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	(98105,5329,'content_description','On 9 December 2015, Case No. 304/1993 - the longest-running construction case before the UAE courts - ended after more than 20 years. '),
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	(98107,5329,'pageSummary','On 9 December 2015, Case No. 304/1993 - the longest-running construction case before the UAE courts - ended after more than 20 years.'),
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	(98119,5329,'_yoast_wpseo_metadesc','On 9 December 2015, Case No. 304/1993 - the longest-running construction case before the UAE courts - ended after more than 20 years. Al Tamimi & Company successfully defended the First Joined Defendant, a major international engineering and construction company.'),
	(98120,5330,'content','March 2016\r\n\r\n<hr />\r\n\r\nHowever, the question is: will the employer be entitled to the said Delay Damages if the employer terminated the contract with the contractor? If the answer is no, is there any alternative way under the UAE law to assist the employer to claim compensation for the losses resulted from the contractor’s delay?\r\n\r\nIn a case in which Al Tamimi &amp; Company represented the contractor, the Abu Dhabi Court of Cassation held, in Appeal Case 424 &amp; 483 of 2015, that if the employer terminates the contractor before the completion of the works, the employer is not entitled to sue for the Delay Damages stated in the contract. However, the Cassation Court highlighted that the employer, in such circumstances, is entitled to prove and claim for any damage that may have resulted from the contractor’s delay (i.e. claim damages in tort).\r\n\r\n<strong>The facts of the case</strong>\r\n\r\nIn May 2008 a the parties entered into a construction contract based on the FIDIC 1999 (Red Book) to build a mall and a hotel. The project value was around AED 418 million, although it was subsequently amended to AED 355 million. The value of the work done by the contractor, including the additional works, was around AED 258 million. The project was delayed due for several reasons and the employer terminated the contract.\r\n\r\nFollowing the employer’s termination, the contractor filed a case before the Abu Dhabi Court of First Instance to claim unpaid fees.On the other hand, the employer filed a counterclaim, whereby the latter reserved his  right to claim compensation from the contractor due to the damage resulting from the contractor’s delay in the project The employer argued that the contractor’s case was premature. The Court appointed engineering experts to settle the final account between the contractor and the employer.\r\n\r\nThe experts concluded that the contractor was due payments of around AED 70 million. The experts further stated that the employer was entitled to Delay Damages under the contract of an amount of AED 41 million, and thus the net payment due to the contractor was around AED 29 million.\r\n\r\nThe Court of First Instance decided not to accept the contractor’s case, holding with the employer that the claim was premature and dismissed the counterclaim made by the employer.\r\n\r\n<strong>Court of Appeal</strong>\r\n\r\nThe contractor approached Al Tamimi &amp; Co to file an appeal before the Abu Dhabi Appeal Court.\r\n\r\nThe employer also filed an appeal for his counterclaim, claiming compensation from the contractor for damages resulting from the contractor’s delay in completing the project.\r\n\r\nThe Appeal Court appointed a different panel of engineering experts to settle the final account between the contractor and the employer.\r\n\r\nThe experts reached the conclusion that the contractor was due payments of around AED 27 million. However, one of the experts gave a dissenting opinion, concluding that the delay damages should not be deducted from the contractor and thus he recommended that the contractor be to AED 72 million.\r\n\r\nNevertheless, the Court of Appeal upheld the judgment issued by the Court of First Instance that the claim was premature.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nThe contractor filed an appeal before the Court of Cassation, arguing again that the case was not premature. Although the Appeal judgment rejected the employer’s counterclaim, the employer did not challenge the judgment before the Cassation Court.\r\n\r\n<strong>As regards the employer’s claim for delay damages</strong>\r\n\r\nthe contractor argued that if the original obligation (i.e. the obligation to execute the project) is terminated, then the other obligations set out in the said contract, including the Delay Damages clause, are also terminated and cannot be applied anymore. Accordingly, the legal basis for claiming compensation, if any, can only be based on tortious liability. Therefore, the employer is not entitled to apply the Delay Damages clause,  having terminated the contract before the completion of the project’s works.\r\n\r\nThe Court of Cassation accepted the contractor’s appeal, and decided to return the case to the Appeal Court to review the dispute. The Appeal Court decided to return the case to the Court of First Instance, since the latter had decided before that the case was premature and so had not reviewed the merits. The contractor objected to this, and the Court of Cassation upheld the objection. In doing so, the Court of Cassation decided, among other things, that the employer is not entitled to apply the Delay Damages clause having terminated the contract before the completion of the project’s works. The Cassation Court further highlighted that the employer was only entitled in such circumstances to claim compensation from the contractor based on the actual damages resulting from the contractor’s delay based on tortious liability. The Court then concluded that, since the employer’s claim had been rejected by the Court of First Instance and the Court of Appeal with no challenge being made by the employee to these judgments, the employer was no longer entitled to claim compensation for the delay (whether based in contract or tort).\r\n\r\n<strong>The importance of the judgment</strong>\r\n\r\nThis Court of Cassation judgment confirmed, among other things, that clauses regarding Delay Damages cannot be invoked after the employer has terminated the contract if the termination took place before the completion of the project. In such circumstances, the employer’s claim for compensation for the contractor’s delay will only be based on tortious liability, whereby the employer will be obliged to prove the following:\r\n<ul>\r\n 	<li>The contractor was solely responsible for the project’s delay.</li>\r\n 	<li>The causal link between the delay and the damages suffered.</li>\r\n 	<li>The quantum of damage resulted from the project’s delay.</li>\r\n</ul>\r\nIt is therefore recommended that employers seek expert legal advice before terminating a contract to determine whether the termination will negatively affect any future claim for damages.'),
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	(98101,5329,'content','March 2016\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Company successfully defended   the First Joined Defendant, a major international engineering and construction company. The dispute was in connection with the construction of a sewage system in Abu Dhabi, which was completed in 1983 (‘the Project’). In the years following its completion, substantial defects were discovered in the sewage system. The case was very complex with lengthy facts, and this article will only briefly discuss the main aspects.\r\n\r\nIn 1993 the Plaintiff, a government body in the Emirate of Abu Dhabi, in its capacity as the Project employer, initiated legal proceedings in the Abu Dhabi Court of First Instance against the First Defendant, an international engineering consultancy firm (that acted as the Project’s consultant and engineer), and the Second Defendant, an insurance company. The Plaintiff claimed damages in the amount of approximately US$100,000,000 for the losses it sustained due to the allegedly defective design and supervision of the construction of the Project by the First Defendant (plus interest, loss of profit and all costs incurred by the Plaintiff).\r\n\r\nIn June 1996, the First and Second Defendants brought a subsidiary action against the First Joined Defendant (the main contractor in the construction of the Project) in the same case claiming damages equal to the amount that the First and Second Defendants would be ordered to pay to the Plaintiff should the Plaintiff succeed in its claim. Later the First and Second Defendants also brought subsidiary actions against three other contractors. In March 2001, the Court of First Instance joined the First Joined Defendant and the other contractors as co-defendants in the case following an interlocutory application that was submitted by the Plaintiff requesting that   the First Joined Defendant and the other contractors be made jointly and severally liable with the First and Second Defendants for the entire amount of the damages. As a result,    the First Joined Defendant was faced with a situation in which  it was required to defend two claims in parallel in the same case, one by the First and Second Defendants, and one by the Plaintiff.\r\n\r\nAn international engineering expert was appointed by the court (‘the Court Expert’) in 2001 to provide expert evidence in this case. The Court Expert submitted his report in November 2005 and all of the parties raised various objections with respect to the contents and findings in the Court Expert’s report. The Court Expert later submitted his final supplementary report in 2011, in which he concluded that the First Defendant should be liable for some of the losses sustained by the Plaintiff since the First Defendant was responsible for the design of the sewage pipes and the supervision of the Project works in its capacity as the consultant and engineer with the requisite expertise. The Court Expert also concluded that the  the First Joined Defendant should be partly liable as it was, among other things, responsible for the construction of the Project.\r\n\r\nEver since the claim was brought by the First and Second Defendants against the First Joined Defendant in June 1996,   the First Joined Defendant argued that the claim against it should not be heard and should be dismissed on the basis that the claim was time-barred under Article 883 of the UAE Civil Code. Article 883 provides that “no claim for compensation shall be heard after the expiration of three years from the collapse or the discovery of the defect”. The  First Joined Defendant argued that the Plaintiff and the First and Second Defendants discovered the last defects in the Project in 1991 but the subsidiary action against  the First Joined Defendant in connection with the defect did not commence until 1996, i.e. after the expiration of the 3-year limitation period imposed by Article 883. The    First Joined Defendant adopted also the same legal defence when it was joined to the case as a co-defendant in 2001 at the Plaintiff’s request.\r\n\r\nIn March 2013, the Court of First Instance issued its judgment in case No. 304/1993 with respect to the Plaintiff’s claim and the First and Second Defendant’s subsidiary actions. It dismissed both claims against  the First Joined Defendant on the basis that the  the First Joined Defendant was not joined in the case as a co-defendant until after three years had passed from the discovery of the defect in the Project and, therefore, the claim and the subsidiary action against    the First Joined Defendant was statute barred pursuant to Article 883 of the UAE Civil Code. In addition, the Court of First Instance ruled against the First Defendant and Second Defendant and awarded part of the claimed damages in favour of the Plaintiff. The judgment was then appealed to the Court of Appeal.\r\n\r\nOn 17 March 2015, the Court of Appeal issued its decision and upheld  the First Joined Defendant’s legal defense, affirmed the Court of First Instance’s ruling and rejected the appeals of the Plaintiff and the First and Second Defendants respectively.\r\n\r\nSubsequently, the Plaintiff and the First and Second Defendants each appealed the Court of Appeal’s judgment to the UAE Federal Supreme Court (the Court of Cassation) in Appeals No. 319/2015 and 320/2015.\r\n\r\nFinally, on 9 December 2015, the Court of Cassation issued its judgment in favour of    the First Joined Defendant and rejected both of the foregoing appeals. The following is an extract from the Court of Cassation’s judgment setting out its reasoning:\r\n\r\n“...the collapse in the works of both agreements occurred during the warrantee period and the First Appellant did not file its sub-claim during the three years prescription period (time-limitation), therefore, it shall not be heard. The appealed judgment contained a feasible reply substantiated by the facts established in the papers, especially the submitted expert’s report which contained a sufficient investigation of all disputed technical elements, the terms and amounts of the agreements, the damage resulting from the poor execution of the works, the amounts payable therefore and the responsible party. The judgment was based on valid evidence in relation to the plea raised by both the defendant parties. The reasoning of both the defendants’ appeals relate to the discretion of the Court of Merits [i.e. Court of First Instance] to understand the facts of the claim, assess evidences and documents, and assess the expert’s mission as well as the authority of the court to conclude elements of the contractual obligation to determine whether they are available or not, and to determine whether compensation for damage, if any, is due or not. All these arguments raised by the appellants in the second appeal relate to the judgment issued by the court of first instance, which is not a proper reason for appealing.”\r\n\r\nOverall, there are a few points arising from this case that are worth highlighting:\r\n<ul>\r\n 	<li>The time-bar principle in construction disputes should be considered at the beginning of the dispute and, when relevant, should be raised as a leading defence. With regards to construction-related disputes, the most important (but not the only) time-bar rules are found in Articles 880 and 883 of the UAE Civil Code. For a more detailed review of the foregoing time-bar rules, please refer to the article ‘Time Bars in Articles 880 and 883 of the UAE Civil Code (Regarding Construction Disputes)’, by J. Kudsi, Law Update Issue 269, May 2014, available on the Al Tamimi &amp; Company website.</li>\r\n 	<li>It is for the Court of Merits (i.e. the Court of First Instance) to understand the facts of the dispute, assess the evidence and documents and assess the Court Experts’ reports. The Court of Merits has the authority to ascertain the elements of the contractual obligation to determine whether they are available or not, and to determine whether compensation for damage, if any, is due or not.</li>\r\n 	<li>The main reason for the long delay in this case was due to the First and Second Defendants bringing subsidiary actions against many parties and the Plaintiff joining additional parties as co-defendants to the case at different times. There were a total of eight parties involved in this case. Moreover, there was a delay in finalizing the international Court Expert’s reports. The Court Expert, who was not based in the UAE, attended numerous meetings with the parties of the case and their legal and technical advisors, and interviewed many witnesses, and the reports produced by the Court Expert were subject to many discussions and debates.</li>\r\n 	<li>It is important that parties to a construction dispute instruct their own technical advisor to assist them because the court will appoint its own technical expert and will usually rely on his report when issuing the judgment. A party is better placed to assess and successfully object to the findings of the Court-appointed expert if it has its own expert on hand to offer expert advice.</li>\r\n</ul>'),
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	(98078,5328,'content_description','In a widely awaited judgment, the DIFC Court of Appeal has confirmed that parties may enforce foreign judgments in the DIFC and then take the resulting DIFC Court order to the Dubai Courts for execution outside the DIFC.'),
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	(98080,5328,'pageSummary','In a widely awaited judgment, the DIFC Court of Appeal has confirmed that parties may enforce foreign judgments in the DIFC and then take the resulting DIFC Court order to the Dubai Courts for execution outside the DIFC.'),
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	(204164,5328,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Tarek Shrayh'),
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	(98088,5328,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Robert Karrar-Lewsley'),
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	(98049,5325,'content_description','Many insurance policies contain clauses that require disputes to be resolved by arbitration, rather than through the courts. '),
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	(98051,5325,'pageSummary','Many insurance policies contain clauses that require disputes to be resolved by arbitration, rather than through the courts.'),
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	(98059,5325,'_yoast_wpseo_metadesc','Many insurance policies contain clauses that require disputes to be resolved by arbitration, rather than through the courts.'),
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	(98026,5324,'content_description','Major step Towards a Free and Competitive Electricity Market in Egypt'),
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	(98028,5324,'pageSummary','Major step Towards a Free and Competitive Electricity Market in Egypt'),
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	(98032,5324,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Bassam Moussa'),
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	(98044,5324,'_yoast_wpseo_metadesc','Egyptian Electricity Law, issued by law no. 87 for year 2015 last July, (the “Electricity law”) along with its executive regulation, which is expected to be issued before the end of the year, will represent the general legal framework for the electricity sector for decades to come.'),
	(98045,5325,'content','February 2016\r\n\r\n<hr />\r\n\r\nFor the most part, insurance companies generally prefer arbitration over the traditional judicial system. However, some countries, such as Qatar, have statutes that purport to impose some restrictions on insurance companies in inserting arbitration clause in their policies. The principle adopted by the Qatari legislature is that any dispute should be resolved by the courts, and the arbitration is an exceptional way to resolve such disputes.\r\n\r\nA few years ago, a fire broke out in a mall in Doha owned by the claimant resulting in severe damages. The Claimant submitted a claim before the Qatari courts against the insurance company under the insurance policy for the losses suffered, noting that the dispute resolution clause in the insurance policy refers to arbitration and not to the Qatari courts.\r\n\r\nAt the first hearing before the Qatar Court of  First Instance, the defendant pleaded that the case should be dismissed and referred to arbitration, because the insurance policy contained an arbitration clause.  In this particular insurance policy the arbitration clause was only contained in the general terms of the policy.\r\n\r\nAccordingly, the claimant argued that the arbitration clause was not valid, since it should have been included in the specific terms of the insurance policy. Having the arbitration clause in the general terms did not suffice, and therefore the Qatari court should have had jurisdiction regarding this dispute.\r\n\r\nThe claimant cited Articles 775, 801 and 107 of the Qatari Civil Procedure Code in its submissions. Article 775 of the Civil Procedure Code applies to insurance policies and provides that: “it shall not be permissible to challenge the insured neither with the conditions relating to nullity or loss of right unless it was clearly presented, nor the arbitration clause unless it was made in a special agreement independent of the general conditions.”\r\n\r\nHowever, the court of first instance did not accept the claimant’s argument, and held that, even if the arbitration clause was not separately presented in the general insurance policy and, was nevertheless included in the general conditions of the policy, the arbitration clause was still enforceable. Therefore the court of first instance dismissed the case on the basis that the insurance policy included an arbitration clause, notwithstanding that it was set out in the general conditions of the policy.\r\n\r\nThe claimant filed an appeal before the Qatari court of appeal based primarily on Articles 775, 801 and 107 of the Qatari Civil Code, in conjunction with other supporting references from the doctrine and jurisprudences. Respected civil law jurists, such as Sanhouri, are of the view that an arbitration clause in an insurance policy should be set out in the policy in such a way as to obtain special attention from the insured/beneficiary, so as to ensure that the insured/beneficiary is aware of the inclusion of the arbitration clause and therefore such clause should be separated from the insurance policy.\r\n\r\nThe court of appeal rendered a judgment in favour of the claimant and held that the arbitration clause should be contained separately in the insurance policy in order to be enforceable. The arbitration clause has an autonomous nature, and must be clearly apparent and the arbitration clause must be separate from the insurance policy.\r\n\r\nTherefore, if insurance companies want to ensure that an arbitration clause in an insurance policy is enforceable in Qatar, then based on this recent court of appeal judgment it would appear that the most prudent course of action would be for insurance companies to arrange for the insured/beneficiary to sign a separate arbitration agreement alongside the insurance policy; or at least place the arbitration clause as an independent annex to the insurance policy. Otherwise an insurance company runs the risk that the Qatari courts will state that the arbitration clause is not enforceable and will not be valid under Qatari law.\r\n\r\n&nbsp;'),
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	(98003,5323,'content_description','Kuwait is currently in a position of adopting significant reform of most of its commercial legislation, particularly those related to the economy where there is a persistent need to find various resources to eliminate the recent deficit in oil prices. '),
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	(98005,5323,'pageSummary','Kuwait is currently in a position of adopting significant reform of most of its commercial legislation, particularly those related to the economy where there is a persistent need to find various resources to eliminate the recent deficit in oil prices.'),
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	(98009,5323,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ayman Salem'),
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	(98021,5323,'_yoast_wpseo_metadesc','Al Tamimi & Company discusses the role of project finance loans as a means of raising funds on a limited recourse basis to the extent that a lender can primarily look into projected cash flows of that project as a security in addition to the suitable collateral typically taken under these kind of loans.'),
	(98022,5324,'content','February 2016\r\n\r\n<hr />\r\n\r\nEgyptian Electricity Law, issued by law no. 87 for year 2015 last July, (the “Electricity law”) along with its executive regulation, which is expected to be issued before the end of the year, will represent the general legal framework for the electricity sector for decades to come. The Electricity Law, a long awaited reform, paved the way to move from a state monopoly into a free market for electricity.\r\n\r\nThe law provided for open market for electricity generation and distribution, while maintaining transmission under state control through the ownership and monopoly of the national electricity transmission grid through the Egyptian Electricity Transmission Company (“EETC”).\r\n\r\nA key ingredient of a free and fair electricity market is independent and neutral transmission network operator, which is essential to avoid conflict of interest between the owner/operator of the network and users of the network, in addition to ensuring  impartial treatment of all players, producers and/or distributors. Hence, the Electricity Law mandated that EETC shall be restructured to become a Transmission System Operator independent from all of the electricity sector related parties within three years. The Ministry of Electricity and Energy has taken steps to achieve this in collaboration with the World Bank.\r\n\r\nThe second pillar of a competitive electricity market is the regulator. The Egyptian Electric Utility and Consumer Protection Regulatory Agency (“EgyptERA”) was founded in the year 2000 by virtue of a presidential decree and has been carrying the regulator rule since that date. Under the Electricity Law EgyptERA has been reorganised as an independent government agency established by law empowered with the necessary powers to regulate, supervise, and develop all aspects of electricity from generation to consumption, through transmission and distribution of electricity. Under the Electricity Law EgyptERA is responsible of ensuring the availability, quality, and stability of electric power supply at suitable prices.\r\n\r\nBig part of EgyptERA’s role is promoting investment and free competition in the electricity sector. To that end, EgyptERA is entrusted with issuing rules and adopting policies that will achieve this goals and empowered to take actions against any market player who is involved in any anti-competitive behaviour.\r\n\r\nIn order for the competitive electricity market to function properly, there must be sufficient, if not surplus, of supply of electric power. In recent years, Egypt has witnessed record shortages of electric power. However, the Ministry of Electricity has adopted an emergency programme for the maintenance and renovation of existing power stations as well as building new stations with an aggressive plan of adding a total of 18,000 megawatts of installed capacity by year 2018 from conventional sources. In parallel, the New and Renewable Energy Authority embarked an ambitious renewable energy programme aiming to generate 20% of electricity from renewable sources by 2020. Under this programme, a Feed-in Tariffs scheme has been introduced by law 203/2014, and round-one of developers has been selected with a total capacity of 4300 megawatts expected to come into service by 2017. In addition to 950 megawatts wind and solar BOO projects that are currently being tendered at different stages.\r\n\r\nBottom line, while there is still a long way to transform electricity sector into a functioning free and competitive market, there some positives to be taken. Egypt has initiated the transformation with a fundamentally sound legal framework and is taking the steps toward restructuring the electricity state-owned enterprises, building capacity of concerned authorities and taking steps to secure reliable and steady supply of electricity.\r\n\r\nA version of this article first appeared in the December 2015 edition of IFLR Magazine International Briefing Egypt.\r\n\r\n&nbsp;'),
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	(84149,4589,'content_description','INTRODUCTION: Al Tamimi & Company has published articles separately about extradition and bounced cheques.  '),
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	(97998,5322,'_yoast_wpseo_metadesc','The regulation of financial services in GCC countries takes different forms. Alone within the GCC Bahrain has opted for the unitary approach.'),
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	(97965,5321,'content_description','The perils of failing to discharge an execution judgment issued by the UAE Labour Court\r\n'),
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	(97967,5321,'pageSummary','The perils of failing to discharge an execution judgment issued by the UAE Labour Court'),
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	(97975,5321,'_yoast_wpseo_metadesc','The perils of failing to discharge an execution judgment issued by the UAE Labour Court.'),
	(97976,5322,'content','February 2016\r\n\r\n<hr />\r\n\r\nOne body, in the form of the Central Bank of Bahrain (CBB), regulates both the conduct of financial services business in (or from within) Bahrain as well as the financial institutions that provide those services.\r\n\r\nThe CBB argues that this approach creates a consistent and coherent regulatory model that can be applied across the board and it also provides a straightforward and efficient regulatory framework for financial services firms operating in Bahrain.\r\n\r\nHowever as the following summaries demonstrate, different regulatory approaches are possible. Often - leaving to one side the regulation of international financial centres -- the regulation of capital markets is undertaken by a separate body on the grounds that the ongoing supervision of capital markets is generally distinct from the regulation of financial services. Indeed it could be argued that the CBB tacitly acknowledges this by virtue of the fact that the supervision of Bahrain’s capital markets is undertaken by a dedicated unit within the CBB, namely the Capital Markets Supervision Directorate. Viewed in this light, one perfectly feasible conclusion is that the Bahrain’s unitary approach is, in reality, not so different for the multi-agency approach taken by the other GCC countries.\r\n\r\n<strong>Qatar</strong>\r\n\r\n<strong>The financial regulators in Qatar, outside the Qatar Financial Centre (QFC), are mainly the Qatar Central Bank (QCB) and the Qatar Financial Markets Authority (QFMA) as the onshore regulators and the Qatar Financial Centre Regulatory Authority (QFCRA) in respect of the QFC, a separate financial free zone located in Qatar with its own civil and commercial laws and court system with no geographical boundaries. </strong>\r\n\r\nThe QCB is the primary regulator of financial institutions operating in Qatar, and the QCB Law No 13 of 2012 expanded the QCB’s supervisory powers to cover the QFC financial institutions. Presently there is no practical impact of the expansion of the QCB powers on the QFC financial institutions and the QFC banks remain subject to the supervision of the QFCRA.\r\n\r\nThe Qatar Central Securities Depository (QCSD) was established by the QCB and Qatar Exchange (QE). The QCSD has assumed the duties relating to central clearing, depository and registry activities which were previously undertaken by the QE. The QCSD also provides related services, including registration, acceptance and transfer of government bonds and treasury bills (T-bills). The QCSD offers additional services including DvP, securities lending and borrowing settlement, management and follow-up of limits placed on non-Qatari shareholders, registration and authorisation of exchange-traded funds as well as services in connection with initial public offerings.\r\n\r\nQatar has executed an InterGovernmental Agreement (IGA) with the United States in relation to compliance with the US Foreign Account Tax Compliance Act (FATCA). The QFC was first set up to offer domestic and international firms the opportunity to establish and provide a broad range of financial services related to banking, asset management and insurance businesses. In addition to its financial regulated activities QFC has expanded the scope of its permitted activities to include non-regulated activities that are not “financial services” in nature. The QFC offers its own legal, regulatory, tax and business infrastructure which allows 100 percent foreign ownership, unlimited repatriation of profits and charges a competitive rate of 10 percent corporate tax on locally-sourced profits. Since the QFC is not a separate geographical zone all entities in the QFC operate on a fully-onshore basis with the availability to access the local market and operate from over 50 locations all over Doha with no restrictions on the currency they can trade in.\r\n\r\nRecently Qatar has issued strategic legislation in response to the speed of development in the economy and business. This includes the new Qatar Central Bank Law, the QFMA Law, the Real Estate Development Law and, the most recent, new Companies Law.\r\n\r\n<strong>Kingdom of Saudi Arabia</strong>\r\n\r\n<strong>Financial regulation in the Kingdom of Saudi Arabia (KSA) is primarily carried out by the Saudi Arabian Monetary Agency (SAMA - the Central Bank of KSA) and the Capital Market Authority (CMA). </strong>\r\n\r\nSAMA is the regulatory authority for activities involving the banking and insurance industries while the CMA regulates licensed securities businesses (investment banks).\r\n\r\nAs well as dealing with the banking affairs of the KSA Government, SAMA performs a variety of important functions pursuant to a number of KSA laws and regulations. SAMA is tasked with promoting the growth of the financial system and ensuring its soundness and has a supervisory role over: commercial banks and money exchange dealers; co-operative insurance companies and other professions relating to the insurance sector; finance companies; and credit information companies.As a supplement to laws and regulations, SAMA issues industry circulars from time to time to KSA-licensed banks and insurance companies. These circulars act as formal directives that must be followed and the compliance department of SAMA is very active in reviewing operations of licensed institutions in KSA to ensure consistency and compliance with laws and directives.\r\n\r\nMany of the industry standards promoted by SAMA follow international trends, so SAMA will continue to be very proactive in implementing policies and procedures to address matters such as the eradication of illegal financial transactions – particularly money laundering and terrorism financing.\r\n\r\nImportantly, in 2004 SAMA also began supervising KSA’s only licensed credit bureau known as SIMAH, offering consumer and commercial credit information services to KSA members. In order to access credit information of potential clients (individual or corporate), the requesting entity must be a registered member of SIMAH.\r\n\r\nInvestment banks in KSA are licensed securities businesses (called Authorised Persons) and they may hold one or more of the following five security business licenses issued by the CMA: Arranging; Advising; Managing; Dealing; and/or Custody.\r\n\r\nThe CMA’s primary functions are to regulate and develop the KSA’s capital market by issuing rules and regulations for implementing the provisions of the Capital Market Law. The basic objectives are to create an appropriate investment environment, boost confidence and reinforce transparency and disclosure standards in all listed companies and, moreover, to protect the investors and dealers from illegal acts in the market.\r\n\r\nIn a similar manner to SAMA, the CMA also issues industry circulars from time to time to KS- licensed security businesses. These circulars act as formal directives that must be followed and the compliance department of the CMA is very active in reviewing operations of licensed security businesses in KSA to ensure consistency and compliance with laws and directives.\r\n\r\nAs well as dealing in securities, investment banks are able to manage real estate investment funds and offer financial investment advisory services to clients.\r\n\r\nIn recent years the CMA has introduced initiatives relating to the KSA stock market (Tadawul) in an effort to allow foreign investment in KSA-listed equities. For example, in 2008 equity swaps were made available and in June 2015 the CMA rules that allowed qualified foreign investors to invest directly in Tadawul came into force.\r\n\r\n<strong>United Arab Emirates</strong>\r\n\r\n<strong>The regulatory landscape in the United Arab Emirates (UAE) consists of three principal bodies: the UAE Central Bank (Central Bank) and the Securities and Commodities Authority (SCA) as the onshore regulators and the Dubai International Financial Services Authority (DFSA) in respect of the Dubai International Financial Centre (DIFC), a separate financial free zone located in Dubai with its own civil and commercial laws and court system. The list of regulators will soon be expanded to include the Financial Services Regulatory Authority as regulator for the Abu Dhabi Global Market, a recently-launched financial free zone located in Abu Dhabi similar to the DIFC.</strong>\r\n\r\nThe Central Bank has devolved the securities and markets regulation to SCA as part of the UAE’s efforts to develop a more sophisticated regulatory framework. The Central Bank now oversees banking and financial business. The SCA’s oversight, which was once limited to publicly-listed companies and the two securities exchanges, now also oversees custody, securities brokerage, funds, financial consultancy, research, and since 2015 investment management activities. Both the Central Bank and the SCA have been active in reviewing, amending and implementing changes to their respective regulations.\r\n\r\nThe enactment of the new federal Anti Money-Laundering law, brings the UAE’s position in line with international standards and expands the regulatory and enforcement powers of the Central Bank to impose administrative sanctions and restrict the powers of senior management. The UAE has also agreed with the United States to adopt Model 1B of the InterGovernmental Agreement (IGA) in relation to compliance with the US Foreign Account Tax Compliance Act (FATCA).\r\n\r\nHaving operated now for over 10 years and established critical mass, there have been recent and ongoing amendments to the DFSA’s regulatory regime as the DIFC matures as a jurisdiction and also partly in response to market demand (such as the introduction of qualified investor funds and other amendments). The DFSA has also increasingly been proactive with enforcement actions including the imposition of hefty fines.\r\n\r\nHe was assisted in compiling this article by his colleagues: Sarah El Serafy, Senior Associate Qatar; Ahmed Al Barwani, Head of Office, Oman; Omar Handoush, Senior Associate, Kuwait; Glenn Lovell, Partner, KSA; and Jody Glenn Waugh, Partner, UAE\r\n\r\nA version of this article first appeared in the Autumn 2015 edition of The Bahrain Banker Magazine.\r\n\r\n&nbsp;'),
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	(97940,5320,'pageSummary','There is a well-known legal principle that ‘ignorance of the law excuses no one’, which means that a person who is unaware of a law may not escape liability for violating that law, on the basis of such ignorance.'),
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	(204146,5320,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Ahmed Abdulshafe'),
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	(97948,5320,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sharif Jamous'),
	(97949,5320,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(97950,5320,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.jamous@tamimi.com'),
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	(97960,5320,'_yoast_wpseo_metadesc','There is a well-known legal principle that ‘ignorance of the law excuses no one’, which means that a person who is unaware of a law may not escape liability for violating that law, on the basis of such ignorance.'),
	(97961,5321,'content','February 2016\r\n\r\n<hr />\r\n\r\nIn recent years, labour disputes have become somewhat similar to televised court room dramas - highly charged and acrimonious given they often arise out of a breakdown in a previously working relationship. Emotions run high and professionalism is often lost in a war of words before the courts.\r\n\r\nThe UAE Labour Courts follow the same process as other claims filed with the UAE courts, in that there are three stages: Court of First Instance, Court of Appeal and Court of Cassation/Supreme Court.  Once a UAE Labour Court of Appeal issues its judgment and in the event that it is awarding an amount to the employee, that judgment may be enforced/ executed immediately notwithstanding that parties may further appeal the judgment before the Court of Cassation.\r\n\r\nIn order to enforce/execute the judgment an employee must approach the Execution Court and apply for the enforcement of the judgment.  The Execution Court will then serve notice on the employer seeking payment within 15 days from the date of the service of the notice. Historically, it was common practice for an employer to file objections and grievances to unnecessarily delay the payment since this would only be due once those applications had been considered by the courts.\r\n\r\nAs a means to secure the judgment debt the Execution Court has the power to impose certain measures. These include attachment orders on bank accounts, shares, stocks and bonds as well as on any real or tangible assets that the employer may have in the UAE. However, all of the above measures may take many months to finally conclude.\r\n\r\nIn a bid to address this reluctance to satisfy judgments and ensure a speedy resolution of the issues, the Ministry of Labour (‘Ministry”) has introduced added sanctions for any UAE entity failing to discharge a judgment debt within the 15 day deadline.\r\n\r\nMinisterial Resolution No 797 of 2014 (‘the Resolution”), which has been in effect since 1 October 2014, empowers the Ministry to suspend the business license of an entity for non co-operation or payment of a judgment issued by the Labour Courts. Furthermore, it may also order the issuance of an arrest warrant for the General Manager named on the employer’s license and the imposition of a travel ban. Moreover, the Resolution can also have a wider application by not only sanctioning the employer but also to a wider group of associated entities. Individual owners and partners of the defaulting entity may find that other entities, of which they hold a vested interest, are also subject to the Resolution’s sanction. The Ministry has announced that an employer must be given two advanced warnings of the proposed suspension, although the method or manner of communication is not clear or routinely followed. The newly imposed sanction will remain in effect until the Execution Court has received payment of the judgment in full (inclusive of accrued interest, court fees, etc) and requested the Ministry to raise the suspension.\r\n\r\nIncreasingly more and more disgruntled employees are taking advantage of the Resolution and are quick to approach the Execution Court to seek enforcement of a judgment closely followed by an urgent application to freeze the employer’s licence. The Execution Court does not hesitate to suspend the business license of a non compliant employer and we are noting that these suspensions are quickly becoming the norm and may be applied even without the requisite two advanced warnings.\r\n\r\nIn the event an employer fails to satisfy the judgment irrespective of a restriction having been placed on its business license, the Execution Court will proceed to issue an arrest warrant for the General Manager on the employer’s licence. Once arrested, the General Manager remains in custody until such time as the judgment and all associated costs have been satisfied in full and the Execution Court issues a clearance certificate confirming that all amounts due have been fully paid.\r\n\r\nThe procedure to remove the suspension and the arrest warrant is proving to be fairly arduous, time consuming and costly with varying applications necessary to ensure they are lifted correctly.\r\n\r\n<strong>Free Zone Entities </strong>\r\n\r\nAlthough free zone entities are governed by the relevant free zone authority and do not necessarily fall under the remit of the Ministry, they do not have explicit immunity from other UAE government departments. Therefore, there is a risk that the Resolution will empower the Ministry to extend its application to any related entity of the defaulting party irrespective of whether it is based onshore or within a free zone.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIn addition to the threat of an attachment order and a visit from Court Bailiffs, this new Resolution highlights, to all UAE entities and employers, the importance of prompt payment of judgments within the 15 day deadline from date of notification to ensure business operations are not brought to a sudden halt.'),
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	(97893,5317,'_yoast_wpseo_metadesc','Since 2007 there have been significant talks within the Gulf Cooperation Council (GCC) regarding the adoption of a unified trademark law.'),
	(97894,5318,'content','February 2016\r\n\r\n<hr />\r\n\r\nWhen it comes to identifying trademarks, there a number of categories to consider. Often, trademarks fall within one of the below categories, fanciful and arbitrary marks being the strongest, suggestive trademarks falling somewhere in the middle, descriptive trademarks being weaker but sometimes protectable, and generic trademarks being unprotectable under the trademark law.\r\n\r\n<strong>Fanciful trademarks </strong>\r\n\r\nA fanciful trademark is made-up, invented for the sole purpose of functioning as a trademark; it can also be referred to a coined term.  Words in such marks are entirely invented and do not refer to anything else. By way of example, a trademark such as Kodak is a good example of a fanciful trademark.\r\n\r\n<strong>Arbitrary Trademarks</strong>\r\n\r\nArbitrary trademarks are words that have a common meaning and are part of everyday language, but the meaning of the words is unrelated to the goods or services offered for sale under the mark. By way of example, the word Apple is common and part of everyday language, clearly describing a fruit in the literal sense; however the word Apple used in connection with computers and communication devices, renders the trademark as an arbitrary one.\r\n\r\n<strong>Suggestive Trademarks </strong>\r\n\r\nSuggestive marks are marks that suggest a quality or characteristic of the goods and services. Despite the fact that suggestive marks are not as strong as fanciful or arbitrary marks, suggestive marks are common due to the fact that, in the mind of consumers, they create a link to a product/services. Suggestive marks are often difficult to distinguish from descriptive marks (described below), since both are intended to refer to the goods and services in question. Suggestive trademarks require some imagination, in that they require a subtle leap in thought and perception, thereby allowing the consumer to reach a conclusion as to the exact nature of the goods/services. An example of a suggestive trademark would be the word Penguin as a brand for refrigerators, or Microsoft which is suggestive of software for microcomputers.\r\n\r\n<strong>Descriptive Trademarks</strong>\r\n\r\nDescriptive trademarks are words that merely describe some portion of the goods or services to be sold under the trademark. Through Court precedents, it has been established that trademarks that simply describe the ingredients, shapes, qualities or characteristics of the goods/services, are identified as descriptive trademarks.  As a rule of thumb, descriptive marks are not inherently distinctive and therefore cannot be protected because they use every day words to describe products and services. By way of example a trader in the business of operating a pizza restaurant, cannot register a trademark called “PIZAZZZ” since it is merely descriptive of the intended goods/services.\r\n\r\nHowever, some trademarks, although being identified as descriptive, can nevertheless be considered as trademark and therefore protectable. In order for a descriptive trademark to be protectable it is required to establish that it has acquired a secondary meaning. Secondary meaning indicates that although the mark is on its face descriptive of the goods or services, consumers recognise the mark as having a source-indicating function. The threshold of recognising a secondary meaning requires that the brand owner establishes widespread, long term and exclusive use. The acquisition of secondary meaning is often proven through the use of consumer surveys that show that consumers recognise the mark as a brand.\r\n\r\n<strong>Generic Trademarks </strong>\r\n\r\nGeneric trademarks are identified as the actual names of the goods/services and therefore are incapable of functioning as a trademark. Unlike descriptive marks, generic trademarks will not be recognized as trademarks even with longstanding and exclusive use, as generic trademarks are considered as part of the public domain and therefore one trader cannot claim exclusivity on such common terms.  As such, the rationale for creating the category of generic marks is that no manufacturer or service provider should be given the exclusive right to use words that generically identify the product/services. By way of example, a trader operating a hair salon cannot seek protection over the name “Hair Salon”.\r\n\r\nIn addition, a valid trademark can become generic over the years if the consuming public misuses the mark sufficiently for the mark to become the generic name for the product. Examples of trademarks that have become generic names for products are Klennex, Aspirin and Jacuzzi.\r\n\r\nTrademarks are an important asset, serving to distinguish a business’ products and services from those of other trademarks. Given the potential value of trademarks to almost any business and the cost of building brand awareness in the marketplace, the selection of an enforceable trademark is crucial.'),
