United Arab Emirates

By Charles Laubach

The Author

Charles Laubach
Partner
claubach@afridi-angell.com
Tel: +971 4 330 3900Charles has practiced as a legal consultant in the UAE since 1986. Charles has an active practice advising corporate clients on corruption and FCPA compliance matters, as well as on general corporate and commercial matters. His numerous publications on the subject include the UAE chapter in Anti-Corruption Regulation 2016, published by Getting the Deal Through. He is a member of the Pennsylvania
and DC Bars.

The new anti-money laundering (AML) law of the UAE took effect at the end of October 2018. Containing features recommended by the Financial Action Task Force (FATF), the new law introduces subtle but important changes to the AML landscape in the UAE.

The new law was enacted as Federal Decree-Law 20 of 2018. The previous AML law was Federal Law 4 of 2002, as amended by Federal Law 9 of 2014, and the implementing regulations that were promulgated pursuant to Cabinet Resolution 38 of 2014. The new law indicates that new implementing regulations will likewise be promulgated, although they have yet to be issued.

Prior to the 2014 amendments, AML compliance was confined to specific of regulatory silos. In particular, obligations were imposed on banks, other financial institutions, insurance companies, accountants, lawyers, and businesses active in the Dubai International Financial Centre and the Abu Dhabi Global Market. The 2014 amendments expanded the AML compliance obligation to all businesses and professions. This is continued by the new statute, but with somewhat greater precision. Specifically, the new statute imposes AML compliance obligations on Financial Institutions and on Designated Non-Financial Businesses and Professions (DNFBPs), terms adapted from the FATF. The implementing regulations will specify which DNFBPs will be subject to AML compliance obligations under the new statute.

It was an often-overlooked feature of the 2014 amendments that AML compliance throughout the economy was required. This is continued and enhanced by the new statute. Both Financial Institutions and DNFBPs are required to comply fully with the express prohibitions contained in AML statute, to report suspicious transactions to the Financial Information Unit of the Central Bank, to conduct due diligence with counterparties, to adopt internal guidelines to ensure that AML violations will not be committed inadvertently, to provide regular training to personnel, and to conduct regular and continuing AML assessments of the business risks and sector risks that they face.

Regulators throughout the UAE are instructed to ensure compliance with these requirements.

In a potentially significant change, the new statute obliges each Financial Institution and DNFBP to conduct a risk-based assessment of its business activities and to adopt compliance measures based upon such risk- based assessment. An appreciation of the risks should guide conduct of due diligence of proposed customers and ultimate beneficial owners so that AML efforts might be most efficiently deployed. The previous law did not mandate a risk-based approach to AML obligations, and indeed a non-calibrated “one size fits all” approach was widely used in the conduct of due diligence investigations on proposed customers and counterparties. Importantly, the new law leaves open the question of which factors a Financial Institution or a DFNBP would consider when undertaking the assessment. We expect that this will be clarified in due course by the anticipated implementing regulations.

The law enforcement toolkit is substantially enhanced by the new statute. The authorities are given enhanced ability to investigate and prosecute offenses and to gain access to records in connection with the same. The power of the Central Bank to order an account freeze based on a suspicious activity report is maintained, but such a freeze may now be extended by order of the public prosecutor or its delegate beyond the initial seven-day period, whereas the previous law required a judicial order for such an extension. Sanctions for violations are substantially enhanced, including measures directed at individual managers and directors. In a measure inspired by practices followed in London and Washington, the authorities are given the power to impose continuing reporting and monitoring obligations on businesses following an initial indictment.

In addition, there are express obligations to cooperate with international investigations and enforcement measures. The new statute addresses matters such as the collection of documentation, interrogation of witnesses and extradition of suspects, as well as the honouring and enforcement of orders and judgments from foreign countries.

In terms of prohibited conduct, the new statute makes only minor changes in comparison with the 2014 amendments. The definition of a predicate offense is considerably expanded. A predicate offense is now defined as any act constituting a felony or misdemeanour under the applicable laws of the UAE, whether the act is committed inside or outside of the UAE, when such act is punishable both in the UAE and in the country where it was committed. In addition, it is now stated unambiguously that the handling of funds that are tainted by association with a terrorist organisation or an illegal organisation would be a money laundering offense.

The obligation to file suspicious transaction reports with the Financial Information Unit of the Central Bank is maintained. However, for the first time, a professional privilege exception is introduced applicable to lawyers, notaries and other legal professionals and independent legal auditors. The scope of this privilege, never before acknowledged expressly in the AML context, is to be elaborated in the implementing regulations.

