CHAPTER 1 – Supervisory powers of the AFSA
95. Exercise of supervisory powers by the AFSA
(1) The AFSA may exercise any of the powers set out in this Chapter at any time where if it considers it necessary or desirable to do so in accordance with its Regulatory Objectives.
(2) The AFSA may set out in Rules or guidance circumstances in which it is likely to exercise such powers.
(3) If the AIFC has exercised one or more of the powers set out in this Chapter it may, if it considers it necessary or desirable to do so in accordance with the Regulatory Objectives:
- (a) withdraw a prohibition, restriction, requirement, or decision to exercise any of its supervisory powers; or
- (b) substitute or vary an existing prohibition, restriction, requirement, or decision to exercise any of its supervisory powers.
(4) A requirement imposed on a Person as a result of the exercise by the AFSA of powers under this Part may be enforceable by injunction on the application of the AFSA to the AIFC Court.
(5) Any prohibition or requirement including any variation or substitution of such prohibition or requirement, does not operate so as to render an agreement unenforceable by a party to the agreement if he proves that in entering into the agreement he acted in good faith and was unaware of any notice given, served or published in relation to such imposition, withdrawal, substitution or variation.
96. Power to gather information
(1) The AFSA may, by notice in writing, require an Authorised Person, Ancillary Service Provider, Approved Individual, Designated Individual or any other Director, Employee or representative agent of an Authorised Person or Ancillary Service Provider to:
- (a) give, or procure the giving of, such specified information; or
- (b) produce, or procure the production of, such specified documents; to the AFSA as the AFSA considers necessary or desirable to meet the objectives.
(2) The AFSA may require an Authorised Person or Ancillary Service Provider to allow the AFSA to enter its premises during normal business hours or at any other time as may be agreed for the purpose of inspecting and copying information or documents stored in any form on such premises, as it considers necessary or desirable to meet the Regulatory Objectives.
(3) The AFSA may exercise its powers under this section 96 in respect of any information, documents or premises wherever they may be located in the Republic of Kazakhstan.
(4) Information given or a document produced as a result of the exercise by the AFSA of powers under this section is admissible in evidence in any proceedings, provided that any such information or document also complies with any requirements relating to the admissibility of evidence in such proceedings.
97. Power to require the production of a report
(1) The AFSA may, by notice in writing, require an Authorised Person, or Ancillary Service Provider to provide the AFSA with a report on any matter as the AFSA considers necessary or desirable to meet the Regulatory Objectives.
(2) The Person appointed to make a report required by section 97(1) must be a Person nominated or approved by the AFSA.
(3) Where a requirement has been made of an Authorised Person or Ancillary Service Provider under this section, the Authorised Person must take all reasonable steps to ensure that:
- (a) any Person who is providing or has provided services to the Authorised Person must provide all such assistance as the appointed Person may reasonably require; and
- (b) the appointed Person co-operates with the AFSA.
(4) The obligation in section 97(1) is enforceable on application by the AFSA to the AIFC Court.
(5) The costs of providing a report must be paid by the Authorised Person, or Ancillary Service Provider to whom a notice has been given under section 97(1).
(6) Subject to section 97(7), information given or a document produced as a result of the exercise by the AFSA of powers under this section is admissible in evidence in any proceedings, provided that any such information or document also complies with any requirements relating to the admissibility of evidence in such proceedings.
(7) The AFSA may not disclose a statement made by a Person in a report made pursuant to a requirement made of the Person under section 97(1) to any law enforcement agency for the purpose of criminal proceedings against the Person unless:
98. Power to restrict, withdraw or suspend a Licence
(1) The AFSA may:
- (a) impose or vary such conditions, restrictions and requirements on a Licence as the AFSA considers appropriate; or
- (b) withdraw an Authorised Person’s Licence or vary its Licence to remove one or more Regulated Activities or Market Activities; or
- (ba) withdraw an Ancillary Service Provider's License or vary its Licence to remove one or more Ancillary Services; or
- (c) suspend an Authorised Person’s Licence in relation to one or more Regulated Activities or Market Activities; or
- (d) suspend an Ancillary Service Provider's Licence in relation to one or more Ancillary Services.
(2) The decision making procedures in Schedule 1 apply to a decision made by the AFSA under this section.
