170. Application of margin or Default Fund Contribution not affected by certain other interests(1) The following provisions have effect with respect to the application by a Recognised Body of property (other than Real Property) held by the Recognised Body as margin in relation to a Market Contract or as Default Fund Contribution.(2) So far as necessary to enable the property to be applied in accordance with the rules of the Recognised Body, it may be so applied notwithstanding any prior equitable interest or right, or any right or remedy arising from a breach of fiduciary duty, unless the Recognised Body had received actual written notice of the interest, right or breach of duty at the time the property was provided as margin or as Default Fund Contribution. In order to be valid, any notice under this subsection may only be delivered to the Recognised Body by one of its members and must be delivered in accordance with or in order to satisfy applicable Rules made by the Regulator on Client Money in accordance with section 4, or similar rules in any non-Abu Dhabi Global Market jurisdiction.(3) No right or remedy arising subsequently to the property being provided as margin or as Default Fund Contribution may be enforced so as to prevent or interfere with the application of the property by the Recognised Body in accordance with its rules.(4) Where a Recognised Body has power by virtue of the above provisions to apply property notwithstanding an interest, right or remedy, a person to whom the exchange or clearing house disposes of the property in accordance with its rules takes free from that interest, right or remedy.(5) The records and accounts of a Recognised Body detailing the Clearing Member House Contracts, Clearing Member Client Contracts, relevant Client Trades and the corresponding property provided by way of margin with respect to each such category of Market Contract, shall be final and definitive in relation to the rights of the Recognised Body to take action under its Default Rules, including applying property or its proceeds against liabilities or aggregating property or its proceeds with amounts in either case recorded in particular accounts, which may take place notwithstanding any prior or competing equitable interest or right, or any right or remedy arising from a breach of fiduciary duty on the part of any Clearing Member, Client or other party, whether relevant to a Market Contract or any corresponding property provided by way of margin, excepting only cases of actual written notice referred to in subsection (2).
171. Priority of floating Collateral Security Arrangement over subsequent Charges(1) The Regulator may by Rules provide that a Collateral Security Arrangement which is a floating Charge has priority over a Charge subsequently created or arising, including a fixed Charge.(2) The Rules may make different provision for cases defined, as regards the Collateral Security Arrangement or the subsequent Charge, by reference to the description of Charge, its terms, the circumstances in which it is created or arises, the nature of the Charge, the person in favour of whom it is granted or arises or any other relevant factor.
172. Priority of Collateral Security Arrangement over unpaid vendor's lien
Where property subject to an unpaid vendor's lien becomes subject to a Collateral Security Arrangement, the Charge has priority over the lien unless the chargee had actual notice of the lien at the time the property became subject to the Charge.
173. Proceedings against market property by unsecured creditors(1) Where property (other than Real Property) is held by a Recognised Body as margin in relation to Market Contracts or as Default Fund Contribution, or is subject to a Collateral Security Arrangement, no execution or other legal process for the enforcement of a judgment or order may be commenced or continued, and no distress may be levied against the property by a person not seeking to enforce any interest in or security over the property, except with the consent of —(a) in the case of property provided as cover for margin or as Default Fund Contribution, the Recognised Body in question; or(b) in the case of property subject to a Collateral Security Arrangement, the person in whose favour the Charge was granted.(2) Where consent is given the proceedings may be commenced or continued notwithstanding any provision of the Insolvency Regulations 2015.(3) Where by virtue of this section a person would not be entitled to enforce a judgment or order against any property, any injunction or other remedy granted with a view to facilitating the enforcement of any such judgment or order shall not extend to that property.
174. Power to apply provisions to other cases(1) A power to which this subsection applies includes the power to apply sections 170 to 173 to any description of property provided as cover for margin in relation to contracts in relation to which the power is exercised or, as the case may be, property subject to Charges in relation to which the power is exercised.(2) The Rules may provide that those sections apply with such exceptions, additions and adaptations as may be specified in the Rules.
175. Recognised Clearing Houses: disapplication of provisions on mutual credit and set off(1) Nothing in the Insolvency Regulations 2015 shall enable the setting off against each other of —(a) positions and assets recorded in an account at a Recognised Clearing House and held for the account of a Client, an Indirect Client or a group of Clients or Indirect Clients; and(b) positions and assets recorded in any other account at the Recognised Clearing House.(2) Nothing in the Insolvency Regulations 2015 shall enable the setting off against each other of —(a) positions and assets recorded in an account at a Clearing Member and held for the account of an Indirect Client or a group of Indirect Clients; and(b) positions and assets recorded in any other account at the Clearing Member.
176. Insolvency proceedings in other jurisdictions(1) The references to insolvency law in the Insolvency Regulations 2015 include, in relation to a part of the Abu Dhabi Global Market, the provisions made by or under this Part and, in relation to another country or territory other than Abu Dhabi Global Market, so much of the law of that country or territory as corresponds to any provisions made by or under this Part.(2) A court shall not, in pursuance of that section or any other enactment or rule of law, recognise or give effect to —(a) any order of a court exercising jurisdiction in relation to insolvency law in a country or territory outside the Abu Dhabi Global Market; or(b) any act of a person appointed in such a country or territory to discharge any functions under insolvency law;in so far as the making of the order or the doing of the act would be prohibited in the case of the Court in the Abu Dhabi Global Market or a Relevant Office-Holder by provisions made by or under this Part.
177. Indemnity for certain acts(1) Where a Relevant Office-Holder takes any action in relation to property of a Defaulter which is liable to be dealt with in accordance with the Default Rules of a Recognised Body, and believes and has reasonable grounds for believing that he is entitled to take that action, he is not liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by the Relevant Office-Holder's own negligence.(2) Any failure by a Recognised Body to comply with its own rules in respect of any matter shall not prevent that matter being treated for the purposes of this Part as done in accordance with those rules so long as the failure does not substantially affect the rights of any person entitled to require compliance with the rules.(3) No Recognised Body, nor any officer or servant or member of the governing body of a Recognised Body, shall be liable in damages for anything done or omitted in the discharge or purported discharge of any functions to which this subsection applies unless the act or omission is shown to have been in bad faith.(4) The functions to which subsection (3) applies are the functions of the Recognised Body so far as relating to, or to matters arising out of —(a) its Default Rules; or(b) any obligations to which it is subject by virtue of this Part.(5) No person to whom the exercise of any function of a Recognised Body is delegated under its Default Rules, nor any officer or servant of such a person, shall be liable in damages for anything done or omitted in the discharge or purported discharge of those functions unless the act or omission is shown to have been in bad faith.
178. Action taken under Default Rules(1) For the purposes of the definition of "Defaulter", where a Recognised Clearing House takes action under the rules referred to in the definition of "Default Rules", the action is to be treated as taken in respect of the Client providing the Indirect Clearing Services.(2) If a Recognised Body takes action under its Default Rules in respect of a person, all subsequent proceedings under its rules for the purposes of or in connection with the Settlement of Market Contracts to which the Defaulter is a party shall be treated as done under its Default Rules.
179. Power of the Regulator to make Rules under this Part(1) The Regulator may by Rules, in accordance with the procedure in Part 2, make further provision as to —(a) the duties of persons to give assistance to a Recognised Body for the purposes of its Default Proceedings, and the duties of the Recognised Body with respect to information supplied to it;(b) the Charges granted in favour of any such person as is mentioned in sections 167(1)(a), (b) or (d) which are to be treated as "Collateral Security Arrangements" for the purposes of this Part, where the Regulator may —(i) add, amend or repeal the provisions of sections 167(1) or (2); and(ii) provide that a Charge shall or shall not be treated as a Collateral Security Arrangement if or to the extent that it secures obligations of a specified description, is a Charge over property of a specified description or contains provisions of a specified description;(c) the application of this Part to contracts of any specified description in relation to which settlement arrangements are provided by the Regulator, as it applies to contracts connected with a Recognised Body;(d) the effect of the Insolvency Regulations 2015 on specific Charges, in accordance with section 169;(e) the application of these Regulations to a Non-Abu Dhabi Global Market Recognised Body approved in accordance with section 165, together with exceptions, additions and adaptations as deemed necessary;(f) the priority of a Collateral Security Arrangement which is a floating Charge, in accordance with section 171;(g) the application of this Part to contracts connected with a Non-Abu Dhabi Global Market Clearing House or Non-Abu Dhabi Global Market Investment Exchange which —(i) is not a Non- Abu Dhabi Global Market Recognised Body; but(ii) is approved by the Regulator in accordance with such requirements as may be so specified;(h) modifications to the Insolvency Regulations 2015 relating to Collateral Security Arrangements and action taken in enforcing them, where such Rules may make different provision for cases defined by reference to the nature of the Charge, the nature of the property subject to it, the circumstances, nature or extent of the obligations secured by it or any other relevant factor; and(i) such further provision as appears to the Regulator to be necessary or expedient for the purposes of this Part.(2) Rules made in accordance with this Part may add to, amend or repeal any of the provisions of this Part or provide that those provisions have effect subject to such additions, exceptions or adaptations as are specified in the Rules.