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	(87024,4736,'pageSummary','As the countdown clock to the immovable 2022 FIFA World Cup deadline ticks ever louder, the expansion and diversification of Qatar’s construction industry continues apace.'),
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	(87028,4736,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sarah Kelly'),
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	(87041,4737,'content','June 2013\r\n\r\n<hr />\r\n\r\nIn the normal course of events the seller of a cargo (‘the shipper’) delivers the cargo to the sea carrier at the port of loading, and the sea carrier issues a bill of lading to the shipper. The shipper  then sends the original bill to the buyer of the cargo (‘consignee’). The consignee presents the original bill to the carrier, at the port of unloading, who in return issues a delivery order to enable the consignee to collect the cargo from the port.\r\n\r\nSometimes this process is done through a ‘forwarder’ who works as a mediator between the cargo interests (the shipper and the consignee) on one side and the sea carrier on the other. The forwarder is deemed to be the carrier in terms of its relationship with the cargo interests and it can issue what are known as ‘house bills of lading’ against receiving the cargo from the shipper. It will also often receive the original bill of lading from the sea carrier.\r\n\r\n<strong>Fraudulent bills of lading </strong>\r\n\r\nUnfortunately the complicated process involved in shipping cargo and the number of entities involved can be taken advantage of by fraudsters. One way in which they seek to do so is by creating fraudulent bills of lading. These cover theft of cargo through forged documents; theft of cargo through other fraudulent means; and the improper use of documents.\r\n\r\n<strong>1. Theft of cargo through forged documents:</strong>\r\n\r\nIn this instance, the fraudster fabricates a bill of lading in an attempt to impersonate the consignee, and so receives the cargo from the carrier. When the bill is issued in favour of the bearer (i.e. not to a specific person) the fraudster may try to obtain and fabricate the bill so as to claim the right of delivery. When the bill is ‘to order’ (i.e. in the name of a specific person and transferable) he might fabricate the bill and an endorsement from the consignee to himself. When the rightful consignee asks the carrier for the delivery of the cargo and presents the original bill, the carrier will explain that it delivered the cargo against genuine original bills, having already been duped by the counterfeit bill presented by the fraudster.\r\n\r\nThe courts in the UAE always consider that the carrier controls the form, signature and issuance of the bills of lading and so is best placed to prevent delivery of cargo against production of fraudulent bills (although the courts do acknowledge that it is common for carriers to delegate these functions to their agents). The carrier will usually therefore be liable to the consignee for the loss of the cargo.\r\n\r\nHow to avoid this kind of forgery?  Here are four possible ways:\r\n\r\ni. Up to date copy of the bills of lading:  the carrier needs something to compare potential fakes with. It is difficult for the fraudster to keep up with changes in the bill of lading, so by reissuing the bills with updates fraudsters will be caught out.\r\n\r\nii. Making sure that the bill is printed on the right paper. Colour, density, and even texture should be checked. If the paper doesn’t match up, then you are likely dealing with a fake.\r\n\r\niii. Making sure there are no obvious spelling mistakes. A lot of faked bills are not standardized documents, and are not seen by as many sets of eyes as the real bill. That means fewer people have reviewed them to notice errors and spelling mistakes can often be found.\r\n\r\niv. Watermark: This is a very helpful way to check the authenticity of the bill. If the original bill has a watermark, then the bill which is presented on delivery should also carry the watermark.\r\n\r\n<strong>2. Thefts of cargo through other fraudulent means</strong>\r\n\r\nOther fraudulent methods used by criminals can involve conspiracies between the consignee and the forwarder.\r\n\r\nFor example, a shipper enters into a sales agreement with a consignee for the sale of certain cargo. The condition of payment is documents against payment whereby the consignee’s banker should deliver the documents of the shipments, including the house bills of lading issued by the forwarder, against the payment of the price of the shipment.\r\n\r\nThe shipper has delivered the cargo to the forwarder and the latter issues the house bills of lading. In return the forwarder receives the bill of lading from the sea carrier and keeps it. The consignee has not paid the price of the cargo, so the bank has not delivered the house original bills to it.\r\n\r\nHowever, the forwarder presents the sea carrier’s bills to the sea carrier’s agent and obtains the delivery orders. The forwarder then gives these to the consignee who then presents them to receive the cargo without presenting the original house bills of lading. This results in the consignee receiving the cargo without making payment to the shipper.\r\n\r\nHow to avoid this kind of fraud? Avoid relying on two bills of lading when delivering cargo against documents. If possible, rely on the ocean bill of lading rather than the house bill issued by the forwarder.\r\n\r\n<strong>3. Improper use of documents</strong>\r\n\r\nIn some instances, the carrier and the shipper misuse the bill of lading and the victim here could be the consignee or the authorities. Examples include:\r\n\r\ni. Mis-dating: this is a manipulation of the date when the cargo was loaded onto the ship. Pre-dating a bill by more than a day constitutes fraud. Any damage to the cargo will then not be attributed to the long-time voyage, also sometimes the shippers want to fulfill the timing obligations under the letter of credit.\r\n\r\nii. Incorrect description of cargo: this may be an incorrect description of the quality, quantity, or condition of the cargo onboard. The most common “mistake” is declaring the cargo ‘clean on board’, meaning undamaged, when the cargo is in fact damaged.\r\n\r\niii. Under deck bills of lading for cargo shipped on deck: cargo claimed as “shipped under deck”, when they were actually shipped above decks. Cargo on deck is more exposed to the elements and so is less good for sensitive cargo.\r\n\r\niv. Incorrect port of loading: the bill shows the wrong port of loading for the cargo. Mostly this is used to avoid boycotts, import quotas, and other restrictions on trade between specific countries, and usually happens at waypoints along the transit route.\r\n\r\nv. Inaccuracy in the particulars of the cargo: sometimes the shipper gives false particulars of the cargo as the exact weight so as to defraud the consignee. The shipper can however be held liable for any inaccuracy in the particulars provided by him concerning the cargo and which have been written on the bill. If the weight provided is less than the actual weight, the shipper will be responsible for this even if it occurred by an accident that took place during the loading and unloading operations. Also, the carrier will not be responsible for loss or damage sustained by the cargo if the shipper has deliberately stated false particulars on the bill of lading relating to the nature or value of the cargo.\r\n\r\nHow to notice and avoid the improper use of documents?  Check the other documents of the shipment to ascertain the correct dates and information (for example, the mates receipt; survey report; and legalized certificate of origin which will state the exact port of loading).\r\n\r\nUnfortunately the presence of fraudsters during the shipping process can never be removed, but as explained above there are a number of ways to detect and avoid them, and parties involved must remain vigilant at all times.'),
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	(87051,4737,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Mohammad El Hawawy'),
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	(87059,4737,'_yoast_wpseo_metadesc','The ‘bill of lading’ is a formal document that serves as a receipt for cargo being transported by a sea carrier. The bill represents the cargo and the legitimate holder of the bill has the right to receive the cargo upon its delivery.'),
	(87060,4738,'content','June 2013\r\n\r\n<hr />\r\n\r\nBefore discovering his interest in the law, Chris followed his passion for languages and studied German at university before moving to live in Germany for two years.  Fluent in German but still seeking his ideal ‘interesting and challenging’ career, Chris moved back home to New Zealand where a conversation with a family friend set him on his first step towards the legal profession.\r\n\r\n“Growing up, my mother worked at a law firm and so I got to know a number of lawyers socially through my parents” says Chris.  This particular family friend was a lawyer and someone Chris had a ‘great respect’ for, as well as admiring his integrity and the passion with which he shared his knowledge of the law.  Enthused with a new focus, Chris returned to university to study a law degree and was proudly admitted to practice in the High Court of New Zealand in 1992.\r\n\r\nA boutique litigation firm in Christchurch is where Chris began his legal career and he has not-so-fond memories of staying up all night preparing for usually hopeless criminal cases.  It was usually not difficult to see quite quickly which way the judge was thinking despite Chris’s brilliant legal arguments!  This saw a stirring of interest in the commercial, non-contentious side of law, especially what was known then as “Computer Law”.    Also, times were changing and the commercialisation of the internet and the evolution of the World Wide Web that came with it, piqued Chris’ interest in the technology side of law and intellectual property.  This saw him move to another firm in New Zealand, Philips Fox, where he was able to pursue his interest in this new and rapidly developing area of law.\r\n\r\nAfter using this big firm experience to best advantage, working under two of New Zealand’s top technology lawyers, Chris then moved across the Tasman Sea to join Australian magic circle firm Clayton Utz.  Again working under recognised TMT and IP lawyers, Chris gained the expertise that was to lead him being offered a position with Linklaters in Hong Kong – a country experiencing exponential growth in the technology sector at the time and in the full throes of the ‘dot-com bubble’.  Unfortunately the ‘Tech Wreck’ of the early 2000s saw the dotcom stock market collapse and work dried up for TMT lawyers – “the bubble” as Chris states, “had well and truly burst”.\r\n\r\nChris returned to his old firm Clayton Utz in Australia and for the next five years focused on large scale government IT/IP work advising heavy users of IT services including the Australian Department of Defence and Department of Immigration.  However, the desire to travel remained and an offer in 2007 saw Chris pack up and move to the Middle East.  He spent three years in Dubai as Partner and Head of TMT at an international law firm before moving to Qatar to join a Qatari firm.  Chris also spent time on secondment to Dell and Vodafone Qatar.\r\n\r\nChris looks back on his Qatar experience fondly and remembers it as a happy time both professionally and personally.  During this time he and his wife Julia also welcomed the arrival of their first son, Anthony.  “Having children changes your priorities in life” says Chris and so he and Julia began thinking about where in the world they would like to settle to raise their family.\r\n\r\n“The role at Al Tamimi came at a ‘perfect’ time”, Chris says with a smile.   “Professionally this was a great opportunity for me and the chance to head the TMT team at the largest firm in the region was one I couldn’t turn down.”  The move to Dubai was also one he felt was right for his young family.  “I spent three years in Dubai previously and loved the city.  Dubai is a great place for kids and has so many facilities for families.”  With their decision made, Chris, Julia and two year old Anthony moved to Dubai – to be joined a mere four weeks later by the arrival of their second son, Daniel.  “To say it was a busy time is an understatement,” laughs Chris.\r\n\r\nWith over a month in his new role now under his belt, Chris is convinced that his move to Al Tamimi was the right move.  “It really is an honour to head a team of such talented individuals and I am genuinely excited to take on the challenge of growing and leading the TMT team.”'),
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	(87064,4738,'content_description','With over 20 years’ experience in Technology, Media & Telecommunications law that has seen him travel from New Zealand to Hong Kong to Qatar, Chris Appleby settles in Dubai to take on his latest challenge - the role of Regional Head of TMT at Al Tamimi & Company.'),
	(87065,4738,'_content_description','field_59b641c07f473'),
	(87066,4738,'pageSummary','With over 20 years’ experience in Technology, Media &amp; Telecommunications law that has seen him travel from New Zealand to Hong Kong to Qatar, Chris Appleby settles in Dubai to take on his latest challenge - the role of Regional Head of TMT at Al Tamimi &amp; Company.'),
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	(87070,4738,'_yoast_wpseo_metadesc','With over 20 years’ experience in Technology, Media & Telecommunications law that has seen him travel from New Zealand to Hong Kong to Qatar, Chris Appleby settles in Dubai to take on his latest challenge - the role of Regional Head of TMT at Al Tamimi & Company.'),
	(87071,4739,'content','June 2013\r\n\r\n<hr />\r\n\r\nWith significant growth in Libya expected this year, it is anticipated that brand owners will have to revisit their trademark protection strategies for this growing North African economy sooner, rather than later.\r\n\r\nAs widely reported, the Libyan Trademarks Office recently resumed its services and is now accepting requests for trade mark searches, as well as new trademark applications after being closed for almost two years.\r\n\r\nDuring the period 2009 to 2011, a number of changes took place in respect of the protection of trade marks in Libya which are worth revisiting in light of anticipated new interest in the protection of valuable trade mark assets in this jurisdiction:\r\n\r\n<strong>Classification of Goods and Services</strong>\r\n\r\nWith respect to the classification of goods and services the eighth edition of the International Classification of Goods and Services is followed, with the exception that trademarks cannot be protected in respect of goods in class 33, alcoholic beverages in class 32 and certain Christmas related goods included in class 28.\r\n\r\nIt is also important to note that “veterinary apparatus and instruments” were added to Class 10 and as alluded to above, “decorations for Christmas trees and related products” were removed from Class 28.\r\n\r\n<strong>New TradeMark Law</strong>\r\n\r\nBack in 2010 a new trade mark law was published replacing the Law No. 40 of 1956, but the implementing regulations to this law have not been issued.  The new law included the following important developments:\r\n<ul>\r\n 	<li>broadening the definition of trade marks to include trade names, sound marks and colour marks;</li>\r\n 	<li>affording protection to trademarks that are well known in Libya, even if they are not registered in Libya; and</li>\r\n 	<li>imposing penalties of imprisonment of up to two years and fines of up to US$7,500 in respect of trade mark infringement.</li>\r\n</ul>\r\n<strong>Trademark Filing Requirements</strong>\r\n\r\nThe documents required in respect of a trademark application are (i) a Power of Attorney incorporating an Arabic translation and (ii) a certified copy of the Incorporation Certificate of the applicant – both duly legalized up to Libyan Consulate.  Importantly, a copy of a home or foreign registration certificate is no longer required.\r\n\r\nIf you require any assistance with respect to the prosecution of trade marks in Libya, please contact Mohammed Ali at m.ali@tamimi.com.'),
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	(87075,4739,'content_description','In an article entitled “The IMF releases its latest world economic forecasts – Libya good in short term, but needs reform in long term” the Libya Herald reported on 16 April 2013 that “The IMF confirmed its forecasts on Libya of 20.2 percent GDP growth in real terms for 2013…”  '),
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	(87077,4739,'pageSummary','In an article entitled “The IMF releases its latest world economic forecasts – Libya good in short term, but needs reform in long term” the Libya Herald reported on 16 April 2013 that “The IMF confirmed its forecasts on Libya of 20.2 percent GDP growth in real terms for 2013…”'),
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	(87081,4739,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Valerie Rodrigues'),
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	(87093,4739,'_yoast_wpseo_metadesc','In an article entitled “The IMF releases its latest world economic forecasts – Libya good in short term, but needs reform in long term” the Libya Herald reported on 16 April 2013 that “The IMF confirmed its forecasts on Libya of 20.2 percent GDP growth in real terms for 2013…”'),
	(87094,4740,'content','June 2013\r\n\r\n<hr />\r\n\r\nConsequently, any international application filed on or after 3 August 2013 will automatically include the designation of Saudi Arabia.\r\n\r\nGiven that Saudi Arabia will be bound by Chapter II of the PCT, it will automatically be elected in any demand filed in respect of an international application filed on or after 3 August 2013. Furthermore, nationals and residents of Saudi Arabia will be entitled, as from 3 August 2013, to file international applications under the PCT.\r\n\r\n<strong>Patent Cooperation Treaty (“PCT”) </strong>\r\n\r\nThe World Intellectual Property Organization’s Patent Cooperation Treaty (PCT) provides the means to facilitate the filing and protection of patents internationally. In 2011 alone, more than 181,000 international patent applications were filed under the PCT.\r\n\r\nThis is the most international of patent applications one can file where a single filing can secure an effective filing date in all of its member countries. Its membership comprises a large number of countries and the list continues to grow.\r\n\r\nSaudi Arabia joins a growing list of PCT contracting states which in 2013 number 147 countries including numerous countries in the region such as:-\r\n<ul>\r\n 	<li>UAE</li>\r\n 	<li>Qatar</li>\r\n 	<li>Oman</li>\r\n 	<li>Bahrain</li>\r\n 	<li>Algeria</li>\r\n 	<li>Egypt</li>\r\n 	<li>Libya</li>\r\n 	<li>Morocco</li>\r\n 	<li>Syria</li>\r\n 	<li>Sudan</li>\r\n 	<li>Tunisia</li>\r\n</ul>\r\nThe PCT patent application filing system includes two phases –\r\n\r\n<strong>1. International Phase</strong>\r\n\r\nThe international application is filed and an International Search Authority undertakes an international search whereupon a search report containing citations of relevant prior art and a written opinion on the patentability of the invention is produced. The application is published as an International Publication and the applicant has an option whether to undertake international preliminary examination of an application.\r\n\r\n<strong>2. National Phase</strong>\r\n\r\nThe national phase application is effectively filed at the various countries in which the applicant is ultimately seeking patent protection in and it is at this stage that the application is substantively examined and a decision taken to grant a patent is made.'),
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	(87098,4740,'content_description','On 3 May 2013, Saudi Arabia deposited its instrument of accession to the PCT (the Patent Cooperation Treaty), thus becoming the 147th Contracting State of the PCT, and will on 3 August 2013 become bound by the PCT. '),
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	(87100,4740,'pageSummary','On 3 May 2013, Saudi Arabia deposited its instrument of accession to the PCT (the Patent Cooperation Treaty), thus becoming the 147th Contracting State of the PCT, and will on 3 August 2013 become bound by the PCT.'),
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	(87112,4740,'_yoast_wpseo_metadesc','On 3 May 2013, Saudi Arabia deposited its instrument of accession to the PCT (the Patent Cooperation Treaty), thus becoming the 147th Contracting State of the PCT, and will on 3 August 2013 become bound by the PCT.'),
	(87113,4741,'content','June 2013\r\n\r\nIn an article published on 2 May 2013 in the Gulf News, Mr. Hamad Buamim, the Director General of Dubai Chamber of Commerce &amp; Industry was quoted as saying during the Africa Global Business Forum 2013 that:\r\n\r\n“Over the past decade, Dubai’s non-oil trade with Africa increased by 700 per cent from Dh10.6 billion in 2002 to Dh84.8 billion by 2011…”\r\n\r\nMr. Hamad Buamim was further quote in this same article as saying that “Over the next few years Dubai Chamber will target Africa to encourage more trade and investment flows…”\r\n\r\nTrade between Africa and Dubai, (and arguably the wider Middle Eastern region) appears to have increased significantly over the past number of years and as highlighted by the statement by Mr Hamad Buamin, should be expected to continue to do so.  Given the potential importance of African markets to local and regional companies, the importance of the proper protection of valuable trade marks cannot be overstated.\r\n\r\nThe African Intellectual Property Organization, widely known by its French acronym as “OAPI” was created by The Bangui Agreement of 2 March 1977 to promote:\r\n<ul>\r\n 	<li>Economic and social development;</li>\r\n 	<li>Harmonization of laws affecting inventiveness; and</li>\r\n 	<li>Cooperation among the member states.</li>\r\n</ul>\r\nOAPI provides for a centralized intellectual property registration system extending the protection of a single OAPI trade mark registration to all member state. Until recently, the member states were:\r\n\r\nBenin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Ivory Coast, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal and Togo.\r\n\r\nOAPI is responsible for implementing and applying common administrative procedures, contributing towards the promotion of literary and artistic expression and protecting intellectual property rights, encouraging copyright bodies in member states and centralizing and coordinating information of all kinds relating to the protection of patents, trade marks, literary and artistic properties.\r\n\r\nOAPI operates under a common system of protection of intellectual property, which is characterized by uniform legislation applicable in each member state and by centralizing procedures at the Organization. The Bangui Agreement enables an intellectual property owner to have his/her intellectual property rights protected in all member states through a single application before the OAPI administrative body, which is considered as a national filing for each member state.  The Bangui Agreement now governs:\r\n<ul>\r\n 	<li>Patents</li>\r\n 	<li>Utility Models</li>\r\n 	<li>Trade Marks and Service Marks</li>\r\n 	<li>Industrial Designs</li>\r\n 	<li>Trade Names</li>\r\n 	<li>Geographical Indications</li>\r\n 	<li>Layout Designs of Integrated Circuits</li>\r\n 	<li>New Plant Varieties</li>\r\n 	<li>Literary and Artistic Works</li>\r\n</ul>\r\nAs per the Bangui Agreement an OAPI member country cannot accept new national applications to register the above rights as these should be protected in terms of the centralized system of OAPI.\r\n\r\nOn 25 May 2013 the Union of the Comoros became a full member of OAPI, meaning with respect to trade marks for example that a trade mark application filed with OAPI from this date onwards will extend protection of that trade mark to the Union of the Comoros.  The protection of trade marks that were registered with OAPI prior to 25 May 2013 will extend to the Union of the Comoros automatically upon their renewal and where such extension is desired prior to renewal, there is an extension process that can be followed to do so.\r\n\r\nFor any assistance in respect of registration of intellectual property rights in the member states of OAPI, please contact Mohammed Ali at m.ali@tamimi.com.'),
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	(87117,4741,'content_description','Comoros becomes the 17th OAPI member state'),
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	(87146,4744,'content','July - August 2013\r\n\r\n<hr />\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe claimants (two individuals) and the respondent (a real estate company) entered into a purchase agreement for 16 real estate units. They agreed on December 2007 as the completion date for the project. Due to the respondent’s delay in handing over the units, the claimant initiated legal action before DIAC seeking the termination of the purchase agreement and a refund of the amount paid.\r\n\r\nThe arbitration tribunal rendered an award terminating the agreement and ordering the respondent to refund the amount paid for the purchase price with interest and arbitration costs. The claimants initiated legal action against the respondent before the Dubai Court of First Instance seeking ratification of the DIAC arbitral award.\r\n\r\nThe respondent filed a counterclaim before the Dubai Court of First Instance seeking to set aside the arbitral award on the grounds that the person who signed the arbitration deed (terms of reference) and who attended the arbitration proceedings on behalf of the respondent was not legally authorized.\r\n\r\n<strong>Procedural History</strong>\r\n\r\nThe Dubai Court of First Instance ratified the arbitral award and dismissed the counterclaim. The respondent appealed to the Dubai Court of Appeal which upheld the lower court’s decision. The respondent appealed to the Dubai Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nThe respondent argued that the Court of Appeal erred in the application of the law and breached the principle of equality of arms by disregarding the respondent’s plea in respect to the lack of legal capacity of the person who represented the respondent during the arbitration proceedings. The representative had not presented any documentation proving his entitlement to attend the arbitration proceedings on behalf of the respondent.\r\n\r\nThe Cassation Court rejected this and upheld the appealed judgment on the following basis:\r\n<ol>\r\n 	<li>Pursuant to Article 212 of the UAE Civil Procedures Law, the general rule is that arbitrators are not bound by the procedural rules followed by the UAE courts save for those provided in the arbitration chapter of the Civil Procedures Law (and any specific procedures agreed upon between the parties for the arbitrator to follow). The arbitrator must respect the principle of equality of arms by allowing each party to submit its pleas and memos and to ensure procedures are followed in respect of notifying the parties to arbitration of the dates of the hearing scheduled for each party to furnish its evidence.</li>\r\n 	<li>It is not essential that the parties to the arbitration attend the arbitration proceedings themselves. However it is enough that they authorize those who will attend on their behalf to submit the parties’ pleas and memos. The representative does not need to be a lawyer nor is it necessary that the power of attorney be an official document. The authorization may be explicit or it may be implicit. Whether the representative is sufficiently authorised is an issue to be determined at the discretion of the court of substance (in this case the arbitration tribunal).</li>\r\n 	<li>The grounds upon which a domestic arbitral award can be annulled are set out in article 216 of the Civil Procedures Law and may not be added to. they relate to irregularities either in the arbitration agreement or the arbitration proceedings These grounds allow for an award to be annulled if:\r\nthe award was issued by arbitrators appointed otherwise than in accordance with the law\r\nthe award was issued by some of the arbitrators without their being authorized to make an award in the absence of the others\r\nthe award was issued on the basis of an arbitration instrument that does not specify the subject matter of the dispute\r\nthe award was issued by a person not having capacity to make an arbitration agreement or an arbitrator not satisfying the requirements of the law;\r\nthere is a nullity in the award or a nullity in the proceedings having an effect on the award.</li>\r\n 	<li>An application to set aside an arbitral award can only be based on irregularities in the procedures that affected the validity of the award and not the substantive merits of the arbitration award.</li>\r\n 	<li>The First Instance judgment in its reasoning stated that the arbitrator in the award pointed out that the parties to the arbitration were summoned and representatives of both parties attended. The service of the process was therefore successful and the parties notified of the existence of the dispute between them. Even if one of the parties was absent from the arbitration proceedings this does not nullify them.</li>\r\n</ol>\r\nAccordingly, the appeal was dismissed and the award ratified.\r\n\r\n<strong>Comment</strong>\r\n\r\nThis judgment shows the Dubai Court of Cassation being supportive of arbitration by removing one of the most common technical arguments used to annul awards – that a party’s representative during the arbitration was not properly authorized.\r\n\r\nAlthough submitting a power of attorney may not be strictly necessary, it is the best proof that a representative is authorised. It therefore remains good practice in the UAE for parties to submit powers of attorney for their representatives so as to remove any possible doubt. A tribunal can also order that powers of attorney be submitted using its powers under article 7.3 of the DIAC Rules.'),
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	(87150,4744,'content_description','In a recent judgment issued earlier this year, the Dubai Court of Cassation found that parties to an arbitration do not need to submit powers of attorney for their legal representatives. This is because the arbitrator is not bound by all the provisions of the UAE Civil Procedures Law (Federal Law No.5 of 1992), but only those found in the chapter relating to arbitration and these do not state that a power of attorney is needed.'),
	(87151,4744,'_content_description','field_59b641c07f473'),
	(87152,4744,'pageSummary','In a recent judgment issued earlier this year, the Dubai Court of Cassation found that parties to an arbitration do not need to submit powers of attorney for their legal representatives. This is because the arbitrator is not bound by all the provisions of the UAE Civil Procedures Law (Federal Law No.5 of 1992), but only those found in the chapter relating to arbitration and these do not state that a power of attorney is needed.'),
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	(87156,4744,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sherif Hikal'),
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	(87158,4744,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.hikal@tamimi.com'),
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	(87161,4744,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87162,4744,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Marwa El Mahdy'),
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	(87164,4744,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
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	(87174,4744,'_yoast_wpseo_metadesc','In a recent judgment issued earlier this year, the Dubai Court of Cassation found that parties to an arbitration do not need to submit powers of attorney for their legal representatives. This is because the arbitrator is not bound by all the provisions of the UAE Civil Procedures Law (Federal Law No.5 of 1992), but only those found in the chapter relating to arbitration and these do not state that a power of attorney is needed.'),
	(87175,4745,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nTrading in securities in the UAE is subject to the provisions of many federal laws including most prominently: (a) the Federal Commercial Transactions Law (Law No. 18 of 1993), (b) the Emirates Securities and Commodities Authority and Market Law (Law No. 4 of 2000) and (c) the UAE Central Bank Law (Law No. 10 of 1980) and its amendments.\r\n\r\nIn the following judgment, the Dubai Court of Cassation classified the relationship between a Brokerage Agency and the investor as an agency created via agreement subject to the general statutory provisions governing bilateral contracts, and the provisions governing commercial agencies set out in the UAE Commercial Transactions Law.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe claimant (a licensed financial brokerage company) brought a claim before the Dubai Court of First Instance against the defendant, an individual who had entered into a trading agreement with the claimant.\r\n\r\nThe claimant had opened up an account on behalf of the defendant with the Dubai Financial Market (DFM). Transactions were performed by the claimant on behalf of the defendant for which the latter was receiving his profits directly.\r\n\r\nAn outstanding balance accrued in the defendant’s account. The claimant notified the defendant and several meetings were held. The defendant did not however settle his account.\r\n\r\nThe claimant requested the Court to appoint a court accredited expert in the field of financial trading to determine the amount owed to the claimant by the defendant, and further requested the court to order the defendant to pay the amount concluded by the expert in his report.\r\n\r\nThe defendant filed a counterclaim requesting the court to appoint an expert in the field of financial trading to review his account with the claimant and to (i) exclude all transactions executed in contradiction to the DFM regulations; and (ii) to determine the losses and damages resulted from such irregularities. The defendant further requested that the court order the claimant to pay the amounts determined by the expert’s report.\r\n\r\n<strong>Procedural History</strong>\r\n\r\nThe Court appointed a banking expert specialized in the field of trading securities and bonds who concluded that the loss suffered by the defendant (which amounted to AED 42 million) was due to the market conditions at the given period of time and the sharp drop in the prices of the shares and securities traded by the claimant at that period.\r\n\r\nThe expert also concluded that due to this loss, a sum of AED 14 million was owed by the defendant to the claimant.\r\n\r\nAfter the submission of the expert’s report the claimant requested the Court to adjudicate the amount concluded by the expert. The defendant however requested that the Court appoint a tripartite committee of experts specializing in the field of trading securities and bonds to reevaluate the matter and investigate the case again.\r\n\r\nThe Court of First Instance, before adjudicating the case, returned it to the previously appointed expert to investigate the defendant’s objections. The Court further ordered the expert to examine all telephonic orders and instructions issued by the defendant to the claimant.\r\n\r\nAfter submitting the expert report, the Dubai Court of First Instance rendered its judgment ordering the defendant to pay the claimant, with interest, the amount determined by the expert’s report.\r\n\r\nThe defendant appealed before the Dubai Court of Appeals which upheld the appealed judgment and dismissed the case. The claimant consequently challenged the appeal court’s judgment before the Dubai Court of Cassation.\r\n\r\n<strong>The Court of Cassation</strong>\r\n\r\nThe defendant argued that the First Instance judgment was flawed because it relied on conclusions of the expert which were based on presumptuous grounds. The expert based his conclusion on his examination of the defendant’s account statements with the claimant, but without confirming that the orders had been executed on the instructions of the defendant.\r\n\r\nThe defendant’s objections to the expert’s report were:\r\n<ol>\r\n 	<li>In his report, the expert referred to several transactions found in the defendant’s account statement which were said to have been executed following written instructions by the defendant. However copies of these instructions were not provided to the expert. The expert assumed that these transactions were performed on the instruction of the defendant and so  concluded that the defendant was liable for the losses sustained as a result.</li>\r\n 	<li>The expert stated in his report that a number of transactions were based on oral orders issued by the defendant over the telephone, and which were recorded on a CD that the court requested the expert to examine. The expert did not examine the CD, but nonetheless proceeded to rely on it as evidence that the defendant issued such orders.</li>\r\n 	<li>The expert referred to the defendant’s acknowledgment of receiving the transaction statements and the invoices from the claimant, as well as the defendant’s acknowledgment of some of the transactions, as proof for the validity of all transactions executed by the claimant.</li>\r\n</ol>\r\nThe expert in his report acknowledged that the claimant contradicted DFM regulations by failing to keep on file a copy of all written instructions by its customers.\r\n\r\nFor the above reasons the defendant contested the expert’s conclusion and argued that the appealed judgment should be overturned since it was not based on valid reasoning.\r\n\r\nThe Court of Cassation agreed with the defendant and whilst explaining its decision made a number of comments clarifying the relationship between brokers and their investors:\r\n<ol>\r\n 	<li>A financial brokerage agreement is a bilateral contract binding to its parties, and it does not require a specific form to be valid.</li>\r\n 	<li>The financial broker is an agent acting on behalf of the investor when executing transactions in relation to the purchase or sale of stocks and bonds.</li>\r\n 	<li>In order for all obligations and rights resulting from these transactions to be valid and binding on the principle (i.e. the investor), the broker must act in good faith within the limit of his authority to bind the principal. This is based on Articles 202 and 229(2) of the UAE Federal Commercial Transactions Code. The agent is under a fiduciary duty to act in the best interest of the principal. If the agent acted otherwise, such transactions will not bind the principal.</li>\r\n 	<li>The general rule is that the opinion of an expert is one of the elements of proof in the action and the court may appoint an expert to examine and provide his opinion in technical issues. The trial court may adopt conclusions of the expert in his report if the court is satisfied by the reasoning in it.</li>\r\n 	<li>In this case, the lower court erred in its reasoning because it relied in its judgment on the conclusions of the expert’s report which were flawed for the reasons detailed by the defendant.</li>\r\n</ol>\r\nThe Dubai Cassation Court therefore overturned the judgment.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Court of Cassation in this case classified the relationship between a financial brokerage agent and an investor as an agency agreement that creates a fiduciary relationship between the parties by virtue of which the agent must execute transactions within the limits of the principal’s instructions and not exceed them unless specific conditions apply. If the broker does exceed his instructions then those transactions will not be binding on the investor.'),
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	(87181,4745,'pageSummary','A Trading Agreement in stocks and bonds is an agreement between a brokerage company or agency and its customer (the “investor”), pursuant to which the brokerage company acts as the investor’s broker and dealer for the purpose of buying and selling stocks and bonds.'),
	(87182,4745,'_pageSummary','field_59e59b307dec8'),
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	(87185,4745,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Marwa El Mahdy'),
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	(87203,4745,'_yoast_wpseo_metadesc','A Trading Agreement in stocks and bonds is an agreement between a brokerage company or agency and its customer (the “investor”), pursuant to which the brokerage company acts as the investor’s broker and dealer for the purpose of buying and selling stocks and bonds.'),
	(87204,4746,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nThe UAE is striving to become an attractive venue for regional and international arbitration, and to establish itself as the arbitration capital of the Middle East. Since the UAE ratified the New York Convention in 2006, the UAE Courts have significantly changed their approach to the recognition and enforcement of foreign arbitral awards. This provides for a positive and encouraging perspective which – in addition to the modern infrastructure of the UAE and its strategic geographic location – will likely make Dubai the venue of choice for arbitration in the Middle East.\r\n\r\n<em><strong>Pre-Conditions to Arbitration</strong></em>\r\n\r\n<strong>1. Commercial Appeal No. 53-2011</strong>\r\n\r\nIn Commercial Appeal No. 53-2011 (judgment dated 7 December 2011), the Dubai Court of Cassation held that an arbitration agreement, as a contract, may include any clause the parties deem appropriate provided that such clause does not violate public policy or moral norms. The parties may, for example, include a clause imposing certain pre-conditions to arbitration. The burden of proof for such pre-conditions lies with the party initiating arbitration.\r\n\r\nIn this domestic case, the parties had agreed that any dispute must be referred to a consulting engineer for amicable settlement before either party could pursue arbitration. The claimant requested the court to appoint an arbitrator on behalf of the respondent to hear the dispute. However, the Court of First Instance dismissed the action on grounds of premature commencement of the action as the claimant had failed to request a consulting engineer to adjudicate the dispute prior to arbitration. The claimant appealed and the Court of Appeal upheld the lower Court’s decision.\r\n\r\nThe claimant then appealed to the Court of Cassation, arguing that the Court of Appeal erred in dismissing the action.\r\n\r\nThe Court of Cassation held that it was clear from the record that the claimant did not request the consulting engineer to adjudicate the dispute and that as a result the claimant’s action for appointment of an arbitrator was premature. The claimant’s grounds for appeal were held to be substantive in nature and as such could not be raised for the first time before the Court of Cassation, resulting in the dismissal of the appeal.\r\n\r\n<strong>2. Commercial Appeal No. 188-2012</strong>\r\n\r\nIn Commercial Appeal No. 188-2012 (dated 9 October 2012), the Dubai Court of Cassation similarly ruled that an appeal should be dismissed for failure to comply with pre-arbitration requirements after the appellant had sought to enforce a domestic arbitral award against the respondent under the DIAC rules. The Court of First Instance had confirmed the award and dismissed the respondent’s request to set aside the award.\r\n\r\nThe Court of Appeal upheld the ruling of the Court of First Instance confirming the award. However, when the Appeal Court decision was challenged the Court of Cassation overturned it on the basis that the pre-conditions to arbitration had not been satisfied and that the lower court had failed to review the respondent’s pleas.\r\n\r\nThe Court of Casssation held that the Court of Appeal should have reviewed the arbitration file and joined it to the case file to confirm that the arbitrator had commenced proceedings only after compliance with the established pre-arbitration requirements. The case was remanded to the Court of Appeal for reconsideration. After joining the arbitration file along with a translation of its contents, the Court of Appeal overturned the decision of the Court of First Instance.  It dismissed the claimant’s action to enforce the arbitral award because the claimant had failed to comply with the pre-arbitration requirements. The respondent’s request to set aside the award was upheld. The claimant appealed to the Court of Cassation but the appeal was dismissed. In explaining its ruling that the arbitration the Court of Cassation held as follows:\r\n<ol>\r\n 	<li>The general rule in contracts is that the contract is the law of the contracting parties and that parties to a contract may include any clauses in their agreement that they deem appropriate provided they do not violate public policy or moral norms.</li>\r\n 	<li>Parties agreeing to arbitrate may impose pre-conditions to be fulfilled before they can initiate arbitration. The burden of proving the fulfillment of such pre-conditions lies with the party requesting the arbitration.</li>\r\n 	<li>Whether a pre-arbitration provision has been satisfied is a question of fact in the discretion of the trial court based on evidence without review.</li>\r\n 	<li>In this case, there was no evidence that the three pre-conditions agree by the parties had been fulfilled.</li>\r\n</ol>\r\n<em><strong>Wrongful Inclusion of a Third Party</strong></em>\r\n\r\n<strong>3. Civil Appeal No. 65-2012</strong>\r\n\r\nIn Civil Appeal No. 65-2012 (dated 27 May 2012), the Dubai Court of Cassation held that the issues adjudicated upon in an arbitral award are subject to res judicata upon the award’s issuance, even though the award’s enforcement is contingent upon its confirmation. An action to set aside an award may be filed, but the doctrine of res judicata precludes the parties from re-litigating issues already decided, even if there is new legal or factual evidence. The court has absolute discretion to explain the terms of the arbitration agreement and the extent to which the arbitrators have complied with such terms. However, the courts may not address the substantive aspects of the award or the extent of its conformity with the law.\r\n\r\nIn this case, the respondent sought confirmation of the award before the Dubai Court of First Instance.  Under the award, the respondent was awarded payment by the claimant and another party of AED 1 million plus 9% interest and arbitration costs. The respondent instituted the action in order to confirm the award so that it could be enforced. The claimant countered that the action should be dismissed on the basis that the arbitral award was void because it included a party who was not a party to the arbitration agreement.\r\n\r\nThe Court of First Instance confirmed the award, and the claimant appealed. The Court of Appeal subsequently joined the other party to the appeal. The lower court’s decision was affirmed and the claimant then appealed to the Court of Cassation on the basis that the Court of Appeal had incorrectly applied the law, and contradicted articles 216 and 217 of the Civil Procedure Law (which relate to the grounds on which an award can be set aside). The claimant argued that the Court of Appeal’s retroactive exclusion of the other party from the arbitration was an invalid exercise of its supervisory authority given the prohibition on judicial review of arbitral awards on the merits.\r\n\r\nThe Court of Cassation however dismissed the claimant’s argument because the Court of First Instance, and in turn the Court of Appeal, had confirmed the award based on clear evidence that the respondent was legally entitled to relief against the claimant alone. The Court of Cassation found that the Court of Appeal’s confirmation of the award was within the scope of its authority to explain the terms of the arbitration agreement and the extent to which the arbitrators complied with such terms, and that the Court of Appeal had not invalidly interfered with or divided the award as argued by the claimant. The appeal was dismissed with costs.\r\n\r\n<em><strong>Time limits for Issuing Awards</strong></em>\r\n\r\n<strong>4. Civil Appeal No. 2-2012 </strong>\r\n\r\nIn Civil Appeal No. 2-2012 (dated 7 October 2012) the Dubai Court of Cassation ruled that where the parties agree on a specific time limit for the issuance of an award, they are not precluded from agreeing, expressly or implicitly, to extend such time limit, or from authorizing the arbitral tribunal to determine such extension. The courts may, upon request of any of the parties or the arbitrator, also extend such time limit by whatever period they deem appropriate, provided that the extension begins to run after completion of the previous period and not separately.\r\n\r\nIn this case, the arbitration agreement stated:\r\n\r\n‘The arbitrators shall issue an award no later than 6 months after the first hearing. The time limit may be extended upon approval of the relevant court and is renewable for a further period(s) of similar duration without having to obtain the consent of the parties to the dispute. Interruption or suspension will not count towards the time fixed for determination of the dispute.”\r\n\r\nThe first hearing in the arbitration was held on 8 December 2007. The arbitrators then issued their decision to suspend the arbitration proceedings pending the final decision of the Court of Cassation in Civil Appeal No. 241-2007, which was dismissed on 3 March 2008. The six month period therefore expired on 17 August 2008. The arbitrators made an application to the Court on 10 June 2008 to approve an extension of the time within which to issue the award until 20 September 2008, and the application was approved on 16 June 2008.\r\n\r\nThe appellant argued that the Arbitration Agreement had lapsed with the expiration of the period within which the award should have been issued under Article 210 of the Civil Procedure Law and Clause 2 of the Arbitration Agreement. However the Court of Appeal held that the award was timely because the extension began to run after the completion of the previous period.\r\n\r\nAdditional Observations on interest claim\r\n\r\nThe Court of Cassation further ruled that while arbitrations are limited to the issues which are submitted to arbitration, the parties may raise issues incidental to and directly connected with the subject matter of the dispute which they agreed in advance to refer to arbitration. A late penalty awarded to a creditor for delay in payment is incidental to the principal debt. Therefore, an agreement to arbitrate in respect of an outstanding financial obligation necessarily includes, in addition to disputes concerning the principal, related claims for late payment of interest. This meant that the appellant’s argument, that the arbitral award should have been set aside because it awarded 10% interest despite the fact that the Arbitration Agreement did not include a claim for interest, was dismissed. The Court of Cassation held that the Arbitration Agreement concerning the outstanding obligation necessarily included the related claim for interest.');

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	(87222,4746,'_yoast_wpseo_metadesc','The Dubai Court of Cassation recently issued several rulings dealing with various aspects of arbitration. The following discussion gives an overview of these rulings to keep readers apprised of the latest arbitration developments in Dubai.'),
	(87223,4747,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nThe world has changed dramatically since that simple time.  As a result of globalisation, many transactions are now effected across a number of jurisdictions and many law firms have opened global offices in response to the internationalisation of business.\r\n\r\nIn response to globalisation’s affect on the legal industry, some regulators have enacted legislation to protect their local lawyers.   India, for example, is closed to foreign lawyers.  In my opinion, this is not good practice because the legal industry and clients both benefit from total competition.  Competition puts pressure on lawyers to maintain a high level of skills and receive ongoing training.  It was as recent as 2011 that the Dubai Civil Court of Appeals ruled that non-Emirati lawyers may represent clients in all courts in Dubai and local lawyers were no longer protected.\r\n\r\nLocal lawyers risk becoming irrelevant if they do not get up to speed with international standards and practices.  International contracts are usually drafted in English and are governed by English law.  The English language is now a fundamental skill for lawyers.  The areas of local lawyers’ expertise are getting smaller because they are only advising clients on how contracts apply in a certain country.  Local lawyers will consider if a contract is enforceable in the country and if it conflicts with any local laws.  Their input is unlikely to go further than that because they are not trained in English law and do not have the qualifications to advise on English law.\r\n\r\nIn certain sectors there are unified language, principles and contracts.  This is apparent in sectors such as banking, shipping, intellectual property, oil and gas, insurance and telecommuncations where few local clauses are incorporated into international contracts.  With respect to the oil and gas industry, lawyers from around the world work together to create standard contracts that are industry specific.  When clients enter into agreements for major projects they use the standard contracts which are beneficial because the lawyers are already familiar with the terms of the contract and minimal negotiation is required.\r\n\r\nLocal lawyers need to receive training in certain areas so they are familiar with standard contracts and the law which governs them, which tends to be English.  Legal education is modernising and local lawyers need to develop more to be valuable to their clients.  We are seeing local law firms merge with international law firms who gain the local knowledge and can consequently advise on contracts as a whole.  This can result in the local firm losing its identity and changing beyond recognition.\r\n\r\nClients seek lawyers with specialised skills and relevant experience.  They do not choose lawyers based on whether they are local or international.  Local lawyers need to focus on learning and development to achieve an international level capability or they will be bypassed.\r\n\r\nJunior lawyers in particular need to ensure they are receiving ongoing training and increasing their skill set.  Al Tamimi &amp; Company established its Centre for Professional Development which provides a framework for the coordinated development of all professional staff in the firm as well as career paths and courses for support staff.  The Centre for Development also introduced a fast track Management Development Programme aimed at lawyers with partnership potential.  It is our intention that the Centre for Development will ensure our lawyers receive ongoing training and develop the skill set required to successfully advise clients in today’s global business environment.'),
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	(87227,4747,'content_description','Historically, lawyers were trained in and operated within their national borders dealing with domestic matters with no external competition.   '),
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	(87242,4748,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nTherefore in the absence of express agreement by the parties, legal costs are not recoverable in a DIAC arbitration. This article puts this recent judgment in context and offers guidance as to how parties might still recover their legal fees in a DIAC arbitration.\r\n\r\n<strong>Recovering Legal Costs in Arbitration Generally</strong>\r\n\r\nA party to an arbitration will usually incur three types of costs:\r\n<ol>\r\n 	<li>Administrative fees charged by any institution administering the arbitration (such as DIAC).</li>\r\n 	<li>Tribunal fees.</li>\r\n 	<li>Legal fees, being those of its legal representatives and any disbursements (such as expert fees).</li>\r\n</ol>\r\nThe legal fees will usually be the main expense incurred by a party and they can run to thousands, and sometimes millions, of dirhams. It is often said that one of the benefits of using arbitration in the UAE is that it is possible to claim these legal fees should you win, which is not the case in the local courts where only nominal amounts are ever awarded.\r\n\r\nAllowing the winner in a dispute to recover its legal fees is not a universal principle. In the USA for example, the usual practice is for each party to bear its own costs, and to share the administrative costs equally. However the rules of most international arbitral institutions explicitly allow the tribunal to order the losing party to pay the legal costs incurred by the winner (see for example the DIFC-LCIA Rules (art. 28.3); ICC Rules (art. 37.1); and UNCITRAL Rules (art.40)).\r\n\r\n<strong>The DIAC Rules</strong>\r\n\r\nThe original DIAC rules were drafted in 1994. In this version it was mandatory for the tribuna’s final award to include a finding as to the ‘costs of the arbitration and the party who will bear them or the proportions allocated among the parties’ (article 459(f)). The ‘costs of the arbitration’ were defined at article 48 to include the ‘normal expenses incurred by the parties in preparation of their pleadings’, which would allow legal fees to be claimed.\r\n\r\nThe DIAC Rules were however revised in 2007. Under the 2007 Rules, although the tribunal must still fix in the award the costs of the arbitration and their apportionment (article 37.10), the definition of the phrase ‘costs of the arbitration’ was revised as follows:\r\n\r\n‘The costs of the arbitration shall include the Centre’s administrative Fees for the claim and any counterclaim and the fees and expenses of the Tribunal fixed by the Centre in accordance with the Table of Fees and Costs in force at the time of the commencement of the arbitration, and shall include any expenses incurred by the Tribunal, as well as the fees and expenses of any experts appointed by the Tribunal.’\r\n\r\nAs can be seen, the definition no longer contains reference to the ‘normal expenses incurred by the parties in preparation of their pleadings’. This has led to confusion as to whether legal fees can be claimed under the DIAC Rules.\r\n\r\n<strong>Recent Court of Cassation Judgment</strong>\r\n\r\nEarlier this year the Dubai Court of Cassation directly considered whether legal fees could be awarded under the DIAC Rules. In Case No. 282/2012, a claim had been filed to enforce a DIAC arbitration award which included an order that the losing party pay the successful parties legal costs of AED 110,000.\r\n\r\nIn its judgment the Court of Cassation began be noting that a tribunal only has the power to order a party to pay the opposing party’s legal fees if given that power by one of the following:\r\n<ol>\r\n 	<li>The applicable procedural law; or</li>\r\n 	<li>The arbitral rules agreed by the parties; or</li>\r\n 	<li>By an explicit reference in the arbitral agreement granting the power.</li>\r\n</ol>\r\nThe arbitration law in the UAE does not grant the power, nor was there an express agreement by the parties in the arbitration clause. The power would therefore need to be found in the DIAC rules. As noted above the DIAC Rules grant the tribunal power to apportion the costs of the arbitration, but does not explicitly refer to legal fees in its definition of what the ‘costs of arbitration’ consists of. The Court held that this list was exhaustive, and that since it did not include legal fees or any other costs incurred by the party in presenting its case, the DIAC rules do not confer such a power on the tribunal. In the words of the Court: ‘Where the law is silent, fees and expenses that are not clearly and expressly referenced in the arbitration clause are not recoverable as incidental costd [of the arbitration]’. The section of the award regarding legal fees was therefore annulled, but the rest of the award was upheld.\r\n\r\n<strong>Discussion</strong>\r\n\r\nThere has already been some criticism of this judgment. The issue revolves around how the verb ‘include’ in the definition of Costs of Arbitration is to be interpreted. The rules were drafted in English and it has been argued that in English the verb ‘include’ is normally used to introduce a non-exhaustive list. On this view the Court erred in its interpretation that the definition is exhaustive. However there are three problems with this argument:\r\n<ol>\r\n 	<li>Whilst the verb ‘include’ can denote a non-exhaustive list, it can also be used to describe the individual parts of a total, such as when a box of equipment has written on it ‘this box includes…’ before listing the contents. This ambiguity is often avoided in legal documents by the use of the phrase ‘includes (but is not limited to) the following…’.</li>\r\n 	<li>The argument does not address the key issue raised by the Court that in the absence of a legal provision granting the power to the tribunal, the power can only come from the consent of the parties and this must be clear and explicit. The current 2007 DIAC Rules are at best ambiguous.</li>\r\n 	<li>It is unlikely that the drafters of the 2007 Rules either overlooked legal fees or assumed their recovery would be implied. Legal fees in arbitration are substantial and their recovery is routinely sought by parties. Such fees were covered by the 2004 rules, the wording of which could easily have been carried over. Anyone revising the rules would know that almost all other international arbitration rules, including the UNCITRAL rules, explicitly allow for the recovery of legal fees.</li>\r\n</ol>\r\n<strong>Conclusion </strong>\r\n\r\nThe confusion regarding the recovery of legal fees under DIAC rules has now been resolved – in the absence of any agreement by the parties or provision in the local arbitration law, the tribunal has no power to allow the recovery of legal fees under the DIAC rules.\r\n\r\nIf the DIAC rules are revised then no doubt the new rules will make it clear whether legal fees are recoverable. Until then there are two ways in which parties can ensure that they have a right to recover legal fees in a DIAC arbitration:\r\n<ol>\r\n 	<li>Include in the arbitration agreement the words ‘The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyer’s fees, as the arbitral tribunal shall deem reasonable’.</li>\r\n 	<li>Ensure that the terms of reference prepared during the arbitral proceedings include a power to award legal costs, in the same language as (1) above.</li>\r\n</ol>\r\nFinally, if both parties claim their legal fees during the arbitration the tribunal can arguably infer from this the parties’ mutual consent to confer on the tribunal a power to award legal fees as part of the costs. It is recommended however that any doubt be removed by explicitly recording the power in the terms of reference.'),
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	(87246,4748,'content_description','The Dubai International Arbitration Centre (DIAC) is the most widely used arbitration centre in the region. It has a modern set of rules that generally work well. However a recent Dubai Court of Cassation judgment has confirmed what many believe to be a flaw in its rules: they do not grant the tribunal power to order the recovery of legal costs. '),
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	(87248,4748,'pageSummary','The Dubai International Arbitration Centre (DIAC) is the most widely used arbitration centre in the region. It has a modern set of rules that generally work well. However a recent Dubai Court of Cassation judgment has confirmed what many believe to be a flaw in its rules: they do not grant the tribunal power to order the recovery of legal costs.'),
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	(87252,4748,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Robert Karrar-Lewsley'),
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	(87264,4748,'_yoast_wpseo_metadesc','The Dubai International Arbitration Centre (DIAC) is the most widely used arbitration centre in the region. It has a modern set of rules that generally work well. However a recent Dubai Court of Cassation judgment has confirmed what many believe to be a flaw in its rules: they do not grant the tribunal power to order the recovery of legal costs.'),
	(87265,4749,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nThe relevant law is Law No. 26 of 2007 Regulating the Relationship between Landlords and Tenants in the Emirate of Dubai, as amended by Law No. 33 of 2008 (“Landlord and Tenant Law”), which applies to landlord and tenant relationships for all residential and commercial leased lands and properties in Dubai.\r\n\r\nFurther, Decree No. 2 of 2011 Regarding Rentals in the Emirate of Dubai (“Rent Cap Law”) regulates rent increases.\r\n\r\n<strong>1. LEASE RENEWALS</strong>\r\n\r\nThe Landlord and Tenant Law permits landlords to evict tenants upon lease expiry in limited circumstances.  Specifically, Article 25 (2) provides that landlords can give tenants notice not to renew leases in the following instances:\r\n<ol>\r\n 	<li>If the landlord wishes to demolish the property for reconstruction (provided the necessary licences for such reconstruction are obtained);</li>\r\n 	<li>If the landlord wishes to renovate the property (provided such renovations cannot be completed while the tenant is in occupation and this fact has been certified by the Dubai Municipality);</li>\r\n 	<li>If the landlord wishes to  recover the property for use by him personally or by his next of kin of first degree; or</li>\r\n 	<li>If the landlord wishes to sell the property.</li>\r\n</ol>\r\nThe landlord must give the tenant at least 12 months notice not to renew stating the applicable reason, and such notice must be sent through a Notary Public or by registered mail.\r\n\r\nThe landlord’s rights not to renew are strictly limited to the grounds stated in Article 25 (2) and in the event of a dispute, the Rent Committee may require the landlord to prove the applicable reason.\r\n\r\nSome leases contain provisions that allow either party to give notice not to renew upon expiry (e.g. by giving 60 notice days prior to the lease expiry date), which is inconsistent with Article 25 (2).  In most situations, Article 25 (2) will override any such clauses in a lease but this is not always the case depending upon the specific circumstances.\r\n\r\nIt should also be noted that if a tenant remains in occupation upon expiry of a lease, and the landlord does not object, then the lease shall be renewed for a similar term or for 1 year (whichever is shorter) on the same terms and conditions.\r\n\r\n<strong>2. RENT CONTROLS</strong>\r\n\r\nIn any event where there are changes to the lease terms and conditions for the renewal period, at least 90 days notice of such change must be given to the other party before the expiry of the lease (unless otherwise agreed by the parties).  This also applies with respect to rent increases.\r\n\r\nPursuant to Article 1 of the Rental Cap Law, no increases are permitted if the rent is up to 25 % below “average similar rent”.  If the rent is more than 25% below average similar rent, there is a staggered permitted increase ranging from 5 % to 20% per annum.  “Average similar rent” is determined pursuant to Real Estate Regulatory Agency (“RERA”) rental index.\r\n\r\nRERA has established an online rental increase calculator, pursuant to which landlords and tenants can assess whether a rental increase is permitted under the Rent Cap Law.\r\n\r\nIn any event of dispute, the Rent Committee can determine the applicable rent having regard to the RERA rental index, similar market rent for properties in the same area, the relevant property’s status, the general economic circumstances of Dubai, any valid legislation regarding rental values and any other factors the Rent Committee may decide.\r\n\r\nIn summary, the Landlord and Tenant Law and Rent Cap Law are similar to other landlord and tenant laws in other emirates within the United Arab Emirates.  Its focus is clearly oriented towards residential tenancies and protecting those in a weaker bargaining position.  Its terms can, however, be unduly prescriptive for commercial tenancies.'),
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	(87271,4749,'pageSummary','Uncertainty regarding the rights and obligations of landlords and tenants often arise in relation to lease renewals and rent increases. In this article we consider these issues in light of the applicable Dubai laws.'),
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	(87275,4749,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Katrine Kofoed'),
	(87276,4749,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87277,4749,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','k.kofoed@tamimi.com'),
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	(87283,4749,'_yoast_wpseo_metadesc','Uncertainty regarding the rights and obligations of landlords and tenants often arise in relation to lease renewals and rent increases. In this article we consider these issues in light of the applicable Dubai laws.'),
	(87284,4750,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nIn the year of the Arab Spring alone the value of Arab and foreign real estate purchases in Jordan skyrocketed, with the total value of investments reaching 449 million dinars ($630 million), according to a study conducted by the Ministry of Finance (Lands and Survey Department) (“the Survey Department”). In terms of the market value of the purchased property, Iraqis ranked first with an aggregate investment value of over half the total value of property purchased by foreign nationals.\r\n\r\n<strong>Foreign Ownership of Land </strong>\r\n\r\nForeign ownership of Jordanian land and assets is governed by The Leasing of Immovable Assets, and Their Sale to Non-Jordanian and Judicial Persons Law No 47of 2006, (the “2006 Law”) which repealed all previous laws in this regard.\r\n\r\nAs per Article 3 of the 2006 Law, provided that the buyer’s country of residence maintains a reciprocal relationship, foreign nationals are afforded the right of ownership of property within urban borders in Jordan for residential purposes (but only after acquiring the required permission from the Minister of Finance or the General Director of the Survey Department). Nationals of Arab countries are exempt from this requirement.\r\n\r\nFurthermore the 2006 Law does not apply to foreigners who inherit the ownership of immovable assets, or who intend to employ the assets for economic activity within industrial cities (provided the plots do not exceed 50 acres). How Land is Bought and Developed by Foreign Nationals.\r\n\r\nIn order to purchase land the foreign national must either himself, or by an authorized realtor or an agent, complete an application form filled out with personal information specifying the existence of a spouse and any minor children of the buyer, in addition to a copy of the buyer’s passport and a site plan issued by the concerned municipality. The site plans must have been issued within one year of the date of application.\r\n\r\nIf the buyer is seeking permission for more than two houses and a single operating office to be erected on a plot exceeding 10 acres, the buyer will need to apply for the permission of the Minister of Finance on a recommendation of the Director General of the Survey Department. Notably, if the buyer, whether a person or a company, holds a dual nationality, he is legally mandated by virtue of Article 3 to disclose such information within his application. Failing to do so will render the contract of sale null and void. Notably, nationals of Arab countries are exempt from the reciprocal relationship requirement mentioned above.\r\n\r\n<strong>Reciprocal relationship</strong>\r\n\r\nThe existence of a reciprocal relationship is crucial in two situations. First, for foreigners seeking to file an application of ownership of land for industrial or commercial purposes (within urban borders, not exceeding 10 acres). Secondly, for Diplomats or Regional Organizations seeking to own land for either business purposes or to accommodate their affiliates and representatives.\r\n\r\nWhere temporary passport holders is seeking to own land in Jordan, the Council of Ministers retains the right to approve such ownership in accordance with regulations issued to that end, based on the review and approval of the Minister of Interior and the recommendation of the Minister of Finance.\r\n\r\nAs for Arab passport-holding citizens, if the ownership of land is sought in pursuance of an investment in agricultural, commercial or residential projects, the land may fall outside urban borders. Approval will be needed from the Minister of Finance based on the recommendation of the General Director of the Survey Department if the plot does not exceed 50 acres, or from the Council of Ministers based on the recommendation of the Minister of Finance if it does.\r\n\r\nIn addition, any company may own land within urban borders necessary for the conduct of its business upon the approval of the Minister of Finance based on the recommendation of the General Director of the Survey Department. If the plot of land exceeds 30 acres the approval of the Council of Ministers (which is based on a recommendation by the Minister of Finance) is necessary.\r\n\r\nConversely, should a company seek ownership of land outside urban borders, it requires the approval of the Minister of Finance who will grant it based upon a recommendation of the General Director of the Survey Department, and after seeking out the opinions of ‘concerned bodies’. Where the land exceeds 50 acres approval must again be from the Minister of Finance, based upon a recommendation from the Council of Ministers.\r\n\r\n<strong>Renting Land</strong>\r\n\r\nForeign nationals may rent immovable assets for business or accommodation purposes, provided that the plot of land does not exceed 10 acres and the lease is for no more than 3 years .\r\n\r\n<strong>Duration of Ownership </strong>\r\n\r\nThe most peculiar restriction imposed by the 2006 Law relates to the period within which the ownership of immovable assets by foreigners remains valid. Foreign owners of immovable assets in Jordan are allocated a period of three years from the date of the acquisition of ownership rights, to conclude the purpose for which they have acquired such rights, whether for residential or business projects. A onetime extension reflecting the same period may be granted if sought, depending on the approval of the Minister of Finance (which shall be based on the recommendation of the General Director of the Survey Department).\r\n\r\nAny breach of these requirements will result in a fine worth 5% of the land’s real worth for a period of 10 years (article 13 of the 2006 Law). If the land remains unutilized the Minister will allow for a decision to be made to sell the land in public auction.\r\n\r\n<strong>Disposing of Land</strong>\r\n\r\nThe 2006 Law also imposes stringent restrictions on the freedom of foreigners to dispose of the land which they have acquired. By virtue of Article 14 of the 2006 Law, any foreign person or company is legally required to complete the project for which the land was acquired within a period of three years if the land was for a residential project, or five years for any other project. A failure to do so shall render any contract or ownership deed voidable, unless the permission and approval of the Minister of Finance (upon the recommendation of the General Director of the Survey Department) is granted. The owner of the land shall be exempt from this limitation if it can be shown that the land is used for investment purposes, whether it be for housing, residential, or commercial investment. The Minister of Finance may add conditions on such ownership.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nHopefully the next few years will be remembered as years of positive change for the Middle East and Jordan. Whilst the rights of foreign owners of immovable assets in Jordan are relatively well provided for by virtue of the 2006 Law, Jordan would gain from easing the restrictions on the foreign ownership of land. This would help Jordan make the most of being the economic and political safe haven it has managed to become during the period of political turmoil witnessed in neighboring countries.'),
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	(87318,4752,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nUsers of social media must take care to ensure that their use of social media does not violate the laws of the UAE. Generally, content that is contrary to such laws may be actionable and subject to removal from the social networking sites.\r\n\r\nWe have previously written articles on the content regulatory framework in the UAE and the use of social media in the UAE, however in summary, the key laws and regulations are:\r\n<ol>\r\n 	<li>Federal Law No. 15 for 1980 concerning Publications and Publishing (“Printing and Publications Law”) – The Printing and Publications Law covers all forms of published content and sets out matters that may not be published, which include matters related to religion and politics, national security, individual rights, and public morals.</li>\r\n 	<li>Federal Law No. 5 of 2012 (“Cyber Crime Law”) – The Cyber Crime Law is a comprehensive piece of legislation on combatting cyber-crimes. Most relevantly, it criminalizes the publication of information/photographs online for the purpose of violating the privacy of individuals.</li>\r\n 	<li>The Dubai Technology and Media Free Zone (TECOM) Codes of Guidance 2003 (“TECOM Codes”) – The TECOM Codes apply to broadcasters and publishers operating in the Dubai Technology and Media Free Zone and sets outs standards for published content, which include matters related to public morals, religion, violence and illicit substances.</li>\r\n 	<li>Abu Dhabi Media Zone Authority (twofour54) Content Code (“twofour54 Code”) – The twofour54 Code applies to broadcasters and publishers licensed in Abu Dhabi’s media free zone. The twofour54 Code sets out rules for published content, which include matters related to religion, privacy and advertising.</li>\r\n</ol>\r\nIn this article, we highlight some issues that users of social media may encounter at any given time and mention ways to get the content removed from the social networking platform. It is important to bear in mind, however, that this may not always be possible and will usually be determined by the terms and conditions of the social media platform.\r\n<ul>\r\n 	<li>Privacy - The use of social media by individuals and companies raises privacy concerns. Individuals often post photographs of themselves and their family and friends on Facebook and Instagram to share their lives. It is important for individuals who use this medium to take care that no private and inappropriate content is posted on these networking sites that would then give rise to an aggrieved person seeking to have the content removed. Companies often use Facebook and Twitter to stay connected with clients and customers. There have been instances where an employee responsible for their employer’s profile on these networking sites has accidently posted confidential content or posted comments which offend others. Companies who use this medium should monitor the content put online on their behalf, and issue guidelines so as to ensure that such incidents do not occur. For an aggrieved person trying to remove the content, they need to refer to the terms and conditions of the social media platform to see how the content can be removed.</li>\r\n 	<li>Defamation - Care must also be taken to ensure that no defamatory content is posted onto these sites because this could lead to civil or criminal liability. Such content could include posting secret information about others without their consent (even if such information is true), or posting photographs without the consent of the subject of the photograph.</li>\r\n 	<li>Intellectual Property - Content posted on social networking sites should not infringe the intellectual property rights of a third party. For example, when posting content on Facebook (links to YouTube videos, for example) care must be taken to ensure that the user has obtained the necessary rights to use, copy and share the content. Facebook’s terms of use stipulate that users may not post content that infringes on intellectual property rights. Pursuant to Facebook’s terms of use, copyright holders are entitled to report users in violation of these rights to Facebook and Facebook is obliged to promptly remove any offending content and terminate the user account if the user is a repeat offender.</li>\r\n 	<li>Unlawful Behavior - Unlawful behavior can include financial fraud, harassment, sedition and religious condemnation. If a user is found to be engaging in unlawful behavior, social networking sites (Facebook and Twitter, for example) can involve law enforcement officials in the matter and shut down the user’s account. In recent months, a number of Facebook and Twitter accounts in the UAE have been closed down by authorities subsequent to complaints of unlawful behavior.</li>\r\n</ul>\r\nDepending on the facts of each matter, there may be actions that can be taken at law and with the public prosecutor in relation to each of the above. Users of social media must therefore keep in mind that although their posts may seem temporary and trivial, the consequences can be quite the opposite.'),
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	(87340,4752,'_yoast_wpseo_metadesc','Social networking sites (otherwise known as “social media”) including Facebook, Twitter, Pinterest and Instagram are widely used by individuals to share their lives. More recently, the increased popularity and potential audience-reach of social media has influenced corporate entities to use social media to promote their businesses and communicate with customers.'),
	(87341,4753,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nThe rules comprehensively cover all of the aspects of the functioning of a corporate entity, including but not limited to, composition of the board, selection criteria of constituent members, risk management and corporate social responsibility.  In summary, the rules promote to improve talent, transparency, reporting accuracy, performance, risk governance, and instill accountability and fair dealing with all stakeholders of an organization\r\n\r\nThe following is a review of the corporate governance rules (the “Rules”) and the principles of which they comprise.\r\n\r\n<strong>First rule: Strengthen board competition </strong>\r\n\r\nThe majority of the board of directors shall consist of non executive members, as well as independent members, who enjoy complete independence.This permits them to make decisions without being exposed to undue pressures. The board of directors shall regulate its businesses and allocate sufficient time to undertake the tasks and responsibilities entrusted to it.\r\n\r\n<strong>Second rule: Establish clear roles and responsibilities </strong>\r\n\r\nThe company shall outline in detail the tasks, responsibilities and duties of each member of the board of directors and executive management, as well as the powers and authorities delegated to the executive management. The board of directors shall form specialized independent committees, in order to assist it to perform the tasks entrusted to it.\r\n\r\n<strong>Third rule: Recruiting highly qualified candidates for the board of directors and senior management </strong>\r\n\r\nThe board of directors shall form a committee  whose main role is to prepare recommendations for the board of directors in connection with all the required nominations. Furthermore, the board of directors shall form a remuneration committee, whose main role shall be to define the policies and regulations regarding compensation and remuneration.\r\n\r\n<strong>Fourth rule: Safeguarding integrity in financial reporting</strong>\r\n\r\nWritten undertakings shall be submitted by the board of directors and executive management for the soundness and impartiality of the financial reports prepared about the company. The board of directors shall form an internal audit committee, whose main role shall be to ensure the soundness and impartiality of financial reports and internal audit systems. The external auditor shall be independent and impartial be professionally comptenet, experienced and have a good reputation.\r\n\r\n<strong>Fifth rule: Robust systems of risk management and internal control</strong>\r\n\r\nThe company shall have an independent department for risk management, to determine, measure and follow up the risks to which the company is exposed. The board of directors shall form a risk management committee, whose main role is to develop risk management policies and regulations, in line with the company’s risk tolerance.  The company shall ensure the sufficiency of its internal control and audit systems.\r\n\r\nThe board of directors shall form a committee on governance applications, whose main role is to develop the governance framework. The same committee shall guide and supervise its implementation, along with any changes when required.\r\n\r\n<strong>Sixth rule: Promote ethical standards and responsible conduct </strong>\r\n\r\nThe company shall develop a code which comprises the standards and criteria of professional behavior and ethical values. The board of directors shall outline the policies and mechanisms to limit events of conflict of interests, and the handling of them when they arise.\r\n\r\n<strong>Seventh rule: Ensure timely and high quality disclosure </strong>\r\n\r\nThe board of directors shall develop quality disclosure and transparency policies and regulations.\r\n\r\nThe board of directors shall regulate the disclosures of the board of directors and executive management members. The company shall disclose in a precise and detailed manner the remuneration offered to members of the board of directors and executive management, whether in cash benefits or advantages. The company shall develop the infrastructure for information technology and rely on it widely for disclosure processes.\r\n\r\n<strong>Eighth rule: Respect the rights of shareholders</strong>\r\n\r\nThe company shall determine the general rights of shareholders and ensure justice and equality between them. The company shall encourage shareholders to participate and vote in the company’s general assembly meetings.\r\n\r\n<strong>Ninth rule: Recognising the legitimate interests of stakeholders</strong>\r\n\r\nThe company shall develop systems and policies which ensure protection of stakeholders rights, and encourage stakeholders to participate in following up the company’s various activities.\r\n\r\n<strong>Tenth rule: Encourage enhanced performance </strong>\r\n\r\nThe company shall develop mechanisms to allow each member of the board of directors and executive management to participate in training programs and courses on regualr basis.\r\n\r\nThe company shall develop the systems and mechanisms to evaluate the overall performance of the board of directors, as well as the performance of executive management.\r\n\r\nThe board of directors shall constantly ensure the significance of institutional value creation among the company personnel, by constantly working to achieve the company’s strategic objectives, enhance performance rates and comply with the laws and instructions, particularly governance rules.\r\n\r\n<strong>Eleventh Rule: Importance of social responsibility </strong>\r\n\r\nThe company shall develop the mechanisms that ensure balance between the company objectives and the community objectives, and shall outline the programs and mechanisms which assist to manifest the company’s efforts in the community.\r\n\r\nThe above eleven Rules are subject to supervisory requirements by the Corporate Governance Department Control Sector of the CMA, which shall be furnished on a quarterly basis with proof indicating execution of the requirements set out under the Rules, as well as the organisational structure approved by the company board of directors.\r\n\r\nThe Rules shall be complied with no later than 31 December 2014, taking into consideration that the company should immediately apply any principle or requirements set out under these Rules of a binding statutory character, whether according to the CMA Law, executive regulation or the Companies Law and its executive regulation.\r\n\r\nMoreover, the CMA is entitled to request any additional information or data it deems necessary in order to ensure the extent of compliance with all the requirements and conditions set out under these rules.\r\n\r\nNon-compliance of these Rules shall expose the violator to disciplinary accountability, in accordance with the CMA Law and its executive regulation.'),
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	(87345,4753,'content_description','The Capital Markets Authority (the “CMA”) has recently issued resolution no. 25 of year 2013, dated 27 June 2013, covering the Corporate Governance Rules (the “Resolution”) for companies subject to the CMA. The Resolution is effective from the date it was issued. '),
	(87346,4753,'_content_description','field_59b641c07f473'),
	(87347,4753,'pageSummary','The Capital Markets Authority (the “CMA”) has recently issued resolution no. 25 of year 2013, dated 27 June 2013, covering the Corporate Governance Rules (the “Resolution”) for companies subject to the CMA. The Resolution is effective from the date it was issued.'),
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	(87351,4753,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Wassim Sassia'),
	(87352,4753,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87353,4753,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','w.sassia@tamimi.com'),
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	(87355,4753,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(87359,4753,'_yoast_wpseo_metadesc','The Capital Markets Authority (the “CMA”) has recently issued resolution no. 25 of year 2013, dated 27 June 2013, covering the Corporate Governance Rules (the “Resolution”) for companies subject to the CMA. The Resolution is effective from the date it was issued.'),
