Entire Section

  • Regulatory Policy and Process Sourcebook (RPP) August 2014 Edition

    Chapters 5 and 7 of the Regulatory Policy and Process Sourcebook (RPP) August 2014 Edition have been replaced by Chapters 5 and 7 of the Regulatory Policy and Process Sourcebook (RPP) November 2014 Edition.

    • RPP 5 RPP 5 Enforcement

      • RPP 5-1 RPP 5-1 The DFSA's Approach to Enforcement

        • Introduction

          • RPP 5-1-1

            This chapter sets out the DFSA's approach to enforcement and how it commences and conducts investigations, and exercises its powers to address any misconduct or contravention of the Law, Rules or other legislation administered by the DFSA. A complete guide on the DFSA's approach to imposing a penalty can be found in chapter 6 of this sourcebook.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-1-2

            A reference to:

            (a) an Article in this chapter is a reference to an Article in the Regulatory Law, unless otherwise stated; and
            (b) the Law in this chapter is a reference to any legislation administered by the DFSA.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Enforcement Philosophy

          • RPP 5-1-3

            The DFSA's enforcement philosophy is guided by the following principles, which govern the DFSA's approach to fulfilling its objectives as set out in Article 8:

            (a) the DFSA adopts a risk based approach to regulation. This means that the DFSA will generally focus its efforts on those activities that it perceives as posing the greatest risk to the fulfilment of its objectives;
            (b) the DFSA will act swiftly and decisively to stop conduct which threatens the integrity of the DIFC or the stability of the financial services industry in the DIFC, minimise its effects, and prevent such conduct re-occurring;
            (c) the DFSA works closely with home state regulators of international firms to ensure that there is a co-ordinated approach to regulation;
            (d) the DFSA will act fairly, openly, accountably and proportionally in the exercise of its enforcement powers; and
            (e) the DFSA will not publish details of the commencement or conduct of investigations, unless it is in the furtherance of the DFSA's objectives or the public interest to do so. The DFSA will generally publish details of the outcome of an enforcement action in keeping with its fair and transparent approach and to maintain the integrity of the DIFC by deterring contraventions of Laws or Rules or other misconduct.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-2 RPP 5-2 Enforcement Framework

        • Introduction

          • RPP 5-2-1

            The DFSA will take an enforcement action in line with its objectives and enforcement philosophy and may conduct investigations where there is a suspected contravention of a Law or Rule.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • General Contravention Provisions

          • RPP 5-2-2

            A Person contravenes the Law or the Rules when that Person:

            (a) does an act or thing that the Person is prohibited from doing by or under the Law or Rules;
            (b) does not do an act or thing that the Person is required or directed to do by or under the Law or Rules; or
            (c) otherwise contravenes a provision of the Law or Rules.14

            14 Article 85.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Involvement in Contravention

          • RPP 5-2-3

            If a Person is knowingly concerned in a contravention by another Person of the Law or Rules then, under Article 86, both Persons may be held liable for committing a contravention.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-2-4

            A Person is "knowingly concerned" in a contravention15 if the Person:

            (a) has aided, abetted, counselled or procured the contravention;
            (b) has induced, whether by threats or promises or otherwise, the contravention;
            (c) has in any way, by act or omission, directly or indirectly, been knowingly involved in or been party to, the contravention; or
            (d) has conspired with another or others to effect the contravention.

            15Article 86(7).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Enforcement Process

          • RPP 5-2-5

            When taking enforcement action, the DFSA will generally adopt the enforcement process described in this chapter. The DFSA's enforcement process is comprised of the following elements:

            (a) Assessment of complaints and referrals (section 5-3);
            (b) Commencement of an investigation (section 5-4);
            (c) Information gathering (section 5-5);
            (d) Remedies (section 5-6); and
            (e) Conclusion of the Investigation (section 5-19).

            See Appendix 1 for a diagram of the enforcement process.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-3 RPP 5-3 Assessment of Complaints and Referrals

        • RPP 5-3-1

          The assessment of complaints and referrals concerning potential misconduct or suspected contravention of the Law or Rules is a key function of the DFSA's regulatory remit and enforcement framework. Every complaint and referral, regardless of source, is assessed to determine whether an investigation or other action ought to take place.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • Sources of Complaints and Referrals

          • RPP 5-3-2

            The DFSA may become aware of potential misconduct or suspected contraventions of Laws or Rules from a variety of sources including:

            (a) members of the public;
            (b) its supervisory activities; and
            (c) other external regulatory authorities or law enforcement agencies.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

        • Complaints

          • RPP 5-3-3

            The DFSA receives and assesses two types of complaints:

            (a) regulatory complaints; and
            (b) complaints against the DFSA and its employees.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-3-4

            A Person wishing to lodge a complaint with the DFSA should do so in writing. A complaint can be lodged:

            (a) electronically via the complaints portal on the DFSA website (see http://www.dfsa.ae);
            (b) by facsimile to 04 362 0801;
            (c) by sending the complaint to PO Box 75850 Dubai, UAE; or
            (d) delivering the complaint to the DFSA at Level 13, The Gate Building, DIFC.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-3-5

            When a complaint is received, the DFSA will send an acknowledgement letter to the complainant which will include the contact details of the DFSA complaints management function.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Regulatory Complaints

          • RPP 5-3-6

            Complaints received by the DFSA from members of the public which relate to:

            (a) any conduct or dissatisfaction with any Person regulated by the DFSA;
            (b) a contravention of a Law or Rule; or
            (c) any conduct that causes, or may cause, damage to the reputation of the DIFC or the financial services industry in the DIFC;

            are classified as regulatory complaints and are assessed through the DFSA's complaints management function.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-3-7

            If, during the assessment of a regulatory complaint, the DFSA identifies a potential contravention of a Law or Rule, it will refer the complaint to the relevant DFSA division for further consideration. Thereafter, the relevant division assumes responsibility for the complaint.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-3-8

            All complaints lodged with the DFSA are held in confidence in accordance with the Regulatory Law. However, in order to assess a complaint properly, the DFSA may need to speak to third parties including any Person who is the subject of the complaint.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Referrals

          • RPP 5-3-9

            There are two types of referrals, internal and external. Internal referrals originate from the DFSA's supervisory activities conducted by the Supervision or Markets Division. The DFSA's supervisory framework is designed to detect and mitigate risks to the DIFC and the financial services industry in the DIFC. An internal referral occurs when a DFSA supervisory division refers a matter to the Enforcement Division, where the supervisory division has identified possible contraventions of Laws and Rules.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-3-10

            When Enforcement receives an internal referral, the referring division may continue to be responsible for the on-going supervision of the Person who is the subject of the referral.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-3-11

            The DFSA may also receive allegations of misconduct through an external referral from other regulatory authorities and law enforcement agencies. Such allegations are generally received pursuant to the IOSCO or IAIS Multilateral Memorandum of Understanding (MMoU), or bilateral arrangements for the exchange of information between the DFSA and other regulatory and enforcement agencies.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Complaints Against the DFSA and its Employees

          • RPP 5-3-12

            Complaints received by the DFSA about the conduct and activities of the DFSA and its employees are administered and assessed separately by the DFSA's Office of General Counsel.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-3-13

            Information on how the DFSA's Office of General Counsel assesses complaints against the DFSA and its employees can be found on the DFSA's website (see http://www.dfsa.ae).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

      • RPP 5-4 RPP 5-4 Commencement of Investigations

        • Introduction

          • RPP 5-4-1

            Upon receipt of an internal or external referral, the allegation will be assessed to determine if there is a suspicion of a contravention of the Law or Rules. If a suspicion arises, then the DFSA may commence an investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-4-2

            In determining whether to commence an investigation, the DFSA will consider a number of factors including, but not limited to:

            (a) the nature, seriousness and impact of the suspected contravention and whether the suspected contravention is on-going;
            (b) whether the suspected contravention affects, or has the potential to affect, the DFSA objectives;
            (c) whether those involved in the suspected contravention are likely to co-operate;
            (d) whether it is likely that the suspected contravention may be proven;
            (e) the disciplinary record and compliance history of the Person or Persons involved in the suspected contravention;
            (f) whether, if proven, a suitable remedy is available;
            (g) the extent to which another law enforcement agency or Financial Services Regulator can adequately address the matter and, if so, that body's attitude toward the matter;
            (h) the nature of any request for assistance made by another regulator or body under Article 39; and
            (i) whether any party who may have suffered some detriment as a result of the suspected contravention is able to take his own remedial action.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-4-3 [Deleted]

            Deleted (Made 21st August 2014). August 2014 Edition

        • Investigation Determination

          • RPP 5-4-3

            Article 78 empowers the DFSA to conduct such investigations as it considers appropriate and expedient:

            (a) where it has reason to suspect that a contravention of the Law or the Rules is being or may have been committed; or
            (b) further to a request for assistance made under Article 39.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-4-4

            Whether a matter is appropriate and expedient is determined by reference to factors such as those set out in paragraph 5-4-2.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-4-5

            Whether the DFSA has "reason to suspect" a contravention of the Law or Rules is a question which the DFSA will determine on the facts and circumstances, available at the time, of each particular matter.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-4-6

            The DFSA is not bound to disclose, to any party, that an investigation is on-going or the basis upon which an investigation is commenced. The DFSA may notify a Person who is the subject of an investigation that an investigation has commenced, and the general nature of the investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-4-7

            However, the DFSA will not make such a notification if it is likely to compromise or prejudice the investigation. The DFSA will not advise a Person of the conclusion of an investigation unless the Person has earlier been notified of its commencement.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-4-8

            The decision to commence an investigation is not a decision that can be referred to the Financial Markets Tribunal for review.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-5 RPP 5-5 Information Gathering

        • Introduction

          • RPP 5-5-1

            Once an investigation is commenced, the DFSA may exercise its powers to gather information to advance its objectives.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-2

            The DFSA's information-gathering powers may only be exercised by delegates of the Chief Executive. The delegation need not be limited to DFSA employees. The Chief Executive may delegate DFSA powers to non-DFSA staff who are able to assist with a DFSA investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-3

            Similarly, where the DFSA is exercising its powers on behalf of another regulator, it may also delegate powers to a representative of that regulator16.


            16 Article 40.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Article 80 Powers

          • RPP 5-5-4

            The Article 80(1) power to obtain information is a key component of the DFSA's investigative powers. Without the compulsory powers in Article 80(1), the DFSA would not be able to conduct effective and thorough investigations into potential misconduct or suspected contraventions of the Law or Rules, and consequently would not be able to meet its objectives.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-5

            During an investigation, the DFSA may obtain relevant information and documents on a compulsory basis, principally through the exercise of its powers under Article 80(1), and on a voluntary basis.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-6

            The powers under Article 80(1) are different from the non-investigation powers under Article 73(1). The key distinctions are that the Article 80 powers may be used:

            (a) only for the purposes of an investigation; and
            (b) in circumstances where the DFSA considers that a Person is or may be able to give information or produce a document which is or may be relevant to an investigation.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-7

            By comparison, the Article 73(1) power permits the DFSA to request information and documents from an Authorised Person, DNFBP, Domestic Fund, Registered Auditor and any director, officer, employees or agent of such person, which the DFSA considers is necessary or desirable to meet the objectives of the DFSA.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended by Notice of Updates (Made 14th July 2013). July 2013 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-8

            When it uses its powers under Article 80(1) (b), (c), (d) or (e), the DFSA will provide a written notice to the Person on whom the requirement is being imposed.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Inspection

          • RPP 5-5-9

            Article 80(1)(a) empowers the DFSA to enter business premises of a Person during the course of an investigation for the purpose of inspecting and copying information or documents. This power will be exercised when the DFSA considers that such Person is or may be able to provide information or documents that are or may be relevant to an investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-10

            The DFSA will generally not provide prior notice of an inspection in circumstances where the provision of prior notice may prejudice the investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-11

            When exercising its power to enter business premises under Article 80(1)(a), the DFSA may17:

            (a) require any appropriate Person to:
            (i) make available any relevant information stored at the business premises for inspection or copying; or
            (ii) convert any relevant information into a physical form capable of being copied; and
            (b) use the facilities of the occupier of the business premises, free of charge, to make copies.

            17 Article 80(2).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Production of Information

          • RPP 5-5-12

            Article 80(1)(b) empowers the DFSA to require a Person to give, or procure the giving of, information. The DFSA considers that the term "information" should be interpreted broadly, in accordance with its ordinary meaning.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-13

            Information may include, for example, the following:

            (a) knowledge communicated or received concerning a particular matter, fact or circumstance;
            (b) knowledge gained through work, commerce, study, communication, research or instruction;
            (c) data obtained as output from a computer by means of processing input data with a program or any data at any stage of processing including input, output, storage or transmission data;
            (d) an explanation or statement about a matter;
            (e) the identification of a Person, matter or thing; and
            (f) the provision of a response to a question.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-14

            The DFSA will allow a reasonable period for compliance with the requirement to give information. The reasonableness of the requirement will depend upon the circumstances of each case. The DFSA may, in some circumstances, require the giving of information straightaway where the giving of prior notice may prejudice the investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Production of Documents

          • RPP 5-5-15

            Article 80(1)(c) empowers the DFSA to require a Person to produce, or procure the production of, specified documents. The DFSA considers that the term "document" should be interpreted broadly, in accordance with its ordinary meaning. Specified documents may include, for example, any record of information, including:

            (a) anything on which there is writing;
            (b) anything on which there are marks, figures, symbols or perforations having a meaning for Persons qualified to interpret them;
            (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
            (d) a map, plan, drawing or photograph.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-16

            This power can only be used when an investigation has commenced and the DFSA considers that the Person to whom the notice is addressed is, or may be, able to produce documents which may be relevant to the investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-17

            Article 80(1)(c) empowers the DFSA to require production of original documents or copies. Whether original or copy documents are required by the DFSA will be determined taking into account the facts and circumstances of the investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-18

            When exercising its Article 80(1)(c) power, the DFSA may retain possession of any original document for so long as is necessary for the investigation to which the notice relates. When a Person is unable to produce documents in compliance with a requirement made by the DFSA, the DFSA may require the Person to state, to the best of that Person's knowledge or belief, where the documents may be found and who last had possession, custody or control of those documents.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-19

            The DFSA will allow a reasonable period of time for compliance with the requirement to produce documents. The reasonableness of the requirement will depend upon the circumstances of each case. The DFSA may, in some circumstances, require the production of documents straightaway, where the giving of prior notice may prejudice the investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Compulsory Interview

          • RPP 5-5-20

            Article 80(1)(d) empowers the DFSA to require a Person (the interviewee) to attend before an officer, employee or agent of the DFSA (the interviewer) for a compulsory interview to provide oral evidence relevant to an investigation it is conducting.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-21

            During the course of an investigation, not all interviews will be conducted under compulsion. The DFSA may, where appropriate, conduct voluntary interviews. The decision as to whether a compulsory or voluntary interview will be conducted will depend upon the circumstances of the particular case.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-22

            A Person attending a compulsory interview must first be served with a written notice requiring his attendance. An interviewee is not entitled to refuse or fail to answer a question on the basis that his answers may incriminate him or make him liable for a penalty.18


            18 Article 82.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-23

            A compulsory interview will be conducted in private and the interviewer may give directions19 to the interviewee regarding:

            (a) who may be present during the interview;
            (b) swearing an oath, or giving an affirmation, that the answers provided will be true;
            (c) what, if any, information may be disclosed by the interviewee or any other Person present at the interview to any third party;
            (d) the conduct of any Person and the manner in which they will participate during the interview; and
            (e) answering any question which is relevant to the investigation.

