Entire Section

  • Independent Expert

    • GEN 11.12.2 GEN 11.12.2

      (1) The DFSA may, by sending a notice in writing, require an Authorised Person to provide a report by an independent expert. The DFSA may require the report to be in whatever form it specifies in the notice.
      (2) The DFSA will give written notification to the Authorised Person of 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 Person and be nominated or approved by the DFSA.
      (4) The Authorised Person must pay for the services of the independent expert.

      • GEN 11.12.2 Guidance

        1. If the DFSA decides to nominate the independent expert, it will notify the Authorised Person accordingly. Alternatively, if the DFSA is content to approve the independent expert selected by the Authorised Person it will notify it of that fact.
        2. The DFSA will only approve an independent expert that in the DFSA's opinion has the necessary skills to make a report on the matter concerned.

    • GEN 11.12.3

      When an Authorised Person appoints an independent expert, the Authorised Person must ensure that:

      (a) the independent expert co-operates with the DFSA; and
      (b) the Authorised Person provides all assistance that the independent expert may reasonably require.

    • GEN 11.12.4

      When an Authorised Person appoints an independent expert, the Authorised Person must, in the contract with the independent expert:

      (a) require and permit the independent expert to co-operate with the DFSA in relation to the Authorised Person and to communicate to the DFSA information 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 Person in the following circumstances:
      (i) the independent expert reasonably believes that, as regards the Authorised Person concerned:
      (A) there is or has been, or may be or may have been, a contravention of any relevant requirement that applies to the Authorised Person concerned; and
      (B) that the contravention may be of material significance to the DFSA in determining whether to exercise, in relation to the Authorised Person concerned, any powers conferred on the DFSA under any provision of the Regulatory Law 2004;
      (ii) the independent expert reasonably believes that the information on, or his opinion on, those matters may be of material significance to the DFSA in determining whether the Authorised Person concerned satisfies and will continue to satisfy the fit and proper requirements; or
      (iii) the independent expert reasonably believes that the Authorised Firm is 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 Person which might limit the provision of information or opinion by that independent expert to the DFSA in accordance with (a) or (b).

    • GEN 11.12.5

      An Authorised Person must ensure that the contract required under Rule 11.12.4:

      (a) is governed by the laws of the DIFC;
      (b) expressly provides that the DFSA has a right to enforce the provisions included in the contract under Rule 11.12.4;
      (c) expressly provides that, in proceedings brought by the DFSA for 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 DFSA is 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's consent.