	(87360,4754,'content','July - August 2013\r\n\r\n<hr />\r\n\r\n<strong>UAE Civil Code</strong>\r\n\r\nGuarantees generally fall under the purview of Federal Law No. 5 of 1985 as amended (‘Civil Code’). Article 1057 of the Civil Code defines guarantees as a suretyship with ‘the joining of the liability of a person called the surety (the guarantor) with the liability of the obligor (the principal debtor) in the performance of his obligations.’\r\n\r\nMost importantly for lenders, the Civil Code in relation to guarantees provides that:\r\n<ol>\r\n 	<li>the obligation of a guarantor is incidental to the obligation of the principal debtor. Any discharge of the principal debtor’s obligations may, therefore, result in the guarantee no longer being valid;</li>\r\n 	<li>if the principal debtor becomes bankrupt, the creditor must prove its debt in the bankruptcy, failing which it will lose its right to claim against the guarantor to the extent of any sums which the creditor might have received had it proved such debt in the bankruptcy; and</li>\r\n 	<li>upon discharge of the relevant debt, the creditor must deliver to the guarantor all necessary papers to enable the guarantor to exercise its right of recourse against the principal debtor.</li>\r\n</ol>\r\nIt is important to note that that unless a guarantee is backed by security, a lender’s claim on the guarantor will be unsecured.  This could subordinate the lender’s claim to other lenders who have obtained security from the guarantor in the form of a mortgage or a pledge over the assets of the guarantor.\r\n\r\n<strong>Limitation Period Applicable to Guarantees</strong>\r\n\r\nLenders must be aware of the different limitation periods in respect of guarantees.  Article 1092 of the Civil Code provides that ‘If a debt is due, the creditor should claim the debt within six months from the date on which it fell due, and otherwise the guarantor shall be deemed to have been discharged.’ There have been different interpretations of Article 1092 of the Civil Code and its application. The Supreme Court in Abu Dhabi has interpreted Article 1092 to apply to guarantees with respect to civil transactions only and has found that the time bar does not apply to guarantees in commercial transactions, particularly where the beneficiaries are banks and financial institutions. In such cases, the Supreme Court has held that the applicable time bar is ten years. By contrast, in Dubai, the Court of Cassation considers a guarantee a civil obligation and has ruled that Article 1092 applies to all guarantees and a claim against a guarantor must be initiated within six months from the due date of payment.\r\n\r\n<strong>All Monies Guarantee </strong>\r\n\r\nThe distinction between specific guarantees and all monies guarantees is an important one.  Under an all monies guarantee, a guarantor guarantees any and all obligations from the principal debtor to the lender, whether existing at the time of the guarantee or arising in the future.  Lenders should be aware that guarantees for ‘all monies’ may face issues upon enforcement in the UAE, with Article 1061 of the Civil Code requiring that guarantees must be issued with respect to a specified debt or a thing certain in amount. While there have been judgments in the recent past where the UAE Courts have recognised and enforced all monies guarantees, the application of such judgments is limited.\r\n\r\n<strong>Due Diligence of Guarantor’s Assets </strong>\r\n\r\nAll lenders must undertake the necessary due diligence prior to the execution of a guarantee in respect of the nature of the guarantor’s assets.  In terms of enforcement, it is important to note that UAE law does not recognize the concept of ‘self help remedies’.  As such, guarantees in the UAE must be enforced through a process led by the UAE courts.  The lender will require an attachment order, either prior to commencing substantive legal proceedings or once a final judgment has been obtained, in order to recover the monies due under the guarantee.  In order to increase the expediency of the attachment process, lenders should conduct the necessary due diligence and obtain all details of the unencumbered assets of the guarantors, including but not limited to funds in bank accounts, real estate properties, immoveable properties, vehicles, shares/stocks etc. The advantage of identifying the assets is that it would assist the court in an expedient issuance of the attachment order and such order will prevent the sale of such assets pending the final judgment (noting public searches are difficult in the UAE).\r\n\r\nIf a lender is unable to acquire the relevant details in respect of the guarantor’s assets, the attachment process can be drawn out until the court can ascertain the extent of the guarantor’s assets.  While the final result is the same, ie the ring-fencing of the guarantor’s assets in favour of the lender, the process is more cumbersome and time-consuming when the guarantor’s assets are not identifiable.\r\n\r\nFurthermore, the location and value of the guarantor’s assets should play a key role in choice of governing law of the guarantee.  It would be of little value to obtain a UAE law guarantee from an individual or legal entity whose assets are located in a foreign jurisdiction where UAE law may not be recognized or there is no reciprocity on enforcement of judgment with that jurisdiction.\r\n\r\nAdditionally, lenders must be prepared to undertake periodic monitoring of the guarantor’s assets as the provision of a guarantee does not prevent a guarantor from transferring ownership of their assets or disposing of their assets in entirety.\r\n\r\n<strong>Personal Guarantors</strong>\r\n\r\nLenders should be aware that claims against a personal guarantor will need to be brought against the personal guarantor’s estate in the event that the personal guarantor passes away.  The general legal position relating to probate and inheritance is covered by the UAE Federal Law No. 28 of 2005 concerning personal affairs (‘Personal Affairs Law’) which governs how the estate of a UAE resident or national will be managed upon the death of the individual.\r\n\r\nUnder the Personal Affairs Law, the Shariah Court in the relevant Emirate would have jurisdiction to review any application for a declaration declaring the death of and naming the survivors of the deceased (‘Death Declaration’) in respect of the guarantor and to conduct any proceedings relating to succession.  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.\r\n\r\nUnder Article 275 of the Personal Affairs Law the creditors of the deceased would have priority over any other distribution except for any burial expenses.  Once the lender is aware of the Death Declaration and the distribution of assets it must immediately file proceedings against the estate and the heirs as the case may be to exercise its rights under Article  275 in its capacity as creditor.\r\n\r\n<strong>Enforcement of Guarantees</strong>\r\n\r\nLenders must be aware of the overall enforcement process with respect to guarantees and the time required for a final judgment. A lender seeking to enforce a guarantee is required to have first notified the guarantor of the default of the primary obligor by serving a legal notice in accordance with the terms and conditions of the guarantee. A lender can either file for attachment first and later commence substantive legal proceedings or commence substantive legal proceedings immediately.\r\n\r\nThe next step is for the lender to file substantive legal proceedings at the Court of First Instance against the guarantor claiming the outstanding amount under the guarantee (within eight days from the date on which the assets of the guarantor are attached, if applicable).  Substantive legal proceedings usually last between 8 to 10 months if no defences are raised by the guarantor.  If the guarantor raises any defences, the Court may appoint a financial expert (usually a chartered accountant) to determine the financial issues arising out of such substantive proceedings.  In such cases, proceedings may last for as long as two years.\r\n\r\nOnce the final judgment is obtained by the lender the case will be transferred to the Execution Court for the liquidation of the guarantor’s assets and any funds realized from such liquidation of assets will be paid to the lender to the extent of the liability under the guarantee.  Any surplus would revert back to the guarantor.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile there are various factors for lenders to consider before relying on a guarantee as a form of security, guarantees should not be dismissed altogether. A prudent lender should consult with legal counsel on the efficacy and suitability of any security package to avoid unpleasant surprises.'),
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	(86908,4730,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Jessika Stadwick'),
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	(86451,4707,'content_description','His Highness Sheikh Mohammad Bin Rashid Al Maktoum recently launched an initiative to transform Dubai into, among other things, a global centre for Islamic bonds (sukuk).'),
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	(86453,4707,'pageSummary','His Highness Sheikh Mohammad Bin Rashid Al Maktoum recently launched an initiative to transform Dubai into, among other things, a global centre for Islamic bonds (sukuk).'),
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	(86461,4707,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Azlin Ahmad'),
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	(86473,4707,'_yoast_wpseo_metadesc','His Highness Sheikh Mohammad Bin Rashid Al Maktoum recently launched an initiative to transform Dubai into, among other things, a global centre for Islamic bonds (sukuk).'),
	(86474,4708,'content','May 2013\r\n\r\n<hr />\r\n\r\nAccording to the Qatar Tourism Authority (QTA) a total of 48 new 5-star hotels with 13,151 rooms, 41 new 4-star hotels with 8,829 rooms, and nine 3-star hotels with 2001 rooms are planned and will be ready by 2016.  A further 10,452 apartment-style hotel rooms are in the planning stage.   This will no doubt rise as we come closer to the 2022 World Cup by when the QTA expects there to be in excess of 70,000 rooms.  As such hotel investors and operators can see massive growth potential in Qatar in the field in the immediate future.  But how does a hotel business become established given the particular laws of Qatar?\r\n\r\nThe Foreign Capital Investment Law (no. 13 of 2000) (the Foreign Investment Law) regulates foreign investment within Qatar and sets down a general principle at Article 2 that foreign investors are allowed to invest in all sectors of the national economy provided they have one or more Qatari partners owning a minimum of 51% of the capital.  Accordingly, foreigners wanting to establish a business enterprise are generally restricted to owning a maximum of 49% of any such enterprise.\r\n\r\nHowever an exemption to the 49% limit can be obtained by investment in certain economic sectors including agriculture; manufacturing; health; education; tourism; development of natural resources; mining; power; information technology; technical and consultancy services; entertainment, sport and cultural services; and distribution services.  There is an overriding qualification that such investments are to be consistent with state development plans which allows the Ministry of Business and Trade discretion in granting the exemption.\r\n\r\nTherefore, anyone wanting to construct a hotel in Qatar may wish to consider making an application under the tourism exemption to the Ministry of Business and Trade’s Investment department for consent to establish a wholly—owned subsidiary by which a hotel business can operate.  However this is an arduous process, relies on the Minister’s discretion and support will also be needed from the QTA in this regard.\r\n\r\nThe QTA’s requirements include a detailed feasibility study, an initial approval obtained from the Ministry of Municipality and Urban Planning and the conducting of a service trial.  For novices in the field, the QTA recommends engaging the services of recognised consultants for the project as this will facilitate communication between the QTA and the applicant.  Operation is a big-ticket item for the QTA and the QTA regards the lack of proper operational systems as one of the major problems hotel investors face after the hotel is established and is in operation.\r\n\r\nDiscussions with some of consultants to the hotel industry indicate that in Qatar the greatest problem is finding an operator for the hotel.  Too often local investors build what they think will be a hotel but the floor-plans used are only suitable for an apartment block.  For example a 10 square metre room is set aside as a laundry only for the investor to find the hotel operator requiring a laundry 10 times that size or an off-site purpose-built facility.  This leads to the expense of major re-fits or to loss of a hotel operator and the investor being forced to re-think the projected use for the building.\r\n\r\nTherefore any potential hotel investors need to keep in mind that choosing an operator needs to be organised early in the piece and certainly involved in the planning and design stages of the project in order to avoid rejection of the product at a later stage.\r\n\r\nFor international operators there are also issues to be considered as well.  The Commercial Register Law (25 of 2005) provides that “no person may engage in commerce or establish a commercial shop unless registered in the Commercial Register”.  In order to register in the Commercial Register a foreigner needs to adhere to the capital requirements as established by the Foreign Investment Law.  Failure to do so can have criminal consequences.  For example Law No (25) for the year 2004 Regarding the Control over Non-Qataris’ Practise of Commercial, Economic and Professional Activities in Violation of the Law (The Proxy Law”) prohibits engaging in any “commercial, economic or professional activity” not authorised under the Foreign Investment Law and an offence can carry a one year prison term in addition to a fine of up to half a million Qatari Riyals.  Unfortunately, in Qatar we have not had the opportunity to see what a court will make of these prohibitions and the use of such wide terms.\r\n\r\nFurthermore, an exemption may not be available under the tourism exemption for operators only.  So what does an operator do?  One solution is to establish a company in Qatar with 51% Qatari ownership but many international companies are wary of the same, even where the profit distribution to the foreigner is higher than the 49% of shares it holds.  What often happens is that the operator enters into a management agreement with the owner and provides expertise, operating systems and the brand whilst providing management services to the hotel through its staff.  But without registering in the Commercial Register there is a risk that a breach of the aforementioned laws takes place.\r\n\r\nIf the words used in the Proxy Law “commercial, economic or professional activity” are given their literal meaning, the law probably has far reaching and unintended consequences.  Any action in Qatar, however benign, would lead to a breach of a serious criminal offence.  Meetings about business unconnected to Qatar, discussions about possible ventures outside Qatar, the delivery of firm brochures and analysis about world share markets would conceivably be prohibited.  It would be unlikely that the lawmaker intended such a wide operation without expressly overriding the existing laws.  However this does mean that for any hotel operator in Qatar that has not established a legal entity a great deal of care must be given to setting up the structure in such a way as to reduce any possible breach of the laws.  For example, any staff located permanently in Qatar must by law be employed by the sponsoring entity, so the hotel staff (including management) must be employed by the hotel itself, not the operator.  It is all the intricate matters of this nature that must be taken into account by international hotel operators in determining the best and most legally compliant structure to be used.'),
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	(86478,4708,'content_description','Doha has 17,964 hotel rooms available today, primarily in the 4 and 5-star hotels and deluxe apartment-hotel categories. The Doha Port also has fully-equipped berths for cruise ships to accommodate a minimum of 6,000 additional visitors at the highest international standards. '),
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	(86480,4708,'pageSummary','Doha has 17,964 hotel rooms available today, primarily in the 4 and 5-star hotels and deluxe apartment-hotel categories. The Doha Port also has fully-equipped berths for cruise ships to accommodate a minimum of 6,000 additional visitors at the highest international standards.'),
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	(86490,4708,'_yoast_wpseo_metadesc','Doha has 17,964 hotel rooms available today, primarily in the 4 and 5-star hotels and deluxe apartment-hotel categories. The Doha Port also has fully-equipped berths for cruise ships to accommodate a minimum of 6,000 additional visitors at the highest international standards.'),
	(86491,4709,'content','May 2013\r\n\r\n<hr />\r\n\r\nExclusive remedies clauses frequently arise in construction contracts in the UAE and often prove to be a hotly contested issue.  This article is therefore to consider exclusive remedies clauses from a UAE law perspective and, by comparison, briefly sets out the common law position (from where the concept is derived).\r\n\r\n<strong>The potential impact of an exclusive remedies clause</strong>\r\n\r\nA typical exclusive remedies clause in a construction contract may read as follows:\r\n\r\n“The Employer and the Contractor agree that their respective rights, obligations and liabilities as provided for in the Contract shall be exhaustive of the rights, obligations and liabilities of each of them to the other arising out of, under or in connection with the Contract or the Works.  Accordingly, except as expressly provided for in the Contract, neither party shall be obligated or liable to the other in respect of damages or losses suffered by the other which arise out of, under or in connection with the Contract or the Works, whether by reason or in consequence of any breach of contract or of statutory duty or tortuous or negligent act or omission.”\r\n\r\nAlthough it is customary for construction contracts to provide that specific remedies apply in certain circumstances (most notably in respect of liquidated damages in the event of delay and/or failure to satisfy certain performance criteria), a contractor is invariably required to discharge a multitude of other fundamental obligations and it is unusual for the contract to specify the remedy for a breach of each obligation.\r\n\r\nAccordingly, the effect of a widely drafted exclusive remedies clause can, on the face of it, be dramatic as the contractor may be absolved from liability in the event of breach unless an express remedy is referred to in the contract that applies to the breach in question.  Depending on the drafting, this could potentially lead to the employer being required to remedy big ticket items such as structural defects, at its own cost and expense.\r\n\r\nAdditionally, an employer could be deprived of compensation even if the contract specifies a particular and exclusive remedy for a particular breach if the remedy in question is unenforceable (perhaps on account of unclear drafting).\r\n\r\n<strong>Position under UAE Law</strong>\r\n\r\nWhile Article 258 of the UAE Civil Code provides that contractual provisions should be “given their true meaning” and the principle of freedom of contract generally prevails, Article 31 of the UAE Civil Code provides that this is only the position if a clause does not conflict with a mandatory provision of law.\r\n\r\nAs such and although much will turn on the relevant drafting, the following provisions place serious doubt over the enforceability of an exclusive remedy clause under UAE law:\r\n<ul>\r\n 	<li>Article 246(2), which states that “the contract shall not be restricted to an obligation upon the contracting party to do that which is 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”, thus suggesting all principles of law apply to contracts and cannot be excluded.</li>\r\n 	<li>Article 309.2, which states that “the judge may in all cases, upon the application of either of the parties, vary such agreement so as to make the compensation equal to the loss, and any agreement to the contrary shall be void.”  The protection afforded by this article could therefore be invoked if an exclusive remedies clause deprives a party of compensation.</li>\r\n 	<li>Article 878, which states that “the contractor shall be liable for any loss or damage resulting from his act or work whether arising through his wrongful act or default or not but he shall not be liable if it arises out of an event which could not have been prevented”.  As above, the inclusion of an exclusive remedies clause is contrary to this principle.</li>\r\n 	<li>Article 106(2)(c), which states that “the exercise of a right shall be unlawful if the interests desired are disproportionate to the harm that will be suffered by the other”.  This is potentially relevant to an exclusive remedies clause as prohibiting the employer from obtaining redress in respect of, say, a defective design is clearly prejudicial to the employer’s interests.</li>\r\n</ul>\r\nIt could also be argued that the use of an exclusive remedies clause to evade liability which would otherwise arise may result in unjust enrichment.  This is contrary to Articles 318 and 319 of the Civil Code.\r\n\r\n<strong>Position under Common Law  </strong>\r\n\r\nThe situation regarding the enforceability of exclusive remedies clauses is different under the common law as the usual rules of interpretation apply to exclusive remedies clauses, meaning that the clause will be construed in accordance with its natural and ordinary meaning.  As such, provided that an exclusive remedies clause is unambiguously drafted and validly incorporated into the contract, several judgments have confirmed that exclusive remedies clauses are, in principle, enforceable in common law jurisdictions and may therefore extinguish rights that would otherwise be available to the injured party.\r\n\r\nThe main exceptions to this rule arise if:\r\n<ul>\r\n 	<li>a court considers the exclusion to be unreasonable in which case the clause will be deemed void.  However, an exclusive remedies clause will be generally upheld if both contracting parties are commercial entities of relatively comparable bargaining strength and, for this reason, this ground is rarely successfully invoked in practice; and</li>\r\n 	<li>the drafting of the exclusive remedies clause is ambiguous.  In this situation, the clause will be construed against the party seeking to rely on it (and there are examples of courts being inventive in their approach to circumvent the effect of exclusive remedies as well as caps on liability).</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nNotwithstanding the questions regarding the enforceability of exclusive remedies clauses in the UAE, we recommend that employers in the UAE always resist their inclusion on the off-chance that such a clause is held to be legitimate and to avoid unnecessary uncertainty.  Similarly, contractors should find alternative ways to limit their contractual liability as they may be dangerously exposed if an exclusive remedies clause the contractor is seeking to rely upon is struck out.'),
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	(86509,4709,'_yoast_wpseo_metadesc','An exclusive remedies clause provides that a party’s remedy for breach of contract is restricted to the form of redress expressly prescribed in the contract to the exclusion of all other remedies that would otherwise be available at law. Such a clause means that a party’s rights and liabilities are codified in the contract.'),
	(86510,4710,'content','May 2013\r\n\r\n<hr />\r\n\r\nSuch employees will undoubtedly be aware of an abundance of commercially sensitive information. In that context, restricting the post-termination activities of employees is a necessary part of the business landscape today. It is however debatable how useful restrictive covenants are and to what extent they can really provide any protection. Moreover, it is questionable whether there are any incentives for employees in the UAE who are subject to post-termination restrictions to abide by them particularly siince enforcement options are limited. We consider these issues in relation to employees in the UAE. For the purposes of this article, we do not consider post-termination restrictions in the context of the DIFC.\r\n\r\n<strong>What is a post-termination restriction? </strong>\r\n\r\nIn simple terms, post-termination restrictions are contractual provisions which seek to protect an employer’s business by limiting the activities of employees after termination of employment. The most well-known category of post-termination restriction is the non-compete clause. Such clauses aim to prevent an employee from working with or setting up a business which may be in competition with his employer. However, this is not the only type of post-termination restriction.\r\n\r\nWhilst arguably less relied upon, non-poaching, non-dealing and non-solicitation clauses can be very useful to an employer. Those clauses have the following effect:\r\n<ol>\r\n 	<li>Non-poaching clauses – prevent a former employee from taking other employees with them upon termination;</li>\r\n 	<li>Non-dealing clauses – prevent a former employee from dealing with clients/customers/suppliers, regardless of which party approached the other; and</li>\r\n 	<li>Non-solicitation clauses – prevent poaching of clients/customers/suppliers of the former employer.</li>\r\n</ol>\r\n<strong>Legal Position</strong>\r\n\r\nIn many jurisdictions, the general position in relation to post-termination restrictions is that they are unlawful since they attempt to restrain trade. The starting point in the UAE however is that post termination restrictions (and specifically non-compete clauses) are lawful.\r\n\r\nArticle 127 of Federal Law No. 8 of 1980 (as amended) (the “Labour Law”) expressly states that where an employee performs a role which allows him to become acquainted with confidential information, the employer may put in place an agreement or include in the employee’s employment contract a provision which prevents an employee from working with a competing business after termination. This does not however give an employer freedom to unnecessarily restrict an ex-employee’s activities. Articles 909 and 910 of the Civil Code reiterate this position and go further than the Labour Law. Unlike the Labour Law, the Civil Code contains guidance as to the circumstances in which a restriction will be valid.\r\n\r\nGenerally, a non-compete provision must be reasonable, and should only restrain conduct to the extent necessary to protect the employer’s legitimate business and legal interests. It must therefore be limited in:\r\n\r\na. Time/duration;\r\n\r\nb. Place/geographical scope; and\r\n\r\nc. Nature/business sought to be restricted.\r\n\r\nA non-compete provision which is limited to 6 months in duration, the Emirate in which the employee worked and includes a sufficiently defined business scope is likely to be enforceable in the UAE. However, in the event that post-termination restrictions are deemed to be unenforceable (due to an excessive length for example) such provisions will not automatically be struck out in their entirety. More likely, the courts will “blue pencil” the provision. This means that the courts will ‘edit’ the clause by removing the wording that renders a clause unenforceable, leaving the remaining part enforceable.\r\n\r\nEven in cases where the above criteria are met, the ex-employer must also be able to prove that any restrictions upon which it intends to rely are necessary to protect a legitimate business interest – for example, a client connection, confidential information or a stable workforce – and that the restrictions are not being used simply to stifle or prevent competition.\r\n\r\nBearing this in mind, it is prudent for employers to approach post-termination restrictions with some caution.\r\n\r\n<strong>Who should have post-termination restrictions in their contracts? </strong>\r\n\r\nSince post-termination restrictions must be necessary to protect a legitimate interest, it follows that only certain employees will be in a position whereby their conduct after termination could pose a risk to the business. A very junior employee who is not working in a client facing role and does not deal with very sensitive information is unlikely to be held to the same standard in terms of post-termination restrictions as a senior, client-facing employee who deals regularly with confidential or commercially sensitive information. In this context, the abovementioned junior employee could argue that post-termination restrictions in his contract are void since there is no underlying desire to protect a genuine business interest.\r\n\r\n<strong>Enforcement </strong>\r\n\r\nIn the event that an employee is subject to contractual post-termination restrictions which an employer considers have been breached, an employer’s remedies are limited\r\n\r\nIn circumstances where an employee intends to breach or has breached post-termination restrictions, the most effective remedy is an injunction since this is a preventative measure and can essentially mean that damages or other remedies are irrelevant (since the breach is stopped before it takes place or very quickly after the event). However, injunctive relief is not provided in the UAE (outside of the DIFC). In practice therefore, an employer cannot prevent an ex-employee from acting in breach of a post-termination restriction. The effect of this is that any other relief in terms of civil action can be compensatory only (i.e. a claim for damages). This is not ideal since, for many employers, loss cannot be proven or quantified and the employer would prefer to stop the breach before it occurs.\r\n\r\nIn order to bring a claim for damages, a court will initially consider whether the relevant restrictions are reasonable. Furthermore, an employer must adduce evidence to show that the employer has suffered direct and actual financial loss as a result of the employee’s breach of the post-termination restrictions. This is often very difficult if not impossible to prove.\r\n\r\nMoreover, even in the event that an employer is successful with litigation dealing with post-termination restrictions, a costs award will not be given. Instead, each party bears his own costs irrespective of the outcome of the matter. This is a distinct disadvantage for both parties.\r\n\r\n<strong>Alternative Options</strong>\r\n\r\nIt is clear that an ex-employer’s remedies are limited and taking enforcement action is a lengthy and costly process.\r\n\r\nHowever, liquidated damages clauses are useful to some extent. A liquidated damages clause sets out a pre-estimate of the likely loss suffered by the employer in the event of a breach of a restriction. Ordinarily, in the event of a dispute regarding post-termination restrictions, the burden of proof is on the employer to evidence its loss (and prove that such loss arose as a direct result of the breach). Where a liquidated damages clause is used, the burden shifts to the employee to prove that the amount claimed in the clause has not actually been suffered by the employer.\r\n\r\nIn terms of additional measures that an employer can consider, garden leave is commonly used in conjunction with restrictive covenants for maximum effect. The inclusion of a garden leave clause in a contract of employment allows an employer to require the employee to spend all or part of the notice of termination period at home whilst continuing to receive his usual salary and benefits. The benefit of this is that it delays the employee from taking up other employment with a competitor. If the employer can show that the employee is undertaking other work in this period this is in breach of immigration regulations which has potentially serious consequences.\r\n\r\nIn addition to the above, the issue of breach of confidentiality is commonly intertwined with non-compete clauses. Where a breach in confidentiality can be proven, criminal complaints can be filed against the employee and this is obviously a serious deterrent for employees.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nPost-termination restrictions are difficult to enforce in the UAE. Employers should therefore consider the full menu of options available to them to include utilisation of garden leave, insertion of a liquidated damages provision and where appropriate filing criminal complaints. In all cases, post-termination restrictions act as a valuable deterrent for the employer.\r\n\r\nWe would recommend that careful drafting is used in all circumstances to ensure the value of post-termination restrictions and to put employers in the strongest possible position to protect their businesses.'),
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	(86524,4710,'_yoast_wpseo_metadesc','In a recovering economy, in order to grow business and gain a commercial edge, many companies may look to recruit key employees directly from their competitors.'),
	(86525,4711,'content','May 2013\r\n\r\n<hr />\r\n\r\nThe Decree was subsequently supplemented by a Cabinet Decision that named Al Maryah Island (formerly Sowwah Island and the home of Al Tamimi’s Abu Dhabi Office) as the designated Free Zone.  The initial announcement was very light on detail although it was stated to be issued pursuant to a Federal Law of 2004 regarding Financial Free Zones.  This is the same Law under which the Dubai International Finance Centre was established.  That initial announcement has since been supplemented by an announcement of the Executive Council of Abu Dhabi on the first of May filling in a lot of the details.\r\n\r\nAccording to the latest announcement, it appears that the new financial free zone, to be called the Global Market place Abu Dhabi (“GM-AD”) (although some translations have named it as “Abu Dhabi World Financial Market”) is to have its own regulatory structure.  In line with other free zones in Abu Dhabi it is to have its own Companies Registrar for the registration and regulation of companies established within the GM-AD.  However, in keeping with its focus on financial matters it is also to have a Financial Services Bureau which will be the Financial Regulator supposedly along the lines of the Financial Services Authority in the United Kingdom, and a two tier court system with a Court of First Instance and a Court of Appeal with the judicial system being overseen by a Chief Justice.  It is apparently intended that the GM-AD will enter into Memoranda of Understanding with the other judicial authorities in Abu Dhabi regarding the enforceability of the decisions of its Courts outside the Free Zone.\r\n\r\nAs you would expect, the activities listed in the announcement as being the proposed activities of the GM-AD are very heavily weighted to financial matters and things ancillary thereto.  These include in all their various forms financial and banking services (including Islamic Banking), funds and fund management, securities and foreign exchange broking and trading, quite a heavy emphasis on commodities and commodity trading, insurance and re insurance as well as legal and accounting services.\r\n\r\nCompanies set up in the  GM-AD can be 100% owned by non UAE Nationals and there is a 50 year tax exemption on the profits of companies and their employees arising out of their operations there.  There is also a customs duty exemption.  The Abu Dhabi Government is obviously trying to make it attractive to carry on business there.\r\n\r\nThe announcement is silent on the types of laws that will be introduced in the GM-AD and whether they will be based upon the civil code as are the laws of the UAE or whether they will be based upon common law such as English law.  On the basis that the aim of the  GM-AD is to be a global financial hub it is very likely to be the latter due to its pre eminence in international financial transactions.  There is also a hint in the fact that the announcement refers to “trusts” in its list of activities and trusts are only known under common law legal systems and not civil law systems.  The announcement is also silent on the language of the proposed new laws.  Again, because of the international nature of English and the fact that most common law lawyers are English speaking rather than Arabic speaking, if the laws are to be based on common law then they are almost certainly to be in English.  This is reinforced by the fact that the regulations of all the other Free Zones in Abu Dhabi are in English.  If the laws are in English then it is almost certain that the Courts will operate in English rather than Arabic.  This will all enhance the international nature of the GM-AD.\r\n\r\nAs yet, no dates have been officially announced for the actual commencement of operations of the GM-AD although both 2015 and possibly a rather ambitious end of 2013 have been mentioned in the press.  One thing that will also need to be considered, however, is the position of businesses that have already established themselves on Al Maryah in Sowwah Square or have bought plots of land on Al Maryah to develop buildings for their own use but whose business is “on shore” with the rest of the UAE.  Normally a company established in a free zone may not carry on business with the rest of the UAE without using an agent registered on shore in the UAE.   This will obviously cause some issues for those businesses.  However, the Federal Law under which the GM-AD is organized contains a provision allowing the Cabinet to pass a resolution to suspend this prohibition for up to four years as a transitional period and it will be interesting to see whether the provision is exercised. Alternatively, companies already established in what has become the GM-AD might be given the option to opt out of being part of the free zone which is an approach taken by the Qatar Financial Centre.\r\n\r\nThe other side of this of course is that those businesses who have established themselves to carry on activities on Al Maryah Island such as the shops and restaurants in the Galleria Shopping Mall in Sowwah Square will no longer need to have a local Emirati National holding at least 51% of the shares or being a National Sponsor if it is a branch as they will be able to be 100% owned.\r\n\r\nAll in all, based on what we know so far, Abu Dhabi appears to be putting together a well thought out and attractive regulatory regime as an important part of its Vision 2030 Strategic Plan and its attempt to diversify away from a carbon based economy.  It seems to be positioning the GM-AD as a serious competitor to the Qatar Financial Centre, the Bahrain Financial Harbour and the King Abdullah Centre in Saudi as well as the DIFC.\r\n\r\nFinancial trading is a 24 hour phenomenon and the Abu Dhabi Government sees the GM-AD as being an ideal location to cover that period when the Asian markets are winding down but before Europe has fully got into its stride.  The proof of the pudding is always in the eating but when Abu Dhabi puts its mind to doing something it generally does it well so we should expect the GM-AD to be a success.'),
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	(86535,4711,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Stephen Forster'),
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	(86537,4711,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.forster@tamimi.com'),
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	(86543,4711,'_yoast_wpseo_metadesc','Despite rumours circulating for some months, there was still a sense of surprise when it was announced at the end of April that the President of the United Arab Emirates, His Highness Khalifa Bin Zayed Al Nahyan had passed a Federal Decree creating a financial free zone in Abu Dhabi.'),
	(86544,4712,'content','May 2013\r\n\r\n<hr />\r\n\r\nHowever, and particularly under Kuwaiti law, under certain circumstances the ability to circumvent the protection provided by the corporate veil and to hold such owners, shareholders, directors and managers personally accountable and liable has been available since the passing of the Kuwait Companies Law No 15 of 1960 (the “Old Law”).\r\n\r\nUnder the Old Law, the ability to “pierce the corporate veil” revolved around actions made by leaders of a company (i.e., managers, board members) including but not limited to cheating, abuse of power, violation of constitutive documents and mismanagement. The process for filing such claims and obtaining the information to hold them accountable, however, was limited in nature.\r\n\r\nHowever, under the new Companies Law No 25 of 2012 (the “New Law”), there are several utilities available for stakeholders to hold certain individuals such as board directors, shareholders, and managers accountable for their actions. For example, under a shareholding company, the general assembly of shareholders, under Article 234, may file a lawsuit against its board of directors, and even in the event of liquidation, the respective liquidator retains the same authority. Furthermore, where the general assembly fails to file such a claim, Article 235 of the New Law provides a shareholder the ability to file a claim, in an individual capacity, on behalf of the company against the board. Notwithstanding the above, in the event a shareholder sustains personal damage, the same Article provides him the ability to file a claim in a personal capacity against the board.\r\n\r\nAlthough the aforementioned concepts are not uncommon under most contemporary jurisprudence, Chapter One of Book Thirteen (“Supervision and Inspection”) of the New Law (Articles 327 – 333) provides relevant stakeholders with expanded abilities to pierce the corporate veil.  For example, in the event the Ministry of Commerce and Industry (“MOCI”) holds an audit of a company either through its own volition (Article 327) or pursuant to a request made by shareholders / partners representing at least 5% of the capital (Article 329), the Ministry may, under Article 328, invite the general assembly or partners’ assembly to convene to cure such violation within fifteen days from the date of the meeting. In addition, in the event a request for an audit is dismissed by the MOCI, under Article 331, the respective stakeholders may file a claim in the Court of First Instance to issue a writ of mandamus to conduct such audit by an expert.\r\n\r\nFor those facing such an inspection or an audit, cooperation with the same has also become a fiduciary duty. Under Article 333, such personnel must grant access to the inspector of all respective records and documents, otherwise the penalties for failure to provide the same, under Article 335, may include imprisonment of not more than one year and a fine of not less than KD5,000 or more than KD 10,000.\r\n\r\nUltimately, the intent of the New Law in holding leaders and those with fiduciary duties accountable is evidenced by the enactment of the aforementioned articles.  Nevertheless, there are several other areas under the New Law where such areas are addressed and will be addressed in future articles. Furthermore, it should be viewed as a welcomed change under the law by providing enhanced risk management and protection to those seeking to conduct business in Kuwait and entrust individuals with its assets.'),
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	(86562,4712,'_yoast_wpseo_metadesc','Many business professionals establish their ventures under a corporate or limited liability structure in an effort to protect their personal assets from claims made by internal and/or external forces.'),
	(86563,4713,'content','May 2013\r\n\r\n<hr />\r\n\r\nChristina is no stranger to the Middle East and is well positioned to advise Korean clients on Middle Eastern business practices, legal process and decision making.  She spent time growing up in Iran and in Libya. Her sentimental attachment to the culture and commitment to understanding its ways has bought her back here with her own family.\r\n\r\nChristina originally found an interest in law whilst studying to become a diplomat.  She found the reasoning behind law attractive and the technicality appealed to her logical, mathematical mind. At law school in New York she found laws importance to the way we live and its relevance to the economy, society and remembers the US way of studying the discipline very exciting: “I really enjoyed the Socratic way the law schools conducted the classes in the US- lots of debate and hours of open thinking and discussion. I enjoyed every single day of law school.  It was one of the most rewarding experiences of my life.”\r\n\r\nBefore graduating Christina had identified corporate law as the path she wanted to follow, “corporate law is adaptable and I realised it could take me to Asia, to Europe, to the Middle East.  Not knowing where life would take me meant that I could relate this area of law to most countries I might find myself residing in.” Immediately upon graduation, it took her to the hard and fast-paced life at the New York office of one the world’s largest firms, DLA Piper. After the birth of her son gave her time to step back and relocate her family to Korea, she had eight months at home as a full-time mum.  “The break stopped me from burning out. It gave me a moment to prioritise and revaluate where I was going.”\r\n\r\nIt was around this period that her father died.  Christina’s father had been a diplomat and with him she lived a very international life. She has lived in eight countries from Vietnam, to Iran, to Germany and the death of her father prompted a lot of personal reflection.  “It’s challenging for me to reflect on my identity as it’s so linked to where you are from - which I struggle to really know.  When my father died I thought a lot about how happy we had been living in the Middle East.” This led to a lot of soul searching and the revival of Arabic lessons.\r\n\r\nWith her young family a priority, Christina went back to work in Korea, at the largest local firm, Kim &amp; Chang: “The move from an international law firm to a Korean firm relied upon my business languages.  It gave me great exposure to mediating between foreign clients in Korea and Korean clients conducting business outside the country.”\r\n\r\nHer time at Kim &amp; Chang was perfect training for her move to Al Tamimi, where she is doing a great job translating the Middle Eastern business sensibility and process to Korean clients. She made the move after six  years back in Korea where her longing for a return to the Middle East grew stronger.\r\n\r\nGoing to an Arabic firm was a strategic decision for Christina, who saw gaining a new perspective and independence as the key to being the best mediator between Korean and Arab business.  Christina identified Al Tamimi as a firm she’d had experience with in the past and as an ideal ‘home’ for her in the Gulf.  When comparing the culture of the team at Al Tamimi to her understanding of the wider legal market, Christina says: “There’s nothing comparable to Al Tamimi anywhere else in the world.”\r\n\r\nSo far she’s loving her job and life in Abu Dhabi. She has great views of the city from both her office and home and samples the city’s restaurants regularly.  “I don’t have a favourite restaurant yet, I have been surprised by the high standard of dining across the board in the UAE.  I also enjoy the supermarkets here which seem to sell everything from everywhere!”  Christina is a bit of an amateur chef who cooks a range of international cuisines in her spare time.  She is taking full advantage of the mix of cultures at Al Tamimi and regularly takes home arabic and indian cooking tips and recipes from the team.  “My assistant who is from India is a fabulous cook and I can learn what real Indian food is about.”\r\n\r\nAlthough after a short period the family are still to move all of their belongings over, her son is enjoying school in their new hometown and mum and dad are looking forward to further exploring their new environment. It’s been quite a journey to get here, but Christina feels like she’s found a place she can call home, a truly metropolitan city in the heart of the middle east.'),
