Registration Authority Registration & Licensing Handbook

Transcription

1 Registration Authority Registration & Licensing Handbook

2 CONTENTS The contents of this handbook are divided into the following chapters and sections 1. Introduction Application... 3 CHAPTER Controlled Activity Definition General Prohibition Way of Business Exemptions Definitions Contraventions Registration and Licencing Application Process Granting Licence Variation of Licence Cancellation and Withdrawal of licence Information Gathering and Investigations Enforcement CHAPTER Recognised Auditors Definition Registration Process Effect of ineligibility Register of Recognised Auditors Variation of registration Notifications Annual renewal of registration CHAPTER Communication with ADGM Fees Accounting Records Annual Returns Anti Money Laundering Registration and Licensing Handbook Page 2 of 20

3 1. Introduction Abu Dhabi Global Market (ADGM) is a broad based international financial centre for local, regional and international institutions, established in accordance with the Federal Law No (8) of 2004, Federal Decree No (15) of 2013, Cabinet Resolution No (4) of 2013, and Abu Dhabi Law No (4) of ADGM has with its own civil and commercial laws, which will offer market participants a worldclass legal system and regulatory regime. ADGM consists of three independent authorities, The Financial Services Regulator Authority, The Registration Authority and The Courts. The Registration Authority has the powers to register, license and recognise companies to operate within its jurisdiction. The Registration Authority office is located at 3rd floor, ADGM Building, Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi, United Arab emirates. 2. Application This handbook has been written to give a comprehensive guide to the registration and licensing process and requirements. It applies to every person interested in registering with ADGM as a Licenced Service Provider to carry on a controlled activity, or to be recognised as an auditor. Applicants should read this in conjunction with the Companies Regulations 2015, Companies Licensing Regulation 2015, and accompanying Rules Registration and Licensing Handbook Page 3 of 20

4 CHAPTER 1 3. Controlled Activity 3.1 Definition I. An activity is a controlled activity if it falls within a description of activity specified as controlled activity in rules made by ADGM. II. III. Such rules may specify the circumstances in which a person is to be regarded as carrying on (or purporting to carry on) a controlled activity in or from ADGM. Activities which is considered as a controlled activities are: (a) Providing Legal Service; (b) Providing Accountancy Services; (c) Insolvency Practitioner Services (d) Other Economic Activities 3.2 General Prohibition Article 1 of the Commercial Licensing Regulation s 2015 prohibits a person to carry on a controlled activity in or from ADGM, or purport to do so, unless he is a Licenced person or an exempt person. A "Licenced Person" is a person who has a valid licence (Licenced Service Providers) to carry on one or more controlled activities. 3.3 Way of Business An applicant may be granted a licence to carry on a controlled activity or activities if ADGM is satisfied that the applicant meets the conditions set out in the regulations. Conditions of licence to carry on a controlled activity: I. Applicant intending to carry on particular kinds or descriptions of controlled activity must have and maintain any required registration, authorisation, licence, approval, permission or similar status in any jurisdiction outside ADGM. Registration and Licensing Handbook Page 4 of 20

5 II. ADGM may specify a body as an approved regulatory body generally or on a case bycase basis or both. III. At all times maintain such licence or authorisation; IV. Maintain premises in ADGM; an applicant must at all times have a registered office to which all communications and notices may be addressed. V. Ensure that any obligations imposed from time to time upon him or his connected persons by or under any enactment including the Regulations and Rules and any other law applicable in /or outside ADGM to which he is subject, are complied with; VI. An applicant must put in place suitable arrangements to ensure that he will comply with the obligations referred to. 3.4 Exemptions I. ADGM may, by an exemption order, provide for specified persons; or persons falling within a specified class, to be exempt, but a person cannot be an exempt person if he has a licence to carry on a controlled activity. II. An exempt person can be (a) A body corporate established pursuant to any law or decree issued by His Highness the Ruler of the Emirate of Abu Dhabi (including ADGM Founding Law), or any Federal Law (other than Federal Law No. 8 of 1984 concerning Commercial Companies). (b) A body corporate that is a wholly owned subsidiary undertaking of a body corporate specified in paragraph (a). (c) Any person Licenced by the Abu Dhabi Economic Development Department prior to the entry into force of ADGM Founding Law (for the period of 12 Months from the date of publication of ADGM Rules). III. An exempt person is a person who is exempt from the general prohibition in relation to that activity as a result of an exemption order. Registration and Licensing Handbook Page 5 of 20

