(d) a Person who is, or was at any time within that year, an officer of, or in the employment of, another Company that is, or was at any time within that year, an officer of the relevant Company; and
(e) if the relevant Company is being wound up by the Court—any Person who has been a Receiver, Administrative Receiver or Liquidator of the Company.
(4) In this section:
effective date means whichever of the following dates applies in relation to the relevant Company:
(a) if a Receiver or Administrative Receiver has been appointed for the Company—the date the Receiver or Administrative Receiver was appointed or, if Receiver or Administrative Receiver was appointed in succession to another Receiver or Administrative Receiver, the date the first Receiver or Administrative Receiver was appointed;
(b) if the Company has gone into liquidation—the date it went into liquidation;
(c) if a Provisional Liquidator has been appointed for the Company—the date the Provisional Liquidator was appointed;
employment includes employment under a contract for services.
95. Producing account of dealings with Company etc.
The Court may order any Person involved with a Company to produce to it, or to an Administrator of the Company, an account of the Person’s dealings with the Company or any books, papers, records or other Documents in the Person’s possession relating to the Company or to any dealing of the Person with the Company.
96. Transactions at undervalue
(1) This section applies in relation to a Company if:
(a) a Receiver, Administrative Receiver or Provisional Liquidator is appointed for the Company; or
(b) the Company Goes into Liquidation.
(2) If the Company has at a relevant time (as defined in section 98 (Relevant time for sections 96 and 97)) entered into a transaction with any Person at an undervalue, the Court may, on the application of an Administrator of the Company, make an order restoring the position to what it would have been if the Company had not entered into that transaction.
(3) For this section, a Company enters into a transaction with a Person at an undervalue if it makes a gift to the Person or otherwise enters into a transaction with the Person on terms that provide for the Company to receive no consideration, or consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the Company.
(4) However, the Court must not make an order under this section in relation to a transaction at an undervalue if it is satisfied that:
(a) the Company entered into the transaction in good faith and for the purpose of conducting its business; and
(b) at the time it entered into the transaction, there were reasonable grounds for believing that the transaction would benefit the Company.
97. Preferences
(1) This section applies in relation to a Company if:
(a) a Receiver, Administrative Receiver or Provisional Liquidator is appointed for the Company; or
(b) the Company Goes into Liquidation.
(2) If the Company has at a relevant time (as defined in section 98 (Relevant time for sections 96 and 97)) given a preference to any Person, the Court may, on the application of an Administrator of the Company, make an order restoring the position to what it would have been if the Company had not given that preference.
(3) For this section, a Company gives a preference to a Person if:
(a) the Person is one of the Company’s creditors or a surety or guarantor for any of the Company’s debts or other liabilities; and
(b) the Company does anything, or suffers anything to be done, that (in either case) has the effect of putting the Person into a position that, if the Company were to go into insolvent liquidation, would be better than the position the Person would have been in if that thing had not been done.
(4) However, the Court must not make an order under this section in relation to a preference given to a Person by a Company unless the Company was influenced in deciding to give the preference by a desire to produce in relation to the Person the effect mentioned in subsection (3)(b).
(5) A Company that has given a Preference to a Person connected with the Company at the time the preference was given (otherwise than only because of the Person being its employee) is presumed, unless the contrary is shown (by, for example, the receiving of additional material consideration for the preference), to have been influenced in deciding to give it by a desire of the kind mentioned in subsection (4).
98. Relevant time under sections 96 and 97
For section 96 (Transactions at undervalue) and section 97 (Preferences), the time at which a Company enters into a transaction at an undervalue, or gives a preference, is a relevant time if the transaction is entered into, or the preference given:
(a) for a transaction at an undervalue that is entered into with, or a preference that is given to, a Person connected with the Company (otherwise than only because of the Person being its employee)—at a time in the period of 2 years ending with the onset of Insolvency; or
(b) for any other transaction at an undervalue or preference—at a time in the period of 6 months ending with the onset of Insolvency; or
(c) in either case—at a time between the making of an application to the Court under these Regulations and the making of an order by the Court on the application, if the order gives rise to the onset of Insolvency.
99. Invalid security interests
(1) If a Company becomes Insolvent, a security interest in all or substantially all of the Company’s property is invalid if:
(a) the security interest is created in favour of a Person connected with the Company and is created within 2 years before the onset of Insolvency; or
(b) the security interest is created within 1 year before the onset of Insolvency and the Company was on the day of the creation of the interest, or became because of the transaction in relation to which the interest was created, Unable to Pay its Debts; or
(c) the security interest is created after the commencement of a Voluntary Arrangement for the Company.
(2) Subsection (1) does not invalidate a security interest to the extent of the value transferred to the Company, or liabilities of the Company released, because of the transaction giving rise to the grant of the security interest.
100. Application of other laws to receivership and winding up
(1) The provisions of these Regulations and the Rules relating to the powers of a Receiver, Administrative Receiver or Liquidator to get in, secure, realise or distribute property of a Company (the general insolvency law provisions) are subject to the provisions of any other AIFC Regulations or AIFC Rules that are inconsistent with, or otherwise extend, exclude, modify or waive the application of, provisions of these Regulations and the Rules in particular cases or classes of case.
(2) Without limiting subsection (1), the general insolvency law provisions are subject to the provisions of any other AIFC Regulations or any AIFC Rules that provide for or in relation to the orderly conduct of affairs or winding up of a Company (a licensed Company) that is licensed, or recognised by the AFSA including provisions that prescribe procedures and priorities for dealing with assets of a licensed Company or other Persons if there is a pending or actual Insolvency or other default.
101. Power of Court to declare dissolution of Company void
(1) This section applies if a Company has been dissolved under these Regulations or the AIFC Companies Regulations.
(2) On application made within 10 years after the day of the dissolution by a Liquidator of the Company or any other Person who appears to the Court to be interested, the Court may make an order, on the terms the Court considers appropriate, declaring the dissolution void.
(3) If the Court makes an order under subsection (2), the Court may by the order (or subsequent orders) give the directions and make the provisions that it considers just for placing the Company and all other Persons in the same position as nearly as may be as if the Company had not been dissolved.
(4) If the Court makes an order under subsection (2), any proceeding may be taken that might have been taken if the Company had not been dissolved.
SCHEDULE 1: ADDITIONAL POWERS OF ADMINISTRATIVE RECEIVERS
1. Power to take possession of, collect and get in the relevant property of the Company and, for that purpose, to take the legal proceedings that the Administrative Receiver considers appropriate.
2. Power to sell or otherwise dispose of relevant property of the Company by public auction or private contract.
3. Power to raise or borrow money and grant security for it over relevant property of the Company.
4. Power to appoint a legal consultant, accountant or other professionally qualified Person to assist the Administrative Receiver in the Exercise of the Administrative Receiver’s Functions.
5. Power to bring or defend any legal proceeding in the name and on behalf of the Company.
6. Power to refer to arbitration any question affecting the Company.
7. Power to effect and maintain insurance in relation to the business and property of the Company.
8. Power to do all acts in the name and on behalf of the Company and, in particular, to execute any deed, receipt or other Document in the name and on behalf of the Company.
9. Power to draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the Company.
10. Power to appoint any agent to do any business that the Administrative Receiver is unable to do personally or that can more conveniently be done by an agent.
11. Power to do all other things that may be necessary for winding up the Company’s affairs and distributing its assets.
SCHEDULE 2: POWERS OF LIQUIDATOR IN WINDING UP
1. Power to pay any class of creditors in full.
2. Power to make any compromise or arrangement with creditors or Persons claiming to be creditors, or having or claiming to have any claim (present or future, certain or contingent, ascertained or sounding only in damages) against the Company or for which the Company may be liable.
3. Power to compromise, on agreed terms:
(a) all calls and liabilities to calls, all debts and liabilities capable of resulting in debts, and all claims (present or future, certain or contingent, ascertained or sounding only in damages) subsisting or claimed to subsist between the Company and a shareholder or other Person liable, or claimed to be liable, to contribute to the assets of the Company or other debtor or Person apprehending liability to the Company; and
(b) all questions in any way relating to or affecting the assets or the winding up of the Company;
and to take any security for the discharge of any such call, debt, liability or claim and give a complete discharge in relation to it.
4. Power to bring or defend any legal proceeding in the name and on behalf of the Company.
5. Power to carry on the business of the Company so far as may be necessary for its beneficial winding up.
Power to sell any of the Company’s property by public auction or private contract with power to transfer the whole of it to any Person or to sell the property in parcels.
6. Power to do all acts and execute, in the name and on behalf of the Company, all deeds, receipts and other Documents and, for that purpose, to use the Company’s seal when necessary.
7. Power to prove, rank and claim in the bankruptcy, insolvency, or sequestration, (however described) of any shareholder or other Person liable to contribute to the assets of the Company for any balance against the Person’s estate, and to receive dividends in the bankruptcy, insolvency or sequestration in relation to that balance, as a separate debt owing from the Person, and rateably with the other separate creditors.
8. Power to draw, accept, make and endorse any bill of exchange or promissory note, in the name and on behalf of the Company, with the same effect in relation to the Company’s liability as if the bill or note had been drawn, accepted, made or endorsed by or on behalf of the Company in the course of its business.
9. Power to raise money on the security of the assets of the Company.
10. Power to take out in the Liquidator’s official name letters of administration to any deceased shareholder or other Person liable to contribute to the assets of the Company, and to do in the official name anything else necessary to obtain payment of any amount owing to the Company from the Person’s estate that cannot conveniently be done in the name of the Company.
For this clause, the amount owing is taken, for the purpose of enabling the Liquidator to take out the letters of administration or recover the money, to be owing to the Liquidator personally.
11. Power to appoint an agent to do any business that the Liquidator is unable to do personally or that can more conveniently be done by an agent.
12. Power to do all other things necessary for winding up the Company’s affairs and distributing its assets.
SCHEDULE 3: INTERPRETATION
1. Definitions for these Regulations
In these Regulations:
Acting Law of the AIFC has the meaning given by article 4 of the Constitutional Statute.
Administrative Receiver, in relation to a Company, has the meaning given by section 14(2) (Appointment and Functions of Receivers and Administrative Receivers).
Administrator, in relation to a Company, means a Receiver, Administrative Receiver or Liquidator of the Company.
AFSA means the Astana Financial Services Authority.
AIFC means the Astana International Financial Centre.
AIFCA means the Astana International Financial Centre Authority.
AIFC Regulations means regulations adopted by the Management Council or the Governor, and includes, for example, these Regulations.
AIFC Rules means rules adopted by the Board of Directors of the AFSA, the Board of Directors of the AIFCA or the Governor, and includes, for example, the Rules made for these Regulations.
Company means a body corporate that is incorporated as, or converted to, a private company or public company under the AIFC Companies Regulation.
Constitutional Statute means Constitutional Statute of the Republic of Kazakhstan dated 7 December 2015 entitled On Astana International Financial Centre.
Contravene includes Fail to comply with.
Court means the Astana International Financial Centre Court.
Creditors Voluntary Winding Up, in relation to a Company, means a winding up of the Company that is not a Members Voluntary Winding Up.
Document includes any summons, notice, statement, return, account, order and other legal process, and any register.
Exercise a Function includes perform the Function.
Fail includes refuse.
Foreign Company means any association or other body corporate incorporated or otherwise formed in a jurisdiction outside the AIFC that has a corporate existence under the law of that jurisdiction (whether or not it is considered to be a company under that law), and includes a Recognised Company.
Function includes authority, duty and power.
Goes into Liquidation: A Company Goes into Liquidation if:
(a) it passes a Resolution for Voluntary Winding Up; or
(b) the Court makes an order for its winding up if it has not already passed a Resolution for Voluntary Winding Up.
Governor means the Governor of the Astana International Financial Centre.
Insolvency, in relation to a Company:
(a) means that the Company is Unable to Pay its Debts; and
(b) in Part 10 (Miscellaneous), includes the approval under Part 2 (Company Voluntary Arrangements) of a Voluntary Arrangement for the Company or the appointment of a Receiver or Administrative Receiver for the Company.
Insolvency Practitioner means a Person who is registered as an insolvency practitioner under these Regulations.
Legislation Administered by the Registrar has the meaning given by section 1 of Schedule 1 of the AIFC Companies Regulations.
Limited Liability Partnership means a Limited Liability Partnership under the AIFC Limited Liability Partnership Regulations.
Liquidator, in relation to a Company, means a Person who is appointed as the liquidator, or a liquidator, of the Company, and includes a Provisional Liquidator for the Company.
Management Council means the Management Council of the Astana International Financial Centre.
Management Council Resolution on AIFC Bodies means The Structure of the Bodies of the Astana International Financial Centre, adopted by resolution of the Management Council on 26 May 2016, as amended by resolution of the Management Council, The Amendments and supplementations to the Structure of the Bodies of the Astana International Financial Centre, adopted on 9 October 2017.
Members Voluntary Winding Up, in relation to a Company, means a winding up of the Company for which directors of the Company have made a declaration that complies with section 31 (Declaration of solvency).
Nominee, in relation to a proposed Voluntary Arrangement for a Company, means the Person appointed under section 8(2) (Company arrangements) to act in relation to the Voluntary Arrangement.
Official Liquidator means a Person who is registered as an official liquidator under these Regulations.
Person includes any natural person or incorporated or unincorporated body, including a company, partnership, unincorporated association, government or state.
Property of the company (a) includes any property held by any person on trust for the company; and (b) does not include property of the company held in trust by the company upon trust.
Provisional Liquidator, in relation to a Company, means a liquidator appointed provisionally for the Company under section 58 (Appointment of Provisional Liquidator).
Receiver, in relation to a Company, has the meaning given by subsection 14(2) (Appointment and Functions of Receivers and Administrative Receivers).
Recognised Company a body corporate incorporated in any jurisdiction other than the AIFC that is registered under the AIFC Companies Regulations as a recognised company.
Registrar means the Registrar of Companies.
Registrar of Companies means the individual who is the Registrar of Companies appointed under the AIFC Companies Regulations.
Resolution for Voluntary Winding Up, in relation to a Company, means a resolution passed by the Company under section 26 (Circumstances in which Company may be wound up voluntarily).
Rules means rules adopted by the Board of Directors of the AFSA under section 181 of the AIFC Companies Regulations.
Supervisor, in relation to a Voluntary Arrangement for a Company, has the meaning given by section 13(2) (Implementation of Voluntary Arrangement).
Unable to Pay its Debts, in relation to a Company or Recognised Company, has the meaning given by section 50 (Definition of Unable to Pay its Debts).
Voluntary Arrangement has the meaning given by section 8(1) (Company arrangements).
Voluntary Winding Up means a Creditors Voluntary Winding Up or a Members Voluntary Winding Up.
Writing includes:
(a) in relation to a certificate, instrument, notice or other thing—the thing in any form that preserves a record of the information contained in it and is capable of being reproduced in tangible form, including by electronic means; and
(b) in relation to a communication—any method of communication that preserves a record of the information contained in it and is capable of being reproduced in tangible form, including by electronic means
and Written shall be construed accordingly.