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[F.A.Q.]
Vanuatu Consolidated Legislation |
Commencement: 30 May 1983
LAWS
OF THE REPUBLIC OF
VANUATU
REVISED
EDITION 1988
CHAPTER 169
Act
13 of 1983ARRANGEMENT OF SECTIONS
SECTION
PART
I
Preliminary
1.
Interpretation
PART
II
Establishment,
Purpose, Functions and Powers of the Bank
2.
Establishment and incorporation of the
Bank
3. Purpose of the
Bank
4. Functions of the
Bank
5. Powers of the
Bank
6. General business policies of
the Bank
7. General directions by
Minister
PART
III
The
Capital
8.
Authorised share capital
9. Increase
and reduction of the share capital
10.
Allotment and transfer of shares
11.
Limited liability of shareholders
PART
IV
The Board and
Management of the Bank
12.
The Board and its functions
13.
Chairman and vice-chairman
14.
Meetings of the Board
15. Disclosure
of interest by members of the
Board
16. Executive
Committee
17. Vacancies and
irregularities not to affect
proceedings
18. Managing Director of
the Bank
19. Employment of
staff
PART
V
General
Meetings
20.
Ordinary general meetings
21.
Extraordinary general meetings
22.
Resolutions and voting at general
meetings
23. Board to regulate
procedure at general meetings
PART
VI
Financial
Matters
24.
Reserve fund and allocation of
profits
25. Estimates of annual income
and expenditure
26. Accounts and
audit
27. Annual
Report
28. Reports etc. to be laid before
Parliament
29.
Grants
30. Bank may raise
loans
31. Guarantee
funds
32. 33. 34. 35.
36.
PART
VII
Miscellaneous
32.
Secrecy
33. Exemption from banking
laws
34. Provision of information to
Central Bank
35. Waiver of Gazetting
certain instruments
36. Internal
regulations of the Bank
---------------------------------------------
DEVELOPMENT BANK OF VANUATU
To
provide for the organization and management of the Development Bank of
Vanuatu.
PART
I
PRELIMINARY
INTERPRETATION
1.
In this Act, unless the context otherwise requires-
"the Bank" means the Development Bank of Vanuatu;
"the Board" means the board of directors of the Bank;
"director" means a member of the Board appointed under section 12;
"Executive Committee" means a committee set up under section 16;
"financial year" means a year commencing on 1 January and ending on 31 December;
"general meeting" means a general meeting, whether ordinary or extraordinary, of the shareholders;
"Managing Director" means the person appointed as such under section 18; "Minister" means the Minister responsible for administering the Act;
"share" means a share in the authorized capital of the Bank and "shareholder" has a corresponding meaning.
PART
II
ESTABLISHMENT,
PURPOSE, FUNCTIONS AND POWERS OF THE BANK
ESTABLISHMENT
AND INCORPORATION OF THE BANK
2.
(1) There shall continue to be established a bank to be called the Development
Bank of Vanuatu.
(2) The Bank
shall be a body corporate with perpetual succession and a common seal and shall,
under its name, be capable of suing
and being sued, and of acquiring, holding
and disposing of property, movable and immovable, of every description, and
entering into
contracts and of doing and performing all such acts and things as
a body corporate may by law do and perform, subject to the provisions
of this
Act.
(3) All deeds and other
instruments which are by law required to be sealed shall be sealed with the
common seal in the presence of,
and authenticated by, the Managing Director or a
person authorised by him for that purpose, and judicial notice shall be taken of
such
sealing.
PURPOSE
OF THE
BANK
3.
The purpose of the Bank shall be to facilitate and promote the economic
development of the national resources of Vanuatu with special
regard to
agriculture, forestry, fisheries, manufacture and
tourism.
FUNCTIONS
OF THE BANK
4. The functions of
the Bank shall be to provide assistance to enterprises (including individuals,
partnerships, co-operatives and
companies) for new projects, and the expansion
or modernization of their existing facilities by-
(a) making loans;
(b) taking equity participation;
(c) guaranteeing the finance provided by other sources;
(d) providing technical, managerial and financial consultancy services; and
(e) assisting in the identification, formulation and promotion of new projects.
POWERS OF THE BANK
5.
The Bank shall have all such powers as may be necessary for its purpose, and in
particular, and without limiting the generality
of the foregoing but subject to
the provisions of this Act, the Bank may-
(a) sell, purchase or subscribe to stock, shares, debentures, bonds or other securities, including securities issued by the Bank or issued in connection with a loan or guarantee of the Bank, with or without security;
(b) finance the purchase, sale or lease of machinery, plant, equipment, land, premises, materials, goods, and articles of every description including the purchase and resale and lease thereof and the making of loans on the security of a mortgage or an assignment of interest in any such transaction;
(c) execute, make, draw, accept, endorse, discount, issue and negotiate cheques, promissory notes, bills of exchange, bills of lading, bankers and other drafts, warrants, bonds, debentures, coupons and other negotiable or transferable instruments, and buy, sell, or otherwise deal in the same, and accept deposits of money;
(d) underwrite or sub-underwrite issues of securities, give and receive guarantees, or participate with others in any such activities;
(e) participate in the management of enterprises which have received some form of financing from the Bank;
(f) organise, participate in, or act as agent for consortium arrangements designed to finance economic development;
(g) act as agent for foreign and international bodies in the financing of economic development;
(h) place funds not immediately required on deposit with any bank;
(i) take such steps as may be necessary to protect or recover its interest in any enterprise;
(j) make charges for the provision of any of its services;
(k) acquire such assets as may be required for the operations of the Bank;
(l) establish or acquire subsidiaries or form partnerships;
(m) raise loans and borrow moneys for the purpose of meeting any of its obligations or discharging any of its functions under this Act;
(n) provide technical assistance in connection with projects it finances;
(o) provide technical services in areas such as project studies and management and accounting practices to public authorities or institutions, local community councils, national associations, co-operative societies and to foreign organisations of a national or international nature;
(p) do such other things as are incidental or conducive to the better exercise of its powers.
GENERAL
BUSINESS POLICIES OF THE BANK
6.
(1) In the exercise of its functions under this Act the Bank shall be guided by,
and act in conformity with, the operating principles,
policies and objectives
set out in an instrument to be known as the Statement of General Business
Policies of the Bank; such Statement
and any alteration thereof shall be made by
a resolution of the Board carried by a majority of not less than two-thirds of
the total
number of its members and approved by the
Minister.
(2) In performing its
functions under this Act the Bank shall be guided by accepted banking
principles.
GENERAL
DIRECTIONS BY MINISTER
7. The
Minister after consulting the Board may give the Bank directions (not
inconsistent with this Act) of a general character as
to the exercise of the
functions and policies of the Bank.
PART
III
THE
CAPITAL
AUTHORISED
SHARE CAPITAL
8. The authorised
share capital of the Bank shall be VT200,000,000 and shall be divided into
20,000 shares of VT10,000
each.
INCREASE
AND REDUCTION OF THE SHARE
CAPITAL
9. On the recommendation
of the Board and subject to the approval of the Minister, the authorised share
capital of the Bank may be
increased or reduced by a resolution of an
extraordinary general meeting by such amount and in such manner as shall be
specified
in the
resolution.
ALLOTMENT
AND TRANSFER OF SHARES
10. (1) Not
less than 51 per cent of the amount of the issued share capital of the Bank
shall be held by the Government at all
times.
(2) Subject to the written
approval of the Minister the Board may allot shares in any part of the
authorised share capital of the
Bank to any person or institution at such price
and on such terms and conditions as the Board thinks
fit:
Provided that the total
number of shares so allotted must not be such as to reduce the shareholding of
the Government to less than
provided for in subsection
(1).
(3) No transfer or assignment
of any share or any right or any interest whatsoever in any share shall have
effect unless such transfer
or assignment has been approved by the Board and by
the Minister:
Provided that such
approval may not be given so as to reduce the shareholding of the Government to
less than provided for in subsection
(1).
