.org.tt)

 

Employment Contracts – Part 2

Continuing with some more components to consider when preparing an employment contract:

  • Leave entitlements – state the employee’s apportionment of leave – vacation/holiday, sickness or any other special leave e.g. study leave, bereavement leave etc. Include the conditions for each type of leave and the method of calculation of the employee’s pay during these leave periods (or reference the necessary legislation and/or policies where these calculations and other leave details can be found).

 

  • Employee Training & Development – State if the employee is entitled to receive any training from the employer. Also indicate if the employee is required to complete any part of that training entitlement, or any other training, that may have to be employee-funded.

 

  • Rules, disciplinary procedures, grievance process – Reference applicable Employee Handbook, Workplace/HR policies, that contain this information, that the employee is required to follow. State whether copies will be given to the employee or where these can be accessed by the employee.

 

  • Conditions of employment relating to trade union membership (if applicable) – In T&T, even if the workplace environment is not unionised, employees can join certain unions to enjoy the relevant benefits and seek representation for needed legal redress.

 

  • Job Description – Reference and include the employee’s job description as an Appendix to the agreement. The exercise of drafting and preparing job descriptions should be given considered thought, time and attention. This should really not just be the copy from the advert used for print or social media.

 

  • Performance appraisals – Provide for performance appraisals and the performance standards required of the employee in the employment contract. Having a properly drafted employee job description helps with this clause and with the conduct of performance appraisals, on a whole, as the employee’s duties and responsibilities and the metrics would have been made clear from upfront.

 

  • Collective agreements – If applicable, state if there are any collective agreements in force, who are the parties and where these agreements can be accessed by the employee.

 

  • Confidentiality – Non-disclosure provisions can be included in the contract. While the Data Protection Act is not fully proclaimed in Trinidad & Tobago, organisations may want to consider adopting and practicing the international standards of data privacy and protection in its operations. The General Data Protection Regulation (“GDPR”) or California Consumer Privacy Act (“CCPA”) standards may be helpful here.  The employer will have to decide whether a policy a privacy standard or data protection policy will be operational in its business and state where this can be found for the employee’s perusal and information.

 

  • Non-compete, non-solicitation non-dealing clauses (where applicable) – The period of restraint for these clauses should be reasonable because many of these clauses may not pass muster if they are contested in court.

 

Consider the nature of the job the employee will perform in the organisation’s business, where the employee will be performing their role, will the employee be heavily involved with the employer’s customers/clients and what period of restraint would be necessary in order to protect the employer’s legitimate business interests etc. These clauses should really not be included for all categories of workers or for jobs of a certain level. These clauses are restrictive covenants and they need to be drafted so that they are enforceable.

 

For more information see:

General Data Protection Regulation (GDPR) – Official Legal Text (gdpr-info.eu)

California Consumer Privacy Act (CCPA) | State of California – Department of Justice – Office of the Attorney General

and

https://tenorequelegalandconsulting.com/employment-contracts/

 

Judicial Review

This an avenue for the High Court to exercise its supervisory jurisdiction over the work and activities of public bodies/authorities, inferior tribunals etc. Judicial review cannot be pursued against decisions of private entities or against superior courts.

Objective

The intention is not for the High Court to substitute its opinion for that of the public body/authority instead; it is for the Court to judicially review the decision-making process of the particular public body/authority.  For example:

  • Where a public authority has made a clear and unambiguous promise that is devoid of any relevant qualification a legitimate expectation may arise; and a challenge can be raised in this instance.
  • A challenge can be raised against a decision as being substantively unfair if there was an erroneous impression caused by a mistake as to a relevant fact (for which the aggrieved wasn’t responsible); if this fact can be objectively established and it played a material part in the reasoning and decision making of the public authority.

In Trinidad and Tobago, the Judicial Review Act, 2000 (Act No 60 of 2000), the Civil Proceedings Rules, case law and any material legislation (which touches and concerns the relevant public body/authority under review) are instructive for judicial review matters.

Some of the fundamental common law grounds for judicial review are: illegality, irrationality and procedural impropriety (Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 (HL)).

Process and role of the Court

Judicial review involves a two-stage process – an application for leave (or permission) which can be made without notice; and if leave is granted the judicial review claim can be made thereafter. The role of the Court at the leave stage of the proceedings is not to make any final findings of fact. Instead, it is to determine whether there are serious issues of law or fact to be tried.

