Part 7: Part 7: Enforcement
89. Enforceable Undertakings(1) The DFSA may accept a written undertaking given by a person which the DFSA considers necessary or desirable in the pursuit of its objectives.(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the DFSA.(3) If the DFSA considers that the person who gave the undertaking has been in breach of any of its terms, it may apply to the Court for an order under Article 89(4).(4) If the Court is satisfied that the person has been in breach of a term of the undertaking, the Court may make all or any of the following orders:(a) an order directing the person to comply with that term of the undertaking;(b) an order directing the person to pay to any person or to the DFSA an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damaged as a result of the breach; or(d) any other order that the Court considers appropriate.
90. Sanctions and directions(1) Where the DFSA considers that a person has contravened a provision of any legislation administered by the DFSA, other than in relation to Article 32, the DFSA may exercise one or more of the powers in Article 90(2) in respect of that person.(2) For the purposes of Article 90(1) the DFSA may:(a) fine the person such amount as it considers appropriate in respect of the contravention;(b) censure the person in respect of the contravention;(c) make a direction requiring the person to effect restitution or compensate any other person in respect of the contravention within such period and on such terms as the DFSA may direct;(d) make a direction requiring the person to account for, in such form and on such terms as the DFSA may direct, such amounts as the DFSA determines to be profits or unjust enrichment arising from the contravention;(e) make a direction requiring the person to cease and desist from such activity constituting or connected to the contravention as the DFSA may stipulate;(f) make a direction requiring the person to do an act or thing to remedy the contravention or matters arising from the contravention; or(g) make a direction prohibiting the person from holding office in or being an employee of any Authorised Person, DNFBP, Reporting Entity or Domestic Fund.(3) Nothing in this Article prevents the DFSA from exercising any other power that it may exercise under this Law or any other legislation administered by the DFSA.(4) The procedures in Schedule 3 apply to a decision of the DFSA under this Article.(5) If the DFSA decides to exercise its power under this Article in relation to a person, the person may refer the matter to the FMT for review.(6) The DFSA shall prepare, publish and maintain a statement of:(a) its policy in relation to the factors to be considered by the DFSA in exercising a power in respect of a person under Article 90(2)(a) and (b); and(b) the procedure which the DFSA has adopted, which is designed to secure, among other things, that the decision is taken by a person not directly involved in establishing the evidence on which that decision is based.(7) The DFSA may at any time modify or replace a statement published by it under this Article and where it does so it shall publish any modified or replacement statement.(8) A statement required to be published under this Article shall be published in a way appearing to the DFSA to be best calculated to bring it to the attention of the public.(9) In exercising, or deciding whether to exercise, its power under Article 90(2)(a) or (b), the DFSA shall have regard to any statement published by it under this Article and in force at the time when the contravention in question occurred.(10) If the person who is subject to a fine under Article 90(2)(a) has not paid to the DFSA the full amount of the fine within the period specified in the notice, the Court may order, on application of the DFSA, the recovery as a debt due so much of the fine as remains outstanding, together with costs.
91. Saving and Transitional(1) For the purposes of this Article:(a) "previous Law" means the Regulatory Law 2004 as it was in force immediately prior to the DIFC Laws Amendment Law No. 1 of 2014 coming into force; and(b) "current Law" means the provisions of this Law that came into force under the DIFC Laws Amendment Law No. 1 of 2014.(2) The saving and transitional provisions in this Article apply where the DFSA has issued a notice under Article 90 or 91 of the previous Law. Where such a notice has been issued, Article 90 of the current Law shall not affect:(a) any right, privilege, remedy, obligation or liability accrued to or incurred by any person; or(b) any investigation or legal or administrative proceeding commenced or to be commenced in respect of any right, remedy, privilege, obligation or liability,in relation to the relevant notice, and any such investigation or legal or administrative proceeding may be instituted, continued or enforced, including any penalty, fine or forfeiture, under the current Law subject to Article 90(3).(3) Where such a notice has been issued by the DFSA, Articles 90 and 91 as prescribed in the previous Law are deemed to continue in force until such time as necessary for the purposes of any investigation or proceeding specified in this Article to be concluded.
92. Injunctions and Orders(1) In this Article, "relevant requirement" in relation to an application by the DFSA, means a requirement, duty, prohibition, responsibility or obligation which is imposed by or under the Law or Rules or other legislation administered by the DFSA.(2) Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute a contravention of a relevant requirement, the Court may, on application of the DFSA or any aggrieved person, make one or more of the following orders:(a) an order restraining the person from engaging in the conduct including, but not limited to, engaging in conduct that may constitute a contravention of a DIFC Law or of a Federal Law to the extent that such law may applies to such person in the DIFC;(b) an order requiring that person to do any act or thing including, but not limited to, acts or things to remedy the contravention or to minimise loss or damage; or(c) any other order as the Court sees fit.(3) Where:(a) the DFSA is conducting or has conducted an investigation into the acts or omissions of a person (the 'relevant person') which may contravene or which may have contravened a relevant requirement; or(b) a civil or regulatory proceeding has been instituted, by the DFSA or otherwise, against a relevant person in relation to an alleged contravention of a relevant requirement,the Court may, on application of the DFSA or any aggrieved person, make one or more of the following orders:(c) an order restraining the relevant person from paying, transferring, disposing of, or otherwise dealing with, any assets of his which he is reasonably likely to dispose of or otherwise deal with;(d) an order restraining any other person holding assets on behalf of the relevant person from paying, transferring, disposing of, or otherwise dealing with, any assets of the relevant person which are reasonably likely to be disposed of or otherwise dealt with;(e) an order prohibiting the relevant person or any other person from taking or sending out of the jurisdiction of the Court or out of the State any assets of the relevant person or held on his behalf;(f) in the event that the relevant person is a natural person, an order appointing a receiver or trustee, having such powers as the Court may see fit, of the property or any of the property of the relevant person;(g) in the event that the relevant person is a body corporate, an order appointing receiver or receiver and manager, having such powers as the Court may see fit, of the property or any of the property of the relevant person;(h) in the event that the relevant person is a natural person, an order requiring him to deliver up to the Court his passport and such other documents as the Court sees fit; or(i) in the event that the relevant person is a natural person, an order prohibiting him from leaving the jurisdiction of the Court or of the State without the consent of the Court.(4) Nothing in Article 92 affects the powers that any person or the Court may have apart from this Article.
93. Compulsory Winding up
Where it appears to the DFSA that it is just and equitable and in the interests of the DIFC that a company which is or has been:(a) an Authorised Person; or(b) carrying on Financial Services in breach of the Financial Services Prohibition;should be wound up, it may apply to the Court for, and the Court may make orders considered necessary and desirable for, the winding up of such company.
94. Civil Proceedings(1) Where a person:(a) intentionally, recklessly or negligently commits a breach of duty, requirement, prohibition, obligation or responsibility imposed under the Law or Rules or other legislation administered by the DFSA; or(b) commits fraud or other dishonest conduct in connection with a matter arising under such Law, Rules or legislation;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, and otherwise is liable to restore such other person to the position they were in prior to such conduct(2) The Court may, on application of the DFSA or of a person who has suffered loss or damage caused as a result of conduct described in Article 94(1), make orders for the recovery of damages or for compensation or for the recovery of property or for any other order as the Court sees fit, except where such liability is excluded under the Law or Rules or other legislation administered by the DFSA.(3) Nothing in Article 94 affects the powers that any person or the Court may have apart from this Article.
95. Power of DFSA to Intervene in any Proceedings(1) The DFSA may intervene as a party in any proceeding in the Court where it considers such intervention appropriate to meet the objectives of the DFSA.(2) Where the DFSA so intervenes, it shall, subject to any other law, have all the rights, duties and liabilities of such a party.
96. Effect of Provisions
For the avoidance of doubt, nothing in any Article in Part 7 limits the generality of any other Article in Part 7, or the generality of any other provision in the Law or Rules or other legislation administered by the DFSA, which may provide for administrative remedies or the commencement of proceedings in the Court.