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	(86567,4713,'content_description','Jongeun (Christina) Lee joined Al Tamimi’s Abu Dhabi office at the end of 2012.  She moved to the UAE from Korea, where she has honed her specialism as a ‘cultural interpreter’ between Korean and international business.  '),
	(86568,4713,'_content_description','field_59b641c07f473'),
	(86569,4713,'pageSummary','Jongeun (Christina) Lee joined Al Tamimi’s Abu Dhabi office at the end of 2012. She moved to the UAE from Korea, where she has honed her specialism as a ‘cultural interpreter’ between Korean and international business.'),
	(86570,4713,'_pageSummary','field_59e59b307dec8'),
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	(86572,4713,'_currentURL','field_59d35123ab1e7'),
	(86573,4713,'_yoast_wpseo_metadesc','Jongeun (Christina) Lee joined Al Tamimi’s Abu Dhabi office at the end of 2012. She moved to the UAE from Korea, where she has honed her specialism as a ‘cultural interpreter’ between Korean and international business.'),
	(86574,4714,'content','May 2013\r\n\r\n<hr />\r\n\r\nThe Strata Law’s core principle is the division of property into privately owned units and jointly owned common areas, which are managed by an Owners Association. This is similar to other strata laws around the world such as those in Australasia.\r\n\r\nCarefully considered and drafted Strata laws create a transparent structure for the management of the common areas and facilities and the administration generally of subdivided buildings or developments. This is primarily achieved through the use of an incorporated Owners Association to represent the owners’ collective interest.\r\n\r\nThe actual regulation and implementation of the Strata Law in Dubai has however resulted in a unique and evolving framework.\r\n\r\n<strong>The implementing regulations to the Strata Law </strong>\r\n\r\nIn April 2010, the Implementing Regulations to the Strata Law were issued as “Directions” rather than “Regulations”.\r\n\r\nIn simple terms, the Directions regulate the following:\r\n<ul>\r\n 	<li>the licensing and duties of surveyors and survey plans specifications;</li>\r\n 	<li>the content of Jointly Owned Property Declarations and Building Management Statements (the principal documents setting out the operational information in relation to any development);</li>\r\n 	<li>the developers’ disclosure obligations, consumer protection matters and the licensing and registration of Owners Associations;</li>\r\n 	<li>the constitutional rights and obligations of Owners Associations and stakeholders, including the functions and obligations of the Owners Association;</li>\r\n 	<li>procedural matters such as the calling of meetings and passing of resolutions; anD</li>\r\n 	<li>the role and obligations of the Owners Association Board and Association Managers.</li>\r\n</ul>\r\nThe fact that the Directions were not issued as “Regulations” (as was anticipated) created a measure of uncertainty as to how the same were to be implemented. To date, uncertainties still remain.\r\n\r\nOne issue frequently discussed is the legal capacity of the Owners Association. Although the Strata Law and Directions contemplated that an Owners Association would have legal personality, no Owners Association has so far been licensed, which is generally considered a requirement for legal personality pursuant to United Arab Emirates law.\r\n\r\nSome Owners Associations have nonetheless been granted provisional recognition for specific purposes by the Real Estate Regulatory Authority (“RERA”).\r\n\r\nThis uncertainty as to whether an Owners Association has legal personality creates the following legal challenges:\r\n<ul>\r\n 	<li>there is uncertainty as to the ability of the Owners Association to contract with third parties;</li>\r\n 	<li>there is uncertainty as to whether the Owners Association can open bank accounts;</li>\r\n 	<li>the status of the Owners Association Board is unclear;</li>\r\n 	<li>the ability of the Owners Association to sue or be sued is unclear.</li>\r\n</ul>\r\nDue to this uncertainty, many developers remain involved with managing their developments and still hold DEWA and district cooling accounts in their name.\r\n\r\n<strong>Is the Strata Law effective?</strong>\r\n\r\nAt this juncture the reader may be inclined to believe that the Strata Law and Directions are of little or no legal effect. Although it would be fair to say that the Strata Law and the Directions have not been implemented in line with the expectations of many, a measure of implementation is taking place through RERA.\r\n\r\nIn order to understand how implementation is taking place through RERA it helps to consider the problems that existed before April 2010 when the Directions were issued. At that time developers were very exposed in the financial crisis and were seeking to bolster cash flows from whatever sources were available. One of the sources of cash flow available to developers was the fees for the management of their existing built properties.\r\n\r\nA regulatory framework for the management of developments was therefore vital to prevent abuses by developers and to retain confidence in the market. In addition to publicizing the Directions RERA also amended them to require that developers obtain the consent of RERA prior to the levying of service charges upon owners.\r\n\r\nRequiring developers to obtain RERA’s consent prior to the issuance of service charge notices gives RERA the ability to withhold approvals if developers are not compliant and thereby ensure that developers take their compliance obligations seriously. In addition, RERA often require evidence that the goods or services required by the Owners Association have been procured in a transparent and competitive fashion, and may benchmark the price of such goods and services against their records of comparable services.\r\n\r\n<strong>The current situation</strong>\r\n\r\nDevelopers’ compliance obligations at present remain as set out in the Strata Law and Directions and include the following:\r\n<ul>\r\n 	<li>the obligation to file and have approved by the Land Department, Unit and Common Areas Site Plans;</li>\r\n 	<li>the obligation to file a Jointly Owned Property Declaration or Building Management Statement;</li>\r\n 	<li>in the case of master developers, the obligation to file Master Community Declarations.</li>\r\n</ul>\r\nIn addition RERA have sought to enforce compliance by developers through the use of both financial and building audits.\r\n\r\nNonetheless, due to the lack of legal capacity Owners Associations are said to be operating on an “interim” basis. The degree to which the Board of any Owners Association controls the management of a development can vary significantly. The effectiveness of what is in some cases joint control and management by the Board and developer is dependent on cooperation between the parties and a breakdown in this relationship can cause problems.\r\n\r\nRERA may intervene in the event of disputes between Owners Associations and developers and may, on a case by case basis, determine the legal rights of the Owners Association. Some of RERA’s dispute resolution techniques include facilitating the appointment of an independent Association Manager, calling additional General Assemblies, requiring building and financial audits, as well as convening and managing meetings between the parties in dispute. Association Managers are also licensed by RERA and are required to complete Dubai Real Estate Institute (part of RERA) courses as part of their accreditation.\r\n\r\n<strong>Strata in the DIFC </strong>\r\n\r\nThe Dubai International Financial Centre (“DIFC”) has a separate strata law. Nevertheless, the DIFC Authority faces similar implementation issues. We understand that at least one “Body Corporate” (the DIFC equivalent to an Owners Association) has its own bank account. It is not completely clear however how the DIFC will approach Body Corporate registration and the granting of legal status.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhilst the Strata Law and Directions may not have been implemented in the manner many predicted, they have nonetheless had a measurable impact on the management and administration of strata sub-divided developments in Dubai and have deterred bad practice amongst developers. It remains to be seen whether the manner of implementation to date represents a long term and sustainable model for the management of strata subdivided developments or can achieve international best practice for the same.'),
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	(86578,4714,'content_description','Law No 27 of 2007, Concerning Ownership of Jointly Owned Property in Dubai (“the Strata Law”), introduced the concept of “strata” ownership to Dubai. '),
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	(86580,4714,'pageSummary','Law No 27 of 2007, Concerning Ownership of Jointly Owned Property in Dubai (“the Strata Law”), introduced the concept of “strata” ownership to Dubai.'),
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	(86588,4714,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Katrine Kofoed'),
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	(86590,4714,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','k.kofoed@tamimi.com'),
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	(86596,4714,'_yoast_wpseo_metadesc','Law No 27 of 2007, Concerning Ownership of Jointly Owned Property in Dubai (“the Strata Law”), introduced the concept of “strata” ownership to Dubai.'),
	(86597,4715,'content','May 2013\r\n\r\n<hr />\r\n\r\nThe Patent Law is mainly based on the Patent Cooperation Treaty, adopted on 19 June 1970 at Washington D.C., and the Paris Convention for the Protection of Industrial Property, adopted on 20 March 1883. The Patent Law is also compliant with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).\r\n\r\nIn accordance with the Patent Law, a patent is a certificate granted by the government for the purpose of protecting new inventions. This protection is limited to the geographical borders of Jordan and is valid for a period of twenty years from the date of submitting the patent application to the relevant authorities. However for the patent protection to remain active, the applicant is required to pay the relevant fees on an annual basis.\r\n\r\nDue to rapid production development and recent increase in competition in the market, it is becoming critical for companies to continuously come up with new inventions and designs to keep ahead. The protection provided by patents can be crucial for the prosperity of innovative companies in an economy like that of Jordan which is characterized by constant change and challenges.\r\n\r\n<strong>Reasons for Patenting Inventions</strong>\r\n\r\nIn addition to the above, the following are just some of the reasons that should motivate companies to register patents:\r\n\r\nWhen a company registers a patent, it ensures a strong position in the market. This is because patents prevent third parties from utilizing the commercial benefits of new (registered) inventions. It also reduces the feelings of apprehension and unfair competition that are generated by the presence of counterfeiters.\r\n\r\nRegistering a patent increases the revenues obtained from an invention because steps can be taken to prevent imitators. This is very important as companies usually invest a lot of their money and time in the development of inventions.\r\n\r\nA company can generate revenue by registering a patent because a holder of a patent may authorize other parties to utilize their invention for a one-off payment or a series of regular payments.\r\n\r\nCompanies with registered patents may make use of the patents for the purpose of innovation and technological exchange. This is because companies may go into negotiations with other local and international patent holders and enter into agreements whereby the parties agree to exchange patents and technology they may need for their work or future innovations.\r\n\r\nIt increases the chances of a company obtaining financial endorsements with better interest and terms. This is because companies who hold significant patents are more likely to be able to find investors willing to finance future projects.\r\n\r\n<strong>Conditions for Patenting Inventions </strong>\r\n\r\nIn accordance with the Patent Law, an invention can only be patented if it satisfies the following conditions:\r\n\r\nA. 1) It must be new in terms of industrial technology and previously undisclosed to the public anywhere in the world, prior to the date of filing a patent application, or the priority date claimed in the application, pursuant to the provisions of the Patent Law. This includes disclosure whether in written or verbal description, or through use, or any other means which affect knowledge of the invention,\r\n\r\n2) Disclosure of an invention to the public shall not be taken into account if it occurs within a twelve month period before the date of filing the patent application (or the date of claiming priority in the application1), and if such disclosure was a result of an act committed by the applicant, or the result of an unlawful act committed by a third party against the applicant.\r\n\r\nB. It must involve an inventive step that, having regard to the prior art relevant to the patent application, it would not have been obvious to a person having ordinary skill in the prior art of the invention subject.\r\n\r\nC. It must be applicable to an industry, including any type of agriculture, fishing, service or industry in their widest senses including handicraft.\r\n\r\n<strong>Excluded Inventions</strong>\r\n\r\nThe Patent Law excludes the following from the list of inventions that can be patented in Jordan:\r\n<ul>\r\n 	<li>Inventions which, if exploited, would be contrary to public order or morality.</li>\r\n 	<li>Inventions where the prevention of its commercial exploitation is necessary to protect life and health of humans, animals, or plants, or to avoid serious prejudice to the environment.</li>\r\n 	<li>Scientific discoveries or theories, and mathematical methods.</li>\r\n 	<li>Diagnostic, therapeutic and surgical methods for the treatment of both humans and animals.</li>\r\n 	<li>Plants and animals, other than microorganisms.</li>\r\n 	<li>Biological processes for the production of plants or animals, other than non-biological and microbiological processes.</li>\r\n 	<li>Inventions which the owner registered outside of Jordan more than 18 months prior to the date of filing for registration in Jordan.</li>\r\n</ul>\r\n<strong>Granting Patents </strong>\r\n\r\nThe Patent Law provides for a specific method by which a patent shall be granted. A patent will be granted to the inventor who can then transfer it to others. However, if the invention is a result of a joint effort, each of the related parties shall have the right to the patent jointly and equally, unless they agree otherwise. If the invention is independently made by more than one person, the right to a patent shall be granted to the person who is the first to file his application with the Registrar of Patents.\r\n\r\nIn relation to inventions created during employment, a patent will be granted to the employer if the invention is a result of an employment contract which requires the employee to carry out a particular inventive activity, unless otherwise stipulated by contract. However, if the economic value of the invention is not foreseen by the employer and employee at the time the employment contract was entered into, then the employee is entitled to fair compensation proportionate to the value of the invention. If the two parties fail to reach an agreement regarding the amount of compensation, this will be determined by the competent court.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nEven though the registration of a patent may be a lengthy process at times, it often yields positive results. As such, companies that invest a lot of their money and time in the invention of new and innovative technology stand to gain much by patenting their inventions in an economy which is very fast changing.\r\n\r\n<address><em>Footnote: </em></address><address><em> </em></address><address><em>1. Pursuant to Article 10 of the Patent Law, an applicant may claim for priority in his application should such application be submitted in a foreign country, which is a signatory to a bilateral or multilateral agreement with Jordan in relation to the protection of industrial property, within no more than twelve months prior to submitting his application in Jordan. If the Registrar grants the applicant priority, then the application date shall be regarded as the same date on which the application was filed in the foreign country as per the Paris Convention for the Protection of Industrial Property.</em></address>'),
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	(86603,4715,'pageSummary','Patents in Jordan are managed by the Patents Registrar in the Ministry of Industry and Trade, and are governed by the Jordanian Patents Law No. 32 of 1999, as amended (the “Patent Law”).'),
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	(86619,4715,'_yoast_wpseo_metadesc','Patents in Jordan are managed by the Patents Registrar in the Ministry of Industry and Trade, and are governed by the Jordanian Patents Law No. 32 of 1999, as amended (the “Patent Law”).'),
	(86620,4716,'content','May 2013\r\n\r\n<hr />\r\n\r\nAt this time, there is still no formal process available to brand owners to record their valuable trademarks with the customs authorities in Kuwait in order to address the importation of counterfeit goods at the borders of the country.  This means that the ability to take effective action against the trade in counterfeit goods within the market in Kuwait is of critical importance.\r\n\r\nIn addition to the regular civil and criminal proceedings that a brand owner may bring against counterfeiters in order to enforce their intellectual property rights, the Commercial Control Department (the “CCD”) at the Ministry of Commerce and Industry in Kuwait provides a highly effective administrative mechanism through which enforcement actions can be taken. The CCD is the government authority within the Ministry of Commerce and Industry in Kuwait that is responsible for inter alia protecting intellectual property rights within the market.\r\n\r\nIn order for the CCD to take administrative action against a suspected trader dealing in counterfeit goods, the CCD requires the relevant brand owner to file an appropriate complaint.  The purpose of the complaint is to provide the CCD with all relevant details, including that of the target, that of the goods being counterfeited and the relevant rights that are infringed.\r\n\r\nThe preparation for a complaint to the CCD should include the following:\r\n<ul>\r\n 	<li>The identity of the target dealing in the counterfeit goods;</li>\r\n 	<li>Sample of the counterfeit goods sold or offered for sale and a receipt of the sale thereof (if this can be obtained); and</li>\r\n 	<li>A comparison of the counterfeit product with the authentic product confirming that the counterfeit product is in fact counterfeit.</li>\r\n</ul>\r\nOnce the above steps had been taken, a complaint can be filed with the CCD, providing it with the details obtained in the above mentioned preparatory steps as well as copies of the certificates of registration for the relevant trade mark rights that are being infringed. Further, it is very important to NOTE THAT THE CCD will also require samples of the authentic products that are being counterfeited.  The CCD will consider a complaint and refer it for further action to the investigation department within the CCD that is responsible for the specific area where the infringement is taking place.\r\n\r\nAl Tamimi &amp; Company recently assisted a manufacturer of a well-known brand of mobile and smart phone handsets in filing a complaint with the CCD and in conducting a very successful raid against an establishment offering counterfeit handsets for sale.  This particular matter commenced when Al Tamimi &amp; Company received information from a client’s distributor on the sale of suspected counterfeit goods.  Al Tamimi &amp; Company supported the client in preparing and filing the required complaint, followed up on the complaint and accompanied the CCD on the raid.\r\n\r\nThe CCD conducted the raid and found approximately 240 counterfeit mobile phone and smart phone handsets with an estimated value of more than US$ 35,000.   The counterfeit goods were seized by the CCD and the CCD also obtained an undertaking from the store owner not to deal in the offending goods again - subject to certain fines.  The powers of the CCD are not limited to seizing goods and it also has certain investigative powers allowing it to obtain information on the supply and distribution of goods.  In this particular CCD action, valuable information regarding the source of the counterfeit products was also obtained.\r\n\r\nThe CCD will submit samples of the seized goods, along with the authentic samples provided by the complainant, to the Criminal Evidence Department of the police to conduct an independent comparison of the goods.  The Criminal Evidence Department shall issue a report on the comparison of the counterfeit and authentic goods and if it confirms that the confiscated products are counterfeit, the matter will be transferred to the Commercial Public Prosecutor and the criminal courts of Kuwait.  The report prepared by the Criminal Evidence Department represents good evidence that the confiscated goods are counterfeit.  As the criminal prosecution authorities base their decision on whether to prosecute on the reports from the Criminal Evidence Department, there is a very high level of successful prosecution based on such evidence from the Criminal Evidence Department.\r\n\r\nThe CCD provides and effective mechanism to address the trade in counterfeit goods in the Kuwaiti market with the high level of detail required in complaints playing an important role in the criminal prosecution of counterfeit traders. If you require any assistance in respect of taking action against counterfeit trade in Kuwait, please contact Tarek Abu Mariam in the Kuwait office of Al Tamimi &amp; Company at t.abumariam@tamimi.com.'),
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	(86626,4716,'pageSummary','Like in many other jurisdictions in the Middle East, trade in counterfeit goods in Kuwait poses a significant challenge for brand owners.'),
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	(86637,4716,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86638,4716,'_yoast_wpseo_metadesc','Like in many other jurisdictions in the Middle East, trade in counterfeit goods in Kuwait poses a significant challenge for brand owners.'),
	(86639,4717,'content','May 2013\r\n\r\n<hr />\r\n\r\nIt is to be noted that despite the fact the new trademark applications must be filed electronically, the Saudi Arabian trademarks office still requires trademark applicants to submit hard copies of the priority documents - duly attested – if priority is claimed.\r\n\r\nThe Saudi Arabian trademarks office also now requires all legal representatives / agents to submit a list containing the brand owners they represent, along with fresh powers of attorney or an existing valid power of attorney. The Saudi Arabian trademarks office will use these powers of attorney to record the legal representatives / agents against each trademark and will then return the original documents to the concerned legal representative / agent.\r\n\r\nAs of 1 June 2013 the trademarks office will permit only one legal representative / agent to be recorded per brand owner.  No third party will be allowed to file a trademark application on behalf of a brand owner unless that person is registered with Ministry of Commerce &amp; Industry as the agent representing the relevant brand owner.\r\n\r\nThe circular of 6 April 2013 came in response to the Ministerial Decree No. 1147 of the Saudi Arabian Ministry of Commerce &amp; Industry issued on 15 October 2012 (30/11/1433 H.) that provided that the publication of trademarks shall be made through the website of the Ministry of Commerce &amp; Industry.\r\n\r\nThe Ministerial Decree included amendments to the articles of the Saudi Arabian regulations for the Trademark Law No. M/21 for 2002, namely 10-11, 13, 17, 20, 23-24, 27, 29 and 32 which required publication of certain actions in respect of a trademark, including in respect of:\r\n\r\n- Acceptance;\r\n\r\n- Renewal;\r\n\r\n- Change of ownership (Assignment);\r\n\r\n- Amendments to goods/services;\r\n\r\n- Amendments of a trademark;\r\n\r\n- Cancelation of a trademark; and\r\n\r\n- Licensing of a trademark.\r\n\r\nDuring January 2013, the Saudi Arabian Ministry of Commerce &amp; Industry officially launched the new webpage and commenced the implementation of the Ministerial Decree. At this time, the new webpage is fully operational and any party with access to the internet can review published trademarks.\r\n\r\nAnother notable development at the Saudi Arabian trademarks office is that it is now capable of examining new trademark applications.'),
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	(86641,4717,'lawUpdateArticleMonth','4701'),
	(86642,4717,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(86643,4717,'content_description','On 6 April 2013 (26/5/1434 H) the Saudi Arabian trademarks office issued a circular stating that it will no longer receive trademark applications in hard copy as it would only receive new applications electronically.'),
	(86644,4717,'_content_description','field_59b641c07f473'),
	(86645,4717,'pageSummary','On 6 April 2013 (26/5/1434 H) the Saudi Arabian trademarks office issued a circular stating that it will no longer receive trademark applications in hard copy as it would only receive new applications electronically.'),
	(86646,4717,'_pageSummary','field_59e59b307dec8'),
	(86647,4717,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/may-5/electronic-services-at-the-saudi-arabian-trademarks-office.html'),
	(86648,4717,'_currentURL','field_59d35123ab1e7'),
	(86649,4717,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Bassam Al Azzeh'),
	(86650,4717,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(86651,4717,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','b.alazzeh@tamimi.com'),
	(86652,4717,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(86653,4717,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(86654,4717,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(86655,4717,'lawUpdateArticleNoWriters','1'),
	(86656,4717,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(86657,4717,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
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	(86659,4717,'lawUpdateArticlePractices','1'),
	(86660,4717,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86661,4717,'_yoast_wpseo_metadesc','On 6 April 2013 (26/5/1434 H) the Saudi Arabian trademarks office issued a circular stating that it will no longer receive trademark applications in hard copy as it would only receive new applications electronically.'),
	(86662,4718,'content','May 2013\r\n\r\n<hr />\r\n\r\nThis draft law is intended to replace Federal Law No. 4 of 1979 concerning the Suppression of Fraud and Deception in Commercial Transactions and is aimed at protecting consumers and regulating the market in the UAE.  A key feature of the new draft law is that it compliments the existing enforcement mechanisms in respect of intellectual property rights and especially trademarks.\r\n\r\nThe existing legal framework for fighting counterfeiting activities in the UAE comprises the Federal Trademarks Law No. 37 of 1992 as amended, Federal Law No. 4 of 1979 concerning the Suppression of Fraud and Deception in Commercial Transactions and the GCC Customs Law.  This article will explore how the new draft law will impact the existing legal framework for addressing counterfeiting in the UAE.\r\n\r\nIn terms of the new dart law, any act of selling, displaying, and possessing for the purpose of sale any counterfeit goods is defined as an act of commercial fraud. Furthermore new dart law prohibits the importation, exportation, re-exportation, manufacturing, storage, rental, marketing, selling, or possessing (even if not for the purpose of selling) any counterfeit goods.\r\n\r\nCounterfeit goods are defined in the draft law as “commodities bearing a trademark identical to a legally registered trademark without authorization”. Accordingly, the scope of protection provided by this law will be limited to trademarks only and does not cover any other intellectual property rights. Furthermore, the protection would be only for registered trademark and against the unauthorized use of identical trademarks only, and not look-alikes.\r\n\r\nThe new draft law establishes a Higher Committee for combating commercial fraud at a federal level (“the Committee”), with a sub-committee in each Emirate (“Sub-Committee”). The Committee will study reports on fraud referred to it by specialized authorities and will take the appropriate measures, while studying the penalties stipulated by the draft law and the obstacles that may face the law’s application and suggestions for overcoming these obstacles. It is a positive development to have a single body oversee the implementation of the law on a federal level. However, it is not foreseen that the Committee will be the authority where complaints would be submitted, and it is does not establish a single complaint procedure through this Committee that cover all Emirates. It is worth noting that a similar committee is already established by virtue of the current law which is called the National Committee for Combating Commercial Fraud.\r\n\r\nA major development in this new draft law is the hefty penalties for acts of counterfeiting. Penalties have always been considered a limitation in the current law as they do not act as a deterrent and both brand owners and practitioners have sought an increase in these penalties on a continuous basis.  The penalties under the current law concerning the Suppression of Fraud and Deception in Commercial Transactions are imprisonment up to three years and fines of up to 10,000 dirhams (USD2,740), and under the Trademarks Law, the penalties are imprisonment of up to one year and a fine that is not less than 5,000 dirhams (USD1,370). In the new draft law the proposed penalties are imprisonment up to two years and fines that reaches up to 250,000 dirham (USD68,500) or both, which is in addition to the destruction of the counterfeit goods. The new draft law further provides for a higher fine that reaches up to 1 million dirhams (USD274,000) if the counterfeit products are in the nature of or related to pharmaceutical or food products.\r\n\r\nThe new draft law further provides for the closure of the violating entity in case of activities related to counterfeit pharmaceutical or food products and also in case of possessing counterfeit goods while knowing that it is counterfeit. If the violating entity is a department store, the draft law has provided for a mechanism to close only the section where the counterfeit goods are found or that is related to the counterfeit goods, as opposed to closing the whole store.\r\n\r\nIn the event that an offence is committed for a second time, the penalty would be the cancellation of the trade license of the establishment or doubling the penalty.\r\n\r\nDespite these high penalties, the draft law entitles the Minister of Economy to issue decisions allowing the re-exportation of counterfeit goods to the country of origin. The re-exportation of counterfeit goods is not a new phenomenon, as it is also allowed under the current law concerning Suppression of Fraud and Deceit.  However, re-exportation under the existing law is limited to food, agricultural, pharmaceutical and natural products only, while the new draft law may allow for the re-exportation of goods of any nature. The wider scope of the new draft law with respect to the possible re-exportation of goods appears to be a step backward in the fight against counterfeit trade and such re-exportation should have been limited to specific situations subject to very specific conditions. It is hoped that the legislature will set some limitations on and make such re-exportation specific to strict conditions in the implementing regulations that are to be issued.\r\n\r\nA further development in the new draft law is that it provides the authorities the power to request all information, documents and invoices related to counterfeit goods, and traders are obliged to comply with such requests. It is however, not clear to what extent brand owners will have the right to obtain relevant information from authorities.\r\n\r\nThe new draft law further provides for a mechanism for settlement with respect to breaches of the law, except when it is related to pharmaceutical and food products. A request for settlement must be made by the offender to the Sub-Committee. A settlement shall be on the basis of the payment of compensation to be determined by a Ministerial Decree to the relevant authority that has performed the inspection and seizure of counterfeit goods, provided that the amount payable in settlement shall not exceed the maximum penalty imposed by the new draft law. In case the offender rejects a settlement, the Sub-Committee shall transfer the matter to the Public Prosecutor for further prosecution. It is not clear however, whether brand owners will have any role to play in this settlement mechanism.\r\n\r\nThe new draft law proposes to increase the time period in which the seized goods must be released if the seizure done by the administrative authority was not confirmed by a Court order. According to the Current law, the seized goods shall be released after 15 days of the seizure. However, in terms of the new draft law the time period shall be 30 days after the seizure. If no court order is obtained and the seized goods are released, the new draft law does not provide for compensation for the owner of the goods, contrary to the current law which provides for compensation if a claim was wrongly made and the goods are released.\r\n\r\nThere has been a misconception that the new draft law will change the enforcement regime in the UAE.  However, a careful analysis of the new draft law proves that the new law will include the same principles of the existing law with a significant increase in the penalties provided for.\r\n\r\nThe new draft law is a positive enhancement of the existing enforcement framework in the UAE and should increase the effectiveness of enforcement mechanisms through deterrent penalties - which have been long awaited. After the new draft law is approved and come into force, implementing regulations should be issued which shall provide further explanation and details of the law.'),
	(186997,4718,'core_values',''),
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	(86663,4718,'_content','field_59b649b5c8b2b'),
	(86664,4718,'lawUpdateArticleMonth','4701'),
	(86665,4718,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(86666,4718,'content_description','A new draft Anti-Commercial Fraud Law was endorsed in January 2013 by the Cabinet in the UAE. '),
	(86667,4718,'_content_description','field_59b641c07f473'),
	(86668,4718,'pageSummary','A new draft Anti-Commercial Fraud Law was endorsed in January 2013 by the Cabinet in the UAE.'),
	(86669,4718,'_pageSummary','field_59e59b307dec8'),
	(86670,4718,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/may-5/new-draft-anti-commercial-fraud-law-in-the-uae.html'),
	(86671,4718,'_currentURL','field_59d35123ab1e7'),
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	(86675,4718,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(86676,4718,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
	(86677,4718,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(86678,4718,'lawUpdateArticlePractices','1'),
	(86679,4718,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86680,4718,'_yoast_wpseo_metadesc','A new draft Anti-Commercial Fraud Law was endorsed in January 2013 by the Cabinet in the UAE.'),
	(86681,4719,'content','May 2013\r\n\r\n<hr />\r\n\r\nIn a fund transfer, an originator instructs his/her financial institution to transfer a specified amount of money to a beneficiary either domestically or internationally. Typically, the most commonly used currency to transfer funds internationally is US dollars or Euros. In order to execute the remittance of the transfer, the originator’s financial institution transfers the funds through an intermediary (correspondence) if not the beneficiary bank. A transfer of funds in US dollars is executed through US financial institutions. The question that such transactions raise is that to what extent sanctions affect the liability of the originator’s domestic bank or financial institution? The below judgment involves a scenario and the approach adopted by Dubai Courts.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe Claimant (Originator), a UAE based company, instructed a UAE financial institution (the Respondent) to transfer the amount of USD 80,000 to the Beneficiary, an overseas company. This amount was the purchase price of goods the Claimant purchased from the Beneficiary Company. The Respondent initiated the fund transfer, however, the intermediary bank (Correspondent) appropriated the funds due to financial sanctions levied by the Office of Foreign Assets Control (OFAC).\r\n\r\nDue to the appropriation, the funds transferred were not delivered to the Beneficiary and in return the Beneficiary Company refrained from delivering the purchased goods. Consequently the Claimant filed for legal action before the Dubai Court of First Instance seeking a court order against the Respondent to reimburse the amount transferred. During the hearings before Dubai courts, the Respondent submitted an application to the court requesting the joining of the Correspondent “located in New York” to the case on the grounds that the funds transferred were attached by the Correspondent due to OFAC sanctions.\r\n\r\n<strong>Procedural History</strong>\r\n\r\nThe Court of First Instance issued a decision dismissing the case. The Claimant appealed before the Dubai Court of Appeal which was dismissed, because the losses suffered by the Claimant were not caused by the actions of the Respondent. The case was then appealed to the Dubai Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nBefore the Court of Cassation, the Claimant argued that the Appeal Court erred in rejecting the appeal due to the lack of the liability of the Respondent on the grounds that the loss suffered by the Claimant resulted by a third party.\r\n\r\nThe Claimant further argued that the Respondent was under a contractual obligation to ensure the receipt of the fund transfer and that the Respondent’s contractual obligation was to deliver the funds transferred from the Claimant to the Beneficiary.\r\n\r\nThe Claimant further noted that due to the appropriation of the funds by the Correspondent the Beneficiary did not deliver the goods purchased by the Claimant. Furthermore, the Correspondent was appointed by the Respondent as its agent to undertake its contractual obligations to complete the fund transfer. Therefore, the Respondent is liable for the actions of its agent (the Correspondent in such instance) especially since the Claimant paid the commission and costs of the fund transfer to the Respondent.\r\n\r\n<strong>The Court </strong>\r\n\r\nThere are several key and important points noted by the Dubai Court of Cassation.  The first is that three elements were identified to ascertain the liability of a financial institution when completing a fund transfer. The second is the grounds upon which a financial institution may refute such liability. The third is the standard of care expected by financial institutions when completing a fund transfer.\r\n\r\nThe first key point noted by the Dubai Court of Cassation is that three elements must be present in order for the Financial Institution to be liable: (i) error, (ii) damages/losses and (iii) a causal link between the error and the damages suffered.  Such liability is governed by clauses of the terms and conditions for transferring funds executed between the financial institution and their customers whether such liability is stated explicitly, implicitly or as per the custom adopted by financial institutions.\r\n\r\nFurthermore, financial institutions are liable for damages or losses caused to their customers even if such damages resulted from errors of agents, legal representatives, employees or an entity performing the obligations on behalf of the financial institution provided the presence of the aforementioned three elements.\r\n\r\nThe second important point noted by the Dubai Court of Cassation is that financial institutions may refute liability.  The court further held that, financial institutions may refute their liability by proving the fulfillment of its commitments or the lack of the causal link between the financial institution and the damage or loss sustained by its customer.\r\n\r\nLastly, the Dubai Court of Cassation noted that financial institutions are responsible to exercise extraordinary care in initiating and completing a fund transfer. The consideration of whether a financial institution exercised such extraordinary care is subject to the discretion of the court without supervisory review from the Court of Cassation.\r\n\r\nIn this instance, The Court of Appeals held that the Respondent had performed its obligation by transferring the funds, however, due to the fact that the transfer order issued by the Claimant included the name of a financial entity upon which financial sanctions were imposed, the funds were therefore attached by the Correspondent in accordance with the rules of OFAC. In light of this, the Court of Cassation concluded that the Respondent did fulfill its obligations set forth in the funds transfer and exercised the required level of extraordinary care. The funds transferred were attached by the Correspondent due to the mention of an entity upon which OFAC financial sanctions are imposed hence the error and consequently the liability are not attributed to the Respondent. Therefore, the Court of Cassation upheld the appealed judgment and rejected the Claimant’s petition.\r\n\r\n<strong>Practice note</strong>\r\n\r\nReading of the Articles of the UAE Commercial Code pertaining to fund transfers provides that banks and financial institutions are under the obligation to deliver the funds transferred to the Beneficiary and therefore liable if the end result was not achieved. However, in the judgment above, UAE Courts have reduced the liability of a financial institution in the event that a correspondent acts independently of the financial institution and appropriates funds in accordance with international sanctions.\r\n\r\nFor any queries in relation with economic sanctions, please contact Ibtissam Lassoued, Special Projects Department, at <a href=\"mailto:i.lassoued@tamimi.com\">i.lassoued@tamimi.com</a>\r\n<h3><strong> </strong></h3>'),
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	(86685,4719,'content_description','Fund transfers for commercial and consumer transactions are widespread today. Nevertheless, fund transfers are influenced by international political and economical factors and considerations which may result in imposing sanctions against certain countries or entities that affect the transfer of funds across borders. '),
	(86686,4719,'_content_description','field_59b641c07f473'),
	(86687,4719,'pageSummary','Fund transfers for commercial and consumer transactions are widespread today. Nevertheless, fund transfers are influenced by international political and economical factors and considerations which may result in imposing sanctions against certain countries or entities that affect the transfer of funds across borders.'),
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	(86689,4719,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/may-5/uae-liability-of-banks-and-financial-institutions-for-fund-transfers-when-financial-sanctions-are-in.html'),
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	(86695,4719,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Marwa El Mahdy'),
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	(86697,4719,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
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	(86699,4719,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(86707,4719,'_yoast_wpseo_metadesc','Fund transfers for commercial and consumer transactions are widespread today. Nevertheless, fund transfers are influenced by international political and economical factors and considerations which may result in imposing sanctions against certain countries or entities that affect the transfer of funds across borders.'),
	(86708,4720,'content','May 2013\r\n\r\n<hr />\r\n\r\nJurisdiction is an extremely important issue that should be taken into consideration:\r\n\r\na) prior to concluding any contract;\r\nb) at the conclusion of a contract; and\r\nc) whenever a dispute arises that requires recourse to the courts.\r\n\r\nAccording to the relevant articles of the UAE Constitution and the UAE Civil Procedure Law (the “CPL”), any legal action must be filed before the courts of the relevant Emirate having jurisdiction, failing which the court may dismiss the action on the grounds that it has no jurisdiction to hear the matter. This is because most jurisdictional issues are classified as Public Order matters which the courts should address sua sponte  even if the parties themselves do not address them.\r\n\r\nHowever, the failure of a practitioner (the “practitioner”) to determine the competent court to file a claim will result in the loss of time, effort and money and could negatively affect the practitioner’s prospects of success if the court dismisses the case on the grounds of lack of jurisdiction; such a situation will embarrass the practitioner as it would reflect his failure to fulfil his professional research obligations at an appropriately early stage (i.e. not sufficiently considering the available facts and law during the pre-suit stage).\r\n\r\nIn order to avoid such an undesired situation a practitioner should take into consideration the  correct interpretation of the court’s domestic jurisdiction of  section 5 stated below that we will shed light on  in this article,  particularly in terms of the common practice/understanding (the “Common Understanding”) and the extent to which it can be applied in light of the precedents issued from the Dubai Court of Cassation.\r\n\r\nSection 5 of article 31 of the CPL provides that:\r\n\r\n“In circumstances other than those stipulated in Article 32 and Articles 34 to 39, it may be agreed that a particular court will have competence to hear a dispute. In this event, competence lies with this court or the court in the jurisdiction of which the defendant has an address, place of residence or place or work”.\r\n\r\nIt is clear from this article that parties can agree to have their case adjudicated before a certain court that originally had no jurisdiction or was not locally competent  (hereinafter the “Selected Court”), except in the following circumstances:\r\n<ol>\r\n 	<li>Article 32: a) In actions in rem or actions for the recovery of a thing possessed by another<sup>,1</sup> the jurisdiction shall belong to the court in whose precinct the real estate or part thereof is located if such real estate is located in several court precincts; b) In actions quasi in rem<sup>2</sup>, the jurisdiction shall belong to the court in whose precinct the real estate or defendant’s domicile is located.</li>\r\n 	<li>Article 34: In cases related to estates and lodged before partition thereof by the estates or by some heirs against each other, the jurisdiction shall belong to the court in whose precinct the deceased’s last domicile is located;</li>\r\n 	<li>Article 35: a) In cases related to commercial bankruptcy, the jurisdiction shall belong to the court in whose precinct the bankrupt’s business is located. If he has several businesses, the jurisdiction shall belong to the court of the business which he has taken as head office of his commercial affairs; b) If the trader retires from the trade, the case shall be lodged before the court to which the defendant’s domicile belongs; c) Cases arising from proceedings of inspection shall be lodged before the court which has declared the bankruptcy.</li>\r\n 	<li>Article 36: The jurisdiction for disputes related to supplies, contracting, residential rents and wages of workers, craftsmen and labourers shall belong to the court of the defendant’s domicile or the court in whose precinct the relevant agreement was concluded or executed.</li>\r\n 	<li>Article 37: In disputes related to the claim of an insurance amount, the jurisdiction shall belong to the court in whose precinct the beneficiary is domiciled or the place of the insured property.</li>\r\n 	<li>Artilce 38: a) In cases requesting that temporary or summary proceedings be taken, the jurisdiction shall belong to the competent First Instance Court in whose precinct the defendant’s domicile is located, or to the court in whose precinct the proceedings are requested to be taken; b) in summary actions related to the execution of judgments and deeds, the jurisdiction shall be to the court in whose precinct the execution is effected.</li>\r\n 	<li>Article 39: The court looking into the principal action shall be competent to examine the incidental demands. However, a defendant in the case of a guarantee may invoke the lack of jurisdiction of the court if it is established that the principal action was merely filed with the aim of bringing him before a court other than the court having jurisdiction.</li>\r\n</ol>\r\nA quick reading of section 5 supports the idea that, in circumstances other than those stipulated in article 32 and articles 34-39 of the CPL, parties can agree to bring the competence to the selected court to adjudicate any dispute that might arise between them during the execution of their contract. In this event, competence lies with this selected court or the courts in the jurisdiction where the defendant has an address, place of residence or place or work.\r\n\r\nDue to the misinterpretation of section 5 of article 31 during the contracting stage, parties used to incorporate a clause in their contracts whereby they gave the Dubai Courts the jurisdiction to adjudicate disputes that might arise of or in connection to their contracts, even though the Dubai Courts had no original jurisdiction as a matter of law (de jure)  (the “Clause”).\r\n\r\nThe core question here is:\r\n\r\n<strong>Will the Dubai Courts recognise  the Clause and adjudicate the case?</strong>\r\n\r\nThe Dubai Court of Cassation has answered this question and put an end to the  confusion and the misinterpretation of section 5 of article 31.It laid down principles that totally contradict the Common Understanding, which can be summarized as follows:\r\n\r\nThe Dubai Courts represent a judicial system that is independent from the federal judicial system and other legal systems of the UAE. The Dubai Courts must abide by the limitations imposed on their jurisdiction and may not actively or passively transgress those limitations. They may not give up their jurisdiction or oust the jurisdiction of another national court. Such jurisdiction, being constitutionally conferred, is a rule of public policy in respect of which no agreement may be made to the contrary. Accordingly, it is not a matter of local jurisdiction to be decided only by the court that is part of the same judicial system and it has to be addressed by the court sua sponte for the purposes of determining whether or not it has jurisdiction to adjudicate the case. An agreement between the parties to apply the laws of the Emirate of Dubai does not by itself confer jurisdiction upon its courts.\r\n\r\n<strong>Index: Jurisdiction – Exclusive Jurisdiction </strong>\r\n\r\nPrinciple, 2010 Issue (Civil) set out in the decision that was handed down by the Dubai Court of Cassation on 14.03.10 in Property Appeal No. 58-2009\r\n\r\nFurthermore, when applying the above article, the Dubai Court of Cassation distinguish between the competence of the judicial institutions in the Emirate of Dubai and the Federal one, on the ground that the courts in the Emirate of Dubai are independent from the federal judicial systems; and hence section 5 of article 31 of the CPL shall not be applicable in terms of the jurisdiction whenever it brings the competence to the Dubai Courts from a federal court or vice-versa. According to the Court of Cassation, this matter is related to public policy that parties cannot contractually agree to depart from and shall not, in any case, be considered a question of local jurisdiction.\r\n\r\nIn line with the above, the Dubai Court of Cassation, in case 36/2007 and 39/2007 civil appeal held that:\r\n\r\n“it has been settled by this court that the courts in the Emirate of Dubai are independent from the federal judicial systems and the former shall not override their competence and shall not transgress it positively or negatively; consequently, the court shall not waive its competence and shall not take away the competence of another local court; As this type of judicial competence is related to public order and the court shall decide on it sua sponte in order to determine whether it has jurisdiction or not to adjudicate the case”.\r\n\r\n<strong>Conclusion:</strong>\r\n<ol>\r\n 	<li>The Dubai Court of Cassation has clarified in its principles that the courts in the Emirate of Dubai are independent from the federal judicial system; hence, section 5 of article 31 of the CPL does not apply and accordingly parties cannot agree in their contracts to bring the competence to the Dubai Courts when these are not originally competent courts as a matter of law (de jure) - or agree to take competence away from them in favour of other courts located in another Emirate - whenever the Dubai Courts are originally competent to adjudicate the case.</li>\r\n 	<li>The Dubai Court of Cassation has also clarified that this type of judicial competence is related to public order and the court shall decide on it sua sponte  in order to determine whether it has jurisdiction or not to adjudicate the case.</li>\r\n</ol>\r\n&nbsp;\r\n\r\n<address>Footnotes:</address>\r\n<ol>\r\n 	<li><address>i.e. action for a thing.</address></li>\r\n 	<li><address>Action related to a defendant’s interest in property.</address></li>\r\n</ol>'),
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	(86734,4720,'_yoast_wpseo_metadesc','According to the relevant articles of the UAE Constitution and the UAE Civil Procedure Law (the “CPL”), any legal action must be filed before the courts of the relevant Emirate having jurisdiction, failing which the court may dismiss the action on the grounds that it has no jurisdiction to hear the matter.'),
	(86735,4721,'content','May 2013\r\n\r\n<hr />\r\n<p class=\"MsoNormal\"><strong>Background</strong></p>\r\n<p class=\"MsoNormal\">The Appellant (an individual) filed an action to cancel an administrative decision approving his resignation and terminating his employment on the basis that he did not tender his resignation (he claimed he was forced to resign).  The Appellant’s employer was a governmental entity (the Respondent). The Appellant argued that the decision was issued in contravention of the law since he was not notified of the approval of his resignation within the time limit prescribed by law. The Appellant thus filed his action before the Abu Dhabi Court of First Instance in order to have the administrative decision cancelled and compensation to be awarded to him in the amount of AED 10 million.</p>\r\n<p class=\"MsoNormal\">The Court of First Instance held that it did not have  subject-matter jurisdiction to hear the application to cancel the termination decision, referring the matter to the Court of Appeal in order to be heard as a grievance in accordance with Article 81 of the Abu Dhabi Civil Service Law while staying proceedings in respect of the compensation claim pending a decision on the application.</p>\r\n<p class=\"MsoNormal\">The matter proceeded before the Court of Appeal as a grievance. The Respondent pleaded that the application to cancel the termination decision should not be entertained for being time barred pursuant to Article 81 of the Abu Dhabi Civil Service Law No. 1 of 2006 which states that an employee has 30 days from the date of receiving notice of the decision terminating his employment to file a grievance before the Court of Appeal whose decision on the matter will be final.</p>\r\n<p class=\"MsoNormal\">The Court of Appeal refused to entertain the Appellant’s grievance filed against the termination decision on the basis that the application [for cancellation] was not filed within the period prescribed under Article 81 of the Abu Dhabi Civil Service Law.</p>\r\n<p class=\"MsoNormal\">The Appellant appealed to Cassation Court of Abu Dhabi, seeking to overturn the Court of Appeal’s decision and for the case to be reconsidered by a different panel of the Court of Appeal.</p>\r\n<p class=\"MsoNormal\">The Appellant highlighted three points, arguing that the Court of Appeal erred in its reasoning and evaluation of the evidence. Filing a grievance against an administrative decision before the Court of Appeal under Article 81 of the Abu Dhabi Civil Service Law is optional. By failing to pursue such option, the employee does not forfeit his right to approach the Court of First Instance having general jurisdiction over administrative disputes. There is no general provision of law specifying a time frame for filing an administrative claim, including an action for canceling an administrative decision. The Appellant’s assertions were incorrect as explained below.</p>\r\n<p class=\"MsoNormal\">In the Respondent’s counterclaim, he argued that the appeal should not be entertained on the basis of Article 81 of the Abu Dhabi Civil Service Law which states that the Court of Appeal’s decision on the grievance filed against the termination decision is final. This was also held to be incorrect. However, the Respondent won the case on the basis that the Appellant did not file the grievance within the 30 day time limit.</p>\r\n<p class=\"MsoNormal\"><strong>The Cassation Court of Abu Dhabi dismissed the Appellant’s Appeal 149 of 2012:</strong></p>\r\n<p class=\"MsoNormal\">Responding to the Appellant’s grounds for appeal, the Supreme Court explained that the expression filing “a grievance before the Court of Appeal” under Articles 76 and 81 of the Abu Dhabi Civil Service Law is synonymous with “filing an appeal before the Court of Appeal”, not a grievance in the administrative sense which is filed before the administrative body that issued the decision as the first step of any potential court action (in order to work out a settlement). The Cassation Court thus held that a grievance under Articles 76 and 81 refers to a court appeal. Such grievance leads to a judicial rather than an administrative resolution of the dispute.</p>\r\n<p class=\"MsoNormal\">Therefore, contrary to the Appellant’s assertion, the Court of Appeal had jurisdiction to decide on the validity of the appealed decision as long as it falls within the scope of Article 81. This is not affected by the Appellant’s contention that the Employer approving resignation does not equate to a termination decision that effectively terminates his employment. As such, the appealed decision falls under the provisions of that article and can only be appealed if a grievance is brought before the Court of Appeal within the 30 day time limit of that article.</p>\r\n<p class=\"MsoNormal\">By law, the time limit for appealing administrative decisions starts to run from the date when the decision is notified to the party concerned or he is made aware of it. Once the party against whom the decision was rendered receives absolute knowledge of its terms and is able to assess his legal position, the statute of limitations period for appealing the decision would start to run. Absolute knowledge can be deduced from any relevant fact or presumption without having to follow any particular method of proof. It is for the court to evaluate the significance of such presumptions and facts in judging the sufficiency of knowledge. Notice or service through publication in the press is not an end, per se, but a means of achieving knowledge. Absolute knowledge of the decision, by whatever means, amounts to service and triggers the statute of limitations for appeal.</p>\r\n<p class=\"MsoNormal\">As correctly held by the lower Court, the decision to terminate was issued on 15.12.11. The Appellant acknowledges in his Statement of Claim that he entrusted a security guard to write his letter of resignation which he then signed. The Appellant was notified that his resignation had been approved the same day. Thus, the Appellant, by his own admission, became aware of the decision approving his resignation on 15.12.11. The Grievant cannot retract a judicial admission and he should have filed a grievance against the decision with the Court of Appeal within the time limit prescribed by Article 81 but he did not as the action he filed in Court of First Instance on 09.02.12 was out of time.</p>\r\n<p class=\"MsoNormal\">As a result the Appellant’s resignation effectively terminated his employment when it was accepted on 15.12.11.</p>\r\n<p class=\"MsoNormal\"><strong>Comments on the Decision: </strong></p>\r\n<p class=\"MsoNormal\">As mentioned above with regards to the Cassation Court’s dismissal of the Respondent’s plea that the appeal should not be entertained pursuant to Article 81 of the Abu Dhabi Civil Service Law which provides that a decision of the Court of Appeal on a grievance arising from a termination decision is final, the Court clarified which decisions are subject to appeal to the Supreme Court by stating that a final decision of the Court of Appeal is capable of being appealed to the Supreme Court.</p>\r\n<p class=\"MsoNormal\">On this matter, Dr. Ahmed Abu Al Wafa, states in his book “Usool Al Muhakamat Al Madaniya”, that two forms of review are available for judicial decisions:</p>\r\n\r\n<ul type=\"disc\">\r\n 	<li class=\"MsoNormal\">Ordinary means: Objection, appeal etc.</li>\r\n 	<li class=\"MsoNormal\">Extraordinary means: Supreme Court appeal, request for re-examination etc.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">While Appeal Court decisions are of course final they can still be appealed to the Supreme Court provided they satisfy all of the requirements for such appeal.</p>\r\n<p class=\"MsoNormal\">A grievance within the meaning of Articles 76 and 81 of the Civil Service Law (grievance before the Court of Appeal) is an appeal, not a grievance in the administrative sense. A grievance, as conventionally understood in the context of jurisprudence and law, is filed before the administrative body that issued the decision.</p>\r\n<p class=\"MsoNormal\">The Supreme Court held that the option available under Article 81 of the Civil Service Law is not the option of  bringing an appeal before the Court of Appeal or bringing an action before the Court of First Instance having jurisdiction over appeals from administrative decisions. The option expressed here is simply the option of contesting a termination decision as opposed to choice of forum. The option to contest can only be pursued in the court possessing jurisdiction which is the Court of Appeal according to Article 81 of the Abu Dhabi Civil Service Law.</p>\r\n<p class=\"MsoNormal\"><strong>The Cassation Court cited other Federal Supreme Court judgments which provide:</strong></p>\r\n<p class=\"MsoNormal\">“After enumerating grounds for termination, Article (81) of Law No. 1 of 2006 concerning civil service in Abu Dhabi states, that the public officer has 30 days from the date of receiving notice of the termination decision to file a grievance before the competent Court of Appeal. The decision on the grievance shall be final.” – Administrative Appeal No. 306-22</p>\r\n<p class=\"MsoNormal\">“The law has made the filing of a grievance against a termination decision before the Court of Appeal optional, not mandatory and should he pursue the option he must file his grievance within said time limit. Indeed, an employee can leap- frog the grievance stage and approach the competent court directly to seek judicial protection against the termination decision given that grievance is not a pre-condition to legal action.”</p>\r\n<p class=\"MsoNormal\">It is therefore recommended that the Cassation Court’s approach is followed as explicit provisions leave no room for interpretation. A terminated employee clearly has the option under Article 81 of the Abu Dhabi Civil Service Law to file a grievance against the termination decision before the competent Court of Appeal and if he chooses the option of going to court to request that the termination decision be cancelled, he must proceed to the court possessing jurisdiction which is the Court of Appeal within the time limit specified in the law.</p>'),
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	(86768,4724,'content','<p><strong>Facts of the case:</strong></p>\r\n<ul>\r\n<li>The First Claimant and the Second Claimant are commercial companies registered in accordance with Jordanian Law as limited liability companies.</li>\r\n<li>The Second Claimant was also registered as a commercial agent with the Agents and Mediators Registrar in Jordan.</li>\r\n<li>The First Claimant and the Defendant signed an agency agreement by which the First Claimant was appointed as the official and only agent in charge of the importation, storage and sale of the Defendant&rsquo;s products in Jordan. Further, this agency agreement was registered with the Agents and Mediators Registrar in Jordan in accordance with Jordanian Law.</li>\r\n<li>In one of its General Assembly meetings, the General Assembly of First Claimant decided to assign all of its registered commercial agencies to the benefit of the shareholders of the company, or any party the shareholders believed to be competent to handle such agencies. As such, the agency agreement signed with the Defendant was transferred to the Second Claimant along with all of its relevant powers, authorities, and liabilities.</li>\r\n<li>The Second Claimant proceeded to act as the Defendant&rsquo;s agent in Jordan and abiding by all the tasks, responsibilities, and liabilities assigned by virtue of the Agency Agreement.</li>\r\n<li>After a number of years, the Defendant unlawfully terminated the Agency Agreement with the Second Claimant.</li>\r\n<li>By unlawfully terminating the Agency Agreement, and in the absence of a legitimate and legal reason, the termination of the said Agency Agreement caused the Second Claimant substantial damages including actual damages and other losses such as loss of profit.</li>\r\n<li>The Second Claimant gave notice to the Defendant requesting for compensation as a result of the termination of the Agency Agreement. The Defendant did not respond to the legal notice.</li>\r\n</ul>\r\n<p><strong>The Jordanian Courts&rsquo; decisions:</strong></p>\r\n<ul>\r\n<li>The Court Of First Instance ruled in favour of the Defendant and issued a decision dismissing the case in accordance with Article 16(b) of the Commercial Agents and Mediators Law No 28 for 2001 which provides that &ldquo;no case shall be heard in court if it relates to a dispute arising from an agency or agency contract three years after termination&rdquo;.</li>\r\n<li>When the Second Claimant appealed the decision, the Court of Appeal upheld the decision issued by the Court of First Instance and decided to dismiss the case in favour of the Defendant.</li>\r\n<li>The Second Defendant further appealed the Court of Appeal&rsquo;s decision and took the case to the Court of Cassation.</li>\r\n<li>When the Court of Cassation looked into the aforementioned, it decided that the Court of Appeal&rsquo;s decision to dismiss the case in accordance with the aforementioned Article 16(b) of the Commercial Agents and Mediators Law was incorrect for the following reasons:</li>\r\n</ul>\r\n<ol>\r\n<li>The contract (the subject of the case) was signed between the First Claimant and the Defendant and was registered with the Agents and Mediators Registrar in accordance with Article 5 of the Commercial Agents and Mediators Law; and that when the same contract was assigned to the benefit of the Second Claimant, the same was not re-registered with the Registrar under its name.</li>\r\n<li>In accordance with Article 10(a) of the Commercial Agents and Mediators Law, the parties to an unregistered agency or agency agreement shall not benefit from the advantages granted&nbsp; to&nbsp; parties of registered agreements;</li>\r\n<li>Article 17(b) of the Commercial Agents and Mediators Law provides that the commercial agent who signs an agency agreement the Commercial Agents and Mediators Law before the Law was published, shall register the said agreement within 6 months of the law coming into force;</li>\r\n<li>In accordance with Article 18 of the Commercial Agents and Mediators Law, the non-registration of an agency agreement shall be deemed as an offence punishable by law;</li>\r\n<li>As such, and further to the above , the provisions of the Commercial Agents and Mediators Law applies to agency agreements registered with the Registrar in accordance with its provisions;</li>\r\n<li>Accordingly, Article 16(b) of the Commercial Agents and Mediators Law does not apply to the agreement subject of the case as it was not properly registered with the Registrar.</li>\r\n</ol>\r\n<p><strong>Significance of the Decision:</strong></p>\r\n<p>Prior to the issuance of this decision, the applicability of the Commercial Agents and Mediators Law to unregistered agency agreements was unclear. However, the Court of Cassation&rsquo;s General Panel&rsquo;s decision resolved this uncertainty by issuing a binding judgment stating that the aforementioned Law shall not be applicable to unregistered agency agreements.</p>'),
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	(86774,4724,'pageSummary','The First Claimant and the Second Claimant are commercial companies registered in accordance with Jordanian Law as limited liability companies.'),
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	(86787,4725,'content','June 2013\r\n\r\n<hr />\r\n\r\nUnless the parties mutually agree to terminate the sale agreement, only courts can issue final decisions to terminate agreements between real estate developers and purchasers.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe First Respondent in this case, a real estate investment company, initiated legal action before the Dubai Court of First Instance seeking a court order against a Real Esate Agent (the “Third Respondent”) to refund the sum paid to the latter as installments of the purchase price for two real estate units located in the Water Front living project. The legal action was filed on the ground that the Third Respondent failed to register the unit as required by the law.\r\n\r\nThe Third Respondent pleaded that in this transaction, it was acting as an agent for the Second Respondent and requested the action to be dismissed for having been brought against a party who has no capacity within the substantive matter of the dispute and therefore sought to join the Second Respondent to the case.\r\n\r\n<strong>Procedural History</strong>\r\n\r\nThe First Respondent (Claimant) filed its amended statement of claim to include the name of the Second Respondent. The Land Department confirmed that the units (the subject of the dispute) are registered in the Interim Real Estate Register. In light of this, the First Respondent sought to annul the Sale agreement or alternatively to cancel/terminate the agreement as the Second Respondent failed to commence any construction on the units to date, nor did it secure the required building permits which the First Respondent sought to establish by way of first hand inspection by a court appointed expert.\r\n\r\nThe Court of First Instance rendered its ruling by dismissing the case. As a consequence, the First Respondent appealed before the Court of Appeal which overturned the lower court’s decision and further rejected the case as a result of the administrative decision (issued in the same case) by the Dubai Land Department.\r\n\r\nThe First Respondent challenged the Court of Appeal’s decision before the Dubai Court of Cassation which dismissed the case on the ground that the action is time barred.\r\n\r\nThe Attorney General challenged the same Court of Appeal ruling pursuant to Article 174 of the UAE Civil Procedure Law which entitled the Attorney General to challengefinal decisions of any court provided that the court’s judgment contradicts the law or its application.\r\n\r\n<strong>The Court of Cassation</strong>\r\n\r\nThe Attorney General argued that the appealed judgment was wrong to consider the administrative decision (rendered by the Land Department) as a conclusive and binding judicial ruling which had the effect of res judicata, in other words, the lower court rendered the Land Department’s decision as equivalent to a Court judgment, which was incorrect.  The Attorney General further pleaded that the appealed decision contradicted both Article 11 of the Interim Real Estate Register Law No. 13 of 2008 and Article 15 of the Executive Council Decision no. 6.\r\n\r\nThe Cassation Court, in its ruling, stated that articles from the UAE Civil Transactions Law as well as the aforementioned articles the Interim Real Estate Register Law No. 13 of 2008 and the Executive Council Decision No. 6 of 2010 provide that contracts may be terminated either by parties’ agreement or a court order. Furthermore, the role of the Land Department in settling a developer-purchaser dispute is to endeavor and conciliate suitable solutions for the parties in order to reach an amicable settlement and does not extend to the termination of contracts. The court further stated that the Land Department’s decision is not conclusive so as to preclude bringing an action for breach of contract to determine entitlement to recover damages under the law.\r\n\r\nThe lower court failed to examine the merits of the dispute when it decided to dismiss the action on the basis that the Land Department had previously issued a decision authorizing termination of the units sale agreement, and that this administrative body, which was not a party to the proceedings, had exercised its powers and rights in accordance with the law. Therefore, the Cassation Court overturned the appeal judgment and referred the case back to the Court of Appeal.\r\n\r\n<strong>Practice note:  </strong>\r\n\r\nThe above Cassation decision confirms that the Land Department’s role in disputes is limited to conciliation and is subject to judicial review, it further highlighted that there is judicial control over administrative decisions and that it is the Courts that ultimately terminate real estate agreements.'),
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	(86791,4725,'content_description','In a recent Dubai Court Judgment, the Court ruled in the appeal filed by the Attorney General that, in the event of a claim from the land developer against the purchaser, the role of the Land Department is merely conciliatory to propose suitable solutions for the parties in order to reach an amicable settlement. '),
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	(86793,4725,'pageSummary','In a recent Dubai Court Judgment, the Court ruled in the appeal filed by the Attorney General that, in the event of a claim from the land developer against the purchaser, the role of the Land Department is merely conciliatory to propose suitable solutions for the parties in order to reach an amicable settlement.'),
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	(86797,4725,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Marwa El Mahdy'),
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	(86815,4725,'_yoast_wpseo_metadesc','In a recent Dubai Court Judgment, the Court ruled in the appeal filed by the Attorney General that, in the event of a claim from the land developer against the purchaser, the role of the Land Department is merely conciliatory to propose suitable solutions for the parties in order to reach an amicable settlement.'),
	(86816,4726,'content','June 2013\r\n\r\n<hr />\r\n\r\nIn a dispute between a UAE investor and a foreign investor, the parties disputed over whether a side agreement or the official Memorandum of Association (MOA) governed their relationship. The UAE investor insisted that the official MOA is the valid document whereas the foreign investor argued that the side agreement states that the foreign investor has a greater percentage in shares and that the side agreement is the valid/ applicable agreement to govern the relationship between the two parties.\r\n\r\nAs outlined in the previous article, the matter had been decided in favour of the UAE investor at the first instance and appeal levels, however the foreign investor appealed further to the Supreme Court.\r\n\r\nIn its judgment, the Supreme Court held that the side agreement can be established by any means of evidence and allowed the parties to hear testimony of witnesses.\r\n\r\nWhen the Court of Appeal heard witnesses brought in by the foreign investor and rejected the claim, the parties appealed again to the Supreme Court.  The Supreme Court considered the evidence and decided that there was enough evidence to prove the existence of the side agreement and subsequently directed the Court of Appeal to look into this. Upon review of the evidence, the Court of Appeal issued its judgment confirming the existence of the side agreement.\r\n\r\nThe UAE investor appealed for the third time to the Supreme Court contesting the validity of the side agreement and it is this appeal which is the subject matter of this update.\r\n\r\n<strong>LATEST SUPREME COURT JUDGMENT</strong>\r\n\r\nThe Supreme Court ruled on this matter for the third time and in this latest judgment, the Supreme Court decided very differently to the last decision and declared that the offical MOA as registered with the authorities is the valid agreement that governs the relationship between the parties and not the side agreement.\r\n\r\nThe Supreme Court relied on Articles 8, 10 and 11 of the Commercial Companies Law (CCL) and held that it is imperative for all agreements relating to commercial companies to be in writing, notarised and registered in the Companies Commercial Register so as to comply with the requirements of the CCL and that all amendments to the company documents (i.e. Memorandum of Association) must also be duly notarised and registered in the same manner as the MOA.\r\n\r\nIn this case, the Supreme Court concluded that as the side agreement was not notarised or registered in the Companies Commmercial Register, it is therefore null and void.\r\n\r\n<strong>BACKGROUND</strong>\r\n\r\nA dispute arose in relation to a limited liability company in Abu Dhabi between a UAE shareholder and a foreign shareholder over the ownership of the actual shareholding in a limited liability company.  Legal action was commenced by the UAE shareholder requesting confirmation of its entitlement to 51% of the shares, assets and profits of the company according to the official memorandum of association (MOA) of the company as officially registered and declared with the competent authorities. The foreign shareholder, however, claimed that it owned more than it’s registered shares (as reflected in the side agreement).\r\n\r\n<strong>COMMENTS ON THE JUDGMENT</strong>\r\n<ol>\r\n 	<li>It is apparent that this Union Supreme Court judgment contrasts with the previous two judgments by the same court (in the same dispute) which previously decided that side agreements are not null and void if they were not notarised or registered pursuant to Articles 8,10 and 11 of the CCL.  The court in the former two rulings held that the parties can even hear witnesses to prove this matter.  The court also held that the side agreement can be concluded from various documents and not necessarily from a single written agreement and that such agreement is valid even without notarisation.</li>\r\n 	<li>The new ruling is therefore a material change from the Supreme court’s former rulings on the issue of side agreements. As side agreements are not official agreements, they can not be notarised or registered in the Commercial Register.</li>\r\n 	<li>The main purpose of the side agreement is that it is binding between the two parties only and concealed from the Commercial Register. This purpose would not be achieved if there was a requirement to notarise it or file it with the Commercial Register. This has been confirmed by the Supreme Court itself in former rulings. The side agreement also includes provisions that can not be notarised or accepted by the official authorities such as the shareholding percentage which is usually different from the official documents.</li>\r\n 	<li>It is to be noted that this latest judgment did not address the effect of Article 395 of the Civil Code.  Article 395 provides that:  <em>“If the contracting parties conceal a true contract with an apparent contract, the true contract will be the effective one as between the contracting parties and a special successor.” </em>If Article 395 had been addressed by the Supreme Court, it is possible that the court would have produced a different result.</li>\r\n 	<li>It should also be highlighted here that although this judgment addressed the issue of the validity of the nominee agreement with regard to the offical MOA, it has not however, adressed the issue of whether the rights of the parties under the MOA should be liquidated as a result of the invalid nominee agreement.</li>\r\n 	<li>The judgment also did not address the issue of the date the invalidity occurs i.e. whether it is from the inception of the company or from the date of the judgment.</li>\r\n 	<li>In view of the above judgment and the previous Supreme Court decisions on the same matter, it should be noted that the courts in future cases, will not necessarily decide that all side agreements are null and void. Each case will be decided on a case by case basis and the  arguments raised above (in paragraphs 3, 4, 5 and 6) may also appear in separate matters in the future.</li>\r\n</ol>'),
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	(86820,4726,'content_description','This important case was mentioned in a previous Law Update article (July/August 2012 issue) which provided a unique position on the issue of side (nominee) agreements.'),
	(86821,4726,'_content_description','field_59b641c07f473'),
	(86822,4726,'pageSummary','This important case was mentioned in a previous Law Update article (July/August 2012 issue) which provided a unique position on the issue of side (nominee) agreements.'),
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	(86826,4726,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zane Anani'),
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	(86842,4726,'lawUpdateArticlePractices','1'),
	(86843,4726,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86844,4726,'_yoast_wpseo_metadesc','This important case was mentioned in a previous Law Update article (July/August 2012 issue) which provided a unique position on the issue of side (nominee) agreements.'),
	(86845,4727,'content','June 2013\r\n\r\n<hr />\r\n\r\nThe draft law is intended to replace the Income Tax Law No. 28 of 2009 (‘the 2009 Law’).\r\n\r\nOne of the key features in the draft law is that it introduces gradual tax on incomes in a detailed manner. This is further explained below.\r\n\r\nThe draft law does not amend the taxable incomes in Jordan, nor does it change the exemptions laid out in the 2009 Law, but rather it proposes a new set of ratios for taxes and exemptions.\r\n\r\nThe taxable incomes still include: Income from professional services or activities; Interest; commissions; discounts; currency differences; deposit profits and profits from banks and other legal resident persons; royalties; income from selling goods; income from the selling or leasing of movable and immovable properties or intangible assets in Jordan; income from re-exporting; and income from transportation of goods between Jordan and a foreign country.\r\n\r\nEven though the taxable incomes have not been amended, minor changes were made to some aspects relating to exemptions granted on the income of pensioners. For example, in accordance with the 2009 Law, an exemption is applicable to the first JD 4,000 of monthly pension salaries paid to a resident person. However, the draft law provides that the same exemption be applicable only to the first JD 3,500 of the same monthly pension salary.\r\n\r\nAdditionally, the draft law intends to place an exemption on the first JD 100,000 of any agricultural activity generated inside Jordan<sup>1</sup>.\r\n\r\nFurther to the above, it is important to note that the draft law states that the income paid (as a return for services provided)  by a judicial person (i.e. an entity created by law such as a company or institution) to a resident of Jordan who is a doctor, lawyer, engineer, auditor, expert, agent, or broker shall be subject to a withholding tax at the amount of 5% of the paid amounts.\r\n\r\nOther minor amendments in the draft law include changes made in relation to the income deductions applicable to tax payers. The draft law has added the option of deducting the Murabaha (which is an Islamic financing structure, where an intermediary buys a property with free and clear title to it then  agrees upon a sale price with the prospective buyer, including an agreed upon profit for the intermediary) and interest amounts paid by any judicial person. This, however, does not apply to the Murabaha and interest amounts paid by banks, financial institutions, or financial companies and individuals who perform financial lending activities. Furthermore, this deduction shall not be applied to amounts that exceed the total debt paid-in-capital ratio.\r\n\r\nAs regards amendments made to the income tax ratios applicable to companies and people, the draft law provides that they should be as follows:\r\n\r\n<strong>1. Natural Persons<sup>2</sup>:   </strong>\r\n<ul>\r\n 	<li>5% on each Dinar for the first JD 10,000;</li>\r\n 	<li>10% on each Dinar for the second JD 10,000;</li>\r\n 	<li>15% on each Dinar for the third JD 10,000;</li>\r\n 	<li>20% on each Dinar for the fourth JD 10,000;</li>\r\n 	<li>25% on each Dinar for the fifth JD 10,000.</li>\r\n 	<li>30% on any additional Dinar.</li>\r\n</ul>\r\nThe draft law further proposes the following exemptions:\r\n<ul>\r\n 	<li>9,000 Dinars for the taxable natural person.</li>\r\n 	<li>9,000 Dinars for his dependents, regardless of their number.</li>\r\n 	<li>However, please note that the draft law does not allow the exemption to exceed JD 18,000 per family.</li>\r\n</ul>\r\n<strong>2. Judicial Persons: </strong>\r\n\r\nThe draft law proposes that the following ratios apply to the income of both Banks<sup>3</sup>  and Financial Institutions<sup>4</sup>:\r\n<ul>\r\n 	<li>30% on each Dinar of the first JD 250,000.</li>\r\n 	<li>35% on each Dinar after the first JD 250,000, up to JD 2,000,000.</li>\r\n 	<li>40% on each Dinar for any amount more.</li>\r\n</ul>\r\nHowever, in regards to communications companies, basic substance-mining companies, insurance companies, reinsurance companies and financial intermediation companies, the Draft Law suggests that the following income tax rates apply:\r\n<ul>\r\n 	<li>125% on each Dinar of the first JD 250,000</li>\r\n 	<li>30% on each Dinar after the first JD 250,000, up to JD 1,000,000.</li>\r\n 	<li>40% on any additional Dinar.</li>\r\n</ul>\r\nAs for other judicial persons not addressed in the above mentioned mechanism, the following rates shall apply<sup>5</sup>:\r\n<ul>\r\n 	<li>15% on each Dinar of the first JD 250,000.</li>\r\n 	<li>20% on each Dinar for the next JD 250,000.</li>\r\n 	<li>25% on any additional Dinar.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nThere are mixed views with regards to the Draft Law, subject of this article. While some commend the effort of revitalizing the stagnant Jordanian economy, there are views which suggest that the increased number of taxes imposed on different factions of the public, including pensioners for example, could have a negative effect, and may also be contrary to the principles of the Jordanian constitution which provide for progressive taxation, in accordance with principles of social equality and justice.\r\n\r\n<address><em>Footnotes:</em></address>\r\n<ol>\r\n 	<li><em>In comparison to the 2009 Law, where agricultural activities enjoyed exemption for the first JD 750,000 of their income. </em></li>\r\n 	<li><em>In comparison to the 2009 Law, which applied 7% on the first JD 12,000 and 14% to any amount more. </em></li>\r\n 	<li><em>In comparison to the 2009 Law, where banks are only subject to 30% for their overall income, without any gradual tax obligations. </em></li>\r\n 	<li><em>Under the 2009 Law financial institutions are only subject to 24% for their overall income, without any gradual tax obligations. </em></li>\r\n 	<li><em>Under the 2009 Law judicial persons are subject to 14% of their overall income, without any gradual tax obligations. </em></li>\r\n</ol>'),
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	(86849,4727,'content_description','A new draft of the proposed Income Tax Law has been submitted for review to the Legislation and Opinion Bureau in Jordan. At a later stage this draft law will be submitted to the Parliament for discussion and ratification. '),
	(86850,4727,'_content_description','field_59b641c07f473'),
	(86851,4727,'pageSummary','A new draft of the proposed Income Tax Law has been submitted for review to the Legislation and Opinion Bureau in Jordan. At a later stage this draft law will be submitted to the Parliament for discussion and ratification.'),
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	(86855,4727,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Saba Gheshan'),
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	(86857,4727,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.gheshan@tamimi.com'),
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	(86862,4727,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(86863,4727,'_yoast_wpseo_metadesc','A new draft of the proposed Income Tax Law has been submitted for review to the Legislation and Opinion Bureau in Jordan. At a later stage this draft law will be submitted to the Parliament for discussion and ratification.'),
