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AIFC COMPANIES RULES (COR)

AIFC RULES NO. GR0004 OF 2017
(with amendments as of 17 October 2021, which commence on 01 January 2022)
Approval date: 29 December 2017 Commencement date: 1 January 2018

Kazakhstan

CONTENTS

PART 1: GENERAL

1.1. Name

1.2. Commencement

1.3. Legislative authority

1.4. Application of these Rules

1.5. Definitions etc

1.6. Administration of these Rules.

PART 2: PROVISIONS ABOUT COMPANIES

2.1. Application for incorporation etc

2.2. Articles of Association

2.3. Address of registered office

2.4. Company names

2.5. Secretary

PART 3: PROVISIONS ABOUT RECOGNISED COMPANIES

3.1. Initial assessment for registration as Recognised Company

3.2. Initial assessment process

3.3. Background and history

3.4. Ownership and Group

3.5. Resources

3.6. Application for registration as Recognised Company

3.7. Addresses for Recognised Companies

PART 4: PRIVATE COMPANIES AND PUBLIC COMPANIES

4.1. Registers of Directors and Secretary

4.2. Evidence of title to Securities

4.3. Allotment of Shares

PART 5: TRANSFER OF INCORPORATION

5.1. Transfer of incorporation to AIFC

5.2. Certificate of continuation

5.3. Transfer of incorporation from AIFC

PART 6: INVESTMENT COMPANIES

6.1. Investment Companies prescribed type of Company for Companies Regulations

6.2. Investment Companies: modification of Companies Regulations and general powers of AFSA

6.3. Incorporation of, or conversion into, Investment Company

6.4. Investment Companies: permissible uses and AFSA consents

6.5. Investment Companies: revocation of AFSA consents

6.6. Investment Companies: directions by AFSA

6.7. Investment Companies: Shares and Register of Shareholders

6.8. Investment Companies: Share transfers and redemptions

PART 7: MISCELLANEOU

7.1. Public registers

7.2. Forms

7.3. Decision-Making Procedures for Registrar

7.3.-1 Retention

7.4. Fine limits

PART 8: PROTECTED CELL COMPANIES

8.1. Protected Cell Companies prescribed type of Company for Companies Regulations

8.2. Modification of Companies Regulations and general powers of AFSA

8.3. Incorporation of, or conversion into, Protected Cell Company

8.4. Revocation of AFSA consents

8.5. Directions by AFSA

8.6. Cell Shares and Share Capital

8.7. Shares and Register of Shareholders

8.8. Share transfers

8.9. Cellular and Non-Cellular Assets

8.10. Prohibition on dealings or transactions between Cells

8.11. Separation of assets

8.12. Disclosure of dealings with Protected Cell Company

8.13. Further provisions concerning personal liability

8.14. Rights of creditors and implied terms

8.15. Availability of Cellular Assets to creditors

8.16. Satisfaction of liabilities attributable to Cells

8.17. Disputes as to liabilities attributable to Cells

8.18. Transfer of Cellular Assets from Protected Cell Company

PART 9: RESTRICTED SCOPE COMPANIES

9.1. Restricted Scope Companies prescribed type of Company for Companies Regulations

9.2. Restricted Scope Companies: modification of Companies Regulations and general powers of AFSA

9.3. Restricted Scope Companies limited to certain Private Companies

9.4. Revocation of Restricted Scope Company status

9.5. Restricted Scope Company: Formation

9.6 Disapplication of other provisions of Companies Regulations and Companies Rules

SCHEDULE 1: [intentionally omitted]

SCHEDULE 2: DECISION MAKING PROCEDURES FOR REGISTRAR OF COMPANIES

SCHEDULE 3: FINE LIMITS

SCHEDULE 4: INTERPRETATION

SCHEDULE 5: STANDARD ARTICLES OF ASSOCIATION FOR PRIVATE COMPANIES

SCHEDULE 6: STANDARD ARTICLES OF ASSOCIATION FOR PUBLIC COMPANIES

PART 1: GENERAL

1.1. Name

These Rules are the AIFC Companies Rules 2017 (or COR).

1.2. Commencement

These Rules commence on 1 January 2018.

1.3. Legislative authority

These Rules are adopted by the Board of Directors of the AFSA under section 181 (Power to adopt Rules etc.) of the AIFC Companies Regulations.

1.4. Application of these Rules

These Rules apply within the jurisdiction of the AIFC.

1.5. Definitions etc.

1.5.1. Schedule 4 (Interpretation) contains definitions used in these Rules.

1.5.2. Terms used in these Rules (other than terms defined in Schedule 4) have the same meanings as they have, from time to time, in the AIFC Companies Regulations, or the relevant provisions of those Regulations, unless the contrary intention appears.

Note: For definitions in the AIFC Companies Regulations applying to these Rules, see Schedule 1 of those Regulations. The definitions in that Schedule relevant to these Rules include the following:

· Accounting Records

· AFSA

· AIFCA

· AIFC Regulations

· AIFC Rules

· Allotment, of Shares in a Company

· Annual General Meeting, of a Company

· Articles of Association, of a Company

· Body Corporate

· Breach

· Company

· Contravene

· Court

· Creditor

· Director, in relation to a Company or another Body Corporate

· Distribution, in relation to a Company

· Document

· Exercise

· Fail

· Financial Services Regulator

· Foreign Company

· Function

· General Meeting, of a Company

· Incorporator, of a Company (or proposed Company)

· Legislation Administered by the Registrar

· Liability

· Objectives, of the Registrar

· Officer, of a Company or another Body Corporate

· Ordinary Resolution, of a Company

· Paid-up

· Person

· Personal Representative, in relation to an individual who has died

· Private Company

· Public Company

· Recognised Company

· Registered Details

· Registrar of Companies (or Registrar)

· Resolution, of a Company

· Secretary, of a Company or another Body Corporate

· Security, of a Company

· Share, in a Company

· Shareholder, of a Company

· Special Resolution, of a Company

· Subsidiary

· Writing.

1.6. Administration of these Rules

These Rules are administered by the Registrar of Companies.

PART 2: PROVISIONS ABOUT COMPANIES

2.1. Application for incorporation etc.

2.1.1. The Person or Persons applying for the incorporation of a company must use the form prescribed by the Registrar of Companies.

2.1.2. If the proposed, or a proposed. company secretary is:

(a) a Body Corporate—the Body Corporate must be incorporated, established or registered in the AIFC or

(b) a partnership—the partnership must be registered or incorporated in the AIFC.

2.1.3. If an Incorporator is a Body Corporate that is incorporated in a jurisdiction outside the AIFC and is not registered in the AIFC, the application for incorporation of the company must be accompanied by a copy of the Incorporator’s current certificate of incorporation or registration in that jurisdiction, or a Document of similar effect, certified by the relevant authority in that jurisdiction. The Document accompanying the application must be acceptable to the Registrar of Companies.

2.1.4. If the Document is not in the English language, the Document must be accompanied by an English translation certified to the satisfaction of the Registrar of Companies.

2.2. Articles of Association

2.2.1. For the definition of Standard Articles in Schedule 1 of the AIFC Companies Regulations, the provisions of this rule provide the standard articles of association for:

(a) a Private Company – Schedule 5 (STANDARD ARTICLES FOR PRIVATE COMPANIES);

(b) a Public Company – Schedule 6 (STANDARD ARTICLES FOR PUBLIC COMPANIES).

2.2.2. If the proposed Articles of Association filed with an application for the incorporation of a company do not adopt the Standard Articles in their entirety, the proposed Articles of Association must, for section 14(2)(c) of the AIFC Companies Regulations, include provision for the following matters:

(a) information set out in the form prescribed by the Registrar of Companies;

(c) the principal business activities;

(d) the rights attaching to Shares or classes of Shares;

(e) the transfer of Shares;

(f) if a Public Company, an Annual General Meeting;

(g) if a Public Company, the proceedings, including voting at General Meetings;

(h) if a Public Company, accounts and other information to be provided to Shareholders before the Annual General Meetings;

(і) the maximum number of Directors;

(j) the appointment, retirement, disqualification and removal of Directors;

(k) the powers of Directors;

(l) proceedings of Directors;

(m) if the company is to have a Secretary (or joint Secretaries)—appointment of the Secretary (or joint Secretaries);

(n) the keeping of minutes of all proceedings at General Meetings, meetings of the holders of any class of Shares, and meetings of Directors and of committees of Directors;

(o) the division of powers between the Shareholders and Directors;

(p) the issue of new Shares;

(q) if there are any restrictions on the transfer of Shares—the restrictions;

(r) termination and liquidation of the Company.