	(164337,5318,'core_values',''),
	(164338,5318,'_core_values','field_59b64ab071de4'),
	(97895,5318,'_content','field_59b649b5c8b2b'),
	(97896,5318,'lawUpdateArticleMonth','5304'),
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	(97898,5318,'content_description','When it comes to developing a brand, whether it is a new business or an existing business looking to roll out new products, service names or slogans, the underlying challenge of selecting a trademark that is both legally protectable and marketable remains.\r\n'),
	(97899,5318,'_content_description','field_59b641c07f473'),
	(97900,5318,'pageSummary','When it comes to developing a brand, whether it is a new business or an existing business looking to roll out new products, service names or slogans, the underlying challenge of selecting a trademark that is both legally protectable and marketable remains.'),
	(97901,5318,'_pageSummary','field_59e59b307dec8'),
	(97902,5318,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/february-8/strength-of-trademarks.html'),
	(97903,5318,'_currentURL','field_59d35123ab1e7'),
	(97904,5318,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sadaf Nakhaei'),
	(97905,5318,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(97906,5318,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.nakhaei@tamimi.com'),
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	(97916,5318,'_yoast_wpseo_metadesc','When it comes to developing a brand, whether it is a new business or an existing business looking to roll out new products, service names or slogans, the underlying challenge of selecting a trademark that is both legally protectable and marketable remains.'),
	(97917,5319,'content','February 2016\r\n\r\n<hr />\r\n\r\nThis article discusses the new requirements for licensing as a developer in Abu Dhabi, including the conditions, procedures, deadlines and penalties set out by the Law and its implementing regulations.\r\n\r\n<strong>Deadline </strong>\r\n\r\nDevelopers operating in Abu Dhabi must apply for a licence and register on the Real Estate Development Register at the relevant Municipality no later than 31 March 2016.\r\n\r\n<strong>Penalties</strong>\r\n\r\nThe Law provides that no person may engage in real estate development in Abu Dhabi unless they have been registered in the Real Estate Development Register and licensed as either a master developer or a sub-developer. Developers who fail to apply for a licence and register by 31 March 2016 risk penalties of between AED 100,000 and AED 2,000,000. In addition, the Law provides that developers who are not licensed and registered will not be entitled to any fees, profits or rewards in return for the activities they undertake. If any fees, profits or rewards are received by a developer that is not licensed and registered, those fees, profits or rewards must be returned to the purchaser or, if it is not possible to return them, the developer must suitably compensate the purchaser.\r\n\r\n<strong>Licensing requirements</strong>\r\n\r\nThe registration of developers in the Emirate of Abu Dubai is regulated by the Department of Municipal Affairs (“DMA”). Only companies with real estate development activities permitted by their trade licence and registered with Abu Dhabi Chamber of Commerce and Industry may apply to the DMA for a licence to be recognised as a developer in Abu Dhabi.\r\n\r\nThe following documents must be submitted to the relevant municipality in the Emirate in order to apply to be registered as a developer:\r\n<ul>\r\n 	<li>the prescribed application form</li>\r\n 	<li>the developer’s trade licence or initial approval from the Department of Economic Development for licensing to carry out real estate development projects</li>\r\n 	<li>Abu Dubai Chamber of Commerce and Industry membership certificate</li>\r\n 	<li>directors or board of directors list</li>\r\n 	<li>copy of the developer’s headquarters offices rental agreement or title deed</li>\r\n 	<li>audited financial report</li>\r\n 	<li>details of the developer’s real estate development projects, whether existing or proposed</li>\r\n 	<li>master plans and construction designs of the projects</li>\r\n 	<li>atitle deed of the lands to be developed</li>\r\n 	<li>a project feasibility study issued by an auditor approved by the DMA</li>\r\n 	<li>for master developers, the sale and purchase agreements with their sub-developers</li>\r\n 	<li>for sub-developers, the unit sale and purchase agreement template for each project if the unit sales are made directly by the sub-developer</li>\r\n 	<li>any project marketing agreement with real estate brokers</li>\r\n 	<li>any other documents and information that may be required by the DMA.</li>\r\n</ul>\r\nA licensed developer may open one or more branch offices, in addition to its head office, to carry out any of its licensed activities provided it gives prior notification to the DMA. A developer’s licence will be valid for one year from the date of issue and must be renewed annually.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nAs it could take some time for developers to comply with the requirements for obtaining a licence and registering on the Real Estate Development Register, developers need to act quickly to avoid incurring a penalty after 31 March 2016.'),
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	(97921,5319,'content_description','On 1 January 2016, Law No. 3 of 2015 Regulating the Real Estate Sector in the Emirate of Abu Dhabi (the “Law”) came into effect. Developers now need to act swiftly to meet short deadlines imposed by the Law to avoid incurring considerable penalties.    \r\n'),
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	(97923,5319,'pageSummary','On 1 January 2016, Law No. 3 of 2015 Regulating the Real Estate Sector in the Emirate of Abu Dhabi (the “Law”) came into effect. Developers now need to act swiftly to meet short deadlines imposed by the Law to avoid incurring considerable penalties.'),
	(97924,5319,'_pageSummary','field_59e59b307dec8'),
	(97925,5319,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/february-8/upcoming-deadline-to-register-as-a-developer-in-abu-dhabi.html'),
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	(97933,5319,'_yoast_wpseo_metadesc','On 1 January 2016, Law No. 3 of 2015 Regulating the Real Estate Sector in the Emirate of Abu Dhabi (the “Law”) came into effect. Developers now need to act swiftly to meet short deadlines imposed by the Law to avoid incurring considerable penalties.'),
	(97882,5317,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(97880,5317,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(97881,5317,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sadaf Nakhaei'),
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	(97875,5317,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/february-8/gcc-unified-trademark-law-key-provisions-and-challenges.html'),
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	(97868,5317,'_content','field_59b649b5c8b2b'),
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	(97871,5317,'content_description','Since 2007 there have been significant talks within the Gulf Cooperation Council (GCC) regarding the adoption of a unified trademark law. '),
	(97849,5316,'_content','field_59b649b5c8b2b'),
	(97850,5316,'lawUpdateArticleMonth','5304'),
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	(97852,5316,'content_description','On the 7th of December 2015, the European Commission adopted and published a package of measures entitled “Aviation Strategy for Europe” with its accompanying stated intention being “to ensure that the European (EU) aviation sector remains competitive and reaps the benefits of a fast changing and developing global economy”. '),
	(97853,5316,'_content_description','field_59b641c07f473'),
	(97854,5316,'pageSummary','On the 7th of December 2015, the European Commission adopted and published a package of measures entitled “Aviation Strategy for Europe” with its accompanying stated intention being “to ensure that the European (EU) aviation sector remains competitive and reaps the benefits of a fast changing and developing global economy”.'),
	(97855,5316,'_pageSummary','field_59e59b307dec8'),
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	(97864,5316,'lawUpdateArticleNoWriters',''),
	(97865,5316,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(97866,5316,'_yoast_wpseo_metadesc','On the 7th of December 2015, the European Commission adopted and published a package of measures entitled with its accompanying stated intention being “to ensure that the European aviation sector remains competitive and reaps the benefits of a fast changing and developing global economy”.'),
	(97867,5317,'content','February 2016\r\n\r\n<hr />\r\n\r\nIn the present article we will discuss the key elements of the unified GCC trademark law (the “Trademark Law”) and the prospect of it being adopted throughout the GCC.\r\n\r\nIn a nutshell the main focus of the Trademark Law is to create uniformity between the local trademark laws of each of the GCC member states namely, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. Whilst the adoption of the Trademark Law will result in a more unified set of regulations for GCC trademark protection, it is important to point out that the Trademark Law will not provide a unified filing system. As such, right holders will still be required to file separately in each applicable GCC country in order to ensure protection and enforcement rights. We explore matters in further detail below.\r\n\r\n<strong>Background </strong>\r\n\r\nThe Trademark Law was initially submitted by the GCC General Secretariat and approved by the GCC Trade Cooperation Committee in 1987. However, the GCC member states have to date only used the law for consultative purposes and there has been no direct application of the law in any of the member states. In 2006 and 2013, further amendments to the Trademark Law were approved by the GCC Supreme Council before being published in the GCC Official Gazette.\r\n\r\nAlthough the Trademark Law has been enacted as law from a GCC perspective, in order for it to be applicable within each GCC member state, the law needs to be (i) approved locally in each sovereign state by a decree or a law, (ii) published in the local official gazette of each member state to become effective, usually after six months from the date of issuance of the implementing regulations.\r\n\r\nTo date the following member states have taken the below actions:\r\n<ul>\r\n 	<li><strong>Saudi Arabia </strong>- Decree No. M/51 dated 26 April 2014 approved the Saudi Council of Ministers decision No. 306 of the same date and the Trademark Law is to be published within 30 days from the date of issuance of the Implementing regulation and will come into force after 90 days of its publication in the official Gazette.</li>\r\n 	<li><strong>Qatar </strong>- Decree No. 7 of 2014 approved the Trademark Law which was published in June 30, 2014.</li>\r\n 	<li><strong>Bahrain</strong> - Decision No. 6 of 2014 approved the Trademark Law which was published in the official Gazette No. 3145 dated February 27, 2014.</li>\r\n 	<li><strong>Kuwait </strong>-  Law No. 13 of 2015 was issued and published in official Gazette No. 1228 dated March 22, 2015</li>\r\n 	<li><strong>Oman/UAE</strong> - At present, neither country have published any legislation with regard to the Trademark Law.  It therefore remains to be seen how or when the Trademark Law will be implemented in each of these member states.</li>\r\n</ul>\r\n<strong>Key Features of the Trademark Law</strong>\r\n\r\n<strong>Trademark Definition and Multi Class Applications </strong>\r\n\r\nIn order to maintain pace with the introduction of new technology which allows right holders to identify their brands through other means than those identified as conventional trademarks, the Trademark Law has broadened its definition of trademarks to include items such as ‘sounds’ and ‘smells’.\r\n\r\nAlthough in some GCC member states such as the UAE, certain unconventional trademarks such as ‘sounds’ can already be registered this is not the case in some other GCC countries such as Saudi Arabia.  Accordingly, the Trademark Law provides right holders with an opportunity to protect their trademarks in a more unified way, and they will no longer face the challenges of differing trademark laws and varying protection awarded to such rights.\r\n\r\nFurthermore, under the Trademark Law, multiclass trademark applications will be allowed. This change of practice is a significant departure from the present practice as it is currently only possible to file applications covering a single class in each of the GCC member states. None of the GCC member states allow for multi-class applications to be filed under their current regional trademark laws.\r\n\r\n<strong>Priority Claims</strong>\r\n\r\nIn another significant change, the Trademark Law (Article 11) provides that an applicant who has applied for a trademark in a country that is a signatory to a multinational treaty to which a GCC state is a party may claim priority within six months of the date of filing the earlier corresponding application.\r\n\r\nIn order to make a valid priority claim, the application must be accompanied by a copy of the earlier application and a statement setting out the filing date, application number and country.\r\n\r\n<strong>‘Famous’ Trademarks </strong>\r\n\r\nIn line with the GCC member states’ obligations under the Paris Convention and the Trade Related Aspects of the Intellectual Property Rights (TRIPS), well known/famous trademarks are protectable in each of the GCC member states.\r\n\r\nThrough the Trademarks Law, famous trademarks are provided a greater ambit of protection. The Trademarks Law prohibits the registration of such marks which constitute a reproduction, imitation or translation of well known marks.  It  also prohibits the registration of a mark with relation to dissimilar goods, whereby consumers may be lead to believe that the goods emanate from the same trader, and which would likely the damage the famous trademark owner’s interests.\r\n\r\nIn addition to broadening the ambit of protection for right holders of famous trademarks, the law also provides clear criteria as to the determination of famous trademarks. To date, the determination of whether a trademark is considered famous or not, is left to each state’s Courts and is reviewed on a case by case basis. This is not an exact science and trademark practitioners often have to refer to previous case laws to identify the factors considered by the Courts in recognizing the “famous” stature of trademarks.  Under the Trademark Law, conditions for a mark to be declared as a well known mark have been clearly stipulated and can be summarized as the following:\r\n<ul>\r\n 	<li>Extent of recognition by consumers resulting from the marketing efforts of the trademark owner;</li>\r\n 	<li>The duration and extent of the registration and use of the mark; and</li>\r\n 	<li>The number of countries where the trademark has been registered or recognized as a well-known mark.<strong> </strong></li>\r\n</ul>\r\n<strong>Trademark Infringement</strong>\r\n\r\nThe GCC member states have well implemented provisions to deal with trademark infringers. Similarly, the Trademark Law addresses the infringement of both registered and unregistered trademarks.  Article 42 of the Trademark Law sets out the maximum penalties available for trademark infringement:\r\n<ul>\r\n 	<li>a fine of between SAR5,000  (approx.  $1,300) and SAR1 million (approx. $260,000) and/or imprisonment for between one month and three years where a person counterfeits a registered trademark in a manner which misleads the public and affixes this mark to its products; and</li>\r\n 	<li>a fine of between SAR1,000 (approx. $260) and SAR100,000 (approximately $26,000) and/or imprisonment for between one month and one year where a person knowingly sells goods which contains a counterfeit or unlawfully affixed trademark.</li>\r\n</ul>\r\nIn cases of repeat offenders, the penalty may not exceed double the maximum limits specified for the offence. In addition, the establishment may be closed for between fifteen days and six months.\r\n\r\nThe potential sanctions under the Trademark Law and particularly the  monetary penalties are a significant increase as compared to the present sanctions available in the individual GCC member states. One explanation for the increase in penalties is that the GCC member states have collectively set such amounts for a deterrent affect so as to curb infringement and counterfeiting activity. By way of example in the UAE, Articles 37 and 38 of the Federal Law No. 37 of 1992 on Trademarks (as amended by Law No. 19 of 2000 and Law No. 8 of 2002) (the “UAE Trademark Law”) provide penalties including imprisonment limited to one year and monetary penalties of AED5,000 (approx. $1360) and not exceeding AED10,000 (approx.$2,722). In comparison the current penalties under the UAE Trademark Law are significantly less than those sanctions set out by the Trademark Law. <strong>Official fees in the GCC - Trademark Offices</strong>\r\n\r\nAlthough the GCC has no unified trademark filing system; Article 50 of the Trademark Law states that implementing regulations shall be put in place to set out the applicable filing charges. To date, the implementing regulations have not yet been released.  Within the GCC there has been considerable increases in the official filing fees within the past year notably within the UAE, Kuwait and prior to that in Qatar and Saudi Arabia. We look forward to a new schedule of charges that will be binding in all GCC member states for charges related to trademark prosecution procedures. It is still unclear which fee model will be adopted and the ongoing uncertainty is unhelpful.\r\n\r\nIn conclusion, the prospect of having in place a unified trademark law in the GCC is broadly good news as it allows right holders to enjoy the same protection across the GCC. Although separate trademark filing will still be required, we consider that managing trademark portfolios in the region should be easier and more accessible given that the methods and maintainance of registrations will be more aligned though the GCC member states.  However, there are also a number of challenges through the introduction of the Trademark Law. In terms of practice and implementing the concepts, some GCC member states may find it difficult to upkeep their obligations as set out in the Trademark Law. One case in point is the concept of famous trademarks. Although most GCC member states have long been part of the Paris Convention and as such developed case law on the subject, Kuwait only adhered to the Paris Convention in 2014.  Accordingly, Kuwait will need to heavily rely on the experiences of the other GCC member states in order to attain the necessary expertise in the subject matter. The reality remains that the level of capacity and expertise vary drastically from one GCC Trademark Office and Court regime to another.\r\n\r\nFurther adding confusion over the matter is the fact that the GCC and, in particular the UAE, has some of the highest official fees in the world when it comes to trademark registration. The question remains that should a unified fee schedule be applied in the GCC member states, the right holders will have to significantly increase their budgets for the GCC region and some right holders may even limit their scope of protection opting to file in the larger markets of UAE and KSA and thereby foregoing the smaller GCC markets.'),
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	(97835,5315,'content_description','This article is the second of two articles to explore the topic of eHealth - and in particular telemedicine services – in the Gulf countries. In this final instalment, Andrea and Christina consider some of the legal issues, beyond licensing, relating to telemedicine services. \r\n'),
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	(97837,5315,'pageSummary','This article is the second of two articles to explore the topic of eHealth - and in particular telemedicine services – in the Gulf countries. In this final instalment, Andrea and Christina consider some of the legal issues, beyond licensing, relating to telemedicine services.'),
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	(97847,5315,'_yoast_wpseo_metadesc','This article is the second of two articles to explore the topic of eHealth - and in particular telemedicine services – in the Gulf countries. In this final instalment, Andrea and Christina consider some of the legal issues, beyond licensing, relating to telemedicine services.'),
	(97848,5316,'content','February 2016\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">A key part of the package of proposals is an attempt by the European Commission to change the way aviation agreements with key partner countries are negotiated.</p>\r\n<p class=\"MsoNormal\">In an accompanying fact sheet to its Aviation Strategy, the European Commission specifically targets the Gulf Co-operation Council (GCC) region, and notably UAE and Qatar, and announces that the Commission is seeking a new EU level policy to challenge the region which it “sees as one of the most dynamic and fast growing aviation markets in the world”. The document states that “while the additional connections provided by Gulf airlines are welcome, there are concerns regarding the conditions under which they operate. Comprehensive aviation agreements between the EU and the GCC states would be the right way forward to bridge the interests of both sides by creating conditions that would allow further market developments and growth based on common rules and transparency”.</p>\r\n<p class=\"MsoNormal\">The Convention on International Civil Aviation (1944) “The Chicago Convention” governs international civil aviation and it provides for a system whereby individual States have complete and exclusive sovereignty over their own national airspace. By Article 6 of the Chicago Convention “special permission” may be granted by a State for the operation of scheduled international air services. Such “special permission” is traditionally given in “bilateral air service agreements” between States opening each other’s national airspace to international air traffic.</p>\r\n<p class=\"MsoNormal\">In its Aviation Strategy document, the European Commission acknowledges that traditionally, international air transport has been governed by bilateral air service agreements between States, but it refers to these agreements as “a patchwork of differing market access and rules for airlines... and consequently the EU has developed an external aviation policy aimed at concluding comprehensive aviation agreements and aviation safety agreements between the EU as a whole entity and key aviation partners worldwide”. The European Commission points out that the EU has already concluded comprehensive aviation agreements with the United States and Canada, and is currently finalizing an agreement with Brazil, and has concluded aviation safety agreements with the United States, Canada and Brazil.</p>\r\n<p class=\"MsoNormal\">This attempt by the European Commission to move away from existing bilateral agreements between the Gulf States and individual European countries is a new departure and development. Indeed, one UAE airline issued an immediate response to the European Transport Commissioner’s proposal by saying that “the competition related issues are already covered under existing sovereign bilateral air service agreements, as well as existing EU regulation. Therefore, we find it interesting that rather than use these tools to address specific grievances, the European Commission is instead looking at a new EU level policy or updated instrument. We would also be interested to see what such policy would mean for state supported airlines in Europe, as well as existing anti-trust immunised joint ventures between European and non-European carriers and other “protected” commercial arrangements of this nature”.</p>\r\n<p class=\"MsoNormal\">The European Commission announcement follows on the heels of a challenge commenced in February 2015 by three US airlines, American, United Airlines and Delta, who published a 55 page report alleging, among a series of perceived grievances, that Etihad, Emirates Airlines and Qatar Airways have benefitted from state subsidies, and requesting that US administration officials begin talks with the UAE and Qatar to renegotiate existing international air service agreements.</p>\r\n<p class=\"MsoNormal\">The debate with the US carriers has brought into sharp focus the position of the Gulf Carriers who argue that they have flourished because they are clean-sheet business model businesses based on exemplary customer service, on new aircraft, with international hubs at the crossroads of the world’s main trade routes. Consequently, Gulf Carriers perceive the challenges to existing international arrangements as particularly ill advised.</p>\r\n<p class=\"MsoNormal\">Given the heated nature of the debate surrounding the attempts by the European Commission and the three US carriers to re-negotiate existing arrangements, it is worth stepping back and briefly explaining the historical legal framework under which the Gulf airlines have successfully conducted aviation business.</p>\r\n<p class=\"MsoNormal\">The Chicago Convention provides for the principle that states can impose limitations on flights of foreign aircraft and that each state has complete and exclusive sovereignty over the airspace above its national territory. In essence, national airspace is closed to foreign aircraft unless there is “special permission”. This “non-freedom of the air” can be turned into freedoms of the air pursuant to the terms of bilateral or other international air service agreements which have the effect of opening up the airspace of the parties to the agreement. Essentially a bilateral air service agreement is a contract between states to liberalise aviation services.</p>\r\n<p class=\"MsoNormal\">The Chicago Convention introduced “nine freedoms of the air” for States that have adopted the Convention, and the first “five freedoms of the air” are now recognized by international treaty so that States may enter into bilateral air service agreements that may grant any of the following rights:</p>\r\n\r\n<ul>\r\n 	<li>To fly across the territory of the State without landing</li>\r\n 	<li>To land in either State for non-traffic purposes e.g refuelling/disembarking passengers</li>\r\n 	<li>To land in the territory of the first State and disembark passengers coming from the home State of the airline</li>\r\n 	<li>To land in the territory of the first State and board passengers travelling to the home State of the airline</li>\r\n 	<li> To land in the territory of the first State and board passengers travelling to a third State where the passengers disembark – e.g scheduled flight from United States to UAE can pick up traffic in the U.K and take it all to UAE.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Since the Chicago Convention came into force, there has been a gradual development in aviation regulation to move from closed to open airspaces. When finalizing bilateral air service agreements, States followed a pattern based on the Bermuda 1 agreement of 1946, which was a treaty originally made between the US and the UK. It is fair to say that the Bermuda 1 regime was a compromise between a more restrictive market view put forward by the UK and a more open market view put forward by the US.</p>\r\n<p class=\"MsoNormal\">Following on from Bermuda 1, bilateral air service agreements between States have been used to designate which airlines may operate agreed services. The agreements generally provide for the designation of routes, ensuring “fair competition” certification of operating certificates, designation of prices and capacity, rules for safety and security, code sharing provisions, noise and emissions and environmental provisions, user charges for air services, taxation, access to airports, dispute settlement, and termination provisions if a State decides to withdraw its rights to fly.</p>\r\n<p class=\"MsoNormal\">The United States began pursuing the policy of negotiating “Open Skies” agreements from 1979 onwards, and it has signed many bilateral air service agreements worldwide to achieve this policy. Most of these existing “Open Skies” bilateral agreements include provision for free market competition and pricing determined by market forces, an equal opportunity to compete and co-operative marketing arrangements, such as code sharing and leasing arrangements with airlines, provisions for dispute settlement, safety and security provisions, together and what are called optional “seventh freedom on cargo rights”, so that the airline of one country can operate cargo services between another country and a third country via flights that are not linked to its homeland.</p>\r\n<p class=\"MsoNormal\">The Gulf state airlines argue that its existing Open Skies and bilateral air service agreements have succeeded and do not require re-negotiation either with the US carriers or with the European Commission.</p>\r\n<p class=\"MsoNormal\">In the context of the Chicago Convention, and aviation regulation generally, the European Union has pursued a policy to liberalise the transport sector both internally within the EU, and externally with countries outside of the EU.</p>\r\n<p class=\"MsoNormal\">Internally within the EU, the EU agreed to liberalise the air transport sector in 1987 and to create a single European aviation market by giving all airlines within the EU in possession of a community license “unrestricted access” to the intra European market. Until 1987, International air transport in Europe was governed by bilateral air service agreements between pairs of European countries which often allowed only one airline from each country to operate services on a limited number of specific routes. Liberalisation Packages were introduced in 1987 and 1990 so that European carriers were granted almost unfettered freedom to fix their own routes, schedules, fares and capacities without any State intervention. This liberalisation and unrestricted access to intra EU markets have facilitated the emergence of low cost carriers, operating a different model to the legacy owned national carriers, with low cost, high capacity flights.</p>\r\n<p class=\"MsoNormal\">The EU’s external aviation policy has also evolved so that the EU has increasingly has sought to enter into treaty negotiations on behalf of its member States. In 2002<a href=\"#_ftn1\">[1]</a>, the European Court of Justice (ECJ) concluded that member States were entitled to negotiate bilateral air service agreements provided that such agreements did not breach EU law. The ECJ confirmed that certain provisions of these agreements did not contravene EU rules, and in particular the provisions regarding the nationality of air carriers and the fares that foreign carriers were entitled to charge on inter-community flights.</p>\r\n<p class=\"MsoNormal\">In parallel with this, the European Commission issued a document<a href=\"#_ftn2\">[2]</a> commenting on the ECJ decision, and seeking a mandate to negotiate with third countries on behalf of member States as a whole. As a result, the EU Council has since given mandates to the European Commission to negotiate Open Aviation Air Agreements, examples of which are the EU-US Agreement on Air Transport (2007and 2010) and the EU-Canada Air Transport Agreement of 2009.</p>\r\n<p class=\"MsoNormal\">The European Commission’s Aviation Strategy for Europe is perhaps a continuation of this process, so that the European Commission is seeking to renegotiate on behalf of the EU as a whole, and potentially it is seeking a mandate to replace existing bilateral air service agreements concluded between EU member States and the Gulf Carriers.</p>\r\n<p class=\"MsoNormal\">It is difficult to predict whether the European Commission will succeed in its aim, or whether the US carriers will succeed in pressing for a re-negotiation of existing arrangements. There are provisions within the European bilateral agreements and the 2002 Open Skies agreement made between the US and the GCC states for dispute resolution, and indeed termination, but at this stage it is fair to say that the attempt by the European Commission to seek to tackle a perceived issue of competition from the Gulf Carriers within its new Aviation Strategy, and the position of the three US carriers, has raised much comment from the aviation industry.</p>\r\n<p class=\"MsoNormal\">Perhaps the best example of this divergence of views is exemplified by a new association of European airlines which was formed in January 2016 under the name Airlines for Europe (A4E). The new association is made up of Ryanair, IAG, (BA, Iberia Veuling, Aer Lingus), Easyjet, Air France-KLM and Lufthansa. Whilst the association’s stated intention is to provide a unity of approach, where possible, within the European aviation industry, A4E made it clear that its inaugural press conference in January 2016 that one area where the association will “agree to disagree” is the attempt by the European Commission to change existing arrangements with the Gulf carriers.</p>\r\nIt is evident that the present system under which Gulf Carriers conduct aviation business is being challenged by the European Commission in that it is seeking a mandate to negotiate a new comprehensive aviation agreement on behalf of the EU as a whole. The possibility of this, coupled with the possibility of the US administration re-negotiating existing bilateral air service agreements again if the US carriers’ arguments succeed, is an important issue for the forthcoming year. Nevertheless, it is hoped that Gulf carriers will continue to flourish as they have done so within the framework of international aviation law for the foreseeable future.\r\n<div>\r\n\r\n<hr size=\"1\" />\r\n\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref1\">[1]</a> European Court of Justice Judgment, 5<sup>th</sup> November 2002. Cases C-466, 467, 468, 469, 471, 472, 475 and 476/98: Commission v United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria, Germany.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref2\">[2]</a> COM (2002) 649 Final: Communication from the Commission on the Consequences of the Court Judgment of 5<sup>th</sup> November 2002 for European and Air Transport Policy.</p>\r\n\r\n</div>\r\n</div>'),
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	(97817,5314,'content','February 2016\r\n\r\n<hr />\r\n\r\nMany years ago, a production facility was undertaking a rebuild and upgrade of a studio. They hired a contractor, who put in a subcontractor, who then got a subcontractor, who put in place a subcontractor, who hired a team of young freelancers to undertake the work. Unfortunately there was a serious accident involving one of the freelancers and suddenly the production facility was faced with many layers of contracts, none of which had been reviewed by a lawyer. What also became clear was that none of the subcontractors had contracts with each other that reflected the terms that were in place between the client and the contractor itself. The production facility ended up being held fully liable for the accident.\r\n\r\nThe media and events industry rely heavily on subcontractors to provide services to their clients. Whilst accidents are uncommon, properly passing liability down the chain (and back up again in some cases) remains important for all aspects of the contractual relationship. In this article, we will review those areas which should be carefully reviewed as well as looking at the possible legal ramifications of signing subcontractor agreements without checking them.\r\n\r\n<strong>The Scenario</strong>\r\n\r\nTo assist in explaining the importance of contractual relationships in the media and events industry, let’s consider the following, very normal, scenario.\r\n\r\nA client, Acme Retail, is working with their advertising agency, The Agency. Acme Retail and The Agency have carefully reviewed their contract terms before they are signed at the highest level, each aware that they are in a day-to-day relationship that is very important to both. Acme Retail asks The Agency to develop, deliver and produce a short live musical event to promote its brand. They also want the event to be filmed so that it could be used in digital media, with the eventual goal of it becoming viral content. The Agency gives the task of delivering the event to an events company, Events R Us, who then subcontract the filming activities to production company, Film Inc. Film Inc subcontracted the post production to an edit house, Edit.Com.\r\n\r\nContractually, Acme Retail has an annual contract with The Agency to be their creative agent and oversee production of content. The Agency signs a short form agreement that is supplied by Events R Us which they use for all their live corporate events. Film Inc supplies a purchase order to Events R Us and there is no contract at all with Edit.Com.\r\n\r\n<strong>What could go wrong? </strong>\r\n\r\n<strong>Intellectual Property Ownership</strong>\r\n\r\nIn the media and events industry, focusing as it does on creativity and buzz, it is easy to forget that underpinning the creation of materials is the legal concept of copyright. In the UAE, as with most places globally, copyright vests in the person that creates the material. Additionally, in line with the Berne Convention, which underpins most copyrights systems globally, an assignment of copyright will not be valid unless it is in writing. In short, if there is no written contract, then the person that created the works still owns them.\r\n\r\nIt is easy to see in the above scenario that there might be a problem. It is common in agency contracts for the client to demand that all materials created under the contract are wholly owned by them so that they can be used in perpetuity globally and in all media. So The Agency must deliver all rights to Acme Retail. Unfortunately, as it has contracted with Events R Us on a standard form events contract and it is not common for events to be filmed, it contains no clauses regarding copyright. But as they have no contract at all with Film Inc, then we know that copyright in the film created of the event will remain with Film Inc. Acme Retail does not own the film.\r\n\r\nBut Acme Retail thinks it does. It moves the film on-line and it becomes a sensation, winning awards and acquiring 2 million views in a short time.\r\n\r\nThe music that was used at the event is still contained in the film - it was shot live and is an important part of the event. As there are no contracts, there is no clear line of responsibility about the clearance of the music. Record companies will definitely seek damages for the infringing use of their material and will likely seek them from the brand. Acme Retail received a notice regarding the infringing use of the music. It looks to The Agency as there is generally a very clear indemnity clause in the agency contract. With no clear contract noting the liability for clearing music between The Agency and Events R Us, The Agency will most likely end up paying the damages.  All The Agency had to do was ensure that the indemnity contained within its contract with Acme Retail was mirrored in the subcontractor relationships. It should also, at every stage, ensure that all subcontractors under Events R Us sign a contract with a similar clause.\r\n\r\nThis not only protects itself against potential liability but ensures that Acme Retail does not receive legal notices. It also saves its reputation in the market place.\r\n\r\n<strong>Talent</strong>\r\n\r\nAs we noted above, Events R Us provided its own basic event contract to The Agency which was signed without being reviewed. It contained the dates, the venue and a synopsis of the services and provided for payment.\r\n\r\nEvents R Us then hired two dozen dancers to perform at the event. Each performer signed a one page release about performing which, again, included terms about dates, venue and payment. So what happens when the performers see themselves on an on-line campaign? After all, they were only booked for a live performance.\r\n\r\nIf Events R Us did not acquire a broad range of rights from the performers, then the performers have a right to seek additional fees from Events R Us. In fact, we have seen this happen many times in the region and the result is always the same – extra money must be paid to the performers. Sometimes a performer did not consent to being filmed at all but, more commonly, performers agree to be filmed to appear in (say) a billboard campaign for six months but then see themselves two years later in a magazine.\r\n\r\nOf course, in the contractual matter raised above, Events R Us is not in a strong position to claim the extra payments from anyone contractually. It can hardly pass liability to Film Inc, which did not arrange the performers. There is no question that both Film Inc and Edit.Com could have requested copies of the performers’ agreements but, as they have no contractual liability for the clearance of rights, they might simply ignore the matter as being someone else’s problem.\r\n\r\nAcme Retail, now pushing this content across to television advertising, will likely remain oblivious to the further payments being negotiated with performers for the content.\r\n\r\n<strong>Payment Dates</strong>\r\n\r\nThe vast majority of contractual disputes come back to payment, and the media and events industry is no exception. And in our scenario above, we do have to feel sorry for Edit.Com, who sits at the bottom of the chain and needs to be paid.\r\n\r\nThe usual response to lack of payment is to withhold the materials to be delivered. Edit.Co will probably do that. This places Film Inc in a difficult position. It has a purchase order and quite a significant number of emails agreeing to a delivery date but nothing ties delivery to payment. The fee is probably noted on the purchase order as being ‘payable on delivery’. Most smaller production companies in the region do not have the cashflow to pay Edit.Com to release the materials but Edit.Com knows that if it releases the materials, it has no way of securing its payment.\r\n\r\nPayment schedules are incredibly important in documentation. They should line up perfectly from Acme Retail across each contract and eventually to Edit.Com. Failure to do this can compromise deliverables and this can be exacerbated if any contract contains penalties for failure to deliver on key dates. These must also be passed down verbatim in order to avoid one entity being financially punished for the slow delivery of another.\r\n\r\n<strong>Liability</strong>\r\n\r\nIt is often the case that certain terms that have been agreed in the client agreement are omitted in subcontractor agreements. For example, Acme Retail may have included a cap on liability in their contract with The Agency. This is not of course reflected anywhere else in the documents relating to the event.\r\n\r\nThis may not be relevant as, in most cases, Acme Retail will not be providing services for the event. But let’s imagine that they are actually arranging a branded car to be part of the event. Events R Us obviously secure the venue under a standard venue contract – this will have no cap on liability. Then their marketing manager drives the branded car from the venue, crashing it into the DJ booth and causing severe damage to the electrical system.\r\n\r\nAcme Retail is contractually liable (other legal obligations aside) to the value of the cap. However Events R Us, as the signatory to the contract with the Venue, are liable for the full amount of the damage. A cap on liability is never a preferred position, but if you have one then it should always be passed down to subcontractors (including, in this case, the venue) to ensure you do not end up with liability.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nFrom a practical perspective, allowing a subcontractor to commence work before the terms of the supply are properly finalised means that they can assess the work and realize that they need higher fees, meaning either a late re-negotiation or the replacement of a subcontractor midway through the project (neither of which is commercially satisfactory). But this issue becomes very difficult legally when the key commercial terms are not passed down into to subcontractors.\r\n\r\nFundamentally, any ambiguity in a commercial relationship provides an excellent basis for misunderstandings, arguments and eventually a legal action. The situation is no different in the media and events industry. Prepare your contracts well, pass on key liabilities to the appropriate subcontractors and ensure that, if anything does go wrong, you are not the one left opening your piggy bank.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises clients in respect of contracts in the media and events industry.\r\n\r\nFor further information, please contact Fiona Robertson, Senior Associate, Technology, Media &amp; Telecommunications (f.robertson@tamimi.com).'),
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	(97831,5315,'content','February 2016\r\n\r\n<hr />\r\n\r\n<strong>Liability for out-of-jurisdiction  healthcare advice </strong>\r\n\r\nAn important issue that all parties to a telemedicine arrangement need to understand is how medical liability is determined, both between providers within the region, and between providers where one is local and the other is from outside of the region. There is inevitably some uncertainty over which party will be left holding the proverbial ‘baby.’ In the UAE the position is governed by a suite of Federal and local Emirate laws. Federal Law No. (10) 2008 concerning Medical Liability and the Cabinet Decision No. (33) of 2009 are the governing medical liability laws in the UAE (together, ‘Liability Law’). The Liability Law pertains to practitioners within the UAE. This law does not address liability as it relates to foreign practitioners engaged in activities with local facilities. In general, UAE laws would not have jurisdiction over foreign providers except insofar as they are parties to a contract governed by UAE law.\r\n\r\nIn terms of individual healthcare practitioner liability, all healthcare providers in the UAE are subject to the Liability Law. Failing to observe the law or committing a medical error would expose the practitioner to the risk of a civil claim for damages. A medical error under the Liability Law, Article 14, is an ‘error which is due to ignorance of technical matters which every practitioner of the\r\n[p]rofession is supposed to be familiar with, or to negligence or lack of due care.’\r\n\r\nRegulations such as the Dubai Health Authority’s (‘DHA’) Hospital Regulation and Day Surgical Center Regulation indicate that while clinical services provided by an external contractor are permitted (such as radiology, laboratory, pathology and allied health) the contracting DHA licensed healthcare facility retains the fundamental responsibility for quality. Given that the DHA places this burden on the contracting facility, even when out-of-jurisdiction contracts are not specifically contemplated, in circumstances where healthcare services are performed by out-of-jurisdiction providers, such as in tele-radiology services using foreign providers, we expect that the facility or a named practitioner at that facility could be named as a party to civil (i.e. tortuous) proceedings brought before the UAE courts in the event of a malpractice case resulting from the errors of a foreign provider. We expect that such a case would centre around (i) evidence of negligence with regard to the services provided, and (ii) the potential failure of the local facility to perform proper due diligence in contracting with the third party or (iii) proper quality regulation and oversight of the third party.\r\n\r\nThe question of whether the out-of- jurisdiction provider can be drawn-in to the proceedings will depend on the facts. Then, if a local provider is found to be liable, the commercial contract with the out-of-jurisdiction provider may then govern whether any indemnity or claw-back provision applies.\r\n\r\nThe Health Authority - Abu Dhabi (‘HAAD’) has implemented similar standards governing how liability is managed in a telemedicine arrangement. HAAD regulations place liability on the originating HAAD-licensed healthcare facility for the clinical and medical services provided through telemedicine. Medical and legal risk exposure can be reduced by implementing facility telemedicine policies and guidelines, including continual training and licensing requirements, and proactive monitoring of staff performance.\r\n\r\n<strong>Data protection issues</strong>\r\n\r\nIn the event of a data breach, the key issues are (i) what are the legally required mechanisms for reporting and rectifying the breach and (ii) to what extent does the provider have liability for the release of confidential information.\r\n\r\nThe use of telemedicine services, especially those which require personal health information to be transmitted electronically out-of-jurisdiction, increase the risk of a security breach and loss of confidential patient data. Digital health records can be valuable to criminals. Medical identity theft, the fraudulent use of someone’s personal identity to obtain medical services, prescription drugs or devices, are a few examples of the potential damage.\r\n\r\nIn Abu Dhabi, the management of data is governed by a very chunky Data Standard. Accordingly, compliance with these requirements require both the local licensed healthcare provider and the foreign service provider to implement IT systems to meet this standard as a minimum. This ensures a robust regulatory environment along with basic data protection and confidentiality standards, together with a process for reporting and remedying breaches, as well as provider liability to patients in the event of a breach.\r\n\r\nSecuring the data network, from both outsider threats and from a business continuity perspective, is of paramount importance. Advances in telemedicine and eHealth across the region will be determined by regulators developing efficient policies, developing appropriate data protection laws, and ensuring that legal and regulatory constraints do not impede innovation.\r\n\r\n<strong>The advertising of services from out-of-jurisdiction </strong>\r\n\r\nHealth service advertising is regulated in two main ways, primarily under the aegis of the Ministry of Health of each Gulf country, which typically have oversight powers over all health-related matters in their jurisdiction, and secondarily by other regulators, such as the Ministry of Information in the Kingdom of Saudi Arabia (‘KSA’), which regulates all publications in KSA with specific oversight and licensing powers as regards to publicity, advertising and public relations.\r\n\r\nA healthcare provider wishing to target patients within a Gulf country from outside the jurisdiction in order to advertise their services and attract patients to travel outside the jurisdiction for treatment, or for telemedicine consultations, needs to be aware of the restrictions in the countries in which advertisements are likely to be viewed. The question of whether a provider would be deemed to be caught by the laws of a particular country will depend on many factors, such as the classification of advertising, social media, print media, magazines and commercials, coupled with the extent to which it is targeted at a certain country or region.\r\n\r\nWhilst a high-profile advertising campaign may extend the potential pool of patients, thought should be given as to how to ensure payment for services delivered. Some providers are using such advertising to target only high net-worth individuals and insured patients who will pay themselves then seek reimbursement from their insurer. Thought should be given to addressing advertising, licensing, permit, and regulatory issues, as applicable.\r\n\r\n<strong>Insurance reimbursement </strong>\r\n\r\nThe opportunity to grow telemedicine services as a tangible alternative to traditional face-to-face consultations relies heavily upon there being a reliable route to obtaining reimbursement. Typically, healthcare providers in the region have arrangements in place with governments or insurers for reimbursement of services. The various payment codes set up for this must include payment for telemedicine in all of its various formats. Progress on this has been made in the UAE with many insurers now recognising the benefits of telemedicine as a preventative medicine tool. However, as the overall cost of healthcare provision escalates, insurers are looking for opportunities to cut costs and are pruning certain benefits out of the reimbursement scheme. Such cut backs are currently on the radar of the government of Abu Dhabi for certain telemedicine services, which are at risk of being withdrawn. The reasons for this are currently unclear but must be viewed as a set-back that we hope will not contaminate other Emirates of the UAE or regional thinking for these benefits.\r\n\r\n<strong>The urgent need for clarity and consistency </strong>\r\n\r\nThere remains a significant gap between the traditional laws that govern the establishment and ‘setup’ of a healthcare business, on the one hand, and the telemedicine laws on the other. For example, a local healthcare provider must demonstrate that it has the requisite number of employed radiologists and radiographers etc. at its facility, but if it later adopts telemedicine services and outsources radiology services via a telemedicine provider, there is no relaxation of the rules with regard to the number of on-site employed personnel. This situation clearly impacts upon the question of whether the outsourcing of those services is a cost-effective option. As this issue is becoming increasing more common and as outsourcing via telemedicine services grows in popularity, local health authorities should be consulted about outsourcing plans and their approval sought to enable a downscaling of requirement for on-site support.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nWhat is urgently needed is a consistent regional approach to regulation governing the use of telemedicine services based upon internationally recognised standards. For the Gulf countries, this means a whole-scale re-think of how telemedicine will impact upon the existing set-up of healthcare facilities to enable a smooth transition over to telemedicine outsourcing on a larger scale. As things currently stand, the fact that the region lacks leadership on this point should not be seen as a barrier to entry. The Gulf countries are keen to embrace telemedicine as the weapon of choice that will meet the future needs of the region.\r\n\r\nThis article was originally published in eHealth Law &amp; Policy – November 2015.  http://www.e-comlaw.com/ehealth-law-and-policy/\r\n\r\n&nbsp;'),
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	(97797,5312,'_yoast_wpseo_metadesc','The preferred method for resolving construction disputes in the region is arbitration. There are clear benefits to arbitration, but those involved in the process will be familiar with its current misgivings. Learn more here.'),
	(97798,5313,'content','February 2016\r\n\r\n<hr />\r\n\r\n<strong>Introduction </strong>\r\n\r\nAbu Dhabi Global Market, the recently-created commercial free zone in the heart of the UAE’s capital city, issued a modern UNCITRAL-based arbitration law on 30 December 2015, pursuant to the “Arbitration Regulations 2015”. The Regulations govern all arbitrations seated in Abu Dhabi Global Market, as well as the enforcement of all arbitral awards in the jurisdiction.  This article gives some background to the Regulations, discusses their focus and approach, and highlights some notable features.\r\n\r\n<strong>Abu Dhabi Global Market</strong>\r\n\r\nAbu Dhabi Global Market (ADGM) is an international financial centre and free zone for local, regional and international companies, which is headquartered on Al Maryah Island in Abu Dhabi. ADGM, which commenced operations in 2014, is overseen by three independent authorities: the Registration Authority, the Financial Services Regulatory Authority and the ADGM Courts.\r\n\r\nIn addition, a wide ranging set of well-established English statutes on civil matters are also applicable in ADGM.  ADGM is thus the first jurisdiction in the Middle East to directly apply English common law.\r\n\r\nThe ADGM Board of Directors (ADGM Board) is empowered to enact ADGM laws and legislation.\r\n\r\n<strong>The Arbitration Regulations </strong>\r\n\r\nFollowing a consultation process, in which Al Tamimi &amp; Company participated, the ADGM Board decided to enact comprehensive Regulations to govern arbitration and the enforcement of arbitral awards within ADGM in furtherance of its objective to offer market participants a worldclass legal system and regulatory regime.\r\n\r\nIn a break from its general approach of adopting English law, the Arbitration Regulations enacted by ADGM does not follow the English law in this area, but instead closely follow the UNCITRAL Model Law. In doing so the ADGM has enacted a modern law reflecting the most widely acknowledged best practice in international arbitration, which will encourage the wide use of ADGM as a seat of arbitration in the region.\r\n\r\nA pervasive pro-arbitration approach has been taken in the Regulations: there is limited scope for court intervention in the arbitral process; tribunals have the power to consider and decide disputes concerning their jurisdiction; and the grounds for challenging an arbitral award are limited to narrow circumstances with no review of the merits of the dispute.  The Regulations are also intended to ensure that tribunals constituted within a ADGM are independent of, and impartial as between, the parties, must respect due process and must ensure equal treatment of the parties.\r\n\r\n<strong>Enhancements made to the Model Law</strong>\r\n\r\nThe Board has implemented a series of modifications and enhancements to the UNCITRAL Model Law to reflect the most modern and progressive arbitration practice internationally, which it believes will appeal to end users of ADGM arbitration and the regional legal community.  Significant modifications and enhancements include:\r\n\r\n<strong>Enhanced confidentiality and privacy</strong>\r\n\r\nGiven the nature of the business that will be conducted in ADGM and the prevailing culture of discretion in the region, the Model law has been amended as follows:\r\n<ul>\r\n 	<li>The award and any information relating to the arbitral proceedings are confidential and may not be disclosed to a third party, save for certain limited circumstances.</li>\r\n 	<li>All arbitration-related proceedings in the Court are to be heard in closed court.</li>\r\n</ul>\r\n<strong>Joinder of third parties </strong>\r\n\r\nThe Regulations provide that the ADGM Court or the arbitral institution administering the arbitration (if there is one) can join a third party to the arbitration even if that third party is not a party to the arbitration agreement and other parties do not consent. The criteria, similar to that found in the LCIA Rules, is that (i) the request must be made by a party to the arbitral proceedings; (ii) the third party must consent in writing to the joinder; and (iii) it is in the interests of justice to allow the joinder and does not prejudice any of the parties.\r\n\r\n<strong>Waiver of right to bring an action for setting aside</strong>\r\n\r\nThe Regulations provide that the parties may, by an express statement in the arbitration agreement or by a subsequent written agreement, waive fully the right to bring an action for setting aside, or to limit it to certain grounds. While the foregoing provision is intended to make the award completely final and “unappealable”, the award may nonetheless still be denied recognition and enforcement (if the award is to be enforced in the ADGM).\r\n\r\nIn addition to the foregoing, the Regulations contain comprehensive and helpful provisions on numerous issues relating to the conduct of arbitration proceedings, including a wide range of available remedies to assist the parties and the process generally.\r\n\r\n<strong>Conclusion</strong><strong> </strong>\r\n\r\nThe enactment of the Regulations is another important milestone for ADGM: its birth as a fully-fledged arbitral seat. It is a further indication that ADGM is committed to providing clear, transparent and robust rules and regulations to an international “best practice” standard. ADGM has taken the lead in enacting one of the most modern and progressive arbitration laws in the Middle East. The Regulations may serve as a bellwether for other initiatives, including the long-awaited enactment of a UAE federal arbitration law.'),
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	(97774,5311,'_yoast_wpseo_metadesc','If the parties are unable to agree a solution then they will need to go to a court or an arbitral tribunal which will force a binding resolution on the parties, a process which can be costly, time-consuming, and still produce a result that neither party is satisfied with.'),
	(97775,5312,'content','February 2016\r\n\r\n<hr />\r\n\r\nThis stems primarily from the fact that the standard forms of contract of the Federation International des Ingenieurs-Conseils (‘FIDIC’) are the predominant forms used in the region, FIDIC’s means of formal dispute resolution is by way of (ICC) arbitration.\r\n\r\nThere are clear benefits to arbitration (e.g. the parties can decide on the seat, applicable rules, the tribunal and the arbitral process allows for a detailed analysis of claims and defences), but those involved in the process will be familiar with its current misgivings.\r\n\r\nSome say that arbitration takes too long and costs too much and even after an award has been issued there remains an uncertainty of how the local courts will act in terms of enforcement. For example, concerns about the Dubai Courts is making the ‘offshore’ Dubai International Financial Centre an increasingly more attractive potential seat and is now seen as a serious alternative to ‘onshore’ Dubai. Whilst their arguments may be legally sound, it is not unknown for a losing party to invoke technical legal arguments to challenge an arbitral award in an attempt to further delay its ultimate liability to make payment.\r\n\r\nThe above misgivings of arbitration are not unique to the region or the construction industry; indeed, these complaints are shared with the international arbitration community for both general commercial and investor state arbitrations.\r\n\r\nThose familiar with statutory adjudication in the UK will recall that prior to the enactment of the Housing Grants, Construction and Regeneration Act 1996, domestic arbitration in the UK was suffering with the same complaints. Around that time the construction industry in the UK was in need of a credible form of alternative dispute resolution and it came along in the guise of statutory adjudication. Whilst contractual adjudication already existed in the UK, it needed the intervention of statute to provide the traction to take off. Its success is now well versed, so much so that its model was subsequently mirrored in Australia (1999), New Zealand (2002) and Singapore (2004). It may be said that statutory adjudication has become a short-form quasi-arbitration process, save that, amongst other things, unlike an arbitration award, an adjudication decision is only temporarily binding.\r\n\r\nWith the above in mind, should the region’s construction industry be looking for an alternative means of resolving its disputes? The answer must be a resounding yes. According to FIDIC, internationally, contractual adjudication (in the guise of a Dispute Adjudication Board (‘DAB’)) works extremely well. However, there appears to be a genuine reluctance in the region to use DABs. Our experience is that the DAB provisions of most of the ‘new’ FIDIC contracts we encounter are either struck out or simply ignored. Leaving aside the fact that the benefits of DABs to projects and their participants are being lost, there is also a risk that construction professionals and the region’s industry are falling behind international standard practice for dispute resolution.\r\n\r\nThis article seeks to provide a general overview of what the DAB process is, how the concept originated, how it works and highlight some of the benefits of the process.\r\n\r\n<strong>What are DABs and what was their genesis?</strong>\r\n\r\nSimply stated, DABs are a form of alternative dispute resolution (‘ADR’). More specifically, DABs can be said to fall under the generic category of adjudication. ADR includes:\r\n<ul>\r\n 	<li><strong>Mediation: </strong>the parties agree to have a third party attempt to facilitate a settlement;</li>\r\n 	<li><strong>Conciliation:</strong> often used interchangeably in the region with mediation, but in normal construction parlance it is generally taken to mean where the facilitator ends up issuing a recommendation if there is no settlement;</li>\r\n 	<li><strong>Mini-Trial:</strong> both parties present their cases in a summary form to the senior management of both organizations with an independent third party acting as referee;</li>\r\n 	<li><strong>Med-Arb:</strong> an individual first acts as a mediator and if a settlement is not achieved at he then goes on to sit as arbitrator (this may give rise to legal issues for the individual acting in both roles);</li>\r\n 	<li><strong>Early Neutral Evaluation: </strong>the parties submit their respective cases to a neutral third party (e.g. a QC or judge) who then provides his opinion on the matter;</li>\r\n 	<li><strong>Expert Determination: </strong>the parties agree to submit their (technical or valuation) dispute to a third party who then issues a binding determination; and</li>\r\n 	<li><strong>Adjudication:</strong> contractual or statutory adjudication (including DAB or Dispute Review Boards (‘DRBs’)), the parties agree or are obliged to submit their respective claims to a third party who then makes a decision which is temporarily binding.</li>\r\n</ul>\r\nA benefit of ADR can be succinctly stated as being a means of resolving disputes by avoiding the cost, time and inflexibility of litigation or arbitration.\r\n\r\nADR should be less costly because there should not be the same level of involvement of lawyers and experts. The cost of arbitrators, institutions and tribunal secretaries can be avoided. It also avoids the waste of a party’s valuable management time otherwise spent dealing with his continuous involvement in a dispute over many months, if not years, in the litigation or arbitration process. Speedy resolution of a dispute allows the managers to spend their time performing their primary day-to-day business duties rather than getting involved in ancillary dispute management.\r\n\r\nAnother benefit of ADR is that, if used properly, it should lead to the quicker resolution of a dispute. Mediations are often conducted in a single day, statutory adjudication in the UK requires a decision within 28 days and a DAB is required to render a decision within 84 days.\r\n\r\nBecause ADR is flexible and not as adversarial as litigation or arbitration, the parties should be able to agree upon the process for themselves, which should lead to maintaining working and commercial relationships.\r\n\r\nThe early involvement (and possible decision) of an independent third party allows the parties to seriously consider their respective positions before embarking on a possible lengthy and costly process of formal dispute resolution via the courts or arbitration.\r\n\r\nThose familiar with the history of FIDIC’s dispute provisions will be aware that when it published its 1st Edition (1957) a dispute was, in the first instance, to be referred to the Engineer for his decision and any dissatisfied party had to wait until the works were completed before it could start an ad hoc arbitration. The FIDIC 2nd Edition (1969) moved from an ad hoc arbitration to an ICC arbitration (which still remains the position today), whilst the 3rd Edition (1977) allowed for an arbitration to be started before the works had been completed. The FIDIC 4th (1987), colloquially known as the ‘Red Book’, introduced the requirement for a 56 day amicable settlement period before starting an arbitration.\r\n\r\nThe genesis of DABs can be said to be the use of DRBs on large civil engineering projects in the USA in the 1960s. The primary difference between a DRB and a DAB is that the former makes a recommendation which can become binding whilst the latter issues a decision which is immediately binding, albeit temporarily. In short, therefore, a DRB is advisory; whereas, a DAB is adjudicatory.\r\n\r\nSubsequently, in the 1980s the World Bank included the use of DRBs in its standard conditions for contracts above a certain value. FIDIC first included for a DAB in its 1985 ‘Orange Book’.\r\n\r\nWhen the ‘new’ FIDIC contracts first came on the scene in 1999 they included somewhat radical changes to the dispute provisions of the previous FIDIC standard forms, which until 1999 had pretty much mirrored the dispute provisions of the English ICE forms of contract. Despite these ‘new’ forms now being over 15 years old, we still regularly encounter the ‘Red Book’, the ‘Orange Book’ and, to a lesser extent, the FIDIC 3rd Edition.\r\n\r\nOne of the most fundamental changes in the ‘new’ FIDIC contracts was the mandatory obligation in Clause 20 to refer a dispute to a DAB before going to arbitration. As mentioned above, in the previous FIDIC contracts (save for the ‘Orange Book’ (and Section A of the 1996 Supplement to the ‘Red Book’ which provided an option to use a DAB)), a dispute had to be referred to the Engineer for his decision before it could be referred to arbitration. When drafting its new suite of contracts FIDIC took on board the concerns raised by the contractors that the previous Engineer decision process was not working.\r\n\r\nAs an aside, in 2004 the ICC introduced its new Dispute Board Rules, which included for both DRBs and DABs and also a hybrid between the two known as a Combined Dispute Board (‘CDB’).\r\n\r\n<strong>How does a DAB work?</strong>\r\n\r\nFIDIC provides for two different types of DAB: a standing DAB (Red, Pink and Gold Books) and an ad hoc DAB (Yellow and Silver Books).\r\n\r\nWith a standing DAB, the DAB is named in the contract and appointed at the outset. In this way the DAB will be involved in a project from its start. The DAB will make regular site visits, contemporaneously read important communications, become familiar with the parties and key individuals and deal with issues as and when they arise. A standing DAB may be called upon to issue an opinion on a matter and will issue a report after each site visit.\r\n\r\nWith an ad hoc DAB, the DAB will be appointed only after a dispute has arisen and will deal with the dispute accordingly.\r\n\r\nIf there is to be a three member DAB each party will appoint its own DAB member and the third member (chairman) will be agreed upon. The FIDIC contracts provide a mechanism in case there is a deadlock in the DAB’s appointment process. Just like arbitration, the parties should give careful consideration as to who they will nominate as their chosen DAB member and should have regard to the following when making that choice:\r\n<ul>\r\n 	<li>Independence</li>\r\n 	<li>Impartiality</li>\r\n 	<li>Qualifications</li>\r\n 	<li>Experience</li>\r\n 	<li>Availability</li>\r\n</ul>\r\nDepending on whether a standing or ad hoc DAB is used, the DAB members will enter into a DAB agreement with the contracting parties either at the start of the project or when the dispute arises.\r\n\r\nAs for remuneration, the way in which the DAB is paid depends on whether it is a standing or ad hoc.\r\n\r\nA standing DAB will be paid a monthly retainer, a daily fee for site visits and/or dealing with a dispute, and also its reasonable expenses. Whilst the DAB’s fee will be shared equally between the parties, the DAB will invoice the Contractor who will make payment and then seek 50% recovery by way of the interim payment certificate process. Payment is due to the standing DAB within 56 days of its invoice.\r\n\r\nAn ad hoc DAB will be paid for its daily fee and reasonable expenses. It will not receive a monthly retainer because it only gets appointed after a dispute has arisen. The ad hoc DAB can request an advance of up to 25% of its estimated daily fees and can expect payment within 28 days of its invoice.\r\n\r\nGenerally, the process will start when the chairman receives the referral (however, the time starts from the date of response in the Gold Book (note that the 84 days will be extended to 105 days if no response is served), or the date when the 25% advance is paid in the case of an ad hoc DAB.\r\n\r\nWhichever start date applies, the DAB will usually have 84 days in which to make its decision. Taking into account the usual referral, response, reply, rejoinder, reading time, preparation for and attending meetings, preparation and writing of a decision, this 84 day period will quickly evaporate. Indeed, it would not be unusual for the DAB to request at the very outset that this 84 day period be extended. It would be a brave party to object to the request for such an extension by the decision maker.\r\n\r\nOnce faced with a referral the DAB will (or should) quickly determine the procedural steps to be implemented. Helpfully, the FIDIC Guide provides a format for a DAB process along the following lines:\r\n<ul>\r\n 	<li>Referral</li>\r\n 	<li>Response</li>\r\n 	<li>Reply</li>\r\n 	<li>Rejoinder</li>\r\n 	<li>Hearing</li>\r\n 	<li>Claimant’s case</li>\r\n 	<li>Respondent’s case</li>\r\n 	<li>Claimant’s response</li>\r\n 	<li>Respondent’s response</li>\r\n 	<li>DAB questions</li>\r\n</ul>\r\nThe DAB is free to act in an inquisitorial manner and can decide who will attend the meetings. Therefore, provided that the DAB acts fairly and impartially, it can pretty much decide for itself how it wishes the process to flow. Another important issue is that the DAB is empowered to decide on its own jurisdiction (in arbitration the ability of a tribunal to decide upon its own jurisdiction is known as the Kompetenz - Kompetenz principle).\r\n\r\nAs mentioned above, the DAB is usually obliged to issue its decision within 84 days. This time period must be strictly adhered to, as must the other formalities expressly provided in Clause 20.\r\n\r\nIf a party is unhappy with the DAB’s decision then it must issue a notice of dissatisfaction within 28 days of receiving the decision.\r\n\r\nIf a decision is acted upon then there are no further issues. If the decision is not complied with then steps will have to be taken by the successful party to enforce the decision.\r\n\r\nWhilst there are provisions provided within the FIDIC conditions to assist the successful party in terms of enforcing a decision, some legal commentators identified a lacuna in Sub-Clause 20.7 in that it failed to deal with how to enforce a DAB decision which had been challenged in the 28 day period (this problem did not apply to the Gold Book). Those familiar with the recent Persero cases will be aware of the problems caused by this lacuna. Consequently, in 2013 FIDIC issued a Guidance Memorandum (2013) recommending that future users of the ‘new’ FIDIC contracts amend the existing Sub-Clause 20.7.\r\n\r\nNotwithstanding that the most recent Persero case ([2015] SGCA 30) resulted in a majority judgment to enforce the DAB decision, it will be interesting to see if the points promulgated in the dissenting judgment will be developed further in other legal jurisdictions if and when enforcement proceedings are brought there, especially if the instant FIDIC contract has not been amended in the manner suggested above.\r\n\r\nWhilst there are provisions in the laws of the UAE that could possibly be relied upon in the local courts in an attempt to directly enforce a DAB decision, it remains to be seen how receptive these courts will be when faced with an application to enforce a DAB decision in the manner prescribed by FIDIC and the Persero cases, i.e. an interim arbitral award regarding the DAB decision, whilst the main arbitral proceedings relating to the underlying dispute and subsequent challenge to the DAB decision remain undecided. What is clear, however, is that just like their brethren common law courts, the local courts are likely to uphold FIDIC’s pre-conditions to arbitrate if, that is, the DAB provision has not been struck out.\r\n\r\n<strong>The benefits of using Dispute Adjudication Boards</strong>\r\n\r\n<strong>So what are the benefits of using a DAB?</strong>\r\n\r\nIf a standing DAB is used (which is the preferred option of the many legal commentators on the subject) then the DAB members become fully familiar with issues that have the potential to manifest themselves into disputes. They can, therefore, take measures early on in attempt to nip these potential disputes in the bud, i.e. this can be seen to be proactive dispute avoidance as opposed to reactive dispute resolution. Indeed, having a standing DAB in place is probably the only method of ADR which is in place before a dispute arises.\r\n\r\nThe DAB members will visit site and also review key correspondence. The DAB will become familiar with the main individuals involved on the project and, importantly, identify personality issues/clashes which can itself often lead to disputes.\r\n\r\nIt also allows the parties to have an independent third party involved and observe the actions of others, which should provide confidence that both parties will adhere to their obligations from the outset and behave properly, knowing that their respective actions are being constantly observed and monitored.\r\n\r\nClause 20 provides that the DAB is to make its decision within 84 days. Compare this with the usual 18 – 24 months to get an arbitration award in construction arbitrations.\r\n\r\nThe DAB controls the process. There should not be the need for extensive use of lawyers, experts and witnesses, therefore, the costs should be significantly reduced compared to litigation or arbitration.\r\n\r\nIf there is to be a meeting, as opposed to a formal hearing, then it will often take place on site, which can eliminate the costs for a venue which are incurred in arbitration.\r\n\r\nImportantly, because of the flexibility of the process and because it should operate quickly and cost effectively, there should be a greater opportunity to maintain working and commercial relationships.\r\n\r\n<strong>Summary</strong>\r\n\r\nBoth regionally and internationally, the reputation and image of arbitration is suffering. There are complaints (possibly justifiable in some cases) that it takes too long and costs too much.\r\n\r\nTherefore, those involved in disputes in the region’s construction industry may wish to consider alternative methods of dispute resolution.\r\n\r\nThere are reports from both FIDIC and legal commentators alike that standing DABs often lead to the speedy resolution of disputes without the need to resort to arbitration.\r\n\r\nIt is suggested that, if used properly, standing DABs can add value to a project in terms of real life dispute avoidance. Factoring in the cost of a DAB at the outset should be seen as a proactive step towards dispute avoidance, rather than the alternative negative step of waiting for an issue to manifest itself into a fully blown dispute necessitating formal, costly and lengthy arbitration proceedings.\r\n\r\nIt remains the case that DABs are not being used in the region to the extent they are in other parts of the world. Whilst there is no clear reason for this lack of uptake, it may be that employers continue to dictate the allocation of risk in contract negotiations, which includes the risk associated with dispute resolution provisions, and they may be concerned that DABs could issue adverse decisions in terms of time and/or money. There may also be a perception that the additional up-front costs of a standing DAB are not warranted as part of the overall project cost. Finally, even if a DAB decision is rendered and subsequently challenged, given it would not be final and binding, and leaving aside possible contractual ways for its enforcement, there remains an uncertainty of how such a decision would be dealt with by the local court leading to ancillary litigation and wasted time and costs.\r\n\r\nIn light of the above, it appears that a cultural shift in the mindset of employers is required and, possibly like the UK before it, maybe statutory intervention with a subsequent groundswell of judgments from the local courts if DABs are to gain any traction in the region.'),
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	(97751,5310,'_yoast_wpseo_metadesc','Rather than accept calls for devaluing the Egyptian Pound, the Central Bank of Egypt (“CBE”) and the Egyptian Government seem to have a different strategy to address pressure on the Egyptian Pound derived substantially from massive importation.'),
	(97752,5311,'content','February 2016\r\n\r\n<hr />\r\n\r\nHowever when a negotiation fails, the next step does not have to be litigation or arbitration. There are a myriad of other ways that can be used to help parties break the deadlock and reach an amicable settlement. Mediation is one of the most effective. In its conventional form it is a confidential process that involves having a neutral third party (the mediator) facilitate the settlement negotiations by listening to the parties and then, over a period of perhaps a day or two, having a series of separate meetings with them to discuss the issues and how they might be overcome. By having a trained professional whose sole purpose is to focus the parties’ minds on settlement, parties are often able to rise above any emotion, posturing or unreasonable conduct, and find a solution to the real issues that divide them.\r\n\r\n<strong>The Process</strong>\r\n\r\nThe mediation process is flexible to meet the demands of the parties and the issues involved. As with arbitration, mediation can be administered by the parties themselves or with the assistance of an institution (such as the ICC or LCIA). Although an institution will charge fees for its services, the assistance it brings in terms of providing a set of rules, identifying and negotiating fees with a mediator, and ensuring the process progresses in a timely manner, means the fees are usually well spent.\r\n\r\nMediation does not have a set format, but most follow a familiar pattern. The following summary of the process is based on the 2012 LCIA Mediation Rules:\r\n<ul>\r\n 	<li>A Request for Mediation is filed, either by one party or by all the parties jointly. The Request briefly states the nature of the dispute and the value of the claim, and should be accompanied by a copy of the agreement to mediate.</li>\r\n 	<li>The LCIA appoints a mediator, having regard to any nomination or criteria put forward by the parties. The mediator must be impartial and independent.</li>\r\n 	<li>The parties will discuss with the mediator what procedural steps are needed, but unless agreed otherwise each party will submit, seven days before the first mediation session, a brief written statement summarising its case and the issues to be resolved, accompanied by any documents referred to within the statement.</li>\r\n 	<li>The mediation session itself will then take place. The rules do not dictate how this will be conducted, but typically it starts with a group session where the mediator explains the process and the parties have an opportunity to make an oral statement on their position and the issues. The parties will then retire to separate rooms, and the mediator will shuttle from one room to the next, trying to facilitate progress in the negotiations. Within their own teams the parties will have identified a person who has the authority to settle the dispute on behalf of that party, and that person will usually be present so that a settlement can be entered into at the mediation session.</li>\r\n 	<li>The mediation ends when either there is a settlement or one of the parties (or indeed the mediator) declares that a settlement cannot be reached and they wish to terminate. It can also happen that a time limit set by the parties will expire without an agreement for its extension.</li>\r\n</ul>\r\nA key aspect of the process is that nothing communicated to the mediator in private during the course of the mediation is to be repeated to the other party without the express consent of the party making the communication. This allows the parties to speak openly with the mediator, something they could never do with the opposing party, and this often allows for new solutions to be identified.\r\n\r\n<strong>The Costs of Mediation</strong>\r\n\r\nThe costs of mediation tends to fall into three categories:\r\n<ul>\r\n 	<li>Institutional Fees</li>\r\n 	<li>Mediator Fees</li>\r\n 	<li>Legal Fees</li>\r\n</ul>\r\nThe institutional fees are usually modest. When a request is filed a registration fee needs to be paid (which for an LCIA mediation is GBP 750). After this the institution will estimate its fees, either on a time spent basis (the approach of the LCIA for example) or with reference to the amounts in dispute (the approach taken by the ICC for example).\r\n\r\nAs regards the mediator, his or her fees will usually be charged on an hourly rate (for example, the LCIA dictate an hourly rate of no more than GBP 450 per hour). An estimate of the time that the mediator will likely need is made at the start of the process and paid by the parties in equal shares. If at the end of the process there is an excess this will be repaid to the parties; if the process takes longer than expected, further funds will be requested.\r\n\r\nFinally, although the parties are not required to be legally represented, this will almost always be the case. The flexibility of a mediation means that it is not possible to accurately say how much the costs will be, but because the parties are not presenting their cases in detail, no evidence is being examined, and no award or judgment written, the costs involved will be much smaller than if the dispute were arbitrated or litigated.\r\n\r\nIn terms of time, mediations tend to take 2-4 months from the date of filing the Request to the end of the mediation session.\r\n\r\n<strong>The Benefits of Mediation </strong>\r\n\r\nThe benefit of mediation above most other forms of dispute resolution is that because the mediator is able to speak privately with both parties, the mediator can strive to bridge the gap between them. The mediator has the ability to challenge those parties that have unrealistic expectations regarding the strength of their case, cut through the emotions that may have built up, and suggest possible solutions, pushing the parties to reach a settlement. Even if the process does not result in settlement during the session, settlement will often occur shortly afterwards as a result of the discussions. Settlement avoids the risks, costs and time of a court or arbitral claim, and parties are much more likely to comply with the solution, having consented to it.\r\n\r\nShould the mediation fail the parties can be satisfied that they did all they could to reach an amicable settlement.\r\n\r\n<strong>The Risks of Mediation</strong>\r\n\r\nDespite its benefits mediation is not a perfect process and will not be suitable for every dispute. The process does cost time and money and there is no guarantee that it will be successful. Sometimes the parties are too far apart, and there is always a risk that one party may have no genuine desire to settle and is merely delaying the prospect of litigation (or arbitration) or trying to learn more about the strengths of the case against them. They may agree to a settlement agreement and then refuse to comply with it. Although these risks can all be managed, they do exist and parties need to be aware of them.\r\n\r\n<strong>When is the Best Time to Mediate?</strong>\r\n\r\nIf the contract has a mediation clause in it then it may dictate when the mediation is to take place. Otherwise it is for the parties to choose. The conventional time would be once negotiations have identified some issues but both parties remain committed to resolving the dispute amicably. Although mediation can take place during litigation, usually the parties mediate to avoid the time and cost of litigation, since the later it is left the less benefit there will be.\r\n\r\nParties are often concerned that if they propose mediation this will be taken as an indication that they believe their case is weak and wish to avoid litigation. However there are two reasons why these concerns should not dissuade a party proposing mediation:\r\n<ul>\r\n 	<li>\r\n<div>Whilst it is true that a party with a weak case will be less keen to litigate (or arbitrate) a dispute, there are also good reasons why parties with strong cases will want to avoid litigation. Litigation is expensive, time-consuming, inherently risky and limited in terms of solutions it can impose. A party would be foolish to think that an offer is a reflection that the other party has doubts regarding its case.</div></li>\r\n 	<li>\r\n<div>There is nothing to lose by proposing mediation. The strengths of the parties’ respective positions will remain the same, and if the proposal is rejected the case will proceed to litigation or arbitration as before. However if the proposal is not made, one will never know if an amicable solution might have been possible.</div></li>\r\n</ul>\r\n<strong>Some Practical Issues</strong>\r\n\r\nThere are a number of practical issues to be borne in mind when considering mediation:\r\n\r\nSince mediation is not suited for every dispute, it may be best not to agree to mediation in the contract but to wait until the dispute has arisen, at which time the parties can assess whether settlement might be possible.\r\n\r\nWhen choosing a mediator the parties will want someone who is trained in mediation techniques and who ideally is familiar with the industry in question (this will ensure the mediator has some insight into what is commercially suitable as a settlement). The mediator does not need to be a lawyer but often this helps as a lawyer will be aware of the legal aspects of mediation and settling disputes.\r\n\r\nEach of the parties will need to be sure that the person settling the dispute for the opposing party has the necessary authority. This should be assessed before the mediation session.\r\n\r\n<strong>Should you Mediate?</strong>\r\n\r\nFundamentally, whether you should mediate a dispute comes down to perhaps three issues:\r\n\r\n1.    Are the issues suitable for compromise?\r\n\r\nAlthough rare, some issues that arise may simply not be suitable for settlement. There may also be cases where a party requires a judgment in order to set a helpful precedent, or where there is a significant risk that a settlement will encourage other potential claimants to bring claims.\r\n\r\n2.   Does the other party have an incentive and ability to settle?\r\n\r\nGiven the costs and risks of litigation, parties almost always have some incentive to settle. However it may be the other party is short on funds and will not be able to settle on realistic terms. Furthermore, if trust between the parties is low one party may suspect that the other party will only use the process to delay matters.\r\n\r\n3.     Will mediation significantly save costs if successful?\r\n\r\nThe answer will almost always be that mediation will save costs if successful. However if the case is shortly to be tried before a court, the parties may have already incurred the bulk of the litigation costs. Not only do these incurred costs become a further issue to be resolved in any mediation, but the parties are more likely to take the view that having already spent the time and money preparing the case for trial the process should continue.\r\n\r\nIn conclusion, whilst not every dispute is suitable for mediation, it is always appropriate to consider whether mediation might help the parties reach an amicable settlement that could not only save considerable time and money, but possibly the relationship between the parties themselves.'),
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	(97735,5310,'content','February 2016\r\n\r\n<hr />\r\n\r\nThe strategy adopted by Egypt appears to be a combination of qualitative and quantitative control approaches as embedded in the following measures fostered by the Government and the CBE.\r\n\r\n<strong>Quality &amp; Officially Branded Products Only</strong>\r\n\r\nThe Ministry of Trade &amp; Industry has issued Resolution No. 992 of 2015 on 31 December 2015 as published in the official Gazette (the ”Resolution”). The Resolution attempts to improve the regulations in respect of the importation of certain products including some food products, dairy products and electrical equipment as well as certain accessories and other products outlined in the annex attached to the Resolution (the “Regulated Products”).\r\n\r\nThe Resolution establishes a register for all manufacturers of the Regulated Products. Registration will be pursuant to a decision of the Minister of Trade &amp; Industry who will have discretion to exempt certain manufacturers from part, or all of, the requirements of registration.\r\n\r\nArticle 2 of the Resolution provides requirements for registration which include submission of an application form, copy of licensing as well as evidence of trademark rights to the Regulated Product. Furthermore, the Resolution requires submission of information relating to the manufacturer as well as an undertaking from the manufacturer to accept an inspection from a technical team to ensure that environmental and safety requirements are part of the manufacturing process.\r\n\r\nOne of the key requirements for admission for registration under the Resolution is to submit a certificate confirming that the plant in which the products are manufactured has quality assurance systems including ILAC certification or other certification issued from one of the Egyptian governmental entities or non-Egyptian ones that are approved by the Minister of Trade &amp; Industry.\r\n\r\nThese requirements have been misperceived by some market players and importers as a ban on importation of products or an attempt to make importation of the Regulated Products difficult or burdensome. In our view, we believe that these requirements have taken a step towards improving the quality of products imported into Egypt. In addition, the Resolution once implemented and when the register is activated will support efforts to stop the importation of counterfeit products.\r\n\r\n<strong>Reducing Pressure on Currency</strong>\r\n\r\nFurthermore, in a recent circular from the CBE, the documentary credit requirements for importation of commercial products were reregulated to minimise importation of “unnecessary” goods but not to “ban” them. Creation of documentary credit for importation of tradable goods requires a 100% guarantee with banks pursuant to this new circular.\r\n\r\nAside from the content of the circular, the Governor of the CBE explicitly announced that the measures being undertaken by the CBE and the Government target the reduction of imports by US$ 20 billion this year.\r\n\r\nMoreover, the CBE has announced a vision to support funding SMEs in Egypt as a parallel step to encourage production in the local market.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhen one assesses the implications of both the Resolution and the circular, together with the announcements recently made by the Governor of the CBE, the targeted outcome seems to be reducing pressure on local Egyptian currency by reducing imports of unnecessary goods while at the same time improving the quality of goods imported into Egypt and increasing local production via supporting SMEs. These steps will also help stop the importation of counterfeit products in line with Egypt’s international commitments requiring protection of IP rights.'),
