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	(101600,5522,'content_description','It is an uncontested fact that prescription drugs are big business; brand name pharmaceutical companies invest millions of dollars each year to develop new and innovative drugs. In order to protect their new and innovative findings, pharmaceutical companies invest significant resources into registering their newly developed drugs as patents. In this regard, patent protection provides a period of market exclusivity to the owner of the patent and is an efficient tool to prevent third parties, including generic drug companies, from entering the market. However, once the patent protection period ends, the demand for brand name drugs drastically reduces as generic drug companies start manufacturing the same product at a significantly lower cost. As such, pharmaceutical companies may turn to other forms of IP protection in order to retain their market share after their patent and market exclusivity expires. '),
	(101582,5521,'_content','field_59b649b5c8b2b'),
	(101583,5521,'lawUpdateArticleMonth','5506'),
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	(101585,5521,'content_description','The UAE has a strong regulatory regime in relation to advertising content. The National Media Council has released guidelines which all advertisers are expected to understand when promoting their products to the public. When discussing promotional content with advertisers, we emphasise the content of National Media Council Resolution 35 of 2012 on Advertising Standards. For advertising that relies on testimonials or on links to a celebrity, we refer particularly to the terms of Article 5.'),
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	(101587,5521,'pageSummary','The UAE has a strong regulatory regime in relation to advertising content. The National Media Council has released guidelines which all advertisers are expected to understand when promoting their products to the public. When discussing promotional content with advertisers, we emphasise the content of National Media Council Resolution 35 of 2012 on Advertising Standards. For advertising that relies on testimonials or on links to a celebrity, we refer particularly to the terms of Article 5.'),
	(101588,5521,'_pageSummary','field_59e59b307dec8'),
	(101589,5521,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/november-7/i-lost-ten-pounds-in-5-weeks-the-legal-position-of-testimonials-and-sponsorships-within-medical-adv.html'),
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	(101595,5521,'_yoast_wpseo_metadesc','The UAE has a strong regulatory regime in relation to advertising content. The National Media Council has released guidelines which all advertisers are expected to understand when promoting their products to the public.'),
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	(101596,5522,'content','<p class=\"p1\">The debate over pharmaceutical trade dress protection is heated. From one standpoint, generic companies argue that brand name pharmaceutical companies are hiding under the auspices of trade dress rights for products that are no longer subject to patent protection and should be considered part of the public domain. On the other side of argument, brand name pharmaceutical companies argue that, for the period of the patent protection, usually 20 years, they have had market share of the product, therefore, they should be allowed to extend the longevity of their protection through other forms of intellectual property (‘IP’) and to maintain the goodwill already associated with their product.</p>\r\n<p class=\"p1\">It is common knowledge that a trademark is a name of or logo associated to a company which allows consumers to identify the product. Trade dress rights, on the other hand, can be identified as any material quality of a product or its physical appearance that serves as a brand identifier. Such physical aspects of the products can include its shape, colors and even textures. It can be argued that trade dress rights, in general, protects the overall appearance of an object when the object is intended as source identifier. Although the term ‘trade dress’ is not defined in the UAE trademark law, the definition of trademarks in the UAE law broadly includes certain elements qualifying such as trade dress. These include sounds, colours and shapes. In practice, trade dress rights in the UAE are commonly referred to as nonconventional trademarks. In order to be able to secure a trade dress or nonconventional trademark protection for pharmaceuticals, the applicant must demonstrate that consumers have come to associate the physical attributes of the pharmaceutical, such as colour, size and shape, with the manufacturer. Trade dress, or nonconventional trademarks, do not, however, protect functional elements. A product feature is considered functional if the product would not work properly without that element or if that element affects the cost or quality of the product.</p>\r\n<p class=\"p1\">As it applies to the pharmaceutical industry, legal protection extending beyond patents is even more important especially amid increasing concerns about counterfeit drugs which copy the appearance, packaging and name of brand name pharmaceuticals. It can be further argued that the protection allowed through trade dress, or nonconventional trademarks, serves as a public function meant to protect consumers from deception by the producers of look-a-like drugs.</p>\r\n<p class=\"p1\">In addition to the threats of counterfeit pharmaceuticals and the need to enforce nonconventional trademarks with regards to such products, there is also the argument that consumers need to be able to identify the brand by the appearance of the pills. One of the first drugs to be promoted heavily to consumers based on the unique colour and shape of the drug was Viagra produced by Pfizer. Pfizer widely advertised the appearance of the pill, which served to identify Viagra by both the pale blue colour and the diamond shape of the tablets. Given Pfizer’s continued and long term efforts in advertising the appearance of the Viagra pill, consumers over the years have recognised and commonly referred to the product as ‘the little blue pill’. Due to Pfizer’s marketing campaign and the massive publicity surrounding the product, Pfizer was able to establish before the registering authority that consumers were able to identify Viagra as one being produced by Pfizer by the pale blue color and diamond shape of the pill. The massive advertising of the product and the product awareness amongst consumers made it easier for Pfizer to claim that the look of the pill was protectable. In view of Pfizer’s registrations, generic drug makers are prevented from using the appearance of the Viagra pill (diamond shape in combination with the pale blue color) for their generic products. It can be further argued that the color, shape and size of a pill are directly related to the drug’s potency, as such, maintaining a constant color and size between the actual product versus the generic product would promote patient safety.</p>\r\n<p class=\"p1\">In conclusion, to satisfy that there is trade dress right, a manufacturer must demonstrate that the color and shape of the product can be linked to the manufacturer of the tablets. As a practical matter, pharmaceutical manufacturers desiring trade dress protection for their products must carefully select and cultivate that trade dress. As discussed above, one way to attain this threshold is by investing in promotional campaigns that will cause consumers to associate the look of the pill with the particular source. In fact, given the increase in the trend of patient-directed advertising, many companies are investing a significant part of their budget on creative marketing campaigns, which can help to establish trade dress rights.</p>'),
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	(92843,5045,'_content_description','field_59b641c07f473'),
	(92844,5045,'pageSummary','UAE President Sheikh Khalifa Bin Zaid Al Nahyan has issued Federal Law no. 10 of 2014 (the “New Law”) which amended several articles of Federal Law no. 11 of 1992 (the UAE Civil Procedures Law).'),
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	(101580,5520,'_yoast_wpseo_metadesc','The new United Arab Emirates (‘UAE’) Federal Law on Medical Liability (Law No. 4 of 2016) (the ‘New Law’) was published in the UAE Official Gazette on 15 August 2016 and has brought several changes to the previous Medical Liability Law (Federal Law No. 10 of 2008) (the ‘Former Law’).'),
	(101581,5521,'content','<p class=\"p1\"><em>Conditions to be applied in advertising: </em></p>\r\n<p class=\"p3\">Advertising shall not be ambiguous or obscure or void of any clear indications.</p>\r\n<p class=\"p3\"></p>\r\n\r\n<ul>\r\n 	<li>It shall not include any false or misleading claims or resort to exagerations, intimidation, or claim to be unique while contempting competitors, and it shall not resort to fraud and deception.</li>\r\n 	<li>The advertisement shall not include images that are falsified or imitated or images of which they don’t have the rights to use.</li>\r\n 	<li>The advertisement shall be real and unexaggerated, not leading to confusion or ambiguity with other products or activities.</li>\r\n 	<li>The advertising identity shall be clearly determined, and it shall appear as unique and separate from other editorial or media material, and there shall be limits separating the advertisement from any other material in addition to time lapses in case of radio or television broadcasting.</li>\r\n</ul>\r\n<p class=\"p5\">These days, the use of testimonials (praise received from customers that have used the product or service) and brand ambassadors (by way of the use of influencers) is becoming more common than before. Not only do advertisers understand that consumers currently have a higher level of trust in ‘word of mouth’ advertising but social media outlets now make it easier than ever to create and circulate such content. It’s credible. It’s effective. But it is also clear that, when creating and distributing testimonial advertising, advertisers must comply, at the very least, with Article 5.</p>\r\n<p class=\"p1\">When creating testimonial content generally, the terms of sub article 7 are important to keep in mind. This sub article notes that advertising material must appear as ‘<em>separate and unique</em>’ from editorial material. This is not going to be problematic where the testimonials are contained within the advertising material itself as perhaps a boxed segment in a paid print commercial, as it is clear that it is part of the commercial itself. However, where the paid content takes the form of a 140 character Tweet within numerous other editorial or opinion tweets, then it becomes significantly more difficult to keep it clear and unique. Our view is that Tweets that are paid advertising content should be noted as such; however we note that the industry is not yet doing that as standard practice in the region at this stage.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In addition to the usual regulations for advertising, when the product is a medical service or device, then the advertiser must be more cautious. Extra regulations apply under the Health Advertisements Regulations (Ministerial Resolution 430 of 2007) (the “Regulations”). When it comes to testimonials, Article 4 (25) of the Regulations specifically states that, in any medical advertising that is produced for use within the UAE “<em>the evidences and certificates must be authenticated and true, not misleading, explaining the typical cases only and not obtained through illegal means</em>”. In the UAE, as with many jurisdictions around the world, the use of false testimonials is prohibited by law. This is not singular to the UAE legal landscape and indeed some countries have much stricter regulations about the use of testimonials in relation to healthcare products or services.</span></p>\r\n<p class=\"p1\">The USA, always proactive when it comes to regulating consumer matters, has been watching the activities of testimonials in advertising in the medical field for some time. The Federal Trade Commission in the USA (FTC) has issued guidelines and regularly initiates court action. A 2016 case involved the very successful prosecution of a company that was using fake news websites with phony celebrity endorsements (including false endorsements from Oprah Winfrey) alongside unsupported claims about the product’s efficiency in order to promote a weight-loss product. In this matter the FTC was successful in the case and was able to claim the assets of the company as well as some assets of the shareholders.</p>\r\n<p class=\"p1\">There is no doubt that if an advertiser undertook similar practices in the UAE, they could be prosecuted by both the National Media Council and pursuant to the Resolution. Looking at the elements of Article 4 (25) in particular (“<em>must be authenticated and true, not misleading, explaining the typical cases only and not obtained through illegal means</em>”), it is clear that an advertising campaign that uses false endorsements from a celebrity and claims amazing results for everyone ‘even whilst you sleep’ (as was the case in the above matter) could easily be prosecuted in this country as well, under Article 4 (25).</p>\r\n<p class=\"p1\"><span class=\"s1\"> It is important to note that this does not prevent healthcare advertisers from including endorsements if they are genuine consumer reviews – these are not prohibited – and have been properly approved as advertising material under the appropriate regime in the UAE. In addition this will not, in our opinion, stop the circulation of unpaid and unsought reviews about healthcare products and services. People will always want to ‘like’ and ‘share’ information as they choose. The fact that these may comprise positive unpaid reviews of a healthcare product or service does not mean that they should be treated as testimonials.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Figures released in the UAE indicate that a significant percentage of the penalties imposed for breaching the Resolution are arising, surprisingly, within social media and indeed a vast number arise in Twitter. Because of this, we recommend that healthcare advertisers exercise caution when engaging with anyone that will endorse their brand, including the now ubiquitous social media influencers. </span></p>\r\n<p class=\"p1\">When it comes to social media influencers, we recommend that advertisers take an active role in guiding them in relation to content. Many companies are developing influencer guidelines to assist with this and we recommend that these be added to a services contract that is provided to the influencer in order to ensure that the influencer understands what can and cannot be said, what will require approval from the advertiser and what needs prior approval from the regulator. Most importantly though, this will assist companies in enforceability within the jurisdiction if anything does go wrong.</p>\r\n<p class=\"p1\">The International Consumer Protection Enforcement Network (ICPEN) has this year consolidated regulations from over 60 countries into helpful documents for stakeholders wishing to undertake endorsement-style advertising. Their tips include:</p>\r\n<p class=\"p6\"></p>\r\n\r\n<ul>\r\n 	<li>Endorsements must be truthful and not misleading;</li>\r\n 	<li>Material connections between an endorser and marketer of a product or service that would affect how people evaluate the endorsement must be disclosed clearly and conspicuously;</li>\r\n 	<li>Allow influencers to be open about other commercial relationships that might be relevant to the content;</li>\r\n 	<li>Disclose clearly and prominently whether content has been paid for; and</li>\r\n 	<li>Allow influencers to give genuine views on markets, businesses, goods or services.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"></p>\r\n<p class=\"p1\"><span class=\"s3\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises companies on their advertising and marketing practices in the region. For further information please contact Fiona Robertson (f.robertson@tamimi.com).</em></span></p>'),
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	(101576,5520,'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation','Dubai, UAE'),
	(101575,5520,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(101574,5520,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','h.almuhtadi@tamimi.com'),
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	(101572,5520,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Hiam Al Muhtadi'),
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	(101554,5520,'lawUpdateArticleMonth','5506'),
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	(101556,5520,'content_description','The new United Arab Emirates (‘UAE’) Federal Law on Medical Liability (Law No. 4 of 2016) (the ‘New Law’) was published in the UAE Official Gazette on 15 August 2016 and has brought several changes to the previous Medical Liability Law (Federal Law No. 10 of 2008) (the ‘Former Law’). '),
	(101557,5520,'_content_description','field_59b641c07f473'),
	(101558,5520,'pageSummary','The new United Arab Emirates (‘UAE’) Federal Law on Medical Liability (Law No. 4 of 2016) (the ‘New Law’) was published in the UAE Official Gazette on 15 August 2016 and has brought several changes to the previous Medical Liability Law (Federal Law No. 10 of 2008) (the ‘Former Law’). '),
	(101559,5520,'_pageSummary','field_59e59b307dec8'),
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	(101566,5520,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Al Misbah Sabiel'),
	(101567,5520,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(101568,5520,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.sabiel@tamimi.com'),
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	(101570,5520,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','Dubai, UAE'),
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	(101539,5519,'content_description','The Gulf Cooperation Council (“GCC”) is one of the fastest growing markets for pharmaceutical products and one that still has significant further potential for the industry. As a result, foreign pharmaceutical manufacturers continue to seek access to the GCC healthcare markets. '),
	(101540,5519,'_content_description','field_59b641c07f473'),
	(101541,5519,'pageSummary','The Gulf Cooperation Council (“GCC”) is one of the fastest growing markets for pharmaceutical products and one that still has significant further potential for the industry. As a result, foreign pharmaceutical manufacturers continue to seek access to the GCC healthcare markets. '),
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	(101543,5519,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/november-7/distribution-of-pharmaceutical-products-in-the-gcc.html'),
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	(101551,5519,'_yoast_wpseo_metadesc','The Gulf Cooperation Council (“GCC”) is one of the fastest growing markets for pharmaceutical products and one that still has significant further potential for the industry. As a result, foreign pharmaceutical manufacturers continue to seek access to the GCC healthcare markets.'),
	(101552,5520,'content','<p class=\"p1\">These changes include the permissibility of: natural death in cases of terminally ill patients; gender re-assignment procedures, subject to certain conditions; and settlements between patients and healthcare professionals in gross medical negligence cases.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The New Law also requires all medical malpractice claims to be referred to a new medical liability committee (‘Medical Liability Committee’) before they are reviewed by the judicial authorities in the UAE. Further, the law also affords protection and relief to doctors in criminal proceedings by prohibiting their arrest, imprisonment, and investigation before the concerned authorities until the Medical Liability Committee issues a final report. The New Law also introduces stringent penalties against medical practitioners who commit grave medical errors and other key changes, which will be discussed in this article.</span></p>\r\n<p class=\"p2\"><strong>Natural Death</strong></p>\r\n<p class=\"p2\">The New Law permits healthcare professionals to allow natural death by refraining from performing cardiopulmonary resuscitation (‘CPR’) on terminally ill or dying patients who are sufferings from incurable illnesses, provided that the following conditions are met:</p>\r\n<p class=\"p2\"></p>\r\n\r\n<ul>\r\n 	<li>the patient suffers from an irremediable medical condition;</li>\r\n 	<li>all the treatment methods have been exhausted;</li>\r\n 	<li>the treatment is proven to be useless in such medical condition;</li>\r\n 	<li>the treating doctor advises not to provide CPR to the patient; and</li>\r\n 	<li>at least three consulting doctors decide that the patient’s interests require that the natural death is allowed and that CPR should not be provided (In this case, the consent of the patient, his guardian or custodian is not required).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\">However, resuscitation may not be denied if the patient expressly requests to be resuscitated even if resuscitation is useless for the treatment.</p>\r\n<p class=\"p2\"><strong>Gender Re-Assignment Surgery</strong></p>\r\n<p class=\"p2\">The New Law also introduces the permissibility of gender-reassignment surgeries in cases where the person’s sexual orientation is ambiguous and his/her sexual features are different from their physiological, biological, and genetic characteristics. Such permissibility is conditional on the requirement that these facts are confirmed by medical reports and the re-assignment procedure is approved by a medical committee formed by the health authority. This medical committee must also refer the individual to a psychologist to carry out the necessary mental adaptations.</p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Consent</strong> </span></p>\r\n<p class=\"p2\">Save for emergency cases that require necessary and immediate surgical intervention to save the life of a patient or fetus, and to avoid dangerous complications, the New Law introduces a provision which permits surgical intervention in cases where the consent of a patient or his/her spouse or family members, up to the fourth degree, cannot be obtained. Such consent is permitted on the condition that a report from the treating doctor, another doctor from the same hospital, and the director of the hospital is obtained confirming the need for the surgery. This provision only applies in situations where the consent of the patient or his/her spouse or family members, up to the fourth degree, cannot be obtained and will not be applicable if the patient is fully competent.</p>\r\n<p class=\"p2\"><strong>Disclosure</strong></p>\r\n<p class=\"p2\">Provisions pertaining to disclosure were also amended by the New Law to permit the disclosure of patient information upon the request of the health authority for the purpose of protecting public health (subject to the terms and conditions set by the Executive Regulations of the New Law) and if the disclosure was made by the physician in self-defence before the investigation authority or any judicial authority.</p>\r\n<p class=\"p1\">The New Law permits healthcare professionals to disclose a patient’s medical records to support their defence in legal claims and will safeguard doctors from any liabilities in the event a patient raises arguments pertaining to the prohibition against the disclosure of confidential patient information.</p>\r\n<p class=\"p2\"><strong>Medical Liability Committee</strong></p>\r\n<p class=\"p2\">The New Law states that the new Medical Liability Committee of doctors specialised in all fields of medicine will be formed upon a resolution to be issued by the Minister of Health and Prevention or the health authority. The Medical Liability Committee will be responsible for reviewing medical complaints referred by the health authority, the Public Prosecution, or the courts, and will determine whether or not a medical error has been committed and the seriousness of such error. In cases of several liable parties, the Medical Liability Committee will determine the percentage of every person’s contribution to such error and provide the basis for its decision. The Medical Liability Committee will also determine the damages incurred by such errors, the causal link between the error and the damage, and the percentage of disability of the affected organ, if any. The committee may also seek the assistance of other experts and of whomever it deems fit to perform such duties. This Medical Liability Committee will be subject to the provisions of Federal Law No. 7 of 2012 (Regulating the Profession of Experts before the Judicial Authorities) provided that they do not conflict with the provisions of the New Law. The Executive Regulations that will be issued within six months from the date the New Law came into force will provide information on the formation of the Medical Liability Committee and the rules and procedures of its work.</p>\r\n<p class=\"p1\">The Higher Committee for Medical Liability (‘Higher Committee’) established under the Former Law will continue to review medical malpractice claims referred to it by the authorities until the Medical Liability Committee is formed.</p>\r\n<p class=\"p2\"><strong>Civil Claims</strong></p>\r\n<p class=\"p2\">The New Law provides that civil claims filed due to medical malpractice will not be accepted unless the medical claim has been referred to the Medical Liability Committee. Hence, patients can only pursue civil claims for monetary compensation after their medical claims have been brought before the appropriate health authority, referred to the Medical Liability Committee, and a final report is issued.</p>\r\n<p class=\"p1\">Under the Former Law, patients who filed claims for monetary compensation directly before the court, without going through the health authority, had their cases heard by the court without any restrictions or prior requirement for the medical claims to be filed at the health authority and reviewed by a medical committee.</p>\r\n<p class=\"p1\">It is not clear whether this new mandate extends to the filing of claims before the Settlement Centre of the Dubai Courts for the appointment of medical experts. However, we are of the view that such required referral to the Medical Liability Committee is only limited to compensation claims before the civil courts.</p>\r\n<p class=\"p2\"><strong>Criminal Medical Negligence Claims</strong></p>\r\n<p class=\"p2\">The New Law permits patients to file medical malpractice complaints before the Public Prosecution and requires the prosecution to refer medical malpractice complaints directly to the competent health authority to take the necessary actions. The New Law also prohibits the investigation of healthcare professionals, and their arrest or temporary imprisonment, until the health authority provides a final medical report confirming gross medical error on the part of the involved physician.</p>\r\n<p class=\"p1\">This provision affords protection to doctors in criminal proceedings and will ensure that they are not taken into custody, questioned, investigated, and arrested unless it has been determined through a final report issued by the Medical Liability Committee or the Supreme Committee, defined herein, that they committed a gross medical error. In addition, this provision appears to be limited to cases where doctors commit grave professional errors which amount to criminal offences under UAE law and does not extend to civil liability for medical malpractice. Hence, if the Supreme Committee or Medical Liability Committee determines that a doctor is not liable for gross medical negligence, then the involved medical professional may not be held liable for criminal medical negligence.</p>\r\n<p class=\"p2\"><strong>Referral of Medical Complaints to Health Authorities</strong></p>\r\n<p class=\"p2\">The New Law requires all medical malpractice complaints to be referred to the relevant health authority and the authority will assign the complaints to the Medical Liability Committee. The Medical Liability Committee will issue its opinion in all medical malpractice cases following its review of the facts, medical files, investigations, and other facts and information available to the Medical Liability Committee. The Medical Liability Committee will provide the health authority with its opinion within 30 days from the referral date. Such period may be extended to a similar period(s) subject to the approval of the health authority following the Medical Liability Committee’s request.</p>\r\n<p class=\"p1\">It is pertinent to mention that, prior to the enactment of the New Law, patients had the right to pursue medical malpractice complaints before either the appropriate healthcare authorities or the judicial authorities at any time; however the New Law strictly requires all medical malpractice claims to be referred to the Medical Liability Committee before they are reviewed by the judicial authorities. In this respect, patients must first file medical complaints before the relevant health authority and the authority will in turn assign the complaints to the Medical Liability Committee.</p>\r\n<p class=\"p1\"><span class=\"s2\"> We are of the view that these provisions could expedite the duration of medical malpractice cases before the judicial authorities and possibly discourage patients from proceeding with legal proceedings against healthcare professionals if the Medical Liability Committee finds that the involved physician(s) did not commit medical malpractice. </span></p>\r\n<p class=\"p2\"><strong>Grievances Before the Medical Liability Committee</strong></p>\r\n<p class=\"p2\">Healthcare professionals and complainants are permitted to challenge the report of the Medical Liability Committee before the appropriate health authority within 30 days from the date they are notified of the committee’s decision. The health authority will refer the grievance, the committee’s report, and all relevant documents related to the complaint to the Supreme Committee for Medical Liability (the ‘Supreme Committee’).</p>\r\n<p class=\"p1\"><span class=\"s4\"> The Medical Liability Committee’s decision will be deemed final if no grievances are filed within the above mentioned time-frame of 30 days, after which the parties will not have the opportunity to challenge the committee’s report before any other authority. </span></p>\r\n<p class=\"p2\"><strong>Supreme Committee for Medical Liability</strong></p>\r\n<p class=\"p2\">The New Law sets out the formation of a new Supreme Committee responsible for reviewing grievances filed by healthcare professionals and patients against reports issued by the Medical Liability Committee. The Supreme Committee’s tasks will be set out in the resolution to be issued by the Minister of Health and Prevention.</p>\r\n<p class=\"p1\">The Supreme Committee’s findings are deemed final and will not be subject to any appeals or grievances before any authority.</p>\r\n<p class=\"p1\">Under the Former Law, the Higher Committee was established to provide its technical opinion in medical malpractice cases upon the request of the Public Prosecution, the UAE courts, or the health authorities. Healthcare professionals and patients also had the right to request the court or the Public Prosecution to refer medical malpractice cases to the Higher Committee in legal proceedings. However, the position under the New Law has changed by introducing the new Medical Liability Committee to review and opine on medical malpractice cases before they are heard by the judicial authorities, and a Supreme Committee whose role is primarily to review grievances filed by both patients and healthcare professionals.</p>\r\n<p class=\"p2\"><strong>Penalties</strong></p>\r\n<p class=\"p2\">The New Law also introduced penalties against physicians who commit the following offences:</p>\r\n<p class=\"p6\"></p>\r\n\r\n<ul>\r\n 	<li>a prison sentence of not less than 3 years and not more than 10 years to any physician who conducts sex-change procedures on patients.</li>\r\n 	<li>physicians who refrain from treating patients in emergency cases or interrupt their treatment, if the violation affects the safety of the patient’s body, will be subject to a fine of not less than AED 10,000. The same penalty is also applicable to doctors who conduct unnecessary medical or surgical procedures on patients without their informed consent.</li>\r\n 	<li>imprisonment for a period of not more than one year and/or a fine of not more than AED 200,000 to medical practitioners who commit gross medical errors. If the gross medical error results in death, the penalty will be imprisonment for not more than two years and /or a fine of not more than AED 500,000, and can extend to imprisonment of not more than two years and a fine of not more than AED 1,000,000 if the gross medical error was committed under the influence of alcohol or drugs.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\">These penalties will supersede the ones set out in any other legislation following the publication of the New Law. However, the disciplinary penalties found in other laws shall apply to violations for which no penalty is set under the New Law.</p>\r\n<p class=\"p2\"><strong>Settlement</strong></p>\r\n<p class=\"p2\">The New Law permits patients, their heirs, or attorneys to settle with medical practitioners before the health authority in cases where gross medical errors are committed, and the authority will refer the agreed settlement to the Public Prosecution. In addition, the agreed settlement can also be filed or submitted before the Public Prosecution, and at any stage of the complaint, regardless of the status of the action, and after a judgment becomes final.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The settlement between the parties will result in the forfeiture of the criminal action and suspension of the penalty, even in circumstances where reconciliation is reached during the execution of the penalty. However, the reconciliation between both parties will not prejudice the victim’s right to resort to the civil courts to claim compensation. </span></p>\r\n<p class=\"p1\">This settlement provision introduced a drastic change to the Former Law where no such settlement mechanism was available. In the past, even if the patient and the medical practitioner settled the case between them, the Public Prosecutor could still move forward with a criminal charge on the basis of public interest.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The reconciliation provision will encourage patients, or their family members, to settle with doctors in medical malpractice claims and may safeguard doctors from being subjected to criminal liability for committing gross medical negligence. The reconciliation between the parties even extends to cases where final verdicts have been issued by the criminal court and penalties have been imposed against healthcare professionals. The effect of the reconciliation will result in the withdrawal of the criminal case against the implicated healthcare professional.</span></p>\r\n<p class=\"p1\">Nonetheless, the settlement between the parties before the health authority or in criminal proceedings will not prevent the victim from pursuing civil proceedings for compensation against the healthcare professional. Despite the above mentioned reference in the New Law, the parties can agree on settlement terms which extend to the waiver of civil actions against the involved healthcare professional.</p>\r\n<p class=\"p2\"><strong>The Previous Medical Liability Law</strong></p>\r\n<p class=\"p2\">The Former Law will be repealed by the New Law while the Cabinet Resolution No. 33 of 2009, regarding the Executive Regulations of the Former Law, and the resolutions issued by virtue of the said law will remain in force until the Executive Regulations of the New Law are issued, without prejudice to the provisions thereof.</p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">The procedures established in the New Law will ensure that healthcare professionals accused of malpractice are not prosecuted until the Medical Liability Committee or the Supreme Committee issues a final report, and will mandate that patients submit their claims to the health authority to be reviewed by the Medical Liability Committee in order for civil claims for compensation to be admissible to the courts. The New Law also clarifies the events under which CPR may be withheld, gives patients the right to undergo gender-reassignment procedures (subject to certain conditions), and prohibits physicians from undertaking unnecessary medical or surgical procedures on patients without their informed consent. The Law also provides a grievance process that protects both patients and doctors by affording them with the right to have their appeals thoroughly reviewed by the Supreme Committee.</p>\r\n<p class=\"p1\">The changes in the New Law safeguard the legal interests of both patients and doctors. Consequently, the New Law is expected to enhance the quality and delivery of healthcare in the UAE and the manner in which medical malpractice cases are managed before the judicial authorities.</p>'),
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	(101524,5518,'content_description','The importation of pharmaceutical products into Gulf Corporation Council (‘GCC’) states can be complicated. In previous Law Update articles, we have written extensively on the topic of obtaining product registration approvals. In this article we address the requirement to have a certificate of origin (‘COO’) and examine the variations in practice across GCC states.'),
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	(101526,5518,'pageSummary','The importation of pharmaceutical products into Gulf Corporation Council (‘GCC’) states can be complicated. In previous Law Update articles, we have written extensively on the topic of obtaining product registration approvals. In this article we address the requirement to have a certificate of origin (‘COO’) and examine the variations in practice across GCC states.'),
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	(101534,5518,'_yoast_wpseo_metadesc','Al Tamimi & Company address the requirement to have a certificate of origin (‘COO’) and examine the variations in practice across GCC states.'),
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	(101535,5519,'content','<p class=\"p1\">In order to legitimately commercialise pharmaceutical products in the GCC, a foreign manufacture would need to either (i) establish a local presence in the relevant country, or (ii) appoint a local agent for that country. In our experience, most foreign pharmaceutical companies will not have a legal presence in the territory that is authorised to undertake distribution. There are obviously separate considerations to be born in mind in the event that a foreign manufacturer does wish to establish a local presence, such as foreign ownership restrictions and sponsorship arrangements, but these fall outside the scope of this article.</p>\r\n<p class=\"p1\">Consequently, where a foreign manufacturer does not have a local presence, it cannot directly obtain the product registration required in the country, or any other of the necessary approvals for importing, distributing, or advertising its pharmaceutical products without the use of a local partner. As a result, many pharmaceutical companies will call upon the services of a local (appropriately licensed) agent as an alternate means to procure all necessary approvals and distribute its pharmaceutical products in the country. This is a very popular, and relatively simple, method of facilitating the distribution of pharmaceutical products throughout the GCC and can provide a foreign manufacturer with valuable local knowledge and resource, allowing it to benefit from associations and sale channels that an agent may have forged over a number of years.</p>\r\n<p class=\"p1\">Nevertheless, whilst these types of arrangement can be very beneficial to a foreign manufacturer it is important that a foreign manufacturer considers the local regulatory and local law issues that could affect the pharmaceutical products on route to market. What follows is a brief overview of such considerations, but specific advice should, of course, be sought before entering a new market to ensure compliance with local laws and regulations and to obtain further insight into local law considerations that could impact on the proposed arrangement. This is certainly the case in respect of the distribution of pharmaceutical products in the GCC.</p>\r\n<p class=\"p2\"><strong>Regulatory Background – UAE Pharmaceuticals</strong></p>\r\n<p class=\"p2\">Under United Arab Emirates (“<strong>UAE</strong>”)  federal law, no medicine or pharmaceutical preparation may be put into circulation except after registration of the product with the Ministry of Health and Prevention (“<strong>Ministry</strong>”). In order to register a pharmaceutical with the Ministry, a new drug application must be submitted, accompanied by various supporting documents.  Specifically, the application must be made by the market authorisation holder from the country of origin, jointly with the local authorised representative. The local authorised representative must be explicitly designated by the foreign manufacturer to act in the UAE, on behalf of the manufacturer, with regard to the manufacturer’s legal obligations and responsibilities.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The local authorised representative may be the licensed distributor of the product or a separate authorised representative. If the local distributor is to act as the local authorised representative as well, the distributor must show evidence of its ability to effectively fulfil the regulatory responsibilities required by the Ministry. For example, the local authorised representative is fully responsible for the product and the post-market plan for handling complaints or recall. Further, the local authorised representative is responsible for fully complying with the requirements of the Ministry after placing the product on the market.  </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> Regarding the local agent, in order to import pharmaceuticals (and this also applies to medical devices) into the UAE, the importing company must be an individual or entity established in the UAE and licensed to import medical products. With regards to an individual, only UAE nationals may apply in their individual capacity to be a registered importer of pharmaceuticals. While in the past only companies wholly owned by UAE nationals could apply for a licence to import medical products, currently companies owned by both a UAE shareholder and a foreign shareholder may also apply for such a licence, subject to foreign ownership restrictions. However, companies with 100% foreign ownership cannot yet apply for a pharmaceutical importation licence. Therefore, for companies wishing to import pharmaceuticals into the UAE, there are two options: 1) incorporate a UAE entity in which they are a shareholder jointly with a UAE national, and undertake the licensing process with the Ministry or 2) engage a distributor agent which is already licensed through the Ministry. </span></p>\r\n<p class=\"p2\"><strong>UAE Commercial Agency </strong></p>\r\n<p class=\"p2\">Typically, pharmaceutical companies will call upon the services of a locally licensed agent to distribute its pharmaceutical products in the country. Consequently, a foreign pharmaceutical company should be aware of local laws that could have application to the distribution arrangement.</p>\r\n<p class=\"p1\"><span class=\"s4\"> In respect of the UAE, the registration of a distribution agreement at the Ministry of Economy (“<strong>MOE</strong>”) (more specifically the commercial agencies register) under Federal Law No. 18 of 1981 Concerning the Organisation of Trade Agencies, as amended (“<strong>Agency Law</strong>”)) has been covered numerous times in previous Law Update articles, and is an important consideration for a foreign manufacturer to consider. </span></p>\r\n<p class=\"p1\">In order to qualify for registration at the MOE, the local agent must meet certain qualification criteria, which can be briefly summarised as follows:</p>\r\n\r\n<ul>\r\n 	<li>the agent must be a UAE national or a UAE entity 100% owned by UAE nationals;</li>\r\n 	<li>exclusivity must be granted for one or more of the emirates; and</li>\r\n 	<li>technically, an agreement also must be notarized and in Arabic (and recently the MOE has been requiring a letter, from the foreign manufacturer, confirming it has no objection to registration), though we are aware that in circumstances where these formalities have not been carried out (i.e. no Arabic version/letter of consent not provided) it is possible for an agent to approach the MOE or local courts to seek an order for registration (provided they can show that they meet the prerequisite registration criteria).</li>\r\n</ul>\r\n<p class=\"p6\">There is sometimes a misunderstanding between the requirement for a local agent to be registered as the local authorised distributor with the Ministry, as referred to above, and a requirement for the local agent to be registered with the MOE.</p>\r\n<p class=\"p1\">In practical terms, the Ministry will only allow one distributor of pharmaceutical products in the UAE as a result of local pharmacovigilance and drug safety requirements (e.g. it is much easier to deal with one local agent who is recognised as the distributor for the pharmaceutical product in respect of, say, a recall). Generally speaking, we find that it is not unusual for a local agent to insist on being granted express “exclusivity” in the distribution agreement as a result of the fact that it will be ultimately responsible for the product in UAE (i.e. given this responsibility, it would want to control the distribution of the products itself and would not want to be responsible for the acts of other agents, notwithstanding, as mentioned above, that the Ministry will technically only permit one distributor for a pharmaceutical product to be registered with it).</p>\r\n<p class=\"p1\">Notwithstanding the commercial benefits to the local agent of exclusivity, a primary motive for an agent wanting an express grant of exclusivity under the relevant distribution agreement may be, as highlighted above, that it is one of the prerequisite criteria to effecting registration at the MOE. In the event the local agent is a UAE national or an entity wholly owned by UAE nationals, then the two principle requirements to achieve registration at the MOE would be satisfied and, in such circumstances, it would be unusual if a local agent did not try to register the agreement at the MOE given the significant protections it could benefit from under the Agency Law. Therefore, the ownership structure of the local agent is also a consideration in the event that exclusivity is being insisted upon by a local agent.</p>\r\n<p class=\"p1\">In the event that the local agent did obtain registered agent status at the MOE in respect of the pharmaceutical products listed under its relevant distribution agreement, then the local agent would be able to avail itself of the benefits afforded to registered agents under the Agency Law including:</p>\r\n<p class=\"p4\"><span class=\"s5\">the agent will have exclusivity to import and distribute the relevant pharmaceutical products in the agent’s registered territory (either part or the whole of the UAE subject to the definition of territory under the relevant distribution agreement);</span></p>\r\n\r\n<ul>\r\n 	<li>the agent can block third parties from importing the relevant products into its registered territory, whilst it remains the registered agent of those products at the MOE;</li>\r\n 	<li>the agent will be entitled to commission on every sale of the relevant products made in the agents territory, notwithstanding the fact that they may not have had any involvement in the transaction;</li>\r\n 	<li>the agent will be in a strong position to seek compensation upon termination; and</li>\r\n 	<li>the agent can only be terminated by the foreign principal by either (i) mutual consent of the parties or (ii) for “material reasons”, which are not further defined under the Agency Law and which the applicable local judicial bodies have interpreted narrowly (the result being that, notwithstanding any express right to terminate the agent under the relevant distribution agreement, the foreign principal may be unable to unilaterally terminate the local agent; essentially meaning that the local agent and foreign principal remain bound, regardless of the terms of the distribution agreement, until such time as the local agent is deregistered at the MOE).</li>\r\n</ul>\r\n<p class=\"p6\">Whilst the above are all significant consideration for a foreign manufacturer to bear in mind, the two key consequences of registration that predominantly concern a foreign manufacturer are (i) the right of the local agent to claim compensation upon termination of the arrangement and (ii) the ability of the local agent to block the pharmaceutical products for which it is a registered commercial agent at the MOE. The latter especially could have a significant impact on the foreign manufacturer’s ability to exploit the UAE as a market.</p>\r\n<p class=\"p2\"><strong>GCC Commercial Agency </strong></p>\r\n<p class=\"p2\">Similarly, there are commercial agency regimes in place throughout the GCC countries that extend similar rights to the local agents, though not all afford the local agent the right to block imports of the pharmaceutical products or, where such a right to request a block on importation exists, the relevant authorities may not be as willing to grant such a request. For example, in Qatar, a registered commercial agent is entitled to submit, without notice to the foreign manufacturer, a request to the Ministry of Economy and Commerce (“<strong>MEC</strong>”) to ban the importation of the products as a result of the termination or non-renewal of an agency agreement. However, it is our current understanding that such applications are usually declined by the MEC and we are not aware of such a ban being imposed on the importation of goods in Qatar since 2007. Notwithstanding this, there is obviously no guarantee that such an importation ban request, if submitted, would be denied by the MEC, so it is important that a foreign manufacturer take local law advice in order to minimise the potential post termination or non-renewal consequences that it could face. This again highlights the need for a foreign manufacturer to obtain local law advice in order to familiarise itself with local laws considerations and the potential impact of such on the ability to distribute its products in the region.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The above represents a general overview of the impact that commercial agency laws can have on these types of agency arrangements in respect of pharmaceutical products in the GCC and hopefully highlights the importance of obtaining local law advice in order to obtain knowledge of (i) local market practices and applicable regulatory regime, (ii) the benefits and pitfalls that a party may face upon termination or non-renewal of a commercial agency relationship, and (iii) the impact of any local laws -before any issues arise.</span></p>'),
