114. Power of the AFSA to conduct an investigation

(1) The AFSA may conduct such investigation as it considers appropriate and expedient:

• (a) where it has reason to suspect that a contravention of any legislation administered by the AFSA is being or may have been committed; or
• (b) further to a request made by a Financial Services Regulator.

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

115. Costs of an Investigation

(1) The AFSA will pay the costs and expenses of an investigation save that, where, as a result of an investigation under section 114, the Person under investigation is found to have contravened any legislation administered by the AFSA, the AFSA or, where appropriate, the AIFC Court, may order that the Person must pay the AFSA in respect of the whole or any part of the costs and expenses of the investigation.

(2) The AFSA may apply to the AIFC Court for an order under section 115(1) only where there is a proceeding before the AIFC Court relating to the alleged contravention by the Person.

116. Powers to Obtain Information and Documents for Investigation

(1) If the AFSA considers that a Person is or may be able to give information or produce a document which is or may be relevant to an investigation, it may:

• (a) enter the business premises of such Person during normal business hours for the purpose of inspecting and copying information or documents stored in any form on such premises;
• (b) require such Person, by written notice, to

(i) give, or procure the giving of, specified information in such form as it may reasonably require; or

(ii) produce, or procure the production of, specified documents; or

(iii) to attend before an officer, or Employee of the AFSA at a specified time and place to answer questions in private (compulsory interview); or

(iv) give it assistance in relation to the investigation.

(2) Where the AFSA exercises its power under section 116(1)(a) to enter business premises, it may:

• (a) require any appropriate Person to make available any relevant information stored at those premises for inspection or copying;
• (b) require any appropriate Person to convert any relevant information into a form capable of being copied; and
• (c) use the facilities of the occupier of the premises, free of charge, to make copies.

(3) Where the AFSA exercises its power under section 116(1)(b)(iii) to conduct a compulsory interview, it may give a direction:

• (a) concerning who may be present;
• (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 the interviewer during the compulsory interview;
• (c) concerning the conduct of any Person present, including as to the manner in which they will participate in the interview;
• (d) requiring the interviewee to swear an oath or give an affirmation that the answers of the interviewee will be true; and
• (e) requiring the interviewee to answer any questions relevant to the investigation.

(4) The AFSA may require the relevant Person to give such information or produce such documents by the end of a reasonable period, at a place and in a form specified in the notice.

(5) The AFSA may exercise its powers under subsection (1) in respect of any Person within, or outside of, the AIFC provided that, if the Person is outside the AIFC and is not an Authorised Person, Ancillary Service Provider or Approved Individual, or Director of an Authorised Person or Ancillary Service Provider the AFSA must either:

• (a) use any arrangements it has with a regulatory 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
• (b) apply to the AIFC Court for an order compelling the Person to provide the information, produce or procure the production of the documents, or answer questions, or permitting the AFSA to enter the premises of that Person.

117. Use and effect of information and documents obtained for an Investigation

(1) Subject to section 117(2), any information given or document produced as a result of the exercise by the AFSA of powers under section 116 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.

(2) The AFSA may not disclose a statement made by a Person in answer to any question asked pursuant to a requirement made of the Person under section 116(1)(b)(iii) to any law enforcement agency for the purpose of criminal proceedings against the Person unless:

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

(3) The AFSA may retain possession of any information and documents given to it pursuant to a requirement made under section 116(1) for so long as is necessary:

• (a) for the purposes of the investigation to which the notice relates; or
• (b) for a decision to be made about whether or not a proceeding to which the information or documents would be relevant should be commenced; or
• (c) for such a proceeding to be completed.

(4) A Person is not entitled to claim a lien on any documents as a basis for failing to comply with a requirement made under section 116(1), but any lien is not otherwise prejudiced.

(5) Where a Person is unable to produce information or documents in compliance with a requirement made under section 116(1), the AFSA may require the Person to state, to the best of that Person’s knowledge or belief, where the information or documents may be found and who last had possession, custody or control of the information or documents.

(6) Where the AFSA considers that, if disclosed, the fact of the issuing of a notice requiring a Person to:

• (a) produce documents; or
• (b) give information; or
• (c) attend a compulsory interview; or
• (d) give assistance; may hinder the investigation to which it relates, the AFSA may direct a Person who receives a notice under section 116(1) and/or that person’s legal representative not to disclose the receipt of the notice or any information relating to compliance therewith to any other Person, other than his legal representative under a duty of confidentiality.

118. Sanctions for contraventions

(1) If the AFSA considers that a Person has committed a Contravention, it may:

• (a) fine the Person such amount as it considers appropriate in respect of the contravention; and/or
• (b) censure the Person in respect of the contravention; and/or
• (c) give a direction requiring the Person to effect restitution or compensate any other Person in respect of the contravention within such period and on such terms as the AFSA may direct; 
• (d) give a direction requiring the Person to account for, in such form and on such terms as the AFSA may direct, such amounts as the AFSA determines to be profits or unjust enrichment arising from the contravention; 
• (e) give a direction requiring the Person to cease and desist from such activity constituting or connected to the contravention as the AFSA may stipulate;
• (f) give a direction requiring the Person to do an act or thing to remedy the contravention or matters arising from the contravention; 
• (g) give a direction restricting or prohibiting the Person from holding office in or being Director or Employee of any Authorised Person or Ancillary Service Provider.

(2) Nothing in this section prevents the AFSA from exercising any other power that it may exercise under any legislation administered by it.

(3) The decision-making procedures in Schedule 1 apply to a decision made by the AFSA under this section.

119. General contravention provision

A Person commits a Contravention if he:

• (a) fails to comply with any prohibition or requirement imposed on him by the AFSA , any undertaking given by him to the AFSA, or any agreement made by him with the AFSA; or
• (b) does anything that is prohibited under, or that contravenes any legislation administered by the AFSA; or
• (c) does not do something that the Person is required to do under any legislation administered by the AFSA; or
• (d) commits an act of fraud or abuses any fiduciary duty which he owes to his clients or customers or to an Authorised Person; or
• (e) acts in a deceptive, misleading or dishonest manner in any context; or
• (f) otherwise commits any contravention described as such in these Regulations or Rules made by the AFSA.

120. Involvement in contraventions

(1) If a Person is knowingly concerned in a Contravention by another Person of legislation administered by the AFSA, that Person also commits a Contravention of the relevant legislation.

(2) A Person is knowingly concerned in a Contravention if, and only if, that Person:

• (a) has aided, abetted, counselled, or procured the Contravention; or
• (b) has induced, whether by threats or promises or otherwise, the Contravention; or
• (c) has in any way, by act or omission, directly or indirectly, been knowingly involved in or been party to, the contravention; or
• (d) has conspired with another or others to commit the Contravention.

121. Contraventions by Bodies Corporate

(1) If a Contravention committed by a Body Corporate is shown:

• (a) to have been committed with the consent or connivance of an officer; or
• (b) to be attributable to any neglect on his part; the officer as well as the Body Corporate commits the Contravention and is liable to sanctions accordingly.

(2) If the affairs of a Body Corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the Body Corporate.

(3) The AFSA may by Rules provide for the application of any provision of this section, with such modifications as the AFSA considers appropriate, to a Body Corporate formed or recognised under the law of a territory outside the AIFC.

122. Appointment of Managers

(1) Where it considers it necessary or desirable in the pursuit of its objectives, the AFSA may issue a written notice requiring an Authorised Person to appoint one or more individuals to act as managers of the business of such Person on such terms as the AFSA may specify in any such notice.

(2) The terms specified in the written notice may be varied by the AFSA from time to time by further written notice.

(3) An individual so appointed by an Authorised Person must be either nominated or approved by the AFSA.

123. Compulsory Winding up

(1) The AFSA may petition to the AIFC Court for the winding up of an Authorised Person or Ancillary Service Provider.

(2) On such a petition, the AIFC Court may wind up the Authorised Person or Ancillary Service Provider if it is of the opinion that it is just and equitable that the Authorised Person or Ancillary Service Provider be wound up.

124. Injunction – contraventions

(1) Where a Person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute a contravention within the meaning of section 119 the AIFC Court may, on application of the AFSA or any aggrieved Person, make one or more of the following orders:

• (a) an order restraining the Person from engaging in the conduct including but not limited to, engaging in conduct that may constitute a contravention;
• (b) an order requiring that Person to do any act or thing including, but not limited to, acts or things to remedy the contravention or to minimise loss or damage;
• (c) any other order as the AIFC Court sees fit.

125. Injunction – investigations and proceedings

(1) Where:

• (a) the AFSA is conducting or has conducted an investigation into the acts or omissions of a Person (the ‘relevant Person’) which may constitute a contravention within the meaning of section 119; or
• (b) a civil or regulatory proceeding has been instituted, by the AFSA or otherwise, against a relevant Person in relation to an alleged contravention, the AIFC Court may, on application of the AFSA or any aggrieved Person, make one or more of the following orders:
• (c) an order restraining the relevant Person from paying, transferring, disposing of, or otherwise dealing with, any assets of his which he is reasonably likely to dispose of or otherwise deal with;
• (d) an order restraining any other Person holding assets on behalf of the relevant Person from paying, transferring, disposing of, or otherwise dealing with, any assets of the relevant Person which are reasonably likely to be disposed of or otherwise dealt with;
• (e) an order prohibiting the relevant Person or any other Person from taking or sending out of the jurisdiction of the AIFC Court any assets of the relevant Person or held on his behalf;
• (f) if the relevant Person is a natural person

(i) an order appointing a receiver or trustee, having such powers as the AIFC Court may see fit, of the property or any of the property of the relevant Person;

(ii) an order requiring him to deliver up to the AIFC Court his passport and such other documents as the AIFC Court sees fit; or

(iii) an order prohibiting him from leaving the Republic of Kazakhstan without the consent of the AIFC Court;

• (g) if the relevant Person is a Body Corporate, an order appointing a receiver or receiver and manager, having such powers as the AIFC Court may see fit, of the property or any of the property of the relevant Person.

(2) Nothing in section 125 affects the powers that any Person or the AIFC Court may have apart from this section.

126. Injunction – market abuse

(1) If, on the application of the AFSA, the AIFC Court is satisfied:

• (a) that there is a reasonable likelihood that any Person will engage in Market Abuse; or
• (b) that any Person is or has engaged in Market Abuse and that there is a reasonable likelihood that the Market Abuse will continue or be repeated; the AIFC Court may make an order restraining the Market Abuse.

(2) If on the application of the AFSA the AIFC Court is satisfied:

• (a) that any Person is or has engaged in Market Abuse; and
• (b) that there are steps which could be taken for remedying the Market Abuse; the AIFC Court may make an order requiring him to take such steps as the AIFC Court may direct to remedy it.

(3) If, on the application of the AFSA, the AIFC Court is satisfied that any Person:

• (a) may be engaged in Market Abuse; or
• (b) may have been engaged in Market Abuse. the AIFC Court may make an order restraining the Person concerned from disposing of, or otherwise dealing with, any assets of his which it is satisfied that he is reasonably likely to dispose of, or otherwise deal with.

(4) In subsection (2), references to remedying any Market Abuse include references to mitigating its effect.

127. Restitution Order – contraventions

(1) The AIFC Court may, on the application of the AFSA, make an order under subsection (2) if it is satisfied that a Person has committed a contravention within the meaning of section 119, and:

• (a) that profits have accrued to him as a result of the contravention; or
• (b) that one or more Persons have suffered loss or been otherwise adversely affected as a result of the contravention.

(2) The AIFC Court may order the Person concerned to pay to the AFSA such sum as appears to the Court to be just and equitable having regard:

• (a) in a case within paragraph (a) of subsection (1), to the profits appearing to the AIFC Court to have accrued; and
• (b) in a case within paragraph (b) of subsection (1), to the extent of the loss or other adverse effect; and
• (c) in a case within both of those paragraphs, to the profits appearing to the AIFC Court to have accrued and to the extent of the loss or other adverse effect.

(3) Any amount paid to the AFSA in pursuance of an order under subsection (2) must be paid by it to such Person or distributed by it among such Persons as the AIFC Court may direct.

(4) On an application under subsection (1) the AIFC Court may require the Person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes:

• (a) establishing whether any and, if so, what profits have accrued to him as mentioned in paragraph (a) of subsection (1);
• (b) establishing whether any Person or Persons have suffered any loss or adverse effect as mentioned in paragraph (b) of subsection (1) and, if so, the extent of that loss or adverse effect; and
• (c) determining how any amounts are to be paid or distributed under subsection (3).

(5) The AIFC Court may require any accounts or other information supplied under subsection (4) to be verified in such manner as it may direct.

(6) Nothing in this section affects the right of any Person other than the AFSA to bring proceedings in respect of the matters to which this section applies.

128. Restitution Order – market abuse

(1) The AIFC Court may, on the application of the AFSA, make an order under subsection (4) if it is satisfied that a Person:

• (a) has engaged in Market Abuse; or
• (b) by taking or refraining from taking any action, has required or encouraged another Person or Persons to engage in behaviour which, if engaged in by the Person concerned, would amount to Market Abuse; and the condition mentioned in subsection (2) is fulfilled.

(2) The condition is that:

• (a) profits have accrued to the Person concerned as a result; or
• (b) one or more Persons have suffered loss or been otherwise adversely affected as a result.

(3) But the AIFC Court may not make an order under subsection (4) if it is satisfied that:

• (a) the Person concerned believed, on reasonable grounds, that his behaviour did not fall within paragraph (a) or (b) of subsection (1); or
• (b) he took all reasonable precautions and exercised all due diligence to avoid behaving in a way which fell within paragraph (a) or (b) of subsection (1).

(4) The AIFC Court may order the Person concerned to pay to the AFSA such sum as appears to the AIFC Court to be just having regard:

• (a) in a case within paragraph (a) of subsection (2), to the profits appearing to the AIFC Court to have accrued;
• (b) in a case within paragraph (b) of subsection (2), to the extent of the loss or other adverse effect;
• (c) in a case within both of those paragraphs, to the profits appearing to the AIFC Court to have accrued and to the extent of the loss or other adverse effect.

(5) Any amount paid to the AFSA in pursuance of an order under subsection (4) must be paid by it to such Person or distributed by it among such Persons as the AIFC Court may direct.

(6) On an application under subsection (1) the AIFC Court may require the Person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes:

• (a) establishing whether any and, if so, what profits have accrued to him as mentioned in paragraph (a) of subsection (2);
• (b) establishing whether any Person or Persons have suffered any loss or adverse effect as mentioned in paragraph (b) of subsection (2) and, if so, the extent of that loss or adverse effect; and
• (c) determining how any amounts are to be paid or distributed under subsection (5).

(7) The AIFC Court may require any accounts or other information supplied under subsection (6) to be verified in such manner as it may direct.

(8) Nothing in this section affects the right of any Person other than the AFSA to bring proceedings in respect of the matters to which this section applies.

129. Action for damages

(1) Unless otherwise provided under Rules made by the AFSA, where a Person:

• (a) intentionally, recklessly or negligently commits a breach of duty, requirement, prohibition, obligation or responsibility imposed by or under these Regulations; or
• (b) commits fraud or other dishonest conduct in connection with a matter arising under such Regulations; that Person is liable to compensate any other Person for any loss or damage caused to that other Person as a result of such conduct, and otherwise is liable to restore such other Person to the position they were in prior to such conduct.

(2) The AIFC Court may, on application of the AFSA or a Person who has suffered loss or damage caused as a result of conduct described in subsection (1), make orders for the recovery of damages or for compensation or for the recovery of property or for any other order as the AIFC Court sees fit, except where such liability is excluded under these Regulations or any Rules made by the AFSA.

(3) Nothing in this section affects the powers that any Person or the Court may have apart from this section.

130. Power of the AFSA to intervene in proceedings

(1) The AFSA may intervene as a party in any proceedings in the AIFC Court where it considers such intervention appropriate to meet one or more of its Regulatory Objectives.

(2) Where the AFSA so intervenes, it will, subject to any other law, have all the rights, duties and liabilities of such a party.

130-1. Procedural irregularities

(1) A procedure under these Regulations or any other Rules or Regulations is not invalidated because of any procedural irregularity unless the AIFC Court declares the procedure to be invalid.

(2) For the purposes of this section:

(a) procedure includes the making of a decision, the conduct of a hearing, the giving of the relevant notice, and any proceedings (legal or otherwise); and

(b) procedural irregularity includes a defect, irregularity or deficiency of notice or time.