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	(80106,4368,'content','<p><strong>Highlights of the Laws of the United Arab Emirates, the People&rsquo;s  Republic of China and the Common Law applicable to construction </strong><br />This article is written for China Construction Law Review.&nbsp;It seeks  to provide readers with an insight into some aspects of UAE law relevant to the  construction industry by way of comparison with the law of the People&rsquo;s Republic  of China.&nbsp;Given the prevalent use of FIDIC&sup2; standard forms of construction  contract in the UAE and the strong presence of common law lawyers in the  country, this article also compares the laws of the two subject countries with  well known common law principles and relevant provisions of the FIDIC&sup3;Red Book  conditions.&nbsp;&nbsp;In this first part of the article, an introduction to the relevant  laws and issues relating to the principle of good faith and liquidated delay  damages are discussed.<br /><br /><strong>Introduction </strong><br />In the UAE, all  commercial activities (including building or construction activities) are  regulated by Federal Law No. 18 of 1993, also known as the UAE Commercial  Transaction Law or the UAE Commercial Code.&nbsp;However, in practice, Federal Law  No. 5 of 1985 also known as the Federal Civil Transaction Law or the UAE Civil  Code is more regularly applied or referred to because it contains general and  mandatory laws that govern contractual relationships in the UAE<sup>4</sup>.The  UAE Civil Code has a specific chapter<sup>5</sup> under the heading called  &ldquo;Muqawala<sup>6</sup>&rdquo; which contains provisions that govern the relationships  between employers, contractors, subcontractors and engineers/architects. In the  context of the People&rsquo;s Republic of China<sup>7</sup>, the relevant law is the  Contract Law of the People&rsquo;s Republic of China<sup>8</sup>&nbsp;&nbsp;(中华人民共和国合同法) (&ldquo;the  PRC Contract Law&rdquo;).&nbsp; Similar to the UAE Civil Code, the PRC Contract Law  contains general and mandatory laws that regulate contractual relationships in  the People&rsquo;s Republic of China, and it has two specific chapters containing  provisions that are applicable to contracts of work and contracts for  construction projects<sup>9</sup>.<br /><br />Although the political structures of  the two subject countries differ, their respective legal systems are similar to  the extent that they both belong to the civil law family<sup>10</sup>. In the  civil law system, unlike common law system, the principle of stare  decisis<sup>11</sup>&nbsp;or case law precedent does not apply.&nbsp; For this reason,  amongst others, judicial interpretations and decisions from civil law countries  tend to be less prescriptive in that the civil law courts do not usually  restrict themselves to the black letters of the law; instead, the meaning and  intent of the law takes a central role. Notwithstanding that, in the UAE, as a  matter of practice, lowers courts do respect and tend to follow the principles  and approaches laid down by the Court of Cassation the highest appellate court  in the UAE<sup>12</sup>.&nbsp;To this end, the legal practice in the People&rsquo;s  Republic of China is similar to the UAE because the writer is advised that  judicial interpretations of the Supreme People&rsquo;s Court, which is the highest  court in the People&rsquo;s Republic, are very helpful and persuasive.&nbsp;&nbsp;<br /><br />In the  context of construction law practice in the UAE, the writer finds that common  law or English law principles are often referred to and sometimes erroneously  relied upon.&nbsp; Indeed, in this regard, Essam Al Tamimi, a prominent UAE legal  practitioner, said in his book<sup>13</sup><br />&ldquo;In addition, because of the  nature of Dubai in particular as a commercial center and because of the presence  of international law firms with &ldquo;common law&rdquo; roots, many contracts which have  been drafted in the UAE appear to have been influenced by common law principles.  <br />This has created difficulties in the application of the law to these  contracts by the courts of the UAE since judicial authority does not recognise  some of the principles or the practices of the common law  system&hellip;&rdquo;<br /><br />Therefore, whilst foreign legal principles, including common law  principles, may provide some guidance, they have no force in law in the UAE  unless they are so widely used and recognised in the industry that they can be  accepted as forming part of the local custom or  practice<sup>14</sup>.<br /><br /><strong>Relevant construction issues </strong><br /><strong>The Principle of Good Faith - 诚实信用原则</strong><br />The nature  of a construction contract is such that it binds contracting parties to a long  term legal relationship. Given the multitude of obligations that each party owes  to the other under a typical contract, it is very important that parties act  according to their promises to ensure that the objectives of the contract are  achieved.&nbsp;<br /><br />However, during the course of a construction project, which  may run for several years, market conditions may change to the detriment of the  parties; for example, prices for construction materials may rise or fall or the  demand for the project may disappear. These changes may adversely affect the  parties&rsquo; relationship or may motivate one, or both the parties, to act in a  manner that is not consistent with the objectives or promises made under the  contract.&nbsp; In this regard, in the absence of an express term that requires  contracting parties to exercise their duties and rights with good faith, or a  term that creates a partnering or a pain-gain sharing type of relationship  between the parties; does the law impose a duty of good faith on the  parties?<br /><br />There is a substantial volume of treatise and case law from  common law jurisdictions that discusses the principle of good faith in the  context of contractual relationships. The writer understands that at present  there is no clear and overriding common law duty that requires parties to a  construction contract to observe the requirements of good  faith<sup>15.</sup>Arguably, this is attributable to the fact that the common  law courts have not been able to prescribe a clear meaning or definition for the  term &ldquo;good faith<sup>16</sup>&rdquo;. <br />In the UAE, the UAE Civil Code imposes an  obligation on contracting parties to abide by the terms of their  agreement<sup>17</sup>&nbsp;and that they must discharge their respective obligations  in a manner that is consistent with the requirements of good  faith<sup>18</sup>.&nbsp;The principle of &ldquo;good faith&rdquo; is a common feature of the  civil law system and is consistent with the principles of Islamic Shari&rsquo;ah which  underlies all laws in the UAE.&nbsp; However, there is no prescription on the  requirements of good faith; it is a matter of judgment for the court to decide  based on relevant facts and circumstances.It is perhaps easier to determine  whether a party has acted in bad faith rather than whether it has acted  consistent with the requirements of good faith. The writer submits that in  deciding the issue of bad faith the court should be invited to look into the  requirements of Article 106 of the UAE Civil Code. Pursuant to this article, a  party is prohibited from exercising its rights if:</p>\r\n<p>&bull;&nbsp;it is intended to infringe the rights of another party;</p>\r\n<p>&bull;&nbsp;the outcome is contrary to the rules of the Islamic Shari\'ah, the law,  public order, or morals;</p>\r\n<p>&bull;&nbsp;the desired gain is disproportionate to the harm that will be suffered by  the other party; or</p>\r\n<p>&bull;&nbsp;it exceeds the bounds of custom and practice.</p>\r\n<p>The principle of good faith is also encoded in the PRC Contract Law.&nbsp; An  English translation of Article 6 of the law states that &ldquo;The parties must act in  accordance with the principle of good faith, no matter in exercising rights or  in performing obligations&rdquo;.&nbsp; Even though there is no single or specific  provision in the PRC Contract Law that can be said to encapsulate similar  provisions as those set out under Article 106 of the UAE Civil Code, the writer  considers that one of the objectives of Article 106, which is to prevent a party  from abusing its rights, can be found in a number discrete provisions in the PRC  Contract Law.&nbsp; By way of example, Article 5 of the PRC Contract Law requires  contracting parties to uphold the principle of fairness<sup>19</sup>,&nbsp; Article  60 requires the parties to perform their obligations based on the character and  purpose of the contract or the transaction practices and Article 3 provides that  contracting parties shall have equal legal status and neither of them may assert  its will on the other<sup>20</sup>.&nbsp;&nbsp;<br /><br />The PRC Contract Law also imposes a  public duty on contracting parties which requires them to observe public laws  and social ethics and prohibits them from disrupting socio-economic order or  damaging public interests.&nbsp; It is interesting to consider what does the term  &ldquo;social ethics&rdquo; (社会公德) encompass and whether the People&rsquo;s Court would accept  that the abuse of one&rsquo;s contractual rights in disregard to the seriousness of  the harm that the other party may suffer could be looked upon as a violation of  social ethics.<br /><br /><strong>Liquidated Delay Damages -  约定的误期损害赔偿费</strong><br />In the context of construction contracts, the agreed  completion date or period is inevitably a fundamental term of the contract.&nbsp; To  ensure that the agreed date or period is adhered to, contracting parties often  agree in advance to a compensation mechanism or formula that will calculate the  amount of compensation that a contractor must pay to its employer in the event  of delay for which the contractor is culpable or responsible for (the liquidated  delay damages)<sup>22</sup>.&nbsp;In practice, the compensation mechanism or formula  is often fixed at a daily or weekly rate, for example, one hundred days of delay  at a pre-agreed rate of $1,000.00 per day will produce a liquidated delay  damages of $100,000.00.<br /><br />Both the UAE Civil Code&nbsp; and PRC Contract Law&nbsp;  allow contracting parties to fix a pre-agreed compensation mechanism or amount  in their contract.&nbsp; However, unlike common law jurisdictions<sup>25</sup> ,both  laws allow their respective courts, upon the request of either party, to vary  the pre-agreed amount of compensation or damages.&nbsp;In the context of the UAE  Civil Code, the court may vary the amount so to make it equal to the actual loss  or harm<sup>26</sup>. Official notes issued by the UAE&rsquo;s Ministry of Justice  explained that in exercising the power to vary the pre-agreed amount of  compensation the courts may either reduce or increase the amount; whereas under  the PRC Contract Law<sup>27</sup>,&nbsp; it is expressly provided that the court may  either reduce or increase the liquidated amount.<br /><br />In English law it is an  implied term that an employer to a construction contract must not prevent or  hinder the contractor from completing the contracted work<sup>28</sup>.&nbsp;This is  generally known in construction law study as the prevention  principle<sup>29</sup> (預碍原則).&nbsp;The effect of this principle is such that if the  employer&rsquo;s action, or inaction, prevented or hindered the contractor from  completing the works on time, and if there is no provisions in the contract that  would allow the contractor an extension of time due to the employer&rsquo;s action, or  inaction, then the agreed time for completion would be set at large, i.e. time  at large. This in turns renders the contractual provisions for liquidated  damages to be unenforceable.&nbsp;The follow on effect is that the employer can no  longer resort to the liquidated damages mechanism to recover delay damages from  its contractor; instead, it would have to bear the burden of proving and  apportioning the actual damages that it has suffered as a result of the  contractor&rsquo;s delays in order to recover its delay damages.&nbsp;<br /><br />Contractors  in the UAE would sometimes try to apply the prevention principle or the concept  of time at large in their attempt to defeat liquidated delay damages imposed by  their employers. Notwithstanding that it may be difficult to show that such  principle and concept are customarily used or recognised in the local  industry<sup>30</sup> , the writer considers that such argument is to a large  extent irrelevant because, as explained above, UAE law allows the courts to  review or vary the amount of liquidated damages to equal the actual loss in any  event regardless of whether there was any act of prevention on the part of the  employer.&nbsp; However, there may be a perceived advantage in arguing the  applications of the said principle and concept because if the argument is  successful the burden is then shifted to the employer for it to prove its actual  losses arising from any delays caused by the contractor as opposed to the  contractor having to show that the liquidated delay damages do not reflect the  employer&rsquo;s actual loss or that it is excessively high &ndash; however, this remains to  be seen.<br /><br />This is the second and final part of the article written for  China Construction Law Review which provides a brief comparison on some aspects  of UAE construction law with PRC law, common law principles and provisions of  the FIDIC Red Book conditions.&nbsp; In this part of the article, legal provisions  relating to suspension of works, taking over of works, defects liability and  subcontracting are dealt with.</p>\r\n<p><strong>Footnotes </strong><br />1- The writer does not claim expertise in the  laws of the Republic<br />of China. The analyses and comparisons set out in this  article are<br />based on his interpretation of the English translation of the  relevant<br />Chinese law which have been reviewed by Mr Sun Wei,  General<br />Editor of the China Construction Law Review (<a href=\"http://www.cclr.org.cn/\">www.cclr.org.cn</a>) and<br />Partner at  Zhong Lun Law Firm, Beijing, China (<a href=\"http://www.zhonglun.com/\">www.zhonglun.com</a>).<br />The writer is  grateful to Mr Sun Wei and Mr Dean O&rsquo;Leary, Senior<br />Lawyer at Al Tamimi &amp;  Company (<a href=\"http://localhost:8888/tamimi/\">www.tamimi.com</a>) for their  inputs<br />and comments on this article.<br />2- FIDIC is the acronym for the  French version of the &ldquo;International<br />Federation of Consulting Engineers&rdquo; (<a href=\"http://www.fidic.org/\">www.fidic.org</a>). The standard<br />forms  of contract published by this organisation are the most widely<br />used standard  forms of contract in the Middle East region.<br />3- The FIDIC Red Book form of  contract is used for building and<br />engineering works designed and supervised  by engineers/architects<br />employed by the employer.<br />4- With regard to  government contracts, there are specific<br />procurement laws that govern  them.<br />5- Articles 872 to 896 of the UAE Civil Code.<br />6- Article 872, in  translation, states that &ldquo;Muqawala&rdquo; is &ldquo;a contract<br />whereby one of the parties  thereto undertakes to make a thing or to<br />perform work in consideration which  the other party undertakes to<br />provide.&rdquo;<br />7- Excluding the Special  Administrative Regions of the People&rsquo;s<br />Republic, namely, Hong Kong and  Macao.<br />8- Promulgated through Order [1999] No.15 of the President of  the<br />People&rsquo;s Republic of China<br />9- Chapters 15 and 16 of the PRC Contract  Law.<br />10- The UAE Civil Code is largely based on the Jordanian and  Egyptian<br />Civil Codes, which in turn, are heavily influenced by the French  Civil<br />Code; whereas laws in the PRC have Russian&rsquo;s and German&rsquo;s civil<br />law  influences.<br />11- Generally, this principle provides that the decision (ratio  decidendi)<br />of a court is binding precedent until and unless it is overturned  or<br />reversed by a higher court. Therefore, the decisions of the common<br />law  courts are an important source of law in the common law system;<br />whereas, in  the civil law system, previous decisions are persuasive<br />and  explanatory.<br />12- The courts in the emirate of Dubai are independent from the  UAE<br />federal court system, however, similar practice is also largely  being<br />followed in the Dubai courts.<br />13- At page 5, Practical Guide to  Litigation and Arbitration in the<br />United Arab Emirates, 1st Edition, Kluwer  Law International.<br />14- Article 2(2) of the UAE Commercial Code and Articles  46, 50 and<br />246(2) of the UAE Civil Code recognise and uphold the binding  effect<br />of custom practice.<br />15- It is interesting to note that the  Australian courts have, in limited<br />circumstances, taken a more liberal  approach on the question of<br />good faith between contracting parties. However,  this is by no<br />means conclusive that there is a clear and overriding duty of  faith in<br />all cases in Australia.<br />16- Whilst there may not be an overriding  duty of good faith<br />imposed on contracting parties in most common law  jurisdictions<br />(if not all), there is an implied term under common law  applicable to<br />construction contracts that an employer must not prevent or  hinder<br />a contractor from completing its work. This implied term is  further<br />discussed in the following section.<br />17- Article 243(2) of the UAE  Civil Code.<br />18- Article 246(1) of the UAE Civil Code.<br />19- An English  translation of Article 5 reads &ldquo;The parties shall abide<br />by the principle of  fairness in defining the rights and obligations of<br />each party&rdquo;.<br />20- The  writer is of the view that it is possible to extend the reading<br />of this  provision to mean that no party shall be allowed to unfairly<br />assert its  contractual rights against the other.<br />21- Article 7 of the PRC Contract  Law.<br />22- See relevant contractual provisions at Clause 47 and  Sub-Clause<br />8.7 of the 1987 and 1999 FIDIC Red Book Conditions  respectively.<br />23- Article 390(1) of the UAE Civil Code<br />24- Article 114 of  the PRC Cpntract Law<br />25- In common law jurisdictions, the courts will uphold  pre-agreed<br />liquidated damages unless it is deemed to be a penalty or, in  some<br />jurisdictions, deemed not to be a genuine estimate of the  employer&rsquo;s<br />losses.<br />25- Article 390(2) of the UAE Civil Code.<br />27-  Article 114 of the PRC Contract Law.<br />28- Some relevant English cases are:  Holme v Guppy (1838) M &amp; W<br />387, Dodd v Churton [1897] 1 QB 566, Peak  Construction (Liverpool)<br />Limited v McKinney Foundations Limited [1970] 1 BLR  111<br />29- This general principle has been adopted by many common  law<br />countries, e.g. Malaysia, Singapore, Australia, Hong Kong,  New<br />Zealand, India and Canada.<br />30- Sub-Clauses 44.1(d) and 8.4(e) of the  1987 and 1999 FIDIC<br />Red Book Conditions respectively allows a contractor to  claim an<br />extension of time for any delay, impediment or prevention  caused<br />by an employer. Therefore, it would be difficult for a contractor  to<br />succeed in arguing the application of time at large concept if  the<br />foregoing FIDIC conditions are present in the contract.</p>'),
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	(80072,4364,'_yoast_wpseo_metadesc','In principle, a company is a legal person in its own capacity to create rights and bear liabilities, and as such can own property, enter into contracts with other parties and be involved in any dispute with other legal people.'),
	(80073,4365,'content','<p>Basra is one of the oldest Islamic cities, which was established during the  Islamic conquest in 625 A.D. Prophet Mohammed (PBUH) \'s companion, Utba Bin  Gazwan, chose the city site in 14 A.H (636A.D) and the city was planned and  built by Abu Musa Al- Asha\'ari six months prior to the building of Kufa city  upriver.<br /><br /><strong>Why Invest in  Basra?</strong><br /><br /><strong>Location</strong><br /><br />Basra is strategically  located within Iraq and is home to all six of Iraq\'s ports including its only  deep-water port; and as such, is a major transportation nexus in the southern  part of the country. In fact, Basra has the only marine transportation point in  Iraq. Further, Basra is easily linked to the Iraqi capital, Baghdad by a  railway.<br /><br /><strong>Oil and other Resources</strong><br /><br />Basra has an  abundance of energy sources especially in oil and natural gas. Assured oil  reserves in Basra amount to more than 67.8 billion barrels. This is about 59% of  all oil reserve of Iraq. A great deal of Iraqis oil is exported through Basra\'s  ports.<br /><br />Furthermore, some of largest oil fields (Rumaila, Majnoon and  Rumaila south) are located in the Basra province <br />Additionally, there is an  abundance of crude material for some industries, with the capacity to extract  such materials; as well as an enormous agricultural  potential.<br /><br /><strong>Local Market</strong><br /><br />Basra has a vast local  market built upon 3 million people and it acts as a gateway to the rest of  Iraq.&nbsp; Basra is ideally placed to provide goods and services through its  promising market to some 31 million individuals within Iraq.<br /><br />The existing  infrastructure can further attract and facilitate investment. Basra Airport, Um  Qasser harbor, FAO harbors, existing railway lines and the road network  connecting Basra with other Iraqi provinces as well as with neighboring  countries, all contribute to ensuring the greatest possible output from  investments. Similarly, there are several power stations that can be developed  to meet local and foreign investment requirements.<br /><br />Finally, there is  further potential for expanding tourism as the security situation in Iraq  continues to be stabilized and with Basra being one of the oldest cities in the  world; it consists of an array of archeological, traditional and religious  locations and sites that attract people from all over the  world.<br /><br /><strong>Investment Laws</strong><br /><br />Investment in Basra is  supported by clear laws and simple processes to obtain an investment license. To  further encourage investment in Iraq, the Iraqi government introduced a number  of legislative measures (including Investment Law No. 13 of 2006, Investment  Regulation No.6 of 2010 and the First Amendment to Investment Law No. 7 of 2010)  which greatly simplifies and assists the investment process. <br /><br />Firstly,  the laws provide for the freedom of transferring profits and revenues in and  outside of Iraq, as well as the right to open banks in and outside Iraq.  Further, they provide a number of exemptions and privileges (including certain  tax and custom fee exemptions) for investors who have obtained an investment  license.&nbsp; <br /><br />The one-stop-shop in the National and Provincial Investment  Commissions further assists investors, by facilitating the process of obtaining  the investment License, allocating land, securing a number of tax exemptions for  investors, as well as facilitating the entry and exit of investors and their  employees.<br /><br />The aforementioned Commission also provides guidance to  investors, through issuance of an Investment Map which lists a number of  investment opportunities in Iraq, including a geographic description at the  different provinces where investment in sought. Similarly, an Investor Guide is  provided, which contains necessary information for investors, such as mechanisms  to facilitate entry and exit procedures to and from Iraq and how to enjoy the  many benefits of the Investment Laws.<br /><br />It is worth mentioning that First  Amendment No. (7) of 2010 (which came into force in February 2011), allows for  the ownership of land by certain housing projects, as well as establishing the  conditions for leasing lands for other projects.&nbsp; <br /><br />The Amendment assists  investments in four main ways; first, by providing for allocation of land  without land speculation, which greatly encourages foreign investments by  cutting down on costs, and making it easier for investors to determine fees they  are subject to. Under the housing field, the Amendment provides for the sale of  the housing unit at a price to be set in accordance with offer and demand in the  free market; as well as providing that the government shall provide the land to  the investor for development of housing a unit only, and which shall be  determined in accordance with location of land. <br /><br />The implementation of  the aforementioned Investment Laws is a great step further encouraging  investment in Iraq in general, and in Basra in particular; and is felt by many  to be a vital base for launching the investing wheels in Iraq.</p>'),
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	(80037,4363,'pageSummary','On 3rd May 2011, Qatar deposited its instrument of accession to the Patent Cooperation Treaty (PCT), and on 3rd August 2011, will become bound by the PCT.'),
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	(80039,4363,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/june-5/qatar-the-143rd-pct-contracting-state.html'),
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	(80041,4363,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Bassam Salah Alazzeh'),
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	(80052,4363,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(80053,4363,'_yoast_wpseo_metadesc','On 3rd May 2011, Qatar deposited its instrument of accession to the Patent Cooperation Treaty (PCT), and on 3rd August 2011, will become bound by the PCT.'),
	(80054,4364,'content','<p>In principle, a company is a legal person in its own capacity to create  rights and bear liabilities, and as such can own property, enter into contracts  with other parties and be involved in any dispute with other legal people.  The  company can only enjoy those rights and incur those liabilities through  decisions made by those that own, control or may be one or more directors of the  company. The day to day management of a company is usually entrusted to its  directors. The Commercial Companies Law of Qatar, No. 5 of 2002 (“The Law”)  imposes duties upon directors of a Limited Liability Company “the Company” based  on the particular nature of the company. However, each company’s constitutional  documents should include the directors’ duties, responsibilities and any  limitation upon their authority. What is the liability of the directors for any  unlawful act and what remedies are imposed?<br /><br />The aim of this article is to  provide a basic explanation of the main liabilities of directors of limited  companies towards the Company and third parties under the law in Qatar, and the  information hereunder is not exhaustive and not sufficiently detailed to apply  to the circumstances of any particular situation.<br /><br /><strong>Civil liability  of LLC directors:</strong><br /><br />1. Civil liability to the Company and its  shareholders:<br /><br />In principle, the Company is bound by actions and decisions  made by its director which have been carried out under their competence.  However, the Company’s directors should maintain a duty of care, of an ordinary  person in managing the company, and they are liable to company, shareholders or  third parties for damages as a result of the following actions, as imposed by  Article (112) of the Law:</p>\r\n<ul>\r\n<li>Deceit: A misrepresentation of fact, which, when made with the intention  that the other party will rely on it to his detriment, constitutes the torts of  fraud or misrepresentation.</li>\r\n<li>Abuse of authority: This is sometimes referred to as “Control Fraud” which  occurs when directors use their powers to subvert the company and to engage in  fraud for personal gain.</li>\r\n<li>Breach of the provisions of the Commercial Companies law;</li>\r\n<li>Breach of the company’s Articles of Association; and</li>\r\n<li>Default in performance; Directors’ failure in performing their duties and  responsibilities set out in the Company’s Articles of Association or in the law.  This may also include willful neglect.</li>\r\n</ul>\r\n<p>2. Civil liability to others/ third parties:<br /><br />In addition to the  matters set out in Article (112) of the Law, the directors may also be  personally liable for the company’s debts either if (1) they have undertaken  personal liability (such as giving a written guarantee), or (2) if they have  been deemed to have acted in their personal capacity where they did not disclose  that they are acting on behalf of the Company.<br /><br />Although the Company is  liable to compensate any damages that may have resulted from any unlawful act or  neglect of its directors, the Company has the right of return for compensatory  indemnification. Such right is set out in the Law through the “Directors  Liability’s Law Case” which can be raised within five years of the date of any  illegal action or neglect. Without prejudicing the right to claim compensation  when needed, any act or dealing or decision issued in contrary to the provisions  stipulated in the Law will be null and void, without prejudicing the right of  bona-fide third parties.<br /><br />Where losses of the Limited Liability Company  have reached half its capital, the directors should, within thirty days of  reaching this loss limit, propose to the General Assembly to reinstate the  capital or dissolve the company. If the directors neglect to call the Assembly,  they may be personally responsible for the Company\'s obligations resulting from  their neglect. <br /><br /><strong>Criminal liability of LLC  directors: <br /><br /></strong>The directors of the Company are exposed also to  criminal liability according to the provisions of the Corporate Commercial Law  in Qatar (No. 5 of 2002). Some of the more serious offences may result in a term  of imprisonment for two years or less and/or a fine of between ten and one  hundred thousand Qatari Riyals. The wording is wide enough to include  misdistribution of profits and interests, misstatements in the memorandum, and  specifically refers to forecasts and the dishonest concealment of material facts  or disclosing of confidential information.<br /><br />It is fundamental for parties  dealing with a Company, shareholders in a Company and directors of a Company to  seek legal advice in order to prevent any contravene of the Law, the company’s  Articles of Association or to prevent any action that may impose the personal  liability upon directors in their day to day management of the Company.</p>'),
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	(80001,4361,'content_description','Executive Council Resolution No. (4) of 2011 (“Resolution No. (4)”) has clarified whether or not tenancy contracts can be registered in Abu Dubai.'),
	(80002,4361,'_content_description','field_59b641c07f473'),
	(80003,4361,'pageSummary','Executive Council Resolution No. (4) of 2011 (“Resolution No. (4)”) has clarified whether or not tenancy contracts can be registered in Abu Dubai.'),
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	(80005,4361,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/june-5/new-registration-requirements-for-tenancy-contracts-in-abu-dhabi.html'),
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	(80010,4361,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(80011,4361,'_yoast_wpseo_metadesc','Executive Council Resolution No. (4) of 2011 (“Resolution No. (4)”) has clarified whether or not tenancy contracts can be registered in Abu Dubai.'),
	(80012,4362,'content','<p><strong>Background</strong><br /><br />The provisions of the Commercial Agencies  Law (Federal Law No. 18 of 1981) (the Law) relating to the powers and  jurisdiction of the Commercial Agencies Committee (the Committee) have been the  subject of two important amendments on the basis of Law No 13 of  2006:<br /><br />1.&nbsp;All provisions and references relating to the Committee were  repealed because of an amendment to Article (8) as there was reference to the  powers of the Committee under this article.<br /><br />2.&nbsp;The law further  specifically repealed Articles (27) on the constitution of the Committee and  Article (28) on the jurisdiction of the Committee.<br /><br />Further amendments to  the Law, which occurred by virtue of Law No 2 of 2010 restored the powers and  jurisdiction of the Committee and added further significant and important  provisions, which are discussed below.<br /><br />What are the significant  amendments on the jurisdiction of the Committee?<br /><br />Law No 2of 2010 has  restored the Committee as initially provided for under Law No 18of 1981. This  amendment has further added a number of significant provisions. Several  important points arise from these amendments and additions:</p>\r\n<ul>\r\n<li>Article 27 of Law No 18 of 1981 provides directly for the constitution of  the Committee, whereas under Law No 2 of 2010 it is prescribed that the  Committee shall be formed by a decision from the Council of Ministers. This  decision was issued on 10 April 2011 by H.H Mohammad Bin Rashid Al Maktoum, the  Vice President of the UAE and Ruler of Dubai and in his capacity as Prime  Minister issued the Council Of Ministers. The relevant decree is Decree No. 3 of  2011 for the Constitution of the Committee.</li>\r\n<li>The effect of Decree No. 3 of 2011 is that no court can entertain any  dispute relating to commercial agencies during the period from February 2010  when the Law was amended and April 2011 when the Committee was established. In  light of this it may be foreseen that disputes pending before the competent  courts which are yet undecided may also be referred to the Committee due to the  procedural and immediate nature of the amendment.</li>\r\n<li>Article 28 of Law No 18 of 1981 provides that the Committee shall be  competent to look into any dispute that arises by reason of a commercial agency.  Law No. 2 of 2010 imposes an additional qualification in that the dispute must  relate&nbsp; to a registered commercial agency and not just a prima facie commercial  agency arrangement. The significance of this is that the door to the Committee&rsquo;s  jurisdiction will remain firmly closed to all commercial agency disputes which  are not regulated by a registered commercial agency. There is no room for  interpretation in this regard..&nbsp;</li>\r\n<li>Under Law No 2 of 2010 a new provision has been added to Article 28, the  effect of which is that parties may not refer the dispute to courts before  referring the same to the Committee. In essence, it introduces a tiered dispute  resolution system. Such a system did not form part of the Law in its initial  form. The significance of this amendment is discussed further below.</li>\r\n<li>In its initial form, the Law was absent a provision dealing with the  timeframe within which parties could appeal or object to decision of the  Committee. Law 2 of 2010 has amended Article 28 to include a provision parties  may appeal decisions of the Committee to the competent Courts within 30 days  from the date of notification of the Committee&rsquo;s decision. Importantly, failure  to appeal within 30 days will render the Committee&rsquo;s quasi-judicial decision  final. This implements an equitable process, and one which mirrors procedures  adopted in Court.&nbsp;</li>\r\n</ul>\r\n<p>How to contest the Committee decisions?<br /><br />The Committee is required to  issue its decision within 60 days of hearing the dispute. As stated above, the  aggrieved party may contest such a decision before the competent court, by way  of a traditional law suit.<br /><br />The Statement of Claim should include the  particulars of the claim as required by the Civil Procedures Code. The parties  shall be able to file all the documents and pleadings they wish, irrespective of  those submitted at the Committee.<br /><br />These proceedings should be filed  before the Federal Courts in Abu Dhabi as the Ministry should be joined as  co-defendant to the proceedings.<br /><br />The Judgment of the Court of First  Instance in this respect shall be subject to a right of appeal at the Court of  Appeal and then subsequently at the Federal Supreme Court level.<br /><br />What is  the Extent of Jurisdiction of the Committee?<br /><br />According to the clear  wordings of Article 28 the disputes relating to registered commercial agencies  have to be filed before the Committee first and may not be filed directly to the  Court. Rather than being prohibitive, the regime is designed to foster early  settlement of disputes before the parties incur unnecessary time and costs  litigating in the Court.<br /><br />Although this provision was not included in the  old provision of Article 28 of the Law,&nbsp; Federal Courts have historically  refused to entertain disputes relating to commercial agencies. Such judgments  were based on an understanding that Article 28 granted jurisdiction to the  Committee. Even in the absence of the new provision formalizing this  arrangement, it had already been the consistent approach of the UAE Federal  Courts.&nbsp;<br /><br />Having said that, it is worth mentioning here that the Dubai  Court of Cassation has adopted a different understanding and approach to this  matter in the past. The Dubai Court of Cassation has issued several rulings&nbsp;  confirming that it is not imperative to file the law suit to the Committee  before the Court.<br /><br />In these cases the Dubai Court of Cassation held that  complainant / plaintiff enjoyed the option of filing his complaint to the Court  directly, without going through the Committee, or to file with the Committee  first and thereafter with the court. In these rulings the Dubai Court of  Cassation appears to have assumed that there is nothing in the commercial  agencies law that prevents such a process.<br /><br />This is an important reasoning  because the Court of Cassation has made it very clear that had there been any  provision in the law that clearly outlined this process in that a claimant was  obliged to first file the complaint with the Committee before filing with the  Court, then this process should be followed. This could be understood from the  judgments referred to even though they do not specifically hold so.<br /><br />Now,  reading this in light of the amendment prescribed by Law No 2 of 2010 may give  an indication as to the future process of this matter before the Dubai Courts,  because the process set down by the amendment to Article 28 is very clear that  parties may not refer the dispute to Courts prior to reference to the Committee.  This may, therefore, be read and applied by the Courts in Dubai to rule that  commercial agency disputes should be first referred to the Committee before the  Court. Although this has not yet been tested before the Dubai Court of Cassation  (due to the very recent issue of Decree No. 3 of 2011) this approach is expected  to be taken in the future litigation of registered commercial agency disputes  before the Dubai Courts.<br /><br />Are there any disputes that may fall out of the  committee&rsquo;s jurisdiction and powers?<br /><br />It is important to remember that  there are some disputes related to commercial agencies which can be filed  directly to the Court without prior recourse to the Committee. A number of  examples, derived from rulings of the Federal Supreme Court, are set out  below:</p>\r\n<ul>\r\n<li>The Federal Supreme Court defines disputes that fall within the jurisdiction  of the committee as those arising by reason of the agency itself, such as its  duration, territory, products and termination etc.</li>\r\n<li>The Courts shall have jurisdiction to hear disputes falling outside of the  jurisdiction of the Committee, notwithstanding they appear prima facie to relate  to issues of agency. Such matters include compensation for breach of contract  between the agent and principal, as these disputes are considered as issues  relating to&nbsp; the implementation of the agency agreement and not issues arising  by reason of the commercial agency.</li>\r\n<li>Courts shall also have jurisdiction to hear disputes if the commercial  agency is not registered as the jurisdiction of the Committee relates only to  registered commercial agencies.</li>\r\n<li>Disputes in which claimants are seeking to prove the existence and validity  of an agency agreement in order to procure registration&nbsp; fall outside the scope  of the jurisdiction of the Committee and shall be heard by the Courts.</li>\r\n<li>Disputes relating to compensation for termination of unregistered agency  agreement can be heard directly by Courts and not by the Committee, even if  there are no written agreements.</li>\r\n</ul>\r\n<p>A final note to be added here is that although Decree 3 of 2011 establishing  the Committee has 60 days to fix a date for hearing the dispute, it is not clear  whether a party may proceed to the court if the Committee failed to so set a  date. Under the old provision of the Law there was a practice that parties would  usually proceed and file their complaint to the Court after the Committee  exceeded the 60 days provided for under Article 28. This however is yet to be  tested in light of the new amendment.</p>'),
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	(80016,4362,'content_description','The provisions of the Commercial Agencies Law (Federal Law No. 18 of 1981) (the Law) relating to the powers and jurisdiction of the Commercial Agencies Committee (the Committee) have been the subject of two important amendments on the basis of Law No 13 of 2006:'),
	(80017,4362,'_content_description','field_59b641c07f473'),
	(80018,4362,'pageSummary','The provisions of the Commercial Agencies Law (Federal Law No. 18 of 1981) (the Law) relating to the powers and jurisdiction of the Commercial Agencies Committee (the Committee) have been the subject of two important amendments on the basis of Law No 13 of 2006:'),
	(80019,4362,'_pageSummary','field_59e59b307dec8'),
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	(80021,4362,'_currentURL','field_59d35123ab1e7'),
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	(80029,4362,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(80030,4362,'_yoast_wpseo_metadesc','The provisions of the Commercial Agencies Law (Federal Law No. 18 of 1981) (the Law) relating to the powers and jurisdiction of the Commercial Agencies Committee (the Committee) have been the subject of two important amendments on the basis of Law No 13 of 2006:'),
	(80031,4363,'content','<p>On 3rd May 2011, Qatar deposited its instrument of accession to the Patent  Cooperation Treaty (PCT), and on 3rd August 2011, will become bound by the PCT.  Consequently, Qatar came to be the 143rd PCT Contracting State.<br /><br />Along  with Qatar, there are now eleven Arab member states in the PCT. Along with  Qatar, these are Algeria, Bahrain, Egypt, Libya, Morocco, Oman, Sudan, Syria,  Tunisia and the United Arab Emirates.<br /><br />Qatar issued its first patent law  in 2006 by Decree Law No. 30 for 2006. The Ministry of Economy and Commerce is  entitled to enforce this law, however this law has not yet come into force and  there are no implementing regulations and no active patent office.<br /><br />The  Qatari patent law grants patents a term of protection for 20 years as from the  grant date in Qatar, which looks a long term compared to the other PCT  contracting states. The same law provides protection for all sorts of  technologies, except the following:<br /><br />-&nbsp;Scientific theories, mathematical  methods, computer programs, perform metal activities and games.<br /><br />-&nbsp;Plant  varieties, animal species, or biological methods of producing plants or animals.  Exceptions shall be allowed for the microbiological methods and their  products.<br /><br />-&nbsp;Diagnostic methods, treatments, and surgical operations  needed for humans and animals.<br />&nbsp; <br />The patent law grants owners of  infringed patents civil and criminal remedies in addition to provisional  measures. The penalty for any person who may infringe a patented invention can  be imprisonment up to two years and/ or a fine of up to 10,000 Qatari Riyal. The  court may also order the confiscation of items &lsquo;attached&rsquo; at the time the action  was initiated or subsequently confiscated. The court may also order that the  evidence of the illegal act, as well as the equipment and tools used in the  infringement, be destroyed.<br /><br />Despite the fact that there is no active  patent office in Qatar, both nationals and residents in Qatar have the advantage  to file international patent applications under the PCT as from 3 August 2011,  by submitting their applications to any PCT Receiving Office (such as the  International Bureau in Switzerland).<br /><br />Clients who wish to obtain patent  protection in Qatar may rely on the Gulf Cooperation Council (GCC) patent  office, as the protection of GCC patents is extended to all member states of the  GCC, namely, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab  Emirates.</p>'),
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	(79975,4359,'content_description','In Part 1 of this article, I sought to introduce and outline the first stages of the life of a hotel - from inception through to opening. \r\nChart for Hotel Development Article \r\n'),
	(79976,4359,'_content_description','field_59b641c07f473'),
	(79977,4359,'pageSummary','In Part 1 of this article, I sought to introduce and outline the first stages of the life of a hotel - from inception through to opening. \r\nChart for Hotel Development Article \r\n'),
	(79978,4359,'_pageSummary','field_59e59b307dec8'),
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	(79984,4359,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(79985,4359,'_yoast_wpseo_metadesc','In Part 1 of this article, I sought to introduce and outline the first stages of the life of a hotel - from inception through to opening. Chart for Hotel Development Article'),
	(79986,4360,'content','<p>This month, it gives me great pleasure to announce the promotion of seven  lawyers to the Al Tamimi partnership. The appointments (which you can read about  on page 27) further reinforce our significant capability in Corporate  Commercial, Employment, Maritime, Aviation &amp; Insurance, Litigation,  Intellectual Property, Construction and Insurance and underscore our market  leading position in the Middle East.<br /><br />We also present to you our Maritime,  Aviation and Insurance team through our monthly &lsquo;In Focus&rsquo; section. Please take  some time to read more about the team and their offerings as well finding out  more about cargo customs law in the UAE on page 37.<br /><br />We have some  interesting information for you from our regional offices with articles from  Qatar, Kuwait and Iraq. <br /><br />I&rsquo;d also like to draw your attention to a  contribution this month by the IBA on page 31 where you can read more about the  evolution of the IBA. For those wishing to attend the conference here in Dubai  later this year, I encourage you to register before the 29th July to take  advantage of the early registration discount. We are very excited that Dubai has  been chosen as the destination for the annual IBA conference and look forward to  welcoming many of our international clients here in  October/November.<br /><br />Thank you for taking such an interest in our magazine  and I do trust you find the information presented useful. If you have any  comments or feedback, please get in touch.<br /><br />Husam Hourani<br />Managing  Partner</p>'),
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	(79990,4360,'content_description','This month, it gives me great pleasure to announce the promotion of seven lawyers to the Al Tamimi partnership.'),
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	(79992,4360,'pageSummary','This month, it gives me great pleasure to announce the promotion of seven lawyers to the Al Tamimi partnership.'),
	(79993,4360,'_pageSummary','field_59e59b307dec8'),
	(79994,4360,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/june-5/in-this-issue-3.html'),
	(79995,4360,'_currentURL','field_59d35123ab1e7'),
	(79996,4360,'_yoast_wpseo_metadesc','This month, it gives me great pleasure to announce the promotion of seven lawyers to the Al Tamimi partnership.'),
	(79997,4361,'content','<p>Executive Council Resolution No. (4) of 2011 (&ldquo;Resolution No. (4)&rdquo;) has  clarified whether or not tenancy contracts can be registered in Abu Dubai.&nbsp;Law  No. (3) of 2005 (&ldquo;Law No. (3)&rdquo;) confirmed that leases of more than four years  must be registered with the municipalities in Abu Dhabi City, Al Ain or the  Western Region (the &ldquo;Municipalities&rdquo;).&nbsp;Law No. (3) also allowed discretion for  landlords and tenants to voluntarily register tenancy contracts of less than  four years.&nbsp; In practice however registration has only been undertaken for  leases of more than four years.&nbsp;<br /><br />Resolution No. (4) now requires the  Municipalities to establish and maintain a register of tenancy contracts.&nbsp; All  tenancy contracts of less than four years, whether existing prior to Resolution  No. (4) taking effect on 31 January 2011 or entered into after that date, must  now be registered.&nbsp; Landlords have until 31 July 2011 to ensure that all  registrations have been completed.&nbsp;<br /><br />If a tenancy contract has not been  registered then it will not be recognised for transactions involving any  government department, Abu Dhabi Distribution Company (&ldquo;ADWEC&rdquo;) or Etisalat.&nbsp; If  a tenancy contract is not correctly registered in accordance with Regulation No.  (4) then the tenant could experience difficulties when applying for commercial  licences and permits from government departments or when opening accounts with  ADWEC and Etisalat.<br /><br /><strong>Tawtheeq<br /><br /></strong>Shortly after  Resolution No. (4) was issued the Municipality of Abu Dhabi City introduced an  online system known as Tawtheeq for the registration of letting properties and  tenancy contracts throughout the Emirate of Abu Dhabi.&nbsp; The system will operate  online and information will only be available to landlords and their appointed  property managers.&nbsp; Tawtheeq will not require landlords to provide evidence of  their ownership when registering properties, for example by providing a title  deed, however cross-checks will be made with land registration  records.<br /><br /><strong>Terms of the Tenancy Contract<br /><br /></strong>All  tenancy contracts must be either in English and Arabic or in Arabic only.&nbsp;  Tenancy contracts in English only will be rejected by Tawtheeq.&nbsp; Certain key  information must be included in the tenancy contract and this will be inputted  into the Tawtheeq system.&nbsp; It is expected that Tawtheeq will publish a  compulsory standard form tenancy contract which will set out this key  information.&nbsp; Landlords and tenants remain free to negotiate the terms of their  tenancy contract and when a standard form tenancy contract is released it will  be possible to include special conditions.&nbsp; If special conditions are included  in the tenancy contract then Tawtheeq will review the special conditions to  ensure that they comply with the law.&nbsp; This review is expected to take  approximately five days.&nbsp; If the special conditions are approved then Tawtheeq  will register the tenancy contract.&nbsp; Tawtheeq will only allow registration of a  tenancy contract that breaches the rent cap, currently set at 5%, if the tenant  confirms that he understands that the tenancy contract will breach the rent  cap.<br /><br /><strong>Registration Process</strong><br /><br />Resolution No. (4)  states that it is the responsibility of the landlord to register all data  concerning their properties.&nbsp; Once the landlord has been registered to use the  Tawtheeq system and has added details of all his lettable properties the  registration process should only take a few minutes per property.&nbsp; The landlord  will input details of each tenancy contract online and upload a copy of the  signed tenancy contract.&nbsp; Tawtheeq will then send a PDF copy of the registered  tenancy contract, which will include an individual bar code, by email to the  landlord as an acknowledgement that the registration has been  completed.<br /><br /><strong>Registration Fees</strong><br /><br />When the landlord  applies to register all the properties he lets with Tawtheeq a registration fee  of AED1,000 per property will be charged.&nbsp; Once the landlord&rsquo;s properties have  been registered the grant, expiry or amendment of all tenancy contracts must be  added.&nbsp; The current fee to register the grant of a tenancy contract is AED100  and the fee to register amendments to a tenancy contract or its expiry is  AED50.&nbsp; It is the landlord&rsquo;s responsibility to pay these registration fees  however there is nothing to prevent the landlord passing on the cost to the  tenant.&nbsp; New tenants would be wise to check that the landlord has registered the  property before signing a tenancy contract in order to avoid difficulties and  delays when dealing with ADWEC, Etisalat and government  departments.<br /><br /><strong>Landlords failing to register<br /><br /></strong>If a  landlord fails to register a property, a tenancy contract or amendments to a  tenancy contract, then the tenant may apply to the Rental Disputes Settlement  Committee (&ldquo;Rent Committee&rdquo;) to issue a judgment on the validity of the tenancy  contract.&nbsp; If appropriate, the tenancy contract or amendment will then be  registered with Tawtheeq and the cost of registration will be borne by the  landlord.&nbsp; The Rent Committee will not hear any other complaint from the tenant  until judgment on validity has been issued and the registration  completed.<br /><br /><strong>Changes to Renewal Rights for  Tenants<br /><br /></strong>Executive Council Resolution No. (56) of 2010 (amending  provisions of Law No. (20) of 2006) will bring about a change in the rights of  tenants upon expiry of all tenancy contracts and leases with effect from 9  November 2011.&nbsp; Under the current law, a landlord may not request that a tenant  vacates premises at the end of the term of the tenancy contract or lease except  in very limited circumstances.&nbsp; From 9 November 2011 a landlord will be entitled  to request that a tenant vacates and may refuse to renew a tenancy contract or  lease provided that the landlord has given the prescribed notice.&nbsp; At least two  months&rsquo; written notice is required in the case of residential property and three  months&rsquo; written notice is required for commercial property.</p>'),
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	(79970,4358,'_yoast_wpseo_metadesc','In the Gulf region, the most commonly used form of building contract is the 1999 Conditions of Contract for Construction prepared by FIDIC – The International Federation of Consulting Engineers (the \'Red Book\').'),
	(79971,4359,'content','<p>In Part 1 of this article, I sought to introduce and outline the first stages  of the life of a hotel - from inception through to opening.&nbsp;My intention was to  present a simple account, for the benefit of hotel developers and owners, of the  hotel development process and to show just how complex this process can be.&nbsp;In  terms of the interaction between owner and operator, the article also sought to  highlight how this relationship works, and how important it is to develop the  relationship at the very earliest stages of the project.&nbsp;<br /><br />Part 2 is the  final part of my article, and follows the process through the construction stage  to fit-out and procurement, appointment of the hotel personnel, pre-opening  activities and finally, to opening.&nbsp;&nbsp;&nbsp;<br /><br /><strong>Construction and  beyond...</strong><br /><br />The nature of the project will dictate what is  required in terms of construction. The process will differ depending on what is  required, i.e. construction of a new hotel, completion of construction of a  partially built hotel, or refurbishment/renovation of an operational  hotel.&nbsp;&nbsp;<br /><br />Renovation/refurbishment of an operational hotel will bring  additional complications and considerations.&nbsp; In most ways, this situation  raises the greatest risk to owner and operator alike, and will require the most  management by all parties to ensure that it is successfully executed with  minimal impact on the operator, guest experience and revenue.&nbsp;<br /><br />Once  schematic design is completed (incorporating the operator&rsquo;s input to ensure  compliance with its brand standards and requirements), the owner can finalise  the pricing and programme.&nbsp; The owner can then also commence the tender process  for appointment of its contractor.&nbsp;<br /><br />The owner&rsquo;s professional consultants  should advise on the type of procurement method best-suited to the project. This  advice will structure the construction process, the team and the type of  construction contracts to be entered into.&nbsp; The owner&rsquo;s consultants will assist  in putting together the tender package and will identify suitably qualified,  experienced and licensed contractors who should be invited to tender for the  construction works.&nbsp;<br /><br />In the event that the project is the completion of a  partially built hotel, it may be that the best advice for the owner is to  re-engage the original contractor for completion of the works.&nbsp; This would be  appropriate where the quality of the work is acceptable and will avoid the need  to find another contractor who is willing to take responsibility (and liability)  for the existing works &ndash; something which is often difficult to achieve and will  come at a cost to the owner in any event.<br /><br />Once the contractor has been  appointed and the project costs and programme set, detailed design of the hotel  can be finalised and fed to the engineer and contractor, and physical  construction may commence (subject to obtaining all necessary  approvals).&nbsp;<br /><br />Throughout the construction process, the operator and the  owner should continue to work together, to ensure that the operator remains  fully involved in the design process, so that each stage of design and  construction can be signed-off by all parties.&nbsp; It is inevitable that issues,  problems and delays will arise at some point, and this is where a cohesive and  communicative relationship between owner, operator, professional team and  contractor will prove to be of benefit.&nbsp; The construction process very rarely  runs smoothly, and it will save time and money in the long term to deal with any  issues quickly and pro-actively.<br /><br />Completion of the detailed design will  also enable the owner to fix specifications of all furniture, fixtures and  fittings, thereby allowing these items to be procured.&nbsp; It is important to get  the timing of this right and to work backwards from the estimated project  completion date, ensuring that items with the longest lead times for order and  delivery can be procured first.&nbsp; In doing so, this should avoid any need to make  late changes to the specifications (which will already have been approved by the  operator and incorporated into the construction costs), as well as avoid  delaying the construction programme and the anticipated hotel opening  date.<br /><br /><strong>Mockup and benchmark rooms</strong><br /><br />Completion of  the detailed design will also allow the creation of a &lsquo;mockup room&rsquo; for each  room type, for inspection and acceptance by the operator.&nbsp; Sign-off of the  mockup room establishes and fixes the design, layout and specification of the  rooms and no further changes should be necessary.&nbsp;<br /><br />Also, during the  construction and fit-out process for the rooms, a &lsquo;benchmark room&rsquo; should be  established for each room type.&nbsp; Whilst the mockup rooms fix design, layout and  specification, the benchmark room fixes quality, actual construction processes  and finished detail of the rooms.&nbsp; This serves as a marker for all those engaged  in the construction, (from the plasterers to the electricians, the plumbers to  the carpenters), and the benchmark room should not be deviated from, either in  process or finishing quality.&nbsp;&nbsp;<br /><br /><strong>Completion</strong><br /><br />Upon  completion of the construction works in accordance with the construction  contract, the owner&rsquo;s engineer will issue a certificate of practice completion.&nbsp;  This is issued subject to a defects liability period (usually of 12 &ndash; 24  months), and any snagging or minor defects will be remedied.&nbsp; The authorities  will also be required to issue a completion certificate, a permanent utilities  connection, and ensure that the building is approved and insured for occupation  following inspection of the works.&nbsp;<br /><br />Completion of the works pursuant to  the construction contract is a major milestone - upon this date, the hotel is  physically handed over by the contractor to the owner and the risk of and  responsibility for the property passes to the owner.&nbsp; The owner will, in turn,  pass the responsibility for management of the hotel to the operator, pursuant to  the terms of the hotel management agreement (and ancillary agreements, as  appropriate).<br /><br /><strong>Pre-Opening<br /><br /></strong>Approximately 12 months  prior to the estimated completion date, the operator must hire the executive  personnel for the hotel.&nbsp; These are the people who will work with the owner to  take the hotel through the pre-opening stages to opening and full operation.&nbsp;  Generally, the hotel general manager, the sales and marketing director and the  financial controller are among the first employees usually hired.&nbsp; The owner  should be entitled to interview candidates proposed by the operator for these  roles and to approve or reject such candidates.<br /><br />The 12 months leading up  to the opening date are busy for the operator &ndash; it is during this time that the  sales and marketing strategy plan for the hotel must be put together, the  pre-opening budget compiled for agreement by the owner, the first annual  operating budget and performance forecast is compiled, cashflow forecasts and  working capital requirements are prepared, and the rank and file hotel staff  employed and trained.&nbsp;&nbsp; It is also an expensive time for the owner, as they will  now start to provide the working capital that the operator requires to implement  all such things.<br /><br />At the same time, the ff&amp;e is being installed at the  hotel and the construction phase is coming to a close.&nbsp; The operator will remain  involved with completion of the hotel fit-out and decoration, protecting its  brand throughout and ensuring compliance with the brand standards.<br /><br />All  the various operational licences must be applied for and obtained, including the  liquor licence (if applicable) and local police/security department clearance in  terms of surveillance and security systems at the hotel.&nbsp; Most of the  operational licences will necessarily be applied for in the name of the owner,  with the operator&rsquo;s assistance.&nbsp; To facilitate this and the management of the  hotel generally, it is usual for the owner to provide the hotel general manager  with a power of attorney.&nbsp;<br /><br />Where a hotel is operated under a management  agreement (which is the most common form of agreement throughout the Middle  East), then usually the owner will be the legal employer and sponsor of the  hotel staff.&nbsp; Therefore, whilst the operator will manage the staff on a day to  day basis, and the staff remuneration and benefits packages will reflect those  implemented by the operator (either on a regional or international basis), the  owner remains legally responsible for the employees, including payment of  salaries and any end-of-service benefits.<br /><br />In terms of marketing and  advertising of the hotel, this period sees a gradual rise in activity, as the  hotel will officially be included in the operator&rsquo;s portfolio and customer  loyalty programmes, and centrally marketed through its international sales  networks for bookings to commence.&nbsp; Closer to the opening date, the hotel will  also be marketed on a local and regional basis and events will be planned for  the opening date.&nbsp; Sometimes, where the operator is comfortable to do so, a  hotel may open on a &lsquo;soft opening&rsquo; basis.&nbsp; This is a period prior to the  official opening date where the hotel may be partially occupied and therefore  not very busy with guests, which allows the staff a period of time to implement  their training on a &lsquo;live&rsquo; basis and to de-bug any problems that may  arise.&nbsp;<br /><br /><strong>The opening date...</strong><br /><br />At some point during  the pre-opening period, the owner and the operator will agree and fix the  official opening date of the hotel.&nbsp;This might be timed to coincide with a  particularly busy period for the tourism industry specific to the location of  the hotel, or with any major conferences, exhibitions or sporting/leisure events  taking place within the vicinity of the hotel.&nbsp;Wherever possible, the intention  should be to maximise the impact of the launch of the hotel and to capitalise on  these events by attracting as many guests as possible.&nbsp;This should allow the  hotel to firmly establish itself and commence development of its reputation and  customer loyalty.&nbsp;&nbsp;<br /><br />Completion of the hotel under the construction  contract will be subject to snagging and rectification of any minor defects, and  the operator will play an important part in logging all the various items with  the owner, which will require such remedy by the owner&rsquo;s contractor over the  next 12 &ndash; 24 months.&nbsp; The operator will want these items to be remedied as  swiftly as possible with as little inconvenience to the hotel operation as  possible.&nbsp; Retention of a percentage of the construction costs from the owner  until all the defects have been remedied also provides the contractor with an  incentive to remedy as soon as possible.&nbsp;<br /><br /><strong>The start of a  beautiful relationship...?</strong><br /><br />On the opening date, the development  process (save for snagging) draws to a close and the operator assumes full  responsibility for operation of the hotel and, hopefully, a return of profit to  the owner.&nbsp;<br /><br />The official launch of the hotel is an exciting time for all  involved.&nbsp; It is the culmination of the hard work and endeavours by many  individuals involved during the time leading up to this event.&nbsp; It may have been  a very stressful or relatively painless process, but however the hotel comes  into being, the road ahead should hopefully be the start of a long, fruitful and  mutually beneficial relationship between owner, operator and of course, the  guest.&nbsp;<br /><br />This article was commissioned and first published in the March  edition of Hotelier Middle East Magazine.<br /><br />Tara Marlow is Head of  Property, Abu Dhabi and Regional Head of Hospitality, at Al Tamimi &amp;  Company.&nbsp; Tara can be contacted on <a href=\"mailto:t.marlow@tamimi.com\">t.marlow@tamimi.com</a>.<br /><br />Al  Tamimi &amp; Company is the largest non-affiliated law firm in the Middle East,  employing more than 170 lawyers, with offices in Abu Dhabi, Dubai, Sharjah,  Jordan, Qatar, Iraq, Saudi Arabia and Kuwait.&nbsp;<br /><br />Al Tamimi &amp; Company is  a full service, commercial law firm, specialising in the following areas: Real  Estate, Hospitality &amp; Leisure, Construction and Engineering, Banking &amp;  Finance, Corporate &amp; Commercial, Litigation, Arbitration and Dispute  Resolution, Intellectual Property, Information Technology and  Telecommunications, Employment, Maritime, Insurance and Aviation.<br /><br />For  further information, visit&nbsp; <a href=\"http://localhost:8888/tamimi/\">www.tamimi.com</a>.</p>\r\n<p><a href=\"https://admin.newsweaver.com/notessa/repository/s1/169641484993255628/Hw/1rx950tgap2vx1xtku49omeeu7xl7xb0nr7agpmfl87lzyws5.doc\" target=\"_blank\">Chart  for Hotel Development Article</a><strong>&nbsp;</strong></p>'),
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	(79933,4357,'content','<p>Al Tamimi &amp; Company&rsquo;s Maritime, Aviation and Insurance practice is at the  heart of the dynamic transport industry in the Arabian Gulf.<br /><br />The  practice, led by partner, Yazan Saoudi, has been developed to cater for the  needs of clients who require a global legal perspective with a strong  understanding and appreciation of the specific requirements of local and  regional law.<br /><br />Our lawyers come from a range of jurisdictions and  backgrounds including private practice to in-house counsel for major  multinational companies, and are well-positioned to provide a full range of  legal services.<br /><br />In addition to the traditional services provided to our  clients, we work very closely with our banking and finance practice which  assists our clients with shipping and aviation finance and our arbitration  practice which provides alternative dispute resolution solutions, acts and  advises in arbitration proceedings both ad hoc and in accordance with  established procedural bodies such as the ICC, LMAA and SIAC.<br /><br />We act for  some of the leading regional and international institutions in the shipping,  aviation and insurance sector, including ship owning and chartering companies,  cargo interests, P&amp;I clubs, insurers, brokers, underwriters, international  banks and some of the major local and international  carriers.<br /><br /><strong>Maritime</strong><br /><br />Whether as court advocates or  legal consultants, our lawyers have a wealth of exposure in handling the most  complex shipping disputes. Our experience has been drawn from regularly advising  clients who operate in a region that boasts a strong maritime  tradition.<br /><br /><strong>Aviation</strong><br /><br />Being at the heart of a  rapidly growing aviation industry, we are able to handle the needs of both local  and international Airlines and have advised on a wide range of legal matters. We  have been involved in the set-up of new aviation companies in the region and new  airlines operating within the UAE. We have also advised on leasing, chartering  and purchasing of aircraft, as well and cargo and personal injury  claims.<br /><br /><strong>Insurance</strong><br /><br />With an in-depth knowledge and  extensive contacts in the insurance industry both locally and internationally,  we are in the unique position to handle the requirements of insurance companies,  brokers, underwriters and intermediaries in both general and aviation and  maritime related insurance. We are regularly called upon to advise clients on  hull and cargo policies and P&amp;I insurance claims as well as upon policies  covering every conceivable kind of risk including credit, professional  liability, corporate liability, product liability, construction risks, banker&rsquo;s  blanket bonds, property and personal injury.<br /><br />We are proud of the practice  we have developed which still remains at the forefront of developments within  the region. We are currently advising on the revision of the statutory UAE  Maritime Code and the establishment of the Dubai Maritime City, as well as other  proposed infrastructural and regulatory projects.<br />IN FOCUS</p>\r\n<p>For more information please contact:<br /><br />YAZAN AL SAOUDI<br />Partner, Head  of Maritime,<br />Aviation &amp; Insurance<br /><a href=\"mailto:y.saoudi@tamimi.com\">y.saoudi@tamimi.com</a><br />+971 4 364  1530</p>\r\n<p>OMAR OMAR<br />Partner,<br />Maritime, Aviation<br />&amp; Insurance<br /><a href=\"mailto:o.omar@tamimi.com\">o.omar@tamimi.com</a></p>'),
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	(79947,4357,'_yoast_wpseo_metadesc','Al Tamimi & Company’s Maritime, Aviation and Insurance practice is at the heart of the dynamic transport industry in the Arabian Gulf.'),
	(79948,4358,'content','<p>Consulting Engineers (the \'Red Book\').&nbsp;This is a traditional form of contract  where the employer appoints its own designers to design the works and the  contractor is only responsible for constructing the works to the employer&rsquo;s  design.&nbsp;<br /><br />In recent years the 1999 FDIC Conditions of Contract for Plant  and Design - Build (the \'Yellow Book\') has also become more widely used.&nbsp; Under  this form of contract the contractor accepts responsibility for both the design  and construction of the works and the resulting single point responsibility is  seen as being a significant advantage for employers.<br /><br />However neither of  these forms of contract is suitable for use where infrastructure projects are  concerned, for example oil, gas or petrochemical plants or where the project is  financed through third party lenders.&nbsp; FIDIC recognised this throughout the  1990\'s and in 1999 published its Conditions of Contract for EPC / Turnkey  Contracts (the \'Silver Book\').&nbsp;The introductory note to the Silver Book states  that &ldquo;during recent years it has been noticed that much of the construction  market requires a construction contract where certainty of final price and often  of completion date are of extreme importance.&nbsp; Employers on such turnkey  projects are often willing to pay more - sometimes considerably more - for their  project if they can be more certain that the agreed final price will not be  exceeded&rdquo;.&nbsp;&nbsp;The note continues &ldquo;for such projects it is necessary for the  contractor to assume responsibility for a wider range of risks than under the  traditional Red or Yellow Books&rdquo;.<br /><br />The aim of the Silver Book is therefore  to transfer certain risks (which would normally fall to the employer) to the  contractor in order to achieve a degree of time and cost certainty while  recognising that contractors will, of course, price the degree of risk they are  expected to bear.&nbsp;The upshot is that employers will, in all likelihood, pay more  for a project procured under the Silver Book that they might otherwise do, were  the same project procured under say the Yellow Book.&nbsp;However in return employers  achieve a greater degree of time and cost certainty which is appealing to banks  and lenders. This article highlights some differences between the risk  allocations of the Yellow and Silver Books.<br /><br /><strong>Ground  Conditions<br /><br /></strong>The issue of responsibility for the physical  conditions of the site is an example of risk transfer under the Silver Book.&nbsp;The  Red and Yellow Books (at clauses 4.10 to 4.12) treat this issue in the same  manner.&nbsp;The employer is required to have made available to the contractor all  relevant information in his possession prior to the base date on sub-surface and  hydrological conditions at the site.&nbsp;The contractor is responsible for  interpreting this data.&nbsp;&nbsp;<br /><br />The contractor is deemed to have obtained all  necessary information as to risks, contingencies and other circumstances that  may affect the tender or the works, although this investigation is limited to  the extent practicable taking account of cost and time.&nbsp;The contractor is also  deemed to have satisfied himself as to the sufficiency of the accepted contract  amount however the contractor is deemed to have based the accepted contract  amount on the data and interpretations referred to  above.&nbsp;<br /><br />Notwithstanding these provisions, the existence at the site, of  unforeseen physical conditions will allow the contractor to claim an extension  of time and payment of any additional cost incurred provided the contractor  complies with the relevant procedural requirements and the condition is  \'Unforeseeable\' as defined in the Red and Yellow Books.&nbsp;<br /><br />The position is  however different under the Silver Book as while, according to clause 4.10, the  employer is to make available to the contractor all relevant data in his  possession on the subsurface and hydrological conditions at the site, the  employer shall have no responsibility for the accuracy, sufficiency or  completeness of such information.&nbsp;The contractor is responsible for verifying  and interpreting the data and the contract price is stated to cover all of the  contractor\'s obligations under the contract.&nbsp; Under clause 4.12 the contractor  is deemed to have obtained all necessary information as to risks, contingencies  and other circumstances which may affect the works and by signing the contract  the contractor accepts total responsibility for having foreseen all difficulties  and costs of successfully completing the works.&nbsp;The contract price shall not be  adjusted to take account of any unforeseen difficulties or costs.<br /><br />Under  the Silver Book therefore the risk of unforeseeable ground conditions falls to  the contractor.&nbsp;While the contractor will undoubtedly allow for this in his  tender, lenders and employers are afforded certainty with regard to their  potential exposure to additional costs in this regard.&nbsp;Where employers are not  wiling to pay for this certainty an alternative form of contract should be  used.&nbsp;&nbsp;&nbsp;&nbsp;<br />&nbsp;<br /><strong>Design</strong><br />&nbsp;<br />Design is another issue where  the contractor\'s obligations under the Silver Book, differ from those under the  Yellow Book.&nbsp; Both contracts impose a fitness for purpose obligation on the  contractor which is a high standard to comply with in the first place.&nbsp;However  under clause 5.1 of the Yellow Book the contractor is to review the employer&rsquo;s  requirements after receiving the notice of commencement and to give notice to  the engineer (within a certain number of days to be agreed on a case by case  basis) of any fault, error or defect found in the employer&rsquo;s requirements.&nbsp;On  receipt of the notice, the engineer shall determine whether a variation is to  apply.&nbsp;If an experienced contractor exercising due care would have discovered  the error, fault or other defect before submitting the tender, the time for  completion shall not be extended and the contract price shall not be  adjusted.&nbsp;<br /><br />In addition, under clause 1.9, if the contractor suffers delay  or incurs cost as a result of an error in the employer&rsquo;s requirements and an  experienced contractor would not have discovered the error when conducting the  clause 5.1 review referred to above, the contractor shall notify the engineer  and shall be entitled to an extension of time and payment of its costs plus  reasonable profit.&nbsp;&nbsp;<br /><br />The test therefore is whether an experienced  contractor would have found the error when conducting his previous reviews of  the employer&rsquo;s requirements.&nbsp;If not, the contractor shall be entitled to  relief.&nbsp;&nbsp;<br /><br />As would be expected, a different line is taken in the Silver  Book.&nbsp;Clause 5.1 of the Silver Book provides that the contractor shall be  responsible for the design of the works and for the accuracy of the employer&rsquo;s  requirements except in four limited circumstances. The employer is not  responsible for any error, inaccuracy or omission of any kind in the employer&rsquo;s  requirements and any data received by the contractor from the employer or  otherwise shall not relieve the contractor from his responsibility for the  design and execution of the works.<br /><br />This clause coupled with the  contractor&rsquo;s liability under clause 4.12 for unforeseen difficulties (referred  to above) and the overall fitness for purpose obligation means that the  contractor is under significant obligations with respect to design (including  any design which may be contained in the employer&rsquo;s requirements).&nbsp;While it is  open to the contractor to negotiate on these points, the single point of  responsibility of the contractor is likely to be on the employer&rsquo;s &lsquo;wish list&rsquo;,  even if it means that the employer will pay more for the works than would  otherwise be the case.&nbsp;<br /><br /><strong>Other Risks<br /><br /></strong>The Silver  Book imposes additional risks on the contractor in other areas too.&nbsp;Examples  include the provisions regarding extensions of time and employer&rsquo;s risks.&nbsp; In  relation to extensions of time, the contractor is not entitled, under the Silver  Book, to extensions of time in respect of exceptionally adverse climatic  conditions or for unforeseeable shortages in the availability of personnel or  goods caused by epidemic or governmental actions.&nbsp;The contractor is entitled to  an extension of time in respect of these events under the Red and Yellow  Books.<br /><br />Under clause 17.3 of the Red and Yellow Books the employer assumes  the risk of the occurrence of certain events.&nbsp;Under the Silver Book the  contractor bears responsibility for the following risks, the occurrence of which  would be an employer risk under the Red or Yellow Books:</p>\r\n<ul>\r\n<li>Use or occupation by the employer of any part of the permanent works, except  as may be specified in the contract</li>\r\n<li>Design of any part of the works by the employer&rsquo;s personnel or by others for  whom the employer is responsible</li>\r\n<li>Any operation of the forces of nature which is unforeseeable or against  which an experienced contractor could not reasonably have been expected to have  taken adequate preventative measures</li>\r\n</ul>\r\n<p>EPC contracts are, by their nature, different to traditional or design and  build forms of contract and are intended for entirely different types of  project.&nbsp;The risk allocation contained in them means that the contractor is  required to assume a greater degree of risk, although the rewards for the  contractor can also be greater, especially if the priced risks do not arise.&nbsp;  Many of the risks referred to in this article will be the subject of negotiation  but in today&rsquo;s market, where projects are few and contractors are many,  contractors might be willing to assume this degree of risk.&nbsp;<br /><br />In addition  the types of projects to which EPC contracts are suited are often highly complex  and there are often a limited number of contractors with the skills and  experience to perform the relevant works.&nbsp; In such cases it is perhaps proper  for contractors to assume a greater degree of risk as they are best able to  manage the occurrence of those risks and to mitigate the consequences of those  risks should they occur.</p>'),
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	(79897,4355,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zoe Thompson'),
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	(79909,4355,'_yoast_wpseo_metadesc','2010 brought about significant changes for contractors and consulting engineers in Abu Dhabi with the introduction of new regulations relating to the classification of contractors (“Contractors”) and engineering consulting offices (“Consultants”).'),
	(79910,4356,'content','<p>Islamic financing has made a major breakthrough in the financial world and  over the past few years and has now proven to be a major contender to  conventional financing in the UAE.<br /><br />Still in its infancy compared to the  established conventional banking system, stumbling blocks on structuring Islamic  financing products such that they are competitive with their conventional  counterparts, are slowly being overcome. One of these is the interplay between  the laws of the UAE and Shari&rsquo;a concepts.<br /><br />The Shari&rsquo;a is an abstract form  of law derived from Islamic principles and is capable of adaptation, development  and further interpretation. It is not a codified law in the UAE. The Shari&rsquo;a  does not prescribe general principles of law, but rather, purports to deal with  and cover specific cases or transactions and sets out rules that govern  them.<br /><br />Among the most important teachings of Islam for establishing  justice and eliminating exploitation in business transactions, is the  prohibition of all sources of unjustified enrichment and the prohibition of  dealing in transactions that contain excessive risk or speculation. Accordingly,  Islamic scholars have deduced from the Shari&rsquo;a three principles that form the  benchmark of Islamic economics and which distinguish Islamic finance from its  conventional counterpart. Briefly, these are:<br /><br />(a) &nbsp;The prohibition of  interest<br />(b)&nbsp;The sharing of profits and losses <br />(c)&nbsp;The prohibition  against uncertainty and excessive speculation (being speculation over and above  that which is necessary and unavoidable in a normal business  transaction)<br /><br />The UAE is governed by a civil law system, which means that  all relevant underlying commercial and banking laws are, to a large extent  codified. There is no separate legislation within the UAE which codifies Shari&rsquo;a  law for commercial transactions. There are also no separate Shari&rsquo;a courts to  hear disputes arising out of Shari&rsquo;a financing transactions.<br /><br />However, as  many aspects of Shari&rsquo;a rulings have been incorporated into the civil law, it  can be said that large portions of the UAE commercial laws are underpinned by  Shari&rsquo;a elements and are therefore compatible with Shari&rsquo;a principles. The  courts are also permitted to refer to the Shari&rsquo;a in the absence of clear  legislation and established customary business practices. This is reflected in  the approach taken by the UAE Federal Law No. 5 of 1985 Concerning Civil  Transactions (the &lsquo;Civil Code&rsquo;), which, together with the Federal Law No. 18 of  1993 concerning the Commercial Transaction Law (the &lsquo;Commercial Code&rsquo;), sets out  the main provisions for civil and commercial transactions in the  UAE.&nbsp;<br /><br /><strong>Applicability of Shari&rsquo;a principles in the  UAE<br /><br /></strong>The main challenge in structuring and offering Islamic  compliant products in the UAE is to bridge the occasional mismatch between the  laws of the UAE and the principles of Shari&rsquo;a.<br /><br />In many instances, the  provisions of the UAE law are reflective of Shari&rsquo;a principles, such as the  pre-requisites relating to capacity to contract, the requirement for clarity of  contractual terms, the absence of duress and the specific conditions governing  sale and purchase transactions. In these instances, such transactions are fully  compliant with both Shari&rsquo;a elements and UAE law from the outset.<br /><br />In  other cases, the provisions of the UAE laws are inconsistent with Shari&rsquo;a  principles. For example, the charging of interest is generally permitted under  UAE law as long as it is not unduly excessive (this being reflected by the  flourishing conventional banking system in the UAE). However, interest is  strictly prohibited under Shari&rsquo;a, no matter how nominal the amount. Similarly,  while it is not illegal under UAE law to deal with certain items such as pork  products and the entertainment industry, these are prohibited under Shari&rsquo;a. In  such cases, it is best that these restrictions and prohibitions are eliminated  from the financing structure and, where applicable, removed from the relevant  agreements in order to ensure Shari&rsquo;a compliance.<br /><br />Less clear are  transactions falling within grey areas, where UAE laws are silent and customary  practice offers little guidance. An example is the legally untested area of  derivatives transactions. From a Shari&rsquo;a perspective, there are concerns that  the speculative and uncertain nature of derivatives may breach Shari&rsquo;a  provisions. However, UAE laws are silent on this issue, and market practice has  not developed to such an extent as to provide conclusive guidance. As the courts  are permitted to refer to the Shari&rsquo;a in the absence of clear legislation and  established customary business practices, it is likely that courts will rely on  the Shari&rsquo;a criteria in analyzing the legality of a derivatives  transaction.<br /><br /><strong>The role of Shari&rsquo;a  pronouncements<br /><br /></strong>It is standard practice for each Shari&rsquo;a product  to be structured and certified as Shari&rsquo;a compliant by Shari&rsquo;a scholars or  experts (who are usually appointed by the Islamic financial  institutions).<br /><br />Once a product is offered to the public by a licensed  financial institution in the UAE, it would be reasonable to assume that such  product has undergone legal and Shari&rsquo;a analyses before approval was granted for  such product to be made available to the public.<br /><br />However, while such  pronouncements formalizes the approval from the Shari&rsquo;a perspective, they have  no binding effect. The UAE courts are not compelled to take the Shari&rsquo;a  pronouncements into consideration when determining a case, and will most likely  simply rely on the terms of the contract.<br /><br /><strong>Disputes under Shari&rsquo;a  financial transactions<br /><br /></strong>Should a dispute be brought to a UAE  court, the court is unlikely to apply a different treatment to the dispute  solely on account of the transaction being Shari&rsquo;a compliant. The dispute will  be subject to the same processes and procedures as a conventional financing  counterpart.<br /><br />The courts will also apply the laws of the UAE in  determining the case. Notably, if a document purports to be governed by Shari&rsquo;a  law, courts will likely disregard such choice of law, and will instead apply the  applicable UAE laws.<br /><br />To maintain the legal enforceability of an  agreement, it is prudent that all the elements necessary for Shari&rsquo;a compliance  purposes are contractually provided for within the body of the agreement itself.  Notably, under the Civil Code, where the intention of the parties is clear from  the language of the contract, the courts will not imply any further meaning or  additional terms to the contrary. Save in the cases where the contract was  unclear and the provisions of the law and customary practice are silent on an  issue, the UAE courts are unlikely to examine the Shari&rsquo;a aspects of a  document.<br /><br /><strong>Shari&rsquo;a products offered in the UAE<br /><br /></strong>The  Islamic financial institutions within the UAE offer many mainstream products  that one would expect to find, such as ijarah, murabaha, mudaraba and istisna.  These are both from the loan and deposit aspects, and are fully supported by the  normal ancillary services such as the provision of chequebooks, internet banking  and Shari&rsquo;a compliant credit cards.<br /><br />It is a Shari&rsquo;a requirement that all  Shari&rsquo;a structures must comply with the laws of the jurisdiction in which it is  made available. For that reason, due to legal limitations, certain products such  as those which involve trust arrangements or beneficial ownership over land, are  not offered in the UAE, as their structures are incompatible with UAE land  laws.<br /><br /><strong>Security arrangements for Shari&rsquo;a  financing<br /><br /></strong>Security arrangements for Shari&rsquo;a compliant products  are similar to their conventional counterparts, with modifications to remove  elements of interest. One can therefore expect to find the standard security  documents such as mortgages, assignments over assets, pledges and guarantees.  While the suitability of such security arrangements depends on the underlying  Shari&rsquo;a structure, such security documents will be enforced by the UAE courts  provided that they have been duly perfected under UAE law.<br /><br />As a general  overview, the UAE Civil Code has a strong Shari&rsquo;a foundation which supports the  proper regulation of Islamic financial mechanisms. Due to economic realities,  certain mismatches between UAE laws and Shari&rsquo;a principles exist, however, such  incompatibilities are minimal compared to other major financial  jurisdictions.</p>'),
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	(79893,4355,'pageSummary','2010 brought about significant changes for contractors and consulting engineers in Abu Dhabi with the introduction of new regulations relating to the classification of contractors (“Contractors”) and engineering consulting offices (“Consultants”).'),
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	(79891,4355,'content_description','2010 brought about significant changes for contractors and consulting engineers in Abu Dhabi with the introduction of new regulations relating to the classification of contractors (“Contractors”) and engineering consulting offices (“Consultants”).'),
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	(79876,4354,'content_description','Last year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.'),
	(79877,4354,'_content_description','field_59b641c07f473'),
	(79878,4354,'pageSummary','Last year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.'),
	(79879,4354,'_pageSummary','field_59e59b307dec8'),
	(79880,4354,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/june-5/acquisitions-under-the-new-kuwaiti-capital-markets-law-and-by-laws.html'),
	(79881,4354,'_currentURL','field_59d35123ab1e7'),
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	(79885,4354,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(79886,4354,'_yoast_wpseo_metadesc','Last year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.'),
	(79887,4355,'content','June 2011\r\n\r\n<hr />\r\n\r\n2010 brought about significant changes for contractors and consulting engineers in Abu Dhabi with the introduction of new regulations relating to the classification of contractors (“Contractors”) and engineering consulting offices (“Consultants”). These new regulations will mean that all Contractors and Consultants must obtain a classification certificate as well as a commercial licence before they can tender for, or undertake work on, a construction or engineering project in Abu Dhabi.\r\n\r\n<strong>The Regulations</strong>\r\n\r\nThe relevant changes to the legal regime for Contractors and Consultants arise from the following regulations and related resolutions:\r\n\r\n1. Regulation No. (2) of 2009 Concerning Contractor Classification in the Emirate of Abu Dhabi and its associated instructions under Administrative Resolution No. (56) of 2010 Concerning Instructions for Contractor Classification; and\r\n\r\n2. Regulation No.1 of the year 2009 Concerning Engineering Consulting Office Classification in the Emirate of Abu Dhabi and Administrative Resolution No. (58) for the year 2010 concerning instructions on Engineering Consultancy Offices Classification;\r\n\r\nwith each set of regulations and resolutions implementing separate regimes for Contractors and Consultants.\r\n\r\nWhilst the two regimes are broadly similar in their framework, the requirements for classification and certain minimum thresholds required to qualify to operate on projects of differing sizes are specific to each regime depending on various components of the applicant’s business.\r\n\r\n<strong>Effect of the Regulations</strong>\r\n\r\nClassification is mandatory for all Contractors and Consultants and will be required in order for them to carry on business in Abu Dhabi. Under the regulations, existing Contractors and Consultants will have until the end of 2012 to obtain classification and new businesses will have one year from the date of issue of their commercial licence to comply.\r\n\r\nClassification is required regardless of whether a Contractor or Consultant is operating as a branch of a foreign company, or whether it is a locally incorporated limited liability company. While obtaining a commercial licence for a new business is the first step towards operating as a Consultant or Contractor in Abu Dhabi and is necessary to enable the business to hire staff or sign up for utilities connections etc., a new Consultant or Contractor will not be able to execute or engage in any projects until it has completed the classification process. Once classification is obtained, the Consultant or Contractor will be recorded in a Consultants/Contractors registry maintained at the Abu Dhabi Department of Economic Development (“DED”). Existing Contractors and Consultants who are already operating will generally be permitted to complete projects that have already commenced, but should obtain classification before they commence any new projects. However, in some cases a non-objection certificate may be obtained from the Consultant’s/Contractor’s department at the DED to permit work on new projects while the application for classification is being processed.\r\n\r\nObtaining classification allows Contractors or Consultants to tender for and work on construction and engineering projects in Abu Dhabi. The value of the project, which a Contractor or Consultant wishes to engage in, will determine the requirements that the Contractor or Consultant must fulfil in order to obtain the requisite classification. The Consultant/Contractor must always conform to the category under which its business is classified.\r\n\r\n<strong>Classification Procedure</strong>\r\n\r\nContractors or Consultants can apply for classification for one or more specialisations within various fields of contracting or consultancy specified in the regulations. The fields of activity differ for Contractors and Consultants. The Contractor or Consultant may then apply for and be awarded classification at certain specific graded levels. The level at which a Contractor or Consultant is classified will determine the range of value of projects that the Contractor or Consultant will be permitted to engage in. As classification may be requested for one or more specialties, a Contractor or Consultant may obtain different levels of classification for its different specialisations.\r\n\r\nThe Contractor or Consultant will be eligible for classification at particular levels depending on certain criteria relating to its business, for example:\r\n\r\n- the number, academic qualifications and relevant professional experience of its technical staff (engineers/architects) and accounting staff;\r\n\r\n- the legal form of the business (LLC/ branch of a foreign company), its ownership and the technical qualifications of its proprietors;\r\n\r\n- the details and values of the projects which the Contractor/Consultant has completed in the past (previous experience of shareholders of a company or of a branch office registrant within and outside of the UAE may be considered in certain circumstances);\r\n\r\n- the details of its financial standing, in particular, taking account of its paid-up share capital and the value of its asset base; and\r\n\r\n- the details of its health, safety and quality certifications and the level of insurance cover it holds.\r\n\r\nEach level of classification requires proof of compliance with particular thresholds pertaining to the above criteria. In its application for classification, a Contractor or Consultant must demonstrate that it meets the criteria for the level at which it wishes to be classified.\r\n\r\n<strong>Effect of Classification</strong>\r\n\r\nThe level at which a Contractor or Consultant is classified will determine the monetary thresholds applicable to projects which the classified Contractor or Consultant may participate in, as well as the ongoing requirements that the Contractor or Consultant must satisfy as part of its maintenance of classification. For example, Contractors with a “Special” level of classification may participate in the largest projects (over AED100 million for Contractors and over AED70 million for Consultants), but are subject to the most onerous requirements in terms of obtaining and maintaining classification.\r\n\r\n<strong>Classification Process</strong>\r\n\r\nIn order for a Contractor or Consultant to obtain classification under the Regulations, it must submit an application to the Consultant’s/Contractor’s department within the DED in Abu Dhabi along with all the documents relating to its business and evidencing its past experience, its staff qualifications and experience, financial standing and its health and safety and insurance records.\r\nThe process of gathering the requisite documentation in order to obtain classification may take several weeks. Once an application is approved, it will be recorded in the appropriate register in the DED and the Contractor or Consultant will be issued with a certificate of classification. The certificate will include the date of classification, its term of validity, levels of classification, field and specialisations. Under the new regimes, classification certificates will be valid for two years.\r\n\r\n<strong>Summary</strong>\r\n\r\nAll Contractors and Consultants in Abu Dhabi will need to be aware of the new classification regime and determine what level of classification will be required for them to be involved in forthcoming or anticipated projects. The requirements to be satisfied in order for classification to be obtained are relatively demanding and the timeframe during which both new companies and branch operations (as well as those already operating in Abu Dhabi) have to ensure they are fully compliant with the Regulations and obtain classification is quite tight.\r\n\r\nHowever, it is arguable that the requirements of the new classification regime are proportionate given the importance and desirability of contractors and engineers being properly regulated and supervised, ensuring due compliance with health, safety and environmental standards in Abu Dhabi as well as ensuring the quality and safety of infrastructure and building projects for developers, investors, commercial occupiers and residents alike.');

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	(79871,4353,'_yoast_wpseo_metadesc','The decision in question deals with an insurer’s pursuit of its rights of subrogation against the party responsible for damage caused to a vehicle.'),
	(79872,4354,'content','June 2011\r\n\r\nLast year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.\r\n\r\n<strong>ACQUISITION OF 50-100% OF A COMPANY’S SHARES\r\n</strong>\r\nOne of the definitions given by the CML and the CML Bylaws on Acquisition is the offer, attempt or request to hold all the shares of a listed company or all the shares of any category or categories within a listed company regardless of the shares already held by the offeror or its affiliates on the date of submitting the offer.\r\n\r\nThe company that is the subject of the offer is any listed company or non-listed company, in the case of a reverse acquisition.\r\n\r\nKuwaiti law does not yet recognize the concept of categories of shares, as there is only one category of shares in shareholding companies in Kuwait. However, the use of the words category and categories above may be an indication that the Kuwaiti companies’ law may be amended to expand the categories of shares.\r\n\r\nThe CML Bylaws states that any person may, after obtaining prior written approval from the Capital Markets Authority (CMA), submit an offer of acquisition at any time according to the provisions of the CML Bylaws. The absence of clarity on the phrase at any time creates a few issues: (i) there is no time limit on making an offer of acquisition.\r\n\r\nafter obtaining the approval from the CMA, therefore an offeror can hold on to such approval for an indefinite period; (ii) once the CMA approves an application for an offer of acquisition, the CMA can then grant another approval to a second offeror and, if the first offeror has not made an offer yet, there would exist two separate offers for the same company; and (iii) if the CMA can only grant one approval at a time, an offeror may misuse this restriction to block other parties from making offers of acquisition.\r\n\r\nThe offeror must give equal treatment to all the shareholders of the subject company and in particular the offeror, the subject company and any advisers may not submit any information gathered during the period of offer to some of the shareholders and not the others.\r\n\r\nThe offer parties (the offeror and the offeree) must appoint an investment advisor licensed by the CMA who must be independent and has no interest in the acquisition of the subject company. At this time, it is unclear if both the offeror and the offeree can appoint one investment advisor or if each is required to appoint one.\r\n\r\nThe Board of the offeror and the Board of the subject company must provide their respective shareholders with information and recommendations to enable them to reach a decision for accepting or rejecting the offer at least fifteen days before holding the general assembly of shareholders. From the wording of the CMA Bylaws on this provision, we assume that in the case of acquiring all the shares of the subject company, the approval of the shareholders’ ordinary assembly of the subject company is required. In other words, at least 51% of the shareholders of the subject company have to approve the offer, subsequently forcing the non-approving shareholders to sell their shares as well. This concept is new to the Kuwaiti practice and has never been applied before. The shareholders of the offeror have to approve the offer as well. The issue arising from this requirement is that when the offeror is required to obtain the approval from its shareholders, which are either before or after the application to the CMA seeking its approval for the offer of acquisition. If after, then the board of directors decides on the offer of acquisition and applies to the CMA on behalf of the offeror.\r\n\r\nThe offeror shall, before proceeding to acquisition procedures, obtain the approval of the Competition Protection Agency according to Law No. 10 of 2007 concerning competition protection. With respect to the timing of the application for approval of the Competition Protection Agency, which the exact timing for such application is, either before or after the application for approval of the CMA or the approval of the shareholders.\r\n\r\n<strong>ACQUISITION OF MORE THAN 30% OF SHARES (MANDATORY OFFER)\r\n</strong>\r\nAny person must within a period of thirty days of directly or indirectly obtaining equity of more than 30% of the voting shares of a company listed in the Kuwait Stock Exchange (KSE)immediately submit an acquisition offer for all the shares remaining from the same category. The CMA can make exceptions to this requirement if it is in the best interest of the shareholders or public policy. The question arises as to whether this article will apply to acquisition of 30% or more in the event of foreclosure, or pursuant to any court order. Would the mortgagee then have to extend a mandatory offer to the remaining shareholders?\r\nThe offeror shall, in the case of a mandatory offer, submit its offer to the shareholders of the company, subject of the offer, directly without the need for holding a general assembly of shareholders of the company subject of offer. Each shareholder shall be allowed the option to sell its shares to the offeror or keep them during the offer period decided by the CMA.\r\n\r\nThe offer submitted under the mandatory offer shall be a cash offer not less than the likely average of the daily price per share in the KSE for the company subject of offer within the six years preceding the beginning of offer period, and the KSE shall calculate this price.\r\nIt should be noted that that the above provisions regarding the mandatory offer are the consequence of obtaining more than 30% of the shares, and not the method that an offeror is to acquire shares of more than 30%. The mandatory offer only kicks in after an offeror obtains more than 30% shares. For instance, if an offeror wishes to acquire 49%, it will have to complete the acquisition of the 49% and then shall have 30 days to submit a mandatory offer for the remaining shares. When using the method of acquisition of up to 49% (before reaching 30%), the following provisions of acquiring 5%-30% of shares will apply.\r\n\r\n<strong>ACQUISITION OF BETWEEN 5% AND 30% OF SHARES\r\n</strong>\r\nWhen a person holds, individually or jointly with parties affiliated thereto or allied therewith, about 5 % or more of the shares of any company listed in the KSE and intends to raise the holding percentage of the company shares, it shall disclose such intention when disclosing the interests pursuant to the provisions of Chapter Ten of the CML, and shall submit to the CMA the information it requires in this respect.\r\n\r\nIf the person holding, individually or jointly with parties affiliated thereto or allied therewith, 5 % or more of the shares of a company listed in the KSE, is willing to raise such percentage at no more than 30 % of the shares of the same company, it shall achieve the same in any of the following forms:\r\n\r\n1. Purchasing shares directly through the KSE;\r\n2. Submitting an application to the KSE for holding an auction for purchasing a specific number of shares. For submitting this application, there shall be a preliminary agreement with a person or group of company shareholders willing to sell a specific number of shares at a price agreed upon in advance. For holding the auction, the conditions and requirements laid down by the CMA and KSE shall be complied with in this respect.\r\n3. Announcing submission of an offer to the shareholders of the company to purchase a specific number of shares at a specific price and within a specific period of time, provided that it shall obtain the prior written approval of the CMA in this respect and to comply with the conditions and requirements laid down by the CMA.\r\nIt is unclear if the above provisions supersede the current block trading rules.\r\n\r\n<strong>REVERSE ACQUISITION</strong>\r\n\r\nReverse acquisition means any arrangement under which a listed company offers new shares to shareholders of an unlisted company instead of their shares where the new shares represent more than 50 % of the voting shares in the listed company after acquisition.\r\n\r\nReverse acquisition operation, the listing of offeror\'s shares shall be suspended untill the operation is completed. Once completed, the listing of offeror\'s shares shall be cancelled and the offeror shall submit an application for a new listing, provided that it shall meet the requirements of listing according to the regulation in respect of the same.\r\nThis acquisition, acceptable with a majority resolution, is passed by the general assembly of shareholders in the company subject of offer in approval thereof.\r\n\r\n<strong>CONCLUSION</strong>\r\n\r\nThe passing of the CML and the CML Bylaws marked an important milestone in the Kuwaiti capital markets industry. Other than the provisions on acquisitions, the CML and the CML Bylaws introduced clearer provisions which clarified the earlier provisions  on the protection of minority rights, disclosure obligations and insider trading which was either previously unregulated or the previous law relevant to these areas was unclear.\r\nWe have yet to see how the CMA will implement the CML and CML Bylaws and we look forward to the application of any new test case on the same. Hopefully, when more information becomes available and actual application of the CML and the CML Bylaws will take place, we will be able to shed more light on this subject in future articles.'),
	(194294,4354,'core_values',''),
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	(194299,4354,'_orderValue4','field_59d2096a8ff34'),
	(79824,4351,'_currentURL','field_59d35123ab1e7'),
	(79825,4351,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ahmed Hamad'),
	(79826,4351,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(79827,4351,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.hamad@tamimi.com'),
	(79828,4351,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(79829,4351,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(79830,4351,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(79831,4351,'lawUpdateArticleNoWriters','1'),
	(79832,4351,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(79833,4351,'_yoast_wpseo_metadesc','What is a Waqf? Waqf is a concept which resembles closely the Anglo-American trust.'),
	(79834,4352,'content','June 2011\r\n\r\n<hr />\r\n\r\nThe term “cloud computing” is often used to describe a broad range of remote access computing services, many of which have been around for a number of years.  However, these days a cloud computing environment is generally one in which users have access to applications and data storage services on demand and delivered over an external network, on a user-pays basis.  Providers also draw a distinction between public and private clouds, but the focus of this article will be on public cloud services.\r\n\r\nThe term “legal risks” in this context refers to issues that may expose a cloud provider or user to legal liability, issues which arise from an applicable legal system, and issues which can and should be addressed from a legal perspective in order to create an effective and trustworthy cloud services relationship.  The UAE does not have a comprehensive set of laws, regulations and/or official standards specifically for the provision of cloud computing services, and general laws apply.  In the absence of a prescriptive legislative framework, however, providers and users must come together in a relationship of trust in order to facilitate the use of a financially advantageous service relationship.\r\n\r\nIn terms of risk management, users of cloud services are often placing in the hands of third parties responsibility for direct control of critical data and applications.  If there is an outage or a security breach, the cloud user could be exposed to claims from its own customers, a failure in business continuity, and potentially reputation damage, even though the cloud provider or a third party telecommunication service provider was responsible for the default.  Many SME’s will investigate cloud services and be presented with a service contract which offers the cloud services “as is”, without the cloud provider assuming any risk, and with an exclusion of the cloud provider’s liability to the extent permitted by applicable law.  Whether or not a cloud provider and cloud user negotiate a services contact will depend on the parties and the value of the contract. However, even if SME’s must accept stand terms without negotiation they should conduct serious due diligence and contingency planning to mitigate exposure to legal risks.\r\n\r\nThe claims which a cloud user may bring against a provider when things go wrong, outside the scope of contractual rights, are limited and may not prove to be effective – particularly if the cloud provider is located offshore.  For instance, claims for compensation under the UAE Civil Code (number 5 of 1985) will require the cloud user to prove the value of the loss claimed, and this might be difficult.  The UAE Federal Law number 2 of 2006 concerning Cyber Crimes focuses on the criminal actions of the hacker, but does not provide a framework which specifically addresses the claims which a cloud user may have against a faulty cloud provider.  Other than the law applicable in the DIFC, there is no single data protection / privacy law in the UAE, and the range of laws which speak about the protection of secrets (for instance the Penal Code) do not provide a detailed legislative framework that might protect cloud users from the mishandling of personal and sensitive information.  The UAE does not have an information security law as such.  However, there can be information security policies which are of vital importance to individual organizations and government departments.  For instance, the Abu Dhabi System and Information Centre has developed and implemented an information security policy under Federal Law number 1 of 2006 concerning Electronic Transactions and Commerce with which Abu Dhabi government entities must comply.  Ironically, this places added pressure on Abu Dhabi government entities who wish to outsource applications and data storage to a cloud provider, as it is the government entities who nonetheless remain subject to the obligation to be compliant with the ADSIC information security policy.\r\n\r\nIn the space available it is not possible consider all of the legal / contractual issues arising, and the following points are a summary of some key issues:\r\n<ul>\r\n 	<li>Data location – Users must consider the impact of the various UAE laws governing the privacy of secrets on the collection and transfer of data to the cloud provider, and the movement of that data across different jurisdictions as part of the provision of the cloud service.  Further, what will be the impact, upon the delivery of the cloud services, of the various laws governing data transfer and use which are applicable in the different jurisdictions across which the data is moved?</li>\r\n 	<li>Record retention obligations – Under Federal Law number 18 of 1993 Commercial Transactions Law, organizations in the UAE have clear record retention obligations. Under that law, and under the Electronic Commerce and Transactions law, many such records may be kept in electronic form.  However, if data storage obligations are outsourced to a cloud provider, the UAE company must ensure that there are adequate protection mechanisms such that a failure by the cloud provider does not result in the UAE company failing to comply with its local record retention obligations.</li>\r\n 	<li>Data ownership – Under the cloud arrangement, the cloud user will generate data in the ordinary course of business which is stored in the cloud.  However, the cloud provider also will be creating data in relation to the cloud user.  The cloud user’s ownership rights over all data which it creates and which is created on its behalf by the cloud provider must be firmly established in the service contract.</li>\r\n 	<li>The providers in the cloud relationship – Cloud services can be provided by multiple parties working together, and sometimes the user may not appreciate the different parties involved.  It is important for the cloud user to know whether it has a directly enforceable contract with the key players in the relationship or whether it is relying on those with whom it does have a contract to enforce relevant terms against other providers.</li>\r\n 	<li>Data security – The cloud user will have its own data security and access management policy internally.  The cloud user must determine how to ensure that its security measures are reflected in the data hosting service offered by the cloud provider.</li>\r\n 	<li>Availability – Cloud computing services inevitably will experience outages and performance slowdowns.  While a provider may agree in a contract to give 99.95% reliability excluding scheduled maintenance downtime, the cloud user must nonetheless have sensible options if, for whatever reason, the cloud provider cannot meet that target.</li>\r\n 	<li>Planning for the end of the cloud services relationship – Cloud users must avoid a situation, to the extent possible, where the applications and data storage mechanisms which they are provided by a cloud provider do not lock the user into the provider’s services, in that a transition to another provider may not be possible without expending significant cost and time in restructuring.\r\nCloud users should conduct thorough due diligence of the provider they are considering and in particular focus on the privacy and security levels of the services to be offered.  It is in the interests of cloud providers to make this information available and for the parties to act reasonably in contractual negotiations in order to bring about a relationship of trust.</li>\r\n</ul>'),
	(194226,4352,'core_values',''),
	(194227,4352,'_core_values','field_59b64ab071de4'),
	(194228,4352,'file',''),
	(194229,4352,'_file','field_59b64c10f6600'),
	(79835,4352,'_content','field_59b649b5c8b2b'),
	(79836,4352,'lawUpdateArticleMonth','4348'),
	(79837,4352,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(79838,4352,'content_description','The term “cloud computing” is often used to describe a broad range of remote access computing services, many of which have been around for a number of years.'),
	(79839,4352,'_content_description','field_59b641c07f473'),
	(79840,4352,'pageSummary','The term “cloud computing” is often used to describe a broad range of remote access computing services, many of which have been around for a number of years.'),
	(79841,4352,'_pageSummary','field_59e59b307dec8'),
	(79842,4352,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/june-5/cloud-computing-in-the-uae-legal-risks-and-remedies-for-providers-and-users.html'),
	(79843,4352,'_currentURL','field_59d35123ab1e7'),
	(79844,4352,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','David Yates'),
	(79845,4352,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(79846,4352,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','d.yates@tamimi.com'),
	(79847,4352,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(79848,4352,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(79849,4352,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(79850,4352,'lawUpdateArticleNoWriters','1'),
	(79851,4352,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(79852,4352,'_yoast_wpseo_metadesc','The term “cloud computing” is often used to describe a broad range of remote access computing services, many of which have been around for a number of years.'),
	(79853,4353,'content','June 2011\r\n\r\n<hr />\r\n\r\nThe decision in question deals with an insurer’s pursuit of its rights of subrogation against the party responsible for damage caused to a vehicle\r\n\r\nBriefly, the facts are that an individual had, through ADIB (the financier) purchased a Nissan car which ADIB had in turn purchased from Al Masoud Car Agency under a murabaha contract. The individual insured the vehicle with Al Wathba National Insurance Company.\r\n\r\nNine months following the individual’s purchase, the vehicle caught fire due to an electrical short circuit and was completely destroyed. The insured was paid the value of the vehicle by the insurer who then sued both Al Masaoud Agency and ADIB to recover the value of the vehicle, being AED 168,000 plus Court fees and costs. The action was based on the right of subrogation as prescribed by Article 1030 of the UAE Civil Transactions Code.\r\n\r\nThe Court of First Instance refused to entertain the action due to the purported lack of capacity to sue on behalf of Al Wathba, the Plaintiff. Similarly, the action was dismissed on appeal on the following grounds:\r\n\r\n1- The insurer has a right to pursue a subrogated claim against the party responsible for the damage against payments previously made to its insured pursuant to Article 1030 of the Civil Transactions Code, and to recover such indemnity payments from the party at fault who caused the damage.\r\n\r\n2- By dismissing the action, the Court of First Instance exhausts its jurisdiction over the merits and a reversal of its decision places the merits before the Court of Appeal.\r\n\r\n3- There is no basis for entertaining the plea that the claim is time barred under Article 555 of the Civil Transactions Code since the claim seeks recovery of the amount paid to the insured.\r\n\r\n4- An existing defect within the meaning of Article 547 of the Civil Transactions Code is a defect which is present when the goods are delivered to the buyer or a defect that can be traced to an old problem that occurs or appears after the sale.\r\n\r\n5- Plaintiff (insurer) has not produced any proof of the defect which caused the electrical short circuit that ignited the vehicle fire - whether it was a pre-existing defect in the vehicle that was introduced during manufacture or a defect that existed prior to purchase.\r\n\r\n6- A defect existing in the sold item prior to sale cannot be assumed and must be proved. Plaintiff (insurer) has not proven that the defect is a manufacturing defect or had existed in the vehicle prior to the sale. The seller cannot therefore be held liable for its value.\r\n\r\n<strong>Opinion:</strong>\r\n\r\nSubrogation commonly arises in relation to motor vehicle purchase contracts and policies of insurance.\r\n\r\nSpontaneous accidents involving vehicles, machinery etc. are common types of claims.\r\n\r\nTherefore, the Al Ain Court, which is part of the Abu Dhabi Judicial Department, has laid down important principles which burden the plaintiff with the onus of proving a pre-existing defect as follows:\r\n\r\n1- That the vehicle suffered loss caused by fire due to a defect therein\r\n\r\n2- That the defect is a pre-existing defect introduced during manufacture or existing in the vehicle prior to purchase\r\n\r\n3- And the onus of proving a pre-existing defect is on Plaintiff whether the vehicle owner or the subrogee.'),
	(194260,4353,'core_values',''),
	(194261,4353,'_core_values','field_59b64ab071de4'),
	(194262,4353,'file',''),
	(194263,4353,'_file','field_59b64c10f6600'),
	(79823,4351,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/june-5/the-new-waqf-islamic-trust-law-in-the-emirate-of-sharjah.html'),
	(79822,4351,'_pageSummary','field_59e59b307dec8'),
	(79821,4351,'pageSummary','What is a Waqf? Waqf is a concept which resembles closely the Anglo-American trust.'),
	(79820,4351,'_content_description','field_59b641c07f473'),
	(79819,4351,'content_description','What is a Waqf? Waqf is a concept which resembles closely the Anglo-American trust.'),
	(79818,4351,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(79816,4351,'_content','field_59b649b5c8b2b'),
	(79817,4351,'lawUpdateArticleMonth','4348'),
	(79797,4350,'_content','field_59b649b5c8b2b'),
	(79798,4350,'lawUpdateArticleMonth','4348'),
	(79799,4350,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(79800,4350,'content_description','The UAE is a federacy of seven states. Each state has its own ruler and the rulers together form the supreme counsel governing body of the UAE, with the ruler of Abu Dhabi as the president of the country and supreme commander of the army.'),
	(79801,4350,'_content_description','field_59b641c07f473'),
	(79802,4350,'pageSummary','The UAE is a federacy of seven states. Each state has its own ruler and the rulers together form the supreme counsel governing body of the UAE, with the ruler of Abu Dhabi as the president of the country and supreme commander of the army.'),
	(79803,4350,'_pageSummary','field_59e59b307dec8'),
	(79804,4350,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/june-5/cargo-customs-law-in-the-uae.html'),
	(79805,4350,'_currentURL','field_59d35123ab1e7'),
	(79806,4350,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Omar Omar'),
	(79807,4350,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(79808,4350,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','o.omar@tamimi.com'),
	(79809,4350,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(79810,4350,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(79811,4350,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(79812,4350,'lawUpdateArticleNoWriters','1'),
	(79813,4350,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(79814,4350,'_yoast_wpseo_metadesc','The UAE is a federacy of seven states. Each state has its own ruler and the rulers together form the supreme counsel governing body of the UAE, with the ruler of Abu Dhabi as the president of the country and supreme commander of the army.'),
	(79815,4351,'content','<p><strong>What is a Waqf?<br /></strong><br />Waqf is a concept which resembles  closely the Anglo-American trust. It is a form of endowment under which the  ownership of assets is transferred to a juristic body (namely the Waqf), which  manages the assets and the fruits of the assets for named beneficiaries for a  defined period of time. <br /><br />The Emirate of Sharjah (by Law No. 4 of 2011 has  now introduced a special decree facilitating the establishment and operation of  Waqfs.<br /><br /><strong>Why was the Sharjah Law Needed?</strong><br /><br />Islamic  Sharia law has developed the concept of the Waqf and also legal rules on how  Waqfs are to be regulated or governed.&nbsp; However, there is not complete consensus  amongst Sharia scholars on some of the base legal principles concerning Waqfs.&nbsp;  This has created areas of uncertainty in Islamic jurisprudence and led to the  Waqf being rarely used as a vehicle for asset management.&nbsp; Because there was  previously no secular civil law to use as reference source and rely upon in  creating Waqfs, or settling their terms and conditions, most Waqfs were  vulnerable to challenge due to this unsettled and contentious Sharia  jurisprudence.&nbsp;<br /><br />Although Waqfs are not infrequently used to manage small  assets, the use of a Waqf structure previously carried high risks when  administering large and highly significant assets, where challenges to the Waqf  and its administration were more likely.&nbsp; <br /><br /><strong>What are the Key Terms  of the New Sharjah Law?</strong><br /><br />The Sharjah law requires the  settlor/creator of a Waqf to decide and record their wishes on several subjects.  The most important are:</p>\r\n<ul>\r\n<li>the assets to be transferred;</li>\r\n<li>the beneficiaries of the proceeds of the assets; and</li>\r\n<li>the governance/management of the Waqf.</li>\r\n</ul>\r\n<p>A Waqf deed needs to be drafted and certified by the competent judge at the  Sharjah Court. The Waqf, once certified, acquires full and separate artificial  legal personality as provided under Article 16 of the Sharjah Waqfs Law. This  legal personality enables the Waqf to operate autonomously in carrying out the  objectives set by the Waqf&rsquo;s creator.<br /><br />The law mandates that a coherent  management structure must be put in place.&nbsp; Articles 37 to 50 of the Sharjah  Waqfs Law regulate the management of Waqfs. The management of any Waqf is to be  conducted by a trustee or a board of trustees. The trustee or board of trustees  is authorized to act on behalf of the Waqf. The new law contains provisions  designed to ensure that any trustee acts in good faith and in line with the  objectives of the Waqf. It is an option open to a settlor/creator to assign the  management of the Waqf to a new statutory body created by the Sharjah law,  namely the Waqf General Secretariat.<br /><br />Article 8 of the Sharjah Waqfs Law  lists the types of assets which are able to be owned and managed by a Waqf. The  traditional view was that Waqfs could own only immovable assets. However,  Article 8 of the new law now provides explicitly that movable as well as  immovable assets may be transferred to a Waqf. <br /><br />Moreover, the law  provides that interests in movable and immovable assets held in common with  other owners or parties may be validly transferred to a Waqf, even if the assets  concerned are under common ownership, provided that the transfer does not harm  the interests of the other owners or partners. <br />Article 8 further makes it  clear that Waqfs may own all kinds of securities, trade names, moneys and  intellectual property rights.<br /><br /><strong>Conclusion</strong><br /><br />The  Sharjah Waqfs Law means that Waqfs are no longer a risky option to adopt as an  ownership structure. The absence of a secular civil source code to rely upon was  previously the main deterrent against establishing a Waqf. Fortunately, the new  Sharjah Waqfs Law covers most aspects of the Waqf structure and provides answers  to many questions. Accordingly, the risk of a successful challenge to a Waqf  duly established under this new law should be minimal.<br /><br />In light of the  new Sharjah Waqfs Law, there is a possibility that this long dormant form  ownership structure will be revived, particularly as its unique attribute is  that it is a Sharia compliant vehicle for owning and managing assets.</p>'),
	(79756,4347,'_content','field_59b649b5c8b2b'),
	(79757,4347,'lawUpdateArticleMonth','4325'),
	(79758,4347,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(79759,4347,'content_description','The Kuwaiti tax laws have granted the Minister of Finance inherent powers to issue a set of executive rules and instructions to facilitate the implementation and enforcement of the legal provisions provided in the said tax laws.'),
	(79760,4347,'_content_description','field_59b641c07f473'),
	(79761,4347,'pageSummary','The Kuwaiti tax laws have granted the Minister of Finance inherent powers to issue a set of executive rules and instructions to facilitate the implementation and enforcement of the legal provisions provided in the said tax laws.'),
	(79762,4347,'_pageSummary','field_59e59b307dec8'),
	(79763,4347,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/may-6/new-tax-rules-are-they-valid-and-how-will-they-affect-kuwaiti-companies.html'),
	(79764,4347,'_currentURL','field_59d35123ab1e7'),
	(79765,4347,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','717'),
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	(79781,4347,'_yoast_wpseo_metadesc','The Kuwaiti tax laws have granted the Minister of Finance inherent powers to issue a set of executive rules and instructions to facilitate the implementation and enforcement of the legal provisions provided in the said tax laws.'),
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	(79796,4350,'content','<p>The UAE is a federacy of seven states. Each state has its own ruler and the  rulers together form the supreme counsel governing body of the UAE, with the  ruler of Abu Dhabi as the president of the country and supreme commander of the  army. Each Emirate is subject to its own local laws and regulations governing  internal affairs. Matters related to the UAE as a whole legal body, would  require a federal law or decree approved by the president of the UAE.<br /><br />The  UAE applies the &ldquo;Common Customs Law of the GCC States&rdquo; which is applicable in  all GCC states, in which any commodities crossing the customs line, at  importation or exportation, are subject to the provisions of this law. This law  is approved by federal decree No. 85 for the year 2007. The commodities imported  into the country are subject to the custom dues specified in the Customs Tariff  issued pursuant to the Common Customs Law. There is no local UAE law regarding  customs. Any laws or regulations issued in the UAE regarding customs are all  subject to the Common Customs Law.<br /><br />According to the Law no. 13 for the  year 2007 of the import and export control, a committee named the &ldquo;national  committee of commoditisers that are subject to control of import, export and  re-export&rdquo; should be established under presidency of the representative of the  ministry of economy.&nbsp; This committee should control the rules that regulate the  affairs of import and export as well as provide the required technical  consultation concerning the non-violation of the states interest or the  international conventions to which the state joined or  approved.<br /><br />Generally, most of the imported commodities are subject to 5 %  customs duty.&nbsp; Products such as tobacco and manufactures tobacco substitute&rsquo;s  are subject to 100% customs duty or on the minimum collectable rates basis,  whichever is higher, as outlined in a specific table. Alcohol is subject to 50%  duty of product value. There are 734 items exempt from the customs duty under  the customs tariff, for example, certain animals, vegetables, plants, chemicals,  and medicines, certain diamonds, silver, and gold, as well as carriages and  accessories for those who are disabled. Helicopters, cruise ships and excursion  boats are also exempt.<br /><br />As long as there is an agent registered in the  specified register maintained for this purpose by the UAE Ministry of Economy  and Commerce, parallel importing is prohibited in the UAE. The Customs  Departments, at the registered agent\'s request, detain any products imported by  any other person and deposit them in the port warehouses until the dispute is  determined. This is of course a headache for inexperienced traders, agents and  forwarders who allow cargo to be imported without first checking if the cargo  has an agent registered in the UAE.&nbsp; A high proportion of cargo imported into  the UAE perishes while waiting for disputes to be resolved concerning whether or  not the cargo can be imported without the prior approval of the registered  commercial agent. <br /><br />According to Law No. 13, it is illegal to import any  strategic commodity that forms danger against public safety, public health,  environment, natural resources, and national security or for reasons related to  the UAE foreign policy, taking into account any restrictions which may currently  be imposed on those commodities according to the applicable legislations in the  state. The UAE authorities are extremely strict and intolerant when it comes to  cargo they believe jeopardizes or threatens national security. The mere  discovery of an unannounced handgun with the master or crew member will lead to  vessel detention, imprisonment of the master and a criminal action against the  vessel and its owners. Finding smuggled and prohibited cargo on board a vessel  will most probably lead to the vessel being confiscated.<br /><br />Meanwhile, there  is a list of prohibited products of which the import and export of is  prohibited. In addition to drugs and radiation polluted substances, this list  includes printed matters, paintings and drawings which contradict with Islamic  teachings or decencies, used and inlaid tyres, children&rsquo;s toys in the form of a  dinosaur and goods which consist of led.<br /><br />One of the prohibited products  mentioned in the list concerns those which are imported or exported to or from  Israel. According to the federal law no. 15 for the year 1972 of the &ldquo;Israel  Boycott&rdquo;, the Israeli products shall not be imported or exported from or to  Israel.&nbsp; The decision by the Israel Boycott office prohibits goods from Israel,  bearing Israel marks or logos. However, some goods imported from different  countries and which have some small undetected Israeli made components would not  cause problems with customs.<br /><br />If a cargo was shipped from a Malaysian port  to Israel in transit through the UAE, the UAE authorities will not permit the  shipment to continue its course to Israel. However, cargoes indirectly destined&nbsp;  to Israel going through other ports should not be considered against the  law.<br /><br />The UAE applies the UN Security Council Resolution 1929 which  relates to various issues and sanctions over Iran.&nbsp; In particular, the  resolution requires implementation by the member States for certain financial  directives which include primarily exercising vigilance over transactions  involving Iranian banks in order to prevent such transactions contributing to  the proliferation of sensitive nuclear activities or the development of nuclear  weapons.&nbsp; <br /><br />The resolution further calls upon member states to implement  measures which prevent the provision for any financial services (such as  insurance; re-insurance; the transfer to or from such States&rsquo; territory; or to  or by nationals or entities organised under such State laws; or financial  institutions, other assets or resources) if such services, assets or resources  could potentially contribute to the sensitive nature of Iran&rsquo;s nuclear  activities or the development of nuclear weapons.The below prohibitions set out  by the UN Security Council restrict the flow of importing and exporting  commodities to and from Iran:</p>\r\n<ul>\r\n<li>Prevention of the supply or sale of vessels directly or indirectly, that may  be used for the benefit of Iran, as well as any additional items contributing to  enrichment-related, reprocessing or heavy water-related activities which may  develop nuclear weapon delivery systems;</li>\r\n<li>Prohibit procurement from Iran, or using their flag vessels, whether or not  originating in the territory of Iran any of the items mentioned in a specific  list (with particular regard to Industrial Equipment, Test and Production  Equipment, Equipment, Assemblies and Components (where applicable), Heavy Water  Production Plant Related Equipment, and other &ldquo;Trigger List&rdquo;  activities).</li>\r\n</ul>\r\n<p>The UAE has undertaken several steps to implement the UN Sanctions against  Iran. The main step being the issuance of a circular by the UAE Central Bank  pertaining to Anti Money Laundering and the Combat of Terrorist financing. The  circular outlines the requirements of the UN Security Council Resolutions  including the freezing of suspicious accounts and recommending banks to conduct  the necessary due diligence in relation to their correspondent banks in Iran..  The UAE Central bank has informed all financial institutions in the country,  including banks, to freeze all accounts and stop bank transactions as per the  instructions of the UN Security Council based on its Resolution 1929 on Iran  connection. Furthermore, the Central Bank has issued a circular listing Iranian  entities with which UAE banks are not allowed to deal with under any  circumstance. The circular states: &ldquo;If you (banks) receive funds from a  natural/judicial persons mentioned in the enclosures or in their favour, you are  to freeze such funds &lsquo;immediately&rsquo;&rdquo; Currently there is no list issued by the UAE  authorities detailing the banned items however; the banned items are similar to  the circulars and directive issued by the UN in this regard. It should be noted  that on 20th June 2010, the Dubai Financial Services Authority warned companies  based in the free zones to conduct risk assessments when dealing with banks and  other clients domiciled in Iran. The Dubai Financial Services Authority said  that companies should \"ensure that the due diligence processes for each  correspondent bank domiciled in Iran has been completed, consistent with the  enhanced due diligence procedures\".&nbsp; It is however, no secret that the UAE, with  its free trade and open market policy is a destination to Iranian traders and  cargos. <br /><br />Accordingly, any goods not included within the UN sanctions will  find its way through the UAE ports</p>'),
	(79755,4347,'content','May 2011\r\n\r\n<hr />\r\n\r\nThe Kuwaiti tax laws have granted the Minister of Finance inherent powers to issue a set of executive rules and instructions to facilitate the implementation and enforcement of the legal provisions provided in the said tax laws. However, what would be the legal and practical effect when an “executive rule” seemingly exceeds its objective and purpose or contradicts with its source of legislation in all tax matters?\r\n\r\n<strong>General </strong>\r\nIncome-tax in Kuwait is regulated by the Decree No.3 of 1955 (“Decree”) and Law No.2 of 2008 amending certain provisions of the Decree (“Amendment”) and the Ministerial Resolution No. 29 of 2008 concerning the issue of executive by-laws (“Implementing Regulations”), (collectively referred to as “Tax Laws”).\r\n\r\nThe Tax Laws enable the Minister of Finance, Kuwait or a representative /delegate/ authorized person of the Ministry of Finance, Kuwait to issue executive rules containing prescribed forms and procedures to facilitate the implementation and enforcement of the legal provisions provided in the Tax Laws. Such executive rules address procedural issues relating to tax cards, correspondence, submission of declarations, approval of fiscal year, exemptions and other procedures related to the administration of tax.\r\n\r\n<strong>New Executive Rules</strong>\r\nIn January 2011, the Ministry of Finance has issued a new set of executive rules (“Executive Rules”). The Executive Rules are intended to regulate the proper execution of the provisions of the Tax Laws which constitute the source of legislation in that matter.\r\n\r\n<strong>Executive Rule 20 versus Article 46 of the Implementing Regulations</strong>\r\n<ul>\r\n 	<li>Executive Rule 20 (“ER 20”) prescribes certain forms and procedures with respect to the implementation of Article 46 of the Implementing Regulations.</li>\r\n 	<li>Article 46 of the Implementing Regulations prescribes a withholding tax requirement applicable to ‘investment and portfolio managers, fund managers and custodians’ distributing dividends. Such entities are required to withhold and pay the prescribed tax to the tax authorities within thirty days from the date of distribution. Now, ER 20 appears to include an addition namely “incorporated entities/bodies” to the aforesaid entities stated under Article 46.</li>\r\n</ul>\r\n<strong>A Questionable Change in the Tax Landscape?</strong>\r\nOne could argue that there has been an improper widening of the scope of ER 20 now requiring each Kuwaiti shareholding company (beyond the scope of its capacity as investment and portfolio manager, fund manager or custodian) to withhold/ pay tax whereas Article 46 is silent on such reference.\r\n\r\nSuch widening of the scope of ER 20 is currently under scrutiny from a legal and financial perspective, particularly due to the uncertainty and lack of clarity on the issues pertaining to the date of issuance of the Executive Rules, their date of applicability and their binding effect vis-à-vis the earlier set of executive rules of 2008.\r\n\r\nThis ambiguity begs two key questions – (i) whether the Executive Rules should have been published in the Official Gazette of Kuwait (Kuwait Alyoum), and (ii) whether ER 20 improperly widens the scope of Article 46 of the Implementing Regulations. Each of these has been discussed below.\r\n\r\nDo the Executive Rules need to be published in the Official Gazette of Kuwait (“Official Gazette”) in order to be valid?\r\n<ul>\r\n 	<li>The Constitution of Kuwait provides that for laws to take effect and to become enforceable in Kuwait, their publication in the Official Gazette is mandatory. All laws must be ratified by Kuwait’s National Assembly and ultimately signed by the Amir of Kuwait.</li>\r\n 	<li>Secondary and subordinate legislation must be issued in accordance with the procedures laid down in the relevant piece of primary legislation. Secondary legislation usually takes the form of ministerial decisions or executive orders over their areas of responsibility. Secondary legislation must also be published in the Official Gazette in order to come into force, but is not required to be ratified by the National Assembly or signed off by the Amir.</li>\r\n 	<li>The Implementing Regulations provide that any matter not specifically provided in the Implementing Regulations shall be governed by the executive rules and instructions issued by the Minister of Finance or his representative, pursuant to the provisions of the Tax Law.</li>\r\n 	<li>One may therefore argue that where there is a specific enabling provision in the Tax Laws pertaining to the issuance of the Executive Rules, and where the Implementing Regulations have been published in the Official Gazette, it appears that the Executive Rules need not be separately published in the Official Gazette for them to be effective and applicable, given that the Minister of Finance has inherent powers to issue the Executive Rules as explained above.</li>\r\n</ul>\r\n<strong>Does ER 20 improperly widen the scope of Article 46 of the Implementing Regulations?</strong>\r\n<ul>\r\n 	<li>One can argue that ER 20 does expand the scope of the entities required to withhold/ pay tax given that ER 20 now includes ‘incorporated entities/bodies’ within its purview. As a result, each shareholding company (beyond the scope of its capacity as investment and portfolio manager, fund manager or custodian) declaring dividends is now required to withhold/ pay the prescribed tax.</li>\r\n 	<li>Having understood the general objective of issuing the Executive Rules as explained above, where any particular executive rule exceeds its objective and purpose, one could argue that such excess would require a proper amendment to the relevant legislation in order for it to have full legal and binding effect. Such issue could be subject to proper assessment and analysis by an appropriate forum, being either the Tax Challenges Committee (“Committee”) at the Department of Income-Tax (“DIT”) or the competent court, as the case may be.</li>\r\n 	<li>A bonafide argument may be made before the relevant forum to the effect that there has been an improper widening of the scope of the ER 20. However, given that there is no precedent on this issue so far, it is difficult to determine the interpretation that may be adopted by the Committee or the court whether in relation to the supposed widening of the scope of Article 46 or in relation to the proper mechanism for issuance/ dissemination of the Executive Rules.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nWe believe that the intended implementation of ER 20 by all incorporated entities/bodies (which would include Kuwaiti shareholding companies as well) would be a tedious exercise and any of these entities may be inclined to challenge ER 20 before an appropriate forum or may elect not to adopt such implementation. Given that there is no legal precedent on this issue so far, it is difficult to anticipate the outcome of such challenge proceedings.'),
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	(79754,4346,'_yoast_wpseo_metadesc','Introduction: The principle of ‘sovereignty of the state’ has dominated international relations for the better part of the last century.'),
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	(79737,4346,'_content','field_59b649b5c8b2b'),