LIMITED
LIABILITY OF SHAREHOLDERS
11. The
liability of the shareholders shall be limited to the amount, if any, unpaid on
shares held by them.
PART
IV
THE BOARD AND
MANAGEMENT OF THE BANK
THE
BOARD AND ITS FUNCTIONS
12. There
shall be a board of directors of the Bank who shall be responsible for the
policy and the operation of the Bank subject
to the provisions of this
Act.
(2) The Board shall consist
of-
(a) the Managing Director, and
(b) not more than eight other directors nominated by the Minister and appointed by a resolution of the general meeting.
(3)
In making the nominations under subsection (2)(b) the Minister shall ensure, so
far as practicable, that the persons so nominated
represent the principal
geographical divisions of Vanuatu and have sufficient experience in finance,
commerce, industry or
agriculture.
(4) Not more than
four directors may be public
servants.
(5) No person may be
appointed as a director who-
(a) is a Minister of the Government or a member of Parliament; or
(b) has reached 70 years of age or whose term of office would normally expire after he has reached that age; or
(c) has been adjudged bankrupt or made an arrangement in the nature of com-position or assignment with his creditors; or
(d) has been sentenced by a court to a term of imprisonment, whether suspended or not, without the option of a fine;
(e) excepting the Managing Director, is in the paid employment of the Bank.
(6)
Subject to subsection (7) every director shall hold office for a term of 3 years
but shall be eligible for
re-appointment:
Provided that if
the office of a director becomes vacant during the term thereof the Minister may
temporarily appoint some other person
to fill the vacancy for the remainder of
that term. Such appointment shall be confirmed by the subsequent general meeting
of the
Bank.
(7) The office of a
director shall become vacant if-
(a) he becomes ineligible for appointment under subsection (5); or
(b) he becomes permanently incapable of performing his duties; or
(c) he resigns his office by notice in writing addressed to the Minister; or
(d) without leave of the Board, he absents himself from 2 consecutive meetings of the Board; or
(e) he fails to comply with the provisions of section 15; or
(f) his appointment is terminated by a resolution of the general meeting on the recommendation of the Minister.
(g) The directors shall serve without remuneration but may be paid reasonable travelling and other expenses when engaged on the business of the Board.
CHAIRMAN
AND VICE-CHAIRMAN
13. The Board
with the approval of the Minister, shall appoint, from among the directors, a
chairman and vice-chairman of the Board,
who shall hold office for such period
as the Board shall
fix.
MEETINGS
OF THE BOARD
14. (1) The Board
shall meet, not less than once in every 3 months, at such times and places as
the chairman, or in his absence the
vice-chairman, shall
direct.
(2) Without prejudice to
subsection (1), the chairman, or in his absence, the vice-chairman shall convene
a meeting of the Board on
a written request signed by not less than five
directors.
(3) Five members of the
Board shall be a quorum at meetings of the
Board.
(4) The chairman, or in his
absence, the vice-chairman shall preside at all meetings of the Board, and if
both are absent from a meeting
the Board shall elect a director to preside at
that meeting.
(5) Except where
otherwise provided in this Act, questions arising at a meeting of the Board
shall be decided by a majority of the
members present and voting, provided that
in the event of an equality of votes the person presiding at the meeting shall
have a second
or casting vote.
(6)
Subject to the provisions of this Act the Board may regulate its own procedure,
and, in particular, may regulate the holding of
meetings, the notice to be given
of any meeting, the proceedings thereat, and the keeping and custody of
minutes.
DISCLOSURE
OF INTEREST BY MEMBERS OF THE
BOARD
15. Every member of the
Board shall fully disclose to the Board any financial or other personal interest
that he may have directly
or indirectly in any matter before the Board and shall
not take part in the discussion of any such matter nor vote thereon, and,
if
requested to do so by the person presiding at the meeting, shall absent himself
while deliberations with respect to any such matter
are taking
place.
