CSD-6: CSD-6: Powers of CBB
CSD-6.1 CSD-6.1 Power to Impose Conditions or Restrictions
CSD-6.1.1
The CBB may impose on a
licensed clearing house orlicensed central depository such conditions or restrictions as it deems fit by notice in writing, in addition to the obligations imposed on thelicensed clearing house orlicensed central depository under this Module, for the purposes of furthering the objectives specified in Section CSD-A.1.Amended: April 2016CSD-6.1.2
The CBB may, at any time, by notice in writing to the
licensed clearing house orlicensed central depository , vary any condition or restriction as it may deem fit.Amended: April 2016CSD-6.1.3
Without affecting the generality of Paragraphs CSD-6.1.1 or CSD-6.1.2, the conditions or restrictions that the CBB may impose include conditions or restrictions relating to:
(a) The activities that thelicensed clearing house orlicensed central depository may undertake;(b) The products that may be cleared by the clearing facility;(c) The securities that may be accepted for deposit by the depository; or(d) The nature of investors, members orparticipants who may use or participate in thelicensed clearing house facility andlicensed central depository .Amended: April 2016CSD-6.2 CSD-6.2 Power of CBB to Issue Directions
CSD-6.2.1
The CBB may issue directions by notice in writing either of a general or specific nature to a
licensed clearing house orlicensed central depository , and thelicensed clearing house orlicensed central depository shall comply with such directions, if the CBB considers it necessary or expedient:(a) For ensuring the safe and efficient clearing andsettlement of transactions through review of system mechanisms and establishment of operating standards;(b) For ensuring the integrity and stability of the capital markets or the financial system;(c) In the interests of the public or a section of the public, or for the protection of investors;(d) For the effective administration of the CBB Law and regulations; or(e) For ensuring compliance with any condition or restriction as may be imposed by the CBB.Amended: April 2016CSD-6.2.2
For the avoidance of doubt, a direction issued under Paragraph CSD-6.2.1 shall be deemed not to be subsidiary legislation, but any non-compliance with a directive shall be regarded as non-compliant with the rules of the CBB.
Amended: April 2016CSD-6.3 CSD-6.3 Emergency Powers of CBB
CSD-6.3.1
Where the CBB has reason to believe that an emergency exists, or considers that it is necessary or expedient in the interests of the public, or a section of the public, or for the protection of investors, the CBB may direct by notice in writing a
licensed clearing house orlicensed central depository to take such action as it considers necessary to maintain or restore safe and efficient operations of the clearing facilities operated by thelicensed clearing house and of the custodian services provided by thelicensed central depository .Amended: April 2016CSD-6.3.2
Without prejudice to Paragraph CSD-6.3.1, the actions which the CBB may direct a
licensed clearing house orlicensed central depository to take include:(a) Ordering the liquidation of allpositions or part thereof, or the reduction of suchpositions ;(b) Altering conditions ofdelivery of transactions cleared or settled, or to be cleared or settled through the clearing facility;(c) Fixing thesettlement price at which transactions are to be liquidated;(d) Requiring margins or additional margins for transactions cleared or settled, or to be cleared or settled through the clearing facility; and(e) Modifying or suspending any of thebusiness rules of thelicensed clearing house orlicensed central depository .Amended: April 2016CSD-6.3.3
Where a
licensed clearing house orlicensed central depository fails to comply with any direction of the CBB under Paragraph CSD-6.3.1 within such time as is specified by the CBB, the CBB may:(a) Set margin levels for transactions cleared or settled, or to be cleared or settled through the clearing facility to cater for the emergency;(b) Set limits that may apply to marketpositions acquired in good faith prior to the date of the notice issued by the CBB; or(c) Take such other action as the CBB considers necessary to maintain or restore safe and efficient operations of the clearing facilities operated by thelicensed clearing house and the services offered by thelicensed central depository .Amended: April 2016CSD-6.3.4
In this section, "emergency" includes:
(a) Any threatened or actual market manipulation or cornering;(b) Any major market disturbance which prevents the market from accurately reflecting the forces of supply and demand for such commodity orsecurities ;(c) Any act of any government affecting a commodity orsecurities ; or(d) Any undesirable situation or practice which, in the opinion of the CBB, constitutes an emergency.CSD-6.3.5
The CBB may modify any action taken by a