6 3.5 Definitions Legal Services "Providing legal services" means the application of legal principles or judgement with regard to the circumstances of another person, including but not limited to (a) (b) (c) (d) giving legal advice or counsel to such a person as to his legal rights or the legal rights or responsibilities of others, whether or not under the law of ADGM; drafting or completion of legal documents or agreements which affect such a person s legal rights; representation of such a person in court proceedings or in an administrative adjudicative procedure in which legal pleadings are filed or a record is established as the basis for judicial review; or negotiation of legal rights or responsibilities on behalf of such a person; but excluding acting as a lay representative authorised by an administrative agency or tribunal, serving as a judge, mediator, arbitrator, conciliator or facilitator; and participation in employment negotiations, arbitrations or conciliations Accountancy Services "Providing accountancy services" means the application of accounting principles or judgement with regard to the circumstances of another person, including but not limited to the following (a) (b) (c) performing audit, examination, verification, investigation, certification, presentation or review of financial transactions and accounting records for such a person; preparing or certifying reports on audits or examinations of books or records of account, balance sheets, and other financial, accounting and related documents for such a person; or advising such a person on matters relating to accounting procedure and the recording, presentation or certification of financial information or data, including financial information or data required by any law for the time being in force in ADGM. Registration and Licensing Handbook Page 6 of 20

7 3.5.3 Insolvency Practitioner Services "Providing insolvency practitioner services" means being appointed as or serving as in relation to a body corporate (in each case under the Insolvency Regulations 2015) (a) (b) (c) (d) (e) (f) a receiver; an administrative receiver; an administrator; an administrator of a Deed of Company Arrangement; a liquidator; or a provisional liquidator Other Economic Activities "Other economic activities" means where the applicant intends to carry on any of the following activities (a) (b) (c) (d) (e) provision of health services; rating and information services; consultancy services; supporting and assisting services; any other professional ancillary services Registration and Licensing Handbook Page 7 of 20

8 3.6 Contraventions I. If a Licenced Person carries on a controlled activity in ADGM, or purports to do so, otherwise than in accordance with a licence given, he commits a contravention and shall be liable to a fine. II. A person who is neither a Licenced Person nor, in relation to the controlled activity, an exempt person commits a contravention if he (a) describes himself (in whatever terms) as a Licenced Person (b) describes himself (in whatever terms) as an exempt person in relation to the controlled activity; or (c) holds himself out, in a manner which indicates (or which is reasonably likely to be understood as indicating) that he is a Licenced Person; or an exempt person in relation to the controlled activity. III. It is a defence for the person accused of the contravention to show that he took all reasonable precautions and exercised all due diligence to avoid committing the contravention. Registration and Licensing Handbook Page 8 of 20

9 4. Registration and Licencing The section sets out the requirements and give guidance in relation to the processes for registration, licencing and enforcement. 4.1 Application Process I. A person applying for a licence to carry on one or more controlled activities can be made by an individual; body corporate; or a partnership. II. Filing of forms and supporting documents is accepted in good faith without any need for the Registration Authority to inquire into the veracity and accuracy of every filing received. III. Applicant must complete the application to establish a presence in ADGM (LSP001) and submit it together with the required documents. IV. Responsibility for the submission of all relevant information rests with the applicant. V. On receiving the pre approval to establish presence in ADGM the applicant may then proceed with lodging application for Incorproation of legal entities and isusance of commercial license VI. Applicant may appeal to the Appeals Committee against a refusal to grant an application for registration. The Appeals Committee has jurisdiction to hear such an appeal. Applicant who provides information which is false, misleading or deceptive, or who conceals information where the concealment is likely to mislead or deceive; ADGM may in its absolute discretion refuse to grant an application for registration. Guidance In accordance to the Commercial Licensing Regulations Article 58, part 5 Business Names, an applicant must not, without the approval of ADGM, carry on business under a name that would be likely to give the impression that the business is connected with (a) the Federal Government of UAE, the Emirate of Abu Dhabi or any other member Emirate of the UAE; or any public authority; or (b) under a name consisting, similar or containing specified words, expressions or other indications that are associated with a particular type of company or form of organisation; or (c) under a name that gives misleading indication of the nature of the activities of the business as to be likely to cause harm to the public Registration and Licensing Handbook Page 9 of 20