EXECUTIVE
COMMITTEE
16. (1) The Board may,
by a resolution carried by a majority of two-thirds of the total number of its
members, set up an Executive
Committee to whom it may delegate any of its
functions and powers under this Act except-
(a) the consideration and approval of the accounts of the Bank;
(b) the allocation of profits and declaration of dividends;
(c) the appointment of the Managing Director and acting Managing Director.
(2)
The Executive Committee shall consist of the Managing Director and not less than
three directors who shall hold office during
the pleasure of the
Board.
(3) The Board may give such
directions as it thinks fit with respect to the procedure to be followed at or
in relation to the meetings
of the Executive Committee, and, in particular,
directions with respect to-
(a) the convening of meetings of the Executive Committee;
(b) the number of members of the Executive Committee to constitute a quorum;
(c) the appointment of a person to preside at the meetings of the Executive Committee;
(d) the manner in which questions arising at a meeting of the Executive Commit-tee shall be decided;
(e) the class of matters, if any, which the Executive Committee shall be required to refer to the Board for approval or information and the manner in which such references shall be made.
VACANCIES
AND IRREGULARITIES NOT TO AFFECT
PROCEEDINGS
17. The exercise of
the functions and powers of the Board or of the Executive Committee shall not be
called into question by reason
only of a vacancy on the Board or the Executive
Committee or any irregularity in the appointment of any member,
thereof.
MANAGING
DIRECTOR OF THE BANK
18. (1) The
Board shall, by a resolution carried by a majority of two-thirds of the total
number of the directors, appoint a Managing
Director of the Bank and shall
determine the terms and conditions of his service; his appointment and the terms
and conditions of
his service shall be subject to a prior written approval of
the Minister.
(2) No person
referred to in paragraph (a), (b), (c) or (d) of section 12(5) shall be eligible
for appointment as Managing
Director.
(3) Subject to
subsection (6) the Managing Director shall hold office for a term not exceeding
3 years but shall be eligible for
re-appointment.
(4) The Managing
Director shall be the chief executive officer of the, Bank, and, subject to this
Act and to the general directions
of the Board, shall be responsible for the
day-to-day management of the business of the
Bank.
(5) The Managing Director
shall devote the whole of his services to the Bank and shall not hold any other
paid office or employment.
(6) The
Managing Director shall cease to hold office if-
(a) he becomes ineligible for appointment under subsection (2); or
(b) he becomes permanently incapable of performing his functions under this Act; or
(c) he resigns his office by notice in writing addressed to the Board; or
(d) he fails to comply with the provisions of section 15; or
(e) his appointment is terminated by the Board with the approval of the Minister for a serious breach of the terms and conditions of his service or for other sufficient cause.
(7)
If the Managing Director is temporarily absent or unable to act or if his office
becomes vacant during the term thereof the Board
may appoint an acting Managing
Director to exercise the functions of the Managing Director during such absence,
incapacity or
vacancy.
EMPLOYMENT
OF STAFF
19. The Bank may employ
such officers, servants, agents and advisers as shall be necessary for the
proper and efficient performance
of its functions, on such terms and conditions
of service as the Board shall determine.
PART
V
GENERAL
MEETINGS
ORDINARY
GENERAL MEETINGS
20. (1) An
ordinary general meeting shall be called by the Board within 8 months after the
end of each financial year.
(2) It
shall be the business of an ordinary general meeting to consider and carry
resolutions, with respect to-
(a) the approval of the annual reports and statements of account of the Bank and the auditor's report thereon;
(b) the appointment of the external auditors of the Bank;
(c) any matter required by notice in writing addressed to the Board to be submitted to the meeting by any shareholder holding not less than one-quarter of the shares;
(d) any other matter submitted to the meeting by the Board.
EXTRAORDINARY
GENERAL MEETINGS
21. (1) An
extraordinary general meeting shall be called by the Board-
(a) when the Board thinks fit to do so; or
(b) when such meeting is required by notice in writing addressed to the Board by any shareholder holding not less than one-quarter of the shares.
