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	(102612,5579,'content','February 2017\r\n\r\n<hr />\r\n\r\n<ul>\r\n 	<li>list a set of new corporate governance rules in accordance with, and to adhere to, the Commercial Companies Law (Federal Law No. 2 of 2015) (‘CCL’); and</li>\r\n 	<li>repeal the UAE Ministerial Resolution on Governance Rules and Corporate Discipline Standards (Ministerial Resolution No. 518 of 2009) (‘Repealed Governance Rules’).</li>\r\n</ul>\r\n<p class=\"p4\">The purpose of this article is to compare the New and Repealed Governance Rules and highlight some of the provisions that are related to ‘Shareholders Rights’, ‘General Assembly Meetings’, ‘Auditors’, ‘Code of Professional Conduct’ and ‘Penalties for Violating the New Governance Rules’ that we consider would benefit from clarification from SCA.</p>\r\n<p class=\"p1\">It is worth mentioning that any capitalised terms used in this article have the same meaning to those mentioned in the New Governance Rules or the CCL if such definition does not exist under the New Governance Rules, unless provided otherwise in this article.</p>\r\n<p class=\"p5\"><strong>Shareholders Rights</strong></p>\r\n<p class=\"p5\">The wording of Article 32 of the New Governance Rules is unclear but appears to give shareholders the right to access the Company’s reports, financial statements, books and documents without any prior permission from the Board of Directors or the General Assembly. Article 221(1)(b) of the CCL does not help that much either as it can be read in one of two ways:</p>\r\n\r\n<ul>\r\n 	<li>Shareholders shall have the right to access the Company’s books, records and documents including documents related to Deals with a Related Party only after obtaining the prior permission of the Board of Directors or the General Assembly; or</li>\r\n 	<li>Shareholders shall have the right to access the Company’s books, records and documents at anytime without the need of any prior permission while documents related to Deals with Related Parties require the prior permission of the Board of Directors or the General Assembly.</li>\r\n</ul>\r\n<p class=\"p4\">Also neither Article 221(1)(b) of the CCL nor Article 32 of the New Governance Rules provides for a minimum shareholding threshold that a shareholder needs to have the access right, i.e. it could be understood that a shareholder who owns one share has the right to access all of the Company’s books, records and documents. Article 19 of the New Governance Rules on the other hand gives the right to access any documents related to a Deal with a Related Party only to shareholders holding at least 5% of the Company’s share capital and have obtained the approval to access such documents either from the Board of Directors or the General Assembly and therefore contradicting with Article 221(1)(b) of the CCL and Article 32 of the New Governance Rules.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The main risk here for the Company is that some documents are of a confidential nature for the purposes of the Company’s operation and it can damage these operations if the documents are in the public domain. All Companies have the right to measures that serve its best interests and do not affect its operations. On the other hand, a shareholder should have the right to access the Company’s books, records and documents to ensure that the Company is not violating any of the shareholder’s rights.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Accordingly, we believe that Article 221(1)(b) of the CCL should be interpreted as explained in paragraph (i) above. As for Articles 19 and 32 of the New Governance Rules, we believe that they should be interpreted to give any shareholder (irrelevant of the number of shares such shareholder holds) the right to access the Company’s books, records and documents (including those related to Deals with Related Parties) subject to obtaining the prior permission of the Board of Directors, the General Assembly or a court. The Company in such case may also insist that the shareholder (and any of his/her affiliates, agents, officers, employees and advisors) granted the right of access will sign a confidentiality undertaking to keep the documents provided confidential.</span></p>\r\n<p class=\"p1\">In any event, such right of access should not be unlimited in terms of time and/or documents. Right of access is usually given to comfort the shareholder on a certain aspect of the Company’s operations and financials. For example, a shareholder might be given documents relating to a 6 months period relating to a certain transaction or operation. Unlimited right of access should only be given by way of a court order.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Other than that, both rules provide for the other shareholder’s rights as prescribed in Article 221(1)(a) of the CCL, such as receiving dividends, attending and voting at General Assembly meetings, right to sell the shares and receiving part of the distributions pro rata to the shareholding at time of liquidation. Such rights are subject to the provisions of the Company’s articles of association provided that such articles of association avoid any restrictions on the free trading of the Company’s shares in the Market or that may cause the prevention of a shareholder’s voting right.</span></p>\r\n<p class=\"p6\"><span class=\"s1\"><strong>General Assembly Meetings</strong></span></p>\r\n<p class=\"p1\">While the Repealed Governance Rules did not provide for any provisions in relation to General Assembly meetings, Articles 23 to 30 of the New Governance Rules sets the governance rules applicable to such meetings, in accordance with Articles 171 to 192 of the CCL, in relation to the following:</p>\r\n<p class=\"p1\"><em>Convening A General Assembly Meeting</em></p>\r\n<p class=\"p1\">The General Assembly shall meet in the venue set in the Company’s articles of association. Every shareholder shall have the right to attend the General Assembly meeting and shall be entitled to a number of votes equal to the shares he holds. A shareholder having the right to attend the General Assembly meeting may delegate another Board Member by virtue of a power of attorney. A representative of a shareholder may not hold, in such capacity, more than 5% of the Company’s issued share capital. Those lacking legal capacity shall be represented by their legal representatives.</p>\r\n<p class=\"p1\">The legal entity may authorize one of its representatives or directors by virtue of a resolution issued by its board of directors or the body acting on its behalf to represent such legal entity in the Company General Assembly meetings. The authorized representative shall have the authorities prescribed in the authorisation resolution.</p>\r\n<p class=\"p1\">The holder of the share registered on the business day preceding the date of the General Assembly meeting shall be the person entitled to vote in the General Meeting of such Company.</p>\r\n<p class=\"p5\"><em>Sending Invitations</em></p>\r\n<p class=\"p1\">The Board of Directors must call for the annual General Assembly meeting within the four months following the end of the fiscal year and for the General Assembly meeting whenever it deems appropriate.</p>\r\n<p class=\"p1\">SCA, the auditor or shareholders holding 20% or more of the Company’s share capital (as per Article 174 of the CCL, the Company’s articles of association may provide for a less percentage) may, for serious reasons, request the Board of Directors to convene the General Assembly meeting. In such a case, the Board of Directors should call for the General Assembly meeting within five days from the date of submission of the meeting request.</p>\r\n<p class=\"p1\">Article 24 of the New Governance Rules further provides that shareholders holding 10% of the Company’s share capital shall have the right to call the General Assembly for an urgent meeting by submitting to the SCA a request calling for the General Assembly meeting to adopt a Special Resolution and attaching all the documents supporting such request. This provision is not stipulated under the CCL. Therefore, we believe that the SCA shall have the discretionary power whether or not to accept such request. In case the SCA rejects the request to convene the General Assembly meeting, then the shareholders may challenge the SCA’s refusal before a competent court. If the court accepts the request then the SCA is then obliged in such case to call for such meeting.</p>\r\n<p class=\"p5\"><em>Register of the Minutes</em></p>\r\n<p class=\"p1\">The Company must keep record of the minutes of the General Assembly meetings subject to the following:</p>\r\n<p class=\"p2\">the minutes of the General Assembly meeting must include the names of the attending or represented shareholders, the number of shares they hold for themselves or by proxy, number of votes to which they are entitled, the adopted resolution, number of votes in favour of or against such resolutions and a detailed conclusion of the discussions held in the meeting. The minutes shall be regularly taken after every meeting and shall be kept in a register to be signed by the chairman of the Meeting, the secretary, the vote collector and the auditor; and</p>\r\n\r\n<ul>\r\n 	<li>the minutes shall be free from any spaces, writing in the margins, deletion or addition.</li>\r\n 	<li>The following rules shall be followed in keeping the register of the minutes of the General Assembly meetings:</li>\r\n 	<li>the register pages must be serially numbered; and</li>\r\n 	<li>a register of the minutes of the General Assembly meetings shall be kept at the Company’s headquarters.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\"><em>Term of Authorisation Given to the Board of Directors By Way of a General Assembly Resolution</em></p>\r\n<p class=\"p1\">In case a Special Resolution is issued by the General Assembly for raising the Company’s capital or the issuance of loan bonds or sukuk, the term of authorisation granted to the Board of Directors shall be one year from the date of issuance of such a Special Resolution in order for the Board of Director to take a decision regarding the times and mechanism of implementation of the said resolution through one or more issues or programs. The authorisation issued to the Board of Directors shall expire after the elapse of the one-year period after which the resolutions issued in this regard shall be deemed void.</p>\r\n<p class=\"p1\"><span class=\"s2\"> Notwithstanding the above, the previous resolutions issued by shareholders holding at least 75% of the Company’s share capital in the Company shareholders’ meeting held before the enforcement of the CCL provisions regarding the issuance of bonds or sukuk shall be valid and effective as if they were adopted through a Special Resolution issued by the shareholders of the respective company after the enforcement of the CCL provisions and without need for the issuance of a new special resolution or abiding by the terms prescribed above or in Article 230 of the CCL. This is provided, however, that the General Assembly has not cancelled the authorisation resolutions issued to the Board of Directors.</span></p>\r\n<p class=\"p1\"><em>Arrangements for General Assembly Meeting</em></p>\r\n<p class=\"p1\">The appropriate arrangements and procedures should be followed to hold the General Assembly meeting including the selection of venue and time to help and encourage the attendance of the largest possible number of shareholders.</p>\r\n<p class=\"p1\">The invitation to the General Assembly meeting must indicate the venue and time and must be accompanied by the meeting agenda with the topics to be deliberated during such a meeting in a detailed and clear way in addition to any documents or attachments related to such topics. The time and venue of the meeting must be announced on the Company’s website.</p>\r\n<p class=\"p1\"><em>Inclusion of an Item in the Meeting Agenda Before the Meeting</em></p>\r\n<p class=\"p1\">The inclusion request must be submitted by a number of shareholders representing at least 10% of the Company’s share capital. The new item must be clear and specific and must not be conflicting with the provisions of the CCL or the resolutions and regulations issued in implementation of it. The inclusion request should be written and signed by the applicant and submitted to the chairman of the General Assembly meeting before starting the discussion of the agenda. The meeting’s chairman must approve the inclusion of the item. In case of refusal, the applicants may present the issue to the General Assembly and it shall be voted by the majority of shares represented in the meeting.</p>\r\n<p class=\"p1\"><em>Inclusion of an Item in the Meeting Agenda During the Meeting</em></p>\r\n<p class=\"p1\">The shareholders holding at least 5% of the Company’s share capital shall have the right to apply to the SCA to include additional items in the General Assembly meeting agenda within five business days from the date of the invitation to the General Assembly meeting.</p>\r\n<p class=\"p1\"><em>Issuance of Special Resolutions</em></p>\r\n<p class=\"p1\">“Special Resolution” is defined under the CCL as the resolution issued by the shareholders that own no less than three quarters of the shares represented in a General Assembly meeting of the Company. This means 75% of the shares represented in a General Assembly meeting as long as they meet the minimum percentage of share capital required to convene such meeting. For example, if 51% of a Company’s share capital is represented in a General Assembly meeting and the Company’s articles of association requires more than 50% of the share capital to attend in order to consider the meeting as duly convened, a Special Resolution shall require the approval of 75% of that 51% of the Company’s share attending such meeting and not 75% of the Company’s total share capital.</p>\r\n<p class=\"p1\">As per the New Governance Rules, the following matters may only be approved by way of Special Resolution even if this is provided under the Company’s articles of association:</p>\r\n\r\n<ul>\r\n 	<li>issuing bonds or sukuk;</li>\r\n 	<li>(making voluntary contributions for community service purposes;</li>\r\n 	<li>Company’s dissolution or merger with another company;</li>\r\n 	<li>sale or disposal in any other way of the business for which the Company was incorporated;</li>\r\n 	<li>if the Company wishes to sell 51% or more of its assets, whether in one deal or through various deals within one year from the date of the first deal or transaction;</li>\r\n 	<li>extension of the Company’s term;</li>\r\n 	<li>amendment of the Company’s articles of association;</li>\r\n 	<li>accepting the partnership of a strategic partner;</li>\r\n 	<li>conversion of cash debts to shares in the Company’s share capital;</li>\r\n 	<li>approving of the Company’s employee shares incentive scheme or program;</li>\r\n 	<li>as and when required under the CCL.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\">It is worth mentioning that Article 31 of the New Governance Rules further provides that without prejudice to the provisions of the CCL, the Company must secure the approval of its shareholders for every issue of new shares (subject to the SCA’s approval of the capital increase) and the approval of the Central Bank where there are companies under its control.</p>\r\n<p class=\"p1\"><em>Implementation of General Assembly Resolutions</em></p>\r\n<p class=\"p1\">The Chairman must implement the General Assembly resolutions subject to the following regulations:</p>\r\n\r\n<ul>\r\n 	<li>disclosure of the results of the General Assembly meeting to the Market and on the Company’s website;</li>\r\n 	<li>securing the approval of SCA and other competent authorities and supervisory bodies on the resolutions adopted by the General Assembly during the meeting; and</li>\r\n 	<li>implementation of the resolutions within fifteen days from the meeting date unless the nature of the adopted resolutions requires a longer period including without limitation the increase or decrease of the Company’s share capital or issuance of bonds or sukuk.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"><span class=\"s1\"><strong>Auditors</strong></span></p>\r\n<p class=\"p1\">The following new provisions were introduced by the New Governance Rules:</p>\r\n\r\n<ul>\r\n 	<li>For the nomination of the auditor, and in accordance with Article 244 of the CCL, it is mandatory for auditors appointed to audit a publicly listed company to be registered in the SCA’s register of auditors;</li>\r\n 	<li>no employee of the Company’s auditor may be appointed in the Company’s Senior Executive Management until the elapse of at least two years from the completion of auditing the Company’s accounts by such auditor; and</li>\r\n 	<li>a new provision for the obligations of the auditor was included under the New Governance Rules which basically stipulates that the auditor shall:</li>\r\n</ul>\r\n&nbsp;\r\n<ul>\r\n 	<li>carry out the works assigned to the auditor independently and without bias;</li>\r\n 	<li>supervise the Company’s operations, examine its administrative and financial systems and internal auditing systems, give an opinion as to the effectiveness of such systems, and ensure their appropriateness for smooth flow of the Company’s operations and preservation of the Company’s assets;</li>\r\n 	<li>give an opinion concerning the validity of the Company’s financial statements and demand amendment where necessary;</li>\r\n 	<li>verify the Company’s ownership of its assets and legality of its obligations;</li>\r\n 	<li>attend the meetings of the General Assembly and recite the auditor’s report to the shareholders and answer their questions and inquiries in relation to the latest financial statements; and</li>\r\n 	<li>report to the SCA and the competent regulatory authorities of any material violations or obstructions.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">Other than the above, there is no difference between the New and the Repealed Governance Rules including the prohibited acts to be carried out by the auditor and permitted consultations.</p>\r\n<p class=\"p6\"><span class=\"s1\"><strong>Code of Professional Conduct</strong></span></p>\r\n<p class=\"p1\">Article 49 of the New Governance Rules provides that it is part of the duties of the audit committee to monitor the adherence of the Company with the code of professional conduct. In the Repealed Governance Rules it was the duty of the Company to adopt a professional conduct code.</p>\r\n<p class=\"p6\"><span class=\"s1\"><strong>Penalties for Violating the New Governance Rules</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">The New Governance Rules grant the SCA the right to refer any breach carried out by the Company or its Board Members or employees to the Public Prosecutor. This did exist under the Repealed Governance Rules. The New Governance Rules further refer to the application of SCA Board Resolution No. 42 of 2015, regarding the Regulations and Procedures of Reconciliation in the Offenses Related to Public Shareholding Companies (which also did not exist in the Repealed Governance Rules).</span></p>\r\n<p class=\"p6\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">In light of the above and the previous three parts of this article, it is clear that the New Governance Rules introduce several improvements that have either rectified, or filled in gaps that used to exist under the Repealed Governance Rules. There are several major differences between the New and Repealed Governance Rules. The New Governance Rules introduce new provisions that did not exist before, and structure the corporate governance principles in a more organized manner.</p>\r\n<p class=\"p1\">It can be said that the New Governance Rules have strengthened the normative framework for public joint stock companies’ corporate governance.</p>\r\n<p class=\"p1\">However, we still believe that there is room for additional improvements since several provisions of the New Governance Rules need to be put into practice, and the interpretation and clarification by the SCA of some provisions is needed.</p>'),
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	(102588,5577,'_yoast_wpseo_metadesc','This article considers recent practical developments in respect of the Dubai Health Insurance Law No. 11 of 2013 which came into effect on 1 January 2014 (‘Law’).'),
	(102589,5578,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">In this article, we consider the implications of this recent law which we consider will add value for lenders across the UAE, namely; Federal Law No. 20 of 2016 concerning the Mortgage of Moveable Assets to Secure a Debt (the “Law”). The Law was published in the Federal Gazette no. 609 dated 15 December 2016 and is due to come in effect 90 days after the publication (the “Effective Date”).</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Law is a welcome change as it provides lenders with the ability to register effective security over moveable assets, a problem both lenders and debtors have struggled with for some time. The Law applies to pledges over tangible or intangible moveable assets that exist at present or in the future. The Law does not apply to moveables for which existing laws already require registration or for which a special register already exists. For example, such as a pledge over shares registered with the Economic Department in an Emirate or a pledge over vehicles registered with the applicable traffic departments in each Emirate. </span></p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>What are the main implications?</strong></span></p>\r\n<p class=\"p3\">Prior to the Law, lenders relied on the provisions of the Civil Code to create a possessory pledge over moveable assets. Under the Civil Code, such a pledge over moveable assets was only valid if:</p>\r\n\r\n<ul>\r\n 	<li>the assets were capable of delivery at the time the pledge is made, and capable of being sold by public auction;</li>\r\n 	<li>the assets were in the possession of the pledgee or a neutral third party as bailee; and</li>\r\n 	<li>the pledgor was the owner of the assets pledged and competent to make dispositions over it.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">The Law has perhaps most significantly, changed this position by allowing a mortgage of moveable assets without the need to transfer the possession to the mortgagee or third party as bailee, if the mortgage is registered in the registry to be established under the Law (“Security Registry”) – see further below. Some other significant changes that the Law has introduced are:</p>\r\n\r\n<ul>\r\n 	<li><strong>Definition of Moveable Assets</strong> - Article 3 of the Law defines the assets that can be mortgaged. The definition in the Law encompasses all moveable assets including, among other things (i) any moveable tangible or intangible assets, existing or in the future; (ii) “indebtedness” (ie accounts payable owed to the pledgor); (iii) credited and deposits bank accounts including the current accounts; (iv) documents of title (including bills of lading); and (v) property accessory to immoveable property. Prior to the Law, the Civil Code did not allow for future assets to be pledged. This is a notable change however caution is necessary—the extent to which the UAE Courts consider the Law must be reconciled with the position under the Civil Code will not be known until a case where the issue is raised is determined. Bank accounts were also pledged by relying on generic provisions of the Civil Code which was not well suited to accounts with fluctuating balances. The ability to specifically deal with the indebtedness, future assets, documents of title, fungible assets and also bank accounts (among others) under the Law should afford greater comfort to Lenders interested in such security. The Law does not apply to moveable assets that require registration in a special register under an existing law (like listed shares, vehicles, ships, aircraft and certain free zone security).</li>\r\n 	<li><strong>Security Registry -</strong> The Law requires the registration of mortgages over moveable assets in the Security Registry. The Security Registry is yet to be created and the Law provides for it to be created by a Cabinet resolution. The Cabinet resolution will likely give more insight into the structure of the Security Registry, where it will be located, who will manage it and specific registration requirements. We understand the Ministry of Finance is in discussion with potential parties to manage the Security Registry and there will likely be developments in this regard in the next few months.</li>\r\n 	<li><strong>No possession –</strong> As discussed, the Law permits the mortgage of moveable assets without the need to transfer the possession to the mortgagee or third party. This will be significant in certain trade finance transactions, where it was not always possible to arrange for a third party bailee to take possession of the goods. Under the previous Civil Code regime, in pledges over the assets of a borrower, the borrowers usually appointed an employee or director of the shareholder of the borrower to act as the bailee. This arrangement was often tenuous and lenders often faced difficulties holding the bailee responsible. In addition, there was often hesitation to appoint a bailee as there was a possibility of criminal sanctions on the bailee for misconduct which affected the pledged assets. With the removal of this requirement, the Law streamlines the practical process of taking a pledge over the moveable assets.</li>\r\n 	<li><strong>Other security -</strong> The Security Registry can accept the registration of other rights, such as (i) the lessor’s right over the assets in the case of operational lease agreements, if the agreement is for one year or more; and (ii) the lessor’s right under finance lease agreements.</li>\r\n 	<li><strong>Registration in the Security Registry –</strong> Article 10 of the Law provides that a pledge over moveable assets shall only be effective against third parties if it is registered in the Security Registry. It is not clear at the moment how the registration process will work practically and it is expected that more details of how the process of registering a pledge in the Security Registry will be specified in the Cabinet Resolution establishing the Security Registry. Article 10(2) also specifies that once a pledge has been registered in the Security Registry in accordance with the Law, no further pledge or charge shall be created on the same assets unless it is registered on the Security Registry. This provision, along with with Article 17 of the Law, allow for ranking charges to be registered on the Security Registry. The priority in the ranking shall be determined based on the date and time of registration of the pledge in the Security Registry.</li>\r\n 	<li><strong>Enforcement -</strong> The registration of pledges will make the right of recourse and enforcement more easy and clear. The registration will establish priority and allow the trace of goods in custody of third parties (except where goods are sold in the ordinary course of trade); thereby eliminating the risk of fraud and disposition. This is relevant especially to financing by way of trust receipt where, in our experience, it is often difficult to enforce the trust receipt if goods are sold to third parties.</li>\r\n 	<li><strong>Public Searches –</strong> A notable issue that lenders previously faced was that there was no way to verify if any charges existed on the assets that they intended to take a pledge over. This issue has been resolved by the Law by allowing for public searches of the Security Registry. Article 7 of the Law allows third parties to search the Security Registry and obtain basic information from the Security Registry. Such information will be usable as evidence when undertaking enforcement. The parties to the pledge may decide how much of the information relating to the pledge will be available to the public on the Security Registry, however the Law provides that in all cases some basic information will be searchable. There is a concern that the ability to restrict information may offset the benefits of the public searches, with contracting parties imposing overburdensome restrictions which may lead to information not being consistent between registrations. We hope that the proposed Cabinet Resolution will clarify this issue by restricting parties’ right only to only limit information that is commercially sensitive and ensuring the basic information includes the parties, the assets that are subject to pledge, its value and duration as a minimum requirement.</li>\r\n 	<li><strong>Payment in Kind -</strong> The Law gives the mortgagee the right during the mortgage, or at maturity of the debt, to agree with the mortgagor to receive the title of the mortgaged assets (wholly or partly).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p3\"><strong>Direct Enforcement (Out of Court)</strong></p>\r\n<p class=\"p3\">The Law introduces another important process of enforcement – the right of self help. This allows the pledgee direct recourse against the pledged goods in certain limited circumstances. Article 27 and 28 of the Law specifies that limited circumstances in which such enforcement is possible.</p>\r\n<p class=\"p1\">In order to undertake direct enforcement against pledged assets generally, the pledge must notify all concerned parties (pledgor, the bank, the holder of bonds or documents subject of the pledge etc.). The Law does not give time limit for such notice; therefore (unless regulations specify otherwise), the parties are free to agree on a suitable period for the notice; unless expressly waived. Certain types of collateral have bespoke direct enforcement mechanisms.</p>\r\n<p class=\"p1\">The direct enforcement can be effected in respect of the following specific collateral as follows:</p>\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Type of Pledge</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Means of Direct Enforcement</strong></span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">Moveable assets (generally)</p>\r\n</td>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">By private sale, subject to prior agreement, notification to relevant parties and no other security interest existing.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">Claims and Receivables.</p>\r\n</td>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">Set off if the pledgee is a bank and by claim if the account is held at another bank.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">Bonds and written instruments that are negotiable and transferable by way of delivery or endorsement.</p>\r\n</td>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">Through delivery or endorsement if their value is equal to the right of pledge.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">Written papers that are negotiable and transferable by way of delivery or endorsement if it is related to goods.</p>\r\n</td>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p8\">By application to the summary judge for the issuance of an urgent order.</p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"p3\"><strong>Enforcement through the Court</strong></p>\r\n<p class=\"p3\">The Law grants authority to summary judges to issue orders for enforcement of a registered pledge. In order to do so the pledgee must submit the following documents:</p>\r\n\r\n<ul>\r\n 	<li>Copy of the pledge contract and the details of the pledged property as per the register;</li>\r\n 	<li>Name and address of the execution applicant;</li>\r\n 	<li>Names and addresses of the pledgor and the debtor;</li>\r\n 	<li>Name of the proprietor of the pledged asset if it is in possession by a third party;</li>\r\n 	<li>Name and address of the owner of the moveable asset to which the right of pledge is attached;</li>\r\n 	<li>Proprietor of such asset;</li>\r\n 	<li>Owner of the asset on which the subject of the pledge exists and proprietor of such asset, as appropriate.<strong> </strong></li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p2\"><span class=\"s2\"><strong>Process of Sale</strong></span></p>\r\n\r\n<ul>\r\n 	<li><strong>Penalties -</strong> The Law penalizes the pledgor, the pledgee, the debtor or the possessor of the mortgaged assets in case of the disposal or damage to the mortgaged assets contrary to the mortgage agreement. The penalty is potential imprisonment and a fine of not less than AED 30,000. If such criminal actions are committed by a corporate entity, the penalty shall be applied to the board members, the joint shareholders and appointed employees at the corporate entity committing such acts. This is significant as it imposes penalties on the pledgor and its staff for unauthorized disposals, but also implies that even officers of banks may be subject to penalties for non-compliance of the Law.</li>\r\n 	<li><strong>Compliance period –</strong> The Effective Date is noted above. There are also certain regulations that are to be issued and published, which will likely lay down the more operational aspects of the Law. These regulations are to be published within six months from the Law coming in to force. The Law also allows a period of one year from the enactment of the Law for existing mortgages to be registered. For many banks this will mean reviewing all existing security packages to assess whether all or part of the security should be registered on the Security Register.</li>\r\n</ul>\r\n<p class=\"p1\">In summary, the Law has introduced substantial and welcome changes in the market for secured lending while also providing lenders with better information on borrowers and providing them with greater comfort in taking security over moveable assets. Although there are many aspects of the implementation of the Law that remain uncertain at this point, one thing is abundantly certain – the Law is a welcome addition to the legal landscape of the UAE.w</p>'),
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	(96330,5231,'content_description','Most of the conditions in Egypt in respect of working hours are in general moderate and efficient. '),
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	(96332,5231,'pageSummary','Most of the conditions in Egypt in respect of working hours are in general moderate and efficient.'),
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	(203472,5231,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Salma Basset'),
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	(96340,5231,'_yoast_wpseo_metadesc','The overtime provisions as set out in the Egyptian Labor Law No. 12 of 2003 (the “Labor Law”) are regularly breached by employers both in respect of white and blue collar workers. This article explores the law and the challenges faced by employers in being in compliance with it.'),
	(96341,5232,'content','September 2015\r\n\r\n<hr />\r\n\r\nIn an attempt to restore investor confidence in the real estate sector, the Kingdom of Bahrain has recently introduced a raft of measures designed to regulate its property development industry. Law No. 28 of 2014 on real estate developments (the “Law”), issued in August last year, set out the overall framework of this new regulatory regime. The Law includes provision for setting up an authority to regulate property development in Bahrain. An executive regulation (the “Regulation”) issued under the Law in May this year sets out the functions of the new regulator. The Regulation operates at two levels: it regulates both the developer and each project undertaken by that developer, and this article will discuss the application of the Regulation to them.\r\n\r\n<strong>Developer’s Licence</strong>\r\n\r\nAny developer wishing to undertake property development in the Kingdom must submit an application to the Ministry of Works, Municipalities Affairs and Urban Planning (the “Ministry”) in the prescribed form. Licenses will only be issued to entities which:\r\n<ul>\r\n 	<li>are competent to undertake property development</li>\r\n 	<li>are of good reputation</li>\r\n 	<li>have not been convicted of any crime involving “moral turpitude”</li>\r\n 	<li>have not been adjudged bankrupt</li>\r\n 	<li>are registered in the commercial registry (i.e. they must be a corporate entity).</li>\r\n</ul>\r\n&nbsp;\r\n\r\nThe Ministry has 60 days to consider an application for a development licence. Once awarded, a development licence is valid for five years. However, a licensed developer can only undertake real estate developments in Bahrain if it has also been entered on the register of developers and has been granted a certificate of fitness to practice, for which a further application is required.\r\n\r\n<strong>Development Licence</strong>\r\n\r\nA licensed developer holding a certificate of fitness to practice can only commence work on a project after the plans for that project have been approved by the Ministry and a licence for that particular development has been issued. To apply for a licence, a developer must make an application to the Ministry in the prescribed form and submit the following documents:\r\n<ul>\r\n 	<li>the title deeds to the property to be developed</li>\r\n 	<li>the development licence and the building permit for the project issued under Law No. 13 of 1977 in regard to building regulations</li>\r\n 	<li>an undertaking from the main contractor and sub-contractors to start work on the project within the period specified in the licence (if any)</li>\r\n 	<li>a letter from a consultant engineer setting out the estimated value of the project</li>\r\n 	<li>an undertaking from the developer to retain the ownership of the communal areas of the project</li>\r\n 	<li>if the project is being built on reclaimed land, the reclamation approval from the technical services directorate at the municipality where the land is located</li>\r\n 	<li>the form of sale contract between the developer and a buyer</li>\r\n 	<li>construction and architectural designs approved by the technical services directorate at the municipality where the land is located</li>\r\n 	<li>a letter from the project account manager confirming that the developer has deposited a sum equivalent to 20% of the estimated value of the project (including the land acquisition cost) in the project escrow account</li>\r\n 	<li>audited accounts of the main developer and any sub-developer</li>\r\n 	<li>a feasibility study of the project setting out its successive phases</li>\r\n 	<li>evidence that the developer has at least three years experience in property development;</li>\r\n 	<li>copies of the architectural drawings submitted to the relevant municipality</li>\r\n 	<li>any other documents requested by the Ministry.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nApplications are determined within 60 working days, although the Minister has the discretion to extend that period by a further 30 days. Successful applicants are awarded licences with a maximum term of three years. Licensed developments must be carried out in accordance with the documents submitted with the application, which can only be deviated from with the consent of the Ministry.\r\n\r\n<strong>Payment Milestones</strong>\r\n\r\nThe Regulation provides for the following payment milestones, although the developer and buyer are free to agree their own payment plan should the circumstances of any given development require it:\r\n\r\n<strong>Project Account Manager</strong>\r\n\r\nThe Regulation also introduces the requirement for every development to have a project account manager appointed in writing by its developer. The written agreement between the developer and the project account manager must be submitted to the Ministry together with a completed application form. The project account manager’s name will then be entered on a register of the project account managers of all current developments.\r\n\r\nThe project account manager’s main role is to open and maintain a project escrow account into which a sum equivalent to 20% of the estimated value of the project (including the land acquisition cost) must be deposited. The project account manager is obliged to maintain (and to provide to the Ministry on its request) a record of payments into and out of the project account.\r\n\r\n&nbsp;\r\n\r\nIn conjunction with the Regulation, the Central Bank of Bahrain has issued a resolution (No. 28 of 2015) regulating the role of the project account manager (the “Resolution”). The Resolution specifies that the project account manager must be a retail bank licensed by the Central Bank of Bahrain and the project escrow account must be managed by bank employees who have at least three years’ banking experience. The Resolution also provides that the project account manager must:\r\n<ul>\r\n 	<li>not provide any other financial services to the development</li>\r\n 	<li>not grant security over the project escrow account</li>\r\n 	<li>ensure that only depositors have access to account records</li>\r\n 	<li>provide regular statements of receipts and disbursements to the Municipality One Stop Shop (Bahrain’s new, centralised location for regulating and monitoring development projects on behalf of all Bahrain’s municipalities)</li>\r\n 	<li>provide a final statement of account to the developer if the agreement between the developer and the project account manager is terminated for any reason or the project escrow account is closed for any reason before the completion of the project.</li>\r\n</ul>\r\nThe Resolution also requires the project account manager to hold in the project account all money relating to the project including any third party financing money and only to disburse that money with the prior approval of the development’s consultant engineer.\r\n\r\n<strong>Finally or Temporarily Stalled Projects</strong>\r\n\r\nIn addition to setting out procedures to be followed by the developer and the buyer on the handing over of a unit at the successful completion of a development, the Regulation provides mechanisms for dealing with “finally” and “temporarily” stalled projects. Stalled projects, and the consequences to would-be purchasers of units in them, have been of particular concern in Bahrain. In the case of temporarily stalled projects (i.e. projects on which no work has taken place for less than a year), the ministerial committee for reconstruction and infrastructure (the “Committee”) is empowered to take all necessary measures to protect would-be purchasers and/or ensure the completion of the project and/or return deposits. In the case of finally stalled projects (i.e. project on which work has stopped for more than a year), the Committee is empowered to request that the Real Estate Disputes Committee requires the developer in question to complete the development using its own resources or that the development is sold and the proceeds of sale distributed to the depositors/would-be purchasers.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nOnly time will tell whether Bahrain’s new regulated regime for property development will prove effective. Indeed, painful as it is to contemplate such a prospect, it will take another downturn in the property market for it to be truly tested. Nevertheless, the new regime, of which the Regulation and the Resolution are important elements, is a clear demonstration of the Bahraini government’s commitment to making Bahrain an attractive destination for both developers and purchasers.'),
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	(96359,5233,'content','September 2015\r\n\r\n<hr />\r\n\r\nThis Law supports the government of Jordan’s goal of striving to lead the economy to stability and attract foreign investors. This will be achieved through developing its laws and systems to enable Jordan to meet global market standards.\r\n\r\nThe Law improves and develops on previous initiatives, and retains certain benefits that were already granted to investors.\r\n\r\n<strong>Key Areas that Remain Unchanged </strong>\r\n\r\n<em>Powers of Council of Ministers</em>\r\n\r\nThe Law empowers the Council of Ministers with the right to grant any project (economic activity) falling within any exempted sectors, such as energy, ICT-BPO and tourism, additional exemptions, privileges and incentives based on the location of the project.\r\n\r\nNon-Jordanian same as Jordanian\r\n\r\nThere is a reaffirmation, as in previous initiatives, that Non-Jordanian investors shall be treated like Jordanian investors.\r\n\r\n<strong>Key Areas Addressed in the Law</strong>\r\n\r\n<em>Economic Activities</em>\r\n\r\nThe pervious initiatives used the term “Project” to describe investor activity in Jordan. The Law has changed the term to “Economic Activity”, and has expanded the definition such that is not limited to activities covered only by the Law or any instructions or regulations. This expansion is for the benefit of investors in Jordan.\r\n\r\n<strong>Expansion of Sectors</strong>\r\n\r\nThe Law expands the sectors covered by the previous investment promotion initiatives to include crafts and services; in addition to manufacturing, agriculture, hospitality, healthcare, entertainment cities, research centres, media production, convention centres and events, transport, distribution and/or extraction of water, gas and oil derivatives using pipelines, air transport, sea transport and railways.\r\n\r\nFor these Sectors, any materials, equipment, or necessary items needed for carrying out the economic activity whether imported or purchased locally, will be automatically exempt from any customs fees and will be subject to 0% sales tax.\r\n\r\n<strong>Capital Investment </strong>\r\n\r\nThe Law provides that foreign capital investments may be in cash, in-kind, material, or moral rights of a financial value, which include trademark and patents. This is an expansion from the definition used in the previous initiatives.\r\n\r\nPursuant to the above, the Law further stipulates that no restrictions shall apply to foreign capital investment amounts within the development zones and/or the free zones. Previous initiatives had capped the foreign investment. Therefore, we are happy to see such capping removed.\r\n\r\nMoreover, the Law continues with the spirit of previous initiatives, and has granted foreign investors the right to withdraw the entire amount of the investor’s investment in Jordan, to transfer any capital gains, liquidate and or withdraw and sell the investor’s share in their investment, and lastly to run their economic activity any way they deem appropriate and fit to achieve success and profits.\r\n\r\n<em>Deductions and Exemptions </em>\r\n\r\nThe Law provides a wide range of exemptions and deductions on income tax, sales tax, and customs fees.\r\n\r\nNot only that, the Law categorises items necessary to carry out the economic activity into schedules and stipulates that based on these, the income tax department and the sales tax department have to refund any tax paid within 30 days from the date that such a request is submitted.\r\n\r\nFurther, the Law categorizes deductions on items and materials needed for carrying out the economic activity based on the location of the activity, whether it is within the development zone, the industrial zone, or the free zone. Investors in each area get different benefits. For instance, in the development zones, material needed to building infrastructure, machines etc. are all exempt from customs fees. In the free zones, the exemptions are on the goods being exported out of Jordan.\r\n\r\n<em>Income Tax Deductions</em>\r\n\r\nCompanies carrying out economic activities in the development zone will be taxed at a rate of 5% on their income.\r\n\r\nCompanies carrying out economic activities in the industrial zone will be taxed at the same rate of 5% on their income.\r\n\r\n<em>Sales Tax Deductions/Exemptions</em>\r\n\r\nHere, the Law stipulates that any goods or services, whether imported or local, needed for carrying out the economic activity will be assessed a 0% sales tax, otherwise the regular sales tax rate will apply if the good or services are not used for the benefit of the economic activity.\r\n\r\n<em>Past Granted Exemptions</em>\r\n\r\nThe Law only provides investors with one option as opposed to past legislation where investors were granted the option of either continuing with the old exemptions or adjusting their status to apply the new exemptions to the economic activities.\r\n\r\nUnder the Law, investors are able to maintain and enjoy already granted exemptions until they are due to expire. They are not given the option of adjusting their status to take advantage of the new Law.\r\n\r\nHowever, the Law does grant investors who have not began work on the economic activity for which they obtained exemptions a period of two years to commence work on the project or risk losing these past exemption.\r\n\r\n<em>Investment Window </em>\r\n\r\nThe Law establishes a one-stop shop, the Investment Window, with the aim of providing a single point of contact to license economic activities in Jordan. Through the Investment Window, the Law creates a streamlined and co-ordinated mechanism necessary to acquire all the required approvals for investors.\r\n\r\n<strong>Key Areas Not Addressed in the Law</strong>\r\n\r\n<em>Income Tax </em>\r\n\r\nIn the previous initiatives, there were specific categorization of the zones, the income tax exemption rate, and the period for which the exemption applied. Different areas and categories received a different rate.\r\n\r\nHowever, under the Law these specifications have not been determined yet. They are set to be determined in accordance to instructions to be issued soon.\r\n\r\n<em>Merger</em>\r\n\r\nPervious initiatives had clearly discussed investors merging their projects. However, under this Law there is only one article that discusses the ability to merge and continue to benefit from the exemption, but it refers to instructions that are yet to be drafted for further details.\r\n\r\n<em>Future Impact</em>\r\n\r\nWith the new Law’s investment incentives, such as the automatic exemptions from customs and sales tax, investors will hopefully be more interested in entering the Jordanian market and commence economic activities that take advantage of all these benefits.'),
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	(96363,5233,'content_description','Recently, during the World Economic Forum on Middle East and North Africa, held in Jordan, Prime Minister Abdullah Ensour made a presentation regarding the new Jordanian Investment Law Number 30 for the Year 2014 (the “Law”).\r\n'),
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	(96365,5233,'pageSummary','Recently, during the World Economic Forum on Middle East and North Africa, held in Jordan, Prime Minister Abdullah Ensour made a presentation regarding the new Jordanian Investment Law Number 30 for the Year 2014 (the “Law”).'),
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	(96391,5234,'_pageSummary','field_59e59b307dec8'),
	(96392,5234,'lawUpdateStartMonth','October'),
	(96393,5234,'_lawUpdateStartMonth','field_59da247791f14'),
	(96394,5234,'currentURL','http://localhost:8888/tamimi/en/section/law-update/section-11/october-5'),
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	(96396,5236,'content','October 2015\r\n\r\n<hr />\r\n\r\nThe CML has regulated the submission of tender offers, whether mandatory (required by the CML and its relevant regulations) or optional. The regulations were issued to achieve certain goals, including transparency, equality, access to information, market protection, regulating conflict of interest and proper use of insider information.\r\n\r\nMandatory tender offers (which must be offered to all shareholders of the relevant company) is required when a person (along with its related parties): (i) acquires more than one-third of the capital or the voting rights of a target; (ii) if owning more than one-third but not exceeding half of the issued capital and voting rights and undertakes a transaction that results in ownership in excess of half of the issued capital or voting rights, or an increase of two percent in any 12-month period; or, (iii) if owning more than half but not exceeding three-quarters of the issued capital and voting rights and undertakes a transaction that results in ownership in excess of three-quarters of the issued capital or voting rights, or an increase of two percent in any 12-month period.\r\n\r\nMandatory tender offers are generally non-conditional. However, the Egyptian Financial Services Authority (EFSA) may condition offers by success of acquisition of certain thresholds in certain instances.\r\n\r\nEFSA may exempt persons (and their related parties) from the mandatory tender offer regulations in certain events, including without limitation: transfer of shares to parents and siblings; inheritance; regulated mergers; sale by banks of pledged shares; and, restructuring of group companies.\r\n\r\nGenerally, the applicant of a tender offer (either mandatory or optional) must submit the draft tender offer to EFSA, including necessary information on the applicant, shares sought to be acquired, method of acquisition (cash, share swap or otherwise) and the percentage already owned by the relevant applicant and its related parties. The regulations have set a clear definition of related parties and control, which properly regulate the market and grant sufficient protection to minority shareholders.\r\n\r\nTo further protect the interests of the minority shareholders and market stability, EFSA was granted the right to mandate the relevant target company to provide a fair market value report within 15 trading days from the date of disclosure of the draft tender offer, Such action applies in the following events: (i) the applicant or its related parties own 20% or more of the share capital of the target, is a board member of a member of the top management of the target; (ii) the price offered for shares is a share swap or a mixed offer (cash and shares); (iv) the shares of the target are actively traded shares; and (v) other events where EFSA deems such valuation necessary for the protection of the shareholders and the interest and stability of the market.\r\n\r\nEFSA must promptly inform the Egyptian Stock Exchange once it has approved the receipt of the draft tender offer and the latter must post it on its screen. Once the tender offer is approved, it has to be published in in two daily widespread morning newspapers, one of which is in Arabic. The duration of validity of the tender offer will be no less than 10 trading days and may be extended to 20 trading days if the target company is required to submit a valuation report.\r\n\r\nTo further regulate the tender offer process, certain requirements are set on all relevant and related parties to the applicant and the target. All such parties shall maintain highest level of care on information being disclosed in relation to the offer. Further, the directors and management of the target will not undertake any action or disposition that may lead to a material adverse effect.\r\n\r\nAn approved tender offer is not immune from competing offers being issued by other third parties. At any time after publication of the first tender offer until five trading days before the lapse of the validity period of such offer, competing tender offers may be submitted. Generally, competing tender offers must offer cash with at least a two percent increase from the former offer. EFSA may resort to receiving sealed bids in the event the process takes more than 60 trading days.\r\n\r\nThe CML does not grant any squeeze-out rights to majority shareholders. On the contrary, if a person and its related parties have control of 90% or more of the relevant company, shareholders owning three percent or more may, within 12 months from such ownership threshold being reached, request EFSA to oblige the majority shareholder to tender for the minority shares.\r\n\r\n<em>This article was first published in IFLR Magazine September 2015.</em>'),
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	(96397,5236,'_content','field_59b649b5c8b2b'),
	(96398,5236,'lawUpdateArticleMonth','5234'),
	(96399,5236,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(96400,5236,'content_description','The Egyptian Capital Market Law and its regulations (CML) has regulated the acquisition of listed stock and gaining control over listed entities.'),
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	(96402,5236,'pageSummary','The Egyptian Capital Market Law and its regulations (CML) has regulated the acquisition of listed stock and gaining control over listed entities.'),
	(96403,5236,'_pageSummary','field_59e59b307dec8'),
	(96404,5236,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/october-5/egypt-acquisition-of-listed-companies.html'),
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	(96406,5236,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ehab Taha'),
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	(96408,5236,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','e.taha@tamimi.com'),
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	(96413,5236,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(96414,5236,'_yoast_wpseo_metadesc','The Egyptian Capital Market Law and its regulations (CML) has regulated the acquisition of listed stock and gaining control over listed entities.'),
	(96415,5237,'content','October 2015\r\n\r\n<hr />\r\n\r\nThe Committee’s stated objectives were to (a) improve the banking sector’s ability to absorb shocks arising from financial and economic stress, whatever the source; (b) improve risk management and governance; and (c) to strengthen banks’ transparency and disclosures. One of the key recommendations of the Committee related to the necessity for higher global minimum capital standards for commercial banks\r\n\r\nIn response the Qatar Central Bank issued Circulars 3/2014 (relating to conventional banks) and 6/2014 (relating to Islamic banks) (“Capital Regulations”) implementing minimum capital adequacy requirements in accordance with the Basel III Framework.  In summary, banks in Qatar are required (from 31 March 2014) to maintain a minimum Capital Adequacy Ratio (aggregate of Tier 1 and Tier 2 capital) of 12.5%. The total minimum Capital Adequacy Ratio should consist of Tier 1 Capital (the aggregate of common equity Tier 1 capital and Additional Tier 1 capital) of at least 10.5%. The Capital Regulations also specified an implementation timetable between 2014 and 2019.\r\n\r\n<strong>Contingent Convertible Bonds (CoCos)</strong>\r\n\r\nCertain types of debt instruments known as contingent convertible bonds (CoCos) are categorised by the Qatar Central Bank as Additional Tier 1 capital. CoCos are debt securities (bonds, notes, Sukuk) that can be converted into shares of the issuing entity upon the occurrence of certain trigger events. The terms and conditions of all CoCos (that are to be classified as Additional Tier 1 capital) must have a provision that requires such instruments, at the option of the Qatar Central Bank, to either be written off or converted into shares upon the occurrence of certain trigger events. The first trigger event is that the issuer would become non-viable if the conversion or write-off was not effected. The second trigger is the decision to make a public sector injection of capital, or equivalent support without which the issuer would become non-viable. Any conversion of the CoCos would occur only on the direction of the Qatar Central Bank and on occurrence of one of the trigger events. These feature are referred to as loss absorption features.\r\n\r\nIn addition to the loss absorption features noted above, CoCos are subordinate to depositors and other unsecured creditors of the issuer and the Qatar Central Bank has the discretion to cancel coupon payments.\r\n\r\n<strong>Legal Issues with CoCos</strong>\r\n\r\nThe Commercial Companies Law (Law No 11 of 2015) sets out the provisions relating to issuance of bonds by joint stock companies. The Commercial Companies Law contains specific provisions relating to convertible bonds including the corporate and regulatory approvals that are required to be adhered to. Therefore, there is a legal basis for the issuance of CoCos in Qatar. However, there are two potential issues that should be considered when structuring a CoCo issuance.\r\n\r\nArticle 177 of the Commercial Companies Law states that where the issuer has resolved to convert bonds into shares, the bondholders should have the option of collecting the principal amount or accepting shares. This provision presents a potential contradiction in the context of a conversion of CoCos into shares. Where the issuer of the CoCos is facing insolvency, the bondholder would prefer to collect the principal amount (given the option) rather than the shares of the issuer. Article 177 would have to be carefully dealt with at the time of drafting the terms of a CoCo issuance.\r\n\r\nThe other potential problem relates to the increase of share capital at the time of conversion. Article 191 of the Commercial Companies Law requires any resolution of the extraordinary meeting of shareholders to be held not more than one year prior to the proposed increase in share capital. This would require the cooperation of the shareholders at the time of the conversion of the CoCos into shares of the issuer.\r\n\r\n<strong>Features of  CoCos as Additional Tier 1 Capital</strong>\r\n\r\nThe Capital Regulations specify certain criteria that should be met by banks in order for their debt issuances to qualify for inclusion as Additional Tier 1 Capital. The following is a summary of the significant features of such issuances:\r\n<ol>\r\n 	<li>The instruments should be subordinated to depositors, general creditors and subordinated debt of the bank.</li>\r\n 	<li>The instruments should not be secured or guaranteed.</li>\r\n 	<li>The instruments should be perpetual i.e there is no maturity date and there are no step-ups or incentives to redeem.</li>\r\n 	<li>The instruments may be callable at the initiative of the Issuer only after a minimum of five years:\r\n- to exercise a call option the Issuer must receive prior approval of the Qatar Central Bank; and\r\n- the issuer must not do anything which creates an expectation that the call will be exercised.</li>\r\n 	<li>Coupon discretion:\r\n- the Qatar Central Bank and the Issuer must have full discretion at all times to cancel distributions/payments;\r\n- cancellation of discretionary payments must not be an event of default;\r\n- the Issuer must have full access to cancelled payments to meet obligations as they fall due;\r\n- cancellation of distributions/payments must not impose restrictions on the bank except in relation to distributions to common stockholders; and\r\n- the instruments must not have credit sensitive dividends, that is the coupon that is reset periodically should not be based in whole or in part on the Issuer’s credit standing.</li>\r\n 	<li>The terms of the instrument must contain a provision that requires such instruments, at the option of the Qatar Central Bank, to either be written off or converted into common stock upon occurrence of the following events:\r\n- the Issuer would become non-viable without the write-off;\r\n- the decision to make a public sector injection of capital, or equivalent support without which the Issuer would become non-viable.</li>\r\n</ol>\r\nThe primary draw of such instruments is the quality of the bank that is the issuer and higher (anticipated) coupon payments. These instruments have been widely issued by banks in the GCC and market participants expect issuances to continue in the near future.\r\n\r\n<em>A version of this article was first published in IFLR Magazine September 2015.</em>'),
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	(96419,5237,'content_description','In response to the financial crisis leading to the collapse of Lehman Brothers, the Basel Committee on Banking Supervision issued a comprehensive set of reform measures, developed to strengthen regulation, supervision and risk management of the banking sector. '),
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	(96421,5237,'pageSummary','In response to the financial crisis leading to the collapse of Lehman Brothers, the Basel Committee on Banking Supervision issued a comprehensive set of reform measures, developed to strengthen regulation, supervision and risk management of the banking sector.'),
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	(96432,5237,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(96433,5237,'_yoast_wpseo_metadesc','In response to the financial crisis leading to the collapse of Lehman Brothers, the Basel Committee on Banking Supervision issued a comprehensive set of reform measures, developed to strengthen regulation, supervision and risk management of the banking sector.'),
	(96434,5238,'content','October 2015\r\n\r\n<hr />\r\n\r\nFor these reasons, the government has drafted an amendment to the Jordanian Banking Law No. 28 of 2000 (“the “Banking Law”) in a manner that gives the Central Bank more oversight and authority over the management in banks in order to maintain the security of all financial transactions deriving therefrom. The draft of the Amended Banking Law (the “Draft”) has not yet been passed as it is still under review.\r\n\r\n<strong>Appointing the Management of the Bank </strong>\r\n\r\nFirst, the Draft gives the Central Bank full discretion to determine the number of members of the Board of Directors and the Independent Members in addition to the conditions and requirements of this independence. These requirements have been highlighted in the Corporate Governance Instructions for Banks No. 58 of 2014 (the “Instructions”),  which provides in Article 6(d)  that the qualification of a Board Member as an independent director shall be subject, as a minimum, to the following requirements:\r\n<ul>\r\n 	<li>not to have been an executive director of the bank’s board within the last three years of the execution date of the Instructions;</li>\r\n 	<li>not to have been an employee of the bank or any subsidiary thereof, within the last three years of the execution date of the Instructions;</li>\r\n 	<li>(not to be related, up to the second degree, to any other board member or  a member of any board of any subsidiary of the bank, or to any qualifying shareholder of the bank (i.e. a person holding directly or indirectly 5% or more of the share capital of the bank) (“Qualifying Shareholder”);</li>\r\n 	<li>not to be related, up to the second degree, to any of the senior executive manager of the bank or any senior executive manager of any subsidiary of the bank;</li>\r\n 	<li>not to be a partner or employee of the bank’s external auditor, whether a current auditor or an auditor appointed within the last three years, and for said member not to be related, up to the first degree, to the person responsible for auditing the bank;</li>\r\n 	<li>not to be a Qualifying Shareholder of the bank, or a representative of or affiliated to a Qualifying Shareholder, or otherwise with its affiliates a Qualifying Shareholding, or be a Qualifying Shareholder of a subsidiary of the bank or of the bank’s group;</li>\r\n 	<li>not to have occupied the position of Board Member or member of a management committee of the bank or any of its subsidiaries for more than eight consecutive years;</li>\r\n 	<li>for the said member and any company in which he is a Board Member or Qualifying Shareholder, not to have been granted credit by the bank exceeding 5% of the subscribed share capital of the bank, nor to have been a guarantor to a credit exceeding the same threshold; and</li>\r\n 	<li>to hold high financial or banking expertise and qualifications.</li>\r\n</ul>\r\nThe Central Bank also has the right to object to the nomination of any person to the membership of the Board of Directors if the Central Bank finds that the nomination contradicts the requirements stated above or if this person is less than twenty five years of age, not of good reputation or is a member of the Board of Directors, general manager, regional manager or an employee of any other bank (provided that this bank is not an affiliate).\r\n\r\nSecondly, the Draft stipulates that the general manager of the bank shall not be related, up to the third degree, to the chairman of the Board of Directors, any of its members or any Qualifying Shareholder. The Central bank shall also be entitled to apply the same condition to any of the high positions in the bank. Additionally, the Central Bank may object to the appointment of the general manager of the bank or any of the high positions if the appointment was not in full compliance with article 25 of the Banking Law which explicitly requires the appointed person to be of good reputation, not to be a member of the Board of Directors of any bank (provided that this bank is not an affiliate), to be fully dedicated to managing the bank’s activities and to hold sufficient banking expertise and qualifications.\r\n\r\n<strong>Financial Crisis Procedures </strong>\r\n\r\nIn the event that a bank encounters a situation that has a fundamental effect on its financial status, the Draft entitles the Central Bank to take, in coordination with Jordan Deposit Insurance Corporation (the “JDIC”), any of the procedures stated below if it would be a better approach to achieve financial banking stability and of lower cost than commencing the liquidation process:\r\n<ul>\r\n 	<li>issuing a decision to merge the bank with another bank, subject to the approval of the second bank.</li>\r\n 	<li>issuing a decision to sell the bank or any of its assets, rights, liabilities and obligations against other banks.</li>\r\n 	<li>the JDIC shall endure the difference between the value of the assets and the rights of the bank and the value of the liabilities and obligations of the banks for the purposes of enforcing (a) and (b).</li>\r\n</ul>\r\nIf the sale or merger stated above were not possible or if the Central Bank saw that delaying this decision may decrease the cost of correcting the situation, then the Central Bank may establish a bridge bank in coordination with the JDIC. The following provisions shall be utilized to facilitate the creation and operation of this bridge bank:\r\n<ul>\r\n 	<li>the Central Bank determines the assets, rights, liabilities and obligations that are to be transferred from the bank to the bridge bank.</li>\r\n 	<li>The Companies General Controller shall, upon the request of the Central Bank, register the bridge bank in the public shareholding companies registry  in addition to the issuance of a registration certificate for that bank which provides its ownership and those authorized to sign on its behalf however specified by the Central Bank. Noting that the bridge bank shall not be subject to the provisions of the Companies Law, the Securities Law or any legislation deriving therefrom.</li>\r\n 	<li>The Central Bank shall issue a decision to liquidate the bank that is encountering financial problems and refer it to the JDIC for the purpose of liquidating the assets, rights, liabilities and obligations that were not transferred to the bridge bank. Further, the Central Bank shall, in coordination with the JDIC, set out the necessary arrangements to determine the manner in which the JDIC is going to execute its obligations along with the conditions and provisions for the same that are provided in the Deposit Insurance Corporation Law No. 33 of 2000.</li>\r\n 	<li>The bridge bank shall conduct the banking duties in accordance with the arrangements determined by the Central Bank in terms of the management or the type of the activities being practiced, all under the supervision of the Central Bank until the Central Bank takes the decision it deems fit and appropriate; i.e. selling or merging the bank.</li>\r\n 	<li>In the event that the assets and rights of the bridge bank are less than its liabilities and obligations, the JDIC shall cover the discrepancy in accordance with the arrangements agreed upon with the Central Bank.</li>\r\n</ul>\r\nIt is also worth noting that, in relation to the above, the Draft further empowers the Central Bank as follows:\r\n<ul>\r\n 	<li>The Central Bank shall substitute the bank’s Board of Directors, the ordinary and the extraordinary general assembly in all the stages required in order to proceed with the above-mentioned procedures.</li>\r\n 	<li>The assets, rights, liabilities and obligations of the bank shall be assessed by a special committee formed by the Central Bank, which shall include representatives of the JDIC.</li>\r\n 	<li>Objections to any decision or procedure by the Central Bank shall not halt or postpone the execution of these procedures.</li>\r\n</ul>\r\nThe amendments highlighted above constitute a step forward in ensuring and maintaining the transparency of the management of Jordanian banks in addition to a set of steps and procedures for aiding banks that are encountering financial problems. All being said, the Draft attempts to avert any future financial crisis by expanding the Central Bank’s oversight of management and setting a plan for banks in trouble. Such an approach should reflect positively on the financial market, increase consumer protection and hopefully reduce the number of financial crimes.'),
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	(96438,5238,'content_description','Jordan is a country that aims to ensure the safety of financial transactions being processed by its local banks and to increase the transparency between the management of banks and the Central Bank of Jordan (the “Central Bank”). '),
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	(96440,5238,'pageSummary','Jordan is a country that aims to ensure the safety of financial transactions being processed by its local banks and to increase the transparency between the management of banks and the Central Bank of Jordan (the “Central Bank”).'),
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	(96444,5238,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Yafa Abourah'),
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	(96456,5238,'_yoast_wpseo_metadesc','Jordan is a country that aims to ensure the safety of financial transactions being processed by its local banks and to increase the transparency between the management of banks and the Central Bank of Jordan (the “Central Bank”).'),
	(96457,5239,'content','October 2015\r\n\r\n<hr />\r\n\r\nThe law seeks to ensure that goods in the Jordanian market conform to the prescribed technical regulations.  In order to do so, the law provides the JSMO with the authority to examine existing goods in the market as well as those which enter the Jordanian border crossings.\r\n\r\nThe amendments provided under the Law are substantial and include giving the JSMO the authority to confiscate counterfeit products and to raid shops suspected of selling or making counterfeit products.  Through the Law, the JSMO and its employees have broader powers to exercise their mandate and to examine goods to ensure: 1) conformity with the technical regulations, 2) that they are not replicated or counterfeited, and 3) that they possess original trademarks.\r\n\r\nThe most important of these amendments is reflected in Article 33 of the Law where the JSMO’s staff are considered Judicial Police with the right to inspect any place that produces, displays, sells, stores, distributes, or modifies any goods.  Further, the JSAMO staff have the right to take samples of goods to check their compliance with the technical regulations and to ensure that no original trademarks are violated.\r\n\r\nIt is worth mentioning that the Law gives the JSMO’s employees the right to seize counterfeit branded, imitated, or unsafe to use goods after examining goods already in the market, or though the monitoring and examining goods of entering through border crossings. This ensures a larger and wider protection against the imitation of original trademarks\r\n\r\nArticle 33(E) of the Law provides that if JSMO’s staff find that the seized goods are counterfeit branded or do not conforming with the technical regulations, the importer will be prevented from entering with the goods and obliged to return the goods to their country of origin.  In the alternative, JSMO may seize the goods and order their destruction.  If counterfeit branded, imitated, or nonconforming goods are found in the market, the offender, the seller, will receive a written warning noting that action must be taken within a specified period to make the goods conform with the technical regulations.  If the offender does not abide within the warning period, the shop will be closed by JSMO and the offender will be referred to the relevant court.  In conjunction, the General Director of the JSMO will issue a decree to confiscate the nonconforming or counterfeit branded goods.\r\n\r\nThe Law has reiterated the sanctions to be implemented against offenders. Fines for breaching the provisions of the Law range from one thousand to ten thousand dinars, or imprisonment for a period of four to six months in conjunction with a fine of not less than one thousand dinars.'),
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	(96461,5239,'content_description','The Amending Law of the Standards and Metrology Law No. 38 for the year 2015 (the “Law”), amending the Standards of Metrology Law No. 22 of 2000, has been issued by the Jordanian Standards of Metrology Organization (JSMO).  '),
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	(96479,5239,'_yoast_wpseo_metadesc','The Amending Law of the Standards and Metrology Law No. 38 for the year 2015 (the “Law”), amending the Standards of Metrology Law No. 22 of 2000, has been issued by the Jordanian Standards of Metrology Organization (JSMO).'),
	(96480,5240,'content','October 2015\r\n\r\n<hr />\r\n\r\nThis article considers a recent draft replacement AML Law in Iraq, which is a country that is recognised by the World Bank as a high-risk jurisdiction, suffering from high levels of corruption and weak financial control systems.  This is largely due to the war and the relative infancy of the subsequent legal and financial systems.  The draft AML law indicates an effort by the Iraqi government to bring Iraq’s fight against money laundering to an international standard.\r\n\r\n<strong>The Current Position</strong>\r\n\r\nThe Financial Action Task Force (“FATF”) is an inter-governmental body that promotes the effective implementation of measures to combat money laundering, terrorist financing and other threats to the international financial system.  One element of this work is the publication of a series of Recommendations that FATF members are called upon to implement.  Although Iraq is not a member of the FATF, it is a member of the Middle East and North Africa Financial Action Task Force (“MENAFATF”), which itself is one of the Associate Members of the FATF.\r\n\r\nA Mutual Evaluation Report on Iraq’s compliance with the FATF Recommendations for combating money laundering and terrorist financing was conducted by the World Bank and adopted by the MENAFATF in November 2012 (“2012 Report”).\r\n\r\nThe 2012 Report was based on the law in place at that time, which was Coalition Provisional Authority Order No. 93: Anti-Money Laundering Act of 2004 (“Current Law”).  Iraq was identified as being ‘compliant’ with just two of the 49 FATF Recommendations then in place and ‘non-compliant’ with 36, the remainder being ‘partially compliant’.  The 2012 Report listed recommended actions, designed to improve Iraq’s compliance, in order of priority.  ‘Criminalisation of money laundering’ was at the top of the list.\r\n\r\n<strong>A New Law</strong>\r\n\r\nA draft AML law (“Draft Law”) was issued in 2014 and approved by the Council of Ministers on 30 June 2015.  It is, at the time of writing, being reviewed by Parliament for ratification.  This new and enhanced law shows signs of improvement and a potential to tackle the issues highlighted in the 2012 Report.\r\n\r\n<strong>Definitions</strong>\r\n\r\nThe Draft Law introduces a more in-depth ‘Article 1: Definitions’ and includes a number of new definitions so that the law can be interpreted correctly and clearly.  It has been expanded to include internationally-recognised AML definitions and defines terms such as “terrorist act” and “terrorist organisation”.  The Draft Law contains a wider range of definitions than the Current Law, which also lacks the in-depth explanation of terms offered by the Draft Law.\r\n\r\nIn a major broadening of AML regulation, the Draft Law will apply to, and therefore impose requirements upon, financial and non-financial professionals such as accountants, lawyers, real estate brokers, and service providers, which are not covered by the Current Law.  This is in addition to financial institutions, which are subject to the Current Law.\r\n\r\n<strong>Money Laundering and Predicate Offences</strong>\r\n\r\nArticle 2 of the Draft Law defines money laundering as a crime that can be committed by transferring, converting, depositing, investing, exchanging or managing the proceeds of an unlawful activity, or by concealing the source of such proceeds.\r\n\r\nThe Draft Law broadens the mens rea of the offence, in that an offender will have committed the offence of money laundering not only if he actually knew that the funds were the proceeds of crime but also if he ‘ought to have known’ that they were.\r\n\r\nArticle 3 clarifies that a conviction for money laundering does not depend on the issuance of a judgment for the predicate offence.  In comparison, the Current Law does not address any conditions in regard to predicate offences or the fact that money laundering is an independent crime.\r\n\r\n<strong>Combating Money Laundering and Terrorist Financing Council</strong>\r\n\r\nThe Draft Law requires the establishment of a new Council for Combating Money Laundering and Terrorist Financing (“Council”) within the Central Bank of Iraq (“CBI”).  The Council should consist of representatives from the Ministries of Foreign Affairs, Justice, Commerce, Finance and Interior, the Anti-Terrorism Defence Unit and other government bodies.\r\n\r\nThe Council will be the authority responsible for supervision of AML and counter-terrorist financing.  Its duties will include:\r\n<ul>\r\n 	<li>Setting policies and AML and counter-terrorist financing programs;</li>\r\n 	<li>Developing standards and ways for discovering the methods of money laundering;</li>\r\n 	<li>Setting appropriate training programs for the employees who are specialised in combating money laundering and terrorist financing;</li>\r\n 	<li>Requesting financial institutions and other non-financial professions to submit reports regarding financial transactions;</li>\r\n 	<li>Outlining and evaluating the risks of money laundering and terrorist financing in Iraq.</li>\r\n</ul>\r\nThe new Council will have a wide supervisory and regulatory role to minimise the threat of money laundering and related crimes.\r\n\r\n<strong>Combating Money Laundering and Terrorist Financing Office</strong>\r\n\r\nThe Combating Money Laundering and Terrorist Financing Office (“Office”) shall be established within the CBI, as a public department having its own legal capacity and financial and administrative independence.\r\n\r\nThe role of the Office will be to receive and deal with suspicious transaction reports, including the receipt of proceeds of a predicate offence, money laundering or terrorist financing by financial institutions and other financial, commercial, and economical establishments.  The Office is also responsible for representing Iraq in international organisations and at conferences that are related to money laundering and terrorist financing.\r\n\r\n<strong>The Committee for Freezing Terrorist Funds</strong>\r\n\r\nAnother specialised committee within the CBI is the Committee for Freezing Terrorist Funds, which deals with the freezing of funds belonging to terrorists or other people specified or named by the United Nations Security Council’s Counter Terrorism Committee, or those that are classified as a terrorist, either at a national level or at the request of another country.\r\n\r\nThis committee will receive requests sent to the Ministry of Foreign Affairs from foreign countries regarding asset freezing for Iraqi residents, and decide if the request meets the criteria required for asset freezing.\r\n\r\n<strong>International Cooperation</strong>\r\n\r\nWhereas the Current Law does not deal with international cooperation and extradition, the Draft Law addresses the concerns of the 2012 Report by introducing a number of articles to deal with mutual judicial cooperation and the extradition of criminals involved in money laundering and terrorist financing crimes.  These include specifying that:\r\n<ul>\r\n 	<li>money laundering and terrorist financing are crimes for which Iraq will offer international cooperation on the basis of treaties or the principal of reciprocity;</li>\r\n 	<li>the offence alleged must be a crime in both countries (dual criminality);</li>\r\n 	<li>it is the act, rather than the classification or name given to an offence, that will be considered;</li>\r\n 	<li>(articles used in money laundering and terrorist financing offences may be returned to the requesting country; and</li>\r\n 	<li>Iraq will execute foreign judgments for confiscation in respect of money laundering and terrorist financing, subject to the rights of bona fide third parties.</li>\r\n</ul>\r\nIn addition, the Combating Money Laundering and Terrorist Financing Office shall exchange information with its equivalent foreign entity, whether the information is requested or not.  However, use of such information is restricted to the combating of money laundering or its predicate offences.\r\n\r\n<strong>Penalties</strong>\r\n\r\nThe punishments in the Draft Law are undoubtedly harsher than those in the Current Law, whether for an individual, legal person or financial institution, and cover a wider range of topics.  For example, the maximum penalty for the money laundering offence under the Draft Law is 15 years, as oppose to 4 years under the Current Law.  The Draft Law punishes those who are convicted of a terrorist financing crime with life imprisonment, whereas the Current Law focuses more on fines and imposes imprisonment for not more than two years.\r\n\r\nThe Draft Law also outlines certain procedural action to be taken in circumstances where a financial or non-financial professional or institution violates any of the provisions set out in the Draft Law.  For example, withdrawal of a license, restricting the power of managers or preventing those who violate the law from practising in the same field of work for a certain period.\r\n\r\n<strong>Exclusion of Liability</strong>\r\n\r\nThe Draft Law addresses exclusion of liability, as does the Current Law.  Article 50 of the Draft Law states that whoever reports, in good faith, a suspicious transaction or a violation of this law, or offers information or data related to it, shall be exempted from civil, criminal, or administrative liability, even if it later transpires that the report is incorrect.\r\n\r\n<strong>Whistle-Blowing</strong>\r\n\r\nNotably, whereas the Current Law addresses whistle-blowing and provides whistle-blowers with protection, this provision does not appear in the Draft Law.  This is a major absence and creates a real disincentive for employees to report suspicious transactions in their workplace.\r\n\r\nHowever, the Draft Law offers further exemption from punishment to those who notify the authorities of a conspiracy to commit a money laundering or terrorist financing offence, with the condition that the report must be made before the actual crime is committed.  The court will have discretion as to whether to exempt or reduce the punishment and will take into account whether the notification assists in capturing the remaining criminals.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Draft Law demonstrates that the Iraq government is making serious efforts to improve the country’s laws and regulations in order to ensure that it complies with international standards and is kept off the FATF blacklist.  A Member of the Iraq Parliament, Mr. Haitham AlJabori, stated his concern in a news interview in August 2015, saying that “further delay in ratifying the new AML law, would put Iraq on the FATF blacklist”.\r\n\r\nWe will keep watching with interest to see when the Draft Law becomes operational.\r\n\r\n<em>For any queries relating to financial crime in the Middle East, please contact:\r\n</em><em>Khalid Al Hamrani, Regional Head of Financial Crime Practice: k.hamrani@tamimi.com\r\n</em><em>Ibtissem Lassoued, Partner, Financial Crime Practice: i.lassoued@tamimi.com</em>'),
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	(96506,5240,'_yoast_wpseo_metadesc','Effective anti-money laundering (“AML”) laws are crucial for combating money laundering and terrorist financing around the globe. Al Tamimi & Company in this article considers a recent draft replacement AML Law in Iraq.'),
	(96507,5241,'content','October 2015\r\n\r\n<hr />\r\n\r\nThere are now just over a dozen such banks in Iraq and the capital managed by them has grown considerably.\r\n\r\nThe establishment of usury-free Islamic banks, which aim to conform to Muslim Shariah Law, creates significant new investment opportunities to attract religious investors.\r\n\r\n<strong>Why Islamic banks?</strong>\r\n\r\nUsury-free banking is essential for countries  that wish to cater to their religious investors and aid them in investing their money in ways that goes along with their beliefs.  Islamic banks offer such services within the Islamic sharia boundaries, for example Murabaha, Mudarabah, and Sukuk.\r\n\r\nIn comparison with the conventional banking, Islamic banks do not deal with ‘toxic assets’, such as those that resulted in the financial crisis of 2008 (i.e. assets that consist of a bundle of debts, some of which are bad). Islamic banks also do not deal with non-existing assets (e.g. they do not trade in debt or interest).\r\n\r\nThe Central Bank of Iraq (the “CBI”) governs Iraqi banks, whether Islamic or traditional, on the same basis. This has enabled Islamic banks to prosper among the more conservative investment sectors of the Iraq market.\r\n\r\n<strong>The issuance of the Islamic Banking Law</strong>\r\n\r\nIslamic banks have, since the early years of their operation in Iraq, been required to comply with the Iraqi Banking Law number  94  for the Year 2004 (the “Banking Law”), despite the fact that the philosophy of Islamic banks does not fall within the same structure.\r\n\r\nThe Banking Law addresses commercial banking regulations, whereas Islamic banks work within conventional banking structures while applying Shariah Law at the same time. This has contributed to the limited growth of the Islamic banking industry in Iraq.\r\n\r\nAn unsuccessful attempt by the CBI to issue regulations for Islamic Banks was faced with objections from the State Consultation Council (the “Council”). The Council stated that in the absence and non-existence of a relevant governing law, it is not possible to pass such regulations.\r\n\r\nIn 2011, positive development took place in the Iraqi Banking industry.  The CBI approved the opening of two Islamic windows and approved the incorporation of a governmental Islamic Bank. Islamic windows are separate departments within a conventional bank, which operates under strict guidance by an independent Shari’a Advisory Board (comprising Muslims scholars of repute, credibility and due social recognition) to develop and offer Islamic financial products to the clients that demand such products. An Islamic Window may offer its products and services through conventional branches or dedicated Islamic branches of the conventional bank.\r\n\r\nDuring the same year the CBI issued the Islamic Banking Regulations number 6 for the Year 2011. These Regulations expanded on Article 104 of the Banking Law’s definition of Islamic banks. Under said Article, an Islamic Bank is “any legal entity certified or authorized hereunder to conduct Islamic banking business in accordance with Sharia, and does not deal with given or taken interest”. As such, these Regulation gave Islamic Banks the right to fund and invest in accordance with Islamic Sharia, and forbade them from dealing in usury, in any manner, whether for its own interest or for a third party’s interest.\r\n\r\nThe Regulations further specified the authorities that may grant Islamic Bank licenses. Also, now these Islamic Banks were granted the right to open onshore and offshore branches, and offices in accordance with an annual plan to be submitted to the CBI for the purpose of acquiring the necessary approvals.\r\n\r\nIn addition to the above, the Regulations stipulated the activities that can be conducted by the Islamic Banks.  These activities include but are not limited to investing and funding activities through Musharaka (an equity partnership investment), Mudarabah (profit sharing partnership, similar to traditional trust management), Salam sell,  Istissna’a (Manufacturing Finance), Ijara (Hire Purchase), and bargaining; incorporating companies; entering many activities with a shareholding not to exceed 20% of the capital; the right to own movable and immovable assets necessary for its investments or for leasing; funding internal and external trading activities; participating in agricultural, industrial, and architectural  projects.\r\n\r\nThe Regulations specify activities which the Islamic Banks (and Islamic windows within conventional banks) are prohibited to carry out, such as the prohibition towards dealing with interest and issuing saving accounts. Moreover, the Regulations also illustrates funding and dealing mechanisms regarding the purchase of foreign currencies, foreign currency exchange companies, commercial papers, stock market and sets out conditions on how to offer loans from the bank within the allowed rates to fund any natural or legal entities and the imposed obligations pertaining to dealings in foreign currency.\r\n\r\nThe Regulations also set out the procedures for establishing a Sharia Board. Based on the Regulation, Islamic banks (and the Islamic windows) must have a Sharia Board which shall carry out the responsibility of providing a Sharia view on the operations of the bank in order to ensure its compliance with the Sharia Law. One of the main activities of the Sharia Board is to suggest to the General Assembly of the bank or its Board of Directors all the necessary steps that need to be taken or carried out to achieve compliance with Sharia Law. The decisions of the Sharia Board are binding on the executive management of the bank.\r\n\r\nFinally, the Regulations give the right to conventional and investment banks to open an Islamic window or to establish an Islamic branch. The Body entrusted with the authority to grant such license is the CBI. The license gives conventional banks the ability to establish Islamic banks or corporations, affiliate with Iraqi or non-Iraqi Islamic banks, or to open an Islamic window within the conventional bank.\r\n\r\n<strong>How To Establish an Islamic Bank in Iraq</strong>\r\n\r\nPursuant to the current Banking Law, Regulations and the CBI, the following are three processes to set up an Islamic Bank in Iraq:\r\n\r\n<strong>1. Opening an Islamic window affiliate within a conventional banks</strong>\r\n\r\nIt is permissible for a conventional and commercial banks to open an Islamic window according to the terms and conditions specified by the CBI. These terms and conditions require the CBI’s prior consent. The bank may open an Islamic window after including such plan in the bank’s annual strategy that is submitted to the CBI, or by converting the activity of an already existing branch to conduct Islamic Banking activities. In addition, the bank must allocate independent capital for these windows, making clear that the source of said capital is not connected with any usury dealings\r\n\r\n<strong>2. Setting up a branch for a Foreign Bank</strong>\r\n\r\nThe Regulations grant a Foreign Bank the ability to set up an Islamic bank in Iraq because Islamic Banks have the right to register branches and offices onshore and offshore. In order to being the process, the Islamic Bank must include said plan in the annual strategy that is submitted to the CBI in order to obtain the latter’s approval. Further, in addition to the supervision of the competent authorities in the country of origin of the Foreign Bank, these Iraqi branches shall be subject to the direct supervision of the CBI in accordance to an agreement prepared for said purpose.\r\n\r\n<strong>3. Establishment of an Islamic Bank as Shareholding Company</strong>\r\n\r\nThe aforementioned Regulations have given the right to set up an Islamic Bank by a shareholding company. As such, after finalizing the registration procedures of the Shareholding company in Iraq, it must submit a written request to the CBI accompanied with required supporting documents to establish an Islamic Bank. The CBI shall then review the submitted documents to provide its initial approval. After fulfilling all the requirements and obligations, the CBI shall then grant the license upon registration as a Shareholding Company.\r\n\r\n<strong>Future Islamic Law </strong>\r\n\r\nAs for the governmental side, the General Budget of 2015, has exempt the establishment of Islamic Banks from the  capital increments imposed by the CBI in order to encourage the use of Islamic Bank products.\r\n\r\nIn addition, there is a draft Islamic Banking Law under review to be passed sometime this year. This law will regulate the operations of the Islamic Banks in a more thorough manner. One of the important articles in the draft law aims to exclude Islamic Banks and their branches from the taxes and fees arising from dealing in contracts relating to estate, land, cars, Murabaha deals and Ijara deals.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nThe current Regulations and laws (current and proposed) offer real and significant encouragement for the Islamic banks and their activities. It is important to note that the CBI, in many announcements, has encouraged the establishment of Islamic Banks and their growth, having recognised that they are an attractive solution to attracting the conservative public who are un-willing to deal with usurious and conventional banks. All in all, we believe that Iraq is a very promising market for Islamic bank investment.'),
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	(96526,5242,'content','October 2015\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Company has had the privilege of working with the team responsible for drafting this new law, which has been through more than seven years of consultation, review and drafting. The new law is a positive step towards attracting increased real estate investment in Abu Dhabi, and across the UAE more broadly, as it tackles many of the concerns raised by investors and developers in the past, while also drawing on the real estate investment experience in the UAE, and especially in Dubai, over the last ten years.\r\n\r\nThe UAE’s real estate sector witnessed a period of controversial development over the past decade, and it suffered a severe shock during the global financial crisis. Lessons were certainly learnt from that experience, leading to greater stability and maturity in the real estate investment market we see today. This new law is the next important step forward and should be welcomed as a balanced approach to providing important protection for stakeholders and the wider public interest.\r\n\r\nThis article discusses some of the main provisions of the new law, which includes many encouraging provisions,  together with provisions that require the relevant parties to take swift measures to safeguard their rights and avoid legal penalties, which can, in some cases, lead to imprisonment and considerable fines.\r\n\r\n<strong>Definitions</strong>\r\n\r\nPart one of the law defines several important terms including, but not limited to, the real estate register, the interim real estate register, the real estate development register, real estate development projects, escrow accounts, off-plan sales, service charges and community charges.\r\n\r\n<strong>Responsible Authority</strong>\r\n\r\nThe law authorises Abu Dhabi’s Department of Municipal Affairs (“the DMA”) to organise and develop the real estate sector in Abu Dhabi, to supervise and control all aspects related to the sector and to coordinate with municipalities in this regard. Further, the DMA’s authority includes implementing the law, issuing licences, controlling escrow accounts and cancelling real estate projects. It seems that the DMA’s workload will be significantly increased given that the DMA also controls all matters related to municipal affairs including other property related issues; however, the law provides that a new structure will be developed to help the DMA in implementing the new law and practising its functions.\r\n\r\n<strong>Licensing and Registration</strong>\r\n\r\nThe types of entities or persons that are allowed to obtain a licence to engage in development-related activities are master developers and sub-developers, brokers and their employees, owners’ association managers, appraisers and surveyors. The law stipulates that no one may engage in any real estate activities before obtaining a licence from the DMA. Further, no one is entitled to claim remuneration and fees if they are not licensed.\r\n\r\nThe law creates two new registers: the real estate development register and the interim real estate register, which will both be kept by DMA. Developers will not be allowed to engage in real estate development unless they have been registered in the real estate development register. Also, all data and documents that relate to licensees, escrow accounts, banks and project marketing will be kept in this register.\r\n\r\nThe law also states that all disposals of off-plan units must be registered in the interim real estate register and any disposal will not be legally binding on the parties to the sale agreement or a third party unless it has been registered in the interim register.\r\n\r\n<strong>Off-plan Sales</strong>\r\n\r\nRegulation of off-plan sales is intended to be one of the cornerstones of the law. This is where a purchaser is granted real estate rights over a unit that is proposed to be built in accordance with floor or complex plans.\r\n\r\nA developer is not allowed to sell units off-plan unless, among other things, it proves that it owns a real estate right over the project land and that it has opened an escrow account for the project. Furthermore, the law includes requirements for opening an escrow account and paying money from the escrow account, and terms and conditions for advertising and marketing an off-plan project. It is therefore essential that developers of off-plan projects take steps to ensure that they are in compliance with the new law as soon as practicable but in any event within 12 months from the date on which the law comes into force.\r\n\r\nThe law prohibits developers from collecting registration fees from investors, and only allows developers to charge administrative fees, which must first be approved by the DMA. This should result in lower costs for buyers. The law also protects investors by requiring developers to register units sold off-plan in the interim real estate register.\r\n\r\nUnsurprisingly, the law will not be well received by developers that fail to complete construction work. The law sets out clear guidelines for the DMA to follow in dealing with developers when there are delays in meeting project milestones, which is to ensure that investors’ rights are protected and legal proceedings are not delayed. In this regard, where there has been a gross breach of the contract by the developer, the investor may be able to terminate the off-plan sale contract. Similarly, the law sets out the consequences of delays in starting construction of the project or failing to complete the construction. In these circumstances, the DMA may be entitled to cancel the project and distribute the amount kept in the escrow account in accordance with the priorities set out in the law. To strike a balance, the DMA may take into account circumstances where the delay has not been caused by a breach of the developer’s obligations, for instance, if a competent authority has confiscated the land on which the project is to be constructed.\r\n\r\n<strong>Real Estate Financing</strong>\r\n\r\nThe law allows units sold off-plan to be mortgaged provided that the loan amount is paid into the relevant escrow account and the loan is allocated for payment of the purchase price. Further, the developer is prohibited from mortgaging the project land or any related real estate right unless it is for the purpose of financing construction of the project and the loan amount is paid into the escrow account. The purchasers of the units must be notified of the mortgage by the developer, who must procure a release of the mortgage over the relevant unit once the purchaser has paid the full purchase price.\r\n\r\nThe mortgage provisions provide for enforcement if a debtor defaults in payment of their instalments. A bank will be able to enforce a mortgage immediately through the summary court after giving notice to the debtor, without having to obtain a court judgment that the debtor owes the debt.\r\n\r\nWe consider that these new provisions on mortgages will help address the issues and impediments that banks currently face in connection with real estate financing, and will encourage them to become more actively engaged in real estate lending.\r\n\r\n<strong>Owners Associations</strong>\r\n\r\nThe new law includes provisions for setting up owners’ associations comprising all the owners of units in multi-unit real estate developments. Owners’ associations will be independent legal entities that hold title to the common parts of developments and will be responsible for the management of those common parts.\r\n\r\nThe establishment of owners’ associations has been challenging in other jurisdictions, such as Dubai. In light of this, the law has given the chairman of the DMA the discretion to issue a resolution to replace the owners’ association with the developer of the real estate project or any other specialised entity to run the common parts of projects until the practicalities of operating owners’ associations are well established.\r\n\r\n<strong>Punishments</strong>\r\n\r\nThe law sets punishments for anyone who violates its provisions. For example, any person who conducts the activities of real estate brokers, owners’ association managers, appraisers and surveyors without having an appropriate licence from the DMA may be punished by imprisonment or a fine of not less than AED 50,000 and not exceeding AED 200,000. Furthermore, any person who conducts real estate development activities in the Emirate of Abu Dhabi, fraudulently markets off-plan units for sale, or does not deposit the required funds into the escrow account may be punished by a fine between AED 100,000 and AED 2,000,000.\r\n\r\nThe law provides for administrative punishments as well. The DMA may cancel licences, for instance, if a licensee violates provisions of the law and the executive regulations or if the licensee is not performing its obligations properly in the opinion of the DMA. Further, a developer may be removed from the development register if, among other things, it fails to commence construction within six months of the date on which it has received approval to sell off-plan units. The DMA can also cancel a real estate project if the developer fails to start building the project within six months from the agreed commencement date or if it fails to complete the project within the agreed timeframe.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIt is important that all parties review and understand their obligations under the law, and that they start preparing for the winds of change that are about to sweep the Abu Dhabi real estate market and stimulate investors’ appetite.\r\n\r\nHowever, while the law itself is a great achievement for Abu Dhabi and the UAE, there remains the question of implementation. Having one authority, the DMA, in charge of developing the Abu Dhabi real estate market is beneficial, but for the changes to be truly effective, it is critical that the DMA is completely ready to regulate and supervise the market.\r\n\r\nIn a positive move, it seems that the DMA is taking the appropriate steps to prepare for the successful implementation of the law, and the real estate market in Abu Dhabi looks ready to enter a bold new phase in its development and maturity.'),
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	(96530,5242,'content_description','Abu Dhabi has recently published its long-awaited new property law aimed at better regulating the real estate market in Abu Dhabi, which will take effect from January 2016. '),
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	(96532,5242,'pageSummary','Abu Dhabi has recently published its long-awaited new property law aimed at better regulating the real estate market in Abu Dhabi, which will take effect from January 2016.'),
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	(96546,5242,'_yoast_wpseo_metadesc','Abu Dhabi has recently published its long-awaited new property law aimed at better regulating the real estate market in Abu Dhabi, which will take effect from January 2016. Al Tamimi & Company discusses some of the main provisions of the new law.'),
	(96547,5243,'content','October 2015\r\n\r\n<hr />\r\n\r\nOnce a copy of the new Dubai Data Law comes to hand, we will provide more detailed comments. In the meantime, we make some limited observations based on information currently available.   <strong> </strong>\r\n\r\n<strong>A new UAE data protection law? </strong>\r\n\r\nNo!  As a preliminary point, it is important to make clear that the Dubai Data Law is not a ‘data protection law’ as such; nor is it a law of federal application across the UAE.\r\n\r\nThe new law is aimed primarily at ensuring that data gathered by Dubai government entities is effectively shared amongst such entities, and with the private sector, so as to maximise opportunities to capture the benefit of such data for the emirate’s residents, visitors and economy.\r\n\r\nSignificantly, the type of data addressed by the law is data that is not confidential to the government, nor personal or sensitive to any specific individual. Essentially, the law obliges Dubai government entities to share such data amongst themselves, and with private sector entities, by setting out rules and mechanisms for doing so.\r\n\r\nIn contrast, a ‘data protection law’ can be generally understood as providing a legal framework for the processing of data relating to identifiable natural persons. Fundamentally, data protection laws are designed to protect an individual’s right to privacy with respect to the collection, storage and use of data relating specifically to that individual. This is not what the Dubai Data Law is about.\r\n\r\n<strong>Why now?</strong>\r\n\r\nThe Dubai Data Law was announced just prior to the commencement of the 35th edition of GITEX, a major information technology trade fair and conference held in Dubai. This year, some of the key themes being explored at GITEX include the ‘internet of everything’ for cities, the use of information technology to connect people, processes, data, and things to improve the liveability of cities and communities, as well as security risks associated with ‘big data’ and the use of cloud technology.\r\n\r\nDespite this, GITEX itself is not the trigger for this announcement. The Dubai government has been considering its approach to ‘open data’ for some time. Last year, Dubai government established a committee charged with developing the emirate’s approach to open data, and establishing a framework for the use of data for ‘smart government’ and the development of Dubai as a ‘smart city’.\r\n\r\nOne aspect of this is the development of a framework for the handling of data in order to enhance public utilities, education, healthcare, transportation, communications, and related services for the benefit of those living in Dubai, as well as for companies and infrastructure operators operating in Dubai.\r\n\r\n<strong>What is open data, and why is it important?</strong>\r\n\r\nOpen data can be broadly understood as data that can be freely used, re-used and redistributed by anyone, uninhibited by technical interoperability issues or the absence of a common approach to data categorisation. Greater knowledge resulting from greater data sources and volumes, and the ability to see new patterns in data, can lead to innovation in products and services, enhanced efficiency and effectiveness, and better ability to measure results.\r\n\r\nThe government sector is the major collector of data in any developed economy, so ensuring that data collected by the government is gathered and made available, internally and externally, in a methodical manner is fundamental to the successful development of a smart city.\r\n\r\nAs noted above, the data relevant to the Dubai Data Law is not data relating to identifiable natural persons. By way of example, the data of interest isn’t the information that shows that my son and daughter are aged 11 and 13, but rather the data that shows that the number of primary school-aged children in my neighbourhood means that a new high school is required as the existing high school won’t be adequate given the forecast growth in student numbers. Similarly, the data of interest isn’t the information that shows I recently had my local pharmacy fulfil a prescription for antibiotics, but rather the data that shows that a certain antibiotic is in high demand at the moment and this could indicate that further supplies need to be delivered or that the antibiotic is being over-prescribed.\r\n\r\n<strong>What about a new data protection law?</strong>\r\n\r\nDevelopments in respect of open data, and the passing of the Dubai Data Law, bring to mind a number of related queries. The most obvious one is, while data that doesn’t relate to identifiable natural persons is now the subject of a law, what about personal data that does relate to identifiable natural persons? Can we expect legislation that sets-out the requirements with which any entity processing personal information relating to identifiable people needs to comply?\r\n\r\nWhile we don’t have any answers to these particular questions, we do expect that the Dubai Data Law will provide some useful guidance in helping to identify what is, and what is not, ‘personal’ data. To the extent that the Dubai Data Law is intended to enable non-personal data to be shared, the law will need to explain exactly what makes data suitable for sharing. In doing so, it will be necessary to provide a framework for categorising whether data is personal or sensitive. Indirectly, this is likely to provide some guidance when it comes to analysing data protection related issues in this jurisdiction.\r\n\r\n<em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on data and data protection related matters. For further information, please contact Nick O’Connell – n.oconnell@tamimi.com</em>'),
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	(96551,5243,'content_description','Recent UAE media reports of a ‘new data law’ have attracted a lot of attention, including from businesses concerned at how such a law may impact on their activities. '),
	(96552,5243,'_content_description','field_59b641c07f473'),
	(96553,5243,'pageSummary','Recent UAE media reports of a ‘new data law’ have attracted a lot of attention, including from businesses concerned at how such a law may impact on their activities.'),
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	(96555,5243,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/october-5/open-data-in-dubai-a-new-uae-data-protection-law.html'),
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	(96561,5243,'_yoast_wpseo_metadesc','Recent UAE media reports of a ‘new data law’ have attracted a lot of attention, including from businesses concerned at how such a law may impact on their activities.'),
	(96562,5244,'content','October 2015\r\n\r\n<hr />\r\n\r\n...while expatriates could also be deported from the UAE under “a new Federal law”.\r\n\r\nThe news report related to a decision of the UAE’s Federal Supreme Court, which overturned two lower court sentences fining a man AED3,000 after he was convicted of swearing at another on WhatsApp.  The Court reportedly supported an appeal by the public prosecutor who argued that the sentences were too lenient and did not conform to the new laws that include a penalty of AED250,000 or imprisonment for those involved in online offences.\r\n\r\nPlease be clear.  We did not represent any of the parties to this Court case.  While we do not have access to all the relevant facts or the Court’s judgment, the commentary set out in this article is based on what was reported in the media and our experience and knowledge of the relevant laws.\r\n\r\nThe first point is that the law the newspaper article appears to be referring to is not really new.  Federal Decree by Law No. 5 of 2012 On Combating Cyber Crimes (“Cyber Crimes Law”) was issued in November 2012.  The Cyber Crimes Law replaced the earlier Federal Law No.1 of 2006 concerning combating information technology crimes.  The Cyber Crimes Law may have been “new” in the circumstances reported because it was possibly the first time the Federal Supreme Court had to consider the relevant Article of  the Cyber Crimes Law since it was issued.\r\n\r\nThe Article of the Cyber Crimes Law that seems most applicable to the described facts is Article 20 which makes it a criminal offence to insult a third party using an Information Network or an Information Technology Tool.\r\n\r\nAn Information Network or an Information Technology Tool are defined terms in the Cyber Crimes Law and clearly would include sending insults by SMS texts, instant messaging, social media or email.\r\n\r\nThe full English translation of Article 20 is as follows:\r\n\r\n<em>Without prejudice to the provisions of slander crime prescribed in Islamic Sharia, any person who insults a third party or has attributed to him an incident that may make him subject to punishment or contempt by a third party, by using an Information Network or an Information Technology Tool shall be punished by imprisonment and a fine not less than (AED250,000) and not exceeding (AED500,000) or by any of these punishments.</em>\r\n\r\n<em>If the insult or slander took place against a public employee or a person assigned to a public service by occasion or because of performing his work this shall be considered an aggravating circumstance of the crime.</em>\r\n\r\nThe offence here is not simply the act of swearing online, it is insulting a third party or attributing to that third party an incident that may make that third party subject to punishment or contempt.\r\n\r\nPreviously, under Federal Law No.1 of 2006, it was an offence to use the internet or a technology device to threaten another.  The punishment was imprisonment for up to 2 years and a fine not exceeding AED50,000 or either.  If the threat caused defamation the penalty was imprisonment for up to 10 years.  Clearly the financial penalties are significantly higher under the Cyber Crimes Law.\r\n\r\nIn addition to the penalties under Article 20 of the Cyber Crimes Law, the Court must deport a foreigner convicted for committing an offence under that Article after executing the punishment prescribed in Article 20 (see Article 42 of the Cyber Crimes Law).\r\n\r\nSanctions for online abuse in the UAE are not limited to the Cyber Crimes Law.  For example, in August 2015, the UAE enacted Federal Decree by Law No. 2 of 2015 Concerning Combating Discrimination and Hatred.  That new law is discussed in more detail in another article in the September issue of Law Update.\r\n\r\nArticle 20 of the Cyber Crimes Law is really an online trolling or cyber bullying law.  As such, it should be properly seen as part of the UAE’s leading e-security initiatives, rather than a perceived curb on freedom of speech.\r\n\r\nThe way we interact with each other online has changed at a pace that most legal systems around the world have struggled to keep up with.  In the absence of a specific criminal offence that makes cyber bullying illegal, law enforcement agencies have to resort to prosecuting trolls for offences under legislation that was not enacted to properly cover such circumstances.  This means that victims of cyber bullying often have inadequate legal protection.\r\n\r\nAlthough it is  usually a standard term  of the “acceptable use”  policies of social media, apps and telecommunication services that  those services are not  to be used to abuse, harm, harass, degrade, or intimidate an individual, enforcing a breach of those terms by taking civil proceedings can be impractical.\r\n\r\nA 2012 study of 4,600 children in the UK (where cyber bullying is not a specific criminal offence) found that 28 percent of children aged between 11 and 16 had experienced bullying on the internet or via a mobile phone.  A worrying 11 per cent of those bullied said it made them depressed and 3 percent attempted suicide.\r\n\r\nThe penalties under the Cyber Crimes Law are not inconsistent with similar laws that have been enacted other countries.   At the time of writing this article New Zealand was the most recent country to make online trolling and cyber bullying a criminal offence.  Under the Harmful Digital Communications Act that came into force in July of this year anyone convicted of “causing harm by posting digital communications” faces two years in prison and a NZ$50,000 fine (approximately AED116,000).  The New Zealand law passed through that country’s parliament with an overwhelming 116 to 5 majority.\r\n\r\nIt is unfortunate that it seems that an advanced law to tackle the internet age problem of trolling or cyber bullying, which has been linked to the suicides of vulnerable young people worldwide, has been reduced to somewhat misleading headlines like “swearing on WhatsApp in the UAE could carry a fine”.'),
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	(96566,5244,'content_description','A newspaper article published in the UAE in June this year (which was picked up by various international news sites) reported that people swearing online at others could be fined AED250,000 and jailed...'),
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	(96568,5244,'pageSummary','A newspaper article published in the UAE in June this year (which was picked up by various international news sites) reported that people swearing online at others could be fined AED250,000 and jailed...'),
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	(96570,5244,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/october-5/trolling-the-online-abuse-law.html'),
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	(96576,5244,'_yoast_wpseo_metadesc','A newspaper article published in the UAE in June this year (which was picked up by various international news sites) reported that people swearing online at others could be fined AED250,000 and jailed while expatriates could also be deported from the UAE under “a new Federal law”.'),
	(96577,5245,'content','October 2015\r\n\r\n<hr />\r\n\r\nThe legal landscape for content in the UAE, as with many territories, is complex. Each country has its own priorities in balancing the right of speech against the right to privacy and respect.\r\n\r\nIn this article we will review some of the UAE legislation that applies to online content and the penalties that may arise, focusing particularly on photographs.\r\n\r\nThere has been much written about the use of photographs in social media, most of which has left the public with more questions.  Is it possible for a person to post a photograph of another person without their consent?  How should that consent be obtained? If the person knows that the photograph is being taken, is that enough? What if they know it is being taken and that it is for the social pages of a magazine?  Can you then publish?\r\n\r\nTo assist with understanding the law, we will look at the scenario where a person has taken a picture of a woman in a club in the company of a man and has published that picture. There are several laws that could apply to this scenario.\r\n\r\n<strong>Publications Law</strong>\r\n\r\nFederal Law No 15 for 1980 Concerning Publications and Publishing (“Publications Law”) contains the following Article (emphasis added by author):\r\n<ul>\r\n 	<li>No news, pictures, comments about an individuals’ private life shall be published if their publication is meant to disgrace such individuals.</li>\r\n</ul>\r\nThis law clearly is intended to protect a person from malicious use of an image; simply posting an image with no intent of causing harm to the person in the photograph will not be considered an infringing act.  So, the publishing of a photograph of a woman arm in arm with a man at a Dubai club will not infringe this law - unless it can be shown that the person who posted it knew that the woman was (for example) of a religious or social background that would not have ordinarily permitted her to be in a club. Clearly, with that knowledge, the publication was intended to disgrace her in front of people that knew her.\r\n\r\nNote that the Publications Law is, as one would expect, designed to control the conduct of entities such as magazines, newspaper publishers, cinemas and broadcasters.  It was written in 1980, before the advent of the internet.  We have not yet seen it applied in practice to online activities, but we do believe that this is entirely within its scope.\r\n\r\n<strong>The UAE Penal Code</strong>\r\n\r\nThe relevant article in the Publications Law is similar in concept to Article 138 of the UAE Penal Code (again, emphasis added):\r\n<ul>\r\n 	<li>A punishment of confinement and fine shall be inflicted on any person who attacks the sanctity of an individuals’ private or family life by committing any of the following acts in other than the legally permitted cases or without the victim’s consent:</li>\r\n 	<li>Eavesdropping or recording or transmitting by any system of whatever kind any conversation held at a particular place or via the phone or any other set.</li>\r\n 	<li>Picking up or transmitting by any system of whatever kind a person’s picture at a particular place.</li>\r\n</ul>\r\nIf the acts referred to in the above two cases occur during a meeting within the hearing or sight of the person attending, their consent shall be required.\r\n\r\nThe same punishment shall be inflicted on any person who publishes through any means of publicity news, pictures or comments pertaining to the secrets of people’s private or familial lives even if the same is true.\r\n\r\nUnder the UAE Penal Code therefore, it is a crime to publish a picture that invades a person’s privacy or family life.  The fact that the matter is true is not a defence.  Taking our example from above, would the taking of this image of a woman with a male friend in a club be an issue?  On the surface, the answer would be no.  But the woman’s personal circumstances could readily change that answer.  If she was married but shown with another male friend, this might change the circumstances of the publication considerably.\r\n\r\n<strong>Cybercrimes Law</strong>\r\n\r\nIn both the laws noted above, it is clear that the publication must be done with the desire to reveal secrets or somehow tarnish the reputation of the person in question.\r\n\r\nThe law that is most often cited when it comes to activities online is Federal Law No 5 of 2012 On Combating Cybercrimes (“Cybercrimes Law”).  Article 21 contains some familiar concepts:\r\n\r\nShall be punished by imprisonment of a period of at least six months and a fine not less than one hundred and fifty thousand dirhams and not in excess of five hundred thousand dirhams or either of these two penalties whoever uses a computer network or any electronic information system or any information technology means for the invasion of privacy of another person in other than the cases allowed by the law and by any of the following ways:\r\n<ul>\r\n 	<li>Eavesdropping, interception, recording, transferring, transmitting or disclosure of conversations or communications, or audio or visual materials.</li>\r\n 	<li>Photographing others or creating, transferring, disclosing, copying or saving electronic photos.</li>\r\n 	<li>Publishing news, electronic photos or photographs, scenes, comments, statements or information even if true and correct.</li>\r\n</ul>\r\nThe themes are familiar. The subject’s privacy must be invaded for the crime to have been committed.  It is clear that disclosure is enough, but so is copying or saving – so you do not have to post the photograph on social media to find yourself infringing this law. You can simply have the image in your hard drive.  Interestingly, the concept of seeking consent is absent from this Article. But the inclusion of the words “other than the cases allowed by law” does appear to intend that a legal use under another law (for example, with consent in accordance with the Penal Code) will exempt the publication from the operation of this provision.\r\n\r\nDoes this mean that electronic disclosure of the photograph of our woman in the club may still be a problem under the Cybercrimes Law even if we were to have secured her consent to the publication?  At this stage, the courts have not considered this argument so we await clarification.\r\n\r\nAssuming the matter of consent to be decided by the courts (one way or another), we still must consider if we have invaded the privacy of this woman by taking and then publishing the photograph. It may be the case the court considers that her privacy has been invaded because of the subsequent act of disseminating the photograph – that is, the taking of the photograph was not an invasion, but the publication was an invasion of her privacy. Again, the outcome of any court action may rest entirely on specific facts about the woman and her life and these facts may not always be known when the photograph is being taken. In addition, can we rely on the fact that, for example, she knew that the photographer was from a well known local magazine and that the photograph would inevitably be published? Can the fact that she permitted a magazine to take her photograph be evidence that even she did not believe that her privacy was being compromised at that moment?\r\n\r\n<strong>Copyright Law</strong>\r\n\r\nOne further law should be considered, and it is interesting because under this law, action can be taken without having to involve the police authorities.  A person can simply lodge a claim in the Dubai courts to seek damages. Federal Law No. 7 of 2002 Pertaining to Copyrights and Neighbouring Rights (“Copyright Law”) contains the following provision in Article 43 (emphasis added).\r\n\r\nAny person taking a photograph of another, in any manner, may not maintain, exhibit, publish or distribute the original or copies thereof, without permission from the person appearing in the photograph, unless otherwise agreed upon. Nevertheless, the photograph may be published:\r\n<ul>\r\n 	<li>In incidents that have publicly taken place;</li>\r\n 	<li>If the photograph is related to official or public characters; or national or international celebrities; or</li>\r\n 	<li>If the competent public authorities have permitted such publication for the purpose of public welfare; with the proviso that the exhibition or circulation of such photograph, is not prejudicial to the status of the person appearing in the photograph.</li>\r\n</ul>\r\nOnce again, in this law, we see the inclusion of the concept of consent – publication requires the consent of the subject unless taken under certain circumstances.  Note particularly that, if the “incidents” (presumably those depicted in the image) took place “publicly” then publication can take place without the need for consent. So if we once again look at the woman in the club, she may struggle to stop publication using this law because the incident took place publicly. If the photograph was taken at a small private party, then she might successfully stop the publication but if it is at a ticketed event where any person could purchase tickets, then she may face difficulties.  Note also that this law does not stipulate that the consent must be in writing so again, the circumstances regarding the taking of the image will be important.  If she is smiling and waving at the camera, it might be difficult to convince a judge that she was not consenting to the photograph.  Interestingly, under sub-article (ii) of this article, if she is a famous celebrity then she cannot stop the publication of the photograph, no matter where it is taken.\r\n\r\n<strong>Summary</strong>\r\n\r\nThese laws have been part of life in the UAE for many years. Technology has made their operation slightly more interesting but fundamentally things have not altered. Our advice is to be pragmatic at all times. If you are the sort of person that likes to take surprise photographs of people and circulate them on Instagram, then you need to be careful about the friends that you choose to photograph. If someone does post images of you on-ine, it is likely that they are unaware of your aversion to public images – it is fastest and easiest to send them a message and ask for it to be taken down.\r\n\r\nThe penalties for infringing these laws are high (see the reference chart) because they were intended to be implemented in circumstances where a person could suffer personal damage if photographs were used inappropriately. Personal privacy and community reputation are highly esteemed and protected in the UAE. Budding photographers as well as professionals are advised to act judiciously.\r\n<table class=\"MsoNormalTable\" border=\"0\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td width=\"693\">\r\n<p class=\"MsoNormal\"><strong>Reference Chart</strong></p>\r\nThis reference chart is intended as a guide only – it allows you to see the slight differences between the four laws that could apply to the use of a photograph on-line.\r\n<div>\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"183\"></td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\"><strong><em>Publications Law</em></strong></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\"><strong><em>UAE Penal Code</em></strong></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\"><strong><em>Cybercrimes Law</em></strong></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\"><strong><em>Copyright Law</em></strong></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"183\">\r\n<p class=\"MsoNormal\"><em>Is consent required before publication?</em></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Not mentioned, but refers to operation ‘of the law’ which will impact on interpretation</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"183\">\r\n<p class=\"MsoNormal\"><em>Does the photograph have to breach privacy in order to infringe?</em></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes: “about an individual’s private life”</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes: “attacks the sanctity of an individual’s private or family life”</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes: “invasion of the privacy of another person”</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">No, the use image is enough</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"183\">\r\n<p class=\"MsoNormal\"><em>Does it matter where the photograph is taken?</em></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">No</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">No</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">No</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Must not be ‘public’</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"183\">\r\n<p class=\"MsoNormal\"><em>Does there have to be intention or a malicious act?</em></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes, intention is required</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Yes, intention is required</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Not relevant</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Not relevant but may be important in determining matter</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"183\">\r\n<p class=\"MsoNormal\"><em>Is truth material to the matter?</em></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Not mentioned</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Law applies even if the matter is true</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Not mentioned</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Not mentioned</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"183\">\r\n<p class=\"MsoNormal\"><em>Penalties</em></p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Prison for not less than 1 month and not more than 6 months.</p>\r\n<p class=\"MsoNormal\">Fine between AED 1,000 and AED 5,000</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Prison and a fine</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Prison for at least six months and a fine between AED 150,000 up to AED 500,000.</p>\r\n<p class=\"MsoNormal\">Note that Art. 42 allows a<strong> </strong>court to deport a foreigner who is convicted of any crime under this law.</p>\r\n</td>\r\n<td valign=\"top\" width=\"122\">\r\n<p class=\"MsoNormal\">Civil claim would be lodged, seeking to have the photograph removed and possible damages.</p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n</div>\r\n<address><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on content matters both on-line and in traditional media, acting for producers, creative agencies and broadcasters. For further information, please contact Fiona Robertson (f.robertson@tamimi.com)</em></address>\r\n<div></div>\r\n<p class=\"MsoNormal\"><strong> </strong></p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n&nbsp;'),
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	(96583,5245,'pageSummary','Recent cases involving the general public’s use of social media has turned a spotlight on the laws relating to content regulation in the UAE.'),
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	(96591,5245,'_yoast_wpseo_metadesc','Recent cases involving the general public’s use of social media has turned a spotlight on the laws relating to content regulation in the UAE. Al Tamimi & Company review some of the UAE legislation that applies to online content and the penalties that may arise, focusing particularly on photographs.'),
	(96592,5246,'content','October 2015\r\n\r\n<hr />\r\n\r\nBankability is determined on a case-by-case basis as each project is different, but there are certain benchmarks that generally need to be satisfied for a construction contract to be bankable. This article sets out some generic but key requirements that owners should ensure their construction contract possess, and which lenders should look for when deciding to lend, to ensure that the construction contract properly protects their investment.\r\n\r\n<strong>Identity of the Contractor</strong>\r\n\r\nBe confident that the contractor has adequate financial and technical resources to fulfil its contractual obligations and to meet any liability under the construction contract if the project encounters difficulties.\r\n\r\nAlthough the issue of liability is partially addressed by insurance and performance security (discussed below), this is not enough and you should still be satisfied of the contractor’s financial position and the robustness of the contractor’s balance sheet.  If the contractor is a subsidiary, you may consider requiring a parent company guarantee to cover any liability that it may incur.\r\n\r\nA parent company guarantee may also extend to guaranteeing the contractor’s performance if the developer has concerns over the ability of the contractor to deliver the project - this is particularly relevant if a SPV has been incorporated for the project.\r\n\r\n<strong>Form of Procurement</strong>\r\n\r\nAlthough there are various different ways of procuring a construction project, funders typically favour a ‘turnkey’ solution under which the contractor takes full responsibility for the design, construction, testing and completion of the project.  This is a departure from the ‘construct only’ procurement approach which is popular in the Middle East.\r\n\r\nA design and build structure provides a ‘single point responsibility’, meaning that the contractor will be unable to absolve itself from responsibility on the basis that a third party was liable for the breach and this point makes the identity (and creditworthiness) of the contractor all the more critical.\r\n\r\n<strong>Construction Issues</strong>\r\n\r\nIf you are to use design and build the expected project that you want to be delivered is detailed in a brief, more commonly known as the ‘Employer’s Requirements’. You will need to ensure that the Employer Requirements contain a clear output specification and the contractor should be responsible for satisfying its requirements.\r\n\r\nAdditionally, the contractor should be required to provide express warranties regarding the design and construction of the project.  For example, the contractor should warrant that the project will be designed in accordance with established principles and the law and that it will be fit for its intended purpose. Additionally, all construction works should be performed in accordance with best industry practices.\r\n\r\n<strong>Payment Regime </strong>\r\n\r\nThe Contractor’s remuneration requirements must be subject to a clear payment regime. Payments upon the completion of designated milestones are usually preferred by funders as these provide the greatest comfort that the contractor has actually satisfactorily performed the works for which payment is claimed.\r\n\r\nA frequently used alternative is for the contractor to be paid on an interim (i.e. monthly) basis against the actual (and substantiated) progress achieved.\r\n\r\nRegardless of the payment mechanism, the funder will generally require that a payment is only made if it is approved by a certifier appointed or approved by the funder. This may be an engineer, architect, project manager, quantity surveyor or other appropriate professional. The construction contract needs to make provision for this (including, from a practical perspective, ensuring that the funder’s certifier has access to the site).\r\n\r\nAny advance payment which is made to assist the contractor with its mobilisation needs to be secured by an advance payment guarantee.\r\n\r\n<strong>Contract Price </strong>\r\n\r\nCertainty of the contract price is essential and the contract price should be for a fixed lump sum amount, which may only increase in narrowly defined circumstances.  These may be restricted to variations (which may require the funder’s consent) and acts of prevention by the Employer.\r\n\r\n<strong>Completion </strong>\r\n\r\nThe requirements for the project to be taken over needs to be clearly set out (particularly the tests on completion that need to be satisfied) and funders will usually only permit the works to be taken over if the funder’s certifier agrees that the works have indeed been completed in accordance with the contract.\r\n\r\n<strong>Time Completion</strong>\r\n\r\nThe project will only become a revenue generating asset once it is complete so it is vital that the construction contract has a fixed time for completion.\r\n\r\nAs with the contract price, the contractor should only be entitled to an extension of time in a limited number of clearly defined situations (i.e. the contractor may be required to accept risks which are beyond its control such as changes in law or unforeseen ground conditions) but it is noteworthy that contractors will price additional risk that they are required to assume.\r\n\r\nIt is important that a late completion penalty be payable if the project fails to achieve completion by the agreed completion date. The amount and rate of the penalty needs to be carefully considered and should cover financing costs as well as any other loss that the developer is likely to incur due to the delay (although it is customary for an overall cap of 10% of the contract price to apply).\r\n\r\nDepending on the nature of the project, performance liquidated damages may also be required if the required output specification is not achieved.  An event of termination will usually arise if certain minimum output thresholds are not achieved by a longstop date.\r\n\r\n<strong>Security </strong>\r\n\r\nOn demand performance bonds and retentions (which may take the form of a retention bond) will typically be required, and these may be assigned to the funder.\r\n\r\nAdditionally, the funder will typically require a collateral warranty from the contractor, which enables the funder to enforce the construction contract against the contractor in the event of any breach and to provide the funder with step-in rights.\r\n\r\nStep-in rights are important as they allow the funder to elect to remedy any breach of the construction contract by the developer (typically a failure to make payment), preventing the contractor from suspending or terminating the contract.\r\n\r\n<strong>Insurance</strong>\r\n\r\nThe construction contract should include all customary insurance requirements (which should be approved by an experienced insurance broker). The usual insurance policies include professional indemnity insurance (if the contractor has design responsibility), contractor’s all risk insurance, public liability insurance and workers’ compensation insurance.\r\n\r\nThe developer and the funder would typically seek to be named as the beneficiary under the insurance policies, or as a class of insured, while the insurers should be required to waive their rights of subrogation to ensure that recoverability under the insurance policies is not compromised.\r\n\r\n<strong>Liability</strong>\r\n\r\nIdeally from the developer’s and the funder’s perspective, the construction contract would not be subject any caps on or exclusions of liability. However, contractors usually insist that their total liability under the construction contract is limited.\r\n\r\nNotwithstanding the ability under some jurisdictions for contractual caps on liability to be opened up and reassessed by a court or arbitral tribunal, funders normally should ensure that that the cap on liability is not less than the amount they have injected into the project and that no exclusions of categories of loss (such as the exclusion indirect or consequently losses) unintentionally cut across the funder’s ability to recover from the contractor.\r\n\r\nIt should be clear if the limit includes or excludes insurance proceeds and that the limit does not apply to certain loses (for example a loss due to fraud or wilful and reckless act of the contractor).\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThere are many risks in undertaking a construction project.  Funders should carefully review all construction contracts that they are lending against to minimise their exposure and to ensure that they know the risk that they are actually taking on when lending.\r\n\r\nEqually, developers should take care and ensure that the construction contract provides adequate protection.\r\n\r\nIt is difficult to renegotiate a contract if a project subsequently requires funding (as can be the case) so it is best to ensure that the contract is bankable from the outset.\r\n<div></div>'),
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	(93228,5063,'_yoast_wpseo_metadesc','Announced in June 2013, Dubai Design District (“d3”) is the latest addition to Dubai’s free zone jurisdictions.'),
	(93229,5064,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The New Law added a new Article 391 (which is referred to as ‘Article 391 (repeated) because it exists alongside the original Article 391 that remains in force)<ins cite=\"mailto:saada\" datetime=\"2015-01-06T14:35\">.</ins> Saad Al Doseri, Associate in the Bahrain office of Al Tamimi &amp; Company, examines the changes and their potential impact.</p>\r\n<p class=\"MsoNormal\"><strong>Introduction</strong></p>\r\n<p class=\"MsoNormal\">The well established financial services regulatory environment in the Kingdom of Bahrain includes  a framework of rules that stimulates business activity and investor confidence in Bahrain’s financial services sector. The laws in Bahrain attempt to provide an efficient and protective regulatory  framework for the financial services sector which is closely supervised by the Central Bank of Bahrain (“<strong>CBB</strong>”).  All of this has enhanced the reputation of Bahrain’s financial services sector and has instilled confidence in its regulatory environment.</p>\r\n<p class=\"MsoNormal\">Article 40 of the Central Bank of Bahrain and Financial Institutions Law No. 64/2006 (“CBB Law”) prohibits any person from carrying out a regulated service in Bahrain unless licensed and approved by the CBB.  Article 43 of the CBB Law states that any contracts concluded providing unlicensed financial services are void. In our experience, Bahrain courts have witnessed a number of cases filed by some of those affected and has made awards to claimants allowing them to recover their money on the basis of Article 43.</p>\r\n<p class=\"MsoNormal\">The New Law prohibits receiving third party funds and using such funds for investment or management or some other purpose without being properly licensed and further prohibits such unlicensed investments as well as marketing the said activities. The New Law has therefore made it a specific crime for the commission of such acts and strengthens the legal protection of the financial services sector.</p>\r\n<p class=\"MsoNormal\">The New Law also makes it a criminal offence to carry out certain activities, which were previously not specified and imposes severe criminal penalties for such offences. This is in addition to the existing criminal liability for carrying out unlicensed financial services under Article 161 of the CBB Law.</p>\r\n<p class=\"MsoNormal\"><strong>What are the changes?</strong><strong> </strong></p>\r\nThe New Law criminalizes the following acts and imposes certain penalties:\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"207\"><strong>Punishment</strong></td>\r\n<td valign=\"top\" width=\"207\"><strong>Crimes under the New Law </strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"207\">Both or either of imprisonment and a fine not less than one hundred thousand Bahraini Dinars and not exceeding twice the amount of monies collected or received or owed from said monies.\r\n\r\nThe offender shall be ordered to refund the monies to the owner and the proceeds of crime shall be confiscated.</td>\r\n<td valign=\"top\" width=\"207\"> Collecting monies from third parties for the purpose of investing, managing, or using said monies without obtaining a license from the Central Bank of Bahrain or other competent administrative authorities specialized in activities of collecting and receiving said monies.</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"207\">Both or either of imprisonment and a fine not exceeding fifty thousand Bahraini Dinars.</td>\r\n<td valign=\"top\" width=\"207\">Collecting or receiving monies, in the capacity of an agent or broker, or delegate, or any other capacity, from third parties for the benefit of a party that is not licensed to practice activities such as collecting and receiving monies with the said party’s knowledge.</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"207\">Both or either of imprisonment and a fine not exceeding one hundred thousand Bahraini Dinars.</td>\r\n<td valign=\"top\" width=\"207\">Sending invitations to the public, by any means of announcement, to collect or receive monies for the purpose of investing or managing or using such monies, without obtaining a license from the CBB or relevant authorities.</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"MsoNormal\"><strong>Leeway to offenders</strong></p>\r\nThe New Law provides a route for offenders to escape the heavy penalties described above by encouraging early settlements. It allows the offender to receive lesser or, in some cases, no punishment for committing the criminal offences under the New Law provided that  the offender returns the funds collected or received or owed.\r\n\r\nThe New Law sets out the basis upon which an offender can take advantage of such relief. Where the offender performs the required acts for relief under the New Law at the <em>investigation stage</em>, the criminal proceedings will be suspended. However, if the offender performs the required action for relief <em>during prosecution and before court hearing,</em> while the court will exempt the offender from any punishment, the crime  will remain part of the offender’s criminal record. If the offender returns the funds <em>after the sentence</em> has been issued, the execution judge may, upon the offender’s request, order the suspension of execution of the sentence. The crime will remain part of the offender’s criminal record in such a case.\r\n\r\nIt should be noted that before the New Law was issued, Article 161 of the CBB Law also criminalized the said acts indirectly and imposed a fine not exceeding one million Bahraini Dinars without imprisonment. Article 161 provides that any person who contravenes the provisions of Articles 40 and 41 of the CBB Law in relation to providing unlicensed financial services and activities shall be liable to the said fine.\r\n\r\nAccordingly, offenders of the New Law automatically violate Article 161 at the same time. This raises the question of which law will be applied by the court. According to Article 65 of the Penal Code, if an act triggers more than one criminal offence, the court is under an obligation to apply the strictest punishment. In our case, the New Law provides for a stricter punishment as it includes a punishment which deprives the offender from his personal liberty in addition to fines.\r\n\r\n&nbsp;\r\n\r\n<strong>Practical</strong> <strong>Implications</strong>\r\n\r\nThe most obvious implication of the newly introduced criminal offences is that punishment now includes the possibility of imprisonment for offenders but offers offenders the opportunity to avoid such punishment. This is expected to operate as a deterrent which is aimed to achieve effective law enforcement in the financial services market.\r\n\r\nThe New Law also provides more comfort to investors and boosts confidence in Bahrain’s financial services sector. The New Law is focused on achieving restitution for aggrieved investors, whereby it ensures that – even in the event that the offender is relieved of criminal conviction or sentence – the investors are placed in the same position they were in before the offence was committed.\r\n\r\nMore importantly, when the possibility of criminal liability is attached to dealings within the financial services market, it is essential that such liability does not form an obstacle for directors of corporate entities when performing their duties.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nAs a response to the need for transparency, the New Law provides a platform for closer financial stability in the market. The New Law witnesses the introduction of a criminal liability alongside the previous civil liability whereby any agreements to provide unlicensed financial services are deemed void.  At first glance, the New Law appears to be coming down on offenders with an iron fist imposing heavy criminal liability; however, upon examination a leniency for offenders to escape liability is apparent. Returning the funds collected, received or owed after the sentence will enable an execution judge, upon the offender’s request, to suspend the execution of the sentence.'),
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	(102438,5569,'pageSummary','The Dubai International Financial Centre (DIFC) and the Emirate of Ras Al Khaimah have recently announced a set of agreements and memoranda of understanding with the aim of enhancing the reputation and usefulness of both places as developed jurisdictions and preferred business destinations.'),
	(102439,5569,'_pageSummary','field_59e59b307dec8'),
	(102440,5569,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-15/february-9/ras-al-khaimah-and-the-difc-courts-new-agreements-to-forge-an-ever-closer-partnership.html'),
	(102441,5569,'_currentURL','field_59d35123ab1e7'),
	(102442,5569,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','569'),
	(102443,5569,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(102444,5569,'lawUpdateArticleWriters_1_lawUpdateArticleWriter',''),
	(102445,5569,'_lawUpdateArticleWriters_1_lawUpdateArticleWriter','field_59da2ac06b065'),
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	(102447,5569,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(102448,5569,'_yoast_wpseo_metadesc','The Dubai International Financial Centre (DIFC) and the Emirate of Ras Al Khaimah have recently announced a set of agreements and memoranda of understanding with the aim of enhancing the reputation and usefulness of both places as developed jurisdictions and preferred business destinations.'),
	(102449,5570,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">Ras al Khaimah, or RAK as it is known locally, is well versed in international business and trade. It is reported that at the start of the 20th Century, RAK’s pearling industry reached international export levels of around GBP 1.7 million worth of pearls and employed in excess of 22,000 people. The abandoned “ghost” pearling village in Al Jeezera Al Hamra is evidence of this once thriving industry. Now one of RAK’s five seaports, Al Jeezera Port, is located near to this old village, conveniently near Free Zone warehousing and trading areas.</p>\r\n<p class=\"p1\">Although RAK does not have the enviable quantity of hydrocarbons which has made Abu Dhabi the Emirate it is, RAK has significant deposits of limestone and clay due to the Hajar Mountain range. This has created a thriving industry in the sale of cement, aggregate and ceramics with the Union Cement Company, RAK Rock and the world-renowned RAK Ceramics. Other examples of its multinationals include Julphar-Gulf Pharmaceutical Industries, the largest generic pharmaceutical manufacturer in the MENA region, and Ashok Leyland, the fourth largest manufacturer of buses in the world and the 16th largest manufacturer of trucks globally. These industries are the backbone of RAK’s commercial development.</p>\r\n<p class=\"p1\">RAK also has a large expanse of coastline, attracting increasing visitor numbers to its many hotels in 2016. The tourism industry is expected to continue to expand with further development of hotels, including a water-front development project by Emaar Properties on the man-made Al Marjan Island, and by the promotion of the region as an adventure sports paradise, with the World’s Longest Zipline and Via Ferrata attractions being developed in the Mountain areas.</p>\r\n<p class=\"p1\">Foreign investment into the region is attracted by the three dedicated free zones in RAK, namely the RAK Free Trade Zone (RAK FTZ), the RAK Investment Authority (RAKIA) and RAK Maritime City (RMC), all of which include a number of parks including a Business Park, Industrial Park, Technology Park and Academic Zone. The free zones offer 100% foreign ownership and tax exemption, and benefit from user friendly regulations and easy access to Dubai and RAK International Airports and RAK’s Sea Ports.</p>\r\n<p class=\"p1\">In line with the World Expo in Dubai in 2020 and general international standards, RAK is encouraging sustainable investment and development, and RAK FTZ encourages environmental responsibility and has implemented a number of schemes to promote energy-saving, recycling and health and safety. Moreover, it is understood that there are projects seeking to develop a large solar power and desalination plant in a bid to reduce reliance on natural gas.</p>\r\n<p class=\"p1\">The independent government body of the RAK Investment and Development Office (the IDO) is responsible for implementing policies and managing RAK’s investments and opportunities. RAK has a sovereign “A” stable rating (Standard &amp; Poor’s ) which all provides a solid foundation for continuing development and commercial growth.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>DIFC collaboration </strong></span></p>\r\n<p class=\"p1\">As a further new development, it has been recently announced that there will be collaboration between the government and the judiciary in RAK and the Dubai International Financial Centre (DIFC).</p>\r\n<p class=\"p1\">The DIFC is a free zone in Dubai which offers an established common law legal system, based on the laws of England and Wales, which is a popular alternative for the international business community in the UAE to resolve disputes. In addition, the DIFC offers an option for non-Muslims to enter into a common law Will.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The agreements entered into by the DIFC and the RAK government are designed, amongst other things, to provide confidence that the RAK Courts shall recognise Court Orders and Arbitration Awards issued by and within the DIFC. This collaboration is seen to promote economic growth by offering foreign investors and residents the option of a familiar international legal system. </span></p>\r\n<p class=\"p2\"><strong>One-day small claims Court</strong></p>\r\n<p class=\"p1\">In addition to the Small Claims Tribunal offered in the DIFC, RAK has established its own fast-track system under RAK Resolution No 38 of 2016, which has created a specific one-day RAK Court which has been set up exclusively to review civil and commercial cases and issue the ruling on the same day as the cases are lodged. Online applications are also available. This new court will have jurisdiction to adjudicate on cases whose value does not exceed AED 20,000.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion </strong></span></p>\r\n<p class=\"p1\">Since Ras Al Khaimah’s economy is not reliant on oil, the current low oil prices appear to have little direct adverse impact on the general economy in RAK and, coupled with its solid manufacturing base and demand for its aggregate, RAK’s economy is likely to continue to grow and strengthen.</p>\r\n<p class=\"p1\">Diversification is paramount to any stable economy and the current focus of the RAK government appears to be to further diversify into health, education and tourism sectors. The incentives being offered by the Free Zones and the recent important developments of its judicial system will continue to attract foreign players into the region.</p>\r\n<p class=\"p1\"><em>Ammar Haykal (a.haykal@tamimi.com) is Head of the Office in Ras Al Khaimah and Adam Powell (a.powell@tamimi.com) is Head of Corporate Commercial of the Ras Al Khaimah office of Al Tamimi &amp; Company’. </em></p>'),
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	(102361,5566,'content_description','In Property Appeal No. 167 of 2016 (issued on 12 October 2016) the Dubai Court of Cassation held that a purchaser of units in a residential project was entitled to a refund because infrastructure (recreational facilities and landscaping works) had not been completed such that the purchaser was unable to use the units for their intended purpose. This was so even though the creation of the infrastructure was not part of the contract.'),
	(102362,5566,'_content_description','field_59b641c07f473'),
	(102363,5566,'pageSummary','In Property Appeal No. 167 of 2016 (issued on 12 October 2016) the Dubai Court of Cassation held that a purchaser of units in a residential project was entitled to a refund because infrastructure (recreational facilities and landscaping works) had not been completed such that the purchaser was unable to use the units for their intended purpose. This was so even though the creation of the infrastructure was not part of the contract.'),
	(102364,5566,'_pageSummary','field_59e59b307dec8'),
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	(102371,5566,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Rami Abdel Latif'),
	(102372,5566,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(102373,5566,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','r.abdellatif@tamimi.com'),
	(102374,5566,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(102375,5566,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','Dubai, UAE'),
	(102376,5566,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(102377,5566,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Zane Anani'),
	(102378,5566,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(102379,5566,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','z.anani@tamimi.com'),
	(102380,5566,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(102381,5566,'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation','Dubai, UAE'),
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	(102385,5566,'_yoast_wpseo_metadesc','In Property Appeal No. 167 of 2016 the Dubai Court of Cassation held that a purchaser of units in a residential project was entitled to a refund because infrastructure had not been completed such that the purchaser was unable to use the units for their intended purpose.'),
	(102386,5567,'content','February 2017\r\n\r\n<hr />\r\n\r\nThe Dubai International Financial Centre (\"<strong>DIFC</strong>\"), a financial free zone with its own legal framework and courts within the Emirate of Dubai, serves as a hub for business activity in the Middle East. The English-language DIFC Courts operate a common law system, while the Dubai Courts (with jurisdiction over the rest of the Emirate) operate a civil law system and conduct proceedings in Arabic.\r\n\r\nThe creation of an autonomous legal system within the Emirate of Dubai has led to an overlap in the jurisdiction of the two sets of courts, with conflicts of jurisdiction becoming a recurring issue since the establishment of the DIFC Courts in 2004. The DIFC Courts have, through their judgments, interpreted the scope of their jurisdiction widely, perhaps most notably in the Corinth Pipeworks, Bank Sarasin and DNB Bank cases.\r\n\r\nAs a consequence of the potential and actual conflicts of jurisdiction between the two sets of courts, Dubai Decree No. 19 of 2016 (the \"<strong>Decree</strong>\") was issued in June 2016 to establish the Judicial Tribunal for the Dubai Courts and DIFC Courts (the \"<strong>Tribunal</strong>\"). The first decisions of the Tribunal were recently issued.\r\n\r\n<strong>Dubai Decree No. 19 of 2016</strong>\r\n\r\nArticle 2 of the Decree provides the Tribunal with the following remit:\r\n\r\nThe Tribunal shall have the following competencies and powers:\r\n<ul>\r\n 	<li>Determining the competent court to hear a claim or application in respect of which there may arise a conflict as to whether the Dubai Courts or the DIFC Courts have jurisdiction.</li>\r\n 	<li>Determining the judgment that should be enforced in a case of conflicting judgments issued by the Dubai Courts and the DIFC Courts in relation to the same parties and the same subject matter.</li>\r\n 	<li>Proposing the rules and regulations necessary to avoid any conflicts as to jurisdiction, whether positive or negative, between the Dubai Courts and the DIFC Courts or between the execution departments of those Courts. Such proposals shall be submitted for approval to the President of the Judicial Council.</li>\r\n 	<li>Giving opinions in matters relating to cooperation and coordination between the Dubai Courts and the DIFC Courts.</li>\r\n 	<li>Any other matters as may be the subject of a request by the Judicial Council or the Ruler.</li>\r\n</ul>\r\nThe Constitutionality of the Tribunal\r\n\r\nInitially, some commentators were of the view that the Tribunal could encroach on the jurisdiction of the Union Supreme Court. Pursuant to Article 60 of UAE Federal Law No. 10 of 1973 (the \"<strong>Union Supreme Court Law</strong>\"), conflicts of jurisdiction between the courts of an Emirate, such as the Dubai Courts and DIFC Courts, were to be submitted to the Union Supreme Court for determination, whereas under the Decree such conflicts are to be submitted to the Tribunal. As pointed out by the Deputy Chief Justice of the DIFC Courts, Sir David Steel, in Standard Chartered Bank v Investment Group Private Limited, this appeared to raise the important issue of whether \"as a matter of constitutionality, a decree of the Emirate of Dubai can override, indeed amend, a federal law.\"\r\n\r\nHowever, in a recent decision relating to the enforcement of a Dubai-seated DIAC award, the Union Supreme Court acknowledged the Tribunal\'s jurisdiction to determine conflicts of jurisdiction between the DIFC Courts and the Dubai Courts. It based this decision on Article 104 of the Constitution, which stipulates that the authorities of an individual Emirate have jurisdiction in all matters not assigned to the Union Supreme Court under the Constitution. The constitutional legitimacy of the Tribunal is therefore not in doubt.\r\n\r\n<strong>The Tribunal\'s Initial Decisions</strong>\r\n\r\nThe Tribunal has issued a number of decisions on applications alleging conflicts of jurisdiction. These can be divided into two categories. First, the \"conduit jurisdiction\" decisions in Gulf Navigation Holding PJSC v DNB Bank ASA (Cassation No. 5 of 2016), relating to the enforcement of a foreign judgment, and another case (Cassation No. 3 of 2016) relating to the enforcement of a foreign arbitral award. The Tribunal, in rejecting the defendants\' applications in both cases, held that there were no conflicts of jurisdiction because there were no parallel proceedings in the Dubai Courts in either case. The Tribunal made no comment as to which set of courts would have been the appropriate forum had there been parallel proceedings in the Dubai Courts.\r\n\r\nThere is little in these two decisions of the Tribunal to indicate how it will deal with conflicts of jurisdiction relating to the enforcement of foreign arbitral awards or foreign judgments where parallel proceedings are in fact underway. For example, it is not known whether the location of a debtor\'s assets will be taken into account when determining which courts have jurisdiction. If the Tribunal does adopt an asset-linked test, it may mean that the DIFC will no longer serve as a conduit jurisdiction for the enforcement of foreign arbitral awards and foreign judgments. For now, however, the DIFC\'s status as a conduit jurisdiction for such foreign decisions remains intact.\r\n\r\nThe second category of decisions appears to effectively end the DIFC Courts\' status as a \"conduit\" jurisdiction for the enforcement of domestic arbitration awards. In Daman Real Estate Capital Partners Limited v Oger Dubai LLC (Cassation No. 1 of 2016) and a second case (Cassation No. 2 of 2016), the Tribunal decided that the DIFC Courts should \"cease to entertain\" the two claims seeking to ratify Dubai-seated arbitral awards. These decisions are at odds with the well-known DIFC Courts\' authority of Banyan Tree v Meydan Group LLC, in which a DIAC award seated in Dubai was recognised and enforced by the DIFC Courts despite the fact that neither party was located in the DIFC or had assets there.\r\n\r\nIn the Daman case, the award debtor had filed an application in the Dubai Courts seeking to have the DIAC award annulled. Annulment proceedings can only be brought in the courts of the seat of the arbitration. Oger then filed a claim in the DIFC Courts seeking to enforce the same award. The Tribunal determined that in the interests of due process and in order to avoid the risk of conflicting judgments, only one of the two sets of courts should hear both the enforcement claim and annulment application. The Tribunal added that on the basis of the \"general principles embodied in the laws of the civil procedure\", the appropriate forum for the matter was the Dubai Courts, though no further clarification was provided.\r\n\r\nThe Tribunal observed that the New York Convention 1958 was irrelevant to the enforcement of domestic arbitral awards. This may have been in response to the fact that it is ordinarily possible to enforce an arbitral award in any number of jurisdictions under the New York Convention, while annulment proceedings are pending before the courts of the seat. The above reasons were also relied on in the second case determined by the Tribunal (Cassation No. 2 of 2016).\r\n\r\nThe three DIFC Court judges on the Tribunal in these latter cases agreed that both cases should be remitted to the Dubai Courts for determination of the annulment application, but dissented on the ruling that the DIFC Courts should cease from hearing the cases. Although the DIFC Court Judges\' reasoning is not included in either judgment, it may have been premised on a distinction between annulment proceedings on the one hand and enforcement proceedings on the other, a distinction which the judgments ignore. A plausible interpretation of the DIFC Court Judges\' dissent is that they were content for the annulment proceedings to run their course in the Dubai Courts and for the stay of proceedings in the DIFC Court to be maintained pending the final outcome of those annulment proceedings. However, on the assumption that the annulment application is ultimately dismissed, and the award recognised, in the Dubai Courts, the DIFC Court Judges can be assumed to have expected there to be further proceedings in the DIFC Courts regarding the arbitral award.\r\n\r\nThe decision in Daman is likely to create uncertainty in future because the Defendant is a DIFC entity with at least some of its assets probably located in the DIFC. As a result, if the Dubai Courts ultimately recognise the award by way of a Dubai Court order, then that order would probably need to be enforced in the DIFC Courts owing to their jurisdiction over assets within the DIFC. However, on its face, the judgment of the Tribunal has the effect of preventing the DIFC Courts from entertaining the case altogether, potentially leaving the award creditor with an unenforceable Dubai Court order. In such a scenario, the DIFC Courts would seem likely to interpret the Tribunal\'s decision as barring only the application for enforcement of the award, and not affecting their ability to deal with any application for enforcement of the Dubai Court order.\r\n\r\nAlthough the reasoning in the Tribunal\'s decisions is limited, the following principles either appear in, or can be extrapolated from, them:\r\n\r\nWhere, in the case of a domestic arbitral award, the Dubai Courts are seised of an annulment application and the DIFC Courts are seised of an enforcement application, there is a \"conflict of jurisdiction\" for the purposes of the Decree.\r\n\r\nIn the event of such a conflict, only one of the two sets of courts should be entitled to determine any enforcement and annulment applications, and the other set of courts should refrain from so doing.\r\n\r\nThe supervisory courts, that is, the courts of the seat of the arbitration, are the appropriate courts to consider the enforcement of an award in cases where an annulment application is made.\r\n\r\nOne notable feature of the Daman case is the fact that the annulment proceedings in the Dubai Courts appear to have been commenced prior to the enforcement application in the DIFC Courts, with the Dubai Court of First Instance and Court of Appeal having determined that they did not have jurisdiction over the matter. An award debtor will often commence annulment proceedings once it becomes aware of enforcement proceedings initiated by the award creditor. However, there is nothing in the Tribunal\'s judgment to suggest that its decision would have been different had the annulment proceedings only been commenced after the enforcement claim. Had the Tribunal\'s reasoning included a court first seised analysis, it may have determined that the court first seised of an enforcement claim has jurisdiction over it, meaning that the outcome would have been different.\r\n\r\nThere is now uncertainty as to what happens to orders already issued by the DIFC Courts recognising and enforcing the awards in question. The Tribunal has stated that the DIFC Courts should cease from entertaining the two sets of proceedings. However, there is no ruling that previous orders issued by the DIFC Courts should be set aside. Accordingly, the DIFC Court in Daman, by Order of Justice Field dated 1 February 2017, has invited submissions to determine what happens to the DIFC Court orders.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nDomestic award creditors who anticipate annulment proceedings are now more likely to bring enforcement proceedings in the courts where the arbitration was seated. This is a significant departure from the previous position, where award creditors seeking to enforce a Dubai-seated award were increasingly opting for the DIFC Courts, which are considered the more pro-arbitration of the two sets of courts. The Tribunal\'s initial decisions have effectively limited the jurisdiction of the DIFC Courts to deal with recognition and enforcement of domestic arbitral awards, but give rise to no such limitation with respect to foreign judgments and awards.'),
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	(102561,5576,'content_description','On 13 December 2016, Abu Dhabi Executive Council Resolution No. 14 of 2016 on Lease Agreements of Premises (“Resolution No. 14”) reintroduced an annual 5% rent cap. '),
	(102562,5576,'_content_description','field_59b641c07f473'),
	(102563,5576,'pageSummary','On 13 December 2016, Abu Dhabi Executive Council Resolution No. 14 of 2016 on Lease Agreements of Premises (“Resolution No. 14”) reintroduced an annual 5% rent cap.'),
	(102564,5576,'_pageSummary','field_59e59b307dec8'),
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	(102573,5576,'_yoast_wpseo_metadesc','On 13 December 2016, Abu Dhabi Executive Council Resolution No. 14 of 2016 on Lease Agreements of Premises (“Resolution No. 14”) reintroduced an annual 5% rent cap.'),
	(102574,5577,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\"><span class=\"s1\">As previously reported the aim of the Law is to create an integrated health system for Dubai, based on a sustainable financing system that supports the competiveness of Dubai and protects the rights of all participants.  </span></p>\r\n<p class=\"p1\">The Law phased in the requirement for all employers in Dubai to have in place compliant health insurance cover for their employees.  It applies to all participants in the health insurance arena including health service providers, insurance companies, insurance brokers, claims administration companies, employers, sponsors and beneficiaries.</p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>Roll Out</strong></span></p>\r\n<p class=\"p3\">Whilst the Law came into effect on 1 January 2014, the provision of health insurance cover only become mandatory for:</p>\r\n\r\n<ul>\r\n 	<li>companies with more than 1,000 employees, from 31 October 2014;</li>\r\n 	<li>companies with 100-999 employees, from 31 July 2015; and</li>\r\n 	<li>companies with less than 100 employees, from 30 June 2016.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p3\">The roll out phase provided that dependents of sponsors, including domestic workers, must also be covered for the basic health coverage by 30 June 2016. However a grace period was granted for companies with less than 1,000 employees, members under individual sponsorship and for dependents until the 31 December 2016.</p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>What Next?</strong></span></p>\r\n<p class=\"p3\"><span class=\"s3\">Given that the grace period has now elapsed it is necessary to consider the practical ramifications of non compliance with the Law.</span></p>\r\n<p class=\"p1\"><span class=\"s4\"> Compliance with the Law will be enforced via a partnership between the Dubai Health Authority (‘DHA’) and the General Directorate of Residency and Foreign Affairs (‘GDRFA’). Together the DHA and GDRFA are aiming to ensure that no residence visa is issued until and unless the individual concerned has health insurance in place at the time of visa stamping or renewal. </span></p>\r\n<p class=\"p1\">As of 1 January 2017, the real-time system linking the DHA’s Member Register with the GDRFA was due to beactivated and in full effect. The system was developed to monitor and ensure compliance with the Law and will result in fines (and other sanctions) for non-compliance.</p>\r\n<p class=\"p1\">However, in the meantime, the DHA and GDRFA has in place a mutual agreement whereby fines are not currently being issued against all employers (regardless of company size) who have not yet provided their employees with medical insurance pursuant to the Law. We believe the reasoning behind this lenient approach is to allow insurance companies to cope with the increasing and fairly sudden demand on policies.</p>\r\n<p class=\"p1\">However, in a further development, on 19 February 2017 the DHA announced that fines will immediately start accruing against all non compliant employers from 31 March 2017 although it has allowed itself the scope to further extend the deadline. Fines will only be payable at the time of renewing or cancelling a visa.</p>\r\n<p class=\"p1\">As part of the visa renewal or cancellation process the GDRFA will check with the DHA to confirm when a resident started their medical insurance plan. If it is found that the individual did not have insurance during any period over the course of their residency visa, a fine of AED 500 for every month they are uninsured, will be levied out to the sponsor.</p>\r\n<p class=\"p1\">Further, for the avoidance of doubt, medical insurance is to be in place from the time of visa stamping only i.e. where an employee enters on an entry permit, they do not require medical insurance. Medical insurance is a necessity for the visa to be accepted and stamped in the individual’s passport.</p>\r\n<p class=\"p1\">Employers are required to ensure medical insurance coverage is in place for their employees in compliance with the Law. In early course, the failure to do so will involve DHA implementation of fines and non compliant employers should not be lulled into a false sense of security by the current ‘lenient’ approach by the authorities to enforcement.</p>\r\n<p class=\"p3\"><em>Al Tamimi &amp; Company’s employment team regularly advises on all aspects of employment law. For further information please contact Rachel Hill (r.hill@tamimi.com) or Gordon Barr (g.barr@tamimi.com).</em></p>'),
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	(156700,5577,'_core_values','field_59b64ab071de4'),
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	(102557,5576,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">A rent cap on leases in Abu Dhabi had first been introduced by Law No. 20 of 2006 on the Leasing of Spaces and Regulation of the Relationship between Landlords and Tenants in the Emirate of Abu Dhabi (“Landlord and Tenant Law”) as amended. The rent cap was later abolished on 9 November 2013 but now, as a result of Resolution No. 14, the annual 5% cap has been re-introduced with effect from 13 December 2016.</p>\r\n<p class=\"p1\">Resolution No. 14 amends Article 16 of the Landlord and Tenant Law and applies to residential, commercial and industrial leases alike.</p>\r\n<p class=\"p1\">The Landlord and Tenant Law allows the parties to a lease to agree and fix the rent for the lease term. If the rent is not fixed then the landlord has the right to an annual rent increase. This right is now subject to a maximum annual increase of 5% of the existing rent. The rent cap may be increased, reduced or cancelled from time to time by the Chairman of the Executive Council as he considers appropriate (Article 16.2 of the Landlord and Tenant Law as amended). A tenant may ask the Abu Dhabi Rent Committee to determine the rent where a landlord asks for an increase which exceeds the rent cap (Article 16.5 of the Landlord and Tenant Law as amended).</p>\r\n<p class=\"p1\">While the decision to cap rentals was not expected (as the rental market in Abu Dhabi has been witnessing a fall in rents since early 2016), it is welcomed as it provides greater stability and protection for tenants in Abu Dhabi.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Abu Dhabi Housing Fee</strong></span></p>\r\n<p class=\"p1\">In February 2016 the Chairman of Abu Dhabi Executive Council issued Resolution No.13 of 2016 (“Resolution No. 13”) introducing a housing fee in Abu Dhabi. The housing fee is charged on all residential leases to expatriates and is calculated as 3% of the annual rent. Abu Dhabi Municipality has now started charging housing fees through electricity and water bills issued by Abu Dhabi Distribution Company (ADDC).</p>\r\n<p class=\"p1\">Collection of the housing fee will be backdated to the date of implementation of Resolution No. 13 in February 2016. It is expected that housing fees for 2016 will be collected as a one-off payment but going forward the housing fee will be divided and collected in monthly instalments.</p>\r\n<p class=\"p1\">Responsibility for payment of the housing fee falls on tenants and is distinct from service charges which are payable to developers or building owners for common services where payment remains the obligation of the landlord.</p>\r\n<p class=\"p1\">The Abu Dhabi housing fee is comparable to the fee imposed by Dubai Municipality which is calculated as 5% of the annual rent and paid in monthly instalments through DEWA bills.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">We will need to wait and see if as a next step Abu Dhabi follows the approach taken in Dubai and implements a more complex system of rent controls regulated by a centrally maintained index of comparable rents. Such controls would distinguish between different areas and classes of properties and would reference permitted rent increases against average rents for comparable properties. In the short-term, the reintroduction of rent caps is not likely to have considerable effect on the market as rent levels are generally declining across the Emirate. In the long-term however rent caps should lead to more stable pricing in the residential leasing market. The introduction of a housing fee is not unexpected and tracks similar measures taken by the Abu Dhabi government in recent months to recover from residents the costs it incurs providing services.</p>\r\n<p class=\"p1\"><span class=\"s2\"><em>Al Tamimi &amp; Company’s Real Estate team regularly advises on real estate matters in Abu Dhabi. For further information please contact David Bowman (d.bowman@tamimi.com) or Maha Dahoui (m.dahoui@amimi.com).</em></span></p>'),
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	(102539,5574,'_yoast_wpseo_metadesc','The long awaited Law No. 19 of 2016 (the ‘New Law’) regarding anti-commercial fraud has come into force in the UAE and replaces Federal Law No. 4 of 1979 concerning the Suppression of Fraud and Deception in Commercial Transactions.'),
	(102540,5575,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The UAE follows the same by emphasizing the rights of children and their need for strong protection. It was one of the first countries in the Middle East to sign the United Nations Convention on Child Protection, and has addressed the rights of children in different existing laws ensuring that they are carried out effectively.</p>\r\n<p class=\"p1\">Last year, the UAE issued a new law, namely the Federal Law No. 3 of 2016 concerning the rights of children. The law contains around 75 articles setting out general and specific legal provisions protecting the rights of any child.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The Law and its Preamble</strong></span></p>\r\n<p class=\"p1\">The law defines a child as any human being under 18 years old.</p>\r\n<p class=\"p1\">Article 2 sets out the objectives that the UAE authorities hope to achieve for every child, such as their right for a safe life, development, freedom, and not to be exposed to any kind of abuse or negligence. Article 3 further asserts protecting a child against discriminatory acts based on race, ethnic origin, religion or disability.</p>\r\n<p class=\"p1\">Article 4 highlights that protection of a child and the child’s interests must have priority in all decisions and procedures concerning the child.</p>\r\n<p class=\"p1\">The law seeks to work with other UAE law’s that form a solid legal framework regulating the rights of children. This includes the Criminal, Cyber, Juvenile, Employment and Personal Status Laws, some of which are discussed below.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Fundemental Rights</strong></span></p>\r\n<p class=\"p1\">The new law states that a child is entitled to a formal relationship with the child’s legal parents.</p>\r\n<p class=\"p1\">The child is entitled to a name from birth. The name should not imply anything that would be considered a disgrace or an insult to the child’s dignity or which contradicts with religious principles or customs.</p>\r\n<p class=\"p1\">Legal documentation evidencing a child’s birth, nationality and other identification records have to be issued upon birth. Not doing so could lead to imprisonment or a fine of no less than 5,000 Dirhams as set out in Article 60 of the law.</p>\r\n<p class=\"p1\">Under Article 13 of the law, it is prohibited to expose the child to any abusive interference or illegal decision affecting the child’s life, family or home.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Employment</strong></span></p>\r\n<p class=\"p1\">Employment of children under the age of 15 is illegal. However it is permissible to employ those who are 15 years old and above, subject to some conditions and reservations such as obtaining a written approval from the guardian along with a birth and medical fitness certificates from the competent medical authorities.</p>\r\n<p class=\"p1\">Under Article 68 of the law, whoever breaches the foregoing or expose a child to a dangerous workplace could be imprisoned and/or fined for an amount of not less than AED 20,000.</p>\r\n<p class=\"p1\">Employment for juveniles is regulated under the Federal Labour Law No. 8 of 1980. Article 23 of this law states that a juvenile cannot work at night, which is defined as anytime between 8pm and 6am.</p>\r\n<p class=\"p1\">Article 24 of the Labour Law also provides that a juvenile should not work in hazardous or harmful environment which adversely affect the child’s health.</p>\r\n<p class=\"p1\">Article 25 of the Labour Law further states that the maximum hours of work in one day for juveniles is 6 hours. Adults and juveniles have the same rights in terms of break times, which should amount to no less than one hour.</p>\r\n<p class=\"p1\">Furthermore, anyone under the age of 17 is restricted from working in certain work conditions such as:</p>\r\n\r\n<ul>\r\n 	<li>Working underground in mines, quarries, and all works related to the extraction of metals, stones and rocks.</li>\r\n 	<li>Working in furnaces used for melting, refining, and producing metal materials.</li>\r\n 	<li>Oil refineries.</li>\r\n 	<li>Working before the ovens of bakeries.</li>\r\n 	<li>Cement plants.</li>\r\n 	<li>Ice and cooling factories.</li>\r\n 	<li>Running, controlling, or repairing motor machines or cleaning the same while running.</li>\r\n 	<li>Asphalt making.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p2\"><strong>Family Rights</strong></p>\r\n<p class=\"p1\">The Personal Status Law No. 28 of 2005 regulates all matters relating to management of minors’ funds, marriage, divorce, with emphasis on the rights of a child involved in such context.</p>\r\n<p class=\"p1\">The Personal Status Law is derived from Islamic Sharia principles and applies to UAE nationals and residents, unless non-Muslims wish to apply different rules in special cases as per their religion or laws of their home country.</p>\r\n<p class=\"p1\">There are special courts and judges with adequate expertise in the UAE that look into such matters. There are certain types of disputes that pass through a special committee first with aim to settle them amicably, failing which they get referred to the court.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The Personal Status law specifies the role of custodians and guardians of children and the conditions that need to be satisfied for taking care of a child. Article 143 of UAE Personal Status Law provides that irrespective of the gender, the custodian must be capable of raising a child. The custodian would need to be sane and hold no serious infectious diseases. These factors would be considered when determining the custody of a child in certain situations and on a case by case basis. </span></p>\r\n<p class=\"p1\">In short, the Courts would consider the best circumstances for the benefit and interests of the child.</p>\r\n<p class=\"p1\">The Personal Status Law also notes that in the event there are no sufficient funds for taking care of a child, then the country will assist in such expenses. The new law further confirms this.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">It is clear from the above examples that the new law reinforces the already existing laws governing the rights of children. The new law is welcomed as it confirms the long commitment of the UAE to children’s rights, and continues its efforts in safeguarding the rights of children.</p>\r\n<p class=\"p1\"><em>In August and September 2016 Al Tamimi spoke on Pearl FM UAE radio, in collaboration with Al Jalila Centre for Children in Dubai, to discuss the new law. Al Tamimi &amp; Company’s regularly advises on these matters. For further information please contact Omar Khodeir (o.khodeir@tamimi.com) and Taiba Alsafar (t.alsafar@tamimi.com).</em></p>'),
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	(100278,5451,'_yoast_wpseo_metadesc','Under Book 11, Kuwait’s new Capital Markets Authority (“CMA”) Bylaws provide the regulatory framework that governs bonds and sukuk.'),
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	(100287,5452,'pageSummary',''),
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	(100289,5452,'lawUpdateStartMonth','September'),
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	(100293,5454,'content','<p class=\"p1\"><span class=\"s1\">The judgment confirmed that the nullification of the sale and purchase agreement/side agreement shall have effect from the date of the court judgment and not from the date of the agreement (i.e. the nullification will not be applied retroactively). Accordingly, the foreign shareholder shall be entitled to the profit in accordance with his actual shareholding (reflected in the side agreement) if the UAE shareholder is only acting as service agent/sponsor. The foreign shareholder&rsquo;s entitlement to the profit (before the judgment) is guaranteed even if a court declares that the side agreement is in violation of the UAE Company law and public policy. In summary, the rights set out in the side agreement, such as the distribution of profit, are protected notwithstanding that the side agreement is void.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>Al Tamimi &amp; Company successfully defended the Defendants before the Abu Dhabi courts.</span></p>\r\n<p class=\"p3\">&nbsp;</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Legal Background - Ownership requirement in LLCs</strong></span>&nbsp;</p>\r\n<p class=\"p1\"><span class=\"s1\">Each company established under the Companies Law must at all times have 51% of its shares registered in the name of a UAE citizen (&lsquo;citizen&rsquo; being interpreted to include UAE individuals and corporate entities owned 100% by UAE individuals). A foreign investor, whether an individual or a corporation, is permitted to be registered as the shareholder of up to 49% of the shares in a company. This is pursuant to Articles 22 and 230 of the old Companies Law 1984 (similar to articles 10 and 79 of the new UAE Companies Law).&nbsp;</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>In the UAE, it is common for agreements (sponsorship/nominee arrangements) to be entered into between foreign entities or individuals on the one hand and UAE national shareholders on the other hand which, in effect, state that the beneficial and/or economic interest in shares legally held by the UAE shareholder belongs to the foreign party and that the economic interest of the UAE shareholder in the company is restricted to an agreed annual fee.</span></p>\r\n<p class=\"p3\">&nbsp;</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Factual Background</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The background of the case is complex and relates to a family company, but essentially in 1989 the Claimants (the UAE party) and the Defendants (the non-UAE party) set up a company with an equity split of 51-49 respectively. In 2004, the Company was performing badly and the Claimants wanted to sell their shares to the Defendants. The parties therefore entered into an SPA in 2004 by which the Claimant would sell their shares to the Defendants for AED 5 million, exit the Company, but remain a partner (a silent partner to satisfy the legal requirements for the Company), in return for receiving an annual sponsorship fee of AED 150,000.&nbsp;</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>The sale was not registered with the Notary Public, nor was it on the company&rsquo;s registrar or the commercial register. Following the sale, the Claimants gave a Power of Attorney for management without referencing the SPA. After two years, the Company&rsquo;s business improved and the Claimants brought an action against the Defendants to invalidate the sale of the shares.</span></p>\r\n<p class=\"p3\">&nbsp;</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The Court of First Instance</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The Claimants filed an action against the Defendants seeking the nullification of the SPA on the basis that the sale was not shown on the Company&rsquo;s revenue and the shares were sold at less than their market price. The Claimants claimed, amongst other things, for:</span></p>\r\n<p class=\"p4\">&nbsp;</p>\r\n<ul>\r\n<li>the invalidation of the SPA and the cancellation of the power of attorney that was granted to effect the sale;&nbsp;</li>\r\n<li>payment of the Claimant&rsquo;s share of the Company&rsquo;s profits and revenues since the date of the sale of the shares to date; and</li>\r\n<li>the reinstatement of the Claimants as partners in the Company (as opposed to silent partners).</li>\r\n</ul>\r\n<p>&nbsp;</p>\r\n<p class=\"p6\"><span class=\"s1\">The Court of First Instance appointed an expert who concluded in his report that the sale of the shares was concluded upon the request and satisfaction of the Claimants. The Defendants were found to have fulfilled their obligations and the action was dismissed. The Claimants had not provided any proof that they were deceived.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>The Claimants appealed the decision.</span>&nbsp;</p>\r\n<p class=\"p3\">&nbsp;</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The Court of Appeal and the Cassation court&nbsp;</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The Claimants appealed in Appeal 114 of 2011, but the appeal was dismissed. The Claimants appealed and the Court of Cassation overturned the Court of Appeal&rsquo;s ruling and returned the case to the Court of Appeal for a decision by a different panel.</span></p>\r\n<p class=\"p3\">&nbsp;</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The Court of Appeal (on remand)</strong></span>&nbsp;</p>\r\n<p class=\"p1\"><span class=\"s1\">The Court of Appeal held that the sale was contrary to public policy for not meeting the requirements of 22 and 230 of the old Companies Law (Article 10 and 79 of the new Companies Law). The SPA was therefore declared void. The Court ordered that pursuant to Article 274 of the Civil Code, the two contracting parties were to be restored to the positions they were in before the contract was made, and if that is not possible, compensation was to be ordered.&nbsp;</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>A three-man expert committee was appointed to review the case documents and, based on the committee&rsquo;s findings, the Court of Appeal ordered the pre-sale contract status quo be restored by keeping the Claimants as partners and ordering a set-off between the amount received by the Claimants as a result of the sale and their entitlements to the Company&rsquo;s profits from 2004 to date. This resulted in the Claimants being entitled to receive more than AED 20 million.&nbsp;</span></p>\r\n<p class=\"p3\">&nbsp;</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The Court of Cassation</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The Defendants appealed the decision.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>The first point they raised was that the Court of Appeal was wrong to base its decision on the MoA and find that the Claimants were entitled to 51% of the Company shares, since the MoA was a dummy contract, the true one being the SPA (the side agreement) which accurately set out the relationship between the parties and recorded the fact that the Claimants were only license sponsors, not actual partners. The SPA could not have been registered and lodged on the commercial register as the Companies Law did not allow it. The Claimants were kept as nominal partners in the Company so that the Defendants&rsquo; could benefit from the Claimants&rsquo; license.&nbsp;</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>The Court of Cassation dismissed this argument. It found that the existence or otherwise of a dummy agreement is a question of fact for the trial judge and not a matter that could be reviewed by the Court of Cassation (see Court of Cassation judgment in Appeals 198,200/2012). The sale contract had been declared an absolute nullity by final court ruling, and so all of its terms and conditions (including those relating to sponsorship and the annual fee) were null and void.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>The second, third and fourth arguments raised by the Defendants were also dismissed. However the last argument raised by the Defendants was that the Court of Appeal had been wrong to find that the Claimant was entitled to the profit on account of their status as partners with a 51% shareholding interest because the decision of the Court of Appeal had been declaratory in nature, and so only applied to future profit and not the profit from 2004 to the date of judgment. This is an exception to the general principle that the parties should be restored to the positions they occupied prior to the contract. Furthermore, the Claimants had been aware since 2004 that the SPA was contrary to public policy, and yet had maintained their role as service agents for the annual fee.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>The Court of Cassation agreed that the Court of Appeal had been wrong to award the Claimant the profit from 2004. Whilst the general principle was that following the invalidation of a sale contract the parties should be restored to their positions before the contract had been made, this is subject to certain exceptions, such as either or both contracting parties having acted in bad faith at the time of making the contract. In this case the Claimants had knowingly and voluntarily participated in the violation of the Companies Law which led to the agreement being invalidated, and they could not benefit from their wrongful conduct. The Defendants were therefore only liable to pay profits from the date of the Court of Appeal (remand) judgment, not from 2004 (the date of the SPA).&nbsp;</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><span> </span>The matter was then referred back to the previously appointed experts for a recalculation of profit based on the above. The Cassation Court&rsquo;s final decision (recorded in a later judgment) ordered the Claimants to return the sale price received when the shares were sold (approximately AED 5 million), in addition to the service agent fees paid in the period from 2004 until 2015.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">&nbsp;</span>&nbsp;</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The importance of this judgment</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The Court of Cassation judgment is important in that it addresses key issues concerning service agents who attempt to claim profits of a company despite not being an active shareholder. Notwithstanding that the sale of the UAE national&rsquo;s shares was not effective (because it was not registered in the company&rsquo;s records and in the Commercial Register, and that the sale reduced the shares belonging to UAE nationals in the company to below 51%, the court ruled in favour of the foreign shareholder) the Court held that a UAE-national shareholder who knowingly sells his shares in violation of the UAE Companies law and public policy will not have the right to claim a profit if he had served as a service agent (and not as an active shareholder). The striking result in this case is that whilst the Claimants had tried to renege on the agreement and sue for the profit from 2004 onwards, because they had knowingly participated in violating public policy the end result was that not only were they not awarded this profit, but the Claimants were ordered to return the purchase price for their shares and the annual fee that they had received for over a decade.&nbsp;</span></p>'),
	(100270,5451,'pageSummary','Under Book 11, Kuwait’s new Capital Markets Authority (“CMA”) Bylaws provide the regulatory framework that governs bonds and sukuk. At the outset, it is important to note that chapter 7 of Book 11 sets out the manner in which a special purpose company (“SPC”) can issue bonds or sukuk, or engage in other CMA-approved activities related to the issuance of bonds or sukuk. The SPC will be able to issue bonds or sukuk through public subscription or private placement, provided that it obtains the approval of the CMA. However, the shares of the SPC itself may not be offered to the public and the underlying obligor must provide an undertaking that it will assume all of the liabilities of the SPC.'),
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	(100268,5451,'content_description','Under Book 11, Kuwait’s new Capital Markets Authority (“CMA”) Bylaws provide the regulatory framework that governs bonds and sukuk. At the outset, it is important to note that chapter 7 of Book 11 sets out the manner in which a special purpose company (“SPC”) can issue bonds or sukuk, or engage in other CMA-approved activities related to the issuance of bonds or sukuk. The SPC will be able to issue bonds or sukuk through public subscription or private placement, provided that it obtains the approval of the CMA. However, the shares of the SPC itself may not be offered to the public and the underlying obligor must provide an undertaking that it will assume all of the liabilities of the SPC.'),
	(102520,5574,'_pageSummary','field_59e59b307dec8'),
	(102519,5574,'pageSummary','The long awaited Law No. 19 of 2016 (the ‘New Law’) regarding anti-commercial fraud has come into force in the UAE and replaces Federal Law No. 4 of 1979 concerning the Suppression of Fraud and Deception in Commercial Transactions.'),
	(102518,5574,'_content_description','field_59b641c07f473'),
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	(102517,5574,'content_description','The long awaited Law No. 19 of 2016 (the ‘New Law’) regarding anti-commercial fraud has come into force in the UAE and replaces Federal Law No. 4 of 1979 concerning the Suppression of Fraud and Deception in Commercial Transactions. '),
	(102514,5574,'_content','field_59b649b5c8b2b'),
	(102513,5574,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The New Law brings significantly more hefty penalties and new definitions which more effectively and robustly combat fraud, including fraud relating to intellectual property.</p>\r\n<p class=\"p1\">By way of an example, counterfeit products according to the new law are defined as “products that bear, without permission, a trademark identical or similar to a registered trademark”. Accordingly, the new law expands the scope of counterfeit products from the 2013 draft, which only included in its scope identical products theraeby excluding similar or confusingly similar products and leaving much doubt as to incrimination of many violations to trademark rights.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Application and enforcement of the New Law</strong></span></p>\r\n<p class=\"p2\">Article 2 of the New Law states that “provisions of this law will be applied to anyone who commits an act of commercial fraud, and the free zones are not exempted from the provisions of this law”. For the first time we have anti-fraud legislation that addresses, in explicit terms, free zones. These economic zones have greatly concerned IP right holders given the uncertainty and the difficult procedures involved when enforcing rights in free zones.</p>\r\n<p class=\"p1\">Any act of selling, displaying, and possessing of any counterfeit goods is defined in the New Law as an act of commercial fraud. The importation, exportation, re-exportation, manufacturing, storage, rental, marketing, selling are also considered an act of commercial fraud. This is another significant development in explicitly regulating possession. This is again particularly important in relation to free zones but also in relation to general re-export businesses who may carry counterfeit goods stored in their warehouses. Re-export businesses in UAE, and specifically Dubai, require these laws so that only legitimate goods are handled, thereby safeguarding the reputation of Dubai and the UAE.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Illicit goods vs. counterfeit goods </strong></span></p>\r\n<p class=\"p1\">The Initial draft of the law, first submitted in 2013, was heavily debated by the IP industry, with particular concern being expressed over remedies. One of the remedies available to the authorities in penalising infringers was to re-export counterfeit goods. This was a problem flagged by IP practitioners, as some infringers would regard this as a reward rather than a penalty. Fortunately, the UAE legislator has done away with this draft clause, and the New Law specifically stipulates the destruction of counterfeit goods as a remedy. Article 3 of the New Law states:</p>\r\n<p class=\"p1\">“Without prejudice to criminal liability, the relevant authority may issue a decision ordering the importer to return Fraudulent or Spoiled products to their source during a specific period [...] Counterfeit products will be destroyed, all of which is subject to the rules and regulations set out in the implementing regulation of this law”.</p>\r\n<p class=\"p1\">The article makes a distinction between spoiled/fraudulent goods (which may be returned to their source) and counterfeit goods (which must be destroyed). This reflects the great importance the UAE gives to combating counterfeiting, and highlights the important role the UAE plays on a global scale in ensuring the problem of counterfeiting does not continue to move from one country to another.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Disclosing information related to goods </strong></span></p>\r\n<p class=\"p1\">Previous legislation did not provide for disclosure of information. However under the New Law (article 4), a trader is obliged to submit to the competent authority all commercial books and ledgers, which detail trade data for goods owned or possessed, in addition to information on the value and all supporting documents and invoices when requested to do so.</p>\r\n<p class=\"p1\">This is important to all the brand owners who seek to go beyond the subject complaint and investigate further to identify the supply chain related to the counterfeit business and also further assist in bringing civil claims against the infringer. Currently civil claims are rarely brought because of lack of evidences to support the claim for damages, but this new ability to obtain disclosure will enable more claims to be made and allow victims to be properly compensated.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The Higher Committee for Anti-Commercial Fraud </strong></span></p>\r\n<p class=\"p1\">The New Law establishes a body empowered to combat commercial fraud in the UAE – the Higher Committee for Anti-Commercial Fraud. A sub-committee has also been established at Emirate level to implement the functions of the Higher Committee. The Higher Committee represents a step forward in the regulation of IP, as the UAE previously lacked a unified IP authority to undertake enforcement on a federal level. Previously, enforcement of IP rights were delegated to various departments in each Emirate, but with adoption of this law, the Higher Committee is now charged with proposing policies to fight commercial fraud on a national level and is also able to address common challenges faced by brand owners.</p>\r\n<p class=\"p1\">The Higher Committee responsibilities include:</p>\r\n\r\n<ul>\r\n 	<li>To propose strategies and policies to combat commercial fraud;</li>\r\n 	<li>To study reports of commercial fraud referred to it by the competent authority and take the necessary decisions;</li>\r\n 	<li>To study obstacles facing law enforcement and propose new procedural mechanisms.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">Article 6 identifies tasks for the sub-committees formed at Emirate level. These tasks include considering requests for conciliation by those who violate the law; putting infringers on notice; ordering temporary closure of offending establishments; administering destruction operations; and recycling or re-exporting infringing goods.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Penalties - What is new? </strong></span></p>\r\n<p class=\"p1\">The New Law provides for hefty penalties aimed at increasing the deterrence level, stepping up efforts in the fight against fraud and counterfeit goods.</p>\r\n<p class=\"p1\">Article 12 penalizes anyone who commits a commercial fraud with a jail penalty of no more than two years and/or a fine ranging between AED 50,000 - AED 250,000.</p>\r\n<p class=\"p1\">Based on this article, the legislator increased the minimum fine to a level that creates a realistic deterrent, as before the minimum fine was in practice AED 5,000, which was to many offenders a slap on the wrist. The New Law introduces a ceiling to the fine of AED 250,000. An exception is made for crimes impacting human health (such as those relating to pharmaceuticals, food or organic food products). These are punished by a fine with a cap of 1 million dirhams and a two year jail term.</p>\r\n<p class=\"p1\">Article 18 gives courts the power to close offending establishments for a period not exceeding 6 months. This is in addition to the other hefty penalties imposed by the legislator.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">The broad scope of the law, as well as the hefty penalties it provides, will place the UAE on the forefront of nations that deal stringently with IP crimes. Brand owners and consumers remain the beneficiaries of the deterrent penalties provided for by the law, to prevent crime or prevent repeat infringements.</p>\r\n<p class=\"p1\">Perhaps the most interesting feature in this law was the provision of enforcement in free zones, areas of which were not previously explicitly addressed because the zones were created after the previous laws were enacted.</p>\r\n<p class=\"p1\">The possibility of forced disclosure by traders of information and documents has filled in a gap that previously taunted enforcement agencies and brand owners alike, and opens the door for uncovering and disrupting the trade cycle of counterfeiters.</p>\r\n<p class=\"p1\">Finally, the New Law allows the authorities to charge the expenses related to the cost of destruction back onto the counterfeiters, creating yet a further deterrent.</p>\r\n<p class=\"p1\">The enactment of the New Law is a leap in the fight against commercial fraud and counterfeiting in the UAE. The many changes and enactments that have been introduced are expected to be warmly received by the IP community and consumers.</p>\r\n<p class=\"p1\"><em>If you would like further information or have any questions regarding this new law, please contact Omar Obeidat, Partner &amp; Head of IP (o.obeidat@tamimi.com) or Ahmad Zaza, Senior Associate (a.zaza@tamimi.com).</em></p>'),
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	(102482,5571,'_yoast_wpseo_metadesc','The Northern Emirates Mountain ranges around Dibba and Jebel Jais are popular tourist destinations, with hiking, driving, cycling and trekking attracting private parties and organised events, including the recent Jebel Jais Long Boarding event.'),
	(102483,5572,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">In an unprecedented move in the UAE, His Highness Sheikh Mohammad Bin Saud Bin Saqr Al Qasimi, Crown Prince of Ras Al Khaimah and Chairman of the Judiciary Council, issued Resolution No. 38 of 2016 (“Resolution No. 38”) on 29 November 2016, which has established one-day courts in Ras Al Khaimah to determine small claims of under AED 20,000.</p>\r\n<p class=\"p3\"><span class=\"s2\"> Resolution No. 38 establishes a streamlined and fast track small claims court for civil and commercial claims under AED 20,000 (the “Small Claims Court”). The Small Claims Court has jurisdiction to pass judgments on the <em>same day</em> the cases are filed at court. Resolution No. 38 came into force on 1 January 2017. </span></p>\r\n<p class=\"p3\"><span class=\"s2\"> The Small Claims Court has simplified and relaxed the rules and costs of proceedings in line with the value of the relevant claim. Under the Small Claims Court procedure, parties may file their cases at the Small Claims Court, which will consider the same and issue a ruling on the same day, after hearing the parties in person. In addition, a further online procedure is being developed with notification to the parties via email, and is expected to be implemented in the near future.</span></p>\r\n<p class=\"p3\"><span class=\"s3\"> Rulings (execution writs) issued by the Small Claims Court are final, binding and enforceable by law. Furthermore, the ruling judge has the discretion to impose court fees or to exempt the litigants from such fees.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"> In accordance with Articles 7 and 8 of Resolution No. 38, once the execution writ has been issued by the ruling judge sitting in the Small Claims Court, the claimant has the right to execute the judgment and enforce it at the Court of First Instance pursuant to the execution procedures provided under the Civil Procedures Law No. 11 of 1992 (as amended in 2015). </span></p>\r\n<p class=\"p3\"><span class=\"s2\"> It has been reported by the Courts of Ras Al Khaimah that the Small Claims Court “<em>has so far this year examined and adjucated 90 cases, 67 civil cases and 23 commercial cases, and rulings have been passed in all these cases in just 30 days.” Furthermore, it had been reported that in relation to these small claims hearings ”the maximum time for settling a case has been 3 hours and 30 minutes, the minimum time was 28 minutes, and, on average, three cases are being settled in a day</em>”.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"> Moreover, the Head of the Ras Al Khaimah Courts has been reported as stating that this initiative was launched as part of an integrated package of initiatives to develop the judicial system in the Emirate of Ras Al Khaimah. It is understood that the Emirate is soon to introduce a new medium track court system for cases under AED 500,000, under which cases may be determined in one hearing, as opposed to multiple costly and time-consuming hearings that would otherwise be required.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"> We believe that this unprecedented initiative in Ras Al Khaimah matches the most sophisticated judicial systems in the world, such as Singapore, and reflects the fact that Ras Al Khaimah is developing a world-class, efficient and stable judicial system to encourage foreign and local investment in the region. Furthermore, it should encourage other Emirates to follow suit and adopt similar initiatives to expedite judicial proceedings, which will have a positive impact on the UAE as a whole.</span></p>'),
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	(102487,5572,'content_description','One-day Courts in Ras Al Khaimah, UAE'),
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	(102489,5572,'pageSummary','One-day Courts in Ras Al Khaimah, UAE'),
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	(102497,5572,'_yoast_wpseo_metadesc','In an unprecedented move in the UAE, His Highness Sheikh Mohammad Bin Saud Bin Saqr Al Qasimi, issued Resolution No. 38 of 2016 (“Resolution No. 38”) on 29 November 2016, which has established one-day courts in Ras Al Khaimah to determine small claims of under AED 20,000.'),
	(102498,5573,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">His Highness Sheikh Saud bin Saqr Al Qasimi, Ruler of Ras Al Khaimah, commented that as a result of these agreements:</p>\r\n<p class=\"p1\">“Individual residents can have even greater trust that their property and assets will be secure here.”</p>\r\n<p class=\"p1\">This development will allow DIFC registered Wills to encompass both Dubai and Ras Al Khaimah assets. The DIFC Wills and Probate Registry was established to introduce a new avenue for succession and inheritance matters for non-Muslims holding assets in Dubai, and now Ras Al Khaimah, backed by protocols concluded with other public authorities.</p>\r\n<p class=\"p1\">The new rules, which broadly follow UK law and practice, create legal certainty for the inheritance of individuals’ assets after death and the appointment of guardians for their children. This not only allows individuals to have testamentary freedom to dispose of their assets as they wish, it also provides peace of mind that an individual’s estate will be distributed according to their wishes.</p>\r\n<p class=\"p1\">The Registry provides a simple and efficient mechanism for non-Muslims to pass on their estates, subject to a formal Will registration process which functions as an opt-in mechanism. All probate grants are issued by judges of the DIFC Courts.</p>');

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	(102468,5571,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The use of an operator agreement can be a neat and effective method to identify and distribute responsibility and risk to an expert operator of a specialised sports or recreational activity or event. This is particularly so in circumstances where the body who holds the rights to conduct such activity or hold such an event requires expertise beyond the knowledge or expertise of the land holder, such as specific safety protocols or knowledge of specialized equipment.</p>\r\n<p class=\"p1\">In the United Arab Emirates, the land holder is generally a local Government entity, or related body, and it would be expected that such body is entitled, and holds the rights, to exploit land for commercial and sporting purposes. For short term or one off events and activities, using an operator arrangement can be a relatively cost effective and straightforward arrangement in comparison to negotiating complex shareholder or similar arrangements in joint ventures. Even if a more formalized joint venture arrangement is contemplated after an initial collaboration, an operator arrangement not only sets out preliminary legal rights and obligations but also provides a good “get to you know you” pre-arrangement for many joint ventures.</p>\r\n<p class=\"p1\"><span class=\"s1\"> This article will consider some non-exhaustive salient provisions which should be considered when negotiating such an operator agreement to be used in the United Arab Emirates; and, it will also discuss methods of resolving issues between the parties in the event of a dispute.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The Parties to the agreement and licensing </strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">Although often seen as a basic point, getting the right contracting parties is of paramount importance from a legal perspective to ensure the correct land holder is granting the requisite authority and that the correct operating entity is contracting to binding terms of engagement. To avoid any doubt, the parties should disclose relevant up to date trade licences and memorandum of association in order that the correct referencing is included and to confirm that the signatory has authority to enter into contractually binding arrangements. </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Operators responsibilities and obligations </strong></span></p>\r\n<p class=\"p1\">The operator agreement should clearly set out the responsibilities of the operator and the parameters in which it can operate. Due consideration must be given to ensure that the operator is obliged to carry out its duties responsibly and safely and in accordance with any relevant accreditations or industry standards. <strong> </strong></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Marketing and IPR</strong></span></p>\r\n<p class=\"p1\">Branding and marketing guidelines are required to ensure that the parties are aware of specific requirements in relation to their respective intellectual property and in order to protect the parties rights in this regard. If the project is being jointly marketed then consideration must be given as to who will own the IPR at the end of the project and whether or not it would be expedient to include any post-contractual licenses or permissions (e.g., to refer to the activity or event or use images of the same).</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Compliance with laws and regulations </strong></span></p>\r\n<p class=\"p1\"><span class=\"s4\">Any operator must agree to adhere to and comply with relevant laws and regulations and specific regulations such as Security and Safety, Personal Data Protection and Anti-Corruption should be specifically stipulated. Although an operator will be required under law to comply, enhanced contractual requirements further protect the parties and demonstrate best practice and compliance. </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Fees</strong></span></p>\r\n<p class=\"p2\"> A significant amount of time will be spent in calculating the fee model and agreeing satisfactory payments terms. Fee models vary from fixed rates, share of profits, percentage of revenue and can include provisions whereby costs, expenses and overheads are deducted and paid before distribution (the profit cost model). In addition, for longer term arrangements there may be a requirement to adjust or recalculate fees using a stabilisation clause, which can be as basic as an increase in line with an indexed rate or more complicated based on external market and economic forces.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Termination and Force Majeure </strong></span></p>\r\n<p class=\"p1\">Termination rights will depend on the length of the agreement but generally include rights to terminate upon notice for a variety of events, including a material and incurable breach of the agreement and bankruptcy. The parties may wish for a “stay” in the event of a Force Majeure or availability to terminate, depending on the length of the Force Majeure event.</p>\r\n<p class=\"p1\">Moreover the parties must also determine the consequences of termination including any practical requirements such as making a handover of property, including customer information.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Insurance obligations </strong></span></p>\r\n<p class=\"p1\">Whilst a breach of the contract may lead to a claim for damages from the non-breaching party, one important aspect that should be expressly included in the contract will be insurance to ensure that any third party loss and damage is satisfactorily covered. Accordingly, the type of insurance, the quantum of cover and the party responsible to insure may be points of considerable negotiation. It is advisable that there are obligations on the responsible party to (i) produce evidence of the insured cover in a timely manner before commencement of the activity, (ii) maintain the coverage throughout the term of the agreement, and (iii) advise the other party in advance of any change of the coverage.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Dispute resolution and choice of law </strong></span></p>\r\n<p class=\"p1\">One of the main reasons to enter into a written, binding contract is to avoid disputes over what has or has not been agreed. Whilst the vast majority of commercial arrangements do not end up with serious issues, from time to time, with reputations and financial detriment at stake, and even with a considered document in place, parties may end up in dispute.</p>\r\n<p class=\"p1\">The contract should stipulate which jurisdiction’s law will govern the agreement and also the forum in which disputes will be settled, and may include options for mediation, arbitration or immediate reference to court to resolve disputes which cannot be settled between the senior personnel of the parties.</p>\r\n<p class=\"p1\">With the recently announced collaboration between the Judiciary of Ras Al Khaimah and the Dubai International Financial Centre (DIFC) (see Article [Ras al Khaimah and the DIFC Courts: new agreements to forge an ever-closer partnership] above), this provides further dispute resolution options in Ras Al Khaimah.</p>\r\n<p class=\"p1\">Legal advice is always recommended to be obtained on the effects and the terms and conditions of any agreement.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Ras Al Khaimah team regularly advises on operator and other commercial agreements relating to Sports and Events. For further information please contact Adam Powell (a.powell@tamimi.com). </em></p>'),
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	(102356,5565,'_yoast_wpseo_metadesc','In the UAE, a party to an arbitration has the right to file a case to nullify an unfavorable arbitration award. With one exception, the basis on which a party can seek nullification is limited to a number of narrow procedural grounds.'),
	(102357,5566,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">Al Tamimi represented the successful claimant before the Dubai Courts.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Background </strong></span></p>\r\n<p class=\"p1\">The Purchaser bought two units for a combined price of AED 16,433,400, of which he paid AED 4,900,350. As is often the case, the units were part of a project that was marketed as an all-inclusive residential development, with landscaping and facilities.</p>\r\n<p class=\"p1\">Handover was to be in January 2010 but the Developer was unable to deliver the units at that date and the Purchaser then proceeded to court.</p>\r\n<p class=\"p1\"><span class=\"s2\"> At the time the claim was filed the Land Department was able to confirm that the units were registered in the Purchaser’s name on the Interim Property Register and that the project was 91.11% complete. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> The Developer argued that the claim should be dismissed because the Units were complete, and filed two certificates of completion for the units from the Ports, Customs and Free Zone Corporation establishing proof of completion and two no objection certificates for the connection of water and electricity utilities. </span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Court of First Instance</strong></span></p>\r\n<p class=\"p1\">The Court of First Instance dismissed the claim on the basis that an expert appointed by the court had determined that the units were complete and the purchaser failed to pay the remaining installments on time.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Court of Appeal</strong></span></p>\r\n<p class=\"p1\">The Purchaser appealed. The Court of Appeal commissioned a further expert report which found that the units were part of a project launched as an all-inclusive residential development. The infrastructure was not complete and this meant the units could not be used for the intended purpose. The Purchaser had bought the units based on how the project was marketed and had been led to believe the infrastructure and amenities would be included in their purchase.</p>\r\n<p class=\"p1\">On this basis the Court of Appeal quashed the decision of the Court of First Instance, and declared the contract between the Purchaser and the Developer terminated. The Developer was ordered to pay back the Purchaser’s investment with interest. The Developer appealed.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Court of Cassation</strong></span></p>\r\n<p class=\"p1\">The Developer argued that it had completed the project according to the plans which were approved by the relevant authorities. The Developer submitted the certificate of completion of infrastructure for the project and the construction progress report. The Developer argued that these works (representing 20% of the project) were not part of the contract and were currently in progress. They were minor works that did not justify termination. The Developer also argued that it was the Purchaser who was in breach, having paid only 25% of the price of the two units.</p>\r\n<p class=\"p1\">The Court of Cassation dismissed the Developer’s arguments and held that:</p>\r\n\r\n<ul>\r\n 	<li>It is well established that according to Article 246(1) of the Civil Code, contracts must be performed in accordance with their terms and in a manner consistent with the requirements of good faith. Contracts are not limited to an obligation upon the contracting party to do that which is expressly stated in the contract but shall embrace that which is appurtenant to it by virtue of the law, custom and the nature of the transaction (Article 246(2)). These are assessed by the trial court within its discretion as the fact-finder. To that end the trial court determines whether there was any delay by the developer in performance of the contract, and whether the delay is of such a nature as to warrant its termination. The court’s discretion must be exercised soundly and with reference to the evidence.</li>\r\n 	<li>In an off-plan sale, the developer must complete the project and achieve timely delivery of the sold units to the purchaser, even if the sale contract makes no provision for completion and delivery. The seller cannot endlessly delay the completion of the project and delivery of the sold units.</li>\r\n 	<li>Either party may withhold performance of an obligation if the other party fails to perform his own reciprocal obligation on time. This means that the purchaser may withhold payment of the balance of the purchase price even if the payment is due, until there is no longer any reason to suspect that the seller will not perform his own reciprocal obligation (unless for some reason the purchaser has waived his right to withhold payment after the seller’s inability to perform was established).</li>\r\n 	<li>In this case, the purchase was concluded nearly eight years ago, but the Developer had not produced any evidence of any impediments that caused delay in execution of the contract. Furthermore, the incomplete amenities meant that the Purchaser could not use the units for their intended purpose. The Court of Appeal was therefore correct to find that the Purchaser could terminate the contract and recover sums paid. The Court of Appeal’s findings are sound and based on sufficient and reliable evidence and are not inconsistent with the law. Based on the foregoing, the appeal is dismissed.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p3\"><span class=\"s1\"><strong>Summary</strong></span></p>\r\n<p class=\"p1\">This is an important judgment because:</p>\r\n\r\n<ul>\r\n 	<li>it confirms earlier judgments which have held that a party can withhold performance (such as payment instalments) in circumstances where the other party is not actually in breach but it is clear that the other party will not be able to perform (such as developer who has two months to complete the project but has yet to start development); and</li>\r\n 	<li>it widens the grounds for termination to include situations where although the unit has been completed, the contract can still be terminated because the associated infrastructure has been delayed so that the unit cannot be used for its intended purpose at the time it is delivered.</li>\r\n</ul>\r\n<p class=\"p1\">Whilst each case turns on its merits, the judgment helpfully indicates that one of the factors the court will consider is how the project was marketed. It must be established that the project was marketed in a way that leads a purchaser to believe that the amenities are part of their purchase. In this case, the Court of Appeal assessed the status of the project at the time the case was filed and compared it to how the project was marketed when it was launched. The Court of Appeal concluded that the purchaser bought the units based on how the project was marketed and were led to believe the infrastructure and amenities would be included in their purchase. The Court of Cassation endorsed this approach.</p>'),
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	(102348,5565,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-15/february-9/dubai-court-judgment-on-public-policy-as-a-basis-for-reviewing-the-substance-of-an-arbitral-award.html'),
	(102347,5565,'_pageSummary','field_59e59b307dec8'),
	(102346,5565,'pageSummary','In the UAE, a party to an arbitration has the right to file a case to nullify an unfavorable arbitration award. With one exception, the basis on which a party can seek nullification is limited to a number of narrow procedural grounds (see Article 216 of the Federal Civil Procedure Law).'),
	(102345,5565,'_content_description','field_59b641c07f473'),
	(102286,5560,'_content_description','field_59b641c07f473'),
	(102287,5560,'pageSummary','Bahrain leads the Middle East in a range of sectors including Islamic finance, insurance, and asset management. Banking forms the biggest part of Bahrain’s financial services sector, with total banking assets of USD 192.7 billion as at September 2016, according to the Central Bank of Bahrain (‘CBB’), which is the sole regulator of the financial services sector in Bahrain.'),
	(102288,5560,'_pageSummary','field_59e59b307dec8'),
	(102289,5560,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/dec-jan-2017/why-the-introduction-of-protected-cell-companies-and-investment-limited-partnerships-is-good-news-fo.html'),
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	(102294,5560,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(102295,5560,'_yoast_wpseo_metadesc','This article provides an overview of these new types of legal entities, explains how they operate, and outlines the commercial advantages of these entities in relation to banking and finance services and products.'),
	(102296,5561,'content','December 2016 - January 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The World Economic Forum (WEF) released an annual corruption index as part of its Global Competitiveness Report . The findings are based on a WEF survey that interviewed nearly 15,000 business leaders from 141 economies from February to June. With an overall average of 4.6), Kuwait falls noticeably short in its financial market development, scoring 3.8; with low scores in both efficiency and market confidence. Corruption together with inefficient government bureaucracy were identified as the more problematic factors for doing business in Kuwait. Corruption has been a perpetual hindrance for businesses investing in the region, reducing market credibility and subsequently posing as a deterrent for investors. Informal monopolies and oligopolies exist; connections between the administration and private companies have often resulted in uneven market competition, not mentioning increasing inflation as a result of ‘cover ups’ and weakening economic development. It has been a lingering hope; particularly so, since the emergence of The Kuwait Direct Investment Promotion Authority (KDIPA) established in accordance with Law No. 116 of 2013, amongst the ever increasing foreign investment objectives dawning in the region, a more contemporary anti-corruption system has been almost imminent in Kuwait.</p>\r\n<p class=\"p1\">Public sector corruption in Kuwait has relapsed in the last year; according to Transparency International (the Berlin-based ‘corruption watchdog’), Kuwait ranked 55 out of 167 countries in 2016, dropping it six places from last year’s position at 49. A significant decline, in view of the fact that neighbouring Qatar and UAE saw remarkable improvements in this category.</p>\r\n<p class=\"p1\">Kuwaiti law has effectively criminalized identifiable corruption offences, but bribery, facilitation payments and giving and receiving gifts continue to be widespread in Kuwait despite being illegal.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Criminal sanctions have often been the chief weapon of choice employed in combating corruption, with the majority of international regulations containing central obligations for member states to punish payment of bribes and related crimes. The framework for anti-corruption law in Kuwait subsists mainly in the Penal Law 31/1970. This criminalizes passive and active bribery, attempted corruption, extortion, money laundering and abuse of office. The Law does not criminalize bribing a foreign official. The Anti-corruption and Wealth Disclosure Decree criminalizes the manipulation of public tenders and auctions, bribery, counterfeiting, forgery and graft. This decree incorporates articles on financial disclosure and money laundering, resulting in criminal penalties of up to seven years imprisonment for such dishonest practices. Under the Anti-Money Laundering and Combating the Financing of Terrorism Law, organized criminal groups and non-governmental organizations convicted of money-laundering can be imprisoned for up to 20 years. </span></p>\r\n<p class=\"p1\">However criminal law is not in itself enough. Last year saw the introduction of Kuwait Law No. 2/2016 concerning the establishment of a public authority for combating corruption, namely, The Kuwait Anti-Corruption Authority. The primary function of this Authority is in establishing the principles of ‘transparency’ and ‘integrity’ in the application of the UN Convention for combating Corruption, approved by Law No. 47/2006. The Authority seeks to regulate and more efficiently manage domestic strategy in this field, and the Authority is empowered to enforce financial and asset disclosures. This is a positive step toward fighting corruption.</p>\r\n<p class=\"p1\">Supplementary to the developments in administering financial disclosures, the 2016 law also aims to create a protection programme for whistleblowers, and to raise awareness and knowledge of corruption and its effects. This is challenging given that certain customs adopted within the region are not considered as overtly ‘corrupt’, but part of traditional practice (such as elaborate gift giving).</p>\r\n<p class=\"p1\">The Authority aims to implement principles of transparency in two phases. Both short-term and long-term mechanisms elaborated by means of compliance criterions specifically aimed at providing programmed training and support, devising effective systems for internal review, by recommending the establishment of appropriate purchase systems and developing disciplinary procedures against violations.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The release of the implementing regulations of the Authority under Decree No. 77/ 2015 will serve as a starting point for the Authority to begin carrying out its mandated tasks. A key part of its task will be issuing guidelines for businesses, civil society organisations, educational institutions, the media and places of worship. The government is optimistic that by allowing the Authority to tackle acts of public corruption, it will effectively decrease the growing prevalence of bribery and corruption at government ministries and institutions, and work in conjunction with public organizations to enhance Kuwait’s ranking on the Global Corruption Perception Index (CPI). In the critical stage of its macro-economic evolution, anti-corruption reforms may be considered somewhat peripheral to the more larger concerns in Kuwait; however, one must take an objective step back in an bid to grasp the widespread benefits of the anti-corruption movement- paving the road to transformation in all sectors within the region. </span></p>'),
	(157976,5561,'core_values',''),
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	(102300,5561,'content_description','Corruption is generally deemed one of the most eminent enemies of international trade. Where corruption runs unbridled, fair players are often prevented from accessing the market, leading to a diminished business climate, risking public trust and in expelling performance and quality. The international community has prioritised the focus on corruption in attempts to tackle this problem since the mid-1990s. Numerous policies have proliferated from the movement since, establishing ‘anti-corruption’ as a new, independent branch of law. At the summit of this composite regime are numerous international conventions that have been ratified by many of the world’s leading industrial nations in a bid to ‘combatting corruption’.'),
	(102301,5561,'_content_description','field_59b641c07f473'),
	(102302,5561,'pageSummary','Corruption is generally deemed one of the most eminent enemies of international trade. Where corruption runs unbridled, fair players are often prevented from accessing the market, leading to a diminished business climate, risking public trust and in expelling performance and quality. The international community has prioritised the focus on corruption in attempts to tackle this problem since the mid-1990s. Numerous policies have proliferated from the movement since, establishing ‘anti-corruption’ as a new, independent branch of law. At the summit of this composite regime are numerous international conventions that have been ratified by many of the world’s leading industrial nations in a bid to ‘combatting corruption’.'),
	(102303,5561,'_pageSummary','field_59e59b307dec8'),
	(102304,5561,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/dec-jan-2017/kuwait-paves-the-road-to-fighting-corruption.html'),
	(102305,5561,'_currentURL','field_59d35123ab1e7'),
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	(102309,5561,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(102310,5561,'_yoast_wpseo_metadesc','Numerous policies have proliferated from the movement since, establishing ‘anti-corruption’ as a new, independent branch of law. At the summit of this composite regime are numerous international conventions that have been ratified by many of the world’s leading industrial nations in a bid to ‘combatting corruption’.'),
	(214110,5716,'_yoast_wpseo_focuskeywords','[]'),
	(102311,5562,'content','December 2016 - January 2017\r\n\r\n<hr />\r\n<p class=\"p1\">This law aims to establish a certain degree of protection for, and prescribes the guidelines for the processing of, personal data within Qatar.</p>\r\n<p class=\"p1\">This article aims to highlight the salient features of the Data Protection Law and analyse its likely effect from the perspective of banks and financial institutions licensed to operate in Qatar.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Salient Features:</strong></span></p>\r\n<p class=\"p1\">The scope of the Data Protection Law extends to personal data which is processed electronically or obtained, collected and extracted for electronic processing or processed through a combination of traditional and electronic processing methods. However, the Data Protection Law does not extend protection to private processing of personal data or data collected for the purposes of attaining official statistics.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The Data Protection Law grants certain rights to individuals which include the right to give or withdraw consent to any processing of their personal data. An individual also has the right to review any of their personal data being stored,and to request any modifications or corrections where the information is inaccurate.</span></p>\r\n<p class=\"p1\">To protect these rights, the Data Protection Law places a heavy burden on the data controllers (i.e. individuals or companies who determine the data processing method and purpose) and processors to ensure that the personal data is handled with care and is duly protected from any leakage or loss or unauthorized disclosure of data. It directs the controllers to have in place adequate measures and procedures to ensure the safe custody of personal data. Some of the directions given to the controllers are as follows:</p>\r\n\r\n<ul>\r\n 	<li>Review the data privacy procedures;</li>\r\n 	<li>Determine the processors responsible for personal data privacy protection;</li>\r\n 	<li>Train and raise awareness amongst processors;</li>\r\n 	<li>Develop sound internal systems for receiving and considering complaints and for the effective management of personal data;</li>\r\n 	<li>Use proper technology;</li>\r\n 	<li>Carry out comprehensive audit to determine the level of compliance; and</li>\r\n 	<li>Verify the processor’s compliance with the instructions given.</li>\r\n</ul>\r\n<p class=\"p6\"><span class=\"s3\">Added protection is afforded to personal data of a private nature, namely; information relating to race, religious beliefs, children, health, relationships and criminal records which may only be processed after obtaining permission of the relevant department of the Ministry of Transport and Communications. Children are also protected under Data Protection Law from owners and operators of websites for children who are obligated to make adequate disclosures on their websites and obtain permission from the child’s parents before their information can be processed. </span></p>\r\n<p class=\"p1\">A prohibition has been imposed on direct marketing through electronic communication to individuals without obtaining their prior consent.</p>\r\n<p class=\"p1\">Notwithstanding the above, there are exemptions given under the Data Protection Law which allow the competent authority or the controllers to process personal data without compliance with certain provisions. These exceptions are as follows:</p>\r\n\r\n<ul>\r\n 	<li>Protection of national and public security;</li>\r\n 	<li>Protection of international relations of the State;</li>\r\n 	<li>Protection of economic or financial interests of the State;</li>\r\n 	<li>Prevention, collection of data on or investigation of a crime;</li>\r\n 	<li>Execution of a task related to public interest in accordance with the law;</li>\r\n 	<li>Execution of an obligation under the law or an order from the court of competent jurisdiction;</li>\r\n 	<li>Protection of vital individual interests;</li>\r\n 	<li>For purposes of scientific research carried out for the public interest; and</li>\r\n 	<li>Collection of the information needed for investigating a criminal offense, upon an official request from the investigation authorities.</li>\r\n</ul>\r\n<p class=\"p6\">The Data Protection Law prescribes high financial penalties for non-compliance or legislative breaches. The penalties will range from QAR 1,000,000 to QAR 5,000,000. However, it is notable that the penalties are financial only and imprisonment is not a prescribed sanction under this law.</p>\r\n<p class=\"p2\"><strong>Impact on the Qatari Financial Sector:</strong></p>\r\n<p class=\"p1\">Banks in the Qatar are regulated by the Qatar Central Bank (“QCB”) save for banks who operate within the Qatar Financial Center (“QFC”). QFC banks are excluded from the scope of this article as the QFC promulgated its own Data Protection Rules and Data Protection Regulations back in 2005 which apply to all companies operating in the QFC including banks.</p>\r\n<p class=\"p1\">The QCB has issued instructions to the banks to establish mechanisms and procedures which will safeguard the personal information and data of their customers. These banks are required to follow stringent guidelines to ensure that their computer systems/networks are well protected and proper encryption methods and information monitoring are in place.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The enactment of Data Protection Law may cause some practical difficulties for the banks either due to lack of clarity or the subjective nature of the law. To identify a couple of examples - under the Instructions to the Banks issued by the QCB, banks are directed to retain customers’ information for at least 15 years. However, the Data Protection Law grants a right to the individual to demand deletion of their personal information once the purpose for which the information was collected has been fulfilled, which may result in non-compliance with the aforementioned retention period. Another example relates to the ‘Know Your Client’ (KYC) process that the banks are required to undertake. During this process certain personal data of a private nature (as defined in the Data Protection Law) may be gathered by the bank. However, according to the Data Protection Law, such information may only be processed after obtaining permission of the relevant department of the Ministry of Transport and Communications. It is not clear whether the banks would need a blanket approval from the Ministry of Transport and Communications in this regard or would such permission differ from case to case. This may be a cumbersome process for the banks. </span></p>\r\n<p class=\"p1\">Moreover, the banks in Qatar are currently allowed to outsource certain non-core functions to service providers for the purposes of cost reduction, service improvement, or saving time for main services provided that they ensure that adequate controls and guidelines for risk mitigation are in place. However, it seems that the Data Protection Law places an additional obligation on the banks, as opposed to the processors, to ensure that the data obtained meets the lawful purposes and is processed in accordance with the law.</p>\r\n<p class=\"p1\">Furthermore, banks may have to revisit their marketing and promotional activities whereby currently their customers are being directly approached through electronic communication to market their products and services. Activities such as email updates or SMS marketing may not be possible under the Data Protection Law. However, the practical risks remain unclear at present as the relevant section in the Data Protection Law remain open to interpretation due to its broad connotation.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Recommendations for the Banks:</strong></span></p>\r\n<p class=\"p2\">As mentioned above, the Data Protection Law comes into effect only 6 months (which may be extended by a decision by the Cabinet) from the date of its publication in the official gazette. In order for the banks to be compliant with the law on its effective date, banks operating in Qatar should consider taking some precautionary steps some of which we have highlighted below:.</p>\r\n\r\n<ul>\r\n 	<li>raise awareness internally and amongst its service providers;</li>\r\n 	<li>review internal documents, agreements, policies, disclaimers, consents etc. from the perspective of complying with the Data Protection Law and also identify matters which need to be addressed;</li>\r\n 	<li>conduct internal training for the relevant departments such as IT, Legal, Marketing, technical support etc. to address any questions or concerns that the customers may have in relation to the Data Protection Law and their rights thereunder;</li>\r\n 	<li>conduct training for service providers responsible for processing the data, revisit internal risk assessments and mitigation plans;</li>\r\n 	<li>broadly identify potential issues, consult internally and take steps to rectify those issues or where the risk is still unclear, put in place appropriate holding measures; and</li>\r\n 	<li>revisit all security measures implemented by the bank and the service providers and assess whether any further steps can be taken or investments be made to protect customer data.</li>\r\n</ul>'),
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	(102312,5562,'_content','field_59b649b5c8b2b'),
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	(102315,5562,'content_description','The State of Qatar has issued a new law concerning the Privacy and Protection of Personal Data being Law No. 13 of 2016 (the “Data Protection Law”). Whilst the law is not currently in force it is anticipated that the law will be published in the official gazette soon and will come in to effect after 6 months of such publication. '),
	(102316,5562,'_content_description','field_59b641c07f473'),
	(102317,5562,'pageSummary','The State of Qatar has issued a new law concerning the Privacy and Protection of Personal Data being Law No. 13 of 2016 (the “Data Protection Law”). Whilst the law is not currently in force it is anticipated that the law will be published in the official gazette soon and will come in to effect after 6 months of such publication.'),
	(102318,5562,'_pageSummary','field_59e59b307dec8'),
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	(102340,5565,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">These might be, for example, where the Tribunal has ruled on matters that fall outside what is covered by the arbitral agreement, or where one of the parties was not informed of the process. A party cannot simply argue that the Tribunal got the decision wrong or misunderstood the law.</p>\r\n<p class=\"p1\">The exception is public policy. If it is alleged that an award breaches the rules of public policy, the Court must examine the substantive aspects of the award or the extent of its conformity with the law. Conformity with public policy is one of the most fundamental requirements of all legal acts and rulings, whether judicial or arbitral.</p>\r\n<p class=\"p1\">Public policy has no conclusive definition in UAE law, but it essentially relates to those rules and norms that are deemed so essential that a failure to comply would do damage to the public good or the state’s sovereignty. Any contract or award that breaches public policy is to be set aside or voided.</p>\r\n<p class=\"p1\">The question whether an award was deemed to be against public policy was recently considered by the Dubai Court of Cassation in Civil Appeal For Cassation No. 275 of 2014. The Court concluded that certain issues relating to the ownership of real estate property in the UAE were an issue of public importance which must be adjudicated by the local courts rather than adjudicated on arbitrators or made subject to a private settlement agreement. Therefore, the Court intervened to review the merits of the case and the grounds on which the arbitration award was issued, but ultimately found that the award had not breached public policy and would be recognized and enforced.</p>\r\n<p class=\"p2\"><span class=\"s1\"><strong>Summary of case </strong></span></p>\r\n<p class=\"p3\"><span class=\"s2\">In 2007, the Claimant (who is not a GCC citizen) entered into a share sale and purchase agreement (“SPA”) with the Respondent (a citizen of Saudi Arabia) pursuant to which the Claimant sold the Respondent 25% of his shares in a real estate company resulting in the Respondent thereafter holding 75% of the shares and the Claimant holding the remaining 25%. A dispute arose between the parties over the performance of the obligations under the SPA and, in accordance with the dispute resolution provisions of the SPA, the Claimant filed a claim with the Dubai International Arbitration Centre (DIAC) to resolve the dispute and to nullify the SPA. </span></p>\r\n<p class=\"p1\">The arbitrators determined that the SPA was valid and ordered the Claimant to pay the Respondent compensation in accordance with the Respondent’s counterclaims.</p>\r\n<p class=\"p1\">The Claimant then filed a case with the First Instance in Dubai to nullify the award.</p>\r\n<p class=\"p2\"><span class=\"s1\"><strong>Court of First Instance and Court of Appeal</strong></span></p>\r\n<p class=\"p3\">The Court of First Instance in Dubai ruled that the award had been issued pursuant to a valid arbitral procedure and was valid.</p>\r\n<p class=\"p1\">The Claimant appealed, but the Court of Appeal in Dubai upheld the judgment of the Court of First Instance.</p>\r\n<p class=\"p2\"><span class=\"s1\"><strong>Court of Cassation</strong></span></p>\r\n<p class=\"p3\">The Claimant appealed to the Court of Cassation on the grounds that the arbitration tribunal exceeded its authority by deciding matters relating to public policy. It argued that:</p>\r\n\r\n<ul>\r\n 	<li>the ownership of the shareholdings in the company were contrary to the UAE Federal Law concerning Commercial Companies which requires a company in the UAE to have one or more UAE national partners whose share in the company’s capital is not less than 51%.</li>\r\n 	<li>the SPA included a transfer to the company of the ownership of land plots and properties located in areas of Dubai which were not designated freehold areas, and so were areas where ownership is restricted to UAE &amp; GCC citizens (under Article 4 of the Law No. (7) of 2006 regarding property registration). The company was not wholly owned by a UAE or a GCC national.</li>\r\n 	<li>the land plots and properties were sold without being registered in the Real Estate Register which means that the relevant contracts of sale were void and, in turn, that the SPA was void.</li>\r\n</ul>\r\n<p class=\"p3\">The Court of Cassation rejected the appeal and upheld the award.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The Court explained that the Unified Economic Agreement between the Countries of the Gulf Cooperation Council (ratified by the UAE by Decree No. 55 of 2002) granted all GCC natural and legal citizens the same treatment as UAE citizens including all economic activities, especially the engagement in all economic, investment and service activities, stock ownership and company formation. Law No. 7 of 2006 concerning property registration in Dubai provides that the right to own property in the Emirate of Dubai shall be restricted to UAE and GCC nationals and to companies incorporated properly in the UAE. However the Court found that the company was in fact properly set up in the UAE with one of its shareholders being a GCC national holding a minimum of 51% of the share capital. It was not restricted from owning property in Dubai or trading or buying shares and setting up companies.</span></p>\r\n<p class=\"p1\">As regards the failure to register the properties, the Claimant initiated the arbitration to claim for compensation for alleged damages, loss of profit or loss of opportunity and neither party pleaded at that time that the agreements were void for not being registered on the Interim Real Estate Register. Accordingly, the arbitration tribunal only reviewed and determined the issues before it and did not consider the issues of the validity of the agreements or expatriating property and only concluded the factual findings that since 51% of the company’s shares were owned by a GCC citizen then it would not contravene the Companies Law.</p>\r\n<p class=\"p1\">The Court of Cassation therefore concluded that the award did not contravene Public Policy and found that the Claimant’s argument in this regard were baseless and to be dismissed.</p>\r\n<p class=\"p1\">This judgment is a timely reminder that the UAE Courts, in common with all national courts, have a duty to consider any allegations made that an award contravenes public policy. Such allegations may then necessitate a review of the merits of the award that ordinarily the court would not do. This does not however mean that the Court will abuse this power to find ways to negate the award, as is sometimes feared. As can be seen in this case, the Court considered and rejected the allegations, and upheld the award.</p>'),
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	(102270,5559,'content_description','This article aims to provide a legal assessment of the current Iraqi investment climate. I will start by addressing the available legal protection from political risk in Iraq. Then, I will survey Iraq’s international investment commitments.'),
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	(102272,5559,'pageSummary','This article aims to provide a legal assessment of the current Iraqi investment climate. I will start by addressing the available legal protection from political risk in Iraq. Then, I will survey Iraq’s international investment commitments.'),
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	(102280,5559,'_yoast_wpseo_metadesc','This article aims to provide a legal assessment of the current Iraqi investment climate. I will start by addressing the available legal protection from political risk in Iraq. Then, I will survey Iraq’s international investment commitments.'),
	(102281,5560,'content','December 2016 - January 2017\r\n\r\n<hr />\r\n<p class=\"p1\">While the role of the financial services sector in promoting growth in Bahrain may have been contested in the past, it is now widely recognised. A large and competitive financial services sector, together with liquid and active equity and debt capital markets that operate according to market principles and intermediating savings (domestic and foreign) for market-based investments, are strongly associated with higher growth rates.</p>\r\n<p class=\"p1\">This trend is being further encouraged by the series of reforms implemented by Bahrain in relation to its companies’ law framework. A series of new laws and amendments to existing laws have been implemented over the past 12 months or so with the principal aim of promoting business in Bahrain and encouraging investors to choose Bahrain as their destination of choice when doing business in the Middle East. The most recent of these changes include the introduction of investment limited partnerships and protected cell companies.</p>\r\n<p class=\"p1\">This article provides an overview of these new types of legal entities, explains how they operate, and outlines the commercial advantages of these entities in relation to banking and finance services and products.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Protected Cell Companies (‘PCC’)</strong></span></p>\r\n<p class=\"p2\">The Protected Cell Companies Law (Law No. 22 of 2016) (‘PCC Law’) was implemented on 13 October 2016 and introduced PCCs in Bahrain. This was a significant development in the area of corporate finance in Bahrain.</p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>What is a PCC?</strong></span></p>\r\n<p class=\"p2\">A PCC is a single legal entity made up of a core and one or more parts called ‘cells’. Once incorporated a PCC can have unlimited cells. The cells do not have their own legal personality but do offer ring-fencing of assets and liabilities as described below. Accordingly, a PCC has one board of directors that manage the affairs of the PCC as a whole. PCCs are regulated by the CBB.</p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>Purpose of a PCC</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">The purpose of a PCC is to provide a vehicle which can create cells, separate parts within which assets and liabilities can be segregated. This concept of ‘ring-fencing’ is fundamental to PCCs. The key principle is that the assets of a cell are only available to the creditors and shareholders of that particular cell. However, the PCC Law provides that the PCC shall be entitled to conclude an agreement with a third party whereby the third party has the right of recourse to the assets of the core for any liability that may arise from its transaction with any of the PCC’s cells, in addition to the assets of the cell in question. As the PCC Law is very recent, this provision is untested and its practical impact is unclear. Please see the diagram below for an illustration of how a PCC is structured. </span></p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>Setting up a PCC</strong></span></p>\r\n<p class=\"p1\">PCCs can either be a newly incorporated entity, or alternatively, an existing company can be converted to a PCC subject to CBB’s approval. Since the PCC Law is fairly recent, it is unclear how efficient and straightforward the conversion option is and whether it is an attractive option where there is already an established company in Bahrain. There is no minimum capital requirement for the core or any cell; however, the CBB will determine the minimum capital requirement in each case.</p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>Permitted activities for PCCs </strong></span></p>\r\n<p class=\"p1\">PCCs cannot be used for ordinary trading activities. A PCC (and an investment limited partnership) may only undertake the following activities, namely:</p>\r\n\r\n<ul>\r\n 	<li>A private investment undertaking (‘PIU’). A PIU is defined by the CBB as investment undertakings/funds that are registered with the CBB, and may be initiated by or offered to high net worth individuals or institutional investors, and impose a minimum initial investment/participatory interest of USD 3 million (or equivalent in any other currency);</li>\r\n 	<li>A collective investment undertaking (‘CIU’). A CIU is defined by the CBB as undertakings</li>\r\n</ul>\r\n<ul>\r\n 	<li>\r\n<ul>\r\n 	<li>the sole object of which is the collective investment of capital raised from the public through private placement, including investments seeded by the operator in financial instruments, and other assets, and which operates on the basis of risk-spreading as appropriate; and</li>\r\n 	<li>the holdings of which may be re-purchased or redeemed out of those undertakings’ assets as appropriate;</li>\r\n</ul>\r\n</li>\r\n</ul>\r\n<ul>\r\n 	<li>Securitisation. This is the process of taking an illiquid asset, or group of assets, and, through financial engineering, transforming them into security. An example of this is mortgage backed security;</li>\r\n 	<li>Insurance captives. A captive insurer is generally defined as an insurance company that is wholly owned and controlled by its insureds. Its primary purpose is to insure the risks of its owners, and its insureds benefit from the captive insurer’s underwriting profits; and</li>\r\n 	<li>Any additional activities that may be later identified and added into the regulation by the CBB (collectively referred to as the ‘Permitted Activities’).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\"><span class=\"s1\"><strong>Illustration of a PCC’s structure</strong></span></p>\r\n<p class=\"p2\">[image width=\"700\" class=\"__image__\" imageId=\"5189\" height=\"460\" src=\"http://localhost:8888/tamimi/en/media/get/20170118_Screen-Shot-2017-01-17-at-3.37.19-PM.png\"]</p>\r\n<p class=\"p2\"><strong>Potential practical applications of PCCs</strong></p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>1. Side by side portfolios</strong></span></p>\r\n<p class=\"p5\">Herein, we examine a hypothetical where Bahrain Company A wishes to offer three distinct strategies (e.g., fixed Income, equity, and real estate) to investors. Each strategy entails a different level of risk. Bahrain Company A has two structuring possibilities, namely:</p>\r\n<p class=\"p1\">Option A: set up three separate funds. One fund dedicated for each strategy; or</p>\r\n<p class=\"p1\">Option B: set up a PCC in Bahrain – Bahrain Company Fund PCC.</p>\r\n<p class=\"p1\">The share capital of Bahrain Company Fund PCC is made up of shares of the following cells:</p>\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\">\r\n<p class=\"p9\"><span class=\"s3\"><strong>Cell</strong></span></p>\r\n</td>\r\n<td class=\"td2\" valign=\"top\">\r\n<p class=\"p9\"><span class=\"s3\"><strong>To Whom the Shares are Issued</strong></span></p>\r\n</td>\r\n<td class=\"td3\" valign=\"top\">\r\n<p class=\"p9\"><span class=\"s3\"><strong>Type of Investor</strong></span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Core Cell</span></p>\r\n</td>\r\n<td class=\"td5\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Investment Manager</span></p>\r\n</td>\r\n<td class=\"td6\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Not Applicable</span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Fixed Income Cell</span></p>\r\n</td>\r\n<td class=\"td5\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Risk Averse Investors</span></p>\r\n</td>\r\n<td class=\"td6\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Fixed Income Instruments</span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Long Equity Cell</span></p>\r\n</td>\r\n<td class=\"td5\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Medium Risk Taking Investors</span></p>\r\n</td>\r\n<td class=\"td6\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Listed Equities</span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td7\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Long Short Cell</span></p>\r\n</td>\r\n<td class=\"td8\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">High Risk Taking Investors</span></p>\r\n</td>\r\n<td class=\"td9\" valign=\"top\">\r\n<p class=\"p10\"><span class=\"s4\">Equities and Derivates</span></p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"p1\">The potential comparative advantage between the two options are as follows:</p>\r\n\r\n<ul>\r\n 	<li>Option A clearly segregates the risks of each strategy. For example, it is not possible for any adverse exposure on the long short cell to affect investors of the fixed income cell.</li>\r\n 	<li>Option B is a cost efficient solution compared to option A as it avoids setting up and administering three separate entities. At the same time, it offers the same level of risk segregation as option A due to the ring fencing features of a PCC. As such, option B would likely be preferable.</li>\r\n</ul>\r\n<p class=\"p4\"><span class=\"s1\"><strong>2. Cost efficient asset holding</strong></span></p>\r\n<p class=\"p1\">By way of another hypothetical, Middle East Asset Management Company (‘MEAMC’) advises a number of clients. From time to time, each client requires an investment holding company to hold specific assets and/or investments. In such a situation MEAMC has two options, namely:</p>\r\n\r\n<ul>\r\n 	<li>incorporate one investment holding company for each client and/or for each asset and/or investment; or</li>\r\n 	<li>incorporate a PCC where MEAMC holds the core cell’s shares and each client is offered a cell to hold its assets and/or investments. Some clients may wish to have more than one cell to internally segregate the risk of each asset and/or investment.</li>\r\n</ul>\r\n<p class=\"p5\"><strong>Advantages of PCCs</strong></p>\r\n<p class=\"p2\">Advantages of PCCs include cost savings and efficiency of managing certain risks. Permitted Activities (defined above) are particularly suited to the PCC structure because the vehicles required to undertake such activities (generally to set up a fund in Bahrain, (subject to CBB’s approval), a corporate entity or a trust must be incorporated in Bahrain) tend to be costly to establish and operate, and so the benefit of replicating a structure through the PCC provides a clear commercial advantage.</p>\r\n<p class=\"p1\">The administrative benefits of a PCC are significant. Once a PCC structure is in place, repeat transactions can be established in a shorter timeframe. This is particularly attractive in projects such as CIU funds, where negotiating transaction documents can be a complex and lengthy process and where a successful initial structure will often lead to a demand for further, similar structures using the same key participants.</p>\r\n<p class=\"p1\">Such activities tend to have financially sophisticated creditors who are likely to understand the principles of ring fencing. In the case of investment funds, investors often want the ability to invest in a range of sub funds in the same umbrella structure or to switch their investment between sub funds.</p>\r\n<p class=\"p1\">Potentially a framework could be established that includes all of the participants in the structure, such as administrators, managers, investment managers, and custodians, and model agreements entered into governing the contractual roles of these participants. CBB approval is likely to be required in advance for the structure, and subsequently as new cells are added. The subsequent formalities may be reduced because the fundamental structure has already been agreed.</p>\r\n<p class=\"p1\">Where particular transactions are envisaged, for example, adding a fund to invest in a specific country or sector, or a new vehicle to acquire receivables in the course of a securitisation a cell may be created specifically to act in that defined role. In theory, if the functionary agreements are in agreed form and CBB approvals have been obtained with respect to the form of the transaction, a new cell can be added at lower costs and shorter time than would be required if the structure was to be established from scratch.</p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>Disadvantages of PCCs</strong></span></p>\r\n<p class=\"p1\"><span class=\"s5\">A potential disadvantage of PCCs is the limited pool of assets which is accessible for recourse to the creditors of a particular cell. Also, given that the PCC Law has recently been implemented and involves a relatively complicated concept of a new corporate entity (i.e. separate assets and liabilities), it is imperative that all parties involved understand how a PCC operates. More importantly, according to the PCC Law, prior to entering into a transaction with any party, the PCC must disclose to the other party that it is a PCC and the cell activity in relation to the transaction. If the PCC fails to make such disclosure, the transaction in question may be annulled at the request of the said party. </span></p>\r\n<p class=\"p2\"><strong>Investment Limited Partnerships (‘ILP’)</strong></p>\r\n<p class=\"p2\"><strong>Partnerships under the Companies Law</strong></p>\r\n<p class=\"p1\">Under the Commercial Companies Law, as amended by Law No. 50 of 2014 and Law No. 28 of 2015, (‘Companies Law’) two types of partnerships can be established, namely:</p>\r\n\r\n<ul>\r\n 	<li>General partnership company; and</li>\r\n 	<li>Limited partnership company.</li>\r\n</ul>\r\n<p class=\"p11\">The difference between the two types of partnerships is the liability of the partners.</p>\r\n<p class=\"p1\">In a general partnership company, the partners have unlimited liability for the debts of the company.</p>\r\n<p class=\"p1\"><span class=\"s5\"> In a limited partnership company, the partners are divided into general and sleeping partners. General partners have unlimited liability, whereas the sleeping partners’ liability is limited to the principal value of their shares. The general partners are responsible for the management of the company. The sleeping partners are prohibited from being involved in the management of the partnerships. If a sleeping partner breaches this provision, he/she may lose his/her limited liability and have unlimited liability for the debts of the partnership. </span></p>\r\n<p class=\"p1\">There are no restrictions on the activities that can be undertaken by these two types of partnership companies under the Companies Law.</p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>ILP</strong></span></p>\r\n<p class=\"p1\">The Law on Investment Limited Partnerships (Law No. 18 of 2016) was implemented on 4 August 2016 (‘ILP Law’). An ILP can only undertake the Permitted Activities (which are exactly the same activities a PCC can undertake). An ILP is similar to a limited partnership company in that a general (defined as an ‘Active Partner’ in the ILP Law) partner’s liability is unlimited and a sleeping (defined as a ‘Dormant Partner’ in the ILP Law) partner’s liability is unlimited. ILPs are regulated by the CBB.</p>\r\n<p class=\"p1\">With partnership laws being well established in common law jurisdictions, such as London, New York, and Singapore, the ILP Law allows firms in and/or from such jurisdictions to operate in Bahrain within a legal framework with which they are familiar. The ILP Law also supports investment companies in establishing financial investment funds, and enables them to access new funding mechanisms.</p>\r\n<p class=\"p2\"><strong>Conclusion </strong></p>\r\n<p class=\"p2\">The introduction of PCCs and ILPs are likely to enhance Bahrain’s competitiveness in the financial services sector by making it easier to structure investment activities. It is hoped and anticipated that the flexibility under Bahrain law will allow continued innovation in relation to the use of PCCs. We hope that these changes boost Bahrain’s position as a financial hub.</p>'),
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	(102409,5568,'pageSummary','The seat (or legal place) of arbitration is a key element of any arbitration clause because it determines a number of key factors, such as which law the arbitral process will be conducted under, which national courts will have a supervisory role, and what nationality the award will have (and by extension, how enforceable it will be in different jurisdictions around the world).'),
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	(102419,5568,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','r.lewsley@tamimi.com'),
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	(102432,5569,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The courts of the DIFC (DIFC Courts) began operating in 2006, having been established by Dubai Law No. 12 of 2004 (the Judicial Authority Law). They operate a common law system which draws extensively on the laws of England and Wales. This gives international commercial parties operating in the region the option of choosing a legal system with which they are generally more familiar, and whose working language is English, rather than submitting to the Arabic-speaking civil law system prevailing across the GCC states. Businesses operating within the jurisdiction of the DIFC Courts also benefit from the availability of experienced judges from a number of established common law jurisdictions, as well as several resident Emirati judges with civil law backgrounds.</p>\r\n<p class=\"p1\">An increasingly attractive destination for foreign investors, the Emirate of Ras Al Khaimah has now formally agreed to work with the DIFC Courts to ensure that the option of using the DIFC’s legal system is available to a wide range of parties wishing to do business in the Emirate.</p>\r\n<p class=\"p1\">One of the new components of this relationship is the Agreement on Judicial Cooperation with the DIFC Courts entered into by the Executive Council of the Government of Ras Al Khaimah, the Judicial Council of Ras Al Khaimah and the Ras Al Khaimah Courts. In this agreement, the Executive Council has confirmed that the government agencies of Ras Al Khaimah, as well as any local or foreign investors operating in the Emirate, may enter into contracts which are expressed to be subject to the exclusive or non-exclusive jurisdiction of the DIFC Courts.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Agreement on Judicial Cooperation provides furthermore for the mutual enforcement of judgments between the Ras Al Khaimah Courts and the DIFC Courts. Judgments issued in Ras Al Khaimah may be enforced in the DIFC Courts in accordance with the Judicial Authority Law. In return, the Ras Al Khaimah Courts have agreed to enforce directly DIFC Court judgments of any kind, notably including both interim orders and judgments relating to wills and probate matters, provided that the following conditions are satisfied:</span></p>\r\n\r\n<ul>\r\n 	<li>The subject of enforcement is within the Emirate (whether property located in the Emirate or a person legally residing there);</li>\r\n 	<li>The judgment is final, in the sense of being capable of execution, and accompanied by an execution writ issued by the DIFC Courts;</li>\r\n 	<li>The execution writ, along with a translation into Arabic, is submitted to the execution judge of the Ras Al Khaimah Courts;</li>\r\n 	<li>The conditions set out in the Federal Civil Procedures Law are complied with; and</li>\r\n 	<li>A letter is received by the Ras Al Khaimah Courts from the DIFC Courts’ Registry asking for the judgment to be enforced.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">The effect of these provisions is to remove the need for claimants to take a DIFC Courts’ judgment to the Dubai Courts for conversion into a Dubai Courts judgment and subsequent referral on to the Ras Al Khaimah Courts under the so-called ‘deputisation’ process.</p>\r\n<p class=\"p1\">The DIFC Courts and Ras Al Khaimah Courts have agreed to set up a panel of judges drawn from both legal systems to resolve cases where their respective laws disagree. However, unlike the judicial committee created by Decree 19/2016 in Dubai, which decides alleged conflicts of jurisdiction and/or judgments involving the Dubai Courts and DIFC Courts, the decisions of the Ras Al Khaimah/DIFC ‘collaborative committee’ will not be binding.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In parallel with the Agreement on Judicial Cooperation, the Executive Council of the Government of Ras Al Khaimah has concluded an Agreement on Arbitration Cooperation with the DIFC Arbitration Institute. Under this Agreement, the Emirate’s government agencies, along with investors, may enter into arbitration agreements subject to the rules of the DIFC-LCIA Arbitration Centre and with a seat in the DIFC. </span></p>\r\n<p class=\"p1\">The intended and anticipated effect of these two agreements is to increase confidence on the part of investors doing business with Ras Al Khaimah governmental institutions that they can validly submit any dispute they may encounter to a relatively familiar, internationally-recognised and English-language forum.</p>\r\n<p class=\"p1\">The aims of the agreements are furthered by several memoranda of understanding issued at the same time, which seek to strengthen the ties between the DIFC and Ras Al Khaimah authorities.</p>\r\n<p class=\"p1\">One MoU covers the registration of wills with the DIFC Wills and Probate Registry (WPR). Eligible users of the WPR service are able to nominate to whom property located in the Emirate of Dubai will be given after their death, subject to certain provisions. The Ras Al Khaimah Courts and Municipal Department have agreed to enforce decisions of the DIFC Courts relating to WPR-registered wills. It is anticipated that the DIFC Courts’ WPR Rules will be amended in early 2017 to extend their protection to property located within the Emirate of Ras Al Khaimah as well, giving more freedom and rights to people drafting WPR wills.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In other memoranda, the DIFC and Ras Al Khaimah authorities have agreed to implement a number of measures to improve communication and cooperation. The staff of the DIFC Courts will provide the Emirate’s authorities with onsite training on DIFC Courts judgments and probate orders. There will also be a single point of contact to whom queries and requests for information can be addressed. The Executive Council of Ras Al Khaimah, together with the Sheikh Saqr Programme for Government Excellence and the DIFC Academy of Law, have agreed to establish a system to educate Emirati students and professionals on the common law with the aim of producing lawyers familiar with both the civil law system, generally applicable in the UAE, and the common law system prevailing in the DIFC and several other international business centres.</span></p>\r\n<p class=\"p1\">As with many strategic projects, the real impact of these agreements and memoranda can only be measured several years from now. The overarching agreement is for a provisional three-year period, and there is likely to be much learning for all sides over that period. None of the agreements or memoranda are legally enforceable as such, but they are supported by existing federal law and the law of individual Emirates. There are some noteworthy provisions of real significance, such as the confirmation by the Emirate of Ras Al Khaimah of the reciprocal enforceability of judgments, and that its authorities can enter into DIFC jurisdiction and arbitration agreements.</p>\r\n<p class=\"p1\">Whether such agreements materialise remains to be seen and both lawyers and investors will watch with interest to see whether the DIFC’s dispute resolution options become more widely used by parties with interests in Ras Al Khaimah. For now, parties with interests in both Ras Al Khaimah and the DIFC are likely to be reassured by the newly enhanced relationship between the two jurisdictions.</p>'),
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	(102407,5568,'content_description','The seat (or legal place) of arbitration is a key element of any arbitration clause because it determines a number of key factors, such as which law the arbitral process will be conducted under, which national courts will have a supervisory role, and what nationality the award will have (and by extension, how enforceable it will be in different jurisdictions around the world). '),
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	(102390,5567,'content_description','The DIFC’s status as a conduit jurisdiction for the enforcement of foreign arbitral awards and foreign judgments remains intact, at least for now, but the Judicial Tribunal has  effectively curbed its jurisdiction to recognise and enforce domestic arbitral awards where annulment proceedings are commenced in the Dubai Courts.  '),
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	(102403,5568,'content','February 2017\r\n\r\n<hr />\r\n<p class=\"p1\">But what if the parties fail to explicitly state the seat? How should the seat then be determined? In an important judgement issued last year, the DIFC Courts addressed this issue and concluded that there was “no reason why the Seat of Arbitration cannot be determined by reference to an implied choice, giving consideration to the Seat with the most connection with the Agreement, the parties, the transaction and any other relevant consideration”. The DIFC Court’s determined the seat was the DIFC, but for reasons that some might consider surprising and which demonstrate the importance of not leaving such questions open to interpretation.</p>\r\n<p class=\"p1\">This article will briefly summarise the background to the case and review the judgment of the DIFC Court of First Instance.</p>\r\n<p class=\"p2\"><span class=\"s1\"><strong> </strong></span><strong>Background </strong></p>\r\n<p class=\"p4\"> In May 2007, Gavin Bank (“Gavin”) entered into a Store Value Card Processing Service and Marketing Agreement (“SVC Agreement”) with Gaynor Gulf (“Gaynor”), under which Gaynor was required to provide store value card services to Gavin for customers in the United Arab Emirates.</p>\r\n<p class=\"p1\">The SVC Agreement included the following clauses:</p>\r\n\r\n<ul>\r\n 	<li>Clause 13.2 identifies that “<em>[t]he validity, construction and interpretation of [the SVC Agreement] and the rights and duties of the parties hereto shall be governed by the internal laws of the UAE.</em>”</li>\r\n 	<li>Clause 13.3 states that the parties agree to “submit to the jurisdiction of the courts in Dubai, the UAE.”</li>\r\n 	<li>Clause 13.4 identifies an informal dispute resolution procedure while Clause 13.5 states that “<em>[a]ny controversy arising out of, or relating to this [SVC] Agreement, or the breach thereof, which cannot be resolved pursuant to Section 13.4 above, shall be submitted to arbitration per the law of the United Arab Emirates.</em>”</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\">Gaynor is managed by and affiliated with Gaynor US, a California-based company that develops and operates technology platforms around the world. A dispute arose between Gavin and Gaynor, which led to Gaynor and Gaynor US initiating court proceedings against Gavin in California in July 2011 (“the California Proceeding I”). Subsequently, the Californian court ordered that the dispute should be submitted to arbitration.</p>\r\n<p class=\"p1\">In October 2014, Gaynor US initiated court proceedings against Gavin in the California courts to seek an order compelling arbitration regarding the claims that had been previously dismissed in the California Proceeding I (“California Proceeding II”). Gaynor joined the California Proceeding II as a claimant and requested the California courts to compel arbitration of the dispute in California.</p>\r\n<p class=\"p1\">A little over a year later, Gavin initiated proceedings in the DIFC Court of First Instance seeking an order to appoint an arbitrator, pursuant to the arbitration agreement contained in Clause 13.5 of the SVC Agreement.</p>\r\n<p class=\"p1\">Subsequently, Gavin filed a motion in California Proceeding II requesting to dismiss or alternatively stay the case in favour of the DIFC Proceeding. In September 2015, the California Court granted an order compelling arbitration in California.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The Application Before the DIFC Courts</strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">Gaynor resisted Gavin’s application to the DIFC Courts for an arbitrator. Firstly, it argued that Clause 13.5 of the SVC Agreement did not constitute a valid arbitration agreement and thus the DIFC Court of First Instance did not have jurisdiction to appoint an arbitral tribunal. Gaynor argued, amongst other things, that the arbitration agreement did not comply with the mandatory requirements under the UAE Federal Law No. 11 of 1992 (“UAE Civil Procedure Code”) as it did not state the number of arbitrators, and that in failing to state the seat the agreement lacked an essential element and so could not be said to have been concluded. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Secondly, Gaynor claimed that even if Clause 13.5 of the SVC Agreement were a valid arbitration agreement, the DIFC Court of First Instance did not have jurisdiction to appoint a tribunal because the agreement did not state that the DIFC was the seat. Gaynor claimed it was irrelevant whether the contract was going to be carried out in the DIFC or not, because the arbitration clause was a separate agreement that was to be performed at the seat and not necessarily where the rest of the contract was to be performed. The question was whether the DIFC Courts had jurisdiction over the arbitration clause specifically, not the substantive agreement. The contract made reference to ‘the Courts of Dubai’, but this was ambiguous as it could refer to the DIFC Courts or the Dubai Courts outside of the DIFC. The California Court had already ordered that the seat was to be California. This amounted to res judicata and was binding on Gavin and the DIFC Courts. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Thirdly, Gaynor submitted that the DIFC Court should choose not to exercise its jurisdiction as Gavin’s application constituted an abuse of process (even if the DIFC Court enjoyed jurisdiction over the matter), because it would duplicate the proceedings in California and possibly lead to inconsistent decisions. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Gavin argued that the DIFC Court of First Instance had jurisdiction over the claim and requested the Court to confirm its jurisdiction and to appoint an arbitrator pursuant to the Judicial Authority Law and DIFC Court Law No. 10 of 2004. Gavin argued that the arbitration agreement was valid in the UAE on the basis that the only requirement for a valid arbitration agreement in the UAE is that it should be in writing, regardless of whether UAE or DIFC law is applicable. Since the parties had agreed to subject their dispute to the laws of the UAE, this included DIFC law and the DIFC Arbitration Law provides that where a contract is governed by DIFC law the seat shall be the DIFC unless agree otherwise (Article 27). Some of the parties’ dealings took place in the DIFC, including the Gaynor seeking to incorporate in the DIFC, raise capital in the DIFC and use an address in the DIFC. Finally, it was argued that the Californian Order was incorrect and was being appealed. </span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>DIFC Court Judgment </strong></span></p>\r\n<p class=\"p1\">The Court found that the parties’ intentions throughout the proceedings were clear: both sought to arbitrate their dispute. However, the controversy remained over the seat of arbitration as Gaynor sought to arbitrate in California while Gavin sought to arbitrate in the DIFC.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The Court accepted that the arbitration clause itself did not clearly nominate the DIFC to be the seat, and nothing in the entire agreement referred specifically to the DIFC. In order for the Court to have jurisdiction the Court would need to be satisfied that one of the jurisdictional gateways detailed at Article 5(1) of the Judicial Authority Law was satisfied. One of these gateways is where the issue relates to an action arising out of or in relation to any incident or transaction, wholly or partly performed within the DIFC and relates to DIFC activities.</span></p>\r\n<p class=\"p1\"><span class=\"s4\"> The Court did not find it sufficient that Gaynor had at one time considered incorporating in the DIFC, had tried to raise capital in the DIFC, or had stated prior to the agreement an address in the DIFC. However the Court did consider that a letter dated 4 May 2009 (two years after the agreement was entered into) provided sufficient evidence. The letter discussed arrangements for a meeting to take place the following day in the DIFC, and was sent not by Gaynor itself, but by Gaynor Pakistan, a different entity. The Court found that this was ‘quite clear evidence that the transaction between the parties took place, at least in part, within the DIFC, which means that the parties transacted business in the geographical territory of the DIFC and therefore must be governed by DIFC Laws’. The fact that it was sent by a different entity was not material because the substance related to the performance of the agreement or that a contract related to the agreement came through the DIFC.</span></p>\r\n<p class=\"p1\">The Court then concluded that, as a result of the letter, the reference in the agreement to ‘the courts in Dubai’ must mean the DIFC Courts. Furthermore, this meant that any reference to the UAE was a reference to the DIFC, so that the reference to the ‘arbitration law of the UAE’ was a reference to the DIFC Arbitration Law.</p>\r\n<p class=\"p1\">Although no seat was explicitly stated, the Court held that the seat could be determined by reference to an implied choice, giving consideration to the seat with the most connection with the agreement, the parties, the transaction or any other relevant consideration. Since the agreement referred to Dubai, UAE law and the Dubai, UAE Courts, all of which the Court interprets to refer to the DIFC laws and courts, there was ample support to an implied seat of arbitration being DIFC.</p>\r\n<p class=\"p1\"><span class=\"s4\"> As regards Gaynor’s argument that the arbitration clause was invalid under UAE (non-DIFC) law, since the applicable law to the arbitration has been determined to be DIFC law, the fact that the clause may not have been valid under the UAE Civil Procedure Code was immaterial. </span></p>\r\n<p class=\"p1\"><em>Abuse of Process</em></p>\r\n<p class=\"p1\">The DIFC Court of First Instance however ordered a stay on the basis that the DIFC Proceeding and California Proceeding II raised the “possibility of conflicting decisions regarding the same facts”. The DIFC Court held that the appropriate course of action was to dismiss a claim in parallel actions where the subject matters are “strongly connected and hard to separate [...] as they all stem from performance of the same agreement”. However since Gavin was appealing the California Order, a stay would be issued.</p>\r\n<p class=\"p1\">The DIFC Court found that it had jurisdiction over this case; therefore, the DIFC Proceeding could proceed if and when the California Court or the appointed Arbitral Tribunal overturned the jurisdiction ruling in favour of Gavin.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong> </span></p>\r\n<p class=\"p1\">This judgment is a striking reminder of the importance of drafting a proper arbitration clause, and of recognising that unlike most countries, the UAE has a number of very different legal systems so that it is ambiguous to merely refer to the UAE or even to Dubai or Abu Dhabi (which could also refer to the Abu Dhabi Global Market). The DIFC Courts were able to assume jurisdiction on the basis of a letter sent years after the agreement was signed, which was not sent by one of the parties, and which merely referred to arranging a meeting in the DIFC. All of these issues could have been avoided with a properly drafted agreement.</p>\r\n<p class=\"p1\"><span class=\"s3\"> It should also be noted that the Court’s findings also related to the substantive law to be applied to the dispute, which may have a dramatic effect on the claim and remedies available, as the law applicable in the DIFC is in many respects significantly different to that applied in non-DIFC UAE. </span></p>\r\n<p class=\"p1\">By interpreting the contract so freely, the DIFC Courts have expanded their jurisdiction and reminded parties that leaving ambiguities can lead to unintended and profound consequences.</p>'),
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	(95968,5212,'content','September 2015\r\n\r\n<hr />\r\n\r\nThere is almost always a request for credit card details, or a money transfer, and this money is never seen again.\r\n\r\nThe Cyber Law No. 5 of 2012 was issued with the aim of protecting individuals (and companies) from cyber crime. It sets out severe penalties for cyber crimes such as fraud, forgery and other fraudulent acts committed using technological platforms. The Cyber Law, with the support of other existing laws, secures the protection of individuals and companies who receive emails from impersonators disclosing false information in an attempt to acquire funds or a benefit.\r\n\r\nIn this regard, we highlight a recent case handled by Al Tamimi that serves as an example for how these crimes are dealt with.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe impersonators created a fraudulent website and named it after a well-known investment company based in Abu Dhabi (‘the Company’). The Company has an existing genuine website derived from its name and ending with “.com”. The fake website changed the company’s initials and ended the website with “.org” instead.\r\n\r\nNot only did the website state the full names of the Board Members and the CEO of the true Company, it also had several photos of them and gave a background of the Company’s business and areas of expertise so that the website would seem as genuine as possible.\r\n\r\nThe impersonators then contacted individuals and companies to offer investment services. In doing so, they created a fraudulent email with an e-signature referring to the name of one of the Company’s senior representatives. They further sent a Non-Disclosure Agreement which had a forged signature of the Company’s true senior representative.\r\n\r\nOne victim transferred an amount of money as a result of receiving the fake email; another discovered the matter at an earlier stage. Fortunately, they contacted the Company through one of its true email addresses which revealed the fraud. In late 2014, the genuine Company attained the domain information for the fake website and the details of the person who had registered it.\r\n\r\nEarlier this year, the Company discovered two additional fraudulent websites and the communications that occurred through it, which were almost identical to the previous fraudulent scheme.\r\n\r\n<strong>Unlawful access and re-publishing information</strong>\r\n\r\nThe above fraud is a breach of the Cyber Law. With certain conditions, the Cyber Law provides for severe penalties for those who enter an electronic site without permission or exceed the limits of the permission to copy, publish or re-publish any data or Information.\r\n\r\nThe Cyber Law also addresses the circumstance of circumventing the protocol address of the internet by using a fake address or an address belonging to third party or by any other means for the purpose of committing a crime.\r\n\r\n<strong>Forgery &amp; Electronic Forgery</strong>\r\n\r\nThe existing Federal Criminal Law No. 3 of 1987 details when an act may be considered as a forgery and when anyone committing such an act will be subject to criminal penalties including imprisonment. The Cyber Law tackles specifically any person who has forged and/or who has used an electronic document (with the knowledge of the forgery) and imposes a penalty ranging from imprisonment to a fine.\r\n\r\n<strong>Fraud</strong>\r\n\r\nThe Criminal Law imposes a penalty of imprisonment or a fine for whoever manages to unlawfully acquire funds using fraudulent acts or by impersonating someone.\r\n\r\nThe Cyber Law tackles the same concept but mainly for technology platforms. It penalizes a person who unlawfully acquires a benefit by using any fraudulent method or impersonation through an Information Network, Electronic Information System or any of the Information Technology Tools as defined in the Law.\r\n\r\n<strong>Court orders to close Electronic Sites</strong>\r\n\r\nWhilst there are a number of potential actions that can be taken against the impersonator(s), the primary aim for the client in this case was to block the fraudulent website so as to prevent harm to its reputation and customers.\r\n\r\nThe legal strategy was successful in attaining the above outcome. The strategy relied mainly on provisions from the Cyber Law which allows for confiscating the means used to commit any of the crimes provided for in its provisions or by erasing the information along with closing the site where any of these crimes are committed.\r\n\r\nBy highlighting the massive harm and continuous risks from the breaches committed through accessing the Company’s website to copy and re-publish the information found there; using false email addresses to unlawfully acquire funds; forging a signature; we were able to secure the desired outcome.\r\n\r\nThe Abu Dhabi Court issued an order to block the fraudulent website on an urgent basis. It was issued in late 2014 and another Court order was issued earlier this year to close the other two fraudulent websites.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Cyber Law is the main law addressing crimes occurring through the internet and technology platforms. The above case demonstrates the effectiveness of the Cyber Law and the strong action taken by the local courts in implementing it.\r\n\r\nHowever depending on the desired course of action, other laws may be relied on as well. Once there is a discovery of a fraudulent act, early legal assistance is critical to ensure the correct strategy is put in place to prevent the fraudsters and any further harm.'),
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	(95972,5212,'content_description','Many individuals get emails from people claiming that they need assistance in investing or accessing funds that they hold, or that the person receiving the email has won a lottery and needs to pay money to facilitate the transfer of the winnings. '),
	(95973,5212,'_content_description','field_59b641c07f473'),
	(95974,5212,'pageSummary','Many individuals get emails from people claiming that they need assistance in investing or accessing funds that they hold, or that the person receiving the email has won a lottery and needs to pay money to facilitate the transfer of the winnings.'),
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	(95980,5212,'lawUpdateArticleWriters',''),
	(95981,5212,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(95982,5212,'_yoast_wpseo_metadesc','Many individuals get emails from people claiming that they need assistance in investing or accessing funds that they hold, or that the person receiving the email has won a lottery and needs to pay money to facilitate the transfer of the winnings.'),
	(95983,5213,'content','September 2015\r\n\r\n<hr />\r\n\r\nThe Committee is a body of the government created by Cabinet Resolution no. 3 of 2011 and charged with adjudicating disputes that arise by reason of a registered commercial agency.\r\n\r\nPursuant to the Law, decisions of the Committee may be appealed to the competent court within 30 days from the date of notifying the parties of the Committee’s quasi judicial decision.\r\n\r\nIn practice, parties to a dispute involving a commercial agency that wish to circumvent the Committee’s statutory jurisdiction and procrastinate proceedings before the Committee would bypass the Committee and initiate proceedings directly before the Courts. The practice of the UAE Courts -federal and local courts alike- have always been to reject claims filed in connection with a registered commercial agency for failure of the parties to follow the path specified by the Law i.e. to report any dispute to the Committee first. The similarity between courts’ precedents to date is that the disputes in question arose between a principal and its commercial agent. In the precedents subject of this commentary however, the controversies are commercial agents and third parties. In the following two judgments, we project the UAE Courts’ take on whether the Commercial Agencies Committee may assume jurisdiction to entertain disputes between one or two parties of a commercial agency and a third parties.\r\n\r\n<strong>Dubai Cassation Court decision in civil appeal no. 126/2014 dated 18/12/2014</strong>\r\n\r\n<strong>The facts of the case:</strong>\r\n\r\nA commercial agent (the “Agent”) filed a civil claim for compensation before the Dubai Court of First Instance against a third party (the “Defendant”) for importing products subject of the commercial agency into the UAE. The Court of First Instance rejected the case for being filed through a way other than that which is specified by the Commercial Agencies Law i.e. filing the case before the Committee. The Agent consequently took the case to the Committee which issued a preliminary decision assuming jurisdiction to hear the case and notifying the parties to attend before the Committee.\r\n\r\nThe Defendant -aiming to procrastinate the proceedings - challenged the Committee’s decision before the Dubai Court of First Instance on grounds of Article 28 of the Law the effect of which is that parties may appeal or object to decisions of the Committee within 30 days from the date of notification of the Committee ‘decision. The Defendant further asserted that the effect of Article 27 of the Law setting out the Committee’s jurisdiction is that the Committee is only competent to look into any dispute that arises between a principal and its commercial agent in connection with a registered commercial agency which would consequently entail that any dispute involving a third party falls out of such jurisdiction. The Defendant further submitted that the dispute in question is of a civil nature rather than a trait concerning a commercial agency which renders the dispute outside the scope of the Commercial Agencies Law.\r\n\r\nThe Court of First Instance rejected the case, the Defendant appealed to the Dubai Court of Appeal which rejected the case as well and the Defendant therefore filed the instance petition to the Dubai Court of Cassation challenging the lower courts decisions on the following grounds:\r\n<ul>\r\n 	<li>The Committee’s jurisdiction to hear disputes arising out of commercial agencies is an exception to the Court’s jurisdiction and may not be widely interpreted to include disputes involving third parties;</li>\r\n 	<li>The Agent’s claim against the Defendant is of civil nature which is subject to the application of the Civil Transactions Law and not the Commercial Agencies Law thus falls out of the scope of the Committee; and</li>\r\n 	<li>(The appealed judgment failed to identify the authority from which it derived that the Committee’s decision is treated as a judicial decision when it comes to whether a the committee’s decision is conclusive or merely a preliminary decision rendered during the proceedings and thus may not be appealed. The Appeal Court held that what is meant by the Committee decision which may be appealed or objected to by the parties by way of a traditional court case is a conclusive decision that adjudicates the dispute between the parties while the case at hand is related to a preliminary decision by the Committee on its jurisdiction to hear the dispute and an invitation to the parties to attend before the Committee.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>The Court of Cassation</strong>\r\n\r\nThe Court rejected the grounds of challenging the appealed judgment and held that the Law determined that any dispute which may arise by reason of a commercial agency falls under the ambit of the Committee. The effect of Article 28 of the Law is that parties may appeal conclusive decisions of the Committee to the competent court within 30 days from the date of notification of the Committee’s decision.\r\n\r\nSimilarly, Article 2 of the UAE Cabinet decision no. 3 of 2011 concerning the Commercial Agencies Committee states that any dispute arising by reason of a registered commercial agency falls under the ambit of the Committee.\r\n\r\nThe Court of Cassation explained that the Law conferred the jurisdiction to hear any dispute that arises by reason of a commercial agency to the Committee without consideration as to the parties of such dispute i.e. whether the dispute is between the parties of the commercial agency or third parties. It is therefore prohibited for any party to bypass the Committee’s jurisdiction and take the dispute directly to the courts. Once the Committee issues its decision, the parties have the right to challenge the Committee’s decision before the competent court within the statutory time limit. The criterion in determining whether the Committee’s decision is conclusive or preliminary i.e. a decision to notify the parties of the dispute to attend before the Committee is whether such decision adjudicates the subject matter of the dispute.\r\n\r\nThe Court construed that the Committee’s letter to the parties declaring its jurisdiction and notifying the parties to attend before the Committee does not fall under the criterion of a conclusive decision and thus may not be the subject of an appeal according to Article 151 of the Civil Procedures Law. In stating this, the Court considered the Committee’s decision as a judicial decision subject to application of the same procedural rules as the court’s decisions.\r\n\r\n<strong>Union Supreme Court decision in administrative challenge no. 147/2014 dated 28/5/2014</strong>\r\n\r\n<strong>The facts of the case</strong>\r\n\r\nSimilar to the previous case, the commercial agent in this case initiated proceedings before the Dubai Court of First Instance against two entities (the “Claimants”) and requested the appointment of a committee of experts to evaluate the damages and losses the agent incurred due to importation of vehicles subject of its agency into the UAE when the commercial agent was not the consignee.\r\n\r\nThe Dubai Court rejected the case for filing it by a way other than that specified by the Law i.e. before the Commercial Agencies Committee. The First Instance Court’s decision was upheld by both the Appeal and Cassation Courts.\r\n\r\nThe Agent re-initiated the case before the Committee which issued a preliminary decision with its jurisdiction over the dispute and notified the parties with the proceedings.\r\n\r\nThe Claimants dissatisfied with the Committee’s decision objected to the Abu Dhabi Federal Court of First Instance and joined the Ministry of Economy to the proceedings sought to cancel the Committee’s decision. The First Instance Court found that it lacked the jurisdiction to hear the dispute as it falls within the Committee’s jurisdiction. The Claimants appealed and the Abu Dhabi Federal Appeal Court upheld the lower court’s decision. The Claimants therefore challenged the appeal court’s decision before the Union Supreme Court on the same grounds submitted in the previous precedent. The Union Supreme Court upheld the appealed decision and rejected the case, however, the Supreme Court’s reasoning for rejecting the petition and interpretation of the nature of the Committee’s decisions were slightly different from those of the Dubai Cassation Court.\r\n\r\nThe Claimants submitted that the effect of Article 151 of the Civil Procedures Law is that decisions issued during the course of proceedings may not be the subject of appeal with few exceptions that include judgments determining the jurisdiction of a court in the event that the subject of the dispute does not fall under the jurisdiction of deciding court. Applying this to the instance case entails that a decision issued by the Committee regarding its jurisdiction can be the subject of an appeal.\r\n\r\n<strong>Union Supreme Court</strong>\r\n\r\nThe court dismissed the Claimants argument on the premise that only judicial conclusive decisions can be the subject of an appeal while on the other hand quasi judicial decisions issued by administrative bodies which do not apply the rules and procedures of the law that are applicable to court judgments may not be subject to appeal through means stipulated in the Civil Procedures Law so long as such decisions are not prescribed with the meaning of a judicial decision as stipulated in the law. While the Committee’s conclusive decisions may be appealed before the competent courts, the decision of the Committee in the instance case was merely an invitation to the parties to attend before the Committee which is a preliminary decision that –per law- may not be appealed.\r\n\r\n<strong>Practice note:</strong>\r\n\r\nRegardless of the classification of whether the Committee’s decisions are considered judicial hence applicability of the procedural rules or quasi judicial that falls out of the scope of the procedural rules, the above decisions confirmed in practice that any dispute arising because of a commercial agency falls under the ambit of the Commercial Agencies Committee’s jurisdiction including disputes between parties of a commercial agency and a third party which is not a party of the commercial agency contract. The UAE Courts in the above two cases relied on Article 23 of the Commercial Agencies Law in extending the Committee’s jurisdiction to include any third party that violates a commercial agency agreement. Parties are advised to follow the path specified by the law in order to avoid unnecessary costs at courts so long as the dispute is concerning a commercial agency regardless of whether the dispute is between the parties of the commercial agency or involving a third party.'),
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	(95985,5213,'lawUpdateArticleMonth','5210'),
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	(95987,5213,'content_description','The UAE Federal Law no. 18 of 1981 as amended by Law no. 2 of 2010 (the “Law”) regulates the subject of Commercial Agencies and explicitly confer the jurisdiction over any dispute that arises in connection with a commercial agency to the Commercial Agencies Committee (the “Committee”). '),
	(95988,5213,'_content_description','field_59b641c07f473'),
	(95989,5213,'pageSummary','The UAE Federal Law no. 18 of 1981 as amended by Law no. 2 of 2010 (the “Law”) regulates the subject of Commercial Agencies and explicitly confer the jurisdiction over any dispute that arises in connection with a commercial agency to the Commercial Agencies Committee (the “Committee”).'),
	(95990,5213,'_pageSummary','field_59e59b307dec8'),
	(95991,5213,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/september-5/uae-courts-interpretation-of-the-jurisdiction-of-the-commercial-agencies-committee-extends-to-includ.html'),
	(95992,5213,'_currentURL','field_59d35123ab1e7'),
	(95993,5213,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Marwa El Mahdy'),
	(95994,5213,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(95995,5213,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
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	(167739,5213,'stats_list',''),
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	(96007,5213,'_yoast_wpseo_metadesc','Al Tamimi & Company projects the UAE Courts’ take on whether the Commercial Agencies Committee may assume jurisdiction to entertain disputes between one or two parties of a commercial agency and a third parties.'),
	(96008,5214,'content','September 2015\r\n\r\n<hr />\r\n\r\nThis becomes a problem if such views are expressed in a way that constitutes an insult or discrimination, or promotes hate and violence.\r\n\r\nWith the objective of preserving the harmony of UAE society, the UAE has enacted a new Federal Decree by Law No. 2 of 2015 that solidifies principles of tolerance and acceptance of others. The new Law, which came into force in August 2015, punishes hate crimes and discrimination with penalties including, but not limited to, imprisonment (from six months to fifteen years) and fines (of AED 50,000 to AED 2,000,000).\r\n\r\nThe new law introduces a number of new provisions, but also overlaps with existing legislations. Much of the law adds greater detail and higher penalties in relation to acts that have historically been viewed as acts of crime. As such, deeming them as crimes is not considered a new development. Notably, the far reaching impact of the law is to place emphasis on the UAE’s vision and efforts to preserve the existing harmony among its residents.\r\n\r\nBelow, we highlight some examples from the new law that overlap with existing laws, particularly Cyber and Criminal laws.\r\n\r\n<strong>Offending Religions</strong>\r\n\r\nCriminal Law\r\n\r\nThe existing Criminal Law No 3 of 1987 establishes penalties for anyone who offends the recognized divine religions. The new law also penalizes any form of offence to the divine religions, in addition to the holy books, Gods, prophets or apostles, churches and mosques. The new law sets out the definition of divine religions as Islam, Christianity and Judaism.\r\n\r\nThe penalties in the new law are also stricter compared to those provided in the Criminal Law. The new law is arguably more concise, with a structure that further elaborates on such crimes, while including more definitions.\r\n\r\nCyber Law\r\n\r\nSimilarly, the Cyber Law No. 5 of 2012 addresses insults to Islamic rituals and the recognized divine religions. The new law is arguably providing further examples of what is considered a crime with regards to offences to religion.\r\n\r\nThe Cyber Law addresses crimes committed on the internet, websites, social media and other technological tools. The scope of the new Law’s application is considered broader as it covers the aforementioned platforms, as well as any visual and audible methods, along with normal speech.\r\n\r\nIt is worth mentioning that the enactment of the Cyber Law, which came into force in August 2012, cancelled any provisions that contradicted its provisions. In other words, the Cyber Law would exhaustively apply to crimes regulated under it, even if they were construed as being covered by the Criminal law as well.\r\n\r\nOn the other hand, Article 2 of the new law provides that the penalties under the new law will apply to the crimes regulated under it, without prejudice to any higher penalties under any other law. It can therefore be expected that in instances where there are contradictory provisions, the higher penalties in the new law will apply.\r\n\r\n<strong>Discrimination</strong>\r\n\r\nNot only does the new law protect believers’ beliefs, it also safeguards the beliefs of nonbelievers. The new law provides penalties for anyone accusing other religious groups or individuals of being infidels or nonbelievers for personal interests or for unlawful purposes.\r\n\r\nThe penalty for such actions could reach the death penalty if such accusations encourage others to kill and a crime is consequently committed.\r\n\r\nUndoubtedly, severe penalties as such show the UAE’s strict approach towards hateful and discriminatory acts committed against any person on its land, irrespective of his or her background and beliefs. The new law also establishes penalties for any discriminatory acts based on race, colour or ethnic origin.\r\n\r\nThe conditions for each of the above acts are assessed on a case by case basis and are associated with varying factors including, but not limited to, the criminal intent to commit such crimes.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe new law, which substantially overlaps with pre-existing laws, is welcomed as it is more concise and its structure provides further detail in terms of when certain activities are considered criminal and what punishments may apply.\r\n\r\nThe overlapping of provisions is not unusual in the UAE, especially in areas that need to accommodate the nature of a rapidly developing cosmopolitan society. In instances where there are two contradictory provisions, it is usually the case - with some exceptions - that the latest provision with the higher penalty will apply to a given crime. The higher penalties in the new law would thus apply to crimes that fall under it. However, any overlap with the new law is still to be tested before Courts.'),
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	(96009,5214,'_content','field_59b649b5c8b2b'),
	(96010,5214,'lawUpdateArticleMonth','5210'),
	(96011,5214,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(96012,5214,'content_description','Given the UAE’s cosmopolitan nature, it is commonplace for those residing in the country to have opposing views and beliefs. '),
	(96013,5214,'_content_description','field_59b641c07f473'),
	(96014,5214,'pageSummary','Given the UAE’s cosmopolitan nature, it is commonplace for those residing in the country to have opposing views and beliefs.'),
	(96015,5214,'_pageSummary','field_59e59b307dec8'),
	(96016,5214,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/september-5/new-uae-law-against-hate-crimes-and-discrimination.html'),
	(96017,5214,'_currentURL','field_59d35123ab1e7'),
	(203479,5214,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(203478,5214,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Anna Marshall'),
	(96020,5214,'lawUpdateArticleWriters',''),
	(96021,5214,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(96022,5214,'_yoast_wpseo_metadesc','Given the UAE’s cosmopolitan nature, it is commonplace for those residing in the country to have opposing views and beliefs.'),
	(96023,5215,'content','September 2015\r\n\r\n<hr />\r\n\r\nOwners may seek criminal prosecution through the criminal court, to which they can join a civil claim.  Customs border measures are another method.  Finally, there is the option of administrative action through in-market raids carried out by Department of Economic Development (“DED”) inspectors.\r\n\r\nAdministrative actions are carried out in the UAE through the DED in Dubai, Sharjah and Abu Dhabi, or coordinated through the Ministry of Economy in the other Emirates.  The actions are usually launched by brand owners against outlets that sell counterfeit goods.\r\n\r\nThe Dubai DED is currently the most active law enforcement agency in the UAE with respect to anti-counterfeiting actions and has its own inspectors who conduct regular market visits and undertake inspections on behalf of brand owners.\r\n\r\nGenerally speaking, in order to enable the concerned inspectors at the Dubai DED to list a particular brand on their ‘watch list’ while conducting their regular inspections in the market, a certain infringer must be identified and official fees of AED2,010 must be paid to record a trademark and open a file.  This is usually called an Open File and will be valid for six months only.\r\n\r\nFor the purpose of facilitating the process of trademark protection and to enable all brand owners to protect their trademarks through administrative procedures effectively, the Dubai DED has recently issued a decision which allows brand owners to record their brand free of charge and for an unlimited time, so long as the trademark registration certificate in the UAE is still valid.  This decision is a great benefit to brand owners, as counterfeit goods bearing their registered brand will be under watch by the Dubai DED inspectors with no additional charges.  Nonetheless, the official fees are still required to address a complaint against a particular infringer.\r\n\r\nRequirements to record the trademark before the DED and to open a general file include a copy of the UAE trademark registration certificate and an explanatory document.\r\n\r\nThe remedies for administrative actions are usually confiscation and destruction of the goods with a fine imposed against the infringers.  The advantage of administrative complaints is that they are quite efficient and quick, compared to court actions.\r\n\r\nThis new strategy of interacting with brand owners will assist to protect recorded brands effectively without added complexities or fees.  We urge all brand owners to consider such initiatives and take further steps to effectively monitor the market against counterfeits.\r\n\r\nFor assistance with any Intellectual Property queries in the Middle East, please contact Omar Obeidat at o.obeidat@tamimi.com or Munir Suboh at m.sobuh@tamimi.com.'),
	(167661,5215,'core_values',''),
	(96024,5215,'_content','field_59b649b5c8b2b'),
	(96025,5215,'lawUpdateArticleMonth','5210'),
	(96026,5215,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(96027,5215,'content_description','There are various avenues for enforcing trademarks.  '),
	(96028,5215,'_content_description','field_59b641c07f473'),
	(96029,5215,'pageSummary','There are various avenues for enforcing trademarks.'),
	(96030,5215,'_pageSummary','field_59e59b307dec8'),
	(96031,5215,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/september-5/how-to-benefit-from-trademark-protection-before-the-dubai-department-of-economic-development-ded.html'),
	(96032,5215,'_currentURL','field_59d35123ab1e7'),
	(96033,5215,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','809'),
	(96034,5215,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
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	(96037,5215,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
	(96038,5215,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
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	(96040,5215,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(96041,5215,'_yoast_wpseo_metadesc','There are various avenues for enforcing trademarks. There is the option of administrative action through in-market raids carried out by Department of Economic Development (“DED”) inspectors.'),
	(96042,5216,'content','September 2015\r\n\r\n<hr />\r\n\r\nThe type of trademark infringement is manifold. In addition to straightforward brand name infringement, infringement of the unique shape of a successful product and copying its distinguished packaging elements are also common in the marketplace. In the case of infringement of shape and other aesthetic features of a product, the infringer tries to market their product with a different brand name but copies the unique shape and design of a successful product in an attempt to confuse  consumers into purchasing the item. Since the infringer uses a different brand name for their product, taking legal action against the infringement is difficult as the law enforcement authorities will normally be hesitant to take action against products with a brand name totally different from the genuine and registered brand.\r\n\r\nIn the UAE, as with most countries, the shape of a product falls within the definition of the word “trademark”. So, the ornamental or aesthetic nature of article product can be protected by registering a shape trademark. The shape of a product can often be of significant value to a business and it is advisable to consider making use of the trade mark law provisions to secure the intellectual property value of a product with a commercially significant shape, and to enforce such registered rights against possible infringers.\r\n\r\nIn the UAE, legal action is possible against the infringement of a shape and design of a product which is registered as a 3D or shape trademark.  We have recent experience of successfully taking such action.   The brand owner is a well known developer and manufacturer of a range of home appliances and electrical products based on innovative technologies developed by them. As such the products are instantly distinguishable from conventional products in the same product segments as a result of the unique technology and designs underpinning their products.  However, they had been encountering a persistent issue of infringement of their unique products by similar products with identical shape and design but with different brand names all manufactured in China. The infringing products even copied the peculiar images and artistic works created by the brand owner describing the unique features and function of their products, on the infringing products’ packages as well as in the product manual inside the packages.  Since the brand names used for the infringing products were different, it was not possible to take any legal action against the infringers for breaching the trademark relating to the name of the product.\r\n\r\nThe brand owner then considered registering the shape of their product as a 3D trademark in the UAE, and subsequent to the filing of the necessary application they were granted registration for the same.\r\n\r\nFollowing the successful registration of the product as a Shape (3D) trademark in the UAE, an administrative complaint was filed against the infringers.  The complaint was accepted and the counterfeit goods were seized.\r\n\r\nThis particular case has created an important precedent as it is one of the unique administrative complaints to be launched and accepted by the law enforcement authorities in Dubai enforcing the protection awarded to 3D trademarks.\r\n\r\nBased on this successful result, it is recommended that brand owners file for 3D trademark protection to protect the unique shape of their products.'),
	(167629,5216,'core_values',''),
	(96043,5216,'_content','field_59b649b5c8b2b'),
	(96044,5216,'lawUpdateArticleMonth','5210'),
	(96045,5216,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(96046,5216,'content_description','Trademark infringement is a never ending concern for businesses in countries around the world, and the UAE is no different.  '),
	(96047,5216,'_content_description','field_59b641c07f473'),
	(96048,5216,'pageSummary','Trademark infringement is a never ending concern for businesses in countries around the world, and the UAE is no different.'),
	(96049,5216,'_pageSummary','field_59e59b307dec8'),
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	(96061,5217,'content','September 2015\r\n\r\n<hr />\r\n\r\nIt is a financing arrangement that enables a business to sell its account receivables (ie. outstanding monies owed to that business) to third parties at a discounted price. These third parties are typically banks or financial institutions, also known as factors. A company would agree to sell and assign its receivables to the factor, prior to their due date, at an agreed discounted rate. The discount accounts for the risk of non-payment.\r\n\r\n<strong>Factoring Arrangements </strong>\r\n\r\na.     Recourse Factoring\r\n\r\nThe most common form of factoring arrangement across most jurisdictions is a recourse factoring arrangement. In a recourse factoring arrangement, the company shall be obliged to re-purchase the receivables in the event that the purchaser of the goods or services, which have been validly assigned to the factor, does not make payment to the factor.\r\n\r\nb.     Non Recourse Factoring\r\n\r\nThe alternative arrangement is non recourse factoring where the only recourse available to factors for non-payment is against the purchasers themselves (except in specific circumstances such as situations involving a commercial dispute between the company and the purchaser). We set out some of these circumstances in the section below dealing with the most common risks faced by clients.\r\n\r\nMore specific to this region is an undisclosed factoring arrangement, which factors may agree to, but this depends upon the nature of the purchaser.\r\n\r\nc.    Undisclosed Factoring\r\n\r\nWhere the purchasers are highly rated but there are difficulties in obtaining acknowledgments from them, the factoring arrangement may remain undisclosed to the purchaser and it is only the company who has resort against the purchaser. In these cases, in the event of non payment and exercising recourse against the purchaser, the company acts as the agent of the factor.\r\n\r\n<strong>Legal Requirements </strong>\r\n\r\na.     Assignment of receivables\r\n<ul>\r\n 	<li>Assignment of receivables is a concept recognised under the published and gazetted laws of the United Arab Emirates (“UAE Law”) subject to certain conditions. Assignment of a future receivable, over any asset that is not identifiable or where the identification is uncertain, will not be recognised under the UAE Law. Therefore, the invoices that evidence any receivable to be assigned should have already been issued by the company.</li>\r\n</ul>\r\n<ul>\r\n 	<li>The subject matter of the assignment should be free from encumbrances and other restrictions. In the event that the underlying sale and purchase contract contains such prohibitions or conditions, such prohibitions or conditions must be waived by the purchaser.</li>\r\n</ul>\r\nb.    Perfection\r\n<ul>\r\n 	<li>The jurisprudence in relation to perfection of assignment of receivables differs between Emirates. Under UAE Law as applied by the courts of the Emirate of Dubai, for an assignment of rights to be perfected, written notice advising of the assignment must have been received by the relevant counterparty. Under UAE Law as applied by the federal courts of the United Arab Emirates (the “Federal Courts”), for an assignment of rights to be perfected it must be received by the relevant counterparty and that counterparty must consent to the assignment. There seems to have been a shift whereby a notice of the assignment in some cases has been deemed sufficient by the Federal Courts to perfect an assignment without the need for an acknowledgment or consent, but this is not a sufficiently established practice to alter legal advice as to the legal requirements.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Whilst each assignment is effective as between a factor and a company from the date on which it was entered into (assuming the company had capacity and authority and had duly executed such assignment), the perfection requirements are relevant to the factor’s rights against the purchaser, since these are not available until perfection of the assignment.</li>\r\n</ul>\r\n<strong>Risk Factors Applicable to Factoring Arrangements</strong>\r\n\r\na.    Perfection\r\n\r\nAs stated above, within the Emirate of Dubai, perfection requires notice and for the Emirates which follow the Federal Court system perfection requires consent and acknowledgment.\r\n\r\nAn undisclosed factoring arrangement, by its very nature, is not perfected so affords no rights to the factor against the purchaser.\r\n\r\nUAE Law requires the party receiving the assets or rights, pursuant to any sale or transfer of assets or rights, to take possession of or control over those assets or rights to complete the sale or transfer. In a recourse or non recourse factoring arrangement, this requirement shall be fulfilled by way of an instruction under the notice of assignment (addressed to the purchaser by the company), that the assigned receivables will be deposited in the factor’s designated account. In an undisclosed factoring arrangement, where no notice was served to the purchaser, the requirement of possession may be achieved by the company collecting the assigned receivables on behalf of the factor as its agent and obliging the company to pay the collected receivables into a blocked account held with the factor.\r\n\r\nWhilst such an agency arrangement should be sufficient to achieve constructive possession of the receivables by the factor, there is little clarity because:\r\n<ul>\r\n 	<li>such a structure has not been tested before the Courts of the United Arab Emirates; and</li>\r\n 	<li>the assignment under an undisclosed factoring arrangement is never perfected, as mentioned above.</li>\r\n</ul>\r\nb.    Insolvency of the Company\r\n\r\ni.     Priority of claims\r\n\r\nIn a recourse factoring arrangement, the factor is not taking a risk on the creditworthiness of the purchaser unless the company becomes insolvent, whereas in a non recourse factoring arrangement, the factor takes a risk on the creditworthiness of the Purchaser. This potentially makes a non recourse factoring arrangement more expensive.\r\n\r\nUnder an undisclosed factoring arrangement, it is highly likely that the receivables will form part of the insolvent company’s pool of assets as the assignment has not been perfected. In this case, the factor is taking a credit risk on the company. For disclosed factoring if there has been a perfected assignment the receivables do not form part of the insolvent company’s assets so the factor is not taking is no credit risk on the company.\r\n\r\nii.    Antecedent transactions\r\n\r\nThere are certain circumstances in which transactions effected by an insolvent party can be challenged. The applicable provisions of Federal Law No. 18 of 1993 issuing the Commercial Transactions Law (the “UAE Commercial Code”) provide for a two year claw-back period (ending on the date of insolvency) in respect of the following types of payments made, or security granted, by the insolvent party:\r\n<ul>\r\n 	<li>donations;</li>\r\n 	<li>amounts paid to settle a debt before the maturity of its term;</li>\r\n 	<li>settlement of a debt in a manner otherwise than as agreed (ie. by payment in kind);</li>\r\n 	<li>provision of a mortgage or other security over the debtors property to secure a prior debt; and</li>\r\n 	<li>any other disposal by the insolvent party during the claw-back period which harms its general body of creditors.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nSuch disposals may also include sale of receivables for consideration which may be lower than market value. There appears to be no specific test set out under the UAE Law regarding the value of the consideration for the sale of receivables and this would be a matter for the discretion of the Federal Courts and the local courts of each Emirate in the UAE.  Any sale or transfer deemed to be below market value by a court of the UAE could be subject to challenge in insolvency.\r\n\r\nc.     Prior assignment or encumbrance\r\n\r\nThere is no independent public register in the UAE, which registers the documentation in relation to factoring arrangements or any assignment of receivables. In the event that a competing assignment arises or is claimed, then enforcement would depend on the dates of the notices or acknowledgements of each of the competing assignments, with the first assignment to be properly perfected being effective.\r\n\r\nTherefore, an assignment under a recourse or non recourse factoring arrangement may still be effective if perfected first in time (against a competing interest) as against an assignment under an undisclosed factoring arrangement, which is never perfected.\r\n\r\nd. Dispute between the Company and the Purchaser in relation to underlying sale contract\r\n\r\nAs the factor will be subject to: (i) the terms of the underlying sale and purchase contract; and (ii) the conduct between the company and the purchaser, in relation to the goods or services to be provided, the factor should conduct proper due diligence into the company’s business and history with regard to recovery of receivables, issues with quality, disputes and any other due diligence as the factor may consider relevant to the purchaser. Factors should carefully consider the provisions of the sale and purchase contract including provisions, which relate to prohibition on assignment or complex countervailing rights such as set off, withholding or volume rebates.\r\n\r\ne.   Power of attorney\r\n\r\nWhile it is advisable for the factor to obtain a power of attorney from the company authorising its legal recourse against the purchaser for non-payment, it should be noted that in general a power of attorney in the UAE is revocable.\r\n\r\nSome comfort can be taken from Article 955 of Federal Law No. 5 of 1985 issuing the Civil Transactions Law, which states:\r\n\r\n“…if the agency has been created for the benefit of the agent, in which case the principal may not terminate or restrict it without the consent of the person for whose benefit it was created.”\r\n\r\nA power of attorney may also: (i) give the factor credibility when seeking payment from purchasers; and (ii) allow the factor to file a legal action and send legal notices on behalf of the company.\r\n\r\nf.    Account Provisions\r\n\r\nAll assigned receivables should be paid into the factor’s account in order for it to reflect as a true sale of receivables under the relevant invoices. For regulatory reasons it is sometimes not possible or advisable for a bank to have receivables paid to an account in its name. In such situations, the receivables should be paid to a blocked or pledged account of the assignor ie. where the company is appointed as an agent of the factor.\r\n\r\n<strong>Most Common Risks Faced by Clients</strong>\r\n\r\na.    Retrospective discount by the Company\r\n\r\nThere are often concerns regarding retrospective discounts agreed between the company and the purchaser. This risk may be addressed in the proposed factoring agreement by way of:\r\n<ul>\r\n 	<li>a representation by the company to the factor that the receivables are not subject to any discount; and</li>\r\n 	<li>a notice to the purchaser, which states that payment for assigned receivables shall be made to the factor without any deduction.</li>\r\n</ul>\r\nIn a non recourse factoring arrangement, the factor should ensure that breach of the representation in (i) above is an event which obliges the Company to re-purchase the assigned receivables pursuant to terms of the factoring agreement between them.\r\n\r\nb.    Negation of assignment\r\n\r\nThis risk only arises under a non-recourse factoring as under a recourse factoring arrangement it would be re-purchased by the Company. Therefore any negation of assignment should be specified as a breach of the factoring agreement.\r\n\r\nc.    Violations by the Company of the agreement form withthe Purchaser\r\n\r\nIt is always advisable that factors ensure that:\r\n<ul>\r\n 	<li>any change in the underlying sale and purchase contract between the Company and the Purchaser is a non-recourse repurchase event; and</li>\r\n 	<li>amendment of invoices evidencing assigned receivables is prohibited without the prior consent of the factor.</li>\r\n</ul>\r\nd.      Insolvency of the Purchaser\r\n\r\nThe risk of insolvency or bankruptcy of the purchaser may be dealt with by way of a credit insurance, entered into between the factor, as the beneficiary, and the relevant insurance company.\r\n\r\ne.       Imperfect documentation\r\n\r\nThis risk may be addressed by obligating the Company under the factoring agreement to take all such steps or actions that may be required by the factor or otherwise, to perfect assignment(s) entered into pursuant to a factoring arrangement.\r\n\r\nf.       Disputes in relation to unidentified proceeds\r\n\r\nFactors should ensure that the factoring agreement contains provisions allowing the factor to debit sums standing to the credit of the company account received from a purchaser unallocated, which are in the factor’s reasonable opinion, the proceeds of an assigned receivable.\r\n\r\n<strong>Factoring arrangements governed under laws other than those of the UAE</strong>\r\n\r\nPerfection requirements may be different where agreements are governed by laws other than those of the UAE. While UAE Law recognises the principle of freedom of contract, which extends to choice of governing law and jurisdiction, the UAE Courts are usually reluctant to recognise the choice of a foreign law or jurisdiction and may apply UAE Law irrespective of the agreement between the parties. This may lead to the evidential requirement of the purchaser’s acknowledgment and consent to uphold the validity of assignment, even if this would not have been required under the parties’ chosen governing law. It is accordingly advisable to have assignments perfected under the laws which govern (i) the underlying commercial agreements or (ii) the jurisdiction of the company or purchaser.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile factors may not always have the choice of their preferred form of factoring arrangement, in the UAE, undisclosed factoring arrangements are inadvisable unless the factor is given confirmation from the purchaser that it will not consent to or acknowledge such an arrangement.'),
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	(96082,5218,'content','September 2015\r\n\r\n<hr />\r\n\r\nAs the only common law dispute resolution forum in the UAE, the DIFC Courts have helped to maintain the UAE’s position on the world stage as a focal point for all local, regional and international business communities. This article explores four significant developments that have dominated the agenda of the DIFC Courts in the past year.\r\n\r\n<strong>Developments in Enforcement: Expanded Reach of DIFC Courts’ Judgments </strong>\r\n\r\nThe DIFC Courts have been actively signing memoranda of guidance on enforcement with judicial authorities across a number of international jurisdictions with the aim of facilitating the mutual recognition and enforcement of judgments and orders as between the DIFC and those jurisdictions. These memoranda aim to provide additional contractual certainty by establishing procedures for the mutual enforcement of money judgments among those respective jurisdictions.\r\n<ul>\r\n 	<li>United States District Court for the Southern District of New York- 22 March 2015</li>\r\n 	<li>The Supreme Court of Singapore- 19 January 2015</li>\r\n 	<li>The Federal Court of Australia- 29 March 2014</li>\r\n 	<li>The High Court of Kenya (Commercial and Admiralty Division) - 27 November 2014</li>\r\n 	<li>Commercial Court of England and Wales- 23 January 2013</li>\r\n 	<li>The New South Wales Supreme Court- 9 September 2013</li>\r\n</ul>\r\n&nbsp;\r\n\r\nThe main purpose of those agreements is to set out the parties’ understanding of the procedures of recognition and enforcement of each other’s money judgments in the counterparty’s respective courts. These memoranda are only concerned with judgments requiring a person to pay a sum of money to another person.\r\n\r\nWhile these memoranda do not have a binding legal effect on judges and do not constitute a treaty or legislation, they promote a mutual understanding of, and provide an explanatory guide to, the laws and judicial processes for enforcement in each party’s desired jurisdiction. They provide an alternative route to enforcement while the party’s existing legal rights remain unaltered. Part of the desired effect is also to promote the economic and commercial interests of the UAE and improve its international reputation.\r\n\r\nThe terms of mutual enforcement are similar in all the memoranda signed:\r\n<ul>\r\n 	<li>The judgment must be final, conclusive on the merits of the case and enforceable; the fact that there is a pending appeal to a higher court does not prevent it from being final and conclusive;</li>\r\n 	<li>The sum of money sought must be fixed or ascertainable; and</li>\r\n 	<li>The issuing Court must have had jurisdiction to determine the subject matter of the dispute.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nIt is hoped that adherence to the provisions of the memoranda of guidance by the international courts will instil confidence in commercial communities worldwide that money judgments will be recoverable within many of the internationally accredited common law legal frameworks. In terms of DIFC Court judgments, it is hoped that the expanded reach of enforcement will enhance the appeal of opting in to the DIFC Courts’ jurisdiction.\r\n\r\n<strong>DIFC Courts Wills and Probate Registry</strong>\r\n\r\nA Different Avenue to Take: Creating a Will based on Common Law Principles\r\n\r\nAs Dubai becomes more and more of a multi-national community, the need to cater to different nationalities has increased. In relation to wills and probate issues, people have been more inclined to keep their money outside the UAE in order to protect their successors’ interests. That could be for an array of reasons; however, the most common one is that they do not wish for UAE law and principles to apply to those assets.\r\n\r\nThe DIFC Courts has recently taken a step towards ensuring that the needs of expatriates with assets in Dubai are being tended to without prejudicing the pre-existing functionality of the legal system.\r\n\r\n<em>Wills under Sharia Law and UAE Federal Law</em>\r\n\r\nFollowing a testator’s death, the UAE courts will examine the estate and potentially distribute it in accordance with the UAE Law of Personal Status which is largely based on Sharia principles, where distributions are per fixed-share ratios.\r\n\r\nPursuant to the laws and principles of Sharia, a surviving wife who has children qualifies for one eighth of her husband’s estate, whereas a surviving husband who has children qualifies for one quarter of his wife’s estate. The remainder is distributed among other family members.\r\n\r\nFurthermore, a surviving wife may not automatically be appointed as the legal guardian of any children of the marriage, however, she may be appointed as their custodian. Conversely, a surviving husband is the legal guardian of any children of the marriage and is likely to be appointed as a custodian as well.\r\n\r\nNon-Muslims may create a will in accordance with UAE laws and procedures; however, the application of this will is at the full discretion of the UAE Courts. If such a will expresses the testator’s intentions relating to the disposition of assets situated in the UAE, such wishes may be applied in accordance with the laws of their home country if this wish is expressed in the will and the executor/heirs fulfil the various procedural requirements. However, the degree of applicability of such laws in effecting the testator’s wishes relating to the estate is often uncertain and is rarely without legal and procedural challenges or hurdles.\r\n\r\nThe ambiguity that arises in those situations has been the leading motivator for expatriates to retain their assets outside of the UAE.\r\n\r\n<em>The DIFC Wills and Probate Registry</em>\r\n\r\nThe DIFC will be the first jurisdiction in the MENA region where non-Muslims are able to register a will under common law rules. Providing non-Muslims with this option will hopefully create an element of certainty and security which was previously lacking. Being confident that their successors will benefit from their estate according to their wishes and that their family members will not be subject to the uncertainty of proceedings that can be encountered in the UAE Courts, are further incentives for expatriates to reside in the UAE and retain their investments and assets onshore.\r\n\r\nThe Wills and Probate Registry will be the administration of wills and probate of people who register with the Registry. The overriding objective is to enable such matters to be dealt with justly and expeditiously.\r\n\r\nRegistering a will at the DIFC Wills and Probate Registry\r\n\r\nIn order to register a will at the Wills and Probate Registry, the testator must:\r\n<ul>\r\n 	<li>Not be of Muslim faith;</li>\r\n 	<li>Be over the age of 21 years; and</li>\r\n 	<li>Have assets situated in Dubai.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nIf a testator desires to express their intentions regarding the guardianship of their minor children, the children must be living with the testator in Dubai. Retaining a UAE residence visa is not a requirement to be eligible to register.\r\n\r\nThe fees attached to registering a will are proposed to be at USD 2,900 (approximately AED 10,000).\r\n\r\n<strong>Expanding the Jurisdiction of the Small Claims Tribunal</strong>\r\n\r\nIn 2015, the DIFC Courts received AED 2.27 billion of claims, with the average claim amount in the Court of First Instance (“CFI”) increasing by 447% from AED 42 million per case in 2014 to AED 106.4 million. As the cases being brought before the courts are becoming increasingly large and complex, changes have been made to offer cheaper, faster and more discreet access to justice. The Small Claims Tribunal (“SCT”) has changed its jurisdiction so that it can now hear cases up to AED 500,000, regardless of the nature of the case.\r\n\r\nThis means that the CFI will hear cases greater than AED 500,000 in value. In doing so, it is hoped that the resources and expertise of the CFI are reserved for more technical cases which require more specific expertise.\r\n\r\nSCT hearings are held in private with a presiding judge where parties are usually not represented by lawyers. Additionally, the DIFC Courts aim to settle the majority of SCT cases within four weeks from the commencement of the claim. By expanding the jurisdiction of the SCT, the DIFC Courts hope to widen the ambit of swift resolution without need for trial, which in turn should reduce the costs of access to justice and simplify the process.\r\n\r\n<strong>DIFC Courts Spearhead the Conversion of Money Judgments to Arbitral Awards</strong>\r\n\r\nThe DIFC Courts are constitutionally a part of the Dubai Judicial System; therefore, enforcing its judgments is relatively simple as they carry the same weight as those of the Dubai Courts and there is a system in place to facilitate their enforcement. The same is true when enforcing DIFC Court judgements in countries which are parties to bilateral or multilateral treaties with the UAE for the mutual recognition and enforcement of judgments (such as the GCC and Riyadh Conventions). However, the enforceability of such judgments becomes less certain when there is no treaty or memorandum of guidance in place, and enforcement will instead depend on that particular state’s laws concerning the enforcement of foreign judgments.\r\n\r\nThe DIFC Courts have devised a new method by which parties can agree, in certain circumstances, to have a DIFC Courts’ judgment converted into an arbitral award, which can then be enforced in 152 states around the world (including the world’s major trading nations and business hubs), under the New York Convention. The state signatories to the New York Convention have agreed to enforce foreign awards in accordance with the test for enforcement laid out in the Convention, which consists only of narrow procedural grounds for objection.\r\n\r\n<em>Practice Direction No.2 of 2015</em>\r\n\r\nOn 16 February 2015, the DIFC Courts Practice Direction No.2 of 2015, renamed “Referral of Judgment Payment Disputes to Arbitration”, entered into force. On 27 May 2015, Practice Direction No.2 of 2015 was amended to clarify the manner in which it should be applied by the parties; in particular, to clarify it was an option open to the judgment creditor rather than a mandatory procedure (as amended, the “Direction”).\r\n\r\nThe Direction allows for the conversion of a DIFC Courts’ judgment into a DIFC arbitral award. Whilst it is common for parties to seek to ‘convert’ an arbitration award into a court judgment, the reverse represents a novel proposition. The implementation of this innovative mechanism is the first of its kind globally and has attracted a lot of controversy.\r\n\r\n<em>Key Features </em>\r\n\r\n1.    Scope of the definition of “dispute”\r\n\r\nFirst, the system can only apply to a money judgment for a set amount.  If, following a demand for payment of a judgment sum pursuant to a money judgment of the DIFC Courts, payment is not made for any reason, the judgment creditor would have the option of referring the Judgment Payment Dispute to the DIFC-LCIA Arbitration Centre.\r\n\r\nThe Direction defines “Judgment Payment Dispute” as “any dispute about the ability or willingness of the judgment debtor to pay the outstanding portion of the judgment sum”. Admitting liability, but demonstrating an inability to pay, will not exclude the judgment creditor from satisfying the referral criterion.\r\n\r\nThe Chief Justice of the DIFC Courts, Michael Hwang SC (“CJ Hwang”) clarified, in an explanatory lecture, that there is jurisprudence in multiple common law jurisdictions which establishes that, for the purposes of arbitration, a “dispute” exists where one party makes a claim for payment of a sum and the respondent either refuses to pay or keeps silent, but in any event, does not make the payment. That is so even where the debt owed is beyond dispute.\r\n\r\nOnly a clear and unequivocal admission of liability or actual payment will mean that there is no dispute. The definition also expressly excludes disputes relating to the validity or merits of the DIFC Court judgment, providing clarity that opportunistic debtors will not be able to raise arguments on the merits of the underlying dispute in any “conversion proceedings”.\r\n\r\n2.   Technicality of “conversion”\r\n\r\nReferring the dispute to arbitration would not render any disadvantages to the judgment creditor; rather, it would augment the enforceability of the DIFC Courts judgment by providing additional avenues to utilise in order to secure payment of the judgment sum. That is so without affecting the enforceability of the judgment as the judgment creditor will not lose its rights in any way. CJ Hwang emphasised in his lecture that the term “conversion” is merely a metaphor as the judgment would remain intact and fully enforceable without regard to the progress of the arbitration.\r\n\r\n3. Opt-in Jurisdiction\r\n\r\nCJ Hwang acknowledged that the Direction does not affect the validity of the opt-in jurisdiction of the DIFC Courts, even in the absence of an adoption of the recommended arbitration agreement. In other words, one can opt in to the primary dispute jurisdiction being the DIFC Courts, without expressly adding that there may be submission to arbitration for post-judgment disputes. However, the arbitration agreement is predicated upon there being a DIFC Courts judgment to enforce, so it would normally follow an opt-in clause choosing the DIFC Courts as the dispute resolution forum.\r\n\r\n4. Seat of Arbitration\r\n\r\nCJ Hwang has insisted that in the terms of the Direction, parties remain free to choose another seat and institutional forum as a procedural framework for their arbitration. This being said, according to CJ Hwang, the conversion process would likely be facilitated if referred to arbitration before the DIFC-LCIA (as an institution that will be sensitive to and supportive of the Direction and therefore more likely to accept the validity of the clause).\r\n\r\nReferral Criteria\r\n\r\nThe practice direction contains strict criteria that set out the circumstances in which parties to a dispute may utilise the method of conversion, which are as follows:\r\n<ul>\r\n 	<li>The judgment has taken effect in accordance with RDC 36.30;</li>\r\n 	<li>The judgment is not in respect of an employment contract or consumer contract which is subject to Article 12(2) of the Arbitration Law 2008, precluding arbitration of such contracts;</li>\r\n 	<li>The judgment is not subject to any appeal, and the time permitted for a party of the judgment to apply for permission to appeal has expired;</li>\r\n 	<li>There is a Judgment Payment Dispute; and</li>\r\n 	<li>The judgment creditor and judgment debtor have agreed in writing that any Judgment Payment Dispute between them shall be referred to arbitration pursuant to this practice direction.</li>\r\n 	<li>The Success of the Direction</li>\r\n</ul>\r\nLike all untested procedures, there remain concerns as to whether the premise will be borne up by practice. A defaulting party is unlikely to agree to amend any original dispute resolution clauses and likewise, a party which only stands to be the money debtor and never the creditor, may have no motivation to agree to the original inclusion of this clause.\r\n\r\nIt should also be remembered that, in order for parties to avail themselves of the procedure, arbitrators will need to be appointed and their fees paid. Statements of Case for the arbitration will then have to be filed. Although, the arbitral award should not reconsider the merits of the DIFC Court judgment, a non-paying party may seek to stall or to rehearse their substantive case. This could lead to the possibility that an arbitrator will disagree with or seek to unpick the original judgment. Parallel enforcement proceedings may give rise to potentially contradictory outcomes.\r\n\r\nCJ Hwang has called this “an experiment without parallel in arbitration history”. The workability of the mechanism envisaged by the Direction will ultimately turn on its proper implementation by arbitral tribunals and the receptiveness of state courts that are seized of the recognition and enforcement of DIFC judgment-converted-awards. Nevertheless, the Direction demonstrates the forward-thinking nature of the DIFC and its appetite to address big issues.\r\n\r\nFor those interested, the Arbitration Clause recommended by the DIFC Courts is as follows:\r\n\r\n<em>“Any Judgment Payment Dispute (as defined in DIFC Courts Practice Direction No 2 of 2015) that satisfies all of the Referral Criteria set out in the Practice Direction may be referred to arbitration by the judgment creditor, and such dispute shall be finally resolved by arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause. There shall be a single arbitrator to be appointed by the LCIA Court pursuant to Article 5.4 of the DIFC-LCIA Arbitration Rules. The seat, or legal place of arbitration, shall be the Dubai International Financial Centre. The language to be used in the arbitration shall be English.</em>\r\n\r\n<em>This agreement for submission to arbitration shall in all respects including (but not limited to) its existence, validity, interpretation, performance, discharge and applicable remedies be governed by and construed in accordance with the laws of the Dubai International Financial Centre.”</em>\r\n\r\nFor further information on DIFC Litigation, please contact: Rita Jaballah Partner, Head of DIFC Litigation r.jaballah@tamimi.com'),
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	(96092,5218,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Robert Maxwell Marsh'),
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	(96098,5218,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Fatima Ali Alnumairy'),
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	(96106,5218,'_yoast_wpseo_metadesc','In the decade since their establishment, the DIFC Courts have become a fundamental feature of the legal landscape in Dubai, the UAE, the GCC and beyond. Al Tamimi & Company explores four significant developments that have dominated the agenda of the DIFC Courts in the past year.'),
	(96107,5219,'content','September 2015\r\n\r\n<hr />\r\n\r\nAs their names suggest, the governing law clause in a contract specifies the laws that will govern the relevant contract, while a jurisdiction clause specifies the courts or arbitration tribunal that will have exclusive or non-exclusive jurisdiction to hear any disputes that may arise out of the contract.  These clauses can sometimes be overlooked during drafting as they tend to be included in the “boiler plate” language towards the end of the contract.\r\n\r\nHowever, it is important that these clauses receive as much attention as the substantive provisions of the contract. Failure by parties to agree or to include suitable governing law and jurisdiction clauses may lead to lengthy and potentially expensive disputes over the governing law and dispute resolution procedures to be applied to a given contract.  This is obviously an unattractive prospect, since it may give rise to a lack of legal predictability and the risk of “forum shopping,” in which the contracting parties initiate proceedings before different courts and tribunals, resulting in parallel litigation in multiple fora.\r\n\r\n<strong>II.   Governing law clause </strong>\r\n\r\nRecent statistics from the International Chamber of Commerce indicate that over 90% of the parties in ICC arbitration proceedings had included a governing law clause in their contract.\r\n\r\nA typical governing law clause will provide that:\r\n\r\n“This agreement shall be governed by and shall be construed in accordance with the law of [chosen law of the parties]”.\r\n\r\nIn choosing a suitable governing law, the following matters should be considered:\r\n<ul>\r\n 	<li>The suitability of the chosen law for determining any future dispute</li>\r\n</ul>\r\nThe law of some jurisdictions, such as England and New York, are often used in international commercial contracts because there is a substantial body of sophisticated case law dealing with issues which arise in conflicts over commercial or financing contracts, which leads to greater legal certainty for the parties. The laws of other jurisdictions may be silent on many of these commercial issues; indeed, in some cases, they may not even recognize concepts addressed in the contract. Parties should not focus so much on applying a law of their home jurisdiction, but on applying a suitable law having regard to the nature and subject matter of the contract.\r\n<ul>\r\n 	<li>Parties should consider the jurisdiction they have selected for the resolution of any dispute.</li>\r\n</ul>\r\nOften parties will choose the law of the jurisdiction they wish to use to resolve the dispute in order to avoid complexity. For instance, a contract which chooses the English courts as having jurisdiction over disputes may specify English law as the governing law.  However, this does not have to be the case.  The courts of some legal systems are adept at applying foreign law to disputes of which they are seized.  However, parties should be careful that this will often give rise to a burden of proving what the foreign law is should the parties not agree. Parties should also be aware that some national courts will not in practice apply the choice of law. Parties should also consider the risk of the courts applying the chosen law in a manner inconsistent with that of the courts of the country whose law has been chosen.  Alternatively, the parties may specify arbitration. Sophisticated international tribunals are well-used to applying the laws of different countries to international disputes, with arbitrators often been appointed because of their familiarity or expertise in the law of a particular country.\r\n<ul>\r\n 	<li>Familiarity ought not to breed contempt.</li>\r\n</ul>\r\nGenerally, the parties ought to choose a law with which they are each familiar, rather than attempting to choose a “neutral” law as a compromise. The latter choice can result in unpleasant surprises should a dispute arise between the parties concerning the meaning or application of the contract.\r\n\r\n<strong>III.   Governing jurisdiction clause </strong>\r\n\r\nA typical jurisdiction clause will provide:\r\n\r\n“The parties submit all their disputes arising out of or in connection with this agreement to [arbitration] [or] [the exclusive] [non-exclusive] jurisdiction of the courts of [insert country].”\r\n\r\nAs may be seen, the first point to consider is whether to choose arbitration or litigation as a mean of resolving disputes arising under the contract.\r\n\r\nArbitration offers a number of advantages over litigation in international contracts, notably the enforceability of awards under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards; the finality of decisions (in another words, there are no appeals for arbitration decision); the ability to choose the arbitrators (although this not always the case); and the privacy of proceedings.\r\n\r\nWhere the parties believe that litigation is to be preferred over arbitration, there are a number of significant factors to consider:\r\n<ul>\r\n 	<li>Same jurisdiction as governing law</li>\r\n</ul>\r\nAs noted above, it is common to choose the courts of a country whose law is to govern the contract.  However, this does not necessarily have to be the case, since there are other factors to consider.\r\n<ul>\r\n 	<li>Enforceability of judgments</li>\r\n</ul>\r\nIn order for any judgment to be effective, it must be enforceable against the assets of the losing party in the litigation.  Hence, one party may wish to select the jurisdiction of a country where the other party’s assets are located, unless it would be possible to enforce a judgment in other jurisdictions pursuant to international agreements and conventions on the recognition and enforcement of judgments in civil and commercial matters. The importance of enforceability cannot be overstated when it comes to drafting an appropriate jurisdiction clause as ensuring recovery is just as important as achieving a favourable judgment or award.\r\n<ul>\r\n 	<li>Procedural issues</li>\r\n</ul>\r\nThe parties should consider other procedural issues in their choice of court, including:\r\n<ul>\r\n 	<li>Whether it is practicable to litigate in the language of the chosen court</li>\r\n 	<li>Whether the chosen court will actually apply the governing law of the contract</li>\r\n 	<li>The speed and procedural flexibility of proceedings in the chosen courts</li>\r\n 	<li>The suitability of remedies available from the courts of the chosen country, including interim and provisional measures</li>\r\n 	<li>The finality of judgments in the chosen jurisdiction.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>IV.   Use of an arbitration institute </strong>\r\n\r\nArbitration clauses, in addition to choosing a jurisdiction and applicable laws, often identify a particular institute to administer the arbitration.\r\n\r\nThere are a number of UAE-based institutions, including (but not limited to) the Dubai International Arbitration Center (DIAC), the London Court of International Arbitration’s Dubai International Financial Center branch (DIFC-LCIA), and the Abu Dhabi Commercial Conciliation and Arbitration Center (ADCCAC). Equally, however, parties can elect to use the rules and/or facilities of other institutions such as the ICC in Paris, the LCIA in London, or SIAC in Singapore.\r\n\r\nParties should give careful thought to selecting an arbitration institute when drafting their contract as it can help ensure that a potential arbitration is managed effectively and efficiently. Given these advantages, we generally recommend the use of arbitral institutions.\r\n\r\n<strong>V.    Mandatory law &amp; UAE-specific issues </strong>\r\n\r\nSo far, this article has assumed that the courts of most countries will accept governing law and governing jurisdiction clauses.  However, this is not always the case, and the United Arab Emirates is one jurisdiction in which issues can arise.\r\n\r\nThe UAE courts will not uphold an agreement which gives jurisdiction to a foreign court where the UAE courts would otherwise enjoy jurisdiction. This includes disputes involving:\r\n<ul>\r\n 	<li>the ownership of properties situated within the UAE</li>\r\n 	<li>Proceedings involved an transaction that was made, formed or supposedly formed in the UAE</li>\r\n 	<li>An event occurring in the UAE.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nMoreover, the UAE will not accept and recognize jurisdiction clauses, which provide for a foreign court or arbitration tribunal to determine disputes, which involve:\r\n<ul>\r\n 	<li>Commercial agencies</li>\r\n 	<li>Employment</li>\r\n 	<li>Certain real estate matters connected to the UAE.</li>\r\n</ul>\r\nFurthermore where the UAE courts have jurisdiction, they will usually apply UAE law instead of the governing law chosen by the parties.\r\n\r\nFurther conflict issues may arise within the UAE legal system itself as regards the allocation of jurisdiction between UAE courts depending on the subject matter of the agreement, which requires careful consideration.\r\n\r\n<strong>VI.   Do’s and Don’ts </strong>\r\n\r\nIn light of the above we conclude with the follows do’s and don’ts:\r\n<ul>\r\n 	<li>Do address governing law and jurisdiction in the contract. Omission can cause serious ramifications should a dispute arise.</li>\r\n 	<li>Don’t assume that national laws are all broadly the same; the can vary considerably in important aspects such as damages and the ability to limit liability.</li>\r\n 	<li>Do review both governing law and jurisdiction in light of legal advice, taking into account the factors mentioned above. This will minimize the risk of an unfavorable resolution to a future dispute.</li>\r\n 	<li>Don’t simply cut and paste from a previous agreement.</li>\r\n 	<li>Do carefully consider which arbitral institution to use if choosing arbitration.</li>\r\n 	<li>Don’t assume that national courts will always respect such clauses.</li>\r\n</ul>\r\nThis article was co-authored with Jacob Heyka, Intern at Al Tamimi &amp; Company.'),
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	(96126,5220,'content','September 2015\r\n\r\n<hr />\r\n\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"140\">\r\n<h6><strong>Shareholders</strong></h6>\r\n</td>\r\n<td valign=\"top\" width=\"158\">\r\n<h6><strong>Share capital</strong></h6>\r\n</td>\r\n<td valign=\"top\" width=\"135\">\r\n<h6><strong>Company name</strong></h6>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"140\">\r\n<h6>One or more shareholders are required, which can be legal or natural persons. There are no restrictions on nationality*.</h6>\r\n</td>\r\n<td valign=\"top\" width=\"158\">\r\n<h6>The share capital is denominated in United Arab Emirates Dirham (AED). There is no minimum share capital requirement.</h6>\r\n</td>\r\n<td valign=\"top\" width=\"135\">\r\n<h6>All permitted<strong>**</strong> names must be followed by the suffix “Limited”.</h6>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"140\">\r\n<h6><strong>Directors</strong></h6>\r\n</td>\r\n<td valign=\"top\" width=\"158\">\r\n<h6><strong>Secretary</strong></h6>\r\n</td>\r\n<td valign=\"top\" width=\"135\">\r\n<h6><strong>Zero Tax</strong></h6>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"140\">\r\n<h6>Two or more directors, who must be natural persons, are required. However, a natural person shareholder can also be a director. There are no restrictions on nationality<strong>*</strong>.</h6>\r\n</td>\r\n<td valign=\"top\" width=\"158\">\r\n<h6>One secretary is required, who must be natural person.  However, a director or natural person shareholder can also be a secretary. There are no restrictions on nationality<strong>*</strong>.</h6>\r\n</td>\r\n<td valign=\"top\" width=\"135\">\r\n<h6>No corporate, capital gains, capital repatriation, or any other tax is levied on the offshore company.</h6>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"140\">\r\n<h6><strong>Office Space</strong></h6>\r\n</td>\r\n<td valign=\"top\" width=\"158\">\r\n<h6><strong> Licensing </strong></h6>\r\n</td>\r\n<td valign=\"top\" width=\"135\">\r\n<h6><strong>JAFZ Registration &amp; Renewal Fees</strong></h6>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"140\">\r\n<h6>The registered office space of the JAFZ offshore company is that of its registered agent.</h6>\r\n</td>\r\n<td valign=\"top\" width=\"158\">\r\n<h6>A JAFZ offshore company is not issued with a licence, only a certificate of incorporation. Therefore, it cannot conduct business with persons in the UAE.</h6>\r\n</td>\r\n<td valign=\"top\" width=\"135\">\r\n<h6>AED 10,100 for registration and AED 2,500 for annual renewal of registration.</h6>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"MsoNormal\"><em><strong>* </strong>All natural persons undergo a screening conducted by the UAE Criminal Investigations Department (CID). Subject to the CID report and the UAE’s current immigration policies, certain individuals and nationalities are barred from acting as shareholders or company officers.</em></p>\r\n<p class=\"MsoNormal\"><em><strong>** </strong>Offshore company names may be rejected where they include or allude to an association the following fields of work: Insurance, Banking, Financial, Professional Services, Consulting, Intellectual Property, Media, Security, Publishing, Advertising, Movie Production, Gambling, Casino, Game &amp; Win, Advisory, Real Estate, Military, and Education.</em></p>\r\n<p class=\"MsoNormal\"><strong>Registered Agent Requirements:</strong></p>\r\n<p class=\"MsoNormal\">All actions and administrative duties, that require dealing with JAFZ Authority in relation to the offshore company, are performed through the registered agent on behalf of the shareholder(s). The registered agent will also liaise with the JAFZ company registry to pay the annual renewal of registration fee for the offshore company. As offshore companies are in practice not permitted to have their own registered address, the registered address of the offshore company is that of its registered agent.</p>\r\n<p class=\"MsoNormal\"><strong>Licensing and Permitted Activities:</strong></p>\r\n<p class=\"MsoNormal\">Unlike an operating company with a business licence that is incorporated in the UAE, whether incorporated in JAFZ, the UAE mainland jurisdiction, or other free zones, the JAFZ offshore company is not issued with a business licence at the time of incorporation. Rather, the offshore company only receives a certificate of incorporation. Other corporate documents for the offshore company will include a memorandum and articles of association. Because a business licence is not issued, the offshore company cannot conduct any commercial activity with persons within the UAE. However, as commercial activities conducted outside the UAE are not subject to UAE law, the offshore company may conduct commercial activities outside the UAE.</p>\r\n<p class=\"MsoNormal\">Whilst the JAFZ offshore company is not permitted to conduct any type of business or activity in the UAE, it does, subject to JAFZ Authority’s approval and the Dubai Land Departments’ current policy, retain the right to acquire freehold property within specific designated areas in Dubai.</p>\r\n<p class=\"MsoNormal\">A JAFZ offshore can also act as a holding company by way of acquiring shares in UAE mainland companies and other free zone companies, as well as, subject to the applicable banks policy, open a bank account, pledge its shares, and secure loans and other finance facilities.</p>\r\n<p class=\"MsoNormal\"><strong>Al Tamimi &amp; Company:</strong></p>\r\n<p class=\"MsoNormal\">Al Tamimi and Company is licensed to act as a registered agent of JAFZ offshore companies. Our Corporate Structuring team regularly assist clients in incorporating and maintaining JAFZ offshore companies, while our Property department regularly assists with the acquisition and registration of free hold properties in designated areas on behalf of offshore companies.</p>\r\n<strong>Transferring Real Property?</strong>\r\nContact:\r\nAruna Mukherji: a.mukherji@tamimi.com\r\nMohammed Kawasmi: m.kawasmi@tamimi.com\r\n\r\n<strong> </strong>\r\n\r\n<strong>Incorporating a JAFZ offshore?</strong>\r\nContact:\r\nPanagiotis Dermatis: p.dermatis@tamimi.com\r\nOmer Khan: o.khan@tamimi.com'),
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	(96149,5221,'content','September 2015\r\n\r\n<hr />\r\n\r\nThe applicability of international treaties depends on the ratification status of the particular convention in wherever the places of departure and arrival are located.\r\n\r\nIn the United Arab Emirates, domestic carriage by air of passengers, baggage and cargo is governed by the provisions of Federal Law No 18 of 1993 (the Commercial Transactions Law), providing for the rules of Air Carriage.  It is established by precedent that the application of the aforementioned provisions is generally limited to domestic carriage by air and does not apply to international carriage by air.\r\n\r\nThe UAE is a party to a number of international conventions and protocols relating to international carriage by air, most notably The Warsaw Convention of 12 October 1929, as amended by The Hague Protocol of 28 September 1955 and The Montreal Protocol No.4, and The Montreal Convention of 28 May 1999.\r\n\r\nWith limited exception, where points of departure and arrival are located within the European Union (“EU”), the Montreal Convention will apply to carriage by air of passengers, baggage and cargo. Considering the popularity of the EU as a destination for travellers from the UAE, it may be useful for passengers to be better acquainted with the Montreal Convention and the rights it affords them.\r\n\r\nThis article gives a brief overview of the Montreal Convention and provides a summary of applicable liability limits in respect of death or injury; baggage that is destroyed, lost or damaged; and damage occasioned by delay.\r\n\r\n<strong>An Overview</strong>\r\n\r\nThe Montreal Convention, formally known as the Convention for the Unification of Certain Rules for International Carriage by Air, is a 1999 convention negotiated and adopted by the International Civil Aviation Organization (ICAO) member states in Montreal, Canada (“MC99”). The Convention was created with the intention of replacing the arguably out-dated and complex Warsaw Convention of 1929 (as amended) and providing an exclusive and uniform framework for liability in the international air carriage of passengers.\r\n\r\n113 parties including the United Arab Emirates have ratified the Montreal Convention as of date. MC99 has become domestic law by ratification in the UAE by virtue of Federal Decree No. 13 of 2000, which was published in the Official Gazette on 31st January 2000.\r\n\r\nArticles 17-19 of the MC99 impose strict liability on airlines in three cases:\r\n<ul>\r\n 	<li>accidental death or bodily injury of a passenger while on board, embarking, or disembarking the aircraft</li>\r\n 	<li>damage to cargo; and</li>\r\n 	<li>damage resulting from delay of passengers, baggage, or cargo.</li>\r\n</ul>\r\nUnder MC99 the liability limits are set in Special Drawing Rights (SDR), which are a mix of currency values established by the International Monetary Fund (IMF). The current value of one SDR in US dollars is approximately $1.41 (revised daily). The ICAO reviews the liability limits every five years.\r\n\r\n<strong>Death or injury to passengers </strong>\r\n\r\nMC99 does not impose a limitation on the amount that can be recovered in the case of bodily injury or death, but when damages are sought in excess of approximately USD 160,000 (113,100 SDR), MC99 permits the airline to prove that the damage was not due to its negligence or that it was solely due to the negligence of another party. For damages up to approximately USD 160,000  (113,000 SDR), the airline cannot challenge a claim for compensation.\r\n\r\nIn the event of death or injury, the airline must make an advance payment to cover immediate economic needs within fifteen days. An advance payment does not constitute recognition of liability and may be offset against any subsequent sums that are paid.\r\n\r\nAny action in court to claim damages must be brought within two years from the date of arrival of the aircraft, or from the date on which the aircraft ought to have arrived.\r\n\r\n<strong>Lost or damaged baggage</strong>\r\n\r\nAn airline is liable if baggage is lost, destroyed or damaged.  If the baggage in question was checked-in, the airline is liable even if it is not at fault, unless the baggage is defective.  An airline’s liability is subject to proof of fault in respect to unchecked baggage.\r\n\r\nThe airline is liable for damages up to approximately USD 1,600 (1,131 SDR).  A passenger benefits from a higher limit of liability by making a special declaration before checking in his or her baggage, and by paying a supplementary fee to the airline.\r\n\r\nA passenger must complain in writing to the airline within seven days if the baggage was damaged or destroyed.\r\n\r\nIn the event a passenger’s baggage did not arrive within 21 days from when it was supposed to arrive, it will be considered lost. In this case, the passenger must make a written complaint about his or her lost baggage as soon as possible after it has been missing for 21 days.\r\n\r\n<strong>Delayed passengers and baggage</strong>\r\n\r\nIn the event of delay, an airline is liable to pay for damages up to approximately USD 6,600 (4,694 SDR). If baggage is delayed, the airline is liable to pay for damages up to approximately USD 1,600 (1,131 SDR). However, an airline is not liable for damages where it took all reasonable measures to avoid such a delay, or if it was impossible for the airline to take such measures.\r\n\r\nThis summary is intended for guidance purposes only and must not be used as a basis for a claim for compensation, or as basis to interpret the provisions of the Montreal Convention of 1999 or national law. The Transport, Insurance Department regularly advises on airline liability and personal and cargo claims. For further information, please contact Yazan Saoudi (y.saoudi@tamimi.com) or Bushra Abutayeh (b.abutayeh@tamimi.com).'),
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	(96163,5221,'_yoast_wpseo_metadesc','Carriage by air is governed by local laws and international treaties and is usually supplemented by the provisions of each airline’s conditions of carriage for passengers and baggage.'),
	(96164,5222,'content','September 2015\r\n\r\n<hr />\r\n\r\nJebal Ali port stands as one of the major international maritime hubs, and Fujairah port is the fourth largest bunker supply port in the world. The UAE has created “Tasneef” which is rapidly becoming one of the recognized and established classification societies in the region.\r\n\r\nThe immediate future of the UAE maritime industry is also promising. Recently, Dubai announced the creation of the first maritime arbitration centre in the region, named the Emirates Maritime Arbitration Centre (‘EMAC’), which it is hoped will take its place amongst the other internationally recognized arbitration centers such as the LMAA and the SCMA. The UAE is also expected to introduce a new maritime code soon which will modernise the regulation of many maritime aspects in the UAE and serve as a model for other countries to follow.\r\n\r\nI consider myself as part of the shipping community and society in the UAE and the region, and have had the privilege of working in the shipping industry of nine different countries including the UAE. I believe that there are still many issues which the UAE needs to tackle and many obstacles which the UAE needs to overcome to reach its goal of comprehensively covering all aspects of the maritime industry.\r\n\r\n<strong>Flagging UAE vessels</strong>\r\n\r\nA large number of vessels owned by UAE owners fly non-UAE flags. With its advanced shipping skills, techniques and know-how, the UAE should take the initiative to establish the first open registry in the region. This would result in a significant amount of different vessels flying their natural UAE flag. Furthermore, with the UAE being one of the main places of business for almost all international banks and insurance companies, the requirement of each vessel owning company of have an agent, a bank, insurance, classification and many other requirements, will lead to a significant boost in all these sectors.\r\n\r\n<strong>More Legislation</strong>\r\n\r\nIt is a fact that commerce move faster than legislation. However, for a modern country like the UAE it is expected that it will have modern legislation to go hand in hand with its commercial development. There are however still more rules and regulations required to ensure that the UAE can compete more efficiently with the other international maritime regimes. So far, there is no dedicated registry for bareboat charter in the UAE despite the fact that this is a common and popular business for this country and the region. There are no specific regulations organizing vessel finance and mortgage in the UAE. In fact there is no specific dedicated registry for vessels under construction regulating the mortgage during the construction despite the fact that the UAE has many leading yards taking over major vessel construction and building projects.\r\n\r\nFurthermore, and despite the fact that almost all international maritime agents chooses the UAE as their main business for their region, there are no laws to regulate the work of maritime agents. The UAE courts take an active role to fill this gap by implementing the internationally recognized maritime agency customs, but nonetheless there is an immediate and urgent need to regulate the work of maritime agents. It is hoped that the new and much anticipated maritime code will have a dedicated section for maritime agents. The same lack of regulation impedes the development of forwarders and other associated shipping and maritime work industries.\r\n\r\n<strong>Maritime Courts</strong>\r\n\r\nThe UAE must consider creating dedicated and specialized maritime courts if it is to maintain and enhance its standing amongst the international maritime hubs. The courts currently make tremendous effort to look after maritime claims; however the larger and more complicated maritime claims dictate the need for a maritime court in the UAE. In addition, it should consider establishing night courts and make judges available during the weekends to look into urgent applications, such as for the arrest and release of vessels.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nThe UAE maritime industry is already the leading maritime industry in the Middle East, and efforts are underway to enhance it. Hopefully these efforts will address some of the issues raised in this article. The UAE is steadily climbing the ranks of the leading nations in the global maritime industry, and this requires a process of constant development and reform.'),
