(1)At the request of an overseas regulator, a regulator may—
(a)exercise the power conferred by section 165; or
(b)appoint one or more competent persons to investigate any matter.
(2)An investigator has the same powers as an investigator appointed under section 168(3) (as a result of subsection (1) of that section).
(2A)But where the investigator is—
(a)appointed by the FCA, and
(b)the appointment is in response to a request to the FCA to investigate a possible contravention by a person of Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation,
the investigator has the same powers as an investigator appointed under section 168(3) (as a result of subsection (2) of that section).
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)In deciding whether or not to exercise its investigative power, the regulator may take into account in particular—
(a)whether in the country or territory of the overseas regulator concerned, corresponding assistance would be given to a United Kingdom regulatory authority;
(b)whether the case concerns the breach of a law, or other requirement, which has no close parallel in the United Kingdom or involves the assertion of a jurisdiction not recognised by the United Kingdom;
(c)the seriousness of the case and its importance to persons in the United Kingdom;
(d)whether it is otherwise appropriate in the public interest to give the assistance sought.
(5)The regulator may decide that it will not exercise its investigative power unless the overseas regulator undertakes to make such contribution towards the cost of its exercise as the regulator considers appropriate.
(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)If a regulator has appointed an investigator in response to a request from an overseas regulator, it may direct the investigator to permit a representative of that regulator to attend, and take part in, any interview conducted for the purposes of the investigation.
(8)A direction under subsection (7) is not to be given unless the regulator is satisfied that any information obtained by an overseas regulator as a result of the interview will be subject to safeguards equivalent to those contained in Part XXIII.
(9) Each regulator must prepare a statement of its policy with respect to the conduct of interviews in relation to which a direction under subsection (7) has been given.
(10)The statement requires the approval of the Treasury.
(11)If the Treasury approve the statement, the regulator must publish it.
(12)No direction may be given under subsection (7) before the statement has been published.
(13) “Overseas regulator” has the same meaning as in section 195.
(14) “Investigative power” means one of the powers mentioned in subsection (1).
(15) “Investigator” means a person appointed under subsection (1)(b).
Cases considering section 169 (3)
[2010] EWCA Civ 123 · 24 February 2010Interprets
The court construed section 169 as the statutory source of the FSA’s discretionary investigative assistance to an overseas regulator. Its exercise required consideration of the request and the statutory factors, but not verification of the foreign regulator’s case or document needs. (see paras [26]-[27], [38]-[43])
The court treated section 169(1) as permitting the FSA, at an overseas regulator’s request, either to exercise section 165 powers or appoint competent persons to investigate. The appointment route was lawful in this case. (see paras [27]-[30], [42])
Cited only.
The court applied section 169(1)(b) to uphold the appointment of investigators to obtain documents from an unauthorised accountant for an overseas regulator. (see paras [28], [42])
The court interpreted section 169(2) as giving section 169(1)(b) investigators the same powers as section 168(3) investigators, without imposing section 170 duties. (see paras [27], [44]-[45])
The court confirmed that the FSA may take into account the listed matters when deciding whether to exercise its investigative power, including reciprocity, legal parallels, seriousness and UK importance, and the public interest. The FSA’s assessment showed that it had considered them. (see paras [27], [39])
[2009] EWHC 2242 (Admin) · 25 August 2009Limits
Section 169(1) permits the Authority, at the request of an overseas regulator, either to exercise the section 165 power or appoint competent persons to investigate. The court held that this power can support a foreign regulator’s civil claim (see paras [11]; [16]; [38]-[39]).
Section 169(4) identifies matters which the Authority may take into account when deciding whether to exercise its investigative power. The listed matters are not exhaustive, and the Authority retains a discretion requiring consideration of the circumstances as a whole (see para [11]).
Section 169(4)(a) was quoted as one of the particular matters capable of being taken into account when deciding whether to assist an overseas regulator. The court did not determine a separate issue concerning reciprocity (see para [11]).
Section 169(4)(b) was considered in relation to whether the foreign case involved a breach of law without a close United Kingdom parallel or an unrecognised jurisdiction. The court indicated that jurisdiction referred principally to jurisdiction to determine the matter, not the procedural availability of discovery (see para [38]).
Section 169(4)(c) was quoted as a factor concerning the seriousness and importance of the case. The court treated the statutory factors as non-exclusive and did not decide this factor independently (see para [11]).
Section 169(4)(d) was quoted as permitting consideration of whether assistance was otherwise appropriate in the public interest. The court emphasised the importance of international regulatory co-operation but held that the particular request remained disproportionate (see paras [11]; [39]; [42]-[47]).
[2019] EWHC 1611 (Ch) · 21 June 2019Interprets
Section 169 was distinguished in the statutory analysis because it does not state that the investigator acts on behalf of the FCA or investigating authority. That difference supported, but did not alone determine, the construction of s 177(1) (see paras [18], [22]).
What each judgment says about section 169 is in the case-law panel in the full Act.
326.This section gives the Authority new powers comparable to those held concurrently by the Treasury and the Secretary of State under section 82 of the Companies Act 1989 to investigate matters on behalf of an overseas regulator. In deciding whether it is appropriate to exercise this power to require information or to appoint investigators on behalf of an overseas authority, the Authority is directed to take account of the factors listed in subsection (4), which include the seriousness of the case and the wider public interest in providing the assistance.
327.When the request comes from another competent authority under any of the single market directives (see the notes on Schedule 3 for a brief explanation), the Authority is also required to consider whether the assistance must be given in order to fulfil the obligations to co-operate imposed by those directives. If it decides that it is, the other factors fall away.
328.The Authority may make the exercise of the power conditional on the overseas authority making an appropriate contribution towards the cost of doing so, except where it considers that exercise is necessary in order to fulfil the obligations to co-operate under the directives.
329.Under subsection (7), the Authority may decide to permit representatives to attend and participate in any interview to be conducted by the investigators it has appointed. But in order to permit this, the Authority is required to be satisfied that the information thus obtained by the overseas regulator will be subject to equivalent safeguards on its subsequent use and disclosure as are contained in Part XXIII of the Act. The Authority must also prepare a statement of its policy on the exercise of this discretion, which must be approved by the Treasury and, if approved, published. The discretion may not be exercised until this statement has been approved and published.