Entire Section

RPP 6-5-5

Decision Maker Decisions generally involve prescribed procedures, which require the Decision Maker to give to the Person who will be affected by his decision ("the Affected Person") a right of representation prior to making his decision. Prior representation procedures involve the Decision Maker giving to the Affected Person:

RPP 6-5-6

If the Decision Maker receives no response or representations from the Affected Person within the period specified in the notice, the Decision Maker may regard the allegations or matters in the notice as undisputed and proceed to make his decision.

RPP 6-5-7

If, however, the Affected Person makes representations, then the Decision Maker will take into account those representations in making his decision on the basis of the material then available, subject to seeking further clarification of any issues that might arise from such representations.

RPP 6-5-8

Should the Affected Person wish to make oral representations in addition to, or in lieu of, written submissions, he should notify the Decision Maker as soon as practicable and within the timeframe provided for making representations. The notification should specify the matters on which the Person wishes to make oral representations, how long the Person expects the representations will take and the names of any representatives appointed to attend the hearing at which the representations will be made.

RPP 6-5-9

The Affected Person may appoint one or more representatives of that Person's choice (who may be legally qualified) to attend the meeting at which representations will be made. Such representatives may make, or assist in making, the representations.

RPP 6-5-10

As soon as is reasonably practicable after receiving the notification for the meeting to take place, the Decision Maker will specify the time and place at which the meeting will take place. Before making his decision, the Decision Maker may also seek further comments or clarification from DFSA officers on matters that were represented to him by the Affected Person.

RPP 6-5-11

Upon making the relevant decision, a written notice setting out the DFSA decision, the reasons for making such decision and any right of appeal to the Regulatory Appeals Committee must be given to the Affected Person.

RPP 6-5-12

In certain circumstances a Decision Maker is not required to follow the procedures relating to prior representations when exercising specific DFSA powers. These circumstances are set out in the relevant Law and Rules. For example, the DFSA is not obliged to provide an Affected Person with a prior opportunity to make representations where any delay likely to arise from giving such a right is prejudicial to the interests of the DIFC. These circumstances can sometimes apply in the decision to:

RPP 6-5-13

In deciding whether any delay is prejudicial to the interests of the DIFC, the Decision Maker will take into account factors including, but not limited to:

RPP 6-5-14

In some cases, the relevant provisions expressly require Affected Persons to be given a right of representation following the making of a decision without being given prior representation rights. The right arises when the decision involves:

and the DFSA concluded that any delay would be prejudicial to the interests of the DIFC. The Decision Maker will allow the Person the opportunity to make representations within fourteen days (or such longer period as may be agreed) from the date of the decision.⁵⁴

⁵⁴ Articles 49(5) and 57(5) of the Regulatory Law 2004.

RPP 6-5-15

Where the relevant Law or Rules do not expressly confer on an Affected Person a right to make representation, where the DFSA makes a decision without giving a prior right of representation due to any delay being prejudicial to the interests of the DIFC, the DFSA will generally provide such a person a post decision right of representation.

RPP 6-5-16

Where a post decision representation right is given, the Decision Maker will confirm, withdraw or vary his decision taking into account the representations made. The procedures for considering representations are the same as noted in paragraphs 6-5-5 to 6-5-11 for prior representations.

RPP 6-5-17

Pursuant to Articles 75, 75A and 76 of the Regulatory Law 2004, the DFSA has the power by which:

RPP 6-5-18

The Article 75 and 76 powers do not require the DFSA to give an Affected Person the opportunity to make representations, prior to the DFSA exercising such powers. This is because such powers are designed to enable the DFSA to act swiftly in the circumstances set out in GEN Rule 11.13.1. These circumstances include where the DFSA considers that any prohibition or requirement is necessary to ensure that customers, Authorised Persons or the financial system are not adversely affected by the activities of the Affected Person.

RPP 6-5-19

Before issuing a direction under Article 75A, the DFSA will provide an Affected Person with an opportunity to make written and oral representations. Where the DFSA needs to exercise its powers swiftly under Article 75A, it will not be possible to provide an Affected Person with an opportunity to make representations to the DFSA prior to the issue of the relevant direction. However, an opportunity to make representations immediately after the issue of such direction will be afforded to the Affected Person.

RPP 6-5-20

Given that the DFSA may be required to act swiftly when it exercises its Article 75, 75A and 76 powers, the Decision Maker may be a DFSA officer who might have had supervisory or other regulatory responsibilities, including enforcement responsibilities, in relation to the Affected Person.