5.1. Transfer of incorporation to AIFC

5.1.1. An application by a Foreign Company to the Registrar of Companies under section 151 (Transfer of incorporation to AIFC) of the AIFC Companies Regulations for the continuation of the Foreign Company as a Company must be accompanied by thefollowing:

• (a) a copy of the Foreign Company’s current certificate of incorporation or registration in the jurisdiction in which it is incorporated (the relevant jurisdiction), or a Document of similar effect, certified by the relevant authority in the relevant jurisdiction;
• (b) a copy of the Foreign Company’s current constitution certified as a true copy by a Secretary or Director of the Foreign Company;
• (c) evidence satisfactory to the Registrar that the Foreign Company is authorised by the laws of the relevant jurisdiction to be continued under the laws of another jurisdiction and that it has complied with all the relevant requirements under the laws of the relevant jurisdiction;
• (d) evidence satisfactory to the Registrar that all necessary consents in the relevant jurisdiction have been obtained and certified by the relevant authorities of that jurisdiction;
• (e) a copy of the Foreign Company’s most recent accounts filed, if applicable, with the relevant authority in the relevant jurisdiction;
• (f) a copy of the Foreign Company’s certificate of good standing, or a Document of similar effect, issued by the relevant authority in the relevant jurisdiction;
• (g) if the Foreign Company is subject to the supervision of a Financial Services Regulator in the relevant jurisdiction or any other jurisdiction and the Financial Services Regulator supports the Foreign Company being registered as a Recognised Company—any Document of support provided by the Financial services Regulator;
• (h) a declaration by the Directors of the Foreign Company under subrule 5.1.5.

5.1.2. Each the Documents must be acceptable to the Registrar of Companies.

5.1.3. If any of the Documents are not in the English language, the Documents must be accompanied by an English translation certified to the satisfaction of the Registrar of Companies.

5.1.4. The Registrar of Companies may require the Foreign Company to provide any information or any other Document that the Registrar considers relevant to making a decision on the application.

5.1.5. For subrule 5.1.1(h), the declaration by the Directors of the Foreign Company must state that:

• (a) the Foreign Company is able to pay its debts as they fall due; and
• (b) there is no reasonable prospect of the Foreign Company being unable to pay its debts as they fall due; and
• (c) the value of the Foreign Company’s current assets exceeds the amount of its current Liabilities, taking into account its contingent and prospective Liabilities; and
• (d) there are no applications made to any court:

(i) to put the Foreign Company into liquidation; or

(ii) to wind up the Foreign Company; or

(iii) to have the Foreign Company declared insolvent or otherwise unable to pay its debts as they fall due; or

(iv) for the appointment of a receiver or administrative receiver (however described) for any property of the Foreign Company.

5.1.6. If the Foreign Company is an Authorised Firm, an Authorised Market Institution, an Ancillary Service Provider or a Fund, the Registrar of Companies must not approve the application unless the AFSA has given its Written consent to the approval.

5.1.7. In addition, if the Foreign Company is a Fund, the Registrar of Companies must not approve the application unless satisfied that the Foreign Company would comply the requirements of Part 6 (Investment Companies) if the application were to be approved.

5.1.8. If the Registrar of Companies approves the application and issues a certificate of continuation to the Foreign Company, the Company must file with the Registrar any certificate or other Document issued under the laws of the relevant jurisdiction evidencing the fact the Company has ceased to be incorporated under those laws.

5.2. Certificate of continuation

The certificate of continuation issued by the Registrar of Companies under section 152(1)(a) (Certificate of continuance) of the AIFC Companies Regulations for a Foreign Company must include:

1. (a) the name of the company; and
2. (b) the company’s identification number; and
3. (c) a statement that the company is continued as a Company; and
4. (d) a statement that the company is a Private Company or a Public Company; and
5. (e) the date of continuation.

5.3. Transfer of incorporation from AIFC

5.3.3. An application by a Company to the Registrar of Companies for authorisation under section 156(1) (Transfer of incorporation from AIFC to another jurisdiction) of the AIFC Companies Regulations to transfer its incorporation to a jurisdiction outside the AIFC (the other jurisdiction), and request that it be continued as a Foreign Company, must be accompanied by the following:

• (a) evidence satisfactory to the Registrar that:

(i) the Company is able to transfer its incorporation and be continued under the laws of the other jurisdiction; and

(ii) the laws of the other jurisdiction satisfy the requirements mentioned in section 156(2) of the AIFC Companies Regulations; and

• (b) if the Company is an Investment Company, Authorised Firm, Authorised Market Institution or Ancillary Service Provider—the AFSA’s Written consent to the application; and
• (c) a declaration by the Directors of the Company under subrule 5.3.3.

5.3.4. The Registrar of Companies may require the Company to provide any information or any other Document that the Registrar considers relevant to making a decision on the application.

5.3.5. For rule 5.3.1(c), the declaration by the Directors of the Company must state that:

• (a) the Company is able to pay its debts as they fall due; and
• (b) there is no reasonable prospect of the Company becoming Unable to Pay its Debts (within the meaning given by section 50 of the AIFC Insolvency Regulations); and
• (c) the value of the Company’s current assets exceeds the amount of its current Liabilities, taking into account its contingent and prospective Liabilities; and
• (d) there are no applications made to any court:

(i) to put the Company into liquidation; or

(ii) to wind up the Company; or

(iii) to have the Company declared Unable to Pay its Debts (within the meaning given by section 50 of the AIFC Insolvency Regulations); or

(iv) for the appointment of a receiver or administrative receiver (however described) for any property of the Company.

5.3.6. If a Company intends to make an application mentioned in subrule 5.3.1 to the Registrar of Companies, the Company must, not later than 60 days before the day the Company makes the application, publish a legible and comprehensible notice in 1 or more newspapers or other publications best suited to bring the intended transfer of incorporation to the attention of any Persons who may be affected by the transfer.