2.3. Address of registered office

2.3.1. This rule applies to the address of the registered office of a Company, as set out in an application for incorporation or notification of a change in Registered Details.

2.3.2. The address must include the following details, so far as they are applicable:

(a) the name (or number) of the building;

(b) the floor or level of that building.

2.3.1. The address must consist of a location address and, if different, a postal address.

2.4. Company names

2.4.1. A Person may apply to the Registrar of Companies for the reservation of a name for a Company (or proposed Company).

2.4.1. If the name is acceptable to the Registrar of Companies, the Registrar must reserve the name for 30 days.

2.4.2. The following provisions apply to the name of a Company or the reservation of a name for a Company (or a proposed Company):

(a) the name must use letters of the English alphabet, numerals or other characters acceptable to the Registrar of Companies;

(b) the name must not, in the opinion of the Registrar, be, or be reasonably likely to become, misleading, deceptive or conflicting with another name (including an existing name of another Company or Recognised Company);

(c) the name must not include words that may suggest a relationship with the AIFCA, AFSA or any other governmental authority in the AIFC, Nur-Sultan or the Republic of Kazakhstan, unless the relevant authority has consented in Writing to the use of the name;

(d) the name must not include any of the following words unless the AFSA has consented in Writing to their use:

(і) the word ‘bank’, ‘insurance’ or ‘trust’;

(ii) words that suggest that the Company (or proposed Company) is a bank, insurance company or trust company;

(iii) words that suggest in some other way that it is authorised to conduct Financial Services in the AIFC;

(e) the name must not include words that may suggest a connection with, or the patronage of, any Person or organisation, unless the Person or organisation has consented in Writing;

(f) the name must not be, in the opinion of the Registrar, otherwise undesirable.

2.4.4. An application for the reservation of a name for a Company (or proposed Company) must be accompanied by the prescribed fee set out in the Rules from time to time.

2.5. Secretary

2.5.1. A Body Corporate must not be the Secretary (or a Secretary) of a Company unless the Body Corporate is incorporated, established or registered in the AIFC.

2.5.2. A partnership must not be the Secretary (or a Secretary) of a Company unless the partnership is registered or incorporated in the AIFC.

PART 3: PROVISIONS ABOUT RECOGNISED COMPANIES

3.1. Initial assessment for registration as Recognised Company

3.1.1. Before a Foreign Company applies to the Registrar of Companies to be registered as a Recognised Company, the Foreign Company must arrange with the Registrar to have an initial assessment made of its suitability to be registered as a Recognised Company. The Registrar may conduct an initial meeting with the Foreign Company as part of the assessment process.

3.1.2. For the initial assessment, the Foreign Company must provide the following to the Registrar of Companies:

(a) a copy of the Foreign Company’s current certificate of incorporation or registration in the jurisdiction in which is incorporated (the relevant jurisdiction), or a Document of similar effect, certified by the relevant authority in the relevant jurisdiction;

(b) a copy of the Foreign Company’s current constitution certified as a true copy by a Secretary or Director of the Foreign Company;

(c) a copy of the Foreign Company’s most recent accounts filed, if applicable, with the relevant authority in the relevant jurisdiction;

(d) a copy of the Foreign Company’s certificate of good standing, or a Document of similar effect, issued by the relevant authority in the relevant jurisdiction;

(e) if the Foreign Company is subject to the supervision of a Financial Services Regulator in the relevant jurisdiction or any other jurisdiction and the Financial Services Regulator supports the Foreign Company being registered as a Recognised Company—any Document of support provided by the Financial services Regulator.

3.1.3. Each of the Documents must be acceptable to the Registrar of Companies.

3.1.4. If any of the Documents are not in the English language, the Documents must be accompanied by an English translation certified to the satisfaction of the Registrar of Companies.

3.2. Initial assessment process

3.2.1. In making an initial assessment of a Foreign Company’s suitability to be registered as a Recognised Company, the Registrar of Companies may consider the following:

(a) the matters mentioned rules 3.3 (Background and history), 3.4 (Ownership and Group) and 3.5 (Resources);

(b) whether the applicant is subject to supervision by a Financial Services Regulator;

(c) any Document of support provided for rule 3.1.2(e) (Initial assessment for registration as Recognised Company);

(d) any other matters the Registrar considers relevant.

