- DFSA Release CP 108 and Make Amendments to Legislation
- DFSA Fine Clements (Dubai) Limited
- DFSA Sign MoU with Jordan Securities Commission
- 13th DFSA in Action Publication Released
DFSA Release CP 108 and Make Amendments to Legislation
The Dubai Financial Services Authority (DFSA) has released Consultation Paper (CP) 108 which includes changes to capital requirements for managers of collective investment funds (CIF). The regulator noted that whilst the expenditure based capital minimum (ECBM) levels it has put in place for CIF managers are appropriate, the imposed base capital requirement (BCR) threshold in the Dubai International Financial Centre is higher than in its international counterparts. As such, the DFSA propose the following changes:
- BCR for public fund managers to be reduced to USD 140,000; and
- BCR for exempt or qualified investment fund managers to be reduced to USD 70,000.
Furthermore, the CP covers suggested amendments to the rules regarding reporting suspicions of market abuse. The DFSA explain that Authorised Firms are obliged to report suspicion of money laundering or terrorism financing activity and incidences of law/rule breaches by employees/Firms (i.e. market abuse) but there is no obligation to report suspicion of market abuse (this is currently an obligation for market operators and alternative trading systems only). As such, the DFSA propose to introduce an explicit requirement for Authorised Firms and Recognised Members to report suspicions of market abuse to the regulator.
Other miscellaneous changes in the CP have been drafted to provide clarity/amendments in light of previous updates to legislation.
Finally, amendments proposed in CP 103 and 105 have now come into effect. This includes changes to the insurance regime, the AML Annual Return deadline and stipulations for communications with the DFSA, further to the November and February editions of our Middle East Regulatory Updates.
DFSA Fine Clements (Dubai) Limited
The Dubai Financial Services Authority (DFSA) has fined Clements (Dubai) Limited (CDL) USD 85,191 following an investigation that was conducted with the Insurance Authority of the UAE. It found that the Firm had carried out 21 counts of prohibited insurance intermediation services between January and July 2014 by intermediating on contracts of insurance in a manner that fell outside of the scope of their licensing.
CDL is authorised by the DFSA to provide the Financial Service of Insurance Intermediation in the Dubai International Financial Centre (DIFC). In providing this service, CDL is restricted under DFSA Rules from intermediating a Contract of Insurance for a risk situated in the UAE unless the risk is situated in the DIFC or the contract is one of re-insurance.
The inquiry further revealed that the Firm did not have in place “adequate systems and controls...to detect, monitor and prevent such activities from occurring”. The DFSA noted that the Firm did self-report the breach once discovered – prompting the investigation – and took voluntary remedial steps (such as appointing a new SEO and Compliance Officer and MLRO), and this was reflected in the size of the monetary penalty.
DFSA Sign MoU with Jordan Securities Commission
The Dubai Financial Services Authority (DFSA) signed a Memorandum of Understanding (MoU) with the Jordan Securities Commission last month. It is further commitment by the UAE-based regulator to establish collaborative and mutually assistive relationships with other financial supervisors in the region.
13th DFSA in Action Publication Released
The Dubai Financial Services Authority (DFSA) released its 13th annual DFSA in Action publication last month. The text summarises regulatory developments made over the past year as well as other DFSA updates and activities including:
- Discussion over the DFSA’s strategic priorities which are sighted as being delivery, sustainability and engagement;
- Outlining the findings of the two thematic reviews undertaken (Trading Room Controls and Trade Finance) and the DFSA’s focus on financial technology; and
- Informing on the progress of the Tomorrow’s Regulatory Leaders Programme and how the Dubai Islamic Economy Initiative has been incorporated in the Dubai International Financial Centre.
