The Act prohibits any person from carrying on, or purporting to carry on, regulated activities in the United Kingdom unless that person is an authorised person or an exempt person. If an overseas investment exchange wishes to undertake regulated activities in the United Kingdom, it will need to:
obtain a Part 4A permission from the FCA; or
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obtain exempt person status by being declared by the FCA to be an ROIE.
Having the status of an ROIE facilitates the participation of overseas investment exchanges in UK markets. In comparison with authorisation, it reduces the involvement which UK authorities need to have in the day-to-day affairs of an overseas recognised body because they are able to rely substantially on the supervisory and regulatory arrangements in the country where the applicant's head office is situated.
Overseas investment exchanges which are considering whether to seek authorisation or recognition should first consider whether they will be carrying on regulated activities in the United Kingdom. Overseas investment exchanges which do not carry on regulated activities in the United Kingdom need take no action.
Prospective applicants should discuss authorisation and recognition with the FCA before deciding whether to seek authorisation or recognition.
A prospective applicant may wish to contact the Infrastructure and Trading Firms Department at the FCA at an early stage for advice on the preparation, scheduling and practical aspects of an application to become an overseas recognised body.
Applicants for authorised person status should refer to the FCA website “Authorisation”: www.fca.org.uk/firms/authorisation. Applications for recognition as an overseas recognised body should be addressed to:
The Financial Conduct Authority (Infrastructure and Trading Firms Department)
12 Endeavour Square
London, E20 1JN
There is no standard application form for application for recognition as an ROIE. An application should be made in accordance with any direction the FCA may make under section 287 (Application by an investment exchange) of the Act and should include:
the information, evidence and explanatory material necessary to demonstrate to the FCA that the recognition requirements (set out in REC 6.3) will be met;
the application fee (see REC 7);
the address of the applicant's head office in its home territory;
the address of a place in the United Kingdom for the service on the applicant of notices or other documents required or authorised to be served on it under the Act (see section 292(1));
the applicant's regulatory provisions;
one copy of each of the following documents:
its most recent annual report and accounts; and
the applicant's memorandum and articles of association or any similar or analogous documents; and
information identifying the following (if not contained in the documents listed in (5) or (6) or the material referred to in (1)):
any type of regulated activity which the applicant envisages carrying on in the United Kingdom;
any type of specified investmentdealt in on, or arranged to be cleared through the applicant;
the date by which the applicant wishes the recognition order to take effect; and
any body or authority which supervises the applicant under the law of the home territory, the status of the applicant under that law, and the enactment or regulation under which the supervision is conducted.
The FCA may require further information from the applicant and may need to have discussions with the appropriate authorities in the applicant's home territory. To allow sufficient time for applications to be processed and for the necessary contacts to be made with the appropriate home territory authorities, applications should be made not later than six months before the applicant wishes the recognition order to take effect. No guarantee can be given that a decision will be reached within this time, although the FCA will endeavour to meet the applicant's reasonable timing requirements.
All material should be supplied in English, or accompanied, if appropriate, by an accurate English translation. An English glossary of technical or statistical terms may be sufficient to accompany tables of statistical or financial information.
Before making a recognition order, the FCA will need to be satisfied that the recognition requirements in section 292(3) of the Act (Overseas investment exchanges) have been met. These requirements are the only recognition requirements applicable to ROIEs.