On an application for leave the Court should, “make a preliminary or provisional assessment of the evidence and the relevant law and determine whether there are serious issues to be tried.” (Kublalsingh et al v Attorney General CA No. P142 of 2014). The Court has jurisdiction to grant interim relief for e.g. an injunction/conservatory order protecting property rights pending the determination of the claim for judicial review (Attorney General v Sumair Bansraj 38 WIR 286, 292 and 305).

Available relief

In Trinidad & Tobago, if the claim for judicial review is successful the Court may grant declarations, injunctions, damages (in certain circumstances) and such other orders, directions or writs it considers just and warranted in the circumstances.

For more information see:  The Judicial Review Act, 2000 (ttparliament.org) and for related information see: ⚖️Take it to the Court on time! ⚖️ – Tenoreque Legal and Consulting

 

Damages

Claimants often commence (or wish to commence) Court claims in contract or in tort. Damages are the compensation available for the Court to award to a Claimant who is successful at their claim.

Objective of a damages award

In tort claims, the purpose of an award of damages is to put a Claimant in the position as if the tort did not occur. For e.g. damages may be awarded in a negligence claim. In contract claims, an award of damages is meant to put a Claimant in the position as if the contract had been performed. For example damages may be awarded for a breach of employment contract.

Some types of damages

Damages may be – special, general, liquidated, unliquidated, exemplary, nominal etc. Provisions related to liquidated damages may commonly be negotiated and included in particular contracts. For some contracts (e.g. agreements for the sale of land); damages may not be a suitable remedy and the discretionary remedy of specific performance may be available to the aggrieved party.

Exemplary Damages

These damages are awarded to punish a Defendant and/or to compensate a Claimant for the harm done by the Defendant. These damages are not applicable to every claim which a Claimant wishes to bring in Court. Exemplary damages are generally awarded in certain (tort) claims for e.g. false imprisonment, malicious prosecution or assault and battery by an officer of the state etc.

An award of exemplary damages is directed at the oppressive, arbitrary or unconstitutional conduct of the wrongdoer. It is meant to condemn, denounce and deter and it should be proportional to the Defendant’s conduct.

In the past, in Trinidad & Tobago, there has been a “split award” of exemplary damages and there has even been the rare award of exemplary damages for breach of contract.

For related information see: ⚖️Take it to the Court on time! ⚖️ – Tenoreque Legal and Consulting

 

Employment Contracts – Part 1

Here are some useful components to consider when preparing employment contracts:

  • The parties i.e. state the proper names of the employer and employee and other relevant particulars for e.g. addresses of the parties.

 

  • Nature of the Employment Contract – state whether it’s a Fixed Term or Permanent Contract and that it is a Contract of Service (which differs from and is not to be confused with a Contract for Services).

 

  • The Term – If it is a fixed term contract, state the start or effective date of employment, duration of the employment term (and the contract end date). State whether the contract term is subject to renewal (upon review). If it’s a contract for permanent employment, state the start or effective date of employment.

 

  • State the employee’s job title, the department/division under which the employee’s job falls and possibly include the key reporting lines which concern the employee.

 

  • State the work location and working arrangements – For a geographically dispersed organisation, it may be useful to state which location the employee will be working from and also include that there may be the possibility for relocation to other branches. If Work-From-Home or a hybrid arrangement applies to the employee; you may want to state certain particulars in relation to this.

 

  • State the salary and any applicable benefits, allowances and perks. State the pay period and method of payment.

 

  • State the relevant statutory contributions that will be deducted from the employee’s remuneration. In Trinidad & Tobago the statutory deductions that are generally relevant to employees are Income Tax/Pay as You Earn – P.A.Y.E (above a certain income level), National Insurance and Health Surcharge.

 

Employers usually deduct/withhold the relevant statutory contributions that an employee is supposed to pay to the relevant statutory authorities and remits these on behalf of the employee. (An independent contractor or someone engaged via a contract for services would usually be responsible for the payment of the statutory deductions applicable to them. More on this in a subsequent post.)

 

An employee can monitor an employer’s remittance of national insurance contributions by requesting the employee’s Contribution Statement from the National Insurance Board. This is important to monitor as a certain number of national insurance contributions are important for a person to be able to enjoy certain benefits that the National Insurance Board of Trinidad & Tobago has to offer.

  • State any other deductions that would be made from the employee’s remuneration (due to the requirement of some employee contribution to the particular benefit) e.g. insurance, pension etc. State the relevant ratio or percentage of contribution that is applicable to the employee and the employer.

 

  • Normal hours of work and related break times e.g. time and length of lunch/ meal breaks or any other breaks that are allowed.

 

For more information see: On Line Request for Contribution Statement (nibtt.net)

or

https://tenorequelegalandconsulting.com/Employment Contract /