Enterprise Terrorist Financing & Money Laundering Policy

Transcription

1 Policy Sponsor: Summary: CA and Compliance Sets out obligations under and suggestions for procedures to comply with antiterrorist financing, anti-money laundering and other laws implementing sanctions that restrict where and with whom we may transact. This policy must be approved by the Audit Committee. Contents 1. INTRODUCTION CANADIAN STATUTORY REQUIREMENTS Summary of Application to OMERS Designated Persons Prohibition Against Transactions Disclosure of Transactions Additional Requirements for Securities Registrants INTERNATIONAL REQUIREMENTS US Sanctions OFAC US Anti-Boycott Laws UK Sanctions Counterterrorism PERFORMING CHECKS Names To Be Checked When Checks Are Not Required Sovereign Wealth Funds Entities from Previous Transactions Who Performs the Checks NAME MATCHES CONTRACTUAL REPRESENTATIONS... 6 APPENDIX A LISTS OF DESIGNATED PERSONS AND OTHER RESOURCES... 7 APPENDIX B SAMPLE REPRESENTATIONS INTRODUCTION The key principles underlying the Enterprise Risk Management Framework include steps to mitigate regulatory and due diligence risks. This Policy deals with an aspect of due diligence relating to Canadian and applicable international laws intended to combat money laundering and terrorist financing activities or to impose special economic measures against a foreign state, including sanctions imposed by the United Nations Security Council. OAC, the Investment Entities and their employees must be aware of these restrictions on where and with whom transactions may be undertaken. In order to comply with these legal requirements, OMERS Enterprise must ensure that checks of names of parties to an investment transaction are performed prior to closing. The legal requirements and processes to address these requirements are summarized below. 2. CANADIAN STATUTORY REQUIREMENTS 2.1 Summary of Application to OMERS All Canadian individuals and entities are prohibited from dealing with assets owned or controlled by a person ( Designated Person ) listed in a schedule published under Canadian anti-terrorist financing or sanction regulations. These regulations are listed and defined in Appendix A. Anyone who believes that they are holding assets of a Designated Person must disclose this to the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS).

2 Page 2 of 9 The legislation also requires that Canadian financial institutions and securities dealers monitor clients and other parties to continuously determine whether they are dealing with property of a Designated Person. Although the continuous determination provisions do not apply to provincially regulated pension plans, in 2001 FSCO published a notice directing all Ontario regulated pension plans to review their investments, members, retirees and other beneficiaries of the plan against the names listed under Canadian anti-terrorist financing regulations and to report any matches to the RCMP and CSIS. To comply with the FSCO notice, OAC Compliance currently conducts monthly anti-terrorist reviews of Plan members and beneficiaries receiving benefits for Designated Persons under all Canadian anti-terrorist and UN sanction regulations. In addition, checks of names of parties to investment transactions for Designated Persons under all Canadian anti-terrorist and UN sanction regulations must be performed prior to closing for all investment transactions. The Investment Compliance Transaction Checklist is used to report that antiterrorism checks were done in the due diligence process. 2.2 Designated Persons Under the anti-terrorist financing regulations, each Designated Person has been determined by authorities to be an individual or entity who: a) has carried out, participated in, facilitated a terrorist activity or has attempted to do so ( Terrorist ); b) is controlled directly or indirectly by a Terrorist; or c) is acting on behalf of, or at the direction of, or in association with a Terrorist. The sanction regulations implemented in Canada include Designated Persons who have been listed under corresponding UN resolutions and Canadian special economic measures without setting out this determination. 2.3 Prohibition Against Transactions No person in Canada and no Canadian outside Canada shall knowingly: a) deal, directly or indirectly, with property of a Designated Person; b) enter into or facilitate, directly or indirectly, any transaction in respect of such property; or c) provide any financial or other services in respect of such property. Canada also implements by regulation various UN Security Council and special economic measures which prohibit specific activities in or with a foreign state. Most of these sanction regulations contain similar prohibitions regarding dealings with property of Designated Persons. However, the word knowingly does not appear in the Special Economic Measures Act regulations. 2.4 Disclosure of Transactions The legislation also requires that: Every person in Canada and every Canadian outside Canada shall disclose forthwith to the Commissioner of the RCMP and to the Director of CSIS: a) the existence of property in their possession or control that they have reason to believe is owned or controlled by or on behalf of a Designated person; and b) information about any transaction or proposed transaction in respect of that property.