3.2.2. For the assessment:

(a) the Foreign Company must demonstrate to the satisfaction of the Registrar of Companies that it is fit and proper; and

(b) the Foreign Company must demonstrate to the Registrar’s satisfaction that its principal manager is fit and proper; and

(c) the Registrar may consider any matter that may harm, or may have harmed, the integrity or the reputation of the AFSA or AIFC; and

(d) the Registrar may consider the activities of the Foreign Company and the associated risks, and accumulation of risks, that those activities pose to the Registrar’s Objectives; and

(e) the Registrar may consider the cumulative effect of factors that, if taken individually, may be regarded as insufficient to give reasonable cause to doubt the fitness and propriety of the Foreign Company.

3.2.3. The Registrar of Companies may require the Foreign Company to provide any information or Document that the Registrar considers relevant to making the initial assessment of the Foreign Company.

3.3. Background and history

For this rule, the Registrar of Companies may consider the following matters in relation to the Foreign Company:

(a) any matter affecting the propriety of the Foreign Company’s conduct, whether or not the conduct may have resulted in the commission of a criminal offence or the Contravention of the law or the institution of legal or disciplinary proceedings of whatever nature;

(b) whether the Foreign Company has ever been the subject of disciplinary procedures by a government body or agency or any self-regulating organisation or other professional body;

(c) whether the Foreign Company has been refused, or had a restriction placed on, its right to conduct a business or profession requiring a licence, registration or other permission;

(d) whether the Foreign Company has been censured, disciplined, publicly criticised or the subject of a court order on the application (however described) of any regulatory authority, any officially appointed inquiry, or any other Financial Services Regulator.

3.4. Ownership and Group

3.4.1. For this rule, the Registrar of Companies may consider the following matters in relation to the Foreign Company:

(a) any information provided by other regulators in relation to the Foreign Company or any entity within its Group;

(b) the Foreign Company’s connection with its controllers;

(c) whether the Foreign Company or its Group is subject to any adverse effect or considerations arising from its jurisdiction of incorporation or the jurisdiction (or jurisdictions) of incorporation of its controllers.

3.4.2. In considering the matters mentioned in subrule 3.4.1(c), the Registrar of Companies may also consider the type and level of regulatory oversight in any relevant jurisdiction, the regulatory infrastructure in that jurisdiction, and adherence to internationally held conventions and standards by that jurisdiction.

3.5. Resources

For this rule, the Registrar of Companies may consider whether the Foreign Company has sufficient resources of all types, including whether the Foreign Company has:

(a) sufficient and appropriate systems and procedures to support, monitor and manage its affairs, resources and regulatory obligations in a sound and prudent way; and

(b) appropriate anti-money laundering and combating terrorist financing procedures and systems designed to ensure full compliance with applicable anti-money laundering and combating terrorist financing legislation, including arrangements to ensure all relevant staff are aware of their obligations; and

(c) a sufficient range of individuals with appropriate skills and experience to understand, operate and manage the Foreign Company’s affairs in a sound and prudent way; and

(d) robust human resources policies designed to ensure high standards of conduct and integrity in the conduct of its activities.

3.6. Application for registration as Recognised Company

3.6.1. A Foreign Company applying to the Registrar of Companies for registration as a Recognised Company must use the applicable form prescribed by the Registrar.

3.6.2. The application must state the following:

(a) the address of the Foreign Company’s proposed principal place of business in the AIFC;

(b) the nature of the business the Foreign Company proposes to conduct in or from the AIFC;

(c) the name and address of each Person authorised to accept service of any Document or notice on behalf of the company;

(d) the following information for each Director of the Foreign Company:

(і) the full name, nationality and address of the Director;

(ii) if the Director has a former name (including, for an individual, any former given or family name)—the former name or, if the Director has 2 or more former names, each former name;

(iii) the Director’s date and place of birth, incorporation, formation or registration, as the case may be;

(iv) the Director’s address;

(e) the address of the Foreign Company’s registered office in its place of origin or, if it is not required to have a registered office under the laws of the place of origin, the address of its principal place of business in its place of origin.

3.6.3. The application must be accompanied by the Documents mentioned in rule 3.1.2(a), (b), (c), (d) and (e) (Initial assessment for registration as Recognised Company).

3.6.4. However, the Registrar of Companies may exempt the Foreign Company from a requirement under this rule to provide any information or Document if the information or Document was provided to the Registrar for the initial assessment under rule 3.1.

