• GEN 8.12 GEN 8.12 Requirement to provide a report

    • GEN 8.12.1 GEN 8.12.1

      This Rule applies to every Authorised Person and Recognised Body other than a Representative Office.

      • Guidance

        1. Under section 203 of the FSMR, the Regulator may require an Authorised Person or Recognised Body to provide it with a report on any matter. The Person appointed to make a report must be a Person nominated or approved by the Regulator. This Person will be referred to throughout the Rulebook as a "Skilled Person".
        2. When requesting a report under section 203 of the FSMR, the Regulator may take into consideration the matters set out in the GPM.

    • Skilled person

      • GEN 8.12.2 GEN 8.12.2

        (1) The Regulator may, by sending a notice in writing, require an Authorised Person or Recognised Body to provide a report by a Skilled Person. The Regulator may require the report to be in whatever form it specifies in the notice.
        (2) The Regulator will give written notification to the Authorised Person or Recognised Body of the purpose of its report, its scope, the timetable for completion and any other relevant matters.
        (3) The Skilled Person must be appointed by the Authorised Person or Recognised Body and be nominated or approved by the Regulator.
        (4) The Authorised Person or Recognised Body must pay for the services of the Skilled Person.

        • Guidance

          1. If the Regulator decides to nominate the Skilled Person, it will notify the Authorised Person or Recognised Body accordingly. Alternatively, if the Regulator is content to approve the Skilled Person selected by the Authorised Person or Recognised Body it will notify it of that fact.
          2. The Regulator will only approve a Skilled Person that in the Regulator's opinion has the necessary skills to make a report on the matter concerned.

      • GEN 8.12.3

        When an Authorised Person or Recognised Body appoints a Skilled Person, the Authorised Person or Recognised Body must ensure that:

        (a) the Skilled Person co-operates with the Regulator; and
        (b) the Authorised Person or Recognised Body provides all assistance that the Skilled Person may reasonably require.

      • GEN 8.12.4

        When an Authorised Person or Recognised Body appoints a Skilled Person, the Authorised Person or Recognised Body must, in the contract with the Skilled Person:

        (a) require and permit the Skilled Person to co-operate with the Regulator in relation to the Authorised Person or Recognised Body and to communicate to the Regulator 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 or Recognised Body in the following circumstances:
        (i) the Skilled Person reasonably believes that, as regards the Authorised Person or Recognised Body concerned:
        (A) there is or has been, or may be or may have been, a Contravention of any relevant requirement that applies to the Authorised Person or Recognised Body concerned; and
        (B) that the Contravention may be of material significance to the Regulator in determining whether to exercise, in relation to the Authorised Person or Recognised Body concerned, any powers conferred on the Regulator under any provision of the FSMR;
        (ii) the Skilled Person reasonably believes that the information on, or his opinion on, those matters may be of material significance to the Regulator in determining whether the Authorised Person or Recognised Body 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 Regulator; and
        (c) waive any duty of confidentiality owed by the Skilled Person to the Authorised Person or Recognised Body which might limit the provision of information or opinion by that Skilled Person to the Regulator in accordance with (a) or (b).

      • GEN 8.12.5

        An Authorised Person and Recognised Body must ensure that the contract required under Rule 8.12.4:

        (a) is governed by the Regulations and Rules of the ADGM;
        (b) expressly provides that the Regulator has a right to enforce the provisions included in the contract under Rule 8.12.4;
        (c) expressly provides that, in proceedings brought by the Regulator 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;
        (d) if the contract includes an arbitration agreement, expressly provides that the Regulator 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 Rule 8.12.4 are irrevocable and may not be varied or rescinded without the Regulator's consent.