The FATF is scheduled to commence a mutual evaluation with the UAE in mid-2019 on the current state of AML compliance in the UAE. The new statute is a proactive initiative to introduce best-practice AML regulations according with the FATF’s guidelines. ■

 

Afridi & Angell

Founded in 1975, Afridi & Angell is a leading full-service UAE law firm. The firm provides comprehensive and authoritative legal advice and innovative business solutions in banking and finance; corporate and commercial law; dispute resolution; projects; construction and real estate; employment; energy; project finance; transport; as well as doing business in Iran, the UAE and the DIFC. We advise local and regional clients ranging in size and sophistication from start-ups to some of the region’s largest public and private companies, governments and quasi-government institutions. We work extensively with entrepreneurs and investors from the region and beyond, and have attracted numerous international clients looking for the right counsel to protect and expand their interests.

Afridi & Angell is a selected member of top legal networks and associations, most notably Lex Mundi, the world’s leading network of independent law firms, and World Services Group.

www.afridi-angell.com

 

Afridi & Angell’s inBrief provides a brief overview and commentary on recent legal announcements and developments. Comments and opinions contained herein are general information only. They should not be regarded or relied upon as legal advice.© 2018, Afridi & Angell
Related Articles by Firm
The separability of an arbitration clause
- the Sharjah Court of Appeal sets limits
UAE amends the Labour Law
The amendments introduce equal treatment for male and female employees in respect of compensation and parental leave ...
Dubai Family Ownership of Common Property Law
The Law also aims to provide a legal framework for maintaining continuity of family ownership and avoiding division of businesses amongst family members ...
UAE Foreign Direct Investment Law vs GCC Customs Exemption
By Charles Laubach and Saurbh Kothari, Afridi & Angell
Further changes to civil litigation in the UAE
The amendments bring about some important changes to how matters will be litigated in the UAE courts.
Implementation of Abu Dhabi Local Content Program
This major development will have significant impact on businesses that provide goods and services to governmental and semi-governmental entities.
Foreign direct investment in the UAE: The approval of the positive list
The positive list contains 122 activities in the agricultural, manufacturing and services sectors.
Electronic signatures in the UAE: what you need to know
Electronic signatures were not common before the Covid-19 lockdown, but the legal framework is well established.
DMCC Company Regulations 2020: Keeping up with international best practices
The regulations provide for more clarity and flexibility for businesses wishing to conduct business in and from the DMCC.
Relief for employers during Covid-19 epidemic
The UAE has introduced measures that employers in the private sector may progressively resort to during the current period.
Compliance with official measures to combat Covid-19 made mandatory
Significant responsibility for ensuring compliance with directives to stop the spread of Covid-19 has been delegated to the law enforcement authorities of the UAE.
Recent measures implemented by the UAE authorities in response to Covid-19
Noteworthy measures that have been implemented by various UAE authorities to date.
Interim relief prior to starting arbitrations under the Federal Arbitration Law
A note on recent experiences in obtaining interim orders from the Dubai Courts.
The New DIFC Leasing Law
The New Law is a welcome development which may stimulate the property market in the DIFC.
DIFC Workplace Savings Scheme (with effect from 1 February 2020)
The Amendment introduces a new mandatory workplace savings scheme, which replaces the current end-of- service gratuity regime.
Slightly more clarity: Economic Substance Regulations in the DIFC
The new guidance is helpful for businesses in the DIFC, but significant questions still remain.
Regulatory Authorities to regulate Relevant Activities in accordance with Economic Substance Regulations announced
Businesses licensed in the UAE should fast track an assessment to determine if they are subject to the regulations.
UAE Ministry of Finance issues guidance on Economic Substance Regulations
Thirteen topics covered in the guidance that may be of interest to businesses affected by the regulations.
Law 6 of 2019: On the ownership of common property in the Emirate of Dubai
The New Law is an important development for Dubai as most real estate is held by way of property owned in common.
The private equity, venture capital and start-up ecosystem in the UAE: Recent developments
The changes will result in the establishment of new funds and attract more entrepreneurs and investors to the UAE.
SCA issues guidelines for financial institutions on anti-money laundering
The advent of AML and ATF guidance is a welcome step for businesses in the UAE.
Proposed New DIFC Data Protection Law
The DIFC Authority has proposed the enactment of legislation (the Proposed Law) to replace its current Data Protection Law.
New economic substance regulations in the UAE
The rules are a response to the UAE being put on the EU's blacklist of non-cooperative tax jurisdictions.
Keeping up with the trend: The New DIFC Insolvency Law
