Regulatory Appeals Committee
Rules of Procedure
Part 1 Part 1 Introduction
These are the Rules of Procedure of the Regulatory Appeals Committee.
Terms in these Rules have the same meaning as in the Regulatory Law unless expressly stated otherwise.(a) "Appeal Panel" means the panel of RAC members selected for the purpose of hearing and determining an appeal commenced before the RAC.(b) "Applicant" means a person who has filed or is proposing to file a Notice of Appeal with the RAC in accordance with the Law and RAC Rules.(c) "Business day" means a normal working day in the DIFC.(d) The "Chairman" means the Chairman of the RAC.(e) "Chief Executive" means the Chief Executive of the DFSA.(f) "Day" means calendar day unless expressly stated otherwise.(g) "DFSA Executive" includes the Chief Executive and his staff.(h) "File" means to deliver documents to the Secretary in accordance with Rule(i) The "Law" means the Regulatory Law, DIFC Law No. 1 of 2004, as amended.(j) "Panel Chair" means the RAC member selected by the Chairman to serve as chair of an Appeal Panel.(k) "Parties" include the Applicant and DFSA Executive and any other person to whom the Appeal Panel has given standing to appear as a party to the appeal.(l) "Proceedings" includes appeals and related applications brought before the RAC.(m) "RAC" means the Regulatory Appeals Committee established under Article 26 (1) of the Regulatory Law, DIFC Law No. 1 of 2004, as amended and includes in these Rules, the Chairman, the Appeal Panel and Panel Chair unless the context indicates otherwise.(n) "RAC Rules" mean the Rules of Procedure of the Regulatory Appeals Committee made under Article 27(3) of the Law.(o) The "Record" means the record of the decision under appeal.(p) The "Secretary" means the Secretary of RAC.
The RAC Rules describe the procedures for the conduct of proceedings brought before the RAC.
The RAC has the discretion to adopt different procedures to ensure the just, efficient and expeditious resolution of proceedings. The RAC, so far as it appears appropriate, seeks to avoid unnecessary formality in its proceedings.
Nothing in the RAC Rules shall be taken as abridging the powers of the RAC under the Law or any other legislation.
Proceedings brought before the RAC will be conducted in English and all documents required to be filed must be in English.
The Secretary and RAC address for service
The Board Secretariat shall act as the Secretary of RAC. All notices, applications and other documents required to be filed with the RAC must be filed with the Secretary at the following address:
The Secretary of the RAC
The Gate, Box 75850
FAX: +971 (0)4 362 0804
Once a Notice of Appeal has been filed, and with the consent of the Parties or in cases of urgency, procedural directions and orders granting interim relief may be made by the Panel Chair alone or by the Chairman if the Appeal Panel has not yet been selected.
Where an order or direction is made by the Panel Chair or Chairman other than with the consent of the Parties, a party may apply within seven (7) days of the order for the order or direction to be reconsidered by the full Appeal Panel, but the order or direction shall remain in force unless and until it is rescinded or varied by the Appeal Panel.
All proceedings and decisions of the RAC shall be heard in public unless the RAC orders otherwise.
The RAC on the application of a person or on its own initiative may order that part or all of a proceeding brought before the RAC is to be non-public or that certain information is to be treated confidentially and not disclosed publicly.
An application for confidential treatment shall state the grounds for objection to public disclosure and where applicable shall be accompanied by a sealed copy of the information for which confidential treatment is sought.
In determining an application for confidential treatment, the RAC shall consider, so far as practicable:(a) whether the disclosure of information would, in its opinion, be contrary to the public interest;(b) whether the disclosure of commercial information would or might, in its opinion, significantly harm the legitimate business interests of the undertaking to which it relates;(c) whether the disclosure of information relating to the private affairs of an individual would, or might, in its opinion, significantly harm the person's interests; and(d) the extent to which any such disclosure is necessary for the purpose of explaining the reasons for the decision.
Pending the determination of the application for confidential treatment, transcripts, non-final orders including an initial decision, if any, and other materials in connection with the application shall be for the confidential use only of the Secretary, the RAC, the applicant, and any other parties and counsel; and shall be made available to the public only in accordance with orders of the RAC.