If you would like to discuss these latest developments in more detail, please contact:
Carwyn Evans (CEvans@cclcompliance.com)
- SCA Mutual Fund Regulations 2016
- Draft Arranging and Promoting Regulations
- Saudi CMA Rules for Second Bourse
- New Equity Futures Market at NASDAQ Dubai
- New Stock Groupings for Muscat Securities Market
- FSRA Sign MoU with Financial Services Commission
- Oman CMA Sign MoU with Central Authority of Insurance of Iran
- mWallet Initiative MoU Signed by UAE Banks
SCA Mutual Fund Regulations 2016
In August 2016, the UAE Securities and Commodities Authority (SCA) enacted Board Decision No.9 of 2016 concerning the Regulations as to Mutual Funds (the Mutual Fund Regulations or MFR), which repeals SCA Board Decision No.37 of 2012 on the same subject. The new regulations are of great importance to offshore firms offering fund products within the UAE because certain exemptions, previously heavily relied upon, have now changed or been removed. As a result, offshore firms will be prompted into re-considering whether their approach to offering funds within the UAE can still fall under an exemption or whether they have to explore different avenues in order to offer their products.
Under the new regulations, the MFR are exempt in the following circumstances:
- The accumulation of money for the purposes of investment in a joint bank account, the conclusion of group insurance agreements, participation in social security, employee incentive programmes or investment plans associated with insurance contracts, unless such investments or collected money are directed from such plans to Mutual Funds;
- Reverse promotion, upon an initiative made by an investor in the UAE submitting an application to offer or buy specific units of foreign Mutual Funds out of the UAE, which is not based on promotion by the foreign fund, its promoters or distributors of its units, provided this is substantiated by the concerned entity; and
- The funds are established by federal or local governmental agencies, the companies fully owned by any of them or the foreign funds promoted to one of such entities.
In comparison to the old MFR, the latest exemptions are limited. The following exemptions no longer appear within the new MFR and should therefore no longer be relied upon when offering fund products within the UAE:
- Fund promotion of foreign funds to companies, institutions or entities whose main purpose, or one of their purposes, is making investment in securities, provided that dealing with such companies, institutions or entities should be limited to their own financial portfolios and not the portfolios of their clients; and
- Promotion of foreign funds targeting investment managers, provided that the authority to make and execute the investment decision should be vested with the investment manager.
A definition of 'Qualified Investor’ has been introduced by SCA but unfortunately, does not apply to the promotion of foreign funds, it only applies to the promotion of domestic private investment funds domiciled in the UAE and authorised by SCA (minimum subscription amount must be AED 180,000 (approximately GBP 37,260).
Therefore, if a firm intending to market a fund onshore, within the UAE, is not exempt from the MFR, then the fund can only be promoted if it is registered with SCA and distributed via a local promoter licensed by SCA. In such cases, the legal representative of the foreign fund must submit an application to the SCA to register the Fund on a prescribed form, together with the supporting documents and statements and enclosed with the prospectus and investment policy of the fund. One application fee of AED35,000 for foreign fund promotion approval will apply, as well as an annual renewal fee of AED7,500. There will be no fees upon notification of new distributors. The SCA might, however, ask to see the relevant distribution agreements once such a notification is submitted.
Draft Arranging and Promoting Regulations
Around the same time as the launch of the Mutual Fund Regulations (MFR) – see 2.1 above – the UAE Securities and Commodities Authority (SCA) released a draft of the newly proposed Arranging and Promoting (A&P) Regulations, which are intended to apply to arranging or promoting securities, including units in foreign and domestic funds. The regulations will likely have an impact on all financial service providers, including those within the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM).
The A&P regulations impose a general prohibition on the 'arranging' of financial services and/or the 'promotion' of financial products in the UAE, unless the financial services or products are approved by the SCA and/or the products to be promoted are listed, registered or recorded with SCA.
'Arranging' is defined by SCA as being where a locally licensed company acts as an intermediary between a person inside the UAE and entities licensed by the SCA or a Counterpart Authority (a regulatory authority that is an ordinary or associate member of IOSCO), to carry out and provide financial activities and services for the provision of their financial services, with respect to the trading of securities, commodities or derivatives contracts or foreign securities.
'Promoting' is defined as the marketing, distribution, advertisement or publication of any data, information or advertising materials relating to securities, foreign securities or commodities or derivatives contracts in any way or by any means with the aim of persuading a person inside the UAE to purchase any of the foregoing. Mutual funds are included within the definition of a foreign security.
Firms licensed by SCA would be required to submit an application to SCA for each product to be promoted in the UAE, with an approval or rejection issued by SCA within 30 days.
As with the MFR, exemptions to the A&P Regulations are intended to exist. The exemptions are as follows:
- The promotion of foreign securities if an application to list them on a market is submitted;
- The promotion of securities or commodities or derivatives contracts issued by federal or local government entities or by companies wholly owned by any such entities or the promotion of foreign securities for any of such entities;
- Reverse solicitation with an investor inside the state soliciting an offer or the purchase of specific foreign securities abroad but not upon a promotion effected by the foreign issuer, its promoters or distributors, which must be evidenced by the party concerned;
- Arranging and promotion between a parent company and a subsidiary, sister and affiliated company, related parties or associated group; and
- A broker as defined in the regulations on the listing and trading of commodities and commodities contracts.
The A&P Regulations include a substantial list of obligations that would apply to all firms engaging in the promotion of financial services. Specific obligations on the promotion of foreign funds also exist which are not referenced in the MFR, they include:
- The foreign fund must be registered in a foreign country and regulated by a Counterpart Authority;
- The foreign fund must not be exempt in its domicile of incorporation from any regulatory or supervisory rules or from the rules on preparing and issuing periodical reports; and
- If the foreign fund is to be promoted in a private placement to a qualified investor, it should either be licensed to be promoted in a public offering or a private placement in its country of origin.
Another important regulation to note is that, unless one of the general exemptions apply (such as a reverse solicitation), all securities, including units in which are unregulated or regulated by an authority that is not an IOSCO member, will not be capable of being promoted in the UAE or to UAE-based investors on a cross-border basis.
If the A&P Regulations are enacted as they have been drafted, it will have a massive impact on DIFC and ADGM firms undertaking arranging and promotional activity from within the UAE’s financial centres. A number of firms (industry and legal) are seeking further clarification from SCA on the proposed regulations as well as lobbying for certain exemptions. The position of the Dubai Financial Services Authority and the ADGM’s Financial Services Regulatory Authority is unclear. CCL will provide updates via our Middle East Regulatory Updates on a monthly basis.
Saudi CMA Rules for Second Bourse
Saudi Arabia plan to lower the listing requirements of its upcoming second bourse, in order to attract more small and medium-sized enterprises. Specifically, the Saudi Capital Markets Authority (CMA) is proposing that listing companies will:
- Require capital of just SAR 10,000,000 (10% of the capitalisation requirement for listing on the Tadawul);
- Be permitted to float a minimum of 20% of their shares (the minimum is 30% on the Tadawul); and
- Be permitted to have minimum of 50 public shareholders (the minimum is 200 on the Tadawul).
The regulator is also considering limiting direct investment to institutional investors only and has stipulated that companies listed on the second market would have to wait 2 years before they would be eligible to list on the main market.
Finally, the CMA has shared plans that it intends to develop a new index for blue-chip stocks on the Tadawul. It has not confirmed when this would be launched or how many companies would be featured but advised those chosen by a dedicated committee would have to submit their financial reports in both Arabic and English.
New Equity Futures Market at NASDAQ Dubai
NASDAQ Dubai has launched a new equity futures market. The single-stock futures platform offers customers unique portfolio-boosting tools like hedging and leveraging in futures or shares of UAE-listed companies. Other features of the new market are:
Allowing on margins of 10-30% of contract value;
1-month, 2-month and 3-month expiry dates offered; and
Open to regional, international, individual and institutional investors alike.
New Stock Groupings for Muscat Securities Market
Changes to the Muscat Securities Market came into effect last month. With a view of improving the bourse’s organisational structure and the financial performance of its listed companies, stock groupings have been reclassified into the following markets:
- Official Market;
- Parallel Market;
- Follow-up Market;
- Third Market;
- Securities and Sukuk Market; and
- Preferential Rights Market.
FSRA Sign MoU with Financial Services Commission
Abu Dhabi Global Market’s (ADGM’s) Financial Services Regulatory Authority (FSRA) signed a Memorandum of Understanding (MoU) with the Guernsey Financial Services Commission last month. The regulators intend to promote cross-border cooperation by establishing this agreement, which includes conditions for exchanging information.
Oman CMA Sign MoU with Central Authority of Insurance of Iran
The Oman Capital Markets Authority (CMA) signed a Memorandum of Understanding (MoU) with the Central Authority of Insurance of Iran last month. The agreement encourages the exchange of information and mutual cooperation between the two countries’ insurance sectors, to promote investment.
mWallet Initiative MoU Signed by UAE Banks
The mWallet platform Memorandum of Understanding (MoU) has now been signed by 16 partner banks in the UAE. The initiative, sponsored by the UAE Banks Federation, is an ambitious plan for the UAE to move towards a cashless future. The mWallet will be introduced in stages; first as a replacement to cash payments between parties, second for transfers and ultimately being made accessible to tourists visiting this country. It is hoped that this approach will allow for the financial inclusion of that portion of the population that do not use formal banking.
If you would like to discuss these updates in more detail, please contact:
Christopher Hobbs (CHobbs@cclcompliance.com)
- Iran Backtrack on FATF Action Plan
- SEBI Develop Commodities Market
- Asia Pacific Group on Money Laundering Updates
- Canada Updates
- IMF Raise Concerns Over SLPs
- Legislative Developments
- Nations Call for Sanctions Again Syria
- International Agreements Signed
- New Australian Taskforce Investigate Tax Related Crimes
- Crypto Currency Developments
- New Cybersecurity Certification Available from HKMA
Iran Backtrack on FATF Action Plan
Despite the Financial Action Task Force (FATF) having suspended some countermeasures that were imposed on the financial system of Iran, the country has refused to implement all of the conditions laid out in the action plan that it drafted with the international body. Specifically, ministers have taken issue with the steps to establish intelligence sharing procedures and the sanctioning of FATF defined terrorist groups or individuals. The country can expect to revert to its previously besmirched designation if it fails to meet these requirements.
SEBI Develop Commodities Market
The Securities and Exchange Board of India (SEBI) has released a circular which has aligned its commodities derivatives markets’ requirements with those of its equity markets. This includes an obligation for all commodities derivatives markets’ members to segregate their funds from funds owned by their clients. It will also affect the way in which commodity brokers communicate with their clients. The regulator now expects clients to receive physical, monthly statements and for brokers to set up a separate email to handle complaints, as well as including fundamental information on notice boards such as the firm’s logo, registration number, contract note and investor grievance redressal processes.
On the one year anniversary of SEBI becoming India’s commodity derivative market regulator (having merged with the Forward Markets Commission in September 2015), the regulator also announced that commodity exchanges will now be permitted to trade in options. There is no move to include index-based futures at the moment.
Finally, new products have been introduced to the list of commodities on which derivative contracts may be launched and traded, bringing the total to 91.
Asia Pacific Group on Money Laundering Updates
1) Bangladesh has been labelled as compliant with AML standards by the Asia Pacific Group on Money Laundering (APG) – a regional fraction of the Financial Action Task Force – who no longer consider the country to pose a significant money laundering risk.
2) APG conducted a mutual evaluation on Fiji and made the following recommendations which the government should now endeavour to implement:
Revise current laws such as the Financial Transaction Reporting Act, Proceeds of Crime Act, Public Order Act and the Extradition and Police Act;
Seek additional powers for law enforcement agencies and strengthen the resources of key government agencies such as the Fiji Police Force; and
Enhance preventative and supervisory measures, particularly for lawyers, accountants and real estate agents.
1) A four-year investigation by Canada’s Financial Transactions and Reports Analysis Centre (FINTRAC) revealed that 60% of the 823 real estate companies reviewed had ‘significant’ or ‘very significant’ deficiencies in their anti-money laundering (AML) and counter-terrorism financing systems.
In only 9 of these incidences did the regulator determine that a fiscal penalty was the appropriate response, though, with the remaining cases resulting in other enforcement action.
It has been agreed that increasing awareness in the real estate sector of an organisation’s AML obligations is the key to reversing this trend.
A report by the Financial Action Task Force similarly concluded that Canada’s real estate sector poses a genuine money laundering and terrorist financing risk, as do the country’s charitable and life insurance industries. The inter-governmental body also expressed that a reliance by these businesses on lawyers is equally concerning as their actions, on behalf of a client, are protected from law enforcement probing by solicitor-client privilege. Furthermore, lawyers are exempt from the necessity to report suspicious transactions to regulators. In whole, this means these individuals can move around money in trust accounts for clients, unsupervised.
2) The amount of undeclared cash that has been seized from Chinese citizens at Vancouver International Airport has increased by CAD 4,300,000 to a total of CAD 6,400,000 in 2015. This figure accounts for 72% of all the undeclared cash that was seized by this customs department. Given that recent investigations by FINTRAC have alluded to weak anti-money laundering frameworks in some real estate business in the region, the risk that this money could have been used/come from illicit sources is high and spurned continued calls for strong preventative controls.
IMF Raise Concerns Over SLPs
Scottish Limited Partnerships (SLPs) – firms which can be used to open bank accounts for anonymous owners – have been heavily criticised by the International Monetary Fund (IMF) for the money laundering and terrorism financing risk that they pose to the international financial system. SLPs have been identified as a popular choice to act as the ‘face’ of many eastern European arms rings and child abuse websites. The IMF has therefore strongly urged that SLPs need to be subject to the same KYC measures as other British companies and should reveal their ultimate beneficial owners. Without some kind of reporting obligation, these legal structures have largely no accountability and are a law unto themselves.
1) US Congress has passed a bill which enables family members of the 9/11 victims to sue the government of Saudi Arabia for sponsoring terrorism. It has already been claimed that the country failed to take measures to combat terrorism financing in the years leading up to the attacks and the new legislation would set a precedent allowing US courts to take actions against foreign states, rescinding the usual power of sovereign immunity.
2) The Cayman Islands is to present the new Non-Profit Organisations Bill 2016 before the legislative assembly in October.
The articles in the statute satisfy Financial Action Task Force requirements regarding the monitoring and identifying of non-profit organisations (NPOs), which is necessary to ensure that they are not being used to financial terrorism or launder money. The new legislation looks to establish a register and will obligate NPOs to have in place adequate internal counter-terrorism financing and anti-money laundering controls.
The followings bills will also be presented at the next legislative assembly meeting, working together with the Non-Profit Organisation Bill 2016 to improve financial regulation on the island:
- The Monetary Authority (Amendment) Bill 2016;
- The Auditors Oversight (Amendment) Bill 2016; and
- The Companies Management (Amendment) Bill 2016.
3) Zimbabwe’s finance minister has disclosed the efforts that are being made in the country to improve anti-money laundering (AML) and counter-terrorism financing (CTF) measures:
- Implementing the National Anti-Money Laundering and Combating
- Financing of Terrorism Strategic Plan for 2015-2018;
- Setting up an AML investigation unit; and
- Policy reviewing.
Nations Call for Sanctions Again Syria
The UK, France and Germany have all reached out to the United Nations Security Council (UNSC), imploring them to impose sanctions on Syria amid recent accounts that the regime had carried out chemical attacks (Talmenes, April 21st 2014 and Sarmin, March 16th 2015), an act which the international body deem as a war crime.
International Agreements Signed
1) The National Bank of Cambodia – Cambodia’s Financial Intelligence Unit (FIU) – and China’s Anti-Money Laundering Monitoring and Analysis Centre recently signed a Memorandum of Understanding (MoU) to collaboratively combat money laundering and terrorist financing. The agencies agreed to share financial information and cooperate with regards to training and technical assistance.
2) The Financial Intelligence Unit (FIU) of Sri Lanka and the Suspicious Transaction Reporting Office of Singapore signed a Memorandum of Understanding (MoU) last month. In order to strengthen anti-money laundering and counter-terrorism financing efforts, the agreements provides for the mutual exchange of relevant information.
3) An agreement has been made between the Inland Revenue Authority of Singapore and the Australian Taxation Office, facilitating the automatic exchange of financial account information between the two jurisdictions. The organisations have expressed that the stringent confidentiality legislation that is in place in both countries ensures that the information will be used strictly for authorised purposes.
New Australian Taskforce Investigate Tax Related Crimes
Following revelations in the Panama Papers leak, a task force was established in Australia and more than 100 tax payers are now being investigated by the Serious Financial Crime Taskforce (SFCT) for tax evasion, money laundering or other criminal financial activity.
Crypto Currency Developments
1) A new working group has been established to determine the role cryptocurrencies play in terrorism financing if any. As such, Europol, Interpol and the Basel Institute on Governance released a joint statement declaring their intention to put an end to money laundering with digital currencies.
2) In contrast to the outcome of the Miami case which was reported in the July edition of our Middle East Regulatory Update, a US district judge in Manhattan has ruled that “Bitcoins are funds within the plain meaning of that term. Bitcoins can be accepted as a payment for goods and services or bought directly from an exchange with a bank account. They, therefore, function as a medium of exchange and a means of payment”.
This judgement was passed when rejecting the defence bid of a Mr. Murgio (a Florida man accused of operating an unlicensed bitcoin exchange) who argued that bitcoin did not qualify as ‘funds’ and was, therefore exempt from applicable federal laws.
A definitive opinion on the matter is clearly still lacking and so the situation continues to be monitored.
New Cybersecurity Certification Available from the HKMA
The Hong Kong Monetary Authority (HKMA) is introducing a non-mandatory cyber security and anti-money laundering certification as part of its Enhanced Competency Framework. The programme is for local bankers and the regulator hopes that a more highly trained workforce can help the country to compete with the likes of Singapore, to become the region’s number one jurisdiction for FinTech.
If you would like to discuss these updates in more detail, please contact:
Nigel Pasea (NPasea@cclcompliance.com)
- Rise in SARs in Singapore
Rise in SARs in Singapore
The Singapore Commercial Affairs Department (CAD) received 30,511 suspicious activity reports (SARs) last year – almost double the figure reported in 2012. The CAD has claimed that the increase is a result of greater vigilance and awareness by reporting entities, legislative developments that have criminalised the laundering of proceeds of serious tax offences, a rise in inspections of financial institutions and the establishment of agreements that have pathed the way for greater international cooperation and information sharing.
If you would like a more detailed discussion on these or other enforcement actions, please contact:
Carwyn Evans (CEvans@cclcompliance.com)
- Oman CMA Issue Notices to Brokerage Firms
- FBME Wins Injunction Against FinCEN
- Transactional Criminal Organisation Identified in Vancouver
- Pakistan Issue Freezing Order for Terrorists on New List
- AML Failures at New York Branch of ABC
Oman CMA Issue Notices to Brokerage Firms
Cautionary notices have been issued to 4 brokerage and investment firms by the Oman Capital Markets Authority (CMA) for breaching clearing and settlement regulations. Global Securities, Horizon Securities, Al Madinah Investment and Al Maha Financial Services could face fines of up to OMR 100,000 or even suspension orders if these matters are not addressed.
FBME Wins Injunction Against FinCEN
FBME Bank Ltd. has won a second injunction against the US Financial Crimes Enforcement Network (FinCEN) following a decision by a US district court judge who stayed an earlier ruling which surrounded the bank suing FinCEN for trying to cut FBME off from the US financial system. This was amid accusations that the bank was engaging in ‘illicit financial activity’. FBME has gone on to claim that FinCEN failed to respond to its queries over how the regulator analysed the bank’s suspicious activity reports and the judge went on the rule that FinCEN did not “adequately disclose declassified information” to FBME or give it time to counter certain allegations made against it by the supervisor.
Transactional Criminal Organisation Identified in Vancouver
A Vancouver company has been named as the financial institution that facilitated the laundering of money obtained from defrauding, mostly elderly, victims from all over the world, as part of a global financially criminal network. The extent of illicit activity that has been carried out is vast, with tens of millions of dollars being processed in 2016 alone. PacNet has been identified by US Attorney-General Loretta Lynch as a ‘significant transactional criminal organisation’ that has been operating in this vein for 20 years and subsequently all its financial transactions have been frozen.
Pakistan Issue Freezing Order for Terrorists on New List
The Pakistan Central Bank has issued a list of 2021 individuals with suspected terrorist links and all of its governed financial institutions are obligated to freeze any accounts associated with them.
This is the first time the country has been seen to address the problem of terrorism financing but significant groups have been excluded (e.g. Jamaat-ud-Dawa, Lashker-e-Taiba).
AML Failures at New York Branch of ABC
On the 29th September the US Federal Reserve ordered the Agricultural Bank of China Ltd. (ABC) to develop an action plan within 60 days which sufficiently addresses the ‘significant deficiencies’ it identified in the New York branch’s anti-money laundering (AML) systems and controls.
If you would like a more detailed discussion on these or other enforcement actions, please contact:
Carwyn Evans (CEvans@cclcompliance.com)