The New Law introduces many welcomed features and is a step forward in maintaining the UAE’s position as a world leading trade hub.
The New DIFC Employment Law: Key Changes
The new law will directly affect almost 24,000 employees based in the DIFC.
Merger clearance matters in the UAE
Despite the limited number of filings and the dearth of decisions, parties conducting M&A in or from the UAE should consider the impact of the competition regime.
New regulations offer welcome guidance to Anti-Money Laundering Law
The new AML Law has been shaped by international AML standards and provides several mechanisms to combat money-laundering.
Health data confidentiality on a rise in the UAE
A new law requires businesses that use information and communication technology for processing health data to ensure its confidentiality, accuracy and validity.
New Tawazun economic programme policy guidelines issued
It is hoped that the new programme will enable defence contractors to identify more accessible opportunities to generate offset credits.
New administrative fines imposed by the UAE Insurance Authority
Insurance and reinsurance providers should review the resolution and the list of violations to ensure their compliance.
Significant changes to UAE’s Civil Procedure Code
While the changes are welcome, they put pressure on litigants to plead their cases within relatively short time periods ...
New long-term residency visas in UAE
In a welcome development, the new law introduces long-term residency visas for four categories of persons.
New promotion regime for domestic funds
A new agreement could make the UAE a much more attractive place to establish funds.
Federal Penal Code amendments
The amendments are designed to make the UAE's Penal Code consistent with other recent federal legislation and current federal enforcement policies.
Netting arrangements made enforceable in the UAE
For decades, banks and other counterparties in the UAE have obtained financial services from foreign financial institutions. Industry bodies, such as the International Swaps and Derivatives Association (ISDA), the International Capital Market Association and the International Securities Lending Association, have ...
The UAE's new Foreign Direct Investment Law
Majority foreign ownership is not yet a reality, but the framework is now in place.
Significant precedents from the DIFC courts
Afridi & Angell successfully defended an anti-suit injunction, an application to exclude evidence and obtained a document production order.
New services by Dubai Rental Disputes Centre
The Rental Good Conduct Certificate service is a first-of-its-kind initiative in the world.
ADGM announces tech start-up licensing regime
The licence provides access to a Professional Services Support Programme aimed at allowing entrepreneurs entry to a community of businesses, financial services and professional advisers.
Dubai relaxes rules on filing appeals before the Court of Cassation
The Decree provides that appeals to the Court of Cassation must be filed within 60 days of the judgment of the Court of Appeal.
Off-plan sales in Dubai: Risks and rewards
Whether buyers are looking to expand their real estate portfolio or buyers are simply looking to find their ideal home, great deals can be found in Dubai’s off-plan real estate sector ...
The UAE Federal Arbitration Law: A First Look
The approval of the long-awaited law by the Federal National Council was announced in March this year.
Legal reforms in Abu Dhabi
Abu Dhabi has introduced new rules governing the functioning of the Emirate’s judiciary.
UAE: Off-plan sales: risks and rewards
Great deals can be found in Dubai’s off-plan real estate sector, but it is critical that prospective buyers do their homework ...
The New UAE Pledge Law – Security Registration
UAE Federal Law 20 of 2016 introduced a new regime for registering a pledge over moveable assets which are pledged as security for the repayment of a debt ...
UAE VAT Designated Zones Defined
A Designated Zone is required to be a specific fenced area with security measures and Customs controls in place ...
Certificate of Good Conduct Required for all UAE Employment Visas
New requirement will be introduced shortly ...
Dubai: Dawn Raids – Do you have a policy in place, and is it fit for purpose?
How you handle a dawn raid will have a significant impact on the discussions and negotiations that are sure to follow.
Dubai: Changes to Law Allowing Developers to Terminate Off-Plan Sales Contracts
An important development that will assist developers who are facing a difficult real estate market ...
UAE VAT Executive Regulation Update: Free Zone Guidance
The UAE Ministry of Finance has announced the Executive Regulation for the Federal Decree-Law ...
Opportunities in Dubai’s Healthcare Sector
Dubai is the fastest growing healthcare market within the GCC and is becoming an increasingly attractive sector for investors. Afridi & Angell explain the key drivers and options available to investors ...
VAT registration in the UAE has commenced
The United Arab Emirates Federal Tax Authority has commenced accepting registrations for Value Added Tax through its online portal ....
UAE: VAT and Excise Tax
The UAE has issued substantive law on Value Added Tax (VAT) and Excise Tax ...
New Ministerial Decision brings clarity to Private Joint Stock Companies
The private joint stock company is one of the forms of company contemplated by UAE Federal Law No. 2 of 2015 concerning commercial companies ...