	(86864,4728,'content','June 2013\r\n\r\n<hr />\r\n\r\nThese changes relate to (i) the nationality of partners and capital requirements; and (ii) the ease of procedures to transfer parts (i.e. shares) in a limited liability company.\r\n\r\n<strong>The Companies Law 2012 </strong>\r\n\r\nOn 29 November 2012 the Kuwait Government published the new Companies Law No. 25 of 2012 (‘the New Companies Law’). Amendments to the law were presented to the National Assembly and published in the Official Gazette on the 27 of March 2013. The new law superseded the old Commercial Companies Law of 1960 (‘the 1960 Law’). The New Companies Law is also dependent on the release by the Ministry of Commerce and Industry of executive regulations to the new law, which are known as ‘Executive By-Laws’.\r\n\r\n<strong>Nationality of partners and capital requirements</strong>\r\n\r\nUnder the 1960 Law a company with limited liability was required to have a Kuwaiti partner holding at least 51% of the parts. The position under the New Companies Law however is unclear in relation to this and the minimum capital requirements, because they are to be determined by the Executive By-Laws, which have yet to be issued. Typically, the minimum capital for a company with limited liability is based on the company objectives.\r\n\r\n<strong>Ease of Procedures to Transfer Parts in a WLL </strong>\r\n\r\nLimited liability companies in Kuwait are identified by have the initials ‘WLL’ after their name (‘With Limited Liability). The transfer of parts in a WLL was an arduous process under the 1960 Law and required the following:\r\n<ul>\r\n 	<li>A signed deed of amendment before the Notary Public of the Ministry of Justice.</li>\r\n 	<li>The company then filing the signed deed of amendment by all partners at the Ministry of Commerce and Industry in order to amend the memorandum and articles of association.</li>\r\n</ul>\r\nArticle 99 of the New Companies Law however has eased these requirements by only requiring the use of a written instrument in order to allow for the transfer of parts in a WLL. Furthermore, the new law introduces a new procedure to enable investors to more easily transfer their legal ownership interests in a WLL. The procedure is as follows:\r\n<ul>\r\n 	<li>The consent of the existing partners must be obtained in order to sell parts to third parties.</li>\r\n 	<li>In the event unanimous consent from the partners is not obtained, the conditions of the transfer offer shall be published in the Official Gazette.</li>\r\n 	<li>If the existing partners do not exercise their right of redemption within fifteen days of publication, then the partner is free to transfer any parts.</li>\r\n 	<li>The request to transfer parts must be attached with a certified cheque for the full value of the assigned parts in the assignor’s name.</li>\r\n 	<li>When amending the memorandum of association, only the signatures of the transferring partner and the transferee are required, thereby eliminating the need to obtain the signatures of all the partners on the amendment of the memorandum of association (Article 100).</li>\r\n</ul>\r\nBased on the above overview, it can be seen that the New Companies Law has introduced new provisions and amended previous provisions to generally allow more flexibility in the establishment and operations of limited liability companies, including the transfer of parts by investors. It is hoped that these changes will better support Kuwait’s growing economy.'),
	(186376,4728,'core_values',''),
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	(86865,4728,'_content','field_59b649b5c8b2b'),
	(86866,4728,'lawUpdateArticleMonth','4722'),
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	(86868,4728,'content_description','Companies with limited liability are perhaps one of the most common in Kuwait. This article briefly discusses some of the noteworthy changes recently made to the Companies Law No. 25 of 2012.'),
	(86869,4728,'_content_description','field_59b641c07f473'),
	(86870,4728,'pageSummary','Companies with limited liability are perhaps one of the most common in Kuwait. This article briefly discusses some of the noteworthy changes recently made to the Companies Law No. 25 of 2012.'),
	(86871,4728,'_pageSummary','field_59e59b307dec8'),
	(86872,4728,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/june-issue/companies-with-limited-liability-under-the-new-kuwait-companies-law.html'),
	(86873,4728,'_currentURL','field_59d35123ab1e7'),
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	(86877,4728,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(86878,4728,'_yoast_wpseo_metadesc','Companies with limited liability are perhaps one of the most common in Kuwait. This article briefly discusses some of the noteworthy changes recently made to the Companies Law No. 25 of 2012.'),
	(86879,4729,'content','June 2013\r\n\r\n<hr />\r\n\r\nThis states that “a foreign judgment is the judgment issued by a court situated outside Iraq”.\r\n\r\nBefore 1928 foreign judgments were not enforced or recognized because this was seen as an infringement on the sovereignty of the state, an attitude shared by most countries at that time. Views however began to change and other considerations became important, such as the preservation of rights regulated under foreign judgments and the importance of not harming people’s commercial interests. As a response to this many countries, including Iraq, began to permit the adoption and enforcement of foreign judgments issued by non-national courts either by virtue of enacted legislation or through many multinational conventions which were entered into for this purpose.\r\n\r\n<strong>Enforcement under the Foreign Enforcement Law</strong>\r\n\r\nArticle 16 of the Iraqi Civil Code 1951 states that “foreign judgments issued by foreign courts are not subject to enforcement in Iraq unless it was deemed otherwise by a specific Law”. In order to understand how foreign judgments are enforced we therefore need to look at the Foreign Enforcement Law which is the main law addressing the issue.\r\n\r\nArticle 6 of Foreign Enforcement Law details the conditions to be met by a foreign judgment for it to be enforceable in Iraq, and as follows:\r\n<ol>\r\n 	<li>The judgment is issued by a competent foreign court, which pursuant to article 7 of the Foreign Enforcement Law, the foreign court is competent to decide a lawsuit if:</li>\r\n</ol>\r\n<ul>\r\n 	<li>The lawsuit is related to movable or immovable property situated in the foreign country;</li>\r\n 	<li>The lawsuit related to a contract signed in the foreign country or to be executed in the foreign country (in whole or in part);</li>\r\n 	<li>The lawsuit related to works carried out, in full or in part, outside Iraq;</li>\r\n 	<li>The defendant is normally resident in that foreign country or conducts his business mainly from the foreign country at the time the case was filed before the foreign courts; or,</li>\r\n</ul>\r\n<ol>\r\n 	<li>The defendant attended the hearing willingly and did not object to the jurisdiction of the foreign court.</li>\r\n 	<li>The defendant is adequately notified;</li>\r\n 	<li>The judgment must relate to a debt or defined amount of money, or civil compensation if the judgment was issued on a criminal claim;</li>\r\n 	<li>The cause of the claim must not be in violation of Iraqi public order;</li>\r\n 	<li>The foreign judgment must attain execution in the foreign country; and,</li>\r\n 	<li>Pursuant to Article 11 of Foreign Enforcement Law, the foreign courts must conform to the principle of reciprocity of treatment (i.e. the foreign court will recognise Iraqi court judgments).</li>\r\n</ol>\r\nIn the light of the above definition of the foreign judgment and conditions of the enforcibility, there are also other conditions which, if met, render the relevant judgment unenforceable inside Iraq. These include:\r\n<ul>\r\n 	<li>That the judgment was issued by virtue of a summary procedure;</li>\r\n 	<li>That the judgment was a preliminary decisions issued by the court during their consideration of the claim; or,</li>\r\n 	<li>The award was issued by Arbitration Board of a non-signatory in Riyadh Convention for judicial Cooperation of 1983.</li>\r\n</ul>\r\n<strong>Process for Enforcing Foreign Judgments</strong>\r\n\r\nIn accordance with Article 3 of the Foreign Enforcement Law, any person wishing to enforce a foreign judgment in Iraq must submit a request to the Court of First Instance. The court to be used should be the competent court closest to the residence of the defendant, or that which is closest to the asset which was the subject to the claim.\r\n\r\nThe Court of First Instance has the jurisdiction to issue a decision enforcing a foreign judgment. The court can also refuse to enforce a foreign award if to the defendant can prove that the judgment was concluded through deceit or if the foreign court did not abide by the rules of justice.\r\n\r\n<strong>Arbitral Awards</strong>\r\n\r\nIraq is not a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. Foreign arbitral awards are only enforceable in Iraq if:\r\n<ol>\r\n 	<li>They were issued in a country that is a signatory to the Riyadh Convention for judicial Cooperation of 1983; or</li>\r\n 	<li>They were issued in a country that has a specific treaty on judicial cooperation with Iraq, such as Egypt and Jordan.</li>\r\n</ol>\r\n<strong>Conclusion</strong>\r\n\r\nAs shown above, judgments issued by foreign courts are not enforceable in Iraq until a claim has been submitted to Iraqi courts requesting the enforcement of the judgment, and the criteria for enforcement has been met. It is the responsibility of the court to check the fulfillment of the applicable conditions, and if they are met the foreign judgment will be enforced.'),
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	(86898,4730,'content','June 2013\r\n\r\n<hr />\r\n\r\nThis is usually seen as a significant advantage of arbitration. Parties are permitted to propose candidates to act as a sole arbitrator or, in the case of a three-member tribunal, each party is permitted to nominate one arbitrator and the two party-appointed arbitrators appoint the chairman.\r\n\r\nSelecting an arbitrator may be one of the most crucial decisions a party will take. There is little recourse against an arbitral award and no right of appeal, so getting a Tribunal capable of understanding the issues is important. Furthermore, arbitrations are conducted without strict rules of procedure so an arbitrator’s role is not only to render an enforceable award, but to ensure that the process is expeditious, fair and cost-effective. An arbitration may very well turn on the quality of the arbitrator and for this reason choosing arbitrators is a critical phase of the process.\r\n\r\nMost institutional rules do not provide much guidance with respect to the qualifications or skills needed to be an effective arbitrator, other than to say an arbitrator must be independent and impartial. Expanding on the institutions’ guidelines, we have detailed an additional four factors to consider when selecting a candidate:\r\n\r\n<strong>1. Choose an Arbitrator with  a Manageable Caseload </strong>\r\n\r\nWhen vetting candidates inquire into their caseloads. Ask whether the arbitrator can devote sufficient time and attention to the parties’ dispute, and nominate the arbitrator whose schedule permits taking on the case.\r\n\r\nIt is no secret that well-known arbitrators are highly sought after and their caseloads can be considerable. Indeed, they may have months in their diary booked up far in advance. Choosing an arbitrator with a heavy caseload can lead to scheduling conflicts which may delay the proceedings and affect the parties’ right to a speedy resolution. It is therefore recommended that the ability of the arbitrator to take on the case be a top consideration.\r\n\r\nThis however is not an unbreakable rule. In some circumstances busy schedules are not a concern. When specific legal or professional expertise are required and time permits, it may be sensible to appoint the arbitrator best suited to the case, rather than one who could resolve the dispute faster.\r\n\r\n<strong>2. Choose an Arbitrator with  the Requisite Legal and Professional Expertise  </strong>\r\n\r\nA significant advantage of participating in the selection process is the ability to choose a decision maker with expertise that mirrors the nature of the dispute. For example, in certain disputes an engineering background or experience in the oil and gas industry may be essential to achieve a satisfactory result and avoid the need to waste time explaining basic industry concepts and norms.\r\n\r\nThere is often a tendency to choose an arbitrator with a formal legal education, but this need not always be the case. A formal legal education and legal experience can increase the likelihood of receiving a well-reasoned and legally sound award, and an experienced lawyer will likely have the appropriate judicial demeanor and familiarity with international commercial matters to resolve complex factual or legal issues. However in certain circumstances, particularly where the dispute involves a niche industry, it may be more sensible to appoint an arbitrator with a particular professional expertise.\r\n\r\nTo this end, parties should thoroughly investigate candidates. In particular, review  CVs, conduct online research and consult with colleagues.\r\n\r\n<strong>3. Take into Consideration the Arbitrator’s Nationality </strong>\r\n\r\nIn arbitrations where the parties are of different nationalities, arbitral institutions (such as the  Dubai International Arbitration Centre or the DIFC-LCIA) often direct that a sole arbitrator or chairman of the tribunal cannot have the same nationality as one of the parties. The parties are of course permitted to agree otherwise in writing. The rationale behind this rule is to prevent a real or perceived bias in the proceedings.\r\n\r\nIn a three-member tribunal, party appointed arbitrators may have the same nationality as a party. Choosing an arbitrator of the same nationality is often sensible because then at least one member of the tribunal will have a good understanding of the culture, business practices and customs of the country where the party is from.\r\n\r\n<strong>4. Choose an Arbitrator with Strong Management Skills</strong>\r\n\r\nThe absence of strict procedural rules can lead to a prompt, efficient arbitral process tailor-made to the dispute at hand. This flexibility in the process is a primary advantage of arbitration.  If not managed properly however, the absence of procedural rules can lead to protracted disagreements between the parties, thereby causing delay and the incurrence of unnecessary costs.\r\n\r\nTo ensure the arbitral process is administered in an efficient, cost-effective manner, the parties should choose a strong arbitrator capable of managing people as well as the process.\r\n\r\nWhen vetting a candidate in respect of their management skills, the practical considerations include whether the candidate has a good judicial demeanor, is familiar with the arbitration process and is comfortable dealing with different cultures, legal systems, and the tensions which inevitably run high during disputes.\r\n\r\n<strong>Practical Tip</strong>\r\n\r\nTo identify a suitable arbitrator ask for recommendations from colleagues. Word of mouth still reigns supreme when compiling a list of candidates. Also ask legal counsel for their recommendations, most firms will keep a list of arbitrators they have used in the past or who have a good reputation. Arbitral institutions also have lists of arbitrators, although these lists may not be made public unless you are using the institution. Another excellent resource is professional networks for dispute resolution practitioners, such as the Chartered Institute of Arbitrators, which has a searchable database of arbitrators (www.ciarb.org).');

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	(85912,4678,'content','<p>We are privileged to have been involved in the consultation phase  (which was launched in December 2011) where the various amendments were  discussed and also in the drafting of the amendments on behalf of the  DIFC Authority, which are the most significant amendments that have been  made to the DIFC Employment Law since it was first introduced.</p>\r\n<p>By way of background, DIFC Employment Law No. 4 of 2005 (&ldquo;DIFC  Employment Law&rdquo;) sets out all of the obligations and requirements on  employers and employees operating within the DIFC.&nbsp; The amendments to  the DIFC Employment Law were introduced pursuant to the implementation  of the Employment Amendment Law, DIFC Law No. 3 of 2012 and were  effective from 23 December 2012.</p>\r\n<p>The amendments to the DIFC Employment Law tackled a variety of areas  in respect of the relationship between employers and employees.&nbsp; As well  as clarifying some of the rules and making them generally more  user-friendly, the amendments have also sought to develop some important  employee rights.&nbsp; In particular, the provisions regarding  discrimination were significantly amended and the concepts of  harassment, direct discrimination and indirect discrimination are now  more consistent with the same concepts as defined in the UK Equality Act  2010.</p>\r\n<p>The key amendments to the DIFC Employment Law are:&nbsp;</p>\r\n<ul>\r\n<li>Provision of a written contract of employment: The Law now requires  all employers to provide employees with a written contract of employment  which is in accordance with the Law, as opposed to the requirement to  previously provide a statement of employment particulars.&nbsp; This is  consistent with the obligation on employers to provide a signed contract  of employment when submitting new visa applications and renewals to the  DIFC Authority, an obligation which was introduced earlier in 2012. &nbsp;</li>\r\n<li>Leave carry forward: Employees now have a right to carry forward up  to 20 working days of accrued and untaken annual leave from one holiday  year to the next.&nbsp; The entitlement to the carried forward annual leave  will expire after a period of 12 months following the end of the holiday  year in which it was accrued.</li>\r\n<li>Sick leave: This entitlement has now been amended to 60 working days (as opposed to 90 calendar days).&nbsp;</li>\r\n<li>Maternity leave: This entitlement has now been amended to 65 working  days (as opposed to three calendar months). In addition, the maternity  leave period will be extended by the number of national holidays which  fall on working days during the maternity leave period.</li>\r\n<li>Compensation for Accidents:&nbsp; There is now a minimum level of  compensation that is payable to employees or their named dependents  where they die or sustain an injury arising out of or during the course  of their employment.&nbsp; Where the employee dies, the compensation payable  to his/her named dependent is 24 months remuneration.&nbsp; Where the  employee sustains an injury, the level of compensation will be a  percentage of the 24 months remuneration, which varies depending on the  seriousness of the injury suffered.&nbsp;</li>\r\n<li>Health insurance: Employers are now only obliged to obtain heath  insurance cover for its employees (as opposed to insurance cover for  health and disability income, which was previously required).</li>\r\n<li>Discrimination: Provisions relating to non-discrimination have been  significantly amended.&nbsp; In particular, the following key amendments have  been made:</li>\r\n</ul>\r\n<p>- there is a clear distinction between the provisions prohibiting indirect and direct discrimination;&nbsp;</p>\r\n<p>- there is now protection for employees against harassment on the grounds of a protected characteristic;<br />- the definition of a disability is set out in greater detail;<br />- the provisions specifically state that they protect employees only; and<br />- employers may now justify indirect discrimination where their actions are a proportionate means of achieving a legitimate aim.</p>\r\n<ul>\r\n<li>Termination for cause: Entitles the employer or employee to  terminate the employment relationship for &ldquo;cause&rdquo; where the conduct of  the other party warrants termination and a reasonable employer or  employee would have terminated the relationship.&nbsp; The word &ldquo;cause&rdquo;  replaces the previous term &ldquo;misbehaviour&rdquo; although it is unlikely to  have a significant impact on the legal justification required when  summarily terminating employees.</li>\r\n<li>Pension for UAE and GCC nationals: Obliges employers to enrol an  employee to their relevant state scheme and confirms that the pension is  in lieu of end of service gratuity.</li>\r\n<li>End of service gratuity: The previous ambiguous wording has been  clarified so that for the purposes of the end of service gratuity  calculation, one day&rsquo;s basic wage shall be a calendar day&rsquo;s pay.&nbsp;</li>\r\n<li>Parts 11 to 14: These have been repealed in their entirety.&nbsp; The  provisions previously set out the process for raising complaints with,  and the decision making powers of, the Director of Employment Standards.  The removal of these provisions is unlikely have any impact on the  existing DIFC complaints procedure for employees and employers.&nbsp;</li>\r\n</ul>\r\n<ul>\r\n<li>Other amendments: &nbsp;</li>\r\n</ul>\r\n<p>- Employers are permitted to provide the written itemised pay  statement and retention of payroll records in an electronic format.<br />-  Employers are required to pay departing employees all wages and any  other outstanding amount within 14 days of the termination of  employment.&nbsp; If an employer fails to comply with this requirement, a  penalty will be payable to the employee which is equivalent to his/her  daily wage for each day the employer is in arrears.<br />- Reduced Ramadan hours are now applied for fasting Muslim employees only.<br />- Employees are entitled to national holidays which fall on working days only.<br />- All Muslim employees are entitled 30 days unpaid leave to go on a Haj pilgrimage after one year of employment.<br />- There were additions and amendments to the defined terms set out within Schedule 1 to the DIFC Employment Law.</p>\r\n<p>Please contact any member of the employment team directly for further  information or assistance, or contact the head of the team, Samir  Kantaria (s.kantaria@tamimi.com).</p>'),
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	(85935,4679,'content','<p>Depending on the role that we are fulfilling at the time, our use of  Social Media can have different effects and repercussions. In this  article, Part 1 of two-part series, we look at some general risks  associated with the use of Social Media. Some of these are of broad  relevance to all users of Social Media. Some are of particular relevance  in a corporate environment, including use of Social Media on behalf of a  company and use and misuse of Social Media by employees inside and  outside company time.&nbsp;</p>\r\n<p>In next month&rsquo;s Law Update, Gordon Barr, a Senior Associate in our  Employment team, will outline some of the employment-related issues  arising in respect of Social Media. The increasing accessibility of  consumer electronics and the internet has meant that Social Media is  becoming as common place as emails. According to the Arab Media Outlook  report prepared by Deloitte in 2012, 86% of internet users in the Middle  East use Social Media to access news, information advice, and 70% of  users voice their opinions on Social Media sites.&nbsp;</p>\r\n<p>Businesses are increasingly using Social Media as a business tool for  internal communications, marketing and public relations. The rapid  proliferation of Social Media in a corporate environment brings with it a  variety of issues. News stories about Social Media blunders abound.  These range from reports about Social Media misconduct by employees,  errors in the way in which companies try to engage with their customers  via Social Media, mismanagement of employees&rsquo; use of Social Media, and a  range of other problematic scenarios.&nbsp;&nbsp;</p>\r\n<p>Broadly speaking, the key legal issues arising out of use of Social  Media relate to offensive content and privacy and confidentiality.&nbsp;</p>\r\n<p><strong>OFFENSIVE CONTENT</strong></p>\r\n<p>The UAE Penal Code prohibits:</p>\r\n<ul>\r\n<li>making, through any means of publicity, a false accusation which  dishonours or discredits a man in the estimate of the public, without  imputing any specific incident to him; and&nbsp;</li>\r\n<li>charging, through any means of publicity, another person with an  incident susceptible of making him subject to punishment or exposing him  to public hatred or contempt.&nbsp;</li>\r\n</ul>\r\n<p>The publication of such statements is considered to be an aggravating  factor. The Cyber Crimes Law 2012, which replaced the Cyber Crimes Law  2006, contains a provision that basically mirrors this provision,  confirming that defamatory statements published via Social Media are no  less subject to sanction.</p>\r\n<p>The Publications and Publishing Law 1980 is also relevant. Coming  into force well before the rise of Social Media, it is no surprise that  much of the language of the law is focussed on printing presses and  newspaper distribution. Despite this, the language relating to  materials, the publication of which is prohibited, is broader &ndash; and  likely to extend to publication in the context of Social Media. Examples  of prohibited publications include:&nbsp;</p>\r\n<ul>\r\n<li>Any work instigating against Islam or the values of society, the  system of ruling, or that harms the interest of the state; news that  harms the national economy or currency; and opinions that violate public  order or that circulate subversive ideas; and</li>\r\n<li>News, pictures, comments about an individual&rsquo;s private life meant to  disgrace such individual, or any secret that may cause harm to the  reputation of someone, his property, or his commercial name.</li>\r\n</ul>\r\n<p>The Cyber Crimes Law also identifies a range of content, the on-line  publication of which is prohibited. This includes content that  blackmails or threatens a person, content that offends religious  sanctities and encourages sins, content that insults others or makes  them the subject of contempt, and content that criticizes the State or  that calls for donations or demonstrations without a licence.</p>\r\n<p>There are a number of examples in the UAE of instances that appear to  fall within prohibitions set out in one or more of these laws.&nbsp;&nbsp;</p>\r\n<ul>\r\n<li>In February 2012 the Dubai Police chief pursued a defamation case  against a 42-year-old Emirati, alleging the man had defamed him on  Twitter with unfounded accusations of corruption and injustice.&nbsp;</li>\r\n<li>In May 2012, a man who posted images insulting Islam on Facebook was  prosecuted after members of the public complained about the posts.&nbsp;</li>\r\n<li>In June 2012, a gymnasium caused controversy with its Social Media  based advertising campaign, which included an image of an obese woman  making offensive gestures at a fast food restaurant.</li>\r\n</ul>\r\n<p>With regard to the latter example, we are not aware of any  prosecution arising. Despite this, a local newspaper reported that the  so called &lsquo;Middle Finger Campaign&rsquo;, which offered a week of free  training to tackle the &ldquo;obesity epidemic&rdquo; in Dubai, caused outrage on  Social Media websites. Noting anecdotally that this type of gesture  often forms the basis for a prosecution in the UAE in the context of  altercations between drivers, there is scope to conclude that the use of  such a photograph may breach the prohibition in the Publications and  Publishing Law on advertisements that include expressions or pictures  that are inconsistent with public conduct.&nbsp;&nbsp;</p>\r\n<p>The point with all these examples is essentially that the fact that  the abusive or defamatory conduct has occurred on Social Media does not  make the conduct any less offensive or defamatory - or any less  vulnerable to prosecution under UAE law.&nbsp;</p>\r\n<p><strong>PRIVACY AND CONFIDENTIALITY</strong></p>\r\n<p>The Penal Code provides a punishment of confinement and fine shall be  inflicted on any person who attacks the sanctity of individuals&rsquo;  private or family life by publishing, through any means of publicity,  news, pictures or comments pertaining to the secrets of people&rsquo;s private  or familial lives even if the same is true. The Cyber Crimes Law  contains a provision that mirrors this Penal Code provision, confirming  that infringing privacy by way of Social Media is no less subject to  sanction.</p>\r\n<p>In the UAE, there have been a number of cases involving the  disclosure of secret information via Social Media. Articles telling of  jilted lovers circulating compromising photographs via Social Media seem  to be a regular feature in local newspapers.</p>\r\n<p>In a commercial context, the example of a bank using Facebook to  approach a UAE-based customer regarding outstanding loans is an example  of what not to do.&nbsp; A local newspaper reported that the customer learned  of the bank&rsquo;s approach when his daughter emailed him to ask why the  bank had posted details of his outstanding loans on his Facebook wall,  threatening to lodge a case against him for non-payment. While the  newspaper&rsquo;s discussion was focussed on the threatening conduct of the  bank&rsquo;s debt collection agency, our view is that there is a high  possibility that communicating with a customer, via a non-private Social  Media forum, about something as sensitive as bad debts, runs a high  risk of breaching the Penal Code prohibition on the disclosure of  secrets.</p>\r\n<p>Besides the issue of privacy outlined above, the use of Social Media  in a corporate environment raises a number of other  confidentiality-related issues. From an operational perspective, an  employee&rsquo;s use of Social Media &ndash; either for work or in a personal  capacity - could result in the disclosure of information that would be  best kept confidential to the company.&nbsp;</p>\r\n<p><strong>USER GENERATED CONTENT</strong></p>\r\n<p>Many companies have adopted Social Media as a way of engaging with  customers, allowing people to post comments directly onto corporate  websites or Social Media sites. A simple example in a Social Media  context would be comments made by customers on the Facebook page of a  company. While allowing such User Generated Content may be an effective  way of engaging with customers, it is not without risk.&nbsp;</p>\r\n<p>In the UAE, there is some likelihood that User Generated Content that  was offensive or breached privacy could attract liability both for the  individual posting it and for the company that failed to act promptly in  taking it down. For this reason, we recommend that any company that  wishes to engage with customers via Social Media in this manner moderate  User Generated Content &ndash; or, at least, act promptly the moment  offending User Generated Content comes to the company&rsquo;s attention. Our  view in this regard is supported by a new provision in the Cyber Crimes  Law, which - broadly speaking - provides for the site operator&rsquo;s  liability for offending content. Provisions of the Publications and  Publishing Law also support this view.&nbsp;&nbsp;</p>\r\n<p><strong>USE OF THIRD PARTY SOCIAL MEDIA SERVICE PROVIDERS</strong></p>\r\n<p>The use of third party service providers for the management of Social  Media content is another area of risk. Many of the points identified  earlier will be applicable, including making sure that offending content  is not posted &ndash; or not permitted to remain.&nbsp;</p>\r\n<p>A key consideration when it comes to engaging a Social Media  consultant is to appreciate that the industry is at a very early stage  of development, so there will be varying expectations and varying  degrees of professionalism. In this context, we recommend ensuring that  arrangements with service providers are clearly set out in a suitable  services agreement, specifying the scope of work, the service level  expectations, and &ndash; ideally &ndash; some mechanism for addressing  non-compliance with service levels.&nbsp;</p>\r\n<p>Having said that, it is important to appreciate the limitations of  service level credit type mechanisms when working with Social Media. If  the end result of a Social Media &lsquo;fail&rsquo; is that your reputation is  damaged, then service level credits may be of little consolation.</p>\r\n<p>Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications  team regularly advises on Social Media related issues. For any queries  regarding this article, or Social Media issues in general, please  contact Nick O&rsquo;Connell &ndash; n.oconnell@tamimi.com</p>'),
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	(85939,4679,'content_description','Some of us are employers, many of us are employees, and all of us are customers. Some of us are fans, pundits, critics and activists.'),
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	(85941,4679,'pageSummary','Some of us are employers, many of us are employees, and all of us are customers. Some of us are fans, pundits, critics and activists.'),
	(85942,4679,'_pageSummary','field_59e59b307dec8'),
	(85943,4679,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/february-4/social-media-legal-issues-part-i.html'),
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	(85945,4679,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Nick O\'Connell'),
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	(85947,4679,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','n.oconnell@tamimi.com'),
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	(85952,4679,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(85953,4679,'_yoast_wpseo_metadesc','Some of us are employers, many of us are employees, and all of us are customers. Some of us are fans, pundits, critics and activists.'),
	(85954,4680,'content','<p>Upon publication in the Federal Gazette<sup>1</sup>, the new  Advertising Standards will serve to consolidate the various principles  governing content in relation to advertisements in the UAE, reinforcing a  number of fundamental edicts.&nbsp;</p>\r\n<p><strong>1. Objectives.</strong></p>\r\n<p>With a view to ensuring the advertising industry&rsquo;s conformity with  the laws and regulations of the UAE, the new Advertising Standards are  intended to:</p>\r\n<ul>\r\n<li>instill respect for the local religious, cultural and social values which prevail in the UAE;</li>\r\n<li>strengthen the freedom of expression of the media;</li>\r\n<li>establish the advertisement sector as one which contributes to the  advancement of economic development in the UAE; and&nbsp;ensure that all  advertisement content is:&nbsp;</li>\r\n</ul>\r\n<p>- impartial;<br />- truthful;<br />- respects the privacy of individuals; and&nbsp;<br />- protects society from harmful influences.</p>\r\n<p><strong>2. Standards in relation to advertisements</strong>.</p>\r\n<p>The Advertising Standards set out principles in relation to all  digital and traditional advertisements broadcast or published through  any media corporation and outlet in the UAE. Although, the Advertising  Standards do not define the meaning of these terms, they may be  interpreted broadly to include advertisements issued by shops, for  example.&nbsp;</p>\r\n<p>Many of the standards set out in the Advertising Standards reiterate  principles already established under various existing legislations and  regulations, while others introduce new rules governing advertisements  and advertising content in the region. We summarize the main standards  below:</p>\r\n<ul>\r\n<li>Respect for religion and political institutions:</li>\r\n</ul>\r\n<p>Advertising content must be respectful of all divine religions and  not offend Islamic beliefs. It must not disrespect the regime in the UAE  and/or the symbols and political institutions thereof. Further, no  content broadcast or published by a media corporation or outlet may  disrespect the local and international policies of the UAE or disrespect  the cultural heritage of the UAE.</p>\r\n<ul>\r\n<li>Prohibited products/services: &nbsp;</li>\r\n</ul>\r\n<p>The Advertising Standards explicitly prohibit advertising alcoholic  beverages, tobacco, smoking and all banned products or services  including banned narcotics. &nbsp;&nbsp;</p>\r\n<ul>\r\n<li>Prohibited content:</li>\r\n</ul>\r\n<p>The Advertising Standards prohibit the publication of words and  pictures that breach public morals. They further prohibit the spread and  dissemination of information that may prejudice children, women or any  other members of society. The Advertising Standards also prohibit the  provocation of violence, hatred and sectarianism via advertising  content.</p>\r\n<ul>\r\n<li>Privacy:</li>\r\n</ul>\r\n<p>With a view to protecting the privacy of individuals, the Advertising  Standards explicitly prohibit the broadcast and publication of  misleading news and rumors.&nbsp;</p>\r\n<ul>\r\n<li>Consumer Protection:&nbsp;</li>\r\n</ul>\r\n<p>The Advertising Standards mandate compliance with the laws governing  consumer protection and commercial activities particularly in relation  to anti-competitive practices and illegal monopolies. &nbsp;</p>\r\n<ul>\r\n<li>Health regulations</li>\r\n</ul>\r\n<p>Advertising content relating to medicines or pharmaceutical products  must comply with the rules set out by Cabinet Resolution No. 7 of 2007  Regarding Health Advertisements Regulation.&nbsp;</p>\r\n<p><strong>3. Requirements of advertising content.</strong>&nbsp;</p>\r\n<p>The most notable requirement under these new Advertising Standards is  that advertisements are now required to be in standard Arabic or the  local Emirati dialect. Prior to the issuance of these Advertising  Standards, there was no such requirement.</p>\r\n<p>We summarize additional requirements in respect of advertisements below:&nbsp;</p>\r\n<ul>\r\n<li>All advertisements broadcast or published in the UAE must be clear  and must not contain incorrect information. Advertisements must not  create confusion between products. Misleading claims of a comparative  nature that have a tendency to mislead consumers are prohibited.  Additionally, statements relating to uniqueness that have a tendency to  deceive consumers are also prohibited.</li>\r\n<li>The Advertising Standards prohibit the unlawful use of trademarks in  advertisements. Advertisements must not contain fraudulent or imitated  trademarks. The use of labels or pictures that are unrightfully used is  also prohibited.&nbsp;</li>\r\n<li>Broadcast or publication of specialized advertisements, i.e.  advertisements about medicines or pharmaceutical products, food products  and promotions require special permission of the relevant authority  prior to issuance. Similarly, advertisements relating to properties,  universities and kindergartens must be approved by the relevant  authority.&nbsp;</li>\r\n</ul>\r\n<p><strong>4. Enforcement.</strong></p>\r\n<p>The National Media Council is authorized, under the Advertising  Standards, to apply various penalties for non-compliant advertisements.  Such penalties may not be in isolation of any other penalties that may  perhaps be imposed upon an entity under Federal Law No. 15 of 1980  Regarding Printed Matters and Publications.&nbsp; Enforcement of such  penalties can occur against any or all of the &ldquo;advertiser&rdquo;, &ldquo;producer&rdquo;  and &ldquo;publication means&rdquo; (the Advertising Standards do not define the  meaning of these terms)&nbsp; where each of these can be liable for  advertising content that does not comply with standards as set forth in  these Advertising Standards.</p>\r\n<p>&nbsp;Al&nbsp; Tamimi &amp; Company&rsquo;s Technology, Media &amp;  Telecommunications team regularly handles issues related to advertising  and promotions. For further information please contact Sana Saleem at  s.saleem@tamimi.com or Anita Siassios at a.siassios@tamimi.com.&nbsp;</p>\r\n<address><em>1 -&nbsp; At the time of publication of this article, the  Advertising Standards had not been published in the Federal Gazette. We  expect this will happen in due course.</em></address>'),
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	(85958,4680,'content_description','Prior to the issuance of the Advertising Standards, content in relation to advertisements in the UAE was governed and regulated by a combination of legislative and regulatory measures.'),
	(85959,4680,'_content_description','field_59b641c07f473'),
	(85960,4680,'pageSummary','Prior to the issuance of the Advertising Standards, content in relation to advertisements in the UAE was governed and regulated by a combination of legislative and regulatory measures.'),
	(85961,4680,'_pageSummary','field_59e59b307dec8'),
	(85962,4680,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/february-4/advertising-standards-for-the-uae.html'),
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	(85968,4680,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Anita Siassios'),
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	(85970,4680,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.siassios@tamimi.com'),
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	(85975,4680,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(85976,4680,'_yoast_wpseo_metadesc','Prior to the issuance of the Advertising Standards, content in relation to advertisements in the UAE was governed and regulated by a combination of legislative and regulatory measures.'),
	(85977,4681,'content','<p>The Defendants they are suing in such proceedings will, however,  often be located in the DIFC and have assets there or elsewhere in the  UAE, making them susceptible to enforcement proceedings brought by  successful Claimants.&nbsp; Although it is usually only worth suing  Defendants who are solvent, there is less to stop a financially fragile  Claimant with no assets in the DIFC (or anywhere else in the UAE) from  filing a claim in the DIFC Courts. &nbsp;</p>\r\n<p>When it comes to parties&rsquo; legal costs, the DIFC Courts follow the  common law principle that the successful party at trial is usually  entitled to recover a significant share, sometimes the entire share, of  its costs from the losing party following the trial.&nbsp; If a losing  Claimant does not have the funds to satisfy a resulting costs order or  simply refuses to comply with it and the winning Defendant is unable to  enforce the costs order in another jurisdiction (where the losing  Claimant has assets), the Defendant&rsquo;s trial victory may be pyrrhic if  the considerable financial cost of achieving it cannot be recovered from  the Claimant in practice.&nbsp; The enforceability of Court judgments and  orders in other jurisdictions is, even if possible, often complicated  and slow.&nbsp; This is particularly relevant to proceedings before the DIFC  Courts, given the relatively transient nature of Dubai and the ease with  which assets can be moved out of the jurisdiction at short notice if a  party feels its assets are vulnerable to a Court judgment or order. &nbsp;&nbsp;</p>\r\n<p>From a Defendant&rsquo;s perspective, the scenario outlined above gives  rise to the possibility of relatively risk-free litigation on the part  of a Claimant with a weak claim and who may have few if any assets.&nbsp; One  option available to a Defendant in the DIFC Courts to lessen the risk  of being left to bear significant costs even if it wins a trial is to  make a security for costs application against the Claimant pursuant to  Part 25 of the Rules of the DIFC Courts (RDC).&nbsp; Such an application, if  successful, involves the Respondent (Claimant) paying specified funds  into the Court&rsquo;s account to ensure that its costs liabilities can and  will be met should the Court order it to pay a portion of the  Applicant&rsquo;s (Defendant&rsquo;s) costs following a trial.&nbsp; Apart from providing  Defendants with the intended costs security, such applications also  help to weed out weak claims at a relatively early stage because  Claimants will need to think long and hard before parting with  significant funds relatively soon after filing a claim they may  themselves not have full confidence in.&nbsp;</p>\r\n<p>The DIFC Courts will consider a number of factors when determining a  security for costs application and will order security for costs to be  provided if they are satisfied, having regard to all the circumstances  of the case, that it is just to make such an order and if one or more of  the conditions set out in Rule 25.102 of the RDC are met.&nbsp; The key  conditions are that the Respondent: (1) is resident outside the UAE; (2)  is a company or other body and there is reason to believe it will be  unable to pay the Applicant&rsquo;s costs if ordered to do so; (3) the  Respondent has changed addresses since the claim was filed in order to  evade the consequences of litigation; (4) the Respondent did not include  its (correct) address in the claim form; or (5) the Respondent has  taken steps in relation to its assets that would make it difficult to  enforce a costs order against it.</p>\r\n<p>It is clear that these conditions give the DIFC Courts a wide  discretion to grant security for costs, but this discretion must be  exercised in accordance with established principles and with regard to  the underlying purpose of such orders.&nbsp; This was stated by the DIFC  Court of Appeal in Rafed Abden Mohsen Bader Al Khorafi, Mrs Amrah Ali  Abdel Latif Al Hamad and Mrs Alia Mohamed Sulaiman Al Rifa v Bank  Sarasin-Alpen Limited (CA 001/2010 and CA 002/2010), where the following  passage of the judgment in the English case of De Bry v Fitzgerald  ([1990] 1 WLR 352) was cited with approval:&nbsp;</p>\r\n<p><em>&ldquo;a defendant should be entitled to security if there is reason to  believe that, in the event of his succeeding and being awarded the  costs of the action, he will &nbsp; &nbsp; have real difficulty in enforcing that  order&hellip;..If this difficulty [in enforcing the order] would arise from the  impecuniosity of the plaintiff, the court will of course have to take  an account of the likelihood of his succeeding in his claim, for it  would be a total denial of justice that poverty should bar him from  putting forward what is prima facie a good claim&hellip;..If, on the other  hand, the problem is not that the plaintiff is impecunious but that, by  reason of the way in which he orders his affairs, including where he  chooses to live and where he chooses to keep his assets, an order for  costs against him is likely to be unenforceable, or enforceable only by  significant expenditure of time and money, the defendant should be  entitled to security.&rdquo;</em></p>\r\n<p>In overturning the order of DIFC Court of First Instance requiring  security for costs from the Claimants, the DIFC Court of Appeal stated  that the burden of establishing facts sufficient to justify such an  order rests on the applicant and that the difficulty of enforcing a  costs order (in another jurisdiction) is a material consideration.&nbsp; The  Claimants in Al Khorafi are Kuwaiti nationals and the applicant  Defendant had not met the burden of proving that a costs order could not  be enforced against the Claimants in Kuwait, according to the DIFC  Court of Appeal.&nbsp; The &ldquo;conflicting evidence&rdquo; on this particular question  included the Riyadh Arab Agreement for Judicial Cooperation (commonly  known as the Riyadh Convention), pursuant to which a costs order of the  DIFC Courts should be enforceable by the Kuwaiti Courts, although the  DIFC Court of Appeal itself was not able to reach any conclusion as to  the risk that such enforcement would not in fact be possible.&nbsp; In Al  Khorafi, the DIFC Court of Appeal also stated that applicants for  security for costs are required to provide a detailed schedule showing  the breakdown of their total figure for the requested security.</p>\r\n<p>In summary, while few parties have a desire to be sued, the DIFC  Courts do at least provide a Defendant with the useful tool of a  security for costs application to: (a) help protect its costs position  should it choose to see a claim through to trial; and (b) make a  Claimant consider the costs and merits of its claim more thoroughly than  it may have otherwise done.&nbsp; However, the prospects of succeeding with  such an application will depend, in particular, on the location of the  Claimant and its assets, its financial standing and the legal and  practical difficulties faced by the Defendant in enforcing any eventual  costs order against the Claimant.</p>'),
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	(85981,4681,'content_description','Most jurisdictions are familiar with ambitious Claimants represented by law firms with unconventional billing practices.  Claimants in the Courts of the Dubai International Financial Centre (DIFC Courts) do not need to be based in the DIFC (or indeed anywhere in the UAE), nor do they need to set out their financial position when they file a claim.  '),
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	(85983,4681,'pageSummary','Most jurisdictions are familiar with ambitious Claimants represented by law firms with unconventional billing practices.  Claimants in the Courts of the Dubai International Financial Centre (DIFC Courts) do not need to be based in the DIFC (or indeed anywhere in the UAE), nor do they need to set out their financial position when they file a claim.  '),
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	(85991,4681,'_yoast_wpseo_metadesc','Most jurisdictions are familiar with ambitious Claimants represented by law firms with unconventional billing practices. Claimants in the Courts of the Dubai International Financial Centre (DIFC Courts) do not need to be based in the DIFC (or indeed anywhere in the UAE), nor do they need to set out their financial position when they file a claim.'),
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	(86006,4684,'content','April 2013\r\n\r\n<hr />\r\n\r\nParty A requested the Court to ratify an arbitral award issued on 18 June 2008 in which the Defendant Parties were ordered to jointly and severally pay AED 843,912 plus 9% legal interest from 12 July 2003 until full payment. Party A was also awarded its legal costs in the amount of AED 30,000.\r\n\r\nParty A submitted that it had entered into a Sub Contracting Agreement (“The Agreement”) with the Defendant Parties and that the Agreement contained an arbitration clause. Party A’s obligations under the Agreement were to execute carpentry work, being the supply and installation of wooden doors and cupboards in a residential complex in Sharjah. Party A pleaded that it had carried out all the works as stipulated in the Agreement but that the Defendant Parties refused to make the final installment payment, amounting to AED 843,912. Parties B and C requested the court to dismiss the case for the existence of an arbitration clause. Accordingly, Party A amended its plea and requested the court to appoint an arbitrator. As stated above, Party A received an arbitral award to this effect in its favor.\r\n\r\nConsequently, a representative of the Defendant Parties filed an interlocutory application before the Court, requesting that the Court set aside the arbitral award. A number of grounds were put forward in support of the application:\r\n<ol>\r\n 	<li>The award was issued without terms of reference and/or based upon invalid terms of reference. The basis for this argument was the suggestion that the minutes of arbitration hearings neglected to state that parties neither prepared nor signed terms of reference.</li>\r\n 	<li>The arbitrator exceeded the time prescribed in the terms of reference (being 18 January 2008) to issue the award, and further, that the invalid terms of reference did not empower the arbitrator to extend the prescribed time. The Defendant Parties noted that both participants to the proceedings had refused to extend the time within which the proceedings were to be conducted. The Defendant Parties submitted that any such extensions should have been requested by the arbitrator prior to the expiration of the prescribed time (in this case the Defendant Parties alleged it was requested following the expiration of the time).</li>\r\n 	<li>The legal representative of the Defendant Parties during the arbitral hearings had not been properly authorized by the Defendant Parties to attend and make submissions at arbitral hearings. The Defendant Parties further argued that their legal representative had not been duly authorised to sign the terms of reference or to extend the deadline as prescribed in the terms of reference;</li>\r\n 	<li>The arbitrator did not ensure that the Defendant Parties had been adequately served.</li>\r\n 	<li>The arbitrator received his terms of reference from the execution judge and not from the Court which had appointed him. The Defendant Parties argued that the Article 216(b) of the UAE Civil Procedure Law precluded the execution judge from addressing the arbitrator.</li>\r\n 	<li>The arbitrator had directed the Defendant Parties to pay the arbitration fees before commencing the arbitration proceedings and then again before identifying the loosing party, which the Defendant Parties argued was in contravention of Article 218 of the Civil Procedure Law.</li>\r\n 	<li>The arbitrator did not deposit his award as prescribed in Article 213 of the Civil Procedure Law but deposited it with the execution judge without providing a copy to all parties within the stipulated time limit.</li>\r\n</ol>\r\n<strong>Court of First Instance</strong>\r\n\r\n&nbsp;\r\n\r\nThe Court of First Instance dismissed Party A’s plea that the award be enforced and ruled in favor of the Defendant Parties. Consequently Party A appealed to the Court of Appeal. Although the award was set aside, the Defendant Parties also appealed on the basis the Court of First Instance had failed to adequately address the Defendant Parties’ reasons for arguing that the award be set aside.\r\n\r\n<strong>\r\nCourt of Appeal</strong>\r\n\r\n&nbsp;\r\n\r\nThe Court of Appeal overturned the Court of First Instance’s decision and ratified the arbitral award. Furthermore, the Court of Appeal dismissed the Defendant Parties’ interlocutory claim. Subsequently, the Defendant Parties appealed to the Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\n&nbsp;\r\n\r\nThe Defendant Parties argued that the Court of Appeal had erred in reversing the decision of the Court of First Instance. The Defendant Parties put forward a number of propositions in support of this plea:\r\n<ol>\r\n 	<li>The Defendant Parties relied on to Article 212 (5) of the Civil Procedure Law in arguing that one of the essential requirements of an arbitration award is the signature of the arbitrator who has issued the award. The Defendant Parties noted that the arbitrator only signed the last page of the arbitral award (which contained the decision) whereas all the other pages containing the grounds for the ultimate decision were not signed;</li>\r\n 	<li>The proceedings were not governed by valid terms of reference (or indeed any terms of reference). The Defendant Parties argued that the terms of reference had only been signed by Party A and not the Defendant Parties’ representatives.</li>\r\n 	<li>The Defendant Parties again put forward the arguments that the proceedings had expired, and the proposition that their legal representative had not been properly authorised to represent them.</li>\r\n</ol>\r\nWith respect to the Defendant Parties’ first argument, the Court of Cassation repeated a long established principle that a most essential element of an arbitration award is the signature, on the award, of the arbitrators who have issued the award. The Court further explained that from a legal point of view; the signature is the only evidence of the existence of the award, and must refer to both the ultimate decision and the grounds reached in support of that ultimate decision. Essentially, a failure by the arbitrator to sign each page of the award would render that award invalid.\r\n\r\nThe Court of Cassation found one exception to this crucial and important rule. Where the grounds or reasoning for the ultimate decision are continued on the same page as the relief ultimately ordered, and the page containing the ultimate relief is signed, that signature shall be deemed to cover the reasoning for the granting of the relief.\r\n\r\nIf the reasoning and grounds for the ultimate decision and the ultimate decision itself appear on separate pages, then all pages of the award should be signed by all arbitrators. Failing this, such award shall be invalid.\r\n\r\nIn this case, the final page of the award, which contained the ultimate decision, also contained part of the reasoning for the ultimate decision. The final page was signed; therefore the signature was deemed to cover both the grounds for the ultimate decision and the ultimate decision itself. Importantly, the Court of Cassation ruled that the format of the award complied with Article 212.\r\n\r\nThe Defendant Parties’ second argument was dismissed.  The Court of Cassation determined that an arbitration agreement is capable of either being incorporated as a clause (“arbitration clause”) in the contract between parties or as a separate independent agreement in the course of a dispute between both parties (this is not to be confused, however, with the doctrine of separability which prescribes that an arbitration clause in a contract is to be treated as separate from that main contract). Importantly, the Court of Cassation held that when the arbitration agreement is incorporated as a clause in the contract it exempts the participants from drafting a separate independent agreement or terms of reference in order to validate the procedure.\r\n\r\nIn this case, the Court of Cassation found that because the Court of First Instance had appointed the arbitrator on the basis that the Agreement contained an arbitration clause, there was no need to enter into separate terms of reference.\r\n\r\nFrom a further procedural standpoint, the Court of Cassation held that there was no provision in the law requiring the arbitrator to document, in the minutes of the arbitration hearings, that he had submitted terms of reference to the parties for their signature.\r\n\r\nThe Defendant Parties’ third and final argument was also dismissed. The Court of Cassation, with reference to Article 210 of the Civil Procedure Code, held as follows:\r\n<ul>\r\n 	<li>An agreement on a specific timeframe for the arbitrator to render his award would not prevent a later agreement explicitly or implicitly, extending that timeframe for one or more additional periods, or to authorise the arbitrator to determine the extension.</li>\r\n 	<li>The court may, at the request of the arbitrator or any of the parties, extend that date for the duration of time it deems appropriate for the settlement of the dispute.</li>\r\n 	<li>As such an extension of the time for arbitration, whether pursuant to the agreement of the parties or authorisation of the arbitrators or order of the court, begins to run after completion of the previous period and not separately.</li>\r\n 	<li>The arbitration proceedings shall be deemed to continue (i.e. without expiration) if the parties continue to appear, and neither party expressly pleads that the arbitration proceedings have lapsed, or if the arbitrator requests an extension from the Court before the expiry of the time limit for arbitration (the proceedings will not be held to have expired even if the Court agrees to the extension only after the arbitration time limit has expired – the crucial date is the date the request is made).</li>\r\n</ul>\r\nThe Court found that the arbitrator had requested an extension from the Court within the 6 month period of the proceedings. In this regard, the Defendant Parties’ time bar argument was dismissed.'),
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	(86010,4684,'content_description','The Facts of the Case: A Commercial Action was filed before the Dubai Court by a Subcontractor (“Party A”) against (“Parties B and C” together the “Defendant Parties”).\r\n'),
	(86011,4684,'_content_description','field_59b641c07f473'),
	(86012,4684,'pageSummary','The Facts of the Case: A Commercial Action was filed before the Dubai Court by a Subcontractor (“Party A”) against (“Parties B and C” together the “Defendant Parties”).'),
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	(86014,4684,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/april-5/grounds-for-setting-aside-arbitration-awards.html'),
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	(86023,4684,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86024,4684,'_yoast_wpseo_metadesc','The Facts of the Case: A Commercial Action was filed before the Dubai Court by a Subcontractor (“Party A”) against (“Parties B and C” together the “Defendant Parties”).'),
	(86025,4685,'content','April 2013\r\n\r\n<hr />\r\n\r\n<strong>Background</strong>\r\n\r\nAn award issued by a Qatari Arbitration Centre obliged the Plaintiff to pay to the Defendant more than QAR 8m.  (Note that the Arabic text of the law makes no distinction between the words \"award\" and \"judgment\").\r\n\r\nThe Case at First Instance\r\n\r\nIn 2010, the Plaintiff filed a civil case with the Court of First Instance in Qatar, seeking to nullify the validity of the impugned award.\r\n\r\nIn 2011, the Court of First Instance rejected the Plaintiff’s case.\r\n\r\n&nbsp;\r\n\r\nRuling of the Court of Appeal\r\n\r\n&nbsp;\r\n\r\nLater in 2011, the Plaintiff brought the decision of the Court of First Instance before the Court of Appeal.  But nonetheless, in a Judgment delivered in January 2012, the Court of Appeal affirmed the finding of the Court of First Instance.\r\n\r\n<strong>Judgment of the Court of Cassation</strong>\r\n\r\n&nbsp;\r\n\r\nIn March 2012, the Plaintiff lodged a further appeal with the Court of Cassation, seeking to nullify the validity of the impugned award.\r\n\r\n<strong>The Court of Cassation’s Decision</strong>\r\n\r\n&nbsp;\r\n\r\nIn justifying the necessity of rendering any arbitral award in the name of H.H. the Emir of Qatar, the Supreme Court reasoned as follows:\r\n<ul>\r\n 	<li>Whereas, the Permanent Constitution of Qatar - Article 63 - states that \"Judicial Authority shall be vested in the Courts in the manner prescribed in this Constitution and Judgments shall be issued in the name of the Emir\".</li>\r\n 	<li>Whereas, the Qatari Civil Procedure Code - Article 69 - provides that \"Judgments are issued and executed in the name of H.H. the Emir of the State of Qatar\"; Article 198 stipulates that \"Arbitrators render their judgment … provided they do not violate the rules of public order and morality\"; Article 202 states that \"the judgment of the arbitrator is rendered after deliberations…\"; Article 203 specifies that \"The original text of arbitrators\' judgments, even if made for investigation proceedings, must be filed with the clerk of the Court originally having jurisdiction over the dispute…\"; and Article 204 provides that \"Arbitrators’ judgments are not enforceable unless an order of execution is granted by the President of the Court with whose clerk the original judgment was registered, upon request of any of the concerned parties.</li>\r\n 	<li>This execution order is granted after consideration of the judgment and the arbitration agreement and after confirmation that there is no obstacle against its enforcement. The execution order shall be endorsed on the original judgment. The enforcing judge has jurisdiction over all questions relating to enforcement.\"</li>\r\n 	<li>Finally, Article 207 provides that \"Parties may request the setting aside of arbitrators\' judgments in the following cases: if the award was made without there being an arbitration agreement… or if it breaches one of the rules of public order or morality\".</li>\r\n 	<li>In the light of the above-mentioned articles, the legislator qualified the decision of an arbitrator as a \"judgment\", in light of its binding effect on the parties and the power of the Court to issue an execution order to implement and enforce its terms. Therefore, by virtue of Article 204 of the Civil Procedure Code, the arbitrator’s judgment (Award) should be issued in the name of H.H. the Emir of Qatar. If this condition is not fulfilled, the arbitrator’s decision shall not be recognised as a \"judgment\", being contrary to both the Constitution and the Law. Furthermore, rendering the \"judgment\" in the name of H.H. the Emir confirms that it is supported by Public Force and is enforceable as such in accordance with the public order. Any decision or judgment of the arbitral tribunal should be rendered in the name of H.H. the Emir; otherwise, it shall be considered null and void, contrary to public order and the Court may sua sponte declare it as such.</li>\r\n</ul>\r\nIn the light of the foregoing, The Court of Cassation overturned the judgment of the Court of Appeal.\r\n\r\n<strong>\r\nComment</strong>\r\n\r\n&nbsp;\r\n\r\nThis Judgment is only related to awards issued in Qatar. Since the said Judgment is issued by the highest court (Court Cassation), all the lower courts will probably follow same although in theory they are not obliged to do so.\r\n\r\nThis Judgment is extremely controversial, therefore, we will shortly issue an article to analyse and comment on the legal reasons and effects.\r\n\r\n<strong>Please note:</strong>\r\n\r\n&nbsp;\r\n\r\nAl Tamimi &amp; Co. did not provide legal representation to any of the parties in the course of this litigation.'),
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	(86029,4685,'content_description','The Qatari Court of Cassation rules on the necessity for arbitral awards to be rendered in the name of H.H. the Emir of Qatar\r\nA recent controversial decision by Qatar’s Court of Cassation has ruled on the necessity for arbitral awards to be rendered in the name of H.H. the Emir of Qatar.'),
	(86030,4685,'_content_description','field_59b641c07f473'),
	(86031,4685,'pageSummary','The Qatari Court of Cassation rules on the necessity for arbitral awards to be rendered in the name of H.H. the Emir of Qatar\r\nA recent controversial decision by Qatar’s Court of Cassation has ruled on the necessity for arbitral awards to be rendered in the name of H.H. the Emir of Qatar.'),
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	(86039,4685,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Mohammed Al Marri'),
	(86040,4685,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(86041,4685,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','m.almarri@tamimi.com'),
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	(86044,4685,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
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	(86047,4685,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
	(86048,4685,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
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	(86051,4685,'_yoast_wpseo_metadesc','The Qatari Court of Cassation rules on the necessity for arbitral awards to be rendered in the name of H.H. the Emir of Qatar A recent controversial decision by Qatar’s Court of Cassation has ruled on the necessity for arbitral awards to be rendered in the name of H.H. the Emir of Qatar.'),
	(86052,4686,'content','April 2013\r\n\r\n<hr />\r\n\r\nThis amount represented an outstanding due to the client in addition to damages for breach of contract.\r\n\r\nThe below article is based on the judgment rendered by the Dubai Court of Cassation in r elation to the ratification of the arbitral award.\r\n\r\n<strong>Facts of the Case:\r\n</strong>\r\n\r\nThe Claimant, a general contractor for engineering construction, entered into an agreement with the Respondent in which they agreed to settle their disputes in accordance with the International Federation of Consulting engineering Contracts (FIDIC) and in accordance with the procedures of arbitration in the UAE.\r\n\r\nAs the Respondent failed to perform his contractual obligations the Claimant initiated arbitration proceedings before the Dubai International Arbitration Centre which awarded the Claimant the amount of AED 52 Million.\r\n\r\nIn order to enforce the award, the Claimant initiated proceedings before the Dubai Court of First Instance requesting the ratification of the award rendered by DIAC arbitrator. The Respondent filed a counter claim requesting the court to annul the award on the basis of lack of consent, alleging that he did not sign the agreement with the Claimant and that he never agreed to the arbitration clause. Further, he alleged that the agreement was signed by the consulting engineer of the project who was not granted a specific power of attorney from the Respondent to agree to arbitrate.\r\n\r\n<strong>Procedural History:</strong>\r\n\r\nThe First Instance Court annulled the arbitral award relying on article 58(2) of Civil Procedures Law. According to the Court of First Instance an agreement to arbitrate shall not be valid unless made by persons having the legal capacity to make a disposition over the subject matter of the dispute or by special authorization from the latter. Therefore, the court concluded that the Respondent did not sign the agreement, or agree personally to arbitrate nor did he authorize his consultant to agree to arbitrate, therefore the arbitration clause as well as the arbitration award shall be considered null and void\r\nThe Claimant appealed the above judgment on the grounds accepted by Court of Appeal which overturned the lower court’s decision and ratified the arbitration award. Consequently, the Respondent challenged the Appeal Court’s decision before the Court of Cassation on the following grounds:\r\n\r\n1- The main contract, the subject of the award was signed by the project’s consultant who was appointed by the Respondent (the employer) and was not signed by the Respondent himself.\r\n\r\n2- The documents did not include a specific Power of Attorney from the Respondent to the consultant to agree to arbitrate on his behalf. The applicable law as set out in previous judicial precedents, requires  an arbitration clause or deed to be signed either by the contracting party or an agent who holds a specific power of attorney to agree to arbitrate on behalf of the contracting party.\r\n\r\n3- The award did not include a copy of the arbitration agreement nor was the subject matter of the dispute defined in an arbitration agreement or specified during the course of the arbitration proceedings.\r\n\r\n<strong>\r\nThe Court of Cassation\r\n</strong>\r\n\r\nResponding to the Respondent’s above arguments, the Cassation Court rejected all his arguments on the following grounds:\r\n\r\n1- Pursuant to Article 203 of the UAE Civil procedures Law (CPL) an arbitration may be agreed between contracting parties and included in an arbitration clause where they would agree to refer any future disputes arising from their contract to arbitration or they may later agree to refer their current dispute to arbitration and conclude it in an arbitration deed. Once the contracting parties include an arbitration clause in their agreement, there is no requirement to enter into a separate arbitration deed. In this case, the tender documents included the tender terms and conditions which referred to FIDIC general terms and conditions specifically clause 67(1) that deals with arbitration in accordance with Dubai Chamber of Commerce rules and FIDIC.\r\n\r\n2- In addition, a letter was signed by the Respondent and submitted to the arbitration tribunal acknowledging that he signed the contract which is derived from the tender general terms and conditions. This letter established that the Respondent was aware of the arbitration clause when he entered into the agreement as well as his knowledge of the tender’s general terms and conditions that referred to the FIDIC terms and conditions (which contain an arbitration clause).\r\n\r\nThe fact that the consultant signed the agreement on behalf of the Respondent does not change the fact that the latter was aware of the arbitration clause as indicated in the tender’s general terms and conditions to which he agreed and accepted when he submitted his tender.  As evidenced in correspondence with the Claimant. The fact that the Respondent terminated the agreement pursuant to Article 63 of the Tender’s general terms and conditions proves that he was aware of the arbitration clause explicitly mentioned therein.\r\n\r\nTherefore the Cassation Court upheld the Appealed judgment which ratified the arbitration award.\r\n\r\n<strong>Practice Note:\r\n</strong>\r\n\r\nThe court established a new precedent by deciding to ratify the arbitral award concerning an arbitration agreement which was not specifically signed by one of the contracting parties nor was it signed by a holder of a specific power of attorney to agree to arbitrate on behalf of one of the contracting parties. . The Court held that because the tender documents (which contained an arbitration clause) were accepted by the defendant and the defendant had performed the contract and then engaged fully in the arbitration, it was bound by the arbitration clause and could not now seek to annul the award due to lack of consent.'),
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	(86056,4686,'content_description','Al Tamimi and Company was instructed by a client, the Claimant, to initiate legal proceedings to ratify and enforce an arbitral award issued in the client’s favor ordering the other party, the Respondent, to pay the amount of AED 52 million.'),
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	(86058,4686,'pageSummary','Al Tamimi and Company was instructed by a client, the Claimant, to initiate legal proceedings to ratify and enforce an arbitral award issued in the client’s favor ordering the other party, the Respondent, to pay the amount of AED 52 million.'),
	(86059,4686,'_pageSummary','field_59e59b307dec8'),
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	(86066,4686,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Rami Abdellatif'),
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	(86068,4686,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','r.abdellatif@tamimi.com'),
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	(86074,4686,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
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	(86078,4686,'_yoast_wpseo_metadesc','Al Tamimi and Company was instructed by a client, the Claimant, to initiate legal proceedings to ratify and enforce an arbitral award issued in the client’s favor ordering the other party, the Respondent, to pay the amount of AED 52 million.'),
	(86079,4687,'content','April 2013\r\n\r\n<hr />\r\n\r\nThe courts held that the civil court is bound by a judgment issued in a criminal case but only in relation to the matters decided in the criminal judgment that are common to both the criminal and civil proceedings, the legal description of the act and it can be attributed to the perpetrator. The Court referenced Article 269 of the Law of Criminal Procedures and Article 50 of the Law of Proof regarding the res judicata effect of a criminal judgment.\r\n\r\nIf the criminal court has made a conclusive determination of these matters, then the civil court must be bound by it in civil actions relating to it, and must not reopen those issues, as that would be contrary to the principle of res judicata in respect of the previous criminal judgment.  The res judicata force applies to everybody, notwithstanding that they were not parties to the criminal case.\r\n\r\nIn the present case, the criminal court had passed a judgment finding that the Second Defendant had not forged the signatures on the Sale and Purchase Agreements (the SPAs) as she had signed within the powers of her authority (in her power of attorney) and as a result, the Claimant (the Principal) was bound by the terms of the SPAs and was not permitted thereafter to reopen that dispute before the civil court in order to claim damages from the Second Defendant (the property developer).\r\n\r\n<strong>Claim</strong>\r\n\r\nAn action was filed against an individual (First Defendant) and a property developer (the Second Defendant) for an order to terminate several SPAs and a claim for damages\r\n\r\nThe Claimant filed a property action against the property developer and an individual who signed the SPAs on the Claimant’s behalf (the First Defendant) seeking an order for the termination of the SPAs and requesting the property developer to refund the sum of AED 2,904,539 to the Claimant. The Claimant also requested damages. The Claimant argued that the property developer fraudulently revised the contract price by an additional AED 4 million through the First Defendant who signed the SPAs on behalf of the Claimant.\r\n\r\nCourt of first instance:\r\n\r\nThe First Defendant argued that the action should not be entertained for being filed against a party having no capacity since she acted on the Claimant’s behalf, as an agent, in signing detailed reservation agreements pursuant to a Power of Attorney from him.\r\n\r\nThe Second Defendant pleaded that the Dubai Courts had no local jurisdiction in the matter because the contract to be terminated relates to units of a property located in Abu Dhabi. As a result, the Abu Dhabi courts have jurisdiction.\r\n\r\nThe Court of First Instance therefore rejected the Claimant’s action.\r\n\r\n<strong>Court of appeal</strong>\r\n\r\nThe Claimant appealed and on 11.01.11, the Court of Appeal reversed the appealed decision and ordered the Second Defendant to perform the contract dated 19.02.08 subject to the old terms as to price – AED 26,140,085.8 (disregarding the revised contract price of AED 4 million).\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nAll parties appealed. On 18.09.11, the Court of Cassation decided, in all appeals, to reverse the Court of Appeal’s decision and return the matter back to the Court of Appeal for it to be reconsidered by a different panel of judges.\r\n\r\n<strong>Final Decision</strong>\r\n\r\nThe Second Defendant argued that the Court of Appeal was wrong to order the termination of the SPAs (between the Second Defendant and the Claimant) on the basis of the Second Defendant’s alleged breach of its previous agreement by making a new offer without the Claimant agreeing to an upwards revision of the price. The Court of Appeal considered this a breach on the part of the Second Defendant necessitating the termination of the SPAs when in fact there was no breach of the terms of the completed binding contract that was duly formed by offer and acceptance between the parties in the case of all the SPAs which the First Defendant signed pursuant to a PoA from the Claimant, as held in the criminal verdict acquitting the First Defendant of the charge of forging those contracts. The Criminal Court had determined the issue of the Claimant’s acceptance of the contracts based on the adjusted price and found them to be binding on him.\r\n\r\nIt was argued that where an agent signs a contract within the powers of his authority (the Power of Attorney) in the name of the principal, the provisions of such contract and the rights (obligations) arising from the contract shall transfer upon the principal, pursuant to Article 153 of the Civil Code. The Court of Cassation upheld this argument.\r\n\r\nThe Court also cited the rule under Article 269 of the Law of Criminal Procedures and Article 50 of the Law of Proof with respect to a criminal verdict delivered in a criminal case being binding on the civil court as to its determination of issues relevant to whether the accused is guilty of the offence that are common to both the criminal and civil proceedings and the legal characterization of the elements of the offense and its imputation to the perpetrator. A final criminal verdict resolving such issues would be recognized by the civil court in determining related civil rights and the civil court may not reconsider those issues and render a decision contradicting the criminal verdict already delivered which is binding for all.\r\n\r\nThe court held that the matter against the property developer and the First Defendant achieved the status of res judicata precluding the rehearing of the action. The court passed judgment acquitting the accused of the offence of forgery of a document, the effect of that is that the judgment of acquittal is based on insufficient evidence, and that judgment becomes conclusive.  Accordingly, it will not be open to the civil court to allow a civil claim based on falsification of that document.\r\n\r\nAs a result the court dismissed the action against the First Defendant and the Second Defendant.'),
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	(86083,4687,'content_description','Introduction: In an appeal from a Court of Appeal judgment, the courts emphasised the principle regarding the res judicata effect of a criminal judgment on a civil case. \r\n'),
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	(86085,4687,'pageSummary','Introduction: In an appeal from a Court of Appeal judgment, the courts emphasised the principle regarding the res judicata effect of a criminal judgment on a civil case.'),
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	(86093,4687,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zane Anani'),
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	(86104,4687,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86105,4687,'_yoast_wpseo_metadesc','Introduction: In an appeal from a Court of Appeal judgment, the courts emphasised the principle regarding the res judicata effect of a criminal judgment on a civil case.'),
	(86106,4688,'content','April 2013\r\n\r\n<hr />\r\n\r\nBut then, that was before 9 December, 2012 when the new PIB module of DFSA set the DIFC financial services world alight.\r\n\r\nWhilst the changes are not surprising, they are significant and are likely to have a significant impact on firms who now find themselves in category 3A because one of the financial services for which they are licensed is “dealing in investments as agent”.  It now becomes more important than ever to look at the scope of these activities and for a firm to ask itself whether it really is dealing in investments as agent. Category 3A covers Dealing in Investments as Principal (only as Matched Principal) and Dealing as Agent.  Category 3B covers Providing Custody ( for a Fund) and acting as Trustee for a Fund.  Category 3C covers Managing a Collective Investment Fund, Managing Assets, Providing Trust Services as a trustee of an express trust, managing a Profit Sharing Investment Account and providing Custody (other than for a Fund).\r\n\r\nThe fact of the matter is that firms which are in category 3A have much higher capital requirements to firms which are in category 3B or 3C.\r\n\r\nIn this article we will look at the scope of the financial service of “Dealing in Investments as Agent”.  The reason for this is that there seems to be a widely held belief that where, for example, a fund manager places an order with a broker for and on behalf of a number of funds, this falls into the financial service of “Dealing in Investments as Agent”.  In our view this activity more closely fits with the financial service of “Arranging Deals in Investments” than Dealing in Investments as Agent”.  This is a potentially significant difference because it means that firms which are currently in category 3A could be in category 3B, 3C or 4 where the capital requirements are easier to meet.\r\n\r\nRule 2.8.1 in GEN defines “Dealing in Investments as Agent” as “buying, selling, subscribing for or underwriting any investment as agent”.  The important point to note here is that the definition talks about the actual act of buying, selling subscribing or underwriting rather than arranging for someone else to buy, sell, subscribe or underwrite.  The exemption set out in rule 2.8.3 clarifies the scope of the definition by providing that a “Person does not Deal in Investments as Agent if that Person is merely receiving and transmitting a Client order in respect of an Investment.”\r\n\r\nOn a pure technical analysis of the scope of Rule 2.8.3, it could be argued that an Authorized Firm which has entered into an investment management agreement with a client which gives the firm discretion as to when and what to trade will never be receiving and transmitting a client order.  Whilst this maybe accurate, this does not mean that because the activity of the firm does not neatly fit within the exception set out in Rule 2.8.3, the activity must of necessity therefore fall within Rule 2.8.1.  In our view, Rule 2.9.1 is a much closer fit to the process of a firm placing an order with a broker pursuant to an investment management agreement.  Rule 2.9.1(1) covers the financial service of “Arranging Credit or Deals in Investments” and provides that it means “making an arrangement with a view to another Person, whether as Principal or Agent, buying, selling subscribing for or underwriting an Investment.”  It should be noted that there is no reference in this section to the transmission of an order, so Authorized Firms which are operating pursuant to an investment management agreement which gives discretion as to what and when to trade are not excluded from this section.\r\n\r\nWhile there is no change in the Base Capital Requirements for firms in 3A. 3B or 3C, the Risk Capital Requirements (RCR) will apply to 3A firms, but will not apply to firms in category 3B or 3C.  Under the changes, the RCR is set at 10% of the Risk Weighted Assets (RWA) and then scaled up by 125%.  In addition, category 3A firms are now subject to a Capital Conservation Buffer which has been set at 25% of the Risk Capital Requirement.  In all, category 3A firms (and category 1,2 and 5 firms) will have an overall capital requirement of 12.5%.  Category 3B, 3C and 4 firms will not be subject to these requirements but instead, will be subject to an obligation to take out Professional Indemnity Insurance which needs to be consistent with the risk profile and type of business carried out by the firm.  A copy of the PII cover will need to be lodged with DFSA annually.\r\n\r\nIf you are a category 3A firm, under these new arrangements you may need to raise additional capital, alternatively, you may decide to consider whether the firm is or will ever be dealing in investments as Agent.  If a firm is currently authorized to deal in investments as agent, but has not, and will not be dealing as agent, then an application to vary the current licence will need to be made to DFSA.  The quarterly returns to be lodged by Authorized Firms are due at the end of April, so it is too late to get the benefit of a change in licence for the previous quarter, however, this should not discourage firms from lodging an application prior to the end of the next quarter.'),
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	(86110,4688,'content_description','In the good old days of financial services applications in the DIFC, a category 3 financial services licence covered a multiplicity of financial services and it would have been irresponsible of any advisor to suggest that a financial services company should not apply for as many services as it could reasonably justify.'),
	(86111,4688,'_content_description','field_59b641c07f473'),
	(86112,4688,'pageSummary','In the good old days of financial services applications in the DIFC, a category 3 financial services licence covered a multiplicity of financial services and it would have been irresponsible of any advisor to suggest that a financial services company should not apply for as many services as it could reasonably justify.'),
	(86113,4688,'_pageSummary','field_59e59b307dec8'),
	(86114,4688,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/april-5/the-enhanced-pib-module-of-the-dfsa-rulebook.html'),
	(86115,4688,'_currentURL','field_59d35123ab1e7'),
	(86116,4688,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Michael Dalby'),
	(86117,4688,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(86118,4688,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','m.dalby@tamimi.com'),
	(86119,4688,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(86120,4688,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(86122,4688,'lawUpdateArticleNoWriters','1'),
	(86123,4688,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(86124,4688,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(86125,4688,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(86126,4688,'lawUpdateArticlePractices','1'),
	(86127,4688,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86128,4688,'_yoast_wpseo_metadesc','In the good old days of financial services applications in the DIFC, a category 3 financial services licence covered a multiplicity of financial services and it would have been irresponsible of any advisor to suggest that a financial services company should not apply for as many services as it could reasonably justify.'),
