Part 8: Part 8: Supervision and Investigations
Article 48 - Powers to obtain documents and information(1) The
Regulatory Authoritymay require the production by a Personin the QFCor (subject to Article 48(2)) elsewhere of:(A) specified information or information of a specified description; and/or(B) specified documents or documents of a specified description,within such timetable and in such form and manner as the Regulated Authoritymay reasonably require.(2) The Tribunalmay on application by the Regulatory Authorityorder that the Regulatory Authoritymay make a requirement under Article 48(1) in respect of a Personoutside the QFC(whether in the Stateor otherwise). The Regulatory Authoritymay request the appropriate Overseas Regulatorto assist in exercising the power under Article 48(1) in respect of any such Person.(3) The Regulatory Authoritymay enter the premises of any Personin the QFCat any time for the purpose of inspecting and copying information or documents stored in any form on such premises.(4) The Personto which Article 48(1) or (3) relates must give the Regulatory Authorityall such assistance as the Regulatory Authoritymay reasonably require.
Article 49 - Reports(1) The
Regulatory Authoritymay, by notice in writing given to a Personrequire the production to the Regulatory Authorityof a report by a Nominated Personon any matter about which the Regulatory Authorityhas required or could require the provision of information or production of documents under Article 48.(2) The Regulatory Authoritymay require any such report to be in such form as may be specified in the notice.(3) The Nominated Personappointed to make any report required by Article 49(1) must be nominated or approved by the Regulatory Authority.(4) Where a report under Article 49 has been required, the Personto whom a notice has been given under Article 49(1) must give the Personor Personsappointed to make the report all such assistance as that Personmay reasonably require.(5) The obligation in Article 49(4) is enforceable on application by the Regulatory Authorityto the Tribunal.(6) The costs of providing a report under Article 49 shall be borne by the Personto whom a notice has been given under Article 49(1).
Article 50 - Appointment of Investigators(1) If it appears to the
Regulatory Authoritythat there may have been, may be or may about to be a Contraventionof a Relevant Requirementor there is any other good reason for doing so, the Regulatory Authoritymay appoint an employee of the authority or another competent Person(an Investigator) to conduct an investigation and report to it.(2) The Regulatory Authoritymust give written notice of the appointment of an Investigatorto all Personssubject to investigation, unless it believes that giving such notice would risk frustrating the investigation in a material way. Any such notice must specify the purpose of the investigation.(3) A Personunder investigation is entitled to legal representation during the course of an investigation under Article 50.(4) The Regulatory Authorityshall pay the costs and expenses of an investigation save that, where, as a result of an investigation under Article 50, the Personunder investigation is found to have contravened a Relevant Requirement, the Regulatory Authorityor, where appropriate, the Appeals Bodyor Tribunal, may order that the Personmust pay the Regulatory Authorityin respect of the whole or any part of the costs and expenses of the investigation. Amended by QFC Reg 2010-2 (as from 9th December 2010)
Article 51 - Investigation of Companies, LLPs and branches(1) In relation to any
Companyincorporated or branch registered under the Companies Regulationsand any LLPincorporated under the LLP Regulations, the Regulatory Authoritymay also appoint Investigatorsunder Article 50 if:(A) in the case of a Company, the Companyhas, or the members of the Companyholding not less than ten per cent in nominal value of the issue of share capital of the company have requested the Regulatory Authorityin writing (setting out the reasons for the request) to do so; or(B) the Regulatory Authorityconsiders that there are circumstances suggesting that:(i) the affairs of the Company, branch or LLPare being or have been conducted with intent to defraud the creditors of the company or of any other Person, or otherwise for a fraudulent or unlawful purpose, or in a manner unfairly prejudicial to some part of its members;(ii) any actual or proposed act or omission by or on behalf of the Company, branch or LLPis or could be prejudicial to some part of its members;(iii) any Personconcerned with the formation or management of the Company, branch or LLPor its affairs has in connection therewith been guilty of fraud, misfeasance or other misconduct toward it or towards its members;(iv) the members of the Company, branch or LLP(or any of them) have not been given all the information with respect to its affairs to which they are entitled or which they might reasonably expect; or(v) the Companyhas been carrying on in or from the QFCa business which it is not permitted to be carried on in the QFC.(2) Investigatorsappointed to investigate the affairs of a Company, branch or LLPmay also investigate and report on the affairs of another Entitywhich is or has been the Subsidiaryof the Company, LLPor Entitywhich has registered a branch under the Companies Regulationsor a Subsidiaryof any of its Parent Entities, if they consider it necessary for the purposes of their investigation. Amended by QFC Reg 2010-2 (as from 9th December 2010)
Article 52 - Investigations - duties and powers(1) An
Investigatormust, unless the investigation is discontinued for any reason, make a written report of his investigation to the Regulatory Authority.(2) In support of an investigation, the Regulatory Authorityor an Investigatormay require, by written notice, any Person:(A) to attend before the Investigatorat a specified time and place and to answer questions;(B) to produce at a specified time and place any specified document or documents of a specified description; and/or(C) provide such information or assistance as the Investigatormay require and the Personis able to give.(3) The Regulatory Authorityor an Investigatormay require the relevant Personto give such information or produce such documents within such reasonable time period and/or at such a specified place as detailed in the written notice.(4) Where the Regulatory Authorityis conducting an investigation under Article 50 or 51 and has reasonable grounds for believing that an Approved Individualmay have engaged in conduct that would form grounds for the withdrawal or variation of that Approved Individual'sstatus, it may, upon written notice to both the Approved Individualand the relevant Authorised Firm, suspend or vary that individual's approved status for the duration of the investigation and/or and related proceedings insofar as such investigation or proceedings relate to that individual.(5) Where the Regulatory Authorityis conducting an investigation into a Personunder Article 50 or 51, it may apply to the Tribunalfor an order that all or any of the assets, books and records of the Personbe preserved and not moved or otherwise dealt with. Amended by QFC Reg 2010-2 (as from 9th December 2010)
Article 53 - Admissibility
A statement made, information given or documents produced in compliance with a request under this Part shall be admissible in evidence in any proceedings, provided it also complies with any requirements governing the admissibility of evidence in the relevant proceedings.
Article 54 - The role of the Tribunal in investigations(1) The
Regulatory Authoritymay apply to the Tribunalto assist in the enforcement of the Regulatory Authority'spowers in this Part 8.(2) The Tribunalshall provide such assistance as it considers appropriate in the circumstances and in accordance with its powers, including the imposition of financial penalties for contraventions in accordance with these Regulationsand the issue of search orders and orders for the seizure of documents and/or information.
Article 55 - Self incrimination(1) Subject to Article 56, it is not a reasonable excuse for a
Personto refuse or fail to:(A) permit the inspection or copying of any information or document;(B) produce, or disclose, or procure the production or disclosure of, any information or document; or(C) answer questions;pursuant to any requirement under this Part, on the grounds that any such information or document or answer, as the case may be, might tend to incriminate the Personor make the Personliable to a financial penalty.
Article 56 - Protected Items(1) A
Personmay not be required under these Regulationsto produce, disclose or permit the inspection of Protected Items.(2) A communication or item is not a Protected Itemif it is held with the intention of furthering a criminal purpose.
Article 57 - Obstruction of the Regulatory Authority
Personmust not do, or fail to do, anything that obstructs, or is intended to obstruct, the Regulatory Authorityin the Exerciseof its Functions.
Examples1 destruction of documents2 failure to give or produce information or documents3 failure to attend and answer questions4 giving false or misleading information5 failure to give assistance in relation to an investigation
Amended by QFC Reg 2010-2 (as from 9th December 2010)