GEN 11.12.2 GEN 11.12.2(1) The
DFSAmay, by sending a notice in writing, require an Authorised Personto provide a report by an independent expert. The DFSAmay require the report to be in whatever form it specifies in the notice.(2) The DFSAwill give written notification to the Authorised Personof the purpose of its report, its scope, the timetable for completion and any other relevant matters.(3) The independent expert must be appointed by the Authorised Personand be nominated or approved by the DFSA.(4) The Authorised Personmust pay for the services of the independent expert.
GEN 11.12.2 Guidance1. If the
DFSAdecides to nominate the independent expert, it will notify the Authorised Personaccordingly. Alternatively, if the DFSAis content to approve the independent expert selected by the Authorised Personit will notify it of that fact.2. The DFSAwill only approve an independent expert that in the DFSA'sopinion has the necessary skills to make a report on the matter concerned.
Authorised Personappoints an independent expert, the Authorised Personmust ensure that:(a) the independent expert co-operates with the DFSA; and(b) the Authorised Personprovides all assistance that the independent expert may reasonably require.
Authorised Personappoints an independent expert, the Authorised Personmust, in the contract with the independent expert:(a) require and permit the independent expert to co-operate with the DFSAin relation to the Authorised Personand to communicate to the DFSAinformation on, or his opinion on, matters of which he has, or had, become aware in his capacity as an independent expert reporting on the Authorised Personin the following circumstances:(i) the independent expert reasonably believes that, as regards the Authorised Personconcerned:(A) there is or has been, or may be or may have been, a contravention of any relevant requirement that applies to the Authorised Personconcerned; and(B) that the contravention may be of material significance to the DFSAin determining whether to exercise, in relation to the Authorised Personconcerned, any powers conferred on the DFSAunder any provision of the Regulatory Law2004;(ii) the independent expert reasonably believes that the information on, or his opinion on, those matters may be of material significance to the DFSAin determining whether the Authorised Personconcerned satisfies and will continue to satisfy the fit and proper requirements; or(iii) the independent expert reasonably believes that the Authorised Firmis not, may not be, or may cease to be, a going concern;(b) require the independent expert to prepare a report within the time specified by the DFSA; and(c) waive any duty of confidentiality owed by the independent expert to the Authorised Personwhich might limit the provision of information or opinion by that independent expert to the DFSAin accordance with (a) or (b).
Authorised Personmust ensure that the contract required under Rule 11.12.4:(a) is governed by the laws of the DIFC;(b) expressly provides that the DFSAhas a right to enforce the provisions included in the contract under Rule 11.12.4;(c) expressly provides that, in proceedings brought by the DFSAfor the enforcement of those provisions, the independent expert is not to have available by way of defence, set-off or counter claim any matter that is not relevant to those provisions;(d) if the contract includes an arbitration agreement, expressly provides that the DFSAis not, in exercising the right in (b) to be treated as a party to, or bound by, the arbitration agreement; and(e) provides that the provisions included in the contract under Rule 11.12.4 are irrevocable and may not be varied or rescinded without the DFSA'sconsent.