10 4.2 Granting Licence I. Every licence granted by ADGM shall set out (a) a unique licence number; (b) the name of the Licenced person; (c) the legal status of the Licenced person; (d) authorised Signatory name (e) the address of the Licenced person in ADGM; (f) issue and expiry date of the licence II. III. The grant of a licence shall not exempt the Licenced Person from any requirement or obligation to obtain any other licence, approval, consent, permission, or authorisation or undertake any other formality or process pursuant to any other law for the time being in force in ADGM, including any Federal Law having application in ADGM. A licence shall be valid for 12 months, unless exemption given by the ADGM. IV. A Licenced person wishing to continue to carry on, in or from ADGM, the controlled activities for which it has a licence must prior to the expiry of such licence apply for and obtain a new licence in respect of such activities. 4.3 Variation of Licence I. ADGM may, on the request of a Licenced Person, vary the licence granted by (a) adding a controlled activity to those to which the licence relates; (b) removing a controlled activity from those to which the licence relates; or (c) varying the description of a controlled activity to which the licence relates. (d) cancel the licence. II. If ADGM grant an application it must give the applicant a written notice stating the date from which the licence, variation, cancellation or requirement has effect. III. ADGM may exercise its power if it appears that a Licence Person (a) is failing, or is likely to fail, to satisfy the conditions of licence applicable to him; Registration and Licensing Handbook Page 10 of 20

11 (b) has failed, during a period of at least 12 months, to carry on a controlled activity to which the licence relates; or (c) if it appears to it that it is desirable to do so in the interests of ADGM. IV. A Licenced Person may withdraw the application for variation of licence, by giving a written notice, at any time before decision is taken. 4.4 Cancellation and Withdrawal of licence I. If ADGM proposes to cancel a Licenced Person licence otherwise than at the person request, it must give a warning notice. II. III. IV. If ADGM decides to cancel a Licenced Person licence otherwise than at the person request, it must give a decision notice. If a Licenced Person licence is cancelled; and as a result, there is no controlled activity for which he has a licence ADGM will give direction to withdraw that person status as a Licenced Person. A Licenced Person who is aggrieved may refer the matter to the court. 4.5 Information Gathering and Investigations I. ADGM may, by notice in writing given to a Licenced Person, or an officer who has written authorisation from ADGM, require Licenced Person to provide information or documents of a specified description; II. III. The information or documents must be provided or produced before the end of such reasonable period as may be specified; and at such place as may be specified. If it appears to ADGM that there are circumstances suggesting that a person may have committed a contravention of any enactment or subordinate legislation, it may appoint one or more competent persons to conduct an investigation on its behalf into (a) the nature, conduct or state of the business of a Licenced Person; (b) a particular aspect of that business; or (c) the ownership or control of a Licenced Person Registration and Licensing Handbook Page 11 of 20

12 4.6 Enforcement I. If a Licenced Person has committed a contravention of an enactment or subordinate legislation, ADGM may impose on him a fine, in respect of the contravention, of such amount as it considers appropriate. II. If a Licenced Person has contravened a relevant requirement imposed on the person, ADGM may suspend, for such period as it considers appropriate, any licence which the person has to carry on a controlled activity; or impose, for such period as it considers appropriate, such limitations or other restrictions in relation to the carrying on of a controlled activity by the person as it considers appropriate. Registration and Licensing Handbook Page 12 of 20