(2)
It shall be the business of an extraordinary general meeting to consider and
carry resolutions with respect to-
(a) any matter submitted to the meeting by the Board, in particular the increase or reduction in the capital of the Bank;
(b) any matter required by notice in writing addressed to the Board to be submitted to the meeting by any shareholder holding not less than one-quarter of the shares.
RESOLUTIONS
AND VOTING AT GENERAL MEETINGS
22.
(1) Subject to subsection (2), resolutions of a general meeting shall be carried
by a simple majority of votes of the shareholders
present or represented by
proxy and voting at the meeting, and every shareholder shall have 1 vote for
each share of which he is
the
holder.
(2) A resolution signed by
all the shareholders shall be deemed to have been carried by a general meeting
irrespective of whether
or not a meeting had taken
place.
BOARD TO
REGULATE PROCEDURE AT GENERAL
MEETINGS
23. The Board may make
rules, not inconsistent with this Act, to provide for any matter with respect to
the calling of, and procedure
at, the general meetings, and in particular, with
respect to-
(a) the giving of notices of the time, place and business of a general meeting;
(b) quorum at a general meeting;
(c) proxies;
(d) persons to preside over a general meeting and powers and functions to be exercised by such persons;
(e) the keeping and approval of minutes.
PART
VI
FINANCIAL
MATTERS
RESERVE
FUND AND ALLOCATION OF PROFITS
24.
(1) The Bank shall provide against any anticipated losses by establishing and
maintaining a reserve fund which shall consist of
the aggregate
of-
(a) the amounts standing to the credit of the legal reserve fund and the general risks reserve fund of the former bank immediately before the commencement of this Act; and
(b) not less than 50 per cent of the net profits of the Bank allocated in each financial year until the total amount standing to the credit of such reserve fund equals the amount of the authorized share capital of the Bank.
(2)
Subject to subsection (1) the net profits of the Bank in each financial year
shall be allocated to any special reserve fund, payment
of dividend or to any
other purpose as the Board with the approval of the Minister shall
determine.
ESTIMATES
OF ANNUAL INCOME AND
EXPENDITURE
25. (1) The Bank
shall, not later than 2 months before the commencement of each financial year,
prepare estimates of income and expenditure
of the Bank in respect of that
year.
(2) A copy of the estimates
for each financial year referred to in subsection (1) shall, as soon as
practicable be sent to the
Minister.
ACCOUNTS
AND AUDIT
26. (1) The Bank shall
keep proper accounts and records of all its transactions and shall prepare in
respect of each financial year
a statement of account in accordance with
generally accepted accounting principles and
practices.
(2) The accounts and
statement of account of the Bank for each financial year shall be audited by a
suitably qualified external auditor
appointed by the Board in accordance with a
resolution of an ordinary general meeting, for a term of 3 years, which the
Board may
extend, from time to time, for a similar
period.
(3) As soon as practicable
after the accounts and statement of account for each financial year have been
audited under subsection
(2) the Board shall deliver to the Minister a copy of
the statement of account together with a copy of the auditor's report
thereon.
ANNUAL
REPORT
27. The Board shall deliver
to the Minister before 30 June of each year an annual report dealing with the
operations of the Bank during
the preceding financial
year.
REPORTS
ETC.
TO BE LAID BEFORE
PARLIAMENT
28. The Minister shall,
as soon as practicable, after their receipt cause a copy of every statement of
account or report referred
to in sections 26 and 27 to be laid before
Parliament.
GRANTS
29.
(1) The Bank may receive grants from the Government, or any organisation or body
in or outside Vanuatu in accordance with the
terms and conditions specified for
any such grant.
(2) Every grant
shall be governed by an agreement between the grantor and the Bank. The
respective rights and obligations of the parties,
the allocation of funds, the
means of making reports and the frequency of reports shall be specified in the
agreement. Every such
agreement must be authorised by the Board and approved by
the
Minister.
