158. Application and interpretation of Part 14

(1) In this Part, a reference to a Company includes a reference to a Recognised Company, except where expressly provided otherwise.

(2) In this Part, a reference to a Regulated Entity is a reference to a Company or to any other entity that is was registered, incorporated or otherwise formed under Legislation Administered by the Registrar, and includes, for example, any of the following entities:

1. (a) a General Partnership or Recognised Partnership under the AIFC General Partnership Regulations;
2. (b) an Incorporated Organisation under the AIFC Non-profit Incorporated Organisations Regulations;
3. (c) a Limited Liability Partnership or Recognised Limited Liability Partnership under the AIFC Limited Liability Partnership Regulations;
4. (d) a Limited Partnership or Recognised Limited Partnership under the AIFC Limited Partnership Regulations.

(3) In this Part, a reference to a Regulated Relevant Person for a Regulated Entity is a reference to:

1. (a) a Person who is a director, officer, partner, member, employee, or agent, (however described) of the Regulated Entity;
2. (b) an Auditor, or former auditor, of the Regulated Entity; or
3. (c) any other Person who is concerned in any way with the Regulated Entity’s management.

(4) In the application of subsection (3) to a Regulated Entity that is a Company:

1. (a) a reference to a director includes a reference to a Director (as defined in Schedule1);
2. (b) a reference to an employee includes a reference to an Employee (as defined in Schedule 1).

(5) Without limiting the powers available to the Registrar of Companies, the Registrar may exercise any power given to the Registrar under these Regulations, the Rules, or any other Legislation Administered by the Registrar, in relation to an entity that has ceased to be a Regulated Entity, or in relation to any Person who was a Regulated Relevant Person for a Regulated Entity or an entity that has ceased to be a Regulated Entity, within 3 years after the day the Registrar becomes aware of an act or omission that gives rise to the right to exercise the power.

(6) For this section, the Registrar of Companies becomes aware of an act or omission in relation to a Contravention if the Registrar has information from which the Contravention can reasonably be inferred.

159. Appointment of Inspectors

(1) The Registrar of Companies may appoint a Person as an inspector to investigate and report on the affairs of a Regulated Entity (the relevant Regulated Entity), if the Registrar considers it necessary or desirable to do so in pursuit the Registrar’s Objectives.

(2) The Person appointed as an Inspector may, with the consent of the Registrar of Companies, also investigate and report on the affairs of another Regulated Entity that, in the Registrar’s opinion, is or was related to the relevant Regulated Entity.

(3) The Registrar of Companies may also appoint a Person as an Inspector to investigate and report on an alleged Contravention of these Regulations.

(4) Any of the following Persons, without limitation, may be appointed as an Inspector under this Part:

• (a) an officer or employee of the office of the Registrar;
• (b) an officer or employee of any other division, department or office (however described) of the AFSA; or
• (c) an independent third party.

(5) To remove any doubt, the powers of investigation set out in the Part are, in the first instance, vested in the Registrar of Companies and nothing in this Part limits the authority of the Registrar of Companies to exercise such powers.

160. Powers of Inspectors to obtain information and Documents etc.

(1) If an Inspector considers that a Person may be able to give information or produce a Document that is or may be relevant to the investigation for which the Inspector was appointed (including any investigation under section 159(2) (Appointment of Inspectors), the Inspector may do any of the following:

1. (a) enter the business premises of the Person during normal business hours for the purpose of inspecting, obtaining and copying information or Documents, in any form, on the premises;
2. (b) require the Person to produce, or arrange for the production of, any books, Records or other Documents in the Person’s custody or power relating to the investigation;
3. (c) require the Person to give, or arrange for the giving of, specified information relating to the investigation;
4. (d) require the Person to attend before the Inspector at a specified time and place (but on reasonable notice) and to answer all questions put to the Person by or on behalf of the Inspector relating to the investigation (a compulsory interview);
5. (e) require the Person to give reasonable assistance of any other kind to the Inspector in connection with the investigation.

(2) The Inspector may, for the exercise of powers under subsection (1)(a) in relation to premises:

1. (a) require any appropriate Person to make available any relevant information or Documents, in any form, on the premises for inspection or copying; and
2. (b) require any appropriate Person to convert any relevant information or Documents on the premises into a form capable of being copied; and
3. (c) use the facilities of the occupier of the premises, free of charge, to make copies.

(3) If the Inspector requires a Person (the interviewee) to attend a compulsory interview under subsection (1)(d), the Inspector may give directions:

1. (a) about who may be present at the compulsory interview, including a direction requiring the interviewee to answers questions put to the interviewee in private; and
2. (b) preventing any Person present during any part of the compulsory interview from disclosing to any other Person any information provided to the interviewee or questions asked by or on behalf of the Inspector during the compulsory interview; and
3. (c) about the conduct of any Person present at the compulsory interview, including about how the Person must participate in the interview; and
4. (d) requiring the interviewee to swear an oath or give an affirmation that the answers of the interviewee will be true; and
5. (e) requiring the interviewee to answer any questions relevant to the investigation; and
6. (f) requiring the interview to be audio or video recorded.

(4) If an Inspector has reasonable grounds to suspect that a Regulated Relevant Person for a Regulated Entity the subject of the investigation maintains or has maintained a bank account of any description, whether alone or jointly with another Person, into or out of which has been paid amounts that are in any way related to the affairs of the Regulated Entity, the Inspector may require the Person to obtain and produce all books and Records in the Person’s custody or power relating to the bank account.

(5) If an Inspector makes a requirement of, or gives a direction to, a Person under this section, the Person must comply with the requirement.

