Post Representations Procedures
In certain circumstances a
Decision Makeris 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:(a) withdraw an authorisation in relation to one or more Financial Servicesfor which an Authorised Personis authorised under a Licence(see Article 50);(b) withdraw a Licenceof an Authorised Person(see Article 51);(c) impose conditions and restrictions, impose additional conditions and restrictions, or vary or withdraw existing conditions and restrictions on a Licenceof an Authorised Person(see Article 49);(d) restrict a Personfrom performing one or more Licensed Functionsor suspend or withdraw Authorised Individualstatus from such a Person(see Article 58(2));(e) impose conditions and restrictions, impose additional conditions and restrictions, or vary or withdraw existing conditions and restrictions on Authorised Individualstatus (see Article 57);(f) restrict Personsfrom performing functions (see Article 58(1)); and(g) remove a Recognised Personfrom the list of Recognised Persons(see Article 37(7) of the Markets Law and REC Rule 4.4.4).
In deciding whether any delay is prejudicial to the interests of the
DIFC, the Decision Makerwill take into account factors including, but not limited to:(a) the extent of any loss, or risk of loss, or other adverse effect on DIFCregulated entities or customers;(b) the extent to which assets appear to be at risk;(c) the nature and extent of any false or inaccurate information provided by the Personto the DFSA;(d) the seriousness of any suspected breach of the requirements of the Law or Rules and the steps that need to be taken to correct that breach;(e) the risk that the Personor the Person'sbusiness may be used or has been used to facilitate money laundering or other financial crime;(f) the Person'sconduct in identifying the conduct and taking action in respect thereto; and(g) the impact that use of the DFSA's powers will have on the Person'sbusiness or on its customers.
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:(a) imposing conditions and restrictions or additional conditions and restrictions, or varying or withdrawing conditions and restrictions imposed on a
Licenceof an Authorised Person(see Article 49); or(b) imposing conditions and restrictions or additional conditions and restrictions, or varying or withdrawing conditions and restrictions on Authorised Individualstatus (see Article 57),
and the DFSA concluded that any delay would be prejudicial to the interests of the
DIFC. The Decision Makerwill allow the Personthe opportunity to make representations within fourteen days (or such longer period as may be agreed) from the date of the decision.54
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.
Where a post decision representation right is given, the
Decision Makerwill 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.