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	(97734,5309,'_yoast_wpseo_metadesc','A popular method of doing business in the UAE is through arrangements entered into with local, appropriately licensed, agents/distributors.'),
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	(97705,5308,'content_description','Succession process has always been an important issue for banks and financial institutions in the UAE holding the accounts of the deceased or such deceased being a creditor or guarantor of such bank or financial institution. '),
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	(97719,5308,'_yoast_wpseo_metadesc','Al Tamimi & Company highlights and simplify the succession process, the rights of financial institutions in succession proceedings and safeguards that should be taken by the banks when dealing with such succession proceedings and the estates of deceased persons.'),
	(97720,5309,'content','February 2016\r\n\r\n<hr />\r\n\r\nThese types of arrangements can provide a foreign business with invaluable local experience and knowledge allowing it to benefit from pre-existing relationships that an agent may have with other local businesses. However, any business wishing to enter the UAE market must consider the impact of the applicable UAE commercial agency regime.  We all too often see the aftermath of a failure to appreciate local laws and customs, when seeking advice at the outset could have significantly reduced, if not eliminated, the issues parties may face.\r\n\r\nAs set out in more detail in a number of previous articles in Law Update, the registration of a UAE agent in the commercial agencies register (established by the Ministry of Economy (“Ministry”)), places an agent in a very strong position. One of the key benefits of registration, pursuant to Federal Law No. (18) of 1981 Concerning the Organisation of Trade Agencies, as amended (the “Agency Law”), is the rights of the registered agent to block the products that are the subject of a registered agreement from being imported into the agent’s registered territory (whether it be the UAE generally or one or more Emirates).\r\n\r\nRegistration involves the agent, in short, presenting a duly signed and notarised (before a notary public) copy of the agreement (and attested if signed outside the UAE) to the Ministry (although we are aware that there have been some instances where registrations have been effected by the Ministry in the absence of such criteria not being met). Additionally, there is the prospect that an agent, in the absence of a notarised copy of the agreement (because, for example, the principal refused or did not provide a notarised copy, or the agreement is not in Arabic), could apply to the local court to obtain an order for registration, subject to the agreement meeting the requisite criteria.\r\n\r\nOnce registered, the particulars of an agreement, such as the names of the parties, the date of registration and the products for which the agent is to be the exclusive agent in the UAE, are entered in the commercial agencies register.\r\n\r\n<strong>What’s covered?</strong>\r\n\r\nThe issue of exactly what products may be covered by a commercial registration is one that sometimes comes up and this can have a significant commercial impact on the principal. There are several issues that a principal may want to consider when dealing with a prospective registered agent.\r\n\r\nHistorically, it was not unusual for an agent to be appointed for a “brand”, often on the basis of a very short form agreement, which lacked any specificity. This placed a registered agent in a very strong position to claim that they were the appointed agent for any product bearing such a brand name. In recent years, the trend has been for principals to be far more detailed in identifying, in the agreement, the specific products that an agent will be their appointed representative for in the UAE. Generally speaking, it is perfectly legitimate for an agreement to grant an agent the right to distribute only certain products, allowing the principal the freedom to appoint other agents/distributors for its other products.\r\n\r\nWhere a principal is entering into an agreement that is to be registered it would be sensible for the principal to be actively involved in the registration process, be it directly or through legal representatives. This will allow it to monitor and try to ensure that the details which are recorded on the registration system maintained by the Ministry and which are reflected in any commercial agency registration certificate (which is subsequently issued), are correct. This is not to say that the Ministry are incapable of correctly transposing the key elements of an agreement into the commercial agency register, but differing approaches by the administration staff could mean that the way in which the products are recorded and thereafter reflected in the commercial agency registration certificate, is not an accurate reflection of the agreement between the parties.\r\n\r\nWe have seen some instances whereby there is a considerable disparity between the products listed in an agreement and those transposed into the commercial agency register, such as a generic reference to “all products and equipment” having been put into the registration system where the agreement was more specific. Unless checked, the only time this issue is ever likely to be noticed is upon a dispute arising between the principal and the registered agent, by which time a registered agent’s willingness to amend any inaccuracies in the registration will, no doubt, have waned considerably. If there is a clear mistake in how the products are recorded in the commercial agency register then the principal may be able to approach the Ministry and ask that they take administrative steps to amend the registration to accurately reflect the products listed under the agreement. However, there is no guarantee that a unilateral approach would work, as the Ministry may be reluctant to facilitate the changes without the agent’s consent. Therefore, the principal’s involvement at the outset is suggested so all parties can be sure that the scope of an agent’s appointment is clear and accurately recorded at the start of the agent’s appointment.\r\n\r\nAnother factor to be considered by principals and agents is that, on occasion, policy decisions made by the Ministry may dictate that the registration of an agency is only possible in respect of a principal’s entire product range. In these circumstances guidance should be sought from the Ministry prior to the principal signing any agreement with a proposed agent. Recent discussions with Ministry representatives have suggested that they may, by virtue of internal policy decisions, require that, in some industry/market sectors, only one agent be registered in relation to a specific manufacturer’s product range i.e. products or even “brands” manufactured by the same parent entity may be caught by a pre-existing registration in respect of a parent entity’s other brands/products. The practical effect of this would be that an agent could have a right to acquire the rights to distribute a second brand or product line, based on their pre-existing registration in respect of another brand/product line of the same principal. Obviously, the potential impact of any policy decisions of Ministry must be considered on a case by case basis, at the time of entry into the agreement. Note, this is not a broad brush approach and is only applicable to certain market sectors as and when policy dictates.\r\n\r\nAnother interesting consideration is how, if at all, a registered agreement is treated if there are operational changes which effect the principal entity that is party to a registered agreement. It is not uncommon for a company to undergo internal restructuring whereby divisions of an entity become standalone subsidiaries or for a group reorganisation to result in one member of the corporate group taking over the responsibility for the appointment of distributors/agents from another. We have seen on a number of occasions, more so with older registered agreements, that the entity responsible for supplying the products to the agent is not the entity that is recorded in the registration. In our view, it is likely that the Ministry will consider that the entity subject to the original registration remains bound by the registration and will remain so until such time as the registration is deregistered or updated at the Ministry. Of course, there may be circumstances where this approach would not make sense, such as where the original contracting party ceases to exist. In any event, the key issue for both the principal entity that is supplying goods into the UAE and for the registered agent is that, in our opinion, the registered agent will continue to be recognised as the registered agent for those products under UAE law and, in particular, will continue to benefit from the protections afforded to registered agents under the Agency Law.\r\n\r\nFinally, “evolutions of products” can also cause potential ambiguity. Again our discussions with the Ministry have indicated that if an agent can prove that a “new” product entering the market is effectively an “evolution” or a later model of a pre-existing product already subject to registration in their name, then the registered agent could have a strong argument to claim that they are also the registered agent for that product. Of course what constitutes an “evolution” of a product, as opposed to a standalone new product is subjective, and very much depends on the facts and, often, on the technical specifications of the products in question and/or their target market (if the “new” product is aimed at the same market and is seen as a substitute for the “old” product it is moiré likely to be seen as an evolution of that product as compared to a situation where it is aimed at a different market and not seen as a substitute for the “old” product).\r\n\r\nWe recommend, in the context of appointing a registered agent in the UAE that a principal be actively involved in the registration process to try to ensure that an agent’s registration with the commercial agencies register is a true reflection of the parties’ contractual agreement. However, simply ensuring that the products as listed in a registered agreement are accurately reflected in the registration certificate is not necessarily the end of the story when considering what products, in fact, may be covered by that registration!'),
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	(97701,5308,'content','February 2016\r\n\r\n<hr />\r\n\r\nIn this article, we highlight and simplify the succession process, the rights of financial institutions in succession proceedings and safeguards that should be taken by the banks when dealing with such succession proceedings and the estates of deceased persons.\r\n\r\n<strong>General Approach on Death of UAE Resident</strong>\r\n\r\nIn determining the legal position of a deceased person leaving assets (including bank accounts) in the UAE and matters of inheritance, the UAE Civil Code (Federal Law No. 5 of 1985) as amended ( “Civil Code”) and The Law of Personal Affairs (Federal Law No. 28 of 2005) as amended ( “Personal Affairs Law”) are applicable.\r\n\r\nArticle 17 of the Civil Code states the following:\r\n<ul>\r\n 	<li>Inheritance shall be governed by the law of the deceased at the time of his death.</li>\r\n 	<li>Property rights located in the territory of the state which belong to an expatriate having no heir shall become vested in the state.</li>\r\n 	<li>The substantive provisions governing testamentary dispositions and other dispositions taking effect after death shall be governed by the law of the state of which the person making such dispositions is a national at the time of his death.</li>\r\n 	<li>The form of wills and other dispositions taking effect after death shall be governed by the law of the state of which the person making such disposition is a national at the time the disposition is made, or the law of the state in which the disposition is made.</li>\r\n 	<li>The law of the United Arab Emirates shall apply to wills made by expatriates disposing of their real property located in the state.</li>\r\n</ul>\r\nIn essence, the above article does recognise that the law of the deceased will apply to succession proceedings.  Having said that, Article 27 of the Civil Code, to an extent, dilutes the effect of Article 17 by stating the following:\r\n\r\nIt shall not be permissible to apply the provisions of a law specified by the preceding articles if such provisions are contrary to Islamic Shariah, public order or morals in the state of the United Arab Emirates.\r\n\r\nThis is primarily the reason behind the difference in application of law by the different Courts in the UAE.  Some Courts take a relaxed attitude towards applying Article 27 above, while others are quite strict.\r\n\r\nThe Personal Affairs Law on the other hand governs how the estate of a UAE national or resident will be managed and distributed upon the death of the individual. Article 1(2) of the Personal Affairs Law sets out:\r\n\r\nThe provisions of this law shall be applicable to all UAE nationals unless the non Muslims thereof have different provisions for their different religions. Further the provisions of this law shall be applicable to non UAE nationals unless they insist on the applicability of their own laws.\r\n\r\nAccordingly, the Personal Affairs Law recognises the provisions of the Civil Code as stated above (pertaining to governing law provisions) when a non-UAE national insists on the same and is qualified to do so under the Civil Code and allows for application of foreign law.\r\n\r\n<strong>Succession Procedures</strong>\r\n\r\nUpon death, the personal assets of the deceased, including local bank accounts, are frozen (Article 379(4) of Federal Law No. 18 of 1993 (“Commercial Transactions Law”)) until the local court issues a succession order.\r\n\r\nWhen a person dies, a death certificate is issued. A named executor or a close relative of the deceased should submit this certificate to a UAE Sharia Court. The Shariah Court in the relevant Emirate has jurisdiction to review any application for a death declaration (declaring the death of and identifying the survivors of the deceased) ( “Death Declaration”) and to conduct any proceedings relating to succession for a Muslim or a non-Muslim expatriate.  Once the Death Declaration is obtained, any of the potential heirs may apply to the Shariah Court to institute succession proceedings, which will only be necessary if the deceased has assets in the UAE in order to obtain a certificate of succession.\r\n\r\nIn order to ascertain the identity of the heirs, documents will have to be provided to the Sharia court such as passport copies, birth certificates, marriage certificates, and such other evidentiary documents that will assist the court in issuing the conclusive certificate of succession.  Additionally, if the deceased left a valid and acceptable will, it should be submitted to the Sharia Court. On the basis of these documents, the court will issue a certificate of succession setting out the manner of the distribution of the estate.\r\n\r\nSimilarly, if an expatriate non-Muslim having property in the UAE passes away outside the UAE, the named executor or a relative of the deceased would usually file the appropriate succession proceedings before the relevant court in the individual’s home country.  It is required that the order (Letters of Probate, Letters of Administration, Succession Certificate etc.) issued by that court  is  legalized and submitted before the Shariah Court in the UAE along with the necessary documents for issuance of a certificate of succession and an order for distribution of UAE assets.\r\n\r\n<strong>Form of the Estate </strong>\r\n\r\nAn estate under the Personal Affairs Law takes form of tangible properties and rights under such properties and other financial rights through a judicial declaration.  There is no concept of common law trusts under UAE law, which would arise automatically in common law jurisdictions.  Further, under the applicable provisions of the Personal Affairs Law, burial expenses followed by the deceased’s debts (discussed below) and executable wills have priority over any assets to be distributed to the successors.  The court may also appoint a trustee who will receive the properties of the deceased and will liquidate such properties under the court’s supervision.\r\n\r\n<strong>Protection of Creditors’ Rights</strong>\r\n\r\nUnder Article 275 of the Personal Affairs Law (as stated above) the creditors of the deceased would take priority over any other distribution except for any burial expenses.  In order for the lending bank (“Bank”) to ensure that their debt is due and thus has priority on the death of the obligor (whether acting in the capacity of a borrower or a guarantor or a security provider) it should be stated as an event of default (under the relevant facility agreement or security document) entitling the Bank to accelerate the loan and seek recourse against the estate and the heirs of such deceased obligor.\r\n\r\nIt is important to note that in case of lending to a corporate secured by personal guarantees, the death of the personal guarantor should be stipulated as a mandatory event of default which would afford the Bank a priority of claim in the estate of the deceased personal guarantor.\r\n\r\nOnce the Bank comes to know of the Death Declaration and the distribution of assets, the Bank should immediately file proceedings against the estate and the heirs (as the case may be) to exercise its rights under the applicable provisions of the Personal Affairs Law in its capacity as a creditor.\r\n\r\nIn relation to any proposed or ongoing legal proceedings by the Bank (as creditor) at the time of death, the Bank would be restricted by certain requirements to pause such proceedings pending settlemtent of all the debts of the estate, as set out in Article 284 of the Personal Affairs Law, which provides that:\r\n<ul>\r\n 	<li>From the time of appointing a trustee for the estate, creditors may not take any procedure regarding the estate or pursue any procedure they have taken except vis-à-vis the estate trustee.</li>\r\n 	<li>All procedures taken against the deceased shall be discontinued pending settlement of all the debts of the estate once any concerned party so requests.</li>\r\n</ul>\r\nArticle 287 of the Personal Affairs Law sets out the procedure to make a claim as follows:\r\n\r\n<em>The estate trustee shall invite the estate creditors and debtors to submit a statement of their rights and debts within two months from the date of publishing the relevant order.</em>\r\n\r\n<em>Such an order is posted in court premises where the majority of the assets of the deceased are located and also in the daily newspaper. The Bank needs to be vigilant of such an order and ensure that it submits its claims to the estate trustee within a period of two months from the date of such an order. </em>\r\n\r\nOnce a claim has been made, the estate trustee will prepare a report in accordance the provisions of the Personal Affairs Law and deposit at the court three months from the date of appointment an inventory statement of the estate’s assets and liabilities and an estimation of these funds.  In the event that the Bank is not satisfied with its liabilities listed in the inventory statement, the inventory statement can be challenged by the the Bank under Article 291 of the Personal Affairs Law within 30 days from the date of submission of the report to the court.\r\n\r\nIt is very important for the Bank to check that its  liabilities have been clearly reflected in the inventory statement as per Article 297 of the Personal Affairs Law. There have been instances where creditors have not recovered their rights because of not having been recorded in the inventory list.  However they may have a seperate recourse against the successors for their portion of assets realised from the estate.\r\n\r\nArticle 292 of the Personal Affairs Law stipulates that, at the end of the aforementioned 30-day period, the estate trustee may settle the estate’s debts with the permission of the Court.  However, if the estate is insolvent or is likely to be insolvent, the estate trustee may not settle any debt until a final decision has been reached in relation to any insolvecny proceedings connected with the estate’s debts.\r\n\r\nLastly, the Personal Affairs Law provides that the debts are settled from the proceeds of any claims of the estate, the liquidation of moveable assets and finally from the liquidation of real estate (forming part of the estate), if such procceds are insufficient.  Moveable assets and real estate shall be sold at public auction pursuant to the terms of the Civil Code unless the successors agree on another method.  If the estate is insolvent, the approval of all creditors to such alternative method will be required.'),
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	(97678,5307,'content','February 2016\r\n\r\n<hr />\r\n\r\nThe range of powers being delegated can be wide and will depend on the purpose of making the delegation. Where the delegated powers are for general unspecified matters, this can be delegated using a General Power of Attorney. If the delegation is for a specific matter or for a court case, a Specific Power of Attorney will be needed.\r\n\r\nWhilst the wording in a General Power of Attorney will imply that it covers all legal actions that could be taken by the principal, there are specific powers that need to be explicitly provided for if they are to be delegated, such as the power to settle a dispute.\r\n\r\nThe need for an explicit power to settle a dispute, or waiver of a judgment or any avenue of appeal against it, is found in articles 58 (2) of the Civil Procedures Law. Article 58(2) states:\r\n\r\n“2 - No admission or waiver of a right alleged or settlement or submission to arbitration or acceptance of or requisition for the oath or refusal thereof or abandonment of the proceedings or waiver of the judgment in whole or in part or of any avenue of appeal against it or the lifting of an attachment or abandonment of securities while a debt remains unpaid or allegation of forgery or recusal or acceptance of a judge or expert or true tender or any other disposition in respect of which the law requires special authorisation may be made without special authority”\r\n\r\nThe Abu Dhabi Courts of First Instance and Appeal may accept the Power or Attorney issued by the concerned party to its attorney, without requiring further documentation. However, the Abu Dhabi Court of Cassation will look more extensively into this issue and will require submission of evidence showing the delegation of powers as required on a case by case basis. This is due to the requirement to have explicit powers in certain matters, as noted above. This is also due to Article 177 of the Civil Procedures Law, the relevant parts of which state:\r\n\r\n“1 – A challenge by way of cassation shall be brought by a notice lodged with the office of the court, signed by an attorney licensed to appear before it, and accompanied by proof of payment of the fee in full, together with the security, and the appeal shall be entered immediately in the register kept for that purpose.\r\n\r\n2 - .....\r\n\r\n3 - The appellant must, before the appeal is reserved for judgment, lodge the power of attorney of the advocate instructed in the appeal.\r\n\r\n4 - .....\r\n\r\n5 - If the challenge by way of cassation is not made in the foregoing manner, it shall be disallowed and the court shall rule of its own motion that it is disallowed.”\r\n\r\nAlthough powers of attorney are often viewed by the layman as a formalistic issue, they are vital documents and if incorrectly issued (or not issued at all) they may result in a contract or act being declared void. The repercussions may also extend to the dismissal of a given case. To emphasize the importance of the above articles of the Civil Procedure Law, we now summarize three judgments. In the first, a person’s power to resolve a dispute was challenged, whereas in the second and third the capacity to file an appeal before the Court of Cassation was challenged.\r\n\r\n<strong>Case Study 1: </strong>\r\n\r\nIn Abu Dhabi Court of Cassation (Commercial) Case 368/2012 (dated 21 October 2013, Al Tamimi did not appear in the case) a partner in two separate limited liability companies signed a contract to waive the rights of the two companies towards another third party they had contracted with. The capacity of the partner was never contested at the time the contract was signed, as he was considered to be the apparent authorized person to act on behalf of the companies (being a partner and the owner of 76% of the shares) (“the first partner”).\r\n\r\nThe second partner of the two companies was appointed as a Manager for both of them (“Manager”). He had never signed or approved the above contract. He contested its validity and filed a case requesting the Abu Dhabi Court to declare the contract null and void.\r\n\r\nThe Court of First Instance deemed the capacity of the First Partner, based on the apparent authority that he holds, sufficient to consider the contract as valid. It thus rejected the Manager’s case.\r\n\r\nThe Court of Appeal overturned the Court of First Instance judgment and upheld the Manager’s case. This judgment was challenged before the Court of Cassation.\r\n\r\nThe Court of Cassation ruled that the authorized representative of the Company is the Manager as he is the only one who has the legal capacity to enter into dispositions. The Court held that the signature of the First Partner was not sufficient to bind the two companies nor does it bind him personally, as he signed in his capacity as an agent (albeit without the necessary authority).\r\n\r\nThe Court of Cassation commented that the size of the first partner’s shareholding has nothing to do with the management of the company, which is done by a manager appointed to do so (whether the manager is one of the partners themselves or a third party).\r\n\r\nThe wording of the judgment was broad, no doubt to express the general principle that only the manager of a limited liability company has the authority to sign all types of contracts on behalf of the company.  We believe the reasoning behind this is that the shareholders of a limited liability company are legally protected, as the law prevents creditors taking legal actions against the funds and assets personally owned by the shareholders themselves. The law however puts obligations and duties on the manager of a limited liability company and exposes the manager to liability if they are breached. Managers can be held accountable, whether through civil or a criminal litigation, in respect of a breach of management obligations.\r\n\r\nThis case is authority for the fact that settlement agreements can be deemed null and void by the Abu Dhabi Courts if the General Manager of the limited liability company did not sign it, even if it was signed by the partners of the Company.\r\n\r\n<strong>Case Study 2:</strong>\r\n\r\nIn Abu Dhabi Court of Cassation (Labour) Case 96/2015 (dated 30 September 2015) an employee filed a labour claim for outstanding dues from its employer company.\r\n\r\nThe Company issued a Power of Attorney to a lawyer to represent it before the Abu Dhabi Courts and defend the case. The Power of Attorney was accepted by the Court of First Instance and a judgment was issued by that court obliging the Company to pay a certain sum to the employee to compensate her for damages sustained.\r\n\r\nThe Company appealed the judgment using the same Power of Attorney, which was accepted by the Court of Appeal. The Court of Appeal ruled against the Company and upheld the judgment of the Court of First Instance.\r\n\r\nThe Company challenged the judgment before the Court of Cassation. The Court of Cassation did not look into the merits of the challenge filed by the Company, it rather focused on the authority of the lawyer to file the appeal. The Court stated that “Proof showing the capacity to challenge judgments before the Court of Cassation is an issue pertaining to public order”. The Court therefore had to look into the issue even though it was not raised by the parties.\r\n\r\nThe person who issued the Power of Attorney to the lawyer on behalf of the Company did so pursuant to a Power of Attorney issued to him from the official representative of the Company. The lawyer’s Power of Attorney noted that the powers of the latter representative were referenced in the Articles of Incorporation of the Company. However, the Articles of Incorporation themselves were not filed along with the Power of Attorney, nor were there any other documents showing the current capacity and powers of the official representative or their limits. The Court dismissed the case for lack of such documents. The merits were not decided upon since the challenge itself was dismissed due to the problem with the Power of Attorney.\r\n\r\nThe Court noted that the right to challenge judgments before the Court of Cassation is a personal right for the party who has a judgment issued against it and that party can exercise this right or abandon it. Without its consent, no one has the right to act on its behalf in this regard. If the party is a juridical one (such as a company), the capacity of its representative must be evidenced in a clear manner. In reliance of Article 177 of the Civil Procedures Law, the Court has the right to dismiss the case if no proof is presented to show the capacity and powers allowing for challenging judgments before the Court of Cassation.\r\n\r\nAl Tamimi represented the Company before the Court of First Instance, but not the Court of Appeal or the Court of Cassation.\r\n\r\n<strong>Case Study 3:</strong>\r\n\r\nIn a recent challenge filed before the Cassation Court (Labour) Case No. 110 and 126 of 2016 (issued on 25 January 2016) (which was not handled by Al Tamimi), the Court of Cassation also dismissed a challenge for lack of proof supporting the Power of Attorney lodged by the appellant’s lawyer (citing Article 177 of the Civil Procedures Law).\r\n\r\nAs in Case Study 2, the Court noted that this requirement is essential to verify the validity of the Power of Attorney in terms of the capacity of its issuer, the powers of the person who appointed the lawyer, and whether such powers include the right to challenge a judgment before the Cassation Court. This right is a personal one for the party who had a judgment issued against it and it is the only party that can decide to pursue or abandon it. No one can act on behalf of this party in this regard without its approval.\r\n\r\nThe Court realized from the Trade License submitted by the appellant that the appellant company was a limited liability one and that according to Article 83 of the Companies Law there has to be a manager who handles its business affairs and can represent it before Courts. The Power of Attorney in this case was issued by a person in her capacity as the manager and legal representative of the Company. However, the license showed that this person was only one of the partners in the Company and was silent as to her capacity as a manager or a representative. The Court also noted that there was no proof submitted to support the managerial capacity, such as the Articles of Association or any similar official document.\r\n\r\nThe Court thus concluded that it could not confirm that the lawyer attending before it was in fact duly appointed by the actual authorized person who has the necessary powers. Accordingly, it dismissed the case for that reason.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nAs these cases demonstrate, Powers of Attorney are important documents and getting them wrong can cause serious problems. However, these problems can be avoided. Parties need to seek legal advice before entering into a settlement agreement to confirm that the relevant parties hold the necessary powers and that all required delegations of powers are present. This is the only way to avoid the prospect of having the agreement annulled. A proper legal review of the Power of Attorney and its supporting documents is also necessary to confirm that the Court of Cassation will not dismiss the case because of an invalid authority or lack of proof confirming such authority.\r\n\r\nAlthough Powers of Attorney may seem unnecessarily formalistic, they in fact touch upon public order and are essential.\r\n\r\n&nbsp;'),
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	(97657,5306,'content_description','In a recent judgment by the Dubai Court of Appeal (No. 514 of 2014, dated 10 January 2015), the court examined whether a contract was a gambling contract and accordingly whether the debt that accrued under the contract was payable to the Claimant.  '),
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	(97659,5306,'pageSummary','In a recent judgment by the Dubai Court of Appeal (No. 514 of 2014, dated 10 January 2015), the court examined whether a contract was a gambling contract and accordingly whether the debt that accrued under the contract was payable to the Claimant.'),
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	(97663,5306,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sherif Hikal'),
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	(97669,5306,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Zane Anani'),
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	(97677,5306,'_yoast_wpseo_metadesc','Al Tamimi & Company successfully defended the Defendant in this case which was filed by a provider of spread betting, forex and other forms of trading (the Claimant).'),
	(97653,5306,'content','February 2016\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Company successfully defended the Defendant in this case which was filed by a provider of spread betting, forex and other forms of trading (the Claimant).\r\n\r\nThe agreement between the parties involved speculation on movements in international share and stock prices. The Defendant would speculate on one of the markets concerned closing at a certain level and, if that figure or sum were achieved, the Claimant would pay the Defendant an amount based on the formula set out in the agreement. If the figure or sum was not achieved (i.e. the market failed to reach the level predicated by the Defendant), the Defendant would pay the Claimant.\r\n\r\nThe question was whether this was a contract for spread betting or not.\r\n\r\nIt was argued by the Claimant that the contract was a commission-based agency contract, because it related to assets (stocks, shares and currencies) being traded, it was not a contract for gambling. The Court of Appeal however held that there was no proof of shares or securities being traded between the parties, it was strictly a case of spread betting where predictions were made on the prices of shares and stocks that were not acquired by or transferred to either party. Since betting is prohibited under UAE Law (Article 1021 of the UAE Civil Code), being a contracts of hazard (gharar), the subject matter of a spread betting contract is unlawful and renders the contract void for contravening public policy and morals.\r\n\r\nThe Claimant was therefore unable to recover the debt that accrued under the spread betting contract.\r\n\r\n<strong>Background Facts</strong>\r\n\r\nThe Defendant entered into an agreement (and opened an online trading account) with the Claimant. The dealings between the parties involved speculation on movements in international share and stock prices where one of the parties speculates on one of the markets concerned closing at a certain level and, if that figure or sum is achieved, the other party pays the speculator an amount based on the formula set out in the agreement. If the figure or sum is not achieved i.e. the market fails to reach the level predicated by the speculator, the speculator pays the other party.\r\n\r\nOn the 9 October 2008, the Claimant suspended the Defendant’s account for an unrecovered debt in the amount equivalent to AED 2,573,439.\r\n\r\n<strong>The Court of First Instance</strong>\r\n\r\nThe Claimant filed proceedings before the Dubai Court of First Instance for the unrecovered debt and asserted that his role was that of an agent akin to a stock market agent/broker. The Defendant argued that the nature of the agreement was not an agency (which requires at least three parties). The Defendant argued that the contract was void on public policy grounds, pointing out that the Claimant had deliberately failed to produce a copy of the contract for the court’s review with the hope that the Court of First Instance would not be able to ascertain that the agreement was a gambling contract known in English as a ‘spread betting contract’ which involves speculation on price movements. Such a contract is an explicit form of gambling forbidden under Islamic Law.\r\n\r\n<strong>Expert Report</strong>\r\n\r\nThe Court of First Instance appointed an accounts expert who concluded in his report that the Defendant had opened an account with the Claimant (with a password) to perform online transactions and trades that allowed him to speculate on price movements. The expert established from an accounting standpoint that the Defendant engaged in betting activity based on price movements through the account in question. According to a printout of a statement of account from the Claimant’s accounting system showing the Defendant’s transactions, the Defendant’s account had a debt balance of AUS 389,950 due to fluctuations in Standard &amp; Poor’s 500 index. The expert thus confirmed the Claimant’s right to claim that amount without interest.\r\n\r\nBoth parties exchanged comments on the expert report with both parties objecting to the report. Both parties requested that the original expert be reappointed to undertake the following:\r\n<ul>\r\n 	<li>Provide the Court of First Instance with a detailed explanation of the nature of the transaction; and</li>\r\n 	<li>Determine whether any assets (shares, stocks) were traded between the parties or whether it was only a matter of betting, prediction, and speculation without the transfer of any assets.</li>\r\n</ul>\r\nThe Claimant submitted a report issued by a consultant in the UK with the aim of showing that the transaction in question was of the sort offered by UAE banks, and therefore the parties’ agreement would be permissible under UAE Law.\r\n\r\nThe Court of First Instance subsequently ordered that the Defendant pay to the Claimant a sum of AUS 389,950 or its UAE Dirham equivalent, plus 5% interest per annum.\r\n\r\n<strong>The Court of Appeal</strong>\r\n\r\nThe Defendant appealed the Court of First Instance’s decision. The Defendant argued that the Court of First Instance had erred because it had misinterpreted the nature of the transaction and the parties’ relationship by concluding that the contract was a commission-based agency contract and presuming that assets (stocks, shares, currencies) were traded when in fact the contract was based on (prohibited) betting among speculators where no assets were traded and wagers/predictions were made with respect to the prices of shares and stocks. The Defendant sought dismissal of the action on public policy grounds (Articles 1012 -1021 of the Civil Code). It was argued that the transaction was a type of gambling and requested that an Islamic finance expert be appointed to determine the nature of the contract and whether such activity (spread betting) was permissible under Islamic law or prohibited under Articles 1012 – 1021 of the Civil Code.\r\n\r\nThe Defendant also submitted documents obtained from the UK confirming that this type of transaction would not be regulated by the rules of the Financial Services Authority (FSA). These transactions are regulated by the UK Gambling Commission and any complaints relating to this type of transaction are referred to the Betting Adjudication Service.\r\n\r\nThe Defendant also highlighted that the Claimant described the activity as spread betting on its website as follows:\r\n\r\n“[the Claimant’s website allows you] to trade on the price movements of thousands of financial markets, including indices, shares, currencies, forex, commodities and more. With a spread bet, you can speculate on price movements on both rising and falling markets. This is known as ‘going long’ (when you buy) or ‘going short’ (when you sell). For example, you may know that a company is about to release quarterly results and have an opinion on whether the figures will have a negative or positive affect on its share price. Based on that opinion, you can place a spread bet to go long (buy) or go short (sell) the company share price and take advantage of any price moves.”\r\n\r\nA request for the reappointment of the expert was made in order to consider issues such as: the nature of the transaction, whether any assets were traded and to examine documents that were allegedly tampered with\r\n\r\nAccordingly, the original expert was reappointed to examine the Defendant’s objections. The expert filed a report in which he concluded that, based on the parties’ documents, it was conclusively clear that the parties conducted spread betting transactions strictly among themselves without the involvement of any other party or company in the investment.\r\n\r\nThe expert added that neither party had provided him with proof of share or securities trading between the parties and that it was strictly a case of spread betting where predictions are made on the prices of shares and stocks that are not acquired by or transferred to either party.\r\n\r\nThe Court of Appeal ruled that if the subject matter of an obligation is a thing, that thing must exist or be able to exist at the time of creation of the obligation. If the subject matter of an obligation is an act or omission, it must be possible. And if the subject matter of an obligation in either case is impossible then no obligation shall arise and the contract is void. The subject matter of an obligation must be certain or capable of being rendered certain. The subject matter of an obligation must also be capable of being disposed of. That might not be the case due to its nature (for example, sun, air) or its designated purpose (such as property with a particular public interest). That would also not be the case if disposing of the thing is unlawful either by operation of law or on public policy or morality grounds. If the subject matter is inherently capable of being disposed of but the contract is made for an objective contrary to public policy or morality, then as long as the other side is aware of such objective the contract would be void, not because the subject matter is unlawful but because its objective is unlawful for public policy or morality considerations.\r\n\r\nIt follows that if the subject matter is inherently capable of being disposed of, the issue of the validity depends on the validity of the contract’s objective. In this case, the transaction is void because the objective is unlawful rather than the subject matter. Accordingly the contract is invalid on the basis of UAE Public policy grounds.\r\n\r\n<strong>Comment</strong>\r\n\r\nThis judgment highlights that spread betting is prohibited in the UAE and is against public policy. The court will ultimately examine and discover the nature of the activity even if it is not inherently clear or described as something else. If determined to be a form of gambling, the contract will be deemed null and void and any debts that arise from these transactions are not recoverable.\r\n\r\nThe criterion for the validity of a contract is that it must be made over a lawful subject matter, and it must have a valid and existing lawful purpose. If one of these essential pillars is not established, then the contract will be void and the judge may so rule of his own motion. Such a contract will not have any effect, nor may it be ratified, and any person concerned may rely on it being void. Contracts involving speculation risk being deemed a form of gambling and being found void.\r\n\r\n&nbsp;'),
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	(97588,5301,'_yoast_wpseo_metadesc','Parties to construction contracts in Qatar are increasingly relying on urgent cases to not only obtain official expert reports documenting the status of the works or project site, but also as a tool to exert pressure on the other party.'),
