S.I. No. 381/1997 - Investment Intermediaries Act, 1995 (Determination Committees) Rules of Procedure, 1997

I, Charlie McCreevy, Minister for Finance, in exercise of the powers conferred on me by paragraph 9 of the Second Schedule to the Investment Intermediaries Act, 1995 (No. 11 of 1995), with the consent of the Minister of State at the Department of Enterprise, Trade and Employment, hereby make the following Rules:

1. (1) These Rules may be cited as the Investment Intermediaries Act, 1995 (Determination Committees) Rules of Procedure, 1997.

(2) These Rules shall come into operation on the 10th day of September, 1997.

2. (1) in these Rules "the Act of 1995" means the investment Intermediaries Act, 1995 :

"applicant" means an investment business firm or professional body to which a notification under section 74(l)(b) of the act of 1995 has been issued;

"Chairperson" means the Chairperson of a Committee appointed under rule 4 of these Rules:

"Committee" means a Committee appointed by the supervisory authority under section 74(5) of the act of 1995;

"day" means any day other than Saturday, Sunday or a public holiday which has the same meaning as it has for the purposes of the Holidays (Employees) Act, 1973 (No. 25 of 1973);

"inquiry" means an inquiry by a Committee appointed under section 74(5) of the act of 1995;

"legal representative" means a barrister or a solicitor; "secretary" means a secretary to a Committee.

(2) In these Rules, unless otherwise indicated—

(a) a reference to a rule, paragraph or Schedule is a reference to a rule or paragraph of, or a Schedule to, these Rules, and

(b) a reference to a section is a reference to a section of the Act of 1995.

3. (1) Notwithstanding any vacancies in the membership of the panel, a Committee may be appointed from the panel.

(2) Where a request in writing has been made to it under section 74(3), the supervisory authority shall invite at least three members of the panel to become members of a Committee to consider an application under that section and shall set out in general terms the issue to be considered and the name and address of the applicant concerned.

(3) The date of appointment of a Committee shall be the date on which the supervisory authority is in receipt of all written notices of acceptance of the members of the panel of their appointment to a Committee.

4. A Committee shall appoint from amongst its members a member to be Chairperson of the Committee.

5. There shall be a secretary attached to each Committee.

6. A member of the panel shall not disclose information obtained in his or her capacity as a member of the panel established under paragraph 1 of the Second Schedule to the Act of 1995.

7. (1) A member of the panel may request that his or her name be removed from the panel by letters sent by registered post to the Minister and to the Minister for Enterprise, Trade and Employment and the request shall take effect from the date on which the letters are sent.

(2) A member of a Committee may request that his or her name be removed from the Committee by letters sent by registered post to the supervisory authority and the secretary and the request shall take effect from the date on which the letters are sent.

8. (1) The supervisory authority shall submit to the Committee and to the applicant no later than two months from the date of appointment of the Committee—

( a ) a statement of the alleged breach by the applicant of any condition or requirement imposed by the supervisory authority under all or any sections of the act of 1995 to which section 74 applies,

( b ) the name and address of the applicant,

( c ) a request by the supervisory authority to carry out the inquiry by an examination of the relevant documents and written submissions from the supervisory authority and the applicant or by an oral hearing, and

( d ) copies of any relevant documents.

(2) The supervisory authority may apply in writing to the Committee, within the two month period referred to in paragraph (1), for an extension of the period in which to submit the statement.

(3) Notice of an application under paragraph (2) shall be served by the secretary on the applicant within seven days of the receipt of the application by the secretary, and the applicant may make representations in writing to the Committee, within seven days of the receipt of the notice, concerning the proposed extension of the period in which to submit the statement.

(4) Any extension of the period referred to in paragraph (1) shall be at the discretion of the Committee and the statement shall be submitted within that extended period.

(5) Where the Committee refuses to extend the period referred to in paragraph (1). the statement shall be submitted within seven days of receipt of notification from the Committee of that refusal or within the two month period referred to in paragraph (1), whichever is the later.

9. (1) The applicant shall, subject to paragraph (6), submit to the Committee and to the supervisory authority within a period of two months from the date of receipt of that state merit—

( a ) a counter statement of the extent to which the statement of the supervisory authority is admitted or disputed,

( b ) a request for or consent to an inquiry by an examination of the relevant documents and written submissions from the supervisory authority and the applicant or by an oral hearing, and

( c ) copies of any relevant documents.

(2) The applicant may apply in writing to the Committee, within the two month period referred to in paragraph (1), for an extension of the period in which to submit the counter statement.

(3) Notice of an application under paragraph (2) shall be served by the secretary on the supervisory authority within seven days of the receipt of the application by the secretary, and the supervisory authority may make representations in writing to the Committee, within seven days of receipt of the notice, concerning the proposed extension of the period in which to submit the counter-statement.

(4) Any extension of the period referred to in paragraph (1) shall be at the discretion of the Committee and the counter statement shall be submitted within that extended period.