3 Page 3 of Additional Requirements for Securities Registrants In addition to the above requirements, Canadian securities registrants are required to continuously monitor whether they are dealing with any Designated Persons and file prescribed reports to their regulators. OIM is covered by these obligations and files monthly reports with securities regulators confirming that it does not have an account in the name of a Designated Person, or have a contract with a Designated Person, or possess or control property that is owned or controlled by or on behalf of a Designated Person. OIM is also required under the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations (Proceeds of Crime Regulations) to ascertain the identity of anyone with whom they conduct a transaction, to file suspicious transaction reports with the Financial Transaction Reports Analysis Centre of Canada (FINTRAC) as required, and to take additional measures when dealing with any individual considered to be a politically exposed foreign person. OIM maintains a compliance program including written policies and procedures with respect to anti-money laundering issues. All of OMERS US and UK securities registrants have specific client identification provisions in their respective Account Opening Policies. The OMERS UK securities registrants have specific AML policies. In the US, AML rules and requirements aimed at registered advisers, such as Borealis US, are not yet in force. Borealis US will develop policies and procedures to address these requirements before they are implemented. 3. INTERNATIONAL REQUIREMENTS Where an OMERS entity is operating in the US, UK or another jurisdiction, the laws of the local jurisdiction must also be adhered to. The US and UK laws are summarized below. In addition, where an investment transaction involves an entity from or in a country that is subject to Canadian sanctions or is in a region otherwise considered to be a military conflict zone, extra care must be taken to ensure that there are no links to Designated Persons and that the transaction itself is not prohibited or restricted. In these situations it may be appropriate to check against lists from other organizations websites set out in Appendix A Lists of Designated Persons and Other Resources. For example, a proposed investment transaction involving a South Asian financial institution may warrant a review of names against the World Bank Ineligible Firms list or, if negotiations are conducted from an office in the US, a review against the names listed on the US government and FBI sites may be appropriate. 3.1 US Sanctions OFAC The US Treasury Department s Office of Foreign Assets Control (OFAC) administers economic sanctions and export controls regulations, which prohibit or restrict transactions and investment in countries with adverse foreign policies or persons taking actions contrary to US interests, including terrorist financing, narcotics trafficking and the proliferation of weapons of mass destruction. OFAC regulations may restrict imports and exports to blocked countries or entities and impose travel and other restrictions (i.e., Cuba). OFAC regulations apply only to US Persons, which include (i) US citizens and permanent residents, wherever located; (ii) all persons while physically present in the US; and (iii) entities organized under US law, including their non-us branches, but not their non-us affiliates. They do not extend extraterritorially to companies organized under the laws of foreign countries such as Canada. If there is any doubt as to whether OMERS Investment Entities or their individuals are US Persons in particular circumstances, a review of the OFAC Specially Designated Nationals List should be considered. If an entity or the beneficial owner of an entity is on the SDN List, the appropriate U.S. governmental agency and the account s custodian must be notified in order to freeze its assets. The U.S.