Be VAT ready - Tax Procedures Law is already here
Under the VAT regime, businesses will be collecting taxes on behalf of the government and will file tax returns accordingly ...
UAE – Centre for Amicable Settlement of Disputes update
Centre for Amicable Settlement of Disputes can no longer mediate disputes when a bank is a party to such dispute ....
New UAE Funds Regime
The UAE has embarked on an ambitious undertaking by introducing new business friendly mutual funds regulations to stimulate the UAE funds industry and provide the foundation for a more developed regional funds regime in the Gulf Cooperation Council ...
New UAE Pledge Law over Movable Assets
The new Pledge Law of the UAE was enacted on 12 December 2016 ...
Doing Business in Iran: Donald J. Trump; Mining Investment Opportunities
The election of Mr. Donald J. Trump as President of the United States has resulted in much consideration by corporates of existing strategies with respect to Iran...
The UAE Competition Law Clarified
Two Cabinet Decisions have been issued which provide guidance on the implementation of the Competition Law, particularly on market share thresholds and on small and medium establishments.
Potential Criminal Liability for Arbitrators and Experts in the UAE
The UAE Penal Code was amended to introduce the concept of criminal liability for arbitrators, experts, and translators who issue dishonest and partial decisions and opinions.
The New UAE Bankruptcy Law
Perhaps the most important new feature of the new Law is the introduction of a regime that allows for protection and reorganization of distressed businesses ...
Doing Business in Iran: The Momentum Builds
The momentum for doing business in Iran is expected to increase at an even greater pace after the November US elections.
Proposed Insurance Authority Decision Concerning Marketing of Insurance Policies by Banks in the UAE
The Emirates Insurance Authority prepared a draft regulation concerning marketing of insurance policies by banks in the UAE.
UAE Ministerial Decision No. (272) of 2016
The Ministerial Decision No. (272) of 2016 addresses the scope of Article 104 of Federal Law No.2 of 2015, stating which articles relating to public and private joint stock companies apply to limited liability companies.
Doing Business in Iran: the banking bottleneck
With the easing of sanctions against Iran, vast business opportunities have opened up. The challenge is whether and how to participate in such a potentially phenomenal market without taking undue risks.
Doing Business in Iran: Life After (Secondary) Sanctions
The legal landscape for doing business in Iran has changed significantly since the easing of certain Iran related sanctions.
Doing Business in Iran: Life After (Secondary) Sanctions
The legal landscape for doing business in Iran has changed significantly in the past seven months ...
UAE Legal Bulletin
Updates on the possibility of a Value Added Tax, the new PPP Law and other developments which companies doing business in the UAE should know
UAE's New Labour Regulations Take Effect January 1, 2016
A number of recently announced initiatives could introduce potentially significant changes to the rules governing the workforce in the UAE.
Introducing the Dubai World Trade Centre Free Zone
Aside from its central location and its world class facilities, the Dubai World Trade Centre Free Zone offers a wide range of services for companies.
UAE Legal Bulletin July-August 2015
Insights into the new Commercial Companies Law and relevant corporate updates which can help companies conduct business in the UAE, particularly in Dubai
The New UAE Commercial Companies Law – A First Look
We highlight the changes which the new UAE Commercial Companies Law (Federal Law No.2 of 2015) introduces.
Do I need a DIFC will?
With the opening of the Wills and Probate Registry in the DIFC, it is now possible to register a will in Dubai and have a high degree of confidence that it will be enforced.
DFSA imposes record fine on Deutsche Bank
The Dubai Financial Services Authority (DFSA) imposes its largest fine to date on Deutsche Back AG Dubai (DIFC Branch), sending a strong signal that DFSA is both independent and unafraid to take on well-resourced opponents.
Abu Dhabi Global Market starts first phase of activities
Effective 15 June 2015, the Abu Dhabi Global Market began accepting license applications from existing non-financial service tenants of Al Maryah Island that have either a private limited or branch office legal structure.
Dubai Statistics Center – you may be next!
Companies in the Emirate of Dubai have recently been receiving questionnaires requesting detailed information about their business, including financial information...
Free Zones in the UAE – an overview
Strategically located between Europe, Africa and Asia, the United Arab Emirates has become a hub for trade and commerce throughout the world ...
UAE Competition Law - All bark and no bite?
Federal Law No. 4 of 2012 on the regulation of competition (the “Competition Law”) introduced a regime for the regulation of anti- competitive behavior in the UAE which previously did not exist ...
Related Articles
Related Articles by Jurisdiction
Key amendments introduced as UAE Anti-Commercial Fraud Law progresses towards enactment
Following the passage of the draft UAE Anti-Commercial Fraud Law through the Federal National Council on 4 March 2014, further amendments have been made to the draft Law as it progresses …
Latest Articles