This paper aims to analyse a new piece of Dubai legislation, Dubai Law No. (4) of 2016: The Dubai Economic Security Centre (DESC) Law, in respect of its role and impact on economic crime mitigation in the emirate and in the country as a whole.
The jurisdiction’s various risks and vulnerabilities were examined to determine weaknesses and gaps in the current legislative and regulatory framework.
The findings highlight that despite numerous legislative efforts targeting economic crime, bringing economic criminals to justice has remained an issue in Dubai. Creation of the Dubai Economic Security Centre (DESC) may mark a significant change in that emirate’s approach to tackling this issue.
Though the DESC itself is (as of this writing) still in a formative state, it is clearly intended to be a comprehensive response to expedite and streamline investigative processes and mitigate the multi-jurisdictional problems with which law enforcement has hitherto contended.
The DESC is also intended to serve not only as an informational clearinghouse but also as an organisational entity with significant roles in law enforcement and even legislation.
Regardless of its ambitious and promising results, the effectiveness of its organisational structure and performance is yet to be determined.
This research can be beneficial for the government officials in charge of establishment and launch of the DESC, as well as for future research as it points to its potential ambiguities and misinterpretations.
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Several factors have shaped the nature of economic crime in Dubai, creating risk exposure for its sustainable economic development. While economic crimes including fraud, breach of trust, bribery and money laundering were punishable by law in the UAE as early as 1987, the Government of Dubai put forth new anti-corruption legislation and other measures recently, addressing systematic vulnerabilities and strengthening enforcement of these laws in the emirate.
The new legal initiative is particularly important because in general, bringing criminals to justice for economic crime in Dubai has long been seen as problematic. In a 2015 interview with Dr Ibrahim Al Mulla, a Dubai Police official, he estimated that since 2004, while thousands of allegations of money laundering had been passed on to the police, he knew of only a handful that prosecutors actually brought to trial. According to him, “It’s easy to get suspicious cases to the police but most of the cases fail to reach the court. Some of them don’t even make it to the prosecution. The reason could be the lack of evidence or a failure in one of the regulatory steps”.
Another issue, raised by Dubai-based lawyer Mohamed Eissa in a July 14, 2017 interview with the author, is that the majority of economic crime cases in Dubai require multi-jurisdictional investigations: “In a matter of hours, a crime perpetrator can make multiple cross-jurisdictional fund transfers before leaving the country himself, making it quite difficult to track down stolen money and to bring the culprit to justice”. Several factors to be discussed in this paper – the specifics of Dubai’s economy, the socio-economic composition of its workforce and its unique geo-political position and status, also contribute to the complexities of criminal investigations because of the multijurisdictional nature of offences. Their existence helps explain why Dubai might have seen fit to create new legislation in 2016 – discussed below – meant to concentrate authority in a new organisational body (the Dubai Economic Security Centre), which may be expected to use that power to streamline the investigative and enforcement process.
Specific characteristics of Dubai’s economy
Though Dubai is just one of seven emirates in the confederation of United Arab Emirates, it gained international recognition and put itself on the map as a city-state ahead of the country. The offshore discovery of petroleum in 1966, leading to the development of the oil industry, enabled the government to undertake major infrastructure and industrial projects, which transformed Dubai from a fishing settlement to a cosmopolitan city over recent decades. Hvidt argues that the success of Dubai development lies in the outcome of conscious policies meant to “catch up” with the “developed world” and in “a broad range of economic, institutional, political, and cultural factors that function in interaction” (Hvidt, 2009). Dubai’s growth strategy was directed to limiting its dependence on oil by economic diversification focussing on “trade, transportation and storage logistics, professional services, tourism, construction, and financial services” (Renaud, 2012). Inflow of direct foreign investment (DFI) stimulated its rapid boom because of the emirate’s economic liberalisation directed “to attract inward investment to a low-taxation, business friendly and politically stable environment”. “In addition to strong inward flows of investment capital, Dubai has attracted a steady stream of immigrants that has had significant impact on the socio-cultural character of the city” (Pacione, 2005). Though Dubai occupies only 4.9 per cent of the UAE territory, it hosts one third of the country’s population.
