Part 5: Part 5: Authorisation Requirements and Process
Article 27 - Application(1) An
Applicationfor an Authorisationmay be made to the Regulatory Authorityby:(C) a body corporate;(D) a partnership; or(E) an unincorporated association.(2) Authorisationconstitutes an approval, authorisation or licence for the purposes of Article 11(2) of the QFC Law.(3) An Authorised Firmmay apply to the Regulatory Authorityto vary its Authorisation. A variation may include:(A) extending an Authorised Firm's Authorisationto include Regulated Activitiesother than those in respect of which it already has an Authorisation;(B) varying conditions restrictions or requirements imposed on its Authorisationin accordance with Article 29(1) or 31(2); or(C) withdrawing its Authorisationin respect of one or more Regulated Activities.(4) The Applicantfor an Authorisation, variation of an Authorisationor withdrawal of Authorisationas a whole may withdraw its Applicationby giving the Regulatory Authoritynotice at any time before the Regulatory Authoritydetermines the Application. Amended by QFC Reg 2010-2 (as from 9th December 2010)
Article 28 - Form and content of Application(1) An
Applicationfor an Authorisationor variation or withdrawal of an Authorisationshall be in such form and contain such information as may be prescribed by the Regulatory Authorityfrom time to time.(2) The Regulatory Authoritymay 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 already issued or completed by the Applicant;(B) such information is not necessary in the light of any registration or authorisation the Applicantmay have in a jurisdiction outside the QFC; or(C) such information is not considered by the Regulatory Authorityto be relevant in the context of any particular Application.(3) The Regulatory Authoritymay require the Applicantto provide further information which the Regulatory Authorityreasonably requires to be able to decide whether to approve an Applicationto which Article 28 relates.(4) If at any time between the making of the Applicationand the grant of the Authorisation, variation or, as the case may be, withdrawal, the Applicantor the signatories to the relevant Applicationbecome(s) aware of a material change which is reasonably likely to be relevant to the Applicationunder consideration by the Regulatory Authority, the Applicantor signatories (as the case may be) shall inform the Regulatory Authorityof 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) The
Regulatory Authoritymay:(A) grant an Applicationfor an Authorisation, variation or withdrawal of an Authorisationeither without conditions, restrictions or requirements or with such conditions, restrictions or requirements as it considers appropriate; or(B) reject the Application.(2) The Regulatory Authoritymay make Rulessetting out the criteria which an Applicationfor an Authorisation, or for variation or withdrawal of an Authorisation, must satisfy before an Applicationcan be granted by the Regulatory Authority. Such criteria shall include requirements (as appropriate) relating to:(A) the fitness and propriety of an Applicanthaving regard to all the circumstances, including his connection with any Person, the nature of any Regulated Activitythat 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 an Applicantmust adopt;(C) the resources of the Applicant, whether financial or otherwise;(D) the Applicant'ssystems and controls;(E) the location of the Applicant'soffices;(F) in the case of an Applicationfor a withdrawal, the interests of the clients or customers of the Authorised Firm, and the effective supervision of the Financial System; and(G) the Regulatory Authority'sability to effectively supervise the Applicantor Authorised Firm.(3) In considering an Applicationfor an Authorisationor to vary or withdraw an Authorisation, the Regulatory Authoritymay have regard to any person appearing to it to be, or likely to be, in a contractual relationship with the Applicantor connected with the Applicant.(4) An Authorisationor variation of an Authorisationmay only be granted if the Applicantis at the time the Applicationis granted or immediately thereafter, a QFC Entity, or otherwise has registered a place of business in the QFCwith the CROand has a Licenceissued by or on behalf of the QFCA.(5) Without limitation to Article 29(2)(G), if the Applicanthas Close Linkswith another Person, the Regulatory Authoritymust be satisfied in considering an Applicationfor Authorisationor variation of an Authorisation:(A) that those links are not likely to prevent the Regulatory Authority'seffective supervision of the Applicant; and(B) if it appears to the Regulatory Authoritythat such other Personis subject to the laws, regulations or administrative provisions of a jurisdiction outside the QFC, that neither those provisions, nor any deficiency in their enforcement, would prevent the Regulatory Authority'seffective supervision of the Applicant.(6) Where the Regulatory Authority:(A) grants an Applicationfor Authorisationor variation or withdrawal of an Authorisation, the Regulatory Authoritymust notify the Applicantaccordingly; or(B) rejects an Applicationfor Authorisationor variation or withdrawal of an Authorisation, the Regulatory Authorityshall promptly inform the Applicantin writing of such refusal and, where requested by the Applicant, the reasons for such refusal, and of the Applicant'sright to appeal that decision to the Appeals Body.(7) Where the Regulatory Authoritygrants an Applicationfor Authorisationor variation of an Authorisation, it must also notify the Applicantof the Regulated Activityor Regulated Activitiesthat may be carried out following such grant (and of any restriction, condition or requirement imposed on the Applicant) in a format which the Regulatory Authorityconsiders appropriate.
