Part 19 Part 19 Regulatory Committee, Appeals Panel and Disciplinary Measures
Chapter 1 Chapter 1 The Regulatory Committee
224. Structure of the Regulatory Committee(1) The Board establishes the Regulatory Committee, which shall be composed of a maximum of seven members appointed by the Board for fixed terms. The Board may reappoint the members for further fixed terms.(2) All the members of the Regulatory Committee appointed by the Board in accordance with subsection (1) shall be independent of the Board and the Regulator.(3) The Board shall not remove any member of the Regulatory Committee without Just Cause.
225. Jurisdiction and Role of the Regulatory Committee(1) Any decision made under these Regulations by the Regulator which may affect the rights or liabilities of a person or otherwise adversely affect the interests of a person, may be referred by that person to the Regulatory Committee for a full merits review.(2) A reference under subsection (1) shall be commenced —(a) within 30 days of the relevant decision of the Regulator; or(b) within such further period not exceeding 30 days as may be approved by the Regulatory Committee where it is satisfied that such approval is appropriate in the circumstances.(3) In the case of an exercise of the power under section 111, the referral may be made by the Fund Manager and the Trustee of the Public Fund concerned or either of them, in addition to the Public Fund.(4) The Regulatory Committee has power to do whatever it deems necessary for or in connection with, or reasonably incidental to, the performance of its functions.(5) The Regulator may refer an executive decision to the Regulatory Committee for determination if it considers it appropriate to do so.(6) The Regulatory Committee may adopt any procedures or practices governing the commencement, hearing and determination of references made to it.(7) Proceedings of the Regulatory Committee shall be heard in private, unless the Regulatory Committee decides otherwise.
Amended on (13 January, 2020).
226. Powers of the Regulatory Committee to hear and determine a reference(1) Upon receipt of a notice of a reference falling within the jurisdiction of the Regulatory Committee, the Chairman of the Regulatory Committee shall, without undue delay select a panel of at least three members of the Regulatory Committee, one of whom may be its Chairman, to exercise the powers and perform the functions of the Regulatory Committee to hear and determine the reference.(2) For the purposes of hearing and determining a reference, the Regulatory Committee may —(a) stay the decision of the Regulator to which a reference relates and any related steps proposed to be taken by the Regulator until the Regulatory Committee has determined the reference;(b) consider any information relating to the decision of the Regulator to which the reference relates, whether or not such information was available to the Regulator at the material time;(c) receive and consider any information or Documents; and(d) determine the manner in which such information or Documents are received by the Regulatory Committee.(3) At the conclusion of a reference, the Regulatory Committee may —(a) dismiss the reference;(b) determine what, if any, is the appropriate action for the Regulator to take; and(c) remit the matter to the Chief Executive with such directions, if any, as the Regulatory Committee considers appropriate to give effect to its determination, save that such directions may not require the Regulator to take any step which it would not otherwise have power to take.(4) Subject to section 228(1) the Regulator must act in accordance with the determination of, and any direction given by, the Regulatory Committee.(5) A certificate that purports to be signed by the Chairman or officer of the Regulatory Committee and which states that the Regulatory Committee on a specified day made a specified determination or made a specified finding of fact, is in any proceedings before the Court, where relevant —(a) conclusive evidence of the determination of the Regulatory Committee made on that day; and(b) prima facie evidence of the relevant finding of fact.
Chapter 2 Chapter 2 The Appeals Panel
227. Structure of the Appeals Panel(1) The Board —(a) establishes the Appeals Panel and shall appoint up to a maximum of seven persons for fixed terms to serve as the President and other members of the Appeals Panel; and(b) may reappoint the President or any of the members for further fixed terms.(2) The Appeals Panel shall be composed of members who —(a) are independent of each of the Board, the Regulator, the Regulatory Committee, the Courts and any other Director, officer or employee of any Abu Dhabi Global Market authority or any other body established under the ADGM Founding Law; and(b) have relevant qualifications, expertise and experience in the regulatory aspects of financial services and related activities.(3) The Appeals Panel shall have a President.(4) The Board shall not remove any member of the Appeals Panel without Just Cause.
228. Jurisdiction and Role of the Appeals Panel(1) Any decision, order or direction made by the Regulatory Committee in accordance with section 225 may be appealed by the Regulator or by the person against whom such decision, order or direction was made, to the Appeals Panel for a full merits review.(2) The Appeals Panel has jurisdiction to do as it deems necessary for, or in connection with, or reasonably incidental to, performing its functions and exercising its powers conferred for the purposes of this Chapter, including the giving of directions as to practice and procedure to be followed by the Appeals Panel in the hearing and/or determination of appeals of decisions, orders or directions of the Regulatory Committee.(3) The President of the Appeals Panel may establish one or more sub-panels to exercise the jurisdiction and perform the role of the Appeals Panel.(4) The President of the Appeals Panel, or the head of a sub-panel established pursuant to subsection (3), may make any procedural order or order granting interim relief that the Appeals Panel has jurisdiction to make.(5) For the purposes of an appeal made under subsection (1), the President of the Appeals Panel or the head of a sub-panel established pursuant to subsection (3) —(a) may appoint one or more persons, who shall be independent and an expert in their field, to assist the Appeals Panel (or sub-panel (as the case may be)) in deciding any of the issues arising in the appeal, including assistance in the examination of the parties' witnesses; and(b) shall provide the parties with an opportunity to make submissions on the expert's assistance and shall record in its decision the issues on, and the extent to, which such assistance was relied upon by the Appeals Panel (or the sub-panel (as the case may be)).(6) The Appeals Panel may make rules of procedure governing the commencement, hearing and determination of any appeal under this Chapter, including rules as to —(a) evidence;(b) the manner in which the Appeals Panel's powers may be exercised, having regard the limits of the Appeal Panel's jurisdiction;(c) the manner in which conflicts of interest of members of the Appeals Panel (or any sub-panel (as the case may be)) may be prevented;(d) the manner in which an Appeals Panel appointed expert may provide assistance to the Appeals Panel;(e) notification to the Chief Executive of the commencement of an appeal under this Chapter;(f) notification to the Chief Executive and to the Chairman of the Regulatory Committee of an application for judicial review of a decision of the Appeals Panel (or sub-panel (as the case may be)) to the Court of First Instance pursuant to the Courts, Civil Evidence, Judgments, Enforcement and Judicial Appointments Regulations 2015; and(g) whether, and if so, the manner in which, the Chief Executive may appear and be heard in an appeal before the Appeals Panel.(7) Proceedings and decisions of the Appeals Panel shall be heard and given in public unless —(a) the Appeals Panel hearing a matter orders otherwise; or(b) the rules of procedure of the Appeals Panel provide otherwise.(8) Proceedings before the Appeals Panel shall be determined on a balance of probabilities.(9) A decision of the Appeals Panel may be taken by a majority.(10) An application for judicial review of a decision of the Appeals Panel may be made to the Court on the grounds that the decision is wrong in law or is in excess of the Appeal Panel's jurisdiction.
229. Powers of the Appeals Panel to hear and determine proceedings(1) The Appeals Panel may, for the purposes of any proceedings commenced under section 228 —(a) stay the decision of the Regulator to which the appeal relates and any related steps proposed to be taken by the Regulator until the Appeals Panel has heard and determined the appeal;(b) consider any evidence relating to the decision of the Regulatory Committee to which the appeal relates, whether or not such evidence was available to the Regulatory Committee at the material time;(c) receive and consider any material by way of oral evidence, written statements or Documents, even if such material may not be admissible in evidence in civil or criminal proceedings in a court of law;(d) by notice in writing require a person to attend before it at any sitting and to give evidence and produce any item, record or Document in his possession relating to the subject matter of the proceedings;(e) administer oaths;(f) examine or cause to be examined on oath or otherwise a person attending before it and require the person to answer truthfully any question which the Appeals Panel considers appropriate for the purposes of the proceedings;(g) order a witness to provide evidence in a truthful manner for the purposes of the proceedings by sworn statement;(h) order a person not to publish or otherwise disclose any material disclosed by any person to the Appeals Panel;(i) stay the proceedings on such grounds and on such terms and conditions as it considers appropriate having regard to the interests of justice; and(j) exercise such other powers or make such other orders as the Appeals Panel considers necessary for or ancillary to the conduct of the proceedings or the performance of its functions.(2) At the conclusion of any proceedings commenced under section 228, the Appeals Panel may do one or more of the following —(a) exercise any of the powers of the Regulator or the Regulatory Committee under these Regulations;(b) make an order requiring a party to the appeal to cease and desist from any contravention of these Regulations;(c) make an order requiring the party to the appeal to do an act or thing;(d) make an order prohibiting the party to the appeal from holding office at any Body Corporate carrying on business in the Abu Dhabi Global Market; or(e) make an order requiring a party to the appeal to pay a specified amount, being all or part of the costs of the proceedings, including those of any party to the proceedings. Costs ordered to be paid under this subsection shall be enforceable as a civil debt.(3) Upon making its decision, the Appeals Panel must without undue delay inform each party to the proceeding in writing of —(a) such decision and the reasons for such decision, including its findings on material questions of fact and identifying the evidence or other material on which those findings were based;(b) the date on which the decision is to take effect; and(c) where applicable, the date by which payment of any fine, restitution or compensation must be made.(4) A certificate that purports to be signed by the President or officer of the Appeals Panel and states that the Appeals Panel on a specified day made a finding that a specified person has committed a contravention of a specified provision of these Regulations or made a specified finding of fact, is in any proceedings before the Court, where relevant —(a) conclusive evidence that the person was found by the Appeals Panel on that day to have contravened the relevant provision;(b) prima facie evidence that the person contravened that provision; and(c) prima facie evidence of the relevant fact.