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	(79740,4346,'content_description','Introduction: The principle of ‘sovereignty of the state’ has dominated international relations for the better part of the last century.'),
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	(79742,4346,'pageSummary','Introduction: The principle of ‘sovereignty of the state’ has dominated international relations for the better part of the last century.'),
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	(79744,4346,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/may-6/enforcement-of-foreign-awards-in-jordan.html'),
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	(79746,4346,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zaid Al Syouf'),
	(79747,4346,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(79748,4346,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','z.alsyouf@tamimi.com'),
	(79735,4345,'_yoast_wpseo_metadesc','Al Tamimi & Company’s Jordan and Kuwait offices served as lead counsel in the closing of an 85 million JOD Sukuk Al Ijara Mountahia Bittamlik.'),
	(79736,4346,'content','May 2011\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\nThe principle of ‘sovereignty of the state’ has dominated international relations for the better part of the last century. Whilst the ability to enforce the awards issued in a particular state within the boundaries of that state has hardly ever been contested, the enforcement of awards outside the boundaries of that state is far less straightforward; such enforcement was often viewed as an encroachment on the sovereignty of the state in which the award was to be enforced.\r\n\r\nHowever, the development of commercial and legal relationships between members of different countries has lead many countries to review their outlook on the enforcement of foreign awards, and to accept that such awards should be granted the same treatment as domestic awards with regard to their legality and enforceability. Within this framework, we hereby examine the enforcement of foreign awards in Jordan and in accordance with Jordanian laws and regulations.\r\n\r\n“<strong>Foreign Award”</strong>\r\nThe first point to take into consideration is that for the purposes of enforcement in Jordan, foreign arbitral awards are granted the same treatment as foreign judicial awards. The Enforcement of Foreign Awards Law No.8 of 1952 defines a “foreign award” as (rough translation) “any award issued by a court outside of the Hashemite Kingdom of Jordan (including Religious courts) relating to civil proceeding and which provides for the payment of monies or in-kind assets or liquidation of accounts and which includes decisions of arbitrators in arbitral proceedings if the award has become, by virtue of the laws of the country which issued the award, enforceable as an award issued by the courts in the aforementioned country.”\r\n\r\n<strong>Conditions for Enforcing the Award</strong>\r\n\r\nIn order to enforce a foreign award in Jordan, the following criteria must be satisfied:\r\n\r\n<strong>1. For the court that issued the foreign award to have jurisdiction</strong>\r\nThe court that issued the foreign award should have the competence to do so, including having both the geographic and specific jurisdiction to view the case. Further, the above means that decisions issued by administrative bodies are not enforceable.\r\n\r\nIn accordance with Article 7 of the aforementioned Law, the award is not enforceable in Jordan in the following circumstances: If the defendant did not have his place of business or was not resident in an area under the jurisdiction of the court; or if the defendant did not attend the court by his own choice and has not acknowledged its jurisdiction.\r\n\r\n<strong>2. The award should be final, binding and enforceable in the country in which it was issued</strong>\r\nFor a decision to be final, binding and enforceable, it must not be open to challenge (on whatever grounds and for whatever reason) in the country that issued the decision. We note that the burden of proving that the foreign award is not binding and enforceable lies with the defendant. If the defendant is able to prove the decision does not satisfy the above conditions then the award is not enforceable. Additionally, if the award is contested in the country of issued, the claim to enforce the award before the Jordanian courts is stayed.\r\n\r\n<strong>3. Notifications</strong>\r\nProvided that the issuing court has the jurisdiction to hear the case, Jordanian laws further provides conditions with regard to notifying the defendant; so that Article 7 of the aforementioned Law provides that the Jordanian court can refuse to enforce the award if the defendant was not served notice to attend the court who issued the said ruling, and he did not appear before the said court despite the fact that he has his place of business or is resident in an area under the jurisdiction of the said court. What is crucial here is not whether or not he attended the session, but rather whether or not he was properly notified, and as such, whether he could have attended the session.\r\n\r\n<strong>4. Fraud</strong>\r\nIn order to enforce a foreign award in Jordan, the award must not have been obtained fraudulently.\r\n\r\n<strong>5. Breach of Public Order or Morals</strong>\r\nSimilarly, and in order to enforce the award, the award must not contravene public order or public morals. The principle of public order and public morals is a relative concept, varying according to time and place and is specific to each country in accordance with its customs, traditions, and legal standards. The criteria to be used here is that of the state in which the award is to be enforced (i.e. Jordan). Please note that in accordance with Court of Cassation Decision No.2549/99, the burden of proving that the award contravenes public order or morals lies with the defendant.\r\n\r\n<strong>6. Reciprocity</strong>\r\nIn accordance with the principle of reciprocity of treatment, a Jordanian court may refuse to hear a claim to enforce a foreign award, if the award was issued in a country that does not allow the enforcement of Jordanian awards in its country.\r\n\r\n<strong>Procedure for Enforcing the Award</strong>\r\nProvided that the above conditions are satisfied, in order to enforce a foreign award in Jordan against a Jordanian, a case will be filed with the Court of First Instance in whichever jurisdiction the defendant resides, or if he resides outside Jordan, the Court of First Instance whose jurisdiction includes the assets of the defendant against which the award is to be enforced. The claim should include a certified copy of the award if it is in Arabic, or a certified translated copy of the award if it is in any other language. The defendant is then notified of the same, and the Court, provided that the above decisions are satisfied, issues a judgment to enforce the award in Jordan. The Court’s competence in this case is limited to reviewing whether the foreign award satisfies the above conditions. In particular, it cannot review the merits of the award, nor alter it in any manner.'),
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	(79689,4343,'pageSummary','Living in a world that is increasingly governed by the electronic nature of business and enterprise, it is paramount to the sanctity of legitimate business operations that measures are taken to ensure the continued employment of honesty and good business practices.'),
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	(79701,4343,'_yoast_wpseo_metadesc','Living in a world that is increasingly governed by the electronic nature of business and enterprise, it is paramount to the sanctity of legitimate business operations that measures are taken to ensure the continued employment of honesty and good business practices.'),
	(79702,4344,'content','May 2011\r\n\r\n<hr />\r\n\r\nBy generating considerable inefficiencies and distortions, corruption poses a significant threat to ensuring the prosperous development of any economy. Corrupt practices lead to considerable waste of natural resources, have an adverse effect on public moral, and more often than not, are not conducive to a sound economic environment. The matter is exacerbated where such corrupt practices occur not only among individuals and private corporations, but are also conducted within governmental and public bodies.\r\n\r\nThe key in combating corruption, particularly at the ministerial level, is the need to ensure that the use of public funds is properly administered, and is not open to abuse or misappropriation. For years, Jordan has sought various means to help ensure this however, rather than having a comprehensive supervisory policy, the old approach was far more sector-specific, in that each ministry or governmental body would have its own specific internal rules and regulations for administering funds within that particular body, and for supervising and regulating the same. On the 18th of January 2011, the Council of Ministers, in an attempt to eliminate many of the discrepancies of the old system, and to bring the Jordanian system more in line with international auditing standards, approved the Financial Supervision Regulation No.3 of 2011. The Regulation which came into force on the 1st of May, 2011 provides for greater regulation and supervision of public spending, including the creation of various units within governmental ministries and other public departments specifically tasked with the same.\r\n\r\nFinancial Supervision Unit(s)\r\nThe Regulation provides for the establishment of a Financial Supervision Unit (“FSU”) within each governmental unit and/or department, and which shall be tasked with the prior auditing of all financial transactions relevant to its particular unit. In  doing so, the FSU aims to preserve public funds and assets entrusted to the relevant governmental unit, and ensure that they are properly used and administered.\r\n\r\nFurther, the Regulation provides that as part of its objective, the FSU shall have the following tasks:\r\n\r\n1. Review the correctness and accuracy of any constraints, documentation, accounting information and financial data\r\n2. Verify the effectiveness of any financial transaction adopted and the suitability of the same\r\n3. Protect financial resources and assets from being abused\r\n4. Ascertain the extent to which the legislation in force is complied with, in order to reduce errors and to detect the same if they occur\r\n5. Adhere to the financial policies adopted by governmental bodies and units\r\n\r\nIn particular, the FSU shall be committed to do the following:\r\n1. Prepare an annual plan for the financial audit and present the same to the competent minister or council for approval, before the end of November of each year\r\n2. To submit a monthly report and whenever the need arises, regarding its financial supervision acts, its achievements and observations, including observations that were not presented to the competent minister or council, provided that it submits an annual report similar to the competent minister during the first four months of the following year.\r\n3. Prepare a guide for financial auditing procedures, and present it to the Minister of Finance for approval.\r\n\r\nAdditionally, and once the Minister of Finance receives all relevant reports, he shall submit an annual report to the Council of Ministers summarizing the main findings of all the FSUs as outlined in their respective reports.\r\n\r\nPlease note that the Regulation assists the FSUs in performing the tasks entrusted to them, by making it a legal obligation on all official employees to assist employees of the relevant FSU, and to provide the same with any documents, records, data and/or other information which the FSU may require in order to properly perform their tasks.\r\n\r\nCentral Financial Supervision Unit\r\nIn addition to the establishment of FSUs within each governmental unit or department, the Regulation further entails the establishment of a Central Financial Supervision Unit within each Ministry which supervises the work of each FSU within its Ministry.\r\n\r\nCentral Commission for Financial Supervision Standards\r\nFinally, the Regulation provides for the establishment of a Central Commission for Financial Supervision Standards, chaired by the Secretary General of the Ministry of Finance or another such senior official, and shall have the following tasks:\r\n\r\n1. Lay the foundations and criteria for evaluating the performance of the FSUs and their achievements\r\n2. Determine the general policy related to financial supervision, and update the same\r\n3. Develop standards of financial supervision and help build institutional capacities of governmental units and departments\r\n4. Classify the FSUs\r\n5. Study the organizational and functional structure of the FSUs\r\n6. Prepare a guide of procedures for FSUs\r\n\r\nFurthermore, the Central Commission is tasked with drafting the auditing standards to be adopted and any conditions relevant to the same. The same shall be presented to the Minister of Finance, who shall present it along with his recommendations\r\nto the Council of Ministers for adoption.'),
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	(79706,4344,'content_description','By generating considerable inefficiencies and distortions, corruption poses a significant threat to ensuring the prosperous development of any economy.'),
	(79707,4344,'_content_description','field_59b641c07f473'),
	(79708,4344,'pageSummary','By generating considerable inefficiencies and distortions, corruption poses a significant threat to ensuring the prosperous development of any economy.'),
	(79709,4344,'_pageSummary','field_59e59b307dec8'),
	(79710,4344,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/may-6/introducing-financial-supervision-of-governmental-bodies-in-jordan.html'),
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	(79714,4344,'lawUpdateArticleWriters','1'),
	(79715,4344,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(79716,4344,'_yoast_wpseo_metadesc','By generating considerable inefficiencies and distortions, corruption poses a significant threat to ensuring the prosperous development of any economy.'),
	(79717,4345,'content','<p>Al Tamimi &amp; Company&rsquo;s Jordan and Kuwait offices served as lead counsel in  the closing of an 85 million JOD Sukuk Al Ijara Mountahia Bittamlik. The  transaction, led by Khaled Saqqaf, partner and head of the Jordan and Iraq  offices, and Alex Saleh, partner and head of the Kuwait office, marks the first  ever issuance of an Islamic Sukuk in Jordan. <br /><br />The transaction, which  closed on the 1st of March, 2011, took place after the Jordanian Cabinet of  Ministers approved a number of tax exemptions for the issuance of Islamic bonds  for Al Rajhi Cement / Jordan PSC, a Shari&rsquo;a compliant company, in October 2010.  Al Tamimi &amp; Company was mandated as lead counsel to Capital Investments &ndash;  the investment arm of Capital Bank, and who acted as Lead Managers of the  transaction. Our involvement included structuring, drafting, reviewing and  implementing all transaction documentation, in addition to advising on law  aspects and security options relevant to the transaction.&nbsp; <br /><br />The  transaction involved the creation of an SPV in the Cayman Islands, with the  assistance of Cayman Law counsel, Walkers SPV Ltd, which issued the 7-year  JD85,000,000 Sukuk Al-Ijara Muntahia Bittamilik variable rate semi-annual return  due 2018, and which held and shall hold the same on trust for the Sukukholders.  The Sukuk represents ownership of certain assets purchased by the Issuer from Al  Rajhi, and leased back to it by way of a lease-to-own (Ijara Muntahia  Bittamilik) pursuant to an Ijara agreement between both parties for a period of  7 years. These Ijara Rentals received from Al Rajhi pursuant to the Ijara  Agreement shall be used by the Issuer (in his capacity as Trustee) to make  periodic payments to the Sukukholders on each periodic distribution date.</p>'),
	(79718,4345,'_content','field_59b649b5c8b2b'),
	(79719,4345,'lawUpdateArticleMonth','4325'),
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	(79721,4345,'content_description','Al Tamimi & Company’s Jordan and Kuwait offices served as lead counsel in the closing of an 85 million JOD Sukuk Al Ijara Mountahia Bittamlik.'),
	(79722,4345,'_content_description','field_59b641c07f473'),
	(79723,4345,'pageSummary','Al Tamimi & Company’s Jordan and Kuwait offices served as lead counsel in the closing of an 85 million JOD Sukuk Al Ijara Mountahia Bittamlik.'),
	(79724,4345,'_pageSummary','field_59e59b307dec8'),
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	(79664,4342,'content_description','Recent years have seen a significant increase in the issue of securities in Jordan; particularly in the bond market, as there seems to be a growing need for such investment instruments due to the rising costs of borrowing.'),
	(79665,4342,'_content_description','field_59b641c07f473'),
	(79666,4342,'pageSummary','Recent years have seen a significant increase in the issue of securities in Jordan; particularly in the bond market, as there seems to be a growing need for such investment instruments due to the rising costs of borrowing.'),
	(79667,4342,'_pageSummary','field_59e59b307dec8'),
	(79668,4342,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/may-6/issuance-and-offering-of-securities-in-jordan.html'),
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	(79670,4342,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zeinah Al Nabih'),
	(79671,4342,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(79672,4342,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','z.nabih@tamimi.com'),
	(79673,4342,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(79674,4342,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(79675,4342,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
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	(79678,4342,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(79679,4342,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(79680,4342,'lawUpdateArticlePractices','1'),
	(79681,4342,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(79682,4342,'_yoast_wpseo_metadesc','Recent years have seen a significant increase in the issue of securities in Jordan; particularly in the bond market, as there seems to be a growing need for such investment instruments due to the rising costs of borrowing.'),
	(79683,4343,'content','May 2011\r\n\r\n<hr />\r\n\r\nLiving in a world that is increasingly governed by the electronic nature of business and enterprise, it is paramount to the sanctity of legitimate business operations that measures are taken to ensure the continued employment of honesty and good business practices. This increasing requirement is all the more pressing when dealing in securities, particularly given the vast amounts of money that changes hands on any given day. In response to such needs, and the growing fear of potential adverse affects of criminal activity occurring in relation to the same, the Jordanian Securities Commission issued “Instructions on Anti Money Laundering and Counter Terrorist Financing in Securities Activities” (the “Instructions”) in 2010, pursuant to the provisions of Article 12 of the Securities Law Number 76 of 2002 and the provisions of Article 14 of the Anti Money Laundering and Counter Terrorist Financing Law Number 46 of 2007.\r\n\r\nThe main objectives of the Instructions are three-fold; firstly, to verify that sufficient due diligence is carried out in each and every circumstance relating to a transaction, especially where electronic transactions are employed that may cause confusion regarding the identification of the Original Beneficiary; secondly, to provide specific and more stringent guidelines regarding certain Politically Exposed Persons (as defined in the Instructions), and in particular, their financial verification; and finally, to impress upon the importance of training employees in Anti Money Laundering and Counter Terrorism Financing Laws.\r\n\r\nThe Instructions apply to all “Subject Parties”. Subject Parties are defined fairly broadly, and apply to licensed financial services companies, certain custodians, as well as to Mutual Investment Companies and Funds registered with the Securities Commission.\r\n\r\nArticle 13 of the Instructions provides that Subject Parties shall form an appropriate internal system to help employees counter money laundering and terrorist financing operations, and will include, as a minimum, details of the policies, procedures and internal controls enlisted to avoid such an eventuality. In particular, the system should include a method through which compliance with these Instructions can be monitored and verified through the assignment of independent staff within the internal audit unit. Further, in a day and age where many responsibilities are specifically designated to certain teams and positions within a corporation, fundamental yet basic information and expertise often escapes some employees; hence, in recognition of this shortcoming, Article 13 further provides for the implementation of Training Programmes of varying levels for all employees in order to increase awareness and knowledge about Anti Money Laundering and Counter Terrorist Financing Operations. This is in conjunction with Article 19 of the Instructions which requires all Subject Parties to acquaint employees with the Anti Money Laundering and Counter Terrorist Financing Laws. This in turn increases the responsibility of each and every employee to be able to identify any suspicious trend which may be construed as pertaining to Money Laundering or Terrorist Financing Operations and the ensuing reporting procedures which must be undertaken.\r\n\r\nThe Instructions further provides that the accurate identification of the Original Beneficiary is of principal importance. Pursuant to Article 4 of the Instructions, if due diligence procedures pertaining to the identity of a prospective client or the nature of his/her business activities remains inconclusive, Subject Parties must refrain from entering in to a contract with the same Client because, as Article 6 states, it is prohibited to enter into trade with anonymous persons or persons with fictitious identities or with fictitious banks and companies. As such, stringent guidelines are imposed with regard to the nature of the documentation required to authenticate the identity of the Original Beneficiary; whether they are Jordanian or non-Jordanian citizens, any legal representatives of persons of diminished capacity or third party agents of customers. Please note that when dealing with a designated legal representative, the required information also includes details of the ownership structure and controlling administration of the Client.\r\n\r\nGiven the increasing popularity of electronic transactions and even communications in their entirety, there is a discernible need that extensive measures are taken to accurately discern the identity of a prospective client and the nature of his/her intended business. This is of particular importance when dealing with clients who are citizens of countries where there are no controls or systems in place to counter money laundering and terrorist financing activities and where international controls are not applied. This, combined with the possibility of trade with Politically Exposed Persons, presents a high risk situation that requires analysis through the employment of a Risk Management System (as recommended by Article 9 of the Instructions). This system calls for the classification of each potential client, by degree of risk, that may be incurred upon association and trade with them – further requiring the verification of the source of a high risk client’s wealth in order to eradicate any doubts surrounding the legitimacy of any transaction that may occur with the client after the completion of all due diligence procedures.\r\n\r\nAdditionally, it is important to note that the practice of due diligence is not only of importance in relation to the identification of the Original Beneficiary or even of a Politically Exposed Person, but is also of paramount importance in the continued battle against money laundering and terrorist financing operations. As such, there is a continued need for extensive due diligence, both before the initiation of a transaction and throughout its duration. This requirement is fortified upon any shadow of suspicion relating to illegal practice irrespective of the value of the transaction, or if there is doubt or suspicion cast over the accuracy of data received and verified in the context of the Original Beneficiary’s identity. Further cause for due diligence may be called upon in transactions of large sums of money or if the nature of transactions of a particular client change suddenly and inexplicably. Although due diligence may be contracted to a third party, Article 10 of the Instructions states that responsibility for the accuracy and authentication of any information pertaining to the client’s identity and activities remains with the Subject Party.\r\n\r\nFinally, the Instructions provides a number of general provisions regarding the auditing and reporting standards which Subject Parties must abide by – the need to keep and preserve certain documents and records, as well as any details relating to accepting and dispensing any sums of money to and from customers.\r\n\r\nOverall, it is evident that threats of money laundering and terrorist financing operations are being taken extremely seriously in Jordan, particularly given the huge influx of foreign investment, both in the Middle East region in general and, in particular, in Jordan . Although growth and expansion are ever-invited, precautionary measures must also be enlisted to ensure the country maintains its integrity, its business practices and the institutions which reside therein.'),
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	(79630,4340,'content_description','After Al Tamimi & Company decided to open its Amman office, we quickly came to realize the great value of having our presence there, in order to both advise clients on the local laws relating to Jordan, as well as assisting the international community wanting to do business in Jordan and the region.'),
	(79631,4340,'_content_description','field_59b641c07f473'),
	(79632,4340,'pageSummary','After Al Tamimi &amp; Company decided to open its Amman office, we quickly came to realize the great value of having our presence there, in order to both advise clients on the local laws relating to Jordan, as well as assisting the international community wanting to do business in Jordan and the region.'),
	(79633,4340,'_pageSummary','field_59e59b307dec8'),
	(79634,4340,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/may-6/in-focus-amman-jordan.html'),
	(79635,4340,'_currentURL','field_59d35123ab1e7'),
	(79636,4340,'_yoast_wpseo_metadesc','After Al Tamimi & Company decided to open its Amman office, we quickly came to realize the great value of having our presence there, in order to both advise clients on the local laws relating to Jordan, as well as assisting the international community wanting to do business in Jordan and the region.'),
	(79637,4341,'content','May 2011\r\n\r\n<hr />\r\n\r\nHuman thought is the most significant development of the human mind and the human mind is the source of both knowledge and the spirit of creativity.  The human mind reflects originality and highlights a person’s personality, and it is the standard that distinguishes humans from other living and non-living entities on Earth.  It also allows people to be both individuals and part of society. Accordingly, the development of any society depends largely on the degree of creative-minded citizens who, day and night, work on the development and prosperity of their communities, through what they have to offer in terms of creativity and ideas that contribute to the evolution of life in the areas of science, literature and art.  This in turn requires the provision of effective protection of their creations, which consequently reflects the continuation of this creativity and its development in serving society and its prosperity.\r\n\r\nCreators have struggled since ancient times to achieve recognition of their rights and protection for their intellectual property productions. It is human nature to try and satisfy cultural needs only once financial needs are satisfied; so that intellectual prosperity for humans has become the highest expression of their self-realization.\r\n\r\nIntellectual property (IP) enforcement has an important and effective role in the protection of creativity and in encouraging creative people, through the preservation and protection of their distinguished and creative works from infringement.\r\n\r\nIn Jordan, intellectual property is protected through an array of different legislative acts, including copyright law, trademark law, patent law, law of industrial designs, law of trade secrets and unfair competition law; as well as the related ministerial regulations and instructions. Together they help to establish a complete system of intellectual property rights.\r\n\r\nJordan’s experience in the field of trademark protection began as early as 1952, with the establishment of the first Trademark Law in Jordan. However, the first law which came to deal with modern intellectual property issues as we know them today, was the 1992 Copyright Law. Following Jordan’s accession to the Berne Convention in 1998, the Copyright Law has been amended on several occasions to ensure better compliance with international standards of protection. As for the full package of legislation, it began in 1999 coincided with Jordan’s accession to the World Trade Organization (WTO) in 2000 to become 136 th member of WTO.  In response to the Intellectual Property Organization IPO Convention, Jordan has issued all laws relating to intellectual property including the law of industrial designs, industrial designs and unfair competition.\r\n\r\nCopyright, however, remained at the forefront of intellectual property protection in the Hashemite Kingdom of Jordan for several years. In particular, the National Library has continued the efforts in the development of laws, regulations, instructions, and in line with international conventions, to create an environment which is managerially and technically able to keep pace with global developments.  One which is able to focus on the implementation of the law and respond to complaints, and the application of sanctions contained in the Copyright Protection Law of 1992, as amended, which is a modern law. Along with this, Jordan is a member of the “Berne” Convention, since 1999 and a member of the Paris Convention.\r\nIt is worth mentioning that Jordan is a member of the World Intellectual Property Organization (WIPO), which has managed intellectual property conventions since 1984. Jordan also joined the World Trade Organization (WTO) after the completion of all requirements.  The Jordanian government has issued a number of laws, regulations and instructions relating to intellectual property and passed through the constitutional stages and published in the Official Gazette. These Law are follows:\r\n<ul>\r\n 	<li>Copyright Law No. (22) for the year 1992.</li>\r\n 	<li>Patent Law No. (32) for the year 1999.</li>\r\n 	<li>Trademark Law No. (33) for the year 1952.</li>\r\n 	<li>Unfair Competition Law and Trade Secrets No. (15) for the year 2000.</li>\r\n 	<li>Goods Marks Law No. (19) for the year 1953.</li>\r\n 	<li>Industrial Designs and Models Law No. (14) for the year 2000</li>\r\n 	<li>Integrated circuits Law No. (10) for the year 2000</li>\r\n 	<li>Geographical Indications Law No. (8) for the year 2000.</li>\r\n 	<li>Law for the Protection of New Varieties of Plants No (24) for the years 2000</li>\r\n</ul>\r\nThe Hashemite Kingdom of Jordan has observed the importance of intellectual property for a significant period. Given the importance of intellectual property to the country’s economy, Jordan signed several international conventions for the protection of these rights and to implement the IP Laws to the point where an investor feels confident to invest in Jordan.  The Government is working very hard on this issue, especially with regards to Trademark registration and copyright and as a firm with a great strength in this area, we look forward to contributing to the work being done.'),
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	(79641,4341,'content_description','Human thought is the most significant development of the human mind and the human mind is the source of both knowledge and the spirit of creativity.'),
	(79642,4341,'_content_description','field_59b641c07f473'),
	(79643,4341,'pageSummary','Human thought is the most significant development of the human mind and the human mind is the source of both knowledge and the spirit of creativity.'),
	(79644,4341,'_pageSummary','field_59e59b307dec8'),
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	(79646,4341,'_currentURL','field_59d35123ab1e7'),
	(79647,4341,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ala\'a Al - Rawashdeh'),
	(79648,4341,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(79649,4341,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','alaar@tamimi.com'),
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	(79659,4341,'_yoast_wpseo_metadesc','Human thought is the most significant development of the human mind and the human mind is the source of both knowledge and the spirit of creativity.'),
	(79660,4342,'content','<p>Recent years have seen a significant increase in the issue of securities in  Jordan; particularly in the bond market, as there seems to be a growing need for  such investment instruments due to the rising costs of borrowing. This article  provides an overview of the legal requirements for the issue and offering of  securities in Jordan. <br /><br /><strong>The basic rule for the issuance of  securities </strong><br />Every issuer in Jordan shall submit to the Securities  Commission an application for registering securities. The Securities Commission  has the right to reject the registration and issue of any securities if such  issue risks causing damage to the owners of the securities of that issuer or to  the investors in general. <br /><br /><strong>The “Issuer”</strong><br />According to  the Securities Law No. 76 of 2002 (the “Securities Law”), any legal person  issuing or announcing the intention to issue securities is considered as an  “Issuer”. <br /><br /><strong>Securities under the Securities Law </strong><br />The  Securities Law defines securities broadly, as any ownership rights or any  instruments local or foreign that are commonly recognized as securities and  considered as such by the Board of Commissioners of the Securities Commission.  The Securities Law includes the following, in particular, under the definition  of securities: <br /><br />1. Transferable and tradable company shares;</p>\r\n<p>2. Bonds issued by companies;</p>\r\n<p>3. Securities issued by the Government, official public institutions, public  institutions, or municipalities;</p>\r\n<p>4. Securities depository receipts;</p>\r\n<p>5. Shares and investment units of mutual funds;</p>\r\n<p>6. Equity option bonds;</p>\r\n<p>7. Spot contracts and forward contracts; and</p>\r\n<p>8. Put and call option contracts.</p>\r\n<p><strong>What is the procedure to offer securities?  </strong><br />The  procedure will depend on whether the issuer wishes to offer to sell securities,  after registering them at the Securities Commission, through a public or a  private offer. The following will touch upon the definition and legal  requirements of both types of offering securities:   <br /> <br /><strong>1. Public  Offer</strong><br />The public offer is the offer to sell securities to more than  thirty persons. <br />Legal requirements for a public offer:<br /><br />The Securities  Law provides that no person shall make a public offer unless a prospectus is  filed with the Securities Commission, together with all the information and data  which enables investors to make their investment decision. An announcement  approved by the Securities Commission of the prospectus shall be made public  through two local daily newspapers. <br /><br />The prospectus must be prepared by a  licensed underwriter and, for disclosure purposes, shall include copies of the  following:</p>\r\n<p>1. Any agreement or agreements concluded with the underwriter;</p>\r\n<p>2. A legal opinion in respect to the legality of the issue;</p>\r\n<p>3. The issuer’s Memorandum of Association if the issuer is a public  shareholding company or a private shareholding company, and a copy of its  articles of association and any other documents relevant to the company;</p>\r\n<p>4. If the issuer is a limited liability company, the documents pursuant to  which the company was established or declared;</p>\r\n<p>5. If the Issuer is a partnership or any other form of organization, the  articles of partnership or association and any other papers pertaining to its  organization, and a copy of the underlying agreements or indentures affecting  any stock, bonds, or debentures offered or to be offered;</p>\r\n<p>6. All contracts that contain substantial facts; and</p>\r\n<p>7. The agreements concluded between the issuer, the payment agent, and the  custodian of the securities subject to the offer.</p>\r\n<p>The prospectus is deemed to be effective thirty days after its submission to  the Securities Commission.</p>\r\n<p><strong>Exceptions:</strong><br />It is worth mentioning that the Securities  Commission may grant exemptions from submitting a prospectus in any of the  following cases:</p>\r\n<p>a) If the number of investors, to which the public offer is made, is limited,  and the investors are capable of assessing and bearing the investment risks  (sophisticated investors); or</p>\r\n<p>b) If the funds intended to be raised by the offer are limited; or</p>\r\n<p>c) If the disclosure submitted to the investors is accurate and sufficient to  be considered as a substitute for the prospectus.</p>\r\n<p><strong>2. Private Offer </strong><br />The private offer is the offer to sell  securities to thirty persons or less.</p>\r\n<p>Legal requirements for a private offer: The Securities Law does not require  issuers offering securities through a private offer to submit a prospectus,  however the relevant directives provide that the issuer must submit all the  documents relating to the issue of securities including the required approvals  and decisions; therefore, in practice underwriters prepare an information  memorandum, that serves as a prospectus; disclosing to the investors all needed  information that would help making their decision.<br /><br />The relevant  directives also provide that an issuer offering securities through a private  offer must announce such offer in two local daily newspapers at least twice, and  include the data and information relating to the issue, the value of the issue  and the parties to whom the offer is made. <br /><br /><strong>Penalties for  violating the Securities Law</strong><br />Offering to sell securities upon false  or misleading information is a violation of the Securities Law. Penalties for  violating The Securities Law range from a fine not exceeding one hundred  thousand (100,000) Jordanian Dinars, in addition to a fine of not less than  twice the amount, and not more than five times the amount, of profit made or  loss avoided by the person committing the violation. Certain violations may also  result in imprisonment for a term not exceeding three years.  The penalties also  include the right of any investor who incurs financial loss as a result of the  violation to claim remedies for damages from the seller or the issuer violating  the Securities Law.</p>'),
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	(79626,4340,'content','May 2011\r\n\r\n<hr />\r\n\r\nAfter Al Tamimi &amp; Company decided to open its Amman office, we quickly came to realize the great value of having our presence there, in order to both advise clients on the local laws relating to Jordan, as well as assisting the international community wanting to do business in Jordan and the region.   Al Tamimi has found great success with the office in Jordan having a team well rounded in various areas of law.\r\n\r\nJordan, also known as the Hashemite Kingdom of Jordan, is a place known for its world history and culture. It is nicely situated, bordering 4 countries, with 6.5 MM people, a port access in the South of the country and consists of 89,342 square kilometers.\r\n\r\nJordan’s economy is among the smallest in the Middle East, although the Jordanian Dinar remains pegged with the USD (1 JOD is approximately equal to 1.41 USD). This coupled with the underlying government’s heavy reliance on foreign assistance has created some challenges for the Jordanian economy.\r\n\r\nSince assuming the throne in 1999, the King has implemented significant economic reforms, such as opening the trade regime, implementing a number of privatization policies, and ensuring greater regulation of the monetary framework in Jordan, which in the past few years have spurred economic growth by attracting foreign investment and creating some jobs. The global economic slowdown, however, has depressed Jordan’s GDP growth.\r\n\r\nThe Government approved two supplementary budgets in 2010, but sweeping tax cuts planned for 2010 did not materialize because of Amman’s need for additional revenue to cover excess spending. The budget deficit is likely to remain high, at 5-6% of GDP, and Amman will likely continue to depend heavily on foreign assistance to finance the deficit in 2011. Jordan’s financial sector has been relatively isolated from the international financial crisis because of its limited exposure to overseas capital markets.\r\n\r\n<strong>AL TAMIMI &amp; COMPANY –JORDAN OFFICE</strong>\r\n\r\nBanking and Finance\r\nOur banking practice provides a comprehensive range of banking and finance services and our lawyers, who have extensive experience in all areas of banking and finance, including advising on a number of debt issues, as well as leading on drafting and implementation of some of the most complex corporate financing projects and arrangements, both locally and in the region, are specialists in their area of practice and fully conversant with all aspects of the banking and finance law.\r\n\r\nThe firm represents a syndicate of banks in Jordan, both national and international, advising them on all aspects of the practice of banking and finance law, from commercial matters to the restructuring and refinancing of debt.  We provide advice on banking regulation and supervision throughout the Gulf region, the underwriting and syndication of loans, capital markets, securitization, debt recovery, foreign exchange contracts, equipment leasing, secured commercial lending, financing arrangements for foreign trade, project, infrastructure and corporate finance.\r\n\r\n<strong>Debt Restructuring</strong>\r\nAl Tamimi &amp; Company are one of the leading law firms in Jordan involved with the restructuring, refinancing and rescheduling of conventional and Islamic debt.  Our debt restructuring assistance has been centered around Jordanian investment companies and we have acted as legal counsel for major local and international creditors as well as debtors in large debt restructuring and refinancing transactions.\r\n\r\nOur team has led in the drafting and negotiation of numerous debt restructuring instruments, including standstill agreements, multi-tranche conventional and Islamic facility agreements and all aspects of bond issue restructuring, to name a few.\r\n\r\nIn addition to this, our lawyers have drafted a wide array of security documents in English and Arabic that have successfully obtained all requisite Jordan Ministry approvals. Typically, the majority of assets of Jordan investment companies are either securities or real estate. Therefore, our vast knowledge of Jordan’s securities and custodian portfolio laws as well as of mortgage laws allow us to provide detailed advice and implementation of the necessary security instruments that are involved in many secured restructuring/refinancing transactions. Moreover, our legal professionals have been intimately involved in assisting and directing the securitisation of assets in connection with debt restructuring transactions in multiple GCC and MENA region jurisdictions, including the involvement our various Al Tamimi &amp; Company offices throughout these regions.\r\n\r\nFinally, our team is one of the only legal service providers to guide, structure, draft and implement both conventional and Islamic debt restructuring transactions within Jordan from start to finish.\r\n\r\n<strong>Islamic Finance</strong>\r\nAl Tamimi &amp; Company has an unrivalled reputation in Islamic Finance documentation across the region and in Jordan we are no different. We are proud to have been a pioneer in developing -Shari’a compliant documentation.\r\n\r\nThe team has drafted and advised on Islamic finance retail and commercial products for many of the regions banks.  It has a thorough knowledge of Shari’a ’ira principles and current approaches to Shari’a  compliance in each jurisdiction in the region.\r\n\r\nOur lawyers have also advised and drafted Islamic compliant finance documents for project, corporate and commercial finance transactions as well as Sukuk issues, including the first ever Sukuk to be issued in Jordan.\r\n\r\nOur approach is to project manage the transaction by involving the Shari’a    board at an early stage which reduces the extent of amendments required by the board.  We also ensure, as far as possible, that common provisions in the proposed documents are settled and translated in an initial document so that they can be reproduced without subsequent extensive edits.\r\n\r\nOur office proudly took part in the first ever Sukuk to be offered in Jordan.  The Al Tamimi teams joined our regional knowledge to successfully execute this milestone.\r\n\r\n<strong>Commercial Agencies, Distributorships &amp; Franchises</strong>\r\nMany foreign companies seek to conduct business in Jordan through the use of commercial agents and/or distributors. The laws of Jordan have evolved to protect local entities in their relationships with their foreign principals. In addition, other local pitfalls involving taxation and trademark issues may affect foreign investors wishing to do business here. Our Jordan office has extensive experience in advising these principals with respect to all of these matters. Our practice in this area includes drafting and negotiating the agency/ distributorship arrangements between the parties, minimizing the advantages that the Jordanian laws give to protect local entities, ensuring that little or no taxation results from the transactions and taking steps to protect the brand names of the foreign principals.  We can offer practical advice to structure franchise relationships based upon contemporary law.\r\n\r\n<strong>Corporate and M&amp;A</strong>\r\nAl Tamimi &amp; Company’s corporate commercial practice is the largest and most comprehensive in the Arabian Gulf. The practice operates from offices in Dubai, Abu Dhabi, Riyadh, Doha, Amman and Kuwait and has more than 50 corporate lawyers.\r\n\r\nHere, in Jordan, our lawyers are experienced in advising clients on the proper formation of joint ventures, call types of companies, as well as the establishment of branch and representative offices of foreign companies. Further, we have particular experience in designing and implementing corporate structures and business activity licensing rules throughout the country, as well as advising as to the most advantageous structure for each client and venture.\r\n\r\nIn the mergers and acquisitions sphere, some of the largest global conglomerates and significant GCC corporations active across the region entrust their mergers and acquisitions work in the Arabian Gulf to Al Tamimi &amp; Company.\r\n\r\nOur network of offices in the Arabian Gulf &amp; MENA has enhanced our firm’s role in the cross-border mergers and acquisitions market, with our offices in Dubai, Abu Dhabi, Riyadh, Doha, Baghdad, Amman and Kuwait City delivering genuine cross-border capabilities in the Middle East\r\n\r\n<strong>Commercial Litigation &amp; Arbitration</strong>\r\nGiven our knowledge of and experience in the local courts, we handle major commercial matters in Jordan on behalf of both local and foreign clients. As a result of our bilingual skills and both western and eastern legal expertise, the combination of our Western educated counsel and local Jordanian litigators has produced a strong team that foreign-based companies prefer to engage when litigation becomes necessary.\r\n\r\nIn addition, we have developed a strong reputation for arbitration both in Jordan and abroad. Our lawyers have a successful track record in arbitrating under both local Jordan arbitration rules as well as more well-known international arbitrations rules such as the International Chamber of Commerce Arbitration Rules and the UNICTRAL Arbitration Rules.\r\n\r\n<strong>Taxation</strong>\r\nOur extensive local knowledge regarding taxes and other fees applicable to any commercial transaction or corporate structure means that we regularly advise clients, both local and international, on the most advantageous structuring options available to them from a tax prospective, as well as on assisting them in obtaining any tax exemptions or other privileges, which they may benefit from.\r\n\r\nWhere a matter involves technical or complex tax issues, we regularly liaise with accredited international auditors registered in Jordan, in order to provide our clients with best possible advice regarding any commercial matter.\r\n\r\n<strong>Information Technology</strong>\r\nOur Information Technology practice focuses on e-business, e-government, data protection, and internet, software and computer law.\r\n\r\nWe advise on all legal aspects of technology transfer, including issues relating to commercial and licensing laws, e-contracting, privacy and data protection, domain name registration and cyber-squatting, software protection, digital signatures and certificates, and website design, development and hosting.\r\n\r\nWe are perfectly positioned to assist clients with the negotiation, drafting, outsourcing and enforcement of IT contracts including tendering and the acquisition of hardware, software and network services, licensing, development and transfer agreements, web-based services (including Internet advertising, online contracting, disclaimers and privacy policies), turnkey agreements, project management and transformation initiatives.\r\n\r\nClients come to us to ensure they are best positioned to extract maximum value from technology-based projects. We advise on risk management and the commercialization of ideas and technology including distribution rights, non-disclosure and confidentiality agreements, and international exploitation arrangements.\r\n\r\n<strong>Construction</strong>\r\nAl Tamimi’s Construction and Engineering team is commercially focussed and internationally experienced.\r\n\r\nOur team provides legal expertise and practical solutions to our clients, based on a broad understanding of the commercial and legal principles facilitating and promoting the performance and completion of infrastructure, construction and engineering projects in the Middle East.\r\n\r\nOur experience with energy and infrastructure projects is wide, having worked on some of the region’s largest projects.\r\n\r\nAl Tamimi offers end to end legal expertise from procurement, contracting and delivery, to dispute minimisation and resolution. Working closely with our clients, we gain a broad understanding of the commercial objectives impacting on the project and we ensure that the most suitable procurement strategy is in place at the outset of the project along with a fully integrated project management process. In our experience, the development of a procurement and management strategy which best fits the commercial requirements of our clients has a far greater likelihood of producing and delivering a completed project which meets, if not exceeds, stakeholders’ expectations.\r\n\r\n<strong>Our Team </strong>\r\nOur team of lawyers in Jordan has a formidable set of local and international credentials.  It is this combination of talent and experience that enables us to advise clients from both a commercially viable and strategic perspective.  In addition to the skills and capabilities of our locally based practitioners, we offer our clients our broader attributes and strengths.\r\n\r\n<strong>Local strength with a regional reach</strong>\r\nWe have one of the largest corporate practices in the Middle East.  Combined with our team across our regional offices, we provide a unique level of support, both locally and internationally for our clients.\r\n\r\n<strong>Local, regional &amp; international experience</strong>\r\nOur team includes lawyers with substantial experience in Jordan and the regional Middle East markets combined with team members who bring the best of international experience to the region.\r\n\r\nFor more information on how we can assist you please contact Khaled Saqqaf, Partner and Head of Jordan &amp; Iraq Offices via email at: <a href=\"mailto:k.saqqaf@tamimi.com\">k.saqqaf@tamimi.com</a>\r\n\r\nOur office is located at:\r\nAl Tamimi &amp; Company\r\n6th Circle, Emaar Towers\r\n11th Floor, Tower A\r\nPO Box 18055, Zip 11195\r\n\r\nTel: +962 6 577 7415\r\nFax: +962 6 577 7425\r\n\r\nPhoto Captions:\r\nFrom left to right their names are as follows: Zaid Al Syouf, Dana Abduljaleel, Abdallah Al Fraihat, Samer Al Zuriekat, Khaled Saqqaf, Alaa Al Rawashdeh, Zeinah Al Nabih'),