4 Page 4 of 9 Treasury form to be completed in the event of a transaction being blocked due to the account holder being on the SDN List is available at: OMERS Enterprise does not conduct transactions with foreign shell banks, which under U.S. laws include a bank organized under non-u.s. law (excluding its agents, branches or offices located in the United States) but without a physical presence in any country. 3.2 US Anti-Boycott Laws US anti-boycott laws and regulations prohibit or penalize US companies as well as US taxpayers, and, in some cases, their non-us affiliates, from participating in or cooperating with foreign boycotts against countries considered friendly to the US. These rules are particularly relevant in the context of Middle East transactions, where several countries boycott Israel. The mere acquisition of a company with ongoing boycott-related commitments can trigger liability, including US tax penalties. 3.3 UK Sanctions Counterterrorism The UK Counterterrorism Act (2008) allows the UK Treasury to issue a direction against a country or a specific person where there is a reasonable belief that there is a risk of terrorist financing or money laundering being carried on in a country, by its government or by persons resident or incorporated in the country. The direction may impose requirements in relation to transactions or business relationships with a person in or carrying on business in the country or with the country itself, or may prohibit entering into transactions. 4. PERFORMING CHECKS As noted above, OAC and its Investment Entities must confirm that none of the names of the parties involved in a proposed investment transaction match those listed as Designated Persons in Canadian anti-terrorist financing regulations and UN sanctions. It is also necessary to confirm compliance with the local jurisdiction s laws on transactions conducted outside of Canada. Consequently, a check of these names is included as a due diligence item on section A.3 of the OMERS Investment Transaction Compliance Checklist. 4.1 Names To Be Checked The extent of the checks and how they are to be performed is not prescribed by statute. The named parties to a transaction (including co-investors) must be checked, as well as those with a significant interest in the transaction unless the party is listed in section 4.2, below. Where there is no exception available under section 4.2, it is recommended that the requirements of the Proceeds of Crime Regulations applicable to financial institutions and securities dealers be used to assess whether a party has a significant interest and what information is needed to perform the check, as follows: i. For a corporation, obtain the names and occupations of the directors of the corporation and the name, address and occupation of all persons who own or control, directly or indirectly, 25% or more ownership interest in the property or shares of the corporation; ii. For a partnership or trust, obtain the names, addresses and occupations of all persons holding direct or indirect ownership interests of 25% or more. For a trust, this includes the names of the trustees, beneficiaries and settlors. For a partnership, the name of the GP (in the U.S. Managing Member) must be checked as well as the directors of the latter if a corporation. This information should be requested during the due diligence process and reviewed against the lists of Designated Persons prior to closing. A consideration of the direct and indirect significant interests in (i) or (ii), above, should include tracing through the ownership chain up to the ultimate beneficial

5 Page 5 of 9 owner of 25% or more of each corporation, partnership or trust. For instance, if the corporation, partnership or trust is owned by another corporation or other entity, the names, addresses and occupations of directors and owners at each level where a greater than 25% interest is held should be obtained. 4.2 When Checks Are Not Required There is no need to perform anti-terrorism or anti-money laundering checks with respect to the following types of entities from a Canadian perspective, as they are heavily regulated and are expressly excluded from the Proceeds of Crime Regulations: any Canadian government or government agency; any Canadian regulated pension fund; any Canadian regulated financial entity, such as a bank or trust company; any Canadian securities dealer (defined in the Proceeds of Crime Regulations as a person or entity that is authorized under provincial legislation to engage in the business of dealing in securities or any other financial instruments or to provide portfolio management or investment advising services. ); any Canadian life insurance company; any investment fund that is regulated under Canadian provincial securities law; a company with net assets of $75 million or more on its most recently filed financial statements which is public traded on a major stock exchange considered acceptable to the regulators of the Proceeds of Crime Regulations; and any wholly-owned subsidiary of any of the above. Similar exemptions are available under UK Money Laundering Regulations, covering the following types of organizations: financial institutions (including their nominee companies) regulated by the EU or by the laws of Argentina, Australia, Brazil, Canada, Hong Kong, Mexico, New Zealand, Singapore, South Africa, Switzerland, The Russian Federation and the United States; UK pension schemes; companies whose securities are listed on a regulated market and majority owned and consolidated subsidiaries of such listed companies; and UK or EU public authorities. Under US law, obligations related to the US sanctions targets are imposed on all US Persons (described in section 3.1, above). Firms that are subject to US sanctions compliance obligations generally do not limit their screening due to the regulated status of an entity. 4.3 Sovereign Wealth Funds There are no specific exemptions available for Sovereign Wealth Funds (SWFs) under the Proceeds of Crime Regulations. However, SWFs are usually entirely state-owned. Once this has been confirmed, the list of UN sanctions regulations (see Appendix A ) must be consulted to ensure there are no sanctions against the country in question. Many SWFs are members of the International Working Group on SWFs (IWG). The IWG was established in 2008 to develop a common set of voluntary principles (the Santiago Principles) to promote a clearer understanding of SWFs through increased transparency of their governance and operation. As IWG members are subject to transparency requirements, factors such as their

