Assessment of allegation
2.12 The assessment of allegations of suspected misconduct or contraventions of the ADGM’s commercial legislation is a core aspect of the Registration Authority’s monitoring and control function. Every allegation, regardless of the source, is assessed to determine whether an investigation should take place.
2.13 The Registration Authority’s Monitoring & Enforcement Division is responsible for assessing complaints and allegations of misconduct, and the Division Head decides whether a matter should be investigated.
2.14 The Registration Authority may request further information from the complainant or source of an allegation to help it assess the allegation. The licensed person that is the subject of an allegation may also be contacted to obtain further information.
2.15 At the assessment stage the Registration Authority generally obtains information voluntarily. However, as per section 29 of CLR 2015, the Registration Authority does have non-investigative information gathering powers, which may be used at the allegation assessment phase if necessary.
2.16 To ensure consistency and transparency in determining whether to commence an investigation, the Registration Authority considers allegations against certain criteria. The application of the criteria depends on the particular circumstances of a matter and include:
a. whether the Registration Authority has jurisdiction in relation to the alleged misconduct;
b. the seriousness of the alleged misconduct, its duration and whether it is ongoing;
c. the nature of the alleged misconduct including whether it was deliberate, reckless, routine or minor;
d. the effect of the misconduct, including whether it resulted in a benefit to a person, or detriment or loss to others;
e. the compliance history of the licensed person, and likelihood of cooperation;
f. the likelihood of the alleged misconduct being proven, and if so, the remedies available;
g. the person’s conduct after the alleged misconduct, including whether they brought it to the Registration Authority’s attention;
h. whether another authority has sought the Registration Authority’s cooperation, or is able to take its own action against the alleged misconduct;
i. whether the alleged misconduct is by nature a commercial dispute and if so, whether the complainant is able to take their own action (and has the resources) to seek relief; and
j. whether the alleged misconduct undermines or damages the integrity, transparency, confidence in, or reputation of, the ADGM.
2.17 Not every allegation of misconduct received by the Registration Authority will result in an investigation. This may occur where, for example, the facts and contraventions are not in dispute and the licensed person has confirmed at an early stage that it is willing to resolve an issue by way of settlement; or where the matter can be investigated sufficiently without the need to exercise formal powers beyond the Registration Authority’s information gathering powers.
2.18 Based on the assessment of the alleged misconduct against the criteria set out at paragraph 2.16 (above), the Head of the Registration Authority’s Monitoring & Enforcement Division will determine what action will be taken or recommended to the relevant decision maker.
2.19 The range of actions that may follow the assessment of an allegation of misconduct vary depending on the facts and circumstances and may include:
a. taking no further action;
b. referring the alleged misconduct to another authority;
c. commencing an investigation;
d. taking immediate enforcement action; or
e. taking other action such as a private warning.