13 CHAPTER 2 1. Recognised Auditors 1.1 Definition A Licenced Person performing audit activities in ADGM will be required to register as a recognised auditor ; to secure that only person who is properly supervised and appropriately qualified is appointed as auditor, and that audits are carried out properly, with integrity and independence. recognised auditor means a Licenced Person that is registered by ADGM to perform audit; 1.2 Registration Process The section gives guidance in relation to the process for registration and recognition of auditors. I. Licenced Person performing audit services must be registered with ADGM as recognised auditor. II. ADGM will provide an application, which will need to be completed and accompanied by documents as ADGM may require. III. An application for registering as a recognised auditor will be accepted subject to (a) (b) applicant is a member of a recognised professional body which offers a professional qualification in accountancy; has the power to subject its members to disciplinary proceedings; has no fewer than 25,000 member; and operates in one or more jurisdictions where accountancy services are delivered to internationally recognised standards; satisfies any additional qualification requirements prescribed by rules made by ADGM IV. Application fee to be paid to ADGM. An applicant who provides information which is false, misleading or deceptive, or who conceals information where the concealment is likely to mislead or deceive; ADGM may in its absolute discretion refuse to grant an application for registration. Registration and Licensing Handbook Page 13 of 20

14 1.3 Effect of ineligibility I. A person who is not a recognised auditor must not (a) accept appointment or act as auditor, or (b) describe himself or hold himself out in any manner, or use any name, which indicates or may reasonably be understood to indicate that he is a recognised auditor. II. at any time a recognised auditor becomes ineligible for appointment as an auditor or whose name is removed from the Register, must immediately (a) resign with immediate effect, and (b) give notice in writing to the audited person that he has resigned by reason of his becoming ineligible for appointment. III. ADGM may require a recognised professional body to notify it immediately of the occurrence of such events as it may specify in writing and to give such information in respect of those events as specified. IV. A person who commits the contravention or fails to give the notice shall be liable to a fine. V. In proceedings against a person for any contravention it is a defence for him to show that he did not know and had no reason to believe that he was, or had become, ineligible for appointment as an auditor. 1.4 Register of Recognised Auditors I. ADGM shall establish and maintain a Register of recognised auditors in which there shall be entered all eligible auditors for appointment. II. The register shall contain the following particulars (a) name of the recognised auditor; (b) business address of the recognised auditor; (c) date when the recognised auditor was registered; (d) name of all responsible individuals and eligible to perform audit; (e) date when any current responsible individual was first entered on the register; (f) name of the recognised professional body responsible individual is a member of III. The register shall be available for public inspection in visible and legible form on ADGM website. Registration and Licensing Handbook Page 14 of 20

15 1.5 Variation of registration I. ADGM may at any time (a) withdraw or suspend the registration of recognised auditors; (b) make the registration subject to conditions or further conditions; or (c) vary or withdraw any condition II. In order to be withdrawn from the register; a recognised auditor must notify ADGM in writing of the intention to deregister, including details of any information material to the deregistration. 1.6 Notifications A recognised auditor must notify ADGM immediately in writing accompanied by such information and documents as ADGM may reasonably require, of any the following (a) the recognised auditor ceasing to be eligible to be entered on the register; (b) the termination of the appointment of any responsible individual or any responsible individual ceasing to be eligible to hold that role in respect of the recognised auditor; (c) a recognised professional body initiating an investigation against any responsible individual that results in an adverse finding; (d) any reasonable grounds it has for suspecting that it or a responsible individual has contravened the law of ADGM Regulations. Registration and Licensing Handbook Page 15 of 20

16 1.7 Annual renewal of registration I. A recognised auditor shall apply to renew his registration at the commencement of each calendar year, in such form as may be specified by ADGM and by paying the determined fees. II. An application for renewal (a) shall state that the recognised auditor confirms that the information provided in the original evaluation form is still correct; (c) if the information has changed shall give full particulars of any change of that information or circumstances; (d) ADGM may require additional information be provided which is relevant to determining whether the auditor is still eligible for entry on the Register III. IV. A recognised auditor who fails to apply to renew his registration shall be removed from the Register, provided that the Registrar has given the recognised auditor notice of the intention to strike off. Upon renewing a registration (and at any time thereafter) ADGM may impose, and subsequently vary or withdraw, such conditions in respect of the registration as it thinks fit. Registration and Licensing Handbook Page 16 of 20