Part 2 Part 2 Commencing an Appeal
Notice of Appeal
A person directly affected by a decision of the DFSA Executive that is subject to appeal to the RAC may appeal the decision by filing a Notice of Appeal with the Secretary within 30 days of the date of the decision, subject to an order made under Rule 19 extending the time to file.
The Notice of Appeal must contain the following information:(a) the name and address of the Applicant;(b) the name and address of the Applicant's legal representative;(c) the Applicant's physical address for service in the DIFC, and in the event that the Applicant is willing to accept service electronically, the Applicant's e-mail or facsimile address for service;(d) a copy of the disputed decision;(e) the grounds for the appeal;(f) the relief sought by the Applicant, including whether the Applicant is seeking a stay of the decision;(g) the grounds and urgency for relief sought;
and the Notice must be signed and dated by the Applicant or by the Applicant's duly authorised officer or legal representative. The form of a Notice of Appeal is attached to the RAC Rules as RAC Form 1.
A Notice of Appeal will not be considered as filed with the RAC unless the required filing fee has been paid.
The Applicant must send a copy of the Notice of Appeal to the Chief Executive once the Notice of Appeal has been filed.
Extension to file Notice of Appeal
A person may apply to the RAC for an order extending the time to file a Notice of Appeal up to, but not more than, 60 days from the date of the decision under appeal.
An application to extend the time to file a Notice of Appeal must be provided to the Chief Executive at the time it is filed with the Secretary and it must include the reasons why the Notice was not filed on time and why an extension should be granted.
Appointment of Appeal Panel
Upon receiving a filed Notice of Appeal from the Secretary, the Chairman must appoint at least three RAC members (one of whom may be himself) to form an Appeal Panel to hear and determine the appeal.
The Chairman must select a member of the Appeal Panel to serve as Panel Chair. The Panel Chair must be a RAC member who is also a member of the DFSA Board of Directors, provided that such member has not participated in material discussions concerning the decision under appeal and is otherwise eligible to act as Panel Chair.
If a member of the Appeal Panel is unable or unwilling to act, the Chairman shall appoint a new member to fill the vacancy if the hearing of the appeal has not commenced.
If a member of the Appeal Panel is unable or unwilling to act once the hearing of an appeal has commenced, the Appeal Panel, after hearing from the parties, shall decide whether the hearing of the appeal may continue or must start afresh, and may make any consequential directions which it considers appropriate.
Part 3 Part 3 Pre-Appeal Matters
Applications and Procedural Directions
The Chairman, Panel Chair or Appeal Panel, on their own initiative or on application of a party, may hear applications filed with the Secretary or give procedural directions in writing or in a pre-appeal conference by teleconference or video link concerning any matter related to the conduct of the appeal, including varying any of the requirements of the RAC Rules.
The Secretary, following consultation with the parties and the Chairman, Panel Chair or Appeal Panel, as appropriate, will notify the parties in writing of the manner in which applications will be considered and determined and procedural directions given.
If a party fails to attend an application or pre-appeal conference for which it has received proper notice, the Chairman, Panel Chair or Appeal Panel may continue with the application or pre-appeal conference in the absence of that party.
The RAC may order a stay of the decision under appeal and any related steps proposed to be taken by the DFSA Executive until the RAC has determined the appeal. A decision subject to appeal is not automatically stayed upon the filing of a Notice of Appeal.
The DFSA Executive must file the Record with the Secretary and provide a copy of the Record to the Applicant no later than seven (7) days after receiving the Notice of Appeal.
The Record must include the decision, any documentary evidence, transcript of any oral evidence, and written submissions or record of oral submissions, which were considered by the DFSA Executive in making the decision.
Statement of Appeal
Within 21 days of receiving the Record, the Applicant must file and send a Statement of Appeal which must contain the following information:(a) a summary of the facts and law upon which the Applicant relies;(b) whether the Applicant intends to rely on the Record or intends to rely on any evidence other than the Record in support of the appeal; and(c) a list of the additional evidence, including copies of documents, names and statements of witnesses of fact or expert witnesses to be called, if any.
Statement of Response
Within 14 days of receiving the Statement of Appeal, the DFSA Executive must file a Statement of Response which must contain the following information:(a) a summary of the facts and law upon which the DFSA Executive relies;(b) whether the DFSA Executive intends to rely on any other evidence in support of the decision under appeal; and(c) a list of the additional evidence, including copies of documents, names and statements of witnesses of fact or expert witnesses to be called, if any.
