INSTRUCTION OF CENTRAL BANK OF THE RUSSIAN FEDERATION

of September 13, 2015 No. 3796-U

About requirements to procedure for forming of compensation fund of self-regulatory organization Forex dealers, and also about procedure and conditions of compensation payments

This Instruction based on Item 8.2 of Article 42, item 4 and Item 7 of article 50.2 of the Federal Law of April 22, 1996 No. 39-FZ "About the security market" (The Russian Federation Code, 1996, No. 17, Art. 1918; 2001, No. 33, Art. 3424; 2002, No. 52, Art. 5141; 2004, No. 27, Art. 2711; No. 31, Art. 3225; 2005, No. 11, Art. 900; No. 25, Art. 2426; 2006, No. 1, Art. 5; No. 2, Art. 172; No. 17, Art. 1780; No. 31, Art. 3437; No. 43, Art. 4412; 2007, No. 1, Art. 45; No. 18, Art. 2117; No. 22, Art. 2563; No. 41, Art. 4845; No. 50, Art. 6247; 2008, No. 52, Art. 6221; 2009, No. 1, Art. 28; No. 18, Art. 2154; No. 23, Art. 2770; No. 29, Art. 3642; No. 48, Art. 5731; No. 52, Art. 6428; 2010, No. 17, Art. 1988; No. 31, Art. 4193; No. 41, Art. 5193; 2011, No. 7, Art. 905; No. 23, Art. 3262; No. 27, Art. 3880; No. 29, Art. 4291; No. 48, Art. 6728; No. 49, Art. 7040; No. 50, Art. 7357; 2012, No. 25, Art. 3269; No. 31, Art. 4334; No. 53, Art. 7607; 2013, No. 26, Art. 3207; No. 30, Art. 4043, Art. 4082, Art. 4084; No. 51, Art. 6699; No. 52, Art. 6985; 2014, No. 30, Art. 4219; 2015, No. 1, Art. 13; No. 14, Art. 2022, No. 27, Art. 4001; No. 29, the Art. 4348, the Art. 4349) (further - the Federal Law No. 39-FZ) and the Federal Law of July 10, 2002 No. 86-FZ "About the Central bank the Russian Federation (Bank of Russia)" (The Russian Federation Code, 2002, No. 28, Art. 2790; 2003, No. 2, Art. 157; No. 52, Art. 5032; 2004, No. 27, Art. 2711; No. 31, Art. 3233; 2005, No. 25, Art. 2426; No. 30, Art. 3101; 2006, No. 19, Art. 2061; No. 25, Art. 2648; 2007, No. 1, Art. 9, Art. 10; No. 10, Art. 1151; No. 18, Art. 2117; 2008, No. 42, Art. 4696, Art. 4699; No. 44, Art. 4982; No. 52, Art. 6229, Art. 6231; 2009, No. 1, Art. 25; No. 29, Art. 3629; No. 48, Art. 5731; 2010, No. 45, Art. 5756; 2011, No. 7, Art. 907; No. 27, Art. 3873; No. 43, Art. 5973; No. 48, Art. 6728; 2012, No. 50, Art. 6954; No. 53, Art. 7591, Art. 7607; 2013, No. 11, Art. 1076; No. 14, Art. 1649; No. 19, Art. 2329; No. 27, Art. 3438, Art. 3476, Art. 3477; No. 30, Art. 4084; No. 49, Art. 6336; No. 51, Art. 6695, Art. 6699; No. 52, Art. 6975; 2014, No. 19, Art. 2311, Art. 2317; No. 27, Art. 3634; No. 30, Art. 4219; No. 45, Art. 6154; No. 52, Art. 7543; 2015, No. 1, Art. 4, Art. 37, No. 27, Art. 3958, Art. 4001; No. 29, of the Art. 4348) establishes requirements to procedure for forming of compensation fund of self-regulatory organization Forex dealers (further - compensation fund), and also procedure and conditions of compensation payments from means of compensation fund (further - compensation payments).