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	(101520,5518,'content','<p class=\"p1\">A significant percentage of the pharmaceutical products imported into the GCC come from Europe and comply with the European requirement to have a COO. In Europe, the country of origin is determined by applying European Directive No. 952/2013 (‘<strong>European Code</strong>’) as follows:</p>\r\n<p class=\"p2\">goods, the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture;</p>\r\n<p class=\"p3\"> The accepted methodology to determine the foregoing is the ‘last/final customs tariff code change along the entire value chain of a certain product’. For pharmaceutical products, the last customs tariff code change is a change occurring on a bulk drug product level.</p>\r\n<p class=\"p1\">So the question is, could a European product, which already carries a COO, be sufficient to comply with the equivalent GCC requirements? The answer is both ‘yes’ and ‘no’, depending upon the local requirements of the country of import. In the GCC, some states follow the European approach, but insert a few unique differences. Unfamiliarity with these differences in either law, procedure, interpretation, or local approach can lead to products being held at customs and, in some cases, being returned to the home port.</p>\r\n<p class=\"p3\"><strong>GCC Common Customs Law</strong></p>\r\n<p class=\"p3\">Customs procedures in the GCC states follow a regional common customs law. The Common Customs Law of the GCC Member States (‘GCC Common Customs Law’) was adopted by the Supreme Council at the 20th Session (Riyadh, 27-29 November 1999) and implemented only as a reference law for one year from the date adopted by the Supreme Council. It was intended to be revised in the light of the comments received by the Secretariat General from each member state in an attempt to have the law compulsorily implemented by all the customs administrations of the GCC. The GCC Common Customs Law was re-published in 2008, with the only substantive changes being made to the introductory narrative.</p>\r\n<p class=\"p1\">According to Article 25 of the GCC Common Customs Law, ‘[i]mported goods are subject to the proof of origin according to the rules of origin adopted within the framework of the international and regional economic agreements in force’. The phrase, ‘within the framework of the international and regional economic agreements’, references the rules of origin requirements found in Annex K, Chapter 1 of the Revised Kyoto Convention on the Harmonisation and Standardisation of Customs Procedures, as amended (‘Revised Kyoto Convention’), which prescribes that where two or more countries have taken part in the production of the goods, the origin of the goods should be determined according to the substantial transformation criterion. Therefore, both the European Code and the GCC Common Customs Law follow the same basic principles.</p>\r\n<p class=\"p1\"><span class=\"s3\"> A number of states in the GCC (and wider region) are signatories to the Revised Kyoto Convention, which aims to standardise customs procedures and ensure that they are consistent with the practices of international trade, including the United Arab Emirates (‘UAE’), Kingdom of Saudi Arabia (‘KSA’), Qatar, Oman, and Bahrain. With regard to these countries, the rules regarding COO should be the same as for the European Code; however, this is not the case. (Kuwait is not a signatory to this convention.)</span></p>\r\n<p class=\"p1\"><span class=\"s4\"> The Revised Kyoto Convention prescribes that where two or more countries have taken part in the production of goods, the origin of the goods should be determined according to the substantial transformation criterion. In applying the substantial transformation criterion, use should be made of the World Customs Organisation’s International Convention on the Harmonized Commodity Description and Coding System (‘Harmonised System’). Each signatory state should follow the methodology set out in the Harmonised System when examining what constitutes a substantial transformation of goods. The recommended practice detailed by the Revised Kyoto Convention, Annex K, Chapter 1, is as follows:</span></p>\r\n\r\n<ul>\r\n 	<li>‘operations which do not contribute, or which contribute to only a small extent, to the essential characteristics or properties of the goods, and in particular operations confined to one or more of those listed below, should not be regarded as constituting substantial manufacturing or processing:</li>\r\n 	<li>operations necessary for the preservation of goods during transportation or storage;</li>\r\n 	<li>operations to improve the packaging or the marketable quality of the goods or to prepare them for shipment, such as breaking bulk, grouping of packages, sorting and grading, repacking;</li>\r\n 	<li>simple assembly operations; and</li>\r\n 	<li>mixing of goods of different origin, provided that the characteristics of the resulting product are not essentially different from the characteristics of the goods which have been mixed.’</li>\r\n 	<li>GCC customs authorities should also accept COO forms in the format and of the size laid out in the Revised Kyoto Convention. The following table confirms how the law is currently applied across the GCC states.</li>\r\n</ul>\r\n<p class=\"p8\"><span class=\"s2\"><strong>Other Matters to Consider</strong></span></p>\r\n<p class=\"p3\"><em>The balance of power – imports and distributor arrangements:</em></p>\r\n<p class=\"p1\">Once the issue of COO is resolved, each importing GCC state will then only permit imports from a company which is duly authorised to bring the products into the country. As a general rule, in order to import and distribute medical products in any of the GCC states, the importing company must be a locally established company. It is possible for a company owned by both a local shareholder and a foreign shareholder to apply for registration to import and distribute products. However, foreign producers with no established corporate presence will need to either establish a company with the necessary licence, or engage a distributor, or agent, which is already registered with the various competent authorities in the country into which the products are to be imported.</p>\r\n<p class=\"p8\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p7\"><span class=\"s1\">The importation procedures and the price of many pharmaceutical products are controlled at both the GCC and local member state. It remains the case across the GCC that local ministries of health (the bodies which register the products), typically permit only one distributor per product to be registered. This stringent and often lengthy process of product registration – including product evaluation, establishing pharmacovigilance systems, obtaining product labelling and COO compliance, and other matters - assists the regulator in tracking products being brought in-country, which, in-turn, reduces the risk of counterfeit products finding their way onto the shelves or parallel imports flooding the market. It also prevents and minimizes the risk of fraud and abuse within the supply-chain by those companies engaged in anti-competitive practices. These control mechanisms are expected to strengthen over time.</span></p>\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>GCC State</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>GCC Common Customs Law</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Revised Kyoto Convention</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Variation</strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>UAE</strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  Local variation of procedure may affect imports into various Free Zones. <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>KSA</strong></span> <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  None</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>QATAR</strong></span> <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  None</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>OMAN</strong></span> <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Signatory</td>\r\n<td class=\"td1\" valign=\"top\">  None</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>KUWAIT</strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  N/A</td>\r\n<td class=\"td1\" valign=\"top\">  The applicable Kuwaiti laws provide that the site of production is part of the product licence. If the production site is changed, the licence has to be updated or it is no longer valid. Therefore, in Kuwait, the COO is linked to the site of the manufacturer.  <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>BAHRAIN</strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  The country of origin is the country in which the Certificate of Pharmaceutical Products (‘CPP’) has been issued. The CPP should be legalised from the batch releaser country, which is considered the country of origin even if the bulk pharmaceutical active ingredients were manufactured elsewhere and only packed in the batch releaser country. <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n</tbody>\r\n</table>'),
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	(101463,5515,'content_description','Abu Dhabi Judicial Department has recently announced that with effect from 1 January 2017 tenants in Abu Dhabi will need to ensure that their tenancy contracts are correctly registered in order to be protected in the event of a rental scam. '),
	(101464,5515,'_content_description','field_59b641c07f473'),
	(101465,5515,'pageSummary','Abu Dhabi Judicial Department has recently announced that with effect from 1 January 2017 tenants in Abu Dhabi will need to ensure that their tenancy contracts are correctly registered in order to be protected in the event of a rental scam.'),
	(101466,5515,'_pageSummary','field_59e59b307dec8'),
	(101467,5515,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/november-7/tenancy-contract-registration-in-abu-dhabi.html'),
	(101468,5515,'_currentURL','field_59d35123ab1e7'),
	(101469,5515,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','523'),
	(101470,5515,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(101471,5515,'lawUpdateArticleWriters_1_lawUpdateArticleWriter','552'),
	(101472,5515,'_lawUpdateArticleWriters_1_lawUpdateArticleWriter','field_59da2ac06b065'),
	(101473,5515,'lawUpdateArticleWriters','2'),
	(101474,5515,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(101475,5515,'_yoast_wpseo_metadesc','Abu Dhabi Judicial Department has recently announced that with effect from 1 January 2017 tenants in Abu Dhabi will need to ensure that their tenancy contracts are correctly registered in order to be protected in the event of a rental scam.'),
	(101476,5516,'content','November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>New Intermediate SPV Vehicles </strong></p>\r\n<p class=\"p2\">The DFSA and DIFC held a joint seminar on 31 October on structuring and the new ‘Intermediate SPV’ regime with the focus being on fund structuring. (‘Intermediate’ referring to such vehicles sitting in an intermediate position in a structure).</p>\r\n<p class=\"p1\">The Intermediate SPV is a recent development by the DIFC Authority which provides a cost effective option for establishing SPVs in the DIFC (i.e., only US$1,000) not just in respect of fund structures but across the board.</p>\r\n<p class=\"p1\">There has been the option to establish Special Purpose Companies in the DIFC previously, and this option remains, but these are comparatively expensive and process-heavy to set up. The new Intermediate SPVs will be cheaper and easier to establish. No change of law or rules has occurred as yet, but the entities are available now through standardised waivers which will apply when an application is made to the DIFC Authority.</p>\r\n<p class=\"p1\">However, the Intermediate SPVs will only be available to entities that already have a substantive presence in the DIFC (i.e., fund managers, asset managers, family offices etc).</p>\r\n<p class=\"p1\">This development is a step closer to what the ADGM offers by way of SPVs and will make life easier and cheaper as far as structuring options go for existing DIFC entities, but doesn’t go quite as far as the ADGM regime due to the requirement to already have a substantive DIFC presence.</p>\r\n<p class=\"p4\"><strong>Amendments to DFSA Legislation</strong></p>\r\n<p class=\"p2\">On 22 June 2016, the DFSA published a notice of amendments to the DFSA Rulebook based on the changes proposed in consultation paper 103 and consultation paper 105. This includes changes to the insurance regime, the AML Annual Return deadline and stipulations for communications with the DFSA. These amendments came into effect on 1 August 2016.</p>\r\n<p class=\"p1\"><em>Changes to the insurance regime</em></p>\r\n<p class=\"p1\">The recent amendments have provided for the below changes to the DFSA’s insurance regime:</p>\r\n\r\n<ul>\r\n 	<li>Clarification that Insurers Effecting Contracts of Insurance can give advice and undertake Insurance Intermediation activities relating to their own products and those of Group members.</li>\r\n 	<li>The definition of Insurance Intermediation has been expanded to cover operators of aggregation sites.</li>\r\n 	<li>The exclusions to Insurance Intermediation and Insurance Management have been amended to cover various activities which are not intended to regulated as financial services.</li>\r\n 	<li>Removal of the overlap between Insurance Intermediation and Insurance Management.</li>\r\n 	<li>Introduction of the new defined terms ‘Insurance Agents’ and ‘Insurance Brokers’.</li>\r\n 	<li>Clarification around the application of the Conduct of Business requirements to reinsurance activities.</li>\r\n 	<li>More clarity around disclosure requirement in relation to conflicts of interests arising from ownership links.</li>\r\n 	<li>The Expenditure Based Capital Minimum requirement applicable to Insurance Intermediaries handling Insurance Monies has been lowered from 18 weeks of operational expenditure to 9 weeks of operational expenditure.</li>\r\n 	<li>Requirements for Insurance Managers to give some additional declarations in their annual return.</li>\r\n 	<li>The introduction of new reporting requirements for Insurers, including branches, and also for Insurance Managers which conduct underwriting activities.</li>\r\n</ul>\r\n<p class=\"p2\"><em>Online Applications and Submission of Data to the DFSA</em></p>\r\n<p class=\"p1\"><span class=\"s2\">The legislative changes that were set out in Consultation Paper No.105 have now been implemented. Essentially the DFSA intend to increase the range of transactions, and interactions, which can take place online. The DFSA will introduce an online portal that will allow entities and individuals to submit electronic data directly to the DFSA. The portal will be accessible from the DFSA website, in the same way as is currently the case for the Electronic Prudential Reporting System. </span></p>\r\n<p class=\"p1\">In the first phase of work, which is intend to be complete by the end of 2016, various DFSA authorization application forms and the Annual AML return will be made available through the online portal.</p>\r\n<p class=\"p1\">Additionally, the timing of submission of the annual AML return has changed. Instead of being due four months’ after the end of the Relevant Person’s financial year, this return will in future be due by the end of September each year and the report must cover the period from August of the previous year up to and including July of the lodgement year.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Regulatory Actions</strong></span></p>\r\n<p class=\"p2\"><em>Authorised Firm conducting prohibited insurance activity in the UAE</em></p>\r\n<p class=\"p1\">On the 21 September 2016 the DFSA issued a Decision Notice and imposed a fine of USD 85,191 on an Authorised Firm, who is licensed to provide the Financial Service of Insurance Intermediation. The fine was imposed following a DFSA investigation conducted in collaboration with the United Arab Emirates Insurance Authority.</p>\r\n<p class=\"p1\">Under the DFSA Rulebook Authorised Firms are prohibited from intermediating a Contract of Insurance for a risk situated in the UAE unless:</p>\r\n\r\n<ul>\r\n 	<li>the risk is situated in the DIFC; or</li>\r\n 	<li>the contract is one of re-insurance.</li>\r\n</ul>\r\n<p class=\"p7\">The DFSA’s investigation identified that the Authorised Firm intermediated contracts of Insurance for customers with risks situated in the UAE and outside the DIFC, which were not contracts of re-insurance in breach of the abovementioned DFSA Rules. The Authorised Firm also and failed to have adequate systems and controls in place to detect, monitor and prevent such activities from occurring.</p>\r\n<p class=\"p8\"><em>DFSA concerns over Authorised Firm’s AML systems and licensed activities</em></p>\r\n<p class=\"p1\">On the 18 of October 2016 the DFSA accepted an Enforceable Undertaking from an Authorised Firm as a result of the DFSA concerns about the firm’s anti-money laundering systems and controls, and about whether it had carried out the Financial Service of Providing Custody to its clients without being licensed to do so. Although the firm did not agree with the DFSA’s findings, it acknowledges the DFSA’s concerns and agrees to engage an independent expert to ensure that the concerns are remedied.</p>\r\n<p class=\"p1\">The firm also agreed to pay a financial penalty of USD 60,000 to the DFSA of which USD 30,000 is payable on or by 17 November 2016. The remaining USD 30,000 is suspended indefinitely and becomes payable if the firm fails to comply with the Enforceable Undertaking.</p>\r\n<p class=\"p2\"><strong>Future Amendments to DFSA Legislation</strong></p>\r\n<p class=\"p2\">To complete our summary of regulatory updates in the DIFC, we also feel is of importance to mention the following proposed amendments to the DFSA Rulebook that have been addressed in the below listed consultation papers. Please note all three of these consultation papers have finished their consultation period and the proposed amendments to the DFSA Rulebook will be implemented when the relevant Rulemaking instruments are issued by the DFSA. Below is a summary of the changes that each Consultation paper has proposed.</p>\r\n<p class=\"p1\">Please note the proposed changes will not come into force until the relevant Rulemaking instrument has been published by the DFSA and please also be aware that the proposals contained within the consultation papers may change. Therefore ultimately only the text of the amended Rulebook and/or Law as published in the Rulemaking instrument can be relied upon.</p>\r\n<p class=\"p1\"><em>Consultation paper 106</em></p>\r\n<p class=\"p1\">The DFSA issued Consultation paper 106 due to what they felt was a lack of clarity in some areas of regulation. Therefore Consultation paper 106 proposes to provide greater clarity to the meaning and scope of ‘arranging’ related Financial Services, Operating a Representative Office and the Financial Promotions regime.</p>\r\n<p class=\"p1\">In summary, the Consultation paper proposes to make the following changes:</p>\r\n\r\n<ul>\r\n 	<li>combine arranging and advising activities relating to credit into a new separate Financial Service of ‘Arranging and Advising on Credit’;</li>\r\n 	<li>provide clarity on how arranging activities can be distinguished from the Financial Service or financial product to which that activity relates, such as the distinction between:</li>\r\n</ul>\r\n1. ‘Arranging Deals in Investments’ and ‘Dealing in Investments as Agent’; and\r\n\r\n2. ‘Arranging Custody’ and ‘Providing Custody’.\r\n<ul>\r\n 	<li>introduce clarifications about what Financial Services an Insurance Broker and an Insurance Agent require;</li>\r\n 	<li>provide for some changes to the activities excluded from regulation under arranging and advising;</li>\r\n 	<li>provide guidance to create clarity about the intended scope of a Representative Office licence;</li>\r\n 	<li>remove the application of the Client Asset provisions to firms ‘Arranging Custody’; and</li>\r\n 	<li>refine the Financial Promotions regime to minimise the risk of abuse of that regime.</li>\r\n</ul>\r\n<p class=\"p7\">In light of the above proposals, when they come in force, some Authorised Firms may need Licences for a different type of activity than they currently hold. It is proposed that the DFSA would generally allow a period of six months for the firms to complete the necessary formalities to obtain the right type of Licence. Representative Offices and persons carrying out Financial Promotions which act beyond the scope of their Licences or of the DFSA Rules, as would be clarified under these proposals, would need to cease such activities immediately.</p>\r\n<p class=\"p7\"><em>Consultation paper 107</em></p>\r\n<p class=\"p1\">In consultation paper 107, the DFSA is proposing changes to the Anti-Money Laundering, Counter-Terrorist Financing and Sanctions Module (‘AML Module’) in order to make sure that the regime remains up-to-date in light of the 2012 Financial Action Task Force Recommendations and the recent amendments made to the UAE Federal Law No.4 of 2002 and other UAE AML Legislation.</p>\r\n<p class=\"p1\">In summary, the Consultation paper proposes to make the following changes in the AML Module:</p>\r\n\r\n<ul>\r\n 	<li>Amend various definitions in order to reflect updates to the UAE Federal AML Laws.</li>\r\n 	<li>Provide further clarity in relation to applying a Risk Based Approach.</li>\r\n 	<li>updates relating to the prohibition on dealing with Shell Banks and opening anonymous accounts.</li>\r\n 	<li>Provide further guidance on what measures should be taken to understand a client’s source of wealth and source of funds and when identifying ultimate beneficial owners.</li>\r\n 	<li>Amend the guidance regarding outsourcing customer due diligence.</li>\r\n 	<li>Amend the application of the ‘Sanctions and other international obligations’, the ‘Money Laundering Reporting Officer’ and the ‘Suspicious Activity Reports’ Chapters to apply to all persons that the AML Module applies to.</li>\r\n 	<li>Provide guidance about the application of United Nations Security Council resolutions.</li>\r\n 	<li>Provide guidance around the DFSA’s processes in relation to freezing of funds or assets.</li>\r\n 	<li>Provide further guidance around what activities are captured under the current Designated Non-Financial Business or Professions definition.</li>\r\n</ul>\r\n<p class=\"p2\"><em>Consultation paper 108</em></p>\r\n<p class=\"p1\">In consultation paper 108 the DFSA is proposing amendments to the capital requirements for managers of collective investment funds and amendments to the rules regarding reporting suspicions of market abuse.</p>\r\n<p class=\"p1\">In relation to capital requirements for managers of collective investment funds, it is proposed to leave the required expenditure based capital minimum as it is. However the DFSA proposes to reduce the Base Capital Requirement for: a) managers of Public Funds to USD 140,000; and b) managers of Exempt Funds and QIFs to USD 70,000.</p>\r\n<p class=\"p1\">An obligation to report suspicions of market abuse to the DFSA is currently imposed on market operators (i.e. Operators of Authorised Market Institutions and of Alternative Trading Systems). However there is not an explicit obligation on Authorised Firms to report suspicions of market abuse by others for whom the firm may be acting. Therefore the DFSA proposes to amend the DFSA Rulebook so that Authorised Firms and Recognised Members are under an explicit obligation to report suspicions of market abuse to the DFSA.</p>'),
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	(101480,5516,'content_description','This article is a summary of some key financial services regulatory developments that have been implemented in the Dubai International Financial Centre (“DIFC”) in recent months. There have been several amendments to the Dubai Financial Services Authority (“DFSA”) Rules in 2016. In this article we highlight some of the more recent changes in the DIFC and to the DFSA Rulebook that may be of interest to some of our clients who are either already present in the DIFC or who are looking to establish a presence in the DIFC.'),
	(101481,5516,'_content_description','field_59b641c07f473'),
	(101482,5516,'pageSummary','This article is a summary of some key financial services regulatory developments that have been implemented in the Dubai International Financial Centre (“DIFC”) in recent months. There have been several amendments to the Dubai Financial Services Authority (“DFSA”) Rules in 2016. In this article we highlight some of the more recent changes in the DIFC and to the DFSA Rulebook that may be of interest to some of our clients who are either already present in the DIFC or who are looking to establish a presence in the DIFC.'),
	(101483,5516,'_pageSummary','field_59e59b307dec8'),
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	(101496,5516,'_yoast_wpseo_metadesc','Al Tamimi & Company highlights some of the more recent changes in the DIFC and to the DFSA Rulebook that may be of interest to some of our clients who are either already present in the DIFC or who are looking to establish a presence in the DIFC.'),
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	(101497,5517,'content','November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><em>In a data protection context, a ‘data controller’ can broadly be understood as someone (usually a corporate entity) who determines the purposes for which personal data is processed. ‘Personal data’ can generally be understood as data relating to an identifiable natural person, and a ‘data subject’ can be understood as the identifiable natural person to whom such personal data relates. The concept of ‘processing’ is very broad, and can include the collection, recording, organization, storage, adaption or alteration, retrieval, consultation, use, disclosure, transmission, dissemination, combination, erasure or destruction of personal data.</em></p>\r\n<strong>Information obligations</strong>\r\n\r\nData controllers need to provide data subjects with certain information to ensure that the processing of such data subjects’ personal data is fair and legitimate. This needs to be considered when preparing or reviewing privacy policies intended to serve as formal notification to data subjects of such personal data processing activities.\r\n\r\nWhether or not personal data is collected directly from data subjects, in each of the relevant jurisdictions data subjects must be informed of the identity of the data controller, the purposes of the intended processing of personal data, and any further information necessary to guarantee fair processing in relation to the data subject; having regard to the specific circumstances in which the personal data is collected. The latter may include:\r\n<ul>\r\n 	<li>the recipients or categories of recipients of the personal data;</li>\r\n 	<li>the existence of the right of access to and the right to rectify the personal data;</li>\r\n 	<li>whether the personal data will be used for direct marketing purposes; and</li>\r\n 	<li>whether the transfer of personal data or processing of sensitive personal data is necessary to uphold the legitimate interests of the data controller recognized in the international financial markets.</li>\r\n</ul>\r\nWhere personal data is collected directly from the data subject, information on whether replies to questions are obligatory or voluntary, as well as the possible consequences of failure to reply, should also be communicated to the data subject to ensure fair processing. Where personal data is not collected directly from the data subject, information on the category of personal data concerned should also be communicated to the data subject to ensure fair processing.\r\n\r\nThe data controller need not provide information that the data controller reasonably expects the data subject already has. Additionally, in the case of personal data not collected directly from the data subject, the provision of the information contemplated above is not required if it proves impossible to do so or would involve a disproportionate effort.\r\n\r\n<span class=\"s2\"> The manner in which such information is communicated to the data subject is not prescribed, although it needs to be consistent with the general obligation to process personal data fairly. </span>\r\n\r\n<strong>Right to access; right to rectify</strong>\r\n\r\nIn addition to the right to be provided with certain information as outlined above, the data protection laws and regulations in the DIFC, ADGM and QFC also provide data subjects with certain other rights with regard to access to, and rectification, erasure or blocking of, personal data, as well as a right to object to processing.\r\n\r\n<span class=\"s3\"> A data subject has the right to obtain from the data controller upon request, at reasonable intervals and without excessive delay or expense:</span>\r\n<ul>\r\n 	<li>Confirmation in writing as to whether or not personal data relating to the data subject is being processed and, at a minimum, the purpose of processing, the categories of personal data concerned, and the recipients or categories of recipients to whom the personal data will be disclosed;</li>\r\n 	<li>Communication to the data subject, in an intelligible form, of the personal data undergoing processing and of any available information as to its source; and</li>\r\n 	<li>As appropriate, the rectification, erasure or blocking of personal data, the processing of which does not comply with the provisions of the applicable law or regulations.</li>\r\n</ul>\r\nA data subject also has the right to object to the processing of personal data at any time on reasonable grounds relating to the data subject’s particular situation; and the right to be informed before personal data is disclosed for the first time to third parties or used for the purposes of direct marketing, and to be expressly offered the right to object to such disclosures or uses.\r\n\r\nData subject access rights do not apply to the actions of the various regulators, authorities and companies’ registrars in the relevant jurisdictions if the application of such provisions would be likely to prejudice the proper discharge of the powers and functions of these entities, in so far as those powers and functions are designed to protect members of the public against dishonesty, malpractice or other seriously improper conduct.\r\n\r\nData controllers operating in the DIFC, ADGM and QFC need to be aware of their obligations with regard to properly informing data subjects of personal data processing involving such data subjects’ personal data, and addressing legitimate data subject access requests.\r\n\r\n&nbsp;\r\n\r\n<em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on data and data protection issues throughout the Middle East. For further information please contact Nick O’Connell (n.oconnell@tamimi.com) or Sana Saleem (s.saleem@tamimi.com). </em>\r\n\r\n&nbsp;'),
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	(101501,5517,'content_description','While not identical, many similarities can be found in the data protection laws and regulations of the Dubai International Financial Centre (‘DIFC’), the Abu Dhabi Global Market (‘ADGM’) (each being financial services free zones in the United Arab Emirates) and the Qatar Financial Centre (‘QFC’) (being a financial services licensing authority in Qatar). In this article, we focus on obligations to provide information to data subjects when gathering personal data, and the rights of data subjects to object to the processing of personal data relating to them. '),
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	(101503,5517,'pageSummary','While not identical, many similarities can be found in the data protection laws and regulations of the Dubai International Financial Centre (‘DIFC’), the Abu Dhabi Global Market (‘ADGM’) (each being financial services free zones in the United Arab Emirates) and the Qatar Financial Centre (‘QFC’) (being a financial services licensing authority in Qatar). In this article, we focus on obligations to provide information to data subjects when gathering personal data, and the rights of data subjects to object to the processing of personal data relating to them.'),
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	(94360,5124,'content_description','As people become more and more attached to their smart phones and tablets, your customers have come to expect to have free wireless internet connectivity when they are visiting your business premises - whether those premises are a cafe, hotel, restaurant or ordinary commercial premises. '),
	(94361,5124,'_content_description','field_59b641c07f473'),
	(94362,5124,'pageSummary','As people become more and more attached to their smart phones and tablets, your customers have come to expect to have free wireless internet connectivity when they are visiting your business premises - whether those premises are a cafe, hotel, restaurant or ordinary commercial premises.'),
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	(94370,5124,'_yoast_wpseo_metadesc','As people become more and more attached to their smart phones and tablets, your customers have come to expect to have free wireless internet connectivity when they are visiting your business premises - whether those premises are a cafe, hotel, restaurant or ordinary commercial premises.'),
	(94371,5125,'content','April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Whilst there are many benefits to this, the potential pitfall is that UAE nationals are in some sectors being overlooked for roles in favour of their expatriate counterparts. Year on year statistics and comparative studies at various levels continue to highlight the growing divide between the hiring of UAE nationals in the public and private sectors, as well as the increasing need to effectively redress this imbalance to ensure UAE nationals are gaining meaningful employment in the private sector, and are not being recruited solely to meet Emiratisation targets or employer-specific quotas.</p>\r\n<p class=\"MsoNormal\">This article sets out a brief recap of the Emiratisation laws applied in the private sector.</p>\r\n<p class=\"MsoNormal\"><strong>Scope of Emiratisation Laws</strong></p>\r\n<p class=\"MsoNormal\">The UAE Labour Law provides that foreign nationals can only be employed after approval from the Ministry of Labour and only where there are no qualified UAE nationals to undertake the role. These preferential provisions are an extension of the UAE Constitution which states that the UAE Government must ensure that employment is available for all UAE nationals.</p>\r\n<p class=\"MsoNormal\">Despite this, UAE nationals are under-represented in the private sector. Accordingly, in recent years, a number of ministerial orders have been implemented with a view to increasing employment of UAE nationals in all areas with a particular focus on the private sector.</p>\r\n<p class=\"MsoNormal\"><strong> </strong></p>\r\n<p class=\"MsoNormal\">Ministerial Orders No. 41, No. 42 and No. 43 of 2005 impose on private sector employers a “quota” system, whereby every company is obliged to recruit (and retain on the payroll) a sufficient number of UAE nationals to ensure that the UAE nationals component of its workforce constitutes a specified (minimum) percentage of the overall number of staff.</p>\r\n<p class=\"MsoNormal\">The applicable quotas are as follows:</p>\r\n\r\n<ul>\r\n 	<li>\r\n<div class=\"MsoNormal\">2% for commercial entities (where the entity has over 50 employees);</div></li>\r\n 	<li>4% for banks; and</li>\r\n 	<li>5% for insurance companies (where the entity has over 50 employees).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"MsoNormal\">Irrespective of the above, the Central Bank and Insurance Authority have the discretion to determine quotas and year on year increases for banks and insurance companies.</p>\r\n<p class=\"MsoNormal\">In addition to the above, Council of Ministers Order No. 26 and Ministerial Order No. 1187, issued in August and November of 2010 respectively, implement a system of classification as an incentive to those adhering to their Emiratisation obligations.  Essentially, where employers strictly observe government policies with regard to Emiratisation they will not be required to provide a financial guarantee for employees. Companies with lower gradings are required to file mandatory financial guarantees, the amount of which will depend on the category of the employer (as set out in the relevant Order).</p>\r\n<p class=\"MsoNormal\">Strictly speaking, the rules do not apply in the free zones as they have their own employment regulations and in theory, their own Emiratisation requirements (although none of the free zones have yet implemented any Emiratisation requirements).</p>\r\n<p class=\"MsoNormal\"><strong>Specific Roles</strong></p>\r\n<p class=\"MsoNormal\">Ministerial Resolution No. (635) of 2008 on Public Relations Officers states that any company which employs over 100 workers must employ an UAE national PRO. There are no other role specific requirements in relation to Emiratisation.</p>\r\n<p class=\"MsoNormal\"><strong>Enforcement</strong></p>\r\n<p class=\"MsoNormal\">The rules and incentives set out above are useful in showing the intentions of the authorities in terms of Emiratisation. Practically however they are somewhat lacking in enforcement capabilities and in reality a relaxed approach has been taken in respect of meeting Emiratisation quotas.</p>\r\n<p class=\"MsoNormal\">The Ministry of Labour can block a work permit and residency visa application from any private-sector employer if unemployed registered nationals are qualified for the role. In practice however this does not often happen.</p>\r\n<p class=\"MsoNormal\">Whilst the Ministry of Labour does not take a very robust approach to Emiratisation, other authorities do. By way of example, in some cases the Insurance Authority has refused to renew commercial licences of businesses where Emiratisation targets are not met. Only when the employer demonstrates that it has met the Emiratisation quota has the commercial licence been renewed.</p>\r\n<p class=\"MsoNormal\">Going forward, the indications are that the UAE Government will take steps to increase Emiratisation but not by more rigorously policing whether quotas are being met. Instead, one indication of the Government’s approach to this is that the UAE Labour Law is to be amended to increase entitlements in the private sector to make jobs appealing to Emirati nationals. This is intended to close the perceived gap between the public and private sector insofar as pay and benefits are concerned.  <strong> </strong></p>\r\n<p class=\"MsoNormal\"><strong>Employment and termination of Emirati Nationals</strong><strong> </strong></p>\r\n<p class=\"MsoNormal\">The engaging of UAE national employees is a relatively simple process. It is significantly less complex than hiring non-UAE nationals insofar as there is no requirement to obtain a work visa for UAE national employees (although there is a requirement to obtain a work permit). Instead, an employer must notify the Labour Department within 15 days of appointing a UAE national employee and provide specific information in respect of the UAE national employee including a breakdown of their remuneration package.</p>\r\n<p class=\"MsoNormal\">In addition, the employer must enter into the Ministry of Labour UAE national standard form contract with the UAE national employee and file a signed copy of that agreement with the Labour Department. This does not preclude an employer entering into a supplemental employment contract containing further details of the tasks to be assigned to the employee, working conditions, confidentiality and intellectual property restrictions, restrictive covenants, etc. This is more usual where senior employees are concerned.</p>\r\n<p class=\"MsoNormal\">Every qualifying UAE national should also be registered by his or her employer with the General Pension and Social Security Authority (“<strong>GPSSA</strong>”) and thereafter the employer must provide pension contributions to the GPSSA on the employee’s behalf. Throughout employment, the GPSSA must also be kept up to date with any employment changes that may affect an employee\'s salary for instance periods of unpaid leave or work injuries.</p>\r\n<p class=\"MsoNormal\">Termination of UAE nationals is difficult. Essentially, termination of employment involving a UAE national is deemed to be ‘unlawful’ where:</p>\r\n\r\n<ul>\r\n 	<li>the dismissal is for a reason other than those set out in section 120 of the UAE Labour Law; or</li>\r\n 	<li>a non-UAE national working in the same position is retained; or</li>\r\n 	<li>the Ministry of Labour is not notified of the termination at least 30 days in advance.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Accordingly, employers are often unable to dismiss employees who are, for example, poor performers since this reason does not fall within the exhaustive list set out in Article 120 of the Labour Law. Where dismissals do involve UAE nationals, it is advisable for employers to seek advice before taking any action to ensure that they do not fall foul of the rigid guidelines in place in this regard.</p>'),
	(174376,5125,'core_values',''),
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	(94044,5107,'_pageSummary','field_59e59b307dec8'),
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	(101459,5515,'content','November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Abu Dhabi Executive Council Resolution on the Rules and Procedures of Registration of Tenancy Contracts in the Emirate of Abu Dhabi (Chairman of the Executive Council Resolution No. 4 of 2011) created an obligation on landlords and tenants with tenancy contracts with terms of less than 4 years to register their tenancy contracts with the Tawtheeq department at the relevant Municipality in the Emirate (Abu Dhabi Municipality, Al Ain Municipality or the Western Region Municipality, as applicable). Tawtheeq carries out cross-checks with the land registration records held by the Municipalities to ensure that landlords leasing properties are the legal owners of those properties and therefore registration of tenancy contracts should ensure that there are fewer rental fraud cases.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Abu Dhabi Judicial Department have reported that they continue to see many cases where tenants are defrauded by bogus landlords who lease properties to numerous parties, collect advance rent and then disappear before the scam is uncovered. </span></p>\r\n<p class=\"p1\">The primary responsibility for checking a landlord’s title to a property and its capacity to lease the property remains with tenants. It is recommended that all tenants request a copy of the landlord’s title deed or sale and purchase agreement (SPA) to the property and the landlord’s passport copy or Emirates ID before signing any tenancy contract or handing over a rent cheque. Since the introduction of the law on the Regulation of the Real Estate Sector in the Emirate of Abu Dhabi (Law No. 3 of 2015) earlier this year, tenants should also check that the real estate broker they are dealing with has been correctly licensed and registered with Abu Dhabi Municipality (“ADM”) and the Department of Economic Development (“DED”). The tenant should ask the broker for a copy of the real estate brokerage licence issued by ADM, trade licence for the real estate brokerage company issued by DED and a copy of his or her individual licence to operate as a real estate broker in Abu Dhabi issued by ADM. If a broker is unable to produce these licences then that should be a red flag to a potential tenant that the broker is operating illegally and is not a reputable business.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Tawtheeq registration also protects a tenant from the possibility that the property they wish to lease is an illegally sub-divided unit. Apartments created from the illegal sub-division of villas will not be accepted for registration by Tawtheeq. Without a correctly registered Tawtheeq tenancy contract a tenant will face many difficulties when dealing with government departments or utility providers. A Tawtheeq tenancy contract is required for water, electricity, telephone and internet connections, Mawaqif parking permits and for the sponsorship of family members.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> It is primarily the responsibility of the landlord to register with Tawtheeq however if the landlord refuses to register then the tenant can complain to the Abu Dhabi Rent Dispute Committee which can order that the tenancy contract must be registered.</span></p>'),
	(158061,5515,'core_values',''),
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	(101458,5514,'_yoast_wpseo_metadesc','Al Tamimi & Company goes over the registration requirements of short term leases in Northern Emirates namely, Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah.'),
	(218919,7662,'_contact_no','field_59b27032b438b'),
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	(101448,5514,'content_description','In Part 1 of this series published in September 2016 of Law Update, we examined the registration requirements of short term leases in Dubai, Abu Dhabi and Sharjah. Continuing on with the series, in Part II, we will go over the registration requirements of short term leases in Northern Emirates namely, Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah. '),
	(101449,5514,'_content_description','field_59b641c07f473'),
	(101450,5514,'pageSummary','In Part 1 of this series published in September 2016 of Law Update, we examined the registration requirements of short term leases in Dubai, Abu Dhabi and Sharjah. Continuing on with the series, in Part II, we will go over the registration requirements of short term leases in Northern Emirates namely, Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah.'),
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	(101444,5514,'content','November 2016\r\n\r\n<hr />\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>No.</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Description</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Ras Al Khaimah</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Umm Al Quwain </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Ajman </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Fujairah</strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">1.</td>\r\n<td class=\"td2\" valign=\"middle\">Applicable Tenancy Laws</td>\r\n<td class=\"td2\" valign=\"middle\">The Emirate of Ras Al Khaimah currently does not have a law to regulate landlord and tenant relationships.  Therefore, the provisions of the UAE Civil Transactions Law No. 5 of 1985 apply to lease agreements in Ras Al Khaimah.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">Umm Al Quwain Law no. (3) of 2008 regulating the Relationship between Landlords and Tenants in the Emirate of Umm Al Quwain as amended by Law No. 2 of 2011</td>\r\n<td class=\"td2\" valign=\"middle\">Ajman Emiri Decree No. 3 of 2009 as amended by Emiri Decree No. 8 of 2014 promulgating the Amended Real Estate Leasing Law in the Emirate of Ajman</td>\r\n<td class=\"td2\" valign=\"middle\">Fujairah Law No. 1 of 2011 concerning leases of premises in the Emirate of Fujairah</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">2.</td>\r\n<td class=\"td1\" valign=\"middle\">Dispute Resolution Authority</td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s3\">Real Estate and Rental Dispute Settlement Committee deals with tenancy disputes between master developers affiliated with the Government of Ras Al Khaimah and third party tenant pursuant to RAK Emiri Decree No. 2 of 2012. </span> For all other tenancy disputes, the matter is referred to the Courts of Ras Al Khaimah.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\">Rent Dispute Settlement Committee formed pursuant to Law No. 3 of 2008 Amending Law No. 1 of 2006 Regulating Relationship Between Landlords and Tenants in the Emirate of Umm Al Quwain</td>\r\n<td class=\"td1\" valign=\"middle\">Rent Dispute Settlement Committee formed pursuant to Emiri Decree No. 3 of 2009 on the Promulgation of Amended Real Estate Rent Law in Ajman</td>\r\n<td class=\"td1\" valign=\"middle\">Committee for Resolution of Lease Disputes formed pursuant to Law No. 1 of 2011 concerning leases of premises in the Emirate of Fujairah</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">3.</td>\r\n<td class=\"td2\" valign=\"middle\">Leases that can be registered</td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that there is no prescribed tenure for short term leases in Ras Al Khaimah.</td>\r\n<td class=\"td2\" valign=\"middle\"><span class=\"s4\"> </span> <span class=\"s3\">Based on our discussions with the competent authorities that whilst there is no prescribed tenure for lease agreements in Umm Al Quwain, the lease agreement for residential use are usually between 1 to 5 years.</span> All commercial lease agreements do not exceed 1 year in tenure. <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that all short term lease agreements (i.e. for residential or commercial purposes) in Ajman do not exceed 12 months in tenure.</td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that all short term (i.e. residential, commercial or industrial) leases not exceeding 10 years in tenure can be registered.</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">4.</td>\r\n<td class=\"td1\" valign=\"middle\">Registration Fees</td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that 1% of the total rent value is payable for residential lease agreement with a minimum fee of AED 300; and 5% of the total rent value is payable for commercial lease agreements.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that a registration fee of 2% of the rent contract value is payable in cases of residential lease agreement;  10% of the rent contract value per annum is payable in cases of commercial lease agreement.</td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that 1% of the annual rent value is payable in cases of residential lease agreements;  10% of the annual rent value is payable for commercial lease agreements.</td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that if the rent amount is in the range of AED 1 to AED 15,000, then the registration fee payable is AED 300.  For rent amount exceeding AED 15,000, the registration fee is 2% of the total rental value.</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">5.</td>\r\n<td class=\"td2\" valign=\"middle\">Fees to obtain the standard contract documentation <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">AED 50</td>\r\n<td class=\"td2\" valign=\"middle\">AED 50</td>\r\n<td class=\"td2\" valign=\"middle\">Available free of cost at Ajman Municipality</td>\r\n<td class=\"td2\" valign=\"middle\">AED 50</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">6.</td>\r\n<td class=\"td1\" valign=\"middle\">Where to register?</td>\r\n<td class=\"td1\" valign=\"middle\">RAK Municipality</td>\r\n<td class=\"td1\" valign=\"middle\">Umm Al Quwain Municipality register the residential lease agreements. Department of Economic Affairs in Umm Al Quwain register the commercial lease agreements. <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\">Ajman Municipality</td>\r\n<td class=\"td1\" valign=\"middle\">Fujairah Municipality</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">7.</td>\r\n<td class=\"td2\" valign=\"middle\">Effects of non registration</td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that non registration does not affect the validity of the lease.  However, without registration a tenant is likely to face practical problems for example when renewing trade licenses, visa sponsorships and utility connections.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">Article 3 of Law No. 2 of 2011 states that the government departments and institutions shall not accept any lease contract in any transaction which requires submitting a copy of the lease contract unless such lease contract is issued and approved by the Umm Al Quwain Municipality and it is valid. The current policy of the Umm Al Quwain Municipality provides for imposition of a penalty for non registration in an amount of 1% of rent value in addition to the 2% registration fees.</td>\r\n<td class=\"td2\" valign=\"middle\">Article 4.1 of Emiri Decree No. 8 of 2014 provides that non registration of lease contracts will attract a fine equal to three times the contract attestation fee upon the landlord.  The tenant is likely to face practical problems for example when renewing trade licenses, visa sponsorships and utility connections.</td>\r\n<td class=\"td2\" valign=\"middle\">Article 4 (3) of Law No. 1 of 2011 provides that non registration of Fujairah leases would result in that none of the government or local department or institution in Fujairah would accept the tenancy contract without the registration with the Fujairah Municipality.  The Fujairah Municipality would accept the lease registration by recording the date of the tenancy contract in its contract authentication register maintained by the Municipality.  <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"p1\">Given that majority of the lease registration fee requirements is based on policies of the competent authorities in the respective Emirate, we recommend to verify with the competent authority prior to undertaking any lease registration.</p>'),
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	(101421,5513,'content_description','Two years ago, in the case of Banyan Tree v Meydan Group, an arbitral award rendered outside the Dubai International Financial Centre (DIFC) was enforced by the DIFC courts in circumstances where neither party was based nor had assets in the DIFC. The case demonstrated the willingness of the DIFC’s courts to enforce awards rendered ian Dubai (so called “onshore awards”), but still there remained uncertainty regarding the enforceability of such onshore awards. That uncertainty appears to have been removed, at least as far as awards rendered under the rules of arbitration of the Dubai International Arbitration Centre (DIAC) are concerned.\r\n'),
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	(101423,5513,'pageSummary','Two years ago, in the case of Banyan Tree v Meydan Group, an arbitral award rendered outside the Dubai International Financial Centre (DIFC) was enforced by the DIFC courts in circumstances where neither party was based nor had assets in the DIFC. The case demonstrated the willingness of the DIFC’s courts to enforce awards rendered ian Dubai (so called “onshore awards”), but still there remained uncertainty regarding the enforceability of such onshore awards. That uncertainty appears to have been removed, at least as far as awards rendered under the rules of arbitration of the Dubai International Arbitration Centre (DIAC) are concerned.'),
	(101424,5513,'_pageSummary','field_59e59b307dec8'),
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	(101398,5512,'content_description','Non-lawyers who find themselves involved with construction disputes may benefit from a basic understanding of how they are formally resolved in Dubai. This article provides a general overview of litigation, ad hoc arbitration and institutional arbitration in the context of construction disputes.'),
	(101399,5512,'_content_description','field_59b641c07f473'),
	(101400,5512,'pageSummary','Non-lawyers who find themselves involved with construction disputes may benefit from a basic understanding of how they are formally resolved in Dubai. This article provides a general overview of litigation, ad hoc arbitration and institutional arbitration in the context of construction disputes.'),
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	(101416,5512,'_yoast_wpseo_metadesc','Al Tamimi & Company provides a general overview of litigation, ad hoc arbitration and institutional arbitration in the context of construction disputes.'),
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	(101417,5513,'content','November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">On 20 September 2016, the DIFC Dispute Resolution Authority (DRA), a body that administers dispute resolution within the DIFC, signed a Memorandum of Understanding (MoU) with DIAC, an institution that provides dispute resolution and commercial arbitration services in Dubai, which is to facilitate the recognition, ratification and enforcement of DIAC arbitral awards in the DIFC.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The DRA was established pursuant to Law No. (7) of 2014 amending Law No. (9) of 2004 concerning the DIFC; it compromises of the DIFC Courts, DIFC Arbitration Institute, DIFC Wills and Probate Registry, and the DIFC Academy of Law. DIAC is an autonomous arbitration institution, which was established in Dubai in 2003 and is based at the Dubai Chamber of Commerce &amp; Industry. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The DRA and DIAC have entered into the MoU with the primary objective to cooperate and exchange information for the purpose of enhancing the expedited recognition, ratification and/or enforcement of DIAC arbitral awards by the DIFC Courts. The MoU promises to be a strategic opportunity for the onshore and offshore bodies, with the express intention to create “closer ties” and achieve mutual interests. Indeed, following the signing of the MoU, DIAC launched a new office in the DIFC on 27 September 2016, further strengthening its cooperation with the DRA. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> The MoU represents a significant step in Dubai’s efforts to market itself as a leading arbitration hub in the region, as the onshore and offshore entities join forces for their mutual benefit. The MoU lists as one of its objectives, the revision of applicable laws, regulations and rules, and development of programmes for the “benefit of the legal community in the Middle East”. The DRA and DIAC plan to further take steps to create awareness about each other and to provide insights into their respective rules and procedures. The parties also intend to explore engaging in joint marketing, joint training and joint legal community knowledge sharing. The presence of the new DIAC office in the DIFC manifests in a highly visible way the strategic collaboration between the DRA and DIAC.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> As the MoU marks another step forward for Dubai as a leading regional and international arbitration hub, it remains to be seen whether Abu Dhabi will follow in its footsteps. Will Abu Dhabi Global Market (ADGM), the newly established UAE arbitral seat, follow the DIFC’s lead in facilitating closer ties with onshore arbitration centres for strategic mutual benefit or take a different route altogether? </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Interesting times indeed for arbitration in the UAE. </span></p>\r\n<p class=\"p2\">See MoU between DIAC/DRA: <a href=\"http://difccourts.ae/wp-content/uploads/2016/09/MoU-between-DRA-and-DIAC-20-September-2016.pdf \" target=\"_blank\" rel=\"noopener\">http://difccourts.ae/wp-content/uploads/2016/09/MoU-between-DRA-and-DIAC-20-September-2016.pdf </a></p>\r\n<p class=\"p2\"><span class=\"s1\"> </span></p>\r\n<p class=\"p1\"><span class=\"s1\">*This article first appeared in the Kluwer Arbitration Blog on 28 October 2016.</span></p>'),
	(158257,5513,'core_values',''),
	(101394,5512,'content','November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Litigation </strong></p>\r\n<p class=\"p2\">Dubai is no different to any other jurisdiction in that an aggrieved party has a constitutional right to have its grievances heard in the local courts. What makes Dubai different is that it has two distinct court systems operating (some might say competing) within the same Emirate.</p>\r\n<p class=\"p1\">On the one hand there are the traditional local courts in what is known as ‘onshore’ Dubai. Whilst on the other hand there is the separate legal jurisdiction, known as ‘offshore’ Dubai, which is found within the geographical free zone district known as the Dubai International Financial Centre (‘DIFC”) and which has its own courts, i.e. the DIFC Courts.<sup>1</sup></p>\r\n<p class=\"p1\">The onshore courts apply local laws, including the UAE Civil Code and UAE Civil Procedures Laws, both of which are influenced by the sharia. All advocates are required to be Emirati and all proceedings (written and oral) are conducted in Arabic.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The offshore DIFC Courts, however, are modelled on the English Commercial Court and the substantive laws which apply in the DIFC closely resemble English common law (indeed, the latter acts as a default source of law). Its procedural rules are based on the English Civil Procedure Rules, proceedings are conducted in English and there is a system of binding precedent. </span></p>\r\n<p class=\"p1\">For the purposes of this article, only litigation in the local (non-DIFC) courts is considered.</p>\r\n<p class=\"p1\"><span class=\"s3\"> In terms of court structure, there is a Court of First Instance, Court of Appeal and a Court of Cassation. There is no system of binding precedent, but relevant Court of Cassation judgments are highly persuasive. There are no specialist construction courts or judges. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> Proceedings are started by filing a claim (Memorandum) along with payment of a court fee. The claimant will include the documents it relies on and is not obliged to disclose documents which are adverse to its own case. If not already in Arabic, these documents will need to be translated before being filed with the court. </span></p>\r\n<p class=\"p1\">Next, the court will fix a hearing date (normally within a month) and serve the claim on the defendant.</p>\r\n<p class=\"p1\"><span class=\"s3\"> At this first hearing the legal representatives of both parties will present their respective Powers of Attorney. Once the Powers of Attorney have been presented the courts will fix a date for the defendant to file its defence (a period of 2-3 weeks is normally allowed for this). The defendant can file a counterclaim with its defence. </span></p>\r\n<p class=\"p1\">As proceedings continue it is not unusual for there to be numerous exchanges of documents and each party asking the court for time to respond to such disclosure.</p>\r\n<p class=\"p1\">At some point the judge will take the view that the parties have sufficiently presented their respective cases and reserve the case for judgment. At this juncture, and if the judge decides that the case is sufficiently complex, a court appointed expert may be appointed (occasionally, this appointment may be made much earlier, especially in the case of urgent matters).</p>\r\n<p class=\"p1\">Whilst it is highly unlikely that the local courts will hear evidence from party-appointed experts in construction disputes, it is possible (sometimes necessary) that their reports will be used in the presentation of a party’s case in front of the court appointed expert. Therefore, it is crucial that a party engages an experienced construction litigator in the local courts who knows what level of detail will be required in preparing and presenting a case before the court appointed expert.</p>\r\n<p class=\"p1\">Upon receipt of the court appointed expert’s report the court will fix a date for judgment. If an expert is involved the whole process can take up 2 years from the filing of the claim until a Court of First Instance judgment is delivered.</p>\r\n<p class=\"p1\">Any appeal from the Court of First Instance must be made within 30 days of the date of judgment and appeals can relate to both fact and law, which effectively means a rehearing. Any appeal from the Court of Appeal must again be made within 30 days but can only be made on the basis of a point of law. Interestingly, no permission is needed because there is an automatic right of appeal.</p>\r\n<p class=\"p1\">Whilst it is possible for the local courts to make an award of inter partes legal costs in favour of the winning party for its attorney’s fees, such an award will be minimal.</p>\r\n<p class=\"p1\">In terms of evidence, the local courts will very rarely entertain live witness testimony. The proceedings are generally conducted on a ‘documents only’ basis with submissions on law made by the local advocates. Importantly, the ‘without prejudice’ rule does not apply in ‘onshore’ Dubai.</p>\r\n<p class=\"p1\">Once a judgment has been handed down the winning party will then seek to enforce its entitlement if the losing party doesn’t pay and this is normally done by way of obtaining an attachment (which operates similar to the common law injunction known as a ‘freezing order’) and execution via the execution court. Other than attachment orders there is no system of interim injunctive relief in the local courts, i.e. there is no summary judgment (except for some very special and limited circumstances), which can cause problems in terms of enforcing mediated settlement agreements of DAB decisions.</p>\r\n<p class=\"p2\"><strong>Ad Hoc Arbitration </strong></p>\r\n<p class=\"p4\">For an ad hoc arbitration to work best there needs to be: (i) cooperation between both parties and their respective lawyers; (ii) the parties’ lawyers need to be familiar with the arbitral process; and (iii) there should be a comprehensive arbitration law.</p>\r\n<p class=\"p1\">Before commencing an arbitration the validity of the arbitration agreement and the authority of those who agreed to it should be carefully checked. In Dubai it is advisable that a Special Power of Attorney be obtained so as to be able to agree to arbitrate and to represent a party in the proceedings (Article 58 UAE Civil Procedures Law).</p>\r\n<p class=\"p1\">Arbitral proceedings are commenced when one party (the Claimant) serves a Notice to Arbitrate on the other party (the Respondent). Ordinarily, there is no requirement in an ad hoc arbitration for a responding party to file an Answer.</p>\r\n<p class=\"p1\">The UAE’s arbitration law is silent on how many arbitrators will make up the Tribunal, other than it must be an odd number. In terms of complex construction disputes it is usual to agree on a 3-person Tribunal. Unless such matters can be agreed, there is a risk that the local courts will decide that a sole arbitrator is to be appointed and who that person will be, which would defeat one of the benefits of party autonomy.</p>\r\n<p class=\"p1\">Unlike an institutional arbitration, in an ad hoc arbitration the parties will generally enter into direct contracts with the members of the Tribunal by way of Terms of Appointment.</p>\r\n<p class=\"p1\">Within 30 days of being constituted the Tribunal will be required to notify the parties of the date for the first hearing.</p>\r\n<p class=\"p1\"><span class=\"s4\"> One of the most crucial documents in any arbitration in Dubai is the Terms of Reference. This document, which is required to be signed by all relevant parties, will set out the details of the arbitration and what the Tribunal is being asked to decide.</span></p>\r\n<p class=\"p1\">At the first hearing (or shortly thereafter) the Tribunal will usually issue a Procedural Directions Timetable.</p>\r\n<p class=\"p1\">Because the Tribunal will have only been provided with the details of the dispute stated in the Notice to Arbitrate it will want both parties to state (i.e. plead) their respective cases in writing. This is normally done by way of a:</p>\r\n<p class=\"p5\">i. Statement of Claim;</p>\r\n<p class=\"p1\">ii. Defence and Counterclaim;</p>\r\n<p class=\"p1\">iii. Reply and Defence;</p>\r\n<p class=\"p1\">iv. Rejoinder;</p>\r\n<p class=\"p5\">As in any jurisdiction, the primary source of evidence in arbitrations in Dubai will be contemporaneous documents. However, unlike litigation in the local courts, witness evidence is the norm in an arbitration.</p>\r\n<p class=\"p1\">Depending on the issues involved, it is not unusual to see delay and quantum experts involved in construction disputes. Occasionally, there may also be a requirement for technical, property valuation and/or forensic accounting experts.</p>\r\n<p class=\"p1\">A recent trend in Dubai has been for Tribunal’s to request that all evidence (documentary, witness of fact and expert evidence) be filed with the pleadings (known as ‘memorial’ style pleadings). Whilst this may work well in general commercial arbitrations where the volume of documentation and scope of issues in dispute are minimal compared to construction, this method of pleading is extremely burdensome, time consuming and costly in complex construction arbitrations. This is a reason why it is important that the selection of the members of the Tribunal (including the chairman) be carefully made because a Tribunal not experienced in construction disputes may have little or no experience of what is entailed in preparing and presenting such a case, which means both parties may be disadvantaged by possibly being ordered to comply with unreasonable and unrealistic deadlines.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The proceedings will culminate in an evidentiary hearing. The purpose of this final hearing is to allow both parties to present their respective cases and allow the other side and/or the Tribunal to ask questions. Immediately prior to and after the hearing both parties will normally be required to make written submissions. </span></p>\r\n<p class=\"p1\">During the evidentiary hearing the witnesses are excluded from hearing the evidence of others, though this rule is generally relaxed for the experts by way of an agreement between the parties. All witnesses are required to give their evidence under oath. Importantly, a Tribunal may continue with the proceedings in the absence of a non-participating party.</p>\r\n<p class=\"p1\">According to the UAE’s arbitration law, the final award must be made within 6 months of the first hearing. However, it is quite usual for the Tribunal to approach the parties for their consent to grant an extension to this six-month period.</p>\r\n<p class=\"p1\">In complex construction arbitrations it can take between 18 to 24 months, sometimes longer, from the commencement of proceedings through to the issuance of a final award.</p>\r\n<p class=\"p1\">As with an institutional arbitration, it is imperative that the arbitrators sign every page of the final award, that it be dated and state the place where it was issued (i.e. state the juridical seat). The final award should include the facts of the dispute and the legal basis for reaching its conclusions and the arbitration agreement should be included. Unless the parties have agreed otherwise, the final award should be issued in Arabic; hence, the importance of setting down the language of the arbitration in the arbitration clause.</p>\r\n<p class=\"p1\">There is no legal basis for appealing against a final award. However, losing parties often deploy arguments to try and annul (i.e. set aside) a final award when a winning party attempts to have the award enforced in the local courts.</p>\r\n<p class=\"p1\">The UAE’s arbitration law does not cater for the award of inter partes legal costs, so, unless the same was made an express issue for the Tribunal to decide upon in the Terms of Reference, there would be no legal basis for the Tribunal to make an award of legal costs.</p>\r\n<p class=\"p2\"><strong>Institutional Arbitration – Dubai International Arbitration Centre (‘DIAC’) </strong></p>\r\n<p class=\"p2\">Parties are at liberty to use any institution to administer the arbitral process. The most commonly used institution in Dubai is the Dubai International Arbitration Centre and the DIAC Arbitration Rules 2007.</p>\r\n<p class=\"p1\">In order to commence arbitration, a party must file a Request for Arbitration and pay a registration fee. The Request must contain, amongst other things, a description of the nature and circumstances of the dispute, a statement of the relief sought, comments concerning the number of arbitrators and the name of any nominated arbitrator.</p>\r\n<p class=\"p1\">DIAC will be responsible for serving the Request on the Respondent.</p>\r\n<p class=\"p1\">The Respondent has 30 days from the date of receipt of the Request to file an Answer along with its counterclaim (if any), though this date can be extended. In the unusual event that the Respondent fails to file an Answer the proceedings will continue.</p>\r\n<p class=\"p1\">The next step is for DIAC to fix an advance on costs. The advance on costs is an amount that DIAC considers will cover the fees and expenses of the Tribunal and DIAC’s administrative costs. DIAC will request payment of an advance on costs from the parties in equal shares; however, if one party fails to pay its share the other party must pay the full amount of the advance in order for proceedings to continue. The advance on costs will ultimately form part of the costs of arbitration.</p>\r\n<p class=\"p1\">In terms of the number of arbitrators, the DIAC Rules default to a sole arbitrator in case of no agreement otherwise.</p>\r\n<p class=\"p1\">The arbitral file will be sent to the Tribunal as soon as it is constituted, provided that the advance on costs has been paid.</p>\r\n<p class=\"p1\">Although not expressly referred to in the DIAC Rules, upon receipt of the file the Tribunal will usually draw up the Terms of Reference, which will govern the scope of the arbitration. The Terms of Reference are usually discussed at the preliminary meeting along with a Procedural Directions Timetable (which sets out what needs to be done going forward, including dates for filing pleadings, the submission of witness statements, and a date for the evidentiary hearing).</p>\r\n<p class=\"p1\">If the parties did not file detailed Statements of Case with their Request or Answer then they may be required to file a Statement of Claim or Defence (and Counterclaim) in as short a period as 30 and 60 days respectively of the Tribunal’s constitution, though experienced counsel and arbitrators will usually agree to extend these periods for complex construction disputes (it should be remembered that the DIAC Rules were not drafted specifically for construction disputes).</p>\r\n<p class=\"p1\">Unless the parties agree to hold a hearing on the papers (which would be highly unusual for a complex construction dispute), it is usual for an evidentiary hearing to be scheduled. The length of the hearing will be determined by the complexity of the case, the volume of documents and the number of witnesses (factual and expert). Generally, witness statements stand as evidence-in-chief. Witnesses are required to attend the hearing and provide their evidence under oath.</p>\r\n<p class=\"p1\">The final award should be rendered within 6 months from the date when the Tribunal received the file, but this time limit may be extended upon application to DIAC by the Tribunal, or by agreement with the parties. As with an ad hoc arbitration, it usually takes up to 18-24 months (possibly longer depending on the complexity of the case and any interim matters that arise) to obtain a final award. Again as with an ad hoc arbitration, it is imperative that the Tribunal sign every page of the Final Award, that it be dated and state where it was issued. Unusually, the DIAC Rules do not specify that the Tribunal has power to award legal costs, so as with ad hoc arbitration, the Tribunal cannot award these unless an explicit agreement between the parties is reached on the issue.</p>\r\n<p class=\"p1\"><span class=\"s3\"> If the losing party fails to comply with the orders directed in the final award, the winning party will be compelled to commence proceedings in the local courts to have the final award enforced. </span></p>\r\n<p class=\"p1\"><span class=\"s5\"> As is the case with an ad hoc arbitration, it is now possible to take onshore arbitral awards to the offshore DIFC Courts for ratification purposes in an attempt to avoid the legal grounds for challenge in the local courts. However, the losing party in the arbitration may still simultaneously commence challenge proceedings in the onshore Dubai courts. This enforcement issue, and the question of which court has jurisdiction over the matter, remains very much a hot topic and a developing area of law in Dubai.</span></p>\r\n<p class=\"p2\"><strong>Summary </strong></p>\r\n<p class=\"p2\">The following table attempts to summarise the foregoing.</p>\r\n\r\n<table border=\"0\">\r\n<tbody>\r\n<tr>\r\n<td></td>\r\n<td><strong>Litigation</strong></td>\r\n<td><strong>Arbitration</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Advantages</strong></td>\r\n<td>\r\n<ul>\r\n 	<li>Can be quick, especially if no expert is involved</li>\r\n 	<li>Pleadings can be relatively brief compared to common law court litigation and arbitration which saves on time and cost</li>\r\n 	<li>Possible to make urgent applications</li>\r\n 	<li>Less risk in being required to disclose documents which could be adverse to your own case</li>\r\n 	<li>Little risk in having to provide oral testimony</li>\r\n 	<li>No need to use foreign counsel Finality of judgment</li>\r\n 	<li>Tends to be cheaper because venue and judge need not be paid for</li>\r\n 	<li>Little risk of a substantial adverse costs order</li>\r\n</ul>\r\n</td>\r\n<td>\r\n<ul>\r\n 	<li>Can select which law will apply to the proceedings</li>\r\n 	<li>Can select the applicable arbitral rules</li>\r\n 	<li>Can select the venue (neutrality)</li>\r\n 	<li>Can select the arbitrators who should be chosen based on their specialist skills in light of the nature of the dispute</li>\r\n 	<li>Proceedings are confidential Allows for detailed analysis of claims and defences</li>\r\n 	<li>Allows for a party’s case to be tested and scrutinised by way of cross examination</li>\r\n 	<li>Usually parties can request disclosure of documents</li>\r\n 	<li>Parties are free to choose their own experts</li>\r\n 	<li>Parties are free to use international lawyers/advocates</li>\r\n 	<li>Usually <em>inter partes</em> legal costs can be recovered, which can be quite substantial</li>\r\n 	<li>If they are international, awards  can be enforced around the world (New York Convention)</li>\r\n</ul>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n&nbsp;'),
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	(101385,5511,'pageSummary','Mergers on the Rise:\r\n\r\nMergers of companies in the UAE have become increasingly common in recent years. Among the more highly publicised were Emirates Bank’s merger with National Bank of Dubai in 2007 to form Emirates NBD, and Aldar’s merger with Sorouh in 2013. Then, in July 2016, the boards of First Gulf Bank and National Bank of Abu Dhabi approved a merger of FGB and NBAD to form what is likely to produce the largest bank in the MENA region. Subsequent to this, it has been announced that Abu Dhabi’s Mubadala Development Company will merge with the Abu Dhabi International Petroleum Investment Company (IPIC) and, in just the last few days (at the time of writing), it has been announced that each of Khalifa University of Science, Technology and Research, the Abu Dhabi Petroleum Institute and the Masdar Institute will merge.'),
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	(96202,5224,'content','September 2015\r\n\r\n<hr />\r\n\r\nADGM occupies Al Maryah Island and is designated as the new financial centre for Abu Dhabi. The Regulations took effect from their publication on 14 June 2015 and will govern multi-owned developments in ADGM.\r\n\r\n<strong>Creation of a Strata Title Development </strong>\r\n\r\nThe owner or developer of a freehold or leasehold interest in property within ADGM has the right to apply to classify the development as a strata title development. The same provisions apply to a scheme whether the owner or developer has a freehold or leasehold interest in the property. By registering a strata plan with ADGM (“Strata Plan”), the property can be divided into two or more lots or sub-lots (“Strata Lots”) for strata ownership by individual strata lot owners (“Strata Owners”) or for ownership by an association owned by the strata lot owners (“Association”). Strata Lots can be either lots owned by Strata Owners (“Strata Owner Lots”) or lots owned by Associations.\r\n\r\nStrata Lots can be created by dividing property both vertically (on single or multiple levels) and horizontally. Different areas within a Strata Plan may be designated for different uses, for example retail, residential, commercial areas.\r\n\r\nWhere a development will be phased into different stages it is possible to lodge multiple Strata Plans, either simultaneously or at different stages in the development (“Staged Development Scheme”). A volumetric development plan, where a plot is sub-divided into areas for different purposes, such as retail, residential, commercial, and where not all sub-divided areas are designated for strata ownership, is deemed to be a Staged Development Scheme.\r\n\r\nAlternative contractual common ownership schemes are permitted and can be registered in the Real Property Register, for example leasehold interests in units may be granted and the common areas retained and managed by the developer. This will be the case even where a Strata Plan has been filed in connection with the scheme.\r\n\r\n<strong>Requirements for Strata Plans</strong>\r\n\r\nStrata Plans must identify the owner of the freehold interest in the site and the owner of any leasehold interests. The strata developer must also be included with details of its property interest in the site. The Strata Plan will only have legal effect once it has been accepted and registered by the Registrar. The Strata Plan must state whether or not it relates to a Staged Development Scheme. A description of the proposed strata development must be included with details of any amenities to be provided. The strata developer must also incorporate a schedule of materials and finishes to be used and provide details of the boundaries of the scheme.\r\n\r\nDetails of the proposed Association must be included in the Strata Plan together with a draft certificate of incorporation for the Association, the first by-laws of the Association and details of any special developer rights.\r\n\r\nWhere a Strata Plan specifies the use for any particular Strata Lot, the Strata Owners may not use that Strata Lot for any other purpose. If the Strata Lots include multiple uses then a statement of the maximum percentage of the floor area for each proposed use must be prepared.\r\n\r\nThe Strata Plan must also include a warranty in favour of anyone entering into a contract to buy a Strata Lot that the development will be carried out in accordance with the scheme. This warranty will be enforceable as a contractual warranty but the parties will be free to negotiate further warranties and, in so far as those warranties provide the purchaser with greater protection than the warranty contained in the Strata Plan, they will also be enforceable against the strata developer.\r\n\r\nA Strata Plan must be endorsed with or accompanied by a certificate (“Surveyor’s Certificate”) from a duly qualified surveyor approved by the Registrar (“Approved Surveyor”), certifying that the buildings shown on the Strata Plan, and all proposed Strata Lots, fall within the boundaries of the site.\r\n\r\nWhere an appropriate authority in Abu Dhabi has notified the Registrar that planning approval is not required for a development or that any necessary planning approvals have already been obtained, the building plans that have been approved by the appropriate authorities may constitute the Strata Plan if accompanied by a Surveyor’s Certificate from an Approved Surveyor.\r\n\r\n<strong>Requirements for Staged Development Plans</strong>\r\n\r\nA staged development plan must be submitted for any Staged Development Scheme. This will consist of a master plan and a disclosure statement. The master plan must show the overall development and Strata Plans for each stage. Warranties from the developer to any purchaser of a Strata Lot will also apply for Staged Development Schemes. The disclosure statement must include a warning as to the risks of staged developments in general, a description of the proposed stages, estimated times for completion of each stage, a schedule of hours of working for the second and subsequent stages, and a schedule of the proposed unit entitlements for each Strata Lot.\r\n\r\n<strong>Effect of Prior Mortgages</strong>\r\n\r\nIf a mortgage was registered against a property before a Strata Plan is submitted, the Registrar will register that mortgage in the title to each Strata Lot. The consent of the mortgagee will be required for the registration of the Strata Plan. When a Strata Lot is sold and there is a repayment to the mortgagee, the Registrar may remove the registered mortgage from the Strata Lot title if the mortgagee provides written consent.\r\n\r\n<strong>Registration of Titles</strong>\r\n\r\nWhen a Strata Plan is registered, the Registrar will register titles for each Strata Lot. This title will record the benefits and burdens relating to that Strata Lot and the proportionate interest as a shareholder that the owner of the Strata Lot will have in the Association.\r\n\r\n<strong>Creation of Common Property </strong>\r\n\r\nThe Registrar will register all parts of the site which are not Strata Lots as common property owned by the Association (“Common Property”). Common Property will include all structural elements of the development, such as the supports, foundations, structural walls, joists and roofs. Additionally, land under and surrounding buildings, roadways, landscaping, paths, beaches and service infrastructure will form the Common Property.\r\n\r\n<strong>Allocation of Unit Entitlements</strong>\r\n\r\nEach Strata Lot will have a unit entitlement, which may be shares in the Association or a fixed number of votes at a general meeting of the Association. Unit entitlements must be fixed on a fair and equitable basis. Changes to unit entitlements are allowed by extraordinary resolution of the Association or by an order of the ADGM courts. The Strata Plan must state the formula to be used to reallocate unit entitlements if Strata Lots are added to or withdrawn from the strata development.\r\n\r\n<strong>Rights and Obligations of Associations</strong>\r\n\r\nAssociations will take the form of private limited companies and the interests of the Strata Owners will usually take the form of shares in the Association. The Strata Owners will have all rights of shareholders in a private limited company as set out in the ADGM Companies Regulations 2015 (“Companies Regulations”). The Association will be run by a board of directors who may appoint committees and officers to carry out certain duties. Potential directors of Associations will need to understand the duties that will be imposed on them by the Companies Regulations. The Association may also appoint a manager to run the administration, management and control of the Common Property.\r\n\r\nThe Association will levy assessments on Strata Owner Lots as necessary to meet anticipated expenditure, which should be proportional to the unit entitlements of the Strata Owner Lots. Interest can be charged on late payment of assessments at a rate decided by an ordinary resolution of the Association. Ultimately, if assessments are not paid by Strata Owners then the Association will have a right of foreclosure over the Strata Owner Lots.\r\n\r\nThe Association will have powers to make by-laws concerning the Common Property and Strata Owners Lots. The Strata Title Regulations include a set of model by-laws which may be adopted by Associations. By-laws can be enforced in the ADGM courts.\r\n\r\nAssociations are required to insure the buildings and Common Property against fire and other usual risks. This requirement does not include any obligation on the Associations to insure the contents of Strata Owner Lots.\r\n\r\n<strong>Establishment of Escrow Accounts</strong>\r\n\r\nA strata developer must establish an escrow account unless its development is already substantially complete at the time the Strata Plan is lodged. Developers do not need to register with ADGM but the Strata Plan must be lodged with and registered by the Registrar appointed by ADGM.\r\n\r\nAll payments received from purchasers of Strata Owner Lots must be paid into the escrow account together with any financing obtained for the development. Amounts on deposit in the escrow account must only be used for construction and development of the strata development including other costs associated with the development such as marketing costs. The Regulations do not detail what limits will be imposed on these uses of escrow account funds, but withdrawals from the escrow account must be in proportion to the progress achieved in the construction of the development. Further, five percent of the total balance of the escrow account must be retained for 12 months after the date on which the building completion certificate is issued and may be used for the correction of deficient and outstanding work.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Regulations bring the concept of strata title to Abu Dhabi for the first time. We expect, however, that the forthcoming Abu Dhabi property law will introduce similar strata title for the remainder of the Emirate of Abu Dhabi. When interpreting and implementing the Regulations, developers and investors in ADGM will also be able to draw on the considerable strata title expertise developed over recent years in Dubai. We expect that this legal framework will bring confidence to develop and invest in real estate in ADGM.'),
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	(96206,5224,'content_description','Following our article in the August 2015 issue of Law Update on the Real Property Regulations and Strata Title Regulations recently implemented by Abu Dhabi Global Market (“ADGM”), this article will provide further detail on the Strata Title Regulations (the “Regulations”). '),
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	(96208,5224,'pageSummary','Following our article in the August 2015 issue of Law Update on the Real Property Regulations and Strata Title Regulations recently implemented by Abu Dhabi Global Market (“ADGM”), this article will provide further detail on the Strata Title Regulations (the “Regulations”).'),
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	(96216,5224,'_yoast_wpseo_metadesc','Following our article in the August 2015 issue of Law Update on the Real Property Regulations and Strata Title Regulations recently implemented by Abu Dhabi Global Market (“ADGM”), this article will provide further detail on the Strata Title Regulations (the “Regulations”).'),
	(96217,5225,'content','September 2015\r\n\r\n<hr />\r\n\r\nFollowing the issuance on 15 July 2015 of Law No. 2 of 2015 against Discrimination and Hatred (the “Law”), the UAE has now introduced federal legislation which specifically prohibits all forms of discrimination on the basis of religion, belief, sect, faith, creed, race, colour or ethnic origin (each being a “Protected Characteristic”). The Law defines “religion” as “the heavenly religions – Islam, Christianity and Judaism” and therefore the law does not apply in respect of discriminatory conduct against an individual based on any other religion.\r\n\r\nThe Law is drafted in broad terms to ensure that it encompasses all discriminatory conduct regardless of how it is expressed (e.g. through speech, writing, drawing, photography, singing, acting or miming) and irrespective of the means/channels through which it is expressed (e.g. online, by phone or video, and whether written or oral).\r\n\r\nNotably, Article 17 of the Law states that a representative, manager or agent of a company will be punished (by the same penalties that would apply if s/he had committed the offence themselves) if a crime prohibited by the Law is committed by any personnel of the company in its name and on its behalf, and provided that the representative, manager or agent is aware of the same.\r\n\r\nFurthermore, Article 6 of the Law is a broad catch-all provision which states that a person who commits an act of discrimination may face imprisonment of up to 5 years and/or a fine of between AED 500,000 and AED 1,000,000. The same penalties may be imposed where a discriminatory act is “committed by a public employee upon or due to performing his job” (Article 9). Through this provision, the Anti-Discrimination Law specifically links the prohibition against discrimination to an employment context, however the reference to “public employee” seems to indicate that this Article is limited to governmental employees only. Even if Article 9 only applies to governmental employees, the broad prohibition against discrimination in Article 6 of the Law has the potential to be applied more broadly including within the private sector, and whether in an employment context or otherwise.\r\n\r\nIn addition, the Law prohibits:\r\n<ul>\r\n 	<li>producing, promoting or selling any products or material which include any expression involving religious contempt, discrimination or hatred speech (or being in possession of such material for the purpose of distribution or display);</li>\r\n 	<li>establishing, managing or participating in any group or organisation for the purpose of religious contempt, discrimination or hatred speech;</li>\r\n 	<li>organizing or participating in a conference or meeting for the purpose of religious contempt, discrimination or hatred speech; or</li>\r\n 	<li>providing, requesting, receiving or delivering money or material support directly or indirectly for the purpose of committing any of the acts which are prohibited by the law.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>Potential impact on the workplace</strong>\r\n\r\nFor the first time in the UAE, federal legislation has now been enacted to help protect all individuals in the UAE from discrimination on the basis of a Protected Characteristic. While in our opinion the Law is primarily aimed at preventing and criminalizing hate crimes and the incitement of hatred, particularly in light of recent global events, the Law also seeks to prevent discrimination more broadly and may have flow-on consequences in an employment context.\r\n\r\nIn light of Article 17 of the Law, companies in the UAE should ensure that appropriate internal policies and procedures are established (and that existing policies are updated) to raise employees’ awareness and understanding of the type of conduct which could now constitute a criminal offence under the Law. This should reduce the risk of an employee breaching the Law and the company representative, manager or agent being held responsible for such breach. Such company policies should extend to the use of online forums and social media in the event that certain comments or opinions expressed online by an employee could be construed as discriminating against a Protected Characteristic.\r\n\r\nThe Law will not interfere with other UAE legislation which affords specific (albeit limited) protection for particular groups of society. This also means that any provisions in UAE Federal Law No. 8 of 1980 (the “UAE Labour Law”) which confer particular legal rights on UAE nationals will not be affected by the Law. Pursuant to the UAE Labour Law, employers are required to prioritise UAE nationals over all other nationalities when recruiting in the UAE (followed by Arab nationals). Accordingly, it would not be possible for an employee to bring a discrimination claim against their employer pursuant to the Law in circumstances where one of the employee’s colleagues receives more favourable treatment and/or specific protection in accordance with the UAE Labour Law.\r\n\r\nIt remains to be seen whether an employee in the UAE may be able to rely on the Law to bring a claim against their employer. For example, it is not yet clear how the UAE Courts will adjudicate claims/disputes where an employee feels that they have been afforded less favourable treatment by their employer (for example, by receiving smaller salary increments than their colleagues or missing out on a promotion opportunity) on the basis of one of the employee’s Protected Characteristics. Similarly, it remains to be tested whether a dismissed employee may be able to bring a labour claim against their employer pursuant to the UAE Labour Law, as well as a separate claim pursuant to the Law if the employee considers that their employment was terminated on the basis of a Protected Characteristic. Finally, it remains to be seen how the criminal sanctions set out in the Anti-Discrimination Law may be imposed in the context of a dispute between an employee and his/her employer, particularly as an employer’s conduct or decisions are not always easily attributable to a particular individual.\r\n\r\nWhile the practical effects of the Law for employers and employees in the UAE remain to be seen, the new law is clearly aimed at encouraging tolerance and acceptance in the UAE, irrespective of a person’s religion, belief, sect, faith, creed, race, colour or ethnic group. This is particularly important in such a multicultural country as the UAE where individuals from all around the world come together to live and work. Companies operating in the UAE would be well advised to ensure that internal policies and procedures are implemented (and that existing policies are updated) to ensure that all employees are aware of the conduct expected of them under the new Law.\r\n<div></div>'),
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	(96221,5225,'content_description','Overview of the new legislation'),
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	(96223,5225,'pageSummary','Overview of the new legislation'),
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	(96231,5225,'_yoast_wpseo_metadesc','Following the issuance on 15 July 2015 of Law No. 2 of 2015 against Discrimination and Hatred (the “Law”), the UAE has now introduced federal legislation which specifically prohibits all forms of discrimination on the basis of religion, belief, sect, faith, creed, race, colour or ethnic origin.'),
