Part 5: Part 5: Authorisation Requirements and Process
Article 27 - Application
(1) AnApplication for anAuthorisation may be made to theRegulatory Authority by:(C) a body corporate;(D) a partnership; or(E) an unincorporated association.(2)Authorisation constitutes an approval, authorisation or licence for the purposes of Article 11(2) of theQFC Law .(3) AnAuthorised Firm may apply to theRegulatory Authority to vary itsAuthorisation . A variation may include:(A) extending anAuthorised Firm's Authorisation to includeRegulated Activities other than those in respect of which it al has anAuthorisation ;(B) varying conditions restrictions or requirements imposed on itsAuthorisation in accordance with Article 29(1) or 31(2); or(C) withdrawing itsAuthorisation in respect of one or moreRegulated Activities .(4) TheApplicant for anAuthorisation , variation of anAuthorisation or withdrawal ofAuthorisation as a whole may withdraw itsApplication by giving theRegulatory Authority notice at any time before theRegulatory Authority determines theApplication .Amended by QFC Reg 2010-2 (as from 9th December 2010) Article 28 - Form and content of Application
(1) AnApplication for anAuthorisation or variation or withdrawal of anAuthorisation shall be in such form and contain such information as may be prescribed by theRegulatory Authority from time to time.(2) TheRegulatory Authority may waive all or any part of its generally adopted requirements as to form and contents either in individual cases or generally, provided it is satisfied in either case that:(A) materially similar, up-to-date information is provided in other documentation al issued or completed by theApplicant ;(B) such information is not necessary in the light of any registration or authorisation theApplicant may have in a jurisdiction outside theQFC ; or(C) such information is not considered by theRegulatory Authority to be relevant in the context of any particularApplication .(3) TheRegulatory Authority may require theApplicant to provide further information which theRegulatory Authority reasonably requires to be able to decide whether to approve anApplication to which Article 28 relates.(4) If at any time between the making of theApplication and the grant of theAuthorisation , variation or, as the case may be, withdrawal, theApplicant or the signatories to the relevantApplication become(s) aware of a material change which is reasonably likely to be relevant to theApplication under consideration by theRegulatory Authority , theApplicant or signatories (as the case may be) shall inform theRegulatory Authority of such a change without delay.Amended by QFC Reg 2010-2 (as from 9th December 2010) Article 29 - Grant of Authorisation, variation or withdrawal and rejection of an Application
(1) TheRegulatory Authority may:(A) grant anApplication for anAuthorisation , variation or withdrawal of anAuthorisation either without conditions, restrictions or requirements or with such conditions, restrictions or requirements as it considers appropriate; or(B) reject theApplication .(2) TheRegulatory Authority may makeRules setting out the criteria which anApplication for anAuthorisation , or for variation or withdrawal of anAuthorisation , must satisfy before anApplication can be granted by theRegulatory Authority . Such criteria shall include requirements (as appropriate) relating to:(A) the fitness and propriety of anApplicant having regard to all the circumstances, including his connection with anyPerson , the nature of anyRegulated Activity that he carries on or seeks to carry on and the need to ensure that his affairs are conducted soundly and prudently;(B) the legal form that anApplicant must adopt;(C) the resources of theApplicant , whether financial or otherwise;(D) theApplicant's systems and controls;(E) the location of theApplicant's offices;(F) in the case of anApplication for a withdrawal, the interests of the clients or customers of theAuthorised Firm , and the effective supervision of theFinancial System ; and(G) theRegulatory Authority's ability to effectively supervise theApplicant orAuthorised Firm .(3) In considering anApplication for anAuthorisation or to vary or withdraw anAuthorisation , theRegulatory Authority may have regard to any person appearing to it to be, or likely to be, in a contractual relationship with theApplicant or connected with theApplicant .(4) AnAuthorisation or variation of anAuthorisation may only be granted if theApplicant is at the time theApplication is granted or immediately thereafter, aQFC Entity , or otherwise has registered a place of business in theQFC with theCRO and has aLicence issued by or on behalf of theQFCA .(5) Without limitation to Article 29(2)(G), if theApplicant hasClose Links with anotherPerson , theRegulatory Authority must be satisfied in considering anApplication forAuthorisation or variation of anAuthorisation :(A) that those links are not likely to prevent theRegulatory Authority's effective supervision of theApplicant ; and(B) if it appears to theRegulatory Authority that such otherPerson is subject to the laws, regulations or administrative provisions of a jurisdiction outside theQFC , that neither those provisions, nor any deficiency in their enforcement, would prevent theRegulatory Authority's effective supervision of theApplicant .(6) Where theRegulatory Authority :(A) grants anApplication forAuthorisation or variation or withdrawal of anAuthorisation , theRegulatory Authority must notify theApplicant accordingly; or(B) rejects anApplication forAuthorisation or variation or withdrawal of anAuthorisation , theRegulatory Authority shall promptly inform theApplicant in writing of such refusal and, where requested by theApplicant , the reasons for such refusal, and of theApplicant's right to appeal that decision to theAppeals Body .(7) Where theRegulatory Authority grants anApplication forAuthorisation or variation of anAuthorisation , it must also notify theApplicant of theRegulated Activity orRegulated Activities that may be carried out following such grant (and of any restriction, condition or requirement imposed on theApplicant ) in a format which theRegulatory Authority considers appropriate.Article 30 - Status of Authorisation
(1) AnAuthorisation granted pursuant to this Part is not transferable.(2) If theAuthorised Firm is a partnership or an unincorporated association:(A) it is authorised to carry on theRegulated Activities concerned in the name of the partnership or unincorporated association; and(B) itsAuthorisation is not affected by any change in its membership.(3) Article 30(2)(B) is subject to the requirements as to the approval of and notification ofControllers and changes of control contained in Part 6.Article 31 - Own initiative action by the Regulatory Authority
(1) TheRegulatory Authority may exercise any of the powers or take any of the steps set out in Article 31(2) at any time where it considers it appropriate to do so in accordance with theRegulatory Objectives , including where it is satisfied that:(A) anAuthorised Firm is failing, or is likely to fail, to satisfy the criteria referred to in Articles 29 (2)-(5) (Grant or Rejection of Applications forAuthorisation , variation or withdrawal);(B) anAuthorised Firm has failed, during a period of at least 12 months, to carry on aRegulated Activity for which it has anAuthorisation ;(C) it is desirable to take such steps to exercise such power in order to protect the interests of clients or customers of anAuthorised Firm or theFinancial System ;(D) anAuthorised Firm is in breach of, or has been, in breach of one or more conditions, restrictions or requirements applicable to itsAuthorisation ;(E) anAuthorised Firm is (or has been) otherwise in breach of theQFC Law , theseRegulations or anyRules or other relevant legislation;(G) a request has been received from anOverseas Regulator in accordance with Article 20 (International Relations and Co-operation).(2) The powers and steps referred to in Article 31(1) are, by written notice to theAuthorised Firm , to:(A) impose or vary such conditions, restrictions and requirements on anAuthorisation as theRegulatory Authority shall consider appropriate;(B) require aPerson specified in the condition, restriction or requirement to take or refrain from taking such action as theRegulatory Authority considers appropriate; or(C) withdraw theAuthorised Firm's Authorisation or vary itsAuthorisation to remove one or moreRegulated Activities .(3) Subject to Article 31(4), theRegulatory Authority may only exercise powers or take steps pursuant to Article 31(2) where it has provided the relevantAuthorised Firm beforehand with an appropriate opportunity to make representations to theRegulatory Authority in relation to the proposed steps and has given due consideration to those representations in determining the steps to be taken.(4) The requirement on theRegulatory Authority under paragraph 31(3) above shall not apply:(A) where theRegulatory Authority concludes that any delay likely to arise as a result of the requirement to allow representations contained in Article 31(3) is prejudicial to the interests of the clients or customers of theAuthorised Firm , or theFinancial System (provided in such case that theRegulatory Authority shall provide theAuthorised Firm with an opportunity to make such representations promptly after such powers have been exercised or steps taken and shall give due consideration to such representations); or(B) the powers to be exercised or steps to be taken follow a determination by theRegulatory Authority pursuant to Part 9 (Disciplinary and Enforcement Powers) or a decision by theAppeals Body orTribunal relating to or affecting theAuthorised Firm in question.Article 32 - Right to refer matters to the Appeals Body
Any decision made by the
Regulatory Authority pursuant to Articles 29 or 31 may be referred to theAppeals Body by theApplicant orAuthorised Firm to which the decision relates.Article 33 - Enforceability of agreements
(1) An agreement made in the course of carrying on aRegulated Activity by aPerson who is not anAuthorised Firm shall be unenforceable against the other party to the agreement.(2) The other party to the agreement may apply to theTribunal to recover:(A) any money paid or property transferred by him under the agreement; and(B) compensation for any loss suffered by him as a result of such payment or transfer.(3) If the other party chooses not to perform his obligations under the agreement or recovers any money paid or property transferred by him under the agreement, he shall repay any money or property received by him under the agreement.(4) Where property transferred under the agreement has been transferred to a third party, references in this Article 33 to such property shall be interpreted as references to the value of the property at the time of the transfer under the agreement.(5) If theTribunal is satisfied that:(A) thePerson referred to in Article 33(1) reasonably believed that he was not in breach of theAuthorisation requirement set out in Article 11(2) of theQFC Law , and(B) it is just and equitable in all the circumstances to do so,theTribunal may make an order declaring that the agreement referred to in Article 33(1) shall be upheld and that money and property paid or transferred under the agreement be retained, or otherwise dealt with in such way as theTribunal shall determine.