            19 Article 80(3).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-24

            An interviewee is entitled to legal representation during the course of a compulsory or voluntary interview. At the conclusion of the interview, the lawyer will be permitted to address any issues with the interviewer or interviewee relevant to the investigation. However, the lawyer is not permitted to answer questions on behalf of the interviewee or obstruct the investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-25

            All compulsory interviews will be recorded. The DFSA will, upon a written request from the interviewee at the conclusion of the interview, provide the interviewee or his lawyer with a copy of the recording or a transcript of the interview. The provision of a recording or transcript may be subject to any reasonable conditions imposed by the DFSA.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Assistance

          • RPP 5-5-26

            Article 80(1)(e) empowers the DFSA to require a Person to give it any assistance in relation to an investigation which the Person is able to give.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-27

            The DFSA considers that providing assistance may include requiring a Person to do a physical act or provide information to advance an investigation. For example, this may include the situation where the DFSA requires a Person to provide assistance by commenting on the accuracy of a document or compiling information that had been stored in a different manner.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-28

            The power under Article 80(1)(e) can be used independently, or in conjunction with, the exercise of other Article 80(1) powers. For example, the DFSA can exercise its powers under Article 80(1)(d), to require a Person to attend a compulsory interview and under Article 80(1)(e), to require the interviewee to provide reasonable assistance during the interview. For example, the interviewee may be required, during the interview, to draw a diagram, or locate and produce a document referred to in an answer to a question.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Confidentiality

          • RPP 5-5-30

            The DFSA may also impose obligations of confidentiality in respect of information and documents provided during the exercise of its powers under Article 80(1).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

          • RPP 5-5-31

            The DFSA can make directions20 to protect the confidentiality of information and documents which are part of a compulsory interview.


            20Article 80 (3)(b).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-32

            The DFSA can direct the recipient of an Article 80(1) (b), (c), (d) or (e) notice not to disclose the receipt of the notice, or any information relating to compliance with it, to any other Person, other than his legal representative, if it considers that such disclosure may hinder an investigation21.


            21Article 80A(6).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-33

            Confidentiality directions are made to ensure that an investigation is not prejudiced by the disclosure of the nature of the information sought or the questions asked during an investigation. In each case, the DFSA needs to consider whether or not such directions are appropriate in the circumstances of that matter.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

        • Protections

          • RPP 5-5-34

            Parties who are required to comply with a requirement made by the DFSA during the course of an investigation, and Persons who are the subject of an investigation, benefit from certain protections in the Regulatory Law, including:

            (a) Article 38, which provides that confidential information provided to the DFSA must not be disclosed except in certain limited circumstances;
            (b) Article 80A(2), which provides that where a Person takes part in a compulsory interview, any statements made during the interview cannot be disclosed by the DFSA to a law enforcement agency for the purpose of criminal proceedings unless the Person consents to the disclosure or the DFSA is required by law or court order to disclose the statement; and
            (c) Article 81, which ensures that a Person who is required to comply with a requirement made during the course of an investigation cannot be subject to any liability or liable in any proceeding because of that Person's compliance with the requirement.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Claims of Privilege and Other Protections

          • RPP 5-5-35

            A claim by a Person that information is a Privileged Communication is not of itself an excuse for failing to comply with a requirement made by the DFSA during the course of an investigation22.


            22Article 82.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-36

            A lawyer may refuse to comply with a requirement to provide information where to comply would require the lawyer to disclose a Privileged Communication made by, to, or on behalf of, the lawyer in his capacity as a lawyer in relation to a client.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-37

            Should a lawyer refuse to disclose a Privileged Communication, the lawyer must disclose sufficient information to identify the Person entitled to claim the privilege and the document which contains the privileged information. In such a case, the DFSA considers it appropriate for a lawyer to secure those documents, pending the resolution of any claim for privilege.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

        • Enforcement of the DFSA's Investigative Powers

          • RPP 5-5-38

            The DFSA will enforce compliance with its requirements, under Articles 73, 74 or 80, whenever there is less than full compliance by seeking orders in the DIFC Court23.


            23Article 84(1).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-39

            Articles 84(1) and (2) empower the DFSA to apply to the Court for an injunction or the issue of a search warrant in order to enforce compliance with its requirements under Articles 73, 74 or 80. An application to the Court for a search warrant will be made in circumstances where:

            (a) information or documents were required to be given or produced by the exercise of a compulsory power;
            (b) the documents or information required to be produced have not been given or produced; and
            (c) the DFSA has reasonable grounds to suspect that within the next three business days, the information or those documents are, or may be, on particular premises.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-40

            Should the Court exercise its discretion to issue a search warrant, it may be addressed to a named Dubai Police Officer together with any other individual, including a DFSA officer or third party, named in the warrant.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-41

            The DFSA may exercise its right to apply for a search warrant, rather than seeking compliance with its requirement through some other process (such as an injunction), only where it is satisfied that:

            (a) the preconditions in Article 84(2) for the issue of a warrant are met;
            (b) the DFSA considers it necessary or desirable to seek the assistance of the Dubai Police;
            (c) there does not appear to be a legitimate basis for non-compliance; and
            (d) in the absence of the execution of a search warrant, the information or documents sought may be removed or destroyed or otherwise not made available.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-42

            Any material seized by officers of the DFSA pursuant to a search warrant issued under Article 84 may be dealt with by the DFSA as if the material had been produced to it under a notice to produce documents.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Obstruction of the DFSA

          • RPP 5-5-43

            A Person must not, without reasonable excuse, engage in conduct that is intended to obstruct the DFSA in the exercise of its investigative powers by any means including, but not limited to, the following:

            (a) the destruction of documents;
            (b) the failure to give or produce information or documents specified by the DFSA;
            (c) the failure to attend before the DFSA at a specified time and place to answer questions;
            (d) the giving of information that is false or misleading; or
            (e) the failure to give any assistance in relation to an investigation which the Person is able to give24.

            24 Article 83.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-44

            Any breach of Article 83 will be regarded seriously by the DFSA and appropriate action will be taken.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

        • Return of Information and Documents

          • RPP 5-5-45

            Where the DFSA25 has obtained originals of information or documents during the course of an investigation, the DFSA will usually return such information or documents to the Person, from whom the information and documents were received, as soon as practicable after the conclusion of the investigation or related proceedings.


            25Article 80 (10).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-5-46

            Where information or documents have been produced to the DFSA in the course of an investigation to assist another regulator or agency, the DFSA may26 release the information or documents to that other regulator or agency. The information and documents will usually be returned to the Person from whom the information and documents were received, as soon as practicable after receiving them back from the other regulator or agency.


            26Article 38.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-6 RPP 5-6 Remedies

        • RPP 5-6-1

          At the conclusion of an investigation, the DFSA considers the findings of the investigation and may:

          (a) appoint a Decision Maker;
          (b) accept an Enforceable Undertaking27;
          (c) accept a settlement;
          (d) commence Court proceedings28;
          (e) exercise a power on behalf of another regulator29; and
          (f) delegate a power to another regulator30.

          27Article 89.

          28Articles 84, 92, 93, 94 and 95.

          29Article 39.

          30Article 40.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-6-2

          A Decision Maker will be a single DFSA officer, or a number of DFSA officers acting as a committee, delegated authority by the Chief Executive to exercise a power on behalf of the DFSA (see section 7-4 in chapter 7).

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-6-3

          Whilst not an exhaustive list, the DFSA may refer a matter to a Decision Maker for the:

          (a) imposition of a fine31;
          (b) imposition of a censure19;
          (c) imposition of conditions or restrictions on a Licence or in relation to al License endorsement32;
          (d) withdrawal of an authorisation under, or endorsement on, a Licence33;
          (e) withdrawal of a Licence34;
          (f) imposition of conditions or restrictions on an Authorised Individual or Key Individual35;
          (g) restriction or suspension of an Authorised Individual or Key Individual, or the withdrawal of his or her authorisation36;
          (h) withdrawal of the registration of a DNFBP;
          (i) revocation of recognition;
          (j) appointment of a manager37; or
          (k) withdrawal or suspension of the registration of a Registered Auditor or Audit Principal38;

          31Article 90.

          32Article 49.

          33Article 50.

          34Article 51.

          35Article 56.

          36Article 58.

          37Article 88.

          38Article 98A.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended by Notice of Updates (Made 14th July 2013). July 2013 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-6-4

          There are a range of remedies which the DFSA may pursue to achieve its objectives and the DFSA may, in any matter, pursue more than one remedy. The types of remedies, along with an indication of the DFSA's approach to the use of these remedies, are set out in sections 5-7 to 5-18 of this chapter and in chapter 4.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-6-5

          When the DFSA uses a power specified in sections 5-7 to 5-9 in this chapter, it will follow the decision making procedures set out in Schedule 3 of the Regulatory Law. See also chapter 7 of the RPP regarding the DFSA's Decision Making process.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-6-6

          When the DFSA uses a power specified in sections 5-10 to 5-18 in this chapter, it will follow the procedures set out in the relevant section.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-6-7

          The DFSA does not exercise criminal jurisdiction. Should criminal conduct be identified, then it will be referred to the appropriate law enforcement agency.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

      • RPP 5-7 RPP 5-7 Appointment of Managers

        • RPP 5-7-1

          Under Article 88, the DFSA may require an Authorised Person to appoint one or more individuals to act as a manager of the business of the Person on such terms as the DFSA may stipulate. Such individuals must be nominated or approved by the DFSA.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-7-2

          The types of circumstances in which the DFSA may exercise this power are set out in Article 88(3). For example, the DFSA may require an Authorised Person to appoint a manager where it has concerns about the solvency or the level of compliance with prudential requirements of an Authorised Person.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

        • RPP 5-7-3

          An Authorised Person may receive an opportunity to make representations prior to being required to appoint a manager in accordance with the procedures set out in Schedule 3 of the Regulatory Law. However, in circumstances of urgency, the DFSA may not give advance notice of the proposed requirement and may not provide the relevant Authorised Person with the opportunity to make representations prior to the imposition of the requirement.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-7-4

          When the DFSA does require an Authorised Person to appoint a manager, it will do so in writing, setting out:

          (a) that the Authorised Person is required to appoint a manager;
          (b) the time by which such manager must be appointed;
          (c) the reasons for the Authorised Person being required to appoint a manager;
          (d) the individual nominated by the DFSA to be the manager or the process by which approval may be given by the DFSA; and
          (e) the fact that the Authorised Person may have the decision reviewed by the Financial Markets Tribunal.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-7-5

          The DFSA recognises that the use of its Article 88 power to appoint a manager is likely to have a significant impact on an Authorised Person. Accordingly, the DFSA is likely to exercise such power only in exceptional circumstances.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition

        • RPP 5-7-6

          In considering whether a manager should be appointed, the DFSA will take into consideration all relevant circumstances including, but not limited to, the following matters:

          (a) the nature and extent of the business of the Authorised Person;
          (b) the nature of the DFSA's concerns in relation to the Authorised Person and whether they affect, or have the potential to affect, the DFSA's objectives;
          (c) whether the DFSA's concerns in relation to the Authorised Person may be addressed by the appointment of a manager;
          (d) where the DFSA considers it necessary to protect regulated entities and customers in the DIFC;
          (e) whether an appropriately qualified manager may be available and willing to undertake the appointment;
          (f) the likely duration of the appointment; and
          (g) the likely impact of costs associated with the appointment of a manager.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-8 RPP 5-8 Fines

        • RPP 5-8-1

          The DFSA may seek to impose a fine upon a Person whom it considers has contravened a provision of the Law or Rules under Article 90. The DFSA may impose a fine in any amount considered appropriate in respect of the contravention.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-8-2

          In determining whether to impose a fine and the quantum of the fine, the DFSA will take into consideration the circumstances of the conduct and will be guided by the penalty guidance set out in chapter 6 of the RPP.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-8-3

          The decision to impose a fine on a Person will be made by a Decision Maker.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-8-4

          Prior to making a decision, the Decision Maker will follow the procedures set out in Schedule 3 of the Regulatory Law (see also chapter 7 of the RPP).

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-8-5

          If a Person receives a notice imposing a fine and does not pay the full amount of the fine, the DFSA may recover so much of the fine as remains outstanding as a debt due, together with costs incurred by the DFSA in recovering such amount.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • [Deleted]

          • RPP 5-8-6 [Deleted]

            Deleted (Made 21st August 2014). August 2014 Edition

          • RPP 5-8-7 [Deleted]

            Deleted (Made 21st August 2014). August 2014 Edition

          • RPP 5-8-8 [Deleted]

            Deleted (Made 21st August 2014). August 2014 Edition

          • RPP 5-8-9 [Deleted]

            Deleted (Made 21st August 2014). August 2014 Edition

          • RPP 5-8-10 [Deleted]

            Deleted (Made 21st August 2014). August 2014 Edition

          • RPP 5-8-11 [Deleted]

            Deleted (Made 21st August 2014). August 2014 Edition

      • RPP 5-9 RPP 5-9 Censures

        • RPP 5-9-1

          The DFSA may seek to censure a Person whom it considers has contravened a provision of the Law and Rules it administers, under to Article 90.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-9-2

          The decision to censure a Person will generally be made by a Decision Maker. Prior to making a decision, the Decision Maker will follow the procedures set out in Schedule 3 of the Regulatory Law (see chapter 7 of the RPP).

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-9-3

          In determining whether to censure a Person, the DFSA will take into consideration the circumstances of the conduct and will be guided by the penalty guidance set out in section 6-3 of this sourcebook.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

      • Deleted

        • RPP 5-10-1 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-10-2 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-10-3 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-10-4 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-10-5 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-10-6 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

      • RPP 5-10 RPP 5-10 Injunctions and Orders

        • RPP 5-10-1

          The DFSA has a broad power to make an application to the Court for injunctive relief and other orders (Article 92). The DFSA may seek orders including, but not limited to:

          (a) an order restraining a Person that is engaging in conduct that would constitute a contravention of the Law or Rules;
          (b) an order requiring a Person to do an act or thing to remedy a contravention or to minimise loss or damage; or
          (c) any other order as the Court sees fit, including an order restraining the transfer of assets or the movement of individuals.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-10-2

          In deciding whether an application for an injunction or other order is appropriate in any given case, the DFSA will consider all relevant circumstances including, but not limited to, the following matters:

          (a) the nature, seriousness and impact of the contravention and whether the contravention is on-going;
          (b) whether the contravention affects, or has the potential to affect, the DFSA's objectives;
          (c) whether any party who may have suffered some detriment as a result of the contravention is able to take their own remedial action;
          (d) where the DFSA considers it necessary to protect regulated entities and customers in the DIFC;
          (e) whether there is a danger of assets being dissipated or removed from the jurisdiction of the Court;
          (f) whether there is a danger that the Person or Persons may leave the jurisdiction and, if so, the effect that their absence may have on the effectiveness of the Court's orders;
          (g) the costs the DFSA would incur in applying for and enforcing an injunction or other orders and the likely effectiveness of such an injunction or other order;
          (h) the disciplinary record and compliance history of the Person;
          (i) whether a suitable remedy is available;
          (j) the extent to which another law enforcement agency or Financial Services Regulator can adequately address the matter and, if so, that body's attitude to the matter; and
          (k) whether there is information to suggest that the Person who is the subject of the possible application is or has been involved in money laundering, terrorist financing or other form of financial crime or criminal conduct.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-11 RPP 5-11 Civil Proceedings

