162. Powers to give Directions
Past version: effective from 20/10/2015 - 19/10/2015
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(1) The powers conferred by this section are exercisable in relation to a Recognised Body.
(2) Where in any case a Recognised Body has not taken action under its Default Rules —
(a) if it appears to the Regulator that it could take action, the Regulator may direct it to do so; and
(b) if it appears to the Regulator that it is proposing to take or may take action, the Regulator may direct it not to do so.
(3) Before giving such a Direction the Regulator shall consult the Recognised Body in question, and it shall not give a Direction unless it is satisfied, in the light of that consultation —
(a) in the case of a Direction to take action, that failure to take action would involve undue risk to investors or other participants in the market;
(b) in the case of a Direction not to take action, that the taking of action would be premature or otherwise undesirable in the interests of investors or other participants in the market; or
(c) in either case, that the Direction is necessary having regard to the public interest in the stability of the Abu Dhabi Global Market Financial System.
(4) The Regulator may give a Direction to a Relevant Office-Holder appointed in respect of a Defaulting Clearing Member to take any action, or refrain from taking any action, if the Direction is given for the purposes of facilitating —
(a) the transfer of a Clearing Member Client Contract, a Client Trade or a Qualifying Collateral Arrangement;
(b) a Qualifying Property Transfer;
(c) the settlement of a Collateral Security Arrangement;
(d) orders for the delivery of Cash or non-Cash collateral to or from a Recognised Body which have become final and irrevocable under the rules of the Recognised Body; and
(e) the Settlement or delivery of a product or security subject of a Market Contract following expiry or close-out of the Market Contract pursuant to the rules of a Recognised Body.
(5) The Relevant Office-Holder to whom a Direction is given under subsection (4) —
(a) must comply with the Direction notwithstanding any duty on the Relevant Office-Holder under the Insolvency Regulations 2015; but
(b) is not required to comply with the Direction given if the value of the Clearing Member's estate is unlikely to be sufficient to meet the Relevant Office-Holder's reasonable expenses of complying.
(6) The expenses of the Relevant Office-Holder in complying with a Direction of the Regulator under subsection (4) are recoverable as part of the expenses incurred in the discharge of the Relevant Office-Holder's duties.
(7) A Direction shall specify the grounds on which it is given.
(8) A Direction not to take action may be expressed to have effect until the giving of a further Direction (which may be a Direction to take action or simply revoking the earlier Direction).
(9) No Direction shall be given not to take action if, in relation to the person in question —
(a) a Winding-Up order has been made; or
(b) a resolution for voluntary winding up has been passed or an Administrator, Administrative Receiver or provisional liquidator has been appointed;
and any previous Direction not to take action shall cease to have effect on the making or passing of any such order, award or appointment.
(10) Where a Recognised Body has taken or been directed to take action under its Default Rules, the Regulator may direct it to do or not to do such things (being things which it has power to do under its Default Rules) as are specified in the Direction.
(11) Where the Recognised Body is acting in accordance with a Direction under subsection (2)(a) that was given only by virtue of subsection (3)(a), the Regulator shall not give a Direction under subsection (10) unless it is satisfied that the Direction under that subsection will not impede or frustrate the proper and efficient conduct of the Default Proceedings.
(12) Where the Recognised Body has taken action under its Default Rules without being directed to do so, the Regulator shall not give a Direction under subsection (10) unless —
(a) it is satisfied that the Direction under that subsection will not impede or frustrate the proper and efficient conduct of the Default Proceedings; or
(b) it is satisfied that the Direction is necessary having regard to the public interest in the stability of the Abu Dhabi Global Market Financial System.
(13) A Direction under this section is enforceable, on the application of the Regulator, by injunction, and where a Recognised Body or a Relevant Office-Holder has not complied with a Direction, the Court may make such order as it thinks fit for restoring the position to what it would have been if the Direction had been complied with.