Chapter 1. General provisions

1.1. The compensation fund is created by self-regulatory organization Forex dealers for the purpose of indemnification to the physical persons who are not individual entrepreneurs (further - Clients) who are caused to them as a result of insolvency (bankruptcy) of members of self-regulatory organization Forex dealers whose consumers of financial services the Clients or the broker or the managing director acting for customer account were.

1.2. Sources of forming of compensation fund are determined according to Item 2 of article 50.2 of the Federal Law No. 39-FZ.

1.3. The order shall be performed by means of compensation fund only for the purpose of, provided by this Instruction.

Chapter 2. Requirements to procedure for forming of compensation fund

2.1. The self-regulatory organization Forex dealers shall create compensation fund in the amount of at least the size which is calculated by multiplication of number of members of self-regulatory organization Forex dealers on the size of fee of each member of self-regulatory organization Forex dealers in the compensation fund determined by the Federal Law No. 39-FZ.

2.2. In case of shortage of means of compensation fund for implementation to Clients of compensation payments, and also in case of decrease in the size of compensation fund during implementation of compensation payments below the minimum size determined according to Item 2.1 of this Instruction, self-regulatory organization Forex dealers replenishment of means of compensation fund at the expense of additional contributions of her members is made.

2.3. For replenishment of compensation fund the self-regulatory organization Forex dealers after closing of the register of compensation payments performs recalculation of means of compensation fund and Forex dealers for implementation of all payments to Clients and replenishment of means of compensation fund up to the size specified in Item 2.1 of this Instruction determines the amount necessary for additional introduction by each member of self-regulatory organization.

The cash amount granted by each member of self-regulatory organization Forex dealers within replenishment of compensation fund is established in proportion to the size determined on the last reporting date being on the nominal account (accounts) corresponding Forex dealer of money of the physical persons who are not individual entrepreneurs.

Based on the above-stated calculation the self-regulatory organization Forex dealers within 10 working days from the moment of closing of the register of compensation payments sends to the members the requirement about additional entering of money into compensation fund.

Procedure for the direction of the requirement about additional entering of money into the compensation fund allowing to determine the fact of receipt of such requirement, procedure for money transfer Forex dealers in compensation fund within execution of the requirement about additional entering of money into compensation fund and also effects for the corresponding members of self-regulatory organization Forex dealers in case of non-execution of this requirement, including stipulated in Item the 5th article 50.1 of the Federal Law No. 39-FZ, are determined by standards of self-regulatory organization Forex dealers if they are not determined by its charter.

At the same time term for money transfer shall not exceed Forex dealers in compensation fund within execution of the requirement about additional entering of money into compensation fund 120 working days from the moment of the direction of the relevant requirement.

2.4. In case of non-execution by one or several members of self-regulatory organization obligation Forex dealers on replenishment of compensation fund according to the paragraph the fifth Item 2.3 of this Instruction the self-regulatory organization Forex dealers within 10 working days after the expiration of the terms specified in paragraph five of Item 2.3 of this Instruction performs recalculation of means of compensation fund according to paragraph one of Item 2.3 of this Instruction and sends to the members, except for those which did not fulfill such duty, repeated requirements about additional entering of money into compensation fund earlier.

Each member of self-regulatory organization Forex dealers to which the repeated requirement about additional entering of money into compensation fund is sent shall provide transfer of the specified cash amount in compensation fund within 120 working days from the moment of the direction of the relevant requirement.

2.5. For the purpose of non-admission of decrease in the size of compensation fund is lower than the size specified in Item 2.1 of this Instruction when the replenishment of compensation fund provided by Items 2.2 - 2.4 presents of the Instruction is not performed, the self-regulatory organization Forex dealers quarterly performs recalculation of means of compensation fund following the results of which determines the amount necessary for introduction by each her member for replenishment of means of compensation fund up to the specified size.

Within 10 days from the date of the recalculation specified in paragraph one of this Item the self-regulatory organization Forex dealers sends to the members the requirement about introduction of money which shall be performed Forex dealers within 15 working days from the date of receipt of the relevant requirement.

2.6. In case of bankruptcy of two and more members of self-regulatory organization Forex dealers the requirement about additional entering of money into compensation fund in connection with insolvency (bankruptcy) Forex dealer goes to members of self-regulatory organization Forex dealers within 10 working days from the date of implementation of compensation payments to Clients previous Forex dealer according to Item 2.3 of this Instruction.

2.7. Are not allowed release of the member of self-regulatory organization Forex dealers from obligation on implementation of the additional contribution specified in Item 2.3 of this Instruction and (or) the termination of the specified obligation by offsetting of its requirements to such self-regulatory organization.

The membership termination Forex dealer in self-regulatory organization Forex dealers after approach concerning her member (members) of the event specified in Item 3.1 of this Instruction is not the basis for non-execution of the requirement of self-regulatory organization directed in connection with this event Forex dealers about additional entering of money into compensation fund.

Chapter 3. Procedure and conditions of compensation payments from means of compensation fund

3.1. The basis for implementation by self-regulatory organization Forex dealers of compensation payments to Clients is adoption by Arbitration Court of the decision on recognition of the member of such self-regulatory organization Forex dealers insolvent (bankrupt) and about opening concerning it bankruptcy proceedings according to the Federal Law of October 26, 2002 No. 127-FZ "About insolvency (bankruptcy)" (The Russian Federation Code, 2002, No. 43, Art. 4190; 2004, No. 35, Art. 3607; 2005, No. 1, Art. 18, Art. 46; No. 44, Art. 4471; 2006, No. 30, Art. 3292; No. 52, Art. 5497; 2007, No. 7, Art. 834; No. 18, Art. 2117; No. 30, Art. 3754; No. 41, Art. 4845; No. 49, Art. 6079; 2008, No. 30, Art. 3616; No. 49, Art. 5748; 2009, No. 1, Art. 4, Art. 14; No. 18, Art. 2153; No. 29, Art. 3632; No. 51, Art. 6160; No. 52, Art. 6450; 2010, No. 17, Art. 1988; No. 31, Art. 4188, Art. 4196; 2011, No. 1, Art. 41; No. 7, Art. 905; No. 19, Art. 2708; No. 27, Art. 3880; No. 29, Art. 4301; No. 30, Art. 4576; No. 48, Art. 6728; No. 49, Art. 7015, Art. 7024, Art. 7040, Art. 7061, Art. 7068; No. 50, Art. 7531, Art. 7357; 2012, No. 31, Art. 4333; No. 53, Art. 7607, Art. 7619; 2013, No. 23, Art. 2871; No. 26, Art. 3207; No. 27, Art. 3477, Art. 3481; No. 30, Art. 4084; No. 51, Art. 6699; No. 52, Art. 6975, Art. 6984; 2014, No. 11, Art. 1095, Art. 1098; No. 30, Art. 4217; No. 49, Art. 6914; No. 52, Art. 7543; 2015, No. 1, Art. 10, Art. 35, No. 27, Art. 3945, Art. 3958, Art. 3967, Art. 3977; No. 29, the Art. 4355, the Art. 4362) (further - the decision of Arbitration Court).

3.2. The self-regulatory organization Forex dealers in case of receipt of data on insolvency (bankruptcy) of her member shall perform their reliability, including with use of the official sites on the Internet (further - Internet network): http://bankrot.fedresurs.ru, http://kommersant.ru.

In case of confirmation of data on insolvency (bankruptcy) of the member the self-regulatory organization Forex dealers shall within 30 working days from the date of the introduction in legal force of the decision of Arbitration Court open the register of compensation payments on corresponding Forex dealer.

Records about the Clients who submitted in self-regulatory organization the application and documents specified in Items 3.5 and 3.6 of this Instruction on which the self-regulatory organization Forex dealers makes the decision on implementation of compensation payments are entered in the register of compensation payments.

The register of compensation payments shall contain full name Forex dealer concerning which compensation payments, and also summary information on all Clients with indication of the following data are performed:

surname, name, middle name (in the presence) Client;

residential address of the Client;

basis for implementation of compensation payments (decision of Arbitration Court, arbitration court ruling on inclusion in the register of requirements of creditors);

the amount of principal debt, total amount of requirements, and also the amount of the extinguished requirements according to the statement from the register of requirements of creditors for the Client;

the amount of compensations which is subject to payment to the Client according to this Instruction;

the size and date of compensations paid to the Client.

The register of compensation payments shall be stored by self-regulatory organization Forex dealers throughout all term of implementation of its activities by the method ensuring safety of the personal data of Clients containing in it.

3.3. The self-regulatory organization Forex dealers no later than 30 working days from the date of the introduction in legal force of the decision of Arbitration Court shall post on the official site in Internet network the message containing the following information:

data on insolvency (bankruptcy) of the member of self-regulatory organization Forex dealers;

data on procedure for presentation of requirements by the Clients having the right to compensation payments;

data on the term of presentation of the requirements specified in paragraph three of this Item which begins after six months and terminates after twelve months from the date of the introduction in legal force of the decision of Arbitration Court;

the application form on inclusion in the register of compensation payments established by internal documents of self-regulatory organization Forex dealers.

3.4. The statement on inclusion in the register of compensation payments shall contain:

full name Forex dealer;

surname, name, middle name (in the presence) Client;

details of the identity document of the Client;

the consent of the Client to verification of the data specified in the statement;

consent of the Client to processing of personal data;

data on preferable method of receipt of compensation payments (by transfer into the bank account or by postal order);

bank details or the postal address on which compensation payments, and also the size of customer requirements in terms of money taking into account restrictions, stipulated in Item 3.13 these Instructions shall be directed;

data on the postal address of the Client, and also customer notification method on the decision specified in Item 3.7 of this Instruction.

The documents submitted for receipt of compensation payments are enclosed to the application on inclusion in the register of compensation payments.

3.5. For inclusion in the register of compensation payments the Client represents to self-regulatory organization Forex dealers in paper form the following documents:

the statement from the register of requirements of creditors about the size, structure and about priority of satisfaction of requirements;

copy of the decision of Arbitration Court. At the same time as the copy of the decision of Arbitration Court the copy of the corresponding court resolution posted on the website of Arbitration Court in Internet network can be provided.

3.6. The statement and documents specified in Items 3. 4, 3.5 presents of the Instruction, are represented to self-regulatory organization Forex dealers in the place of its stay specified in the Unified State Register of Legal Entities, purposely or by the direction of the mailing with the assurance of receipt and the inventory of investment.

The documents specified in Item 3.5 of this Instruction can be also in addition provided to other address specified on the official site of self-regulatory organization Forex dealers in Internet network.

3.7. After receipt of the statement with all documents specified in Item 3.5 of this Instruction, person authorized by self-regulatory organization Forex dealers makes the decision on inclusion of the corresponding Client in the register of compensation payments or passes the motivated decision on refusal.

3.8. Person authorized by self-regulatory organization Forex dealers makes the decision on inclusion of the corresponding applicant in the register of compensation payments, except as specified, if:

the set of documents provided by the Client does not conform to requirements of Item 3.5 of this Instruction;

application is issued with violation of requirements of Item 3.4 of this Instruction;

the set of documents is provided to self-regulatory organization Forex dealers with violation of the terms specified in paragraph four of Item 3.3 of this Instruction;

data on insolvency (bankruptcy) of the member of self-regulatory organization Forex dealers are not confirmed.