licensed clearing house orlicensed central depository under Paragraph CSD-6.3.1, including the setting aside of that action.Amended: April 2016CSD-6.4 CSD-6.4 Power of CBB to Remove Officers
CSD-6.4.1
The CBB may, if it thinks it necessary in the interests of the public, or a section of the public, or for the protection of investors, by notice in writing direct that
licensed clearing house orlicensed central depository to remove the officer from his office or employment, where the CBB is satisfied that an officer of alicensed clearing house orlicensed central depository :(a) Has wilfully contravened or wilfully caused thatlicensed clearing house orlicensed central depository to contravene this Module or itsbusiness rules ;(b) Has, without reasonable excuse, failed to ensure compliance with this Module or thebusiness rules of thatlicensed clearing house orlicensed central depository , by thatlicensed clearing house orlicensed central depository , or a member of thatlicensed clearing house orlicensed central depository or aperson associated with that member;(c) Has failed to discharge the duties or functions of his office or employment;(d) Is an undischarged bankrupt, whether in Bahrain or elsewhere;(e) Has had execution against him in respect of a judgment debt returned unsatisfied in whole or in part;(f) Has, whether in Bahrain or elsewhere, made a compromise or scheme of arrangement with his creditors, being a compromise or scheme of arrangement that is still in operation; or(g) Has been convicted, whether in Bahrain or elsewhere, of an offence involving fraud or dishonesty, or the conviction for which involved a finding that he had acted fraudulently or dishonestly.Amended: April 2016CSD-6.4.2
Without prejudice to any other matter that the CBB may consider relevant, the CBB may, in determining whether an officer of a
licensed clearing house orlicensed central depository has failed to discharge the duties or functions of his office or employment for the purposes of rule CSD-6.4.1 (c), have regard to such criteria as the CBB may prescribe or specify in directions issued by notice in writing.Amended: April 2016CSD-6.4.3
Subject to Paragraph CSD-6.4.4, the CBB shall not direct a
licensed clearing house orlicensed central depository to remove an officer from his office or employment, without giving thelicensed clearing house orlicensed central depository an opportunity to be heard.Amended: July 2016
Amended: April 2016CSD-6.4.4
The CBB may direct a
licensed clearing house orlicensed central depository to remove an officer from his office or employment under rule CSD-6.4.1 on any of the following grounds, without giving thelicensed clearing house orlicensed central depository an opportunity to be heard:(a) The officer is an undischarged bankrupt, whether in Bahrain or elsewhere;(b) The officer has been convicted, whether in Bahrain or elsewhere, of an offence:(i) Involving fraud or dishonesty, or the conviction for which involved a finding that he had acted fraudulently or dishonestly; or(ii) Punishable with imprisonment for a term of 3 months or more.Amended: April 2016CSD-6.4.5
Where the CBB directs a
licensed clearing house orlicensed central depository to remove an officer from his office or employment under rule CSD-6.4.1, the CBB need not give that officer an opportunity to be heard.Amended: April 2016CSD-6.4.6
No criminal or civil liability shall be incurred by a
licensed clearing house orlicensed central depository in respect of anything done or omitted to be done with reasonable care and in good faith in the discharge or purported discharge of its obligations under this Section.Amended: April 2016CSD-6.5 CSD-6.5 Criteria to Determine Failure to Discharge Duties or Functions by Officers
CSD-6.5.1
For the purposes of Paragraph CSD-6.4.2 of this Module, the CBB may, in determining whether a chairman, chief executive officer or director, or any officer who is a
person stated in a notice referred to in Paragraph CSD-6.3.2, of alicensed clearing house orlicensed central depository has failed to discharge the duties or functions of his office, take into consideration whether thatperson has taken reasonable steps to discharge the following duties:(a) Ensure the proper functioning of thelicensed clearing house orlicensed central depository ;(b) Ensure the compliance of thelicensed clearing house orlicensed central depository with any relevant laws or regulations of any jurisdication in which it is incorporated, or in which it operates;(c) Set out and ensure compliance with written policies on all operational areas of thelicensed clearing house orlicensed central depository , including its financial policies, accounting and internal controls, internal auditing and compliance with all laws and rules governing the operations of thelicensed clearing house orlicensed central depository ;(d) Identify, monitor and address the risks associated with the business activities of thelicensed clearing house orlicensed central depository on an on-going basis;(e) Ensure that the business