Scheduling the Appeal
Once the Record, the Applicant's Statement of Appeal and the DFSA Executive's Statement of Response and any other document ordered to be filed by the Chairman, Appeal Panel or Panel Chair have been filed, the Secretary will schedule a date for hearing the appeal following consultation with the Panel Chair and the parties.
The Secretary will give notice of the time, date and place of the hearing to each party and publish this notice on the RAC section of the DFSA website, unless directed otherwise.
Location and manner of proceedings
Every oral hearing of an application or appeal shall take place in the DIFC, regardless of whether parties participate by video or telephone link.
The Appeal Panel may hold an oral hearing of an application or appeal by video link or telephone conference which the participants, including the members of the Appeal Panel, may attend whether or not they are physically present in the DIFC.
The Appeal Panel may dispense with an oral hearing of an application or an appeal and make its decision on written submissions and evidence.
Subject to directions made under RAC Rule 25, the hearing of an appeal will proceed as follows:(a) the DFSA Executive will present its case first, justifying the decision under appeal;(b) the Applicant will present its case next, justifying why the decision under appeal is wrong and why the appeal should be allowed;(c) the DFSA Executive will then be given an opportunity to reply to the Applicant's case;(d) the Applicant will be given an opportunity for a final reply.
Part 4 Part 4 The Appeal
An Appeal Panel has the authority to exercise the powers of the RAC to hear and determine appeals and applications brought before the RAC.
The RAC is not bound by the rules of evidence. The Appeal Panel may receive and consider any evidence relevant to the appeal whether the evidence was available to the DFSA Executive at the time the decision under appeal was made and whether or not the evidence would be admissible in civil or criminal proceedings in a court of law.
The Appeal Panel may determine the manner in which evidence is received and may require parties to produce documents in electronic form.
The Appeal Panel before or during an appeal, on its own initiative or on the application of a party, may require (summon) a person to attend the appeal and to give evidence and to produce documents or other relevant evidence. A party applying to summon a witness must be able to show that the witness is likely to produce relevant evidence. The form of summons is attached to the RAC Rules as RAC Form 2.
The Appeal Panel may require a witness to take an oath or make an affirmation before giving oral evidence.
The Appeal Panel may order a witness to answer questions in a truthful manner and may require the witness to provide evidence orally or by sworn statement.
The Appeal Panel may order a person not to publish or disclose any material disclosed to the Appeal Panel.
The Appeal Panel may dispense with the need to call a witness to give evidence if a witness statement has been submitted in respect of that witness.
Findings and Decision of Appeal Panel
The Appeal Panel may determine all questions of fact and law that arise in an appeal or an application.
Findings of fact will be determined on a balance of probabilities.
At the conclusion of the appeal, the Appeal Panel may deliver its decision and reasons on the appeal either orally in the presence of the parties or in writing and delivered to the parties.
The decision of the Appeal Panel is the decision of all, or the majority, of the Panel members.
In the event the Appeal Panel delivers its decision orally, the decision and the reasons for decision shall be reduced to writing, signed by the Panel Chair and delivered to both parties.
In the event the Appeal Panel decides to deliver a written decision and reasons, the Appeal Panel will issue its decision and reasons as soon as practicable and no later than 60 days following the conclusion of the hearing of the appeal.
A copy of the Appeal Panel's decision and the reasons for decision must be published in the RAC section of the DFSA website, unless ordered otherwise by the Appeal Panel.
In rendering its decision, the Appeal Panel may:(a) determine what, if any, is the appropriate action for the DFSA Executive to take;(b) remit the matter to the DFSA Chief Executive with such directions, if any, as the Appeal Panel considers appropriate for giving effect to its determination, save that such directions may not require the DFSA Executive to take any step which it would not otherwise have power to take; and(c) make an order for costs.
Part 5 Part 5 General
Filing and Sending Documents
A document which is required by these Rules to be sent to any person other than the Secretary may be:(a) delivered personally to the person's physical address for service;(b) sent to the person's physical address for service by post;(c) sent to the person electronically to any e-mail address which the person has provided as an address for service;(d) sent to the person by facsimile at any facsimile address which the person has provided as an address for service.
