• Part 17 Part 17 Information Gathering, Prudential Directions, Skilled Person Reports, Investigations and Cooperation

    • Power to gather information

      • 201. The Regulator's power to require information

        (1) If the Regulator reasonably considers that it requires information or Documents in connection with the exercise by the Regulator of any of its functions or powers, or to further one or more of its objectives, the Regulator or an Officer appointed in writing by the Regulator, may, by notice in writing given to a person specified in subsection (2), require him —
        (a) to provide Specified information or information of a Specified description; or
        (b) to produce Specified Documents or Documents of a Specified description;
        in such form as the Regulator may reasonably require.
        (2) Subsection (1) applies to any person subject to Rules made under these Regulations, including Authorised Persons, Recognised Bodies, Controllers, Approved Persons and Recognised Persons, or any person connected to such person and their employees.
        (3) The information or Documents must be provided or produced —
        (a) before the end of such reasonable period as may be Specified; and
        (b) at such place as may be Specified.
        (4) Nothing in this section prevents the Regulator from making a request for information to be provided on a voluntary basis, or prevents a person from responding to such a request.
        Amended on December 11, 2018

    • Power to issue directions for prudential purposes

      • 202. Power to issue directions for prudential purposes

        (1) For prudential purposes, the Regulator may direct that a particular Authorised Person or Authorised Persons within a specified class —
        (a) comply with any specified additional capital or liquidity requirements;
        (b) apply a specific provisioning policy or treatment of Specified assets;
        (c) comply with Specified limits on material risk exposures;
        (d) comply with Specified limits on exposures to related parties;
        (e) meet additional or more frequent reporting requirements; or
        (f) take such other action as is Specified.
        (2) The Regulator may direct an Affiliate of an Authorised Person or Recognised Body to take Specified steps or not to carry out Specified activities if the Regulator —
        (a) is the consolidated supervisor of the Group to which the Authorised Person or Recognised Body belongs; and
        (b) is satisfied that the direction is necessary or desirable for the purposes of the effective prudential supervision of the Group on a consolidated basis.
        (3) A direction to an Affiliate under subsection (2) may include a requirement that the Affiliate —
        (a) limit any activities it undertakes or may undertake (including closing any office that is outside the jurisdiction in which it has its principal place of business and head office) if the activities are reasonably likely to expose the Authorised Person, Recognised Body or its Group to excessive risks or risks that are not properly managed; or
        (b) take such other measures as are necessary to remove any impediments to effective supervision of the Group on a consolidated basis, including a direction to take steps to restructure the Group.
        (4) A direction issued under this section comes into force on the date specified in it and remains in force, subject to subsection (6), until it is revoked or varied in writing by the Regulator pursuant to subsection (5).
        (5) The Regulator may, by notice, revoke or vary any direction given pursuant to this section.
        (6) A direction issued to Authorised Persons within a specified class under subsection (1), including any variation made to such a direction pursuant to subsection (5), shall not remain in force for a period longer than 12 months from the date specified in the initial direction issued pursuant to subsection (1).