	(96232,5226,'content','September 2015\r\n\r\n<hr />\r\n\r\nWe have seen an increase in the number of enquiries from clients wanting use electronic signatures in their business processes in the UAE.\r\n\r\nSome of the reasons for the limited adoption may be concerns about the following aspects:\r\n<ul>\r\n 	<li>Does the law recognise an electronic signature as having legal force and effect?;</li>\r\n 	<li>What criteria should an electronic signature to meet in order to be enforceable?; and</li>\r\n 	<li>Is an electronic signature admissible as evidence in court in the event of a dispute between the parties to the agreement?</li>\r\n</ul>\r\nIt is important to understand the legal framework in relation to the enforceability of electronic signatures before adopting electronic signatures for your business.\r\n\r\n<strong>E-signatures in the UAE</strong>\r\n\r\nIn the UAE, the use and admissibility of electronic signatures is governed by Federal Law No.1 of 2006 regarding Electronic Transactions and E-Commerce (“Federal E-commerce Law”).\r\n\r\nBasic electronic signatures are defined broadly to include all types of electronic signatures.  These are generally defined as data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication.\r\n\r\nAn electronic signature that meets the requirements of the Federal E-commerce Law has legal force and effect under the Federal E-commerce Law.  The Federal E-commerce Law further provides that nothing in the laws of evidence (which includes Federal Law No. 10 of 1992 (“Law of Evidence in Civil and Commercial Transactions”)) shall prevent the admission of an electronic message or e-signature in evidence.\r\n\r\nReliance on electronic signatures must be reasonable.  Reasonableness is generally based on the following factors:\r\n<ul>\r\n 	<li>the nature, value and importance of the transaction being supported by the electronic signature;</li>\r\n 	<li>steps taken by the relying party to verify the identity of the signatory of the electronic signature;</li>\r\n 	<li>evidence of prior breach or cancellation of the electronic signature;</li>\r\n 	<li>previous transactions between the parties, which relied on electronic signatures; and</li>\r\n 	<li>any other relevant factor.</li>\r\n</ul>\r\nThere are, however, specific categories of transactions and documents for which electronic signatures may not be used, including:\r\n<ul>\r\n 	<li>transactions and issues relating to personal law such as marriage, divorce and wills;</li>\r\n 	<li>deeds of title to immovable property;</li>\r\n 	<li>negotiable instruments;</li>\r\n 	<li>transactions involving the sale, purchase, lease (for a term of more than 10 years) and other disposition of immovable property and the registration of other rights relating to immovable property;</li>\r\n 	<li>any document legally required to be attested before a Notary Public, and</li>\r\n 	<li>any other documents or transactions exempted by special provision of the law.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>Secure e-signatures</strong>\r\n\r\nThe Federal E-commerce Law also provides for a ‘secure’ electronic signature for which there is a legal presumption of reliability.  This may be contrasted with ‘simple’ electronic signatures for which no such presumption exists in law.  Secure electronic signatures must be issued by recognised service providers in order to qualify as secure electronic signatures under the law.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nIt is important to bear in mind that electronic signatures are only as secure as the business processes and technology used to create them.  High value or more important transactions need better quality electronic signatures - signatures used for these transactions need to be more securely linked to the signatory in order to provide the level of assurance needed and to ensure trust in the underlying system.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on e-signatures. For further information please contact Nick O’Connell (n.oconnell@tamimi.com) or Sana Saleem (s.saleem@tamimi.com)'),
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	(96236,5226,'content_description','The use of electronic signatures in the UAE has, thus far, been less widespread than in the US and Europe. '),
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	(96238,5226,'pageSummary','The use of electronic signatures in the UAE has, thus far, been less widespread than in the US and Europe.'),
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	(96240,5226,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/september-5/electronic-signatures-in-the-uae.html'),
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	(96246,5226,'_yoast_wpseo_metadesc','The use of electronic signatures in the UAE has, thus far, been less widespread than in the US and Europe. We have seen an increase in the number of enquiries from clients wanting use electronic signatures in their business processes in the UAE.'),
	(96247,5227,'content','September 2015\r\n\r\n<hr />\r\n\r\nIn this article, we look at the scope of the consultation and outline some of the observations we made.\r\n\r\nAbu Dhabi Global Market is an international financial centre established in accordance with the Federal Law No. 8 of 2004, Federal Decree No. 15 of 2013, Cabinet Resolution No. 4 of 2013 and Abu Dhabi Law No. 4 of 2013.  It is seeking to introduce the type of regulatory framework necessary to ensure a business-friendly environment that operates in line with international best practice.  One aspect of this involves providing an opportunity for public consultation on its draft regulations.\r\n\r\nAmongst other draft regulations, we had the opportunity to comment on ADGM’s draft Data Protection Regulations 2015 (“Regulations”).  The primary issue posed for consideration by ADGM was:\r\n\r\nShould the ADGM Board adopt a set of stand-alone data protection regulations, or should it rely upon individual data protection provisions in existing regulations?\r\n\r\nThe reference to existing regulations is a reference to Article 51 of ADGM’s Employment Regulations 2015 (‘‘Employment Regulatioms”). Article 51 provides a data protection framework specific to the processing of personal data relating to employees of ADGM licensed entities.\r\n\r\nIn our view, ADGM’s approach of seeking to introduce a broader data protection regime is preferable to having data protection provisions aimed only at the employment relationship.  The principles relating to the appropriate treatment of personal data should apply broadly to personal data relating to all natural persons, not only to the employees of data controllers.  For example, personal data relating to natural persons who are clients (existing or potential) of data controllers and personal data relating to the personnel of others (eg. service providers to data controllers), should be afforded the same protection as personal data relating to a data controller’s employees.\r\n\r\nAdditionally, data protection is a highly relevant compliance issue for many individuals and organisations located in other jurisdictions.  To seek to address data protection by way of a discrete provision in the Employment Regulations would send the market the wrong message and could even be construed as a failure on the part of ADGM to understand the issues.  ADGM needs to take data protection issues seriously and it needs to be seen to do so.  A set of stand-alone data protection regulations highlights ADGM’s commitment to ensuring that personal data is processed appropriately.  Seeking to rely on Article 51 of the Employment Regulations would not send that message.\r\n\r\nThe Regulations also propose the repeal of Article 51, removing the ambiguity that would otherwise arise if the personal data of different types of data subjects was treated differently under separate regulations.\r\n\r\nBeyond the observations directed to the issue posed for consideration, we also took the opportunity to make some more general observations regarding the Regulations.\r\n\r\nThe Regulations replicate significant portions of the DIFC Data Protection Law, whilst notably removing some prescriptive language and unwieldy definitions found in that legislation.\r\n\r\nADGM noted that developments in Europe indicate that EU Data Protection Directive 95/46/EC is outdated, and the General Data Protection Regulation is under consideration there.  Were ADGM poised to adopt regulations more closely aligned with the General Data Protection Regulation, it could be seen as the data protection leader in this region.\r\n\r\nThe Regulations address transfers of personal data out of the ADGM jurisdiction in the absence of an adequate level of protection.  Some European jurisdictions allow for the risk of transfers to recipients located in such jurisdictions to be addressed by way of a ‘Data Transfer Agreement’ or ‘Binding Corporate Rules’, which essentially provide a contractual basis for ensuring that data protection principles are respected in the context of data transfers out of the jurisdiction.  Adopting this type of approach would enhance the Regulations, respecting data protection requirements while reflecting the need for flexibility and commercial pragmatism.\r\n\r\nThe Regulations address security of processing of personal data, and include an obligation on the data controller, or the data processor carrying out the data controller’s function at the time of an intrusion, to notify the ADGM registrar of a data breach incident.  In practical terms, it may be appropriate to consider whether the obligation should fall on the data processor only in the event that the data controller fails to notify the ADGM registrar in a timely manner.  In practice, noting that data processors could be in locations around the world, it would be unlikely for them to be aware of the Regulations - or to initiate a notification to the ADGM registrar other than by way of the data controller.\r\n\r\nAs a general point, we observed that the Regulations are well-drafted and are likely to be welcomed by those wishing to set up in the Abu Dhabi Global Market.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on privacy and data protection matters in the Middle East. For further information please contact Nick O’Connell (n.oconnell@tamimi.com).\r\n<div></div>'),
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	(96265,5227,'_yoast_wpseo_metadesc','Al Tamimi recently had the opportunity to participate in a round of public consultations on the draft regulations to the newly established Abu Dhabi Global Market (“ADGM”). In this article, we look at the scope of the consultation and outline some of the observations we made.'),
	(96266,5228,'content','September 2015\r\n\r\n<hr />\r\n\r\nOn 18 August 2015, Bank of New York Mellon (“BNYM”) consented to a Securities and Exchange Commission (“SEC”) Order requiring BNYM to pay $14.8 million to settle charges that it violated the FCPA by providing student internships to family members of foreign government officials affiliated with a Middle Eastern Sovereign Wealth Fund (“SWF”). All parties involved, except BNYM, have been anonymised in the Order so that the nationality of the foreign public officials and the SWF is publicly unknown beyond being described as ‘Middle Eastern’.\r\n\r\nThe BNYM internships were given to three people: the son and nephew of one key figure of the SWF and the son of another. The internships were given despite the facts that the interns did not meet the rigorous selection criteria usually applied by BNYM and did not go through the standard (or any) recruitment process before being awarded the internships. In addition, these internships were found by the SEC to be more valuable than those offered to the regular applicants, who had endured the competitive admissions process against strict entry requirements. For example, rotation between business units was arranged, which is not an opportunity afforded to regular interns.\r\n\r\nEmails between BNYM employees clearly demonstrate that the motivation behind the favour to the foreign officials was to influence the latter’s decision-making in the interests of BNYM. There can be no doubt that this was bribery in action - the BNYM employees expected to retain and gain business from the foreign officials in return for offering their relatives valuable internships to which they would not otherwise have had access.\r\n\r\n<strong>A Cultural Issue?</strong>\r\n\r\nThe term ‘cultural differences’ is often, rather pejoratively, used in discussions concerning questionable business practices, as an apparent explanation of the way that persons from the Middle East (and other places) approach business ethics. It is clear, however, from correspondence referred to in the Order, that the BNYM situation cannot be explained as either party acting honestly and in accordance with cultural norms that happen to differ from the rules to which they are subject, thereby creating some sort of ethical dilemma. This was indisputably a case of bribery, not only as defined by the FCPA but also as defined by, for example, the Penal Code of the United Arab Emirates. One of the foreign officials involved told BNYM employees that the internships represented an opportunity for the bank and that he could get competitor banks to offer the internships if BNYM did not deliver. No, this was not a subtle cultural issue of, for example, gifts that would be seen as extravagant in the ‘West’ but perfectly standard in the Middle East, which BNYM had to massage into a US law-compliant form. This was an out and out corrupt deal and the bank was fully in on it.\r\n\r\n<strong>Relationship-Building v Bribery: Where is the line?</strong>\r\n\r\nNotwithstanding the BNYM case, building relationships by giving (reasonable and proportionate) gifts, entertainment and hospitality is an established and accepted part of doing business. Indeed, it is referred to as much in the official Ministry of Justice Guidance to the UK Bribery Act, for example.\r\n\r\n<strong>So the question becomes: where is the line between acceptable relationship-building and bribery?</strong>\r\n\r\nA number of factors will determine which side of the line any given expenditure or benefit falls and are common to jurisdictions including the US, the UK and the UAE. These include the value, proportionality, timing and appropriateness of the expenditure in all the circumstances. None of these alone, nor any of them combined, will suffice to prove bribery without the criminal intention, required by all jurisdictions, for the offence to be completed.\r\n\r\nIn the absence of direct evidence of bribery, such as the damning emails uncovered in the BNYM case, many factual elements will point to or away from the presence of criminal intent. In such cases, it is this circumstantial evidence that will provide the only information upon which law enforcement agencies can decide which side of the line a case falls. The bottom line is that the person(s) involved will know what the intention behind any particular expenditure was. In circumstances where a company is required to decide whether bribery has been committed by an employee, the importance of well-designed and properly-implemented systems and controls will become apparent quickly.\r\n\r\n<strong>Genuine Engagement Required</strong>\r\n\r\nImportantly, in addition to the anti-bribery provisions of the FCPA, the SEC found that BNYM violated the internal controls provisions of the FCPA. Although BNYM had a code of conduct and a specific FCPA policy in place, which prohibited employees from violating the statute, the SEC highlighted that there was insufficient guidance on the risks of hiring customers and relatives of customers, including foreign government officials. In conclusion, the SEC found, the systems and controls in place were inadequate to ensure compliance with its written policy against bribery of foreign officials.\r\n\r\nThis finding highlights the importance of actively engaging with the responsibilities imposed by applicable legislation. Merely holding a written policy but not making efforts to enforce it by, for example, the training of employees, will not guarantee compliance with the law.\r\n\r\nWhilst there is no suggestion in the Order that BNYM deliberately gave less attention to the issue than was required, the Order demonstrates the importance of taking the requirements of the law seriously and implementing sufficient programs to ensure compliance.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe BNYM case serves as a reminder that a bribe can comprise anything of value and clarifies that an internship is an example of such a thing. It also highlights the importance of the legal and compliance function acting in conjunction with senior management and HR to ensure effective compliance with applicable laws in relation to specific activities, such as hiring, gifts &amp; entertainment, charitable contributions, sponsorship or business transactions. Finally, staff must be trained on company policies if such policies are to be effective.\r\n\r\nThere are many circumstances in which businesses in the Middle East might be subjected to enquiries in respect of corruption issues, whether by local law enforcement agencies investigating an allegation, or by related foreign entities (such as parent companies or counterparties) to whom laws such as the FCPA or Bribery Act apply. In such situations, the ability to provide documented evidence of policies, and of their implementation and adherence, will be invaluable in saving time, money and, in the worst cases, prosecution.\r\n\r\nFor information or assistance relating to anti-corruption issues in the Middle East, please contact Andrew Hudson (Senior Associate) at a.hudson@tamimi.com or Ibtissem Lassoued (Partner) at i.lassoued@tamimi.com.\r\n<div></div>'),
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	(96289,5229,'content','September 2015\r\n\r\n<hr />\r\n\r\n<strong>What is a letter of intent?</strong>\r\n\r\nConstruction projects frequently need to get started quickly, before final documents are agreed.  In these situations, the industry often uses a ‘letter of intent’ (“LOI”) as a bridging measure to allow work to proceed and to give the parties some legal protection.  The LOI is then meant to be replaced by the formal contract.\r\n\r\nAn LOI should never be taken lightly, even if it is meant to be only a temporary arrangement.  If the terms are not drawn properly, the parties may find themselves in dispute or forced into an arrangement that was not contemplated.  After all, an LOI is still a contract.\r\n\r\nUnfortunately, more often than not, parties are under intense time pressure to sign an LOI.  This may lead to LOIs being signed with key terms missing or without understanding the repercussions of what is being signed.\r\n\r\n<strong>Why should I use an LOI?</strong>\r\n\r\nLOIs provide some comfort that the parties are genuinely interested in seeing a deal concluded.  LOIs also set the ground rules for completing the negotiations and provide a framework for the final agreement.  In addition, LOIs can enable the parties to get a head start on the construction program in a number of practical ways, including allowing them to let the subcontractors commence the design process or order long lead-time items.\r\n\r\nLOIs are helpful when the contractor needs to obtain necessary approvals and permissions from government authorities.  LOIs also cater to the employer’s desire to urgently get the contractor on to the site to commence works.\r\n\r\nIf drafted correctly, LOIs can be used to flush out preliminary issues and allow them to be resolved prior to negotiating the finer points of the final agreement.  For example, where an agreement may have been subject to site testing, this can be done under the LOI so that the formal contract is unconditional.\r\n\r\n<strong>Are there any pitfalls in using an LOI?</strong>\r\n\r\nThere are many risks in using an LOI, if it is not done carefully.  One of the key issues is whether the LOI will be replaced by a formal contract, especially where the LOI will expire on a specified date or upon reaching a maximum value of work.  The parties need to ensure that the formal contract is concluded or that other arrangements are agreed before the LOI expires.\r\n\r\nIf the parties disregard the expiry of the LOI and continue to carry out work without putting a new LOI in place, there is uncertainty as to the terms under which that work is being done.  In such a situation, disputes over work performed under the LOI, which may have been referred to arbitration, may be left to the local courts.\r\n\r\nIf work that is not contemplated by an LOI is purported to be carried out under it, there will be greater uncertainty than would be the case under a formal contract, as LOIs will not usually contain key terms to manage variations, day works and extensions of time.\r\n\r\n<strong>UAE law on the ‘binding v. non-binding debate’</strong>\r\n\r\nThe most common risk in using an LOI is the possibility that a dispute will arise as to whether it is legally binding.  While many jurisdictions have a number of judgments as to when an LOI is binding, this issue is yet to be explored in detail by UAE courts.\r\n\r\nFederal Law No. 5 of 1985 (“Civil Code”) gives guidance as to the essential ingredients of a binding LOI in the UAE.\r\n\r\nArticle 141 of the Civil Code provides that the parties to a contract must agree on the essential elements of the obligation, but that they can leave matters of detail to be determined at a later date.\r\n\r\nThe Ministry of Justice official commentary states that the law does not stipulate that in order for the contract to be concluded there should be an agreement over all essential matters and matters of detail.  The law stipulates that it must be clear that the parties intended to reach an agreement even if they fail themselves to finalise all of the details of the contract.\r\n\r\nThe Civil Code also requires that certain formalities must be met for a contract to be concluded.  These formalities include that there be an offer and acceptance and consensus ad idem i.e. the parties should agree upon the same thing in the same sense.  It also states that a contract may only be made upon the agreement of the two parties to the essential elements of the obligation, and the other lawful conditions which the parties regard as essential.\r\n\r\nWhile the Civil Code does not describe what is an “essential” element of the contract, in the case of LOIs, numerous elements may be regarded as essential.  For example, payment terms, time for completion, warranties by the contractor, construction programme, scope of work under the LOI (and not necessarily the formal contract) are all arguably essential elements of an LOI.\r\n\r\nWithout any clear statement at law to give guidance as to what are the essential ingredients of a binding LOI, it becomes extremely important that an LOI is carefully drafted to properly record the parties’ true intentions and deliver the intended legal outcomes.\r\n\r\nIn short, the LOI should clearly reflect the agreement of the parties to enter into a binding agreement by incorporating all essential rights and obligations.\r\n\r\nIt is to be noted that the implied obligation of good faith may mean that the courts will find bad faith (and therefore a breach of contract) if the parties fail to agree in certain circumstances, such as one party deliberately trying to avoid reaching an agreement, delaying proceedings  or failing to take reasonable steps to reach an agreement.\r\n\r\n<strong>Essentials of an LOI</strong>\r\n\r\nAn ambiguous LOI is not the best foundation for the final formal contract.  So what should an LOI contain?\r\n\r\nThe LOI should state clearly what it is and what it aims to achieve.  For example, it could state that the employer intends to accept the contractor’s tender and enter into a contract for the carrying out of the tender works but, is not yet ready or able to do so.\r\n\r\nThe major terms of the final contract should be agreed and set out in the LOI.  The key terms yet to be agreed should be set out in the LOI, as this clearly frames the remaining negotiation to take place during the LOI period.\r\n\r\nImportantly, the LOI should also set out a clear risk allocation, confirmation of the contract price, a detailed specification and scope of work for the LOI (attached as schedules), a distinct dispute resolution process and well-defined termination rights.\r\n\r\nIn addition, the LOI should contain clear statements regarding insurance obligations and related indemnities (no work should be done without appropriate insurance cover in place!), intellectual property licenses or rights and essential boilerplate clauses such as governing law.  If the parties intend to incorporate some or all of the terms of a standard form contract (e.g. FIDIC) into the LOI, this should be stated expressly.\r\n\r\nIt is also important to ensure clarity regarding how the LOI arrangement comes to an end.  This brings certainty to the agreement, which is in both parties’ interests.\r\n\r\nThe parties may wish the formal contract to supersede the terms and conditions of the LOI.\r\n\r\nThe parties may also wish to agree that any works carried out or payments made under the LOI will be treated as carried out or made under the formal contract.\r\n\r\nWhile these suggestions are important, they are not exhaustive.  Each LOI will depend on the project to which it relates, the scope of works required under the LOI and the agreed rights and obligations.\r\n\r\n<strong>What happens if a formal contract is not concluded?</strong>\r\n\r\nImagine playing a card game where you are not sure of the rules.  There is a chance that you may get lucky and win the game but, the chances of you losing are way higher than you winning it.  The parties to a construction project may find themselves in a similar situation, where the project might be completed without any issues based on the LOI alone.  On the other hand, if a formal contract has not been finalised and things go wrong, there is a high probability that any dispute will be far more complicated than it should be and will incur substantial legal fees as a result.\r\n\r\nSome LOIs will contain an expiry date and it is advisable that the contractor does not work past this date.  When the LOI does not contain an expiry date and there is a legitimate deadlock in contractual negotiations, the parties should stop the work, commit to a written extension of the LOI or enter into a new arrangement.\r\n\r\n<strong>Short term solution only</strong>\r\n\r\nBy its very nature, an LOI is not intended to contain all the detailed terms of the parties’ agreement.  Parties should not seek to just keep extending an LOI to cover more work, or even the project, simply because it seems convenient.\r\n\r\nAn ambiguous and under-detailed LOI could lend itself to uncertainty and disputes.  Parties should opt to enter into a detailed formal contract shortly after the LOI and in any event before substantial works are commenced.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIn the time-critical construction industry, LOIs will continue to be needed and used, so it is important to make sure that you get it right to avoid uncertainty and open-endedness.\r\n\r\nThe fact that LOIs pose a ‘risk’ is not a problem in itself.  Risk is an inherent part of all construction projects.  The problem arises when there is no management of this risk.\r\n\r\nLegal advice should be sought when deciding to enter into an LOI.  Parties may not think it is important because the LOI is temporary and might simply use a document that was used on the last project to serve as an LOI but, this can be a recipe for disaster.  A clear and tailored legal perspective ensures that all critical and necessary issues are fully addressed.\r\n\r\nFor further information on construction laws and business in the UAE, please contact Scott Lambert, Regional Head of Construction and Infrastructure, Al Tamimi &amp; Company at s.lambert@tamimi.com'),
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	(96311,5230,'content','September 2015\r\n\r\n<hr />\r\n\r\nThis provides increased exposure for the event and value for sponsors, player profiles and the event generally.\r\n\r\nBut along with this increased exposure comes a problem for the event organisers.  As technology creates ever more easy ways to distribute content, there is inevitably a loss of control of the brand and the images associated with the sporting event.\r\n\r\nLarge events have vast resources to assist with this issue. But what about smaller events, such as those that are now more frequently being held in the Middle East?  What can they do to try and ensure that they have some degree of control and protection over their brand as well as the footage and images that are created at their events?\r\n\r\nSporting events organisers generally protect their rights by using three layers of protection. The first involves controlling access to the location of the event itself.  They either exclude people who are not associated with official broadcast/media partners or they allow access to non rights holders but subject to contractual terms. The second layer of protection comes from the control of rights in relation to the recordings and images that are created of the event itself. This is important since there is no copyright in the sporting event itself but only in images or recordings created from the game.  The third relies on the contractual relationships with the key figures taking part in the event – that is the players and athletes themselves. In this article we will address the first layer.\r\n\r\n<strong>Controlling Access</strong>\r\n\r\nGenerally a person who controls access to a property is able to deny a particular person from accessing that property. In the early days of sporting events, all local broadcasters were able to attend the event venue with their usual press passes and film or take photographs as they pleased. But as the media and sports industries grew together and became more reliant on each other for audiences and revenue, it became common for one media outlet to pay for exclusive rights to the event. To allow this exclusivity to be put into effect in practical terms, the event organiser simply stopped all other media outlets from entering the grounds.\r\n\r\nOf course rival media outlets were then angered that they were excluded from reporting about an event that had, in their view, news value. This lead to the development of the news access regime whereby non-rights holding media outlets were provided with restricted accreditation and could attend the events as long as they signed a contract that restricted the amount of recordings or stills they would use from the event and the way in which they would use it. Usually, the rival media outlets could not access the venues with camera equipment and crews – they simply had access to a feed from the rights holding media outlet and could use that in accordance with the terms and conditions of the contract that they signed.  This was not only helpful to the non-rights holding media outlets but also worked in favour of the event organiser, particularly in those countries where the law allowed for use of a ‘fair’ amount of material without consent if it was used for the purposes of news reporting (the ‘fair dealing’ or ‘fair use’ provisions; similar provisions are found in the Middle East, such as Article 3 of the UAE’s Federal Law No 7 of 2002, Concerning Copyrights and Neighbouring Rights). The event organiser could now contractually restrict the amount of material used by way of a contract, thereby taking control of the ‘fair dealing’ that might take place under a news exemption.\r\n\r\nThis regime of news access and associated rules became standard within the sporting industry. This approach has not however been without its own controversies from time to time.  At the Olympic Games in Athens in 2004, a crew from a non-rights holding broadcaster managed to enter the main athletics’ arena with their entire camera kit without any of the appropriate passes. But on the whole, this method of rights control has been extremely effective at controlling event content.\r\n\r\n<strong>Implementing Controlled Access in the Middle East</strong>\r\n\r\nWith several of the local sporting events becoming recognisable local and international brands, we believe that it is time for local events organisers in the region to consider implementing news access regimes. So what might a contract for non-rights holders look like?\r\n\r\nContract for non-rights holders can completely restrict the way in which the non-rights holder can deal with the ownership of any images or footage that they create. If an event organiser wished to do so, it could demand that rights be granted back to it as well. For example, Taylor Swift had, until recently, required all photographers to allow her to use their images in any way that she wished in perpetuity with no payment back to them.\r\n\r\nBelow is a list of some areas in which an event organiser might consider applying restrictions under a news access regime:\r\n<ul>\r\n 	<li>the duration of the recording used.</li>\r\n 	<li>the number of times per day it can be used.</li>\r\n 	<li>the time period between each usage.</li>\r\n 	<li>the type of program or publication in which it can be used.</li>\r\n 	<li>credits or logos that must be used in conjunction with the footage or images.</li>\r\n 	<li>restricting use of mobile devices to create content.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nFor the entity that gains news access, the restrictions may have an upside as well.  In addition to gaining access to the event, they may be given access to press conferences, provided with live statistics, given a live feed of the event, given tickets to networking events or permitted to interview athletes. They may also be allowed to film in certain areas that are close to the event, albeit not within the event venue itself, which would allow interviews with attendees of the event. Again, this can be controlled.\r\n\r\nBreaches of any of the news access terms usually result in swift action. The offending news outlet can expect all of its accreditation to be withdrawn, meaning that its reporters and photographers will not be granted any of the permissions noted above – no interviews with athletes, no entry to press conferences.  For a news organisation in particular, this can be devastating for its coverage. Some of the more influential event organisers may also refuse to provide accreditation for the next event to the breaching entities. So the organisations that are granted access do not usually breach any of the conditions of entry.\r\n\r\nAs the Middle East hosts more world class events, the event organisers need to become more sophisticated in the way they allow third parties to access the events in order to record them. It is standard practice in many areas of the world for professional sporting events to impose news access restrictions and provide proper accreditation for media outlets.  Media outlets and reporters are used to dealing with the restrictions and will only respect those event organisers who put them in place.\r\n\r\nFiona Robertson (f.robertson@tamimi.com) is a senior associate in the firm’s Technology, Media &amp; Telecommunications practice and member of the firm’s Sports Law and Events Management practice.  She regularly advises clients in the sports industry on a variety of issues relating to the exploitation and protection of their media rights.'),
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	(96326,5231,'content','September 2015\r\n\r\n<hr />\r\n\r\nHowever, the overtime provisions as set out in the Egyptian Labor Law No. 12 of 2003 (the “Labor Law”) are regularly breached by employers both in respect of white and blue collar workers.  This article explores the law and the challenges faced by employers in being in compliance with it.\r\n\r\n<strong>General Rule</strong>\r\n\r\nPursuant to the Labor Law, an employee shall normally work for a maximum of eight hours a day or forty eight hours per week (based upon a 6 day working week).\r\n\r\nIn addition, the Law No. 133 of 1961 regarding Regulating the Employment of Employees in Industrial Establishments stipulates that employees working in certain industrial establishments (as may be determined by the Minister of Industry) may not work more than 42 hours a week (not including lunch hours).\r\n\r\nFurthermore, the general rule is that an employee may not work for more than five hours continuously and then must be entitled to a lunch break of at least one hour.\r\n\r\nFinally, there is an obligation to allow the employees engaging in hard labor to have drinks, snacks and rest periods on a regular basis to be regulated by each relevant employer.\r\n\r\n<strong>Exceptions</strong>\r\n\r\nThe Labor Law has specified cases whereby a company may not be required to abide by the above working hours restrictions and where overtime working is permissable.   Accordingly, an employee may be required in certain cases, provided the employer has informed the Labor office, to work overtime.\r\n\r\nIn addition, the Ministerial Decree No. 122 of 2003 provides that employers who have a continuous 24 hour operation (based on three shifts) can have its  employees work eight hours shifts rather than be bound by the five hour restriction. In addition,  employers that operate a two shift operation may also have eight continuous daily working hours provided they obtain the written approval of the employees to work these shifts.\r\n\r\n<strong>Remuneration</strong>\r\n\r\nIn terms of overtime pay, Article 85 of the Labor Law, provides that overtime pay shall be more than the normal salary paid. The Labor Law sets out minimum rates for overtime pay and differentiates between overtime worked during the day and at night.\r\n\r\nDaytime overtime shall be compensated with an additional percentage of 35% of the normal working hours’ salary, while night-time overtime shall be compensated by 70% of the normal working hours’ salary.\r\n\r\nA company must always abide by the minimum limits set out by the Law above. In the event a company provides a higher threshold via its general internal regulations it creates a contractual right and it shall not have the discretion to subsequent decrease the overtime rate.\r\n\r\nWe would suggest that the Labor Law appears to be fair and equitable when it comes to the overtime terms applied. However, the economic landscape in Egypt is much changed and employers are often demanding more from the workforce whilst profit margins decline.  The Labor Law sets out a penalty of EGP 100 where an employer violates the above provisions regulating the overtime in addition to the prospect of employee claims. However, this minimal penalty does not act as a disincentive and many employers are in breach of the above overtime provisions given the pressures that they face particularly those that deploy blue collar workings in factories and in the construction industry.\r\n\r\nWe anticipate that in the near future – considering the tremendous change of pace in the Egyptian industrial and business sectors – the working conditions in general and the overtime conditions in particular will continue to face significant challenges and likely legislative amendment.\r\n<div></div>'),
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	(94016,5106,'pageSummary','In the right (or wrong) circumstances, companies may be subject to criminal liability in the UAE.'),
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	(204092,5106,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Omar Khodeir'),
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	(94024,5106,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Andrew Hudson'),
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	(94026,5106,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail',''),
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	(94032,5106,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','631'),
	(94033,5106,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
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	(94036,5106,'_yoast_wpseo_metadesc','In the right (or wrong) circumstances, companies may be subject to criminal liability in the UAE.'),
	(94037,5107,'content','March 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Users can look forward to significantly higher standards and speeds for mobile and smart phones as the world moves closer to Fifth Generation (5G) standards.  This article looks at the background to the 5G standard, makes some observations about what a 5G service might look like, and finally examines some of the legal and technical challenges ahead.</p>\r\n<p class=\"MsoNormal\">A recent announcement by the Telecommunications Regulatory Authority (TRA) of the UAE noted that the UAE had achieved the highest increase worldwide in the Global Information, Communications &amp; Technology Development Index (Index). In the latest edition, the UAE had jumped from 46<sup>th</sup> to 32<sup>nd</sup> place.  The Index is published by the International Telecommunications Union (ITU), a highly respected United Nations agency which coordinates global telecommunication standards and regulations.</p>\r\n<p class=\"MsoNormal\">The ITU noted further key results:</p>\r\n\r\n<ul>\r\n 	<li>The UAE is the highest ranking country in the world in terms of the proportion of rural population covered by at least a Third Generation (3G) Mobile Telephone Network</li>\r\n 	<li>It ranked second of all Arab countries<a class=\"msocomanchor\" href=\"#_msocom_1\">[RK1]</a>  in terms of having the largest proportion of its population online at 88% (Bahrain is ranked slightly higher)</li>\r\n 	<li>Wireless broadband penetration in the UAE has doubled from 45% in 2013 to 90% in 2015</li>\r\n 	<li>The UAE has a high level of household internet connectivity</li>\r\n 	<li>Mobile telephone penetration is at 193%, one of the highest in the world.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">The UAE is therefore in good hands when it comes to the development and management of the Information, Communications and Technology sector generally, and more specifically the mobile sector.</p>\r\n<p class=\"MsoNormal\">Most readers will be familiar with the family of mobile standards known as 2G, 3G etcetera. These standards track the quantum improvements in speed and capability of mobile and more recently smart phone capability and are developed by the GSM Association based in London. In the early days of mobile phones, in the late 1980’s and early 1990’s, phones were only used for analogue voice calls. The further development from this original 1G standard can be seen in the following table.</p>\r\n\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"64\"><strong>GENERATION</strong></td>\r\n<td valign=\"top\" width=\"104\"><strong>PRIMARY SERVICE</strong></td>\r\n<td valign=\"top\" width=\"95\"><strong>KEY DIFFERENTIATOR</strong></td>\r\n<td valign=\"top\" width=\"126\"><strong>WEAKNESS </strong>(addressed by subsequent generation)</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">1G</td>\r\n<td valign=\"top\" width=\"104\">Analogue phone calls</td>\r\n<td valign=\"top\" width=\"95\">Mobility</td>\r\n<td valign=\"top\" width=\"126\">Poor spectral efficiency, major security issues</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">2G</td>\r\n<td valign=\"top\" width=\"104\">Digital phone calls and messaging</td>\r\n<td valign=\"top\" width=\"95\">Secure, mass adoption</td>\r\n<td valign=\"top\" width=\"126\">Limited data rates – difficult to support demand for internet/e-mail</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">3G</td>\r\n<td valign=\"top\" width=\"104\">Phone calls, messaging, data</td>\r\n<td valign=\"top\" width=\"95\">Better internet experience</td>\r\n<td valign=\"top\" width=\"126\">Real performance failed to match hype, failure of WAP for internet access</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">3.5G</td>\r\n<td valign=\"top\" width=\"104\">Phone calls, messaging, broadband data</td>\r\n<td valign=\"top\" width=\"95\">Broadband internet, applications</td>\r\n<td valign=\"top\" width=\"126\">Tied to legacy, mobile specific architecture and protocols</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">4G</td>\r\n<td valign=\"top\" width=\"104\">All-IP services (including voice, messaging)</td>\r\n<td valign=\"top\" width=\"95\">Faster broadband internet, lower latency</td>\r\n<td valign=\"top\" width=\"126\"></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"MsoNormal\"><em>(Source: © GSMA Intelligence 2015)</em></p>\r\n<p class=\"MsoNormal\">There are some warning signs in this table, easily recognised by those who remember the auction of 3G spectrum in the late 1990’s and early 2000’s. Eager telecommunications operators bid huge sums for new 3G spectrum in the expectation of large increases in demand for mobile internet services.  This occurred at a time when profitable online business models on the one hand, and the essential technologies underpinning mobile internet delivery on the other, were severely under-developed. This failure flowed through to the sub-sea cable sector which had also geared up for strong growth in demand, which failed to appear. Things were made worse, fatally for a number of very large sub-sea cable operators, by a sudden surge at the time in the science behind fibre-optic cable technology. This allowed for the transmission of far more data down a single fibre optic cable, leading to massive oversupply and redundancy in sub-sea cables which still exists to an extent some 15 years later.</p>\r\n<p class=\"MsoNormal\">These earlier failures at the 3G stage are a reminder of how easily capital can be misallocated, even by the most experienced players. It also serves as a warning against the hype that is slowly but surely mounting around 5G.</p>\r\n<p class=\"MsoNormal\">Right now, mobile enjoy what appears to be a happy medium at the 4G level. Handset technology in the form of new generation smart phones is relatively well matched with mobile broadband speeds and the wide offerings in the form of data downloads and applications. But this moment will not last, so what of the future? Specifically, how will the authorities in the UAE adapt to 5G noting that the first commercial launches of 5G are not expected until 2020.</p>\r\n<p class=\"MsoNormal\">To answer that let’s look at the question of what is meant by 5G and what it might offer. Given the speed at which technology is being developed, the distant horizon for the launch of 5G, and the recent historical failures mentioned above, the final incarnation of 5G will no doubt be different from what is known now.</p>\r\n<p class=\"MsoNormal\">Despite that, the more obvious improvements over the current 4G standard can be described with a degree of certainty. First, there will be higher coverage, density and availability of mobile services which will allow more devices to operate in a given area while downloading and uploading vastly more data. Secondly, new technologies will allow significant reductions in energy usage and a corresponding increase in the battery life of devices.</p>\r\n<p class=\"MsoNormal\">However, in a recent analysis<a href=\"#_ftn1\">[1]</a> published in December 2014 (the GSMA Report) the GSMA Association makes the argument that many of these improvements over 4G standards are merely incremental and not truly reflective of the unique qualities of a 5G standard. So what might distinguish 5G from 4G?</p>\r\n<p class=\"MsoNormal\">One of the ultimate aims of radio technology as applied to the internet, including the mobile internet, is to reduce delays in transmitting data, known as latency. To understand this more clearly, remember that data transmitted via the internet to your mobile device is first broken up into small packets of data, then sent over a multitude of internet pathways, and finally reassembled at the end destination in its original form. . Compared to the early days of the internet, when there were very few pathways, latency was very poor and often some packets of data simply dropped out and were lost altogether (packet-loss). New technologies and far greater network density have improved the internet experience, especially for mobile users.  So, one distinguishing feature of true 5G is exceptionally low latency.</p>\r\n<p class=\"MsoNormal\">The second technical element identified in the GSMA Report as being fundamental to a true 5G service is a much faster data rate.  The GSMA quotes a figure of 1 Gigabit per second (Gbps) which is many multiples higher than reliable existing services.  Moreover, the transmitting devices (antennae and other network equipment) will also need to be upgraded to deal with these speeds, raising the capital allocation argument for network operators.</p>\r\n<p class=\"MsoNormal\">From a regulatory perspective it will be the revolutionary 5G applications which will present regulators around the world with new challenges. Some examples are:</p>\r\n\r\n<ul>\r\n 	<li>Remote surgical operations</li>\r\n 	<li>Driverless vehicles</li>\r\n 	<li>Connected cars</li>\r\n 	<li>Healthcare monitoring</li>\r\n 	<li>Advanced virtual reality, including gaming</li>\r\n</ul>\r\n<p class=\"MsoNormal\">In almost all cases new sector laws and regulations will need to be developed, at the very least to protect human health and life on the one hand, and on the other hand to promote efficient investment in applications that will benefit society. In each case regulators will need to address the multiple challenges faced by all parties: the potential users of these technologies, the technology providers, as well as the relevant government entities who will oversee the relevant activities (for example Department of Health, Road Transport Authority).</p>\r\n<p class=\"MsoNormal\">Alongside these revolutionary offerings, 5G will also allow enhanced versions of existing applications such as voice and video calls, gaming and machine-to-machine communication.  All if these applications are currently available with existing 4G and related technologies, which make them much less relevant to the 5G discussion.</p>\r\n<p class=\"MsoNormal\">Aside from these regulatory challenges, there are other issues which 5G technologies will present to regulators around the world. This relates to the use of spectrum, which is essentially the range of radio frequencies over which communications are sent through the air. (Readers may wish to refer to an earlier recent article in Issue 275 of December 2015 of the Al Tamimi Law Update, “Averting a Spectrum Shortage in the GCC”.)</p>\r\n<p class=\"MsoNormal\">As noted in our earlier article, spectrum is a valuable national resource and has finite limits. There are constant and growing demands for more spectrum from a wide range of stakeholders such as emergency service providers, telecoms companies, the aviation and marine industries, television broadcasters, national defence and security departments, and many others. Thus far operators and equipment vendors who are looking towards 5G are focussing on spectrum which is in a different frequency range than existing 3G and 4G solutions, which may provide some relief to regulators.</p>\r\n<p class=\"MsoNormal\">Aside from the main regulatory issue for governments of how to allocate this valuable spectrum, one of the flow-on implications is that many more cell sites will need to be built to support a 5G network. This scenario raises questions of land use rights, primarily increasing demand for access to public and private land by mobile operators.  It also raises the thorny question of site sharing and other sharing arrangements as between competing telecommunications network operators. As the GSM Report notes, there may be cases where a single network infrastructure should be implemented and made accessible to all licensed operators. We agree that this may be the ideal technical solution in some cases, but given the troubled history (globally) of network and facility sharing in the telecommunications sector, this will present a very significant challenge to telecommunications regulators, not just in the UAE.</p>\r\n<p class=\"MsoNormal\">In summary, 5G will most likely distinguish itself from earlier 3G and 4G standards by offering truly unique services which will require very high standards of latency and packet-loss and massively higher data speeds.  Applications which are merely an enhancement of existing services will not rank as true 5G.</p>\r\n<p class=\"MsoNormal\">On the other hand, the revolutionary new applications which depend on the enhanced 5G technologies will need to be developed within a suitable regulatory framework in each case, whether it be healthcare, transport or media. Further regulatory challenges will arise in dealing with scarce spectrum resources. However as noted at the start of the article, the UAE is a leader in the Information, Technology and Communication sector, and this should give confidence that it will be able to deal with the challenges that 5G will bring.</p>\r\n\r\n<div>\r\n\r\n&nbsp;\r\n\r\n<hr size=\"1\" />\r\n\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[1]</a> “Understanding 5G: Perspectives on future technological advancements in mobile.” GSMA Intelligence; London, December 2014. <a href=\"https://gsmaintelligence.com/research/?file=c88a32b3c59a11944a9c4e544fee7770&amp;download\">https://gsmaintelligence.com/research/?file=c88a32b3c59a11944a9c4e544fee7770&amp;download</a></p>\r\n<p class=\"MsoFootnoteText\"></p>\r\n\r\n</div>\r\n</div>\r\n<div>\r\n\r\n<hr class=\"msocomoff\" size=\"1\" />\r\n\r\n<div>\r\n<div class=\"msocomtxt\">\r\n<p class=\"MsoCommentText\"> <a class=\"msocomoff\" href=\"#_msoanchor_1\">[RK1]</a>Would be interesting to state which was No1</p>\r\n\r\n</div>\r\n</div>\r\n</div>'),