Article 30 - Status of Authorisation(1) An
Authorisationgranted pursuant to this Part is not transferable.(2) If the Authorised Firmis a partnership or an unincorporated association:(A) it is authorised to carry on the Regulated Activitiesconcerned in the name of the partnership or unincorporated association; and(B) its Authorisationis 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 of Controllersand changes of control contained in Part 6.
Article 31 - Own initiative action by the Regulatory Authority(1) The
Regulatory Authoritymay 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 the Regulatory Objectives, including where it is satisfied that:(A) an Authorised Firmis failing, or is likely to fail, to satisfy the criteria referred to in Articles 29 (2)-(5) (Grant or Rejection of Applications for Authorisation, variation or withdrawal);(B) an Authorised Firmhas failed, during a period of at least 12 months, to carry on a Regulated Activityfor which it has an Authorisation;(C) it is desirable to take such steps to exercise such power in order to protect the interests of clients or customers of an Authorised Firmor the Financial System;(D) an Authorised Firmis in breach of, or has been, in breach of one or more conditions, restrictions or requirements applicable to its Authorisation;(E) an Authorised Firmis (or has been) otherwise in breach of the QFC Law, these Regulationsor any Rulesor other relevant legislation;(F) an Authorised Firmis in breach of a requirement under Part 6 ( Controllers); or(G) a request has been received from an Overseas Regulatorin 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 the Authorised Firm, to:(A) impose or vary such conditions, restrictions and requirements on an Authorisationas the Regulatory Authorityshall consider appropriate;(B) require a Personspecified in the condition, restriction or requirement to take or refrain from taking such action as the Regulatory Authorityconsiders appropriate; or(C) withdraw the Authorised Firm's Authorisationor vary its Authorisationto remove one or more Regulated Activities.(3) Subject to Article 31(4), the Regulatory Authoritymay only exercise powers or take steps pursuant to Article 31(2) where it has provided the relevant Authorised Firmbeforehand with an appropriate opportunity to make representations to the Regulatory Authorityin relation to the proposed steps and has given due consideration to those representations in determining the steps to be taken.(4) The requirement on the Regulatory Authorityunder paragraph 31(3) above shall not apply:(A) where the Regulatory Authorityconcludes 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 the Authorised Firm, or the Financial System(provided in such case that the Regulatory Authorityshall provide the Authorised Firmwith 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 the Regulatory Authoritypursuant to Part 9 (Disciplinary and Enforcement Powers) or a decision by the Appeals Bodyor Tribunalrelating to or affecting the Authorised Firmin question.
Article 32 - Right to refer matters to the Appeals Body
Article 33 - Enforceability of agreements(1) An agreement made in the course of carrying on a
Regulated Activityby a Personwho is not an Authorised Firmshall be unenforceable against the other party to the agreement.(2) The other party to the agreement may apply to the Tribunalto 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 the Tribunalis satisfied that:(A) the Personreferred to in Article 33(1) reasonably believed that he was not in breach of the Authorisationrequirement set out in Article 11(2) of the QFC Law, and(B) it is just and equitable in all the circumstances to do so,the Tribunalmay 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 the Tribunalshall determine.