        • RPP 5-11-1

          Article 94 provides that where a Person has:

          (a) intentionally, recklessly or negligently committed a breach of duty, requirement, prohibition, obligation or responsibility imposed under the Law or Rules; or
          (b) committed fraud or other dishonest conduct in connection with the matter arising under the Law or Rules;

          the Person is liable to compensate any other Person for any loss or damage caused to that other Person as a result of such conduct.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-11-2

          Article 94(2) provides that the Court may, on application of the DFSA, or of a Person who has suffered the loss or damage, make orders for the recovery of damages or for compensation or for the recovery of property or other order as the Court sees fit, except where such liability is excluded under the Law and Rules administered by the DFSA.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-11-3

          Article 94 gives the DFSA, and any aggrieved Persons, broad powers to make application for recovery of damages and other orders where there has been an identified contravention of the Laws and Rules administered by the DFSA. An aggrieved Person may exercise rights provided under Article 94 independently of, or contemporaneously with, the DFSA.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-11-4

          The DFSA may decide not to commence proceedings in every case where there may have been a relevant contravention. This does not, however, prevent any aggrieved Person from commencing his own proceedings.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-11-5

          In determining whether to commence proceedings, the DFSA will take into account all relevant circumstances. It is not possible to provide an exhaustive list of the circumstances that may be taken into account, as they may depend on the facts of the particular matter. However, the following list indicates some of those matters that may be considered:

          (a) the nature, seriousness and impact of the suspected contravention and whether the alleged contravention is on-going;
          (b) whether the conduct and contravention affects, or has the potential to affect, the DFSA objectives;
          (c) whether any party who may have suffered some detriment as a result of the alleged contravention is able to take his own remedial action;
          (d) in circumstances where more than one Person has suffered loss or damage:
          (i) the number of those that have suffered loss or damage and the amount of loss or damage involved; and
          (ii) whether it is convenient or possible for a class of aggrieved Persons to run a proceeding;
          (e) the cost that the DFSA would incur in applying for or enforcing any order that it is successful in obtaining;
          (f) whether the conduct in question can be adequately addressed by the use of other regulatory powers;
          (g) whether there is information to suggest that the Person is or has been, involved in money laundering, terrorist financing or other form of financial crime or criminal conduct; and
          (h) whether the DFSA has a reasonable prospect of success in the relevant proceedings.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-12 RPP 5-12 The Compulsory Winding Up of a Regulated Entity

        • RPP 5-12-1

          The DFSA may apply to the Court for the winding up of a company which is, or has been, an Authorised Person, or operating in breach of the Financial Services Prohibition, where it considers it is just and equitable and in the interests of the DIFC39.


          39 Article 93.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-12-2

          In deciding whether such an application is just and equitable and in the interests of the DIFC, the DFSA will consider all relevant circumstances, including but not limited to, the following matters:

          (a) the need to protect the company's Clients, particularly in cases where an Authorised Firm holds or controls Client Assets,
          (b) whether the company has operated in accordance with the laws of the DIFC;
          (c) where the company has contravened the Law or Rules, the nature, seriousness and impact of the contravention and whether the contravention is on-going;
          (d) where the company has contravened the Law or Rules, whether any alleged contravention affects, or has the potential to affect, the DFSA objectives;
          (e) where the company has contravened the Law or Rules, whether there are any other steps a Person could take or other orders a Court could make to remedy any contravention;
          (f) whether the needs of those operating in the DIFC and the interests of the DIFC are best served by the company ceasing to operate;
          (g) in the case of an Authorised Firm, where the DFSA considers that its Licence should be withdrawn or where it has been withdrawn, the extent to which there is other business that the firm carries on without authorisation;
          (h) whether there is information to suggest that the company is or has been involved in money laundering, terrorist financing or other form of financial crime or other criminal conduct;
          (i) where there is a significant cross-border or international element to the business being carried on by the company, the impact on the business in other jurisdictions and whether another law enforcement agency or Financial Services Regulator can adequately address the matter and, if so, that body's attitude to the matter;
          (j) the extent to which the company has cooperated, and is likely to continue to cooperate, with the DFSA; and
          (k) the nature of the involvement of the officers of a company in the foregoing and whether this suggests a systemic failure within the company.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-13 RPP 5-13 Markets Law — Orders in the Interests of the DIFC

        • RPP 5-13-1

          Article 68 of the Markets Law 2012 provides that the Court, on application by the DFSA, may make one of a range of orders in relation to a Person, irrespective of whether a contravention has occurred, if it is satisfied that it is in the interests of the DIFC for such an order to be made.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-13-2

          The DFSA may seek orders from the Court, including, but not limited to:

          (a) an order that trading in any Investments cease permanently or for such period as is specified in the order;
          (b) an order that a disclosure be made to the market;
          (c) an order that a person is prohibited from making offers of Securities in or from the DIFC; or
          (d) an order that a person is prohibited from being involved in Reporting Entities, Listed Funds or Securities within the DIFC.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-13-3

          Before the DFSA can make an application for an order (whether interim, ex parte or final), the DFSA must be satisfied that such an order would be in the interests of the DIFC and will take into account all relevant circumstances, including, but not limited to, the following:

          (a) the nature and extent of the conduct or any other matters in question;
          (b) the effect of the conduct or any other matters on the market and the DFSA's objectives;
          (c) whether the market is currently informed of all material information;
          (d) what steps the relevant Person has taken in respect of the conduct or any other matters being considered;
          (e) whether any other form of relief is available to the DFSA or appropriate in the circumstances;
          (f) whether the relevant conduct or any other matters could have a significant impact on the integrity of the DIFC market or the confidence in that market; and
          (g) the effect of the conduct or any other matters on the interests of participants in the DIFC.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-14 RPP 5-14 Intervention Power

        • RPP 5-14-1

          Article 95 empowers the DFSA to intervene as a party in any proceeding in the Court where it considers such intervention appropriate to meet the objectives of the DFSA. Where the DFSA intervenes, it shall be subject to any other law, and have all the rights, duties and liabilities of such a party.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-14-2

          This provision does not affect the ability of the DFSA to seek leave to appear in proceedings as amicus curiae (i.e. someone not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it), to make submissions on an issue of significance to the DIFC or to place material before the Court that may otherwise not be available.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-14-3

          The DFSA will generally only exercise this right of intervention where it forms the view that it will not be able to meet its objectives by simply appearing as amicus curiae and that, to fully serve the interests of the DIFC fully, it is necessary to join the proceeding as a party and stay involved in the matter throughout.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

      • [Deleted]

        • RPP 5-16-1 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-16-2 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-16-3 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-16-4 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

        • RPP 5-16-5 [Deleted]

          Deleted (Made 21st August 2014). August 2014 Edition

      • RPP 5-15 RPP 5-15 Settlement Guidance

        • RPP 5-15-1

          A settlement is a resolution, between the DFSA and a third party, to agree an outcome resulting from an investigation. A Person who is or may be the subject of any form of enforcement action arising out of, or during the course of, an investigation may enter into settlement discussions with the DFSA.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-15-2

          Settlement discussions are possible at any stage of the enforcement process, either before or after enforcement action has commenced. When considering whether or not to enter into negotiations for settlement, or a settlement agreement, the DFSA will consider its objectives.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-15-3

          The DFSA generally considers that the early settlement of an investigation advances its objectives in that it may result in, for example, consumers obtaining compensation sooner, the saving of DFSA and industry resources, and the promotion of good business and regulatory practices.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-15-4