    • Skilled Persons

      • 203. Reports by skilled persons

        (1) This section applies where the Regulator has required or could require a person to whom subsection (2) applies (the "Person Concerned") to provide information or produce Documents with respect to any matter (the "Matter Concerned").
        (2) This subsection applies to —
        (a) an Authorised Person or Recognised Body ("A");
        (b) any other member of A's Group;
        (c) a Partnership of which A is a member; or
        (d) a person who has at any relevant time been a person falling within paragraph (a), (b) or (c);
        who is, or was at the relevant time, carrying on a business.
        (3) The Regulator may either —
        (a) by notice in writing given to the Person Concerned, require the Person Concerned to provide the Regulator with a report on the Matter Concerned; or
        (b) itself appoint a person to provide the Regulator with a report on the Matter Concerned.
        (4) When acting under subsection (3)(a), the Regulator may require the report to be in such form as may be specified in the notice.
        (5) The Regulator must give notice of an appointment under subsection (3)(b) to the Person Concerned.
        (6) The person Appointed to make a report —
        (a) must be a person appearing to the Regulator to have the skills necessary to make a report on the Matter Concerned; and
        (b) where the appointment is to be made by the Person Concerned, must be a person nominated or approved by the Regulator.
        (7) It is the duty of —
        (a) the Person Concerned; and
        (b) any person who is providing (or who has at any time provided) services to the Person Concerned in relation to the Matter Concerned;
        to give the person Appointed to prepare a report such assistance as the Appointed person may reasonably require.
        (8) The obligation imposed by subsection (7) is enforceable, on the application of the Regulator, by an injunction.
        (9) The Regulator may make Rules providing for expenses incurred by it in relation to an appointment under subsection (3)(b) to be payable as a fee by the Person Concerned.

      • 204. Appointment of skilled person to collect and update information

        (1) This section applies if the Regulator considers that an Authorised Person or Recognised Body ("A") has contravened a Rule made by the Regulator to collect, and keep up to date, information of a description specified in the Rules.
        (2) The Regulator may either —
        (a) require A to appoint a skilled person to collect or update the information; or
        (b) itself appoint a skilled person to do so.
        (3) References in this section to a skilled person are to a person —
        (a) who appears to the Regulator to have the skills necessary to collect or update the information in question; and
        (b) where the appointment is to be made by A, nominated or approved by the Regulator.
        (4) The Regulator must notify A of an appointment under subsection (2)(b).
        (5) The skilled person may require any person to provide all such assistance as the skilled person may reasonably require to collect or update the information in question.
        (6) A requirement imposed under subsection (5) is enforceable, on the application of the Regulator, by an injunction.
        (7) A contractual or other requirement imposed on a person ("P") to keep any information in confidence does not apply if —
        (a) the information is or may be relevant to anything required to be done as a result of this section;
        (b) A or a skilled person requests or requires P to provide the information for the purpose of securing anything required to be done as a result of this section is done; and
        (c) the Regulator has approved the making of the request or the imposition of the requirement before it is made or imposed.
        (8) A may provide information (whether received under subsection (7) or otherwise) that would otherwise be subject to a contractual or other requirement to keep it in confidence if it is provided for the purposes of anything required to be done as a result of this section.
        (9) The Regulator may make Rules providing for expenses incurred by it in relation to an appointment under subsection (2)(b) to be payable as a fee by A.

    • Investigations

      • 205. Commencement of Investigations

        (1) If it appears to the Regulator that there is good reason for doing so, the Regulator may commence an investigation into —
        (a) the nature, conduct or state of the Business of an Authorised Person or Recognised Body;
        (b) a particular aspect of that Business;
        (c) the ownership or control of an Authorised Person or Recognised Body; or
        (d) a matter reasonably requested to be investigated pursuant to a request made under section 217.
        (2) If the Regulator reasonably suspects that a person may have committed a contravention of these Regulations, the Regulator may commence an investigation into the matter.
        (3) The Regulator may appoint one or more competent persons as Investigators to conduct an investigation on its behalf.
        (4) The Regulator may but need not give written notice of the commencement of an investigation to the Person Under Investigation.
        (5) If an Investigator thinks it necessary for the purposes of his investigation under subsections (1) or (2), he may also investigate the Business of a person who is or has, at any relevant time, been —
        (a) a member of the Group of which the Person Under Investigation ("A") is part; or
        (b) a Partnership of which A is a member.
        (6) The power conferred by subsection (1)(a) to (c) may be exercised in relation to a former Authorised Person or former Recognised Body but only in relation to —
        (a) Business carried on at any time when he was an Authorised Person or Recognised Body; or
        (b) the ownership or control of a former Authorised Person or Recognised Body at any time when he was an Authorised Person or Recognised Body.
        (7) Nothing prevents the Regulator from appointing a person who is a member of its staff as an Investigator under this section.
        (8) References in subsection (1) to a Recognised Body do not include references to a Non-Abu Dhabi Global Market Recognised Investment Exchange.

      • 206. Powers of Investigators

        (1) The Investigator may, by written notice, require the person who is the Person Under Investigation or any other person (whether or not connected to the Person Under Investigation) to —
        (a) attend an interview at a Specified time and place and answer questions;
        (b) produce at a Specified time and place any Specified Documents or Documents of a Specified description;
        (c) provide such information as the Investigator may require;
        (d) provide such assistance as the Investigator may require; or
        (e) permit the Investigator to enter the business premises of such person during normal business hours for the purpose of inspecting and copying Documents on such premises.
        (2) A requirement under subsection (1) may be imposed only so far as the Investigator reasonably considers the interview, question, production of the Document, provision of information, provision of assistance or permission of entry to be relevant to the purposes of the investigation.
        (3) Where the Investigator exercises its power under subsection (1)(e) to enter business premises, it may —
        (a) require any appropriate person to make available any relevant information stored at those premises for inspection or copying;
        (b) require any appropriate person to convert any relevant information into a form capable of being copied; and
        (c) use the facilities of the occupier of the premises, free of charge, to make copies.
        (4) Where the Investigator exercises its power under subsection (1)(a) to conduct an interview, it may give a Direction —
        (a) concerning who may be present;
        (b) preventing any person present during any part of the interview from disclosing to any other person any information provided to the interviewee or questions asked by the interviewer during the interview;
        (c) concerning the conduct of any person present, including as to the manner in which they will participate in the interview;
        (d) requiring the interviewee to swear an oath or give an affirmation that the answers of the interviewee will be true; and
        (e) requiring the interviewee to answer any questions relevant to the investigation.
        (5) Subject to section 210(3), it is not a reasonable excuse for a person to refuse or fail to —
        (a) permit inspection and copying of any information or Document;
        (b) give or produce, or procure the giving or production of, any information or Document; or
        (c) answer questions;
        pursuant to any requirement under sections 201, 203 and 206(1)(a), (b), (c) and (e) on the grounds that any such information or Document or answer, as the case may be —
        (d) might tend to incriminate the person; or
        (e) is, or contains, or might reveal a communication made in confidence (subject to section 209(6)).

      • 207. Admissibility of statements made to Investigators

        (1) A statement made to an Investigator by a person in compliance with an Information Requirement under these Regulations is admissible in evidence in any proceedings, so long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question.
        (2) The Investigator shall not disclose a statement made by a person in answer to any question asked pursuant to a requirement made of the person under section 206(1)(a) to any law enforcement agency for the purpose of criminal proceedings against the person unless —
        (a) the person consents to the disclosure; or
        (b) the Regulator is required by law or court order to disclose the statement.

      • 208. Costs of an investigation

        (1) Subject to subsection (2) and section 235, the Regulator shall be responsible for the costs and expenses of an investigation.
        (2) Where, as a result of an investigation under this Part, a person is found by the Court to have committed the contravention of these Regulations which is the subject matter of the investigation, the Court may order, on application brought by the Regulator, that the person pay or reimburse the Regulator in respect of the whole, or a specified part of, the costs and expenses of the investigation, including the remuneration of any person involved in the investigation.
        (3) The Court may make an order under subsection (2), on an application by the Regulator, whether or not the person has commenced, or intends to commence, a reference, appeal or other proceeding in relation to a decision of the Regulator.
        (4) The Regulator may apply to the Court for an order under subsection (2) only where there are proceedings before the Court relating to the alleged contravention by the person.
        (5) The Regulator may enter into any agreement regarding costs with the Person Under Investigation.

    • Information and Documents: supplemental provisions

      • 209. General requirements to supply information and Documents

        (1) If a Document is produced in response to a requirement imposed under this Part, the person to whom it is produced may —
        (a) take copies or extracts from the Document; or
        (b) require the person producing the Document, or any Relevant Person, to provide an explanation of the Document.
        (2) A Document so produced may be retained for so long as the person to whom it is produced considers that it is necessary to retain it (rather than copies of it) for the purposes for which the Document was requested.
        (3) If the person to whom a Document is so produced has reasonable grounds for believing —
        (a) that the Document may have to be produced for the purposes of any legal proceedings; and
        (b) that it might otherwise be unavailable for those purposes;
        it may be retained until the proceedings are concluded.
        (4) If a person who is required under this Part to produce a Document fails to do so, the Regulator or an Investigator may require him to state, to the best of his knowledge and belief, where the Document is.
        (5) If a person claims a lien on a Document, its production under this Part does not affect the lien. A person is not entitled to claim a lien on any Documents as a basis for failing to comply with a requirement made under this Part.
        (6) No person may be required under this Part to disclose information or produce a Document in respect of which he owes an obligation of confidence by virtue of carrying on the Regulated Activity of Accepting Deposits unless —
        (a) he is the Person Under Investigation or a member of that person's Group;
        (b) the person to whom the obligation of confidence is owed is the Person Under Investigation or a member of that person's Group;
        (c) the person to whom the obligation of confidence is owed consents to the disclosure or production; or
        (d) the imposing on him of a requirement with respect to such information or Document has been specifically authorised by the Regulator.

    • Limitation on powers to require Documents

      • 210. Protected information and Documents

        (1) Where there are any grounds for withholding any Protected Items or privileged materials, such grounds shall apply only to the relevant parts of the Document which are affected by such grounds and not to any other part of the Document.
        (2) A lawyer may be required under this Part to furnish the name and address of his client.
        (3) Where the Regulator requires a lawyer to give information or to produce a Document or to answer a question, and the giving of the information or the production of the Document or the answer to the question would involve disclosing a Privileged Communication made by, on behalf of, or to, the lawyer in his capacity as a lawyer, the lawyer is entitled to refuse to comply with the requirement unless —
        (a) where the person to whom, or by, or on behalf of whom, the communication was made is a Body Corporate that is subject to a Winding-Up, the liquidator of the body consents to the lawyer complying with the requirement; or
        (b) otherwise, the person to whom, or by, or on behalf of whom, the communication was made consents to the lawyer complying with the requirement.
        (4) Where a lawyer so refuses to comply with a requirement, he shall, as soon as practicable, give to the Regulator a written notice setting out —
        (a) where the lawyer knows the name and address of the person to whom, or by whom, or on behalf of whom, the communication was made, then that name and address; and
        (b) where the requirement to give information or produce a Document relates to a communication which was made in writing, then sufficient particulars to identify the Document containing the communication.

      • 211. Protected Items

        (1) A person may not be required by or under these Regulations to produce, disclose or permit the inspection of Protected Items.
        (2) "Protected Items" means —
        (a) communications between a professional legal adviser and his client or any person representing his client which fall within subsection (3);
        (b) communications between a professional legal adviser, his client or any person representing his client and any other person which fall within subsection (3) (as a result of paragraph (b) of that subsection);
        (c) items which —
        (i) are enclosed with, or referred to in, such communications;
        (ii) fall within subsection (3); and
        (iii) are in the possession of a person entitled to possession of them;
        (d) in the case of any information held by the Regulator, information which —
        (i) is supplied by or relating to bodies dealing with security matters;
        (ii) is held by public authorities in the exercise of their functions;
        (iii) relates to national security or international relations;
        (iv) relates to the economic and financial interests of the Abu Dhabi Global Market or to its financial stability; and
        (v) constitutes trade secrets.
        (3) A communication or item falls within this subsection if it is made —
        (a) in connection with the giving of legal advice to the client; or
        (b) in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings.
        (4) A communication or item is not a Protected Item if it is held with the intention of furthering a criminal purpose.

      • 212. Entry of premises under Court order

        (1) The Court of First Instance may issue an order under this section if satisfied on information on oath given by the Regulator or an Investigator that there are reasonable grounds for believing that the first, second or third set of conditions is satisfied.
        (2) The first set of conditions is —
        (a) that a person on whom an Information Requirement has been imposed has failed (wholly or in part) to comply with it; and
        (b) that on the premises specified in the order —
        (i) there are Documents which have been required; or
        (ii) there is information which has been required.
        (3) The second set of conditions is —
        (a) that the premises specified in the order are premises of an Authorised Person or Recognised Body;
        (b) that there are on the premises Documents or information in relation to which an Information Requirement could be imposed; and
        (c) that if such a requirement were to be imposed —
        (i) it would not be complied with; or
        (ii) the Documents or information to which it related would be removed, tampered with or destroyed.
        (4) The third set of conditions is —
        (a) that a contravention mentioned in section 205(2) has been (or is being) committed by any person;
        (b) that there are on the premises specified in the order Documents or information relevant to whether that contravention has been (or is being) committed;
        (c) that an Information Requirement could be imposed in relation to those Documents or information; and
        (d) that if such a requirement were to be imposed —
        (i) it would not be complied with; or
        (ii) the Documents or information to which it related would be removed, tampered with or destroyed.
        (5) An order under this section shall authorise the person named in the order —
        (a) to enter the premises specified in the order;
        (b) to search the premises and take possession of any Documents or information appearing to be Documents or information of a kind in respect of which an order under this section was issued (the "Relevant Kind") or to take, in relation to any such Documents or information, any other steps which may appear to be necessary for preserving them or preventing interference with them;
        (c) to take copies of, or extracts from, any Documents or information appearing to be of the Relevant Kind;
        (d) to require any person on the premises to provide an explanation of any Document or information appearing to be of the Relevant Kind or to state where it may be found; and
        (e) to use such force as may be reasonably necessary.
        (6) An order under this section may be executed only by the person named in the order.
        (7) The order may authorise persons to accompany any person named in the order who is executing it.
        (8) The powers in subsection (5) may be exercised by a person authorised by the order to accompany the person named in the order, but that person may exercise those powers only in the company of, and under the supervision of, a person named in the order.

      • 213. Retention of Documents taken under section 212

        (1) Any Document of which possession is taken under section 212 (a "Seized Document") may be retained so long as it is necessary to retain it (rather than copies of it) in the circumstances.
        (2) A person claiming to be the owner of a Seized Document may apply to the Court of First Instance for an order for the delivery of the Document to the person appearing to the Court of First Instance to be the owner.
        (3) If on an application under subsection (2) the Court of First Instance cannot ascertain who is the owner of the Seized Document the Court of First Instance may make such order as it thinks fit.
        (4) An order under subsection (2) or (3) does not affect the right of any person to take legal proceedings against any person in possession of a Seized Document for the recovery of the Document.
        (5) Any right to bring proceedings (as described in subsection (4)) may only be exercised within six months of the date of the order made under subsection (2) or (3).

      • 214. Certification of defaults

        (1) If a person other than the Investigator (the "Defaulter") fails to comply with a requirement imposed on him under this Part the person imposing the requirement may certify that fact in writing to the Court of First Instance.
        (2) If the Court of First Instance is satisfied that the Defaulter failed without reasonable excuse to comply with the requirement, it may deal with the Defaulter (and in the case of a Body Corporate, any Director or other Officer) as if he were in contempt.
        (3) A person who knows or suspects that an investigation is being or is likely to be conducted under this Part shall not knowingly —
        (a) falsify, conceal, destroy or otherwise dispose of a Document which he knows or suspects is or would be relevant to such an investigation; or
        (b) cause or permit the falsification, concealment, destruction or disposal of such a Document.
        (4) A person shall not, in purported compliance with a requirement imposed on him under this Part —
        (a) provide information which he knows to be false or misleading in a material particular; or
        (b) recklessly provide information which is false or misleading in a material particular.
        (5) A person shall not intentionally obstruct the exercise of any rights conferred by an order under section 212.

    • Cooperation, assistance and support to Non-Abu Dhabi Global Market Regulators

      • 215. Regulator's right to co-operate with others

        (1) The Regulator may take such steps as it considers appropriate to co-operate with other persons (whether in the Abu Dhabi Global Market or elsewhere) who have functions —
        (a) similar to those of the Regulator; or
        (b) in relation to the prevention or detection of Financial Crime.
        (2) Co-operation may include the sharing of information which the Regulator is not prevented from disclosing.

      • 216. Exercise of power in support of Non-Abu Dhabi Global Market Regulator

        (1) The Regulator's Own-Initiative Powers may be exercised in respect of an Authorised Person at the request of, or for the purpose of assisting, a Non-Abu Dhabi Global Market Regulator.
        (2) If a request to the Regulator for the exercise of its Own-Initiative Powers has been made by a Non-Abu Dhabi Global Market Regulator, the Regulator must, in deciding whether or not to exercise those powers in response to the request, consider whether it is necessary to do so.
        (3) In deciding whether or not to do so, in any case in which the Regulator does not consider that the exercise of its Own-Initiative Powers is necessary, it may take into account in particular —
        (a) whether in the country, territory or jurisdiction of the Non-Abu Dhabi Global Market Regulator concerned, corresponding assistance would be given to the Regulator;
        (b) whether the case concerns the breach of a law, or other requirement, which has no close parallel in the Abu Dhabi Global Market or involves the assertion of a jurisdiction not recognised by the Abu Dhabi Global Market;
        (c) the seriousness of the case and its importance to persons in the Abu Dhabi Global Market;
        (d) whether it is otherwise appropriate in the public interest to give the assistance sought;
        (e) whether it would further one or more of the Regulator's objectives.
        (4) The Regulator may decide not to exercise its Own-Initiative Powers, in response to a request made under subsection (1), unless the Non-Abu Dhabi Global Market Regulator concerned undertakes to make such contribution towards the cost of their exercise as the Regulator considers appropriate.

      • 217. Investigations etc. in support of Non-Abu Dhabi Global Market Regulator

        (1) At the request of a Non-Abu Dhabi Global Market Regulator, the Regulator may —
        (a) exercise the power conferred by section 201; or
        (b) exercise the powers conferred by section 205(1) or (2).
        (2) In deciding whether or not to exercise its Investigative Power, the Regulator may take into account in particular —
        (a) whether in the country, territory or jurisdiction of the Non-Abu Dhabi Global Market Regulator concerned, corresponding assistance would be given to the Regulator;
        (b) whether the case concerns the breach of a law, or other requirement, which has no close parallel in the Abu Dhabi Global Market or involves the assertion of a jurisdiction not recognised by the Abu Dhabi Global Market;
        (c) the seriousness of the case and its importance to persons in the Abu Dhabi Global Market;
        (d) whether it is otherwise appropriate in the public interest to give the assistance sought;
        (e) whether it would further one or more of the Regulator's objectives.
        (3) The Regulator may decide that it will not exercise its Investigative Power unless the Non-Abu Dhabi Global Market Regulator undertakes to make such contribution towards the cost of its exercise as the Regulator considers appropriate.
        (4) If the Regulator has Appointed an Investigator in response to a request from a Non-Abu Dhabi Global Market Regulator, it may direct the Investigator to permit a representative of the Non-Abu Dhabi Global Market Regulator to attend, and take part in, any interview conducted for the purposes of the investigation in accordance with section 206(1)(a).
        (5) A Direction under subsection (4) is not to be given unless the Regulator is satisfied that any information obtained by a Non-Abu Dhabi Global Market Regulator as a result of the interview will be subject to safeguards equivalent to those contained in Part 16.