UNITED ARAB EMIRATES Trends and Developments Contributed by: Stuart Paterson, Janine Mallis and Tania Forichon, Herbert Smith Freehills (Dubai)
Additionally, ADGM-incorporated entities will be required to implement policies and procedures to facilitate the making of Protected Disclosures, assess and escalate Protected Disclosures, and protect the identity of individuals making protected disclosures. ADGM entities that fail to comply with the ADGM Regulations can be subject to sanctions, including censures, fines, or suspension of their licences. Separately, the UAE’s governmental entity responsible for state audit matters introduced a reporting channel, known as Wajib, in 2023, which allows anonymous reporting (as do certain other governmental/state agencies). Notably, in 2022, the Federal Tax Authority introduced a whistle-blower programme allowing individu - als to report tax violations and evasion (and the scheme was further improved in 2024). This scheme permits financial rewards for whistle- blowers, although no such cases have been made public to date. These new whistle-blowing regimes will likely identify and prosecute more wrongdoing, lay - ing the foundation for a more comprehensive, consistent legal framework for the UAE in due course. DIFC Courts’ Power to Issue Pharmacal Norwich Orders In the case of Skatteforvaltningen (The Danish Customs And Tax Administration) v FFA Private Bank (Dubai) Limited ( “SKAT Case” ), the DIFC Courts granted the Danish Tax Authority (SKAT) a Norwich Pharmacal/Banker’s Trust order ( “Norwich Pharmacal Order” ) in July 2024 in sup - port of proceedings before the English courts and onshore Dubai courts, and confirmed that the DIFC Courts have the power to grant such orders.
The Norwich Pharmacal Order compelled FFA Private Bank (FFA), a DIFC-based private bank, to disclose documents and information related to two accounts in FFA’s name that had received traceable proceeds from unidentified individu - als emanating from a fraud committed against SKAT. SKAT’s application for a Norwich Pharmacal Order was made in order to: • ascertain whether it had claims against the not-yet-identified third parties who had sent funds to FAA or against FAA itself; and • to potentially use any documentation it received pursuant to the Norwich Pharma - cal Order to strengthen its case in the Dubai onshore courts. The FFA contended that the limitations apply - ing to the DIFC Courts were identical to those of the English Courts. As a result, they argued that the DIFC Courts could not grant Norwich Pharmacal relief to obtain additional evidence in support of existing claims before foreign courts since the statutory framework in the UK does not permit this. However, the Court considered that its jurisdic - tion to do so was contained in DIFC statutes and not based on English common law or statutes. Importantly, the DIFC Court stressed the neces - sity of supporting efforts to counter international fraud, noting that “it behoves this Court to assist the courts of friendly foreign nations in doing jus - tice and… to enable the foreign Court to have before it the maximum information available for it to make its own determination.” Norwich Pharmacal relief is a key weapon in the fraud lawyer’s arsenal: these orders are par -
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