(6) A Person required under this section to answer a question that is put to the Person by or on behalf of an Inspector must not, knowingly or recklessly:

1. (a) make a statement, or give information, (whether orally, in a Document or in any other way) that is false or misleading in a material particular; or
2. (b) withhold any information if withholding the information makes any information given by the Person false or misleading in a material particular or likely to mislead or deceive the Inspector.

(7) An Inspector may exercise any of the powers under this section in respect of any Person within, or outside of, the AIFC. However, if the Person is outside the AIFC, the Inspector must either:

1. (a) use any arrangements with a relevant authority in the jurisdiction in which the Person is resident or domiciled, or the premises are located, to assist it to exercise the power; or
2. (b) apply to the Court for an order compelling the Person to give or arrange for the giving of information, to produce or arrange for the production of Documents, to answer questions or to permit the Inspector or any Person assisting the Inspector to enter premises of the Person and exercise any powers on or in relation to the premises.

(8) Contravention of subsection (5) or (6) is punishable by a fine.

161. Use and effect of information and Documents obtained for investigations

(1) Information or a Document given, produced or obtained because of the exercise by an Inspector of powers under section 160 (Powers of Inspectors to obtain information and Documents etc.) is admissible in evidence in any proceedings, if the information or Document complies with any requirements relating to the admissibility of evidence in the proceedings.

(2) A requirement under section 160 to give, produce, or arrange for the giving or production of, information or a Document does not apply if the information or a Document is subject to legal professional privilege.

(2-1) Where information or a Document has not been produced to an Inspector on the grounds that it is subject to legal professional privilege and the Inspector disputes this claim, the Inspector may make an application to the Court for an order to produce that information or Document.

(3) An Inspector must not disclose a statement made by a Person in answer to any question asked under section 160 to any law enforcement agency for the purpose of criminal proceedings against the Person unless:

1. (a) the Person consents to the disclosure; or
2. (b) the Inspector is required by law or court order to disclose the statement.

(4) An Inspector may retain possession of any information and Document obtained under section 160 for so long as is necessary:

1. (a) for the purposes of the relevant investigation; or
2. (b) for a decision to be made about whether or not a proceeding to which the information or Document may be relevant should be commenced; or
3. (c) for a proceeding mentioned in paragraph (b) to be finally completed.

(5) A Person is not entitled to claim a lien on a Document as a basis for Failing to comply with a requirement under section 160, but any lien is not otherwise prejudiced.

(6) If a Person is unable to produce information or a Document in compliance with a requirement made by an Inspector under section 160, the Inspector may require the Person to state, to the best of the Person’s knowledge or belief, where the information or Document may be found and who last had possession, custody or control of the information or Document.

(7) If an Inspector considers that, if disclosed, the fact of the issuing of a notice requiring a Person to do anything under section 160, may hinder an investigation, the Inspector may direct the Person not to disclose any information about the notice or the Person’s compliance with it to any other Person, other than the first Person’s legal representative under a duty of confidentiality.

(8) A Person is entitled to legal representation during the course of an investigation.

162. Obstructing or hindering Inspectors

(1) A Person must not, without reasonable excuse, engage in conduct intended to obstruct or hinder an Inspector in the Exercise of any Functions under sections 160 (Powers of Inspectors to obtain information and Documents etc.) and 161 (Use and effect of information and Documents obtained for investigations) or any other provision of these Regulations, or under the Rules or any other Legislation Administered by the Registrar, including, for example, by engaging in any of the following conduct:

1. (a) destroying or concealing a Document;
2. (b) Failing to give or produce information or a Document required by the Inspector;
3. (c) Failing to attend before the Inspector at a specified time and place to answer questions;
4. (d) making a statement, or giving information, (whether orally, in a Document or in any other way) that is false or misleading in a material particular;
5. (e) Failing to give any assistance in relation to an investigation that the Person is required and able to give;
6. (f) Failing to comply with any other requirement made of the Person, or any direction given to the Person, by the Inspector under these Regulations.

(2) If a Person Fails to comply with a requirement or direction of an Inspector (whether under section 160 or 161 or otherwise), the Inspector may certify the Failure in Writing to the Court. The Court may inquire into the matter and make the orders that it considers appropriate.

(3) Contravention of subsection (1) is punishable by a fine.

163. Inspectors’ reports

(1) At the conclusion of an Inspector’s investigation, the Inspector must give the Registrar of Companies a Written report on the investigation, in the form and covering the matters that the Registrar may require.

(2) An Inspector must make the interim reports (if any) to the Registrar of Companies that the Registrar may require.

(3) If the Registrar of Companies receives a report from an Inspector, the Registrar may do any 1 or more of the following:

• (a) provide a copy of the report, or any part of the report, to any Regulated Entity to which the report relates, with or without a direction that it be disclosed to any shareholders, members, partners or any other Persons stated in the direction;
• (b) provide a copy of the report, or any part of the report, to any Person whose financial interests may have been affected by the matters dealt with in the report;
• (c) publish the report, or any part of the report, in the way the Registrar considers appropriate.

164. Application to Court by Registrar of Companies

(1) The Registrar of Companies may apply to the Court for an order under this section if, from any report made or information or Document obtained under this Part the Registrar considers that:

• (a) a Regulated Entity’s affairs are being, or have been, conducted in a way that is:

(i) Contravenes these Regulations; or

(ii) unfairly prejudicial to the interests of the Regulated Entity’s shareholders, members or partners generally or of any of its shareholders, member or partners or to any other Person or class of Persons with an interest in the Regulated Entity or its affairs; or

• (b) an actual or proposed act of a Regulated Entity (including an act or omission on its behalf) Contravenes or would Contravene, these Regulation or is, or would be, so unfairly prejudicial.

(2) If the Court is satisfied that an application by the Registrar of Companies under subsection (1)is well founded, the Court may make the order that it considers appropriate for giving relief in respect of the matters complained of.