(5) Where the Committee refuses to extend the period referred to in paragraph (1), the counter-statement shall be submitted within seven days of receipt of notification from the Committee of that refusal or within the two month period referred to in paragraph (1), whichever is the later.

(6) Notwithstanding paragraph (1), the requirement to submit a counter-statement shall not apply where the supervisory authority has agreed with the applicant that a counter-statement will not be submitted.

(7) When the Committee has received the statement and the counter-statement submitted under these rules, it shall decide, having regard to the submissions, whether to hold an inquiry by an examination of the relevant documents and written submissions from the supervisory authority and the applicant or by an oral hearing.

10. (1) The Chairperson shall fix the date—

( a ) on which the Committee shall consider the matter in a case where the inquiry is to take place by way of examination of the relevant documents and written submissions from the supervisory authority and the applicant, or

( b ) on which the oral hearing of the inquiry shall take place,

and notice shall be given, by the secretary, to the applicant and to the supervisory authority not less than twenty-one days before that date.

(2) ( a ) The Chairperson may decide that an oral hearing of an inquiry shall be a preliminary hearing for the purpose of hearing applications or objections under rules 8, 9, 21 or 22.

( b ) In a case where there is a preliminary hearing, the next oral hearing of the inquiry shall not be earlier than seven days after the preliminary hearing.

11. Any documents to be furnished by the applicant or the supervisory authority shall be lodged with the secretary not less than seven days before the date of the inquiry whether the inquiry is to take the form of an examination of the relevant documents and written submissions from the supervisory authority and the applicant or an oral hearing.

12. The Chairperson may correct a defect in any document submitted to the Committee provided that the correction shall not prejudice any party to the inquiry and the Chairperson shall inform the applicant and the supervisory authority of any corrections.

13. The supervisory authority, the applicant and any party summonsed to attend before an oral hearing of an inquiry may appear and be heard in person or through a legal representative.

14. The applicant or the supervisory authority may apply to the Committee by notice in writing to the secretary for a summons to compel the production of documents by any other party in form A in the Schedule.

15. The applicant or the supervisory authority may apply to the Committee for a summons to witness ad testificandum or daces tecum in form B or C in the Schedule by notice in writing to the secretary staling the name, address and occupation of the witness to be summonsed.

16. The forms in the Schedule shall be used as far as practicable but a deviation from those forms shall not, by reason only of the deviation, make any summons invalid.

17. The summonses referred to in rules 14 and 15 shall be served within seven days of the date of those summonses.

18. The applicant and the supervisory authority shall each submit to the secretary not less than ten days before an oral hearing of an inquiry a list of witnesses whom it is proposed to call to give evidence before the hearing.

19. Where any particular fact may be established by more than one person, it shall not be necessary to summons more persons than are sufficient to establish that fact, but the Committee may, on its own initiative or at the request of the applicant or the supervisory authority, summons such other person or persons as it considers necessary to attend before an oral hearing of an inquiry.

20. (1) An oral hearing of an inquiry shall be in public unless the Committee decides, at the request of the applicant or the supervisory authority, to hear all or part of the hearing in private.

(2) The Committee may decide, at the request of the applicant or the supervisory authority, that certain information shall remain confidential and a request for such a decision may be heard in private.

21. (1) An application by the applicant or by the supervisory authority to introduce additional documents or witnesses after the expiration of the periods specified in rules 11 and 18 respectively shall be considered by the Committee.

(2) The applicant or the supervisory authority, as the case may be, may object to the admission of additional documents or witnesses and the Committee shall consider such an objection when deciding upon the application referred to in paragraph (1).

22. (1) Affidavits may be admitted as evidence by the Committee with the consent of the applicant and the supervisory authority.

(2) The applicant and the supervisory authority shall be furnished at least fourteen days before the oral hearing of the inquiry with a copy of any affidavit.

(3) Where the applicant or the supervisory authority wishes to object to the admission of any affidavit—

( a ) any objection shall be submitted in writing to the secretary not less than seven days before the oral hearing of the inquiry, and

( b ) the Chairperson shall rule on the objection at the commencement of that hearing.

23. Where the Committee admits additional documents or witnesses to be introduced under rule 21. It shall adjourn that hearing for 14 days or such shorter period as the supervisory authority and the applicant may agree.

24. All statements shall be addressed to the Committee through the Chairperson.

25. A notice or document, where served on or given to the legal representative of the supervisory authority, the applicant or any other party, shall be deemed to have been served on or given to the supervisory authority, the applicant or such party.

26. A party to an inquiry may, by notice to the Committee given at any time and given to any other party concerned in the inquiry, change the address for service under these rules.

27. Any signature on a document produced before the Committee shall be deemed, in the absence of evidence to the contrary, to be that of the person whose signature it purports to be.

28. Where, because of the absence of the applicant, the supervisory authority or a witness, or for any other reason, the Committee is satisfied that an oral hearing of an inquiry should be adjourned, the Chairperson—

( a ) may adjourn the hearing to a specified date, and

( b ) in a case where the applicant, the supervisory authority or a witness is absent, shall, where practicable, cause the applicant, the supervisory authority or such witness to be duly notified of the adjournment.

