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Number 1288 14 February 2012 Client Alert Latham & Watkins Corporate Department NASDAQ Dubai Consults on New Admission and Disclosure Standards On 6 February 2012, the NASDAQ The ADSs and the DFSA’s Dubai securities exchange, which Markets Rules is based in the Dubai International Financial Centre (the DIFC), opened It is proposed that the ADSs will its proposed new Admission and form part of the NASDAQ Dubai Disclosure Standards (the ADSs) for Business Rules and will replace public consultation. the existing Issuers and Securities Rules. Separately, the DFSA has Reform of the DIFC’s Listing been consulting on its proposed new Markets Rules, which will Regime include the DFSA’s listing rules. The The proposed ADSs form part of Markets Rules will be promulgated “The proposed significant ongoing reform of the by the DFSA pursuant to a power to be conferred on it by a new DIFC ADSs form part regulatory architecture governing NASDAQ Dubai and other securities Markets Law, which is currently in of significant exchanges in the DIFC. On 1 October the final stages of being passed, and ongoing reform 2011, responsibility for maintaining which will replace the existing DIFC Markets Law of 2004. It is intended of the regulatory an Official List and listing authority functions in the DIFC was transferred that the new NASDAQ Dubai Business architecture from NASDAQ Dubai to the DIFC’s Rules incorporating the ADSs and the governing regulator, the Dubai Financial Services DFSA Markets Rules will come into force at the same time. NASDAQ Authority (the DFSA). Responsibility for admission of securities to trading Dubai and on NASDAQ Dubai remains with the NASDAQ Dubai’s other securities exchange. This approach mirrors the Objectives exchanges in the position in the UK, where there is a similar split in functions between the The ADSs begin with an introduction DIFC.” Financial Services Authority (in its setting out the stated objectives of role as the UK Listing Authority) and the rules, which include (i) ensuring the London Stock Exchange, which an internationally competitive and regulates admission to trading on its accessible market; (ii) maintaining markets for listed securities. fairness, transparency and an orderly market; (iii) ensuring liquidity and (iv) following international standards for trading securities. NASDAQ Dubai reiterates the importance of its relationships with issuers. 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Latham & Watkins | Client Alert Ensuring Liquidity on This provision is likely to prove NASDAQ Dubai controversial with market participants, who will be concerned at the practicality One of the key issues for consideration of such prescriptive measures. For as part of the public consultation process example, US$2,000 may be seen as too is NASDAQ Dubai’s proposals that high an amount to allow local retail seek to ensure adequate liquidity on investors, who should be encouraged the exchange. The trading liquidity to participate in local IPOs, to count of securities has historically been a towards the eligibility threshold for significant challenge for exchanges in listing. Similarly, the threshold of the GCC region compared to major 250 shareholders may be seen as an exchanges in established financial unrealistically high number, particularly centres such as London, New York taking into account the regulatory and Hong Kong. However, the lack hurdles associated with pursuing a of foreign ownership restrictions, local retail offering in the wider UAE a sophisticated trading platform, a beyond the boundaries of the DIFC. robust regulatory framework and the Although the concept of a retail offering international brand offered by NASDAQ of securities solely within the DIFC Dubai ought to position the DIFC’s is theoretically possible (at least as a principal securities exchange to enjoy matter of law), it would be virtually increased liquidity as it becomes a more impossible in practice to find 250 retail established financial centre. (or non-institutional) shareholders within the 110 acres that make up the DIFC To address liquidity concerns, it is free zone. Another consideration is that proposed that ADS Rule 2.1 (Liquidity there is little possibility of institutional Requirements) will contain certain investor-only offers (the encouragement provisions to encourage liquidity. The of institutional investors in the GCC draft ADS Rule 2.1.1 gives NASDAQ should be a wider objective) and also Dubai a general discretion as to whether the potentially higher costs of wider to admit equity securities to trading. marketing efforts to attract a high There would need to exist, in the enough number of investors. opinion of NASDAQ Dubai, “conditions for sufficient supply and demand of such equity securities to facilitate Other Provisions a reliable price formation process”. The draft ADSs contain a number of ADS Rule 2.1.2 goes on to set out the provisions regarding the procedural conditions as to which an issuer will steps needed for admission to trading. need to satisfy NASDAQ Dubai in this They do not generally touch on matters regard, namely (i) that it will have a of eligibility for listing, as there has “sufficient minimum number” of bona been an effort on the part of NASDAQ fide shareholders, each holding equity Dubai to avoid overlap with the DFSA’s securities of the issuer with a value of Markets Rules. The ADSs contain a at least US$2,000 or (ii) sufficient price number of features that are specifically formation is maintained through the tailored for the GCC region, including appointment of one or more market requirements for Shari’ah-compliant makers. In the case of (i), NASDAQ securities and pronouncements of Dubai provides guidance that 250 Shari’ah compliance. It should also be shareholders will generally be a noted that, in alignment with the DFSA’s sufficient minimum number, although strategy of bringing the DIFC closer the exchange reserves discretion. In the into line with EU and UK listing and case of (ii), the appointment of a market disclosure requirements, the structure of maker would need to be made pursuant the new ADSs will be familiar to those to an agreement between the market market participants who are used to the maker, the issuer and NASDAQ Dubai. securities offering regimes of the UK and other EU member states following the EU Prospectus Directive standards. 2 Number 1288 | 14 February 2012 Latham & Watkins | Client Alert Prospectus Review Process If you have any questions about this One question that market participants, Client Alert, or would like to provide particularly issuers and their advisers, us with any thoughts or feedback will likely be asking is how these to include in our response to the proposed changes affect the review consultation, please contact one of the process for having an offering document authors listed below or the Latham approved. Effectively, the new process, attorney with whom you normally which again mirrors the position in consult: the UK, is that it is the regulator (here, the DFSA) that will be responsible Andrew Tarbuck for reviewing and commenting on +971.4.704.6353 an offering document and providing [email protected] final approval of the document. The Dubai exchange (in the form of NASDAQ Dubai) will not review a prospectus for Oliver Simpson substantive content but will instead +971.4.704.6369 be focused on ensuring that the issuer [email protected] meets the requirements for admission Dubai of securities to trading (including the liquidity requirements discussed above). Deadline for comments The consultation period closes on 5 March 2012. NASDAQ Dubai’s official announcement of the opening of the consultation period can be viewed at www.nasdaqdubai.com/regulation/ regulation-public-consultation.html, which also contains a link to the draft ADSs. Latham & Watkins will be submitting a full response. 3 Number 1288 | 14 February 2012 Latham & Watkins | Client Alert Client Alert is published by Latham & Watkins as a news reporting service to clients and other friends. The information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorney with whom you normally consult. A complete list of our Client Alerts can be found on our website at www.lw.com. If you wish to update your contact details or customise the information you receive from Latham & Watkins, please visit www.lw.com/LathamMail.aspx to subscribe to our global client mailings program. Abu Dhabi Houston Paris Barcelona London Riyadh* Beijing Los Angeles Rome Boston Madrid San Diego Brussels Milan San Francisco Chicago Moscow Shanghai Doha Munich Silicon Valley Dubai New Jersey Singapore Frankfurt New York Tokyo Hamburg Orange County Washington, D.C. Hong Kong * In association with the Law Office of Mohammed A. Al-Sheikh 4 Number 1288 | 14 February 2012.