Regulatory Update: Middle East Edition – March 2023
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1.0 DIFC AND DFSA LATEST DEVELOPMENTS
The amendments to the DFSA Rulebooks are as described below:
The following Rulemaking Instruments were created by the DFSA Board and will take effect on 1 April 2023:
- The Authorised Market Institutions module (“AMI”) instrument (no. 346) 2023
- The Anti-Money Laundering, Counter-Terrorist Financing and Sanctions Module (“AML”) Instrument (No. 347) 2023
- The General Module (“GEN”) rule-making instrument (No. 348) 2023
- The Prudential – Investment, Insurance Intermediation and Banking Business Module (“PIB”) rule-making instrument (No. 349) 2023
- The Prudential – Insurance Business (“PIN”) module (No. 350) 2023
- The Glossary Module (“GLO”) of the DFSA Rulebook (No. 351) 2023.
The updated modules stated above repeal and replace previous versions available on the DFSA website.
The following rulemaking instrument was created by the DFSA Board and will take effect on 1 January 2024:
- PIB Rule-Making Instrument (No. 352) 2023, which will repeal and replace the PIB module of the DFSA Rulebook.
The Notice of Amendments can be found here.
The Dubai International Financial Centre’s (“DIFC”) Data Protection Commissioner issued a Thematic Survey on 8 March 2023, the survey focuses on Article 28 of the Data Protection Law no. 5 of 2020 (“DIFC DP Law”). Article 28 relates to personal data sharing with government and law enforcement agencies.
The survey request is not part of an inspection or any kind of supervisory action, the DIFC hopes to gather an understanding of how it can better assist firms by providing guidance and tools.
Select firms will have received the survey via email and should submit their answers within 30 days of the email receipt via the link on the email.
On 21 March 2023, the DIFC announced the launch of a venture building platform named ‘DIFC Launchpad’ to help grow the innovative start-ups in the region and elevate Dubai to one of the top four global financial centres as part of the Dubai Economic Agenda (“D33”).
Almost 200 new enterprises are expected to be supported by the DIFC Launchpad, which also hopes to generate over 8,000 new employment opportunities and over AED2Bn in venture financing.
The launch event highlighted the vital role that FinTech and innovation companies play in Dubai’s economy and the ways in which DIFC, and its partners are fostering the sector’s expansion. The DIFC FinTech and innovation industry saw companies raise over US$600Mn (AED2.2Bn) in 2022 alone. The number of FinTech and innovation enterprises operating out of the DIFC increased by 291 over the course of the previous year, bringing the total to 686.
The full article can be found via this link.
The Dubai Sustainable Finance Working Group (“DSFWG”) was established in July 2019. Since its founding, the organisation has been implementing environmental, social, and governance best practice throughout Dubai’s financial industry.
The DSFWG and Dubai Financial Market (“DFM”) have released three new papers with the goal of assisting UAE companies in becoming more resilient to the effects of climate change and achieving Net Zero economic growth.
The reports include:
- a white paper on the topic of ‘Unlocking the Potential of ESG Innovation in the UAE and Across the Globe’
- Net Zero Guide
- Sustainability-Linked Loans Guide.
The reports offer organised methods for achieving net zero, ESG innovation, and lending that is sustainability-linked. In addition to 2023 being the UAE’s Year of Sustainability, these studies have been released as the UAE gets ready to host the COP28 climate change summit in Dubai in November. COP28 is the 28th session of the Conference of Parties.
The white paper seeks to close the gap in innovation that exists between the developed and developing worlds and covers the sustainable development goals. This acts as a step-by-step manual for businesses on how to successfully incorporate sustainable practices utilising data-driven frameworks and industry-driven initiatives.
To outline their net zero aspirations, businesses, financial institutions, and important sector players can use the Net Zero Guide as a road map. The guide serves as a high-level tool for creating sectoral decarbonisation strategies and provides sector-specific assistance for significant sectors in the UAE.
The Sustainable-Linked Loans Guide offers a method for any organisation seeking to raise sustainable-linked loans to meet their funding needs and advance their sustainability objectives. As businesses search for methods to hasten the adoption of their sustainability agendas by tying the conditions of their borrowing to performance against their sustainability objectives, sustainability-linked loans are in favour in the region.
Further details of the article and reports can be found here.
The DIFC issued a press release on 2 March 2023 in relation to the first finance summit focused on COP28. Over 500 professionals from the finance sector attended the first of a series of summits.
The event served as a platform to encourage proactive action in the industry to lead the charge on climate change and be at the forefront of accelerating the green transition as part of the DIFC-hosted Global Ethical Finance Initiative’s Path to COP28 program.
A-list speakers and participants from top financial service providers, banks, investment firms, and politicians discussed the sector’s COP28 goals as well as how to integrate best practice decision-making throughout their organisations during the event.
At the occasion, the results of the first-ever Global Islamic Finance Retail Banking Survey were presented, together with their implications for the UN Sustainable Development Goals (“SDG”). More than 2,000 customers responded to the poll, with interesting results:
- 90% of consumers of Islamic banks in a variety of markets believe it is crucial that their bank offer goods that are in line with the SDGs
- 96% of respondents stated that it is crucial for the financial products they buy to align with their personal principles and beliefs
- for financial goods that are in line with the SDGs, 87% are prepared to pay extra.
Further details of the article can be found here.
The DFSA published a warning on 26 March 2023 to the public and members of the financial services industry about a fraud in which the DFSA was misrepresented.
Scammers sent a letter titles ‘Annual Anti Money Laundering Tax’ to members of the public while posing as the DFSA.
The fraudulent letter:
- refers to extracts of DFSA administered legislation
- urges members of the public to work with a company named ‘CFI XP’ to make a clearance payment to the DFSA that is based on 15% of their portfolio worth
- asserts that the DFSA has authorised ‘CFI XP’
- declares that failing to pay will result in the immediate confiscation of the whole portfolio with ‘CFI XP’.
The DFSA’s name and a false logo were illegally utilised by fraudulent party, in an effort to give the scheme a legitimate appearance, without the DFSA’s consent.
The DFSA alerts that the DFSA:
- has not approved the firm ‘CFI XP’
- does not impose any taxes, including the anti-money laundering tax
- does not seize the personal holdings of the general population
- strongly urges that no transfers or contributions of money are made
- strongly urges that no replies are sent to any messages involved in the scam.
The DFSA has also released advisories and cautions against the typical sorts of consumer frauds. Please see the ‘how to avoid being scammed’ section of the DFSA website for more information on these scams.
Further details of the article can be found here.
2.0 ADGM AND FSRA LATEST DEVELOPMENTS
On 28 March 2023, the Financial Services Regulatory Authority (“FSRA”) of the ADGM, together with other members of the UAE Sustainable Finance Working Group (“SFWG”), issued a draft consultation on the ‘Principles for the Effective Management of Climate-Related Financial Risks’.
- The proposed principles include:
- oversight and responsibility of climate-related financial risk exposures
- incorporation of climate-related financial risk exposures into overall business strategy
- assigning climate-related financial risk management responsibilities within the organization
- incorporation of climate-related financial risks into risk management framework
- monitoring and reporting of climate-related financial risks
- incorporation of climate-related financial risks into capital and liquidity adequacy processes
- scenario analysis of climate-related financial risks
With the creation of the set of principles, the SFWG seeks to set the expectations for governance and risk management of climate-related financial risks. It is the expectation of the SFWG that following the release of the confirmed principles, firms will:
- establish and maintain appropriate oversight
- appropriately allocate responsibilities for risks
- integrate the principles within the processes and systems for:
- risk management framework
- capital and liquidity planning and
- scenario analysis exercises.
The deadline for firms to provide comments on the Consultation Paper is 1 May 2023.
You can read the Consultation Paper here.
The FSRA of the ADGM issued Consultation Paper No. 2 of 2023 on 30 March 2023, the Consultation Paper is on the topic of ‘Proposed Enhancements to Client Classification, Client Assets and Conduct Requirements’. The FSRA invites public feedback and comments on its proposed amendments to the:
- Conduct of Business Rulebook (“COBS”)
- General Rulebook (“GEN”)
- Glossary (“GLO”)
- Financial Services and Markets Regulations (“FSMR”)
The proposed changes include:
- Deemed Professional Clients
- moving single-family offices (“SFO”) from the ‘deemed professional’ category to the ‘assessed professional’ category, it should be noted that SFOs that satisfy additional ‘deemed professional’ Client requirements, such as having a balance sheet with more than US$20Mn in assets, will continue to be eligible for this status without the need for examination
- permitting regulated financial institutions, or businesses outside of the ADGM that engage in financial services activities, to fall under the category of ‘deemed professional’
- Assessed Professional Clients
- modification to the net asset requirement
- Service-based Professional Clients
- removing the service-based class of professional client
- Market Counterparties
- modifying COBS to make it clear that the market counterparty classification is a subset of the professional client classification.
Proposed client protection measures related to investment business include:
- mandating that an authorised person who offers investment advice disclose whether such advice was given on an independent basis
- mandating that financial instruments recommended by an authorised person be limited to those issued or provided by an entity having close links to the authorised person
- mandating that marketing material intended for retail clients include a warning that it is marketing material and not to be considered investment advice; and
- mandating that an authorised person who offers investment advice disclose whether such advice was given
- disclosure of itemised management and execution fees and charges in each periodic statement for a retail client, with a commitment to offer a more comprehensive breakdown of fees and costs at the client’s request
Client asset requirements
- clients must be made aware of the protections provided by the FSRA client assets regime
- reconciliations must be carried out periodically by individuals free from conflicts of interest
- both the Client and the FSRA must be informed of the results
- client assets must be identified, segregated, and placed with qualified third-party agents, who are initially and continually assessed and monitored as to their ability to provide ongoing and secure safeguarding of those assets.
Amendments to client money rules
- incorporating references to the obligations in relation to relevant money held by a payment service provider
- providing additional guidance on factors to consider when choosing a third-party agent
- differentiating the obligations placed on authorised persons who hold client money from those that merely control client money
- in the event of insolvency client money held in the authorized person’s name is acknowledged to be beneficially owned by the authorised person’s clients
- combining the concepts of a primary pooling event and a secondary pooling event to be considered as a pooling event, which would trigger the application of the client money distribution rules
- a ‘nil’ Client Money Auditor’s Report must be submitted yearly in line with GEN Rule 6.6.6 if the authorised person did not hold any client money on the date the audited financial statements were prepared.
Safe custody rules and resolution planning
- defining the requirements for companies that just manage client investments that the client holds in their own account in accordance with a mandate
- specifying the obligations of an authorised person who holds collateral on behalf of a client
- additional obligations that apply if an authorised person holds or controls client assets that are virtual assets in accordance with Chapter 17 of COBS
- prohibiting title transfer collateral agreements involving retail clients and introducing duties owed by authorised persons to professional clients who enter into such agreements.
The Regulated Activity of Providing Custody
- amending the FSMR by removing the reference to ‘other assets’ from the description of providing custody.
The deadline for providing comments on this proposal is 25 May 2023.
You can read the Consultation Paper here.
The Abu Dhabi Global Market (“ADGM”), ended 2022 with a number of noteworthy accomplishments, making it the fastest-growing international financial center in the region. The ADGM published results on 20 March 2023.
The ADGM has been aligned with Abu Dhabi’s economic objectives and vision thanks to a strong regulatory environment, bringing innovation, transformation, and diversification to a number of important sectors by utilising its strengths and showcasing impressive growth in the asset management industry, while also advancing initiatives for sustainable finance.
To increase efficiency, it upgraded its operational model, organisational structure, simplified procedures, and systems.
Some of the key achievements for the year 2022 were:
- ADGM’s assets under management climbed by 56%
- the staff count at ADGM Square increased by 29%
- the total number of active ADGM licenses increased by 30%
- a number of ADGM-based businesses, including Borouge, Burjeel Holdings, Bayanat AI, and Americana Restaurants, listed on the Abu Dhabi Stock Exchange in 2022, while Anghami completed its National Association of Securities Dealers Automated Quotations (“NASDAQ”) offering.
Further details of the report can be found here.
The launch of the Emirates Family Office Association in the ADGM was announced on 21 March 2023, this is a significant step, as this is the first family association in the UAE.
The Association is a non-profit organisation, with a mission to connect local and international family offices by providing a trusted platform for idea exchange, knowledge transfer, and exclusive networking. The association’s primary focus will be on preparing the next generation of family offices to navigate multigenerational wealth transfer.
During the launch event several Memorandums of Understanding (“MoU”) were signed, including those with the Association of Family Offices in Asia, Preqin, and UAE International Investors Council (“UAEIIC”).
Further details of the event can be found here.
3.0 MIDDLE EAST REGULATORY UPDATES
An announcement was made on 31 March 2023 relating to a collaboration between the UAE Securities and Commodities Authority (“SCA”) and law firm Morgan Lewis, which has resulted in the forthcoming release of the official guidance on marketing of foreign funds in the UAE mainland.
The announcement comes following the issuance of the new regulations in January 2023, and are part of a revamp of the SCA’s funds regime, with the aim of protecting UAE investors by reducing regulatory arbitrage and reviving the asset management sector in the UAE.
A summary of the announcement’s key points:
- Marketing of foreign funds in mainland UAE
- funds for professional investors: on a private-placement basis, funds domiciled anywhere outside of mainland UAE may be advertised to professional investors in mainland UAE
- funds for retail investors: the promotion of foreign funds to retail investors in mainland UAE is not permitted
- Registration of funds with the SCA
- the registration charge has been decreased from AED35,000 to AED12,000
- depending on the form of payment selected the expected processing time for the SCA to approve the application is five business days
- the applicant’s registration permission will be provided and sent immediately if the fee is paid online, if the fee is paid offline, the registration permission will be provided and delivered once payment confirmation is received
- registration renewal costs AED5,000, reduced from AED7,500
- foreign funds recognised by the SCA for marketing to private investors in the mainland UAE must meet minimum subscription requirements
- Exemptions, the following are excluded from having to register with the SCA or select a local promoter:
- regime for ADGM and DIFC fund passporting: there is no impact on the passporting regime, it may be utilised by fund managers based in the DIFC and ADGM to promote funds to professional and retail investors in mainland UAE
- solicitation in reverse: reverse solicitation is still permitted between a mainland UAE investor and promoters/distributors outside of mainland UAE, and by DIFC/ADGM fund managers in relation to funds domiciled in their respective jurisdictions – documentary proof must be provided by the foreign fund manager and promoter
- exempt Professional Investors: marketing to a select group of professional investors, such as federal, state, or local governments, institutions, and agencies, as well as businesses wholly owned by any of them, is exempt from registration and local promoter requirements
- listed funds: according to the Rulebook, specified funds are exempt from the marketing limitations.
- Transitional arrangements with respect to retail funds marketed prior to 1 February
- retail funds: foreign funds may continue to be promoted to retail investors in mainland UAE until 30 June 2023, or the expiration of the promotion contract, provided that they (a) were registered with the SCA for retail promotion prior to the new regulations and (b) are subject to a binding promotion contract that extends beyond 1 February 2023. (whichever is earlier). Payment of prorated registration renewal costs is required for this.
- a foreign fund may also apply to the SCA for registration to market to professional investors if it has already registered with the SCA for marketing to retail investors, in this instance, the mainland is not required
- DIFC and ADGM
- foreign funds incorporated and managed in the DIFC/ADGM may contact their regulator through the passporting regime to be added to the passporting register, within a maximum of three business days SCA will certify the registration of the fund for promotion in mainland UAE
- certain requirements must be satisfied for retail marketing, such as the selection of a SCA-regulated custodian
- Instead of using the passporting regime, DIFC and ADGM funds may submit a request directly to the SCA to register for promotion to professional investors by a SCA-licensed promoter to carry out promotion activities in the UAE
Further details on the article can be found here.
On 23 March 2023 the Securities and Commodities Authority (“SCA”) announced that a MoU was signed between SCA and the Abu Dhabi initial public offerings (“IPO”) Fund.
The MoU is based on their joint desire to establish a mechanism for cooperation in the development of a general framework for IPOs.
The framework is to be created for the purpose of increasing the number of IPOs, providing domestic capital markets with greater depth, and promoting sector diversification, as well as supporting the financial stability of the national economy.
Further details on the article can be found here.
On 15 March 2023 the Central Bank of the United Arab Emirates (“CBUAE”) announced that in order to improve collaboration and jointly foster innovation in financial goods and services, the CBUAE and the Reserve Bank of India (“RBI”) signed a MoU.
In accordance with the agreement, the two central banks will work together on a number of innovative projects, particularly those involving Central Bank Digital Currencies (“CBDC”) and the investigation of interoperability between the CBUAE and RBI CBDCs.
To promote cross-border CBDC transactions for commerce and remittances, CBUAE and RBI will work together to perform proof-of-concept (“PoC”) and pilot(s) of a bilateral CBDC bridge. The agreement also covers the topics of technical cooperation and information exchange on fintech-related topics.
The agreement is anticipated to support further digital innovation activities between the CBUAE and the RBI as well as develop cooperative CBDC experimentation between the two banks. It is anticipated that this bilateral testing of CBDC cross-border use cases would lower costs, improve the effectiveness of cross-border transactions, and strengthen economic connections between India and the UAE.
Further details of the MoU can be found here.
To officially launch the execution of the CBUAE CBDC strategy, one of the nine initiatives of the CBUAE’s Financial Infrastructure Transformation (“FIT”) Plan, the CBUAE staged a signing ceremony on 23 March 2023, in collaboration with G42 Cloud and R3.
G42 Cloud and R3 have been engaged by the CBUAE as the infrastructure and technology providers working on the CBDC implementation.
CBDC is a risk-free digital currency that the CBUAE has created and guaranteed. It may be used as a store of value as well as a safe and effective method of payment. CBDC will support the UAE’s digital transformation by addressing the challenges associated with domestic and international payments, promoting financial inclusion, and accelerating the transition to a cashless society.
The CBUAE wants to ensure that the UAE is prepared to connect its payment infrastructure with a future in which both financial and non-financial activity may be tokenised.
The first phase of CBUAE’s CBDC Strategy, which is anticipated to be completed within the next 12 to 15 months, is composed of three main pillars:
- the soft launch of mBridge to facilitate real-value cross-border CBDC transactions for the settlement of international trade
- proof-of-concept work for bilateral CBDC bridges with India, one of the UAE’s top trading partners
- proof-of-concept work for domestic CBDC issuance covering wholesale and retail usage.
Further details of the launch can be found here.
The Federal Office of Economics Affairs and Export Control in Germany and the European Union-P2P collaborated to arrange the workshop on export controls for dual-use commodities. The workshop took place on 15 March 2023 and was held by the Executive Office for Control and Non-Proliferation (“EOCN”).
Present at the event were attendees from Republic of Iraq government organisations, involved in the regulation of the trade in goods. The two-day workshop is one of a number of events held by the EOCN to share experiences and best practices. During the event, the UAE confirmed its support for all national, regional, and international efforts and initiatives to achieve anticipated compliance with export controls.
The workshop sessions featured beneficial input on export control measures from officials and experts, as well as an exchange of experiences and best practices in this area. These contributions helped the participating institutions raise their level of knowledge and develop their ability.
Further details on the workshop can be found here.
4.0 INTERNATIONAL UPDATES
The report aims to highlight the ransomware attacks which are targeting people, companies, and governmental organisations worldwide, and how we can work to successfully stop them. The assaults are constantly on the increase and have the potential to disrupt vital infrastructure and services as well as have disastrous effects on people, organisations, and businesses.
This FATF research examines the techniques that criminals employ in their ransomware assaults, as well as the methods used for payments and money laundering. Criminals use virtual assets virtually entirely and have easy access to them from service providers all over the world. Thus, jurisdictions with ineffective or non-existent AML/CFT regulations are of concern.
The research makes many recommendations for steps that nations might take to more successfully stop money laundering connected to ransomware. Given the global nature of ransomware attacks and associated money laundering, this involves enhancing and utilizing already-existing international collaboration structures. Authorities must also acquire the knowledge and equipment needed to swiftly gather crucial data, track almost instantaneous financial activities, and retrieve virtual assets before they vanish. Authorities must expand their cooperation beyond their typical colleagues to include cyber-security and data protection agencies due to the multidisciplinary nature of ransomware.
The FATF also completed a list of possible risk indicators to assist banks, financial institutions and virtual asset service providers (“VASP”) to identify suspected ransomware-related activity.
Further details on the publication can be found here.