activities of thelicensed clearing house orlicensed central depository are subject to adequate internal audit;(f) Oversee the financial undertakings or exposure of thelicensed clearing house orlicensed central depository to risks of any nature, by setting out proper delegation limits and risk management controls; and(g) Ensure:(i) That thelicensed clearing house orlicensed central depository maintains writtenrecords of the steps taken by it to monitor compliance with its policies, the limits on discretionary powers and its accounting and operating procedures; and(ii) That every report, return or statement submitted by thelicensed clearing house orlicensed central depository to the CBB is complete and accurate.Amended: April 2016CSD-6.6 CSD-6.6 Additional Powers of CBB in Respect of Auditors
CSD-6.6.1
The auditor shall immediately send to the CBB a written report of the matter or the irregularity, if an auditor of a
licensed clearing house orlicensed central depository in the course of the performance of his duties, becomes aware of:(a) Any matter which, in his opinion, adversely affects or may adversely affect the financial position of thelicensed clearing house orlicensed central depository to a material extent;(b) Any matter which, in his opinion, constitutes or may constitute a breach of any provision of this Module or an offence involving fraud or dishonesty; or(c) Any irregularity that has or may have a material effect upon the accounts of thelicensed clearing house orlicensed central depository , including any irregularity that affects or jeopardises, or may affect or jeopardise, the funds orproperty of investors.Amended: April 2016CSD-6.6.2
An auditor shall not, in the absence of malice on his part, be liable to any action for defamation at the suit of any
person in respect of any statement made in his report under rule CSD-6.6.1.CSD-6.6.3
Rule CSD-6.6.2 shall not restrict or affect any right, privilege or immunity that the auditor may have, apart from this section, as a defendant in an action for defamation.
CSD-6.6.4
The CBB may impose all or any of the following duties on an auditor of a
licensed clearing house orlicensed central depository :(a) A duty to submit such additional information and reports in relation to his audit, as the CBB considers necessary;(b) A duty to enlarge, extend or alter the scope of his audit of the business and affairs of thelicensed clearing house orlicensed central depository ;(c) A duty to carry out any other examination or establish any procedure in any particular case.Amended: April 2016CSD-6.6.5
The
licensed clearing house orlicensed central depository shall remunerate the auditor in respect of the discharge by him of all or any of the duties referred to in Paragraph CSD-6.6.4.Amended: April 2016CSD-6.7 CSD-6.7 Power of Court to Order Observance or Enforcement of Business Rules
CSD-6.7.1
Where any
person who is under an obligation to comply, observe, enforce or give effect to thebusiness rules of alicensed clearing house , orlicensed central depository fails to do so, the Court may, on the application of the CBB, alicensed clearing house , orlicensed central depository , or aperson aggrieved by the failure, after giving the first-mentionedperson an opportunity to be heard, make an order directing the first-mentionedperson to comply, observe, enforce or give effect to thosebusiness rules .Amended: April 2016CSD-6.7.2
In this section, "
person " includes alicensed clearing house andlicensed central depository .Amended: April 2016CSD-6.7.3
This Section is in addition to, and not in derogation of, any other remedies available to the aggrieved
person referred to in rule CSD-6.7.1.Amended: April 2016CSD-6.8 CSD-6.8 Immunity
CSD-6.8.1
No civil liability, whether arising in contract, equity or otherwise, in respect of anything done or omitted to be done in good faith in the discharge or purported discharge of the duties of the
licensed clearing house orlicensed central depository , or in the performance or purported performance of its functions under its business rules, shall be incurred by:(a) Alicensed clearing house ;(b) Alicensed central depository ; or(c) Anyperson acting on behalf of alicensed clearing house orlicensed central depository , including any member of the board of directors of thelicensed clearing house orlicensed central depository .Amended: April 2016CSD-6.8.2
In respect of anything done or omitted to be done in good faith in the performance and purported performance of that function, no civil liability, whether arising in contract, tort, defamation, equity or otherwise, shall be incurred by:
(a) Anyperson performing, by virtue of a delegation under the business rules of alicensed clearing house orlicensed central depository , a function of thelicensed clearing house orlicensed central depository ;(b) Anyperson acting on behalf of aperson referred to hereinabove including a member of the board of directors of thatperson .Amended: April 2016