Entire Section

RPP 7-1-1

This chapter sets out the DFSA's general approach to making decisions when exercising its discretionary powers, including those set out in chapters 4 and 5 of this Sourcebook.

RPP 7-1-2

A reference to:

RPP 7-1-3

The DFSA is aware that when it makes a decision to take certain action or pursue a remedy, such decisions are likely to affect the rights, interests and legitimate expectations of Persons. Therefore, the DFSA has put in place a fair and transparent decision making process.

Figure 1: DFSA's Decision Making Process

RPP 7-2-1

The DFSA's powers can be exercised by the Chief Executive and any DFSA officer with an appropriate delegation.

RPP 7-2-2

The decisions which are made by the DFSA generally fall into two main categories:

RPP 7-3-1

The key elements of DFSA's approach to decision making include:

RPP 7-3-2

In certain circumstances, as set out in (b) above, the DFSA does not have to give an affected person advance notice of its proposed action and a right for that person to make prior representations to the DFSA before the DFSA makes its final decision. In such circumstances, the DFSA is still obliged to give the affected person a right of representation within 14 days (or other longer period as may be agreed) from the date on which the DFSA decision is made and communicated to the relevant person. The DFSA is obliged to consider any representations made by the affected person during that period.

RPP 7-3-3

If representations are made, the DFSA must also communicate to the affected person whether the DFSA confirms its original decision, or otherwise varies or withdraws that decision, given the representations made. Where no representations are made by the affected person during the relevant period, the DFSA's original decision will remain in effect.

RPP 7-3-4

For example, decisions that might be made without giving the affected person a right to make prior representations are:

RPP 7-4-1

To facilitate a consistent approach to decision making, a central provision in Schedule 3 of the Regulatory Law sets out clearly the steps the DFSA is required to follow in order to comply with its due process obligations.

RPP 7-4-2

The relevant DFSA powers, whether in the laws or Rules, cross-refer to Schedule 3. The powers also set out whether the affected person has a right to have the DFSA decision reviewed by the Financial Markets Tribunal.

RPP 7-4-3

The procedures are designed to ensure procedural fairness by giving (see Figure1 above):

RPP 7-4-4

Some supervisory decisions of the DFSA, by their nature, do not invoke the procedures referred to in section 7-4-3. These decisions are generally made as part of the DFSA's day-to-day supervision of regulated firms. Examples include its decisions to:

RPP 7-4-5

In making these decisions, the DFSA is still subject to overarching administrative law principles which require it to act in good faith, and in a proportionate and reasonable manner. It is also required, to the extent appropriate, to act in a transparent and consistent manner.

RPP 7-4-6

The Schedule 3 procedures do not apply to some other types of DFSA decisions. There are three main categories of such decisions:

RPP 7-4-7

Generally, an affected person has a right to refer a DFSA decision to the Financial Markets Tribunal (the "Tribunal") for its review. Upon a referral, the Tribunal (which is operationally independent of the DFSA) is required to conduct a full merits review of the DFSA decision. In doing so, the Tribunal would look at all the relevant facts afresh and take into account all relevant matters, including any matters that the DFSA may have not been aware of, or had disregarded, when the DFSA made its decision.

RPP 7-4-8

After review of the DFSA decision, the Tribunal has the power to make a new decision using the powers available to the DFSA as the original decision maker. This could involve confirmation of the original decision made by the DFSA, substituting the DFSA decision with a new decision, or referring the matter back to the DFSA with a direction for the DFSA to make a fresh decision.

RPP 7-4-9

The Tribunal itself, being an administrative review body, is required to observe rules of procedural fairness, and be objective and transparent in making its decisions. So the Tribunal has its own due process procedures, which it follows.

RPP 7-4-10

To enable an affected person to exercise properly and effectively his right to have the DFSA's original decision referred to the Tribunal, the DFSA will provide to such a person a Decision Notice specifying:

RPP 7-4-11

The Decision Notice must also include a copy of the relevant materials which were considered by the DFSA when making its decision (unless such materials are al held by the affected person or are publicly available).

RPP 7-4-12

A decision of the Tribunal may be reviewed by the DIFC Court but only on a point of law. For more information on the Financial Markets Tribunal, including its rules and procedures, please see the DFSA's website (www.dfsa.ae).

RPP 7-5-1

Executive Decisions of the DFSA are generally operational decisions, made by a DFSA officer exercising delegated powers of the DFSA's Chief executive. They generally involve the DFSA being called upon to consider and respond to an application or notification made by a Person. Some examples of such decisions include where the DFSA proposes to:

RPP 7-5-2

Decisions of the kind referred to above would generally confer on an applicant a right or authority to undertake specified activities, or enjoy a particular privilege, or status, only if the DFSA decides to grant the relevant licence, registration, approval, or privilege sought. Although a Person does not have any vested rights relating to the subject matter of the application or notification, that Person has:

Procedural fairness principles

Acting without bias or conflict of interest

Right to present his case

Relevant considerations

RPP 7-6-1

Decision Maker Decisions are generally made by a single DFSA officer, or by a number of DFSA officers acting as a committee, exercising delegated powers of the DFSA Chief Executive.

RPP 7-6-2

As such decisions can have a significant adverse impact on an affected person, the mandatory procedures set out in Schedule 3 of the Regulatory Law apply.

RPP 7-6-3

An initial assessment has to be made by the DFSA as to whether a single DFSA officer or a committee need to be involved. In making this assessment, the DFSA will take into account the nature, scale and complexity of the subject matter to which the decision relates, and the nature and scale of impact the decision could have upon the affected person. For example, a committee, rather than an individual, would be called upon to make a decision in relation to relatively weightier matters.

RPP 7-6-4

The Decision Maker (covering both an individual and a committee) will have had no previous direct involvement in establishing the evidence upon which the decision is based. Examples of Decision Maker Decisions include where the DFSA, on its own initiative, proposes to:

RPP 7-6-5

Decision Maker Decisions are often, but not always, made by the DFSA at the conclusion of an investigation.