	(97589,5302,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nThey decided to borrow $5,000 from a bank. The start-up that they originally named Starbucks Coffee, Tea, and Spice (now Starbucks) was able to get the financing it needed to grow and expand; eventually becoming the Fortune 500 company it is today.\r\n\r\nCredit is the lifeblood of business. All firms, large and small, need it to grow and thrive. However, access to credit can be constrained, especially in developing countries. According to the World Bank, more than half of private firms in emerging markets have no access to credit. That figure reaches 80 percent in the Middle East and sub-Saharan Africa.\r\n\r\nBanks in developing countries are usually reluctant to accept movable assets as collateral due to the inadequate legal and regulatory environment in which banks and firms co-exist. In this context, movable assets become “dead capital”. Movable assets, as opposed to fixed assets such as land or buildings, often account for most of the capital stock of private firms and comprise an especially large share for micro, small and medium-size enterprises (“SMEs”). For example, in the developing world, up to 80 percent of the capital stock of businesses is typically in movable assets such as machinery, equipment or receivables, and only 20 percent is in immovable property.\r\n\r\nThe availability of collateral is a constraint on financing, and in underdeveloped financial markets insufficient collateral is one of the main reasons firms are rejected when they apply for bank credit.\r\n\r\nThe above applies to Egypt to a great extent. Adding to that, banks in Egypt have excesses of unutilised liquidity and despite many initiatives to encourage SME lending and micro-finance such initiatives have yielded very limited return on the lending rate. One of the main reasons for this is the lack of sufficient collateral.\r\n\r\nOn November 15, 2015, Egypt passed law no.115/2015 regulating the taking of security over movable assets (the “Movables Security Law”). The Movables Security Law is considered a major reform in the area of secured transactions in Egypt.\r\n\r\nThe Movables Security Law allowed for the first time non-possessory charges over movable property to exist and introduced collateral registries for movable assets as well as special enforcement of securities. Over the next couple paragraphs we shed light on the main features of the law.\r\n\r\n<strong>Scope of the Law</strong>\r\n\r\nThe Movables Security Law is primarily concerned with non-possessory pledge/charge over movable property. Under the Movables Security Law a variety of movables, whether existing or future physical assets or moral rights, can be used as collateral. This includes: receivables and credit notes, bank deposits or accounts, equipment, tools, stock, trees, agriculture produce, farm animals, birds, and metals, as well as intellectual property rights.\r\n\r\n<strong>Who can benefit</strong>\r\n\r\nThe Movables Security Law is limited to banks and other financing institutions/corporations.\r\n\r\n<strong>The Registry</strong>\r\n\r\nThe Egyptian Financial Supervisory Authority (EFSA) will establish an electronic registry for collaterals made pursuant to the Movables Security Law and any amendments or cancelations thereof.  The registry will fulfil two key functions: to notify parties about the existence of an existing security interest in movable property and to establish the priority of creditors with regard to third parties.\r\n\r\n<strong>Effects of Registration</strong>\r\n\r\nUpon registration, collaterals become effective with regard to third parties on the date and time of registration. Any party, who has a legitimate interest on the movable property, may object to the registration before summary courts. Further, in an insolvency event, movables subject to a registered collateral will not form part of debtor’s assets, provided registration occurred prior to commencement of the insolvency procedures.  Finally, registering collateral grants the secured creditor first rank security over the asset, which ranks higher than all other forms of security or pledges provided by any other law with the exception of judicial expenses and enforcement expenses of the security itself and without prejudice to the rights of possessory creditors under the Civil Code.\r\n\r\n<strong>Enforcement</strong>\r\n\r\nThe enforcement regime introduced by the Movables Security Law represents a breakaway from the standard Civil Law system of enforcement. The Movables Security Law allows creditors to directly recover their debt from third party debtors of the borrower or directly sell the pledged movables without court order as well as direct set-off in the case of bank accounts. In the absence of contractual authorisation for the aforementioned actions, the creditor can always obtain a court order in a process which is simplified compared to the normal enforcement of debt or securities created under other laws.\r\n\r\n<strong>Creditor’s Liability </strong>\r\n\r\nIt is noteworthy that, as the Movables Security Law provides banks with flexibility and discretion when it comes to enforcement, the law also requires banks to indemnify the debtor/guarantor and other rights holders against any damage caused by breach of the enforcement procedures.\r\n\r\nThe executive regulation is expected to be issued by February 2016 following which there will be a substantive amount of work to be done to implement the law and establish the registry. We are hopeful that the implementation will be at the same level of innovation as the law itself as great laws may become ineffective or useless if not properly implemented.\r\n\r\nOverall, studies have shown that introducing collateral registries for movable assets increases firms’ access to banking finance. There is also evidence that this effect is larger among smaller and younger firms.'),
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	(97524,5299,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nOne body, in the form of the Central Bank of Bahrain (CBB), regulates both the conduct of financial services business in (or from within) Bahrain as well as the financial institutions that provide those services.\r\n\r\nThe CBB argues that this approach creates a consistent and coherent regulatory model that can be applied across the board and it also provides a straightforward and efficient regulatory framework for financial services firms operating in Bahrain.\r\n\r\nHowever as the following summaries demonstrate, different regulatory approaches are possible. Often - leaving to one side the regulation of international financial centres -- the regulation of capital markets is undertaken by a separate body on the grounds that the ongoing supervision of capital markets is generally distinct from the regulation of financial services. Indeed it could be argued that the CBB tacitly acknowledges this by virtue of the fact that the supervision of Bahrain’s capital markets is undertaken by a dedicated unit within the CBB, namely the Capital Markets Supervision Directorate. Viewed in this light, one perfectly feasible conclusion is that the Bahrain’s unitary approach is, in reality, not so different for the multi-agency approach taken by the other GCC countries.\r\n\r\n<strong>Bahrain</strong>\r\n\r\nThe Central Bank of Bahrain (CBB) is a public body established by the government under the Financial Institutions Law 2006 (‘the 2006 Law’). It is responsible for maintaining monetary and financial stability in Bahrain and is also the single, integrated regulator of Bahrain’s financial services sector. It succeeded the Bahrain Monetary Agency, which was established in 1973 soon after independence and which had previously carried out the Kingdom’s central banking and regulatory functions.\r\n\r\nArticle 40 of the 2006 Law provides that no person may undertake a ‘Regulated Service’ in the Kingdom of Bahrain unless licensed by the CBB. Regulated Services are defined as financial services provided by financial institutions, including those governed by Islamic Sharia principles. The 2006 Law further provides that the CBB shall issue regulations specifying the Regulated Services and organising the provision of these services and that it shall supervise and control any licensees providing them.\r\n\r\nIn its capacity as the regulatory and supervisory authority for all financial institutions in Bahrain, the CBB issues regulatory instruments with which licensees and other specified persons are legally obliged to comply. These regulatory instruments are contained in the CBB Rulebook. The CBB Rulebook is divided into seven volumes, covering different areas of financial services activity. These volumes are being progressively issued: Volumes 1 and 2, covering conventional bank licensees and Islamic bank licensees, were issued in July 2004 and January 2005; Volume 3, covering insurance licensees, was issued in April 2005; Volume 4 covering investment business was issued in April 2006. Volume 5, covering specialised licensees (i.e. those licensees that undertake regulated activities that do not fall under any other volume of the CBB Rulebook) and Volume 6 (capital markets) are being issued progressively; and Volume 7, on collective investment undertakings, was issued in May 2012.\r\n\r\nBreach of a Rule contained in the CBB Rulebook can lead to a variety of sanctions being taken against a licensee. These range from, at the lower end, a formal warning, through adverse “fit and proper” findings in relation to key individuals working in the licensed business to cancellation, or amendment, of a license. In extreme cases a breach of the CBB Rulebook can result in criminal proceedings, although these cannot be brought by the CBB itself but only through the Office of the Public Prosecutor.\r\n\r\nThe CBB’s wide scope of responsibilities allows a consistent regulatory approach to be applied across the whole of the Kingdom’s financial services sector. This, in turn, gives a Bahrain a key competitive advantage relative to other GCC states.\r\n\r\n<strong>Kuwait</strong>\r\n\r\nTwo principal governing authorities dominate Kuwait’s regulatory landscape with respect to financial matters. The Central Bank of Kuwait (CBK) is entrusted with the supervision of Kuwait’s banking system. Its supervisory authority covers a vast array of banking institutions, including, conventional banks operating in Kuwait, Islamic banks, specialised banks, branches of foreign banks and a number of investment and exchange companies. Only banks licensed and regulated by the CBK are allowed to engage in the conduct of banking activities in Kuwait. The CBK’s responsibilities also include acting as lender of last resort to the banking sector and serving as banker and financial adviser to the Government. The CBK issues currency and directs relations with international institutions.\r\n\r\nResponding to increased calls for greater regulation and transparency in the Kuwait securities market, the Kuwait Government enacted new laws and regulations relating to securities activities in Kuwait in 2010. Law No 7 of 2010 and Executive Bylaws for Law No 7 of 2010 Concerning Establishment of the Capital Markets Authority and Organisation of Securities Activity (the ‘CMA Bylaws’, together with the Law No 7, the ‘Capital Markets Law’), marked a complete reboot of the securities and capital markets laws and regulations in Kuwait.\r\n\r\nThe Capital Markets Law called for the establishment of the Capital Markets Authority (CMA) with the power and authority to regulate, develop and supervise the activities of the capital markets in the State of Kuwait with the primary objective of creating an attractive investment environment that generates investors’ trust. The CMA’s responsibilities include: regulating the marketing, offer and sale of securities in Kuwait; regulating mergers and acquisitions activity; disclosure of interest and investment fund promotion; and regulating the licensing requirements for the Kuwait Stock Exchange, including licensing of those who operate within the Kuwait Stock Exchange such as funds, asset managers and brokers.\r\n\r\nIn addition to the CMA’s role in regulating all securities activities in Kuwait, the CMA has issued a comprehensive set of corporate governance rules which cover all aspects of a CMA-regulated corporate entity, including, but not limited to, composition of the board, selection criteria of constituent members, risk management and corporate social responsibility.\r\n\r\nAimed at bringing Kuwait into line with the standards and policies of the international financial community, the government introduced new legislation in the form of Law No 106 of 2013 regarding the combating of money laundering and financing of terrorism (the ‘AML Law’) to protect local financial institutions from being used to launder money and finance terrorism. Pursuant to the AML Law a fully-independent Financial Intelligence Unit (FIU) was created to serve as the main investigative body with the responsibility for receiving, applying for, analysing and transferring information related the suspected proceeds of money laundering or monies used to finance terrorism.\r\n\r\n<strong>Oman</strong>\r\n\r\nThe Oman Central Bank (OCB) and the Capital Market Authority (CMA) operate as regulators of the financial market in Sultanate of Oman.\r\n\r\nThe OCB was established in 1974. It is the first public body to be vested with full banking status, a separate legal personality and full administrative and financial independence. This status was not granted to the Muscat Currency Authority, which was established in 1970, or to the Oman Currency Board set up in 1972.\r\n\r\nThe first piece of legislation to regulate the banking sector in Oman was in the form of a Sultani Decree number 7/74 which was subsequently repealed by Sultani Decree number 114/2000 (Law). The main objectives of the OCB are: to promote the development of banking institutions; ensure the maintenance of financial stability; empower the Central Bank to issue currency and maintain the domestic and international value of that currency; facilitate the expansion of the free-market economy of Oman through greater use of recognised banking institutions and methods; and to contribute to the fiscal and monetary development of Oman through active participation in the international monetary community and in the proceedings, negotiations and decisions of international monetary organisations in which the Sultanate shall participate.\r\n\r\nOne of the main functions of the OCB is to act as the depository bank for the Government of Oman and its institutions by accepting their deposits in whatever legal form which may include cash, cheques or transfers.\r\n\r\nThe OCB has taken a restrictive approach in controlling the licensing of the banking sector of Oman by having a broad definition of “banking business” which captures a number of activities. Pursuant to Article 52 of the Law no person shall engage in banking business in the Sultanate as either a domestic or a foreign bank, or practice any other banking activity without being granted a licence by the OCB. Banking business covers the operation of receiving monies as deposits, opening current bank accounts and credits, the unsecured loan of money or extension of credit, the loan of money on personal, collateral or real property security, the operation of a credit card business, the issuance and negotiation of letters of guarantee and letters of credit, the payment and collection of cheques, orders, payment vouchers and other negotiable instruments, etc.\r\n\r\nThe CMA also has a separate juristic personality in law with full administrative and financial independence. The CMA is empowered to organise, license and monitor the issue and trading of securities, supervise the operation of the Muscat Securities Market, supervise all companies operating in the field of securities, supervise joint stock companies, supervise insurance companies and license the credit rating companies.\r\n\r\nThe OCB and the CMA have formed number of committees to ensure that the laws and regulations regulating the financial market in Oman are harmonised and function in an integrated and comprehensive manner in line with economic developments plans of the Sultanate. This has been strengthen by the issuance of Anti-Money Laundering and Combating Terrorism Law which dictates the legal requirements that private institutions such as banks, insurance companies and law firms, must put into place to monitor their clients’ transactions by identifying the source of money and carrying out a due diligence on their respective shareholders and senior management before providing any services to them.\r\n\r\nThe Law has been recently amended in order to permit the provision of Islamic financing products. Oman is the last country in GCC to regulate Islamic financing transactions. This will lead to issuance of ancillary Sharia-compliant laws like Takaful Insurance, which is in draft form, to be issued in the near future.\r\n\r\n<em>A version of this article first appeared in the Autumn 2015 edition of The Bahrain Banker Magazine.</em>'),
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	(97547,5300,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nThe last time (also the first time) a companies law was promulgated in the Kingdom was 1965 – a time when the average global price for a barrel of crude oil was USD 1.80 (USD 13.55 adjusted to 2015 prices), the oil shocks of the 1970s were in the future, the Gulf Cooperation Council had not yet been established and the internet was firmly in the realm of science fiction.\r\n\r\nThe old law has served Saudi Arabia through a period of transition – being the basis for company regulation during a period which has seen extensive and accelerating inward investment in the country together with the launch (in 1994) and subsequent reinvigoration (in 2007) of Tadawul – the domestic Saudi stock exchange.\r\n\r\nHowever, what worked in 1965 is not necessarily fit-for-purpose in an era of global financial connectivity, volatility and fragility, shareholder activism and burgeoning corporate governance scandals.\r\n\r\nSince 2002 a revised law has been under discussion – a process which was intended to take into account such innovations as Saudi accession to the World Trade Organization (achieved in 2005), the establishment of the Saudi Arabian General Investment Authority (SAGIA), the Saudi Industrial Property Authority and the Capital Market Authority.  The process of agreeing and then enacting the new companies law has been protracted (but certainly comparable to developments around such keystone blocks of legislation in other jurisdictions), involving a multiplicity of stakeholders and experts.\r\n\r\nThe new Companies Law (1437H/2015G) was published by the Ministry of Commerce and Industry (MOCI) on 9 November 2015, published in the Saudi Gazette (Um Al-Qura) on 4 December 2015, and will come into effect on 2 May 2016. The new Companies Law completely replaces the old Companies Law.  It will provide existing companies with a period of one year from its effective date to make such changes as are necessary to comply with the new Companies Law, subject to any new rules set in respect of such existing companies by the competent regulatory authorities.\r\n\r\nKey innovations made by the new Companies Law are:\r\n<ul>\r\n 	<li>Three of the rarely used forms of corporate entity under the old Companies Law are no longer permitted - namely Cooperative Companies, partnerships limited by shares and Variable Capital Companies (article 3). In practice the main forms of corporate entity used will continue to be the Limited Liability Company (LLC) or Joint Stock Company (JSC).</li>\r\n 	<li>Specific provisions (articles 182-186) are introduced to govern the establishment of a holding company (either by way of LLC or JSC) for controlling other JSCs or LLCs by holding more than 50% of their capital or through board control.  Any such new holding company will have to include the word “holding” in their name and produce annual consolidated financial accounts.</li>\r\n 	<li>Perhaps the most significant change in practice is that LLCs (article 154) can now be formed with a single shareholder, replacing the current requirement for a minimum of two shareholders.</li>\r\n 	<li>JSCs can now be formed with two shareholders reduced from the current requirement of a minimum of five shareholders.  Also in certain cases (JSCs formed by the Government or Government owned entities or formed by entities with a minimum of SAR 5 million) closed JSCs may be formed with a single shareholder (articles 2 and 55).</li>\r\n 	<li>The minimum share capital requirement for JSCs is reduced from SAR 2 million to SAR 500,000 (article 54).There continues to be no minimum capital requirement for LLCs, although in practice if the LLC or JSC is foreign invested SAGIA may impose a higher minimum capital requirement.</li>\r\n 	<li>Share contributions in kind for both LLCs and JSCs must now be independently valued (article 61).</li>\r\n 	<li>Another major change is the removal of the provision contained in the current Companies Law which makes shareholders in LLCs jointly liable for the debts of an LLC where its losses exceed 50% of its capital and the shareholders make no decision to recapitalize or liquidate the company and the company continues to trade.  Instead a new provision provides for termination of the company by operation of law if either the managers of the LLC take no steps to call a shareholder meeting or the shareholders take no action (article 181).  There are also analogous revisions around the process for termination where a JSC’s losses exceed 50% of its share capital (article 150).</li>\r\n 	<li>A duty of confidentiality is imposed on shareholders in relation to information they receive in their capacity as shareholders of an LLC (article 173).</li>\r\n 	<li>There continues to be a requirement for LLCs and JSCs to set aside 10% of net profits as a statutory reserve, but this is no longer needed once the reserve attains 30% of the share capital.  This is a reduction from the current requirement of 50% of share capital (articles 129 and 130 for JSC and article 176 for LLCs).</li>\r\n 	<li>An LLC will be required to undertake a conversion to a JSC if the number of its shareholders increases beyond 50 (article 151).</li>\r\n 	<li>JSCs will be permitted to purchase or pledge their own shares (article 112).</li>\r\n 	<li>JSCs will be permitted to issue negotiable debt instruments (article 122).</li>\r\n 	<li>There is recognition of modern communications methods for the purpose of running shareholder meetings.</li>\r\n 	<li>Measures are included to enhance corporate governance (including the requirement for an audit committee and a prohibition on combining the role of Chairman with an executive position) for JSCs (article 81) with an enhanced role for the Capital Market Authority which becomes the “concerned authority” in respect of listed JSCs.</li>\r\n</ul>\r\nIt is not yet clear if in the months ahead there will be any implementing regulations from MOCI, adding further depth to the new law, although this is anticipated.    The practical implementation of the new law will doubtless have to cascade through other relevant agencies such as SAGIA and it will take some time for custom and practice to adjust.  However, by trimming the length of the primary law and enabling more detail to be addressed through subordinate regulation, it is envisaged that in future the corporate legal framework will be more responsive to wider global trends in regulation.\r\n\r\nAlthough perhaps not a sea change in the law, the revised package does offer some indication of where the Saudi economy might be headed (and will certainly have some impact on foreign investors’ deliberations around the nature of any permanent establishment in the country). In particular, the provisions relating to single shareholder LLCs, holding companies and company formation suggest that the process of establishing entities and group structures may be easier.\r\n\r\nThe provisions relating to debt instruments indicate that structured finance of infrastructure may be another avenue that is eased by the new law.  This might be welcome news for those monitoring developments in terms of public private partnerships and privatizations, creating as it does, a corporate platform which is more familiar to the international market.\r\n\r\nThe ability to compartmentalize the assets of a group is also likely to be of interest – we envisage non-trading subsidiaries for proprietary assets (real and intellectual) might be considered (subject to satisfying applicable investment regulations).\r\n\r\nThe new law will certainly expand the toolkit available to investors, family businesses, shareholders and management as they craft their company structures and cultures. It will be subject to much scrutiny in the months ahead as advisers (including tax advisers) seek to understand and optimize the opportunities it affords (and in particular how it sits with the existing Foreign Investment Law).  It may prompt some businesses to undertake an audit of their existing portfolios.\r\n\r\nSome things however cannot change – it should always be remembered that the fundamental law of the Kingdom is the Sharia’h and that any law will be read and applied in that context.  There is a clear preference for transparency of purpose in any company formation (and that applies to holding companies too) – exotic group structures with opaque risk profiles will continue to be critically scrutinized.\r\n\r\nClearly, the new law will bring with it implications and challenges – the ink is hardly dry yet.  Al Tamimi &amp; Co’s team of dedicated professionals in Riyadh and Jeddah will be pleased to assist you should further input be required.'),
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	(97496,5297,'pageSummary','On 16 June 2015, the Food Law No. 30 of 2015 (the “Food Law”) was published in the official gazette issue No. 5345, replacing the Interim Food Control Law No. 79 of 2001.'),
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	(97504,5297,'_yoast_wpseo_metadesc','On 16 June 2015, the Food Law No. 30 of 2015 (the “Food Law”) was published in the official gazette issue No. 5345, replacing the Interim Food Control Law No. 79 of 2001.'),
	(97505,5298,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nand the services available to Kuwaiti citizens and residents. In order to accommodate this initiative, Kuwait introduced Law No. 116 of 2014 (the “New PPP Law”) to provide a clear regulatory framework for the implementation of public–private partnership projects (“PPP”) in Kuwait. The New PPP Law was imperative to accommodate the ambitious PPP program and to codify some of the techniques applied in the Az-Zour North Independent Water and Power Project (Phase 1) which began in January 2014. As a result, a variety of new PPP projects are under consideration in Kuwait. Additionally, Phase 2 of the Az-Zour North Project is currently open for tenders. Invitations have also been delivered to potential contractors to participate in a waste-to-energy facility in the Kabd area of Kuwait. This activity is partly a result of the enhancements made to the regulatory environment by the New PPP Law.\r\n\r\n<strong>Relevant Authority</strong>\r\n\r\nInitiating and overseeing PPP projects in Kuwait will be the responsibility of the Kuwait Authority for Partnership Projects (“KAPP”). While KAPP will be seen as the primary driver of the project implementation process, its governing board (the “Higher Committee”) will have broad authorities in the implementation of the PPP process, including:\r\n<ul>\r\n 	<li>providing final approval to public entities to enter into PPP contracts</li>\r\n 	<li>approving project concepts and proposals before they are advertised and tendered</li>\r\n 	<li>developing general policies for projects and proposals of strategic importance to the national economy</li>\r\n 	<li>selecting the relevant public entities that will partake in the tendering process</li>\r\n 	<li>selecting and supervising the public entities that participate in project implementation and operation</li>\r\n 	<li>developing general policies and documents for projects and initiatives (including unsolicited proposals of strategic importance to the national economy of Kuwait).</li>\r\n</ul>\r\nAs KAPP will have the responsibility of being Kuwait’s primary facilitator and caretaker in bringing PPP projects to fruition, the participation of KAPP will be instrumental in the successful implementation of PPP projects in Kuwait.\r\n\r\n<strong>Project Company</strong>\r\n\r\nUnder the New PPP Law, it is envisaged that each project will be implemented by a project company to be established in the form of a Kuwaiti public joint stock company pursuant to the terms of the Commercial Companies Law (“Project Company”). Prior to the New PPP Law, it was unclear whether the Partnerships Technical Bureau (KAPP’s predecessor) or the investor would be responsible for the incorporation of the Project Company and the shareholding structure. The New PPP Law now clearly mandates KAPP to undertake the establishment procedures. Each Project Company will be owned in part by KAPP and/or any public entities chosen by the Higher Committee, as well as one or more consortium companies which are to be incorporated in Kuwait and owned by the relevant contractors, investors and sponsors that are chosen to undertake the project (“Consortium Companies”).\r\n\r\n<strong>Shareholding and Management</strong>\r\n\r\nAt the outset of each PPP project, KAPP, the Consortium Companies and potentially the relevant public authorities involved in the project will enter into a variety of agreements, including a shareholders’ agreement pertaining to the ownership, governance and operations of the Project Company, pursuant to which managerial control of the Project Company may be granted to the Consortium Companies. These agreements will clearly stipulate when and how the shares that are owned by KAPP will be transferred to public entities and the Kuwaiti citizens who are invited to invest in the project.\r\n\r\nThe New PPP Law codifies the ‘warehousing’ concept that was utilised in Az-Zour North Phase 1. KAPP now has the authority to own shares on behalf of Kuwaiti citizens, as the New PPP Law contains provisions pertaining to the public offering of shares in Project Companies to Kuwaiti citizens once the relevant project achieves a commercially viable state of operations. During the developmental stages of each project, KAPP will own the shares reserved for public offering and will exercise all of the rights and obligations attached to those shares in accordance with the Commercial Companies Law as well as in accordance with the relevant shareholders agreement. Once the project reaches a commercially viable state of operations, KAPP will offer the warehoused shares to Kuwaiti citizens. Any shares that are not subscribed to by Kuwaiti citizens may then be offered to the public entities or the Consortium Companies.\r\n\r\nPursuant to the relevant shareholders agreement, the Consortium Companies will generally be ensured managerial control of the Project Company by having the right to nominate a majority of the directors to be elected to the Project Company’s board of directors. KAPP and any public entities involved in the project will be contractually obliged under the shareholders agreement to vote at assembly meetings in the manner necessary to give effect to such elections.\r\n\r\n<strong>Financing</strong>\r\n\r\nPrior to the New PPP Law, Kuwait law was seen as too restrictive and uncertain because it prohibited the mortgage of project land as well as the buildings and possibly even the equipment situated on the land. Lenders were effectively prevented from being able to take adequate security over the material assets of the project which diminished lenders’ willingness to provide the necessary financing for carrying out the project. Due to the nature of limited recourse financing, lenders need to ensure that any and all security available to them is properly registered and perfected. The New PPP Law has relaxed these restrictions and prohibitions and clarified what may be pledged as security. The New PPP Law codifies some of the financing techniques applied in the Phase 1 of the Az-Zour North Project, such as assignment of proceeds, pledge against shares in both the Project Company and the Consortium Company (even during the initial 2-year lock-out period) and mortgages over the assets comprising the project (other than the land). It also provides more clarity on the procedures to be undertaken in the event the project needs to be transferred to a new consortium.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile the New PPP Law is not perfect and the practice still needs time to develop, the New PPP Law creates a greater degree of certainty, reliability and flexibility for foreign contractors, investors and lenders that participate in PPP projects in Kuwait. The law goes a long way towards enhancing the bankability of PPP projects in Kuwait, which will pave the way for the Government’s exciting and ambitious plans for the development of Kuwait.'),
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	(97489,5296,'_yoast_wpseo_metadesc','The International Labour Organisation (“ILO”), an arm of the UN, estimates that around 21 million people are trapped in modern slavery. Many countries are beginning to focus on corporate institutions in the effort to drive out slavery and human trafficking at all phases of the supply chain.'),
	(97490,5297,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nArticle 3 of the Food Law states that the Jordanian Food and Drug Administration (the “JFDA”) shall be the sole authority entrusted to supervise imported and local food in all of its stages in order to ensure its safety and quality.\r\n\r\n<strong>The Role and Powers of the JFDA</strong>\r\n\r\nIn accordance with the Food Law, the role of the JFDA includes:\r\n<ul>\r\n 	<li>Enforcing health measures and the Jordanian technical regulations, regardless of whether the food in question is locally produced or imported;</li>\r\n 	<li>Conducting compatibility tests on food for its compliance with the standard specifications and technical regulations;</li>\r\n 	<li>Prohibiting the circulation or import of any food before being tested and proven suitable and fit for human consumption and in conformity with the health safety terms currently in force;</li>\r\n 	<li>Granting health certificates for the purposes of exporting locally produced food, in accordance with the technical regulation and health measures currently in force;</li>\r\n 	<li>Carrying out inspections on places in which food is circulated as well as inspecting the workers of such a place;</li>\r\n 	<li>Supervising the implementation of good manufacturing practises and risk analysis systems;</li>\r\n 	<li>Organizing food announcements;</li>\r\n 	<li>Assigning specialists to conduct studies and research on food, its components and its nutritious value as well as publishing the same and awarding such specialists;</li>\r\n 	<li>Cooperating with official and non official entities, universities, Jordanian scientific centres as well as Arabic, regional and international organizations in the fields of food control, disease, health measures and technical regulations.</li>\r\n 	<li>Issue publications related to the technical regulations and health measure as well as distributing and selling the same;</li>\r\n 	<li>To work alongside the relevant entities in setting in place national food standards as well as the review of such standards.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Drafting memorandums of understandings with municipalities and any other entity of relevance in the field of food control. Article 16 of the Food Law states that “it is prohibited to import any food or to circulate any food within Jordan if it is adulterated, falsely described or food that is unfit for human consumption” [unofficial translation]. By virtue of the Food Law, circulation is defined as all stages of food production, manufacturing, preparation, treatment, packaging, wrapping, processing, transporting, possessing, storing, distributing, offering to sell, sale, gifting or donating the same. For these purposes, the Food Law grants the Director-General the power to take any of the following actions:</li>\r\n</ul>\r\n<ul>\r\n 	<li>Seizure of any adulterated foods or food with a false description,  in preparation for its withdrawal and prohibiting its circulation. Seizure of food quantities that is proven to be harmful to health, either by physical inspection,  epidemiological and/or laboratory evidence, in preparation for its withdrawal and prohibiting its circulation.</li>\r\n 	<li>Prevent the presentation of food  that is in violation of health conditions or which is in danger of being contaminated. Any such food presented shall be seized and prohibited from being circulated.</li>\r\n 	<li>Prevent change to food that is stored in free zone areas that would lead to a breach of the information contained in the statement certificate (except for food in production, where such manufacturing process had been approved by the competent authority).</li>\r\n</ul>\r\nIn addition to the above, Article 21 stipulates that the Director-General must issue an order for the destruction of meat and its derivatives, dairy products of all types and any other type of food which is circulated locally, that is of fast decay or prone to spoilage, if it is proven by physical inspection that the food is spoiled. Such destruction shall be on the expense of the owner. Moreover, the Director-General must also order the destruction of any other type of food, if it is proven by laboratory test to be unfit for human consumption or that the food is in violation of the technical regulations.\r\n\r\nWhere the food is imported the Director-General must decide whether to re-export the food to the country which the food had been imported from, and such re-exportation shall be at the importer’s expense. In the event that the concerned party does not re-export such shipment within a period not exceeding sixty days from the the date of the decision being informed to the concerned party, then the Director-General must order the destruction of the food at the expense of the importer. This also applies to food which is adulterated or falsely described.\r\n\r\nThis notwithstanding, Article 21 further states that : [unofficial translation]“If the food is proven to not be in conformity with the technical regulations, then the Director General must seize the food for reprocessing, if it is viable to do so, and after completion of reprocessing, the Director General shall grant permission to re-enter the product if it is in conformity with the technical regulations after such reprocessing.”\r\n\r\n<strong>Appealing a JFDA decision</strong>\r\n\r\nThe process for appealing a decision by the Director General of the JFDA is set out in the ‘Instruction for Reviewing Objections over Food Control Measures for the year 2015’ (the “Instructions”), which issued pursuant to the Food Law. The Instructions state in Article 4 that, upon the decision of the Director General of the JFDA, an objection review committee is formed to review objections made against the JFDA’s procedures and decisions with respect to:\r\n<ul>\r\n 	<li>The inspection over storage of food products;</li>\r\n 	<li>The extent to which the JFDA complies with the health guidelines;</li>\r\n 	<li>The physical inspection on food quantities;</li>\r\n 	<li>The sampling methods;</li>\r\n 	<li>The sample size, its extraction method and the way it is transported to the laboratories;</li>\r\n 	<li>The laboratory test results; and</li>\r\n 	<li>The laboratory test result’s conformity with the Jordanian stand specifications and technical regulations pertaining to food products.</li>\r\n</ul>\r\nSuch committee is comprised out of:\r\n<ul>\r\n 	<li>The President of the Committee (who must be an employee of the JFDA);</li>\r\n 	<li>Three qualified specialists in the food industry from the JFDA, one of whom shall be appointed the Vice-President of the Committee;</li>\r\n 	<li>A representative of the Ministry of Agriculture;</li>\r\n 	<li>A representative of the Ministry of Industry and Trade;</li>\r\n 	<li>A representative of the Jordanian Chamber of Industry;</li>\r\n 	<li>A representative of the Jordanian Chamber of Commerce; and</li>\r\n 	<li>A representative of the Traders of Food Products Union.</li>\r\n</ul>\r\nArticle 5 of the Instructions stipulate how such an objection is submitted and reviewed. It states that the concerned party may object to any procedure or decision within two weeks of being notified of the same, such objectors, or whomever they authorize, must fill in an objection review request and attach any supporting documents. The objection is then submitted to the JFDA to be forwarded to the objection review committee. The committee then reviews the objection and passes its recommendation to the Head of the Food Directorate within the JFDA, who shall then pass the same on to the JFDA’s Director-General for a decision to be issued in that respect. Such a decision would be issued within one month, as of the date of submitting the objection.\r\n\r\nArticle 20 of the Food Law further provides that any decision taken by the Director General shall be appealable before the Administrative Court. However, such appeal must be made within 60 days of the concerned party being notified of the Director General’s decision.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Food Law has strict measures with regards to food imports and circulation, but it does allow for appeals to be lodged against JFDA’s decisions, either by objections to the Objection Committee or by challenging the decision before the Administrative Court. Furthermore it is important to note that Article 11 of the Food Law states that when health measurements are put into force, these standards are to be applied without distinction or prejudice, on both imported and locally produced food, but only to the extent necessary to provide the due level of protection to the public’s health and without being a barrier to trade. The regulations made pursuant to the Food Law are to be reviewed periodically so companies dealing in the food industry must be sure to keep up to date at all times.'),
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	(97481,5296,'pageSummary','A global and regional problem'),
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	(97479,5296,'content_description','A global and regional problem\r\n\r\n \r\n'),
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	(97423,5293,'content_description','The Gulf Cooperation Council (GCC) countries continue to offer favourable environments for foreign investment. '),
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	(97425,5293,'pageSummary','The Gulf Cooperation Council (GCC) countries continue to offer favourable environments for foreign investment.'),
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	(97433,5293,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sarah Hasnani'),
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	(97435,5293,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.hasnani@tamimi.com'),
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	(97441,5293,'_yoast_wpseo_metadesc','The Gulf Cooperation Council (GCC) countries continue to offer favourable environments for foreign investment.'),
	(97442,5294,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nAlthough the Insurance Law has undergone several amendment processes over the past years, loopholes tend to arise as new transactions are introduced within the market.\r\n\r\nOne of the major issues that the Insurance Law is silent on is the merger of insurance companies and the specific mechanisms to transfer insurance portfolios from the merged to the merging company. The Insurance Law only provides for an ordinary assignment of portfolios (where a company assigns a specific risk portfolio or suspends its activities in whole or in part as associated with such an assignment). Consequently, by default, the general rules of merger under the Companies Law No. 159 of 1981 (“Companies Law”) should be applied to the merger of insurance companies, as the Insurance Law states that the Companies Law applies to insurance companies where the Insurance Law is silent. However, such default application is theoretical as it has never been enforced in practice.\r\n\r\n<strong>EFSA’s Approach</strong>\r\n\r\nThe Egyptian Financial Supervisory Authority (“EFSA”), being the supervisory authority over the insurance sector, has been reluctant to agree on a merger process and unsure how it will apply the merger procedures. EFSA’s initial view was that no merger was possible as it was not specifically provided for under the Insurance Law.\r\n\r\nEFSA has selected an unprecedented and unsubstantiated route in this respect. EFSA requires, in practice, merging insurance companies to strictly comply with an assignment mechanism under the Insurance Law in respect of the portfolios of the merged company, which entails severe capital gains exposure for the two entities contemplating the merger. EFSA is finally open to discuss the application of the merger provisions but it wants to convene several internal committees to decide on this matter.\r\n\r\nThe Insurance Law’s silence should not be held as a loophole that allows EFSA to regulate the matter because the Insurance Law has explicitly stated that the provisions of the Companies Law shall apply on issues that are not regulated within the Insurance Law. Yet, EFSA has a different approach that is not only inconsistent with the explicit provisions of the law but overlooks any additional encumbrances and potential double taxation that may be triggered through the application of EFSA’s required procedures.\r\n\r\n<strong>Practice </strong>\r\n\r\nThe merging of assets, businesses and portfolios from the merged to the merging company is an automatic process under the general provisions of merger in the Companies Law. On the contrary, assignment of portfolios is usually associated with the suspension of business or liquidation of the insurance company for the sole purpose of protecting the rights of the beneficiaries and policy holders, which would not usually be affected in the case of a merger. A merger tends to create a stronger entity with better financial ability to protect its business and interests of its respective beneficiaries.\r\n\r\nFor an assignment, the Insurance Law imposes an obligation on the assigning company to submit an application to EFSA, make a public announcement and invite holders and beneficiaries of insurance policies to raise any concerns in relation to the assignment within three months from the announcement. Accordingly, upon completion of, or even simultaneously complying with, the merging procedures under the Companies Law, the merging company must comply with the Insurance Law’s process of assignment for the portfolios of the merged company. The benefits of complying with these additional processes are questionable since the risks of affecting the interests of the policy holders in an assignment are not envisaged to arise where companies are being merged. Nevertheless, the Companies Law has sufficiently provided protection to the creditors and stakeholders of the merged company, which can be used by the policy holders or beneficiaries should they suffer any damage in this regard.\r\n\r\nEven though an assignment would be executed at no consideration, as it would be a mere swap of assets against shares to be issued from the acquiring company, the tax authorities would apply capital gains on the process even if carried on the book value. This tax exposure is avoided when a merger is completed on the book value and postponed if completed on the fair market value.\r\n\r\nIn our practical experience, the current interpretation and application of the Insurance Law by EFSA overlooks the special nature of merger transactions without having sufficient legal basis to support this practice. This necessitates the intervention of the legislature to explicitly regulate the merger of insurance companies, for example in the same manner applied under the Law on Central Bank and Banking System No. 88 of 2003 (the “Banking Law”).\r\n\r\nThe Banking Law regulates the merging of one or more banks upon the approval of the Central Bank of Egypt which applies the procedures that best protects the rights of the customers of the merged bank(s). However, the merging process itself is executed in accordance with the general rules of merging under the Companies Law.\r\n\r\nThe approach of the Banking Law further evidences the unprecedented nature and the lack of the legal basis of the current practice of EFSA. Although the Banking Law introduced certain requirements to enforce the merger, the process and associated protection methods are left subject to the provisions of the Companies Law.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWe believe that the current practice of EFSA to apply assignment processes and provisions in the merging context must be re-assessed, whether by EFSA internally regulating the merger process by specific ministerial decrees or board decisions or via a direct legislative amendment to govern the merger of insurance companies.'),
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	(97446,5294,'content_description','The Egyptian Insurance Law No. 10 of 1981 (the “Insurance Law”) was issued more than three decades ago when the insurance sector and operations were not as sophisticated as we are currently witnessing. '),
	(97447,5294,'_content_description','field_59b641c07f473'),
	(97448,5294,'pageSummary','The Egyptian Insurance Law No. 10 of 1981 (the “Insurance Law”) was issued more than three decades ago when the insurance sector and operations were not as sophisticated as we are currently witnessing.'),
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	(97450,5294,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/december-january-3/egypt-merger-of-insurance-companies-law-and-practice.html'),
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	(97456,5294,'_yoast_wpseo_metadesc','The Egyptian Insurance Law No. 10 of 1981 (the “Insurance Law”) was issued more than three decades ago when the insurance sector and operations were not as sophisticated as we are currently witnessing.'),
	(97457,5295,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nAl Tamimi’s recent article on the UAE labour market reform provided a summary of the new employment rules introduced by the Ministry of Labour (“MOL”) by way of the following three Ministerial Decrees:-\r\n<ul>\r\n 	<li>Ministerial Decree No. (764) of 2015 (“Decree No. 764”) – confirms the documents an employer must issue to a foreign employee when offering him/her employment.</li>\r\n 	<li>Ministerial Decree No. (765) of 2015 (“Decree No. 765”) – deals with the termination of limited and unlimited term contracts.</li>\r\n 	<li>Ministerial Decree No. (766) of 2015 (“Decree No. 766”) – sets out the circumstances in which a worker will be issued with a new work permit (and not be subject to a labour ban).</li>\r\n</ul>\r\nThe above came into force on 1 January 2016.  The decrees do not formally amend Federal Law No 8 of 1980, as amended (“UAE Labour Law”) and, if there is conflict then between them, the UAE Labour Law will prevail.  The decrees have attracted much media attention and have been hailed as providing employees with more flexibility and greater protection.\r\n\r\nOur October article provided a detailed analysis of the new rules and their implications.  However, given they are now in force, we thought it timely to provide an update on the key points employers need to bear in mind:-\r\n\r\n<strong>Offering Employment </strong>\r\n\r\nFrom 1 January 2016, when offering employment to foreign nationals, as part of the visa and work permit application process employers will be required to submit an offer letter signed by the employee.  The terms in the offer letter must be consistent with those subsequently included in the MOL Contract (Decree 764).\r\n\r\nA copy of the template offer letter (“Offer Letter”) (English / Arabic version) is now available from the MOL. Interestingly the Offer Letter (four pages) is longer than the MOL standard form contract (2 pages). It contains the key terms of the employment relationship. If the employee does not speak English or Arabic, the Offer Letter will also need to be in their local language (in addition to English and Arabic) and there are further templates in various languages available from the MOL.\r\n\r\n<strong>Terminating Contracts - Unlimited and Limited Term </strong>\r\n\r\nDecree 765 sets out the circumstances under which unlimited and limited term contracts may be terminated.  In short, employers may still terminate for the same reasons as before.  However, the decree sets out the legal steps an employer must follow and confirms that the termination must be in accordance with “due process / legally mandated procedures.”  The current procedure under UAE Labour Law is set out in Articles 110 and 111.  However, given this new terminology of “due process / legally mandated procedures”, it is possible that the MOL may issue further guidance on what this entails.  Employers should review their termination procedures and ensure they consider the steps prescribed by Decree 765 prior to terminating an employee’s employment.\r\n\r\nIn addition to the above, Decree 765 provides the following:-\r\n\r\n<em>Unlimited term contracts </em>\r\n\r\nNotice - Decree 765 states that the notice to terminate an unlimited contract cannot be less than one month (which is consistent with UAE Labour Law).  However, it also requires that notice should not exceed three months.  Therefore, employers who have in place notice periods which exceed three months should be mindful that this could be subject to challenge. This is likely to be a challenge for educational institutions (which usually have long notice periods in order to reduce staff turnover during the academic year) and in respect of employers with very senior executives with more than 3 months’ notice. Employers may want to consider reviewing their template employment contracts and considering length of notice periods generally.\r\n\r\n<em>Limited term contracts </em>\r\n\r\nDuration - Limited term contracts should be for a maximum duration of 2 years, compared with 4 years previously.  Employers should be mindful of this when offering limited term contracts.\r\n\r\nNotice - Previously the position was that limited term contracts did not necessarily need to include a notice period, they simply ended upon expiry. Decree 765 now requires that notice of between 1 to 3 months’ is given. Employers should therefore consider updating their standard form limited term contracts to include a notice period.  Where a limited term contract is renewed and no notice period is agreed, the default position will be a notice period of 3 months.  There is a conflict between this provision and the UAE Labour Law which does not stipulate any notice period for fixed term contracts. It remains to be seen how the Courts will deal with this but until such time as it is clarified the safest option would be to provide for one month notice.\r\n\r\nEarly termination compensation /  indemnification – Decree 765 also confirms that, in the event of termination, each party must indemnify the other to the level that was agreed (the agreed indemnity cannot exceed three months’ gross wages). Under UAE Labour Law an employer who terminates an employee’s limited term before its expiry is liable to pay the employee three months’ pay as “early termination compensation”. It is unclear whether the agreed indemnity amount is intended to be in lieu of early termination compensation (to allow parties to agree a lesser amount than the three months’ pay) or is in addition to this (in which case it would conflict with the UAE Labour Law).  In our view the agreed amount is intended to be instead of the early termination compensation.  It remains to be seen whether the Courts would actually allow the lesser amount if an employee sought to challenge this.\r\n\r\nGiven the uncertainty concerning how these new decrees will operate in practical terms, especially in relation to  the giving of notice and seeking to agree the amount of compensation / indemnification for early termination, employers are likely to avoid entering into limited term contracts unless strictly necessary.\r\n\r\n<strong>Labour Ban </strong>\r\n\r\nDecree 766 lists the circumstances in which an employee will be issued with a new work permit and will not be at risk of being subject to a labour ban.  Either party can unilaterally terminate the employment relationship (if a fixed term contract then after the expiry of\r\n\r\nthe first fixed term; if an unlimited contract then after 6 months (unless the employee has a high school diploma in which case the 6 month period is waived)) without fear of a labour ban being imposed provided that the terminating party (i) gives notice to the other party as per the MOL Contract, and (ii) honours the contractual obligations for the duration of the notice period.'),
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	(97467,5295,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sarah Anderson'),
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	(97475,5296,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nThe International Labour Organisation (“ILO”), an arm of the UN, estimates that around 21 million people are trapped in modern slavery.  Many countries are beginning to focus on corporate institutions in the effort to drive out slavery and human trafficking at all phases of the supply chain.\r\n\r\nThe Gulf has a large migrant blue collar population which has driven and will continue to drive completion of various mega projects. The issue of modern slavery has been brought sharply into focus given the adverse publicity notably suffered by Qatar and to a lesser extent the UAE.  In Qatar’s case, preparations for the 2022 World Cup have been beset by critical press attention, ILO complaints regarding treatment of blue collar workers and complaints from other human rights watchdogs. In response, the 2022 Supreme Committee and the Qatar Foundation have spearheaded initiatives to try and address some of the issues including the ongoing construction of ‘Labour Cities’ with improved living conditions for workers whilst the government has introduced a wage protection system to ensure workers are paid correctly and on time.  However, efforts remain very much a work in progress given the length of time it takes to drive through new law or legislative amendments.\r\n\r\nWith the international press focus likely to further intensify in the run up to the 2022 World Cup and Dubai Expo 2020, the importance of companies demonstrating compliant and ethical treatment of workers should continue to be a paramount concern.\r\n\r\n<strong>Modern Slavery Act and its reach</strong>\r\n\r\nThe Modern Slavery Act 2015 (the “Act”) was enacted in the UK on 29 October 2015, which addresses the need for companies to take action against slavery and human trafficking.  We consider the potential impact of the Act within the Gulf.\r\n\r\nThe Act applies to commercial organizations (wherever incorporated) which carry out any part of their business in the UK, with a global gross annual turnover in excess of GBP 36 million (approx AED 198 million) or more each year. The application of the Act is cross sector and does not distinguish between foreign companies or companies incorporated in the UK.  Accordingly, the Act will capture many businesses with a UK presence that carry out business in the Gulf.\r\n\r\nIn this respect, the relevant section of the Act is Part 6 Section 54 (Transparency in supply chains etc).  This provision requires that companies falling under the scope of the Act publish an annual statement that states any and all efforts it is making or intends to make in order to put an end to slavery and human trafficking.  The Act specifically states that the statement must include ‘the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business’.  Accordingly such organisations must set out and capture the steps taken in relation to any part of its supply chain.  If no steps have been taken, the organisation must acknowledge this in its statement.\r\n\r\nThe Act prescriptively sets out the nature of information that a company’s annual statement should contain such as (i) its slavery and human trafficking policies, (ii) the due diligence it carries out upon its business and supply chains (iii) where risks arise in the business and supply chains and what steps have been taken to assess/manage these risks (iv) what training is available to staff and (v) steps taken to monitor effectiveness of preventive measures taken as against objectives.\r\n\r\nEssentially, all companies within the scope of the Act but particularly those who sub contract work or buy products externally will be required to take responsibility and have oversight for each step of the supply chain (or essentially provide a statement to say that they are unwilling or unable to do so).\r\n\r\nMany businesses within the Gulf do not have an understanding of the exposure to risk in their supply chain nor controls in place to manage those risks.  The introduction of the Act obliges many businesses to better manage and control labour risk. Aside from the requirements of the Act it would be prudent for all businesses to take proactive steps to assess and manage modern slavery and human trafficking (whether captured by the scope of the Act or not), particularly those businesses that are labour intensive and/or those who operate supply chains with a lack of transparency.\r\n\r\n<strong>What steps should be taken?</strong>\r\n\r\nMany businesses carry out HR audits which consider compliance with local laws on an annual basis.  Whilst such audits should remain part of an overall corporate governance strategy more is required for labour intensive businesses and/or organisations operating with supply chains that are complex/lacking transparency.\r\n\r\nFor such businesses, a much more proactive and holistic approach is recommended to identify the risks, put in place the necessary checks and balances and then monitor and report upon the outcomes.  The introduction of policy guidance and appropriate staff training are essential steps as part of this process.\r\n\r\nFailure to do so has many consequences.  Aside from the potential for projects to be delayed or unwelcome scrutiny by governmental immigration and labour offices, the reputational risks of not taking proactive steps are significant and are likely to lead to further attention from the press, human rights’ watchdogs and the public (consumers).'),
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	(97395,5291,'_yoast_wpseo_metadesc','Technological innovation is considered as a major force in any given economy. Although the concept of 3D printing dates back some 30 years, the technology and advancement in the field have gained tremendous momentum in the past decade or so.'),
	(97396,5292,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nMedical devices are regulated by the Drug Control Department of the Ministry of Health. To this end, the UAE Medical Device Regulation Guideline is aimed to maintain a balance between ensuring product safety, quality and effectiveness and providing the public with timely access to medical devices and preventing the entrance of unsafe or ineffective devices into the UAE market. The UAE Medical Device Registration Guideline states that medical device manufacturers must register with the MOH before they can market their products in the UAE. Accordingly, companies who wish to export their products into the UAE must do so via a local representative or distributor who is licensed.\r\n\r\nWhere the subject matter of advertising is medical products and services, advertisers must comply with special requirements.  It is prohibited to publish any advertisements and / or to advertise medicine or pharmaceutical products without the approval of the Ministry of Health.  Such an approval shall only be granted if the relevant advertisement complies with the requirements of the applicable regulations.\r\n\r\nIn the UAE, Regulation No. 430 of 2007, also known as the Health Advertisement Regulation is the body of law regulating the field of advertising in the medical field. As part of the definitions in article 1 of the regulation, the following definitions need to be highlighted:\r\n\r\n“ Advertisement: any information about the Medical Product in written , photographic and broadcasting form, in the form of a design, in the form of a product packaging in any of the media whether audio, visual and printed, in the form of posters in public places or in promotional form through the means of personal, technical or electronic messages communication.”\r\n\r\n“ Medical Product: Everything linked to the human health, such as medicine and drugs, including herbal medicine - health food, nutritional supplements and beauty centers - medical apparatus and supplies - medical institutions - people who is practicing the medical profession of physicians and technicians - ways and methods of medical treatment by traditional or alternative methods.”\r\n\r\nArticles 2 and 3 of the Regulation clearly sets out that the Ministry of Health is the exclusive body allowed to license the Advertisement for medical products. Accordingly, the advertisement for medical products shall not be licensed unless such products are licensed or authorized in accordance with the laws and regulations.\r\n\r\nArticle 4 of the Regulation provides a list of do’s and don’ts when it comes to Medical Advertising, amongst others the advertising must be accurate and should not contain exaggerated, misleading or alarming statements. Furthermore, if the medical advertising is to contain statements such as “number 1 prescribed medicine by health professionals” such statements need to verified and corroborated with an independent study proving the accuracy of the statement.  Hence, during the review of the advertising or even through a third party challenge/complaint, the Ministry of Health may request proof of such independent studies establishing the veracity of the statements contained in the advertising.\r\n\r\nThe Regulation also provides that certain medical advertising is prohibited based solely of the content matter, hence it is prohibited to advertise medical products and services relating to the following:\r\n<ul>\r\n 	<li>Abortions;</li>\r\n 	<li>Embryo freezing;</li>\r\n 	<li>Products scientifically proven to be detrimental on public health;</li>\r\n 	<li>Tattoo work;</li>\r\n 	<li>Treatment, full recovery or preventing the following diseases:</li>\r\n 	<li>Cancer;</li>\r\n 	<li>Sexually transmitted Diseases (“STDs);</li>\r\n 	<li>Acquired Immune Deficiency Syndrome (AIDS);</li>\r\n 	<li>Hepatitis;</li>\r\n 	<li>Mental and psychological disorders.</li>\r\n</ul>\r\nIn conclusion, when deciding on advertisement related to the medical field, a greater degree of care and attention is required. Given the intended demographic, the legislator has implemented the set of regulations so as to avoid preying of the weak and desperate who may be more susceptible to the language, promises and results made in the medical advertising.'),
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	(97400,5292,'content_description','In the UAE, the medical profession and medical treatments and substances are regulated through a number of primary and secondary laws and regulations.\r\n'),
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	(97402,5292,'pageSummary','In the UAE, the medical profession and medical treatments and substances are regulated through a number of primary and secondary laws and regulations.'),
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	(97344,5290,'content_description','Dubai is seeking to encourage greater participation and investment by private establishments and companies in development projects in Dubai with its new law governing public-private partnerships (Law No. 22 of 2015) which came into force in November 2015 (the “PPP Law”).'),
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	(97346,5290,'pageSummary','Dubai is seeking to encourage greater participation and investment by private establishments and companies in development projects in Dubai with its new law governing public-private partnerships (Law No. 22 of 2015) which came into force in November 2015 (the “PPP Law”).'),
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	(204123,5290,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(204122,5290,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Scott Lambert'),
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	(97354,5290,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zehra Manni'),
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	(97366,5290,'_yoast_wpseo_metadesc','Dubai is seeking to encourage greater participation and investment by private establishments and companies in development projects in Dubai with its new law governing public-private partnerships (Law No. 22 of 2015) which came into force in November 2015 (the “PPP Law”).'),
	(97367,5291,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nIn fact, innovative activity has been the single most important component of long-term economic growth, not to mention job creation.  It is through a series of innovative breakthroughs in different fields that the growth of new industries has been stimulated. In recent years, one of the most talked about and promising breakthroughs in innovation has been 3D printing.  According to a report recently published by the World Intellectual Property Organization (WIPO), entitled Breakthrough Innovation and Economic Growth, 3D printing is one of the three frontier technologies that hold the potential to boost future economic growth.  Although the concept of 3D printing dates back some 30 years, the technology and advancement in the field have gained tremendous momentum in the past decade or so.\r\n\r\nThe term ‘3D printing’ is the industry term for a number of different techniques that use additive manufacturing technology to create a three-dimensional object by depositing successive layers of material on top of one another to form the object and by using a digital blueprint.  3D printing can be used in the production of various components and even finished products in different fields, including automotive, construction, medical, electronics, industrial design, fashion, footwear and even food.\r\n\r\nThose who are spearheading 3D printing technology argue that the technology is not only important for rapid prototyping but it can also assist companies in overcoming traditional methods of manufacturing finished products, optimise product design and reduce manufacturing costs.\r\n\r\nThrough the technology and eventual wide scale availability of 3D printing, and from a personal use perspective,  people will be free to make almost anything they want themselves, which opens the door to a new wave of innovations.\r\n\r\nBoth the number of patent applications of 3D printing and the value of the industry have been growing rapidly in recent years. According to a report published by the UK Patent Office, there have been approximately 30,000 published patent applications worldwide since 1980 relating to 3D printing.  Most of the patented 3D printing inventions are from companies located in the US, Germany, Japan and China.  Most of the patent applications for 3D printing are filed by companies, albeit universities have in recent years also increased their patent application with regards to this technology.  The United States Patent &amp; Trademark Office (USPTO) reports that during the last decade, more than 6,800 patent applications related to 3D printing have been received.  Since 2007, about 680 patents a year have been filed - 39.6 percent more than in 2002, when 487 patents were filed.  Since 2003, the office has granted 3,500 patents related to 3D printing.\r\n\r\nMany global brands are starting to embrace this new phase of technology known as the ‘3D printing era’.  By way of example, the USPTO has recently granted global brand leader Nike a major patent for technology associated with the 3D printing of shoes.  The patent, identified as “strobel printing”, is a method by which it is required to affix the shoe’s upper to its midsole.  Nike’s patent calls for a machine to scan the design into a computer and, based on the data, print sewing guidelines on the strobel.  It should however be highlighted that the 3D printing technology patented by Nike does not fundamentally change how the company makes shoes.  Rather, it merely updates and modernises the process through which the company does so.  For consumers, this potential new method for shoe manufacturing could mean the ability to bring a digital file into a Nike store and have a custom fit shoe manufactured on the spot.\r\n\r\nThe developments in 3D printing are also revolutionising the way medical and pharmaceutical fields will soon be distributing goods.  Recently, in the field of pharmaceuticals, there has been a development of a 3D printer capable of assembling chemical compounds at the molecular level.  This innovation would allow patients to go to an online drugstore with their digital prescription, buy the blueprint and the chemical ink needed, and then print the drug.  In addition to the added advantage of having the pharmaceutical product being readily available and accessible, there is also the advantage of having the medication customised to individuals in ways that make it safer and more effective.  The size, dose, appearance and rate of delivery of a drug can be designed to suit an individual.\r\n\r\n3D printing can without doubt accelerate the advancement of innovations by reducing costs and time in translating innovative concepts into prototypes and finished products.  In addition, 3D printing opens the door for the development of new lines of products/technologies by enabling the design &amp; manufacturing of certain products which was not possible to achieve using the traditional manufacturing methods.  This can be at any scale, even on the micrometer or nanometer scale.\r\n\r\n3D printing is a technological concept.  Customized 3D printing machinery should be designed and produced in order to enable the 3D printing capabilities depending on the specific application desired.  Printing a pizza requires a different 3D printing technology than printing an electronic circuit board.  The 3D printing technology can therefore be innovative in itself and subject to patent protection.\r\n\r\nDespite the many advantages of 3D printing, there are also a number of questions being raised as to IP and the impacts of 3D printing on existing rights such as copyright, industrial designs and patents. Industry experts have compared the use and widespread distribution of 3D printers to the infamous Napster era, whereby the music industry was significantly shaken by the introduction of peer-to-peer file sharing.  Similarly, the rights of product designers may be undermined and violated, should digital blueprints of works be shared electronically and subsequently printed.  Thus, personal 3D printing potentially raises issues of large scale reproduction of existing products.\r\n\r\nOne way to protect against the reproduction of existing products facilitated by 3D printing is to make sure that intellectual property rights are adequately secured.\r\n\r\nIn this optic, copyright and industrial design protection should be considered to protect the new aesthetic and ornamental features of useful articles such as the 3D shape of a product.  Where the 3D shape of the product is used to distinguish/identify the source of the product, then trade mark protection can be considered as well.  Where the article of manufacture contains novel functional or structural features, patent protection should be secured to make sure the “spirit” of the article is protected as well.\r\n\r\nIf IP protection is sought, any reproduction of the article or manufacture using 3D printing or other traditional manufacturing methods could be deemed an act of infringement reprehended under the law and exposes the infringer to civil and criminal sanctions based on the applicable local laws.\r\n\r\n<strong><em>How Can Al Tamimi help? </em></strong><em>Our IP department has a dedicated Patents &amp; Designs (R&amp;D and Innovations) Practice which can assist in a wide range of contentious and non-contentious matters related to innovations, including legal protection, contractual matters and litigation. For more information please contact Ahmad Saleh (Regional Head of Patents &amp; Designs – R&amp;D and Innovations) at a.saleh@tamimi.com or Sadaf Nakhaei (Senior Associate) at s.nakhaei@tamimi.com. </em>'),
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	(97329,5289,'content_description','This article identifies the core elements of broadcast piracy in the United Arab Emirates (“UAE”), and considers some countermeasures being taken by the country to combat the problem. '),
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	(97331,5289,'pageSummary','This article identifies the core elements of broadcast piracy in the United Arab Emirates (“UAE”), and considers some countermeasures being taken by the country to combat the problem.'),
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	(97340,5290,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\n<strong>To which entities does the PPP Law apply?</strong>\r\n\r\nThe PPP Law regulates partnerships entered into between all government entities under the Dubai government’s general budget, and private establishments and companies (the “private sector partner”). In accordance with the law, the private sector partner may be a corporate entity or a consortium of corporate entities.\r\n\r\n<strong>Scope of the PPP Law</strong>\r\n\r\nThe PPP Law expressly excludes from its scope projects related to the production and supply of water and electricity. In addition, the Supreme Committee has the authority to issue resolutions from time to time excluding certain projects or sectors from the PPP Law.\r\n\r\n<strong>Proposing projects</strong>\r\n\r\nPursuant to the PPP Law, either a government entity or a private company may propose partnership projects. The PPP law also offers some flexibility by allowing projects to bypass the public tender process. Where the idea of a project is specifically developed by a private company, the interested government entity may directly contract with the private company for the project without need of a public tender. In all other instances, however, private sector partners must participate in a public tender process.\r\n\r\n<strong>Pre-conditions </strong>\r\n\r\nSeveral preconditions apply under the new law. The private sector partner must form a limited liability project company (a special purpose vehicle (“SPV”)) licensed to operate and implement the partnership contract in Dubai. Also, the project must be economically, financially, technically and socially feasible. In addition a PPP is not permitted where it will require the relevant government entity to make payments that have not been allocated for the project entity’s budget.\r\n\r\n<strong>Types of PPP models permitted </strong>\r\n\r\nThe PPP Law allows the parties to structure the project based on a range of PPP models, including, concession agreements, build-operate-transfer (BOT), build-own-operate-transfer (BOOT), build-transfer-operate (BTO), and manage and operate contracts. The Dubai Government’s Financial Department and the government entity may also propose other arrangements to the Supreme Committee for approval such as maintenance agreements and expansion of existing projects. Once a model has been selected by a government entity and the Financial Department, the Dubai Government’s Financial Audit Department will have oversight over the execution of the PPP project agreements.\r\n\r\n<strong>Required Approvals and Role of Partnership Committee</strong>\r\n\r\nThe government entity must obtain approval from certain authorities in writing before entering into a PPP. Depending on the value of the project, as well as the cost to the government entity, the approvals may be internal or external:\r\n<ul>\r\n 	<li>If the PPP will result in financial income or savings to the government entity, then the director general, secretary general or chief executive officer (or a nominee) of the relevant government entity must approve the project.</li>\r\n 	<li>If the total costs to the government entity are up to AED 200,000,000, then the director general, secretary general or chief executive officer (or a nominee) of the government entity must approve the project.</li>\r\n 	<li>If the costs to the government entity are between AED 200,000,000 and AED 500,000,000, then the Financial Department must approve the project.</li>\r\n 	<li>If the cost of the project exceeds AED 500,000,000 then the Supreme Committee must approve the project.</li>\r\n</ul>\r\nThe government entity must form an internal committee called the “Partnership Committee” whose members will be nominated in a resolution issued by the director general of the government entity. The resolution nominating the committee members will also specify procedures regarding how the Partnership Committee will meet and operate. If the project, in relation to which the Partnership Committee is formed, requires the government entity to incur costs exceeding AED 200,000,000, then the director general of the government entity must also nominate a representative from the Financial Control Department to sit on the committee.\r\n\r\n<strong>Bidding Process</strong>\r\n\r\nOnce the government entity has obtained the necessary approvals for a project, it may invite prospective partners to bid for the project. The invitation to bid issued by the government entity must be accompanied by project details comprising financial, administrative and technical requirements that the partners must meet.\r\n\r\nThe government entity must also specify the conditions for tender participation as well as the securities and insurances required in connection with a bid submission.\r\n\r\n<strong>The Project Agreement</strong>\r\n\r\nThe PPP Law stipulates certain basic provisions that must be included in the PPP project agreement to govern the relationship between the partners and list their obligations. The provisions that must be addressed include:\r\n<ul>\r\n 	<li>the nature and scope of the works to be performed by the SPV</li>\r\n 	<li>intellectual property rights, title of project assets and transfer of title</li>\r\n 	<li>financing specifications</li>\r\n 	<li>financial and technical obligations of the parties</li>\r\n 	<li>determination of sale price or consideration related to project product or services as well as a mechanism to amend and determine price</li>\r\n 	<li>termination and amendment of the partnership contract</li>\r\n 	<li>allocation of risk</li>\r\n 	<li>environmental safety</li>\r\n</ul>\r\nThe term for a PPP may not exceed 30 years, however the Supreme Committee may approve a longer term for public interest reasons.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe new PPP law seeks to encourage the private sector to be innovative and creative in identifying and funding projects for Dubai. If successful, this law may lay the foundation for reducing the financial burden on the government to provide and maintain world class infrastructure in a rapidly growing international Emirate.'),
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	(97325,5289,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nA number of laudable recent steps to deal with the growing legal problem suggest that both internal and external rights holders to the UAE market can take some comfort that rights will be recognised and protected and, where practical, aggressive enforcement can be pursued.\r\n\r\n<strong>A growing global problem</strong>\r\n\r\nIn the TV broadcasting world, the value of premium rights to sporting events makes them a prized asset. The inherent nature of live sporting events means that they have the now relatively scarce appeal of immediacy, with extremely high value before and during the event itself, rapidly diminishing thereafter. This reality has elevated the value of live sporting event broadcasts above all others in the pantheon of TV advertising platforms – take, for example, the English Premier League.\r\n\r\nThe auspicious trade winds have, however, drawn a threat to the horizon. As subscription rates climb there is an increasing threat from pirates adroitly brandishing advances in technology to illegally broadcast sports content to consumers. Their motivation is the substantial rewards that can be reaped for bypassing legal rights holders. Approximately one billion people watched the final match of the FIFA World Cup last year, 900 million watched the opening ceremony of 2012 Olympics in London and, for single match events, in excess of 110 million watched the Superbowl. These figures hint at the golden gains of advertising investment and subscription fees that can be made by those prepared to operate outside the law on a quest for revenues without paying for broadcasting rights.\r\n\r\nAs the sports rights market grows, evidence shows that the problem, which can take several specific forms, is growing at a significant rate globally, which suggests the framework of laws and regulations – handicapped by jurisdictional limitations in dealing with global offenders – has in general struggled to keep up with detection and enforcement.\r\n\r\n<strong>Local face of a global problem</strong>\r\n\r\nIn the UAE, broadcasting piracy has shown a marked increase over the past couple of years, similar to many other markets with diverse sporting interests and a growing cosmopolitan population. TV broadcast piracy includes a range of abuses that are evolving with technology but, for the purposes of this article we will consider specifically the legal issues surrounding:\r\n<ul>\r\n 	<li>unauthorised internet content (unicast and peer to peer streaming);</li>\r\n 	<li>pirate satellite channels showing premium content; and</li>\r\n 	<li>illegal set-top boxes and other hardware allowing access to hundreds of channels for a one-time and/or short term subscription fee.</li>\r\n</ul>\r\nIn respect of this latter category, it has been suggested that licensed retailers of electronic equipment for premium content in the UAE are being deprived of up to forty percent (40%) of business because of the proliferation of illegal decoders and satellite dishes with reports of in excess of one million illegal set-top boxes entering the Gulf Cooperation Council region annually.\r\n\r\nIt is instructive to note that ready access to high-speed internet connections is ubiquitous in the UAE and a largely expatriate population features a broad interest in sporting activity from around the world and consumers highly sensitive to choice content. These factors contribute to make policing the market a difficult task, as identifying targeted content to include niche sporting activities can be difficult and tracking potential multijurisdictional sources of illegal content or hardware can be elusive.\r\n\r\nA recent example illustrates the issue. Throughout much of last year beIN Sports, the Qatar-based network and an exclusive rights holder to the EPL in a number of countries in the region, reportedly suffered piracy issues with some of its live transmissions. Saturday afternoon kickoffs were particularly sensitive because of UK blackout rules, so in what was perceived as a measure to pacify the UK rights holders beIN covered only one match per week in that timeslot whereas previously, it had shown all live EPL matches during that timeslot. In addition to significant subscriber complaints about loss of access to content of the other matches in that timeslot, it has been suggested that many fans were galvanised into seeking alternative access, including through pirate broadcasts.\r\n\r\n<strong>What is the legal position of TV broadcast rights in the UAE?</strong>\r\n\r\nThe UAE Federal Law No. (7) of 2002 Concerning Copyrights and Neighbouring Rights (“Copyright Law”) provides provisions to protect rights holders against TV broadcast piracy. Specifically, Article 19(1) grants broadcasting organisations the economic right to grant licenses for the exploitation of their recordings and broadcasting programmes, while Article 19(2) empowers broadcasters with the right to prohibit unauthorised communication of their programmes or recordings to the public.\r\n\r\nThe Copyright Law further includes significant penalties for acts in contravention of its provisions, ranging from seizure of works and revenues, to the imposition of fines and even prison terms. Quite apart from these significant provisions, the particular facts of an infringement could also bring the UAE Penal Code into play, particularly where there is a suggestion of theft, intentional misrepresentation for gain, etc.\r\n\r\nIn addition to the primary statutory tool of the Copyright Law, as an approach in lateral thinking, if a case can be made to suggest content is targeted at consumers in the UAE, then advertising included with the content will be subject to UAE advertising laws. These laws, outlined in the National Media Council Resolution on Advertising Standards, can be interpreted as relatively paternalistic and potentially restrictive taken as against western European counterparts (e.g., with bans on the advertising of gambling, alcohol and tobacco and conservative views on depictions of nudity, male/female interaction, clothing, etc.), and expressly include both Federal Law No.  (15) of 1980 Concerning Printing and Publishing (“Publications Law), which covers all forms of published expression and is broad enough to cover television broadcasting, and Federal Law No. (5) of 2012 on Combating Cyber Crimes (“Cyber-Crimes Law”), which specifically addresses content distribution via the internet.\r\n\r\nWhere advertisers are readily identifiable and have assets or distribution networks in the UAE, enforcement against them (specifically those purposefully collaborating or the equivalent of “reckless” – as defined in the UAE - as to the scope of use) pursuant to these advertising laws is another option that could be considered. The forms that enforcement action takes - subject to identifying and locating wrongdoers - could range from warnings, to requirements for withdrawal of advertisements, to suspension of operating licenses, to having businesses closed down and assets seized, to claims for damages and, potentially, imposition of fines and/or prison sentences. However, the same difficulties with respect to litigation against other advertises – as noted below may apply.\r\n\r\n<strong>Strategies And Countermeasures Against Broadcast Piracy</strong>\r\n\r\n<em><strong>Stakeholder Cooperative Efforts</strong></em>\r\n\r\nAn Anti-Piracy Coalition has been formed in the UAE. Leading industry players including OSN and MBC networks amongst others have strengthened the links between the industry and law enforcement and a number of aggressive steps have been taken by the authorities across the UAE to safeguard the sector.\r\n\r\nFor example, in Abu Dhabi, the Criminal Investigations Deparment (CID) and the Department of Economic Development have been involved in dozens of raids in hotels and shops. In Sharjah, the Sharjah Economic Development Department has responded to complaints, seizing illegal decoders and shutting down a number of retail shops.\r\n\r\nIn Ajman, the Department of Economic Development has conducted raids against illegal content providers, destroying illegal set-top boxes and imposing fines. In Dubai, the Department of Economic Development has added its cooperation, noting that broadcast piracy costs the industry more than $500 million per year. Although in some respects this may seem an unlikely alliance, it should be noted that collective selling and collective purchasing of premium sports rights has been occurring for some time.\r\n\r\nSignificant strategic cooperation between direct competitors (e.g., as in respect of EPL broadcast rights) can act as a touchstone emphasising that where there is a strong commercial shared interest, cooperation is both prudent and possible. Broadcast piracy is certainly reaching a level that could create a similar imperative, and we are seeing the roots of such cooperation in the UAE.\r\n\r\n<strong>Consumer Education/Awareness Campaigns</strong>\r\n\r\nThe Dubai Department of Economic Development has used its Commercial Compliance and Consumer Protection sector to engage with the leading pay TV network in the Middle East and North Africa, OSN, to launch an extensive public campaign against TV piracy.\r\n\r\nThe campaign spans TV, print, radio and online media and emphasises the harm done to the sector, including stunting sector growth and compromising job creation among other goals. This is a key step where some evidence suggests consumers tend to think of TV piracy as a victimless crime.\r\n\r\nAddressing the lack of awareness the general consumer may have regarding the costs involved in legally securing rights, the harm done to the economy by piracy and the benefits of safeguarding legitimately traded rights can potentially increase consumer choices. A telephone hotline to report piracy issues as complaints has also been publicised as part of the program.\r\n\r\n<strong>Product &amp; Delivery modifications</strong>\r\n\r\nThere has been significant speculation in the UAE market that price-point is a crucial determinant of the level of consumer consumption of pirated content; and that lowering the price of legitimate subscriptions (or at least de-coupling or unbundling channel packages to achieve lower prices for more tailored target content) would encourage more consumers to purchase legal access.\r\n\r\nAdditionally, the introduction of greater access to legal streaming options tailored for the local UAE market and pricing has been suggested as a positive step, which can counter the consumer rationalisation that there is a need to look outside standard options. US company, StarzPlay, recently launched in the UAE and anecdotally appears to be making positive inroads into the consumer market.\r\n\r\nAvenues for appropriately licensed screening of content on demand for a fee and allowing consumers to avoid delayed delivery is another option that can remove a temptation or rationalisation for paying for pirate access. Consumers do not like to wait – and experience suggests they are least tolerant of delay when it comes to live sporting events.\r\n\r\n<strong>Developing Anti-Piracy technology</strong>\r\n\r\nSome pay TV service providers have systems in place to prevent TV piracy but they cannot always prevent more sophisticated types of piracy with well-designed online sites and highly structured illegal redistribution schemes. Due to greater availability of bandwidth and technology that enables retransmission, high quality content like sports can be viewed illegally, almost instantaneously around the globe with little loss of quality.\r\n\r\nPirates are no longer operating from flea markets and car boot sales or sending runners through the shadows with low quality DVDs. They are becoming adept at promoting and selling illegal content through user friendly websites with advanced programming guides, credit card payment options and season packages that are designed to match traditional broadcast product but do so at a significantly lower price point because the legitimate rights holders are not paid the fees they are entitled to receive.\r\n\r\nInvesting in better encryption technology is one proactive option. OSN has put significant investment into upgrading its decoder technology in recent years to enhance its set-top box anti-piracy technology. Qatar-based beIN Sports has been reported to have significantly upgraded encryption technology. Also, engaging third party professional pirate hunters is an option that some broadcasters take (and many maintain a similar in-house function).\r\n\r\n<strong>Litigation</strong>\r\n\r\nIn an ideal scenario, restrictions and prohibitions against abuse of broadcast rights would be clearly set forth in statute and any breaches swiftly enforced by prescribed sanctions. As noted above, UAE law clearly outlines relevant rights and provides a remedy for enforcement against infringement of copyright protection. However, this strategy has its limitations:\r\n<ul>\r\n 	<li>it is after the event, and the damage has already been done;</li>\r\n 	<li>the practical requirements for enforcement often prove elusive when trying to identify and locate the infringer before bringing the power of the courts to review and possibly sanction them.</li>\r\n</ul>\r\nIt should, however, be noted that where the wrongdoer is readily identifiable and situated in the UAE, litigation is often the first recourse, as it includes reporting and prosecution – i.e. Government-managed litigation, which is both swift and cost-effective.\r\n\r\nClaims will vary depending on the specific facts and the law to be applied; and, pirates can be adept at intellectual property arbitrage or using jurisdictional choices to complicate matters. For example, beyond the shop-front, many purveyors of illegal set-top boxes and related hardware maintain their corporate location in South Asia so without a presence or assets within the UAE, the time and expense involved in bringing a formal claim against a pirate for infringement could be entirely misspent.\r\n\r\nThis can effectively result in the higher protections afforded by one jurisdiction being undercut by less protective IP regimes in another. There have, however, been some successes. Notably, where the infringement includes a retail presence in the UAE, there is a greater likelihood of enforcement. For example, after a police raid found illegal equipment and services from Indian pay TV operator Dish TV, Abu Dhabi CID recently referred a retailer illegally selling premium services to the Court of First Instance, where a fine, closure of the shop and deportation of the manager was ordered.\r\n\r\n<strong>Recap</strong>\r\n<ul>\r\n 	<li>The UAE is the leading regional market by growth in premium content matched by growth in piracy.</li>\r\n 	<li>It has a statutory regime that protects and upholds rights but enforcement is inherently difficult.</li>\r\n 	<li>Multi-layered strategies are in place and there is a will to proactively combat piracy for rights holders.</li>\r\n 	<li>There is little evidence of negative impact on regional sports development.</li>\r\n 	<li>There are excellent beginnings of cooperation between industry/authorities to enforce broadcasters’ rights.</li>\r\n</ul>\r\n<strong>Comment</strong>\r\n\r\nFor now, the growth in premium sports consumption in the region continues to outperform global growth. Television has maintained its position as the dominant media platform for consumption despite the rise of online streaming, smart-phone and other device penetration. However, given these legitimate impending challengers, and considerable recent developments in the live mobile streaming space through mobile apps such as Meerkat and Periscope, TV broadcasters will likely want to increase their efforts to suppress (if not eradicate) illegal challenges to the success of the platform, which is the cornerstone of a thriving industry.\r\n\r\nThere are those who would suggest that the impact of piracy is overstated and that a certain level of piracy can add to the cultural buzz around an event or a product. It should also be noted that while the impact on the broadcast industry, particularly in terms of revenue generation, reinvestment capability, job security and growth is direct and tangible, there is no reliable data that currently suggests the development of any given sport or sporting event in the UAE is in immediate jeopardy of being discontinued as a direct result of TV broadcast piracy.\r\n\r\nThe proliferation of illicit websites offering live streaming of most major sporting events does, however, ultimately result in significant amounts of broadcast revenue being siphoned out of the world of sports – potentially threatening the sports sector in the same manner that peer-to-peer websites completely undercut the music business a decade ago.\r\n\r\nPiracy is not only becoming more technologically capable but also bolder. Whereas pirates have previously tapped into the feeds of sport content, such as the EPL, from broadcast rights holders in other jurisdictions and then sold it into other markets with foreign commentary teams, they are now offering the same access to target markets at cheaper prices than the legal rights holders as they do not incur the same license fees nor do they need to invest in personnel and production staff where feed is accessed illegally.\r\n\r\nUnchecked, the numbers suggest it can only be a matter of time before pirates could force some traditional broadcasters from their markets by compromising their ability to monetise the rights they have paid legitimate license fees for.\r\n\r\nPerhaps more concerning for a developing market like the UAE is the spectre of piracy potentially dissuading legitimate rights holders from entering the market for fear of uphill competition against illegal activity. Mohammed Lootah, Executive Director of the Commercial Compliance and Consumer Protection sector at the Department of Economic Development in Dubai stated that broadcast companies incur significant losses when their exclusive broadcast rights are violated, which also impacts the national economy directly and indirectly. Piracy interferes with the growth and development of the TV sector as companies do not receive their rightful share of investments, which in turn denies opportunities for job creation and growth in associated industries.\r\n\r\nThis deleterious effect would be difficult to quantify but would have a negative economic impact and deprive consumers of competition and choice. A concerted effort of cross-border cooperation between the relevant authorities, a strategy of consumer education, strong anti-piracy rights, enforcement and continued coordinated industry leadership such as has been exhibited in the UAE by the Anti-Piracy Coalition, is a strong step towards tackling this problem.\r\n\r\n<em>This article first appeared in LawInSports on 8 December 2015 - http://www.lawinsport.com/articles/item/a-guide-to-piracy-protection-for-sports-broadcasting-rights-holders-in-the-uae </em>\r\n<div></div>'),
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	(97310,5288,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nThe purpose of this article is to provide both landlords and tenants in Dubai with insight on the legal framework and practical considerations governing the renewal of their leases.\r\n\r\n<strong>Applicable law</strong>\r\n\r\nThe relevant law is Law No. 26 of 2007 (as amended by Law No. 33 of 2008) ‘Regulating the Relationship between Landlords and Tenants in the Emirate of Dubai’, (the “Tenancy Law”). In terms of its scope of application, the Tenancy Law applies to all leased lands and properties in the Emirate of Dubai irrespective of their permitted use (e.g. residential, commercial or industrial), but at the exclusion of free accommodation provided by natural or judicial persons to their employees.\r\n\r\n<strong>The principle: Tenant’s right to renew</strong>\r\n\r\nThe governing principle under the Tenancy Law is that the tenant has a right to automatically renew its lease. This principle is derived from Article 25(2) of the Tenancy Law which, as confirmed by previous decisions of the RDSC, is considered a matter of public policy. Therefore, any agreement to the contrary between the parties will be unenforceable.\r\n\r\n<strong>The exception: Landlord’s right to refuse the renewal</strong>\r\n\r\nAs an exception to the automatic renewal principle, a landlord can object to the renewal of a lease and therefore request the eviction of the tenant on expiry of the lease, if one of the following four circumstances materialises.\r\n\r\n<strong>1. Demolition of property for construction purposes </strong>\r\n\r\nThe landlord is permitted under the Tenancy Law to request the eviction of the tenant upon expiry of the lease if the landlord intends to demolish the property for reconstruction purposes or for the purpose of adding new constructions to the property.\r\n\r\nHowever, if the tenant submits a case to the RDSC contesting the landlord’s claim that it requires the tenant to vacate the property, the RDSC is most likely to require the landlord to provide satisfactory evidence to support its claim, such as a prior approval by the Dubai Municipality on the demolition process. While this request may seem reasonable in theory, it often raises practical challenges for landlords who will need to liaise between different governmental authorities in order to provide satisfactory evidence to corroborate their claims.\r\n\r\n<strong>2. Renovation or comprehensive maintenance </strong>\r\n\r\nThe Landlord can also refuse the renewal of a lease in the event the property requires renovation or comprehensive maintenance. However, this type of renovation and maintenance should be of such nature that it could not be executed while the tenant is occupying the property. In addition, the landlord is required to submit a technical report issued by Dubai Municipality or accredited by it to this effect.\r\n\r\n<strong>3. Recovery of property for personal use </strong>\r\n\r\nIn addition, the Tenancy Law allows the landlord to evict the tenant from the premises upon expiry of the lease if the landlord, or its next of kin of first degree, intends to personally use the property. In this respect, the landlord is required to provide proof that it does not own a suitable alternative property.\r\n\r\nThis ground for non-renewal calls for particular attention when dealing with commercial leases. In practice, a landlord may own several commercial properties but has decided to recover a specific property from a tenant due to the commercial advantage that the property may offer to the landlord’s commercial operation (e.g. a prime location or a suitable area). In this case, a restrictive interpretation of the Tenancy Law by the RDSC would not allow the landlord to recover the property as it owns alternative properties that would be suitable for the landlord’s use, even if they are not as advantageous as the property that the landlord wishes to recover for its use. This ground for non-renewal is more suited to a individual, residential landlord who needs to recover its apartment for its own use, and it is an example of a circumstances when application of the Tenancy Law to commercial leases can be difficult.\r\n\r\nIf the landlord recovers its property under this ground, the landlord will not be entitled to rent the property to another tenant for a minimum period of two years for residential properties and three years for non-residential properties, unless the RDSC allows a lesser period. If the landlord does not comply with this restriction, the tenant will be entitled to claim compensation from the landlord.\r\n\r\n<strong>4. Sale of property </strong>\r\n\r\nThe final ground for non-renewal is where the landlord wishes to dispose of the property by way of sale. However, it is not sufficient for the landlord to declare the intent of selling. The landlord is expected to provide evidence to corroborate the sale transaction such as an agreement with a broker or a memorandum of understanding.\r\n\r\nThe grounds for eviction of a tenant as provided under Article 25(2) of the Tenancy Law are considered by the RDSC as a matter of public policy. Therefore, if the terms of a lease differ with, or contradict, the terms of Article 25(2) of the Tenancy Law, then the RDSC will consider that the provisions of the Tenancy Law supersede any agreement to the contrary between the parties and therefore uphold the terms of Article 25(2).\r\n\r\n<strong>Notice Requirements</strong>\r\n\r\nIf the landlord can show that the circumstances fit one of the mandatory grounds for eviction of the tenant on expiry of a lease, it can serve on the tenant a notice of eviction. Article 25(2) of the Tenancy Law lays down strict requirements for the notice. In this respect, the notice must:\r\n<ul>\r\n 	<li>be served on the tenant at least twelve months prior to the determined date of eviction;</li>\r\n 	<li>be served through the Notary Public or by registered mail; and</li>\r\n 	<li>clearly mention the ground on which the landlord relies for eviction of the tenant.</li>\r\n</ul>\r\nThese formalities are essential and failure to observe them will give the tenant the right to challenge the validity of the notice, which will likely result in the notice being rejected by the RDSC. If this occurs, the landlord will need to serve another notice, which may result in the exercise of the landlord’s rights being delayed until the landlord complies with the required procedure.\r\n\r\n<strong>Eviction order</strong>\r\n\r\nFollowing service of the notice and expiry of the twelve-month notice period, the landlord can apply to the RDSC for an eviction order. If the RDSC is satisfied that the landlord has sufficient grounds to evict the tenant, the RDSC will issue an eviction order, and the tenant must comply with the order and vacate the property.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nBy restricting the grounds on which landlords can rely to refuse the renewal of a lease, the Tenancy Law is offering an increased level of protection for the tenants and adding further stability to the housing market in Dubai. This pro-tenant approach, which is not necessarily shared by all Emirates in the UAE, caters well to the specific socio-economic needs of Dubai. That being said, challenges are encountered in applying the Tenancy Law in the context of commercial lease renewals.'),
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	(97293,5287,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nOne of the biggest concerns for the healthcare sector in the Gulf countries is the shortage of experienced healthcare professionals. Elsewhere there is a proficient baseline of qualified and experienced providers who routinely use telemedicine as a gateway to offer easier access to healthcare services and create efficiencies in the healthcare system. In the Gulf countries, we consider telemedicine to be the jump-start solution to expanding the reach of experienced healthcare professionals, and to tap into the advances made in other countries.\r\n\r\nTelemedicine is being used across the world to connect patients in rural and underserved areas to highly qualified physicians and specialists who are miles away. Advances in technology and the growing availability of broadband on ultra-fast fiber and 4G mobile networks creates multiple channels for telemedicine. Patient consultations via video conferencing, transmission of medical images and remote patient monitoring are three examples of telemedicine yet the applications are vast. While other countries, such as the US, are more advanced in their telemedicine frameworks, confidentiality requirements and data protection standards, the promise is that the Gulf countries will mirror many of these developments and implement similar standards. Yet, at this time, the use of telemedicine is in its infancy.\r\n\r\n<strong>Growth of the sector</strong>\r\n\r\nGlobally, the eHealth market is growing at a compound annual growth rate of 12 – 16% and is estimated to be worth $160 billion as of the end of 2015.\r\n\r\nThe Gulf countries have witnessed a tremendous increase in the demand for healthcare services. Technological advances need to keep up with demand for services to achieve and maintain efficient and quality healthcare. The rise in lifestyle diseases and the increasing number of resources required calls for a solution that allows easy and speedy access to healthcare, irrespective of the location of the patient in question. If the Gulf countries are to keep residents from seeking treatment overseas and meet their long-term strategy of providing access to high quality treatment, then cost efficient and effective healthcare is key. Across the Gulf countries, governments are creating new initiatives for telemedicine and recruiting private partners to join them.\r\n\r\n<strong>Recent issues with telemedicine regulation </strong>\r\n\r\nInconsistent regulation of telemedicine services across the region is partly responsible for their slow growth. In this article, we principally give examples relevant to the UAE, but these issues are typical across the region.\r\n\r\nIn the UAE, we already see a great deal of inconsistency in the availability of telemedicine services. In Dubai, the Dubai Health Authority (‘DHA’) regulations only provide for teleradiology services through telemedicine-approved facilities. Several already operate under these regulations. In Abu Dhabi, the Health Authority - Abu Dhabi (‘HAAD’) regulations provide a framework for a wider range of telemedicine services under defined minimum standards and a specific telemedicine facility licence. One limitation is that telemedicine providers cannot prescribe medications. Patients must still attend an in-person consultation if the outcome of the telemedicine consultation is a treatment plan that could require prescription medication. The following focuses on aspects currently topical in the UAE but the theme is equally applicable to other countries in the region:\r\n\r\n<strong>Outsourcing diagnostic imaging services - teleradiology</strong>\r\n\r\nIn Dubai, prior approval from the DHA is required to perform teleradiology services. Teleradiology is defined in the DHA imaging regulation (‘Imaging Regulation’) as the ‘transmission of diagnostic images and the related data from one location to another for the purposes of interpretation and/or consultation.’ The difficulty insofar as telemedicine is concerned is that the teleradiology transmitting site is required to meet the full diagnostic imaging facility requirements to include at least one full-time radiologist, one radiographer and a system manager with an informatics certification. Additionally, the teleradiology receiving site must employ teleradiology-certified radiologists licensed in the country where the service is provided.\r\n\r\nThe Imaging Regulation further details that both sites should hire information technologists and technicians who will be responsible for the computer systems and infrastructure. The qualifications of the personnel in the receiving site should be identical to those of the transmitting site. This doubling-up of the personnel required to provide the service does not make the service particularly cost efficient for the local licensed facility.\r\n\r\n<strong>Diagnostic imaging healthcare professionals</strong>\r\n\r\nDiagnostic imaging professions must hold a licence in order to work in the UAE. The healthcare professional licensing requirements are designated in the Healthcare Professionals Qualification Requirements 2014  (‘PQR’). The PQR does not identify a special telehealth-related licence that must be obtained by physicians intending to practise in such areas. Any licensing requirements for telehealth-related activities are the standard requirements for the corresponding scope of the practice. For example, a physician with a radiology specialty would be required for radiology services.\r\n\r\n<strong>Diagnostic imaging facility staffing</strong>\r\n\r\nThe availability of appropriate and sufficient numbers of healthcare professionals on duty to plan, supervise and perform the diagnostic imaging procedures is required at the local facility. The Imaging Regulation denotes the minimum staffing requirements for various types of facilities. The law currently does not permit a relaxation of staffing requirements at the local facility after services have been outsourced via a telemedicine arrangement. Accordingly, it is necessary for the local facility to make an application to the local health authority for approval of the use of teleradiology services and to specifically lay out the justification for the number and qualifications of healthcare professionals chosen to plan, supervise, and perform the procedures at the transmitting site.\r\n\r\n<strong>Diagnostic imaging facility licensing</strong>\r\n\r\nPrior to establishing a healthcare facility in the UAE two licences are needed - a commercial licence and a facility licence - both with different requirements. A licence for a healthcare facility will not be granted without approval from the DHA. Further, a commercial licence must also be obtained. In order to obtain a commercial licence for a diagnostic imaging facility, certain structural, staffing, and other requirements must be met. No specific variation of the specified staffing requirements is currently catered for under existing laws, such that, should a facility wish to cut back on staffing in order to outsource services under a telemedicine arrangement, this can only be accomplished with the approval of the local health authority.\r\n\r\n<strong>Outsourcing clinical laboratory services - telepathology</strong>\r\n\r\nThe outsourcing of clinical laboratory services is specifically permitted in Dubai and Abu Dhabi; however, the regulations are not clear on the question of whether the outsourcing can be arranged with laboratories outside the UAE. In Dubai, for example, the Clinical Laboratory Regulation 2012 (‘Laboratory Regulation’) states that test results must be approved and signed by the designated DHA-licensed laboratory staff. Arguably such language would not prevent a second opinion, including one that is outsourced to outside the country, and a review of the test results prior to a DHA-licensed member of the laboratory staff signing the report and bringing the entire process into compliance with the Laboratory Regulation.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThere remains a significant gap between the traditional laws that govern the establishment and ‘setup’ of a healthcare business, on the one hand, and the telemedicine laws on the other. For example, a local healthcare provider must demonstrate that it has the requisite number of employed radiologists and radiographers at its facility, but if it later adopts telemedicine services and outsources radiology services via a telemedicine provider, there is no relaxation of the rules with regard to the number of on-site employed personnel. This situation clearly impacts upon the question of whether the outsourcing of those services is a cost-effective option. As this issue is becoming increasingly more common and as outsourcing via telemedicine services grows in popularity, local health authorities should be consulted about outsourcing plans and their approval sought to enable a down-scaling of requirement for on-site support.\r\n\r\n<em>A version of this article was originally published in eHealth Law &amp; Policy – October 2015.  http://www.e-comlaw.com/ehealth-law-and-policy/ </em>\r\n<div></div>'),
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	(97282,5286,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nArticle 11 of DIFC Law No. 1 of 2007 (the “DIFC Data Protection Law”) makes provision for the transfer of personal data to recipients located outside of the DIFC where such recipients are located in jurisdictions considered to provide an adequate level of data protection. Therefore, recipients located in the US who certify their adherence to the privacy principles issued by the US Department of Commerce in its Safe Harbour Policy (“Safe Harbour Policy”) have previously been granted adequate protection status under the DIFC Data Protection Law and its Regulations. Following a recent decision of the European Court of Justice (“ECJ”),1 the DIFC Commissioner of Data Protection has issued guidance on the use of the Safe Harbour Policy as a basis for transferring personal data from the DIFC to recipients in the US.\r\n\r\n<strong>What happened? </strong>\r\n\r\nThe ECJ decision invalidated an earlier European Commission Decision which found that entities compliant with the Safe Harbour Policy provided an ‘adequate level of protection’ in respect of personal data. Broadly speaking, if a US entity was compliant with the Safe Harbour Policy, European entities were able to transfer personal data to the US entity safe in the knowledge that the transfer was compliant from a European Union (“EU”) data protection perspective. The recent ECJ decision means that, at least for the time being, European entities can no longer rely on a US recipient’s compliance with the Safe Harbour Policy to ensure transfers of personal data to such entities meet EU requirements.\r\n\r\n<strong> Why is this relevant to entities located in the DIFC? </strong>\r\n\r\nLike some other jurisdictions, the DIFC Data Protection Law uses the EU’s approach to identifying jurisdictions that are ‘safe’ from a data protection perspective. Now that US entities in compliance with the Safe Harbour Policy are no longer deemed safe by the EU, the DIFC Commissioner of Data Protection has had to reconsider whether such entities should still be considered safe from a DIFC Data Protection Law perspective.\r\n\r\n<strong>What needs to be done? </strong>\r\n\r\nThe DIFC Commissioner of Data Protection has noted that there are on-going negotiations between the EU and the US to try to address the issue. In the meantime, entities located in the DIFC that transfer personal data to the US should review the legal basis for such transfers to ensure continued compliance with DIFC Data Protection Law requirements.\r\n\r\n<strong>What about other jurisdictions in the Region?</strong>\r\n\r\nThe Qatar Financial Centre (“QFC”), which has its own data protection regime similar to that of the DIFC, was not affected by this development. Instead of relying on a specific list of jurisdictions that are deemed to provide an adequate level of data protection, the QFC relies on more general principles. These generally provide that a data controller may only transfer personal data to a recipient located in a jurisdiction outside the QFC if an adequate level of protection for that personal data is ensured by laws and regulations that are applicable to the recipient. The adequacy of the level of protection ensured by such laws and regulations is assessed with reference to all the circumstances surrounding the personal data transfer operations, including the nature of the data, the purpose and duration of the proposed processing operations, the country of origin and country of final destination of the personal data. Any relevant laws to which the recipient is subject, including professional rules and security measures, are also considered. As a result, it has not been necessary for the QFC to explicitly exclude recipients in compliance with the Safe Harbour Policy in a manner similar to that taken by the DIFC Commissioner.\r\n\r\nAbu Dhabi Global Market (“ADGM”), a new financial services free zone established in the emirate of Abu Dhabi, has recently issued a European-style data protection regime based largely on the DIFC Data Protection Law. It contains requirements relating to the processing of personal information, including the transfer of personal information out of the ADGM free zone, and provides for a complaint process and penalties for non-compliance. Interestingly, ADGM issued its Data Protection Regulations on 21 October 2015 — just weeks after the relevant ECJ decision on the Safe Harbour Policy. Despite this, ADGM’s lists of jurisdictions designated by the ADGM’s Registrar as providing an adequate level of data protection include ’United States of America, subject to compliance with the terms of the applicable US‐EU or US‐Switzerland Safe Harbours’. The qualified nature of this reference would seem to exclude the Safe Harbour Policy for the time being, while there are no ‘applicable’ US-EU or US-Switzerland Safe Harbours in place.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIf you are a DIFC-based entity transferring personal data to the US, and you have not yet reviewed the legal basis upon which you are relying to justify such transfers, then you should do so in order to ensure continued compliance with DIFC Data Protection Law requirements.\r\n\r\n<em><strong>Endnotes</strong></em>\r\n\r\n<em>1. Case C-362/14, Maximillian Schrems v Data Protection Commissioner. </em><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on data protection, including data transfer related issues. For further information, please contact Nick O’Connell – n.oconnell@tamimi.com.</em>\r\n\r\n&nbsp;'),
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	(97256,5284,'content_description','When entering into any contractual agreement, it is important to carefully consider the dispute resolution clause as this will determine where and how disputes will be heard.'),
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	(97258,5284,'pageSummary','When entering into any contractual agreement, it is important to carefully consider the dispute resolution clause as this will determine where and how disputes will be heard.'),
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	(97260,5284,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/december-january-3/qatar-dispute-resolution-clauses-and-foreign-governing-law-in-facility-agreements.html'),
	(97261,5284,'_currentURL','field_59d35123ab1e7'),
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	(150026,5284,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
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	(97266,5284,'_yoast_wpseo_metadesc','When entering into any contractual agreement, it is important to carefully consider the dispute resolution clause as this will determine where and how disputes will be heard.'),
	(97267,5285,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nNone more so than German automaker BMW, which owns a fleet services company with the same name and critically the domain Alphabet.com.\r\n\r\nDespite Google-Alphabet choosing to launch with the domain abc.xyz, and with BMW showing no interest in giving up its prized alphabet.com, the move did raise some critical questions on best practice for companies looking to set up a digital presence.\r\n\r\nFor the events and MICE industries, this is particularly pertinent. As highly fluid and dynamic sectors, new shows and spin off launches continue to join an already robust calendar. At Dubai World Trade Centre alone in 2014, of the more than 435 trade events staged, an impressive 49 of them were new additions. Across the board in Dubai, figures also show a substantial increase in new businesses setting up. Using the Dubai Chamber of Commerce and Industry as a barometer, the body saw 16,198 new companies take membership – an 18 per cent increase compared to 2013.\r\n\r\nAs such, making the right decisions when setting up your digital presence is becoming increasingly critical as the market matures and competition increases.\r\n\r\nTo find out about the dos and don’ts for brands looking to set up online, Read Fiona Robertson’s (Senior Associate - Technology, Media &amp; Telecommunications at Al Tamimi &amp; Company)  interview with Dubai World Trade Centre.\r\n\r\n<strong>In your legal opinion, what are the key considerations when protecting yourself digitally, and what should be considered when registering a domain name?</strong>\r\n\r\nWe strongly recommend a contract with the web developer – this must contain not only the services, approval processes, timelines and payment schedules, but must address intellectual property (use of your logo, ownership of the site, third party content) and access to the source code with full capacity to edit.\r\n\r\nFor the domain name, you will obviously want something that resonates with your intended audience and can be protected in all important jurisdictions as a brand.  If you are creating a brand across numerous countries, you should at least do a basic check on the availability of that name in those countries.  A country by country trademark search can be very helpful at this stage.\r\n\r\nIn addition, we do recommend that clients consider whether the event would justify a trademark registration.  Remember that an unregistered trademark is very difficult to defend in this market and generally across the Middle East.  If you have big plans across the region that would be undermined if someone else registered your event name in another territory in the Middle East, you need to look at regional registration.\r\n\r\nIt is always wise to include terms on the website that will clearly explain the way you are doing business and the manner in which you wish the public to interact with your website.  We also strongly recommend a privacy policy be included as part of the website.  If the site is merely providing information, these terms will be quite simple.  If you include any e-commerce (tickets, merchandise) or user generated content (forums, comments section) then they will become more complex.  Note that terms taken from websites in other jurisdictions (USA in particular) will contain terms that have absolutely no applicability in this region – and you can often end up with terms that are less favourable to you than they need to be.\r\n\r\nIf you are engaging in e-commerce of any sort, make sure that your web terms line up with the payment gateway terms.  The usual area of inconsistency is ‘terms of refund’ – so at the very least start there!\r\n\r\n<strong>Whilst most web hosting companies can register a domain for you, do you advise this route as there is no guarantee they give you back the domain should you change web hosting company after handing control of your domain to them?</strong>\r\n\r\nThat is correct; there is no guarantee that they will, although to be fair to the majority of the web hosting companies, most will do so.  Another issue is that, without having the domain registered in your name, it becomes slightly more difficult to include it in your inventory of assets and to sell it, should you ever wish to do so.  It just means that the agreement for sale has to be slightly more complex as you are, in effect, selling something that you don’t own.\r\n\r\n<strong>What are the main pitfalls of successfully protecting yourself online and how can they be avoided?</strong>\r\n\r\nUnquestionably the issue we see the most is that people arrange to have a web developer build the site and they pay on a simple purchase order/invoice.  These documents do not contain copyright assignments and so the website and all of its content belongs to the web developer, even if you pay them.  Remember that, without an assignment in writing for any copyright works, there is no assignment and so the creator continues to own the website and all of its content.  A lot of people assume that the American system of ‘work for hire’ (that is, if you pay for a work, you own it) applies here.  It does not actually apply in many countries outside of the USA.\r\n\r\nThe other reason to have a written web development agreement is to ensure the content your developer adds to the website is original or properly licensed for use. Some developers have scant regard for the copyright of other parties and will use materials that they find on-line without considering whether they are in fact copyright images.\r\n\r\nAnother often overlooked matter is the legal issues that arise from user generated content.  It is easy to forget the fact that, as a website operator, you are in fact a publisher and therefore can be held liable for all content on the site, even if you did not write it.  So content that is posted on, for example, a member’s forum or a comments section after an article can lead to liability for you as publisher.  Given that some content in this region is considered to be extremely contentious, this can cause an issue.  We always highly recommend having content moderated before it is posted.   And your intern may not be the best person to do this!\r\n\r\nFinally, make sure that you get full admin access to your website and, importantly, to all social media created for your event.  It is incredible the number of businesses that suddenly find themselves with no access to their Facebook page or their Twitter account because the person who had the admin details left the country and refuses to hand them over unless money is paid!\r\n\r\n<strong>How many different domains or variations of your domain should you consider registering? Why and how to go about it?</strong>\r\n\r\nThis is really a commercial decision.  Internet addresses are just that – addresses.  They have value to the extent that you invest in the marketing of those addresses in conjunction with your company and/or your event.  Obviously you can buy as many of these as your budget will allow (.com, .ae, .net) in order to stop pretenders but this is not always financially possible.\r\n\r\n<strong>Is there any legal recourse here in the region/internationally to get back a domain that is registered elsewhere. Or to relevant rogue URLs being set up that could damage your brand?</strong>\r\n\r\nDomain squatting is still an issue although we have seen a decrease in legal claims across the past 10 years as people find practical ways of dealing with the matter (such as increased marketing of the correct address).\r\n\r\nDomain names are managed by the international agency ICANN.  In conjunction with the United Nations copyright agency (World Intellectual Property Organization, known as WIPO), it developed a ‘Uniform Dispute Resolution Policy’ relating to the resolution of domain name disputes – and this policy can apply to some disputes (but note that it does not apply to all of them).\r\n\r\nWIPO has also been permitted by ICANN to establish an arbitration system that allows a person or company to lodge a claim against a domain squatter.  It has been active since 1999 and handles thousands of complaints each year.\r\n\r\nThe ICANN/WIPO processes require that a trademark is registered for the name that is in dispute.  So for example, when the estate of Jimi Hendrix took on a serial cyber squatter back in 2000, it had registered trademarks in the name of the deceased singer in various classes in the USA.  Cyber squatters have also lost out to Mick Jagger, Jethro Tull and others … but won over Sting because of the generic nature of his stage name. ICANN does not deal with website content so it is not the forum for disputes about rogue sites that contain content that is damaging to your brand.  This becomes a civil matter and the law applicable will depend on factors too complex to address here.  For example, in the UAE, you might approach this as a criminal matter if the content is considered to be highly defamatory and in contravention of the Penal Code.  Or it may be covered by the Cybercrimes Law 2012 which has a broad scope.  You need to address this sort of thing on a case by case basis with your legal representation.\r\n\r\n<strong>On a social media front, do companies have any legal power to shut down rogue accounts or take ownership of others? If so how and what are the challenges/benefits?</strong>\r\n\r\nMany companies have seen fake social media accounts spring up in their name – Delta Air Lines and Disney are both currently seeing fake pages circulating in their name and earlier this year, there was numerous fake car giveaways.  It appears likely that this is being undertaken in order to sell a popular page to a third party as part of another transaction – the ‘likes’ you give in order to win a car will become the ‘likes’ on a rebranded page.\r\n\r\nTaking down a fake page can be a difficult process and, as social media grows, we have seen the process change several times.\r\n\r\nSimilarly, taking ownership of a social media account that is not registered in your name can also take months and involves detailing the reason for the claim, which must be contained within signed statements (currently requiring a notary to witness the signature).\r\n\r\nThere is no question that you must ensure that that you create own and have full admin powers over all social media from the outset.\r\n\r\n<em>This article first appeared in the September 2015 Dubai World Trade Centre Newsletter and is reprinted with their kind permission. </em>\r\n\r\n<em>Al Tamimi &amp; Company’s TMT team regularly advises clients in respect of web development contracting, social media content take-downs, and related matters.  Our Intellectual Property team regularly advises on branding-related issues and domain name disputes. For further information, please contact Omar Obeidat, Partner, Intellectual Property (o.obeidat@tamimi.com) or Fiona Robertson, Senior Associate, TMT  (f.robertson@tamimi.com).</em>'),
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	(97271,5285,'content_description','The announcement last month that internet giant, Google, would rebrand itself as Alphabet – becoming a new holding company whose largest wholly owned subsidiary is Google – came as a surprise to many. \r\n'),
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	(97273,5285,'pageSummary','The announcement last month that internet giant, Google, would rebrand itself as Alphabet – becoming a new holding company whose largest wholly owned subsidiary is Google – came as a surprise to many.'),
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	(97234,5282,'_yoast_wpseo_metadesc','The court held that the irregularity or illegality of the administrative decision must be connected to substantive reasons for the management of the government body to be liable for compensation. Al Tamimi & Co. represented the Defendant in its successful appeal.'),
	(97235,5283,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nThis Dubai Court of Cassation applied this principle in a recent case involving the obligations of a party to a contract (the “Original Tenant”) under which it assigned its lease to another party who wished to take over the Original Tenant’s lease (the “New Tenant”).\r\n\r\n<strong>Background </strong>\r\n\r\nThe Original Tenant had agreed to assign its lease to the New Tenant. The Original Tenant’s obligations under the contract were limited to concluding an assignment of the lease in favor of the New Tenant. The contract did not require the Original Tenant to obtain an assignment or consent to an assignment from the landlord under the lease in favor of the New Tenant.\r\n\r\nThe New Tenant (the claimant in the court proceedings) sued the Original Tenant to terminate the contract and recover the amount of AED 220,000 that it had paid to the Original Tenant because the Original Tenant (the defendant) failed to fulfill its obligation to transfer the lease to the New Tenant.\r\n\r\n<strong>Court of First Instance</strong>\r\n\r\nThe Court of First Instance ordered that the contract be terminated and that the Original Tenant return the amount paid by the New Tenant with interest. The Original Tenant appealed.\r\n\r\n<strong>Court of Appeal </strong>\r\n\r\nThe primary ruling was upheld on appeal and the Original Tenant appealed again.\r\n\r\n<strong>Court of Cassation </strong>\r\n\r\nThe Original Tenant took exception to the Court of Appeal’s ruling on the following grounds:\r\n<ul>\r\n 	<li>The Court of Appeal upheld the primary ruling that the contract would be terminated and the award amount returned despite the contractual obligation to assign the leased premises, which the Original Tenant has proceeded to fulfill.</li>\r\n 	<li>The parties’ intention was that the Original Tenant’s obligation would entail transferring the lease and assigning the tenancy of the demised premises. The Original Tenant has fulfilled its obligations in this regard.</li>\r\n 	<li>The Original Tenant has performed the contract and there is no negligence on its part.</li>\r\n</ul>\r\nThe Court of Cassation dismissed the appeal on the basis that the Court of Appeal’s ruling was correct since, according to Article 246 of the Civil Transactions Law (Federal Law No. 5 of 1985), a contract shall be performed in accordance with its terms and in a manner consistent with the requirements of good faith. The contract shall not be restricted to an obligation upon the contracting party to do that which is expressly contained in it, but shall also embrace that which is appurtenant to it by virtue of the law, custom and the nature of the transaction.\r\n\r\nThe Court of Cassation held that the Court of Appeal, in exercising its discretion, correctly found that there was no express consent or assignment by the landlord with respect to the Original Tenant’s assignment in favor of the New Tenant. Further, the Court of Appeal had correctly concluded that the Original Tenant was in breach of contract because it did not refrain from concluding the assignment and transferring the rent to the New Tenant in order to obtain the landlord’s prior consent, even though the contract did not state that the Original Tenant must obtain the landlord’s consent.\r\n\r\n<strong>Significance of the Ruling</strong>\r\n\r\nThe Court of Cassation confirmed the principle that a contract should be performed in good faith and that the obligations of the contracting parties are not restricted to those expressly stated in the contract but extend to those that are appurtenant to it by virtue of the nature of the transaction.\r\n\r\nThe Court of Cassation further confirmed that a tenant shall, upon assigning its lease to another tenant, obtain the landlord’s prior consent to the assignment; otherwise the assignment contract may be terminated and the parties returned to the positions they occupied prior to entering into the contract (i.e. the original tenant/assignor shall return the amount paid and the new tenant/assignee shall surrender the leased premises if it passed into the new tenant’s possession). The Court found that this is a contractual requirement given the nature of the transaction notwithstanding any actual assignment by the original tenant or the absence of a provision in the contract requiring the original tenant to obtain the landlord’s prior consent.'),
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	(97241,5283,'pageSummary','Parties to contracts commonly believe that their obligations are restricted to those set out in their contract. However, the law also obliges them to perform the contract in accordance with the law and having regard to custom and the nature of the transaction involved.'),
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	(97251,5283,'_yoast_wpseo_metadesc','Parties to contracts commonly believe that their obligations are restricted to those set out in their contract. However, the law also obliges them to perform the contract in accordance with the law and having regard to custom and the nature of the transaction involved.'),
	(97252,5284,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nSimilarly, when entering into a facility agreement where one of the parties is in Qatar or where the contract is performed (party or totally) in Qatar, it is important to understand whether Qatari courts would uphold the parties’ choice of foreign law and foreign jurisdiction or arbitration or dismiss them in favor of Qatari laws and courts.\r\n\r\nIn principle, parties may validly elect to have the laws of another jurisdiction govern the terms of their facility agreement. A competent Qatari Court will likely uphold such a choice provided that the provisions of the chosen foreign law do not contravene public policy or morality in Qatar. However, applying a foreign law by a Qatari court can encounter challenges.  A party arguing in favor of the application of foreign law must produce a duly authenticated translation of the relevant laws of the foreign jurisdiction otherwise the local court will apply Qatari law. Producing an authenticated translation in a timely manner can be difficult particularly when the foreign governing law is an un-codified law (i.e. the English law). If such party fails to provide the authenticated translation, a Qatari court will apply Qatari law regardless of the parties’ agreement.\r\n\r\nWhilst the choice of foreign law is likely to be upheld in Qatar subject to the foregoing, Qatari courts will exercise jurisdiction notwithstanding the parties’ agreement to contract out of the Qatari courts’ jurisdiction by agreeing to submit disputes exclusively to the jurisdiction of another court.\r\n\r\nQatari courts have historically ignored and dismissed the parties’ agreements on foreign jurisdiction as a matter of public policy and retained jurisdiction over disputes filed before them. Most recently, on 25 June 2015 the Court of First Instance rendered a decision in Lawsuit No. 897 of 2014whereby it confirmed the principle that no parties shall have the right to disregard Qatari courts in favor of foreign jurisdictions (the Swiss courts in this case). In making its decision, the Court of First Instance relied upon previous Court of Cassation Judgments confirming that the jurisdictional issue is a matter related to public policy. As such, if the Qatari court finds itself competent to hear the case, the parties agreement to refer their dispute to foreign jurisdiction will not be upheld.\r\n\r\nThe approach of Qatari courts differs when it comes to the parties’ agreements to arbitrate rather than their agreement to resort to a foreign court. If the parties into a facility agreement agree on arbitration as the mean of solving disputes, a Qatari court would, in principle, defer the parties to arbitration if, at the first hearing, one of the parties raises an objection based on the arbitration clause and challenges the court’s jurisdiction.\r\n\r\nThe process of recognizing and enforcing a foreign judgment and a foreign arbitral award should also be taken into account when considering a dispute settlement provision in facility agreements.\r\n\r\nEnforcement of foreign judgments are subject to the principle of reciprocity recognized under Article 379 of the Code of Commercial and Civil Procedure and a Qatari court would require evidence that the competent court in the relevant foreign jurisdiction would enforce Qatari judgments. In addition to the reciprocity requirement, enforcement of a foreign judgment is subject to various other conditions set out in Article 380 of the Code of Commercial and Civil Procedure.\r\n\r\nSince Qatar had formally acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) on 30 December 2002, Qatari courts have confirmed that recognizing and enforcing a foreign arbitral award is subject to the terms of the New York Convention. Whilst recognition of a foreign arbitral award would be, in principle, subject to the same requirements set out under Article 380 for enforcement of foreign judgments, the principle of reciprocity does not come into play.  Furthermore, Qatari courts have been encouraging the enforcement of foreign arbitral award under the New York Convention.\r\n\r\nWith this approach of Qatari courts, parties entering into facilities agreements are recommended to either agree on the Qatari law as the governing law with Qatari court jurisdiction, or alternatively, select a foreign law and arbitration. Agreeing on a foreign law and a foreign jurisdiction entails the risk of having a Qatari court dismisses the dispute resolution clause in favor of Qatari courts.\r\n\r\n<em>A version of this article first appeared in the December 2015 edition of IFLR Magazine International Briefing Qatar.</em>\r\n<div></div>\r\n&nbsp;'),
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	(97228,5282,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/december-january-3/no-automatic-right-to-compensation-in-the-uae-for-illegal-administrative-decisions.html'),
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	(97226,5282,'pageSummary','In a recent judgment by the Abu Dhabi Court of Appeal (Appeal No. 29 of 2014 dated 30 June 2014), the court considered whether an administrative decision that was affected by procedural irregularities (which led to it being reversed) can be automatic grounds for compensation.'),
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	(97209,5281,'content_description','The Dubai Court of Cassation in a recent ruling (Property Appeal Case No 75 of 2015, dated 12 August 2015) set out an important principle on the jurisdictional approach to the consequences of waiving a plea before an Arbitral Tribunal regarding a precondition to arbitration.  '),
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	(97211,5281,'pageSummary','The Dubai Court of Cassation in a recent ruling (Property Appeal Case No 75 of 2015, dated 12 August 2015) set out an important principle on the jurisdictional approach to the consequences of waiving a plea before an Arbitral Tribunal regarding a precondition to arbitration.'),
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	(97219,5281,'_yoast_wpseo_metadesc','The Dubai Court of Cassation in a recent ruling (Property Appeal Case No 75 of 2015, dated 12 August 2015) set out an important principle on the jurisdictional approach to the consequences of waiving a plea before an Arbitral Tribunal regarding a precondition to arbitration.'),
	(97220,5282,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nThe court held that the irregularity or illegality of the administrative decision must be connected to substantive reasons for the management of the government body to be liable for compensation. Al Tamimi &amp; Co. represented the Defendant in its successful appeal.\r\n\r\n<strong>Background Facts</strong>\r\n\r\nThe context of the case was that of a government employee who had been issued with a warning and then a termination notice, but without the proper procedure having been followed. In the UAE government employees are not subject to the Labour Law, but are instead subject to the Civil Service Law.\r\n\r\nThe Claimant, a UAE national, had progressed through the ranks of a government affiliated financial institution, reaching a senior management level as Head of the Finance Department. Concerns were raised about her performance and she was placed under investigation and suspended from work. She was given a formal notice that she was to comply with the relevant regulations, and then following an investigation her employment was terminated.\r\n\r\n<strong>First Set of Proceedings</strong>\r\n\r\nThe Claimant filed proceedings before the Abu Dhabi Court seeking an order that the warning on her employment file be removed. Following her termination, she filed a further claim for an order that the decision to terminate her be reversed (cancelled) and compensation paid, on the basis that:\r\n<ul>\r\n 	<li>The reasons for the termination, even if correct, were not significant enough to warrant termination.</li>\r\n 	<li>There had not been a written investigation, as was mandated by the Civil Service Law.</li>\r\n 	<li>The decision to terminate was issued by a non-specialised person, in contravention of the Civil Service Law.</li>\r\n 	<li>The decision to terminate was made by the CEO, but he had not been appointed by the executive board, in contravention of the law establishing the government entity.</li>\r\n</ul>\r\n<strong>Court of First Instance</strong>\r\n\r\nDue to the nature of the case the Court of First Instance did not have jurisdiction and referred the issue that related to termination to the Court of Appeal.\r\n\r\n<strong>Court of Appeal</strong>\r\n\r\nThe Court of Appeal accepted the claim and ordered that.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nThe Court of Cassation upheld the findings of the Court of Appeal that the termination decisionwas to be cancelled on the basis that the government body’s management did not follow the correct legal procedure. The Court of Cassation however did state that although there was a procedural irregularity, had the proper procedure been followed it was clear that the Defendant would have reached the same decision (termination), and that the notices directed to the Claimant had been properly issued. Nonetheless, as a result of this ruling the Claimant was re-instated.\r\n\r\n<strong>Second Set of Proceedings</strong>\r\n\r\nFollowing the Court of Cassation judgment, the Claimant requested the Court of First Instance to order the Defendant to remove the related administrative investigation from her file and award her compensation for damages suffered as a result.\r\n\r\nAs regards her claim for damages, she argued amongst other things that she had suffered substantial damages after being suspended from work for 75 days; losing out on her bonus and pay increments; being ordered in a demeaning tone to leave her office immediately; not being allowed to defend herself during the investigation; and then being re-hired in a different role that jeopardized her social stability and caused her embarrassment among her peers and damage to her professional reputation.\r\n\r\n<strong>The Court of First Instance</strong>\r\n\r\nThe Court of First Instance appointed an expert to look into the issues, and as a result of the report ordered the Defendant to pay compensation of AED 500,000 for material and moral damages. The Defendant appealed. The Claimant also appealed, seeking an increased award of AED 10 million.\r\n\r\n<strong>The Court of Appeal</strong>\r\n\r\nThe Defendant argued that the Court of First Instance had erred because it awarded compensation for wrongful termination when in fact the decision to terminate had been made due to a procedural defect, which does not necessarily entitle the Claimant to compensation as per settled court practice. Furthermore, the damage had been rectified by reinstating the Claimant and paying her dues from the date of termination to the date of reinstatement.\r\n\r\nThe Court of Appeal held that it was clear from the Defendant’s investigation report that the formal notice was sent to the Claimant because the Claimant had adopted a hostile attitude towards her colleagues, had abused her powers by delaying certain financial transactions without justification, and had accused a colleague of tampering with financial documents. The notice was therefore properly served on her and so could not give rise to any claim for compensation.\r\n\r\nThe Court held that the claim for the bonus and increment was flawed because these were not entitlements, but subject to the Defendant’s discretion based on the performance of the employee being ‘good’. There was no evidence that the Claimant had fulfilled this criteria.\r\n\r\nFinally, the Court held that compensation for an illegal administrative decision is only awarded where there is evidence that the irregularities substantially tainted the decision and damage had been caused by it. Compensation is not necessarily awarded simply because the decision had been reversed. The Court of Cassation had previously held that in this case, although there was a procedural irregularity, had the proper procedure been followed it was clear that the Defendant would have reached the same decision (termination), and that the notices directed to the Claimant had been properly issued. The Court of First Instance was therefore wrong to have awarded compensation. Any damage had been rectified by the Defendant when it reinstated the Claimant and paid the outstanding salary amounts. There could be no claim for moral damages, since the cancellation of the termination had exonerated her and was the appropriate remedy.\r\n\r\nThe Court of Cassation subsequently upheld this judgment.\r\n\r\n<strong>Comment</strong>\r\n\r\nThis judgment highlights that termination for an illegal administrative decision does not in itself give grounds for compensation. Substantive irregularities will need to be shown, together with causation and damage. In this case, there was no reasonable basis to support the action claiming compensation from the government body’s management on the basis of a procedural illegality, even though the decision to terminate the claimant’s employment was reversed. It is believed that this is the first precedent on this issue from UAE Court of Cassation. Previously Egyptian High Court judgments had to be referred to.'),
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	(84012,4582,'content_description','In recent news, the widely discussed Law Amending the Press and Publications Law for the year 2012 (“Amendments”) to Jordan’s Press & Publications Law No. 8 of 1998 (“Press and Publications Law”) has been ratified.'),
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	(84032,4582,'_yoast_wpseo_metadesc','In recent news, the widely discussed Law Amending the Press and Publications Law for the year 2012 (“Amendments”) to Jordan’s Press & Publications Law No. 8 of 1998 (“Press and Publications Law”) has been ratified.'),
	(84033,4583,'content','<p><span>The ECJ ruled that the conclusion between parties of a user license agreement, accompanied by the transfer from the copyright holder to the customer of a computer program, for use for an unlimited period of time in exchange for a fee constituted a &ldquo;first sale&rdquo;. Hence, copyright holders of software in the European Union (EU) exhaust the right to control the sale of their copyrighted software when they first sell it, so long as the copyright holder is not able to use the licensed software after resale.</span><br /><br /><span>The case involved the software giant Oracle, and rival firm UsedSoft, which trades in &ldquo;used&rdquo; software licenses. Oracle distributes software online by licensing the software to customers. Once customers enter into a licensing agreement with Oracle, they have an unlimited right to download the software from Oracle\'s website and to install as many copies as specified in the licensing agreement. UsedSoft acts as a broker for used Oracle licenses, allowing Oracle customers who no longer need their licenses to resell those licenses to another firm.</span><br /><br /><span>The cause of action occurred when UsedSoft offered used Oracle licenses to customers allowing them to download Oracle software directly from Oracle&rsquo;s website. Customers who already possessed the Oracle software could go on to purchase licenses for additional users and then download the software to the workstations of those additional users. Oracle sued UsedSoft, arguing that UsedSoft was infringing on its copyright by facilitating the resale of its used licenses given that the software license agreement explicitly stated that the Oracle software licenses were non-transferable.</span><br /><br /><span>Ruling over questions referred to it from a German court, the ECJ determined that there was a valid transfer of property rights in Oracle&rsquo;s copyrighted software when customers downloaded a copy of the software and concluded with Oracle a user license agreement for an unlimited period of time. The court likened such a transaction to a &ldquo;first sale&rdquo; which exhausts the copyright owner&rsquo;s interest in the material object such that the one who buys the object is entitled to resell it. In other words, the ECJ held that resellers like UsedSoft are not bound by the terms of the license agreement prohibiting the resale of software when they obtain, for a fee, the right to use the software for an unlimited period of time.</span><br /><br /><span>The &ldquo;first sale&rdquo; doctrine was deemed applicable even though a copy of the Oracle software was downloaded straight from the internet in an intangible form. The ECJ held that in this instance, the doctrine is not restricted because there is no tangible copy changing hands. Hence, where the copyright holder makes available to his customer a copy - tangible or intangible &ndash; and at the same time concludes, in return for payment of a fee, a license agreement granting the customer the right to use that copy for an unlimited period, that right holder sells the copy to the customer and thus exhausts his exclusive distribution right.</span><br /><br /><span>Further, even though companies buying used licenses are considered as making a reproduction of the software when they download a copy of the software, such reproductions will be considered legitimate under the Court&rsquo;s ruling so long as the first acquirer, at the moment of resale, makes unusable any copy they had downloaded.&nbsp;</span><br /><br /><span>The ECJ does seem to make a distinction between selling a license and selling the right to use intellectual property. Under the Court&rsquo;s application of the law, &ldquo;[i]f the license acquired by the first acquirer relates to a greater number of users than he needs, that acquirer is not authorised by the effect of the exhaustion of the distribution right to divide the license and resell only part of it&rdquo;. Hence, the reseller is not allowed to split a multi-access license into different parts and subsequently allow it to be resold individually.</span><br /><br /><span>Although the rationale of the judgment does not apply to rented software, as the concept of copyright exhaustion only applies to software first &lsquo;sold&rsquo; within the EU, the ECJ decision has the potential to create a significant market for used software licenses in the EU. Software developers will now have to find other ways to protect their interests by reconsidering giving license users the right of use for an unlimited period of time.</span><br /><br /><strong>United Arab Emirates<br /><br /></strong><span>In the UAE, Federal Law No 7 of 2002 in Relation to the Rights of the Author and Neighboring Rights (Copyright Law), protects any creative work in the field of literature, or the arts, or the sciences, of whatever kind or manner of expression, or whatever its importance or purpose.&nbsp;</span><br /><br /><span>UAE Copyright Law, like the copyright laws of most nations, follows the Berne Convention. Article 12 of the UAE Copyright Law applies to computer software and protects it from unlicensed exploitation. Using, copying and downloading software, downloading materials from websites on the internet or distributing any material in any manner, for any purpose, commercial or personal, without the author\'s written permission constitutes copyright infringement with limited exceptions.</span><br /><br /><span>Further, under Article 13, any disposal by the author of the author&rsquo;s original copy of the work does not result in a transfer of the author&rsquo;s financial rights, unless otherwise agreed. Accordingly, under UAE law, software that is made available subject to a license agreement is protected by the provisions of that license agreement.</span><br /><br /><span>Although there is no precedent we can look to for guidance regarding the principle of copyright exhaustion in the UAE, we expect that software made available to a customer with a user license agreement will be governed by the terms of that license agreement, irrespective of whether the term of use is for an unlimited period of time. In the UAE, computer software is protected from unlicensed exploitation by the Copyright Law; hence transfer by the copyright holder to a customer of a copy of a computer program, accompanied by the conclusion between the same parties of a user license agreement means that the customer only has the right to use the software subject to the license agreement.</span><br /><br /><span>It is unlikely that the UAE courts will interpret the transaction described above as a &ldquo;first sale&rdquo; wherein the copyright holder is deemed to have exhausted their right to distribute the software once they execute, for a fee, an unlimited license agreement with a customer. However, even though the ECJ decision may not have an immediate impact on the Copyright Laws in the UAE, the decision sets an unanticipated international precedent with the potential to change how software licenses will be viewed going forward.</span><br /><br /><span>Al-Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team regularly handles issues relating to licensing of software in the region. For further information please contact David Yates at&nbsp;</span><a href=\"mailto:d.yates@tamimi.com\">d.yates@tamimi.com</a><span>&nbsp;or Sana Saleem at&nbsp;</span><a href=\"mailto:s.saleem@tamimi.com\">s.saleem@tamimi.com</a><span>.</span></p>'),
	(97178,5278,'pageSummary','Law No. 23 of 1986 relating to Private Hospitals (the “Private Hospitals Law”) has been repealed and replaced by the recently issued Legislative Decree No. 21 of 2015 relating to Private Health Institutions (the “New Law”).'),
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	(97182,5278,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Aysha Sanad'),
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	(97190,5278,'_yoast_wpseo_metadesc','Law No. 23 of 1986 relating to Private Hospitals has been repealed and replaced by the recently issued Legislative Decree No. 21 of 2015 relating to Private Health Institutions. Al Tamimi & Company highlights some of the main changes introduced by the New Law.'),
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	(97205,5281,'content','December 2015 - January 2016\r\n\r\n<hr />\r\n\r\nThe Court held that if an agreement provides that the parties are to attempt amicable settlement before referring the dispute to arbitration, but does not set out the specific steps that must be taken, the court will be unable to determine whether or not a settlement was pursued.\r\n\r\nFurthermore, if one of the parties proceeds to arbitration and the opposing party fails to raise an objection before the tribunal on the basis that attempts to reach an amicable settlement were not taken, this implies that the parties have failed to amicably resolve their dispute. The argument cannot then be raised later before the courts to have the award set aside.\r\n\r\n<strong>Summary of the Facts  and Procedural History </strong>\r\n\r\nThe Claimant purchased from the Respondent eleven units in a property development and ten parking spaces. A dispute arose from the sale and purchase agreement and the Claimant successfully brought a claim against the Respondent in an arbitration administered by DIAC. The Claimant then filed a claim before the Dubai Court of First Instance seeking to ratify the DIAC arbitral award.\r\n\r\nOn 28 May 2014 the Court of First Instance ratified the award.\r\n\r\nThe Respondent appealed to the Court of Appeal arguing that the arbitral award was void as the Claimant failed to seek an amicable settlement of the dispute prior to resorting to arbitration, as mandated in the sale and purchase agreement. On 24 December 2014, the Court of Appeal quashed the lower court’s judgment and declined to ratify the arbitral award on this basis.\r\n\r\nThe Claimant therefore appealed to the Cassation Court seeking to confirm the First Instance Court’s judgment upholding the award. The Court of Cassation overturned the Court of Appeal’s decision, and upheld the First Instance Court’s judgment ratifying the arbitral award.\r\n\r\n<strong>The Court of Cassation held that:</strong>\r\n\r\n<em>“.. the sale and purchase agreement provides no guidance as to what such amicable settlement entails and contains no material facts to enable the Court of First Instance to determine whether or not the settlement was pursued. Moreover, the parties proceeded with the arbitration without the Respondent ever pointing out before the arbitral tribunal that the Appellant had proceeded to arbitration directly without first attempting to reach an amicable settlement and use best endeavors to settle any dispute between the parties, as required by the sale and purchase agreement. This would indicate that the parties failed to amicably resolve their dispute. The Court of Appeal failed to take this approach and its decision is thus flawed and will be quashed.” </em>\r\n\r\n<strong>Conclusion </strong>\r\n\r\nIn this case, the Dubai Cassation Court established that if an agreement contains a general clause that mandates that the parties must attempt to resolve a dispute amicably before initiating arbitration, and do not offer any guidance on the process to be followed by the parties to amicably settle the dispute, then there is no specific test to determine with certainty whether or not such efforts to reach amicable settlement has taken place between parties.\r\n\r\nTherefore in such cases, if either party proceeds to arbitration directly this implies that settlement attempts have failed. A party that disputes this must raise such an objection before the arbitral tribunal. It cannot raise it before the court for the first time after the arbitral award has been issued.\r\n\r\nHowever the position followed by the Dubai Court of Cassation would appear to be different regarding dispute resolution clauses contained in construction contracts. For example, in Dubai Court of Cassation Commercial Appeal 53 of 2011 (dated 7 December 2011), it was held that if the parties have agreed that the dispute should be referred to a consulting engineer for assistance with amicably resolving the dispute before the commencement of arbitration, then neither party may commence arbitration before bringing the dispute before the consulting engineer. The burden of proving the fulfillment of such pre-conditions lies with the party requesting arbitration.\r\n\r\nTo conclude, any precondition with clearly-defined steps that must be taken before the commencement of arbitration must be followed otherwise the arbitration will be considered premature. Where there is a general clause (which only requires that an attempt be made at reaching an amicable settlement without specifying a particular method or procedure to be followed), the fact that a party has filed for arbitration itself indicates that settlement attempts have failed. It is up to the Respondent to then raise the issue to the Tribunal, failing which he cannot raise the issue on enforcement.'),
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	(97176,5278,'content_description','Law No. 23 of 1986 relating to Private Hospitals (the “Private Hospitals Law”) has been repealed and replaced by the recently issued Legislative Decree No. 21 of 2015 relating to Private Health Institutions (the “New Law”). '),
	(97175,5278,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(97174,5278,'lawUpdateArticleMonth','5256'),
	(97173,5278,'_content','field_59b649b5c8b2b'),
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	(97132,5275,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(97133,5275,'_yoast_wpseo_metadesc','This article provides a general overview of the property laws and regulations in Egypt and the rights of foreigners to own property.'),
	(97134,5276,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe most notable are in the areas of foreign direct investment in Kuwait and the reduction of minimum capital requirements for companies based on their respective legal forms. The forward-looking and strategic changes in the newly enacted legislation complement His Highness the Amir of Kuwait, Sheikh Sabah Al Ahmad’s Vision 2035. The Vision aims at transforming Kuwait into a financial and economic hub both in the region and globally. Not only will the new policies contribute in diversifying and invigorating the economy in Kuwait, but the overall human development as well. This is particularly important when it comes to access to a well-functioning healthcare system. This article will examine the structuring mechanisms and then the compliance/regulatory requirements for entering the healthcare sector in Kuwait.\r\n\r\n<strong>Structuring</strong>\r\n\r\nIn order to conduct business on-shore, Law No. 68 of 1980 of Kuwait (the “Commercial Law”) stipulates that a foreign entity must either appoint a Kuwaiti agent or participate in the ownership of a separate Kuwaiti legal entity. Pursuant to Law No. 25 of 2012 (the “Companies Law”) a legal entity may be in the form of a joint stock or shareholding company, a with limited liability company, a holding company or a sole proprietorship. Further Article 23 of the Commercial Law stipulates that a Kuwaiti entity must be established together with Kuwaiti partners who are required to own at least 51% percent of the capital of certain entities.\r\n\r\nIn an effort to promote establishing an entity in Kuwait, Ministerial Decision No. 234 of 2015 was instituted to reduce the minimum capital requirements to KD 1,000, subject to certain exceptions, for companies that fall in the category of general partnerships, limited partnerships, companies limited by shares, sole person companies and companies with limited liabilities; whereas the minimum capital for closed shareholding companies was reduced to KD 10,000; and for public shareholding companies to KD 25,000.\r\n\r\n<strong>FDI </strong>\r\n\r\nIn 2001 Kuwait passed the Foreign Direct Investment Law No. 8 of 2001 (the “FDI Law”) to encourage and secure direct foreign investment into the Kuwait market. The FDI Law was established as part of the Vision which seeks to transform Kuwait into a financial and commercial regional hub by diversifying the economy, reducing its dependence upon the oil industry and inviting the private sector to drive economic activities.\r\n\r\nThe FDI Law created an exception to the Commercial Law by allowing foreigners to own up to 100% of its equity capital in a commercial entity in Kuwait where the entity operates in select industrial sectors such as infrastructure, insurance, hospitals, housing, tourism and entertainment.\r\n\r\nUnder the FDI Law, foreign investors are incentivized to invest in Kuwait, including property incentives in the form of a land grant and a tax holiday for up to 10 years. These incentives are linked to the proportion of Kuwaiti nationals that are employed.\r\n\r\nIn line with the recent modernization of legislation in Kuwait, the Kuwait Foreign Investment Bureau (“KFIB”) and government officials sought to revise the FDI Law after discussing the various concerns with investors. Due to the critical need for change, the FDI Law was repealed and replaced by Foreign Direct Investment Law No. 116 of 2013 (the “New FDI Law”) in June 2013. The intent of the New FDI Law is to address flaws in the repealed FDI Law, encourage more direct investment in Kuwait and make it much easier for investors to obtain a licence.\r\n\r\nAs a starting point, the KFIB is replaced with the Kuwait Direct Investment Promotion Authority (“KDIPA”), which is essentially created with the same mandate as the KFIB. KDIPA will assume all assets and liabilities attributed to KFIB, which will be subsequently dissolved.\r\n\r\nIt should be noted that the New FDI Law is accompanied by executive regulations (the “Regulations”) which were introduced in December 2014. The New FDI Law became effective upon the issuance of the Regulations. The Regulations shed light on and provide further detail as to the implementation of the New FDI Law. To that end, there are a several improvements, which can already be seen in the New FDI Law.\r\n\r\n<strong>Compliance/Regulatory Requirements</strong>\r\n\r\nIn addition to the entity establishment rules under the relevant laws already referenced, and based on the Ministry of Commerce and Industry (“MOCI”) guidelines, the objectives of a company may require special licensing and regulatory approvals from the relevant ministries. Specifically, for healthcare services a licence is required from the Ministry of Health (the “MOH”).  Further, unless authorized by the MOCI, the MOCI does not allow for the combining of certain activities, even if the activities were stated in the companies memorandum of association. For example the sale and storage of medical equipment cannot be combined with certain specialized medical services. Notwithstanding the above, the practice of the MOH may change and certain exceptions may apply on a case by case basis. To that end, the MOH sets out specific guidelines which generally include submitting the relevant application to the MOH Medical Licence Department, obtaining approval from the Kuwait Municipality, Kuwait Fire Service Directorate Environment Public Authority, the Ministry of Interior, and final inspections from the MOH.\r\n\r\nAn important aspect to consider once all licensing and regulatory approvals are obtained, is employing manpower. The Law of Labour in the Private Sector No. 6 of 2010 (the “Labour Law”) stipulates that the Ministry of Social Affairs and Labour (“MOSAL”) shall be informed by the company regarding its need for manpower and MOSAL shall issue the relevant work permits for foreign manpower accordingly. For Kuwaiti nationals a work permit is not required. Kuwaiti nationals are encouraged to work in the private sector by receiving certain allowances and companies in each sector are required to hire a certain percentage of Kuwaiti nationals.\r\n\r\nBy way of example, consider the position of a local clinic in Kuwait which participates in a three month exchange program with foreign clinicians. The local clinic trains and certifies the participating residents in Kuwait in exchange for their knowledge and skill from their home countries. In order to implement this program, however, work permits and residence visas must be obtained for the foreign clinicians.  Pursuant to the Labour Law, the local clinic would act as the sponsor for these foreign clinicians in order to provide them with the necessary work permits and residence visas from MOSAL in order for them to legally work in Kuwait.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe population of the State of Kuwait is just under 3.5 million, with expatriates making up over half of the population.  In line with Vision 2035, healthcare is regarded as a compelling factor in the performance of the country. The new policies and laws described above have created greater opportunities for healthcare professionals, service planners, decision makers and medical researchers to enter the health care sector in Kuwait.'),
	(165733,5276,'core_values',''),
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	(97136,5276,'lawUpdateArticleMonth','5256'),
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	(97138,5276,'content_description','In 2015 the State of Kuwait codified a number of new and exciting laws. '),
	(97139,5276,'_content_description','field_59b641c07f473'),
	(97140,5276,'pageSummary','In 2015 the State of Kuwait codified a number of new and exciting laws.'),
	(97141,5276,'_pageSummary','field_59e59b307dec8'),
	(97142,5276,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/november-6/entering-the-healthcare-sector-in-kuwait.html'),
	(97143,5276,'_currentURL','field_59d35123ab1e7'),
	(97144,5276,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Esier Kim'),
	(97145,5276,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(97146,5276,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','e.kim@tamimi.com'),
	(97147,5276,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(97148,5276,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(97149,5276,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(97150,5276,'lawUpdateArticleNoWriters','1'),
	(97151,5276,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(97152,5276,'_yoast_wpseo_metadesc','In 2015 the State of Kuwait codified a number of new and exciting laws. Al Tamimi & Company examine the structuring mechanisms and then the compliance/regulatory requirements for entering the healthcare sector in Kuwait.'),
	(97153,5277,'content','November 2015\r\n\r\n<hr />\r\n\r\nFollowing the amendments executed recently in the Investment Law and the Companies’ Law, which have had a positive impact in terms of reassuring investors and attracting more investment to the Egyptian market, the Egyptian government has formed a new committee to help quickly settle investment disputes before reaching the courts.\r\n\r\nAs part of its former efforts to simplify the investment process and avoid potential disputes, the Egyptian government formed a ministerial committee to settle disputes related to investment contracts. However, this committee lacked sufficient legal powers to make effective decisions for the amicable settlement of such disputes. This has led to the issuing of a new decree to restructure the committee and provide it with more effective powers.\r\n\r\nThe Egyptian cabinet of ministers issued Decree Number 2432 on 8 September 2015 (the “Decree”), establishing the ministerial committee for the settlement of disputes of investment contracts. The committee is formed from a selection of senior state officials, ministers and representatives of sovereign entities. The committee is led by the Prime Minister and ministers of the economic group, the minister of international cooperation, the minister of justice, as well as representatives of the Egyptian armed forces and the administrative supervision authority. The Decree also allows for additional state officials to become members of the committee to observe and supervise topics, if so needed.\r\n\r\nThe committee is empowered to consider and settle disputes referred to it arising from investment contracts to which the state or governmental agencies are a party. The committee will attempt to reach an amicable settlement between the parties of those agreements in a manner that achieves economic equilibrium between the parties, on the basis of applicable laws and the preservation of public funds.\r\n\r\nThe Decree has granted the committee certain important new powers to resolve disputes on investment contracts, provided that the parties to those contracts consent to the settlement. These powers include the rescheduling of financial dues, the correction of the procedures taken to execute the relevant contract, as well as extending maturities, durations and deadlines stipulated in the contract. In fulfilling its purpose, the committee will hold sessions with the conflicting parties to discuss the subject of the dispute and the options acceptable to the parties, and will also consult technical experts specialised in the relevant matters at dispute.\r\n\r\nThe particular strength of the committee is its power to suggest amendments to the administrative contracts, thus providing the parties with the opportunity to avoid potential disputes and make acceptable amendments.\r\n\r\nThe Decree was enacted after the issuance of a number of decrees and regulations intended to reform the legislative system in Egypt and to assist in overcoming investment hurdles. This is another step in demonstrating the serious intentions of the Egyptian government to improve the investment climate in Egypt. This initiative should provide investors with a means of resolving potential disputes in an amicable manner while avoiding the costly and time-consuming involvement of the judiciary. Assisted by the important fact that some of Egypt’s most senior government decision makers are on the committee, the Decree is able to assist investors by allowing the committee to make appropriate amendments to investment contracts which need resolution of ambiguities or obstacles resulting from the way they were drawn up.\r\n\r\n<em>This article first appeared in the October 2015 edition of IFLR Magazine – International Briefing Egypt.</em>\r\n\r\n&nbsp;'),
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	(97155,5277,'lawUpdateArticleMonth','5256'),
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	(97157,5277,'content_description','The Egyptian government is making serious and continuing efforts to remove any obstacles facing investors and to resolve any issues they may face in their investments.'),
	(97158,5277,'_content_description','field_59b641c07f473'),
	(97159,5277,'pageSummary','The Egyptian government is making serious and continuing efforts to remove any obstacles facing investors and to resolve any issues they may face in their investments.'),
	(97160,5277,'_pageSummary','field_59e59b307dec8'),
	(97161,5277,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/november-6/egypt-new-committee-for-investment-contract-disputes.html'),
	(97162,5277,'_currentURL','field_59d35123ab1e7'),
	(97163,5277,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Hassane Hassan'),
	(97164,5277,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(97165,5277,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','h.hassan@tamimi.com'),
	(97166,5277,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(97167,5277,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(97168,5277,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(97169,5277,'lawUpdateArticleNoWriters','1'),
	(97170,5277,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(97171,5277,'_yoast_wpseo_metadesc','The Egyptian government is making serious and continuing efforts to remove any obstacles facing investors and to resolve any issues they may face in their investments.'),
	(97172,5278,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe changes introduced by New Law will cover licensing categorisations and requirements, operational standards and malpractice insurance requirements. The full effect of the New Law on the private healthcare sector is to be clarified upon the National Health Regulatory Authority (“NHRA”) issuing the required board resolutions detailing the requirements, procedures, and obligations of private health institutions’ licensing and operations.  However, this article aims to highlights some of the main changes introduced by the New Law.\r\n\r\n<strong>Wider Scope of Application</strong>\r\n\r\nBy introducing a change in the terminology, the New Law now relates to “private health institutions” as opposed to “private hospitals” only. The definition of “private health institutions” encompasses hospitals, specialised hospitals, medical centres and complexes, clinics, and alternative medical centres. As a result, the New Law has now captured all types of private healthcare practices, thereby widening the scope of its application and regulating a wider segment of the private healthcare industry.\r\n\r\n<strong>Classification and Licensing of Private Health Institutions</strong>\r\n\r\nThe New Law provides that the categorisation of private health institutions and the licensing requirement and procedures of each category shall be determined by resolution of the NHRA’s board of directors.  The New Law also introduces the concept of a “restricted licence” which would limit the scope of practice of the particular private health care institution when providing health care services.\r\n\r\nUnlike the previous licensing requirements and categorisations which were detailed in the Private Hospitals Law, the New Law has entrusted the NHRA with the task of detailing said categorisation and requirements from time to time. This provides the NHRA with the required flexibility to amend and add categorisations as it deems necessary to keep up with the pace of development in the healthcare sector and the evolution of medical services.\r\n\r\n<strong>Responsibility of Private Health Clinics Licence Holder</strong>\r\n\r\nThe New Law dictates that a private health clinic licence holder shall be the manager in charge of the technical and administrative functions of the clinic. Moreover, the NHRA board of directors shall issue the necessary decisions determining the procedures and regulations to be abided by in the event that the licensee is substituted or is unable to perform his duties. As such, the New Law aims to ensure that, whilst responsibility for the private health clinic will at all times be vested in the licence holder, measures will be put in place in the event of his absence in order to guarantee that the level of medical services provided is not compromised.\r\n\r\n<strong>Operational Aspects</strong>\r\n\r\n<strong>Premises Requirements     </strong>\r\n\r\nArticle (12) of the New Law requires that any private health institution establishment or site should be easily accessible and fully equipped with health and safety services.  The specifics regarding the premises requirements will be further detailed in the NHRA board of directors’ resolution yet to be issued. Further, any modifications or extensions made to the private health institution’s premises shall be subject to the NHRA’s approval.\r\n\r\n<strong>Malpractice and Professional Liability Insurance</strong>\r\n\r\nAccording to Article (16) of the New Law, the NHRA shall specify the malpractice insurance requirements to be fulfilled by a private health institution to insure against professional errors, or errors made by any of the medical, technical, or nursing staff in the institution.\r\n\r\n<strong>Advertising Standard</strong>\r\n\r\nWhilst the advertising standard introduced is quite generic, Article (18) of the New Law prohibits private health institutions from advertising in a manner conflicting with the New Law or which is contrary to the morals and customs of the medical profession and medical services provided.\r\n\r\n<strong>Supervision of Private Health Institutions   </strong>\r\n\r\nThe most prominent changes introduced by the New Law relate to the wider supervision and establishment powers afforded to the NHRA as well as increased accountability of private health institutions and professionals.  Given the competitive landscape of the private healthcare sector in Bahrain and the importance of reputation within the sector, the tight controls described below are expected to significantly increase the quality of the medical services delivered in Bahrain.\r\n\r\n<strong>NHRA Quality Assessment and Control </strong>\r\n\r\nArticle (19) of the New Law entrusts the NHRA with the duty to monitor the quality of medical services provided by private health institutions. Generally, the NHRA shall review and assess the quality of the medical services provided by the private health institution in accordance with the quality standards and key performance indicators issued by the NHRA board of directors’ decisions from time to time. These standards are usually in line with the international medical standards.\r\n\r\nThe NHRA shall perform a general and thorough review and assess the performance and quality of the medical services provided by private health institution in accordance with the action plan set by the NHRA board of directors. The NHRA shall report the results to the private health institution who is subject of the review and provide it with its recommendations. Further, the reports shall be approved by the Council of Ministers, which may order the publication of the reports to ensure that they are readily available to the public. <strong> </strong>\r\n\r\n<strong>Inspection and Judicial Officer </strong>\r\n\r\nArticle (20) of the New Law widens the inspection powers of the inspectors authorized by the NHRA’s CEO to inspect and monitor private health institutions’ compliance with the applicable laws and regulations. Powers of those judicial officers now include the power to review files, medical records, documents, charts and all other required information available at the private health institution and may obtain any copy of the relevant information. The inspectors also have the power to hear any testimonies made by employees subject to any administrative investigation. NHRA officials who are appointed as judicial officers by the Minister of Justice shall exercise such role in relation to criminal acts specified in the New Law.\r\n\r\n<strong>Establishment of the Accountability Committee </strong>\r\n\r\nIn a step to tighten controls on the healthcare practice and ensure compliance with professional standards, the New Law further provides for the establishment of the “Accountability Committee”. According to Article (22), this committee is entrusted with monitoring private health institutions and imposing the necessary sanctions required in relation to any breach of the New Law. The Accountability Committee is intended to be an independent and impartial committee separate from the licensing committee.  To be formed by a ministerial decision, the Accountability Committee is to comprise of three members: a judge from the High Civil Court of Appeal assigned by the Supreme Judicial Council to chair the committee, a member representing the NHRA and a member representing the Bahrain Medical Society.\r\n\r\nFurthermore, if the private health institution violates any of its licence conditions, the Accountability Committee is empowered to suspend or withdraw the private healthcare institution’s licence, impose a daily fine (not exceeding 1,000 BHD for first time offences and BHD 2,000 from repeated offence with a given three year period) to induce compliance and/or impose a fine not exceeding BHD 20,000.\r\n\r\n<strong>Emergency Measures</strong>\r\n\r\nThe New Law empowers the Accountability Committee – upon request from the NHRA’s CEO - to take emergency enforcement measures to ensure the safety and security of patients. Those emergency measures may include a decision to suspend the services provided by the private health institution for a period not more than three months.\r\n\r\n<strong>Penalities</strong>\r\n\r\nThe New Law provides for new and more stringent penalties which include imprisonments and heavy fines. For example, any illegal act undertaken by the applicant in the process of obtaining a licence shall be punishable, under Article (25) of the New Law, by imprisonment for a period not exceeding one year and a fine not less than BHD 1,000 and not exceeding BHD 20,000. Further, and without prejudice to the criminal liability of natural persons, the New Law provides that any corporate entity in whose name any of the criminal acts detailed in this law are committed shall be subject to twice the amount of fines decided.\r\n\r\n<strong>Leniency Measures for First Time Offenders   </strong>\r\n\r\nThe New Law introduces a new measure to settle violations without the need to impose the above mentioned penalties. According to Article (27) of the New Law, a first time offender may pay the minimum fine determined by the New Law for the violation committed without recourse to imprisonment, provided that the fine is paid within seven days from the day that he has been presented with the fine. In the event that such payment is made within the prescribed time limit, the criminal penalties willl not be imposed. As such, first time offenders are able to avoid criminal lability and its effects.'),
