Entire Section

  • Chapter 1 — Chapter 1 — General Provisions

    • 64. Provisions Governing Controllers

      (1) The DFSA may make Rules governing controllers of Authorised Persons, including Rules as to:
      (a) when a person becomes or ceases to be a controller of an Authorised Person;
      (b) when the acquisition or increase in the level of control of an Authorised Person requires either the prior approval of, or notification to, the DFSA;
      (c) when the DFSA may object to an existing controller;
      (d) the procedures relating to the approval, notification and objections referred to in Article 64(1)(b) and (c); and
      (e) any other matter necessary or incidental to give effect to the provisions governing controllers.
      (2) Without limiting the generality of the DFSA powers, the DFSA may:
      (a) approve or object to a person becoming a controller of an Authorised Person;
      (b) approve or object to an increase in the level of control of an existing controller of an Authorised Person;
      (c) object to an existing controller of an Authorised Person where it has reasonable grounds to believe that such a person is no longer an acceptable controller; and
      (d) approve a person as a controller or approve an increase of control by an existing controller subject to such conditions as it considers appropriate.
      (3) Where the DFSA considers an existing controller of an Authorised Person to be an unacceptable controller:
      (a) it must notify the controller and the Authorised Person in writing that the controller is no longer an acceptable controller; and
      (b) it may require that the controller and the Authorised Person take such actions as specified by the DFSA.
      (4) Without limiting the generality of the DFSA powers, the DFSA may, for the purposes of Article 64(3)(b):
      (a) require an Authorised Person to take such action as specified by the DFSA in relation to an unacceptable controller;
      (b) where an Authorised Person has failed to comply with a requirement referred to in Article 64(4)(a) to the satisfaction of the DFSA, either withdraw, or impose conditions, on the Authorised Person's licence; or
      (c) require the unacceptable controller to take such action as specified by the DFSA.

    • 65. Unenforceable Agreements — Breach by Party to the Agreement

      (1) Subject to Article 65(5), a person who makes an agreement in the course of carrying on a Financial Service in breach of the Financial Services Prohibition or the Collective Investment Prohibitions, or who makes an agreement as a result of the making by himself or another person of a Financial Promotion which is in breach of the Financial Promotions Prohibition shall not be entitled to enforce such agreement against any party (a "relevant party") to the agreement.
      (2) Subject to any agreement that may otherwise be reached between the parties, a relevant party may apply to the Court to recover:
      (a) any money paid or property transferred by him under the agreement;
      (b) compensation reflecting any loss sustained by the relevant party as a direct result of such payment or transfer; and
      (c) compensation for an amount becoming due that is dependent upon a contingency occurring under the relevant agreement, provided that such contingency shall have occurred prior to the relevant party being notified by the other party or by the DFSA that the agreement has been entered into in breach of the Financial Services Prohibition, the Collective Investment Prohibitions or the Financial Promotions Prohibition.
      (3) If the relevant party chooses not to perform the agreement or, under Article 65(2), recovers money paid or property transferred by him under the agreement, he shall in turn repay any money or property he has received under the agreement.
      (4) The compensation recoverable under Article 65(2)(b) is the amount agreed between the parties to the agreement or, following an application to the Court, the amount determined by the Court.
      (5) If the Court is satisfied that the person:
      (a) carrying on the Financial Service reasonably believed that he was not in breach of the Financial Services Prohibition or the Collective Investment Prohibitions by entering into such agreement;or
      (b) who made the Financial Promotion reasonably believed that he was not in breach of the Financial Promotions Prohibition, or
      (c) who made an agreement as a result of the making by another person of a Financial Promotion which was in breach of the Financial Promotions Prohibition, did not know that the relevant Financial Promotion was in breach of the Financial Promotions Prohibition,
      and that it is fair and just in the circumstances to make such an order, it may make one or more of the following orders:
      (d) an order that the agreement be enforced between the parties to such extent and under such terms and conditions as the Court sees fit; or
      (e) an order that money paid or property transferred under the agreement be retained or dealt with in accordance with the agreement or in such manner as the Court deems fit.
      (6) Where property transferred under the agreement has been transferred to a third party, a reference in Article 65 to such property shall be interpreted as a reference to the value of the property at the time of the transfer under the agreement.
      (7) In Article 65, "agreement" means an agreement, the making or performance of which constitutes, or is part of, the carrying on of a Financial Service.

    • 66. False or Misleading Information

      A person shall not:

      (a) provide information which is false, misleading or deceptive to the DFSA; or
      (b) conceal information where the concealment of such information is likely to mislead or deceive the DFSA.