3.9. About the decision specified in Item 3.7 of this Instruction, self-regulatory organization Forex dealers no later than five working days from the date of representation to it of the documents specified in Items 3. 4, 3.5 presents of the Instruction, notify the Client by the registered mail with the assurance of receipt.

If the different way of the notification, self-regulatory organization Forex dealers is specified in the statement directs the notification on the made decision by the method specified in paragraph one of this Item. If in the statement it is specified several methods of the notification, self-regulatory organization Forex dealers independently chooses notification method.

In case of refusal from entering of the Client into the register of compensation payments the self-regulatory organization Forex dealers sends to the Client the adequate notice which is containing causes of failure, and in case of refusal on the bases provided by paragraphs second and third Item 3.8 of this Instruction, also containing data on actions which need to be undertaken for elimination of the reasons interfering entering of the Client into the register of compensation payments.

3.10. During the terms specified in paragraph four of Item 3.3 of this Instruction the self-regulatory organization Forex dealers creates the register of compensation payments, after their termination there is closing of the register of compensation payments.

In case of insolvency (bankruptcy) of two and more members of self-regulatory organization Forex dealers closing of the register of compensation payments on the following Forex dealer is performed after 10 working days from the date of implementation of compensation payments to Clients previous Forex dealer.

After closing of the register of compensation payments the self-regulatory organization Forex dealers meets customer requirements in the terms specified in Item 3.12 of this Instruction.

3.11. Payments to Clients from means of compensation fund are performed in currency of the Russian Federation.

3.12. Payments of money to persons having the right to compensation payments are performed within two working days from closing date of the register of compensation payments.

In case of insufficiency of means of compensation fund for implementation of compensation payments to Clients in the terms established in paragraph one of this Item, compensation payments are performed as follows:

within two working days from closing date of the register of compensation payments the self-regulatory organization Forex dealers transfers money to Clients in the amount of, expected proceeding from the general size of compensation fund closing day of the register of compensation payments, in proportion to the size of the money which is subject to return to Clients;

within two working days after the expiration specified in paragraph five of Item 2.3 of this Instruction the self-regulatory organization Forex dealers performs compensation payments to Clients less earlier paid money according to requirements of the paragraph of third this Item;

if after the expiration of the terms specified in paragraph five of Item 2.3 of this Instruction, means of compensation fund are not enough for implementation of payments to Clients, payments are performed in the amount of, expected proceeding from the general size of compensation fund the specified date is pro rata to the size of the money which is subject to return to Clients. The subsequent payments to Clients are performed taking into account the terms specified in Item 2.4 of this Instruction.

3.13. The amount of compensation payments is determined by self-regulatory organization Forex dealers based on data of the register of requirements of creditors without losses in the form of lost profit, penalties (penalties, penalty fee) and other financial sanctions.

If during the procedures applied in the case of bankruptcy, customer requirements were met or satisfied partially, the amount of compensation payment decreases by the size of the had satisfaction.

3.14. If the Client has the right to compensation payments in connection with insolvency (bankruptcy) two and more Forex dealers, compensation payments are estimated and paid on each fact of insolvency (bankruptcy) Forex dealers.

In case of receipt of statements on receipt of compensation payments on two and more members of self-regulatory organization Forex dealers of payment to Clients are performed according to the procedure of calendar priority of adoption of relevant decisions of Arbitration Court. Compensation payments in connection with insolvency (bankruptcy) of the following Forex dealer are performed after implementation of all compensation payments in connection with insolvency (bankruptcy) previous Forex dealer. Terms of implementation of compensation payments, stipulated in Item 3.12 these Instructions, on next Forex dealer begin to flow from the date of implementation of compensation payments to Clients previous Forex dealer.

Chapter 4. Final provisions

4.1. This Instruction becomes effective after 10 days after day of its official publication in "the Bulletin of the Bank of Russia".

 

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