Acceptance of an Enforceable Undertaking
An EU may be given by a
Personand accepted by the DFSAat any time, either before, during or after an investigation, the making of a decision or the commencement of litigation or proceedings in the Court. The DFSAdoes not have the power to require a Personto enter into an EU nor can a Personcompel the DFSAto accept an EU. This does not mean, however, that the DFSAcannot propose an EU to a Person, during the course of settlement negotiations, or provide a Personwith a draft EU to provide guidance as to the terms of an EU that the DFSAwould be willing to accept.
DFSAmay 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 or the circumstances in which an EU would be acceptable to the DFSA. The DFSAwill consider all the relevant circumstances of a matter when deciding whether to accept an EU including whether other regulatory tools, for example a notice of decision, might achieve a more appropriate outcome in the particular matter. However, in the context of an enforcement matter, the DFSAwill generally only accept an EU that:(a) contains an admission or acknowledgement of any contraventions of the Law or the DFSA'sconcerns;(b) contains undertakings that address the DFSA'sconcerns; 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.
Personoffering an EU to the DFSAmay also undertake in the EU to pay a pecuniary penalty and/or the DFSA'scosts, including any costs associated with compliance with the EU.
An EU will not take effect until it is formally accepted by the
Chief Executiveof the DFSAor his delegate.