17 CHAPTER 3 1. Communication with ADGM A company must at all times have a registered office in the ADGM to which all communications and notices may be addressed. Any communication; or documents delivered, in any form or manner, to the ADGM is in English language. Company can choose to register via three channels (a) (b) (c) Online registration will be the preferred method of registration for ADGM. Paper based registration will also be offered, however it s associated with additional processing fees. Third party agent who will be tasked with representing their client and complete the registration. Registration and Licensing Handbook Page 17 of 20

18 2. Fees ADGM will charge a fee for initial registration and annual fee for renewal. Where a fee is payable for any application to ADGM, the application will not be regarded as submitted until the fee has been paid in full. Any reference to dollars ($) is a reference to United States Dollars. Licenced Person Initial Registration Fee Application to establish presence in ADGM $300 Application for reserving a name $200 Application for registration of a company/ partnership $1,500 Issuance of commercial license $4,000 Business Activity fee (Up to 10 business activities) $4,000 Total $10,000 Licenced Person Annual Renewal Fee Renewal of commercial license $4,000 Renewal of business activity fee (Up to 10 business activities) $4,000 Annual Return (reporting requirement) $100 Total $8,100 Recognised Auditor Annual Fee Fee Registration of auditors $1,200 Total $1,200 Registration and Licensing Handbook Page 18 of 20

19 3. Accounting Records A person must prepare accounts for each of its financial year unless exempt from that requirement. I. A person must keep adequate accounting records that are sufficient and comply with the requirements of ADGM. II. III. If a person fails to comply with any provision to its duty to keep accounting records, a contravention is committed by every officer of the company who is in default. A person who commits the contravention shall be liable to a fine. IV. A person does not commit the contravention referred to if he shows that he acted honestly and that in the circumstances in which the company s business was carried on the default was excusable. V. Accounting records must be kept at a person s registered office or such other place as the directors think fit, and must at all times be open to inspection by the company s officers, and must be preserved by it for ten years from the date on which they are made. 4. Annual Returns I. A person must deliver to ADGM successive annual returns each of which is made up to the anniversary of the company s incorporation within 28 days after the date on which it is made up. II. III. IV. If a person fails to deliver an annual return before the end of the period of 28 days after a return date, an offence is committed by the company and every director /officer of the company who is in default. The contravention continues until such time as an annual return made up to that return date is delivered by the company to ADGM. A person who commits a contravention of this subsection is liable to a fine. V. It is a defence for a person charged with an offence to prove that he took all reasonable steps to avoid the commission or continuation of the offence. Registration and Licensing Handbook Page 19 of 20

20 5. Anti Money Laundering I. A person must establish and maintain systems and controls to obtain and make appropriate use of any recommendations, guidance, resolutions, sanctions, notices issued by: (a) the government of the U.A.E. or any government departments in the U.A.E.; (b) the Central Bank of the U.A.E. or the AMLSCU; (c) the Financial Action Task Force (FATF); and (d) ADGM; II. III. IV. A person should exercise due care to ensure that he does not provide any service to a person engaged in money laundering or terrorist financing. A person must establish effective systems and controls reporting, training and awareness to comply with relevant guidance; resolutions or sanctions. A person should adopt a risk based approach for customer identification and verification process. V. Suspicious Transaction Report to be made when there is knowledge or suspicion of money laundering. Effective Know Your Customer arrangements may provide the basis for recognising unusual and suspicious transactions. VI. ADGM will from time to time (a) review the guidance in light of changing money laundering legislation issued by the U.A.E. Central Bank, money laundering trends and techniques and according to international standards; (b) provide such other guidance as it deems appropriate regarding customer identification obligations; (c) expect that registered and licenced companies will take these changes into account by amending, as appropriate, its policies, procedures, systems and controls Registration and Licensing Handbook Page 20 of 20