29. (1) The decision on the dismissal of an application or the making of a determination by the Committee shall be that of the majority of its members and where there is an equal division of opinion, the matter shall be determined in accordance with the opinion of the Chairperson.

(2) The Committee shall dismiss the application or make its determination within two months of the date of the completion of the inquiry.

30. A sufficient record of the proceedings before the inquiry shall be made by the secretary who shall be responsible for such records.

31. (1) The report of the Committee of its inquiry and a notification of its determination specifying the nature of the inquiry and the evidence laid before it and any other matters it thinks fit shall be recorded in a document signed and dated by the Chairperson and sealed with the seal of the Committee.

(2) The secretary shall serve a copy of the report and notification on the supervisory authority and the applicant within seven days of the date on the report.

(3) The Chairperson shall correct any clerical mistake, error or omission in the report and notification and a copy of the corrected report and notification shall be sent to the applicant and the supervisory authority.

32. (1) The Committee shall, for a period of two months from the service of a notification of its determination on the applicant, suspend any reprimand, direction, arrangements for publication or order as to costs made by the Committee.

(2) If an applicant appeals to the High Court against the determination of the Committee—

( a ) within that two month period, or

( b ) within any extension of that period as the Court may determine, on such terms as it thinks proper, on an application made to it by the applicant during that two month period,

 then the suspension shall continue pending the determination of the appeal by that Court.

(3) Notice shall be served on the secretary and the supervisory authority—

( a ) in the case of an appeal, within seven days after the lodgement of the notice of appeal,

( b ) in the case of an application to extend the two month period, no later than 7 days before the hearing of the application.

33. The Committee shall have an official seal which shall be judicially noticed.

34. When affixed to any document, the official seal of the Committee shall be authenticated by the signature of the Chairperson or by a member of the Committee authorised for that purpose by the Chairperson.

35. Every document issued by the Committee and sealed with the official seal of the Committee shall be received in evidence without further proof.

SCHEDULE

Form A

FORM OF SUMMONS TO COMPEL THE PRODUCTION OF DOCUMENTS

To be printed on back of summons

Pursuant to Paragraph 15 of the Second Schedule of the Investment Intermediaries Act, 1995

Where

( a ) a person on being duly summoned to attend before a Committee established for the purposes of section 74 of this Act makes default in attending, or

( b ) a person, being in attendance as a witness before a Committee, refuses to take an oath lawfully required by that Committee to be taken or to produce any document in his power or control lawfully required by that Committee to be produced by him or to answer any question to which the Committee may lawfully require an answer, or

( c ) a person, being in attendance before a Committee does anything which, if the Committee were a court of law having power to commit for contempt, would be contempt of court,

that person shall be guilty of an offence.

Form B

FORM OF SUMMONS TO WITNESS AD TESTIFICANDUM

To be printed on back of summons Pursuant to Paragraph 15 of the Second Schedule of the investment Intermediaries Act, 1995

Where

( a ) a person on being duly summoned to attend before a Committee established for the purposes of section 74 of this Act makes default in attending, or

( b ) a person, being in attendance as a witness before a Committee, refuses to take an oath lawfully required by that Committee to be taken or to produce any document in his power or control lawfully required by that Committee to be produced by him or to answer any question to which the Committee may lawfully require an answer, or

( c ) a person, being in attendance before a Committee does anything which, if the Committee were a court of law having power to commit for contempt, would be contempt of court,

that person shall be guilty of an offence.

Form C

FORM OF WITNESS SUMMONS DUCES TECUM

To be printed on back of summons

Pursuant to Paragraph 15 of the Second Schedule of the investment intermediaries Act, 1995 Where

( a ) a person on being duly summoned to attend before a Committee established for the purposes of section 74 of this Act makes default in attending, or

( b ) a person, being in attendance as a witness before a Committee, refuses to take an oath lawfully required by that Committee to be taken or to produce any document in his power or control lawfully required by that Committee to be produced by him or to answer any question to which the Committee may lawfully require an answer, or

( c ) a person, being in attendance before a Committee does anything which, if the Committee were a court of law having power to commit for contempt, would be contempt of court,

that person shall be guilty of an offence.

GIVEN under my Official Seal, this 3rd day of September, 1997.

CHARLIE McCREEVY

Minister for Finance

The Minister of State at the Department of Enterprise, Trade and Employment consents to the making of the foregoing Rules.

Given under the Hand of the Minister of State at the Department of

Enterprise, Trade and Employment

this 9th day of September, 1997.

MICHAEL SMITH

Minister of State at the Department of Enterprise, Trade and Employment.

EXPLANATORY NOTE

These rules prescribe the rules of procedure which are to be followed by determination committees appointed under section 74 of the Investment intermediaries Act, 1995 . The rules of procedure include a rule providing for the appointment of a chairperson of each determination committee.