Entire Section

  • 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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 a DFSA investigation.

        Added by Notice of Updates (Made 23rd November 2014). November 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 regulator.16


        16 Article 40.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

    • Article 80 Powers

      • RPP 5-5-4

        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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

      • RPP 5-5-5

        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 suspected misconduct or suspected contraventions of the Law, and consequently would not be able to meet its objectives.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

      • RPP 5-5-6

        The powers under Article 80(1) are different from the supervisory 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.
        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

      • RPP 5-5-8

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

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

      • RPP 5-5-11

        When exercising its power to enter business premises under Article 80(1)(a), the DFSA may:17

        (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).

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.
        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.
        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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).

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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).

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.


        20 Article 80(3)(b).

        Added by Notice of Updates (Made 23rd November 2014). November 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.


        21 Article 80A(6).

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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.
        Added by Notice of Updates (Made 23rd November 2014). November 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 investigation.22


        22 Article 82.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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 Court.23


        23 Article 84(1).

        Added by Notice of Updates (Made 23rd November 2014). November 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.
        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.
        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

      • RPP 5-5-44

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

        Added by Notice of Updates (Made 23rd November 2014). November 2014 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 80A(3).

        Added by Notice of Updates (Made 23rd November 2014). November 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.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition