1. Interpretation

For the purposes of this Schedule “Relevant Person” means a Person in relation to whom the AFSA exercises or proposes to exercise a power.

2. Application of Schedule

This Schedule applies to the AFSA, subject to paragraph 3, if a provision of these Regulations or of Rules made thereunder requires or enables the AFSA to make a decision.

3. Decisions to which procedures do not apply

(1)      The procedures in this Schedule (other than sub-paragraph (2)) do not apply to a decision by the AFSA:

1. (a)to revoke a direction, or withdraw requirement, restriction or prohibition; or
2. (b)to withdraw a condition or restriction imposed in relation to a Licence, registration, authorisation or approval; or
3. (c)in relation to a Person, if the Person has requested, or consented in writing to, the making of the decision; or
4. (d)to give, revoke or vary a direction under section 9.

(2)      In the cases referred to in sub-paragraph (1), the AFSA must notify the Person in writing of the decision and the date on which it is to take effect. (3) If the AFSA makes a decision in relation to a Person after a determination of the AIFC Court relating to the conduct of the Person, the requirement to give the Person an opportunity to make representations under paragraph 4 or 6 (as applicable) does not apply in relation to findings of fact of the AIFC Court.

4. Opportunity to make representations before a decision

(1) If the AFSA proposes to make a decision to which this Schedule applies, it must first give the Relevant Person:

• (a) a written notice (a “Preliminary Notice”) containing the information in sub-paragraph (2); and
• (b) an opportunity to make representations to the AFSA in person or in writing concerning the decision the AFSA proposes to take.

(2) The Preliminary Notice must:

• (a) specify the proposed decision;
• (b) specify the reasons for that proposed decision, including any proposed findings of fact;
• (c) include a copy of the relevant materials which were considered in making the proposed decision;
• (d) inform the Person that they may make representations to the AFSA concerning the proposed decision; and
• (e) specify how and by when any representations may be made.

(3) For the purposes of sub-paragraph (2)(c), the AFSA:

• (a) may refer to materials (instead of providing a copy) if they are already held by the Relevant Person or are publicly available; and
• (b) is not required to provide material that is the subject of legal professional privilege.

(4) If the AFSA does not receive any representations within the period specified in the Preliminary Notice, it may proceed to make the proposed decision and give the Person a Decision Notice in accordance with paragraph 5.

(5) If the AFSA receives representations within the period specified in the Preliminary Notice, it must consider the representations in making the decision.

(6) If, after considering the representations, the AFSA decides:

• (a) to make the proposed decision (either as proposed or with variations), then it must give the Person a Decision Notice under paragraph 5; or
• (b) not to make the proposed decision, then it must as soon as practicable notify the Person in writing that it has decided not to make the decision.

(7) If the AFSA concludes that any delay likely to arise as a result of complying with the procedures in this paragraph would be prejudicial to the interests of direct or indirect users of financial services or otherwise prejudicial to the interests of the AIFC:

• (a) the requirements in sub-paragraphs (1) to (6) do not apply; and
• (b) the AFSA must provide the Person with an opportunity to make representations in accordance with the procedures in paragraph 6 after it has made the decision.

5. Decision Notice

(1) If the AFSA decides to make a decision to which this Schedule applies, it must, as soon as practicable, give the Relevant Person a written notice (a “Decision Notice”) specifying:

• (a) the decision;
• (b) the reasons for the decision, including its findings of fact;
• (c) the date on which the decision is to take effect;
• (d) if applicable, the date by which any relevant action must be taken by the Person; and
• (e) the Person’s right to seek review of the decision by the AIFC Court.

(2) The Decision Notice must include a copy of the relevant materials which were considered in making the decision.

(3) For the purposes of sub-paragraph (2), the AFSA:

• (a) may refer to materials (instead of providing a copy) if they are already held by the Relevant Person or are publicly available; and
• (b) is not required to provide material that is the subject of legal professional privilege.

6. Opportunity to make representations after a decision

(1) If this paragraph applies under paragraph 4(7), the AFSA must:

• (a) provide the Relevant Person with an opportunity to make representations to the AFSA in person or in writing within a period of 14 days, or such further period as may be agreed, from the date on which the Decision Notice is given to the Person under paragraph 5; and
• (b) inform the Relevant Person in the Decision Notice that they may make representations concerning the decision and specify how and by when any representations may be made.

(2) If the AFSA does not receive any representations within the period specified in the Decision Notice, it must inform the Person in writing that the decision is to stand (subject to any right of the Person to refer the matter to the AIFC Court for review).

(3) If the AFSA receives representations within the period specified in the Decision Notice, it must consider the representations in deciding whether to confirm, withdraw or vary the decision.

(4) If after considering representations received the AFSA decides:

• (a) to confirm the decision, it must as soon as practicable notify the Person in writing that the decision is to stand (subject to any right of the Person to refer the matter to the AIFC Court for review); or
• (b) to withdraw the decision, it must as soon as practicable notify the Person in writing that the decision has been withdrawn; or
• (c) to vary the decision, it must as soon as practicable give the Person an amended Decision Notice under paragraph 5.

(5) For the avoidance of doubt, the opportunity to make representations under this paragraph does not arise:

• (a) if the Person was given a Preliminary Notice and the opportunity to make representations under paragraph 4 before the decision was made; or
• (b) in respect of an amended Decision Notice given under sub-paragraph (4)(c).

7. Third party rights

(1) If any of the reasons contained in a Decision Notice relate to a matter which:

(a) identifies a Person (a “Third Party”) other than the Person to whom the Decision Notice is given; and

(b) in the opinion of the AFSA, is prejudicial to the Third Party,

the AFSA must give a notice or a copy of the Decision Notice, or extracts of its relevant parts, to the Third Party.

(2) The notice copied to the Third Party must specify a reasonable period within which the party may make representations to the AFSA.

(3) A copy of the notice is not required to be given to a Third Party if the AFSA considers it impractical to do so.

(4) The Third Party may refer to the AIFC Court:

(a) the decision in question or any aspect of the decision, so far as it relates to the party; or

(b) any opinion expressed by the AFSA in relation to the party.

(5) The copy of the Decision Notice must advise the Third Party’s right to make a reference to the AIFC Court.

(6) If the Third Party refers the matter to the AIFC Court, the Third Party may apply to the AIFC Court to stay the action specified in the Decision Notice.

(7) The Third Party must be given a copy of any discontinuance applicable to the proceedings to which the Decision Notice relates.