Pursuant to section 37(8) of the Securities Markets Act 1988, Financial Markets Authority gives the following notice.
N o t i c e
1. Title, commencement, and expiry-(1) This notice may be cited as the Authorised Futures Exchange (ICE Futures Europe) Notice 2012.
(2) This notice shall come into force on the day after the date of its publication in the New Zealand Gazette and
shall continue in force until revoked by Financial Markets Authority.
2. Interpretation-(1) In this notice, unless the context otherwise requires:
Act means the Securities Markets Act 1988, and includes any re-enactment or replacement thereof.
Clearing House means ICE Clear Europe Limited or an alternative clearing house approved by the Financial Markets Authority.
Company means ICE Futures Europe.
Market means the derivatives market operated by
the Company and conducted in accordance with the Regulations.
Member has the meaning given to that term in the Regulations.
NZ Member means a Member who is resident or incorporated in New Zealand, or who is carrying on the business of dealing in futures contracts in New Zealand, whether or not that Member is also carrying on business in any other jurisdiction.
Regulations means the Rules and Regulations of the Company, including the Memorandum and Articles of Association, and the contract rules and procedures.
(2) Any term or expression that is defined in the Act and used, but not defined, in this notice has the same meaning as in the Act.
3. Authorisation - ICE Futures Europe-(1) The Company is declared to be authorised to conduct a futures market in New Zealand.
(2) The authorised futures market which the Company is authorised to conduct is the Market.
(3) The authorisation in clause 3(1) of this notice is subject to the conditions set out in clauses 4 to 9 of this notice.
4. Conditions relating to Regulations-(1) The Company must ensure that copies of the Regulations are available for public inspection, free of charge:
(a) during normal office hours, at the registered office of the Company; and
(b) at all reasonable times, on a website operated by or for the Company.
(2) The Company must notify Financial Markets Authority of any proposed amendments to the Regulations, where reasonably practical having regard to emergency situations, not less than 14 days before such amendments are effected.
(3) The Company must notify Financial Markets Authority if it seeks to transfer or assign any of its rights, entitlements, or obligations under the Regulations to any person, where reasonably practical having regard to emergency situations, not less than 14 days before such transfer or assignment becomes effective.
5. Conditions relating to the authorisation of NZ Members-(1) The Company must not, whether through the Regulations or through any other means, approve any person to carry on the business of dealing in futures contracts in New Zealand.
(2) The Company must require NZ Members to be authorised to carry on the business of dealing in futures contracts under Part 3 of the Act, unless that NZ Member is only dealing on its own account and the terms and conditions of that NZ Member’s participation in the Market restrict that NZ Member from dealing on behalf of others.
(3) The Company must require NZ Members to notify the Company immediately if that Member’s authorisation to carry on the business of dealing in futures contracts under Part 3 of the Act is revoked.
6. Conditions relating to clearing arrangements-(1) Clearing and settlement arrangements for transactions effected through the Market must be those provided by the Clearing House.
(2) The Company must notify Financial Markets Authority of any proposed amendments to the rules and procedures of the Clearing House, where reasonably practical having regard to emergency situations, not less than 14 days before such amendments are effected.
7. Conditions relating to reporting obligations-(1)
The Company must give Financial Markets Authority the following information:
(a) The current name and business address in
New Zealand of each NZ Member; and
(b) the name of the Clearing House clearing member used by each NZ Member to clear the trades of that NZ Member; and
(c) details of any written complaint received by the Company during the reporting period concerning a NZ Member or that NZ Member’s directors or other personnel where such complaint has not been resolved to the satisfaction of the complainant; and
(d) any information that the United Kingdom Financial Services Authority has obtained from the Company during the reporting period in relation to a NZ Member or in relation to the Company’s operation of the Market, except for information which the Company is not permitted to disclose under the Financial Services and Markets Act 2000 (United Kingdom) or the Proceeds of Crime Act 2002 (United Kingdom).
(2) The Company must give Financial Markets Authority the information under clause 7(1) within 30 days of the end of each reporting period. For the purposes of this clause 7, the reporting period is each six-month period ending on
30 June or 31 December.
(3) The Company must notify Financial Markets Authority if the Company:
(a) takes any disciplinary action for a contravention of the Regulations against any NZ Member; or
(b) knows or suspects that a NZ Member has committed, is committing, or is likely to commit a significant contravention of:
(i) the Regulations; or
(ii) the rules and procedures of the Clearing House, if applicable; or
(iii) the Act, the Securities Act 1978, any enactment made under either of those Acts, or any enactment which replaces either of those
Acts; or
(iv) any enactment effective in the Company’s place of incorporation which the NZ Member must comply with because of its participation in the Market.
(4) The Company must give the notice under clause 7(3) immediately after taking the disciplinary action, or knowing or suspecting the person has committed, is committing, or is likely to commit the significant contravention.
(5) Any notice given by the Company under clause 7(3) must include:
(a) the person’s name and contact details; and
(b) if it relates to a disciplinary action, the grounds for, nature of, and reasons for the action taken; and
(c) if it relates to a known or suspected contravention, the facts supporting the Company’s view and
to which obligation the known or suspected contravention relates; and
(d) any other information reasonably required by Financial Markets Authority in order to carry out
its functions.
(6) The Company must, if requested to do so in writing by Financial Markets Authority:
(a) give to Financial Markets Authority (or any person authorised by Financial Markets Authority) all information, documentation, assistance, and access to the Company’s facilities; and
(b) answer any question asked by Financial Markets Authority (or any person authorised by Financial Markets Authority),
that are necessary or desirable to enable Financial Markets Authority to fulfil its functions.
(7) The Company must notify Financial Markets Authority as soon as practical if:
(a) the Company’s licence to operate a derivatives market in the Company’s place of incorporation is varied or revoked; or
(b) any statutory requirement applying to the company as a result of, or in connection with, its operation of a derivative market is amended in a manner which materially alters an obligation or requirement imposed on the Company.
(8) Subject to any restrictions imposed by the Financial Services and Markets Act 2000 (United Kingdom) or
the Proceeds of Crime Act 2002 (United Kingdom), the Company must immediately notify Financial Markets Authority if:
(a) the Company becomes aware that the Company,
or any of the Company’s directors or senior management personnel, is subject to investigation
by any regulatory or law enforcement agency; or
(b) the Company, or any of the Company’s directors
or senior management personnel, is subject to any adverse finding by any Court, tribunal, regulatory authority, or disciplinary committee; or
(c) the Company becomes aware that the Clearing House, or any of its directors or senior management personnel, is subject to investigation by any regulatory or law enforcement agency; or
(d) the Company becomes aware that the Clearing House, or any of its directors or senior management personnel, is subject to any adverse finding by any Court, tribunal, regulatory authority, or disciplinary committee.
(9) The Company must, within 3 months after the end of its financial year, give a report to Financial Markets Authority on the extent to which it has complied with its obligations under clause 8 of this notice in the preceding financial year.
(10) The Company must at all times ensure Financial Markets Authority has been given notice of the person,
or persons, Financial Markets Authority should contact
in the first instance about matters it requires a response from the Company on.
8. Conditions relating to market supervision-(1) The Company must:
(a) to the extent that it is reasonably practicable, do all things necessary to ensure that the Market operates in a fair, orderly and transparent manner;
(b) have adequate arrangements for supervising the Market, including arrangements:
(i) for handling conflicts between the commercial interests of the Company and the need for the Company to ensure that the Market operates in a fair, orderly and transparent manner; and
(ii) for monitoring the conduct of Members; and
(iii) for enforcing compliance with the Regulations; and
(iv) that ensure there is a sufficiently independent adjudicative body to adjudicate on contraventions of the Regulations that are referred to it; and
(c) have sufficient resources (including financial, technological and human resources) to operate the Market properly and for the required supervisory arrangements to be provided.
9. Conditions relating to jurisdiction-The Company must submit to the non-exclusive jurisdiction of the
New Zealand Courts in actions brought by Financial Markets Authority.
Dated at Wellington this 13th day of February 2012.
ELAINE CAMPBELL, Head of Compliance Monitoring, Financial Markets Authority.