On 10 March 2023 the Financial Action Task Force (“FATF”) announced the release of a publication titled ‘Guidance on Beneficial Ownership of Legal Persons’. The guidance aims to assist both the public and private sectors in implementing necessary measures in relation to shell companies, so that they are no longer a safe haven for illicit proceeds.
The guidance is centred around revisions to recommendation 24, and the introduction of tougher global beneficial ownership standards, by requiring countries to ensure that relevant authorities have access to sufficient information on the true owners of companies. The information is required to be adequate, accurate and up-to-date.
Direction is provided in relation to the multi-pronged approach, this approach has been shown to be more effective in preventing the misuse of legal persons for criminal purposes and ensuring transparency of beneficial ownership than countries who opt for using a single approach.
Countries will be able to use the guidance to assist them with implementing appropriate measures in line with recommendation 24, and to assess and mitigate the money laundering and terrorist financing risks associated with foreign companies to which their countries are exposed.
The guidance document can be found here.
The Executive Office of the Committee for Goods and Materials Subject to Import and Export Control (“CGMSIEC”) has updated the UN Security Council (“UNSC”) sanctions list. The updates are as follows:
- 1 March 2023
- 1 individual removed
- 9 March 2023
- 2 individuals removed
- 15 March 2023
- 102 entries amended to mention ‘review pursuant to Security Council resolution 2610 (2021) was concluded on 8 November 2022.’
- 27 March 2023
- 1 individual removed.
Firms are reminded to monitor geopolitical events and any resulting updates to the international sanctions lists so that they can assess their exposure to sanctioned individuals and entities. Sanction contraventions must be reported to the relevant authorities without delay, and regulators will expect to be notified of any sanctions matters that may result in reputational consequences for the firm.
The updated sanctions list can be found here.
5.0 ENFORCEMENT ACTIONS
On 20 March 2023, the ADGM issued a Final Notice under Section 936 of the Companies Regulations 2020 (“CR 2020”) against Half Moon Investments Ltd (‘Half Moon’) and its present directors for failing to submit annual accounts and reports by the deadline set out under the law that is administered by the Registration Authority (“RA”).
Notwithstanding time extensions given by the RA to Half Moon, the RA concluded that Half Moon and its three current directors were in default for failing to file their financial year ending 31 December 2021 accounts and reports by the deadline.
The RA imposed the following monetary fines:
- US$8,000 on Half Moon
- US$10,000 on each of Half Moon’s directors.
Under ADGM’s company regulations and in accordance with international standards concerning the provision of accounts, filing accounts and reports with the RA is a crucial legal requirement for ADGM registered companies. To safeguard the interests of ADGM and its direct and indirect users, the RA requires its applicable registered firms to submit annual accounts and reports within the time frames established by the RA’s managed law.
Further details of the final notice can be found here.
On 14 March 2023, the ADGM published details of financial penalties against an ADGM licensed company service provider (“CSP”) and the firm’s Account Manager.
For a variety of violations of RA-mandated laws, Amicorp Advisory Limited (“Amicorp”), and its former account manager Dhanishta Jhamna-Chutooree have been subject to enforcement procedures by the Registration Authority (“RA”) of the ADGM.
It was discovered that Amicorp submitted a forged document to the RA on behalf of its customer in an incorporation application, via the account manager. Moreover, Amicorp neglected to keep up with necessary compliance procedures, systems, and controls to adequately supervise its workers.
As the RA started its inquiry, it was discovered that the account manager, who was working for Amicorp at the time, had forged the document supplied to them, destroyed important evidence, and given false information to the RA investigators.
The RA assessed the following monetary fines:
- Amicorp was fined US$18,000 for giving the RA false information and violating the CSP conditions of licence, and the account manager was fined; and
- US$21,000 for giving the RA false information, destroying a document that was important to an investigation, and giving false information in ostensible compliance with a demand made by the RA investigators.
Receiving a CSP license from ADGM entails a number of duties and commitments to the RA and the CSPs clients. The RA fully anticipates that ADGM licensed CSPs, including Amicorp, will guarantee that the information they give to the RA is accurate and honest and will have the necessary procedures and controls in place to prevent the creation of or submission of fraudulent papers to the RA. Moreover, CSPs are required to take all necessary measures to guarantee that their staff members engage with the RA in an honest and cooperative manner.
Further details of the ADGM announcement and notices can be found here.