          The DFSA's general view is that settlement discussions should take place as early as possible. However, the DFSA will only be able to settle when it is confident it has sufficient understanding of the nature and gravity of the suspected misconduct to make a reasonable assessment of the appropriate outcome.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-15-5

          The DFSA expects settlement discussions to take place on a "without prejudice" basis; namely, that no party to the discussions may subsequently rely upon any admissions or statements made during the course of the settlement discussion or on any document created recording those discussions.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-15-6

          The DFSA will only settle when the agreed terms result in what the DFSA considers to be an effective regulatory outcome.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-15-7

          The DFSA will set clear and reasonable timetables for settlement discussions to ensure they do not unreasonably delay settlement or a regulatory or enforcement outcome.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-15-8

          Settlement in particular circumstances should not be regarded as binding precedent for future settlement discussions.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • Factors the DFSA Will Consider When Contemplating Settlement

          • RPP 5-15-9

            In deciding whether a proposed settlement is acceptable, and in accordance with meeting its objectives, the DFSA will consider a number of factors, including but not limited to:

            (a) the nature, seriousness and impact of the conduct or suspected contravention that is the subject of the proposed settlement, and whether the suspected contravention is continuing;
            (b) whether the Person is prepared to acknowledge publicly the DFSA's concerns about the conduct or suspected contravention that is the subject of the proposed settlement, and the necessity for protective or corrective action;
            (c) whether the conduct or suspected contravention that is the subject of the proposed settlement was inadvertent;
            (d) whether the suspected contravention that is the subject of the proposed settlement was the result of the conduct of one or more individual officers or employees of the Person;
            (e) the seniority and level of experience of the individuals involved in the conduct and/or suspected contravention that is the subject of the proposed settlement;
            (f) whether the Person co-operated with the DFSA, including providing complete information about the conduct or suspected contravention that is the subject of the proposed settlement, and any remedial action taken by the Person;
            (g) whether the settlement will achieve an effective outcome for those (such as consumers or investors) who have been adversely affected by the conduct and/or suspected contravention that is the subject of the proposed settlement;
            (h) whether the Person is likely to comply with the terms of the settlement;
            (i) whether the Person's compliance with the Law and Rules generally will be improved;
            (j) the disciplinary record and compliance history of the Person;
            (k) the prospects for a swift resolution of the matter; and
            (l) whether the settlement promotes general deterrence in making regulated entities in the DIFC aware of the conduct or suspected contravention that is the subject of the proposed settlement, and the consequences arising from engaging in similar conduct or contraventions.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Form of Settlement

          • RPP 5-15-10

            Any settlement entered into by the DFSA will be documented in the form of a legally enforceable agreement executed by all parties.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Enforceable Undertakings

          • RPP 5-15-11

            An Enforceable Undertaking (EU) is a written promise, made under Article 89, to do or refrain from doing a specified act or acts. It is an alternative mechanism for regulating contraventions of the Law or Rules.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Acceptance of an Enforceable Undertaking

          • RPP 5-15-12

            An EU may be given by a Person at any time, either before, during or after an investigation or before the commencement of litigation or proceedings in the Court, and accepted by the DFSA. The DFSA does not have the power to require a Person to enter into an EU, nor can a Person compel the DFSA to accept an EU. This does not mean, however, that the DFSA cannot propose an EU to a Person, during the course of settlement negotiations, or provide a Person with a draft EU to provide guidance as to the terms of an EU that the DFSA would be willing to accept in the circumstances of the matter.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-15-13

            The DFSA may accept an EU that it considers necessary or desirable in pursuit of its objectives. Article 89 does not prescribe a particular structure or format to an EU. However, in the context of an enforcement matter, the DFSA will generally only accept an EU that:

            (a) contains an admission or acknowledgement of any contraventions of the Law or Rules or the DFSA's concerns;
            (b) contains undertakings that address the DFSA's concerns; and
            (c) contains an agreement to make the EU public, and an agreement not to make public statements that conflict with the spirit of the EU.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-15-14

            A Person offering an EU to the DFSA may also undertake in the EU to pay the DFSA's costs, including any costs associated with compliance with the EU.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-15-15

            An EU will not take effect until it is formally accepted by the Chief Executive of the DFSA or his delegate.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Variation or Withdrawal

          • RPP 5-15-16

            Once accepted by the DFSA, an EU can only be withdrawn or varied with the consent of the DFSA in writing. The DFSA will only consider a request to vary an undertaking if:

            (a) the variation will not alter the spirit of the original undertaking;
            (b) compliance with any one or more terms of the undertaking is subsequently found to be impractical or impossible; or
            (c) there has been a material change in the circumstances which led to the undertaking being given.
            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Compliance with an EU or Settlement Agreement

          • RPP 5-15-17

            If the DFSA considers that a Person has not complied with a term of the EU or a settlement agreement, the DFSA may apply to the Court for appropriate orders. The DFSA may publish the fact of the application to the Court and any subsequent orders of the Court. The DFSA will also seek the costs of the application.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-16 RPP 5-16 Costs

        • RPP 5-16-1

          The DFSA will generally seek litigation costs orders from the Court where it has commenced a proceeding and been successful in achieving all or part of the outcome sought.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-16-2

          The DFSA may also make an application claiming the costs of an investigation where the DFSA, the FMT or the Court, as a result of that investigation, has found a contravention of the Law or Rules40.


          40 Article 79(2).

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • Undertakings as to Damages

          • RPP 5-16-3

            Under Article 47(1) of the Court Law, the Court shall not require the DFSA to give an undertaking as to damages as a condition for granting an injunction or any order made under DIFC Law. In making any order the Court shall not take into account, in determining the merits of an application for the injunction, that the DFSA has not given an undertaking as to damages.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Enforcement of Orders

          • RPP 5-16-4

            The DFSA will do all things necessary and, where appropriate, commence relevant actions to ensure full compliance with any orders of the FMT or of the Court which arise out of an investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-16-5

            In particular, Article 90(10) provides that the DFSA may apply to the Court for recovery, as a debt due, of so much of a fine as is not paid by a party together with costs. Further, in appropriate circumstances, the DFSA may apply to the Court for the winding up of a body corporate.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

      • RPP 5-17 RPP 5-17 Publicity

        • RPP 5-17-1

          This section describes how the DFSA may comment publicly on investigations, enforcement actions and other formal regulatory decisions41, subject to any independent determinations by the Financial Markets Tribunal (FMT) and courts, unless otherwise ordered by any of these bodies, including:

          (a) general policy on publicity of enforcement actions;
          (b) commencement and conclusion of investigations;
          (c) commencement of proceedings;
          (d) disclosure of Decisions;
          (e) disclosure of Settlement Agreements and Enforceable Undertakings;
          (f) content of Publication; and
          (g) mode of Publication.

          41In the remainder of the section we refer to 'enforcement actions', for brevity. Formal regulatory decisions are those that are made by the DFSA and are reviewable by the Financial Markets Tribunal.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • General Policy on Publicity of Enforcement Actions

          • RPP 5-17-2

            The DFSA expects to publish, in such form and manner as it regards appropriate, information and statements relating to enforcement actions, including censures and any other matters which the DFSA considers relevant to the conduct of affairs in the DIFC. The publication of enforcement outcomes is consistent with the DFSA's commitment to open and transparent processes and with the pursuit of its objectives.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-17-3

            In all cases the DFSA retains the discretion to take a different course of action, where it furthers the DFSA's achievement of its objectives or is otherwise in the public interest to do so. For example, the DFSA may decide to publish at an earlier stage than suggested by the general policy, where circumstances justify this.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Commencement and Conclusion of Investigations

          • RPP 5-17-4

            The DFSA generally will not publish information about the commencement, conduct or conclusion of the investigative phase of its enforcement actions.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-17-5

            Where the DFSA has published the fact that it is conducting an investigation and no enforcement action results, the DFSA would issue a press release confirming the conclusion of the investigation and that no action is to be taken.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-17-6

            The DFSA expects not to publish information about referrals to a Decision Maker.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Commencement of proceedings

          • Decision Maker

            • RPP 5-17-7

              Reasons for this information not normally being published include:

              (a) oral and written submissions in regard to a matter before a Decision Maker are confidential and made in private;
              (b) hearings are held in private; and
              (c) the release of information by the Decision Maker prior to a full and complete consideration of all submissions and facts may be contrary to the DFSA's objectives or not in the public interest.
              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

          • FMT or a court

            • RPP 5-17-8

              The DFSA expects to publish information about the commencement or hearing of proceedings before the FMT or courts, unless otherwise ordered by any of the bodies the proceedings are heard by.

              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

        • Disclosure of Decisions

          • Decision Maker Decisions

            • RPP 5-17-9

              The DFSA expects to make public any decision made by a Decision Maker, and to do so in a timely manner after any relevant period to institute a referral of the decision to the FMT has expired or appeal process has come to an end.

              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

            • RPP 5-17-10

              In circumstances where the DFSA considers it necessary to publish at an earlier stage, the publication will refer to the right of review which the affected person has and the time limit for that review. The DFSA would consider it necessary to publish, at this early stage, where to do so enables it to achieve its objectives or it is in the public interest to do so. Before making a decision public the DFSA will endeavour to give affected persons notice of its intent to publish within an appropriate timescale.

              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

            • RPP 5-17-11

              If the affected person exercises its right of referral, then the DFSA will publish that fact unless otherwise ordered. When the referral has been heard and determined, the DFSA expects to publish the result (subject only to the FMT — see 5-17-12).

              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

          • FMT or a court decision

            • RPP 5-17-12

              The Regulatory Law requires all FMT hearings to be heard in public unless the FMT orders or its rules of procedure provide otherwise. The FMT may exercise its discretion not to make public any decisions it may make. Where it does determine to publish a decision or interim decision, the FMT will publish these on the DFSA website. Following hearings and decisions by the FMT, the DFSA expects to make timely public disclosure of the FMT's decisions, including any interim decisions, unless otherwise ordered.

              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

            • RPP 5-17-13

              Decisions made by the courts will be published by the DFSA in a timely manner, unless ordered otherwise.

              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

            • RPP 5-17-14

              This approach is adopted on the basis that any delay in disclosure may hinder and unfairly prejudice the DFSA in achieving some of its primary objectives, namely transparency, fairness, financial stability, fostering confidence, and consumer protection. For example, non-disclosure may potentially prejudice users and prospective users of financial services in the DIFC if they are acting unaware of facts known in the enforcement action.

              Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
              Amended (Made 21st August 2014). August 2014 Edition

        • Disclosure of Enforceable Undertakings or Other Settlements

          • RPP 5-17-15

            The DFSA expects to disclose publicly the outcome of any settlement of an enforcement action, including Enforceable Undertakings, to ensure all market participants are clearly informed as to the outcome. This will also be part of the negotiations that lead to the agreement. Settlement agreements which result in a Decision Notice will result in the publication of the relevant Decision Notice.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-17-16

            The DFSA may be otherwise ordered, or required by law, not to publish information regarding a settlement. For example, disclosure may not occur if a third party has commenced proceedings in the courts in respect of the same conduct and the publication of the undertaking or settlement may prejudice that party's case in the court. However, simply because a third party has commenced proceedings does not preclude the DFSA from publishing its settlements, including Enforceable Undertakings.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Disclosure of Information about Certain Temporary Suspensions

          • RPP 5-17-17

            The DFSA would not ordinarily expect to publish information about temporary suspensions imposed under Article 58(5) or Article 98A(5),42 as the investigation is ongoing. But the DFSA retains discretion to publicise such a suspension in an individual case if, in all the circumstances, it is considered appropriate.


            42 That is, suspensions of Authorised Individuals, Key Individuals, Registered Auditors or Audit Principals pending completion of an investigation.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Content of Publication

          • RPP 5-17-18

            The DFSA expects to make appropriate disclosures when publishing Enforceable Undertakings, settlement agreements, DFSA decisions, proceedings before, and decisions of the FMT or a court. Appropriate disclosures should provide sufficient meaningful information to achieve the regulatory objectives of the DFSA.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

          • RPP 5-17-19

            The DFSA expects to take into consideration any privileged or sensitive information when considering the content of its publications. In doing so, it will also consider the possibility that any publication may also potentially affect the rights of a third party and, if so, will endeavour to give that third party an opportunity to make representations on the publication.

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

        • Mode of Publication

          • RPP 5-17-20

            Publication may take any one or more forms including, for example, a media release, a statement on the DFSA website, and any other suitable forums as determined by the DFSA.

            Inserted (Made 21st August 2014). August 2014 Edition

      • RPP 5-18 RPP 5-18 Maintenance of Registers

        • RPP 5-18-1

          The DFSA is also required to publish and maintain a register43 in respect of:

          (a) grants, withdrawals and suspensions of Licences, Licence endorsements and authorisations of Authorised Persons, Authorised Individuals, and Key Individuals;
          (b) all persons the subject of action taken under Article 58(1) and Article 59;
          (c) current and past registrations of DNFBPs; and
          (d) current and past registrations, withdrawals and suspensions of registrations of Registered Auditors and Audit Principals.

          43 Article 62.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended by Notice of Updates (Made 14th July 2013). July 2013 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-18-2

          The DFSA is not required to publish information on the Register about temporary suspensions imposed under Article 58(5) or Article 98A(5).32. See 5-17-17 for the DFSA's general policy regarding publicising such suspensions.

          Inserted (Made 21st August 2014). August 2014 Edition

      • RPP 5-19 RPP 5-19 Conclusion of an Investigation

        • RPP 5-19-1

          The DFSA will conclude an investigation when:

          (a) it determines to take no further action in response to the suspected contraventions of the Law and Rules subject of the investigation; and
          (b) all remedies and obligations resulting from an investigation are concluded and fulfilled.
          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • RPP 5-19-2

          The DFSA may determine to take no further action in respect of the suspected contraventions that are the subject of an investigation due to insufficiency of evidence or in circumstances where pursuing an enforcement action in respect of the suspected contraventions would not accord with the DFSA's objectives.

          Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
          Amended (Made 21st August 2014). August 2014 Edition

        • Costs of Investigation

          • RPP 5-19-3

            Where a Person is found by the FMT or Court to have contravened a provision of the Law or Rules, the FMT or Court may order44 that Person to reimburse the DFSA in respect of the whole or a specified part of the costs and expenses of the investigation, including the remuneration of an officer involved in the investigation.


            44 Article 79(2).

            Derived from Notice of Updates (Made 20th December 2012). December 2012 Edition
            Amended (Made 21st August 2014). August 2014 Edition

      • Appendix 1 — The Enforcement Process



        Inserted (Made 21st August 2014). August 2014 Edition

    • RPP 7 RPP 7 Decision Making

      • RPP 7-1 RPP 7-1 Introduction

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • RPP 7-1-2

          A reference to:

          (a) an Article in this chapter is a reference to an Article in the Regulatory Law 2004, unless otherwise stated; and
          (b) the Law in this chapter is a reference to any legislation administered by the DFSA.
          Inserted (Made 21st August 2014). August 2014 Edition

        • 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

          Inserted (Made 21st August 2014). August 2014 Edition

      • RPP 7-2 RPP 7-2 Who Can Exercise a DFSA Power?

        • RPP 7-2-1

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

          Inserted (Made 21st August 2014). August 2014 Edition

        • RPP 7-2-2

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

          (a) first, those decisions made by the DFSA in response to an application or notification made by a Person to the DFSA to obtain a right, status or other privilege, which the Person would not have unless the DFSA grants such a right, status or other privilege. These decisions mainly involve "entry control" or "gatekeeper" type decisions. An example of such a decision is when the DFSA considers an application for a Licence or extension to an existing Licence. Such decisions are referred to as "Executive Decisions" in this chapter (see section 7-3 for further details); and
          (b) second, those decisions that result from action initiated by the DFSA and that can have a significant adverse impact on the existing rights, interests and legitimate expectations of Persons. An example of such a decision is when the DFSA seeks to withdraw an Authorised Person's Licence. Such decisions are referred to as "Decision Maker Decisions" in this chapter (see section 7-4 for further details).
          Inserted (Made 21st August 2014). August 2014 Edition

      • RPP 7-3 RPP 7-3 DFSA's Approach to Decision Making

        • RPP 7-3-1

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

          (a) having in place adequate systems and controls to ensure that those making decisions, on behalf of the DFSA, are impartial and not affected by conflicts of interests that may affect their decisions;
          (b) giving a person in respect of whom the DFSA proposes to make a decision (the "affected person") advance notice about the DFSA's proposed action (with the exception of cases when the DFSA may take immediate action because any delay resulting from advance notice would be prejudicial to the interests of direct or indirect users of financial services in the DIFC or otherwise prejudicial to the interests of the DIFC);
          (c) giving the affected person clear reasons why the DFSA proposes to take the relevant action;
          (d) giving the affected person a suitable opportunity to make representations (in person and in writing) with regard to the DFSA's proposed action;
          (e) taking into account any representations made by the affected person before making a final decision, i.e. making any consequential changes to the proposed action given the representations made or other additional material available to the DFSA, as appropriate;
          (f) taking into account only those considerations which are relevant to the matter to be decided upon;
          (g) giving, without undue delay, the affected person a clear statement in writing of the DFSA's final decision, the reasons for that decision and the effective date;
          (h) informing the affected person what rights of review that person has in respect of the DFSA's decision, and within what period those rights of review must be exercised; and
          (i) having in place adequate mechanisms to enable the affected person to have the DFSA decision properly and impartially reviewed.
          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • RPP 7-3-4

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

          (a) the issuing of a stop order under Article 25 of the Markets Law 2010; and
          (b) suspension of an individual's Authorised Individual status under Article 58 of the Regulatory Law 2004 ('Regulatory Law').
          Inserted (Made 21st August 2014). August 2014 Edition

      • RPP 7-4 RPP 7-4 What are the DFSA's Decision Making Procedures?

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • RPP 7-4-3

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

          (a) advance notice of the DFSA's proposed decision (referred to as the Preliminary Notice), except in the cases referred to in 7-3-1(b);
          (b) a suitable opportunity for the affected person to make representations relating to the proposed decision;
          (c) the DFSA's reasons for the final decision made, taking into account any representations made (referred to as the Decision Notice); and
          (d) the affected person a right to have the DFSA decision reviewed by the Financial Markets Tribunal.
          Inserted (Made 21st August 2014). August 2014 Edition

        • 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:

          (a) obtain additional information from regulated firms;
          (b) issue risk mitigation plans stemming from any concerns identified; and
          (c) commence an investigation.
          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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:

          (a) decisions made by the DFSA at the request of a Person, e.g. where a Person requests the DFSA to cancel its Licence;
          (b) decisions made by the DFSA under a court order or a direction issued by the Financial Markets Tribunal; and
          (c) where bespoke due process requirements apply to a power. Examples are the DFSA's powers relating to Controllers of regulated firms and the power to approve the Business Rules of an Authorised Market Institution.
          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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:

          (a) the DFSA's decision and its reasons for making that decision;
          (b) the date on which the decision is to take effect; and
          (c) the person's right to seek a review of the decision by the Tribunal; and
          (d) by when the right referred to in (c) has to be exercised.
          Inserted (Made 21st August 2014). August 2014 Edition

        • 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).

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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).

          Inserted (Made 21st August 2014). August 2014 Edition

      • RPP 7-5 RPP 7-5 Executive Decisions

        • 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:

          (a) grant an application for a Licence or an extension to such a Licence of an Authorised Person;
          (b) grant an application for an Authorised Individual's status;
          (c) register a DNFBP or a Registered Auditor;
          (d) register a Public Fund;
          (e) approve an application for a change in control by an Authorised Person; or
          (f) approve a Prospectus filed with the DFSA.
          Inserted (Made 21st August 2014). August 2014 Edition

        • 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:

          (a) a right to be treated fairly and properly by the DFSA when the DFSA considers the relevant application or notification; and
          (b) if affected, a right to refer the DFSA's decision for review by the Financial Markets Tribunal.
          Inserted (Made 21st August 2014). August 2014 Edition

        • Procedural fairness principles

          • RPP 7-5-3 [Deleted]

            As a Person has a right to be treated fairly and properly during the course of processing the application or notification made by that Person, a DFSA officer making an Executive Decision is expected to:

            (a) act without bias or conflict of interest;
            (b) give the Person a fair right to present his case; and
            (c) take into account only those considerations which are relevant to the matter to be decided upon.
            Inserted (Made 21st August 2014). August 2014 Edition

        • Acting without bias or conflict of interest

          • RPP 7-5-4

            A DFSA officer called upon to make a decision is expected to act impartially in doing so. If the DFSA officer has a vested financial or personal interest in the matter, a conflict of interest may arise that prevents an impartial or unbiased decision being made.

            Inserted (Made 21st August 2014). August 2014 Edition

          • RPP 7-5-5

            A DFSA officer who does have a financial or other personal interest in the matter is required to disclose this interest to the DFSA and, if the interest is material, would not be the decision maker in relation to that matter.

            Inserted (Made 21st August 2014). August 2014 Edition

        • Right to present his case

          • RPP 7-5-6

            A Person has the right to present his case. This right arises at the point of submission of an application or notification, and continues during the process until a decision is made. Generally, the application or notification form, which is required to be submitted by the Person who is asking for the decision to be made, will contain all the relevant information. The DFSA officer may require further information if the information provided is not complete.

            Inserted (Made 21st August 2014). August 2014 Edition

          • RPP 7-5-7

            In some cases, the DFSA officer will obtain information relevant to the matter from external third party sources. As a matter of fair procedure, where information is obtained from an external source, particularly if that information has an adverse bearing (for example, information that does not support the grant of a Licence, authorisation or approval sought by the applicant), the DFSA officer should, before acting on such information (subject to any confidentiality obligations), give to the Person making the application or notification a right to comment upon the adverse information.

            Inserted (Made 21st August 2014). August 2014 Edition

        • Relevant considerations

          • RPP 7-5-8

            The DFSA officer is expected to take into account only those considerations which are relevant to the matter to be decided upon. Taking into account only those considerations which are relevant to the matter necessarily requires disregarding any irrelevant information. This also requires the DFSA officer to ensure that he has all the material information that is necessary to be able to make the relevant decision. For this purpose, the DFSA officer may ask for, or obtain on his own volition, including from any third party sources, further information.

            Inserted (Made 21st August 2014). August 2014 Edition

      • RPP 7-6 RPP 7-6 Decision Maker Decisions

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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.

          Inserted (Made 21st August 2014). August 2014 Edition

        • 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:

          (a) impose an administrative fine or censure;
          (b) withdraw a Licence of an Authorised Person; or
          (c) withdraw the status of an Authorised Individual.
          Inserted (Made 21st August 2014). August 2014 Edition

        • RPP 7-6-5

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

          Inserted (Made 21st August 2014). August 2014 Edition