But despite Dubai’s rapid economic growth, the economic crisis of 2008-09 unveiled Dubai’s vulnerabilities. Prior to the crisis, the economy of Dubai grew by more than four times. This was largely generated “by excessive liquidity and explosive appreciation of real estate prices”. However, such inflationary growth could not be sustained in the aftermath of the crisis, which ultimately revealed Dubai’s susceptibility to regional and global economic and political shocks (Al Sadik and Elbadawi, 2012). In the aftermath of the crisis the government of Dubai adopted new fiscal, financial, and monetary policies; increased the government budget; and provided liquidity to the banking sector. However, economic measures alone were not enough to regain trust and confidence of international investors. There was a call for legislative initiatives to help guarantee transparency in financial institutions.
Transitory workforce composition
The socio-economic nature of Dubai’s (and the UAE’s) workforce also has a potential influence on economic crime, although discussing this requires some background. To support its rapid growth and economic diversification, Dubai, as the UAE at large, has long adhered to the “guest worker” model of employment.(Müller, 2003) This method, called kafala, or labour sponsorship scheme, allows foreign workers to be hired on a temporary basis to supply newly established industries with expertise and professionally qualified employees, although they are not legally permitted to settle in the host country (Mahdavi, 2013). By 2016, Dubai’s expatriates comprised 91.3 per cent of the total population (Dubai Statistic Center, 2018), representing almost 85 per cent of the workforce in the emirate (Population Statistics Section, 2015). Though most UAE nationals constitute a significant part of the workforce in the public sector, only a negligible number work in the private sector (Randeree, 2009). Despite the government policy of Emiratisation, described as “a carrot-and-stick approach” to encourage private sector companies to employ UAE Nationals in the private sector, the latter is still largely comprised of expatriates from multiple nationalities and religious groups (Ahmad, 2011). Based on 2009 figures, expatriate workers held 99 per cent of private sector jobs in the UAE (Ahmed, 2016). The UAE labour market is marked by wide wage discrepancies, where workers’ citizenship is a significant predictor of wages in both private and public sectors (Abdalla et al., 2010). Randeree states that the UAE’s dependency on cheaper and more qualified expatriate labour is supported by the fact that “expatriates generally work longer hours, accept lower wages, and tolerate poorer working conditions and more physically demanding jobs as opposed to UAE nationals” (Randeree, 2009).
The country’s reliance on an expatriate workforce results in high turnover because of the temporary nature of foreign worker employment. An expatriate's weighted average duration of residency in the UAE is 8.7 years (De Bel-Air, 2018). The workforce composition in Dubai is as fluid as in the UAE and the Gulf countries at large. One study indicates that 88 per cent of surveyed employees in the Arabian Gulf Cooperation Council (GCC) countries expect to move to a new job with a new employer within 3 years, while 57 per cent expect to change their employment within one year (Salary and Employment Report, 2016, 2016). Over 50 per cent of participants in a 2013 MENA survey indicated a wish to leave their job immediately (Bayt.com, 2013). One report states that the average length of time holding a job in the UAE is 4.7 years (Gulf News, 2008; Maceda, 2014). Disproportionate representation of expatriate workforce in the private sector not only contributes to increasing turnover rate, but also reduces organisational and job commitment among foreign workers (Ang et al., 2003). In addition, high employee turnover results in inconsistencies and lack of training leading to inefficiencies and poor performance (Dalton and Todor, 1979; Ton and Huckman, 2008).
These specifics of a UAE labour force largely comprised of expatriates, may help engender greater opportunities for perpetrating internal crime and getting away with it. This is because, as Eissa observed during the above mentioned interview, “By the time an internal fraud is uncovered, the perpetrator is most likely no longer living in Dubai”. A senior police official suggested that it is not insufficiencies of the law, but rather the country’s large, diverse and transient expatriate population that poses challenges in fighting corruption in the UAE. He observed that “Even as the UAE’s laws against corruption and bribery are extremely strong and clear, the presence of people from so many different countries, where bribery may be seen as a legitimate way of doing business, means that it becomes all the more necessary for the authorities to keep a keen eye out for any underhand corporate practices” (Uncredited, 2014).
Dubai’s geo-political position
There are other risks inherent to the UAE’s situation. Al Mulla lists four factors – high income, geographic location, economic climate and proximity to drug cultivation/production areas – making it an ideal target for money laundering (Al-Mulla, 2009). These interrelated factors are applicable to a broad list of economic crimes since the laundered funds are proceeds of a wide range of criminal activities generating and profiting from or otherwise using the laundered money (Lilley, 2006).
Corruption produces enormous profits to be laundered (Chaikin and Sharman, 2009). Despite the low perception of corruption in the UAE, three out of the bottom 10 countries in the Transparency Corruption Index are in the MENA region with economic and political ties to the UAE (Transparency International, 2018), thus increasing potential risk for international companies that use Dubai as their operation hub for MENA (Eversheds Report, 2018). Dubai is often seen as the hiding place for proceeds of corruption flowing from international sources rather than an illicit fund-generating region. Between 2011 and 2014 the UAE allegedly received more than US$434m from a vast Russian money-laundering scheme, the Russian Laundromat (Townsend, 2017; Uncredited, 2017). According to an Arabian Business investigation, in 2012 alone approximately US$30bn in cash was used to purchase property in Dubai, with most of it coming from overseas buyers, the majority from India, Iran, Egypt, Syria, other GCC countries, North Africa and Russia. “Cash investors only require a passport to purchase property in Dubai and usually do not live in it”. Hence, as the same source reports, “about 70 per cent of property transactions in Dubai are fully paid in cash” (Trenwith, 2013).
In this environment, in which few cases of economic crime were actually making it to court, the government of Dubai issued Law No. (4) of 2016: The Dubai Economic Security Centre (DESC) Law. In creating that eponymous organisational body, the leadership signalled a goal of curbing economic crime in Dubai and protecting its economy from criminal abuses.
It is worth mentioning that in the UAE, economic crimes have been addressed by a number of Federal and Dubai laws (Dubai is one of two emirates that operate separately from the federal court system). Provisions against economic crime were first introduced in Federal Law No. (3) of 1987, which established the UAE Federal Penal Code, and which contains the main federal law regulating anti-bribery practices in the UAE. Federal Law No. (8) of 1984 as Amended by Federal Law No. (13) of 1988, Commercial Companies, sets provisions to hold company directors and employees liable for internal perpetration of crime . Government of Dubai Human Resources Management Law No. (27) of 2006 and its 2010 amendments include provisions to combat potential corrupt practices. Another law meant to combat economic crime is Dubai Law No. (37) of 2009 on the Procedures for Recovery of Illegally Obtained Public and Private Funds (Stubbs, 2010). The Federal Law No. (4) of 2002 Regarding Criminalization of Money Laundering and its 2014 amendments specifically criminalise money laundering in the UAE. Several Cabinet and Ministerial Resolutions supplemented the law by criminalising position abuses by government employees.
However, as noted earlier, while these laws existed on paper there seem to have been fundamental problems in vigorously enforcing them. Thus the economic crime situation in the UAE reached a point circa 2016 where the leadership sought to fix this problem via the DESC law. The body it created is meant “to streamline and expedite investigative processes and procedures, making it easier for brining culprits to justice”.
By establishing the DESC, the law addresses the emirate’s systematic risk exposure along with the public perception of economic security of Dubai, focussing on two areas: risk assessment and implementation of measures to mitigate it. Thus, the DESC is entrusted with extended responsibilities of supervision, research, investigation, information gathering, data and information exchange, and financial and administrative auditing over its jurisdiction.
It is safe to say that every entity operating in Dubai, including in the special development and free zones, falls under DESC jurisdiction. These include government entities; their financial subsidiaries; agencies that the government guarantees a minimum limit of profit; licensed establishments; charities; and “any other agency falling under a resolution issued by the Chairman of the Executive Council of Dubai”. An Executive Director, appointed by the Chairman of the Dubai Executive Council, will be the executive arm of the Centre (Uncredited, 2016a).
The DESC’s tasks as a centralised authority overseeing economic and financial security of Dubai include “combating corruption, fraud, bribery, embezzlement, destruction of public property, forgery, counterfeiting, money laundering, terrorism or illegal organisations financing, and other crimes that may be committed in entities that are under the jurisdiction of the Centre” (Uncredited, 2016b). Adding “other crimes” to the list of the Centre’s competencies effectively gives it jurisdiction regarding any criminal offence taken place in Dubai.
The DESC is given authority to monitor “abuses and financial irregularities committed in Dubai” and to supervise the “trading of currencies, commodities, precious metals and listed and unlisted securities”. These competencies partially overlap with functions of other, earlier-established Federal and Dubai-based authorities; indeed, multiple entities regulate the UAE marketplace. The Ministry of Economy (MOE) is responsible for implementing company law, corporate governance standards for issuers, prospectus disclosure requirements and the pricing of initial public offerings. The Central Bank of the UAE is the principal regulatory authority of banks and financial institutions in the UAE responsible for licensing and authorising banks and non-bank financial intermediaries, including brokers and investment companies. The Central Bank has issued regulations affecting the conduct of banks and establishing an anti money laundering regime. At the same time, the Securities and Commodities Authority regulates the two onshore stock exchanges and is responsible for licensing financial service intermediaries in the securities market. There are also the Dubai Financial Services Authority (DFSA), which regulates financial service providers registered within the DIFC; the Dubai International Financial Center (DIFC) Authority, responsible for regulating Designated Non-Financial Business or Profession (DNFBP) registered in the DIFC; and the Dubai Multi Commodity Center (DMCC) Authority, the “regulations [of which] apply to all those who live, work and operate within the Free Zone (DMCC, 2012). With formation of the Centre, it is unclear whether it will take precedence over these regulatory bodies to address issues related to dispersion of information among local authorities and communication problems among them (OECD, 2016). Establishment of the DESC might overcome these deficiencies.
Though the UAE already has in place extensive legislation addressing economic crime, the DESC will have ability to propose and audit legislation “to regulate financial and economic affairs in Dubai”. The latter is especially relevant to remediate continuously evolving economic crime methodology. To address investors’ concern regarding lack of transparency, the DESC will be entrusted with “preparing and publishing periodical reports and statistics on the financial and economic position of Dubai” (Lassoued and Eissa, 2016). It is presently unclear what type of information coverage this implies. It is possible these statistics and reports will include data on Suspicious Transaction Reports (STR), criminal transgressions, and economic crime cases, the absence of which was criticised by the authors of the MENA/FATF, 2008 Mutual Evaluation Report (MER) on the UAE (MENA/FATF, 2008).
Another DESC competency is “following up on cases that the Centre is concerned with, including transnational crimes in coordination with the judicial authority”. It is yet to be determined the extent of protocols and procedures of the “follow up” and “coordination” actions of the Centre. For example, in accordance with Federal Law No. (9) of 2014, with respect to money laundering (which satisfies the definition of “transnational crime” and also falls under the DESC entrusted areas), the AMLSCU of the UAE is given authority to deal with money laundering offences in the UAE. The law entrusts it with receiving suspicious transactions reports, making this information available to “Law Enforcement Departments so as to facilitate the investigations carried on by the same,” and exchanging this information “with the counterparts thereof in other countries, in accordance with international conventions to which the State is a party, or on the basis of reciprocity”. Moreover, according to Article 7(4), “Law Enforcement Departments shall follow up the reports of suspicious transactions or suspected proceeds of a crime and collect evidence thereon”. Thus, some questions arise in this context. Will the DESC have precedence over the AMLSCU in relation to money laundering cases perpetrated under its jurisdiction? And since the AMLSCU is authorised to share information on STRs only with “Law Enforcement Departments” and international counterparts, are new legislative requirements needed to enforce and facilitate information sharing between the AMLSCU and the DESC?
It is clear that the DESC is meant to be a clearinghouse on economic crime information. Its members will represent Dubai at various local and international platforms “to exchange experience, knowledge and information about economic security”. The extent of “knowledge and information” to be shared with other international organisations is yet to be established.
The DESC is also expected to play a role in disrupting terrorist networks by “developing rules and procedures to prevent interactions with individuals or organisations involved in terrorism or with any individual having any connection to such organisations” (Uncredited, 2016a).
As Eissa candidly observed, “We still do not know to the whole extent of how the law will be applied and how the Centre [DESC] will be structured”. However, one thing is clear: the Centre has been granted a wide range of judicial powers to investigate economic crimes. These include:
requesting the Public Prosecution to seize funds, property, documents, papers and any other things related to acts detected by the Centre’s staff;
coordinating with the relevant international institutions to gain access to information and data related to investigations being conducted by the Centre;
suspending trading in the stock market, freezing, suspending or reactivating any regulations or rules related to the financial market or any operation thereof; and
requesting the details of bank accounts, balances and activity of any natural or legal person, in coordination with the relevant bodies, who shall fully cooperate with the Centre in this regard.
All of the above seem meant to expedite and streamline economic crime investigation by correcting the aforementioned informational fragmentation and lack of information sharing among UAE regulatory authorities and law enforcement agencies in regards economic crime investigational. However, to enforce these powers, the legal, supervisory and regulatory frameworks of various entities and agencies have to be tailored to meet the requirement of “full cooperation”. Though judicial cooperation is assured in Dubai by Federal Law No. (39) of 2006 on International Judicial Cooperation in Criminal Matters and by multilateral and bilateral treaties, it is unclear whether relevant international institutions, envisioned as sharing information with the DESC, are yet authorised to do so. In regard to money laundering, as mentioned earlier, only the AMLSCU has legislative powers to exchange information on money laundering cases. This is presumably in flux as, according to one news source: “The new law [the DESC Law] annuls any other legislation that contradicts or challenges its provisions” (Uncredited, 2016a).
The law entrusts to DESC’s employees the “the capacity of judicial officers,” “entitled to solicit the assistance of the police and other relevant bodies whenever necessary to conduct their investigations”. Hence, Article 20 sets confidentiality requirements for the DESC’s “employees and all persons having any connection to the Centre,” with unauthorised disclosure of confidential information “punishable by imprisonment for a period of three months to one year and a fine of up to AED50,000” (Lassoued and Eissa, 2016).
In regard to exchange of information, the law requires full cooperation in disclosure of information to the Centre in response to its requests. In the event of noncooperation, the DESC “may resort to the judicial authorities to obtain the required information”. Article 21 states that: “a Resolution will be issued by the Chairman of the Executive Council of Dubai, setting out the administrative violations of the Law and the associated penalties” (Lassoued and Eissa, 2016).
It is important to note that the DESC Law is the first Dubai law to deal with the protection of whistleblowers. Until recently, there has been no statutory protection for whistleblowers in UAE law. As one author points out, it is “a very rare case among the MENA countries” to have legal and regulatory provisions to protect whistleblowers (Braendle, 2013). However, the UAE is an exception. For the first time, whistleblowers were protected for voluntarily reporting money laundering to the authorities under Federal Law No. (9) of 2014, the amended AML law, which requires the relevant authorities to provide protection for witnesses or the accused in offences of Money Laundering, Financing of Terrorism and/or Financing of Unlawful Organisations, whenever it is required or in case of fear for the lives of the witness(es) or accused.
The DESC Law included protection for those that report crimes to the Dubai Economic Security Centre (DESC). Under Article 19, the law provides for “protection for the reporter,” stipulates that “the reporter's freedom, security and protection shall be guaranteed, and that no legal or disciplinary action may be taken against the reporter unless the report is false” (Ford and Braganza, 2016). The Centre is supposed to protect and ensure the safety of individuals collaborating with it “for the purpose of maintaining the economic security of the emirate” by not disclosing information about the identity and whereabouts of the collaborator (Uncredited, 2016c). The Centre is empowered to protect whistleblowers from employers’ retaliation and workplace discrimination and mistreatment (Lassoued and Eissa, 2016).
While there is an obligation to report criminal activity, set out in Article 274 of the UAE Penal Code, in practice whistleblowing is rare in the UAE. As noted earlier the UAE has a complex cultural, ethnic and socio-economic composition with the majority of its workforce coming from other countries, especially at the labour, lower and middle management levels. Migrant labourers can work in the UAE for as long as their employer provides sponsorship for a work permit. An individual does not have the legal right to reside in the UAE without such sponsorship or such a permit. Article 15 of the UAE Labour Law states the Ministry of Labour and Social Affairs may cancel work permits in case of unemployment for more than three months, a failure to meet permit’s conditions, and if the employee can be replaced by a qualified Emirati. If an employment contract is terminated and an expatriate does not find another employment within the required three months, he/she will be forced to leave the country.
Furthermore, according to the UAE Labour Law, employers can terminate a contract when its term has come to an end. In this case, the employee will at least be notified whether his contract would not be extended. But Article 120 lists 10 circumstances under which the employer can terminate the employee without notice. One is “If he [employee] divulges any secrets of the establishment where he is employed”. What falls under “any secret” is not specified in the law, and thus can be broadly interpreted. Additionally, if the employee discloses confidential information about his employer to any regulatory authorities or even to the police, not only may he or she be in breach of their employment contract, but they may also be in breach of the law. (Doing this can be considered a criminal offence under Article 379 of the UAE Penal Code). In addition to the criminal liability, a disclosure can be viewed by an employer as a breach of the Civil Code, Article 905 (5) of which states that “the employee must keep the industrial or trade secrets of the employer, including after the termination of the contract, as required by the agreement or by custom” . In this case the employer can file a civil suit against the whistleblower for damages.
As the DESC has not (as of this writing) been formally established yet, it is premature to assess its role and effectiveness. But its applicability in other emirates and protection for whistleblowers, which report the wrongdoings not to the DESC but to the police and the public prosecutor, as required under the UAE Penal Code, is not clear.
The 2016 creation of the Dubai Economic Security Center may mark a significant change in that emirate’s approach to economic crime. Though the DESC itself is (as of this writing) still in a formative state, it is clearly intended to be a comprehensive response to local concerns about economic crime; its mandate appears tailored to help mitigate the multi-jurisdictional problems with which law enforcement has hitherto contended. The body the 2016 law established appears intended to serve as not only an informational clearinghouse but also an organisational entity with significant roles in law enforcement and even legislation. Its formation, organisation and ultimately its performance will bear close watching.
Interview with author Dr Ibrahim Al Mulla (Dubai Police Academy), 4 Oct. 2015, translation and transcription by Mira Saeed Lootah and Hamda Faidallah Abdulkarim.
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Federal Law No. (8) of 1984 as Amended by Federal Law No. (13) of 1988, Commercial Companies, Article (111) and (322).
Government of Dubai Human Resources Management Law No. (27) of 2006 and Law No. (14) of 2010 Amending certain provisions of the Government of Dubai Human Resources Management Law No. (27) of 2006, Article (11)(2) and (13)(1) and (4).
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Interview with Mohamed Eissa, Senior Associate, Al Tamimi & Co., July 14, 2017.
Because of the absence of an official English translation of the law as of this writing, media coverage, legal and compliance firm reports and the interview with a Dubai-based lawyer, Mohamed Eissa, are used in this analysis.
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