	(174915,5107,'core_values',''),
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	(101368,5510,'content_description','The Chairman of the Securities and Commodities Authority of the United Arab Emirates (SCA) issued on 28 April 2016 the Resolution No. (7/R.M) of 2016 Concerning Corporate Discipline and Governance Standards of Public Joint Stock Companies (New Governance Rules) in order to:'),
	(101369,5510,'_content_description','field_59b641c07f473'),
	(101370,5510,'pageSummary','The Chairman of the Securities and Commodities Authority of the United Arab Emirates (SCA) issued on 28 April 2016 the Resolution No. (7/R.M) of 2016 Concerning Corporate Discipline and Governance Standards of Public Joint Stock Companies (New Governance Rules) in order to:'),
	(101371,5510,'_pageSummary','field_59e59b307dec8'),
	(101372,5510,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/november-7/an-overview-of-the-new-governance-rules-in-the-uae-part-ii.html'),
	(101373,5510,'_currentURL','field_59d35123ab1e7'),
	(101374,5510,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','943'),
	(101375,5510,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(101376,5510,'lawUpdateArticleWriters','1'),
	(101377,5510,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(101378,5510,'_yoast_wpseo_metadesc','The Chairman of the Securities and Commodities Authority of the United Arab Emirates (SCA) issued on 28 April 2016 the Resolution No. (7/R.M) of 2016 Concerning Corporate Discipline and Governance Standards of Public Joint Stock Companies (New Governance Rules)'),
	(101379,5511,'content','November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Means of Implementing Mergers:</strong></p>\r\n<p class=\"p2\">It is symptomatic of times when economic conditions appear favourable to business growth that businesses expand rapidly, but not necessarily in the most cost-effective and streamlined manner. When economic conditions change and become less favourable, as during present times, it becomes more important for businesses to operate in a more cost-effective and efficient manner in order to maximise profit margins and under-cut their competition by reducing their costs base. An important tool in the drive to rationalise and reduce costs is the merger of operations, where circumstances allow and where benefits can be gained. This can assist to cull the profligate and inefficient corporate structuring that often flourishes when businesses are focusing more on keeping up with burgeoning and evolving client demand, rather than on optimal corporate structure planning.</p>\r\n<p class=\"p3\">There are a myriad of different means by which companies or organisations can merge with one another. Each different mechanism will be selected for particular reasons and will produce a different outcome. The three classic means of effecting a merger of corporate entities are as follows:</p>\r\n<p class=\"p2\"><em>1. Common Holding Company</em></p>\r\n<p class=\"p3\"><span class=\"s2\">This would involve bringing different companies/businesses together under a common holding or parent company. This can assist in slimming down the management structure, facilitating the sharing of resources and support functions as well as enabling the uniform implementation of policies and procedures across a merged group, together with aiding access to finance for the companies and businesses brought together by the merger. </span></p>\r\n<p class=\"p2\"> [image height=\"312\" src=\"http://localhost:8888/tamimi/en/media/get/20161204_Screen-Shot-2016-11-10-at-11.16.16-AM.png\" width=\"600\" class=\"__image__\" imageId=\"5053\"]</p>\r\n<p class=\"p2\"><em> </em></p>\r\n<p class=\"p3\"><em>2. Business and Assets Transfer</em></p>\r\n<p class=\"p3\"><span class=\"s2\">Such a transaction involves transferring a business, assets and personnel from one or more companies into another company, thereby merging the businesses of the two or more companies into a single company structure (“Business Transfer”). This may engender each of the advantages described under 1. above as well as reducing the number of companies within a group, further allowing for synergies between business-streams to be exploited and offering a greater opportunity to reduce management, support personnel and infrastructure (such as office space, workshops, machinery and so on). Typically, the company or companies that transfer their businesses, assets and personnel to another will in due course be wound-up and dissolved. </span></p>\r\n<p class=\"p2\"> [image height=\"280\" src=\"http://localhost:8888/tamimi/en/media/get/20161204_Screen-Shot-2016-11-10-at-11.16.27-AM.png\" width=\"600\" class=\"__image__\" imageId=\"5054\"]</p>\r\n<p class=\"p2\"><em>3. Legal Merger</em></p>\r\n<p class=\"p3\">A legal merger pursuant to the UAE Commercial Companies Law No. 2 of 2015 (“CCL”) (“Legal Merger”) enables different companies to be fused together to become one. All of the businesses, contracts, other assets and liabilities, as well as personnel will come together within the sole surviving merged company. This procedure, which is made possible by articles 283 to 291 of the CCL, may engender all the advantages under 1 and 2 above, but without the need (as under 2.) to seek the consent of each and every customer, supplier and employee of the businesses to be brought together and to effect transfers of each of them.</p>\r\n<p class=\"p2\"> [image height=\"312\" src=\"http://localhost:8888/tamimi/en/media/get/20161204_Screen-Shot-2016-11-10-at-11.16.35-AM.png\" width=\"600\" class=\"__image__\" imageId=\"5055\"]</p>\r\n<p class=\"p2\">Furthermore, under 2. above, given that the UAE does not have a regime similar to the European Transfer of Undertakings regulations, whereby personnel working within a particular business will transfer with that business when a merger occurs, in the UAE there will in effect be a negotiation with each and every employee, who needs to agree to terminate their current employment contract and enter into a new one with the company that survives the merger.</p>\r\n<p class=\"p3\">A Legal Merger can therefore make for a much cleaner and neater solution and can substantially reduce the costs and timeframe of implementing a merger.</p>\r\n<p class=\"p3\">If properly planned, a Legal Merger of businesses previously operating within separate companies can bring benefits in terms of operational cost-savings through reducing expensive management, support functions, and auditing requirements; simplifying corporate governance; affording other reductions by eliminating duplicated personnel and resources, and licensing and compliance costs; enabling synergies of ideas, technology, intellectual property, expertise, and the common utilisation of other assets and infrastructure; as well as significantly reducing the time, costs and effort in implementing the merger itself.</p>\r\n<p class=\"p3\">The former UAE Commercial Companies Law No. 8 of 1984 also provided for corporate mergers, but the new 2015 law addresses them in much more detail and offers further assurances and opportunities.</p>\r\n<p class=\"p2\"><strong>Comparison of Merger Mechanisms - Legal Merger vs. Business Transfer:</strong></p>\r\n<p class=\"p2\">When determining which of these two types of merger mechanism will offer the optimal structuring route to achieve the desired end result, a number of key issues fall to be considered. There follows an outline description of certain key features distinguishing a Legal Merger from a Business Transfer.</p>\r\n<p class=\"p3\"><em>Documentation</em>: Under a Legal Merger, all of the assets of the merging companies will automatically be brought together within the surviving company without the need for them to be individually identified and transferred, so full and clear title to each asset on a transfer to the surviving company should be achieved without anything being left behind. Under a Business Transfer, it is necessary to identify each and every asset of the businesses being transferred, so that steps can be taken to ensure that each of them is effectively moved across, which will in all likelihood involve a complex series of enquiries and a certain amount of transfer documentation.</p>\r\n<p class=\"p3\"><em>Steps involved</em>: The CCL requires that shareholders holding at least 75 per cent of each company involved must pass resolutions to approve a Legal Merger. This is interesting, because it means that shareholders holding up to 24.9’ per cent of the shares in non-surviving companies can be forced to accept the exchange of their interests in the share capital of such companies for shares in the surviving company. This contrasts markedly with the well-recognised lack of a ‘squeeze-out’ mechanism in a normal corporate acquisition or tender offer scenario in the UAE, where any small minority of shareholders opposed to a sale of all the shares in a company can frustrate such a sale by digging in their heels and refusing to cooperate.</p>\r\n<p class=\"p3\"><span class=\"s3\"> Therefore, on approval by a 75 per cent majority of the shareholders of each company involved and a green-light from each of the relevant supervising governmental authorities, a Legal Merger will result in all shareholders of the non-surviving company automatically becoming shareholders in the surviving company.</span></p>\r\n<p class=\"p3\">Conversely, in a Business Transfer, the cooperation of each shareholder is required, because for them to acquire new shares in the surviving company simultaneously with a transfer of assets out of the non-surviving company, the shareholders would each individually need to consent and subscribe for new shares in the surviving company. Further, rather than the business, assets and personnel automatically transferring into the surviving company, they need painstakingly to be identified and transferred, if not by simple delivery, then by whatever legal and documentary process applies to them. Furthermore, the non-surviving entity will need separately to be wound-up and dissolved, requiring it to be placed into liquidation, the appointment of a liquidator and the various procedures to be complied with to bring about its ultimate dissolution. Typically, it will only be when the non-surviving company has relatively few assets and contracts, which can easily be shifted to the surviving company, that it may be faster and more convenient to undertake a Business Transfer instead of a Legal Merger.</p>\r\n<p class=\"p3\">In terms of timing, for a Legal Merger, once shareholder resolutions have been adopted and relevant governmental approvals have been obtained (and assuming no qualifying objections are raised to hinder the merger), then the merger will be effective immediately following its date of registration in the relevant commercial register. Whereas, for a Business Transfer, the timeframe will depend on the nature of the assets and contracts to be transferred. Typically, for the negotiation and novation of all key contracts, the identification and transfer of all relevant assets, for the revision of the licence of the surviving company with approvals from each relevant supervising authority, and for the winding-up and dissolution of the non-surviving companies, the process overall can be expected to take significantly longer.</p>\r\n<p class=\"p3\"><em>Third party consents</em>: For a Legal Merger, third party consents will be required only for contracts specifically stating consent requirements in case of a corporate restructuring (which are likely to be few in number). Whereas, in a Business Transfer, there will likely be a need to obtain many more third party consents to the transfers of assets and the novation of business contracts, because every customer, supplier and financier will need to agree (either explicitly or impliedly) to the termination of its contract with each non-surviving company and its entry into a fresh contract with the surviving company. It is worthy of note that in a Legal Merger, the CCL enables creditors and other interested third parties to petition the court within 30 days if they oppose a proposed Legal Merger. In considering the petition, the court will look to see whether the petitioning parties would likely be unfairly prejudiced by the implementation of the merger.</p>\r\n<p class=\"p3\"><em>Transfer of employees</em>: One very significant area in which a Legal Merger scores over a Business Transfer relates to human capital arrangements. In a Legal Merger, it is possible for personnel of merging companies simply to be brought together with merely an amendment being made to the files of the labour and immigration authorities, rather than the tedious and costly cancellation of work permits and visas by the non-surviving company and the grant of new ones by the surviving company as their new employer and sponsor. Accordingly, the cost-saving potential of a Legal Merger in this respect can be very significant for businesses with substantial numbers of employees.</p>\r\n<p class=\"p3\"><span class=\"s2\"> <em>Accounting</em>: Other potential advantages arising out of a Legal Merger, that are not available when effecting a merger by way of a Business Transfer, include the merging of profit and loss, and balance sheet statements. For instance, it can be possible for the surviving company to utilise the profits and losses on the financial statements of the non-surviving company to its advantage, which is not possible where the non-surviving company will remain separate and simply be wound-up and dissolved. </span></p>\r\n<p class=\"p3\">Further, in a Legal Merger, the share capital of each of the companies involved will be merged resulting in the merged company going forwards with an enhanced paid-up share capital. In most jurisdictions, where taxation is a key feature of planning corporate transactions, an assessment of the tax effects of either merger mechanism will be critical. Due to the scant nature of the UAE taxation regime, tax will likely be of little significance, but in most of the other jurisdictions of the GCC and Middle East region, tax planning will feature in designing a successful merger.</p>\r\n<p class=\"p2\"><strong>Closing Comments: </strong></p>\r\n<p class=\"p2\">The new CCL opens the door further for companies to reap the benefits of effecting corporate mergers to rationalise business operations at less cost. From a legal perspective, a Legal Merger, whereby one surviving company remains following the merger of two or more companies, often represents a particularly attractive route. This is due to the various reasons summarised above, but in essence the time, effort, disruption to business and impact on relations with third parties (customers, suppliers and financiers) will be significantly reduced, as typically will be the costs of proceeding with a Legal Merger.</p>\r\n<p class=\"p3\">Ultimately, when preparing for a merger structure, it is important to consider the optimal transaction structure. This article deals briefly with just a few of the key issues pertinent to planning and implementing a merger transaction, but its principal aim is to highlight the opportunities for the rationalisation of resources and cost-savings that mergers, and the implementation of them by different means, can bring about. Accordingly, it is important to assess the steps, features and timeframes applicable to a Legal Merger, a Business Transfer or another form of merger, taking account of the nature and extent of the assets, contracts and consents involved, in order to identify which structure is preferable in the context of a particular business amalgamation.</p>'),
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	(101364,5510,'content','November 2016\r\n\r\n<hr />\r\n\r\n<ul>\r\n 	<li>List a set of new corporate governance rules in accordance with, and to adhere to, the Federal Law No. (2) of 2015 on Commercial Companies (CCL); and</li>\r\n 	<li>Repeal the UAE Ministerial Resolution No. (518) of 2009 Concerning Governance Rules and Corporate Discipline Standards (Repealed Governance Rules).</li>\r\n</ul>\r\n<p class=\"p4\">New provisions were also introduced under the New Governance Rules, that did not exist under the Repealed Governance Rules, such as the provisions related to Insiders Register, Confidentiality of Data &amp; Information, Conflict of Interest, Register of Related Parties, General Assembly Meetings, Capital Increase, Dividends Distribution, Investors Relation, and Obligations of the Auditor.</p>\r\n<p class=\"p1\">The purpose of this article is to compare the New and Repealed Governance Rules and highlight some of the provisions that we consider would benefit from clarification from SCA.</p>\r\n<p class=\"p1\">It is worth mentioning that any capitalised terms shall have the same meaning to those mentioned in the New Governance Rules unless provided otherwise in this article.</p>\r\n<p class=\"p5\"><strong>Formation of the Board of Directors </strong></p>\r\n<p class=\"p5\">There is no material difference between the New and Repealed Governance Rules since both stipulate that the articles of association shall decide on the method of formation, number of members and tenure of membership of the Board of Directors. However, the New Governance Rules reiterate Article 148 of the CCL which states that if a Government owns 5% or more of a Company’s shares, the said Government may then appoint a representative in the Company’s Board of Directors pro rata to its shareholding or at least one Board Member if the shareholding percentage required to elect such member is less than the shareholding of the said Government. The Government’s right to vote shall expire with respect to the shares utilized to appoint its board representative unless there are remaining shares still to be utilized (other than those already utilized to appoint the Board Members representing the Government).</p>\r\n<p class=\"p1\"><span class=\"s3\"> In accordance with Article 151 of the CCL, the condition to have the Chairman and majority of the Board Members to be UAE nationals continue to be in effect in the New Governance Rules without prejudice to the treaties and agreements entered into by the State (such as the treaties entered with the GCC States).</span></p>\r\n<p class=\"p5\"><strong>Regulations of Candidature to Board Membership</strong></p>\r\n<p class=\"p5\">Both rules provided for women’s representation in the Board of Directors and to disclose in the Company’s annual report the reasons for not having a woman Board Member if there are no women that are members. However, the difference is that the Repealed Governance Rules stipulate a requirement to have at least one female Board Member while the New Governance Rules set a minimum percentage of 20% of the Board of Directors to be represented by women with an obligation to disclose the percentage of women represented in the Board of Directors.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The New Governance Rules further sets the rules for board membership candidature, such as having the process of candidature open for at least ten days (fourteen days in the Repealed Governance Rules), publishing the details of the board candidates in the Company’s website two days utmost (five days in the Repealed Governance Rules) prior to the general assembly meeting day, prohibiting assigning candidature after closing the candidature process (did not exist in the Repealed Governance Rules), and providing SCA and the Market with the details of the candidates on the day following the closure of the candidature process (no timeline for providing such details existed in the Repealed Governance Rules).</span></p>\r\n<p class=\"p5\"><strong>Conditions for Board Membership</strong></p>\r\n<p class=\"p5\">The New Governance Rules referred to the CCL which stipulates that a Board Member must not be a Board Member in more than five companies, or to be a Chairman or Vice Chairman in more than two companies, or to be the managing director in more than one company.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The New Governance Rules, in addition to the aforementioned prohibition of the CCL, stipulates that a Board Member must not (i) have been convicted with a crime of honor or honesty unless pardoned (such prohibition existed in Article 97 of the Old Companies Law No. (8) of 1984 but do not exist anymore in the CCL); (ii) have at least five years of experience in the activity carried out by the Company that he he/she is applying for its board membership; (iii) hold a clean record before SCA that no disciplinary action has been taken against him, no court order is issued to dismiss/remove him/her from his/her position as a Board Member, and no outstanding proceedings before the Public Prosecution office in relation to honesty and integrity; and (iv) any other conditions stipulated in the Company’s articles of association.</span></p>\r\n<p class=\"p1\">The New Governance Rules also lists the documents required to be submitted by candidates for board membership.</p>\r\n<p class=\"p5\"><strong>Obligations and Duties of the Board of Directors</strong></p>\r\n<p class=\"p5\">The New Governance Rules expanded the duties and obligations of the Board of Directors in Article 43 thereof to ensure its involvement in each and every aspect of the Company’s management and operations. The New Governance Rules further provides under Article 11 (did not exist under the Repealed Governance Rules) for the duties and obligations of the Board Members which basically obligate Board Members to (i) preserve the Company’s rights and act as a prudent person; (ii) act with honesty and integrity and in accordance with the applicable laws and regulations and the Company’s articles of association; (iii) disclose being a Chairman, Board Member or a member of the Senior Executive Management of a company other than the Company itself; and (iv) dedicate sufficient time for his/her duties and obligations toward the Company.</p>\r\n<p class=\"p6\"><span class=\"s1\"><strong>Board Members Lack of Independency</strong></span></p>\r\n<p class=\"p5\">More or less the provisions whereby the Board Member will lack independency are same in both rules. However, two additional conditions were added to the New Governance Rules that needs to be taken into consideration.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The first is that the New Governance Rules has added that a Board Member will lack independency if such Board Member or any of his/her Relatives work or has worked in the Senior Executive Management of the Company or a Subsidiary during the last two years preceding the date of being Board Member candidate.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> The second condition is that a Board Member will also be conflicted if such Board Member or any of his/her Relatives has a direct or indirect interest in one or more Deal concluded with the Company or a Subsidiary during the last two years and the aggregate value of such Deals exceeds 5% of the Company paid up share capital or AED 5 million or their equivalent in foreign currency whichever is less unless the Deals fall within the normal course of the Company’s activities and there are no preferential conditions whatsoever and that they have been entered on an arms’ length basis.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> It is worth mentioning that the New Governance Rules also added that a Board Member shall not lack independency for just being an employee of the Parent Company or a Subsidiary if such Parent Company or a Subsidiary is a Government or is a Company or a Subsidiary that is at least 75% owned by a Government.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> Unfortunately, the New Governance Rules are silent in respect to the procedures to be taken if a Board Member lacks independency and just mention the conditions under which a Board Member is conflicted. However, we believe that disclosure obligation under Clause 11(c) of the New Governance Rules is applicable in this regard; i.e. the conflicted Board Member will have an obligation to inform the Board and the Board shall then decide on the action to be taken in this regard.</span></p>\r\n<p class=\"p5\"><strong>Chairman of the Board of Directors</strong></p>\r\n<p class=\"p5\">The New Governance Rules added new provisions that did not exist in the Repealed Governance Rules regarding the election of the Chairman from amongst the Board Members (by way of cumulative voting), prohibition to combine between the position of the Chairman and General Manager, the right to elect the General Manager from amongst the Board Members and the right to form committees from amongst the Board Members to monitor the progress of the Company’s operations and to ensure the implementation of the Board’s resolutions.</p>\r\n<p class=\"p7\"><strong>Vacancy of Board Member Position</strong></p>\r\n<p class=\"p5\">The key difference is that the wordings of the New Governance Rules provides that in case 25% or more of the Board Member positions are vacant, then the remaining Board Members have to call for a general assembly meeting within 30 (thirty) days (no more than three months in the Repealed Governance Rules) to elect the members to occupy the vacant positions as per Article 145 of the CCL.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The New Governance Rules has also added a clause regarding the representatives of juristic persons or Governments (did not exist in the Repealed Governance Rules) who can be changed by way of an official letter addressed to the Company and the new representative shall complete his/her predecessor’s tenure.</span></p>\r\n<p class=\"p1\">The New Governance Rules further lists the circumstances under which a position of a Board Member shall be vacant. This also did not exist under the Repealed Governance Rules.</p>\r\n<p class=\"p5\"><strong>Dismissal of Board or Executive Management Members</strong></p>\r\n<p class=\"p5\">The Repealed Governance Rules just referred to the Old Companies Law No. (8) of 1984 and accordingly is silent on this matter.</p>\r\n<p class=\"p1\"><span class=\"s4\"> Even though Article 168 of the CCL provides for the circumstances under which a Board Member may be dismissed, the New Governance Rules further stipulates that a Board Member or a member of the Company’s executive management shall not continue in his/her position if a court order is issued against him/her with a penalty of imprisonment and/or fine with the dismissal of such member from his position. Such Board Member may not be a member again of the Board of Directors or the Company’s executive management at least a year from the date the court order is issued.</span></p>\r\n<p class=\"p5\"><strong>Board Members Remuneration</strong></p>\r\n<p class=\"p5\">The New Governance Rules provided same as the Repealed Governance Rules that the remuneration of the Board Members shall not exceed 10% of the Company’s net profit for the relevant financial year. However, the three key differences between the New and Repealed Governance Rules as per Article 169 of the CCL is that (i) Board Members’ remuneration under the New Governance Rules is not subject to the distribution of a minimum percentage of dividends and therefore it is impliedly stated that the general assembly of a Company may resolve that the Board Members shall receive their remuneration even if it is decided that no dividends will be distributed to the shareholders for the relevant financial year but  this is subject to the Company generating net profits for such year. The Repealed Governance Rules on the other hand provided that Board Members remuneration shall be subject to the distribution of at least 5% of the net profits to the shareholders which is not the case any more; (ii) the New Governance Rules further provides that  (did not exist under the Repealed Governance Rules) the Company may pay additional expenses, fees or monthly salaries to the extent determined by the Board of Directors to any Board Member if such member works in any committee, makes special efforts or performs additional works to serve the Company beside his ordinary duties as a Board Member. Having said this, no attendance allowance may be paid to the Chairman or Board Member in respect of the board meetings; and (iii) the New Governance Rules additionally provides that  (also did not exist under the Repealed Governance Rules)  fines imposed on the Company because of the Board of Directors’ violation of the applicable laws or the Company’s articles of association shall be deducted from the remuneration of the Board of Directors. Having said this, the general assembly meeting of the Company may not deduct all or some of such fines if such fines are not a result of the Board of Directors fault or negligence.</p>\r\n<p class=\"p5\"><strong>Board Meeting</strong></p>\r\n<p class=\"p5\">The Repealed Governance Rules stipulated that the Board of Directors has to meet at least once every two months; i.e. at least six times a year and that no board meeting shall be valid unless attended by the majority of its members and all its resolutions has to be passed by a simple majority voting of the Board Members present at the meeting.</p>\r\n<p class=\"p1\">The New Governance Rules on the other hand provides that, in accordance with Article 156 of the CCL, the Board of Directors has to meet at least four times a year and all board resolutions has to be passed by a simple majority voting of the Board Members present at the meeting. As for the quorum required to construe the board meeting being valid, the New Governance Rules is silent referring this matter to the CCL and likewise the Repealed Governance Rules requires the attendance of the majority of the Board Members.</p>\r\n<p class=\"p1\"><span class=\"s5\"> Both rules provide that the Chairman shall have a casting vote.</span></p>\r\n<p class=\"p1\">The New Governance Rules has added additional clauses in relation to:</p>\r\n\r\n<ul>\r\n 	<li>the obligation to convene the board meeting calling for a general assembly 30 days prior to the general assembly date (21 days under the Old Companies Law No. (8) of 1984);</li>\r\n 	<li>having the board meeting to be held in the Company’s headquarter unless the Board believes there is a necessity to convene the meeting in another place;</li>\r\n 	<li>having a secretary to the Board of Directors who shall not be a Board Member;</li>\r\n 	<li>delegating other Board Members to attend a board meeting provided that no Board Member shall act as a proxy for more than one Board Member; and</li>\r\n 	<li>prohibiting any voting by way of correspondence.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\"><strong>Participation in Board Meetings via Modern Technology</strong></p>\r\n<p class=\"p5\">Article 6 of the New Governance Rules has provided for the conditions to have a board meeting using modern technology in accordance with Article 156 of the CCL subject to stipulating in the Company’s articles of association for using such means to convene a board meeting.</p>\r\n<p class=\"p5\"><strong>Board Resolutions by way of Circulation</strong></p>\r\n<p class=\"p5\">The critical difference between the two rules in this regard is that the Repealed Governance Rules has stipulated that the Board of Directors shall pass no more than four resolutions per year by way of circulation.</p>\r\n<p class=\"p1\">The New Governance Rules on the other hand did not set a ceiling to the maximum number of resolutions that can be passed by way of circulation (unless provided otherwise in the Company’s articles of association) and provided that (same as stipulated in the Repealed Governance Rules) the Board Members agree by way of simple majority that the circumstances requires the resolution to be passed by way of circulation and that the resolutions are ratified in the next physical board meeting.</p>\r\n<p class=\"p5\"><strong>Minutes of Board Meetings</strong></p>\r\n<p class=\"p5\">No material difference between the two rules in this regard except that the New Governance Rules are more comprehensive and lists the standards to be taken into consideration when recording the minutes of meeting such as listing the date, venue, attendees, absent board members, date of the invitations sent regarding the meeting, proxies and including the phrase “<em>Signatories of this minutes shall be responsible of the validity of the date included therein</em>” in the minutes of meeting.</p>\r\n<p class=\"p7\"><strong>Board Committees, Internal Control and Compliance Officer</strong></p>\r\n<p class=\"p5\">There is no difference between the New and the Repealed Governance Rules in this regard except that the New Governance Rules are more comprehensive in terms of the duties of the audit committee and the elements to be included in the internal control annual revision report.</p>\r\n<p class=\"p5\"><strong>Corporate Governance Report</strong></p>\r\n<p class=\"p5\">The New Governance Rules have expanded the details that should be included in the Corporate Governance Report which has to be as follows:</p>\r\n\r\n<ol>\r\n 	<li>A statement of the details and reasons of any compensations and allowances paid to every Board Member and the members of the Board committees during the fiscal year;</li>\r\n 	<li>A statement of the Company’s Board Members and first and second line officers as per the Company organizational structure as well as their positions, appointment dates, salary details, the benefits paid to each of them and any compensation paid to them by the Company and the reason of such compensations; and</li>\r\n 	<li>Remuneration of the Board Members and all the members of the Company management team including the compensations and any motivational programs associated with the securities issued or guaranteed by the Company.</li>\r\n 	<li>The New Governance Rules is silent on the obligation to mention the violations committed during the financial year in the report (such obligation existed in the Repealed Governance Rules). We believe that the report still has to mention the violations committed even if the New Governance Rules are silent on this matter since this is a crucial purpose for issuing the report and presenting it to the shareholders.</li>\r\n 	<li>The obligation to have the report available to the shareholders before submitting the application to approve convening the annual general assembly meeting still continue to be enforceable under the New Governance Rules.</li>\r\n</ol>');

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	(101335,5509,'content','<p class=\"p1\"><strong>Background</strong></p>\r\n<p class=\"p2\">On 11 November 2012, Fluor Transworld Services, a US based firm, and Petrixo Oil, a UAE company owned by prominent Dubai businessman, entered into a Technical Service Agreement, where Fluor Transworld Services provided Petrixo Oil with technical and consulting services in relation to two projects in Fujairah.</p>\r\n<p class=\"p1\">Fluor Transworld Services (Claimant) provided Petrixo Oil (Defendant) with the consulting technical services as agreed and the latter became liable to pay US$ 11,894,782.15. The Defendant abstained from paying the dues without any justifiable reasons. The Claimant issued arbitration proceedings against the Defendant pursuant to the Rules of Arbitration of the International Chamber of Commerce (ICC). The ICC arbitration was seated in the United Kingdom (UK). After obtaining an arbitral award in 2015, the Claimant filed Commercial Case No.1223-2015 against the Defendant before the Dubai Court of First Instance to recognize and enforce the ICC arbitral award.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The Claimant filed the case to obtain enforcement of the arbitral award to obtain payment of the principal amount of US$ 10,205,004.21 (AED 37,452,365.45), and the accrued simple interest on the amount for a total sum of US$ 650,768.92 (AED 20,388,321.93), the expenses and legal fees totaling GBP 55,192.2 (AED 312,939.77), other arbitration fees incurred by the Claimant amounting to US$ 125,500 (AED 460,585), and simple interest of 3.25% on the amount as of the date of ruling until the full payment, and validating and enforcing a precautionary attachment no. 314 of 2015 (Commercial). </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> In response, the Respondent requested the court to dismiss the arbitration award, not to recognize the award and to invalidate the provisional attachment and declare it void. The Respondent argued that (a) the signatory to the agreement had no right to agree on the arbitration, and the memorandum of association did not confer on it such a right, (b) the record was devoid of UK rules on the enforcement of a UAE award, (c) the award was not final or subject to compulsory enforcement, (d) the Defendant was not given proper notice of the appointment of the arbitrator and of the arbitration proceedings and was unable to present its case, (e) the arbitral tribunal was not appointed in the manner agreed upon by the parties or in accordance with ICC Rules of Arbitration, (f) the terms of reference were not submitted to the Court for approval in accordance with Article 23.1(c) of the ICC Rules of Arbitration, (g) the arbitrator breached Article 3 of the ICC Rules of Arbitration by failing to mention that the Secretariat had received any copies or had been sent a copy of any notification or communication from the arbitral tribunal to the parties. The Respondent also argued that the arbitrator breached Article 33 of the ICC Rules of Arbitration by not submitting the award in draft form, before signing it, to the court for approval, and the Claimant violated the arbitration procedure agreed upon with the arbitrator by not delivering documents by hand and only sent them by email.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Court of First Instance</strong></span></p>\r\n<p class=\"p2\">At the hearing dated 30 December 2015, the Court of First Instance dismissed the case on the basis that there was no evidence of the court mentioned in Article 1 of the ICC Rules of Arbitration (i.e. International Court of Arbitration) approving the award as to its form, which it considered to be a breach of Article 33 of the ICC Rules of Arbitration (which states that no award shall be rendered until it has been approved by the ICC court as to its form). The Court of First Instance held that there was a breach of the arbitration procedure set out in the ICC Rules and ruled that the Claimant’s action was without merit.</p>\r\n<p class=\"p2\"><strong>Court of Appeal</strong></p>\r\n<p class=\"p2\">The Claimant appealed the ruling pursuant to Commercial Case no. 52-2016. On 30 March 2016, the Court of Appeal dismissed the appeal on the basis that in order for the award to be enforceable in the UAE, both the UAE and the UK would have to be parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) or to the Geneva Convention on the execution of foreign arbitral awards (Geneva Convention) in order to enforce the arbitral award. The Court of Appeal stated that there was no proof on record to indicate that the UAE and the UK were parties to “one convention”.</p>\r\n<p class=\"p2\"><strong>Court of Cassation</strong></p>\r\n<p class=\"p2\">The Claimant appealed to the Court of Cassation under Commercial Appeal No. 384-2016. The Court of Cassation held that Article 238 of the Civil Procedure Law (CPC) indicates that international conventions signed between the UAE and other countries, which have been ratified by the UAE, applies to the enforcement of foreign court judgments, orders and arbitral awards. Article III of the New York Convention states that each contracting country must recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the country where the award is relied upon. The UK ratified the New York Convention on 24 September 1975 and the UAE acceded to the New York Convention by Federal Decree No. (43) of 2006. This means that the country where the arbitral award was issued and the country where it is to be enforced are both contracting parties to the New York Convention, which therefore applies to the issue at stake. The Court of Cassation overturned the Court of Appeal’s ruling with remand for a new decision.</p>\r\n<p class=\"p2\"><strong>Court of Appeal (on remand)</strong></p>\r\n<p class=\"p2\">The portion of the ruling which was objected to was quashed and remanded back to the Court of Appeal for a reassessment of the facts. On remand, the Court of Appeal stated that challenges raised by a party against the arbitral award concerning the arbitrator’s judgment or the validity or sufficiency of the justification for his award would be unacceptable, as the court must not address its substantive aspects and the extent of its conformity with the law and facts, according to Articles 212 and 216 of the CPC. An arbitral award may be set aside only in the circumstances specified in Article 216 of the CPC. The Court of Appeal concluded that the previous court rulings were clearly erroneous as a matter of law and are quashed, and has ruled that the ICC arbitral award is confirmed.</p>\r\n<p class=\"p2\"><strong>Commentary</strong></p>\r\n<p class=\"p2\">Since 2010, the UAE has enforced foreign arbitral awards pursuant to the New York Convention. However, with no system of binding precedent in the UAE, the Court of Appeal’s decision contrasted from the recent judgments of enforcing foreign awards and made a contradictory decision on its own motion (it had not been raised in the Defendant’s counterclaim). The Court of Appeal’s decision came as a surprise when it ruled that there was “no evidence” that the UK and the UAE were parties to the New York Convention, without fully acknowledging UAE’s commitments under the New York Convention. Although the decisions by the Court of Cassation and the Court of Appeal (on remand) are in line with the recent trend, it is believed that the courts have missed the important fact that the UAE acceded to the New York Convention without any reservation. This means that the UAE is obliged to enforce all foreign awards, even if the country where the award was issued is not a signatory to the New York Convention.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In respect to foreign arbitral awards, the local courts are to apply the relevant convention’s rules in order to enforce all foreign arbitral awards. In this case, Article III of the New York Convention applied, stating that each contracting country must recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the country where the award is relied upon. </span></p>\r\n<p class=\"p1\">In the recent years, Dubai has made substantial progress and improvements in supporting arbitration as a means of dispute resolution and in applying the New York Convention; the Court of Appeal’s erroneous judgment should not detract from the achieved growth.</p>\r\n<p class=\"p1\">The Claimant was represented by Al Tamimi &amp; Company in the Dubai Court of Cassation Decision, and Al Tamimi &amp; Company supported the Claimant in overturning the incorrect ruling pursuant to the New York Convention.</p>'),
	(212006,5509,'core_values',''),
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	(101312,5508,'pageSummary','The Dubai Court of Cassation recently clarified when an arbitral award has res judicata effect. In a judgment dated 21 August 2016 (Commercial Appeal 199 of 2014), the Court held that an award has res judicata effect from the moment it is issued, and will only cease to have that effect if and when it is annulled. The fact that an award was under review by the local court did not mean that the award lacked res judicata effect, or that it would only gain res judicata effect once it had been upheld. This meant that an application to the court for the appointment of a Tribunal was to be rejected whilst there was an extant arbitral award dealing with the issues in dispute. '),
	(101270,5505,'_content','field_59b649b5c8b2b'),
	(101271,5505,'lawUpdateArticleMonth','5479'),
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	(101273,5505,'content_description','In 2014 Kuwait ratified the Berne Convention for the Protection of Literary and Artistic Works. In the same year the Council of Ministers issued Resolution No. 1070 transferring the dependency copyright administration from the Ministry of Trade and Industry to the National Library of Kuwait. The National Library provides services in the area of depository, preservation, and protection of intellectual property rights of authors through the application of the depository System, where the author or publisher registers and deposits the author’s artistic works in the National Library to ensure the conservation of the author’s intellectual property. '),
	(101274,5505,'_content_description','field_59b641c07f473'),
	(101275,5505,'pageSummary','In 2014 Kuwait ratified the Berne Convention for the Protection of Literary and Artistic Works. In the same year the Council of Ministers issued Resolution No. 1070 transferring the dependency copyright administration from the Ministry of Trade and Industry to the National Library of Kuwait. The National Library provides services in the area of depository, preservation, and protection of intellectual property rights of authors through the application of the depository System, where the author or publisher registers and deposits the author’s artistic works in the National Library to ensure the conservation of the author’s intellectual property.'),
	(101276,5505,'_pageSummary','field_59e59b307dec8'),
	(101277,5505,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/october-6/new-copyright-law-in-kuwait.html'),
	(101278,5505,'_currentURL','field_59d35123ab1e7'),
	(101279,5505,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','720'),
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	(101282,5505,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(101283,5505,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ahmed ElKlatawy'),
	(101284,5505,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(101285,5505,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','A.ElKlatawy@tamimi.com'),
	(101286,5505,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(101287,5505,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','Kuwait City, Kuwait'),
	(101288,5505,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(101289,5505,'lawUpdateArticleNoWriters','1'),
	(101290,5505,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(101291,5505,'_yoast_wpseo_metadesc','The new law (On Copyrights and Related Rights) covers the copyright and related rights of natural and legal entities; Kuwaitis and foreigners permanently resident in the State of Kuwait; and foreign nationals belonging to one of the member States of the Convention or the Organisation and those under their auspices.'),
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	(101293,5507,'_wp_attachment_metadata','a:5:{s:5:\"width\";i:100;s:6:\"height\";i:133;s:4:\"file\";s:23:\"uploads2/media-5506.jpg\";s:5:\"sizes\";a:0:{}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
	(101294,5506,'lawUpdateImageURL','5945'),
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	(101298,5506,'lawUpdateYear','2016'),
	(101299,5506,'_lawUpdateYear','field_59da245091f13'),
	(101300,5506,'pageSummary',''),
	(101301,5506,'_pageSummary','field_59e59b307dec8'),
	(101302,5506,'lawUpdateStartMonth','November'),
	(101303,5506,'_lawUpdateStartMonth','field_59da247791f14'),
	(101304,5506,'currentURL','http://localhost:8888/tamimi/en/section/law-update/section-14/november-7'),