BANK
MAY RAISE LOANS
30. (1) Subject to
section 5(m), the Bank may, from time to time in such manner and upon such terms
and conditions as the Board may
approve, raise loans for the purpose of carrying
out its functions under this
Act.
(2) Subject to section 5(m),
the Bank may borrow by way of overdraft or a short loan up to such limit as the
Board may specify, any
sum which the Bank may require temporarily for the
purpose of meeting its
commitments.
(3) The Bank may
raise loans and borrow moneys in any
currency.
(4) The repayment of any
loan raised or moneys borrowed under this section, and interest thereon, may be
secured by mortgage, debenture
or other charge upon the assets of the
Bank.
(5) Subject to approval by
resolution of Parliament, the Minister may guarantee the payment of any loan
raised or money borrowed by
the Bank under this section together with interest
thereon and other charges relating thereto. The provisions of the Government
Borrowing
and Guarantee Act, Cap. 149 shall not apply in relation to any
guarantee under this
subsection.
GUARANTEE
FUNDS
31. The Bank may manage any
guarantee fund, whether established by itself or granted by the Government or
any public authority or
any body or organisation in or outside Vanuatu, and
shall report regularly on its management to the grantor of such
fund.
PART
VII
MISCELLANEOUS
SECRECY
32.
No person who is or has been a director or the holder of any office or member of
the staff of the Bank shall, either directly or
indirectly, except in the
performance of a duty under, or in connexion with, this Act, make a record of,
or divulge or communicate
to any person, any information concerning the affairs
of any other person acquired by him by reason of his office or employment under,
or for the purpose of, this
Act.
Penalty: imprisonment for 1
year or fine of VT100,000 or
both.
EXEMPTION
FROM BANKING LAWS
33. The
provisions of the Banking Act, Cap. 63 or any law in force from time to time in
substitution therefor shall not apply in relation to the
Bank.
PROVISION
OF INFORMATION TO CENTRAL BANK
34.
The provisions of section 31 of the Central Bank of Vanuatu Act, Cap. 125 which
relate to the provision of information by financial institutions to the Central
Bank of Vanuatu, shall apply in relation
to the Bank in the like manner as they
apply in relation to the financial institutions within the meaning of that
Act.
WAIVER OF
GAZETTING CERTAIN INSTRUMENTS
35.
Notwithstanding the provisions of section 13 of the Interpretation Act, Cap.
132, the Statement of General Business Policy, the
Minister's directions, rules
and the internal regulations referred to in sections 6, 7, 23 and 36
respectively of this Act shall
not be regarded as statutory orders for the
purpose of the publication of the same in the
Gazette.
INTERNAL
REGULATIONS OF THE BANK
36. The
Board may make rules to be known as the internal regulations of the Bank to
regulate the conduct of the business of the Bank,
and, in particular, with
respect of all or any of the following-
(a) the terms and conditions on which loans may be made and the requisite securities or guarantees relating to the same;
(b) the total amount of the loan commitment of the Bank in any one or more financial years, whether generally or in respect of any class of loan as deter-mined by the nature of the activity for which a loan is applied for, the period of repayment or other factors;
(c) the Bank's interest rate structure and the fixing of the margins of the interest rates in respect of any class of loans;
(d) the establishment of reserve and other funds including provisions for bad or doubtful debts;
(e) the diversification of the Bank's loan and investment portfolios;
(f) the acquisition, holding and disposal of the shares in any company;
(g) the keeping of a register of the shareholders and entries therein;
(h) the manner, form and frequency of any reports on the Bank's operations as a whole or any part thereof;
(i) the manner and form in which the exercise of any of the powers or functions of the Board may be delegated to the Executive Committee;
(j) the conditions under which the Bank may act as an agent for any body or organisation in or outside Vanuatu.
(2)
In the event of a conflict between any of the provisions of the internal
regulations and the provisions of the Statement of General
Business Policies of
the Bank referred to in section 6 the latter shall
prevail.
(3) The internal
regulations and amendments thereto shall be made by a resolution of the Board
carried by a majority of not less than
two-thirds of the total number of its
members.
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