Pursuant to section 37(8) of the Securities Markets
Act 1988, the Financial Markets Authority gives the following notice.
N o t i c e
1. Title, commencement, and expiry-(1) This notice notice may be cited as the Authorised Futures Exchange (ICE Futures U.S., Inc) Notice 2013.
(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 the 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 U.S., Inc. or an alternative clearing house approved by the Financial Markets Authority.
Company means ICE Futures U.S., Inc.
Market means the derivatives market operated by the Company and conducted in accordance with the Rules.
Member means a "Member", or a "User" with "Direct Access", within the meaning of the Rules.
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.
Rules means the rules of the Company, and includes
the Charter, Certificate of Incorporation, By-Laws, and all other documents which form part of the rules as defined in the Rules.
(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 U.S., Inc declared an authorised futures exchange-(1) The Company is declared 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 Rules-(1) The Company must ensure that copies of the Rules 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 the Financial Markets Authority of any proposed material amendments to the Rules, where reasonably practicable having regard to emergency situations, not less than 14 days before such amendments are effected, unless the amendments relate to the listing of a new product on the Market.
(3) If the Company intends to list a new product on the Market, and the listing of that product will require an amendment to the Rules, the Company must notify the Financial Markets Authority of the proposed amendment to the Rules not less than 48 hours before such amendments are effected.
(4) The Company must notify the Financial Markets Authority if it seeks to transfer or assign any of its rights, entitlements, or obligations under the Rules to any person, where reasonably practicable 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 Rules 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 their 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 the Financial Markets Authority of any proposed amendments to the rules
and procedures of the Clearing House, where reasonably practicable 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 the 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
an 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 States Commodity Futures Trading Commission has obtained from the Company during the reporting period pursuant to
the Commodity Futures Trading Commission’s role as a regulator of the Company in relation to a
NZ Member or the Company’s operation of the Market in New Zealand.
(2) The Company must give the 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 the Financial Markets Authority if the Company:
(a) takes any disciplinary action for a contravention of the Rules 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 Rules; 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 the Financial Markets Authority in order to carry out
its functions.
(6) The Company must:
(a) give to the Financial Markets Authority (or any person authorised by the Financial Markets Authority) such information, documentation, assistance, and access to the Company’s facilities in each case
as requested in writing by the Financial Markets Authority; and
(b) answer any question asked by the Financial Markets Authority (or any person authorised by the Financial Markets Authority),
that is necessary or desirable to enable the Financial Markets Authority to fulfil its functions.
(7) The Company must notify the 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) To the extent permissible by law, the Company must immediately notify the 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 the 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 the Financial Markets Authority has been given notice of the person, or persons, the 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 for:
(i) 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) monitoring the conduct of Members; and
(iii) enforcing compliance with the Rules; and
(iv) ensuring there is a sufficiently independent adjudicative body to adjudicate on contraventions of the Rules 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 the Financial Markets Authority.
Dated at Wellington this 4th day of April 2013.
ELAINE CAMPBELL, Head of Compliance Monitoring, Financial Markets Authority.