3.6.5. The Registrar of Companies may also require the Foreign Company to provide any other information or Document that the Registrar considers relevant to making a decision on the application.

3.6.6. In making a decision on the application, the Registrar of Companies may take into account any assessment made under this Part of the suitability of the Foreign Company to be registered as a Recognised Company and any information or Document obtained for or in relation to such an assessment. However, this subrule does not limit the matters that the Registrar may take into account.

3.7. Addresses for Recognised Companies

3.7.1. This rule applies to the following addresses in relation to a Foreign Company or Recognised Company, as set out in an application for registration or notification of a change in Registered Details:

(a) the address (or proposed address) the company’s principal place of business in the AIFC;

(b) the address of a Person authorised to accept service of any Document or notice on behalf of the company.

3.7.2. The address must include the following details, so far as they are applicable:

(a) the name (or number) of the building;

(b) the floor or level of that building.

3.7.3. The address must consist of a location address and, if different, a postal address.

PART 4: PRIVATE COMPANIES AND PUBLIC COMPANIES

4.1. Registers of Directors and Secretary

4.1.1. The Register of Directors under section 90 (Register of Directors and Secretaries) of the AIFC Companies Regulations must contain the required particulars of each Person who is or has been a Director of the Company and be kept in alphabetical order of the names.

4.1.2. The Register of Secretaries, if applicable, under section 90 of the AIFC Companies Regulations must contain the required particulars of each Person who is or has been a Secretary of the Company, and be kept in alphabetical order of the names.

4.1.3. In this rule:

required particulars, in relation to a Person who is or has been a Director or Secretary of the Company, means the following particulars:

(a) the Person’s full name;

(b) if the Person has a former name (including, for an individual, any former given or family name)— the former name or, if the Person has 2 or more former names, each former name;

(c) the Person’s date and place of birth, incorporation, formation or registration, as the case may be;

(d) the Person’s address;

(e) if the Person has had a former address within the last 5 years—the former address;

(f) the date the Person was appointed as a Director or Secretary, as the case may be;

(g) if relevant, the date the Person ceased to be a Director or Secretary, as the case may be.

4.2. Evidence of title to Securities

4.2.1. Subject as otherwise provided in the Articles of Association, for sections 54 (Transfer and registration of Shares and Debt Securities) and 58 (Share certificates) of the AIFC Companies Regulations, title to Shares may be evidenced and transferred without a Written instrument of transfer, and title to Shares may be evidenced without a Written instrument, in accordance with the following requirements:

(a) where, following a transfer of title evidenced, to the satisfaction of the Company, otherwise than by a Written instrument, details of a Shareholder are to be deleted from, and those of another are to be added to, the Company’s Register of Shareholders, the Company must provide Written notice of the deletion to the former Shareholder and Written notice of the addition to the new Shareholder;

(b) when the details of a Shareholder are amended in the Company’s Register of Shareholders, the Company must provide Written notice of the change to the Shareholder;

(c) if share certificates have previously been issued by the Company, the Company must require the return of share certificates and, on their return, must cancel them;

(d) the Company will not recognise the rights of third parties in relation to issued Shares.

4.2.2. For section 54 of the AIFC Companies Regulations, title to Debt Securities may be evidenced and transferred without a Written instrument of transfer in accordance with the following requirements:

(a) where, following a transfer of title evidenced, to the satisfaction of the Company, otherwise than by a Written instrument, details of a Debt Security Holder are to be deleted from, and those of another are to be added to, the Company’s Register of Debt Securities Holders, the Company must provide Written notice of the deletion to the former Debt Security Holder and Written notice of the addition to the new Debt Security Holder;

(b) when details of a Debt Security holder are amended in the Company’s Register of Debt Security Holders, the Company must provide Written notice of the change to the Debt Security holder;

(c) the Company will not recognise the rights of third parties in relation to issued Debt Securities.

4.2.3. If a Company evidences title to Shares without a Written instrument:

(a) an entry relating to a Person in the Register of Shareholders maintained under section 52 (Register of Shareholders) of the AIFC Companies Regulations is evidence of the following:

(і) the Person being a Shareholder of the Company;

(ii) the number of Shares held by the Person;

(iii) if the Company has 2 or more classes of issued Shares—the class, or classes, of Shares held by the Person and the number of shares of that class, or each of those classes, held by the Person;

(iv) the date the Person became a Shareholder; and

(b) a transfer of Shares in the Company must take place in accordance with:

(і) if the Company’s Shares are admitted to a register of listed securities—the rules of the relevant exchange and clearing house; and

(ii) in any other case—the Company’s Articles of Association.

4.2.4. No notice of any trust, express, implied or constructive, is to be taken in account of by a Company or entered on the Register of Shareholders maintained under section 52 (Register of Shareholders) of the AIFC Companies Regulations.

4.3. Allotment of Shares

If a Company allots Shares in the Company, the Company must, within 14 days after the day that it allots the Shares, notify the Registrar of Companies in Writing of the Allotment of the Shares.

PART 5: TRANSFER OF INCORPORATION

5.1. Transfer of incorporation to AIFC

5.1.1. An application by a Foreign Company to the Registrar of Companies under section 151 (Transfer of incorporation to AIFC) of the AIFC Companies Regulations for the continuation of the Foreign Company as a Company must be accompanied by the following:

(a) a copy of the Foreign Company’s current certificate of incorporation or registration in the jurisdiction in which it is incorporated (the relevant jurisdiction), or a Document of similar effect, certified by the relevant authority in the relevant jurisdiction;

(b) a copy of the Foreign Company’s current constitution certified as a true copy by a Secretary or Director of the Foreign Company;

(c) evidence satisfactory to the Registrar that the Foreign Company is authorised by the laws of the relevant jurisdiction to be continued under the laws of another jurisdiction and that it has complied with all the relevant requirements under the laws of the relevant jurisdiction;

(d) evidence satisfactory to the Registrar that all necessary consents in the relevant jurisdiction have been obtained and certified by the relevant authorities of that jurisdiction;

(e) a copy of the Foreign Company’s most recent accounts filed, if applicable, with the relevant authority in the relevant jurisdiction;

(f) a copy of the Foreign Company’s certificate of good standing, or a Document of similar effect, issued by the relevant authority in the relevant jurisdiction;

(g) if the Foreign Company is subject to the supervision of a Financial Services Regulator in the relevant jurisdiction or any other jurisdiction and the Financial Services Regulator supports the Foreign Company being registered as a Recognised Company—any Document of support provided by the Financial services Regulator;

(h) a declaration by the Directors of the Foreign Company under subrule 5.1.5.

5.1.2. Each the Documents must be acceptable to the Registrar of Companies.

5.1.3. If any of the Documents are not in the English language, the Documents must be accompanied by an English translation certified to the satisfaction of the Registrar of Companies.

5.1.4. The Registrar of Companies may require the Foreign Company to provide any information or any other Document that the Registrar considers relevant to making a decision on the application.

5.1.5. For subrule 5.1.1(h), the declaration by the Directors of the Foreign Company must state that:

(a) the Foreign Company is able to pay its debts as they fall due; and

(b) there is no reasonable prospect of the Foreign Company being unable to pay its debts as they fall due; and

(c) the value of the Foreign Company’s current assets exceeds the amount of its current

Liabilities, taking into account its contingent and prospective Liabilities; and

(d) there are no applications made to any court:

(і) to put the Foreign Company into liquidation; or

(ii) to wind up the Foreign Company; or

(iii) to have the Foreign Company declared insolvent or otherwise unable to pay its debts as they fall due; or

(iv) for the appointment of a receiver or administrative receiver (however described) for any property of the Foreign Company.

5.1.6. If the Foreign Company is an Authorised Firm, an Authorised Market Institution, an Ancillary Service Provider or a Fund, the Registrar of Companies must not approve the application unless the AFSA has given its Written consent to the approval.

5.1.7. In addition, if the Foreign Company is a Fund, the Registrar of Companies must not approve the application unless satisfied that the Foreign Company would comply the requirements of Part 6 (Investment Companies) if the application were to be approved.

5.1.8. If the Registrar of Companies approves the application and issues a certificate of continuation to the Foreign Company, the Company must file with the Registrar any certificate or other Document issued under the laws of the relevant jurisdiction evidencing the fact the Company has ceased to be incorporated under those laws.

5.2. Certificate of continuation

The certificate of continuation issued by the Registrar of Companies under section 152(1)(a) (Certificate of continuance) of the AIFC Companies Regulations for a Foreign Company must include:

(a) the name of the company; and

(b) the company’s identification number; and

(c) a statement that the company is continued as a Company; and

(d) a statement that the company is a Private Company or a Public Company; and

(e) the date of continuation.

5.3. Transfer of incorporation from AIFC

5.3.3. An application by a Company to the Registrar of Companies for authorisation under section 156(1) (Transfer of incorporation from AIFC to another jurisdiction) of the AIFC Companies Regulations to transfer its incorporation to a jurisdiction outside the AIFC (the other jurisdiction), and request that it be continued as a Foreign Company, must be accompanied by the following:

(a) evidence satisfactory to the Registrar that:

(і) the Company is able to transfer its incorporation and be continued under the laws of the other jurisdiction; and

(ii) the laws of the other jurisdiction satisfy the requirements mentioned in section 156(2) of the AIFC Companies Regulations; and

(b) if the Company is an Investment Company, Authorised Firm, Authorised Market Institution or Ancillary Service Provider—the AFSA’s Written consent to the application; and

(c) a declaration by the Directors of the Company under subrule 5.3.3.

5.3.4. The Registrar of Companies may require the Company to provide any information or any other Document that the Registrar considers relevant to making a decision on the application.

5.3.5. For rule 5.3.1(c), the declaration by the Directors of the Company must state that:

(a) the Company is able to pay its debts as they fall due; and

(b) there is no reasonable prospect of the Company becoming Unable to Pay its Debts (within the meaning given by section 50 of the AIFC Insolvency Regulations); and

(c) the value of the Company’s current assets exceeds the amount of its current Liabilities, taking into account its contingent and prospective Liabilities; and

(d) there are no applications made to any court:

(і) to put the Company into liquidation; or

(ii) to wind up the Company; or

(iii) to have the Company declared Unable to Pay its Debts (within the meaning given by section 50 of the AIFC Insolvency Regulations); or

(iv) for the appointment of a receiver or administrative receiver (however described) for any property of the Company.

5.3.6. If a Company intends to make an application mentioned in subrule 5.3.1 to the Registrar of Companies, the Company must, not later than 60 days before the day the Company makes the application, publish a legible and comprehensible notice in 1 or more newspapers or other publications best suited to bring the intended transfer of incorporation to the attention of any Persons who may be affected by the transfer.

PART 6: INVESTMENT COMPANIES

6.1. Investment Companies prescribed type of Company for Companies Regulations

For Part 11 (Other types of Company) of the AIFC Companies Regulations, an Investment Company is prescribed as a type of Company.

6.2. Investment Companies: modification of Companies Regulations and general powers of AFSA

6.2.1. In accordance with section 143(2)(b) (Incorporation of prescribed type of Company) of the AIFC Companies Regulations, the application of section 74 (Directors) of those Regulations is modified in relation to its application to an Investment Company to permit an Investment Company to be managed by 1 Director, which may be a Body Corporate.

6.2.2. This Part is additional to the provisions of any AIFC Regulations or any other provisions of AIFC Rules that may apply to the incorporation of, or conversion to, an Investment Company, or that may apply to the operations and affairs and winding up of an Investment Company, including, for example, the provisions of the AIFC Companies Regulations, the AIFC Financial Services Framework Regulations, the AIFC Collective Investment Scheme Rules, the AIFC Insolvency Regulations and the AIFC Insolvency Rules.

6.2.3. This Part does not limit any powers of the AFSA under AIFC Financial Services Framework Regulations, the AIFC Collective Investment Scheme Rules or any other Legislation Administered by the AFSA.

6.3. Incorporation of, or conversion into, Investment Company

6.3.1. Subject to AIFC Companies Regulations and any other provisions of these Rules:

(a) a Company may be incorporated, under section 143 (Incorporation of prescribed types of Company) of those Regulations, as an Investment Company; or

(b) an existing Company may, if authorised by its Articles of Association and by a Special Resolution, be converted, under that section, into an Investment Company.

6.3.2. An Investment Company must either be an Open-Ended Investment Company or a Closed-Ended Investment Company.

6.3.3. However, a Company must not be incorporated as an Investment Company, an existing Company must not be converted into an Investment Company, and a Company must not operate an Investment Company, unless:

(a) the Company is formed, and is to operate, for the sole purpose of conducting the business of a Fund; and

(b) the AFSA has given its prior Written consent.

6.3.4. An application for the incorporation of a Company as an Investment Company, or for the conversion of an existing Company into an Investment Company, must be accompanied by a copy of any consent given by the AFSA under subrule 6.3.3.