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	(79606,4338,'_yoast_wpseo_metadesc','In the Free on Board contract “FOB”, the seller’s duty is to ensure that the goods confirming to the contract are put onboard the vessel nominated by the buyer at the port of loading by the date or within the shipment period stipulated in the contract, and that the buyer is furnished with such documents as will to enable him to take delivery from the carrier.'),
	(79607,4339,'content','May 2011\r\n\r\n<hr />\r\n\r\n<strong>Administrative contracts : a complex definition </strong>\r\nAdministrative contracts are contracts where one of the parties is a public person. They are examined by the Administrative Court. Administrative contracts are qualified as such either by virtue of a specific legal attribution, or because they concern a public service or contain a highly unusual clause (clause exorbitante).\r\n\r\nIn order for a contract to be considered as an “administrative” one, it must fulfill the following conditions:\r\n\r\n1. One of the parties thereto must be a public authority.\r\n\r\n2. The administrative judicial authorities must have jurisdiction to look into such contracts.\r\n\r\n3. It must be related to a public service or be classified by the law as an administrative contract.\r\n\r\n4. It must include an “onerous” clause or condition from the public law.\r\n\r\nFrom the Book of Legal Vocabulary by Mr. Gerard Cornu, Henri Capitant Association\r\n\r\nWhen a contract is considered as administrative contract ? From the Book of Legal Vocabulary by Mr. Gerard Cornu,  Henri Capitant Association\r\n\r\n<strong>I) Certain contracts are administrative by law</strong>\r\nA certain category of contracts may be defined as administrative by law. The contracts allowing a private entity to occupy the public domain, for example, allowing a café to include part of a sidewalk to sit customers, is considered as an administrative contract.\r\n\r\nAccording to Dr. René Chapus, the definition of administrative contracts by law leads to confusion in relation to the definition of an administrative contract by its final objective, since the law simply confirms what it may already be defined with regard to the final objective.\r\n\r\nDr. Yousef Saadallah El-Khoury, in his book on public administrative law entitled “Distinction between administrative contracts and civil contracts entered into by public administrations”, states the following:\r\n\r\nIt is important to distinguish between an administrative contract and a civil contract in terms of judicial competence and in terms of the applicable law.\r\n\r\nThe said distinction may be made by the law such as when the legal provision stipulates that the reference to settle the subject of the decision is the administrative judicial authority, then, the legislator will classify the said contract as an administrative one.\r\n\r\nThis is illustrated, for example, when the law grants the administrative judicial authorities the competence to look into cases related to administrative contracts, transactions, liabilities or privileges, entered into by a public administration, or by departments of the parliament to ensure the progress of a public interest. A second example is the case when the law grants the said authorities the competence to look into a public works contract, or a contract for the sale of the State’s immovable property and contracts for public property occupancy. (This is the case in Lebanon). Another example is when the law grants the administrative judicial authority the competence to look into conflicts on municipality fees (This example is based on France);\r\n\r\n<strong>II) Certain contracts are administrative according to the judge</strong>\r\n\r\nIndeed, the judge may decide that a contract is administrative, if the contract fulfills certain conditions:\r\n<ul>\r\n 	<li>One of the parties is a public entity;</li>\r\n 	<li>Its subject or object is to ensure a public facility or a public interest;</li>\r\n 	<li>It includes clauses that are unusual in comparison to what is customary in the civil law.</li>\r\n</ul>\r\nIn practice, a public entity may contract with another public entity, or with a private individual, pursuant to a contract with a description, or object or conditions indicating that it is an ordinary civil or commercial contract and not an administrative one.\r\n\r\n<strong>Such as for example:</strong>\r\na. Tenancy or lease contracts whether entered into with a public or private entity are not administrative contracts;\r\n\r\nb. Legal consultancy contracts or granting a power of attorney to a lawyer are not administrative contracts.\r\n\r\nIn French administrative law, the judges qualify a contract as an administrative one, with regard to two cumulative criteria, one regarding the contracting entity (a personal criteria) and one regarding the contract’s content (a material criteria).\r\n\r\n<strong>The personal criteria: </strong>\r\nIn principle, a contract is administrative if one of the contracting party is a public entity.\r\n\r\nIn the case where both the contracting parties are public entities, precedents have confirmed the existence of a “presumption of administrative quality” (Tribunal des Conflits, Union des Assurances de Paris, 1983). This presumption may be overturned if the contract does nothing other but create private engagements that have no relation with public interest.\r\n\r\nA contract between two private contracting parties is generally a private law contract, even if one of the private contracting parties is in charge of the execution of a public service. However, in one of the cases, the administrative judge applied the criteria regarding a representation mandate, which led to qualify such a contract as an administrative contract, on the basis that one of the parties acts for a public entity (Conseil d’état, Société Brossette, 1931).\r\n\r\n<strong>The material criteria:</strong>\r\nThis criteria is based on two alternative conditions:\r\n<ul>\r\n 	<li>The object of the contract: A contract is administrative if it is related to the organization or the execution of a public service (Conseil d’état, Epoux Bertin, 1956). As an example, this is the case for contracts with users of a public service.</li>\r\n 	<li>The clauses or the regime: A contract is administrative if its clauses or general regime eliminate the traditional contract law.</li>\r\n</ul>\r\nAlso, the contract is deemed as an administrative one –according to the French jurisprudence- if it includes a clause or several clauses granting the administrative entity rights that are different in nature or substance to those which would be accepted by a person of his own free will and accord within the frame of the civil or commercial laws, such as for example:\r\n\r\na. The possibility to confiscate the goods that are not in conformity with the conditions agreed upon;\r\n\r\nb. Referring the clauses to provisions according to the conditions;\r\n\r\nc. Imposing a guarantee or bond on the party contracting with the administration;\r\n\r\nd. Considering the contractor as having failed to carry out his obligations and confiscating the bond;\r\n\r\ne. Re-awarding the work to another person at the expense of the relevant contractor.\r\n\r\nIn some cases the public administration establishes the private law rules in its contracts, and then we consider it withdraws the relevant contracts from the description of administrative contracts.\r\n\r\nThe jurisprudence in France, Egypt and Lebanon considers a contract as administrative if its subject or object is the execution of a public facility, such as the execution of public works (roads, bridges, and tunnels), and contracts including an undertaking to collect the municipal fees.\r\n\r\n<strong>Contracts with Highly Unusual (clause exorbitante) provisions/clauses(under the French Law): </strong>\r\nDefinition based on the effect: Such clauses allow the “granting of rights to the parties or charge them with obligations of foreign nature to those obligations which are freely agreed to generally by any person within the framework of civil and commercial laws” (State Council, 20 October 1950, Stein).\r\n<strong>Definition based on the content: </strong>\r\n\r\n1. The possibility for the contracting authority to terminate the contract. Disputes Court 1967, the Velodrome Company of Parc des Princes, but not in case of non-performance of certain obligations, Disputes Court 1970, Comblanchien Town;\r\n\r\n2. The possibility for the contracting authority to direct, supervise or monitor the execution of the contract. Agricultural Cooperative “Farmer Prosperity, State Council, 1963;\r\n\r\n3. The possibility for the party contracting with the government to directly deduct taxes. But this is not the case if it is the administration that carries out such deduction on behalf of the said contracting party. State Council, 1986, SA of credit to the French Industry (CALIF);\r\n\r\n<strong>In conclusion, we note the following turnarounds: </strong>\r\n\r\n1. The issue of exorbitant regime in the common law has affected public work contracts. Some have wanted to confer this description due to the mere existence of specifications. But generally the State Council refuses to grant an administrative character to contracts referring to specifications and do not include highly unusual provisions. Disputes Court, 1999, General Procurement Groups Union;\r\n\r\n2. Some have considered that the special arrangements for the award of general procurement contracts is not sufficient to make them administrative contracts. State Council, 1990, Town of Sauve;\r\n\r\n3. The law ended the debate opened and stated that:\r\n“Contracts awarded under the General Procurement Code have the nature of administrative contracts” (Article 2 of the Law of December 11, 2001, known as the “MURCEF” Law);\r\n\r\n4. Turnaround in the jurisprudence: “A contract to supply stones for paving a public place, like the contract to supply blocks in the “Porphyritic granite Affair” has been hence recognized as an administrative contract (Commentary of a verdict issued by the Court of Appeals of Bordeaux, 14 September 2004)\r\n\r\n5. Contracts entered into by public entities sometimes are not subject to the General Procurement Code, such as contracts of public industrial and commercial establishments of the State, remain subject to the common law unless they refer to the highly unusual clauses; But such provisions are not conclusive when the contract is entered into with their agents or users. See GAJA (Great Verdicts of Administrative Jurisprudence), 16th Edition, 2007, pages 158/159;\r\n<ul>\r\n 	<li>In general, the regime of common law is assessed on the basis of an “atmosphere of public law” (P. Weil, The criterion of administrative contract in crisis, Mélanges Waline, p.847). Therefore, the contract is governed by rules from a legislative and / or regulatory provision, applicable regardless of the will of the parties, and derogating from the common law.</li>\r\n</ul>\r\nIn all cases, in order to consider the Administrative contract valid, the contracting parties must fulfill the same conditions stipulated in the Civil Law (Civil Transactions Code in the UAE), such as the capacity, age, majority, etc.\r\n\r\nAdded to this the legal capacity related to the position of the contracting party and whether he has the right to enter into such a contract or not according to the laws in force.\r\n\r\nSo, any contract entered into by a person who does not have the capacity or is not qualified to do so shall be considered invalid. Administrative contracts must be made in writing while civil contracts are not subject to this condition. The same condition applies to tenders and auctions unless the law stipulates otherwise.\r\n\r\n<strong>III) The execution of administrative contracts</strong>\r\n\r\nAs the base for the relationship between the Administration and a contracting party, the Administrative contract, and particularly its execution present some differences with regards to a classic everyday contract between two individuals. The Administration naturally benefits from certain powers that are not applicable to non public contracting party. These powers are:\r\n\r\n1. The power of direction and control: the administration can give specific service orders concerning the execution of the contracting party’s obligations.\r\n\r\n2. The power to “edict” sanctions: the administration may sanction the contracting party in the event of lateness or bad execution by this contracting party. The sanctions range from fines to other measures. In the event that the administration court finds the sanction to be irregular, the Administration will have to compensate the contracting party.\r\n\r\n3. The power of unilateral termination: This power may be used as a form of sanction. It is unilaterally pronounced by the administration in the event of a grave fault on the part of the contracting party, and under the condition of eventual compensation. However, the termination may also take place without the occurrence of a fault.\r\n\r\n4. The power of unilateral modification: This power was a controversial issue, much debated in France, until a final position regarding this power was fixed. In 1902, the administrative judge decided that the administration may change the lighting service from electricity to gas, thus forcing the contracting party to adapt.\r\n\r\nOn the other hand, the public administration may, during the execution of an administrative contract, control its execution, and it may as well bring modifications to the contract whenever it deems that the public interest so requires, but within specific limits only, as it may not bring amendments to the clauses related to the financial conditions agreed to with the other contracting party, or require the introduction of unreasonable or unlimited amendments. Moreover, it is not permissible to change the contract from a road construction contract to a bridge construction contract!!!\r\n\r\nHowever, if a transport contract provides for the operation of one hundred buses for example and the administration finds out that the public interest requires that this number be increased, it may impose the increase on the contractor, and also if the administration deems that it would serve better the public interest to modernize the means of gas transport and supply to the beneficiaries or the transport of electricity and water or the means of communications and internet.\r\n\r\nIt is necessary to indicate that each order issued by the administration to the contractor to execute any additional obligation beyond what is stipulated in the contract, requires that the administration indemnifies the contractor in a fair manner for all expenses incurred in the additional execution and the administrative judicial authorities have the right to order such indemnity.\r\n\r\nIn view of the foregoing, the rights of a contracting party towards the administration may be summarized as follows:\r\n<ul>\r\n 	<li>To receive the price agreed upon within the deadlines agreed upon;</li>\r\n 	<li>To receive the indemnities due in case of any modifications brought and which result in cost increase in the contract.</li>\r\n 	<li>To take into consideration all incidental events, force majeure and new developments.</li>\r\n</ul>'),
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	(79594,4338,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Rami Al - Tal'),
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	(79590,4338,'pageSummary','In the Free on Board contract “FOB”, the seller’s duty is to ensure that the goods confirming to the contract are put onboard the vessel nominated by the buyer at the port of loading by the date or within the shipment period stipulated in the contract, and that the buyer is furnished with such documents as will to enable him to take delivery from the carrier.'),
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	(79565,4337,'content_description','In our August 2010 Law Update, Al Tamimi & Company reported the first decision of a Court in the UAE to recognise and enforce a foreign arbitral award pursuant to the New York Convention.'),
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	(79571,4337,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Fiona Campbell'),
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	(79583,4337,'_yoast_wpseo_metadesc','In our August 2010 Law Update, Al Tamimi & Company reported the first decision of a Court in the UAE to recognise and enforce a foreign arbitral award pursuant to the New York Convention.'),
	(79584,4338,'content','May 2011\r\n\r\n<hr />\r\n\r\nIn the Free on Board contract “FOB”, the seller’s duty is to ensure that the goods confirming to the contract are put onboard the vessel nominated by the buyer at the port of loading by the date or within the shipment period stipulated in the contract, and that the buyer is furnished with such documents as will to enable him to take delivery from the carrier. The buyer for his part must procure space on the vessel and nominate to the seller in sufficient time to enable the seller to dispatch the goods to the docks and have them shipped on board the vessel.\r\n\r\nThe FOB contract imposes many duties upon the buyer. This article will briefly examine one duty which is the nomination of the vessel including the buyer’s ability to nominate a substitute vessel.\r\n\r\nThe nomination of the vessel duty is very crucial under the FOB contract because it is a condition precedent to the obligation of the seller to load the goods. Therefore, if the buyer does not nominate a vessel within the stipulated time, the buyer is then in breach of the contract and the seller will be accordingly entitled for damages.\r\n\r\nThe time of nomination is of the essence, and failure to nominate within this entitles the seller to treat the contract as repudiated and claim damages. It is the duty of the FOB buyer to procure a space on a vessel suitable for the purchased goods and advise the seller with the same. The buyer must advise the seller with the vessel name, particulars and the date of arrival to the port of loading. The buyer must also have agreed with the carrier on an appropriate loading time suitable for the purchased goods and coherent with the loading circumstances at the relevant port of loading. Of course, the nomination must be capable of proving effective and must not be artificial.\r\n\r\nUnless stated otherwise in the contract and the nature of the cargo permits it, the buyer is entitled to make a substitute nomination in due time and the substitute vessel proves to be an effective vessel. However, the substitute nomination must itself be contractually valid. In addition to this, the original nomination remains contractually binding if the substitute nomination proves ineffective. As consequence, the buyer can rely on the events of frustration or force majeure to nominate a substitute vessel and to vary his liabilities as per the contract.\r\n\r\nThe FOB contract buyer may usually nominate a new vessel on many grounds, for instance, the vessel originally nominated will not be able to receive the goods due to a breakdown. Such nomination should be of course, a valid nomination. The buyer will be responsible towards the seller for any extra cost incurred by the seller due to the new nomination. On the other hand, it could be argued that the buyer is not entitled to make a substitute only where he has made some representation, express or implied that he will not exercise his right of substitution and the seller has acted in reliance on such representation.'),
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	(79588,4338,'content_description','In the Free on Board contract “FOB”, the seller’s duty is to ensure that the goods confirming to the contract are put onboard the vessel nominated by the buyer at the port of loading by the date or within the shipment period stipulated in the contract, and that the buyer is furnished with such documents as will to enable him to take delivery from the carrier.'),
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	(79544,4336,'content_description','The Agency Law (Federal Law no. 18 of 1981) as amended by Federal Law no. 2 of 2010 is the law regulating commercial agencies in the UAE.'),
	(79545,4336,'_content_description','field_59b641c07f473'),
	(79546,4336,'pageSummary','The Agency Law (Federal Law no. 18 of 1981) as amended by Federal Law no. 2 of 2010 is the law regulating commercial agencies in the UAE.'),
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	(79548,4336,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/may-6/creation-of-the-commercial-agency-committee-a-long-awaited-event.html'),
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	(79560,4336,'_yoast_wpseo_metadesc','The Agency Law (Federal Law no. 18 of 1981) as amended by Federal Law no. 2 of 2010 is the law regulating commercial agencies in the UAE.'),
	(79561,4337,'content','<p>In our August 2010 Law Update, Al Tamimi &amp; Company reported the first  decision of a Court in the UAE to recognise and enforce a foreign arbitral award  pursuant to the New York Convention.&nbsp; Since the Fujairah Court&rsquo;s decision, the  Dubai Court of First Instance has provided yet more comfort to those engaged in  international trade and commerce by recognising and enforcing a foreign arbitral  award, despite the vociferous objections and challenge by the local  Defendant.<br /><br />This decision is pending appeal but already the Emirate of  Dubai has already become a substantially safer port in the international  arbitration world than at anytime in its trading history. <br /><br />Although there  is no system of binding precedent which guarantees any future applicant the same  result, the principles set out by the Full Bench of Dubai Court&rsquo;s Commercial  Division provide something of a sea chart (or road map) for those applicants  seeking to have recognised and enforced their foreign awards in this  jurisdiction.&nbsp; The recent ruling ratified for execution of two arbitral awards  from a sole arbitrator seated in London who determined a trade dispute under the  DIFC-LCIA Arbitration Rules in November 2009.&nbsp; The parties were respectively a  Free Zone entity and a Limited Liability Company both from Dubai.&nbsp; The Award  comprises essentially two awards, namely a substantive award on the merits of  the case followed by an award dealing with the costs of the  arbitration.<br /><br />The application by the Plaintiff to the Dubai Court to  &ldquo;ratify&rdquo; or &ldquo;confirm&rdquo; the Award and to uphold a provisional attachment order as  valid and enforceable against the Defendant was challenged on a number of  grounds.&nbsp; Thus, the Court was called upon to deal with the Defendant&rsquo;s many  arguments refuting the validity and authenticity of the arbitration agreement  and the proceedings, which had the effect of obstructing and delaying the due  recognition and the enforcement of the Award for nearly 12 months.&nbsp; <br /><br />The  Dubai Defendant contended for many of the grounds of annulment often deployed to  set aside domestic arbitral awards (as set out in Article 216 of the Civil  Procedure Code) notwithstanding its active participation in the arbitration  proceedings.<br />In rejecting the Defendant&rsquo;s submissions, the Court reasoned  that the Articles of the Civil Procedure Law prescribing &ldquo;validation&rdquo; of  domestic arbitral awards and those otherwise issued in the UAE did not apply.&nbsp;  Instead the applicable rules were those set out in the New York Convention  itself regarding the recognition and enforcement of foreign awards.<br /><br />The  parties had agreed to apply DIFC-LCIA Rules which were thereby deemed  incorporated as terms of the arbitration agreement.&nbsp; The Dubai Court held: &ldquo;The  Court&rsquo;s supervisory role when looking to recognise and enforce a foreign  arbitral award is strictly to ensure that it does not conflict with the Federal  Decree under which the UAE acceded to the New York Convention on the recognition  and enforcement of foreign arbitral awards and satisfies the applicable  procedural and substantive requirements of Articles IV and V of the Decree in  terms of being duly authenticated&rdquo;.&nbsp; <br /><br />In short, the Court stated that it  would not entertain a review of the merits of the Arbitrator&rsquo;s decision  (including her decision as to her jurisdiction in light of the arguments raised  by the Defendant during the course of the arbitration).&nbsp; Instead, the Court  required only sufficient proof of the arbitration agreement and sufficient proof  of the authenticity of the arbitration agreement and of the Award of the  arbitrator appointed in accordance with the arbitration  agreement.<br /><br />Despite all of the Defendant&rsquo;s allegations regarding the  invalidity of and indeed potential forgery of signatures on the original  contract, the alleged lack of authority of the contract&rsquo;s signatory and other  complaints which might ordinarily ground an application to set aside a domestic  award, the Court observed that the burden fell to the Defendant to make good any  allegations that the New York Convention procedures had not been observed.&nbsp; The  Defendant had made no application in London, the seat of the arbitration, to set  aside or invalidate the Award under the applicable law of the arbitration.&nbsp; The  Court ruled that it had no jurisdiction to hear the Defendant&rsquo;s complaints  predicated on grounds different from those set out in the New York Convention  and there being prima facie evidence of the authenticity of and validity of the  arbitration agreement and the Award, then there was no reason to deny its  recognition and enforcement accordingly.<br /><br />The Court expressly excluded  from application section 4 (Articles 235, 236 and following) of the Civil  Procedure Law regarding enforcement of foreign judgements and foreign  arbitration awards generally.&nbsp; <br /><br />These rules pre-date the UAE becoming  party to the New York Convention and tend to require the applicant to  re-litigate substantive issues of jurisdiction in any event and to bear the  burden of establishing that no impediment exists to preclude enforcement under  UAE law.&nbsp; These cumbersome protectionist procedures are precisely what the New  York Convention was designed to overcome.<br /><br />Contrary to some early  published UNCITRAL treaty status reports, the UAE did not make any reservations  under Article I (3) to the effect that:&nbsp; &ldquo;This State will apply the Convention  only to recognise and enforce awards made in the territory of another  contracting State.&rdquo;&nbsp;&nbsp;<br /><br />This is a fairly common reservation by early  signatories (for example, by both the UK and USA) but curiously, there was some  confusion about whether or not UAE had so reserved.&nbsp; The United Nations has  since confirmed not and recently amended and updated its treaty status report to  correct the error.&nbsp; <br />&nbsp;<br />On this basis, the provisions of the UAE Law on  Civil Procedure regarding recognition of foreign arbitral awards arguably have  been rendered obsolete.&nbsp; Thus, even arbitral awards of non-Convention States (of  which admittedly there are few in the world) will fall to be recognised and  enforced in the UAE under the New York Convention [and/or under any other multi-  or bi-lateral treaty, if more advantageous].<br /><br />Fate of Future Awards -  Choppy Waters Predicted<br />The grounds to challenge and resist recognition and  enforcement of a foreign award under Article V of the New York Convention are  substantially narrower than local procedures and the burden falls to a  respondent to establish them.<br /><br />Nevertheless, a Court may still refuse to  enforce a foreign arbitral award if an opposing party proves:</p>\r\n<ul>\r\n<li>The parties to the arbitration agreement were, under the law applicable to  them, under some incapacity, or the said agreement is invalid under its  governing law as chosen by the parties or under the law of the country where the  award was made; or</li>\r\n<li>The party against whom the award is invoked was not given proper notice of  the appointment of the arbitrator or of the arbitration proceedings or was  otherwise unable to present his case; or</li>\r\n<li>The award deals with a difference not contemplated by or not falling within  the terms of the submission to arbitration, or it contains decisions on matters  beyond the scope of the submission to arbitration, provided that, if the  decisions on matters submitted to arbitration can be separated from those not so  submitted, that part of the award which contains decisions on matters submitted  to arbitration may be recognised and enforced; or</li>\r\n<li>The composition of the arbitral authority or the arbitral procedure was not  in accordance with the agreement of the parties, or, failing such agreement, was  not in accordance with the law of the country where the arbitration took place;  or</li>\r\n<li>The award has not yet become binding on the parties, or has been set aside  or suspended by a competent authority of the country in which, or under the law  of which, that award was made.</li>\r\n</ul>\r\n<p>Also, a Court in the UAE may refuse to enforce the award if it decides  that:</p>\r\n<ul>\r\n<li>The subject matter of the award is not capable of resolution by arbitration  under UAE law (i.e. is non-arbitrable), or</li>\r\n<li>If the recognition or enforcement of the award would be contrary to public  policy.</li>\r\n</ul>\r\n<p>Given the UAE&rsquo;s unreserved accession to the New York Convention, all foreign  arbitral awards should fall to be recognised and enforced in the UAE under the  Convention procedures henceforth. But it remains to be seen just how expeditious  and pro-enforcement the Courts of the UAE will be in practice when applying the  law of the New York Convention if subject to a relevant challenge pursuant to  Article V by a recalcitrant respondent.&nbsp; <br /><br />It may also be anticipated that  such respondents will invite the Court to interpret the public policy exception  expansively, so as to operate as a shield if public morals or Sharia are  offended or even to protect what some foreigners might regard as purely local  commercial interests.</p>'),
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	(79523,4335,'pageSummary','Creation of securities in the DIFC is governed by the Law of Security - DIFC LAW No. 8 of 2005 (“Security Law”) &amp; DIFC Security Regulations (“Security Regulations”), which also govern the registration and enforcement of securities in the DIFC.'),
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	(79527,4335,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Izafaniz Kamir'),
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	(79539,4335,'_yoast_wpseo_metadesc','Creation of securities in the DIFC is governed by the Law of Security - DIFC LAW No. 8 of 2005 (“Security Law”) & DIFC Security Regulations (“Security Regulations”), which also govern the registration and enforcement of securities in the DIFC.'),
	(79540,4336,'content','<p>The Agency Law (Federal Law no. 18 of 1981) as amended by Federal Law no. 2  of 2010 is the law regulating commercial agencies in the UAE. The new amendment  incorporated in Federal Law no. 2 of 2010 re-instated the Commercial Agency  Committee (&ldquo;The Committee&rdquo;); however it took some time before the Committee  became operational.<br /><br />Nowadays and in 10 April 2011, H.H Mohammad Bin  Rashid Al Maktoum, the Vice President of the UAE and Ruler of Dubai issued  Decree No. 3 of 2011 (&ldquo;The Decree&rdquo;) Establishing the Committee of Commercial  Agency and its role is to review any dispute pertaining to any commercial agency  registered with the Ministry of Economy.<br /><br />This article will address the  establishment of this Committee, procedures to be followed before the committee  in the event of disputes regarding termination, de-registration of an agency  agreement and time prescribed to challenge the Committee&rsquo;s decision before the  courts. In the next edition of the Law Update we will address some noteworthy  and important issues which arise as a result of the creation of the  Committee<br /><br /><strong>Establishment, membership and meetings of the  Committee:</strong><br />According to The Decree, the Committee shall be chaired  by the Director General of the Ministry of Economy and shall be comprised of the  following members: Executive Director of Commercial Affairs at the Ministry,  Undersecretary of the Department of Economic Development in Abu Dhabi, Director  General of the Dubai Chamber of Commerce &amp; Industry, a member of the Board  of Directors of the Sharjah Chamber of Commerce &amp; Industry to be nominated  by the Chamber, a representative of the Department of Legal Affairs at the  Ministry of Economy and the Director of the Agencies Department at the Ministry  or other person deputizing for him as member and  &lsquo;rapporteur&rsquo;.<br /><br /><strong>According to The Decree a member shall cease to  serve on the Committee in one the following case:</strong></p>\r\n<ul>\r\n<li>he is absent for 3 consecutive meetings of the Committee without an excuse  acceptable to the Chairman of the Committee;</li>\r\n<li>his service terminates for the office he holds;</li>\r\n<li>death or illness prevents him from performing his duties,</li>\r\n<li>he is convicted of a crime involving breach of honor or trust or he is  removed by a decision from the Cabinet.</li>\r\n</ul>\r\n<p>Furthermore, the Decree states that should, for any reason, a member&rsquo;s seat  becomes vacant or his membership terminate, the Minister of Economy shall  nominate a replacement taking into account the member&rsquo;s official title, in  coordination with the body he used to represent and shall submit the matter to  the Cabinet for approval. <br /><br />The Decree further states that the Committee  shall meet upon the Chairman or Vice-chairman&rsquo;s invitation. The invitation shall  state the time and place of the meeting and shall be in writing. However, the  Decree permits at the discretion of the Chairman or Vice-Chairman to invite  Committee members by any other means of communication. The required quorum for  the Committee meeting shall be the majority of its members, including the  Chairman or Vice-Chairman.<br /><br />The Committee shall issue its decisions by  majority vote of members attending the meeting. In case votes are equal, the  Chairman shall have the casting vote. Voting may not be done by proxy or  correspondence<br /><br /><strong>Filing an application before the  Committee</strong><br />The Decree sets out the procedure for filing and recording  applications which are filed with the Committee.<br /><br />According to the Decree  any Application (standard form approved by the Committee) to be filed with the  Committee shall be filed directly with the rapporteur. The application shall  include the following documents and particulars:</p>\r\n<ul>\r\n<li>Name, details and address of the applicant,</li>\r\n<li>Names, details and addresses of the disputed parties,</li>\r\n<li>Summary of the dispute and the relief sought from the Committee along with  the supporting documents.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</li>\r\n</ul>\r\n<p>At a later stage, the rapporteur registers the received Applications under  serial number on the &ldquo;Special Register&rdquo; and inserts the filing date and  particulars of the Application. A receipt shall than be issued confirming the  receipt and the recording of the Application. <br /><br />Once the Committee decide  on the Application such decision along with the number and date of notification  of the decision to the applicant are then entered on the Applications Register.  The applicant shall pay a fee of AED 6,000 to the Ministry of Economy for the  Application to be entered on the Applications  Register.<br /><br /><strong>Applicable Procedures by the Committee </strong><br />According to the Decree the Committee shall fix a date for the  hearing of the dispute within 60 days after the filing of the Application and  shall notify the date to the parties. The Committee may, at its own initiative  or at the request of the parties, allow the disputing parties to appear before  the Committee. If neither the applicant nor his opponent appears in person or  through an attorney, the Committee may decide on the dispute.<br /><br />The  Committee may allow a party to file any new documents that were not originally  filed with his Application provided that he presents a &ldquo;good cause&rdquo; in this  regard. <br /><br />When performing its duties the Committee may seek assistance  from experts and specialists. The Committee shall specify the amount that is to  be provisionally paid towards the expert&rsquo;s fees along with costs and determine  the party that shall bear these costs.&nbsp; <br /><br />In concluding, it is important  to note that the Committee is required to commence the examination of the  dispute within 60 days after the date of filing a complete Application. The  Committee&rsquo;s decision can be challenged before a competent court within 30 days  of the date of the Committee&rsquo;s decision, otherwise, the Committee&rsquo;s decision  shall be deemed final.<br /><br /><strong>The Award issued by the  Committee</strong><br />According to the decree the Committee shall issue a  decision on the merits of the case. Such award shall contain a summary of the  dispute and reasoning of the Committee&rsquo;s decision. <br /><br />However, The  Committee, at its discretion, may decide to refer the parties to the Court. Any  decision issued by the Committee must specify the party bearing the expert&rsquo;s  fees and costs. The Committee&rsquo;s decision shall be signed by the Chairman and  members and the parties shall be served with a copy of the decision within 15  days after issuance thereof.<br /><br /><strong>Rules for De-Registering the Agency  agreement</strong><br />With regard to Committees&rsquo; decisions to deregister  commercial agencies, the Decree stipulates that any Committee decision to  de-register a commercial agency is enforceable. However, if any party to the  dispute appeals/challenges the Committee&rsquo;s decision, within 30 days from the  issuance of this decision, the Ministry may not register the agency in the name  of another party before a final decision is rendered on the merits of the  dispute provided that the appellant, within one week after the expiration of the  30 days appeal period, furnish the Ministry with proof that he has appealed the  Committee&rsquo;s decision to the competent court.<br /><br />If parties failed to appeal  to the competent court the Committee&rsquo;s decision within 30 days after the  notification of such decision the latter shall be deemed final and  binding.<br /><br />Last but not least, the Decree also states that the Committee  shall submit to the Minister of Economy a semi-annual report showing the number  of disputes brought before it, the grounds of those disputes and the decisions  thereon, together with the Committee&rsquo;s recommendations on the best possible  solutions to minimize such disputes. <br /><br /><strong>Possible questions that  might rise with the establishment of this Committee</strong><br />In the next  edition we will discuss the possible issues which arise as a result of the  creation of the Committee. Stay tuned!</p>'),
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	(79516,4334,'_yoast_wpseo_metadesc','As a general principle, a limited liability company will be held liable for the actions of its manager when those actions are carried out in its name and within the scope of the manager’s authority as set out in the company’s Memorandum of Association.'),
	(79517,4335,'content','May 2011\r\n\r\n<hr />\r\n\r\nCreation of securities in the DIFC is governed by the Law of Security - DIFC LAW No. 8 of 2005 (“Security Law”) &amp; DIFC Security Regulations (“Security Regulations”), which also govern the registration and enforcement of securities in the DIFC.\r\n\r\nThe Security Law and Security Regulations (“Law and Regulations”) apply in the jurisdiction of the DIFC and are administered by the DIFC Registrar of Security (“Registrar of Security”)\r\n\r\nThere are no restrictions as to who can hold or obtain the benefit of a security in the DIFC, or who can grant a security interest governed by the Law and Regulations. The application of the Law and Regulations to a security interest does not depend on the law that governs the secured obligation. Accordingly, parties to a security agreement may opt to have the Law and Regulations as the governing law while the financing agreement is governed by another law.\r\n\r\nUnder the Law and Regulations, a security is enforceable when:\r\n\r\n1. value is given, which is normally when the loan is made;\r\n\r\n2. the security provider has the rights to deal with the collaterals, including to transfer them to the secured party; and\r\n\r\n3. a security agreement that binds the debtor and specifies the details of the collateral is in place. If the collateral is a negotiable document of title, a negotiable instrument, money, deposit account or financial property, the secured party must also have control over the collateral.\r\n\r\nPriority of security interests is determined by the existence and timing of perfection or attachment of the security interests.\r\n\r\nThe manner in which collaterals are perfected differ depending on the types and nature of the collaterals. Security interests in the form of assignment of receivables, sale of a receivable or promissory note are perfected when they attach, namely when they are enforceable against the debtor or third party.\r\n\r\nSecurity interests over negotiable document of title, a negotiable instrument, money, financial property or a deposit account are perfected by the filing of a prescribed form of financing statement with the Registrar of Security. Another element to ensure perfection of security over these collaterals is “control” whereby:\r\n\r\n1. in the case of negotiable documents of title, negotiable instruments and money, the secured party, must have possession of these items;\r\n\r\n2. in the case of deposit account, the account should be held by the secured party or by a bank (“account bank”), who will act on the secured party’s instructions without further consent by the debtor. The latter arrangement has to be agreed to by all parties namely the secured party, the bank and the debtor.  Control is also assumed when the secured party becomes the account bank’s customer in respect of the account.\r\n\r\nIf further security interests or other interests are granted in respect of the collateral, the secured party will continue to retain control, so long as the debtor does not have possession or control of the said collaterals.\r\n\r\nThere are some exceptions to the requirement of the filing of the financing statement:\r\n\r\n1. security interests which are perfected upon attachment;\r\n\r\n2. a security interest which is perfected continuously. This is where the security interest if it is originally perfected by one method under the Law and is later perfected by another method under the Law with any intermediate period when its was unperfected;\r\n\r\n3. an assigned security interest, whereby a secured party assigns a perfected security interest. In this case, a filing is not required to continue the perfected status of the assigned security interest;\r\n\r\n4. temporary perfection, whereby security interest remains perfected for twenty days without filing. This is in the case where the secured party makes available to the debtor:\r\n\r\na. goods or title to the goods,  for the purpose of ultimate sale, exchange or dealing prior to the sale or exchange;\r\n\r\nb. certificated security (ie security interest captured by a physical certficate) or negotiable instruments, for the purposes of ultimate sale, exchange or presentation, collections, enforcement, renewal or registration of transfer.\r\n\r\nUpon the expirty of the twenty day period, the security interest must be perfected in accordance with the Security Law.\r\n\r\nIn addition, if the security interest is in respect of securities listed on the Nasdaq Dubai, the securities may be pledged through submission of pledge instruction to the central securities depository of the Nasdaq Dubai (“CSD”) in favour of the pledgee.  The securities will be designated as “pledged securities” held in favour of and controlled by the pledgee.\r\n\r\nIn the case of default, chapter 7 of the Law and Regulations set out the rights and remedies available to a secured party that include:\r\n\r\n1. rights to demand payment from or specific performance by the obligor;\r\n\r\n2. rights to take any proceeds that the secured party is entitled to;\r\n\r\n3. step-in rights against any persons obligated on the collateral, such as an account debtor;\r\n\r\n4. rights to set off or demand a bank to set off the balance of deposit account against the obligation secured by the deposit account; or\r\n\r\n5. rights to take possession of the collateral and to sell, lease, license or dispose of the collaterals on the terms which are commercially reasonable, through private or public proceedings.\r\n\r\nThere are prescribed requirements in the Law and Regulations that a secured party must comply with when enforcing its rights under the securities, which amongst others include notifying the debtor or obtaining consent of a security party who has priority over the securities. While there are no court proceedings or orders required to enforce the securities, the court may order or restrain the enforcement of the security if it is established that the secured party fails to comply with these prescribed requirements. In this respect, the debtor or the obligor may also bring an action for damages for any loss arising out of the secured party’s failure.\r\n\r\nThis right to enforce securities without court order is one of the features distinguishing the Law and Regulations from that of the UAE laws. Under the UAE laws, all security interests need to be enforced through a court of law and thus a debt is required to be first proven before any securities can be enforced. Once debt is proven and a final judgment is issued, the security will executed through a court order.\r\n\r\nUnder the Laws and Regulations, security interests can be created in after-acquired collateral and future advances. In other words, floating charge, pledge over or assignment of all and future assets may be created by the security agreement. This is another distinguishing feature from the legal position in the UAE whereby security over all and future assets is not possible.\r\n\r\nIt is not necessary for the party taking the benefit of the security interest under the Law and Regulations to be registered, licensed or otherwise authorised in the DIFC. In the UAE however, while there can be exceptions, for instance in the case of the creation of pledge over shares listed on Dubai Financial Market and Abu Dhabi Exchange, the general position is that a secured party needs to be a financial institution that is licensed and regulated by the UAE Central Bank before it can take security over assets in the UAE.\r\n\r\nThe general rule in relation to security interests is that security interest should be governed by the law of the place in which the asset is located. It is prudent therefore for a lender to obtain and perfect the security over assets located in the DIFC under the Law and Regulations.  In addition, the fact that an entity providing the securities are is  domiciled in the DIFC, may also be the determining factor for a lender to apply the Laws and Regulations as the governing laws and regulations for the securities.'),
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	(79489,4333,'pageSummary','Our Intellectual Property, Technology, Media and Telecommunications practice offers the full range of registration, enforcement and commercial legal services to clients across the world.'),
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	(79498,4334,'content','May 2011\r\n\r\n<hr />\r\n\r\nAs a general principle, a limited liability company will be held liable for the actions of its manager when those actions are carried out in its name and within the scope of the manager’s authority as set out in the company’s Memorandum of Association. The exception to this general principle is where the manager’s activities are fraudulent.\r\n\r\nIn a recent decision, the Court of Cassation held that a manager of a limited liability company shall be held liable with his personal assets at risk, for any fraudulent or criminal act committed while dealing with the company’s creditors. The Court of Cassation held that the manager will be held personally liable along with the company when issuing a cheque. The exception to this is unless the manager proves that at the time of the issuance of the cheque the company had sufficient funds. A failure to prove this shall warrant payment of the cheques from his personal assets. In reaching its decision the Court of Cassation had regard to  Articles 218, 219, 237-3 &amp; 111 of the Commercial Companies Law  (“CCL”).\r\n\r\n<strong>Claim</strong>\r\nA commercial action was filed by a buyer (the “Claimant”) against a Limited Liability Company (“the First Defendant”) and its Manager (“the Second Defendant”) (together “the Defendants”). The Claimant submitted that the First Defendant had purchased scaffolding from him amounting to AED 473,750, but that the First Defendant had paid only AED 99,812. The Claimant argued that the First Defendant had issued two posted dated cheques – signed by the Second Defendant - for the remaining amount. The first cheque was dated 2 September 2008 and amounted to AED 75,938, and the second cheque was dated 14 September 2008 and amounted to AED 298,000.\r\n\r\nThe Claimant alleged that the two cheques had bounced upon their presentation, due to insufficient funds.  The Claimant subsequently initiated legal proceedings against the Defendants and requested the Court to direct them to pay the outstanding amount plus interest and legal fees.\r\n\r\n<strong>The Court of First Instance</strong>\r\nThe Court of First Instance accepted the claim against the First Defendant only. The First Defendant was directed to pay the amount of AED 373,938 plus interest. The case against the Second Defendant was dismissed. On that basis the Claimant appealed the judgment to the Court of Appeal.\r\n\r\n<strong>The Court of Appeal</strong>\r\nThe Court of Appeal upheld the Court of First Instance’s decision. Consequently the Claimant appealed to the Court of Cassation.\r\n\r\n<strong>The Court of Cassation</strong>\r\nThe Claimant argued that the Court of Appeal had erred in its decision to uphold the decision of the Court of First Instance. The two main grounds for the Claimant’s appeal were as follows:\r\n<ul>\r\n 	<li>the Second Defendant is a partner in a limited liability company;</li>\r\n 	<li>the Second Defendant shall be only held liable only to the extent of the capital of the company</li>\r\n</ul>\r\nThe Claimant argued that the Second Defendant was both responsible of the management of the First Defendant and that he had signed the two bounced cheques in the knowledge that the First Defendant company did not have sufficient funds.  The Claimant submitted that this equated to a finding that the Second Defendant should be held personally liable (together with the First Defendant company) to the Claimant as a creditor of the company.\r\n\r\nThe Court of Cassation overturned the Court of Appeal’s decision and held that acts committed by a manager of an LLC Company bind the company when they are carried out in the company’s name and within the scope of the manager’s authority. The exception, as outlined above, is when the subject acts are fraudulent. With respect to the issue of a cheque, if the manager is aware that the company does not have sufficient funds at the time he signs and issues the cheque, he will be liable in his personal capacity.\r\n\r\nIn light of the above, the Court of Cassation overturned the Court of Appeal’s decision. The Second Defendant was found to have acted in his capacity as a  duly authorised manager of the First Defendant. The Second Defendant was also found to have signed the cheques in the knowledge they would bounce. The Second Defendant was therefore held jointly and severally liable with the First Defendant with respect to the payment of the outstanding amount.'),
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	(79483,4333,'content','June 2013\r\n\r\n<hr />\r\n\r\nOur Intellectual Property, Technology, Media and Telecommunications practice offers the full range of registration, enforcement and commercial legal services to clients across the world.  With our genuine bi-lingual capabilities, our local expertise gained over years of practice, our regional coverage, and our blend of lawyers with skills and expertise gained locally and internationally, we offer clients a genuine “one stop shop” for their IP, IT, media and telecoms legal requirements in the Middle East.\r\n\r\nWe focus on understanding our clients’ businesses and needs and our clients can be confident that we are at the forefront (and, where possible, use and enjoy), the products, services and technologies they are dealing with. This ensures we are perfectly positioned to truly understand the business environment our client work in and the needs that arise as a result of new technologies.\r\n\r\n<strong>Trademark, Design and Patent Registration </strong>\r\nAs a leading firm in this area of work (Tier 1 ranking 2011, Managing Intellectual Property – world’s leading IP publication) we have the expertise to handle our clients trademark portfolios on an international scale. With a very close network of associates worldwide, we are able to assist clients with trademark registrations throughout the world. More specifically, our work includes filing, assignments, license recording, renewals handling opposition actions and we were the first to register a colour trademark in the UAE.\r\nOur team manages trademarks throughout the Middle East and is able to advise clients on expected results and preempt Office actions saving clients time and costs. Our lawyers maintain open communication with registrars and examiners and are able to verify or check status fairly quickly. For patents and industrial designs, we have acting as coordinating attorneys throughout the Middle East and successfully prosecuted applications throughout the region.\r\n\r\n<strong>Intellectual Property Enforcement and Advisory</strong>\r\nOur work in this area includes anti counterfeiting, software piracy actions, customs complaints against shipments carrying counterfeit goods, in market seizures through administrative actions and IP court litigation.\r\n\r\nWe also advise in taking preventative branding procedures to assure adequate protection for the clients’ IP rights. We have successfully managed to profile our clients’ trademarks awareness with key officials and enforcement bodies. With supervising and arranging for persuasive events, we put our clients in officials-facing stand. For example, we arrange for enforcement officials to attend special training, presentations, field visits and awareness programs provided by our clients in the UAE or overseas at the client’s locations/ production factories.\r\n\r\nWe are recognised by the market as a leading force in patent litigation with a current Tier 1 Patent Contentious ranking by Managing Intellectual Property.\r\nOur practice has expertise in managing domain name disputes ranging from the obvious cybersquatter to tussles with competitors.\r\n\r\n<strong>Data Privacy and Information Security</strong>\r\nOur lawyers have demonstrated a deep understanding of client’s expectations as to assessment of legal risks involved in data privacy and information security compliance issues.  We have worked on data privacy issues for clients from diverse industrial sectors, such as, communications and media companies, banks and financial institutions, healthcare and pharmaceutical companies, specialized and sensitive industrial product companies, human resources and Internet companies.\r\n\r\n<strong>Regulatory work and compliance </strong>\r\nOur work in this area includes advising on pharmaceutical registration and product advertisement restrictions, standards compliance and municipality labeling and safety requirements, tobacco regulation, consumer protection and price control, marketing campaigns licenses and clearances.\r\n\r\n<strong>Technology</strong>\r\nOur team offers the full range of legal services comprising original drafting, legal document review and advice, due diligence, contract negotiation, dispute avoidance and reconciliation and local law compliance and risk management in connection with the following areas:\r\n<ul>\r\n 	<li>Consumer-oriented online and mobile technology and services (including social networking and online news, music, movies, gaming and other entertainment)</li>\r\n 	<li>Technology projects, infrastructure and solutions for a broad range of industries including manufacturing, education, property management, financial services and telecommunications</li>\r\n 	<li>The supply of technology solutions including hardware, software, services, data management and protection and combinations of these</li>\r\n 	<li>Patent protection for technological inventions, and subsequent commercialization</li>\r\n 	<li>Domain name disputes through the dispute settlement mechanisms.</li>\r\n</ul>\r\nWe also specialize in e-Business, m-Business and e-Government, offering the full range of legal services comprising original drafting, legal document review and advice, due diligence, contract negotiation and local law compliance and risk management.\r\n\r\n<strong>Media</strong>\r\nOur Media expertise covers the full spectrum of requirements including media advisory work, defamation, art production and performer’s rights protection, advertising and related advisory work.  We advise on defamation laws, represent clients in defamation litigation, and review and advise upon advertising and other promotional campaigns.\r\n\r\nWe offer the full range of legal services in relation to media content, comprising original drafting, internal training, legal document review and advice, contract negotiation and local law compliance and risk management.\r\n\r\nWe are also active in Sports and Entertainment involving:\r\n<ul>\r\n 	<li>Brand protection and exploitation such as merchandising and other licensing arrangements</li>\r\n 	<li>Merchandise distribution and selling arrangements</li>\r\n 	<li>Anti-ambush marketing and anti-counterfeiting strategies</li>\r\n 	<li>Trademark advice and registration</li>\r\n 	<li>Copyright protection and exploitation</li>\r\n</ul>\r\nBroadcast agreements: television, radio, mobile phone and online content production, distribution, management and exploitation, from the perspective of rights holders, broadcasters and broadcast partners\r\n\r\n<strong>Telecommunications</strong>\r\nWe provide advice on the legal and regulatory environments within the Middle East in respect of the following:\r\n<ul>\r\n 	<li>License applications and license obligations</li>\r\n 	<li>Interconnection agreements and infrastructure sharing arrangements</li>\r\n 	<li>Appropriate costing models for incremental pricing of wholesale and retail services</li>\r\n 	<li>Submissions in complex and sophisticated proceedings before Telecommunication Regulators</li>\r\n 	<li>Develop international best practices for meeting technology, commercial and regulatory requirements</li>\r\n</ul>\r\nWe provide advice on the legal requirements applicable to the delivery and/or reselling of the following services:\r\n<ul>\r\n 	<li>Networking Integration Services</li>\r\n 	<li>Converged Communications Services</li>\r\n 	<li>Network Strategy Services</li>\r\n 	<li>VOIP Services</li>\r\n 	<li>RFID and Mobility Wireless Services</li>\r\n 	<li>Telecommunications Management Services</li>\r\n 	<li>Government policy and regulation</li>\r\n 	<li>Interconnection and access</li>\r\n 	<li>Corporate governance compliance with statutory obligations under company, telecommunications, competition, privacy, consumer protection, data protection and advertising law</li>\r\n 	<li>Encryption Services</li>\r\n 	<li>Internet Filtering Services</li>\r\n 	<li>Import of telecommunications related apparatus</li>\r\n</ul>\r\nWe are one of the very few firms to have regional telecommunication capabilities actually situated in the Middle East. The Telecoms team works seamlessly with colleagues in our regional offices and across a well-established network of trusted regional and international associates.\r\n\r\n<strong>Our Accolades</strong>\r\nLegal 500 – Ranked the IP Department highly including Tier 1 rating for IP and Tier 2 for TMT (2010). The IP Department has been awarded the top tier for the past 4 consecutive years\r\nChambers Global - Tier 2 in Intellectual Property Firms in UAE (2011)\r\n\r\nChambers Global – Tier 3 in TMT Firms in UAE (2011)\r\n\r\nCorporate International Global Award - Best Intellectual Property Law Firm of the Year in UAE (2011)\r\n\r\nManaging Intellectual Property - Tier 1 for Trademark and Copyright Contentious work and Tier 1 for Trademark Prosecution in UAE (2011)\r\n\r\nAward for supporting intellectual property rights (UAE) - Ministry of Economy (2010)\r\n\r\nDubai Customs Department - Foremost legal firm in registering cases against counterfeit products (2011 and 2010)\r\n\r\nFront row from left to right:  David Yates, Nick O’Connell, Hesham Al Barbary, Omar Obeidat, Munir Suboh. Stephen Jiew,\r\nSecond row from left to right:  Mohamed Ali, Yvonne Pah, Lara Ababneh, Rasha Al Ardah, Firas Belhas, Faisal Daudpota\r\nMissing from photo:  Anita Siassio'),
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	(79460,4332,'content','May 2011\r\n\r\n<hr />\r\n\r\nA contract is an agreement between at least two parties over the terms and conditions that will govern their business relationship.  There must be an offer, acceptance and consideration. It is usually a result of negotiations and back and forth over the subject matter, which the parties elect to document in a piece of paper to avoid any doubts over what was finally agreed upon. Today, such negotiations are often conducted via electronic means, such as e-mails, and the negotiations continue until the differences are narrowed down to what is referred to as an electronic contract. The question that concerns us all is whether an electronic contract is valid under the current state of the UAE law.  This article will examine the validity of electronic contracts in relation to the UAE law and shed light on the applicable laws in this connection.\r\nUnder the UAE Civil Transactions Law, being Federal Law No. 5 of 1985, as amended (the” Civil Code”), a contract is formed upon the acceptance of an offer by the offeree. Article ¬¬¬125 of the Civil Code provides (translated):” A contract is the deliberate engagement of the offer which emanates from one of the parties, to the acceptance of the other party in a manner which produces judicial effects and creates mutual obligations on the two contracting parties. Yet more than two parties may also engage to produce judicial effects”. The Civil Code further provides that certain kinds of contracts must be in writing in order to be valid. For instance, for the sale or purchase of a ship, the Civil Code specifically provided that the contract has to be in writing. This is equally true in the case of the sale of land or the contract of marriage, where such contract has to be in writing in order to be valid pursuant to the Civil Code. The aforesaid requirement pertains to the validity of such contracts and not only the proof of its terms as it is the case with other electronic contracts, as will be discussed hereunder.\r\n\r\nBased on the above, contracts could in principle  be concluded by the acceptance of an offer by the offeree, no matter how such offer was communicated or the acceptance of the offer was made, with the exception of those contracts, which the Civil Code has specifically states should be in writing in order to be valid. Article ¬¬¬130 of the Civil Code provides (translated):” A contract is concluded by the concurrence of the offer and the acceptance, subject to those cases where special conditions are required for its validity and which are provided for in the law”.  Nonetheless, another question arises in terms of the admissibility of such electronic documents in courts in the event of a dispute over its terms. There is no legal uncertainty if both parties recognise a contract and admit the same.  The problem only arises when one party tends to deny the contract or dispute any of its terms.\r\n\r\nEvidence in the UAE is governed by the UAE Law of Evidence, being Federal Law No. 10 of 1992, as amended (the “Law of Evidence”).  Two categories of documents are recognized under the Law of Evidence; namely official and non-official documents. Under the Law of Evidence, a document, whether official or non-official, must be signed or stamped and copies of documents, whether official or non-official, are not recognised unless they are identical to their originals and the originals are available to compare with. The original will only be considered original if it is signed or stamped.  A copy could be challenged by denying the signature or the stamp. If a copy is challenged, it must be examined with the original.  But how about electronic documents and electronic signatures? Does the Law of Evidence address electronic documents and electronic signatures?\r\n\r\nThe answers to the above questions were negative few years back when electronic documents and electronic signatures were not addressed under the Law of Evidence. Nonetheless, the UAE federal and local governments have realized such legal vacuum and acted on it. In particular, in 2002, his Highness Sheikh Maktoum Bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, issued a local law for the Emirate of Dubai, Law No. 2 of 2002 Concerning Electronic Transactions and Commerce (the “DETCL”). Under the DETCL, an electronic signature as provided for in the said law shall be regarded as adequate if the law requires a signature on a document. According to the DETCL, an electronic document or file shall be regarded as original if there is reliable technical evidence proving that it accurately reproduces the information originally created and it permits information to be presented on request. Pursuant to the DETCL an electronic document or signature may not be rejected just because it is electronic. Electronic information shall have legal validity and in judging this validity, certain requirements must be met such as:\r\n<ul>\r\n 	<li>Reliability of keying in or creating, saving, presenting or sending processes;</li>\r\n 	<li>Reliability of the method in which information is secured;</li>\r\n 	<li>Reliability of the source of information;</li>\r\n 	<li>Checking the identity of the creator of the information;</li>\r\n 	<li>Any other relevant item.</li>\r\n</ul>\r\nIt is presumed that a secured e-signature is reliable, and is that of the person involved and specifically approves the electronic document attached to it. It is further presumed that a secured electronic document has remained unchanged since its creation and is reliable. Even though it may involve one or more electronic communications, a contract may not be less valid or less legal. For purposes of concluding contracts, partial or total acceptance may be made electronically. An arrangement may be made by electronic devices (two or more information systems) without personal intervention. Such agreement shall be valid according to the DETCL.\r\n\r\nAt the federal level, as part of the Federal Government’s efforts to regulate electronic transactions and boost user’s confidence, His Highness Sheikh Khalifa Bin Zayed Al Nahyan, President of the UAE, has, in February 2006, issued Federal Law No. 1 of 2006 concerning Electronic Transactions and Commerce Law (“ETCL”).\r\n\r\nChapter Four in the ETCL addresses electronic transactions and regulates the formation and validity of on-line contracts.  Under Chapter Four, a contract will not loose its validity or enforceability for the simple fact that it was formed by one or more electronic messages.  Further, an on-line contract may be concluded between two or more Automated Electronic Systems; without personal intervention, and such contract shall be valid by virtue of Article 12 of the ETCL.\r\n\r\nFurther, the ETCL has recognized electronic signatures and outlined the criteria according to which an electronic signature shall be regarded as equivalent to a handwritten signature.\r\n\r\nMoreover, in an attempt to align the existing laws with the ETCL, His Highness Sheikh Khalifa Bin Zayed Al Nahyan, President of the UAE, has, in October 2006, issued Federal Law No. 36 of 2006 (the “Law”) amending the Law of Evidence in Civil and Commercial Transactions promulgated by Federal Law No. 10 of 1992 (the “Law of Evidence”). Pursuant to the Law, electronic signatures shall have the same force and effect as other signatures mentioned in Law of Evidence provided they comply with the provisions of the ETCL. Further, electronic writing, communication, records and documents shall have the same force and effect as accorded to official and traditional writing and communication under the Law of Evidence provided they comply with the conditions and provisions of the ETCL.\r\n\r\nIt is evident from the above analysis that the problem lies in proving that transactions have occurred or in establishing evidence. As mentioned above, there is no legal uncertainty if both parties to a contract recognize its terms and admit the same. In other words, if both parties agree to the terms of a contract transacted electronically and recognize the same, the question of proof does not arise. The contract therefore will be a valid contract and both parties will have to adhere to the agreement they have made through electronic means irrespective of the fact that such a contract was concluded electronically and, in most cases, an original, as in the context of the Law of Evidence, may not exist. The problem occurs when one party dispute any or all the terms of the contract, then the question in terms of the admissibility of electronic evidence arises.\r\n\r\nIt is also evident from the above legislative developments that there is a growing realisation in the UAE that e-commerce can only achieve its full potential if there is a modern legal infrastructure that can support the growth of e-commerce.  As e-commerce is developing, it is creating new challenges to any legal system which needs to continue to develop a legal regime to cope with this fast growing area of e-commerce. Hence, I believe that the UAE legislators should continue to enact special laws, such as the DETCL and the ETCL or amend the existing laws, such as the Law to cope with the fast growing technology so it can play a competitive role in the digital economy.'),
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	(79459,4331,'_yoast_wpseo_metadesc','Introduction“Corporate restructuring” is a term of art which includes significant modification made to (a) debt (b) or current corporate structure of a company or a group of companies.'),
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	(79404,4329,'_content','field_59b649b5c8b2b'),
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	(79407,4329,'content_description','Images of an elegant and luxurious hotel, glimmering in the sun on a white sandy beach, surrounded by palm trees gently swaying in the warm breeze evokes in most, if not all of us, dreamy thoughts of glamour, relaxation, pampering and absolute delight.\r\n\r\n\r\nChart for Hotel Development Article'),
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	(79409,4329,'pageSummary','May 2011\r\n\r\n<hr />\r\n\r\nImages of an elegant and luxurious hotel, glimmering in the sun on a white sandy beach, surrounded by palm trees gently swaying in the warm breeze evokes in most, if not all of us, dreamy thoughts of glamour, relaxation, pampering and absolute delight.\r\n\r\nChart for Hotel Development Article'),
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	(79417,4329,'_yoast_wpseo_metadesc','Images of an elegant and luxurious hotel, glimmering in the sun on a white sandy beach, surrounded by palm trees gently swaying in the warm breeze evokes in most, if not all of us, dreamy thoughts of glamour, relaxation, pampering and absolute delight. Chart for Hotel Development Article'),
	(79418,4330,'content','The Printing and Publications Law was primarily aimed to address printing and publishing activities and is broad enough to cover all forms of expressions including television broadcasting. This law included 16 articles that detail prohibited matters that may not be published. The prohibited matters are either of religious topics, politics related, national security related or deal with individual rights and public morals.\r\n\r\nAt the time of introducing the Printing and Publications Law, persons subject to these media regulations and prohibitions were onshore entities with the growth of free zones in the UAE and creation of media free zones which resulted in remarkable growth of a media industry inside these special free zones. While there is no specific broadcasting law applicable across the UAE, there has been a guidance released by the Dubai Technology and Media Free Zone that introduce awareness and privacy principles and provide a code of standards.\r\n\r\nThe National Media Council which oversees implementation of the Printing and Publications Law issued a decree at the end of 2010 bearing No. 20 for the year the 2010 regulating media content. The most interesting evolution of this media content decree was holding all media companies whether audio, audiovisual and print in the UAE subject to this regulation and subject to the Printing and Publications Law whether those media entities are based onshore or in the free zones. This provision removed any vagueness to the applicability of Printing and Publications Law to media broadcasters licenses in the free zones. The National Council decree listed a number of mandatory content regulations that apply to all media entities giving special emphasis to national unity and respecting the culture of the UAE and respecting the political views of the UAE Government as well as its political symbols and safeguarding the UAE economic system from any misleading new reports.\r\n\r\nThe regulation allows the National Media Council to take any measures to remedy any violation to the content regulations which range from a notice up to cancellation of the license to carry out media activities in the UAE. While this decree serves as an instrument to affirm applicability of the Printing and Publications Law to free zones and also incorporates further content prohibitions as experiences have dictated additional prohibitions to those listed in the Printing and Publications Law. Despite that however, the content regulation can elaborated much more further to address use of foul or violent language, appropriateness of programs to age groups and timings for broadcasting, further detailing on privacy and data protection of individuals and finally regulating content of advertisements broadcasted by the media. These are among other topics that can be subject of a stand alone broadcasting content legislation or as incorporated in a new broader Media Law.'),
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	(79422,4330,'content_description','The applicable Media Law in the UAE as a Federal Law that bears No. 15 for the year 1980, this legislation had repealed a previous law dating back to 1973.'),
	(79423,4330,'_content_description','field_59b641c07f473'),
	(79424,4330,'pageSummary','May 2011\r\n\r\n<hr />\r\n\r\nThe applicable Media Law in the UAE as a Federal Law that bears No. 15 for the year 1980, this legislation had repealed a previous law dating back to 1973.'),
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	(79436,4330,'_yoast_wpseo_metadesc','The applicable Media Law in the UAE as a Federal Law that bears No. 15 for the year 1980, this legislation had repealed a previous law dating back to 1973.'),
	(79437,4331,'content','May 2011\r\n\r\n<hr />\r\n\r\nIn the aftermath of the financial crisis the term corporate restructuring has become synonymous with “debt restructuring”, at least for a large part of the undiscerning public. But the term “corporate restructuring” is also used when group entities are restructured to achieve commercial objectives with increased efficiency without losing market share or credibility.  The purpose of this article is to point out basic features of both with more focus on the latter (corporate restructuring as opposed to debt restructuring) and provide a future outlook for the same in UAE based on our recent experiences.\r\n\r\n<strong>Debt Restructuring</strong>\r\nCorporate restructuring to manage debt (also called corporate debt restructuring) is used when a company is having trouble making payments on its debts. It is usually undertaken in response to an extreme financial crisis. In theory, after a restructuring exercise, payments should be manageable. Generally, a corporate debt restructuring will be accompanied by cutting operating expenses, altering the firm’s business portfolio by selling or acquiring assets and/or changing the firm equity ownership structure. Such restructuring can either be out of court through mutual settlement with major creditors (usual threshold is creditors owed at least 75% of the debt) or through court processes such as Chapter 11 of the U.S. Bankruptcy Code which enables debt burdened companies to approach the court with a debt restructuring scheme. In most cases under Chapter 11, schemes for restructuring debt is pre-packaged; that is, agreed with major creditors before being taken to court: creditors are taken on board and agreements entered into with the creditors before an application is filed under the bankruptcy code. The whole process can be completed in a matter of weeks. The pre-packaged bankruptcy proceeding is particularly helpful in cases where out of court settlement is not practical or easy due to complicated debt structure of the company.\r\n\r\n<strong>Corporate Restructuring</strong>\r\nIn certain instances, servicing debt is not always the main objectiveof corporate restructuring: the objective may be to improve operational and financial performance, explore strategic opportunities or improve public market valuations. In this sense “corporate restructuring” covers all forms of legally accepted measures by which one or more corporate entities can alter corporate form to affect current relationships with third parties and even amongst shareholders of the corporate entity subject of restructuring.  Broadly speaking corporate restructuring can take the form of:\r\n<ul>\r\n 	<li>corporate expansion (merger, acquisition, joint venture);</li>\r\n 	<li>corporate contraction (spin-off, divestiture, carve-out (including equity carve-out), asset abandonment, liquidations, deregistration of corporate entities; and</li>\r\n 	<li>ownership and control (purchase of own shares and conversion to a private company (whether by a leveraged buy-out (LBO) or by other means)).</li>\r\n</ul>\r\nEconomic realties have forced managers to reassess the need to retain extensive group structures and, if required, to replace with ones designed to efficiently serve core business objectives. In our experience another challenge in recent times to existing corporate structures has come from the business side, especially when they (existing corporate structures) impede a natural shift in business strategy called for by the need to explore new businesses opportunities.\r\n\r\nWhatever the reasons, a corporate restructuring exercise is desirable if it achieves identified corporate needs, the bottom line always being improved efficiency and profitability of the company.\r\nMotives behind corporate restructuring matters in which the firm has been involved recently are diverse; some are as follows:\r\n<ul>\r\n 	<li>to close down entities that are not adding any value to the business;</li>\r\n 	<li>reduce operating cost by downsizing corporate group, but add activities on licenses of the reduced group entities to conduct business unaffected;</li>\r\n 	<li>outsource non core activities such as HR management, accounting and other back office functions to third parties or affiliates and reorganize the group entities;</li>\r\n 	<li>reduce intermediary costs by incorporating entities or adding relevant activities to existing corporate licenses to conduct distribution through self owned retail outlets or subsidiaries;</li>\r\n 	<li>reorganize group entities in the region to fall under subsidiary in UAE to avail tax free status and benefit on repatriation of dividends to foreign parent company under avoidance of double taxation treaty between UAE and the country where the foreign parent company is domiciled; and</li>\r\n 	<li>consolidate group companies set up in the region under holding structure set up in an off shore jurisdiction to achieve uniformity in corporate policy, better administration and manage exit strategy.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nWe envisage that the recent increase in corporate restructuring witnessed in the UAE will continue to grow as managers strive to reduce operating costs and realign existing corporate group structures to long term business strategy. In terms of holding structures we see UAE continuing as a hub for tax planning particularly for parent companies based out of Europe which is likely to experience higher taxes going forward. Finally, big corporate brands are likely to restructure their corporate presence in the UAE to facilitate direct sale to end consumer through self owned retail outlets or distribution network rather than use intermediaries.'),
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	(78678,4289,'content','March 2011\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Company has built a strong arbitration practice over the years with Senior Partner and Founder, Essam Al Tamimi, being a major advocate for arbitration as a means of efficient and effective dispute resolution for clients.'),
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	(78692,4290,'content','March 2011\r\n\r\n<hr />\r\n\r\nThe Respondent filed a case in the Abu Dhabi Federal Court in which it sought an order that the Appellant be directed to appoint an arbitrator. The Respondent also sought confirmation of an arbitral award.\r\n\r\nThe facts of the case are that the Appellant had leased a plot of land from the Respondent, but did not use the land in the manner agreed upon in the Contract. The Appellant’s purported misuse of the land had ruined it. Owing to an arbitration clause in the contract, the Respondent asked Appellant to appoint an arbitrator in accordance with the contract to determine the damage the Appellant had purportedly caused to the land, along with any monetary amount due as compensation. In view of the Appellant’s failure to appoint an arbitrator the Respondent applied to Court.\r\n\r\nThe Abu Dhabi Federal Court of First Instance appointed three arbitrators from the Ministry of Justice roll, who, following the conduct of arbitration proceedings, ordered the Appellant to pay AED 1,708,360 to the Respondent. All other claims were dismissed.\r\n\r\nThe Respondent sought enforcement of the arbitral award. The Appellant filed a cross-action seeking:\r\n<ul>\r\n 	<li>an order requiring the Respondent to pay the sum of AED 200,000 plus interest to the Appellant; and</li>\r\n 	<li>an order setting aside the arbitral award.</li>\r\n</ul>\r\nOn 23 February 2010, the Abu Dhabi Federal Court of First Instance declared itself to be without jurisdiction to hear the matter and referred it to the local Abu Dhabi Court of First Instance.\r\n\r\nBoth parties appealed this decision. On 25 February 2010 the Abu Dhabi Federal Court of Appeal held that the Abu Dhabi Federal Court of First Instance had jurisdiction in the matter, which was referred back to that Court again. The Appellant appealed this decision to the Federal Supreme Court.\r\n\r\nArticle 151 of the Civil Procedure Code, confirms that decisions conferring jurisdiction on a court that did not have original jurisdiction, are among the types of decisions that are excluded from the general rule.  The general rule being, that decisions made during the course of proceedings, which do not ultimately end the dispute, can be reviewed only after a final decision concluding dispute in its entirety has been issued.\r\n\r\nDecision 185, issued by the Head of the Abu Dhabi Judicial Department on 19 August 2007, prescribed that local courts in Abu Dhabi are a judicial authority independent from the Federal judicial authority. Therefore, the lower Court’s decision to confer jurisdiction on the Abu Dhabi Federal Court (thus excluding the local courts) was held to be a decision capable of direct appeal.\r\n\r\nThe Appellant’s sole point of appeal was the lower Court had contradicted the law by ruling that the Abu Dhabi Federal Court of First Instance had jurisdiction to determine the enforcement application. The Appellant argued that:\r\n<ul>\r\n 	<li>as the arbitration had been conducted out of court, the Respondent had to file a primary action to enforce the award; and</li>\r\n 	<li>that jurisdiction to hear such an action belonged to the local Abu Dhabi Court of First Instance.</li>\r\n</ul>\r\nThe Federal Supreme Court has held on a number of occasions that the Emirate of Abu Dhabi has retained judicial authority over its local courts. Therefore, the allocation of competence in court cases is an issue of jurisdiction, related to public policy and which precludes individual parties from agreeing to the contrary.\r\n\r\nThe dispute in question revolved around determining which court has jurisdiction to entertain the request to enforce an arbitral award.\r\n\r\nThe Federal Supreme Court referred to Article 204 of the Civil Procedure Law:\r\n204:“If a dispute arises and the parties have not agreed on the arbitrators, or if one or more of the agreed arbitrators refrains from acting, resigns, or is discharged or removed or if an impediment to him so acting arises, and there is nothing agreed between the parties in this regard, then at the request of any of the parties the Court originally competent to hear the dispute shall appoint whatever arbitrators are required by normal litigation procedures.”\r\n\r\nHence, an award made by an arbitrator appointed by the Court, either appointed in a dispute before the Court or appointed at the request of one of the parties is classified as a court administered arbitration, to which the above rules would apply. In other words, the Court can hear the application for enforcement without a new action having to be filed. New actions must be filed when enforcement of awards issued in an out of court arbitration is sought.\r\n\r\nIn the subject case, the record confirmed that the Abu Dhabi Federal Court of First Instance had appointed an arbitrator to resolve the dispute in question, and that the arbitrator had then handed down his award. Accordingly, the arbitration was court administered. This meant that the Abu Dhabi Federal Court of First Instance was competent to hear the enforcement action, as long as it was filed prior to the taking of effect on 1 September 2007 of Decision 185.\r\n\r\nIt was ultimately determined that the lower Court had correctly applied the law. Accordingly, the Appellant’s appeal was dismissed with AED 2,000 legal fees.'),
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	(78719,4291,'content','March 2011\r\n\r\n<hr />\r\n\r\nThe 2011 Decree defines the maximum rent increase for properties leased in the Emirate of Dubai during 2011 and is applicable to all types of property.\r\n\r\nIn each of the last four years, rent cap decrees have been issued to control rent increases in the Emirate of Dubai to ensure stability in the rental market and to encourage investment. The decrees are:\r\n\r\nDecree No. 42 of 2006\r\nDecree No. 27 of 2007\r\nDecree No. 1 of 2009\r\nDecree No. 62 of 2009\r\n\r\nThe 2011 Decree has left the rent cap parameters unchanged from 2009 and 2010. Specifically, the 2011 Decree provides that there should not be any rent increase if the rent for the property is up to 25% below the average similar rent. For rents that are 26% or less than average similar rent, the 2011 Decree allows for a specific percentage of rent increase of between 5% and 20% depending on the difference between the current rent for the property and average similar rent.\r\n\r\nThe 2011 Decree refers to the “Rent Index of the Emirate of Dubai” approved by RERA as the mechanism to determine ‘similar rent’.\r\n\r\nOur unofficial English translation of the 2011 Decree follows:\r\n\r\n<strong>Decree No. 2 of 2011</strong>\r\n<strong>Regarding Rentals in the Emirate of Dubai</strong>\r\n\r\nWe, Mohammed Bin Rashid Al Maktoum, Ruler of Dubai\r\n\r\nAfter perusal of Law No. 26 of 2007 regulating the Relationship between Landlords and Tenants in the Emirate of Dubai as amended,\r\n\r\nAnd Law No. 16 of 2007 establishing the Real Estate Regulatory Agency,\r\n\r\nAnd Decree No. 2 of 1993 establishing, the Special Judicial Committee for Settlement of Disputes between Landlords and Tenants as amended,\r\n\r\nAnd Decree No. 42 of 2006 regarding Rentals in the Emirate of Dubai,\r\n\r\nAnd Decree No. 27 of 2007 regarding Rentals in the Emirate of Dubai,\r\n\r\nAnd Decree No. 1 of 2009 regarding Rentals in the Emirate of Dubai,\r\n\r\nAnd Decree No. 62 of 2009 regarding Rentals in the Emirate of Dubai\r\n\r\nISSUE THE FOLLOWING DECREE:\r\n\r\n<strong>Article (1)</strong>\r\n\r\nThe maximum rent increase percentage of property units in the Emirate of Dubai leased before the enforcement of this Decree shall be as follows:\r\n\r\na. There should not be any rent increase, if the rent for the real estate unit is up to 25% below the average similar rent.\r\nb. If the rent value was 26% to 35% less than the average similar rent, the maximum rent increase shall be equal to 5% of such value.\r\nc. If the rent value was 36% to 45% less than the average similar rent, the maximum rent increase shall be equal to 10% of such value.\r\nd. If the rent value was 46% to 55% less than the average similar rent, the maximum rent increase shall be equal to 15% of such value.\r\ne. If the rent value was less than 55% of the average similar rent, the maximum rent increase shall be equal to 20% of such value.\r\n\r\n<strong>Article (2)</strong>\r\n\r\nFor the purpose of this Decree the similar rent value of the property unit means pursuant to “The Rent Index of the Emirate of Dubai” approved by RERA.\r\n\r\n<strong>Article (3)</strong>\r\n\r\nThis Decree shall be enforced from the date of its issuance and shall be published in the Gazette.\r\n\r\n<strong>Mohammed Bin Rashid Al Maktoum, </strong>\r\n<strong>Ruler of Dubai</strong>\r\n\r\n<strong>Issued by us in Dubai on 10 January 2011</strong>'),
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	(78723,4291,'content_description','H.H. Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai, issued Decree \r\nNo. 2 of 2011 Regarding Rentals in the Emirate of Dubai on 10 January 2011 \r\n(the “2011 Decree”).'),
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	(78725,4291,'pageSummary','H.H. Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai, issued Decree\r\nNo. 2 of 2011 Regarding Rentals in the Emirate of Dubai on 10 January 2011\r\n(the “2011 Decree”).'),
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	(78733,4291,'_yoast_wpseo_metadesc','H.H. Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai, issued Decree No. 2 of 2011 Regarding Rentals in the Emirate of Dubai on 10 January 2011 (the “2011 Decree”).'),
	(78734,4292,'content','March 2011\r\n\r\n<hr />\r\n\r\nResolving disputes is a vital component of corporate risk management and strategy. The speed and force of commercial globalization and the unprecedented expansion and growth of the Middle East market is resulting in increasing numbers of domestic and cross-border disputes, which require high quality, strategic and coordinated advice and expertise.\r\n\r\nAl Tamimi &amp; Company boasts the largest, strongest and broadest dispute resolution practice in the Middle East.  Our team comprises dispute resolution lawyers based in Dubai, Abu Dhabi, Sharjah, Qatar, Saudi Arabia, Jordan, Kuwait and Iraq with experience resolving disputes in the UAE courts of each of the Emirates, as well as the Dubai International Financial Centre Courts that is second to none.\r\n\r\nLed by Hassan Arab who is one of the leading and most respected dispute resolution practitioners in the region, our team of highly qualified and experienced practitioners from the Middle East, Europe, Australia, Africa and North America brings a breadth and depth of legal expertise and experience that is unequalled in the UAE and Gulf.  Our lawyers include a team of UAE nationals with rights of audience to appear before all Courts of law in the UAE as well as a number of solicitors and barristers qualified in other jurisdictions registered to appear before the DIFC Courts.\r\n\r\nThe teams’ success is recognised by the leading independent directories, Legal 500 and Chambers, who place the UAE Dispute Resolution practice in Tier 1. Chambers Global in 2010 stated “This firm has a practically unmatched dispute resolution capacity in the Middle East” whilst Legal 500 said “Al Tamimi &amp; Company has a great reputation for local court work and a number of really good practitioners.”\r\n\r\nOur clients rely on our global perspective and our in-depth knowledge and understanding of local and regional laws.  We advise and represent clients involved in local, DIFC, regional and international commercial disputes.  Our familiarity with federal and local government, federal and local laws, the laws and regulations of the Free Zones, and with the many Courts and tribunals operating across the UAE, enables our clients to conduct their affairs with increased certainty and efficiency.\r\n\r\nIn addition to the UAE litigation practice, Al Tamimi has one of the largest and leading DIFC Courts practice groups in the UAE led by Rita Jaballah.  Al Tamimi was actively involved in the establishment of the DIFC Courts and we sit on the DIFC Courts’ Users’ Committee and DIFC Court Rules Sub-Committee.  To date we have been involved in some of the leading DIFC Court of First Instance and the DIFC Court of Appeal cases to come before the DIFC Courts.\r\n\r\nWhat distinguishes Al Tamimi &amp; Company’s Dispute Resolution practice from others, though, is that, as part of the local community, we understand the local culture. Emphasis on local knowledge and abilities has been and will continue to be a key characteristic of the practice. Having international skills and talent while remaining a local firm is one of the pillars of our success.\r\n\r\nFor more information please contact:\r\n\r\nHassan Arab\r\nHead of UAE Litigation\r\np: +97143641723\r\nE: <a href=\"mailto:h.arab@tamimi.com\">h.arab@tamimi.com</a>\r\n\r\nRita Jaballah\r\nHead of DIFC Litigation\r\np: 97143641526\r\nE: <a href=\"mailto:r.jaballah@tamimi.com\">r.jaballah@tamimi.com</a>'),
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	(78745,4293,'content','March 2011\r\n\r\n<hr />\r\n\r\n<strong>Claim and facts of the case</strong>\r\nA Commercial Action was filed before the Dubai Court by a Subcontractor (“Party A”) against (“Parties B and C” together the “Parties”). Party A requested the Court to ratify an arbitral award issued on 18 June 2008 in which the Parties were ordered to jointly and severally pay AED843,912 plus 9% legal interest from 12 July 2003 until full payment. Party A was also awarded its legal costs in the amount of AED30,000.\r\n\r\nParty A submitted that it had concluded a Sub Contracting Agreement (“The Agreement”) with the Parties. The Agreement contained an arbitration clause. Party A’s  obligations under the Agreement were to execute carpentry work, being the supply and installation of wooden doors and cupboards in a residential complex in Sharjah. Party A pleaded it carried out all the works as stipulated in the Agreement but that the Parties refused to make the final installment payment, amounting to AED843,912. As stated above, Party A received an award to this effect in its favour.\r\n\r\nConsequently, a representative of the Parties filed an interlocutory application before the Court, requesting the Court set aside the arbitral award. A number of grounds were put forward in support of the application:\r\n<ul>\r\n 	<li>The award was issued without terms of reference and/or based upon invalid terms of reference. The basis for this argument was the suggestion that the minutes of arbitration hearings neglected to state that parties neither prepared nor signed terms of reference.</li>\r\n 	<li>The arbitrator exceeded the time prescribed in the terms of reference (being 18 January 2008) to issue the award, and further, that the invalid terms of reference did not empower the arbitrator to extend the prescribed time. The Parties noted that both participants to the proceedings had refused to extend the time within which the proceedings were to be conducted. The Parties submitted that any such extensions should have been requested by the arbitrator prior to the expiration of the prescribed time (in this case the Parties alleged it was requested following the expiration of the time).</li>\r\n 	<li>The legal representative of the Parties during the arbitral hearings had not been properly authorized by the Parties to attend and make submissions at arbitral hearings. The Parties further argued their legal representative had not been duly authorised to sign the terms of reference or to extend the deadline as prescribed in the terms of reference;</li>\r\n 	<li>The arbitrator did not ensure the Parties had been adequately served.The arbitrator received his terms of reference from the execution judge and not from the Court which appointed him. The Parties argued that Article 216(b) of the UAE Civil Procedure Law precluded the execution judge from addressing the arbitrator.</li>\r\n 	<li>The arbitrator directed the Parties to pay the arbitration fees before commencing arbitration proceedings and then again before identifying the loosing party, which the Parties argued was in contravention of Article 218 of the Civil Procedure Law.</li>\r\n 	<li>The arbitrator did not deposit his award as prescribed in Article 213 of the Civil Procedure Law but deposited it with the execution judge without providing a copy to both parties within the stipulated time limit.</li>\r\n</ul>\r\n<strong>Court of First Instance</strong>\r\nThe Court of First Instance dismissed Party A’s plea that the award be enforced and ruled in favor of the Parties. Consequently Party A appealed to the Court of Appeal. Although the award was set aside, the Parties also appealed on the basis the Court of First Instance had failed to adequately address the Parties’ reasons for arguing that the award be set aside.\r\n\r\n<strong>Court of Appeal</strong>\r\nThe Court of Appeal overturned the Court of First Instance’s decision and ratified the arbitral award. Furthermore, the Court of Appeal dismissed the Parties’ interlocutory claim. Subsequently, the Parties appealed to the Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\nThe Parties argued that the Court of Appeal had erred in reversing the decision of the Court of First Instance. The Parties put forward a number of propositions in support of this plea:\r\n<ul>\r\n 	<li>The Parties relied on to Article 212 (5) of the Civil Procedure Law in arguing that one of the essential requirements of an arbitration award is the signature of the arbitrator who has issued the award. The Parties noted that the arbitrator only signed the last page of the arbitral award (which contained the decision) whereas all the other pages containing the grounds for the ultimate decision were not signed;</li>\r\n 	<li>The proceedings were not governed by valid terms of reference (or indeed no terms of reference). The Parties argued that the terms of reference had only been signed by Party A and not the Parties’ representatives.</li>\r\n 	<li>The Parties again put forward the arguments that the proceedings had expired, and the proposition that their legal representative had not been properly authorised to represent them.\r\nWith respect to the Parties’ first argument, the Court of Cassation repeated a long established principle that the most essential element of an arbitration award is the signature, on the award, of the arbitrators who have issued the award. The Court further explained that from a legal point of view; the signature is the only evidence of the existence of the award, and must refer to both the ultimate decision and the grounds reached in support of that ultimate decision. Essentially, a failure by the arbitrator to sign each page of the award would render that award invalid.</li>\r\n</ul>\r\nThe Court of Cassation found one exception to this crucial and important rule. Where the grounds or reasoning for the ultimate decision are continued on the same page as the relief ultimately ordered, and the page containing the ultimate relief is signed, that signature shall be deemed to cover the reasoning for the granting of the relief.\r\nIf the reasoning and grounds for the ultimate decision and the ultimate decision itself appear on separate pages, then all pages of the award should be signed by all arbitrators. Failing this, such award shall be invalid.\r\n\r\nIn this case, the final page of the award, which contained the ultimate decision, also contained part of the reasoning for the ultimate decision. The final page was signed; therefore the signature was deemed to cover both the grounds for the ultimate decision and the ultimate decision itself. Importantly, the Court of Cassation ruled the format of the award complied with Article 212.\r\n\r\nThe Parties’ second argument was dismissed. The Court of Cassation determined that an arbitration agreement is capable of either being incorporated as a clause (“arbitration clause”) in the contract between parties or as a separate independent agreement in the course of a dispute between both parties (this is not to be confused, however, with the doctrine of separability which prescribes that an arbitration clause in a contract is to be treated as separate from that main contract). Importantly, the Court of Cassation held that when the arbitration agreement is incorporated as a clause in the contract it exempts the participants from drafting a separate independent agreement or terms of reference in order to validate the procedure.\r\n\r\nIn this case, the Court of Cassation found that because the Court of First Instance had appointed the arbitrator on the basis that the Agreement contained an arbitration clause, there was no need to enter into separate terms of reference.\r\n\r\nFrom a further procedural standpoint, the Court of Cassation held that there was no provision in the law requiring the arbitrator to document, in the minutes of the arbitration hearings, that he had submitted terms of reference to the parties for their signature.\r\n\r\nThe Parties’ third and final argument was also dismissed. The Court of Cassation, with reference to Article 210 of the Civil Procedure Code, held as follows:\r\n<ul>\r\n 	<li>An agreement on a specific timeframe for the arbitrator to render his award would not prevent a later agreement explicitly or implicitly, extending that timeframe for one or more additional periods, or to authorise the arbitrator to determine the extension. The court may, at the request of the arbitrator or any of the parties, extend that date for the duration of time it deems appropriate for the settlement of the dispute.</li>\r\n 	<li>As such an extension of the time for arbitration, whether pursuant to the agreement of the parties or authorisation of the arbitrators or order of the court, begins to run after completion of the previous period and not separately.</li>\r\n 	<li>The arbitration proceedings shall be deemed to continue (i.e. without expiration) if the parties continue to appear, and neither party expressly pleads that the arbitration proceedings have lapsed, or if the arbitrator requests an extension from the Court before the expiry of the time limit for arbitration (the proceedings will not be held to have expired even if the Court agrees to the extension only after the arbitration time limit has expired – the crucial date is the date the request is made).</li>\r\n</ul>\r\nThe Court found that the arbitrator had requested an extension from the Court within the 6 month period of the proceedings. In this regard, the Parties’ time bar argument was dismissed.'),
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	(78767,4293,'_yoast_wpseo_metadesc','Claim and facts of the case: A Commercial Action was filed before the Dubai Court by a Subcontractor (“Party A”) against (“Parties B and C” together the “Parties”).'),
	(78768,4294,'content','March 2011\r\n\r\n<hr />\r\n\r\nEmad Eldin Farouq, Senior Legal Counsel at the Dubai Land Department, is centrally involved in the process of identifying and facilitating the introduction of new legislation and regulation necessary to promote a stable, advanced and comprehensive system of property law in the Emirate of Dubai.\r\n\r\nEmad met recently with Lisa Dale, Partner &amp; Head of Property at Al Tamimi &amp; Company, to discuss landmark achievements during 2010 and what we can expect during 2011.\r\n\r\n<strong>2010 IN REVIEW</strong>\r\n\r\n<strong>Implementation of the Jointly Owned Property Law</strong>\r\nLaw No (27) of 2007 on Ownership of Jointly Owned Properties in the Emirate of Dubai was issued on 10 December 2007 and laid the foundations of a “strata scheme” form of property ownership in Dubai. The Jointly Owned Property Law contemplated the passing of further rules and regulations providing more detail on how this form of ownership would be implemented and operated.\r\n\r\n<strong>On 13 April 2010, the following Implementing Regulations were published by the Dubai Land Department as ‘Directions’:</strong>\r\n<ul>\r\n 	<li>The Direction for General Regulation Concerning Jointly Owned Properties which sets out a range of consumer and investor protections;</li>\r\n 	<li>The Direction for Jointly Owned Property Declarations which sets out the requirements for Jointly Owned Property Declarations;</li>\r\n 	<li>The Direction Concerning Preparation of Survey Plans in the Emirate of Dubai and Directions for Surveyors which set out standards for the measurement and surveying of Units and Common Area and presentation of Plans; and</li>\r\n 	<li>Direction for Association Constitution introducing a standard form of Constitution to apply to all Owners Associations.</li>\r\n</ul>\r\nWhilst acknowledging that a lot of work remains to be done to fully implement the Directions for the several projects in Dubai’s new ‘freehold areas’, Emad commented that, “the Directions have been well received in the real estate market, and have greatly contributed to structuring the jointly owned projects in accordance with international standards. Developers are working tirelessly to conform to the new regulations.”\r\n\r\n<strong>The Granted Land Decree</strong>\r\nDecree No (4) of 2010 Regulating the Ownership of Land Granted for Industrial &amp; Commercial Purposes in the Emirate of Dubai was issued, and came into effect, on 2 March 2010. This Decree introduced a mechanism to enable holders of industrial or commercial lands in Dubai to convert their granted title to freehold upon payment of a fee assessed against the market value of the land in a deemed ‘unimproved’ condition. The benefits of having freehold title rather than granted title include the ability to mortgage the property to raise capital and to sell the property on the open market (subject to applicable nationality restrictions).\r\n\r\nCommenting on this Decree, Emad said that it had proved to be a timely and welcome initiative, with many applications to upgrade titles having already been received and processed by the Granted Lands Committee at the Dubai Land Department.\r\n\r\n<strong>Executive Council Resolution No (6) of 2010</strong>\r\nExecutive Council Resolution No (6) of 2010 Approving the Executive Regulation of Law No (13) of 2008 Concerning the Regulation of the Interim Real Estate Register in the Emirate of Dubai was issued, and came into effect, on 14 February 2010. This Resolution clarified many of the provisions of Law No (13) of 2008, but in addition it introduced the following:\r\n<ul>\r\n 	<li>grounds upon which a purchaser could seek to terminate a sale contract where the developer is in breach; and</li>\r\n 	<li>grounds upon which RERA can take action to cancel a development project and the process to be followed after such cancellation.</li>\r\n</ul>\r\nOn the subject of purchasers’ rights, Emad welcomed the above initiative but indicated that more needs to be done, as we discuss below. Emad also confirmed that RERA is very active in using the new procedures, which are transparent and fair.\r\n\r\n<strong>Registration of Property in the Name of an Offshore Company</strong>\r\nOn 7 July 2010, the Dubai Land Department signed a Memorandum of Understanding with the Jebel Ali Free Zone Authority to regulate registration of property in the name of offshore companies. Emad explained, “Offshore companies incorporated in foreign jurisdictions such as Isle of Man, Bahamas, British Virgin Islands, Cayman Islands, Gibraltar, Jersey and Mauritius will not be permitted to register ownership to property in Dubai except through a Jebel Ali Offshore Company.\r\n\r\nThe new policy also applies to foreign-owned free zone or offshore companies established in other Emirates, such as in the Sharjah Airport International Free Zone and the Ras Al Khaimah Free Trade Zone”.\r\n\r\nHowever, Emad clarified that the new policy does not apply to the registration of property by the following companies, provided that the property is located in one of Dubai’s “freehold areas” designated for foreign ownership:\r\n<ul>\r\n 	<li>Limited Liability Companies incorporated in Dubai with foreign shareholding of up to 49%;</li>\r\n 	<li>Companies incorporated in any of Dubai’s free zones, such as Jebel Ali Free Zone, Dubai Multi Commodities Centre and TECOM, or in the Dubai International Financial Centre, provided that the relevant free zone authority issues a No Objection Certificate to the Land Department; and</li>\r\n 	<li>Companies incorporated in foreign jurisdictions such as the UK, USA or Germany, which are onshore in that jurisdiction.</li>\r\n</ul>\r\n<strong>The Real Estate Conciliation Committee</strong>\r\nA final welcome initiative during 2010 was the establishment of the Real Estate Conciliation Committee at the Dubai Land Department. Made up of five members, this Committee’s role is to endeavour to reach amicable resolution to disputes between developers and purchasers who are referred to it by the Land Department’s Director General. Emad indicated that the Committee has achieved notable success in a number of cases to date. Given its successful track record, the work of this Committee will continue, with a view to enhancing market stability.\r\n\r\n<strong>AGENDA FOR 2011</strong>\r\n\r\n<strong>Regulating the Professions</strong>\r\nSince the establishment of RERA in 2007, progress has been made to bring about regulation of the various professions connected with the Dubai real estate sector. Such regulation has introduced a regime of registration and licensing, minimum qualification requirements, training and professional conduct rules. So far, developers, real estate brokers and surveyors have been brought under such regulatory regime.\r\n\r\nIn 2011, Emad envisages that Regulations will be passed to regulate two further professions, namely real estate valuers and real estate conveyancers.\r\n\r\nBesides regulating practitioners, the Real Estate Valuation Regulations are expected to introduce a scientific and uniform property valuation methodology which, according to Emad, is very much needed in Dubai to bring about consistency and transparency in the way that land and buildings are valued. Emad indicated that the Dubai Land Department has finalised the draft Regulations and that they are, “currently under review by the Legal Affairs Department and are expected to be issued soon”.\r\n\r\nThe Conveyancing Regulations will be another welcome initiative. The Conveyancing Regulations will introduce the applicable criteria for practitioners to become licensed and registered. It is also anticipated that the Conveyancing Regulations will streamline the registration process for property transactions at the Dubai Land Department by allowing registered conveyancers to access the Land Department’s system online. Again, Emad indicated that the draft Regulations are under final review and are expected to be issued soon.\r\n\r\n<strong>General Reflections</strong>\r\nThe principal objective of the Dubai Land Department when shaping the legislative agenda is to achieve greater stability and fairness in Dubai’s real estate market. In Emad’s words, “The main objective of any law is to regulate the community with a view to helping it to achieve stability and progress”. Much has been achieved since Dubai’s real estate legislative process started in 2006 with the enactment of Law No (7) of 2006 Concerning Real Property Registration in the Emirate of Dubai. However, there is recognition that this is an ongoing process with more laws and regulations to come. In this regard, Emad assures us that the Dubai Land Department is committed to further progress: “I am confident that the Dubai real estate market will emerge from the financial crisis stronger, better and more attractive than before, and in this regard the Dubai Land Department will continue to play its role”.\r\n\r\n<strong>About Emad Eldin Farouq</strong>\r\nEmad joined the Dubai Land Department as Senior Legal Counsel in 2003.  During his seven year tenure with the Dubai Land Department, Emad has played a significant role in the drafting and introduction of the several property laws and regulations that we have seen implemented during this time.\r\n\r\nIn December 2008, Emad was awarded “Best Government In-House Counsel” by the Dubai Corporate Counsel Group.'),
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	(78774,4294,'pageSummary','Emad Eldin Farouq, Senior Legal Counsel at the Dubai Land Department, is centrally involved in the process of identifying and facilitating the introduction of new legislation and regulation necessary to promote a stable, advanced and comprehensive system of property law in the Emirate of Dubai.'),
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	(78778,4294,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Lisa Dale'),
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	(78786,4294,'_yoast_wpseo_metadesc','Emad Eldin Farouq, Senior Legal Counsel at the Dubai Land Department, is centrally involved in the process of identifying and facilitating the introduction of new legislation and regulation necessary to promote a stable, advanced and comprehensive system of property law in the Emirate of Dubai.'),
	(78787,4295,'content','March 2011\r\n\r\n<hr />\r\n\r\n<strong>Claim</strong>\r\nThe Claimant, an individual, filed an action against a local broker (the First Defendant) and a Developer (the Second Defendant) (collectively referred to as “the Defendants”). The Claimant requested the Court to order the Defendants to jointly pay the amount of AED 165,710 plus 12% interest, calculated from the date the legal action was initiated until full payment.\r\n\r\n<strong>Facts of the Claim</strong>\r\nOn 30 January 2008 the Claimant concluded a booking form with the Second Defendant, which related to the reservation of a unit in a certain project. The price of the unit was AED 828,500 (the total amount). The Claimant averred that he made three installment payments which amounted to AED 165,710, to the First Defendant. The Claimant contended that First Defendant provided signed receipts evidencing its receipt of the payments. The Claimant contended that after signing the contract applicable to the unit, the First Defendant signed an exhibit to the contract in its capacity as “seller” and requested the Claimant to deposit the installments in the First Defendant’s bank account.\r\n\r\nFinally, the Claimant contended the Second Defendant failed to start construction of the project and failed to register Claimant’s unit in the Interim Real Estate Register (IRER). The Claimant contended this was a clear violation of the contract, and as a result it should be considered void.\r\n\r\n<strong>Court of First Instance</strong>\r\nThe Court of First Instance ruled in favor of the Claimant and terminated the contract. In addition, the court ordered both Defendants to pay the amount of AED 165,710 plus 12% interest (calculated from the date of the legal action). The Second Defendant appealed the decision to the Court of Appeal.\r\n\r\n<strong>Court of Appeal</strong>\r\nThe Court of Appeal amended the decision handed down by the Court of First Instance and directed both Defendants to pay jointly the amount of AED 165,710 to the Claimant, without interest. The First Defendant appealed to the Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\nBefore the Court of Cassation, the First Defendant argued that the Court of Appeal had erred in its decision, as it failed to rely on a fundamental defense concerning the First Defendant’s purported lack of capacity. The First Defendant contended that the contract had been concluded between the Claimant and the Second Defendant only, and it was not binding on the First Defendant. Further, the First Defendant argued, that in the brokerage contract concluded with the Second Defendant, he had undertaken only to source a third party (the Claimant) to buy a unit in the project, and that his mission was limited to inviting the parties to negotiate the terms and conditions of the contract. The First Defendant further suggested his role in the transaction concluded with the execution of the contract, and he should not be held liable thereafter.\r\n\r\nThe Court of Cassation overturned the lower Court’s decision. The Court held that the First Defendant’s ambit, as a real estate broker, was, limited to sourcing potential brokers without him being liable to the parties during the contract execution stage. Essentially, the Court of Cassation concluded that the First Defendant should be considered as a broker only, and it lacked capacity with respect to the execution of the contract.\r\n\r\nWith respect to the Second Defendant, the Court of Cassation found it had failed both to commence construction work for the project and to register the Claimant’s unit in the interim register. The Court of Cassation found this meant the Second Defendant had failed to adhere to its contractual obligations.\r\n\r\nThe Court of Cassation also determined that the lower Courts erred in considering the First Defendant as a party to the action. This was notwithstanding the fact the First Defendant had received payment from the Claimant – the Court of Cassation held this did not alter the First Defendant’s capacity as broker.\r\n\r\nThe decision of the lower Court, which ordered the First and Second Defendants to pay the Claimant jointly, was overturned. The First Defendant was held not to be liable to the Claimant due to his lack of capacity.');

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	(78791,4295,'content_description','Claim: The Claimant, an individual, filed an action against a local broker (the First Defendant) and a Developer (the Second Defendant) (collectively referred to as “the Defendants”).'),
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	(78805,4295,'_yoast_wpseo_metadesc','Claim: The Claimant, an individual, filed an action against a local broker (the First Defendant) and a Developer (the Second Defendant) (collectively referred to as “the Defendants”).'),
	(78806,4296,'content','March 2011\r\n\r\n<hr />\r\n\r\nRegistering a distinctive and/or easy to remember domain name is only the first step, and probably the easiest step in effective domain name governance.  Like trademarks, domain names must be protected.  However, in addition, domain name administration must be given attention.\r\n\r\nOnce a domain name is secured, it should be managed properly. This can be achieved through ensuring selected individuals within the organization are given access to the account and that suitable domain continuity plans are put in place. By doing so, this may pre-empt any abuse of account information. As an example, individuals with access to the account, may leave the organization without notice and not hand over the administrative details for the series of domain names. These people may assume control of the domain and may unilaterally change details or information pertaining to the domain name such as ownership rights of the account. The result would be an apparent change of ownership from the rightful owner to a third party. This can result in the company being held ‘to ransom’.\r\n\r\nIn as much as there is traditional trademark infringement where trademarks are used without authorization by the trademark owner, similar principles apply in respect of domain names. Third parties unrelated to the owner of the website could obtain registration of a domain name which is identical or similar to either a domain name or trademark belonging to another party.  Such activities are commonly referred to as ‘cyber squatting’.\r\nIn addition to cyber squatting, there is also a risk of activities referred to as ‘phishing’.  These activities are designed to steal user identities where users are deceived into disclosing personal data through websites, emails or phone calls. Where websites are used, the domain names are often similar to the legitimate websites.  These deceptive websites tend to incorporate trademarks belonging to the trademark owner and information from the legitimate websites. The end result is that the look and feel of the deceptive website is similar to the legitimate website. Once users are deceived into interacting on deceptive websites, personal information is entered and disclosed into the system.\r\n\r\nE-commerce in the Middle East, including the United Arab Emirates, is growing rapidly.  Domain name disputes are now becoming more common in the UAE and the relevant authority which regulates and operates the .ae domain names in the UAE is the .aeDA. This authority was established in 2007 by the Telecommunications Regulatory Authority (TRA). The .aeDA is responsible for setting up and enforcing policies with regard to the operation of .ae ccTLD. It also facilitates disputes on domain names.\r\n\r\nAs mentioned above, the choice of a domain name often takes into account ownership of and reference to a trademark already in use. This is reflected in the general eligibility criteria of the .ae domain name policy. The policy states that the grant of a domain name is not a grant for any intellectual property rights which are proprietary rights.  Accordingly, the applicant for the domain name has to ensure they have the right to use the domain name and that it will not violate any 3rd party intellectual property rights. Where the domain name sought is classified as ‘restricted’ such as ‘co.ae’, ‘net.ae’, ‘org.ae’, ‘sch.ae’, ‘ac.ae’, ‘gov.ae’ and ‘mil.ae’, there is a positive requirement that the domain name should incorporate one of four criteria, a prior trademark registration being one of them. The existing domain name policy recognizes that trademarks are often taken into account when domain names are chosen.\r\n\r\nThe same principle is reflected in the .aeDA dispute resolution policy where recognition is given to the proprietary rights subsisting in a trademark which, as mentioned, is normally the element upon which a brand is built upon.\r\n\r\n<strong>The .aeDA policy mirrors the Uniform Dispute Resolution Policy (UDRP) by ICANN where a third party, normally the trademark owner, would raise certain grounds for his complaint, for example:</strong>\r\n<ul>\r\n 	<li>that the domain name is identical or confusingly similar to his trademark in which he has rights; or</li>\r\n 	<li>that the domain name holder has no rights or legitimate interests in the domain name; or</li>\r\n 	<li>that the domain name has been registered and or used in bad faith.</li>\r\n</ul>\r\n<strong>The .aeDA dispute resolution policy provides instances of what amounts to evidence of registration or use in bad faith. Examples as follows:</strong>\r\n<ul>\r\n 	<li>The domain name holder secures the domain name for the purposes of selling, renting or transferring the domain name to the trademark owner for an amount exceeding the cost directly related to the domain name.</li>\r\n 	<li>The domain name is secured to prevent the trademark owner from incorporating his trademark in a corresponding domain name.\r\nThe domain name has been secured primarily for the purpose of disrupting the business of a competitor.</li>\r\n 	<li>The domain name is used to divert users to that website by creating a likelihood of confusion with the complainant’s trademark in terms of origins, affiliation or endorsement by the complainant trademark owner.</li>\r\n</ul>\r\nThe .aeDA dispute resolution policy does not require that the complainant’s trademark be registered.  However proof of registration of the trademark in the UAE would be cogent evidence of the complainant’s proprietorship in the trademark. This can be inferred from the evidence required of the domain name holder where he may show he or his organization is commonly known by the domain name even if he has not acquired any rights in the trademark which forms or is part of the disputed domain name.\r\n\r\nReference is made to a dispute brought under the WIPO Arbitration and Mediation Center by the Abu Dhabi Future Energy Company PJSC, as the complainant against an individual, John Pepin, in relation to the disputed domain names masdarcity.com and masdarcity.net. It was taken into account by the panel that both the registered and unregistered trademark rights of the complainant where regard was also had to the commercial activities of the complainant upon which the trademark MASDAR was used in relation to.  In particular, the panel held ‘A complainant may assert unregistered trademark rights by showing that the name has become a distinctive identifier associated with the complainant or its goods and services. Relevant evidence of such ‘secondary meaning’ may include the nature and extend of advertising, consumer surveys and media recognition’. Given that the .aeDA dispute resolution policy is similar to the UDRP, similar outcomes can be expected from similar disputes.\r\n\r\nThe panel also made reference to the common law trademark rights, however, common law is not applied in the UAE.  It is suggested a local panel considers the statutory provisions under the Commercial Transaction Code which prohibits unfair competition where among others ‘a trader may not disclose such matters as are inconsistent with the reality regarding the origin or description of his goods, or any other matters pertaining to their nature’.. ‘nor may he resort to any other misleading means, with the intent thereby to usurp the customers of a  competitor trader; or else, he shall be liable for compensation’.\r\n\r\nTrademark owners which have built a brand around their trademarks are able to protect their brands when used without authorization by another party within the context of domain name registered or disputed in the UAE. However, organizations should ensure that their ‘house is in order’ when it comes to the administration of domain names. In this way, your business can achieve effective domain name governance.'),
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	(78829,4297,'content','March 2011\r\n\r\n<hr />\r\n\r\nThe shape of a product is often significant value to a business. This article briefly considers the use of trade mark law and industrial design law to secure the intellectual property value of a product with a commercially significant shape.\r\n\r\n<strong>INTRODUCTION TO TRADEMARKS AND INDUSTRIAL DESIGNS:\r\n</strong>\r\n<strong>Trademarks:</strong>\r\nA ‘trademark’ is a word, name, sign, symbol, colour or shape which is used to identify a particular product or service offered by a particular manufacturer or from a particular source.\r\n\r\nA trademark distinguishes the product of a particular manufacturer from similar products offered by others. The owner of a registered trademark has the right to prevent others from using the same or similar trademark on their products.\r\n\r\nA registered owner of a trademark can prevent use and registration of an infringing mark based on the basic rule: a trademark is not available for use and registration if it resembles a trademark already registered and the resemblance is likely to cause confusion, mistake or deception.\r\n\r\n<strong>Industrial Designs:</strong>\r\nAn ‘industrial design’ is the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.\r\n\r\nIndustrial designs are applied to a wide variety of products of industry and handicraft, from technical and medical instruments to watches, jewelry, and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.\r\n\r\nTo be protected under most national laws, an industrial design must appeal to the eye. This means that an industrial design is primarily of an aesthetic nature, and does not protect any technical or functional features of the article to which it is applied.\r\n\r\nUnlike trademarks, to be protected, an industrial design must be novel.  The display of the product in public or in the marketplace will destroy the novelty of a design.  Thus, protection for an industrial design should be in place before the launch of the product in question.  In this regard, it is pertinent to note there is no requirement for the industrial design to be registered to meet the novelty requirement.  An application for registering the design lodged properly before the industrial design registry of the relevant country is sufficient. Once an industrial design is applied in a country which is member to the Paris Convention, a six months grace period will be available for the applicant to apply for the design in other member countries of interest, claiming priority from the base application.  Launch of the product in any such countries during the six months priority period will not destroy the novelty of the design.\r\n\r\n<strong>Shape Trademark vs. Industrial Design:</strong>\r\nFrom the definition of a trademark above, it is noted that shape of a product is also qualified to be protected as a trademark.  Although shape trademark protection is recognized by most of the countries in the GCC, industrial design is the correct form of protection to protect the shape and configuration of an article.\r\n\r\nThe ornamental or aesthetic nature of an article can be protected by registering a shape trademark.  One benefit of protecting a shape trademark is the term of protection of a trademark is perpetual, as it can be renewed any number of times, whereas the protection term of an industrial design is fixed to a maximum of 15 years in most jurisdictions. Furthermore, in the GCC, courts are familiar with trademarks and thus laws for enforcing trademark rights are more developed for the laws for design rights.  In fact, design regimes are still in the developing stage.\r\n\r\nBased on the above, ensuring protection is in place for an article by way of shape trademark registration, as well as industrial design registration, can be considered, subject to both the forms of protection being available in the country of interest.  Other considerations are significance of the countries in question to the business and the budget.\r\n<table border=\"1\" width=\"450\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\"><strong>Country</strong></td>\r\n<td><strong>Shape Trademark</strong>\r\n<strong>registration</strong></td>\r\n<td><strong>Industrial Design</strong>\r\n<strong>registration</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Bahrain</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Kuwait</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Oman</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Qatar</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>No</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Saudi Arabia</strong></td>\r\n<td><strong>No</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>UAE</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\nThe table above shows the status of the GCC countries in terms of registrability of shape trademarks or industrial designs or both.\r\n\r\nHow similar the infringing products should be in order to take legal action is always a question of degree. However, as a general rule, an object with a design, that is substantially similar or confusingly similar to the design claimed in an industrial design or in a shape trademark cannot be made, used, copied or even imported into the country in question.'),
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	(78847,4297,'_yoast_wpseo_metadesc','The shape of a product is often significant value to a business. This article briefly considers the use of trade mark law and industrial design law to secure the intellectual property value of a product with a commercially significant shape.'),
	(78848,4298,'content','March 2011\r\n\r\n<hr />\r\n\r\nIn discussing the aforementioned question, we will refer to the UAE Federal Law No. 31 for 2006 (the ‘UAE Patent Law’), the Paris Convention for the Protection of Industrial Property (the ‘Paris Convention’) and the Patent Cooperation Treaty (‘PCT’).\r\n\r\nThe UAE Patent Law does not provide a clear-cut answer, although Article 11 (1) of the UAE patent law provides some guidance:\r\n\r\nAn application may contain a request to claim priority from an application that has been filed in another state being a party of an agreement or a treaty with the UAE. In this case, the application date and number of the corresponding filed application should be indicated together with the name of the state.\r\n\r\nUpon interpreting Article 11 (1-2) of the UAE patent law, we find that there are two conditions to claim priority in the UAE:\r\n<ul>\r\n 	<li>The priority right shall be claimed from a corresponding filed patent application in another state being a party of an agreement or a treaty with the UAE; and</li>\r\n 	<li>The priority application date, number and state shall be indicated in the UAE patent application.</li>\r\n</ul>\r\nAccordingly, any application filed in another state being a party of an agreement or a treaty with the UAE is adequate to establish the right to claim priority, regardless of the subsequent fate of this application.\r\n\r\nOn the other side we find that article 4 A(2-3) of the Paris Convention provides clear guidance for claiming priority from invalid patent applications by stating that:\r\n\r\n2. Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority.\r\n\r\n3. By a regular national filing it is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.\r\n\r\nIn short, the right of priority is based on a regular national filing whatever the subsequent fate of the application. With reference to the priority right under the PCT, Article 8(1) and (2)(a) of the PCT states:\r\n\r\n1.The international application may contain a declaration claiming the priority of one or more earlier applications filed in or for any country party to the Paris Convention for the Protection of Industrial Property.\r\n\r\n2. a.  The conditions for, and the effect of, any priority claim declared under paragraph (1) shall be as provided in Article 4 of the Stockholm Act of the Paris Convention for the Protection of Industrial Property.\r\n\r\nThe right of priority can be claimed in the UAE from an invalid (withdrawn, abandoned or rejected) patent application.'),
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	(78852,4298,'content_description','In discussing the aforementioned question, we will refer to the UAE Federal Law No. 31 for 2006 (the ‘UAE Patent Law’), the Paris Convention for the Protection of Industrial Property (the ‘Paris Convention’) and the Patent Cooperation Treaty (‘PCT’).'),
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	(78854,4298,'pageSummary','In discussing the aforementioned question, we will refer to the UAE Federal Law No. 31 for 2006 (the ‘UAE Patent Law’), the Paris Convention for the Protection of Industrial Property (the ‘Paris Convention’) and the Patent Cooperation Treaty (‘PCT’).'),
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	(78858,4298,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Bassam Al Azzeh'),
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	(78860,4298,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','b.alazzeh!@tamimi.com'),
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	(78870,4298,'_yoast_wpseo_metadesc','In discussing the aforementioned question, we will refer to the UAE Federal Law No. 31 for 2006 (the ‘UAE Patent Law’), the Paris Convention for the Protection of Industrial Property (the ‘Paris Convention’) and the Patent Cooperation Treaty (‘PCT’).'),
	(78871,4299,'content','March 2011\r\n\r\n<hr />\r\n\r\nThe (.sa) domain is a coveted one as it is arguably the definitive identifier in cyberspace as the domain of choice for entities connected to Saudi Arabia, who would want to own a (.sa) domain name in cultivating one’s cyber presence in reaching the lucrative Saudi Arabia market.\r\n\r\nThe Saudi Network Information Centre (“SaudiNIC”) has announced that the all important (.sa) domain name regime is now available for registration.  This means that applicants wishing to own domain names using the (.sa) domain such as (<a href=\"http://www.yourcompany.sa/\">www.yourcompany.sa</a>) may now register their domain names in Saudi Arabia in two phases as follows:\r\n\r\n<strong>Sunrise Phase</strong>\r\nThis Sunrise Phase runs from January 10, 2011 to March 7, 2011. This period represents a priority period for existing Third Level (3LD) Domain Name Registrants who had registered their 3LD domain name before the Sunrise Phase.\r\n\r\nOnly qualified registrants (individual or entity) may apply during the Sunrise Phase to register a (.sa) Second Level (2LD) domain name with a label identical to that of their existing 3LD domain name provided that the 3LD domain name was registered before the Sunrise Phase and its registration application date was before the qualification date.\r\n\r\nThus, those owning existing registrations for e.g. <a href=\"http://www.yourcompany.com.sa/\">www.yourcompany.com.sa</a> may apply for <a href=\"http://www.yourcompany.sa/\">www.yourcompany.sa</a>\r\n\r\n&nbsp;\r\n\r\nWhere two applications from different qualified registrants are received for the same 2LD domain name during the Sunrise Phase then priority will be given first to governmental and semi-government organisations i.e. (gov.sa) and then priority will be based on the earliest registration date.\r\n\r\n<strong>Landrush Phase</strong>\r\nFollowing the Sunrise Phase, the Landrush Phase begins where applicants (individual or entity) can register (.sa) 2LD domain names on a strictly (first come, first served) basis.\r\n\r\nThe usual requirements of domain name registration apply i.e. the applicant can either be:\r\n<ul>\r\n 	<li>An entity physically located in Saudi Arabia;</li>\r\n 	<li>A natural person, not underage, with a Saudi national identification card or equivalent document issued by the Ministry of Interior of Saudi Arabia;</li>\r\n 	<li>An entity with a registration or license issued by a pertinent authority in Saudi Arabia; or</li>\r\n</ul>\r\nAn owner of a trademark or trade name that is registered in Saudi Arabia.\r\nImportantly, foreign trade mark owners should note that if they do not have a business presence or licensed to operate in Saudi Arabia, they must have a trade mark or trade name registration in Saudi Arabia.'),
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	(78873,4299,'lawUpdateArticleMonth','4282'),
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	(78875,4299,'content_description','The (.sa) domain is a coveted one as it is arguably the definitive identifier in cyberspace as the domain of choice for entities connected to Saudi Arabia, who would want to own a (.sa) domain name in cultivating one’s cyber presence in reaching the lucrative Saudi Arabia market.'),
	(78876,4299,'_content_description','field_59b641c07f473'),
	(78877,4299,'pageSummary','The (.sa) domain is a coveted one as it is arguably the definitive identifier in cyberspace as the domain of choice for entities connected to Saudi Arabia, who would want to own a (.sa) domain name in cultivating one’s cyber presence in reaching the lucrative Saudi Arabia market.'),
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	(78888,4299,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(78889,4299,'_yoast_wpseo_metadesc','The (.sa) domain is a coveted one as it is arguably the definitive identifier in cyberspace as the domain of choice for entities connected to Saudi Arabia, who would want to own a (.sa) domain name in cultivating one’s cyber presence in reaching the lucrative Saudi Arabia market.'),
	(78890,4300,'content','March 2011\r\n\r\n<hr />\r\n\r\nThe Dubai First Instance court recently issued a decision, in favour of one of our clients, quashing the claimant’s claim of compensation for damaged cargo after it fell from one of the port’s cranes. This verdict is so important, because for the first time,the court followed a different approach whereby they accepted that actual delivery is delivery stipulated in the Bill of Lading as opposed to construing physical delivery as the only legal delivery. Indeed, the Dubai First Instance court has deviated from the previous established legal court doctrine which separated the “discharge” operation from the “delivery”, whereby it was considered that delivery could take place “by placing the cargo, in its B/L described status, at the actual possession of the receiver or its agent in manner which would enable such receiver or agent to examine the cargo even if the cargo was not yet discharged.”<sup> 1 </sup>\r\n\r\nAccording to previous Dubai Court of Cassation rulings, delivery is not:\r\n\r\na. the notification of the receiver that its cargo has arrived;\r\nb. the hand over of the DO  to the receiver;\r\nc. the discharge of the cargo at the port which would constitute a delivery as per the terms of Article 275 of the Law.\r\n\r\n“The responsibility of the carrier on the cargo shall end by placing such cargo, in its Bill of Lading described status, at the actual possession of the receiver or its agent in manner which would enable such receiver or agent to examine the cargo.” <sup>2 </sup>\r\n\r\nThe Court went even further by considering that “the action of discharging the cargo, in itself, and placing it at the port shall not be considered as a delivery which would relieve the carrier from its responsibility of preserving the cargo. Also, the non-attendance of the receiver to take delivery shall not relieve the carrier from its responsibility to preserve the cargo until such time delivery has taken place or the carrier has placed the cargo under the hands of a court appointed custodian as per article 269 <sup>3 </sup>  of the Law.”<sup> 4 </sup>\r\n\r\nThe consequence of this principal extended the carrier’s liabilities towards the receiver and the non-direct responsibility of port authorities on any damages on the cargo even if such cargo “was delivered to the port authorities and stored at it’s storage”  as long as the cargo was not physically delivered to the receiver.\r\n\r\nHowever; this has clearly been changed by Dubai First Instance Court ruling No. 812/2009 Plenary Commercial dated 22/12/2010 when the court considered cargo delivery legally, physically and actually performed and concluded by the carrier when the cargo was delivered to the receiver as per the terms of the B/L . The verdict went on further to consider the cargo damage as the responsibility of the receiver and port authorities as the carrier handed over the cargo safe and sound as per the terms of the B/L. This decision disregarded the actual delivery principal followed previously by the courts and has finally accepted the B/L as a contract determining the carrier’s liability towards the receiver.\r\n\r\nAlthough this decision is not yet final, it is considered a very welcomed development confirming the carrier’s liabilities towards the receiver.\r\n\r\n<sup>1 </sup>Dubai Cassation Court ruling No. 268/1997 dated 8/11/1997.\r\n\r\n<sup>2 </sup>Dubai Cassation Court ruling No. 268/1997 dated 8/11/1997.\r\n\r\n<sup>3 </sup>When a party having the right to take delivery of the goods does not attend to take delivery or if such party refuses to take delivery of the same the carrier shall have the right to apply to the competent court for an authorization to place the cargo with a custodian appointed by the court. The carrier shall have the right request the sale of all or part of the cargo against its freight.\r\n\r\n<sup>4 </sup>Dubai Cassation Court ruling No. 268/1997 dated 8/11/1997.'),
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	(78894,4300,'content_description','The Dubai First Instance court recently issued a decision, in favour of one of our clients, quashing the claimant’s claim of compensation for damaged cargo after it fell from one of the port’s cranes.'),
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	(78896,4300,'pageSummary','The Dubai First Instance court recently issued a decision, in favour of one of our clients, quashing the claimant’s claim of compensation for damaged cargo after it fell from one of the port’s cranes.'),
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	(78900,4300,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Omar Omar'),
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	(78902,4300,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','o.omar@tamimi.com'),
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	(78912,4300,'_yoast_wpseo_metadesc','The Dubai First Instance court recently issued a decision, in favour of one of our clients, quashing the claimant’s claim of compensation for damaged cargo after it fell from one of the port’s cranes.'),
	(78913,4301,'content','March 2011\r\n\r\n<hr />\r\n\r\n<strong>OBJECTIVE</strong>\r\nThe objective of this article is to introduce Dubai Techno Park (Techno Park) as jurisdiction in which businesses can set up.  This jurisdiction offers many benefits associated with operating in both freezones and the mainland .\r\n\r\n<strong>Introduction </strong>\r\nDubai Techno Park was formed by an Emiri decree in 2002 by His Highness Sheikh Mohammed bin Rashid Al Maktoum, UAE Vice President, Prime Minister and Ruler of Dubai as a fully owned subsidiary of Economic Zones World. Dubai Techno Park is an industrial complex, located in the heart of Dubai’s industrial zone  and provides high standard facilities. It covers an area of 21 million Sqm. of land and is considered as the only technology park in the region located between a world-class seaport and an international airport. The main aim of Techno Park is to attract major manufacturing and industrial companies to set up their industrial units in Dubai and be able to penetrate the UAE and GCC market.\r\n\r\nCurrently, Techno Park is home to some of the world’s most high-profile companies specializing in technology, oil, gas and petrochemical industry and other industries which makes Techno Park one of the largest industrial hubs in the Middle East.\r\n\r\n<strong>Is Technopark a Free Zone?</strong>\r\nIt is generally assumed that Techno Park is a free zone which is not the case. Entities established in Techno Park are treated as if established in the main land of Dubai, i.e. such entities are able to sell and distribute their products outside Techno Park without payment of the custom duty applied in case of setting up a company in one of the free zone in Dubai.  There is the added advantage that a foreign company can register a branch to carry on industrial activities in its manufacturing unit which is not permissible on the mainland of Dubai.\r\n\r\nThus, by registering a branch of a foreign company in the Techno Park, a foreign company will enjoy 100% ownership and access to Dubai and UAE market. Similar to a free zone the Techno park provides a full range of administration services such as issuing residence visas for employees of entities to be established within Techno Park.\r\n\r\n<strong>TYPES OF COMPANIES WHICH CAN BE FORMED AT TECHNO PARK</strong>\r\n\r\nA Limited Liability Company\r\nThe number of shareholders should be two to fifty. The liability of the shareholders is limited to their share participation in the capital, however, at least 51% must be owned by a UAE national.\r\n\r\n<strong>A Sole Establishment </strong>\r\nSole establishment should be owned by a sole owner who is liable for all the establishment liabilities. The owner must be a GCC or UAE national.\r\n\r\n<strong>A Civil Company</strong>\r\nFor activities involving the use of professional skill acquired by education and experience in a specific field such as business consultancy, a civil company can be formed as civil partnerships in accordance with the Federal Civil Transactions Law No. (5) of 1985 with its amendments.  Professional companies may be 100% foreign owned.\r\n\r\n<strong>Branch Office</strong>\r\nBranch offices can be set up by the following:\r\n<ul>\r\n 	<li>A Branch of a Free Zone Establishment (FZE).</li>\r\n 	<li>A Branch of a Free Zone Company (FZCO).</li>\r\n 	<li>A Branch of an L.L.C. (covers all Limited Liability Companies in UAE).</li>\r\n 	<li>A Branch of a Sole Establishment based in the Emirate of Dubai.</li>\r\n 	<li>A Branch of a GCC Company.</li>\r\n 	<li>A Branch of a Foreign Company.</li>\r\n</ul>\r\n<strong>TO RECAP</strong>\r\n\r\nBenefits of Techno Park:\r\n<ul>\r\n 	<li>100% foreign ownership of industrial units in case of branch of a foreign or a free zone company.</li>\r\n 	<li>0% percent corporate tax rate.</li>\r\n 	<li>Capital and profits may be repatriated.</li>\r\n 	<li>No currency restrictions.</li>\r\n 	<li>No restrictions on hiring foreign employees.</li>\r\n 	<li>Long-term lease agreement up to 15 years.</li>\r\n 	<li>One stop shop (including licensing and related Government services).</li>\r\n 	<li>World-class infrastructure and single-window clearance</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nThe advantages associated with setting up industrial units in the Techno Park are aligned with the objective of the Government of Dubai to make the Emirate a prime location for industrial activity. Techno Park is an ideal jurisdiction to set up for industrial activity in a free zone environment with the benefits normally associated with a mainland entity.'),
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	(78917,4301,'content_description','OBJECTIVE: The objective of this article is to introduce Dubai Techno Park (Techno Park) as jurisdiction in which businesses can set up.   \r\n'),
	(78918,4301,'_content_description','field_59b641c07f473'),
	(78919,4301,'pageSummary','OBJECTIVE: The objective of this article is to introduce Dubai Techno Park (Techno Park) as jurisdiction in which businesses can set up.'),
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	(78921,4301,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/march-6/doing-business-in-techno-park.html'),
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	(78927,4301,'_yoast_wpseo_metadesc','OBJECTIVE: The objective of this article is to introduce Dubai Techno Park (Techno Park) as jurisdiction in which businesses can set up.'),
	(78928,4302,'content','March 2011\r\n\r\n<hr />\r\n\r\nThe jurisdiction of the UAE courts is regulated by Law No. 11 of 1992 (the “Civil Procedure Law”). Articles 20, 21 and 24 of the Civil Procedure Law provide for original jurisdiction and power to the UAE courts to accept and hear any dispute in defined circumstances. These Articles are characterized as Pubic Order provisions and any agreement contrary to them dealing with foreign law and jurisdiction is void.\r\n\r\nLawyers, across the GCC, are often advising on commercial transactions that must take the laws of multiple jurisdictions into account.\r\n\r\nRecently, the Abu Dhabi Court of Appeal handed down a decision in once such transaction that has serious implications for transactions with a potential UAE nexus that are based on documentation governed by foreign law and selecting foreign courts.\r\n\r\nUsing several articles of the Civil Procedure Law the court took original jurisdiction based on a promissory note given by a party with an Abu Dhabi address that was ancillary to a transaction with multiple GCC parties and governed by English law. In taking such jurisdiction, the court also applied UAE law to the promissory note, notwithstanding the parties’ express intent to be governed by English law and subject to English jurisdiction. The analysis of this case follows.\r\n\r\n<strong>Background </strong>\r\nParty A and Party B entered into a Master Agency Agreement for the sale of commodities covered by an agency contract (the “Agreement”) whereby Party A appointed Party B to act as its agent for the purpose of investing Party A’s money in purchasing commodities from suppliers on a COD basis then selling them to purchasers for immediate delivery on a deferred payment basis on the terms and conditions set out in the Agreement.\r\n\r\n<strong>Claim </strong>\r\nParty A brought legal action before the Abu Dhabi Court of First Instance against Party B seeking judgment against Party B for USD 33 Million or its UAE Dirham equivalent of AED 121 Million along with an order for court fees, costs and advocate’s fees.\r\n\r\n<strong>Facts of the Claim </strong>\r\nOn several dates, Party B was given certain amounts of money under the terms of the Agreement and purchased international commodities from different suppliers on behalf of Party A then sold them on its behalf to itself on the basis that payment would be made to Party A at its offices in the UAE. As a result, Party B executed four promissory notes in favour of Party A of total value USD 33 Million.\r\n\r\nParty B defaulted on its installments due to Party A which resulted in the acceleration of payments under the Agreement.\r\n\r\nA few weeks later, Party A served Party B with a notice of acceleration under the Agreement and requested immediate payment for all investment transactions involving the promissory notes.\r\n\r\nParty A filed an application for the provisional attachment of Party B’s assets and accordingly the court issued an order directing the provisional attachment of all Party B’s funds in banks in the UAE up to the amount of USD 33 Milliom or its UAE Dirham equivalent.\r\n\r\nParty A holds promissory notes in the amount of the debt which were due and payable at its UAE offices.\r\n\r\n<strong>Abu Dhabi Court of First Instance </strong>\r\nAbu Dhabi Court of First Instance ruled in favour of Party A by ordering Party B to pay, to Party A, the sum of USD 33 Milliom or its UAE Dirham equivalent at the date of payment while confirming a prima facie provisional attachment up to the amount of the award, together with costs and minimal advocate’s fees.\r\n\r\nParty B subsequently appealed to the Abu Dhabi Court of Appeal.\r\n\r\n<strong>Abu Dhabi Court of Appeal </strong>\r\nParty B requested the Court to reverse the decision of Abu Dhabi Court of First Instance on the following grounds:\r\n<ul>\r\n 	<li>Error in the application and interpretation of the law. Party B submitted that the UAE Courts have no jurisdiction over the matter. In addition, Party B noted the parties’ contractual agreement to English law and jurisdiction except to the extent it may conflict with Islamic Sharia.</li>\r\n 	<li>Because Jurisdiction is matter of public policy and Party B may raise a plea as to jurisdiction at any stage of the proceedings, the court was requested to declare of its own motion that it had no jurisdiction in the matter.</li>\r\n 	<li>The Statement of Claim did not indicate an address or domicile for Party B in the UAE and gave it’s address as Al Khobar, Saudi Arabia, meaning that Party B is a foreign company with no domicile or residence in the UAE giving nexus for UAE Courts to be vested with jurisdiction.</li>\r\n 	<li>The action does not concern property in the UAE but relates to the performance of an agency contract outside the UAE in the Kingdom of Saudi Arabia.</li>\r\n 	<li>The UAE Courts have no jurisdiction over the matter pursuant to Articles 20 and 21 of the Civil Procedure Code and that the Agreement was performed in Saudi Arabia where Party B is domiciled.</li>\r\n 	<li>The Court dismissed Party B’s argument and in doing so, ruled in favour of Party A according to the following facts and interpretation of Articles 20, 21 and 24 of the Civil Procedure Code:</li>\r\n 	<li>The Court noted the provision for English law and English jurisdiction in the Agreement signed between Party A and Party B. The provision provides that: “This Agreement shall be governed by and executed and performed in accordance with English law except to the extent that it may conflict with the provisions and principles of Islamic Sharia and the parties hereby submit to the jurisdiction of the English courts for the purposes of any proceedings arising out of or relating to this Agreement.”</li>\r\n 	<li>The Court noted that the four promissory notes state that “the sum payable hereunder is payable to Respondent/ Abu Dhabi Islamic Bank of P.O. Box [ x ], Abu Dhabi at your offices in the UAE”</li>\r\n</ul>\r\n<strong>The Court opined as follows:</strong>\r\nJurisdiction is part of public policy and is an attribute of sovereignty, UAE Courts are necessarily excluded from hearing cases involving property abroad but otherwise retain original jurisdiction in the situations described in Articles 20 and 21 of the Civil Procedure Code and any agreement contrary to Articles 20 and 21 dealing with foreign jurisdiction is void as per Article 24 of the Civil Procedure Law.\r\n\r\n<strong>ARTICLE 20 PROVIDES:\r\n</strong>“With the exception of actions in-rem concerned with real estate abroad, the courts have the power to hear actions brought against UAE citizens and against ex-patriates having an address or place of residence in the country.”\r\n\r\n<strong>ARTICLE 21 PROVIDES:\r\n</strong>“The courts have the power to hear an action against a foreigner with no address or place of residence in the country in the following circumstances:\r\n<ul>\r\n 	<li>If he has an elected address in the country.</li>\r\n 	<li>If the action relates to assets in the country or to a citizen’s estate or to a legacy mad  in the country.</li>\r\n 	<li>If the action relates to an obligation concluded or executed or to be executed in the country or to a contract to be legalized in the country or to a death occurring in the country or to a bankruptcy declared in a court of the country.</li>\r\n 	<li>If the action is brought by a wife with an address in the country against a husband who previously had an address in the country.</li>\r\n 	<li>If the action relates to support in respect of a parent, wife, minor, child in guardianship, affiliated child or personal or financial guardianship, if the party requesting support, the wife, minor or child in guardianship has an address in the country.</li>\r\n 	<li>If the action is concerned with the registration of births, marriages and deaths and the plaintiff is a citizen or an alien with an address in the country, where the defendant has no known address abroad or where national law must apply in the action; 7. If one of the defendants has an address or a place of residence in the country.”</li>\r\n 	<li>Based upon the jurisdiction given to the UAE Courts under Article 20 of the Civil Procedure Code, except for actions in rem concerning real property abroad, UAE Courts shall hear actions brought against UAE citizens and aliens who maintain domicile or a place of residence in the UAE.</li>\r\n 	<li>This general principle of jurisdiction specifies the circumstances in which UAE Courts have jurisdiction. Under Article 21 of the Civil Procedure Law, the UAE Courts shall have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE in the following cases.</li>\r\n 	<li>if he has elected domicile in the UAE;</li>\r\n 	<li>if the proceedings concern property in the UAE, inheritance accruing to a citizen or an estate opened therein; and</li>\r\n 	<li>if the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE, a contract to be attested in the UAE, an event that occurred in the UAE or bankruptcy declared by a UAE Court.</li>\r\n 	<li>According to Article 21, UAE courts have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE if the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE.</li>\r\n 	<li>The four promissory notes in question confirm that they are payable at Party A’s offices in the UAE noting that Party A’s head office is in Abu Dhabi. The place of performance is accordingly Party A’s premises in Abu Dhabi. Therefore, the Agreement which states that the performance of the contract shall be governed by English law contradicts the international jurisdiction of the UAE Courts and is void according to the aforementioned Article 24 of the Civil Procedure Law. Party A may therefore bring the instant action before an appropriate court within Abu Dhabi’s independent court system, including the Court of First Instance, against Party B as an alien who maintains no domicile or residence in the UAE as per the exclusion under Article 21/3. Since jurisdiction in the matter belongs to the Abu Dhabi Court of First Instance, appeal was dismissed.</li>\r\n</ul>\r\n<strong>ARTICLE 24 PROVIDES:\r\n</strong>“Any agreement contrary to the provisions of this section is a nullity”.\r\n\r\nBased on the pointes outlined above, the Abu Dhabi Court of Appeal decided to admit the appeal in form and, on the merits, to dismiss the appeal and uphold the appealed decision with court fees, costs and minimal advocates’ fees.'),
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	(78934,4302,'pageSummary','The jurisdiction of the UAE courts is regulated by Law No. 11 of 1992 (the “Civil Procedure Law”).'),
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	(78936,4302,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/march-6/abu-dhabi-court-choice-of-law-may-not-be-a-choice.html'),
	(78937,4302,'_currentURL','field_59d35123ab1e7'),
	(78938,4302,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ahmad Al Awamleh'),
	(78939,4302,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(78940,4302,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.alawamleh@tamimi.com'),
	(78941,4302,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(78942,4302,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(78943,4302,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(78944,4302,'lawUpdateArticleNoWriters','1'),
	(78945,4302,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(78946,4302,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(78947,4302,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(78948,4302,'lawUpdateArticlePractices','1'),
	(78949,4302,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(78950,4302,'_yoast_wpseo_metadesc','The jurisdiction of the UAE courts is regulated by Law No. 11 of 1992 (the “Civil Procedure Law”).'),
	(78951,4303,'content','March 2011\r\n\r\n<hr />\r\n\r\nQatar has had a busy start to the New Year; Asian Cup, Qatar Open, Qatar Women’s Tennis, the excitement of the FIFA 2022 victory bid, and a list of real estate development projects that will reshape the landscape and infrastructure of this land.\r\n\r\nSo, what does a tiny oil rich nation with worlds largest reserves of LNG (liquefied natural gas) do with its wealth?  It builds a future by educating its people, providing access to the best training and medicine available, and builds an infrastructure to be proud of.  This historical nation has certainly earned its place in history. As a result of the incredible growth in Qatar, businesses locally and from around the globe have enjoyed gains.\r\n\r\nAl Tamimi &amp; Company has recognized the opportunity for growth in Qatar and has been taking steps to further strengthen its position as a top law firm in Qatar.  In December, Jay Fortin joined Al Tamimi &amp; Company International as a Partner and the head of the Qatar office. Formerly of Patton Boggs, Jay has a wealth of legal experience internationally and within the GCC region.  He has taken great steps in setting up a solid approach to expand our presence in Qatar.\r\n\r\nWith the growth Al Tamimi is experiencing in Qatar, it has been decided that Al Tamimi will be moving its current office to a more centralized area in the main business district of Doha. Having now identified several suitable QFC approved buildings, which will accommodate our growing team, we have engaged several contractors to design and bid our fit out costs. The expected move should take place later this year.\r\n\r\nOur current staff consists of a dynamic team that brings a multitude of experience to both Al Tamimi and the clients we serve.  Our current team is: Ahmed El Amoury, Karim Shiyab, Veronica Oryem, Jay Fortin, Sarah Lisgo, Ahmed Jaafir, Manal Aloush, Kamal Hafez, Sami Fakhoury, Wong Yuen Ping, Sharifah Hamzah, Stefan Jury, Frank Lucente &amp; Hani Al Naddaf.\r\n\r\nThe recent recruitment of Semi Fakhoury further exemplifies the commitment that Al Tamimi has for Qatar.  Mr. Fakhoury come to to Al Tamimi from a top French Law Firm, Gide Loyrette Nouel where he was a Partner. Mr. Fakhoury specializes in structured and project finance and has expertise across a wide range of financing transactions including acquisition; project, syndicated lending and asset based finance and has represented borrowers and lenders in large European and cross-border LBO transactions. He has also represented major French listed and non-listed companies in debt restructuring and syndicated lending and has advised leading Middle East groups on project finance transactions and infrastructure acquisitions as well as leading banks and financial institutions on cross border export financing across the MENA region. He will utilize his significant experience in the Middle East to maintain Al Tamimi’s position as one of the leading finance firms in Qatar and extend our further growth here.\r\n\r\nThe month of February brought good news with the appointment of three partners, two of which are in the Qatar office; Mr. Stefan Jury and Mr. Hani Al Naddaf. Stefan, a native of Australia, brings a wealth of knowledge and experience to the firm with a specialty in Banking &amp; Finance. Hani, a native of Syria, who speaks Arabic, French and English, has become a top litigator for Al Tamimi &amp; Company, and in Qatar. Well deserved appointments for these worthy individuals; Congratulations.\r\n\r\nAl Tamimi has positioned itself well in Qatar as a key law firm with expertise in local laws, with international experience. As the country is in the process of rebuilding its airport and building cities within the City, that will combine the best of Qatar’s rich history, and the modern day wealth and convenience of what Qatar has to offer today, as a result of this, Al Tamimi continues to be appointed to some of the most high profile and complex deals as companies have found our team in Qatar is un-matched.\r\n\r\nDoha will soon be home to one of the most advanced medical centers in the world that will also be a learning hospital employing and producing some of the best doctors globally. This tiny nation is also home to the largest foreign United States Air Base.\r\n\r\nAl Tamimi Qatar has been involved in many different political and business forum events since the beginning of the year. During the second week of January, Turkish Prime Minister, The Honorable Mr. Recep Tayyip Erdogan was in Qatar to remind the world that the relationship between Qatar and Turkey is solid at all levels. The US Secretary of State, Mrs. Hillary Clinton was also in Doha as part of a regional trip.\r\n\r\nAl Tamimi representatives also participated in a closed dinner meeting with a select business consortium that traveled to Qatar, Kuwait and Turkey, accompanied by the Argentinean President, Ms. Christina Fernandez. The tour is meant to strengthen ties with countries in the region. The Emir of Qatar and Ms. Fernandez have been working together to boost trade between the two countries and within the region over the last year.\r\n\r\nQatar is certainly on the rise, and should see significant growth over the next 10 to 20 years. Al Tamimi &amp; Company has been and continues to grow with Qatar, the team in Doha has firmly established itself as leaders in the legal field, and as a result, Al Tamimi continues to show steady growth and continues to build its dynamic legal team.'),
	(151112,4303,'core_values',''),
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	(78952,4303,'_content','field_59b649b5c8b2b'),
	(78953,4303,'lawUpdateArticleMonth','4282'),
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	(78955,4303,'content_description','Qatar has had a busy start to the New Year; Asian Cup, Qatar Open, Qatar Women’s Tennis, the excitement of the FIFA 2022 victory bid, and a list of real estate development projects that will reshape the landscape and infrastructure of this land.'),
	(78956,4303,'_content_description','field_59b641c07f473'),
	(78957,4303,'pageSummary','Qatar has had a busy start to the New Year; Asian Cup, Qatar Open, Qatar Women’s Tennis, the excitement of the FIFA 2022 victory bid, and a list of real estate development projects that will reshape the landscape and infrastructure of this land.'),
	(78958,4303,'_pageSummary','field_59e59b307dec8'),
	(78959,4303,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/march-6/in-focus-qatar.html'),
	(78960,4303,'_currentURL','field_59d35123ab1e7'),
	(78961,4303,'_yoast_wpseo_metadesc','Qatar has had a busy start to the New Year; Asian Cup, Qatar Open, Qatar Women’s Tennis, the excitement of the FIFA 2022 victory bid, and a list of real estate development projects that will reshape the landscape and infrastructure of this land.'),
	(78962,4304,'content','March 2011\r\n\r\n<hr />\r\n\r\nSince the onset of the world financial crisis, financiers have been developing various methods to better secure finance. Popular in Islamic finance is the use of a Repo arrangement instead of a more traditional security arrangement (e.g. borrowing on the security of a particular asset). In a Repo transaction the financier purchases an asset from the borrower (seller) and grants an option to the borrower to repurchase the asset for a higher price at a future time.\r\n\r\nThe buyback option provides strong security because the title to the assets is with the financier. This means that, if the borrower does not re-acquire the asset, then the financier has freedom to sell the assets without the need for costly enforcement through the courts. A pledge will give priority rights over a particular asset, however, the complicated procedures to recover the amount of the loan makes this a much less attractive process of having the financier’s attain outright ownership, with all the advantages of ownership.\r\n\r\n<strong>But are buybacks valid under Qatari Law?</strong>\r\nA simple repurchase transaction is most likely void under the Qatari law.\r\n\r\nArticle 474 of the Qatari Civil Code provides that:\r\n\r\n“If at the time of sale the seller retains the right to recover the sold asset, the contract shall be void”.\r\n\r\nPursuant to jurisprudence, specifically the Egyptian scholar Al Sanhouri, the principle set out in Article 474 of the Civil Code is intended to protect the seller from unfair contractual terms, as in practice, Repo transactions may be an indirect arrangement of security and not merely a sale agreement. Security is regulated under mortgage and pledge provisions in the Civil Code, and creditors secured by a mortgage are not entitled to receive more than the amount of their secured rights from the proceeds of selling the mortgaged or pledged security after enforcement.\r\n\r\nAccordingly, the legislators in Egypt and various Arab legal systems decided to prohibit Repo transactions with the result that they are void. The purpose is to compel the parties to resort to mortgages which are regulated by the law to protect the interest of the parties.\r\n\r\nDespite this, financiers have developed new models to try and avoid the possibility of the entire transaction being void.  For example, the seller could sell an asset to the financier using a Sale and Purchase Agreement and then the financier could enter into a separate agreement with the seller, to sell him back the sold asset within a fixed period, conditional upon recovering back the price plus fees and certain costs (equivalent to lending interest). Also, the seller could sell an asset to the financier, and then the financier could sell the asset to a third party under a separate agreement with the seller. The third party could then sell the asset back to the seller under a third agreement conditional upon recovering back the price plus fees and costs within a fixed period.\r\n\r\nCourts in Qatar have not had the opportunity to properly consider these models and so it is still open to argument as to whether they can circumvent the operation of Article 474.  However, Egyptian jurisprudence points the way to shedding some light on how Qatari courts may handle such cases.  Qatari courts may recognise the principles of the Egyptian scholar Abdulrazik Alsanhori as a persuasive authority in absence of local resources.\r\n\r\nAccording to Abdulrazik Alsanhori these models may still be void, as a judge has the discretionary power to trace the transaction or the series of transactions to find out whether the buyback sale is intended to cover a financing transaction and in which case a judge would declare the sale and all the transactions based on this sale, null and void.\r\n\r\nTechnically, when a seller sells an asset to a financier, and on a later date they enter into a separate agreement granting the seller the right to repurchase the asset, would not fall within the scope of Article 474 of the Qatari Civil Law. However, the court might look at the intention of the parties at the time of conclusion of the first agreement to determine whether the series of transactions was to cover a financing transaction. There is a risk that a court could construe this arrangement as void if they find it as being an arrangement that  falls within Article 474 of the Qatari Civil Law.\r\n\r\n<strong>Situation under the Various Jurisdictions</strong>\r\nArticle 1333 of the Iraqi Civil Code stipulates that “sale with a right to recover the sold, is considered a pledge” and, therefore, the transaction contemplated by Repo arrangement will not be void, however, the Iraqi courts will not look at the sale provisions under the Iraqi Civil Law to determine on a dispute arising from a Repo arrangement, instead, it will apply pledge provisions set out the Iraqi Civil Law to determine on the transaction.\r\n\r\nThe attitude in the Libyan and the Syrian Civil Code is the same as in the Egyptian Law, as Article 454 of the Libyan Civil Code and Article 433 of the Syrian Civil Code prohibit buyback sale.\r\n\r\nHowever, the attitude in Lebanon is different as buyback sale is allowed under the Lebanese Obligations and Contracts Law, as Articles 473-486 described the buyback sale in details.\r\n\r\n<strong>Conclusion</strong>\r\nThe Arab legal position on the validity of the Repo arrangements varies from one Arab jurisdiction to another. The majority of the legal systems consider these arrangements invalid (Egypt, Libya and Syria), and some other Countries consider them as a pledge (Iraq), while Lebanon validates them. Although there are no precedents available in Qatar, the Repo arrangement is at risk of being voided by Qatari courts, if the Qatari courts adopt, as persuasive authority, the principles laid down by Egyptian precedents.\r\n\r\nWe suggest that considerable care be given to structuring arrangements of this kind to ensure they are not later subject to the argument that can make them void.'),
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	(78964,4304,'lawUpdateArticleMonth','4282'),
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	(78966,4304,'content_description','Since the onset of the world financial crisis, financiers have been developing various methods to better secure finance. Popular in Islamic finance is the use of a Repo arrangement instead of a more traditional security arrangement (e.g. borrowing on the security of a particular asset).'),
	(78967,4304,'_content_description','field_59b641c07f473'),
	(78968,4304,'pageSummary','Since the onset of the world financial crisis, financiers have been developing various methods to better secure finance. Popular in Islamic finance is the use of a Repo arrangement instead of a more traditional security arrangement (e.g. borrowing on the security of a particular asset).'),
	(78969,4304,'_pageSummary','field_59e59b307dec8'),
	(78970,4304,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-7/march-6/repo-transactions-under-the-qatari-law.html'),
	(78971,4304,'_currentURL','field_59d35123ab1e7'),
	(78972,4304,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Kamal Hafez'),
	(78973,4304,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(78974,4304,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','k.hafez@tamimi.com'),
	(78975,4304,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(78976,4304,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(78977,4304,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(78978,4304,'lawUpdateArticleNoWriters','1'),
	(78979,4304,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(78980,4304,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(78981,4304,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(78982,4304,'lawUpdateArticlePractices','1'),
	(78983,4304,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(78984,4304,'_yoast_wpseo_metadesc','Since the onset of the world financial crisis, financiers have been developing various methods to better secure finance. Popular in Islamic finance is the use of a Repo arrangement instead of a more traditional security arrangement (e.g. borrowing on the security of a particular asset).'),
	(78985,4305,'content','March 2011\r\n\r\n<hr />\r\n\r\nForeign construction companies wishing to participate in Government tender bids in Qatar should seek legal advice first. Often, foreign construction companies will focus more on the technical and commercial aspects of a tender bid; while overlooking the legal terms and conditions included in the tender documents.  These companies may assume that the basic legal concepts they are familiar with in other jurisdictions are similarly applicable in Qatar, however, only in the process of executing the work do they realise that this may not be the case.\r\n\r\nThese companies should initially investigate the tender process, their eligibility in participating in a particular tender and the procedures for setting up in Qatar.  They should be aware of the rules and regulations affecting their establishment in this country.\r\n\r\nIt is prudent for them to assimilate themselves with the local conditions before embarking on a major project. A potential bidder for a major project should ascertain whether they have the technical capability, financial strength, relevant experience and available resources to undertake such a project.\r\n\r\nWhere they are required to submit design drawings, they ought to have the relevant experience to provide these drawings and they should be able to adapt to local practices in drawing submissions. Many foreign contractors fall into the trap of clinging on rigidly to their normal practices and views which they inherited from their experience in their home countries causing them to invariably fail in adapting to the conditions in Qatar and later find themselves in a quandary over many issues.  These contractors will often find that the execution of the works will be fraught with significant problems if they do not conduct adequate planning, research and preparation before submitting their tender and undertaking the project. Common pitfalls and difficulties faced by contractors undertaking projects in countries which they are not familiar with may include:\r\n<ul>\r\n 	<li>Delay in procurement of materials such as concrete, steel and sand.</li>\r\n 	<li>Failure to take note of the restrictions imposed on transportation of materials causing delays in work.</li>\r\n 	<li>Delay in hiring workmen and finding workers with the requisite experience and qualification.</li>\r\n 	<li>Delay in securing the relevant work permits for their workers.</li>\r\n 	<li>Failure to familiarise themselves with the new environment and to investigate ground conditions properly.</li>\r\n 	<li>Engaging subcontractors who are not approved by the concerned governmental party.</li>\r\n</ul>\r\nThe Government of Qatar has streamlined the tender procedure for Government projects and has established the Central Tenders Committee and the Local Tenders Committee to oversee this process. These two committees are also known as the Competent Tenders Committee.\r\n\r\n<strong>The Central Tenders Committee</strong>\r\nThe Central Tenders Committee (“the Committee”) will administer tenders and bids, at the request of the concerned governmental entity, which have estimated values that exceed Five Million Qatari Riyals (QAR 5,000,000), including the award of contracts on behalf of government entities (with the exception of the Armed Forces and the Police contracts of a confidential nature and Qatar Petroleum contracts). Tenders below the aforesaid estimated value are overseen by the Local Tenders Committee, where contracting is done through local tenders. The participation of such tenders is restricted to local suppliers, contractors and service providers.\r\n\r\nThe law governing the establishment and powers of the Committee is the Tenders and Auctions Law No (26) of 2005  as amended by Law No (22) of 2008 and Law No (14) of 2010 (“Tender Laws”). The provisions of this legislation cover the tender procedures for contracts for the purchase of items, contracting business, services or works of art.  Under the Tender Laws, the Committee is given special functions to receive tenders, review tenders and give its opinion and recommendation with respect to the adjudication of the tenders.\r\n\r\nThe Contractors Classification Committee, which is affiliated to the Committee, is given the power to classify and reclassify the contractors in various classes and specialties according to their technical and financial ability, their expertise, skills and former business. The Contractors Classification Committee decides on the application for classification of the contractors submitted to it within thirty (30) days from the date such application is submitted. The contractor is entitled to request that the decision on his classification be reconsidered one year after the issuance of the decision.\r\n\r\n<strong>Preparation of the Invitation to Tender</strong>\r\nThe compilation of documents for the Invitation to Tender is prepared by the concerned governmental party seeking to engage the services of a contractor to execute the works. The concerned governmental party will prepare the general conditions of contract together with a detailed scope of works and instructions for the contractors including the following:\r\n<ul>\r\n 	<li>Necessary instructions for the contractors.</li>\r\n 	<li>Entire Detailed Drawings and Specifications.</li>\r\n 	<li>Detailed and accurate table of quantities.</li>\r\n 	<li>Procedure to be adopted in the implementation of the contract.</li>\r\n 	<li>Penalties imposed in the event of any breach of the provisions of the contract or delay in the execution of the works.</li>\r\n</ul>\r\nThere should be as much detail as possible included in these documents to circumvent the need for bidders to revert to the concerned governmental party for clarification. It is therefore essential, when tendering, to ensure that the aforesaid documentation is accurate and concise and that it reflects the level of work required to prepare the tender.\r\n\r\n<strong>Call for Tender and Submission of Tender</strong>\r\nThe Committee will thereafter advertise the tender by way of publication, at least twice, in the local daily newspapers. The announcement will also be put up on the notice boards of the headquarters of the Committee and the concerned governmental party. In addition to the aforesaid methods of publication, the tenders may also be published by using modern methods of communication. The general tender announcement will set out the following details:\r\n<ul>\r\n 	<li>The number and object of the tender.</li>\r\n 	<li>Brief statement about the items or business or services required to be purchased or implemented.</li>\r\n 	<li>The party providing the tender documents.</li>\r\n 	<li>The amount payable by the bidder for a copy of the tender documents.</li>\r\n 	<li>Class and competence.</li>\r\n 	<li>System of submitting the offers.</li>\r\n 	<li>Party before which the offers are submitted and the submission deadline.</li>\r\n 	<li>Fixed date for opening the envelopes.</li>\r\n 	<li>Amount and effectiveness period of the temporary guarantee.</li>\r\n 	<li>Effectiveness period of the offer, being ninety (90) days at least as from the date of opening the envelopes.</li>\r\n 	<li>Amount and effectiveness period of the final guarantee to be submitted by the winner of the tender.</li>\r\n 	<li>Stipulation of the concerned governmental party’s right during the effectiveness of the contract, after acquiring the approval of the Committee, to increase or decrease the quantities of the items or business or services by twenty percent (20%), at most, of the contract value under the same conditions and prices, provided that the increase be the same type of items, business or services stipulated in the contract.</li>\r\n</ul>\r\nAll tenders must be submitted within the timeframe set out for submission to the Committee. It is important to note that bidders should not make any amendments to the tender documents. In the event that the bidder wishes to insert some special conditions or make any modification to the tender documents, this ought to be done via a separate letter which should be enclosed with the tender submitted and the bidder should refer to this letter in the body of the tender. The tender offers that do not include total fixed prices will not be accepted; every offer violating the said provisions will be considered null and void.\r\n\r\n<strong>Tender Price</strong>\r\nThe tender price quoted is required to be in Qatari currency unless the tender documents stipulate otherwise. It is imperative to take great care in the calculation of the tender price. Only the total price mentioned in the tender form will be taken into account without any other figures or any mistakes made by the bidder during the calculation of the total price of its offer. In the event the bidder makes a mistake in the calculation of its tender price, it will not be allowed to modify this after submission of tender. If the total price written in letters is different from the total price written in figures, the total price in letters will be taken into consideration. In the event the calculation mistake exceeds five percent (5%) of the total price value mentioned in the tender form, the offer will be excluded unless the Committee (by majority votes) decides to accept it for reasons related to public interest.\r\n\r\nSome contractors have a penchant for under pricing or under-allowance of costs in their tender bids. Awarding the contract to such a contractor would lead to significant potential problems to the project owner/employer. The general fear and assumption is that this contractor will, throughout the contract period, make attempts to recoup his lost monies by compromising on quality, giving less, or at worst, the contractor may face insolvency.\r\n\r\nThe tender must include fixed lump sum prices which include all expenses such as transportation, insurance, custom duties and other taxes. All items stated in the bill of quantities must be priced and the lump sum price quoted in the tender form will be considered to include the prices of all the required items. If certain items are not priced, this will be taken to mean that the bidder abstains from entering the tender related to the said item. Further, in the contracting business, if the bidder did not determine the price of one of the items mentioned in the contracting business it submitted, the Committee is entitled to decide whether to exclude the offer or fix a higher price for this item, after comparing it with the other technically accepted offers, and the executive regulations of the Tender Laws will set out the basis and rules that will be applied regarding this matter.\r\n\r\nThe bidder will not be allowed to make any amendments to its price after submitting it’s tender. It may not withdraw its offer or amend its prices after submitting its tender and it shall be committed to the prices and conditions stated in its tender.\r\n\r\nIt is crucial for bidders to be able to assess the risks involved in undertaking the project. Careful scrutiny of the tender documents including the general and special conditions of contract is required with particular focus on the allocation of risks between the parties as this will affect the bidder’s pricing for the project.  The nature and number of risks must be identified and evaluated, thus ascertaining the consequential costs involved. All too often, in tendering for a project, contractors make the mistake of inadequately assessing and pricing the risks, leading to many loss making projects. In addition, bidders should also take into account that the concerned governmental party has the right of variation by way of increasing or decreasing the quantities of the items or the works or services up to twenty percent (20%) of the contract value provided that any such increase is related to the same type of items, works or services set out in the contract.\r\n\r\nWhere a contractor has delayed performance of works, the Tender Laws allow the concerned governmental party to grant an extension of time to complete works provided that the contractor is penalised with a fine for the delay period.  This fine shall not exceed ten percent (10%) of the contract value. The contractor should seek legal advice on the relevant provisions under Qatari law with respect to liquidated damages and the imposition of penalties. It is also very important to seek legal advice on the application and enforceability of any limitation of liability provisions in the construction contract. Contractors from other jurisdictions may make certain assumptions regarding liquidated damages and limitation of liability, based on their previous experience undertaking projects in other countries, which do not necessarily apply in Qatar. There is no point feigning ignorance of the local laws and regulations once the contract is signed. (Claire – please use this quote)\r\n\r\n<strong>Tender Bond and Performance Bond</strong>\r\nA tender bond (or a temporary guarantee, as it is called in the Tender Laws) will be required to be deposited together with the tender. This is a security in a lump sum amount fixed by the concerned governmental party.  Note that the Committee has the right to exclude any tender which is not submitted with a tender bond.\r\nThe tender bond can be in the form of a bank cheque or an unconditional bank letter of guarantee from a local bank. The tender bond shall be valid for payment in whole and should be valid for a period of at least thirty (30) days after the termination fixed for validity of tender. The tender bonds shall be returned to the bidders immediately after the expiration of the determined effectiveness period of the tender or before the same in the event the winning bidder whose tender has been accepted, has deposited the performance bond (known as the final guarantee in the Tender Laws).\r\n\r\n<strong>Evaluation of Tender and Award of Contract</strong>\r\nThe tenders will then be reviewed by the concerned governmental party’s technical team who will thereafter submit their recommendations to the Committee. The concerned governmental party is entitled to collect from the bidders the necessary data to complete the technical study of the tender provided that it does not prejudice the conditions, specifications and prices mentioned in the tender offers.\r\n\r\nThe Committee is not bound to accept the recommendations of the concerned governmental party but a decision of the Committee which is inconsistent with the recommendations of the concerned governmental party has to be issued by a majority of two-thirds of the members forming the Committee.\r\n\r\nAlthough it is the norm that the Committee will recommend the bidder who submitted the lowest total price, the Committee may at times recommend the award to a bidder who submitted a higher price. This is justifiable in the case where the Committee feels that the price quoted by the lowest bidder is unreasonably low.  We have already addressed the pitfalls of awarding a contract to a bidder whose bid is clearly under priced.\r\n\r\nThe recommendations of the Committee will then be passed to the Minister of Finance for approval, and where the tender exceeds Fifty Million Qatari Riyals (QAR 50,000,000), it must be approved by the Prime Minister based on the proposal of the Minister of Finance.\r\n\r\nThe concerned governmental party will ask the winning bidder to show up in order to submit the final guarantee/performance bond within ten (10) days from the day after being notified of the acceptance of the offer and to sign the contract within the determined date. However, in the event the bidder does not show up at the determined date, it shall be considered as withdrawn.  In the event the bidder withdraws for any reason during the effectiveness period of the offer, without an acceptable excuse, or in the event the bidder of the accepted offer does not deposit the final guarantee/performance bond during the said period, or in the event it abstained from signing the contract at the determined date, the Committee may take one or more of the following measures:\r\n<ul>\r\n 	<li>Sending a notification.</li>\r\n 	<li>Confiscating the temporary guarantee.</li>\r\n 	<li>Confiscating the final guarantee.</li>\r\n 	<li>Decreasing the class of the bidder.</li>\r\n 	<li>Striking the bidder off from the register for a specific period or permanently.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nIn general, tendering for projects anywhere in the world has become a more complex exercise where pricing is only part of the selection criteria. Construction and procurement methodologies are also taken into account in the selection process. Other criteria which would be taken into consideration is the contractor’s understanding of the project employer/owner, in this case, the concerned government party’s objective. Likewise, more tangible considerations may also form the basis of selection such as the contractor’s general approach and ability to correlate with the project employer/owner and their team and the contractor’s general compatibility with them.\r\n\r\nAs a general rule, any contractor bidding for a project in any country should have a basic idea of the laws of that country particularly on the following areas:\r\n<ul>\r\n 	<li>Dispute resolution procedure and enforcement of awards.</li>\r\n 	<li>Enforceability of limitation of liability clauses.</li>\r\n 	<li>Entitlement to additional payment for variations.</li>\r\n 	<li>Delay compensation.</li>\r\n 	<li>Price escalation.</li>\r\n 	<li>Decennial Liability.</li>\r\n 	<li>Suspension of Works.</li>\r\n 	<li>Termination for Convenience.</li>\r\n</ul>\r\nAs mentioned earlier in this article, it is advisable to seek proper professional advice including; financial, technical and legal advice, before embarking on a major project in Qatar.'),