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	(101306,5508,'content','<p class=\"p1\"><strong>The Facts of the Case</strong></p>\r\n<p class=\"p2\">The Claimant entered into a contract with the Respondent for the supply of work.</p>\r\n<p class=\"p2\">The contract contained an ambiguous arbitration clause that did not specify a method for appointing the Tribunal, nor the appointing authority. When a dispute arose between the parties over the outstanding debt, the Claimant approached the Dubai International Arbitration Centre (DIAC) to appoint an arbitrator. The dispute was heard by the arbitrator and an arbitral award was issued disposing of the dispute.</p>\r\n<p class=\"p1\"><span class=\"s2\">Following the issuance of the arbitral award, the Respondent filed Civil Action No. 652 of 2012 to set it aside while the Claimant filed Civil Action No. 584 of 2012 to confirm the award. The Respondent also filed a claim (Commercial Action No. 597-2013) before the Dubai Courts for the appointment of an arbitrator, on the basis that the previous award was invalid and it was for the court to appoint the tribunal, not DIAC. The Claimant argued that this action was beyond the limits of the courts’ jurisdiction as the dispute had previously been determined by the arbitral award. </span></p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Court of First Instance</strong></span></p>\r\n<p class=\"p2\">The Court of First Instance dismissed the Respondent’s application for an arbitrator to be appointed because an arbitral award existed that had already resolved the dispute matter.</p>\r\n<p class=\"p2\"><strong>Court of Appeal</strong></p>\r\n<p class=\"p4\">The Court of Appeal upheld the decision of the Court of First Instance.</p>\r\n<p class=\"p2\"><strong>Court of Cassation</strong></p>\r\n<p class=\"p2\">The Court of Cassation upheld the decision of the Court of Appeal.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The Court explained that it was well established by the Court of Cassation that arbitral awards become res judicata upon issuance, although their enforcement is subject to a confirmation procedure. The parties therefore have no recourse to the courts to resolve the dispute once the award has been issued. This is so even if there is new factual evidence or legal arguments.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> In issuing the award, the arbitrator disposes of the issues pursuant to the arbitration clause. The purpose of the arbitration clause is therefore fulfilled irrespective of whether the court then proceeds to confirm the award or set it aside for any reason (including a procedural one). The dispute cannot be brought before the same arbitrator or a different one except in accordance with a new agreement between the parties. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> An arbitral award does not have res judicata effect only upon confirmation by a final and conclusive decision of the competent court. The situation is similar to the way that court rulings have res judicata effect even if challenged by way of an appeal to the Court of Cassation. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> As to the contention that DIAC was not competent to appoint the Tribunal, this was rejected because the Respondent had acknowledged and agreed to DIAC arbitration. The action to set aside the arbitral award was dismissed on this basis. </span></p>\r\n<p class=\"p4\"><strong>Comment</strong></p>\r\n<p class=\"p2\">This judgment is important because it puts beyond doubt that arbitral awards have res judicata effect once issued, and that this remains the case even if the award is being challenged in the courts. The idea that an award is in some sense temporary or without effect until upheld by the local courts is wrong. Those that use arbitration can have confidence that once issued an award is effective, and that unless the award is annulled the issues that it resolves cannot be re-argued, even if new evidence or arguments arise.</p>'),
	(212037,5508,'core_values',''),
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	(101307,5508,'_content','field_59b649b5c8b2b'),
	(101308,5508,'lawUpdateArticleMonth','5506'),
	(101309,5508,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(101310,5508,'content_description','The Dubai Court of Cassation recently clarified when an arbitral award has res judicata effect. In a judgment dated 21 August 2016 (Commercial Appeal 199 of 2014), the Court held that an award has res judicata effect from the moment it is issued, and will only cease to have that effect if and when it is annulled. The fact that an award was under review by the local court did not mean that the award lacked res judicata effect, or that it would only gain res judicata effect once it had been upheld. This meant that an application to the court for the appointment of a Tribunal was to be rejected whilst there was an extant arbitral award dealing with the issues in dispute. '),
	(101255,5504,'_content','field_59b649b5c8b2b'),
	(101256,5504,'lawUpdateArticleMonth','5479'),
	(101257,5504,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(101258,5504,'content_description','This article provides an overview of the principle of document production from an Egyptian Law perspective and also offers a comparison as against the International Bar Association Rules on the Taking of Evidence in International Arbitration.'),
	(101259,5504,'_content_description','field_59b641c07f473'),
	(101260,5504,'pageSummary','This article provides an overview of the principle of document production from an Egyptian Law perspective and also offers a comparison as against the International Bar Association Rules on the Taking of Evidence in International Arbitration.'),
	(101261,5504,'_pageSummary','field_59e59b307dec8'),
	(101262,5504,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/october-6/dispute-resolution-an-overview-of-document-production-in-egypt.html'),
	(101263,5504,'_currentURL','field_59d35123ab1e7'),
	(101264,5504,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','754'),
	(101265,5504,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(101266,5504,'lawUpdateArticleWriters','1'),
	(101267,5504,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(101268,5504,'_yoast_wpseo_metadesc','Al Tamimi & Company provides an overview of the principle of document production from an Egyptian Law perspective and also offers a comparison as against the International Bar Association Rules on the Taking of Evidence in International Arbitration.'),
	(101269,5505,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">And now Kuwait has issued a new copyright law, Law no. 22 of 2016 (On Copyrights and Related Rights). The new law covers the copyright and related rights of natural and legal entities; Kuwaitis and foreigners permanently resident in the State of Kuwait; and foreign nationals belonging to one of the member States of the Convention or the Organisation and those under their auspices. The old law (No. 64 of 1999 on Intellectual Property Rights) has been revoked.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The protection established by the new law is conferred upon the copyright of original works of literature, arts, sciences, or knowledge, whatever the type of work or the means of its expression, its importance, or the purpose of its authoring or composition.</span></p>\r\n<p class=\"p2\"><strong>Protection of author’s moral and financial rights</strong></p>\r\n<p class=\"p2\">The author and the author’s heir shall enjoy perpetual, inalienable and imprescriptibly moral rights over the work. Also, performance artists, their heirs and successors shall enjoy perpetual, inalienable and imprescriptibly moral rights.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The author, and their heirs and successors are to enjoy the exclusive right to permit or prevent any form of use or exploitation of the work, and for those authors who not have heirs or successors, the Kuwaiti National Council for Culture, Arts &amp; Letters will be responsible to protect the authors’ interests against any infringement. Also, performance artists enjoy some financial rights as per the new law. </span></p>\r\n<p class=\"p1\">For the first time in Kuwait, the new law protects the author’s works, in particular from unauthorised publication, reproduction, public broadcast or rebroadcast, public communication, translation, adaptation, rental, or the making available of the work to the public including via computer, the internet, information networks, communications networks or other means.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The duration of protection endures for the period of the author’s lifetime and fifty years following the author’s death. Also, the duration of protection with regards to audio, visual, audio-visual works and films, collective works of a legal entity, and computer programs shall be fifty years as of the date of the first showing or legitimate publication of the work, regardless of republication.</span></p>\r\n<p class=\"p2\"><strong>Enforcement </strong></p>\r\n<p class=\"p2\">The new law gives an important role to the National Library of Kuwait, as for the library’s staff (who are designated by the competent minister (i.e. the Minister of Information)) have the right to monitor the implementation of the Law by inspecting presses, libraries, publishing houses and public places. If any potential infringement is detected, they are to forward details of this to the relevant authority for further investigation. They have the right to request police assistance in the performance of their duties if needed.</p>\r\n<p class=\"p2\">Furthermore, by a reasoned administrative decision from the competent Minister, any establishment in violation of the law may be closed temporarily for a maximum period of three months and, in case of repetition, may have its license withdrawn and be closed permanently.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Public Prosecution have the exclusive authority to investigate, act and make prosecutions in relation to all crimes resulting from the application of the provisions of the new law.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Any infringement of the moral or financial copyright of the author may incur a prison sentence of between six months and two years, and/or a fine of KWD 500 to KWD 50,000. This also applies to anyone found guilty of distributing equipment designed to circumvent the technical protection employed by copyright owners, for which the fine may be as much as KWD 100,000.</span></p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">The new law is a significant step forward for the protection of copyright in Kuwait, and a reflection of how important the subject is to the government. It is hoped that Kuwait will be strong in enforcing compliance with the new law, and that it will continue to revise it to keep pace with technological advancements.</p>\r\n<p class=\"p2\">Ahmed ElKlatawy sadly passed away in September 2016</p>'),
	(158979,5505,'core_values',''),
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	(101240,5503,'_content','field_59b649b5c8b2b'),
	(101241,5503,'lawUpdateArticleMonth','5479'),
	(101242,5503,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(101243,5503,'content_description','During the global financial crisis it became fashionable to identify so-called “Black Swans” – events that apparently came from nowhere often with devastating effect, although in hindsight their causal factors were often hiding in plain sight.'),
	(101244,5503,'_content_description','field_59b641c07f473'),
	(101245,5503,'pageSummary','During the global financial crisis it became fashionable to identify so-called “Black Swans” – events that apparently came from nowhere often with devastating effect, although in hindsight their causal factors were often hiding in plain sight.'),
	(101246,5503,'_pageSummary','field_59e59b307dec8'),
	(101247,5503,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/october-6/saudi-arabias-vision-2030-black-swans-for-saudi-arabias-power-sector.html'),
	(101248,5503,'_currentURL','field_59d35123ab1e7'),
	(101249,5503,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','777'),
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	(101252,5503,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(101253,5503,'_yoast_wpseo_metadesc','Al Tamimi & Company discusses a number of Black Swans which have implications for Saudi Arabia’s Vision 2030 (the “Vision”), Saudi Arabia’s fifteen year plan to wean itself from its current dependency on oil revenues.'),
	(101254,5504,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Background</strong></p>\r\n<p class=\"p2\">In common law jurisdictions, parties to a dispute disclose the documents or information in their possession that are relevant to the dispute in hand (the specific requirements differ from one jurisdiction to another). Contrary to the common law legal system, civil law jurisdictions do not normally recognise the disclosure and discovery of documents as an element of the pre trial fact-finding process.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The civil legal system approach mainly entails that each party to a dispute shall submit the proof supporting the position set out in the claim or defence (as applicable). </span></p>\r\n<p class=\"p1\"><span class=\"s4\"> However, the development of international arbitration as a mechanism for dispute resolution complicated matters as it frequently involved parties from different legal systems. This drove the international arbitration community to find a common ground for the taking of evidence. Therefore, the International Bar Association Rules on the Taking of Evidence in International Arbitration were adopted in 1999 and revised in 2010 as guidelines for the evidentiary aspect of arbitration proceedings (“IBA Rules”). Although Egypt does not fall far from other civil law countries with relation to the evidence rules, the Egyptian Law No. 25 of Year 1968 on Evidence in Civil and Commercial Procedures (the “Evidence Law”) recognizes “Production of Documents” as an instrument of discovery that exists in the common legal system. </span></p>\r\n<p class=\"p1\">In order to compare the Egyptian principle of document production as against the IBA Rules, it is necessary to first consider the former in some detail.</p>\r\n<p class=\"p2\"><strong>Production of Documents under the Evidence Law</strong></p>\r\n<p class=\"p2\">As constitutionally established, one shall not be compelled to provide an evidence against himself under Egyptian law. Notwithstanding the aforesaid legal principle, Article 20 of the Evidence Law permits the party to a dispute to request that the opposing party produce documents in his possession that may assist the former to evidence his case. With this respect, the Article provides three grounds under which the request for the production of documents may be granted:</p>\r\n\r\n<ul>\r\n 	<li>If the law permits the request for providing or delivery of a document (eg. the Egyptian Trade Law entitles the court to order the trader, even at its own initiative, to produce its commercial books).</li>\r\n 	<li>If the requested document is common between the parties. In other words, if the document is in the interest of the parties or serves as a proof of their obligations and their mutual rights.</li>\r\n 	<li>If the document subject to request was relied on by the opposing party at any stage of the proceedings.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">Furthermore, Article 21 of the Evidence Law sets out the following requirements to be satisfied in order for any request for document production to be considered before the Court:</p>\r\n\r\n<ul>\r\n 	<li>The description of the requested document.</li>\r\n 	<li>The subject of the requested documents in detail.</li>\r\n 	<li>The fact that is alleged to be proved by the requested document.</li>\r\n 	<li>The circumstances which prove that the requested document is under the possession of the opposing party.</li>\r\n 	<li>The reason for which the opposing party shall produce the requested document.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">The judge does not have a discretionary power with relation to a production of documents request and is obliged to order the immediate production of documents in the following three cases: (i) if the requesting party proves that the requested documents do exist under the possession of the counterparty; (ii) if the party requested to produce the documents acknowledges possession; or (iii) the party requested to produce the documents is silent in response to the request and provided that the requested document(s) are specified, detailed, relevant and material. Conversely, if the party requesting production did not provide sufficient proof that the documents were indeed in the counterpart’s possession or if the counterparty denied the possession of such documents he would be ordered to take an oath to the effect that the requested documents do not exist nor he is aware of their existence.</p>\r\n<p class=\"p1\">The judge may, upon failure of a party to produce the ordered documents or taking of the oath (as set out above), consider a copy of the requested document as evidence that it exists, or establish his decision based on the formality and content description provided by the requesting party.</p>\r\n<p class=\"p1\">Article 27 of the Evidence Law has established a wider spectrum for the production of documents that are under the possession of the opponent or a third party, which applies if the circumstances under Article 20 are not satisfied in the production of documents request.</p>\r\n<p class=\"p1\">Under this Article, the Evidence Law widens the scope to include a third party or parties who are in possession of the requested documents. To elaborate, Article 27 compels the production of documents provided it meets it is material to the claim before the court and sufficiently specific. In essence, the requesting party must demonstrate that the document(s) sought would have an impact on the outcome of the case albeit that it does not necessarily have to be constitute absolute proof of the issue at hand. This Article has a broad scope and includes all types of evidence including documents, paintings, pictures etc.</p>\r\n<p class=\"p1\"><span class=\"s5\"> However, Article 27 is limited where it may prejudice a legitimate interest of the party to whom the request has been issued such as the right to confidentiality. Nevertheless, the judge may reconcile between the right to gather evidence and the right to confidentiality through ordering the production of a specific part of the requested document. The judge may also order a party to produce a document that would solely be reviewed by the Court.</span></p>\r\n<p class=\"p1\">Although outside the scope of the Evidence Law, it is also worth mentioning that the Rules of the Cairo Regional for International Commercial Arbitration (“CRCICA”) have provided for the issue of production of documents. The CRCICA does not require the production of documents of documents upon a party’s request. However, Article 27/1 of CRCICA has left the power to order the production of documents to the Arbitral Tribunal whenever it considers it necessary to adjudicate the subject matter. Pursuant to Article 30.4, if the party requested to produce the document(s) does not comply with the order of the Arbitral Tribunal, the latter would be at liberty to make any necessary inferences.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The IBA Rules</strong></span></p>\r\n<p class=\"p1\">The IBA Rules has empowered Arbitral Tribunals to order a party to a dispute to produce documents or take reasonable steps to obtain such documents whether upon the request of the counterparty or according to its own discretion. The Rules have established three requirements for ordering production of documents, namely;</p>\r\n<p class=\"p1\"><span class=\"s3\"> <em>Specificity</em>, the party requesting production shall provide a sufficient description of the requested document(s). The party shall also provide the reasons that make him assume that such documents are under the possession of the counterparty. </span></p>\r\n<p class=\"p1\"><em>Materiality</em> and <em>Relevance</em>, the party requesting production shall clarify why the requested document(s) are relevant to the dispute and how they would be material to the outcome of the case.</p>\r\n<p class=\"p1\">Finally, the party requesting the documents production shall demonstrate why he believes that such documents are under the possession, custody or control of the counterparty; and why production would not constitute a burden upon on the latter.</p>\r\n<p class=\"p1\">Moreover, the IBA Rules allow the Arbitral Tribunal to order third party to produce documents in accordance with the aforementioned requirements.</p>\r\n<p class=\"p1\">In a nutshell, the standards for production of documents under Article 27 of the Evidence Law are somewhat similar to their homologue under the IBA Rules which are specificity, materiality and relevance. Similar to Article 30.4 of the CRCICA Rules, as a deterrent, if the party ordered to produce document fails to produce this document or did not raise an adequate objection, the Arbitral Tribunal may draw an adverse inference.</p>\r\n<p class=\"p2\"><strong>Conclusion </strong></p>\r\n<p class=\"p2\">The Evidence Law provides for diverse situations where documents require to be produced. Articles 20 and 21 have set an exhaustive list of fairly stringent conditions and standards before a judge is entitled to order a party to produce a specific document(s). However. Article 27 sets out a broader scope whereby production of documents may be ordered to include a third party or parties in possession of the requested documents. Moreover, the wide-ranging scope of Article 27 encompasses any form of evidence that is deemed necessary in order to allow the courts to establish the existence and extent of a claim.</p>\r\n<p class=\"p1\">There is a significant resemblance and cross over between Article 27 and the IBA Rules. There are no legal impediments preventing the parties in Egyptian arbitration in agreeing to rely upon the IBA Rules. Further, it is not uncommon in international arbitral proceedings seated in Egypt that Arbitral Tribunals order that it shall seek guidance from the IBA Rules when the issue of document production arises.</p>'),
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	(101195,5501,'content_description','The Kingdom of Saudi Arabia (‘KSA’) enjoys a strategic geographical position on the global sea trade map as reflected by the fact that Jeddah Islamic Port was ranked 33rd on Lloyd’s global list of the busiest ports running bulk docks.'),
	(101196,5501,'_content_description','field_59b641c07f473'),
	(101197,5501,'pageSummary','The Kingdom of Saudi Arabia (‘KSA’) enjoys a strategic geographical position on the global sea trade map as reflected by the fact that Jeddah Islamic Port was ranked 33rd on Lloyd’s global list of the busiest ports running bulk docks.'),
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	(101201,5501,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Wisam Sindi'),
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	(101205,5501,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','Jeddah, Saudi Arabia'),
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	(101215,5501,'_yoast_wpseo_metadesc','The KSA domestic maritime practice has ensured that the arrest of ships in KSA is somewhat of an enigma for many international carriers, insurers, and traders. This article considers, the complex maritime practice for ship arrest in KSA.'),
	(101216,5502,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">This article highlights some key points introduced by the new law and signposts the new and impending regulations that companies and individuals need to be aware of when registering or operating small vessels.</p>\r\n<p class=\"p2\"><strong>Vessels subject to the new law</strong></p>\r\n<p class=\"p2\">The new law defines a ‘Vessel’ as ‘every floating vehicle operating in maritime navigation or sports or prepared for the same, of which the cargo is less than (200) two hundred tons, even if it does not aim to achieve profit’.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>New conditions</strong></span></p>\r\n<p class=\"p2\">In order for a vessel to be registered with the relevant Department in Qatar, the vessel must meet the following conditions:</p>\r\n\r\n<ul>\r\n 	<li>to be provided with navigational devices, communication devices, colors, lights, distress signals, equipment and tools necessary to achieve safety and security conditions as determined and issued in the competent Minister’s decision;</li>\r\n 	<li>to pass the technical inspection necessary; and</li>\r\n 	<li>to be insured, the vessel’s owner must provide the competent department with an insurance policy issued by a national insurance company guaranteeing third-parties’ compensation for damage incurred.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">The law permits the competent Minister to add other conditions for the registration or to exclude some vessels from the application of some conditions on a permanent or temporary basis.</p>\r\n<p class=\"p1\">If the owner of the vessel is non-Qatari, the owner is required to have a valid residence permit in Qatar. If a vessel is manufactured or is owned be a foreigner, the owner or the importer may be granted a temporary registration certificate to enable him to enter into Qatar and to inspect it, after perusal of the necessary documents.</p>\r\n<p class=\"p1\">The registration of the vessel will be cancelled should the vessel perish or is no longer available in any way for its intended use.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The law also prohibits any vessel from operating unless it is registered and has obtained a valid license for its operation. The law further requires the person operating the vessel to hold a valid licence to do so. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Government vessels are exempted from such registration and the competent Minister has authority to exclude scientific research vessels from registration.</span></p>\r\n<p class=\"p2\"><strong>Penalties</strong></p>\r\n<p class=\"p2\">The law provides for financial and criminal penalties for breach. The breaching person will be subject to imprisonment for a period not exceeding three months and/or a fine not exceeding QR 50,000 if that person uses, deliberately facilitates, or participates in the use of any vessel without registration or operates a vessel without obtaining a valid license. The penalties can double in case of repetition.</p>\r\n<p class=\"p1\">The competent Minister may decide the crimes amicably at anytime during the legal procedures so long as there is no final judgment issued on the breach. The competent Minister is empowered to accept in consideration for settlement a financial amount equal to half of the maximum limit of the fine prescribed per breach. In the event of settlement the case would be dismissed.</p>\r\n<p class=\"p2\"><strong>New Implementing Regulations</strong></p>\r\n<p class=\"p2\">The draft implementing the necessary regulations (‘Implementing Regulations’) for the application of new law is ongoing. The final version is expected to be issued in the next few months. We will comment further on the Implementing Regulations when issued.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Interim Period</strong></span></p>\r\n<p class=\"p2\">Article 29 of the new law gives the owners of the vessels 6 months from the law’s effective date to bring their affairs into compliance with the new law. The law would become effective after one month from the date it is issued in the Official Gazette. The competent Minister may extend the 6 months for one or more similar periods.</p>\r\n<p class=\"p2\"><strong>Next Steps</strong></p>\r\n<p class=\"p2\">The new law (once in force) will repeal and replace the old Law No. 19 of 1980. The competent Minister will issue the decisions necessary for the implementation of the provisions of the new law. Until issuance of such decisions, the decisions currently in force remain valid to the extent they do not contradict the provisions of the new Law.</p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">With the numerous new and impending regulations, penalties and conditional changes affecting the owners of the vessels, it is vital that the owners of the vessels make themselves fully aware of the changes introduced by this law. Vessel owners are advised to reconsider the way their vessels are operating and registered in order to bring them in line with the new law.</p>\r\n<p class=\"p2\">We also hope that Maritime Law No. 15 of 1980 will be amended soon.</p>'),
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	(101220,5502,'content_description','His Highness, Sheikh Tamim bin Hamad Al Thani, Emir of Qatar, issued on 23 August 2016 Law regarding Small Vessels Registration (Law No. 8 of 2016). The new law was issued after 36 years of operation of the old law (No. 19 of 1980) and it introduced new conditions and penalties that small vessel owners will have to comply with. The law is not yet into force. It is expected to be published in the Official Gazette in the next couple of months and will come into force one month after being published in the Official Gazette.'),
	(101221,5502,'_content_description','field_59b641c07f473'),
	(101222,5502,'pageSummary','His Highness, Sheikh Tamim bin Hamad Al Thani, Emir of Qatar, issued on 23 August 2016 Law regarding Small Vessels Registration (Law No. 8 of 2016). The new law was issued after 36 years of operation of the old law (No. 19 of 1980) and it introduced new conditions and penalties that small vessel owners will have to comply with. The law is not yet into force. It is expected to be published in the Official Gazette in the next couple of months and will come into force one month after being published in the Official Gazette.'),
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	(101238,5502,'_yoast_wpseo_metadesc','Al Tamimi & Company highlights some key points introduced by the new law and signposts the new and impending regulations that companies and individuals need to be aware of when registering or operating small vessels.'),
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	(101239,5503,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">This article discusses a number of Black Swans which have implications for Saudi Arabia’s Vision 2030 (the “Vision”), Saudi Arabia’s fifteen year plan to wean itself from its current dependency on oil revenues. Before doing that, it also considers the socio-economic backdrop to Vision 2030.</p>\r\n<p class=\"p2\"><span class=\"s1\"><strong>The Oil Paradox</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Saudi Arabia’s consumption of its own oil and gas is growing at around 7% per year<sup>1</sup>. Demand for power is especially high during the scorching heat (in some places well over 50C) of the summer months when power consumption increases significantly in order to run air conditioning but with significant regional variance. The very title of the 2011 Chatham House report “Burning Oil to Keep Cool”<sup>2</sup> captures the essence of the problem. However, air conditioning is only a part of the energy challenge faced by the country. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Desalinated water production is also a very significant domestic consumer of hydro-carbons. The Saline Water Conversion Company (the “SWCC”) runs its own fleet of coastal IWPP stations which can be called upon by the Saudi Electricity Company (the “SEC”) to help meet peak demand – in 2012, 5.3 percent of the total electricity generated by the Saudi power sector (and transmitted and distributed by the SEC) came from SWCC. In that year SEC power purchases from third parties amounted to 23.8 percent of energy generated. Saudi Aramco also has significant power generation capacity and there is a small but well established IPP market. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Heavily subsidized power and water have been part of the social compact in Saudi Arabia for decades. Both cool air and potable water are funded by exporting a resource (oil) which is the Kingdom’s primary source of revenue. Those abroad who fill their tanks with Saudi oil have, indirectly, been funding this compact. At the same time, those oil-importing countries have enjoyed the significant benefit of exporting into the Saudi market (everything from consumer goods to military weapons and equipment). The downside of that position is a lack of private sector employment in the Kingdom itself – one of the key challenges which the Vision is intended to address, with a planned 6 million additional jobs by 2030. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Moving to anything approaching cost-reflective tariffs for electricity and water (and the recently promulgated National Transformation Program sets a target of a 100% tariff to actual water cost by 2020) is likely to be a painful, but ultimately necessary adjustment, if the value in the primary asset of the Kingdom is to be realised and invested (and not dissipated in its own domestic market).  Achieving that goal will require a gradual shift in pricing and subsidy strategy across many sectors (not just power and water). You cannot invest premium oil revenues to pay for future pensions if you burn the oil at a discount to chill air and desalinate water. Worse still, if the water that is produced is then subject to significant leakage (becoming not only “non-revenue water” but actually “anti-revenue water”) then the inefficiency in the system is further exacerbated. The missing element then for SEC (and SWCC, NWC and by extension all other state entities which provide services), is the wherewithal for the end user to actually pay something approaching a market rate. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Achieving that goal will require a gradual shift in pricing and subsidy strategy across many sectors (not just power and water) including, for instance, the soon-to-be realized metro system in Riyadh. Again, this segues into the key element of the Vision, which relates to private sector employment and employability and as a necessary corollary to both, </span><span class=\"s2\"><em>education</em></span><span class=\"s1\">.  </span></p>\r\n<p class=\"p1\"><span class=\"s3\">It should therefore be no surprise that Saudi Aramco has previously warned (well before the current oil price reduction) that crude </span><span class=\"s4\"><em>export</em></span><span class=\"s3\"> capacity would fall by about 3 mb/d to under 7 mb/d by 2028 unless</span><span class=\"s4\"><em> domestic energy growth demand</em></span><span class=\"s3\"> was checked. In effect, Saudi Arabia risks consuming just over one quarter of its current oil production by 2028. Mr. Khalid Al-Falih (now Energy Minister, in 2010 Chief Executive of Saudi Aramco) was quoted in the Financial Times<sup>4</sup> saying:</span></p>\r\n<p class=\"p1\"><span class=\"s1\">“We estimate that, </span><span class=\"s2\"><em>through improved efficiency</em></span><span class=\"s1\">, while maintaining the same economic growth, the increase in energy demand can be cut in half,” Mr Falih also said... “If no efficiency improvements are achieved, and the business is as usual, the oil availability for exports is likely to decline to less than 7m barrels per day by 2028, a fall of 3m barrels per day, while the global demand for our oil will continue to rise.” </span></p>\r\n<p class=\"p1\">Those were far-sighted comments but, even in 2010, although the challenge was apparent, the full glare of complicating factors was perhaps not so clear. Since that time the advent of shale technology has prompted a return to longer term price trends in the international hydro-carbon markets and opened almost boundless seams of carbon resource to countries which have hitherto lacked energy security. Oxford University economist Dieter Helm, has recently remarked on the situation:</p>\r\n<p class=\"p1\"><span class=\"s1\">“The oil outlook that emerges…is very different from the one envisaged by many in the oil industry, in oil producing countries and forecasters... It is one in which the oil price stabilises in the short run at a much lower level, </span><span class=\"s2\"><em>where the medium term oil price stays subdued by more and more oil supply and not much demand growth, and where in the long run, the oil price declines</em></span><span class=\"s1\">.”<sup>5</sup> </span></p>\r\n<p class=\"p1\"><span class=\"s5\">In 2010, after the financial crisis but before the period of sustained prices above the USD 100 per barrel mark, the price per barrel of oil was around USD80. Helm’s point is that, analyzed over the 150 years or so of the global oil industry, even USD 50 would be a high price. Given that shale technology is only going to become more efficient over the short and medium term (and that renewable energy technology will enjoy similar advances), it is difficult to envisage a situation where countries would sacrifice their own new-found energy security to support the social fabric of other states. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Unfortunately, it gets worse. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Dieter Helm cautions that that the low cost labour model for economic development is not necessarily one which will serve in the future:</span></p>\r\n<p class=\"p1\"><span class=\"s1\">“Why should the simplistic model of replicating China’s growth play out in other populous developing countries? Is it really the case that the future lies with cheap labour gaining markets for exports in the developed countries? This assumes that the basic technologies will remain labour-cost driven. Yet the emerging growth story is all about robotics, automation, 3D printing – in other words, the application of information technologies to manufacturing and services, and hence a move from labour to digitalised capital. The new technologies will compete more on skills and intellectual capital, and less on manual labour. These technologies are all electric, not oil based. </span><span class=\"s2\"><em>For electricity, oil is not a preferred fuel source</em></span><span class=\"s1\">. Gas has a much more attractive role to play. As the world electrifies, gas out-competes oil, before next generation solar and the new low carbon generation technologies come on stream.”</span></p>\r\n<p class=\"p1\"><span class=\"s1\">That perspective is not good news for a country with a population 70% of which is aged under 30 and who have grown up under an entirely favourable oil-based economic model (although it should be noted that the Kingdom has extensive gas reserves). </span></p>\r\n<p class=\"p3\"><strong>Black </strong><strong>Swans</strong></p>\r\n<p class=\"p1\"><span class=\"s3\">The global temperature for February 2016 was far above the long-term average and was described by scientists as a “shocker” and signalling “a kind of climate emergency”<sup>6</sup>. March 2016 set a new record temperature for that time of year, according to NASA’s Goddard Institute for Space Studies. The global temperature was 1.28C warmer than the average for March from 1951 to 1980, which is used as a baseline<sup>7</sup>. Figures recently released by NASA show the global temperature of land and sea was 1.11C warmer in April than the average temperature for April during the period 1951-1980<sup>8</sup>. What we do not know is how rapidly change is likely to occur or how bad it will be, but the trend is clear (and since the climate is a dynamic system, prone to mutually and self-reinforcing feedback loops we are unlikely to ever reach a stable position in this regard in any case). It is apparent that change is occurring “faster than anticipated”. </span></p>\r\n<p class=\"p1\"><span class=\"s3\">Former Exxon Mobil economist, Hoesung Lee, new head of the United Nations Intergovernmental Panel on Climate Change (“IPCC”), recently said that the goal of keeping temperature rise under 2C remained “…</span><span class=\"s4\"><em>technically feasible</em></span><span class=\"s3\">, although it could become prohibitively expensive. 2C is achievable, and if we fail to act according to what the IPCC has been advising, the cost will rise phenomenally, the sooner we act, we will be able to achieve 2C stabilisation </span><span class=\"s4\"><em>cost-effectively</em></span><span class=\"s3\">,” he went on. “The longer we wait to take action, the cost will be a lot higher.”<sup>9</sup> </span></p>\r\n<p class=\"p1\"><span class=\"s1\">The next landmark report from the UN climate science panel – due to come out in three stages between 2020 and 2022 – will look more closely at policies for dealing with climate change. That could include studies of the relative effectiveness of carbon taxes in different economies, the impacts of technology standards, government funding for research and development, and policies for protecting cities and rural areas from climate change. As a part of that debate, we can expect to see economic (and philosophical) innovations such as Dieter Helm’s recent work on the pricing of natural capital achieving further prominence, the key question (perhaps in some respects a restatement of Minister Al Falih’s 2010 comment and Hoseung Lee’s more recent comments on cost-effectiveness) being: </span><span class=\"s2\"><em>what would we be willing to give up in order to have more of something else? </em></span></p>\r\n<p class=\"p1\">The Intended Nationally Determined Contribution (“INDC”) of Saudi Arabia under the United Nations Framework Convention on Climate Change (“UNFCCC”) recognises these challenges). Under the INDC two development baseline scenarios are identified – one reliant on the kind of heavy industrialization which (per Dieter Helm above) seems less attractive; the other envisaging economic diversification with a robust contribution from oil and its derivatives with revenues channelled into investments in high value-added sectors such as financial services, medical services, tourism, education, renewable energy and energy efficiency technologies to enhance economic growth. The INDC states that the Kingdom aims to create long-term partnerships with universities, research institutes and the private sector in order to enable utilization of these technologies. The INDC is very clear on what the priorities will be:</p>\r\n<p class=\"p1\">“(a) water saving, recycling, capture, irrigation and sustainable management for agriculture purposes; (b) early warning system against meteorological extreme events (such as floods, storms and droughts); and (c) transportation technologies that are resilient to the adverse effects of climate change while reducing and/or capturing transportation-related emissions.”</p>\r\n<p class=\"p1\"><span class=\"s3\">In relation to the Vision, a rapid acceleration of climate change is a Black Swan. </span></p>\r\n<p class=\"p4\"><strong>Squaring </strong><strong>the </strong><strong>Circle</strong></p>\r\n<p class=\"p1\">Squaring the circle of energy efficiency, cost effectiveness and subsidy is likely to be at the heart of most if not all future PPP/concession arrangements.</p>\r\n<p class=\"p1\"><span class=\"s1\">In the Saudi context, SEC has a fundamental role on the supply side. There have been indications that the government (the 80% shareholder) is considering restructuring it – into generation, transmission and distribution companies. This is a relatively well-trodden path globally – lots of good lessons have been learned and can be applied here. Indeed, there are several dominant players in various utility markets which benefit from home-country golden share investment and support, leveraging off the knowhow garnered in their domestic markets to win market share overseas. The scope for a Saudi player to morph over time into a company with a footprint as extensive as a Veolia or an Engie is very real. Indeed Abunayyan and ACWA Power have already made significant strides. If that path can be based on diversifying into new technologies which create jobs then at least some of the goals in the Vision and the INDC are within reach. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Others are already implementing a similar strategy -  Italian oil major Eni (in which the Italian state owns around 30% of shares) aims to bring 420 megawatts of mostly solar power generation online by 2022 by reusing derelict land linked to existing fossil fuel operations. Chief Executive Claudio Descalzi expects Eni to invest 1 billion Euros over the next three years in renewable energy projects and research<sup>10</sup>. For the Kingdom, this process has to start with SEC. In the January 2014 prospectus for SEC’s Sukuk Al-Istithmar, the position advanced on generation company restructuring was stated to be as follows:</span></p>\r\n<p class=\"p1\"><span class=\"s1\">“Each GENCO will be incentivized to operate as efficiently as possible, with performance being measured against key performance indicators…the creation of wholly owned GENCOs which are incentivized to operate efficiently and compete against each other should ensure significant improvements in [the] generation business.”</span></p>\r\n<p class=\"p1\"><span class=\"s1\">It may also make sense to have a separate company, tasked with operating as the single buyer for renewable Independent Power Projects, perhaps under a non-negotiable Power Purchase Agreement following the example of the South African Renewable Energy IPP program which made very significant advances in the sector over a comparatively short period of time with explicit selection criteria linked to local socio-economic development and job creation<sup>11</sup>. </span></p>\r\n<p class=\"p1\"><span class=\"s6\">A competitive procurement process for renewable energy is currently under preparation and evaluation. Consistent with the Vision, any scheme of that scale will have to embed local job creation as part of its overall business case. As regards renewables, it should be noted that a new wave of technology is being developed which offers enhanced effectiveness in terms of generation and, crucially, storage. The Kingdom is actively participating in this already – last year it was announced that hot sand concentrated solar power is set to become a commercial reality with significant environmental and cost benefits, especially as regards rural power generation. This is a very significant step forward as existing solar technologies have encountered reliability and degradation issues in conditions of extreme heat and dust.</span></p>\r\n<p class=\"p1\"><span class=\"s3\">The position of nuclear in the overall energy mix cannot be understated. King Abdullah City for Atomic and Renewable Energy (“KACARE”), the body with oversight of the nuclear program in the Kingdom, will have to start delivering on installed capacity sooner rather than later if Vision 2030 is to be accomplished. Given the travails of the global atomic energy market, commissioning the 16 or so planned nuclear stations by 2030 looks increasingly challenging. Minister Al-Falih has recently also assumed charge as the chairman of the board of KACARE<sup>12</sup>. KACARE is targeting the replacement of 50% of the Kingdom’s fossil fuel power generation with renewable (including atomic) generation by 2032. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">In terms of the drive for efficiency highlighted by Minister Al Falih, it is highly likely that having gone through a process of corporatisation, elements of SWCC and/or NWC (and their international contractors) will be subject to increased scrutiny with the underlying aim of curing inefficiencies in the systems and, in particular, leakage rates. The requirement for potable water in the Kingdom is among the highest and most subsidized in the world – transitioning to a position where the subsidy reduces over time will have to be calibrated to private sector job creation. </span></p>\r\n<p class=\"p4\"><strong>Ability </strong><strong>to </strong><strong>Pay</strong></p>\r\n<p class=\"p1\"><span class=\"s3\">The very difficult part in all this will be, of course, getting the public to pay. There is no easy way around this – outsourcing that risk to distribution companies or under some form of concession may be one solution but gearing the introduction of anything approaching cost reflective charging with employment opportunities will be vital (the private sector is not likely to accept that risk without a very high level of confidence in its ability to collect or a copper-bottomed guarantee from the state). </span></p>\r\n<p class=\"p3\"><strong>Job </strong><strong>Creation</strong></p>\r\n<p class=\"p1\"><span class=\"s1\">The climate agenda may provide some of the impetus for job creation. One of the many suggestions in the Chatham House report cited above relates to retro-fitting the built environment of the Kingdom with environmentally sustainable measures. We have seen recently a move to Saudise the telecoms industry – thousands of young Saudis are being trained to perform functions which were previously the preserve of foreign workers. If a similar approach can be adopted as regards the building of new housing stock (and that build program is based around a zero carbon design criteria, or as close as possible) then it should begin to reduce the rate of increase in domestic demand and, longer term, embed benefits which will benefit future generations. There is also genuine scope for enhancing consumer product regulation to incentivise greener outcomes and create fewer burdens on the supply-side – and the Gulf Standards Organization is likely to play a key role policing such enhanced standards over the next period. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Will these sorts of measures generate the intended 6 million additional jobs for Saudi citizens required by the Vision by 2030? Certainly not on their own. But then the Vision also contemplates contributions in other areas, for example, in tourism and domestic military manufacturing, which would make substantial contributions to the employment piece but will also have to adhere to increasingly stringent energy efficiency standards. </span></p>\r\n<p class=\"p4\"><strong>Investor </strong><strong>Issues</strong></p>\r\n<p class=\"p1\"><span class=\"s5\">As well as a compelling public relations campaign to educate domestic tariff payers, some consideration will also have to be given to large energy users – the kind of concerns who demand secure, consistent supply as a fundamental part of their business platform. In this context there is probably space for developer originated IPPs with a wide range of scaling – from small energy parks in economic cities or even the new resorts intended on the Red Sea through to larger scale schemes for specific industrial plant or natural resource projects (and it should be noted that the Kingdom is replete with resources other than oil). Faced with uncertain supply, users may turn to back-up interim power solutions – and these have a definite role, although given the associated concerns around pollution, it is hoped, a finite one. Transitioning the energy mix away from reliance on oil will bring challenges and the restructured industry will have to maintain a level of resilience based on the older technologies whilst this is in progress. The question is not “if” but “how quickly” this has to be achieved.</span></p>\r\n<p class=\"p1\">All of which understood, we anticipate that the successful future investor is likely to have certain characteristics (and we also anticipate that the same will probably become a driver for the Saudi Arabia General Investment Authority and the Economic City Authority over time). First, high quality job creation and training is likely to be fundamental (and there are already some well-developed mechanisms in this regard). Second, if the investment relates to reducing the overall burden of energy consumption directly or indirectly, this is likely to be encouraged and made a priority. Thirdly, if the investment brings with it manufacturing or construction capacity then this will also be treated as a priority, especially where as a part of the business plan it can be shown that energy efficiency or indeed renewable generation is part of the overall package – a very good example of this is the 3MW solar PV installation at BMW’s robotised MINI plant in the UK (and Morocco’s recently announced plans to retrofit 600 mosques with solar PV technology is also a very welcome precedent). There are many businesses in the green-tech space that fulfill some or all of these criteria. Other businesses (for instance in the hotel sector) will have to consider their energy and water needs especially carefully. Education, which is also generating huge investor interest in the Kingdom, will also have to incorporate energy efficiency in the fabric of its buildings as much as in any revised curriculum.</p>\r\n<p class=\"p4\"><strong>Education </strong><strong>is </strong><strong>the </strong><strong>new </strong><strong>Black </strong><strong>Swan</strong></p>\r\n<p class=\"p1\">Given that the Vision sets out the prospect that the Kingdom will transition to an economy based on investment rather than oil revenue, climate related issues will be embedded in the country’s investment platform. The Public Investment Fund, set to become custodian of the Saudi state’s shares in the soon-to-be partially floated Saudi Aramco, will be fundamental in this drive and it may well find itself inundated with attractive opportunities to incubate such new technologies, as envisaged in the INDC. That is certainly the path on which Bill Gates<sup>13</sup> has embarked - \"There are dozens of things like that [artificial photosynthesis] that are high risk but huge impact if they are successful,\" he was reported saying last year at the Paris climate conference. His Breakthrough Energy Coalition, which includes Prince Alwaleed bin Talal in its line-up of supporters, is to pump seed money into promising ideas that have been shunned by an energy sector pursuing a “business as usual” trajectory. It is hoped that this would help promising innovations make the transition from laboratory proof of concept to fully fledged commercial viability. Questing after the magic bullet which can be harnessed in time to avoid catastrophic habitat loss is certainly essential, but equally should not prevent immediate steps to improve energy efficiency and build resilience. All of the above are required.</p>\r\n<p class=\"p1\"><span class=\"s3\">Globally we are faced with the consequences of our failure to wean ourselves from our “addiction to oil”. The young people of the Kingdom, and their peer group across the world, will inhabit that new reality. But, as will be gleaned from the above, there are many “moving parts”, each of which, to greater or a lesser extent, depends on the others. Ultimately (and sooner rather than later), some hard choices will have to be made (and then probably remade) based on a critical, iterative analysis of what is a fluid, developing and complex situation. The pursuit of educational excellence is therefore perhaps the single most important element of the Vision.</span></p>\r\n<p class=\"p5\">Francis Patalong is a Senior Associate in the Corporate/Commercial Group of Al Tamimi in Riyadh. He has extensive experience in PPPs, IPPs, renewable and social infrastructure projects in Europe, Africa and the GCC region. f.patalong@tamimi.com</p>\r\n<p class=\"p1\"><span class=\"s1\"><strong>References</strong></span></p>\r\n<p class=\"p2\">1 https://www.chathamhouse.org/publications/papers/view/180825</p>\r\n<p class=\"p2\">2 ibid</p>\r\n<p class=\"p2\">3 National Transformation Program 2020, page 48, Ministry of Environment, Water and Agriculture, Strategic Objective #10</p>\r\n<p class=\"p2\">4 http://www.ft.com/cms/s/0/126c7c5e-5156-11df-bed9-00144feab49a.html#ixzz48L18vOYN</p>\r\n<p class=\"p2\">5 “The new normal: oil prices after the crash” Dieter Helm, 9 February 2016</p>\r\n<p class=\"p2\">6 http://www.theguardian.com/environment/2016/apr/15/march-temperature-smashes-100-year-global-record</p>\r\n<p class=\"p2\">7 http://climate.nasa.gov/news/2432/</p>\r\n<p class=\"p2\">8 http://www.theguardian.com/environment/2016/may/16/april-third-month-in-row-to-break-global-temperature-records</p>\r\n<p class=\"p2\">9 Guardian, article by Suzanna Goldenberg, 11 May 2106, UN climate science chief: it\'s not too late to avoid dangerous temperature rise</p>\r\n<p class=\"p2\">10 http://footprint2africa.com/eni-plans-major-moves-renewable-energy/</p>\r\n<p class=\"p2\">11 For further detail see May 2014 World Bank, Public-Private Infrastructure Advisory Facility (PPIAF) Report on the South African Renewable Energy IPP Procurement Programme.</p>\r\n<p class=\"p2\">12 Arab News, 23 May 2016</p>\r\n<p class=\"p2\">13 http://www.telegraph.co.uk/news/earth/paris-climate-change-conference/12026217/Bill-Gates-launches-effort-to-disrupt-energy-sector-with-fund-for-green-technology.html</p>'),
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	(101172,5500,'content_description','Arrest of a vessel is an extraordinary process, which gives a creditor the ability to execute a conservatory arrest order on the debtor’s vessel in order to settle his debt. However, due to the specific nature of maritime law, the type of debt which will be accepted by a court granting an arrest order must be classed as a ‘marine debt’. The order will only be applied to the vessel that has caused the debt or on a sister vessel, which should belong to the same owner. With major ports along the Red Sea and the Mediterranean Sea, Egypt is an attractive location for creditors seeking to arrest vessels calling at Egyptian ports.'),
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	(101174,5500,'pageSummary','Arrest of a vessel is an extraordinary process, which gives a creditor the ability to execute a conservatory arrest order on the debtor’s vessel in order to settle his debt. However, due to the specific nature of maritime law, the type of debt which will be accepted by a court granting an arrest order must be classed as a ‘marine debt’. The order will only be applied to the vessel that has caused the debt or on a sister vessel, which should belong to the same owner. With major ports along the Red Sea and the Mediterranean Sea, Egypt is an attractive location for creditors seeking to arrest vessels calling at Egyptian ports.'),
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	(101190,5500,'_yoast_wpseo_metadesc','With major ports along the Red Sea and the Mediterranean Sea, Egypt is an attractive location for creditors seeking to arrest vessels calling at Egyptian ports.'),
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	(101191,5501,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">By contrast, the KSA domestic maritime practice has ensured that the arrest of ships in KSA is somewhat of an enigma for many international carriers, insurers, and traders. This article considerss, the complex maritime practice for ship arrest in KSA.</p>\r\n<p class=\"p2\"><strong>Background</strong></p>\r\n<p class=\"p2\">The basic tenets of KSA maritime practice rest on section two of the 1931 Commercial Court Law (‘CCL’). The CCL has been amended over the years most notably by the newly enacted Enforcement Regulations (‘ER’) that now govern the procedure for arresting ships.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Further, amendments by the 2007 promulgated Judiciary Regulations have rendered the Kingdom without a devoted maritime court. Instead the commercial courts (circuits) are delegated with reviewing the merits of substantive maritime claims and ship arrest measures, while the enforcement courts oversee the interlocutory sale of arrested ships. Furthermore, all vessels sailing a predetermined course to KSA, whilst anchored in its territorial waters, are subject to the national jurisdiction of the KSA domestic courts, regardless of the ship’s nationality or flag. However, not all sea going ships are arrested in the same way. Military and official ships, governmental owned vessels and vessels used in port support services are excluded from the subject matter jurisdiction of the KSA commercial and enforcement courts. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Although the kingdom is a signatory party to multiple international conventions on regional and international maritime and admiralty law, it has not ratified the 1952 International Convention Relating the Arrest of Seagoing Ships, the 1999 International Convention on the Arrest of Ships, or the International Convention on Maritime Liens and Mortgages of 1993. In abstract the lack of similar safe-harbour laws may be alarming to some, but in reality many of the industry’s safe-guards are put in-check either by domestic law as we demonstrate below, or in private practice as financers and businessmen would be aware of. </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Treatment and Ranking of Maritime Debts</strong></span></p>\r\n<p class=\"p2\">There are two categories for liens; one for the threshold liability that may extend to cover all of the debtor’s sea going assets, the other is for the hiked liability that attaches the debt or lien to a certain pre-determined asset. Under the general rules of KSA civil liability, debtors are presumed to be personally liable for their own private assets. This concept creates the threshold or minimum standard for securing debt obligations that are naked or fully exposed, namely; lacking backup collateral. By the same token maritime debtors are also presumed liable for debts connected to their ongoing sea trade; however, the standard for treating a lien varies accordingly.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Creditors holding naked or exposed lines may direct arrest actions in-personam against all of their debtor’s sea going assets irrespective of whether they are the owners or charters of the vessel. However, in case of a registered mortgage the standard is elevated to premium collateral in the form of an attached in-rem lien that grants creditors supremacy over the mortgaged vessel itself, without having to establish a personal connection with the debtors or holders of the vessel. Quasi-mortgage liens - liens that are in a position of a mortgage by rule of law - also warrant debtors with an in-rem right on the vessel. Bareboat and time charterer agreements are two extreme examples of quasi mortgage liens that entitle the owners of a ship with a direct claim over their vessel, its machinery, its equipment, its freight allowance and its cargo, ahead of other debtors. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The main advantage of establishing in-rem jurisdiction is that it renders creditors immune to subsequent transactions that may produce adverse affects to the value of the underlying vessel, such as taking another mortgage or selling the vessel unless stringent conditions and certain disclosures and procedures are met. For example, creditors holding real mortgages are required to officially register their debts with the Ministry of Transport in order to be benefit from such protection against subsequent creditors. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Overall, there are eleven different liens specified in article 154 of CCL in the following order: 1) claim expenses as well as the expenses resulting from the interlocutory sale of the vessel, 2) pilot, anchorage, and docking fees, 3) watchman and custodian charges, 4) storage expenses, 5) expenses for safekeeping, 6) registration and administrative fees and crew charges, 7) pre-voyage resupply loans, 8) the sale price for the vessel as well as monies owed to foreign creditors, 9) in-voyage resupply loans, 10) insurance premium; and 11) salvage and insurance charges for the general average.</span></p>\r\n<p class=\"p4\"><strong>Arrest and Re-arrest</strong></p>\r\n<p class=\"p2\">The court will serve its orders upon a certain ship through delegating the pertinent authorities, i.e. the port director or the coast guard.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Since the arrest procedure is unusually expedited the ER has a number of counter checks and balances that equalise between the claimant’s positions and limit frivolous claims. First, the underlying right should be connected to a maritime debt that is both mature and prima facie credible. Second, creditors should be acting in good faith and are expected to file following substantive claims within a maximum of 10 working days (averaging two weeks) from the date of obtaining the arrest order. Third, creditors are required to deposit a monetary security in the form of a rectified cheque or a bank guarantee with the court. The court enjoys full discretionary powers to determine whether an arrest is possible and the level of security by considering a number of factors. These factors often include one or more of the following: the amount of the debt owed, the ratio of the debt with the value of the vessel, the cost for arresting and maintaining the vessel and/or its cargo in port and the practicality and risk for the arrest. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Re-arrest of a ship directly depends on the cause for foregoing the prior action. Re-arresting a ship is not possible when the arrest action was removed by force of law, i.e. neglecting to follow it with a substantive action. That being said, the court will consider re-arresting a ship and even sympathise with the creditor he were to drop his prior action in goodwill with an obvious example being where settlement negotiations have commenced but were unsuccessful. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Arresting sister ships reverses the in-rem jurisdiction back to in-personam under exceptional circumstances. If so, then the arrest of a sister ship might be possible (without being guaranteed) providing that both ships are owned by the same debtor, there are valid concerns that the transaction would jeopardise the rights and position of the creditor and that the ship is at real threat of diminishing in value. </span></p>\r\n<p class=\"p2\"><strong>Release and Wrongful Arrest</strong></p>\r\n<p class=\"p2\">Release of a ship can occur in one of three stages; the initial stage, the Court of First Instance stage, and the Court of Appeal stage. Debtors are urged to promptly respond to arrest actions, particularly during the earlier stages of an arrest while they have the better chance for diffusing the action with minimum casualties.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The risk of an arrest in the initial stage can be mitigated by making diligent efforts to verify the threat of arrest by obtaining legal advice followed by efforts to negotiate with the arresting party. However if the ship was in fact arrested, then debtors would be required to seek its release along with personal indemnity from the claim. Prudent debtors are expected to respond within the abovementioned 10 day window as failing to do so would only increase their losses. In order to release the vessel from arrest, debtors should first provide a counter security and then dispute the arrest. The counter security would also be determined by the court, but most likely it would be of an equal amount to that of the arrest security and issued in a similar fashion. If the release was unsuccessful, debtor may contest the court order for arrest by appealing to the Court of Appeal within 30 days from the order of arrest.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In general, debtors may defend against an arrest by disputing the lack of jurisdictions, lack of conditions to maritime debts, impracticality of an arrest or expiration of the time bar. Intuitively, the better approach is to prevent an arrest action from occurring in the first place by providing creditors with alternative options or collateral to cover the underlying debt. Personal guarantees, such as escrow accounts and Letters of Undertaking (‘LOU’), are not accepted by the court at the moment; however this does not completely rule them out of practice. Escrow accounts are widely used in substantive law suits, rendering it an available recourse at the disposal and mutual agreement of the parties outside the courts scope of review. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Wrongful arrests are rarely compensated by courts due to the principle of judicial immunity and the prudency assumption on the end of debtors. However, it would be possible for debtors to recover actual and direct damages if they can prove for certain that the arresting creditor has acted in bad faith and falsified the information or documentation submitted with the request for arrest. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In conclusion, in our view KSA maritime practice is healthy and functioning well but there are many nuances that need to be understood by all stakeholders. Going forward we anticipate the potential for further legislative changes and we shall provide an update as they occur and when such changes are effective. In the meantime, we hope this article has unravelled some of the ambiguity shrouding the practice of ship arrest on Saudi shores.</span></p>'),
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	(93999,5105,'content_description','The UAE Commercial Companies Law, which was enacted first in 1984 but only came into enforcement in 1991, has gone through a number of changes and amendments in the last 15 years. '),
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	(94009,5105,'_yoast_wpseo_metadesc','The UAE Commercial Companies Law, which was enacted first in 1984 but only came into enforcement in 1991, has gone through a number of changes and amendments in the last 15 years.'),
	(94010,5106,'content','March 2015\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nCorporations often seem surprised to be involved in criminal proceedings when their controlling officers had believed that the company was acting in accordance with the law.  However as will be explained below, the fact that corporate officers or employees were not aware of the criminal laws applying to them does not absolve them of potential criminal liability.\r\n\r\nIn this article, we shed some light on issues that may be useful when facing allegations of criminal conduct, by setting out a series of questions and answers related to the criminal procedure in the UAE.\r\n\r\n<strong>The Authorities And Their Roles</strong>\r\n\r\n<strong>Q1. What authorities are involved in a criminal case?</strong>\r\n\r\nThe main authorities involved in criminal proceedings are the Police Department, the Public Prosecution and the Criminal Courts. In addition to the Police and Public Prosecution, various other persons are authorised to gather evidence in criminal investigations. These include:\r\n<ul>\r\n 	<li>Officers of the armed forces.</li>\r\n 	<li>Border Guards and Coastguards.</li>\r\n 	<li>Immigration Officers.</li>\r\n 	<li>Municipalities’ Inspectors.</li>\r\n 	<li>Inspectors of the Ministry of Labour and Social Affairs.</li>\r\n 	<li>Inspectors of the Ministry of Health.</li>\r\n</ul>\r\n<strong>Q2. What are the roles of the Police and the Public Prosecution?</strong>\r\n\r\nThe role of the Police is to safeguard the general public, take initial statements from complainants and witnesses, arrest suspects, carry out investigations and execute orders from the Public Prosecution to assist in the investigation process.\r\n\r\nThe Public Prosecution is part of the Judiciary (see Article 5 of the Criminal Procedures Law (Fed. Law No. 35 of 1992, as amended) (“CrPL”)). The Prosecutor’s role is:\r\n<ul>\r\n 	<li>to oversee and give directions regarding the investigation of crimes, including gathering evidence and questioning witnesses;</li>\r\n 	<li>to review the allegations and evidence comprising the case file; and</li>\r\n 	<li>to assess whether a crime may have been committed.</li>\r\n</ul>\r\nto direct the Police to gather further evidence, where appropriate, such as witness evidence (i.e. further statements from the complainant or existing witnesses and statements from additional witnesses), forensic reports or real evidence (i.e. tangible evidence such as tape recordings, photographs, cash and other items).\r\n\r\nThe criminal investigation is recorded in an official case file, which is passed between the Police and the Prosecution as and when each is performing its function.  Once the case file is finally passed to the Prosecutor, he will decide whether to issue an Indictment Order against the accused and refer the matter to Court, or to dismiss the complaint.\r\n\r\nArticle 7 of the CrPL bestows exclusive jurisdiction on the Public Prosecution to initiate and prosecute criminal proceedings. However, there are specific statutory conditions to this in certain circumstances.  For example, Article 10 of the CrPL provides that criminal action may not be initiated without a written or verbal complaint of the victim or the victim’s legal representative for certain crimes, which include:\r\n<ul>\r\n 	<li>Theft, breach of trust and the concealment of the proceeds thereof, if the victim is a spouse of the perpetrator or one of the perpetrator’s ascendants or descendants and the proceeds are not seized judicially or administratively or encumbered by a lien in favour of another person.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Abstention from delivering a minor to, or taking the minor away from, the authority of the minor’s custodian.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Insult, slander and other crimes as specified by the law.</li>\r\n</ul>\r\n<strong>Q3. How does the Court system operate?</strong>\r\n\r\nThe Criminal Courts of the UAE are comprised of Courts of First Instance, Courts of Appeal and a third tier of courts, which differ depending on the Emirate.  Abu Dhabi and Ras Al Khaimah use a dual system of local courts (Court of First Instance, Court of Appeal and Cassation Court) and Federal courts (Court of First Instance, Court of Appeal and Union Supreme Court). Ajman, Fujairah, Sharjah and Umm al Quwain use the Federal courts system and Dubai uses only the local courts system.\r\n\r\nIn most cases, a criminal complaint will be referred by the Public Prosecutor to the Court of First Instance.  Notable exceptions to this are cases of extradition, which are sent directly to the Court of Appeal.  Other examples include crimes committed abroad but falling within the jurisdiction of the UAE Criminal Courts, which will be heard in the Courts of the Capital, and matters relating to national security, which are sent directly to the Union Supreme Court.\r\n\r\nOnce the Court of First Instance renders its judgment, the parties have 15 days in which to lodge an appeal, except the Attorney General, who has 30 days.  Appeals to the Cassation or Union Supreme Court may be filed within 30 days of the Court of Appeal judgment or its notification to the parties.  In limited circumstances, essentially amounting to the discovery of evidence of innocence, a conviction may be subject to Review, which can be lodged by the Public Prosecutor or the convicted person (via the Public Prosecutor).\r\n\r\n<strong>Governing Laws</strong>\r\n\r\n<strong>Q4. What laws regulate criminal conduct in the UAE?</strong>\r\n\r\nThe Federal sources of the UAE’s criminal law are Federal Law No. 3 of 1987, as amended  (“Federal Penal Code”) and the CrPL. These laws apply throughout the UAE including in the free zones. The Dubai International Financial Centre Courts do not, and the Abu Dhabi Global Market Courts will not (when they become operational), have jurisdiction over criminal matters.\r\n\r\nIn addition to the Federal Penal Code, several laws impose penalties for subject-specific criminal conduct. For example:\r\n<ul>\r\n 	<li>Federal Law No. 4 of 2002 (as amended) on Anti-Money Laundering and Combating the Financing of Terrorism imposes penalties for individuals and institutions that launder money, finance terrorist or other criminal organisations or fail to report known acts of money laundering in their business to the Financial Information Unit of the Central Bank.</li>\r\n 	<li>Federal Law No. 5 of 2012 (known as “the Cyber Crime Law”) tackles IT security, financial and commercial matters along with State Security and Political Stability issues.  This law imposes penalties for, among other things, unauthorised access to networks or data systems, tampering with data, cloning credit cards and using information technology to commit a variety of non-IT offences.</li>\r\n 	<li>Federal Commercial Companies Law No. 8 of 1984 (as amended) which, among other things, imposes penalties on directors if they distribute profits in violation of the provisions of the law or the articles of incorporation or association of the company, or intentionally state false information in relation to the company’s profits and losses.</li>\r\n 	<li>Federal Law No. 18 of 1993 (known as the “Commercial Transactions Law”), imposes a penalty on the board of directors if they committed certain acts at the time of bankruptcy of the company, such as concealing, destroying the company’s books or acknowledging debts that they know are not payable by the company.</li>\r\n 	<li>Federal Law No. 8 of 1980 (known as the “Labour Law”), imposes penalties on employers who hire a foreigner without obtaining a work permit or those who hire a foreigner without sponsoring him.</li>\r\n</ul>\r\nIt is worth bearing in mind that each incident may be criminalised by one or more laws and several of the above-listed laws state that the punishment specified for a particular criminal act is without prejudice to the availability of greater punishment under alternative laws.\r\n\r\n<strong>Q5. What is the legal basis for corporate liability?</strong>\r\n\r\nArticle 65 of the Federal Penal Code provides that juridical persons, with the exception of governmental agencies, are responsible for any criminal act committed for their account or in their name by their representative, director or agent.  Where the penalty for a criminal offence would be non-financial, the penalty that may be imposed against a convicted corporation is limited to a maximum fine of AED 50,000.  However, this does not represent the maximum financial liability of a corporation that is found to have committed a crime.  Article 22 of the CrPL allows the victim to make a claim against the company (and any other perpetrator) for civil compensation in respect of harm suffered as a result of the crime.\r\n\r\nArticle 65 explicitly states that the financial penalty imposed on the corporate offender does not prohibit punishment of the individual offender.\r\n\r\n<strong>Application</strong>\r\n\r\nQ6. What types of crimes can companies be subject to?\r\n\r\nIn theory, a corporate entity may be subject to any crime committed in the circumstances described by Article 65 of the Federal Penal Code (as summarised in the answer to Q5 above). We have had experience assisting clients who have claimed, or been accused of the following:\r\n<ul>\r\n 	<li>Fraud and Breach of Trust</li>\r\n 	<li>Bribery &amp; Corruption</li>\r\n 	<li>Embezzlement of public funds</li>\r\n 	<li>Money Laundering</li>\r\n 	<li>Forgery</li>\r\n 	<li>Dishonoured cheques</li>\r\n 	<li>Director &amp; Officer liability for mismanagement or stating false information in company records</li>\r\n 	<li>Cyber Crimes</li>\r\n 	<li>Labour issues and violations of safety regulations which cause the death of one or more employees</li>\r\n 	<li>Criminal cases against employees for theft, breach of trust or disclosing confidential information.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nCorporate criminal liability is a real risk in modern business.  As seen from various laws highlighted above, there is wide scope for falling foul of the law and businesses should ensure that measures are in place to mitigate against this possibility.  Where companies have been subject to criminal liability, it has often been because of a failure to implement and properly maintain corporate governance.  Successfully navigating a criminal case, and being aware of the appropriate applications and arguments at each stage, requires detailed knowledge of the relevant laws and procedures.\r\n\r\nFor further information relating to issues of corporate criminal liability, please contact either of the authors.'),
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	(101126,5498,'content_description','Until recently, Iran has not been considered as a potential jurisdiction for maritime arrests due to the applicability of the international sanctions and the complexities those sanctions entailed. Now that Iran is beginning to open up for international business, coupled with a sharp downturn in the regional shipping market, the ability to arrest ships to secure maritime claims is a frequent topic of enquiry in the shipping industry once again. This article gives an introductory overview of how a claimant can obtain a vessel arrest in Iran and the procedures to which it must adhere.'),
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	(101128,5498,'pageSummary','Until recently, Iran has not been considered as a potential jurisdiction for maritime arrests due to the applicability of the international sanctions and the complexities those sanctions entailed. Now that Iran is beginning to open up for international business, coupled with a sharp downturn in the regional shipping market, the ability to arrest ships to secure maritime claims is a frequent topic of enquiry in the shipping industry once again. This article gives an introductory overview of how a claimant can obtain a vessel arrest in Iran and the procedures to which it must adhere.'),
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	(101144,5498,'_yoast_wpseo_metadesc','Al Tamimi & Company gives an introductory overview of how a claimant can obtain a vessel arrest in Iran and the procedures to which it must adhere.'),
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	(101145,5499,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Due to the risk of the shipper or the consignee failing to return containers back to the shipping carrier empty, all shipping lines have stipulated in their bills of lading (B/L) (which govern the relation between the shipper, carrier, and the consignee) a specific condition concerning demurrage. This condition applies to the merchant (shipper/consignee) and stipulates who shall be charged fees arising from fault or negligence in not returning the containers back empty to the carrier. Shipping lines are keen to impose such a condition because such malpractice by the merchant results in enormous losses to the carrier who will be unable to exploit its containers.</p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>The essential role of the bill of lading</strong></span></p>\r\n<p class=\"p3\">The B/L is a contract of carriage which prescribes the obligations between the shipper, the carrier and the consignee. It is also the document to which the port and the customs authorities refer in their inspections of cargoes.</p>\r\n<p class=\"p1\"><span class=\"s1\"> If a dispute arises out of transportation of goods by sea, the terms and conditions of the B/L shall apply to all the parties to the contract for the purposes of determining the responsibility and liability of the parties.</span></p>\r\n<p class=\"p1\">According to Kuwaiti Law No. 28 of 1980 (Maritime Law), the B/L shall be in writing and has three functions used to prove a shipment’s contents: as evidence of the transportation, as a representation of the goods to which it relates, and as evidence of the information included therein, among the carrier, the consignee and in respect of third parties.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Furthermore, Kuwait has ratified the Brussels Treaty of 1924 for the Unification of Certain Special Rules Relating to Bills of Lading (Hague Rules). Consequently, the Hague Rules are applicable as part of Kuwaiti law and apply to maritime cargo claim disputes.</span></p>\r\n<p class=\"p3\"><strong>The responsibility of the shipper to pay demurrage</strong></p>\r\n<p class=\"p3\">The shipper is the party who starts the route of transportation by the submission of a shipping order (S/O) to the carrier for transportation of consignments to a determined destination. According to Article 176 of the Maritime Law, the carrier issues a B/L upon receipt of the information provided by the shipper, including the consignee’s details. However, in some cases, the shipper shall be obliged to pay the demurrage stipulated by the shipping line when the consignee does not appear at the port of discharge (POD) to take delivery, for the reasons outlined below.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The transfer process is based on the shipper’s S/O in accordance with Article 179(2) of the Maritime Law, which stipulates that ’<em>The shipper shall be responsible before the carrier for compensation of detriment resulting from inaccuracy of the submitted information in respect of commodities. The carrier, may not adhere to inaccuracy of the information stated in the bill of lading before anyone other than the shipper</em>‘.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Also, Article 4.3 of the Hague Rules stipulates that ’<em>The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants</em>’.</span></p>\r\n<p class=\"p1\">Consequently, the shipper is liable to compensate the carrier for damages arising due to inaccurate information relating to the consignment provided by the shipper, or to his and his agents’ fault or negligence. According to the same principle, the shipper will also be responsible for the information related to the consignee at the POD.</p>\r\n<p class=\"p3\"><strong>The responsibility of the consignee to pay the demurrage</strong></p>\r\n<p class=\"p3\">The consignee is the party who shall attend the shipping carrier or its agents to accomplish the procedures required to deliver the cargo. However, in some cases when the consignee accepts consignments and obtains the delivery order (D/O) from the carrier/carrier’s agents, the consignee may delay returning the containers back empty to the carrier, or suddenly stop the customs procedures and leave the consignments inside the container without continuing the procedures required to deliver the cargo. There is no doubt that both actions change the nature of the container from a valuable piece of equipment in the transport operation into just storage for the consignee’s cargo, which potentially causes huge losses to shipping carrier.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The Kuwaiti legislator has counteracted such indecent action in Article 175(2) of the Maritime Law, which declares the rights and obligations of the consignee, who committed to the terms of the B/L as owner of the consignments, and confirmed that once the consignee attends to the carrier holding the B/L, the consignee shall be obliged by the conditions of the B/L. This concept has been clearly stated by the explanatory memorandum of the Maritime Law, which state that the consignee shall bear the obligations arising from the contract of carriage if accepted explicitly or implicitly.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The consignee who attends to the carrier/carrier’s agents and obtains the D/O will, therefore, be liable to pay demurrage if he delays in returning the containers back empty or does not complete the procedure of delivering the cargo from the containers.</span></p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>The legal recommendation</strong></span></p>\r\n<p class=\"p3\">Having regard to our experience before the courts in the Middle East and North Africa, and due to the specific nature of maritime transportation, it is recommended not only to rely on the demurrage condition stated on the back page of the B/L or through advertising the same on the carrier’s website, but also to mention this clause clearly on the front page of the B/L, by which the merchant (neither shipper nor consignee) will be liable for the demurrage. Calculations of charges should also be stated clearly on the B/L. This will make it easier to convince the court of the carrier’s right to collect the demurrage from the merchant and its exact amount. In addition, it will minimise the number of documents submitted before the court to prove the carrier’s rights, which will surely lead to obtaining the court’s judgment more quickly.</p>'),
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	(101167,5499,'_yoast_wpseo_metadesc','In modern, global trade, sea-going ships are the foremost mode of transportation because they are a cost-effective and safe way to transport cargo around the world. Shipping carriers achieve their profits on the services presented in handling the containers in which cargo is shipped.'),
	(101168,5500,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Conservatory arrest procedure under Egyptian Law</strong></p>\r\n<p class=\"p4\">A creditor has the right to apply before the Chief of the Court of First Instance in his capacity as a judge of urgent matters (Competent Judge) for an order to arrest a vessel for security, if such claim is considered to be a ’Maritime Claim’.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The creditor’s application should contain a brief explanation of the debt and reasons why he is applying for security. Furthermore, he must prove that the liabilities giving rise to the claim come within the definition of ’Maritime Claims‘ as defined in the Egyptian Maritime Law and the 1952 Brussels Convention. To do so, the applicant must support his application with sufficient documents to validate his claim.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> ’Maritime Claims‘ are defined in the Egyptian Maritime law by Article 60, which stipulates that no conservatory arrests may take place unless for settlement of a marine debt. The debt is to be considered as a marine debt if it arises out of one or more of the following reasons: </span></p>\r\n\r\n<ul>\r\n 	<li>Ports and sea channels duties.</li>\r\n 	<li>Expenses concerning removal, picking up, or lifting the ship wrecks and cargo.</li>\r\n 	<li>Damage caused by the ship caused either by collision or pollution or other similar marine casualties.</li>\r\n 	<li>Loss of life or personal injury caused by the ship or occurring in connection with her operation.</li>\r\n 	<li>Contracts related to the use or hire of the ship.</li>\r\n 	<li>Insurance on the ship.</li>\r\n 	<li>Contracts related to the carriage of goods by means of a charterparty or bill of lading.</li>\r\n 	<li>Loss of or damage to goods and baggage carried on the ship.</li>\r\n 	<li>Salvage.</li>\r\n 	<li>General average.</li>\r\n 	<li>Ship’s towage.</li>\r\n 	<li>Pilotage.</li>\r\n 	<li>Supply of goods or materials whether supplied to the ship for her operation or for her maintenance; whichever maybe the source of such supply.</li>\r\n 	<li>Construction, repair or equipment of the ship or dock charges and dues.</li>\r\n 	<li>Wages of Masters, Officers, or crew.</li>\r\n 	<li>Master’s disbursements, and disbursements made by shippers, charterers or agent on behalf of a ship or her owner.</li>\r\n 	<li>Disputes as to the ownership of the ship.</li>\r\n 	<li>Disputes over the common ownership of the ship or her possession, employment, or in common earnings of that ship, resulting from her exploitation.</li>\r\n 	<li>Marine mortgage.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"><span class=\"s3\">This enumeration, as mentioned in the law, is made on an exclusive and exhaustive basis, and appears to be modelled closely on the list of maritime debts set out in the 1952 Brussels Convention.</span></p>\r\n<p class=\"p4\"><strong>The Court’s decision and its effect</strong></p>\r\n<p class=\"p4\">The Competent Judge who is reviewing the application and its accompanying documents has the right to carry out a brief investigation into the grounds upon which the application is made. At his own discretion, he is entitled to allow or reject the order without specifying reasons for his decision.</p>\r\n<p class=\"p4\">If the application is accepted</p>\r\n<p class=\"p4\">No counter-security is required. The applicant is entitled to enforce the conservatory arrest order by arresting the debtor’s assets/vessel as specified in the court order and he is required to file a substantive case within 8 days from affirmation of the conservatory arrest order, otherwise the order will be considered null and void.</p>\r\n<p class=\"p1\"><span class=\"s3\"> In response to an arrest, the debtor shipowner may take the following action:</span></p>\r\n\r\n<ul>\r\n 	<li>Submit an application for the lifting of the arrest against a suitable guarantee, in order to replace the vessel as the form of security with such guarantee. The Egyptian courts do not accept a letter of undertaking in order to release the vessel. They do, however, accept the submission of a bank letter of guarantee, which shall not be cancelled unless a final judgment is issued or a settlement between the parties to the dispute is agreed.</li>\r\n 	<li>File an objection (within 10 days) against the conservatory arrest order. This, in and of itself would, not stop the arrest proceedings and it is important to note that this procedure is lengthy and the matter will be treated as a normal court procedure, which normally takes years to obtain a final judgment from the Court.</li>\r\n</ul>\r\n<p class=\"p7\"><span class=\"s4\">If the application is rejected</span></p>\r\n<p class=\"p4\">The applicant would be entitled to proceed as follows:</p>\r\n\r\n<ul>\r\n 	<li>Submit a new application. The further application will be heard again in absence of the parties and the judge may again reject or accept the application but, in the latter case the judge must state the reasons that the application was accepted after the initial application was rejected.</li>\r\n 	<li>File an opposition before the Court of First Instance. This would result in a full hearing with the attendance of all parties and the Court will issue a judgment either confirming or reversing the decision given by the sole judge.</li>\r\n</ul>\r\nThis procedure follows the normal procedures of filing a lawsuit, namely that the judgment rendered from the Court of First Instance is subject to appeal before the Court of Appeal and before the Court of Cassation.\r\n\r\n&nbsp;\r\n<p class=\"p4\"><strong>Conclusion</strong></p>\r\n<p class=\"p4\">Legally speaking, the application for an arrest order is heard by the Competent Judge in the absence of the parties and the decision is given on the documents. The question of whether to accept or reject the application is left to the discretion of the Competent Judge and no reasons are required to be given in either case.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Consequently, and according to our experience before the Egyptian courts, an application to obtain an arrest order should be supported with sufficient documents, which must be original and official; otherwise the chances of success in obtaining an arrest order will be low.</span></p>'),
	(158913,5500,'core_values',''),
	(158914,5500,'_core_values','field_59b64ab071de4'),
	(101122,5498,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>The Two Ways to Arrest a Ship in Iran</strong></p>\r\n<p class=\"p2\">Surprisingly, Iran’s Maritime Code does not contain any specific provisions governing the arrest of vessels to secure maritime claims. Furthermore, Iran is not a signatory to the International Convention Relating to the Arrest of Sea-Going Ships 1952 nor the International Convention on the Arrest of Ships 1999 (together the ’Arrest Conventions‘), which offer a uniform set of laws and procedural rules on all aspects of ship arrests for contracting States. For example, the Arrest Conventions list the nature of debts which a vessel can be arrested against, referred to as ’maritime debts’.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Whilst Iran is a party to the International Convention for the Unification of Certain Rules of Law Relating to Maritime Lien and Mortgages, Brussels 1926, in practice, a legal framework for the enforcement of maritime liens has not been implemented in Iran.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In the absence of incorporated international law, and the omission from the Iranian Maritime Code of arrest provisions, the Iranian Courts will grant a claimant an arrest order pursuant to two civil law procedural applications, as follows.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The first method of making an arrest application in Iran is to issue a claim pursuant to Article 108 of the Iranian Civil Procedure Act, which reads as follows:</span></p>\r\n<p class=\"p4\"><span class=\"s1\"><em>[In a civil action] the Claimant, either prior to the commencement of an action and the submission of a statement of claim, or at any time during the proceeding, but prior to a final judgment, may, on the satisfaction of the conditions below, ask the Court for security for judgment and the Court is obligated to order same;</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>a) The subject matter of the dispute is pursuant to an official document [dispute of title ownership of property where there is a title deed etc],</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>b) The Respondent may dilute or divert his assets,</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>c) In respect of commercial documents or such deed of commercial value against which the Court must issue an Order for security,</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>d) The Claimant must deposit with the Court an amount equal to an estimate of the damages that the Respondent may suffer.</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>The Court of competent jurisdiction will be responsible to determine the value of the estimate of damages referenced above.</em></span></p>\r\n<p class=\"p6\"><span class=\"s1\">At a high-level view, a claimant can petition the court at any time for an attachment order over a debtor’s assets, including a vessel registered in the debtor’s name, where the debtor owes a sum of money to the claimant. The nature of debt against which the vessel can be arrested is widely construed by the court to include any debt and is not limited to ’maritime debts‘. Under Article 108, if an attachment order is granted by the judge, counter-security must be paid into the court, the sum of which shall be at least 10% of the claim value but determined by the judge in his discretion. The judge will then issue a letter to the relevant port authority where the vessel is located ordering its seizure. The claimant will then have 10 days from the service of the order on the vessel to file its substantive claim against the vessel owner.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Although under Article 108 the claimant can apply for an attachment order over the vessel during the course of the main claim itself, as per normal practice, the claimant will most likely seek to secure the attachment prior to filing the main claim.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The second manner in which an arrest can be obtained is pursuant to Article 310 &amp; 316 of the Iranian Civil Procedure Code, set out below:</span></p>\r\n<p class=\"p4\"><span class=\"s4\"><em>Section 310 - In circumstance where there is an urgency in rendering an expedited interim judgment, at the request of the interested party to the proceeding, the Court may issue an interim Order in an expedited manner. </em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>Section 316 – The Interim Order pursuant to Section 310 can be made in respect of seizure of assets, order to undertake a deed or action, or against a deed or action.</em></span></p>\r\n<p class=\"p6\"><span class=\"s1\">This method involves an ex parte application to the court on an ’urgent‘ basis, which must evidence to the court that there is a risk that 1) the movable asset (vessel) will leave the jurisdiction and 2) there is no alternative asset available which can secure the claimant’s claim. If convinced, the court will issue a provisional attachment order over the ship preventing it from leaving the jurisdiction. As with the Article 108 procedure outlined above, counter-security will be required. From the date of service of the arrest order, the claimant will have 20 days to file its substantive claim, failing which the arrest order will be lifted.</span></p>\r\n<p class=\"p2\"><strong>Other Considerations for Arresting Parties</strong></p>\r\n<p class=\"p2\">Sister-ship arrests are possible under the Iranian legal system but only where the debtor is the legally registered owner of the sister-ship. The courts will not be prepared to lift the corporate veil and order the arrest of a vessel which is group owned, beneficially owned, chartered, managed or operated by the registered owner of the offending ship. For example, if Ship A has not paid for its bunkers and the registered owner is Owner A, the bunker supplier cannot arrest Ship B because it is beneficially owned by Owner A but the registered owner is a shell company called Owner B.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In a similar vein, a claimant cannot arrest a ship as security for charterer debts because the Iranian courts view the debt as a third party debt and will not permit attachment of property under the civil code if not owned by the debtor charterers.</span></p>\r\n<p class=\"p7\"><span class=\"s5\"> Counter-security must be in the form of cash or an acceptable bank guarantee and will usually be in an amount ranging between 10-20% of the claimed sum. The court will not accept a Club Letter of Undertaking (LOU) although there is nothing preventing the claimant accepting a Club LOU and then requesting the court to release the vessel. The vessel can be released on the same day as the counter-security is deposited with the court.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> If a claimant wishes to arrest a vessel in Iran, it should allow a few days for preparation of the documents. In theory, an arrest could be granted on the same day as the application but in practice it usually takes between 1-3 days before an arrest order is actually served on the vessel.</span></p>\r\n<p class=\"p2\"><strong>Restrictions and Risks</strong></p>\r\n<p class=\"p2\">In both Article 108 and 310 actions, the claimant’s claim must be equal to or greater than IR200,000 (approximately USD65,000) in order to obtain a provisional attachment.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In some instances, defendant ship owners are able to raise a wrongful arrest petition. Usually, the court deals with the merits of the wrongful arrest petition at the end of the case. Where the court dismisses the claimant’s claim and the defendant ship owner can prove that damages arose from the arrest, the defendant ship owner shall be entitled to wrongful arrest compensation. Unlike neighbouring jurisdictions in the Gulf region, there is no requirement for the defendant ship owner to prove malicious intent on the part of the claimant. This represents quite a serious risk to claimants and means that they should be convinced of the validity of their claim before proceeding with an arrest application or otherwise risk having to pay wrongful arrest compensation.</span></p>\r\n<p class=\"p2\"><strong>Costs</strong></p>\r\n<p class=\"p2\">Within a period of 10 days from obtaining an attachment order, the claimant must file its submissions on the merits of the claim and at such time a fixed fee of 3.5% of the claim amount is payable. There is no ceiling to the fee payable and it can, therefore, be quite high where large claims are concerned.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The successful party is able to recover the court filing fees and any expert fees incurred. There is, however, a general reluctance by the Iranian courts to allow recovery of professional legal fees.</span></p>\r\n<p class=\"p2\"><strong>Conclusion: Can you arrest?</strong></p>\r\n<p class=\"p2\">Yes, it is possible to arrest a vessel in Iran to secure a claim against the vessel owners. Whilst there is no specific provision in the Iran Maritime Code, attachment of debtor property is routinely achieved to secure claims. These methods are extended to attachment of vessels to secure claims, regardless of whether such claims are ’maritime debts‘. We believe that members of the shipping community will increasingly explore arresting vessels in Iran as trade opens up more with the country, particularly by those who supply services to vessels in the Gulf region. However, arresting parties should be confident that their claims are well supported and valid because of the increased risk of ship owners succeeding in wrongful arrest claims. This, in our view, is positive to the extent that it should filter out spurious claims.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Al Tamimi &amp; Company partners with an experienced maritime organisation in Iran on arrest instructions and has exclusivity for Iran in the Shiparrested.com membership.</span></p>'),
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	(101101,5497,'content_description','Bank financing of new and second-hand ships remains the leading source of finance for shipowners. This traditional source of finance has been forced to adjust to a new era of shipping over the last several years. The current market is characterised by increasingly volatile (and generally depressed) freight rates, increased sources of finance coupled with an excess of available capital, and consequent oversupply of tonnage. Market conditions have placed tremendous pressure on many owners, and lenders routinely find themselves consumed with tending to defaults and restructurings. '),
	(101102,5497,'_content_description','field_59b641c07f473'),
	(101103,5497,'pageSummary','Bank financing of new and second-hand ships remains the leading source of finance for shipowners. This traditional source of finance has been forced to adjust to a new era of shipping over the last several years. The current market is characterised by increasingly volatile (and generally depressed) freight rates, increased sources of finance coupled with an excess of available capital, and consequent oversupply of tonnage. Market conditions have placed tremendous pressure on many owners, and lenders routinely find themselves consumed with tending to defaults and restructurings.'),
	(101104,5497,'_pageSummary','field_59e59b307dec8'),
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	(101097,5497,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">The current state of affairs has encouraged lenders to more carefully assess how they secure the facilities they provide. Lenders are becoming increasingly aware, and concerned, about the effectiveness of their standard securities. Here the authors consider ship finance in an UAE context, with a focus on securing debt financing transactions.</p>\r\n<p class=\"p2\"><strong>Registration of Vessels</strong></p>\r\n<p class=\"p4\">Vessel registration is largely governed by the UAE Commercial Maritime Law No. 26 of 1981 as amended (the ‘Maritime Code’). The UAE maintains a closed register. Only vessels owned by UAE nationals, or majority UAE owned corporate entities, are eligible for registration. The Federal Transport Authority - Land &amp; Maritime (the ‘FTA’) is the body charged with overseeing, and administering, the national ship register. There is continued debate in the UAE surrounding the desirability of establishing of a separate open ship registry, catering to vessels with foreign owners, and bearing features of a convenience registry. At date of publishing this article, such registry had not been established.</p>\r\n<p class=\"p1\">Certain vessels are exempt from federal registration. These include fishing boats, pleasure boats, vessels less than ten tons in total weight, lighters, barges, tugs, cranes, dredgers and diving boats. The Maritime Code further prohibits the registration of oil and gas tankers older than ten years at date of sought registration.</p>\r\n<p class=\"p4\"><strong>Ship Mortgages</strong></p>\r\n<p class=\"p4\">The ship mortgage is arguably the most effective, and robust, security available to lenders. It provides a lender with an in rem right directly against the vessel, granting it priority over unsecured creditors of the vessel and its owner. A lender is afforded powerful rights in the event of any default by the borrower, including; pursuing the sale of the vessel to recover any indebtedness.</p>\r\n<p class=\"p1\">Mortgages registered against UAE flagged vessels are widely accepted and enforced in UAE and foreign courts. Parties are generally free to agree on the structure and contents of the mortgage agreement, and underlying instruments, with relatively intricate and complex arrangements secured through a registered mortgage. Lenders are also permitted to utilise security agents to hold and administer a mortgage.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Maritime Code does however require a ship mortgage to adhere to certain basic confines. A mortgage must be recorded through an official deed, failing which, it will be considered void. Practically, this requires a mortgage to be in writing, in Arabic, and notarised before a Notary Public. Generally a dual English/Arabic text is filed. Parties should be aware that if enforced before UAE Courts, the Arabic text will prevail over the English text. A good quality translation is accordingly essential. The mortgage must also indicate the following details:</span></p>\r\n\r\n<ul>\r\n 	<li>Amount of debt. If against more than one vessel, details of debts related to each vessel. If against a vessel and other property, it must indicate the amount secured by the vessel;</li>\r\n 	<li>Date and type of contract and details of borrower and lender;</li>\r\n 	<li>Maximum mortgage amount (which should be fixed);</li>\r\n 	<li>Any conditions relating to the debt;</li>\r\n 	<li>Description of mortgaged vessel and confirmation that the vessel is over ten tons (as required);</li>\r\n 	<li>Details of any possible interest.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\">The underlying debt instrument does not need to be registered or filed with the mortgage, although it is customary to do so. Parties are required to file any substantive amendments to the mortgage as may arise from time to time.</p>\r\n<p class=\"p1\">A mortgage may be registered against a vessel under construction. A further declaration in this context is required from a local FTA office with jurisdiction over the port where the vessel is being built. Such declaration must provide details of the vessel, including; its length and dimensions, approximate tonnage and details of the yard under which it is being built.</p>\r\n<p class=\"p4\"><strong>Assignment of Earnings or Charterparty Contracts</strong></p>\r\n<p class=\"p4\">In addition to the vessel mortgage, lenders may also take security over the cash flows generated by the mortgaged vessel by way of assignment of earnings or charterparty contracts.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Under UAE law assignment of earnings is considered an assignment of rights or otherwise known as assignment of receivables. The jurisprudence on assignment of rights and receivables has been developed by the judicial decisions of the courts of various Emirates of the UAE including the Emirates of Dubai and Abu Dhabi. It is important to note that the underlying right or receivable needs to be in existence at the time of the assignment. In other words, UAE law may not recognise assignment of future rights or receivables or an assignment of a charterparty contract that will be executed at a later date. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> It is customary for the lender and borrower to enter into a formal assignment agreement which outlines the relevant perfection requirements and would also reflect the details of the charterparty contract being assigned. The assignment can be perfected by the borrower (as assignor) issuing a notice of assignment to the third party debtor. The mode of delivery of notice can be by registered post, courier and very recently notices by fax and email have been accepted as necessary evidence of delivery of the notice. Whilst the evidence of delivery of notice of assignment is sufficient, cautious lenders generally require the borrower to procure a formal acknowledgment of the assignment from the third party debtor.</span></p>\r\n<p class=\"p2\"><strong>Pledge over Bank Accounts</strong></p>\r\n<p class=\"p4\">The assignment by way of security over earnings is supported by a pledge or security over the bank account where such earnings are deposited by the third party debtor.</p>\r\n<p class=\"p1\">The notice of assignment discussed above generally directs the third party debtor to pay the charter income into a designated bank account. This bank account is ordinarily the borrower’s account, as held with the relevant branch of the lender and is be subject to a pledge or security allowing the lender to exert a certain level of control over the charter income.</p>\r\n<p class=\"p1\">If the charter income or receivables is also the mode of repayment of the loan availed from the lender then such lender may also prescribe a payment waterfall mechanism either in the facility agreement or the account security document. It is also important to note that it is difficult to create security or pledge under UAE law over an account with a fluctuating balance. This is due to the absence of specific law on creating security over fungibles and the application of the law on pledge over movable assets - which requires the underlying assets to be fixed and identifiable. Therefore lenders mostly rely on the set-off clauses in the account pledge agreements which may be considered independent of the pledge by the UAE courts in enforcement. Due to this uncertainty some foreign lenders may also stipulate offshore accounts where such floating security would be recognized.</p>\r\n<p class=\"p4\"><strong>Assignment of Insurances</strong></p>\r\n<p class=\"p4\">In mid market transactions, particularly in the financing of offshore support vessels, lenders usually rely on ‘loss payee’ provisions in the hull and war risk insurances and other insurance policies customarily linked to the financed vessel. It has been observed that lenders generally do not enter into or perfect assignment of insurances discussed above. In the absence of a formal assignment the lender would not be able to ‘step in’ and enforce its rights against the insurer and would have to wait for a claim to be lodged by the insured under the policy. Therefore it is recommended that in addition to the lender being named as loss payee in the policy the borrower should formally assign the policy in favour of the lender. However such assignment may oblige the lender to pay the premium under such policy if the insured fails to fulfill its payment obligations.</p>\r\n<p class=\"p4\"><strong>Guarantees</strong></p>\r\n<p class=\"p4\">It is common to obtain personal and corporate guarantees from the borrower’s shareholders or affiliates respectively. When preparing guarantees it is important to ensure that the guarantee instrument clearly reflects the details of loan availed by the borrower or details of the relevant facility agreement. The absence of the loan or facility details in the guarantee may render it as an ‘all monies guarantee’ which may not be recognized by UAE courts. Further, any claim under guarantee provided by a guarantor needs to be made within six (6) months from the date of default by the borrower under the facility agreement, otherwise such guarantor may rely on the above six (6) month rule provided for in the UAE Civil Code (Federal Law No. 5 of 1985) and exclude its liability on account the above time bar.</p>\r\n<p class=\"p4\"><strong>Share Pledges</strong></p>\r\n<p class=\"p4\">The new UAE Company Code (Federal Law No. 2 of 2015) now recognizes pledges over shares of a limited liability company (‘LLC’). Therefore, as most UAE flagged vessels are owned by LLCs, lenders now have the option to extend their security coverage by taking security / pledge over the shares of the LLC borrower. The parties (i.e. the shareholders of the borrower) and the lender need to enter a bilingual (Arabic/English) share pledge agreement after obtaining initial approval from the relevant Department of Economic Development. The share pledge agreement is signed in the presence of a local notary public and subsequently registered with the Department of Economic Development.</p>\r\n<p class=\"p4\"><strong>Conclusion</strong></p>\r\n<p class=\"p4\">Even though the UAE maintains a closed ship registry, it is a jurisdiction that offers relatively wide-ranging security options to lenders, which are on par with many popular international registries. Despite the poor shipping market conditions, there appears to be an increasing appetite amongst several local, and foreign, banks in the regional ship finance market. It is important that lenders in the region take careful note of the available securities, and their respective requirements, in order to best tailor an efficient security package.</p>'),
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	(101086,5496,'content_description','Whilst all eyes were on the UK this summer regarding the outcome of its forthcoming ’Brexit‘ referendum on whether to remain within the European Union (EU), the implementation of EU aviation law designed to protect air passenger rights has continued apace.'),
	(101087,5496,'_content_description','field_59b641c07f473'),
	(101088,5496,'pageSummary','Whilst all eyes were on the UK this summer regarding the outcome of its forthcoming ’Brexit‘ referendum on whether to remain within the European Union (EU), the implementation of EU aviation law designed to protect air passenger rights has continued apace.'),
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	(101063,5495,'content_description','In the United Arab Emirates the insurance brokerage profession is regulated by Insurance Authority Board of Directors resolution No. 15 of 2013 (as amended by resolution No. 20 of 2014) (the “Regulations”) and resolution No. 58 of 2015 in respect of the execution of resolution No. 15 of 2013 (the “Execution Rules”). '),
	(101064,5495,'_content_description','field_59b641c07f473'),
	(101065,5495,'pageSummary','In the United Arab Emirates the insurance brokerage profession is regulated by Insurance Authority Board of Directors resolution No. 15 of 2013 (as amended by resolution No. 20 of 2014) (the “Regulations”) and resolution No. 58 of 2015 in respect of the execution of resolution No. 15 of 2013 (the “Execution Rules”).'),
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	(101081,5495,'_yoast_wpseo_metadesc','In the United Arab Emirates the insurance brokerage profession is regulated by Insurance Authority Board of Directors resolution No. 15 of 2013 (as amended by resolution No. 20 of 2014) (the “Regulations”) and resolution No. 58 of 2015 in respect of the execution of resolution No. 15 of 2013 (the “Execution Rules”).'),
	(101082,5496,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">On 10 June 2016, the European Commission (EC) published new guidelines aimed at providing EU National Enforcement Bodies (invariably the Civil Aviation Authority of each EU country) with a blueprint document with the intention of tackling issues most frequently raised by passengers, and in an attempt to give clarity to the enforcement of existing passenger rights legislation.</p>\r\n<p class=\"p1\">All Gulf-based airlines departing from airports within the EU are subject to a wide body of EU air passenger rights legislation, the purpose of which is stated to be to offer a high degree of protection against unforeseen circumstances to people travelling by air to and from the EU. This legislation consists of a series of EC Regulations dealing with subjects such as the rights of persons with reduced mobility, the protection of air passengers, aviation safety and ’black lists‘ of high risk airlines. As part of this body of rules, EC Regulation 261/2004 (EC 261) deals with the denied boarding of passengers, cancellations, delays and subsequent rules on compensation and assistance to passengers.</p>\r\n<p class=\"p1\">The Interpretive Guidelines on EC 261 (The Guidelines) have been welcomed by International Air Transport Association (IATA) as an important stop gap until crucial reform of the passenger rights legislation is implemented, and the International Air Carrier Association (IACA) has called the initiative ’the right step towards legal clarity for both airlines and passengers awaiting the adoption of a balance new legislation by the European institutions.’ The Guidelines are available for all to download from the EC website, and they make important clarifications on interpreting EC 261, and reprise the many case law decisions made by the European Court of Justice (ECJ) over the years since the Regulation has been in force.</p>\r\n<p class=\"p1\">EC 261 has now been in place for more than a decade and, since the date of implementation, there have been inconsistencies and ambiguities in how it has been applied. The Regulation was originally designed to protect passengers who were denied boarding and for cancelled flights, but not specifically delays to the passenger’s flight. However, the scope of EC 261 was extended in 2011 by the European Court of Justice judgment in Case C-402/7 and C-432/7 Sturgeon v Condor [2011] ECR, so that a passenger who suffers a delay in excess of three hours is entitled to compensation under Article 7 of EU 261. A passenger may therefore claim:</p>\r\n\r\n<ul>\r\n 	<li><em>For cancelled flights, denied boarding, and flights delayed by three hours or more at the point of destination, compensation of:</em></li>\r\n</ul>\r\n<p class=\"p4\"><em>- 250 Euros for flights of 1500 kms or less</em></p>\r\n<p class=\"p4\"><em>- 400 Euros for all other intra EU flights, and all other flights between 1500-3500 kms</em></p>\r\n<p class=\"p4\"><em>- 600 Euros for all other flights over 3500 kms</em></p>\r\n\r\n<ul>\r\n 	<li><em>For cancelled flights and flights delayed by five hours or more, rights to reimbursement or re-routing</em></li>\r\n 	<li><em>For cancelled flights and flights delayed by two hours or more (depending on the distance), rights to care (refreshments, meals, accommodation)</em></li>\r\n</ul>\r\n<p class=\"p5\">By Article 7.2 of EC 261, if the carrier offers re-routing in the event of a cancellation, denied boarding or delay then the above amounts can be discounted by 50%.</p>\r\n<p class=\"p5\">The right to compensation is subject to an ’extraordinary circumstances‘ defence, so that the carriers are not obliged to pay compensation if they can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The Guidelines throw further light on the interpretation of ‘extraordinary circumstances‘ and should be read by all airlines operating from EU airports.</p>\r\n<p class=\"p1\">‘Extraordinary circumstances’ are not defined comprehensively within the legislation, and again, a body of case law has developed to restrict the carrier’s defences, such as there being no defence for the airline for complex engine defects unless they stem from events which are not in adherence to the normal exercise of the activity of the air carrier and beyond its control, such as hidden manufacturing defects (Case C-549/07 Wallentin - Herrmann v Al Italia [2008] ECR).</p>\r\n<p class=\"p1\">Other examples of ‘extraordinary circumstances’ may include sabotage/terrorism, strikes, air traffic control problems and freak weather conditions such as the 2010 Icelandic ash cloud. However, even a technical problem that occurs unexpectedly and that is not attributable to poor maintenance and that was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ (Case C-257/14 Van der Lans v KLM [2015] ECR).</p>\r\n<p class=\"p1\">For all the above reasons, as far as Gulf-based carriers are concerned (and indeed any non-EC carriers), it is important to look at the scope of EC 261 and when it will apply to the carrier. This is set out in Article 3.1, which states:</p>\r\n<p class=\"p1\"><em>This Regulation shall apply:</em></p>\r\n\r\n<ul>\r\n 	<li><em>To passengers departing from an airport located in the territory of a Member State to which the [EC] treaty applies</em></li>\r\n 	<li><em>To passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the [EC] treaty applies, unless they received benefits or compensation and were given assistance in that third country if the operating air carrier of the flight concerned is a community carrier.</em></li>\r\n</ul>\r\n<p class=\"p5\">Thus, Gulf-based carriers are potentially liable under EC 261 if a flight is delayed or cancelled, or passengers are denied boarding, when leaving any EU airport. Conversely, Gulf-based carriers are not ‘community carriers’ under Article 3.1(b) and therefore they are not liable for flights delayed when the flight starts from a country outside of the EU.</p>\r\n<p class=\"p1\">But what about connecting flights where the flight starts from an EU airport?</p>\r\n<p class=\"p1\">Many operators within the Gulf region are successful, highly organized, new clean sheet business plan model airlines with hub routes providing a worldwide network of connecting flights. Logic would say that, if there is a delay on a flight that starts in the EU and that delay is compensated by the airline in accordance with the EU legislation within the EU, there should not be any consequential effect to connecting flights.</p>\r\n<p class=\"p1\">It is not unusual for a journey starting in the EU and operated by a Gulf carrier to comprise of two or more flights, the first from any EU member state to a non member state (eg London to UAE) and then there is a connecting flight between two non member states (eg UAE to India). Using the example London-UAE-India, it may be the case that a first flight is delayed at the EU airport for long enough for the passenger to miss their connection to India in the UAE, but for a shorter period than their requisite three-hour delay to engage a right to compensation. However, when the passenger eventually reaches the ultimate destination in India, it may be the case that the knock on effect of the original delay gives a delay in the arrival at the final destination of more than three hours.</p>\r\n<p class=\"p1\">Gulf carriers have tended to argue that each flight is a separate unit of their transport and needs to be considered separately for the purposes of compensation under EC 261, whereas the claimant often argues that their journey at all times departed from the Member State in question and that the Regulation applies to the entire journey.</p>\r\n<p class=\"p1\">Case C-173/07 <em>Emirates Airlines</em>, <em>Direktion fur Deutschland v Schenkel</em> [2009] 1 Lloyd’s Rep.1 CJEU and <em>Sanghvi v Cathay Pacific Airways</em> [2012] 1 Lloyd’s Rep 46 ChD support the view that the non EU carrier should only be responsible for the sector which is delayed and which leaves from an EU airport, and is not liable for any subsequent knock-on effect delay at destination. However, there is conflicting case law on this approach and there have been many cases (particularly in the UK) which take the opposite view.</p>\r\n<p class=\"p1\">The Guidelines now address the question of connecting flights specifically, and state that compensation under EC 261 does apply in case of a passenger missing a connection outside the EU with a flight departing from an airport situated within the EU, and where the passengers arrive at their final destination more than three hours late.</p>\r\n<p class=\"p1\"><span class=\"s1\">In the Guidelines there is a section entitled ’Compensation for late arrival in the case of connecting flights‘. The Guidelines indicate that the Regulation must apply to the whole journey including connecting flights and set out the following:</span></p>\r\n<p class=\"p6\"><em>the Court takes the view that a delay must be assessed for the purposes of the compensation provided for under Article 7 of the regulation, in relation to the scheduled time of arrival the passenger’s final destination as defined in Article 2 [h] of the regulation which in the case of directly connecting flights must be understood as the destination of the last flight taken by the passenger.</em></p>\r\n<p class=\"p4\"><span class=\"s1\"> <em>In accordance with Article 3[1] [a] EC 261, passengers who missed the connection within the EU, or outside the EU with a flight coming from an airport situated in the territory of a Member State, should be entitled to compensation if they arrived at final destination with the delay of more than three hours. Whether the carrier operating the connecting flight is an EU carrier or a non EU carrier is not relevant.</em></span></p>\r\n<p class=\"p5\">Clearly, the interpretation as set out in the Guidelines is a concern for Gulf-based airlines operating connecting flights, and the EC view is that compensation does apply in case of a passenger missing a connection outside the EU when the original flight departs from an airport situated within the EU, and the passenger arrives at their final destination more than three hours late.</p>\r\n<p class=\"p1\">Thus whilst the Guidelines provide helpful clarification on many issues, for delay claims airlines need to be aware of the fact that it is being suggested that connecting flights and accumulated journey delay may be compensatable under EC 261. This could mean a spate of claims by delayed passengers for Euro 600 per passenger in the event of an ’accumulated delay‘ at the final destination if the journey commences in the EU.</p>\r\n<p class=\"p1\">The status of the Guidelines is really to assist National Enforcement bodies interpret the legislation. They are not intended to substitute the role of the national and EU court systems, but are there to give guidance. They are viewed as persuasive to the interpretation of EC 261 and should be read accordingly.</p>\r\n<p class=\"p1\"><span class=\"s2\">Although the Guidelines have been welcomed by aviation industry bodies, they are seen as a stop gap measure and it is important to note that a new Regulation to replace EC 261 was proposed by the EC in 2013 in order to address both industry and passenger concerns. We await implementation of that new substitutive Regulation in due course but, in the meantime, Gulf carriers should be aware of the new developments. Given that many of the reported cases on EC 261 emanate from the UK, all parties await the practical implications of the ’Brexit‘ vote by the UK, and whether, as a result, the UK will continue to be bound by EU court decisions in the future. Gulf carriers will await developments with interest.</span></p>'),
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	(101058,5494,'_yoast_wpseo_metadesc','This article is a review of a landmark Federal Supreme Court judgment (Appeal number 304/2016 (Commercial)) regarding ship arrests by virtue of the UAE Law. This judgment overruled the judgments of the Court of First Instance and the Court of Appeal, as the claim was filed in a procedurally unlawful way.'),
	(101059,5495,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">A company may not practice insurance brokerage in the UAE without obtaining a license from the Insurance Authority. A license is valid for one year and renewable on a yearly basis. It expires at the end of December each year. Companies wishing to obtain a license from the Insurance Authority must meet certain requirements set by the Regulations. Among those requirements, the applicant must be a company incorporated in the UAE under the Commercial Companies Law or a branch of a company incorporated in a foreign country or in a financial free zone in the UAE provided that it is licensed to practice the same types of insurance brokerage. It should also be subject to the same level of regulatory authority and have been in practice for a period not less than five years. The Insurance Authority under the regulations has the power to set additional requirements beside those stipulated in the regulations.</p>\r\n<p class=\"p1\">The technical staff of the insurance broker should also meet certain requirements set by the Regulations. The insurance Broker must have at least a general manager, operation manager, internal auditor and at least one specialized employee for each type of insurance. The Execution Rules further stipulates specific requirements for each of the said employees and the person responsible for the branch.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The insurance broker is required to submit an unconditional bank guarantee payable on demand to the Insurance Authority chairman of the board of directors. This may be liquidated fully or partially at any time in order to guarantee the settlement of the broker’s transactions and obligations arising from his practice toward the insurance companies and his customers. </span></p>\r\n<p class=\"p1\">The insurance broker must obtain an insurance policy in favour of the Insurance Authority chairman of the board of directors covering the broker’s professional liability. The value of this policy must be at least AED 2 million for companies incorporated in UAE and AED 3 million for a branch of a company incorporated in a foreign country or in a financial free zone in the UAE.</p>\r\n<p class=\"p1\">The Regulations set certain obligations which the insurance broker must comply with towards the Insurance Authority, the insurance companies and the broker’s customers. The insurance broker should follow up and collect the premiums on behalf of the insurance companies except those related to life insurance and funds accumulation operation, group health insurance, marine and air transport insurance, vessels hull and petroleum insurances.</p>\r\n<p class=\"p1\">Federal Law No. 6 of 2007 (in respect of the establishment of the Insurance Authority and Regulating the Insurance Practice) (the “Law”) defines an insurance broker as:</p>\r\n<p class=\"p1\">“The person mediating independently in insurance or reinsurance operations between the insurance/reinsurance applicant on one hand and the insurance/reinsurance company on the other, and charging, for his services, a commission from the insurance/reinsurance company with which the insurance/reinsurance policy is concluded.”</p>\r\n<p class=\"p1\">The role of the insurance broker in UAE is not different from that practiced in other jurisdictions. Insurance brokers are not responsible for the default of either the insurance companies or the customers in meeting their financial obligations. The insurance broker is only liable if the broker fails to deliver premiums paid by the customers to the insurance companies, or fails to deliver recoveries paid by the insurance companies to the customers.</p>\r\n<p class=\"p1\">Despite the fact that the laws in the UAE have defined the role of insurance brokers, in a recent case which Al Tamimi was not involved but which has come to our notice, the Dubai courts held that an insurance broker in a reinsurance brokerage transaction was liable to pay recoveries due to an insurance company from a reinsurance company. The facts of the case, as we understand them, were as follows:</p>\r\n\r\n<ul>\r\n 	<li>An Insurance company (the “Insurer”) reinsured the risks which it covers under its motor insurance policies through an insurance broker (the “Broker”) with a reinsurance company (the “Reinsurer”) which signed a cover note issued by the Broker. The Broker issued a second cover note to the Insurer with the same terms of the cover note issued to the Reinsurer and stating the name of the Reinsurer.</li>\r\n 	<li>During the currency of the reinsurance cover, the Insurer paid the due reinsurance premiums through the Broker who was transferring the said payments to the Reinsurer without delay. The Insurer also made claims to the Reinsurer through the Broker for recoveries they had paid to their insured.</li>\r\n 	<li>The Broker did follow up the recovery claims of the Reinsured with the Reinsurer, but the Reinsurer ignored all the claims and failed to meet its obligation to pay any indemnity to the Reinsured.</li>\r\n 	<li>The Reinsured filed a court case against the Reinsurer and the Broker before Dubai Court of First Instance and requested the court to oblige both companies to jointly pay to the Reinsured the amount of the indemnities due under the reinsurance contract.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\">The court of First instance appointed an accounting expert who examined the documents including the correspondence exchanged between the Broker and the Reinsured, the accounts and the cover notes. The appointed expert concluded that:</p>\r\n\r\n<ul>\r\n 	<li>The reinsurance contract (second cover note) was concluded between the Broker and the Reinsured;</li>\r\n 	<li>The exchanged correspondences prove that the Broker admitted the amount owed to the Reinsured;</li>\r\n 	<li>The Reinsurer is not liable to pay such amount to the Reinsured jointly with the Broker as the Reinsurer signed the first cover note but did not sign the reinsurance contract (second cover note).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">The Broker argued that:</p>\r\n\r\n<ul>\r\n 	<li>It met all its obligations as a broker by following up the claims in a timely manner and with due diligence;</li>\r\n 	<li>It is not obliged by the law to indemnify the Reinsured for any claim as long as it did not receive any payment from the Reinsurer in respect of such claims.</li>\r\n 	<li>The Broker may not insure or reinsure any risk as this does not comply with its license and thus it cannot be held liable to pay any indemnity payable under the reinsurance cover.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">The Court of First Instance adopted the findings of the expert and held that the Broker was liable to pay to the Reinsured the recoveries claimed under the reinsurance contract.</p>\r\n<p class=\"p1\">The Broker filed an appeal before the Appeal Court and raised the same arguments. The court appointed an insurance expert who concluded that:</p>\r\n\r\n<ul>\r\n 	<li>The relation between the Reinsured and the Reinsurer was a pure reinsurance relation.</li>\r\n 	<li>The Broker was merely acting as a broker through whom the reinsurance contract was concluded between the parties. The Broker followed up all the claims of the Reinsured but the Reinsurer failed to fulfil its obligations.</li>\r\n 	<li>It was the duty of the Reinsurer to pay the claimed amount.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\"><span class=\"s2\">However the Appeal Court rejected the findings of the expert and upheld the Court of First Instance judgement, adopting the same reasons as those detailed in the Court of First Instance’s expert’s report. </span></p>\r\n<p class=\"p4\">The Broker appealed the judgement before the Cassation court. The court rejected the appeal and confirmed the Appeal Court judgment. The reinsurance contract (second cover note) was concluded between the Broker and the Reinsured. Although the Reinsurer had signed the first cover note, it was the Broker who was liable since he issued the second cover note and the signature of the Reinsurer on the first cover note did not constitute an acceptance of coverage of the insured risks.</p>\r\n<p class=\"p6\"><span class=\"s3\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">The findings of the Dubai Courts in this case are surprising. It is likely that the court applied general rules of contract and did not take into account the nature of the reinsurance practice followed by the brokers where cover is made by virtue of a cover note. This case is the first of its kind in the UAE and so its conclusions cannot be said to have a lot of weight. Several cases of the same kind have to be heard before the UAE courts to establish a rule on the liability of the insurance brokers for reinsurance claims where reinsurance cover is made through issuing two separate cover notes. It is hoped that future decisions will depart from the findings in this case and uphold the industry practice.</p>'),
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	(101040,5494,'pageSummary','This article is a review of a landmark Federal Supreme Court judgment (Appeal number 304/2016 (Commercial)) regarding ship arrests by virtue of the UAE Law. This judgment overruled the judgments of the Court of First Instance and the Court of Appeal, as the claim was filed in a procedurally unlawful way.'),
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	(101038,5494,'content_description','This article is a review of a landmark Federal Supreme Court judgment (Appeal number 304/2016 (Commercial)) regarding ship arrests by virtue of the UAE Law. This judgment overruled the judgments of the Court of First Instance and the Court of Appeal, as the claim was filed in a procedurally unlawful way. '),
	(101010,5493,'_content','field_59b649b5c8b2b'),
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	(101013,5493,'content_description','Repossession of aircraft in the United Arab Emirates is a rare event. Gulf Carriers invariably are ‘clean-sheet business plan’ model airlines with modern fleets, supported by sound aircraft financing, leasing, and ownership structures, and the necessity for a creditor to repossess an aircraft is extremely rare. Nevertheless, in circumstances where an airline operator fails in its obligations to pay rent under an aircraft finance lease or continues to default in its obligations to an aircraft lessor or owner of the aircraft, the question arises as to whether there is recourse and remedy in the UAE jurisdiction. It is fair to say that the UAE courts have been reluctant in the past to grant repossessory relief to lessors, but a recent case dealt with by Al Tamimi has demonstrated that UAE courts will grant such relief in certain circumstances. '),
	(101014,5493,'_content_description','field_59b641c07f473'),
	(101015,5493,'pageSummary','Repossession of aircraft in the United Arab Emirates is a rare event. Gulf Carriers invariably are ‘clean-sheet business plan’ model airlines with modern fleets, supported by sound aircraft financing, leasing, and ownership structures, and the necessity for a creditor to repossess an aircraft is extremely rare. Nevertheless, in circumstances where an airline operator fails in its obligations to pay rent under an aircraft finance lease or continues to default in its obligations to an aircraft lessor or owner of the aircraft, the question arises as to whether there is recourse and remedy in the UAE jurisdiction. It is fair to say that the UAE courts have been reluctant in the past to grant repossessory relief to lessors, but a recent case dealt with by Al Tamimi has demonstrated that UAE courts will grant such relief in certain circumstances.'),
	(101016,5493,'_pageSummary','field_59e59b307dec8'),
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	(101033,5493,'_yoast_wpseo_metadesc','Aircraft leasing is the most popular transaction structure in the aviation industry and it is important at the outset of any transaction to establish the rights and remedies available to aircraft lessors in the event of default.'),
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	(101034,5494,'content','October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Nature of the Claim</strong></p>\r\n<p class=\"p2\">On 18 June 2015, a ship agency (’Claimant‘) obtained an arrest order over a ship (’Ship‘) which was at Khorfakkan Port at the time. The Claimant based the arrest order application on an agency agreement. On 1 July 2015, the Claimant brought a claim before the Khorfakkan Court of First Instance against the Ship (’Defendant‘) seeking the sum of USD5,323,869 (or its equivalent, being AED19,565,219) and legal interest at the rate of 9% as of the date the claim was made until full payment. Interestingly, the Clamant did not include the Ship’s owners in the claim.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Claimant claimed that in mid-2013, the Ship was in peril (at risk) while it was at sea in the territorial waters of the UAE. The Ship’s master requested the Claimant to rescue the Ship and guide it into Khorfakkan Port and allow her to enter Khorfakkan Port. Therefore, the Claimant did whatever it could do to rescue the Ship as per the agreement, as well as tugged her into Khorfakkan. Moreover, the Claimant claimed that on 20 January 2014 a ship agent agreement was signed between the Ship’s master and the Claimant, where the Claimant was obliged to provide the Ship with support, food, supplies, medication, bunker, oil, money advances, port dues and any other fees and charges concerning the port authority. Although the Claimant carried out all the required support works for the Ship and her marine crew, and paid all the necessary fees and charges (which amounted to USD5,323,869), the Defendant has still has not paid back the said amount to the Claimant.</span></p>\r\n<p class=\"p2\"><strong>The Court of First Instance</strong></p>\r\n<p class=\"p4\">The Ship’s owners did not appear before the Khorfakkan Court of First Instance. On 31 August 2015, the Court handed down its judgment by holding the Defendant liable to pay the Claimant the sum of USD5,323,869 (or its equivalent, being AED 19,565,219) for the all support work that was carried out for the Ship, as well as AED500,000 as damages for breaching obligations and validating the arrest order over the Ship.</p>\r\n<p class=\"p2\"><strong>The Court of Appeal</strong></p>\r\n<p class=\"p2\">On 29 September 2015, the Ship’s owners challenged the judgment of the Court of First Instance before the Khorfakkan Court of Appeal. The Ship’s owners argued that since a ship is deemed to be moveable property according to Article 12 of UAE Federal Law No. 26 of 1981 (Maritime Commercial Law) (’Law‘), the Ship does not have a legal capacity to be sued and the Claimant should have filed the claim against the Ship’s owners rather than the Ship herself. Accordingly, the Claimant’s claim should be dismissed.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In addition, the Ship’s owners contended that the documents that were filed at Court by the Claimant were either photocopies and or produced by the Claimant, as a result they should not be used as evidence in this claim according to Article 45 of Federal Law No. 11 of 1992 (Civil Procedures Law). Therefore, the Ship’s owners argued, the Claim should be rejected for lack of evidence.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Alternatively, the Ship’s owners argued, the claimed amount was exaggerated and did not reflect the true value of the support work that was carried out for the Ship. Accordingly, the amount awarded should be reduced.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> On 14 March 2016, the Khorfakkan Court of Appeal rendered its judgment and amended the judgment of the Court of First Instance by holding the Defendant liable to pay the Claimant the sum of AED12,223,158 for the support work that was carried out for the Ship. Apart from the amendment of the amount, the judgment of the Court of First Instance was upheld.</span></p>\r\n<p class=\"p2\"><strong>The Federal Supreme Court</strong></p>\r\n<p class=\"p2\">On 12 May 2016, the Ship’s owners filed an appeal before the Federal Supreme Court in Abu Dhabi. The Ship’s owners argued that the Claimant’s claim should be dismissed on the following grounds:</p>\r\n\r\n<ul>\r\n 	<li>The claim was not filed against the Ship’s owners but rather filed unlawfully against the Ship herself, notwithstanding that she does not have legal capacity to be sued according to Article (12) of the Law; and</li>\r\n 	<li>The Claimant did not file the claim in the required form under Articles 119 and 120 of the Law.</li>\r\n</ul>\r\n<p class=\"p1\"><span class=\"s1\">Article 12 of the Law states: </span></p>\r\n<p class=\"p6\"><span class=\"s1\"><em>A vessel shall be deemed to be moveable property, to which the provisions pertaining to moveable property shall apply, save insofar as there is any stipulation in this Law making any provisions relating to real property applicable thereto.</em></span></p>\r\n<p class=\"p2\">Article 119 of the Law states:</p>\r\n\r\n<ol>\r\n 	<li><em>Copies of the notice of arrest shall be delivered to the master of the vessel or his deputy thereon, a second copy to the relevant maritime authority in the port in which the arrest is effected to prevent the vessel from sailing, and a third copy to the Registration Bureau in the said port.</em></li>\r\n 	<li><em>If the vessel is registered in the State, the Registration Bureau of the port in which the arrest is effected, whether within the State or abroad, shall notify the vessels Registration Bureau of the arrest for endorsement thereof on the register.</em></li>\r\n</ol>\r\n<p class=\"p2\">Article 120 of the Law states:</p>\r\n\r\n<ol>\r\n 	<li><em>The notice of arrest shall contain a summons to attend before the relevant civil court in the area of which the arrest is effected for adjudication on the validity of the debt, of whatever amount.</em></li>\r\n 	<li><em>A time shall be fixed for the hearing not later than thirty days from the date of the notice of arrest. The court shall speedily enquire into the claim, and the time shall not be further extended.</em></li>\r\n</ol>\r\n<p class=\"p2\">Furthermore, the Ship’s owners argued that the claimed amount was exaggerated and did not reflect the true value of the support works that were carried out to the Ship. Accordingly, the amount of the award should be reduced.</p>\r\n<p class=\"p1\"><span class=\"s1\"> On 29 June 2016, the Supreme Court in Abu Dhabi issued its judgment and decided to dismiss the Claimant’s claim, as it was filed against the Ship (the Defendant) and not the Ship’s owners, and it was not filed in the required form under Articles 119 and 120 of the Law.</span></p>\r\n<p class=\"p2\"><strong>Comment</strong></p>\r\n<p class=\"p2\">It is established that any claim arising out of or in connection with a ship must be filed against the ship’s registered owners and not against the ship itself, otherwise the claim will be dismissed, as ships do not have legal capacity to be sued.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Furthermore, the procedures set out in Articles 119 and 120 of the Law have not been followed by the UAE Courts previously. However, this Supreme Court judgment suggests that there has been a change in approach and the procedures set out in Articles 119 and 120 of the Law will start to be applied from now on.</span></p>'),
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