ASIC is clarifying the documentation foreign financial services providers should provide to it when applying for class order exemptions to conduct business in Australia to facilitate an easier application process.
In a written statement to key advisers to foreign financial services providers, ASIC has clarified the required documents to be lodged with ASIC when submitting an application for exemption.
As outlined in ASIC's Regulatory Guide 176, Foreign financial services providers (RG 176) and Information Sheet 157, Practical guidance for foreign financial services providers (INFO 157), foreign financial advisers must provide certain documents when applying for an exemption. All foreign financial services providers must provide:
- an original dated letter of intention to provide financial services in Australia
- a certified copy or original providing adequate evidence of registration, authorisation or permission from the overseas regulator
- a notice of reliance
- an original signed deed of reliance
- an original dated and signed letter addressed to ASIC consenting to mutual disclosure between ASIC and the overseas regulator
Foreign financial services providers who have not registered with ASIC as a foreign company should also provide a certified copy or original evidence of their local agent appointment and its contact details and a certified copy or original providing evidence of registration as a body corporate or formation as a partnership in their country of formation.
Brokers or dealers registered with the US Securities and Exchange Commission and seeking to rely on Class Order [CO 03/1100] US SEC regulated financial service providers, should also provide a certified copy or original evidence of membership with Securities Investor Protection Corporation.
Commodity pool operators or commodity trading advisers registered with the US Commodity Futures Trading Commission and seeking to rely on Class Order [CO 04/829] US CFTC regulated financial service providers, should also provide a written certification of adequacy of resources.
Where any documents that need to be provided are not in English, a translation in English of them must be provided.
A delay in the provision of these documents or an incomplete application that does not contain all these documents can delay the granting of the exemption. Without the exemption, an Australian financial services licence or approval to be an authorised representative, foreign financial services providers are unable to conduct business in Australia.
Class orders that provide these exemptions will sunset in the coming years. ASIC will consider and consult on whether or not new class orders which extend this relief should be issued, and what might be the appropriate conditions for these new class orders.
Applications to rely on the class order exemptions can still be made via applications@asic.gov.au. However, a copy of any original documents should be included in the emailed application and the original subsequently sent by mail.
Background
Foreign financial services providers regulated by certain overseas regulators who wish to provide financial services to wholesale clients in Australia can apply to us to rely the following class order exemptions:
- Class Order [CO 03/1099] UK FSA regulated financial service providers
- Class Order [CO 03/1100] US SEC regulated financial service providers
- Class Order [CO 03/1101] US Federal Reserve and OCC regulated financial service providers
- Class Order [CO 03/1102] Singapore MAS regulated financial service providers
- Class Order [CO 03/1103] Hong Kong SFC regulated financial service providers
- Class Order [CO 04/829]
- Class Order [CO 04/1313] German BaFin regulated financial service providers.
Where we allow the foreign financial services provider to rely on one of these class order exemptions, the foreign financial services provider can provide certain financial services to wholesale clients in Australia without the need to hold an Australian financial services licence under s 911A of the Corporations Act.
Detailed guidance on the contents of the documents to be submitted in support of the application is available in Regulatory Guide 176, Foreign financial services providers (RG 176)and Information Sheet 157, Practical guidance for foreign financial services providers (INFO 157).