If a person has not provided an address for service, a document may be considered as sent if:(a) in the case of a company, it is delivered personally or sent by post to the secretary of the company at the registered address or principal place of business of the company;(b) in the case of a partnership, it is delivered personally or sent by post to the last known address of any one of the partners for the time being;(c) in the case of any other person, it is delivered personally to the person or sent by post to the last known address of that person.
A document shall be treated as having been sent at the time when, having regard to all the circumstances, including the method of sending, the incidence of non-working days and the differences between time zones, the document should in the ordinary course have come to the notice of the intended recipient.
The RAC may dispense with the filing or sending of a document if the interests of justice so require.
The RAC may, for good reason, authorise a document to be filed or sent by an alternative method to those permitted by these Rules.
Service of Summons
A summoned witness is entitled to conduct money. The party requesting a summons is responsible for ensuring that it is served (given) personally on the witness and that conduct money is paid. The conduct money must be reasonably sufficient to enable the person to attend the appeal.
No person shall be required to attend from a place outside of the DIFC unless conduct money, including estimated travel and subsistence costs, are paid to the person in advance by the party seeking the attendance of that person, with such initial payment being reviewed at the conclusion of the appeal to determine if the initial payment was sufficient or excessive.
Parties to the appeal may be represented by any person, whether that person is legally qualified or not. Where a lawyer is acting for a party or a witness, documents may be served on the party or witness by delivering them to the lawyer.
The Appeal Panel may refuse to permit a person to represent a party at the appeal if it satisfied that there are good and sufficient reasons for doing so.
Withdrawal and Dismissal
The Applicant may withdraw its Notice of Appeal and the DFSA Executive may withdraw its opposition to the appeal prior to the Appeal Panel commencing the hearing by filing a notice to that effect. An appeal may be withdrawn during the hearing of the appeal with the permission of the Panel.
The Appeal Panel may dismiss an appeal if the Applicant does not file all documents required under the RAC Rules or in accordance with any directions given by the Chairman, Panel Chair or Appeal Panel.
Subject to an order made by the Chairman under Rule 67, a fee of $5000 must be paid to the DFSA before a Notice of Appeal is considered filed with the RAC.
The Chairman may waive all or part of the $5,000 filing fee if the person appealing a decision of the DFSA is an individual and if, in the circumstances, the Chairman considers that it is equitable to do so.
The filing fee may be considered by the Appeal Panel when awarding costs at the conclusion of the appeal and it may be reimbursed if the Panel determines that the appeal was justified.
The Appeal Panel may require a party to the appeal to pay all or part of the costs of the appeal, including those of the Appeal Panel and any party to the appeal. Before any order as to costs is made, the Appeal Panel must provide the parties with an opportunity to make representations about costs.
Conflicts of Interest
A member of RAC is precluded from participating in any manner in the consideration or determination of an application or appeal before RAC in which the member has a conflict of interest. A member of RAC who is also a DFSA Board member does not have a conflict of interest simply because he is member of the DFSA Board so long as he has not participated in any material discussions relating to the decision, or subject matter of the decision, under appeal.
Upon becoming aware of a conflict of interest or a potential conflict of interest in an application or appeal before RAC, the RAC Member must advise the Chairman of the matter and the Chairman will determine what action should be taken to deal with the conflict or potential conflict of interest.
If a conflict of interest or a potential conflict of interest arises during an application or appeal, the Appeal Panel will determine what action should be taken to deal with the conflict or potential conflict of interest.
Any irregularity resulting from failure to comply with the RAC Rules shall not itself render a decision relating to an application or the appeal invalid, and the Appeal Panel may give any directions it thinks appropriate to cure the irregularity.
Clerical mistakes or errors arising from any accidental error or omission in any document recording a decision of the Appeal Panel may be corrected by the Panel Chair by a certificate signed by the Panel Chair.
Calculation of Time
Where the time for doing any act expires on a non-business day, the act is in time if done on the next business day.
Subject to the limitations in Rule 19, the RAC may extend or abridge the time for doing any act under these Rules, whether or not expired.
The Chairman may issue practice directions relating to the procedures governed by the RAC Rules.
Review of RAC Decisions
A person may only have a decision of the RAC judicially reviewed before the DIFC Court on a point of law.
Regulatory Appeals Committee