99. Power to impose a prohibition
(1) The AFSA may prohibit an Authorised Person or Ancillary Service Provider from:
- (a) entering into certain specified transactions or types of transactions; or
- (b) soliciting business from certain specified Persons or types of Persons; or
- (c) carrying on business in a specified manner or other than in a specified manner; or
- (d) using a particular name or description in respect of the Authorised Person or Ancillary Service Provider; or
- (e) dealing with any relevant property in a specified manner or other than in a specified manner; or
- (f) assisting, counselling or procuring another Person to deal with any relevant property in a specified manner or other than in a specified manner.
(2) The decision making procedures in Schedule 1 apply to a decision made by the AFSA under this section.
99-1. Power to give directions for prudential purposes and capital requirements
(1) For prudential purposes and capital requirements, the AFSA may direct an Authorised Person or Authorised Persons within a specified class to, among others:
(a) comply with any specified additional capital or liquidity requirements;
(b) apply a specific provisioning policy or treatment of specified assets;
(c) comply with specified limits on material risk exposures;
(d) comply with specified limits on exposures to related parties;
(e) meet additional or more frequent reporting requirements; or
(f) take such other action as is specified in the direction.
(2) The AFSA may direct an Affiliate of an Authorised Person to take specified actions or not to carry on specified activities if the AFSA:
(a) is the consolidated supervisor of the Group to which the Authorised Person belongs; and
(b) is satisfied that the direction is necessary or desirable for the purposes of the effective prudential supervision of the Group on a consolidated basis.
(3) A direction to an Affiliate under subsection (2) may include a requirement that the Affiliate:
(a) limit any activities it carries on or may carry on (including closing any office which is outside the jurisdiction in which it has its principal place of business and head office) if the activities are reasonably likely to expose the Authorised Person or its Group to excessive risks or risks that are not properly managed; or
(b) take such other measures as are necessary to remove any impediments to effective supervision of the Group on a consolidated basis, including a direction to take steps to restructure the Group.
(4) Nothing in this section limits the scope or application of any other power that the AFSA may have in these Regulations, any Rules or Regulations or legislation administered by it.
(5) A direction given under this section comes into force on the date specified in it and remains in force, subject to subsection (7), until it is revoked or varied in writing by the AFSA under subsection (6).
(6) The AFSA may revoke or vary any direction given pursuant to this section.
(7) A direction given to Authorised Persons within a specified class under subsection (1), including any variation made to such a direction under subsection (6), may not remain in force for a period longer than 12 months from the date specified in the initial direction given under subsection (1).
(8) The decision-making procedures in Schedule 1 apply to a decision made by the AFSA under this decision.
100. Power to impose a requirement
(1) The AFSA may require an Authorised Person or Ancillary Service Provider to:
- (a) take or refrain from taking such action as the AFSA considers appropriate;
- (b) carry on business in, and only in, a specified manner;
- (c) deal with any relevant property in a specified manner;
- (d) deal with any relevant property such that:
(i) the property remains of a value and in a condition that appears to the AFSA to be desirable with a view to ensuring that the Authorised Person or Ancillary Service Provider will be able to meet its liabilities in relation to the business which constitutes a Regulated Activity or Ancillary Service for which it holds a Licence; and
(ii) the Authorised Person or Ancillary Service Provider is able at any time to transfer or dispose or otherwise deal with the property when instructed to do so by the AFSA.
(2) For the purposes of this section:
- (a) “dealing” in relation to property includes the maintaining, holding, disposing and transferring of property; and
- (b) “relevant property”, in relation to an Authorised Person, means:
(i) any property held by the Person on behalf of any of the clients of the Person, or held by any other Person on behalf of or to the order of the Person; or
(ii) any other property which the AFSA reasonably believes to be owned or controlled by the Person.
(3) The decision-making procedures in Schedule 1 apply to a ecision made by the AFSA under this section.
101. Power to enter into enforceable agreement
(1) The AFSA may enter into a written agreement with any Person.
(2) An agreement under (1) may include an agreement to:
- (a) pay any sum to any Person (including the AFSA); or
- (b) take remedial action; or
- (c) do any other thing.
(3) The terms of such an agreement may be varied with the consent of the AFSA.
(4) If the AFSA considers that the Person who entered into the agreement has been or is in breach of any of its terms, it may apply to the AIFC Court for:
- (a) an order directing the Person to comply with the terms of the agreement; or
- (b) an order directing the Person to pay to any Person or to the AFSA an amount up to the amount of any financial benefit that the Person has obtained directly or indirectly and that is reasonably attributable to the breach; or
- (c) any order that the AIFC Court considers appropriate directing the Person to compensate any other Person who has suffered loss or damage as a result of the breach; or
- (d) any other order that the AIFC Court considers appropriate.