Global Regulation, Local Solutions Emerging Themes 2020 - Page 40



GOVERNANCE
EMERGING THEMES 2020
WHAT’S CHANGED?
X
Prepare for increasing numbers of
whistleblowing investigations – inevitably
the new whistleblowing protections will
lead to increasing numbers of disclosures
requiring investigation. The general trend
towards increased individual accountability
in sectors such as financial services, also
drives increased whistleblowing.
X
Prepare for complexity – whistleblowing
investigations can often be complex,
time-critical and labour-intensive. Issues
to consider include: preserving evidence;
identifying and reviewing relevant
correspondence/documents; interviewing
the whistleblower and other relevant
individuals; privilege and confidentiality,
particularly in relation to the protection
of the whistleblower; whether a report
is needed (with conclusions and/or
recommendations); and considering
whether any formal legal or regulatory
notification is required.
The whistleblowing landscape has changed
in the UAE following the introduction by the
Dubai International Financial Centre (“DIFC”)
of a new whistleblowing protection law, the
DIFC Operating Law (DIFC Law No. 7 of 2018).
The new DIFC law includes protections for
those blowing the whistle in relation to breaches
of the Operating Law, its Regulations and any
other legislation administered by the DIFC
Registrar of Companies. This would, for example,
include the DIFC Companies Law (DIFC Law No.
5 of 2018) and the DIFC Limited Partnership Law
(DIFC Law No. 4 of 2006).
In particular, whistleblowers cannot be
dismissed from employment or otherwise
subjected to victimisation by the employer or
any related person. Financial penalties can be
imposed if firms breach these requirements,
which of course would be in addition to any
reputational impact.
KEY STEPS FOR EFFECTIVE COMPLIANCE
DON’T SHOOT
THE MESSENGER
PREPARING FOR NEW
WHISTLEBLOWING
PROTECTION LAWS
IN THE UAE
New laws in the UAE, as in a growing number of
jurisdictions, are resulting in firms being subjected
to increased scrutiny on how they engage with
whistleblowers. To protect themselves in the year
ahead, firms need to be aware of the new rules
and take active steps to implement the regime
and manage their regulatory risk.
40/
Key steps that firms based in the DIFC should
be taking now, if they have not already done
so, include:
X
Gap analysis – review current policies and
procedures against the new requirements.
This may necessitate the creation of a
whistleblowing policy and revisions to
contracts of employment. Firms may consider
engaging external service providers (e.g.
whistleblowing hotlines), to provide a useful
defence if the measures are later questioned.
X
Training – firms should consider the method,
timing and frequency of their training, tailoring
it for different audiences (e.g. for managers
receiving whistleblowing reports, and for staff
running the firm’s whistleblowing procedure).
Where issues raised by a whistleblower have
an impact on other jurisdictions as well as the
DIFC itself, it will be critical to analyse how best
to collect the facts and manage the interests
of the variety of relevant regulators. For further
discussion of the issues than can arise in these
circumstances, see the article “BUILDING
BRIDGES” on page 48.
RAZA MITHANI
Partner,
Dubai
/41

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