230. Enforcement(1) A Person commits a contravention of these Regulations if he, without reasonable excuse —(a) fails to comply with an order, notice, prohibition or requirement of the Appeals Panel under section 229;(b) having been required by the Appeals Panel under section 229 to attend before the Appeals Panel, leaves the place where his attendance is so required without the permission of the Appeals Panel;(c) hinders or deters any person from attending before the Appeals Panel, giving evidence or producing any item, record or Document, for the purposes of any proceedings commenced under section 228;(d) threatens or causes any loss to be suffered by any person who has attended before the Appeals Panel, on account of such attendance; or(e) threatens or causes any loss to be suffered by any member of the Appeals Panel or any person assisting the Appeals Panel at any time on account of the performance of his functions in that capacity;(f) engages in conduct, including without limitation the —(i) destruction of Documents; or(ii) giving of information that is false or misleading;that is intended to obstruct the Appeals Panel in the exercise of any of its powers.(2) A person who commits a contravention under subsection (1) is liable to a financial penalty and may be subject to censure of the Appeals Panel, including by means of publication of a written notice of censure.(3) Where a person fails to comply with an order, notice, prohibition or requirement of a Appeals Panel made under section 229, the Court may, on application of —(a) the Appeals Panel; or(b) the Chief Executive at the request of the Appeals Panel;make any order as it thinks fit to enforce such order, notice, prohibition or requirement.
Chapter 3 Chapter 3 Disciplinary measures
231. Public censure(1) If the Regulator considers that a person has committed a contravention of these Regulations, the Regulator may publish a statement to that effect.(2) After a statement under subsection (1) is published, the Regulator must send a copy of the statement to any person to whom a copy of the decision notice was given under section 248.
232. Financial penalties(1) If the Regulator considers that a person has committed a contravention of these Regulations, it may impose a penalty on him, in respect of the contravention, of such amount as it considers appropriate.(2) A penalty may not be imposed on any person under these Regulations in excess of the maximum amount that may be imposed under the ADGM Founding Law.
233. Suspending a Financial Services Permission or Approval or disqualification of auditors or actuaries(1) If the Regulator considers that an Authorised Person has committed a contravention of these Regulations, it may —(a) suspend, for such period as it considers appropriate, any Financial Services Permission which the person has to carry on a Regulated Activity; or(b) impose, for such period as it considers appropriate, such limitations or other restrictions in relation to the carrying on of a Regulated Activity by the person as it considers appropriate.(2) If the Regulator considers that an Approved Person has committed a contravention of these Regulations, it may suspend, for such period as it considers appropriate, any Approval of the performance by him of any Controlled Function to which the Approval relates.(3) If the Regulator considers that an auditor or actuary has committed a contravention of these Regulations, it may disqualify the auditor or actuary from being the auditor of, or (as the case may be), from acting as an actuary for, any Authorised Person, Recognised Body or Reporting Entity or any particular class thereof.(4) A suspension under this section may relate only to the carrying on of an activity or function in specified circumstances.(5) A suspension under subsection (2) may have effect in relation to part of a function.(6) A restriction under subsection (1)(b) may, in particular, be imposed so as to require the person concerned to take, or refrain from taking, specified action.(7) The Regulator may —(a) withdraw a suspension, restriction or disqualification; or(b) vary a suspension, restriction or disqualification so as to reduce the period for which it has effect or otherwise to limit its effect.(8) The power under this section may (but need not) be exercised so as to have effect in relation to all the Regulated Activities that the person concerned carries on.
234. Prohibition Orders(1) The Regulator may make a Prohibition Order if it appears to it that an individual is not a fit and proper person to perform any function in relation to a Regulated Activity carried on by an Authorised Person.(2) A Prohibition Order may relate to —(a) a Specified Regulated Activity, any Regulated Activity falling within a Specified description or all Regulated Activities; and(b) all Authorised Persons or all persons within a Specified class of Authorised Person.(3) An individual who performs or agrees to perform a function in breach of a Prohibition Order contravenes these Regulations.(4) In proceedings in relation to a contravention committed under subsection (3) it is a defence for the individual to show that he took all reasonable precautions and exercised all due diligence to avoid committing the contravention.(5) The Regulator may, on the application of the individual named in the order, vary or revoke a Prohibition Order that it has made.
Amended on (13 January, 2020).
235. Enforceable undertakings(1) The Regulator may accept a written undertaking from a person against whom action could be taken under these Regulations or any Rules made under these Regulations.(2) An undertaking under subsection (1) may incorporate an agreement by the person making the undertaking —(a) to pay any sum to any person (including the Regulator); and(b) to take remedial action.(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the Regulator.(4) If the Regulator 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 subsection (5).(5) 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 Regulator 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 damage as a result of the breach; or(d) any other order that the Court considers appropriate.