	(86129,4689,'content','April 2013\r\n\r\n<hr />\r\n\r\nThis new piece of legislation is a comprehensive overhaul of the legislation that existed previously, Law No. 33 of 2006 (the “Old QCB Law”).  The Qatar Central Bank (the “QCB”) is the primary regulator of financial institutions operating in Qatar, and the QCB Law has now expanded its supervisory powers to cover the insurance sector and the Qatar Financial Centre.  The QCB Law addresses many issues for the first time, including Islamic banking, mergers and acquisitions of financial institutions, credit rating agencies, insurance, treating customers fairly and resolution of failing banks.  This article sets out some of the key changes and developments that have been introduced in the QCB Law.\r\n\r\n<strong>Scope of the QCB – Extended to Regulate QFC Entities, Insurance and Reinsurance and Credit Rating Agencies</strong>\r\n\r\nThe QCB Law sets out the types of activities that fall within its scope.  In addition to conventional and Islamic banking, investment banking and the exchange house business that traditionally fell within the QCB’s mandate, insurance and reinsurance and credit bureaus also now fall within its scope.  Most significantly, the QCB now has powers to regulate the activities of the Qatar Financial Centre (“QFC”) and by extension the financial institutions that operate in the QFC.\r\n\r\nAt this juncture it is unclear as to how the QCB and the Qatar Financial Centre Regulatory Authority (the “QFCRA”) will coordinate their overlapping roles.  It is expected that the QCB and the QFCRA will work together and the QCB will provide guidance and strategic advice to the QFCRA.  For the purposes of entities operating in the QFC, the QFCRA will continue as their regulator.\r\n\r\n<strong>Cross Border Marketing of Financial Products\r\n</strong>\r\n\r\nThe definition of the term “Financial Services,” under the QCB Law is wider than that of the Old QCB Law.  In addition to the scope of activities under the Old QCB Law, it also covers insurance (conventional and Islamic), reinsurance business and Islamic finance.\r\n\r\nThe significant difference between the Old QCB Law and the QCB Law from a cross-border perspective is that Article 205 of the QCB Law imposes a specific penalty for providing financial services without being duly licensed by the QCB. Article 205 provides that any entity providing financial services without a license from the QCB is liable to be imprisoned for not more than three years and fined for not more than QAR 5,000,000.  Under the Old QCB Law a specific penalty did not exist for providing financial services in Qatar without a license.  Any breach under the Old Law would result in a fine of QAR 5,000 per day.\r\n\r\nTherefore, it is clear that the QCB has taken note of cross-border activities.  If the QCB views such activities as being provided in or from the State of Qatar, it now has the power to impose the penalties under Article 205 of the QCB Law.  The QCB Law has come into force only in January 2013, and thus far, we are not aware of any instances wherein the penalties under Article 205 of the New QCB Law have been imposed.\r\n\r\n<strong>Islamic Banking\r\n</strong>\r\n\r\nThe QCB Law seeks to define the scope of Islamic banking as including (a) non-interest based banking with the aim of generating profit; (b) developing innovative Sharia’a compliant savings and investment products; (c) providing financial services with the aim of benefiting the society at large and based on the concept of mutual benefit; and (d) deepening the financial institutions understanding of Shaia’a compliant banking and contributing to the existing body of knowledge in this area.\r\n\r\nThe QCB Law clarifies that an Islamic financial institution may acquire title to assets and lease both land and movable assets in order to achieve its objectives. Each Islamic financial institution is required to have a Sharia’a Supervisory Authority (consisting of at least three members) appointed by the general body of shareholders of that financial institution.  These members can be from various fields, including experts in law, Sharia’a law, financial services and business.  The Sharia’a Supervisory Authority is required to supervise all aspects of the business of the financial institution to ensure that all such activities are conducted in accordance with the Sharia’a Principles.  It is also required to issue opinions on whether the products, services and agreements provided and entered into by the financial institution are consistent with Sharia’a principles.\r\n<strong> </strong>\r\n\r\n<strong>Credit Rating Agencies</strong>\r\n\r\nThe QCB Law defines credit information as information relating to the credit worthiness and reputation of a person.  The activity of providing credit information services requires a license from the QCB.  The QCB is expected to issue regulations relating to the requirements for establishing a credit rating agency in Qatar.\r\n\r\n<strong>Insurance and Reinsurance</strong>\r\n\r\nThe QCB Law makes it clear that insurance and reinsurance companies operating in Qatar are regulated by the QCB.  The QCB Law provides that local insurance providers are to be established as Joint Stock Companies (incorporated in Qatar).  Foreign insurance providers may either establish a branch or a representative office in Qatar.  Significantly, Article 95 of the QCB Law provides that money and property located in Qatar may not be insured in another country.  In other words, any asset located in Qatar must be insured by either a local insurance provider in Qatar or by a branch of a foreign insurance provider having a license granted by the QCB.  Further, the broker providing brokerage services in connection with insurance coverage of a local asset must also be duly registered in Qatar.\r\n\r\nArticle 103 of the QCB Law provides that insurance and reinsurance companies are required to obtain the approval of the QCB on the forms of insurance policies to be issued to customers.\r\n\r\n<strong>Mergers &amp; Acquisition of Financial Institutions</strong>\r\n\r\nThe QCB’s consent is required prior to the merger of two or more financial institutions or the acquisition of a financial institution.  The QCB Law sets out the two methods by which a financial institution may merge with another or be acquired.  Article 161 states that two or more financial institutions may merge into a single entity having a new independent legal personality and such new entity shall acquire the rights and obligations of the two or more entities that are subject to the merger.  The other method is for a financial institution to be acquired by another entity. Following the acquisition, the merging entity ceases to exist.\r\n\r\nThe QCB requires that a detailed due diligence exercise be conducted prior to a merger being effected.  Once a preliminary contract of merger is entered into by the parties, this contract along with the audited financials of the target, constitutional documents, detailed information on the organisational structure and the resolution of the extraordinary general meeting are required to be submitted to the QCB.  The QCB is required to give its decision approving or rejecting the merger or acquisition within 60 days of submission of the application.\r\n\r\n<strong>Treating Customers Fairly and Confidentiality</strong>\r\n\r\nThe QCB Law requires banks and other financial institutions to simplify their procedures and finance agreements and to be transparent in relation to their pricing and features of products and services.  Specifically, each type of transaction is required to be governed by a separate contract, the contract must be self-contained and set out information relating to the product or service in simple form covering the term of the contract, the nature, advantages, prices and other terms and conditions. The contract may not refer to other texts or documents that the customer has not reviewed before signing the contract.\r\n\r\nArticle 145 of the QCB Law makes it illegal to disclose customer information, whether personal or information relating to the customer’s account, to any third party except with the prior written consent of the said customer.\r\n<strong> </strong>\r\n\r\n<strong>Resolution of Failing Banks</strong>\r\n\r\nThe QCB has the power to place a failing bank or other financial institution under the interim administration of the QCB if that entity is likely to become insolvent. Article 176 specifies the events which constitute a likelihood of insolvency: 1) if the entity ceases to pay its debts when due; 2) if the entity loses half of its issued share capital or if it has violated the capital adequacy requirements prescribed by the QCB; or 3) where the failing bank is a branch of a foreign bank, the parent is at risk of bankruptcy or insolvency.  Article 177 of the QCB Law requires that any such order by the QCB to place a bank or other financial institution under interim administration must be “justifiable” and must be for a “definite period”.\r\n\r\nOnce the failing bank or financial institution is placed under the administration of the QCB, the QCB, as an administrator, has wide powers to deal with its assets.  Significantly, the QCB Law does not set parameters for the administrator with regard to which stakeholders interests are paramount.  Should the administrator look at resolving the failing bank using the least costly approach or look to safeguard depositors and creditors.  The powers of the administrator include providing financial support to the failing bank to bring it back to an acceptable position, selling its assets including part of its loan book and merging with another bank.\r\n\r\n<strong>Dispute Resolution</strong>\r\n\r\nThe QCB Law establishes a Disputes Resolution Committee.  The Disputes Resolution Committee has the power to review complaints filed against the decisions of the QCB, review fines and punishments issued by the QCB, review the decision of the QCB to appoint an administrator to take control of a failing bank of financial institution and to amicably settle disputes between financial institutions.\r\n\r\nThe Disputes Resolution Committee will consist of three judges of the Court of Appeal and two individuals nominated by the QCB’s Board.  Decisions of the Disputes Resolution Committee can be appealed to the Court of Appeal.'),
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	(86130,4689,'_content','field_59b649b5c8b2b'),
	(86131,4689,'lawUpdateArticleMonth','4682'),
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	(86133,4689,'content_description','The Government of Qatar recently issued the new Central Bank Law, Law No. 13 of 2012 (the “QCB Law”), which came into force in January 2013.  '),
	(86134,4689,'_content_description','field_59b641c07f473'),
	(86135,4689,'pageSummary','The Government of Qatar recently issued the new Central Bank Law, Law No. 13 of 2012 (the “QCB Law”), which came into force in January 2013.'),
	(86136,4689,'_pageSummary','field_59e59b307dec8'),
	(86137,4689,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/april-5/qatars-new-central-bank-law-key-developments-in-banking-regulation.html'),
	(86138,4689,'_currentURL','field_59d35123ab1e7'),
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	(86141,4689,'lawUpdateArticleWriters','1'),
	(86142,4689,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(86143,4689,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(86144,4689,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(86145,4689,'lawUpdateArticlePractices','1'),
	(86146,4689,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(86147,4689,'_yoast_wpseo_metadesc','The Government of Qatar recently issued the new Central Bank Law, Law No. 13 of 2012 (the “QCB Law”), which came into force in January 2013.'),
	(86148,4690,'content','April 2013\r\n\r\n<hr />\r\n\r\nIn essence, share options refer to contracts in which public companies commit to giving employees the right to purchase shares issued by that company at a pre-determined price on or before a specified date. Such options are generally given as part of the employee’s remuneration package or by way of incentive.\r\n\r\nAs per the Share Option Instructions, a company that intends to grant its employees such an option must first obtain the approval of its general assembly. The plan proposed must include all the relevant information including the duration of the programs, the names of the relevant employees, the number of shares each employee is entitled to purchase, as well as the price at which the shares are to be offered. Said information shall be translated into the contracts to be entered into between the company and the relevant employees.\r\n\r\nAs regards the procedures for executing the share option, the Share Option Instructions state that the company must submit an application to issue and register the shares at least one month prior to the due date for exercising the option.  The application must specify the number of shares to be issued as well as the names of the employees to whom the shares are due. Further, the company is compelled to set an annual date upon which the employee share options can be exercised; this date must fall between the beginning of April and the end of May.\r\n\r\nThe Securities Commission shall review the application, and issue its decision to approve or reject the issuance and registration of the shares. The Commission shall only approve the application if it is satisfied that the company has complied with all regulations related to the issuance of shares in accordance with the Securities Law No.76 of 2002 (as amended), the aforementioned Instructions and the Companies Law No.22 of 1997 (as amended).\r\n\r\nShare options are not to be exercised until the company has issued its annual report and duly disclosed the same.\r\n\r\nThe Share Option Instructions further stipulate a number of restrictions to the granting of share options as follows:\r\n\r\n(i) companies that are not listed on the Amman Stock Exchange are prohibited from issuing any such options;\r\n\r\n(ii) the price at which the shares are offered (or the Strike Price) be equal to or higher than the market price of the company’s shares at the time at which the contracts were entered into;\r\n\r\n(iii) the company must amend the Strike Price of the employee share options in the event that a new opening price is calculated for the company’s shares by the stock exchange, as a result of any change to the company’s capital.  The amendment is to be calculated so that it maintains the same difference between the strike price and the market price as before the recalculation of the opening price;\r\n\r\n(iv) employee share options shall be limited to employees of the company concerned;\r\n\r\n(v) the company shall not confer share options to members of its board of directors; and\r\n\r\n(vi) the company shall not confer share options on any employee who owns 5% or more of the company’s capital.\r\n\r\nFurther restrictions include the fact that the company is prohibited from offering any single employee share options exceeding 2% of the company’s paid up capital; nor of offering stock options totaling more than 6% of the company’s capital. The Instructions do, however, allow the company to offer share options amounting to an additional 6% of the company’s capital following the elapse of five years from the date of the initial offering.\r\n\r\nThe company is responsible for informing the Securities Commission, in writing, of the names of employees who were given share options and the number of shares allocated to each of them, and for disclosing this information within 10 working days from the date on which the options were given.\r\n\r\nTo sum up, public shareholding companies are entitled to confer share option plans on employees in accordance with the aforementioned Share Option Instructions; noting the restrictions in place to ensure that the grant of share options do not have an adverse effect on the market price of the shares or on the transparency of the transaction.'),
	(187420,4690,'core_values',''),
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	(86149,4690,'_content','field_59b649b5c8b2b'),
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	(86152,4690,'content_description','Jordan Securities Commission Instructions for Conferring Share Options on Public Shareholding Companies Employees, issued by virtue of the Board of Commissioners decision No 465/ 2008 issued on the 28th of August 2008 (the ‘Share Option Instructions’) stipulates the conditions for conferring share option plans on employees.'),
	(86153,4690,'_content_description','field_59b641c07f473'),
	(86154,4690,'pageSummary','Jordan Securities Commission Instructions for Conferring Share Options on Public Shareholding Companies Employees, issued by virtue of the Board of Commissioners decision No 465/ 2008 issued on the 28th of August 2008 (the ‘Share Option Instructions’) stipulates the conditions for conferring share option plans on employees.'),
	(86155,4690,'_pageSummary','field_59e59b307dec8'),
	(86156,4690,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/april-5/jordan-employee-share-option-plans.html'),
	(86157,4690,'_currentURL','field_59d35123ab1e7'),
	(86158,4690,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','625'),
	(86159,4690,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(86160,4690,'lawUpdateArticleWriters','1'),
	(86161,4690,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(86162,4690,'_yoast_wpseo_metadesc','Jordan Securities Commission Instructions for Conferring Share Options on Public Shareholding Companies Employees, issued by virtue of the Board of Commissioners decision No 465/ 2008 issued on the 28th of August 2008 (the ‘Share Option Instructions’) stipulates the conditions for conferring share option plans on employees.'),
	(86163,4691,'content','April 2013\r\n\r\n<hr />\r\n\r\nThe Iraqi Parliament Council of Representative passed the final draft of the Law by majority vote of Iraqi legislators. This article aims to summarize the main points as provided by the Law in order to explain its significance and impact on transactions relating to e-commerce in Iraq:\r\n\r\n<strong>IMPORTANCE OF LAW </strong>\r\n\r\nThe issuance of this Law is construed to be an important event due to the fact that Iraq was in need of modernized legislative frameworks to keep pace with the evolution in Information Technology and Communications (ITC) revolution and strengthen the legal basis and frameworks for the Electronics Transactions through modern means of communication.\r\n\r\n<strong>OBJECTIVES OF THE LAW\r\n</strong>\r\nIn accordance with Article 2 of the Law, the main objectives behind the issuance are as follows:\r\n<ul>\r\n 	<li>To set-up the legal framework for using the electronic means in practicing electronic transactions.</li>\r\n 	<li>Giving admissibility and the evidential weight to the electronic transactions and electronic/digital signature and organizing its provisions.</li>\r\n 	<li>Promote public confidence in the validity, integrity and reliability of electronic transactions.</li>\r\n</ul>\r\n<strong>APPLICATION OF THE LAW</strong>\r\n\r\nIn accordance with Article 3 of the law, the provisions of the Law shall apply to the following:\r\n<ol>\r\n 	<li>Electronic Transactions carried out by the natural or juridical entities;</li>\r\n 	<li>Transactions between parties which have agreed to conduct their transactions by electronic means; and</li>\r\n 	<li>Electronic Securities and Commercial Papers.</li>\r\n</ol>\r\nHowever, the following are some of the issues not applicable under the Law:\r\n<ol>\r\n 	<li>Transactions relating to personal status law;</li>\r\n 	<li>Wills and Waqfs and amending conditions thereof;</li>\r\n 	<li>Transactions disposing of immovable property, including related powers of attorney, title deeds, transactions creating real rights in respect thereof, with the exception of lease contracts;</li>\r\n</ol>\r\n<strong>ELECTRONIC SIGNATURE</strong>\r\n\r\nWith regard to electronic signatures, the Law provided that it shall include any letters, numbers, symbols, signs, audio note or any other  unique character that shows it refers to the relevant party. Furthermore, it is required to be accredited by a certifying body..\r\n\r\n<strong>ELECTRONIC DOCUMENTS</strong>\r\n\r\nThe Law has provided that electronic documents include a record or document that is created, stored, generated, sent, or received completely or partially by electronic means, including electronically data interchange, electronic mail, telegram, telex, or tele-copy and contained a reliable electronic signature.\r\n\r\n<strong>ELECTRONIC COMMERCIAL PAPER &amp; SECURITIES</strong>\r\n\r\nArticle (22) stated the requirements and conditions for forming and withdrawing the electronic commercial paper and securities that the same applied on commercial paper and securities provided for by law and the Electronic Information Processing system to be capable to prove the right and verify that the electronic signature is belonging and attributed to the Parties involved.\r\n\r\nThe Information Processing System is deemed capable to prove the right on Electronic Papers granted it meets the following conditions:-\r\n<ol>\r\n 	<li>Ensure a safe circulation of a commercial papers through it;</li>\r\n 	<li>Ensure circulation of commercial papers in an unchangeable manner; and</li>\r\n 	<li>Unveiling the names of parties involved on the commercial paper.</li>\r\n</ol>\r\n<strong>ELECTRONIC TRANSFER OF FUNDS (EFT)</strong>\r\n\r\nThe provisions of Chapter Seven related to Electronic Transfer of Funds (EFT) where it was stipulated that transfer of funds by electronic means shall be deemed as an acceptable method of payment.\r\n\r\nMoreover, Article 25 of the Law stated that any financial institution practicing the electronic transfer of funds in accordance with the provisions of this Law and the regulations issued pursuant shall take the measures necessary to ensure secure services for clients and maintain banking confidentiality.\r\nAdditionally, a client shall not be liable for any illegal entry to its account affected by an electronic transfer unless the same occurs due to the client\'s fault or negligence.\r\n\r\n<strong>ADMISSIBILITY AND EVIDENTIAL WEIGHT OF ELECTRONIC RECORDS</strong>\r\n\r\nElectronic records, contracts, messages, and signatures shall be deemed to produce the same legal effect as written documents, instruments and signatures pursuant to the provisions of legislation in force and with respect to enforceability and admissibility as evidence.\r\nArticle (23) stipulated that the electronic commercial paper and securities shall be deemed to produce the same legal effect as the equivalent written documents with legal and evidential weight unless the law provides otherwise.\r\n\r\n<strong>CONCLUSION</strong>\r\n\r\nIn light of above analysis, the Government of Iraq has made some impressive recent legislative progress in enacting the new e-Commerce Act of Iraq.  This notable evolution in Technoloy Media and Telecommunications area in Iraq is a turning-point to enable others the access into Information technology and the use of its application in conducting various activities with regards to writing electronic messages, entering into contracts, transactions, negotiating the commercial papers, trading securities by electronic or software systems or conducting any electronic transaction within this Law.'),
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	(86167,4691,'content_description','INTRODUCTION: Recently, legislation relating to e-Commerce was approved and issued in Iraq. The Electronic Signature & Electronic Transactions Law No. 78 of 2012 (the “Law”) was approved by the Presidential Council on 18th October 2012 and published into Official Gazette issue No. (4256) on 5th November 2012.'),
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	(86169,4691,'pageSummary','INTRODUCTION: Recently, legislation relating to e-Commerce was approved and issued in Iraq. The Electronic Signature &amp; Electronic Transactions Law No. 78 of 2012 (the “Law”) was approved by the Presidential Council on 18th October 2012 and published into Official Gazette issue No. (4256) on 5th November 2012.'),
	(86170,4691,'_pageSummary','field_59e59b307dec8'),
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	(86172,4691,'_currentURL','field_59d35123ab1e7'),
	(86173,4691,'_yoast_wpseo_metadesc','INTRODUCTION: Recently, legislation relating to e-Commerce was approved and issued in Iraq. The Electronic Signature & Electronic Transactions Law No. 78 of 2012 (the “Law”) was approved by the Presidential Council on 18th October 2012 and published into Official Gazette issue No. (4256) on 5th November 2012.'),
	(86174,4692,'content','April 2013\r\n\r\n<hr />\r\n\r\ninvestment and business, the Abu Dhabi Department of Economic Development (\"ADDED\") has recently launched its new Abu Dhabi Business Centre (the \"Centre\").\r\n\r\nThe Centre is a one-stop shop business centre that aims to ease and speed up license issuing and renewal procedures, and further coordination and integration with other government bodies concerned with economic activity in the emirate. Through its one-stop shop Centre, ADDED aims at enhancing its time required to obtain commercial licenses.\r\n\r\nThe Centre was opened on 3rd January 2013 and is in line with the objectives and parameters of the Abu Dhabi Economic Vision 2030. It is a single government interface for investors and businessmen, through which ADDED plans to increase the number of registered businesses in the emirate by 10%.\r\nThe new Centre is ideally located at ADDED’s headquarters in the heart of the city with ample parking spaces available within the proximity of the building. The state of the art newly built Centre is divided into five different zones spread across two spacious floors, and has been designed to incorporate various facilities and features including spacious waiting areas, visible front desk, reception areas, ATM machines, a branch of National Bank of Abu Dhabi and free WI-FI internet.\r\n\r\nThe Centre offers three main services namely, commercial licensing and registration services, interactive services by offering consultation and support to companies and investors and offering valuable information for strategic customers and partners in Abu Dhabi concerning the business environment in the emirate. The ADDED licensing services provided by the Centre are properly distributed into separate counters as follows:\r\n<ul>\r\n 	<li>Customer Services;</li>\r\n 	<li>Trade Names;</li>\r\n 	<li>Advertising Permits;</li>\r\n 	<li>Inspection Services;</li>\r\n 	<li>Commercial Licenses;</li>\r\n 	<li>E-services;</li>\r\n 	<li>Fast Track “VIP” Services; and</li>\r\n 	<li>Pensioners, Ladies and Special Requirements Services.</li>\r\n</ul>\r\nThe Centre currently incorporates 16 governmental and semi-governmental bodies in providing its licensing related services, including: the Abu Dhabi Chamber, the Abu Dhabi Centre of Waste Management, the Ministry of Foreign Affairs,  the Ministry of Labor, the General Directorate of Residency and Foreigners Affairs, the Civil Defense, the General Directorate of the Abu Dhabi Police, Abu Dhabi Customs, Abu Dhabi Food Control Authority, the Environmental Authority, local newspapers publication services, the National Media Council, the Industrial Development Bureau and the Khalifa Fund for Enterprise Development. Moreover, further governmental and semi-governmental bodies will also be included in the near future to reach a total of 45. In addition to the above entities, the Centre recently added the services of Aramex and Daman Insurance.\r\n\r\nThe Centre lately introduced an e-linkage online service allowing the carrying out of license transactions and procedures electronically. The e-linkage online service links ADDED with several governmental and semi-governmental bodies including the Abu Dhabi Chamber, the Abu Dhabi Municipality Health Department, the Department of Transport and the Supreme Petroleum Council.\r\n\r\nThe e-linkage online service achieves a strategic goal for ADDED, to turn the Center into a single business window for all transactions and procedures associated with licensing in the emirate and most importantly to facilitate and shorten the licensing procedures in the emirate.\r\n\r\nFor instance, the ADDED and Abu Dhabi Chamber recently signed a memorandum of understanding which enabled the activation of the e-linkage between the two parties, to allow  the Centre  to  issue a  unified business license and Chamber membership in one certificate  bearing the logos of the two entities after completing all required  procedures and documents. In the near future ADDED plans to activate the e-linkage services with all governmental and semi-governmental bodies involved in the licensing procedures.\r\n\r\nDuring his tour of the Centre, Nasser Ahmed Al Sowaidi, the chairman of ADDED said: \"The Centre is considered a major initiative adopted by the government of the Emirate of Abu Dhabi. It has been established to reshape the business environment aligned with international standards and comes as part of a comprehensive strategic plan focused on the development of various economic sectors\".\r\n\r\nADDED is hopeful that the services provided by its new Centre will be able to increase its efforts to include 90% of the entities involved in commercial licensing by the end of 2013 as well as to reduce the number of procedures for licensing and save time and effort for companies, establishments, investors and clients inside and outside the UAE.'),
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	(86178,4692,'content_description','In its efforts to strengthen partnership and maintain a fruitful cooperation with all relevant government bodies, as well as to streamline licensing procedures and provide a package of facilities and technical and legal services in trade, '),
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	(86180,4692,'pageSummary','In its efforts to strengthen partnership and maintain a fruitful cooperation with all relevant government bodies, as well as to streamline licensing procedures and provide a package of facilities and technical and legal services in trade,'),
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	(86183,4692,'_currentURL','field_59d35123ab1e7'),
	(86184,4692,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Tarek El Khatib'),
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	(86186,4692,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','t.elkhatib@tamimi.com'),
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	(86190,4692,'lawUpdateArticleNoWriters','1'),
	(86191,4692,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(86192,4692,'_yoast_wpseo_metadesc','In its efforts to strengthen partnership and maintain a fruitful cooperation with all relevant government bodies, as well as to streamline licensing procedures and provide a package of facilities and technical and legal services in trade,'),
	(86193,4693,'content','April 2013\r\n\r\n<hr />\r\n\r\nRapid development, marked by busy deal momentum is something Mohamed is more than comfortable with, having spent the previous six years in the firm’s Dubai office advising IPO clients.\r\n\r\nMohamed’s original path to law was accidental.  Leaving school, he sought a profession which relied as little as possible on maths or science excellence, something he feels he lacks.  With his love of logic, a degree in law was decided upon as a path to what looked like his perfect career – diplomacy.  But it was the study of that subject that came to intrigue him more and more, until diplomacy became merely all that bought him to his true vocation in life.\r\n\r\nHis love for corporate law was decided at university, where he declined a public prosecution role at graduation, to chase the thrill of the deal.  After studying in Europe and having been called to the Bar in Egypt, law took Mohamed to the UAE just as activity in the Gulf’s equity listing space started to bubble.\r\n\r\nMohamed is adamant that joining Al Tamimi’s fast-growing and cosmopolitan, corporate team in 2006 was one of the best decisions he has made. “Al Tamimi was one of the first Arab law firms to offer specialist practices, which demonstrates the vision leading the business. My time in the firm’s corporate law practice, before refining my IPO expertise, exposed me to everything from employment to litigation work, which my transaction advisory has actually benefited greatly from.”\r\n\r\nSince joining Al Tamimi, he has seen, and in many cases led, more corporate deal action than he could ever have imagined as a student in Egypt, ahead of Dubai’s naughtie’s boom.  Mohamed is best known for his work designing and supervising the implementation of a major cross border corporate restructuring project of a GCC conglomerate worth over US $500m.  He has advised an oil services company in respect to a major settlement agreement worth over US $200m; advised on IPO deals, with offering value worth over US $300; led numerous M&amp;A deals worth over US $200m; and designed and implemented miscellaneous governance structures and acted as counsel for major family businesses restructuring.  Not to mention his high profile thought leadership on topics such as corporate governance in the GCC.\r\n\r\nHad it not been for the financial down-turn in 2009 – and a chance for Mohamed to exhale, he may have never got around to his greatest achievement yet… “I owe my family to Lehman’s collapse!” he jokes.  Amidst softening deal flow, Mohamed married his wife and had two daughters, Sakhatija (3  years) and Hajar (18 months). It was perhaps this change and the challenge of channelling his growth market and unrivalled GCC IPO experience that took him to Doha, which he says he enjoys very much and is “a great city – especially for young families”.\r\n\r\nThe move to Doha meant once again getting his head around a new set of laws (which is not entirely different to the UAE’s he reports) and new regulatory structures.  Importantly for Al Tamimi, which prides itself on a sincerely local approach in each market, it meant getting underneath the nuances of Qatar’s business culture and the new client needs.  Also, as a Senior Partner in the office, Mohamed needs to always spend time understanding the DNA of the diverse team and their evolving ways and needs.\r\n\r\nMohamed’s advice to younger lawyers, starting out is firstly to believe and enjoy what you do and to focus seriously on your objectives.  He stresses his reliance on spiritual clarity and having “God as [his] attorney” throughout his career.  Finally, he stresses how important finding the right corporate culture fit is, especially for lawyers. “I was lucky to find a firm with the same vision and values as me early on.  Al Tamimi and I have developed and grown alongside each other.”\r\n\r\nAre there any burning ambitions left for the accomplished lawyer and father?  A keen political news follower and proud Egyptian national, Mohamed would like to one day return to and serve his home country.\r\n\r\nHe works continuously to find better work, family balance, which he feels has been supported by Al Tamimi “Our employees work hard and meet their deadlines, but we want a happy, healthy staff that will stay here for a long time.  No credit is given for weekends spent at the office and taking leave is essential” he says.\r\n\r\nWhen time does become more available for Mohamed, the lover of classical, jazz and Arabic music, says he may even take up the keyboard again.'),
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	(86197,4693,'content_description','Egyptian national, Mohamed is a  Partner at Al Tamimi & Company’s Qatar office.  He joined the Doha-based team in 2011, to help develop the strategic Gulf foothold through fast-paced times in the market. '),
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	(86199,4693,'pageSummary','Egyptian national, Mohamed is a Partner at Al Tamimi &amp; Company’s Qatar office. He joined the Doha-based team in 2011, to help develop the strategic Gulf foothold through fast-paced times in the market.'),
	(86200,4693,'_pageSummary','field_59e59b307dec8'),
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	(86202,4693,'_currentURL','field_59d35123ab1e7'),
	(86203,4693,'_yoast_wpseo_metadesc','Egyptian national, Mohamed is a Partner at Al Tamimi & Company’s Qatar office. He joined the Doha-based team in 2011, to help develop the strategic Gulf foothold through fast-paced times in the market.'),
	(86204,4694,'content','April 2013\r\n\r\n<hr />\r\n\r\nCloud computing allows businesses to convert capital expenses associated with IT systems and infrastructure into operating expenses associated with platforms, capacity and applications. For many companies the business case is compelling. As with any business decision, it is important to be fully informed, and aware of the risks.  In this article, the second in a series of two, we look at some further core legal considerations associated with cloud computing. (Part 1 may be found in the December/January edition of Law Update.)\r\n\r\n<strong>Service levels and service level credits\r\n</strong>\r\nAs with most IT services agreements, service levels - which provide objective and measurable standards and help manage performance and quality - are also relevant to cloud services. One key difference, however, is that Cloud Service Providers will typically set service levels that are applicable to all their customers, and there will be little scope to negotiate. (The situation may be different if the cloud is a private cloud, or if the client is procuring a large volume of services.)\r\nWhen negotiating service level credits, the CSP will typically seek to use their own servers as the point of measurement for service availability. In contrast, from the client’s perspective, availability at the client’s own computer is the natural point to assess availability.  In practical terms, it is not always technically possible to use the client’s computer as the point of measurement, although it may be possible to use the cloud termination point at the client’s premises. If it can be justified by the business need, then a leased line connection to the CSP would provide a reliable connection, as well as scope for the client to argue that availability should be calculated on an end-to-end basis.\r\n\r\nAnother important point relates to the time period over which availability is calculated. For example, calculating availability on a 24/7 basis seems appealing, although if the real business need for the service is during business hours, then it would be prudent to calculate availability based on the hours of business. For example, 98% availability on a 24/7 basis over a period of a month would mean that up to 15 hours of down-time would be permitted; whereas the same level of availability calculated with reference to business hours on week days over the same period would mean only 4 hours of down-time would be permitted.\r\n\r\nThe use of service level credits as a means of addressing service failure is not uncommon. Clients should ensure, however, that sufficient details of the reasons for non-compliance with service levels is provided to them, and that recurring issues provide a basis for termination. Otherwise, there is a risk that the CSP will simply see service level credits as the ‘price’ of failing to provide a reliable service – and there will be little incentive for them to strive to meet the agreed service levels.\r\n\r\nSome CSPs will try to include provisions whereby a service level bonus is paid if certain service levels are exceeded. Clients should consider the extent to which the marginal benefit of excess up-time over an already high up-time level is really a benefit worth paying for. For example, if the CSP offers 98% up-time as standard, is there really any value to the client in paying a bonus for 99% up-time?\r\n\r\n<strong>Limits on liability\r\n</strong>\r\n\r\nCSPs will typically try to limit liability. They may disclaim any warranties and describe their services as being offered ‘as is’, and they may seek to exclude direct, indirect and consequential damages. If they do not exclude direct damages entirely, they may seek to limit damages to a specific amount, such as the amount paid by the client for the services during a specific period of time.\r\n\r\nWhen considering provisions relating to limitations of liability, it is important to review these in detail. The client should specifically consider whether the types of events giving rise to what the CSP has described as indirect damages are, in fact, indirect – or whether they are exactly the types of damages that are likely to arise if the CSP fails to adequately perform its obligations. (A good example is ‘loss of data’, and costs associated with manually inputting any lost data, both of which would seem to be obvious losses resulting from a failure on the part of a CSP.) Similar considerations arise in the context of force majeure provisions, which are typically used to provide for natural disaster type occurrences. Some CSPs may attempt to include events for which it is reasonable to expect them to bear the risk directly.\r\n\r\nSeeking to agree an increased cap, or seeking to specify certain losses as direct losses is a reasonable approach for a client to take. Additionally, were a dispute to come before the courts in the UAE, there is some consolation in knowing that pursuant to Article 390 of the Civil Code, “The contracting parties may fix the amount of compensation in advance by making a provision therefore in the contract […], subject to the provisions of the law. The judge may, in all cases, upon the application of either party, vary such agreement so as to make the compensation equal to the harm, and any agreement to the contrary shall be void.” Additionally, Article 296 of the Civil Code provides, “Any condition purporting to provide exemption from responsibility for a harmful act shall be void.”\r\n\r\n<strong>Lock-in and transition</strong>\r\n\r\nThe risk of technical or commercial lock-in needs to be considered at the outset. Technical lock-in refers to the risk that the manner in which the cloud services are provided means that it would be technically difficulty and/or costly for the client to migrate to an alternative provider. Commercial lock-in refers to contractual restrictions on the ability of the client to terminate; the absence of a right to terminate for convenience, for failure to comply with agreed service levels, or other reasons. When engaging a CSP, the client should ensure that the risk of lock-in is properly understood and addressed. Technology develops quickly, so the benefits of a long term engagement with a CSP may be short-lived, so the ability to move promptly to another service provider is valuable.\r\n\r\nBusiness continuity is always a major consideration in the cloud, as failure of the services can significantly impact on business. Many clients seek to establish an exit strategy at the outset, and verify that the CSP is able to implement its part of the exit strategy, such as by locating, isolating and extracting the client’s data. The exit plan should specify the CSP’s responsibilities in the event that the client wishes to exit the CSP’s cloud, the format in which the client’s data needs to be delivered, and the timeframe in which the transition needs to be completed. It is also prudent to require the CSP to formally confirm that all the client’s data has been removed from the CSP’s system.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on IT service agreements, including in a cloud context, as well as related issues such as data protection, document retention and confidentiality provisions. For further information, please contact Nick O’Connell n.oconnell@tamimi.com'),
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	(86223,4695,'content','April 2013\r\n\r\n<hr />\r\n\r\n<strong>Patent Cooperation Treaty (“PCT”)</strong>\r\n\r\nThe World Intellectual Property Organization’s Patent Cooperation Treaty (PCT) provides the means to facilitate the filing and protection of patents internationally. In 2011 alone, more than 181,000 international patent applications were filed under the PCT.\r\n\r\nThis is the most international of patent applications one can file where a single filing can secure an effective filing date in all of its member countries. Its membership comprises a large number of countries and the list continues to grow.\r\n\r\nThe PCT system has in 2013 been adopted by 146 countries including numerous countries in the Middle East and North Africa, including:\r\n<ul>\r\n 	<li>Algeria</li>\r\n 	<li>Bahrain</li>\r\n 	<li>Egypt</li>\r\n 	<li>Libya</li>\r\n 	<li>Morocco</li>\r\n 	<li>Oman</li>\r\n 	<li>Qatar</li>\r\n 	<li>Sudan</li>\r\n 	<li>Syria</li>\r\n 	<li>Tunisia</li>\r\n 	<li>UAE</li>\r\n</ul>\r\nThe PCT patent application filing system includes two phases:\r\n\r\n<strong>1. International Phase</strong>\r\n\r\nThe international application is filed and an International Search Authority undertakes an international search whereupon a search report containing citations of relevant prior art and a written opinion on the patentability of the invention is produced. The application is published as an International Publication and the applicant has an option whether to undertake international preliminary examination of an application.\r\n\r\n<strong>2. National Phase</strong>\r\n\r\nThe national phase application is effectively filed in the various countries in which the applicant is ultimately seeking patent protection and it is at this stage that the application is substantively examined and a decision is taken to grant or reject a patent is made.\r\n\r\nA PCT application does not mature into some kind of “international” patent registration. It merely acts as a vehicle facilitating the filing applications at each of the national patent offices of the member countries an applicant is interested in.  The PCT system provides for a “delay” of up to 18 months in having to incur the expenses of proceeding with applications at each national patent office of interest and accordingly buys an applicant valuable time in seeking funds from investors, finding partners or just to reassess the commercial viability of an invention.\r\n\r\nThe time bought through the use of the PCT system also affords applicants more time to reflect on the desirability of seeking protection in foreign countries, to appoint local patent attorneys in those countries, to prepare the required translations and to pay the local fees.\r\n\r\nApplicants may rest assured that their PCT compliant national applications may not be rejected on formal grounds by any of the national offices during the national phase. They also have the benefit of the international search report and the written opinion to better assess the patentability of their inventions. Importantly, they have the opportunity of amending their international application before processing by the national offices.\r\n\r\nForeign applicants would note that a number of countries in the Middle East are not PCT members including Saudi Arabia and Kuwait. Apart from filing directly in these countries, a GCC patent application could be an appropriate tool for seeking patent protection in these countries.\r\n\r\n<strong>GCC Patent System</strong>\r\n\r\nThe GCC patent system provides a convenient way for applicants to secure patent rights effective in each of the GCC member states.\r\n\r\nThe Cooperation Council for the Arab States of the Gulf, also known as the Gulf Cooperation Council (“GCC”), is an association comprising Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the UAE. The association forms a trade bloc and provides a common market, including coordination of customs regulations and various trade-related laws, and there is even a proposal for a unified currency under discussion.\r\n\r\nThe GCC patent system does not form part of the Patent Cooperation Treaty (PCT) nor is it a signatory to the Paris Convention. However, it is important to note that the GCC Patent Office (“GCCPO”) honours the Paris Convention priority rules and a GCC application can claim priority from a prior convention application as if the GCC were a signatory to the Paris Convention.\r\n\r\n<strong>Paris Convention</strong>\r\n\r\nThe Paris Convention allows an applicant to delay the filing of a patent application in another member country by up to 12 months as long as the applicant has filed a patent application in one member country.\r\n\r\nThe practical benefit is that once the patent application is filed, the applicant can disclose the invention e.g. by selling products embodying the invention and still obtain patents for the same invention in other member countries of the Paris Convention providing that applications are filed within the 12 months grace period and a claim to Paris Convention priority is made.\r\n\r\nUpon filing, examiners at the GCCPO examine a GCC patent application for compliance with formalities. The applicant then has an opportunity to address any objections arising from the examination of formalities. Substantive examination is then undertaken on behalf of the GCCPO by IP Australia, the Austrian Patent Office or the Chinese Patent Office.\r\n\r\nOnce the applicable patent opposition period has expired, and the GCCPO has granted a patent, the grant of the patent may be challenged before the responsible authority in Saudi Arabia - the Board of Grievances.\r\n\r\nWith respect to the enforcement of GCC patents, claims of patent infringement are heard by the responsible courts in the relevant GCC member states where the infringement is alleged to have take place.\r\n\r\nFor local UAE applicants, a common strategy is to file a UAE application followed by a PCT application if overseas markets outside of the GCC common market are of interest. Otherwise, if only the GCC countries are relevant to say a purely GCC focused product, then it would be expedient to file a GCC patent application.\r\n\r\nThe PCT and GCC patent systems are valuable tools at the disposal of patent applicants as they facilitate the protection of patents in multiple jurisdictions.\r\n\r\nIf you require any assistance in respect of the protection and enforcement of patent rights in the Middle East, please contact the author.'),