6 Page 6 of 9 ownership as well as nature, objects and purpose of the Fund can be verified online on the IWG website: Entities from Previous Transactions OMERS may be involved in a proposed investment transaction with an entity it previously dealt with on a transaction where a due diligence review was conducted, including a check related to antiterrorism and UN sanction regulations. However, the Designated Persons named in the anti-terrorism regulations are revised and new countries are added on a regular basis. There may also have been changes to an entity s directors and beneficial owners. Consequently, while the fact that a review was previously performed provides some comfort, it falls short of providing full assurance that there are no issues from an anti-terrorism perspective. Unless the entity falls into an exempt category noted above, a check must be undertaken during the due diligence for each new transaction and should be considered for follow-on investments in accordance with the risk profile of the transaction. 4.5 Who Performs the Checks The review of names of entities and individuals may be performed internally or by engaging third party service providers to perform background checks on our behalf, including a recognized Canadian law firm acting for another party to the transaction. The OMERS Compliance team is familiar with the lists of Designated Persons and will do checks at the request of an Investment Entity. Alternatively, updated lists of Designated Persons and other resources on anti-terrorism and UN sanctions are available from Compliance. 5. NAME MATCHES If a match is found, Compliance must be notified immediately to coordinate next steps, including efforts to mitigate risks or to determine whether disclosure is required. Despite an exact match or apparent match, there may not be sufficient information available to conclude that an individual or entity is in fact the listed Designated Person, often due to incomplete information in the published lists of Designated Persons. In this case, if the information available to OAC is an apparent match to the information provided in the published lists, Compliance will review the matter with Executive Vice President & General Counsel or Senior Management, and if appropriate with outside counsel, to decide whether a report to the authorities is required in the circumstances. 6. CONTRACTUAL REPRESENTATIONS The investment transaction documentation may include specific representations with respect to antiterrorist financing laws and UN sanctions. Sample representations are included in Appendix B. HISTORY Effective Date: September 1, 2014 Approval Dates: February 21, 2012, August 20, 2014 Next Scheduled Date for Review: August 2016

7 Page 7 of 9 APPENDIX A LISTS OF DESIGNATED PERSONS AND OTHER RESOURCES 1. Canadian Schedules of Designated Persons published under the following regulations are available on the Foreign Affairs, Trade and Development Canada website at: a) Anti-terrorist financing regulations: - Regulations under the Criminal Code of Canada - United Nations Suppression of Terrorism Regulations ( UNSTR ) - United Nations Al Qaida and Taliban Regulations ( UNAlQaida ) - Regulations Implementing the United Nations Resolution on Iran ( UN Iran ) - Regulations Implementing the United Nations Resolution on the Democratic People s Republic of Korea ( UN NKorea ) b) Sanctions regulations, as amended from time to time, implemented under the Freezing Assets of Corrupt Foreign Officials Act, Special Economic Measures Act and United Nations Act and published separately on or linked to the OSFI website: - Freezing of Assets of Corrupt Foreign Officials (Tunisia and Egypt) Regulations - Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations - Regulations Implementing the United Nations Regulations on Liberia - Regulations Implementing the United Nations Resolution on Eritrea - Regulations Implementing the United Nations Resolution on Libya and Taking Special Economic Measures - Regulations Implementing the United Nations Resolutions on Somalia - Special Economic Measures (Burma) Regulations - Special Economic Measures (DPRK) Regulations - Special Economic Measures (Iran) Regulations - Special Economic Measures (Russia) Regulations - Special Economic Measures (Syria) Regulations - Special Economic Measures (Zimbabwe) Regulations - United Nations Côte d Ivoire Regulations - United Nations Democratic Republic of Congo Regulations - United Nations Iraq Regulations - United Nations Sudan Regulations 2. International and other lists to be consulted where warranted due to the nature or location of the transaction or any of the parties involved: US OFAC List of Specially Designated Nationals: US State Department Directorate of Defense Trade Controls Debarred Parties: US Bureau of Industry and Security Denied Persons List: FBI Seeking Information List War on Terrorism: FBI Ten Most Wanted List:

8 Page 8 of 9 FBI Most Wanted Terrorists: UK Financial Sanctions Interpol Most Wanted: European Union Terrorism List: World Bank Ineligible Firms: PK: ~piPK: ~theSitePK:438017,00.html 3. Sovereign Wealth Funds International Working Group on Sovereign Wealth Funds (IWG) (members are subject to transparency requirements further to the Santiago Principles): Sovereign Wealth Fund Institute (information on a broad range of SWFs, including non-members of the IWG):

9 Page 9 of 9 APPENDIX B SAMPLE REPRESENTATIONS 1. Vendor Representation Not on Designated Person Lists Canada The Vendor acknowledges that Canadian federal law and regulations administered by, inter alia, Foreign Affairs and International Trade Canada and the Department of Public Safety Canada (collectively, the Departments ) prohibit the Purchaser from, among other things, engaging in transactions with Persons on the lists created under various federal statutes and regulations (including under the Criminal Code, under the United Nations Al Qaida and Taliban Regulations and under the United Nations Regulations on the Suppression of Terrorism) and blocked Persons and foreign countries and territories subject to Canadian sanctions administered by, inter alia, the Departments (together, the Canadian Sanctions ). The Vendor represents and warrants that neither it nor any of its directors, officers or Affiliates is a Person or is owned or controlled by a Person that is subject to Canadian Sanctions (a Prohibited Person ) and the Vendor is not acting directly or indirectly on behalf of any Prohibited Person in connection with the Transaction. 2. Target Representation Not on International Sanctions Lists Neither the COMPANY, nor any of its subsidiaries, nor any of their respective directors, officers, employees or affiliates nor, to the best of their collective knowledge after due inquiry, any agents or other persons acting on behalf of any of the foregoing, (i) (ii) (iii) (iv) (v) is, or is owned or controlled by, a person listed on the "Specially Designated Nationals and Blocked Persons" list (SDN List) maintained by the Office of Foreign Assets Control of the United States Department of the Treasury (OFAC) or any similar list maintained by the United Nations, the European Union or any other U.S. government entity; is, or is owned or controlled by, a person that is the subject of any of the sanctions administered by OFAC, the U.S. Department of State (including, but not limited to, conduct sanctionable under the Iran Sanctions Act or the Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010), or any equivalent sanctions or measures imposed by the United Nations, the European Union or any other U.S. government entity (collectively Sanctions), or has engaged in sanctionable conduct under Sanctions; directly or indirectly, has conducted, conducts or is otherwise involved with any business with or involving any government (or any sub-division thereof), or any person, entity or project, targeted by, or located in any country that is the subject of Sanctions; directly or indirectly supports or facilitates, or plans to support or facilitate or otherwise become involved with, any such person, government, entity or project; or is or ever has been in violation of or subject to an investigation relating to Sanctions. 3. Target Representation Compliance with Laws The operations of the COMPANY and its subsidiaries are and have been conducted at all times in compliance with all anti-money laundering laws and all applicable financial record keeping and reporting requirements, rules, regulations and guidelines applicable to the COMPANY and its subsidiaries (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the COMPANY or any of its subsidiaries with respect to Money Laundering Laws is pending and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplated.