Dated at Wellington this 5th day of May 2009.
The Common Seal of the Securities Commission was affixed in the presence of:
Statement of reasons
This notice, which comes into force on the day after the date of its notification in the Gazette and expires on 31 March 2014, exempts the directors of the Asian Development Bank (the ADB) from various provisions of the Financial Reporting Act 1993 (the Act).
The effect of the exemptions is to provide relief to the directors of the ADB from requirements of the Act relating to the preparation, content, auditing, and filing of financial statements. The exemptions are granted on the conditions that the ADB prepares and publicly files financial statements that it is required to file under the laws of the United States of America (the United States), that those financial statements comply with generally accepted accounting practice in the United States (US GAAP) or International Financial Reporting Standards (IFRS), that they include or are accompanied by an auditor's report, and that the directors of the ADB add information or explanations as required to ensure that they give a true and fair view of the matters to which they relate.
The Securities Commission (the Commission) must not grant an exemption under section 35A of the Act unless it is satisfied that—
the exemption would not cause significant detriment to subscribers for the securities of the issuer that are members of the public in New Zealand, having regard to the financial reporting requirements that must be complied with in relation to the issuer under the law in force in the country where the issuer is incorporated or constituted; and
the extent of the exemption is not broader than what is reasonably necessary to address the matters that gave rise to the exemption.
The Commission is satisfied that these requirements are met in the present case. The ADB is not incorporated in any jurisdiction. The ADB files its financial statements under the laws of the United States. The Commission has accordingly treated the ADB as having been constituted in the United States for the purposes of section 35A of the Act.
The Commission considers that it is appropriate to grant these exemptions for the following reasons:
there will not be any significant detriment to subscribers for the ADB's securities who are members of the public in New Zealand because—
the ADB is subject to specific financial reporting and filing requirements under the laws of the United States, and the conditions of the exemptions require the financial statements registered in New Zealand to comply with US GAAP or IFRS:
the ADB is an issuer under New Zealand law by reason of having offered securities in New Zealand using its United States offer documents and accounts under the Securities Act (Asian Development Bank) Exemption Notice 2009. The exemption allows ongoing financial reporting requirements to be consistent with the initial offer documents provided to subscribers:
the Commission has had regard to the financial reporting and audit requirements that must be complied with by the ADB under the agreement establishing the ADB and under United States law:
the Commission is satisfied that the financial statements prepared under US GAAP or IFRS provide sufficient information to avoid any detriment to subscribers:
the exemptions are not broader than is required because the ADB is still required to prepare, have audited, and publicly file its financial statements in New Zealand, but may only do so on the basis of US GAAP or IFRS.