6.1. Power to require the production of a report
6.1.1. Notification of requirement to produce a report
Where the AFSA requires an Authorised Person to provide it with a report under section 97 of the Framework Regulations (Power to require the production of a report) it will give written notification to the Authorised Person of:
- (a) the purpose of its report, and
- (b) its scope, and
- (c) the timetable for completion and
- (d) any other relevant matters.
6.1.2. Nomination or approval of Skilled Person
- (a) The Person appointed to produce a report shall be referred to as the “Skilled Person”.
- (b) Where the AFSA nominates the Skilled Person, the Authorised Person must appoint the Person so nominated.
- (c) Where the AFSA invites the Authorised Person to nominate a Skilled Person, the Authorised Person must provide the AFSA with the details of an appropriately qualified Person within such period as the AFSA may direct. The AFSA will confirm within a reasonable period where it approves the appointment of the Person so nominated. If the AFSA does not approve the Person so nominated, it may require the Authorised Person to nominate another Person or itself nominate a Person.
6.1.3. Obligations of Skilled Person
When an Authorised Person appoints a Skilled Person, it must enter into a written contract with the Skilled Person whose terms:
- (a) require and permit the Skilled Person to co‐operate with the AFSA in relation to the Authorised Person and to communicate to the ASFA information on, or his opinion on, matters of which he has, or had, become aware in his capacity as a Skilled Person reporting on the Authorised Person in the following circumstances:
(i) the Skilled Person reasonably believes that, as regards the Authorised Person concerned:
(A) there is or has been, or may be or may have been, a contravention of any requirement that applies to the Authorised Person concerned; and
(B) that the contravention may be of material significance to the AFSA in determining whether to exercise, in relation to the Authorised Person concerned, any powers conferred on the AFSA under any provision of the Framework Regulations;
(ii) the Skilled Person reasonably believes that the information on, or his opinion on, those matters may be of material significance to the AFSA in determining whether the Authorised Person concerned satisfies and will continue to satisfy the fit and proper requirements; or
(iii) the Skilled Person reasonably believes that the Authorised Person is not, may not be, or may cease to be, a going concern;
- (b) require the Skilled Person to prepare a report within the time specified by the AFSA; and
- (c) waive any duty of confidentiality owed by the Skilled Person to the Authorised Person which might limit the provision of information or opinion by that Skilled Person to the AFSA in accordance with (a) or (b).
6.1.4. Contract with Skilled Person
An Authorised Person must ensure that the contract required under GEN 6.1.2:
- (a) is governed by the law of the AIFC; and
- (b) expressly provides that the AFSA has a right to enforce the provisions included in the contract under GEN 6.1.2; and
- (c) expressly provides that, in proceedings brought by the AFSA for the enforcement of those provisions, the skilled Person is not to have available by way of defence, set‐off or counter claim any matter that is not relevant to those provisions; and
- (d) if the contract includes an arbitration agreement, expressly provides that the AFSA is not, in exercising the right in (b) to be treated as a party to, or bound by, the arbitration agreement; and
- (e) provides that the provisions included in the contract under GEN 6.1.2 are irrevocable and may not be varied or rescinded without the AFSA's consent.