2.Bilateral Investment Agreements and Taxation Treaties
There are no bilateral investment treaties or free trade agreements between the U.S. and Bermuda. Bermuda is listed under category ‘A’ of signatories to the International Organization of Securities Commissions Multi-lateral Memorandum of Understanding (IOSCO MMOU), which provides for mutual co-operation and the exchange of information among securities regulators. In June 2009, the International Association of Insurance Supervisors (IAIS) approved the BMA as a signatory to the Multi-lateral Memorandum of Understanding. The MMOU establishes a formal basis for cooperation and information exchange between signatory regulators who supervise insurers with international or cross border operations.
There are two bilateral taxation-related treaties between the U.S. and Bermuda: the Convention between the Government of the United Kingdom of Great Britain and Northern Ireland (on Behalf of the Government of Bermuda) and the Government of the United States of America Relating to the Taxation of Insurance Enterprises and Mutual Assistance in Tax Matters (Convention) (1986), and the Tax Information Exchange Agreement (TIEA) (1988). Under the latter, the U.S. agreed to waive income and excise taxes on insurance premium income derived from the U.S. for eligible Bermudian insurance companies, i.e., companies whose predominant business activity is the issuing of insurance, reinsurance, or annuity contracts and the investing of insurance reserves and other capital incident to the carrying on of the insurance business and that does not operate as a permanent establishment in the U.S.
Bilateral Investment Treaties:
Bermuda is fully cooperative with global partners through its 41 tax information exchange agreements (TIEAs). Bermuda has held a TIEA with the United States since the USA-Bermuda Tax Convention Act 1986 and has signed Model 2 intergovernmental agreements (IGAs) with the US and UK under the Foreign Account Tax Compliance Act (FATCA), along with Chile, Hong Kong, Japan and Switzerland.
On December 2013, Bermuda signed an IGA Model 2 with the U.S. to implement U.S. FATCA. Under an IGA Model 2 the U.S. and the FATCA partner enter into an IGA whereby the FATCA partner would agree to implement legislation to direct and enable FFIs in its jurisdiction to collect and report FATCA required information (including Specified U.S. Persons) directly to the Internal Revenue Service (IRS). It is important to note Bermuda law already enables Foreign Federal Institutions (FFIs) in its jurisdiction to collect and report FATCA required information directly to the IRS, as there is no Bermuda law conflict that prevents FFIs from doing so, unlike in those countries that do have conflicting laws that do not enable FFIs to report directly to the IRS and therefore had to adopt IGA Model 1. In Bermuda’s case the government only needs to amend its law so as to direct FFIs in its jurisdiction to abide by the US’s FATCA Regulations as may be modified by the IGA Model 2 and to impose a fine and or penalty if the FFIs do not, whereby such fine and or penalty is sufficient to serve as a deterrent to non-compliance.
The IGA Model 2 to implement FATCA is primarily aimed for use by those FATCA partners that have little or no local law conflicts with FATCA and where substantial local legislation is not required. IGA Model 2 provides that FFIs in such FATCA partnerships enter into a FFI agreement with the IRS. Such FFI agreements introduce obligations that are similar to the obligations on FFIs under an IGA Model 1 who comply with the IRS registration requirement.
A list of all countries with which the U.S. currently has bilateral investment treaties is available at https://www.state.gov/investment-affairs/bilateral-investment-treaties-and-related-agreements/
and Free Trade Agreements at http://www.ustr.gov/trade-agreements/free-trade-agreements
(The NAFTA and all U.S. FTAs (except Bahrain) entered into since 2002 contain investment chapters.)