Financial Markets Conduct (Asia Region Funds Passport) Regulations 2019

12 Preconditions concerning application for entry

(1)

The operator must, before making the offer,—

(a)

apply to the FMA for entry of the foreign passport fund in accordance with section 4(2) of Annex 2; and

(b)

ensure that the notification process described in section 6 of Annex 2 is completed (but with that process being applied as if the reference in that section to 21 days were a reference to 15 working days); and

(c)

comply with each request referred to in subclause (4) as soon as is reasonably practicable after receiving the request; and

(d)

pay the prescribed fee (see Schedule 1 of the Financial Markets Conduct (Fees) Regulations 2014).

(2)

For the purpose of subclause (1)(a), the information required under section 4(2)(c) of Annex 2 is the following information and all other information that is reasonably necessary to assess the foreign passport fund’s and operator’s compliance with New Zealand law:

(a)

a copy of every exemption or modification granted or given by the home regulator that is relevant to the offer:

(b)

the operator’s name, its financial service provider number, and the address of its principal place of business:

(c)

the home economy of the foreign passport fund:

(d)

a link to the home regulator’s Internet site to information that confirms that the foreign passport fund has been registered under section 3(3) of Annex 2:

(e)

the name of the dispute resolution scheme of which the operator is a member under the Financial Service Providers (Registration and Dispute Resolution) Act 2008:

(f)

the proposed name of the foreign passport fund to be used in New Zealand:

(g)

the total asset value under section 3(4)(a) of Annex 2 (calculated in accordance with section 3(5) of that Annex) as at the time of the application made under that section for the fund:

(h)

a link to the operator’s Internet site and a link for any Internet site of the foreign passport fund:

(i)

confirmation that, in all material respects,—

(i)

the foreign passport fund is in compliance with the laws of its home economy; and

(ii)

the operator is in compliance with the laws of its home economy:

(j)

details of any offer of the managed investment products in the home economy that show how section 17 of the passport rules is and will be complied with:

(k)

details of the procedure and processes that the operator has in place to ensure that the offer will be made in compliance with the Act and other financial markets legislation:

(l)

the full name and address in New Zealand of 1 or more persons resident or incorporated in New Zealand who are authorised to accept service in New Zealand at that address of documents on behalf of the operator:

(m)

the name, contact details, and financial service provider number of each distributor in New Zealand (if any).

(3)

The application for entry of the foreign passport fund must not have been refused by the FMA on the basis that it is of the opinion that—

(a)

the fund, or the operator, does not comply with, or is not likely to comply with,—

(i)

the laws of New Zealand; or

(ii)

the law of the home economy; or

(iii)

the passport rules; or

(b)

it is not in the public interest of New Zealand to authorise interests in the fund for offer in New Zealand or authorising the fund would breach sanctions applied against another economy by New Zealand; or

(c)

an exemption from or modification to a passport rule has been given to the fund in accordance with Part 5 of Annex 2 and the FMA has not consented and does not consent to the exemption or modification; or

(d)

the name of the fund to be used in New Zealand is not available for use in New Zealand because it is already in use or the use of the name is subject to a restriction in New Zealand that also applies to a regulated CIS in New Zealand, unless the fund or its manager notifies the FMA and the home regulator in writing that the fund will adopt an available alternative name in New Zealand because its name in New Zealand is not available in the home economy; or

(e)

action is being taken under paragraph 8.6 or 8.8 of the memorandum.

(4)

For the purposes of subclause (1)(c), a request is a written request from the FMA that—

(a)

is made before the notification process described in section 6 of Annex 2 is complete; and

(b)

seeks further information because the FMA is of the opinion that the application for entry does not include all of the information required by section 4(2) of Annex 2.

(5)

In this regulation, distributor means a qualified distributor that is acting in relation to the offer as referred to in section 2(2) and (3) of Annex 1 of the memorandum.