8. Procedural Fairness

8.1 When the DFSA intends to disclose confidential information to other bodies pursuant to a statutory gateway, in cases where that information has been obtained from another regulatory or supervisory agency, the DFSA will notify and consult with that agency which provided the information. In these instances, the DFSA does not normally notify the persons potentially affected by the disclosure, although there are exceptions.

8.2 The DFSA will normally give notice and an opportunity to make representations and challenge the disclosure in the following circumstances:

(a) Where the disclosure relates to a person's compelled testimony to a law enforcement agency for the purpose of criminal proceedings against the person. Under Article 80(7) of the Regulatory Law, the DFSA must not disclose a person's compelled testimony to any law enforcement agency for the purpose of criminal proceedings against the person unless the person consents to the disclosure or the DFSA is required by law or court order to disclose the statement;
(b) Where the disclosure of confidential information relates to private civil litigation. In these circumstances, the person requesting the confidential information will be required to obtain a DIFC Court order compelling the DFSA to disclose the confidential information. The DFSA will notify the person who is the subject of the request so that the person has an opportunity to challenge the request according to the Rules of the DIFC Court;
(c) Where the fairness of the case requires it. Notice may be appropriate where there are serious and legitimate concerns about the appropriateness of the disclosure. For example, where the body requesting the confidential information does not perform a financial services related regulatory function. In addition there may be some other obvious reason why it might be helpful (in order to enable a fully informed decision to be made) to give notice in order to get a response from the subject of disclosure or the source of the information. One of the relevant considerations is whether the body receiving the confidential information is itself obliged to provide the person concerned with an opportunity to make representations, should it decide to rely on the information disclosed to it.

8.3 The DFSA will not normally give notice in the following circumstances:

(a) where it may prejudice an ongoing or pending investigation, whether carried out by the DFSA or the receiving authority or prejudice actions which the DFSA or other authority may want to take as a result of an investigation (e.g. freezing assets before they disappear);
(b) where it may reveal the identity of informants or persons who provided the DFSA with information about potential misconduct of firms or individuals in the expectation that their identity would be kept confidential;
(c) where it may prejudice or jeopardise the DFSA's ability to effectively discharge its monitoring and other regulatory functions particularly in its supervisory function where there is frequently a need for real-time disclosures of confidential information by telephone, e-mail or fax;
(d) where it is agreed or understood that the regulatory practice is that certain confidential information will be passed on without notice, particularly in the context of disclosure to supervisors of international firms;
(e) where the information disclosed to other agencies is not adverse to the person concerned (e.g. letters to overseas regulators indicating that there is no adverse information, or information as to the authorisation status of firms and individuals);
(f) where it may undermine other regulators' fitness and propriety tests; or
(g) where it may seriously prejudice the DFSA's relations with overseas regulators, considering the DFSA's bilateral and international obligations and the need for effective mutual cooperation and information sharing.