    • 67. Obligations of Disclosure to the DFSA

      (1)
      (a) Subject to Article 67(2), any of the following persons:
      (i) an Authorised Person or DNFBP; or
      (ii) an auditor of any person in sub-paragraph (i);
      shall disclose to the DFSA anything which reasonably tends to show a matter specified in paragraph (b):
      (b) The relevant matters for the purposes of (a) are:
      (i) a breach, or likely breach of a provision of the Law or Rules or other legislation administered by the DFSA;
      (ii) a failure, or likely failure, to comply with any obligation to which a person is subject under such legislation; or
      (iii) any other matter as the DFSA may prescribe in Rules:
      which may be attributable to the conduct of the person in (a)(i) or its director, officers, employees or agents.
      (2) Article 67(1) shall not apply to the extent that compliance with such requirement would disclose a Privileged Communication.
      (3) A person referred to in Article 67(1)(a) shall establish and implement appropriate systems and internal procedures to enable its compliance, and compliance by its auditor, with Article 67(1).
      (4) Any provision in an agreement between a person referred to in Article 67(1)(a) and a director, officer, employee, agent or auditor is void in so far as it purports to hinder compliance with an obligation under Article 67(1).
      (5) Without limiting the application of any other provision of this Law, an auditor does not contravene any duty to which the auditor is subject merely because the auditor gives to the DFSA:
      (a) a notification as required under this Article; or
      (b) any other information or opinion in relation to any such matter;
      if the auditor is acting in good faith and reasonably believes that the notification, information or opinion is relevant to any functions of the DFSA.
      (6) No person shall be subjected to loss of employment or any other detriment or loss or damage merely by reason of undertaking any act to cause or assist a person referred to in Article 67(1)(a) or (b) to comply with an obligation under Article 67(1).
      (7) A Court may, on application of an aggrieved person, make any order for relief where the person has been subjected to any such loss of employment or detriment or loss or damage referred to in Article 67(6).

    • 68. Disclosures to the DFSA

      A person is neither liable to a proceeding, nor subject to a liability, nor in breach of any duty, merely by reason of the giving of information or production of a document by the person to the DFSA:

      (a) in good faith; and
      (b) in reasonable belief that the information or document is relevant to any functions of the DFSA;

      whether such information or document is given or produced pursuant to a requirement at law or otherwise.

    • 68A. Whistleblower Protection

      (1) A person who makes a disclosure of information specified in Article 68A(2) to a person specified in Article 68A(3) is entitled to the protection in Article 68A(4).
      (2) For the purposes of Article 68A(1), the disclosure of information made by the person must:
      (a) relate to a reasonable suspicion that a Regulated Entity, an officer or employee of a Regulated Entity or, in the case of an Authorised Person, an Affiliate of the Authorised Person or an officer or employee of the Affiliate has or may have:
      (i) contravened a provision of this Law, the Rules or any other legislation administered by the DFSA; or
      (ii) engaged in money laundering, fraud or any other financial crime; and
      (b) be made in good faith.
      (3) For the purposes of Article 68A(1), the disclosure of information is made to any one or more of the following:
      (a) the Regulated Entity;
      (b) an officer of the Regulated Entity;
      (c) in the case of the Authorised Person, a person performing a Licensed Function for the Authorised Person;
      (d) an Auditor, or a member of the audit team, of the Regulated Entity;
      (e) the DFSA;
      (f) a criminal law enforcement agency in the State; or
      (g) any other person prescribed by the Rules for the purposes of this Article.
      (4) Where a person makes a disclosure referred to in Article 68A(1):
      (a) the person shall not be subject to any civil or contractual liability for making the disclosure;
      (b) no contractual, civil or other remedy or right shall be enforced against the person by another person for making the disclosure; and
      (c) the person shall not be dismissed from his current employment, or otherwise subject to any action by his employer or any related party of the employer which is reasonably likely to cause detriment to that person, for making the disclosure.
      (5) A Court may, on application of an aggrieved person, make any order for relief where the person has been subject to any loss of employment or other detriment or action referred to in Article 68A(4).
      (6) For the avoidance of doubt, to qualify for protection under this Article it is not necessary for a person who discloses information to identify himself when making the disclosure.
      (7) Nothing in this Article limits any other protection provided under this Law to a person who provides information to the DFSA or to any other person referred to in Article 68A(3).

    • 69. Compliance with an order or requirement of the DFSA

      Where the DFSA makes an order, issues a direction or prohibition, or makes any requirement in relation to a person pursuant to a provision of this Law or Rules or legislation administered by the DFSA, such person must, unless he has a reasonable excuse, comply with such order, direction, prohibition or requirement.