| Section 292(3) | |
| The requirements are that- | |
| (a) | investors are afforded protection equivalent to that which they would be afforded if the body concerned were required to comply with - |
| (i) recognition requirements, other than any such requirements which are expressed in regulations under section 286 not to apply for the purposes of this paragraph; and | |
| (ii) requirements contained in any directly applicable Community regulation made under the markets in financial instruments directive or markets in financial instruments regulation; | |
| (b) | there are adequate procedures for dealing with a person who is unable, or likely to become unable, to meet his obligations in respect of one or more market contracts connected with the [ROIE] |
| (c) | the applicant is able and willing to co-operate with the[FCA] by the sharing of information and in other ways; and |
| (d) | adequate arrangements exist for co-operation between the[FCA] and those responsible for the supervision of the applicant in the country or territory in which the applicant's head office is situated. |
| Section 292(4) | |
| In considering whether it is satisfied as to the requirements mentioned in subsections (3)(a) and (b), the[FCA] is to have regard to- | |
| (a) | the relevant law and practice of the country or territory in which the applicant's head office is situated; |
| (b) | the rules and practices of the applicant. |
The reference to recognition requirements in section 292(3)(a) of the Act is a reference to the requirements applicable to UK RIEs in the Recognition Requirements Regulations. These requirements are set out, together with guidance, in REC 2.
If the FCA considers that the requirements of the Act are satisfied, it may make a recognition order, which will state the date on which it takes effect.
Where the FCA considers that it is unlikely to make a recognition order, it will discuss its concerns with the applicant with a view to enabling the applicant to make changes to its rules or guidance, or other parts of the application. If the FCA decides to refuse to make a recognition order, it will follow the procedure set out in section 298 of the Act (Directions and revocation: procedure) (which applies in consequence of section 290(5) of the Act (Recognition orders)) which is described in more detail in REC 4.8.
An ROIE is required to notify the FCA of certain events and give information to it on a regular basis and when certain specified events occur. Section 295 of the Act (Notification: overseas investment exchanges and overseas clearing houses) requires each ROIE to provide the FCA with a report (at least once a year) which contains:
a statement as to whether any events have occurred which are likely to affect the FCA's assessment of whether it is satisfied that the ROIE continues to satisfy the recognition requirements set out in the section 292(3) of the Act (Overseas investment exchanges and overseas clearing houses) (see REC 6.3);
the information specified in the FCA's notification rules for ROIEs (see REC 6.7).
The following events are examples of events likely to affect an assessment of whether an ROIE is continuing to satisfy the recognition requirements
significant changes to any relevant law or regulation in its home territory, including laws or regulations:
governing exchanges or, if relevant to an ROIE's satisfaction of the recognition requirements, clearing houses;
designed to prevent insider dealing, market manipulation or other forms of market abuse or misconduct;
designed to protect the interests of clients of members of the ROIE, or of a class of bodies which includes the ROIE;
which affect:
the ability of the ROIE to seek information (whether compulsorily or voluntarily) from its members, including information relating to the price and volume of transactions, the identity of parties to transactions, and the movement of funds associated with transactions;
the ability of theROIE to pass such information, on request, to UK authorities;
significant changes to its internal organisation or structure;
significant changes to the practices of the ROIE applying to any regulated activities carried on by it in the United Kingdom;
any other event or series of events in relation to the body which:
affects or may significantly affect cooperation between the ROIE, or its supervisor in its home territory, and the FCA; or
has or may have a substantial effect on the structure of the markets in which the body operates; or
brings about or may bring about a substantial change in the nature and composition of its membership in the United Kingdom; or
brings about or may bring about a substantial change in the regulated activities undertaken by it in the United Kingdom.
The period covered by a report submitted under section 295(1) of the Act starts on the day after the period covered by its last report or, if there is no such report, after the making of the recognition order recognising theROIE as such, and ends on the date specified in the report or, if no date is specified, on the date of the report.
If an ROIE changes the period covered by its report, it should ensure that the first day of the period covered by a report is the day immediately following the last day of the period covered by the previous report.
The period covered by a report submitted under section 295(1) of the Act would most conveniently be one year.
Copies of the report should be sent to the FCA within two months after the end of the period to which it relates.
The notification rules in this chapter, which are made under sections 293 (Notification requirements) and 295 of the Act (Notification: overseas investment exchanges and overseas clearing houses), apply to all ROIEs.
The notification rules in this chapter are made by the FCA in order to ensure that it is provided with notice of events and information which it reasonably requires for the exercise of its functions under the Act.
Where an ROIE includes in its report made under section 295(1) of the Act (Notification: overseas investment exchanges and overseas clearing houses) a statement in compliance with section 295(2)(a) of the Act that an event has occurred in the period covered by that report which is likely to affect the FCA's assessment of whether it is satisfied as to the requirements set out in section 292(3) (Overseas investment exchanges and overseas clearing houses), it must include particulars of that event.
An ROIE must include in its report submitted in compliance with section 295(1) of the Act:
particulars of any changes to:
its memorandum and articles of association or any similar or analogous documents;
its chairman or president, or chief executive (or equivalent);
particulars of any disciplinary action (or any similar or analogous action) taken against it by any supervisory authority in its home territory, whether or not that action has been made public in that territory;
a copy of its annual report and accounts; and
a statement as to whether any events have occurred which are likely to have any material effect on competition;
where those events occurred, or the period covered by that annual report and accounts ended, in the period covered by that report.
An ROIE must include in the first report submitted under section 295(1) of the Act after the recognition order in relation to that ROIE is made:
particulars of any events of the kind described in section 295(2) of the Act which occurred;
particulars of any change specified in REC 6.7.4 R (1) or disciplinary action specified in REC 6.7.4 R (2) which occurred; and
any annual report and accounts which covered a period ending;
after the application for recognition was submitted to the FCA but which were not included in the application or in any supplementary information submitted to the FCA before the recognition order was made.
Guidance on the period covered by an ROIE's report submitted in compliance with section 295(1) of the Act is given in REC 6.6.3 G.
Where an ROIE proposes to change:
its address in the United Kingdom for the service of notices or other documents required or authorised to be served on it under the Act; or
the address of its head office;
it must give notice to the FCA and inform it of the new address at least 14 days before the change is effected.
Where an ROIE has notice that any licence, permission or authorisation which it requires to conduct any regulated activity in its home territory has been or is about to be:
revoked; or
modified in any way which would materially restrict the ROIE in performing any regulated activity in its home territory or in the United Kingdom;
it must immediately notify the FCA of that fact and must give the FCA the information specified for the purposes of this rule in REC 6.7.9 R, as soon as that information is known to it.
The following information is specified for the purposes of REC 6.7.8 R:
particulars of the licence, permission or authorisation which has been or is to be revoked or modified, including particulars of the ROIEsregulated activities to which it relates;
an explanation of how the revocation or modification restricts or will restrict the ROIE in carrying on any regulated activity in its home territory or in the United Kingdom;
the date on which the revocation or modification took, or will take, effect and, if it is a temporary measure, any date on which, or any conditions that must be met before which, it will cease to have effect; and
any reasons given for the revocation or modification.
Any notice to be given or information to be supplied under these notification rules must be supplied in English, and any document to be provided must be accompanied, if not in English, by an accurate English translation.
An English glossary of technical or statistical terms may be sufficient to accompany tables of statistical or financial information.
ROIEs may apply to the FCA for a waiver of any of the notification rules. The procedure is the same as that for applications from UK recognised bodies. Guidance on the procedure is given in REC 3.3.
The FCA has similar powers to supervise ROIEs to those it has to supervise UK RIEs. It may (in addition to any other powers it might exercise):
give directions to an ROIE under section 296 of the Act (Authority's power to give directions) if it has failed, or is likely to fail, to satisfy the recognition requirements or if it has failed to comply with any other obligation imposed by or under the Act; or
revoke a recognition order under section 297 of the Act (Revoking recognition) if an ROIE is failing, or has failed, to comply with the recognition requirements or any other obligation in or under the Act; or
require an ROIE or a person connected with the ROIE, under section 165 of the Act, to provide or produce specified information or information of a specified description, at a specified place and before the end of a reasonable period, in such form and with such verifications or authentications as it may reasonably require; or
require any of the following persons, under section 166 of the Act, to provide the FCA with a report on any matter, or appoint a skilled person to provide the FCA with information or produce documents with respect to any matter:
