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	(91113,4953,'content','June 2014\r\n\r\n<hr />\r\n\r\nFor companies registered in either Qatar and or the Qatar Financial Centre (“QFC”), Law 5 of 2002 (the “Commercial Companies Law”) and the QFC Contract Regulations (Regulation 4 of 2005)  provide us with some rules regarding corporate authority in Qatar.\r\n\r\nIn Qatar, any binding corporate contract needs an “offer” and “acceptance of offer” evidenced by the company’s or its representative’s signature (what is known as an “expression of will”). Article 65 of Law 22 of 2004 stipulates, inter alia, that “the expression of will shall be by word, writing, common used sign, actual exchange denoting consent or by any other position which the circumstances leave no doubt of the true intention therefrom”.\r\n\r\nAn irrevocable binding authority lies upon the company in some specific cases.\r\n\r\n<strong>Express or implied authority </strong>\r\n\r\nWhen the approval to bind a company is explicit, the authority is known as “express authority”.\r\n\r\nSuch an authority to bind a company can be granted by the written articles of association (by-laws) or other approved corporate resolutions. It is often granted to the general manager (managing director) and/or the chairman.\r\n\r\nAs for limited liability companies, Article 240 of the Commercial Companies Law provides that “a company’s director enjoys the absolute authority in administering it, unless his authority is determined by the company’s contract [i.e. the articles of association]. The director’s acts are binding upon the company …”\r\n\r\nTherefore, a company’s director has full authority and all powers necessary to act on its behalf in the ordinary course of business, unless otherwise stated in the articles of association. Any action taken by the director will bind the company provided that he discloses that such acts are made by him in such capacity.\r\n\r\nWe quite often see the terms of such authorities expressed in the following manner “The director shall have the widest powers to manage the company, its business operations and administration and to carry on all activities that may be necessary or appropriate according to its objects and purposes. He shall without limitation: manage the business, financial and other affairs of the company; represent the company and sign all documents that may be required or necessary; execute and perform for the company in its name all things which shall be necessary or desirable concerning the matters herein described as freely as the company could do for the attainment of its objects”.\r\n\r\nRegarding joint-stock companies, Article 102 of the Commercial Companies Law provides that “The chairman of the board of directors shall be the president of the company and shall represent the company with regard to third parties and the judiciary; and he shall implement decisions of the Board and abide by its recommendations”.\r\n\r\nAs for single-person companies, Article 260 bis 6 of the Commercial Companies Law stipulates that “the owner of the capital shall manage the company. He shall be entitled to appoint one or more managers to represent the company before third parties and judicial authorities and be responsible for its management before the owner”.\r\n\r\nThese approvals may be granted with limitations placed upon their scope or upon the level of the authority. This is often referred to as a “signature authority” or an “authority matrix”.\r\n\r\nExpress authority need not be in writing, it can be given orally to do a particular task or to represent with authority to bind the company.\r\n\r\nThe other means by which authority can be determined is through what is known as “implied authority”. Implied authority is usually a result of a pattern of approvals to perform certain tasks, or to represent with authority to bind a company. That results in an understanding of authority to perform similar functions in the future. Approval to do a certain thing and to do so over and over without seeking additional confirmation each time the task arises. Over time, this becomes an implied authority.\r\n\r\nUnder article 15 (5) of the QFC Companies Regulations 2005 “a document is executed by an LLC if signed by two directors, or one director and the secretary”.\r\n\r\n<strong>Agency</strong>\r\n\r\nThe principle of agency is consensual relationship created by contract or by law where one party (the Principal) grants authority for another party (the Agent) to act on behalf of and under the control of the Principal to deal with a third party. An agency relationship is fiduciary in nature, and the actions and words of an agent (a representative) exchanged with a third party bind the principal (here the company)”.\r\n\r\nUnder article 61 of the QFC Contract Regulations, giving authority to agents is defined as “the relationship which results from the consent of one person (the Principal) that another Person (the Agent) may act on behalf of the Principal and from the consent of the Agent to act on behalf of the Principal”.\r\n\r\n<strong>Apparent or ostensible authority</strong>\r\n\r\nSeparate from “actual” authority (express or implied) is “apparent or ostensible” authority. This source of authority is different from actual authority in that apparent authority is viewed  by another party. How the other party to the contract views the representations by the company’s members will determine whether the contract will be considered legally binding.\r\n\r\nIf the third party can be seen as reasonably viewing the member’s representations and actions as those of the company, then it is more likely that such reliance will result in a binding contract or obligation. Apparent authority can create unexpected risk for a company because the company is not in control of how the third party views the facts that created the authority to bind. This principle is readily accepted by common law courts and in other civil law jurisdictions the concept has been introduced to various civil codes, but this is still not applicable in Qatar. Therefore it is likely only to be accepted by QFC courts.\r\n\r\n<strong>Power of Attorney</strong>\r\n\r\nBinding authority can be given through a power of attorney (“POA”), being a written authorisation to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorising the other to act is the principal (grantor or donor) of the power. The one authorised to act is the agent.\r\n\r\nThe POA has the role of granting the appointed person the right to represent the duly authorised person who grants the power, as well as undertake actions on behalf of the latter (or “by proxy”). A POA is necessary when the authorised person cannot attend the completion of formalities in certain transactions or any situations that require signing papers or legal representation.\r\n\r\nThe authority to bind a company can be limited in certain circumstances.\r\n\r\n<strong>Article 68 companies limitations</strong>\r\n\r\nA company is established pursuant to Article 68 of the Commercial Companies Law when there is an interest of the government or a government instrumentality in the company. Article 68 allows a company to be exempted from the provisions of the Commercial Companies Law where such law conflicts with the arrangements and agreements made upon its foundation as well as with the provisions provided by its company contract and by-laws. Therefore, any provision in the Commercial Companies Law can be overruled by a provision in the Articles of Association of the company.\r\n\r\nFor instance, the law provides that the chairman can bind the company whereas an article in the by-law provides that his authority is subject to the board of directors’ approval. When the second condition is not met, the signature of the chairman will not bind the company as there was a lack of authority of the chairman to enter into such contract.\r\n\r\n<strong>Excess or lack of authority </strong>\r\n\r\nArticle 87 (1) of the Civil Code provides “If a person concludes a contract on behalf of another without representation, or he has exceeded in concluding that contract the limits of his representation, the effects of this contract shall not attach to the principal unless ratified in accordance with law”.\r\n\r\nNot only is any contract entered into by a chairman without proper authority not binding upon a company but under Article 112 of the Commercial Companies Law, “The Chairman and Board members shall be jointly liable to compensate a company, its shareholders and third parties for damages resulting from deceit or misuse of power or violation of the provisions of this Law or the company’s by-laws and for any error in management. Any term to the contrary shall be void”.\r\n\r\nMoreover, article 87 (2) of the Civil Code provides that if “the dealing has not been ratified, the other contracting party may pursue whoever has used the capacity of representation or exceeded its limits for compensation, unless he had known of the non-existence of the representation or the exceeding of its limits, or should have known of the same”.\r\n\r\nClearly in Qatar, there are different means by which one can ascertain whether a company will be bound to an obligation. The existence of two distinct jurisdictions within Qatar implies that parties have to be aware of subtle differences between the two when it comes to ascertaining whether a contract will be binding or not upon such companies. As always, diligence is recommended when dealing with any company with which one is entering into legal relations.'),
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	(91136,4954,'content','June 2014\r\n\r\n<hr />\r\n\r\nIn this article, we provide some further background to the role of the Credit Bureau, and comment on some of the data protection considerations addressed in the related law and regulations.\r\n\r\nAl Etihad Credit Bureau was established in 2010 pursuant to Federal Law No. 6 of 2010 (Credit Information Law). The recent approval of Cabinet Resolution No. 16 of 2014 (Regulations) provides greater visibility of some of the operational aspects of the Credit Bureau.\r\n\r\nThe Credit Bureau was established to provide a single source of reliable data regarding credit information relating to natural and legal persons in the UAE. The basic intention is to enable lenders to better assess the credit-worthiness of prospective borrowers, and to provide a mechanism for limiting the ability of borrowers to take on unserviceable levels of debt.\r\n\r\nCommercial banks and financial institutions in the UAE are required to provide the Credit Bureau with the credit information it requests. The Credit Bureau is entitled to specify the form in which such data is to be provided. The release of such information to the Credit Bureau in accordance with the Credit Information Law and Regulations will not be considered a breach of confidentiality.\r\n\r\nCredit information reports issued by the Credit Bureau will include financial details of the concerned person (including details of any assets burdened with any types of pledge or guarantee), information on the concerned person’s failure to pay any amount to the information provider, and court decisions involving the concerned person. Reports will not include the likes of the value of mortgaged assets, details of the concerned person’s investments or amounts deposited with the information provider, or the information provider’s credit rating assessment of the concerned person.\r\n\r\nThe gathering of credit information raises a number of concerns from a data protection perspective. The Credit Information Law and its Regulations seek to address these in a number of ways, examples of which include:\r\n<ul>\r\n 	<li>a prohibition on the collection and circulation of data or details that relate to a person’s private life, opinions, beliefs or health condition;</li>\r\n 	<li>a requirement to obtain the consent of the data subject before issuing any credit information reports relating to such person;</li>\r\n 	<li>a requirement to use information gathered only for the purposes for which it has been provided;</li>\r\n 	<li>an obligation on recipients of credit information to keep such information confidential;</li>\r\n 	<li>an obligation on the Credit Bureau to use modern systems to maintain credit information, and to implement suitable security and information security mechanisms, and</li>\r\n 	<li>the right of the data subject to request the correction of errors relating to his or her credit information.</li>\r\n</ul>\r\nPursuant to the Credit Information Law, the Credit Bureau has an exclusive right to request, collect, keep, analyse, classify, use and circulate financial data relating to the financial obligations of any person. There is a prohibition on any other person or entity conducting such operations. On its face, this provision will ensure that credit information collection and reporting is centralised with a single entity; in a small country such as the UAE this approach seems practical.\r\n\r\nThe Credit Information Law penalises a number of offences. These include penalties of up to two years’ imprisonment, a fine of AED 50,000, or both, for anyone who reveals credit information other than as authorised by the Credit Information Law or its Regulations, and the same penalty for anyone who obtains credit information without obtaining the approvals required pursuant to the Credit Information Law or Regulations, or by using fraudulent methods or incorrect information. Violation of any provision of the Credit Information Law, where a specific penalty is not provided, is also an offence attracting imprisonment, a fine of AED 10,000, or both.\r\n\r\nWith the cooperation of commercial banks and financial institutions, the Credit Bureau is expected to fulfil an important function in the UAE economy, by providing a means by which lenders can manage their risk, and by reducing the number of borrowers over-exposed to unserviceable levels of debt.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on data protection issues, including in the context of financial services. For further information about these matters, please contact Nick O’Connell – n.oconnell@tamimi.com'),
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	(91152,4954,'_yoast_wpseo_metadesc','Recent media reports in the UAE have indicated that Al Etihad Credit Bureau, the UAE’s new Federal consumer credit bureau, is significantly closer to being operational.'),
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	(91167,4957,'content','July - August 2014\r\n\r\n<hr />\r\n\r\n<strong>Case Facts &amp; Background </strong>\r\n\r\nThe Claimant, a sole establishment, filed an action before the Dubai Court of First Instance against another sole establishment, the Defendant, requesting the court to establish its ownership of a trademark and further to prevent the Defendant from using the trademark in the UAE pursuant to the Claimant’s ownership rights to the trademark after being registered in Bahrain and Jordan. The Claimant had applied to register the trademark in the UAE but was surprised to learn that the Defendant had already registered the mark in its own name despite the Claimant’s prior use of the trademark in the UAE.\r\n\r\nThe Defendant, in an attempt to prevent the Claimant from infringing the trademark and using it in the UAE, filed a counterclaim alleging ownership rights to the trademark based on its prior  use of the mark in the UAE .\r\n\r\n<strong>Court of First Instance</strong>\r\n\r\nThe Court of First Instance dismissed the claim and accepted the counterclaim filed by the Defendant.\r\n\r\n<strong>Court of Appeal</strong>\r\n\r\nThe Claimant appealed the judgment to the Court of Appeal who overturned the lower court’s judgment. The Court of Appeal confirmed  the Claimant’s entitlement to own the trademark in the UAE and highlighted the Defendant’s lack of entitlement to use the trademark in the UAE. Further, the Court of Appeal ordered that the Defendant’s trademark be deregistered and directed the Defendant to stop contesting the Claimant’s use of the trademark.\r\n\r\nThe Court of Appeal based its decision on several points, notably:\r\n<ul>\r\n 	<li>The Claimant’s prior use of the trademark in the UAE. The Court of Appeal found that the Claimant had, on 14 December 2000, set up and registered a website, and that the Claimant’s use of the website dated back to 16 July  2001, well before the first invoice was issued for the Defendant’s brochure on 15 October 2001. The Court accepted that the website was used to promote the Claimant’s services in the UAE. .</li>\r\n 	<li>The Claimant used the Trademark in question through advertisements in newspapers, magazines and catalogues and through its dealings with banks as well as on price lists and invoices, before the Defendant registered the Trademark in its name.</li>\r\n</ul>\r\nThe Defendant appealed the Court of Appeal’s judgment to the Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nBefore the Court of Cassation the Defendant contended that the Court of Appeal erred in its decision and misapplied the law. The Defendant based its appeal on the following grounds:\r\n<ol>\r\n 	<li>The Court of Appeal erred when it relied on an expert’s report which had confirmed that the Claimant had previously used the trademark since the establishment and registration of its website on 14 December 2000. The expert report stated that the Claimant had promoted its services in the UAE through this website since 16 July 2001, before the issuance of the Defendant’s first invoice for its brochure on 15 October 2001 that incorporated the Trademark. The Defendant argued that the Court of Appeal was wrong to accept the findings of the expert report.</li>\r\n 	<li>The Court of Appeal erred by ignoring the fact that trademark ownership is determined by prior use in the UAE rather than its registration in other jurisdictions, unless the trademark is used in the UAE. Further, the Defendant contended that a trademark announcement does not imply prior use as such announcement must be coupled with actual use of the mark or the service which the trademark distinguishes, whereas it is confirmed that the website clearly confirms that the the Claimant had no branch in Dubai when the website was set up and registered. The Defendant argued that the Claimant had asserted on its website that the branch would open on 4 August 2004. The Defendant contended that the first invoice for its brochure dated 24 March 2001 was before the establishment of the website on 16 July 2001.</li>\r\n</ol>\r\nThe Court of Cassation dismissed the appeal and upheld the ruling of the Court of Appeal. In its decision, the Court of Cassation confirmed the following principles:\r\n<ul>\r\n 	<li>The task of the court appointed expert was not to reveal the similarities or differences between the two Trademarks but to determine which of the parties had prior use of its mark in the UAE, which falls under the expert’s competence.</li>\r\n 	<li>A person who registers a trademark is considered to be the exclusive owner. When a mark is in continuous use for five years after registration, the rights in the mark become incontestable provided no legal action contesting ownership was pursued and won.</li>\r\n 	<li>A trade name may be used as a trademark or part of a trademark. It is further settled that a trademark used in relation to goods is different from a trademark used in relation to services. A trademark can be used in relation to goods by displaying the goods or images of the goods or by virtue of their normal presence in public places or the like such that the goods, with their trademark, become something tangible to consumers. This is not possible for services which, by nature, are difficult to display and offer in the same way to the public.</li>\r\n 	<li>The use of a trademark online, particularly a service mark, is evidence of use if the electronic address is actually a means for using and advertising the trademark in the UAE. The Court of Cassation set out a number of principles and standards as guidelines on the matter.</li>\r\n</ul>\r\n<ol>\r\n 	<li>It is sufficient for a trademark to be used in relation to services that it be advertised in print or visual media, including the Internet.</li>\r\n 	<li>A person who creates and registers an electronic address with the relevant authorities obtains his own address which he is entitled to use in a particular manner and thus oblige others to respect.</li>\r\n</ol>\r\nAn electronic address serves the same function as a trademark in terms of advertising and promoting the enterprise and its associated services and helping the consumer to identify the services from the web site. On that basis, the mere creation and registration of an electronic address constitutes use of the distinguishing marks of the enterprise and the trademark for the associated services in the context of the Internet.\r\n\r\nThe Court of Cassation held that the expert report confirmed that on 14 December 2000 the Claimant had set up a website on the Internet and confirmed that on 16 July01 the Claimant used the web site to advertise its hair and nail care services before the Defendant’s first invoice was issued for the brochure on 15 October 2001 which contained the trademark as part of its trade name.\r\n\r\nThe Court of Cassation therefore upheld the Court of Appeal judgment and confirmed that the Claimant had prior use of the trademark and was entitled to own the trademark in question. The Court of Cassation confirmed that although the Claimant had only set up its Dubai branch in 2004, the Claimant had started advertising its trademark from 16 July 2001 through its website, enabling consumers to avail the service online and, that this is sufficient for it to have used the Trademark.'),
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	(91193,4958,'content','July - August 2014\r\n\r\n<hr />\r\n\r\nThe UAE consists of seven Emirates. Each Emirate has its own courts, but they can be divided into those Emirates which have their own court systems (Abu Dhabi, Dubai and Ras Al Khaimah) and those that have local courts which are part of the Federal Court system (the other Emirates of Sharjah, Fujairah, Umm al-Quwain, and Ajman), and which are therefore referred to as ‘Federal Courts’. Abu Dhabi is unique in that it has both local and Federal Courts, although the Federal Courts are used in limited circumstances.\r\n\r\nThe jurisdiction of these courts is set out in two legal instruments: the UAE Constitution, and the UAE Civil Procedure Law. In commercial matters it can often be the case that the party claiming has a choice as to which Emirate to file the case. This article considers when and how this choice can be exercised.\r\n\r\n<strong>Sources of Jurisdiction – The Constitution </strong>\r\n\r\nThe Constitution of the United Arab Emirates provides the legal and political framework for the operation of the United Arab Emirates as a federation of seven emirates.\r\n\r\nThe UAE Constitution permits each Emirate to have its own legislative body and judicial authority (see Articles 94 – 109). The Emirates of Sharjah, Fujairah, Umm al-Quwain, and Ajman remain part of the Federal judiciary authority, but the Emirates of Abu Dhabi, Dubai and Ras Al Khaimah have set up their own judicial authorities. This means that essentially there are four judicial authorities in the UAE: Abu Dhabi, Dubai and Ras Al Khaimah and the Federal judicial authority covering Sharjah, Fujairah, Umm al-Quwain, and Ajman. Abu Dhabi also contains Federal Courts but these are only used in limited circumstances.\r\n\r\nThe Constitution explains that there are some disputes that must be heard at a Federal level (by the Federal (also known as ‘Union’) Supreme Court) and not at a local Emirate level. These are detailed at Articles 99 and 102 of the Constitution. Examples include disputes between the Emirates themselves regarding their jurisdiction, disputes concerning the interpretation of the Constitution, and criminal matters that relate to the security of the state. All of other matters can be dealt with by the local Emirate courts.\r\n\r\nArticle 105 of the Constitution allows that it is possible, by federal law, for all or part of a local Emirate court’s jurisdiction to be referred to the Federal Courts. However it would not be possible for a local Emirate court to take jurisdiction away from the Federal Court.\r\n\r\n<strong>Sources of Jurisdiction – Civil Procedure Law </strong>\r\n\r\nSection 3 of the UAE Civil Procedure Law defines the jurisdiction of the local UAE courts. The main provision for commercial disputes is Article 31(3) which sets out four circumstances in which a court may have jurisdiction:\r\n\r\n‘In commercial matters jurisdiction shall be vested in\r\n<ol>\r\n 	<li>the court in whose area the defendant has his domicile or</li>\r\n 	<li>the court in whose area the agreement was made or</li>\r\n 	<li>was performed in whole or in part or</li>\r\n 	<li>in the court in whose area the contract should have been performed.’</li>\r\n</ol>\r\nThis means that for commercial matters it may be the case that the Claimant will have a choice as to which court to bring a claim. If the defendant is domiciled in Ajman but the agreement was made in Dubai, the Claimant may bring the claim either in Ajman or Dubai.\r\n\r\n<strong>Contracting Out</strong>\r\n\r\nA significant amount of confusion arises from Article 31(5) of the Civil Procedure Law. This provision states that save in certain situations detailed in articles 32 and 34-39 (such as property issues, insurance claims, inheritance matters), it is possible for parties to agree on the jurisdiction of a specified court, in which case that court will have jurisdiction or the court where the defendant is based.\r\n\r\nTo the casual observer Article 31(5) may suggest that parties can choose any Emirate court for their dispute. In truth however, the position is more limited because of how this article interacts with article 104 of the Constitution and that fact that some Emirates have their own judicial authorities:\r\n<ol>\r\n 	<li>Article 104 of the Constitution states that local courts have jurisdiction ‘in all judicial matters not assigned to the Federal Courts under the Constitution’.</li>\r\n 	<li>This jurisdiction is, being defined in the Constitution, a matter of public policy, and cannot be transferred or excluded by the agreement of the parties.</li>\r\n 	<li>Therefore if a local court does not have jurisdiction under Article 31(3), it is not possible for the parties to confer jurisdiction on the court as it would be taking the jurisdiction away from one of the courts.</li>\r\n 	<li>The exception is with the courts that form part of the Federal judicial authority (i.e. Sharjah, Fujairah, Umm al-Quwain, and Ajman). Since these courts are all part of the same judicial authority, parties can decide which of these courts to use.</li>\r\n</ol>\r\nThese issues can be illustrated by way of the following examples:\r\n\r\n<strong>Example 1:</strong>\r\n\r\nCompany A sells 100 bricks to Company B. Both companies are in Sharjah and the agreement is performed in Sharjah. Any agreement that the court of Dubai has jurisdiction over any dispute would be void because the parties cannot confer jurisdiction on the Dubai courts (a separate judicial authority) where it otherwise would not have any jurisdiction.\r\n\r\n<strong>Example 2:</strong>\r\n\r\nCompany A sells 100 bricks to Company B. Both companies are in Sharjah and the agreement is performed in Sharjah. Any agreement that the court of Ajman has jurisdiction over any dispute would be acceptable because although Ajman would not otherwise have jurisdiction, it is part of the same judicial authority as Sharjah (i.e. the Federal judicial authority).\r\n\r\n<strong>Example 3:</strong>\r\n\r\nCompany A sells 100 bricks to Company B. Both companies are in Sharjah but the agreement is performed in Dubai. Any agreement that the court of Dubai has jurisdiction over any dispute would be acceptable because Dubai already has jurisdiction under Article 31(3) of the Civil Procedure Law.\r\n\r\n<strong>Example 4:</strong>\r\n\r\nCompany A sells 100 bricks to Company B. Both companies are in Dubai but the agreement is performed in Ras Al Khaimah. Any agreement that the court of Sharjah has jurisdiction over any dispute would be void because the parties cannot confer jurisdiction on the Sharjah courts (a separate judicial authority) where it otherwise would not have any jurisdiction.\r\n\r\n<strong>Case Law</strong>\r\n\r\nThe basic principles discussed above have been repeatedly stressed by all local courts in the UAE.\r\n\r\nIn Federal Supreme Court Appeal No.137 of Judicial Year 11 (21 January 1990), the Federal Supreme Court considered the separate judicial authority in Dubai and explained that\r\n\r\n“Pursuant to Article 104 of the Constitution, the Emirate of Dubai has retained judicial authority over its local courts which are accordingly competent to hear cases within the territory of the Emirate of Dubai and their decisions would not be subject to any form of challenge before the Federal Courts. The allocation of competence on court cases between the federal courts and local courts in Dubai is an issue of functional state jurisdiction that defines the competence of the various judicial bodies of the UAE and as such is related to public policy.”\r\n\r\nEqually in Dubai Court of Cassation Civil Appeal No. 48 0f 2004 (24 October 2004), the Dubai Court of Cassation found that:\r\n\r\n“This Court has consistently held that the Dubai Courts represent a judicial system that is independent from the federal judicial system in the UAE and that the jurisdiction of the Dubai Courts extends to all disputes in the Emirate other than federal disputes of the special nature described in Article 102 of the Constitution. Such courts must abide by the limitations imposed on their jurisdiction and may not actively or passively transgress those limitations. They may not give up their jurisdiction or oust the jurisdiction of another national court. Such jurisdiction, being constitutionally conferred, is a rule of public policy and parties cannot contractually agree to depart from it.”\r\n\r\nFor similar reasons, in Dubai Court of Cassation Property Appeal No.58-2009 (14 March 2010), the Dubai Court of Cassation stressed that ‘an agreement between the parties to apply the laws of the Emirate of Dubai does not by itself confer jurisdiction upon its courts’. The court’s jurisdiction was conferred by the constitution and could not be  conferred or ousted by the agreement of the parties.\r\n\r\nBy way of a final example, in Abu Dhabi Court of Cassation Commercial Appeal No.1057/3/2009 (25 November 2009), the Abu Dhabi Court of Cassation stated that:\r\n\r\n“The Dubai Courts’ position as a judicial authority that is independent from the federal judicial system entails that their jurisdiction extends to all disputes in the Emirate other than federal disputes described in Article 102 of the Constitution. Such jurisdiction is positively or negatively related to public policy and may not be considered as international or local jurisdiction nor may any agreement be made to the contrary. It is further settled that the boundaries of each Emirate represent the scope of venue jurisdiction of the local judicial authorities. Each court must therefore abide by its own jurisdiction which it may not transgress, actively or passively.”\r\n\r\n<strong>The DIFC Courts</strong>\r\n\r\nThe DIFC Courts are courts of Dubai but have a specially defined jurisdiction to deal with civil and commercial disputes relating to the Dubai International Financial Centre. The Courts’ jurisdiction is not defined in the UAE Civil Procedure Law, but is set out primarily in Dubai Law 12 of 2004.\r\n\r\nIn 2011 the jurisdiction of the DIFC Courts was widened so that claims with no connection with the DIFC could be heard by the DIFC Courts if both parties agreed in writing to submit to the Courts’ jurisdiction. The question then arises as to whether this amendment is consistent with what was explained above.. This is an important issue which will be discussed in a forthcoming Law Update article.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nParties doing business in the UAE need to be aware of how effective any jurisdiction clause they place in their contract may be. This can only be determined by a thorough analysis of the particular agreement, and a robust understanding of how the various jurisdictions and judicial authorities in the UAE inter-relate. Essentially, in relation to commercial matters parties can only select a particular local court if that court would have jurisdiction under the Civil Procedure Law in any event.\r\n<div></div>'),
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	(91214,4959,'content','July - August 2014\r\n\r\n<hr />\r\n\r\nIn many jurisdictions arbitration clauses can be incorporated by reference. For example, although the main commercial terms will be set out in one agreement, certain standard terms will be incorporated by reference to a second document, and these standard terms may include an arbitral agreement.\r\n\r\nUnder UAE law however arbitration is viewed as a special form of dispute resolution which requires parties to clearly evidence that they both consent to the process in writing. This is because by agreeing to arbitration parties are waiving their right to refer the dispute to court. UAE law will not allow a party to lose this right unless there is clear evidence that the party consciously chose to waive it by signing an arbitration clause.\r\n\r\nIncorporating an arbitration clause by reference to the terms of another document is therefore problematic because will give rise to the possibility that party will sign the main document without being fully aware of the arbitration clause that exists in the standard terms being incorporated by reference.\r\n\r\nIn Dubai Court of Cassation case in 2012 (Real Estate appeal 153 of 2011, issued on 19 February 2012) the Court explained on what conditions arbitration clause might be incorporated by reference.\r\n\r\n<strong>Background </strong>\r\n\r\nThe parties had entered into an agreement for the sale of land. The Purchaser brought a claim before the Court of First Instance seeking the recovery of its paid instalments due to an alleged breach of the agreement by the seller.\r\n\r\nAt the Court of First Instance the Seller applied to the case dismissed on the basis that there was a valid arbitration clause. The main sale agreement that was signed by the parties contained a clause that stated that the Seller’s general terms and conditions were incorporated into the main agreement. These general terms and conditions were attached to the main agreement and contained an arbitration clause. When the main agreement was signed the Purchaser signed the main agreement in full, and initialled the appended terms and conditions.\r\n\r\nThe First Instance Court dismissed the Seller’s argument and directed the Seller to refund the Purchaser with the paid instalments along with interest.\r\n\r\nThe Seller appealed to the Dubai Court of Appeal and requested that the appeal court quash the lower court ruling and dismiss the claim due to the parties’ agreement to refer their disputes to arbitration. Alternatively, the Seller requested that the court refer the case for investigation to prove that the signatory on behalf of the Purchaser signed and agreed to refer disputes that may arise out of the execution of the land’s sale agreement to arbitration\r\n\r\nThe Appeal Court referred the case for investigation to question the purchaser’s manager who had signed on the Agreement on behalf of the purchase and whose initials were on the general terms and conditions attached to it.\r\n\r\nAfter questioning the manager the court allowed the Seller to evidence through witnesses that the manager of the Purchaser acknowledged the arbitration clause incorporated in the general terms and conditions of the sale agreement by reference.\r\n\r\nFollowing submission of the witnesses’ statements, the Appeal Court rendered its decision to dismiss the appeal and uphold the ruling of the Court of First Instance.  The Court found that the general terms and conditions and the schedules appended to the sale agreement were not signed by the Purchaser, but were only initialled.\r\n\r\n<strong>The Cassation Court:</strong>\r\n\r\nBefore the Cassation Court the Seller argued that the Court of Appeal had erred in its application of the law and itdisregard  the witness statements in respect of the Purchaser’s agreement to refer any disputes to arbitration.\r\n\r\nThe Court of Cassation dismissed the appeal and held that:\r\n<ol>\r\n 	<li>It is established in the rulings of this court that an arbitration clause is valid when the parties to an agreement explicitly agree to the jurisdiction of arbitration rather than the courts and that an arbitration agreement may only be evidenced by writing.</li>\r\n 	<li>As such, reference made in the main agreement to an arbitration clause can be construed as an arbitration agreement only if such reference is incorporated explicitly in the main agreement. However, in the event the reference is generally made to incorporate general terms and conditions without including an explicit reference to arbitration to indicate that both parties have agreed to the arbitration, the reference then does not extend to include the arbitration clause.</li>\r\n 	<li>A reference in the main agreement to its appendixes and schedules would suffice without requiring the parties to sign each page of such appendixes in the event that such appendixes and schedules were merely a detailed elaboration of the fundamental clauses included in the main contract. However, when such appendixes and schedules include an exceptional clause such as an arbitration agreement, such clause may not be valid unless both parties sign all pages of the appendixes to the main agreement.</li>\r\n 	<li>Article 11 of the UAE Evidence Law provides that an informal document is deemed to emanate from the person who signed it, unless he formally contests the writing, the signature, the seal or the finger print alleged to be his. In the case at hand, since the document which included the arbitration clause was not signed by the Purchaser’s authorized signatory and was contested by the Purchaser, the arbitration clause is deemed to be invalid.</li>\r\n</ol>\r\nThe Court of Cassation therefore found that the lower courts did not err in the application of the law and as such dismissed the Seller’s challenge.\r\n\r\n<strong>Practice Note</strong>\r\n\r\nIn light of the above ruling, it is important that parties explicitly state their agreement to arbitrate. If the arbitration clause is to be incorporated by reference to another document, this other document must be fully signed on each page so that there can be no doubt that both parties consented to it.'),
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	(91240,4959,'_yoast_wpseo_metadesc','In many jurisdictions arbitration clauses can be incorporated by reference. For example, although the main commercial terms will be set out in one agreement, certain standard terms will be incorporated by reference to a second document, and these standard terms may include an arbitral agreement.'),
	(91241,4960,'content','July - August 2014\r\n\r\n<hr />\r\n\r\nTermination provisions in contracts reflect the mutual agreement of the parties to the terms governing the dissolution of their specific contractual relationship. In construction contracts, contractual parties may stipulate certain events that would trigger the termination of a contract and may also grant a party (usually the employer or main contractor) the right to unilaterally sever the contractual relationship in the event of breach by another contractual party. In addition, the termination provisions in a contract may also contain, per the parties’ agreement, specific formalities which must be adhered to in order to effectively terminate the contract (such as the issuance of a notice of default allowing the breaching party time to rectify its breach before a notice of termination may be issued). In Qatar, the parties are free to determine the terms governing their contractual relationship and the dissolution thereof; however in certain instances, such as termination, the Qatari Civil Code (Law No. 22 of 2004) (“Civil Code”) requires the intention of the parties to be very clearly set out in the contract. Where a party to a contract wishes to terminate the contract and the termination rights therein are ambiguous, implied or are of such nature that they leave room for alternative interpretations, the relevant provisions of the Civil Code become applicable.\r\n\r\nUnder the Civil Code, a construction contract may be terminated based on one of two grounds: termination for convenience (also referred to as “termination at will”) and termination for default.\r\n\r\n<strong>Termination for convenience</strong>\r\n\r\nIn accordance with Article 707(1) of the Civil Code, an employer or main contractor may terminate the contract and stop performance of the work at any time prior to the completion of the work, provided that the terminating party compensates the other party. Under the Civil Code provision, the compensation paid to the non-terminating party must include costs of the work completed, costs expended and profit that may have been earned if work were completed as per the contractual terms. However, the parties may agree in the contract to limit or otherwise alter the terms of compensation in the event of termination for convenience.\r\n\r\nArticle 707(2) permits the court to assess or otherwise adjust the compensation due to the non-terminating party under Article 707(1). The court is tasked with determining the compensation due if the compensation due is disputed by the contractual parties. The court may make two types of adjustments in accordance with Article 707(2): discretionary adjustments and compulsory adjustments. In respect of the former, the court evaluates the surrounding circumstances, the work completed and the contractual terms and thereafter adjusts the compensation due based on principles of fairness. With respect to compulsory adjustments, the court must decrease any compensation due to the non-terminating party if the said party has proceeded to mitigate its losses as a result of the termination for convenience and received compensation from expending its efforts elsewhere.\r\n\r\nTermination for convenience allows the party seeking termination to dissolve the contract with immediate effect, without a judicial order, provided that the party compensates the other contracting party as per Article 707(1) or the terms set out in the contract. This type of termination is preferred where the terminating party wishes to have a clean break and to avoid a lengthy and possibly onerous judicial or arbitration process.\r\n\r\n<strong>Termination for Default</strong>\r\n\r\nConstruction contracts typically encompass terms governing the unilateral termination of a contract in the event of default by one party of its contractual obligations. However, if a contract is silent or the contractual terms are ambiguous as regards the right of a party to terminate the contract unilaterally, a contractual party may rely on Article 183(1) of the Civil Code to terminate the contract where the other party has failed to fulfil its obligations under the contract. Article 183(1) requires the party (seeking to terminate the contract) to first give notice to the defaulting party of the default and the former’s intention to terminate the contract. Article 183(2) grants the judge wide discretion to terminate the contract, allow the defaulting party additional time within which to rectify the breach or refuse termination of the contract if the breach is minimal in light of the defaulting party’s total obligations under the contract. In order to give effect to a termination in reliance of Article 183, the party seeking to terminate the contract must apply to the court to grant such termination. As noted above, the court is given wide discretion under Article 183 to study the surrounding circumstances and decide on the issue of termination.\r\n\r\nIt is common, in the context of construction contracts in Qatar, for the parties to agree to unilateral termination by one contractual party by notice; however, the contractual parties often overlook certain necessary contractual requirements which must be specified in the contract as required under Article 184 of the Civil Code. In many contracts, the language of termination provisions relating to default and the right of a party to unilaterally terminate by notice often fail to achieve the level of precision required by Article 184. Article 184(1) permits the contractual parties to agree to terminate the contract without obtaining a court judgment in the event of a breach by one party; that is, the parties may agree to allow one party to unilaterally sever the contractual relationship by notice in the event of a default. However, Article 184(2) stipulates that the agreement (referenced in Article 184(1) to dissolve a contract without first obtaining a judicial order of termination), will not be given effect unless “the wordings of the contract were clearly indicative towards the parties’ intention to the same”. Article 184(3) goes a step further and mandates the issuance of a notice by the terminating party to the non-terminating party of the default and termination.\r\n\r\nIn practice, most construction contracts contain termination clauses which fall short of clearly stating the parties’ intention to allow unilateral termination of the contract by notice following a default by a contractual party. Generally, in the event of a default, a party will issue a notice of default, which may be subsequently be followed by a notice of termination. The party seeking to terminate the contract then deems the contract terminated. As noted above, however, unless the language of the contract clearly states the parties’ intention to allow termination by notice, the termination would be unlawful without a court order giving effect to the termination.');

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	(90605,4927,'content','May 2014\r\n\r\n<hr />\r\n\r\nHowever, for purposes of enforcement, the notion of specific performance varies significantly under the rubric of a civil law system when compared to a common law system.\r\n\r\nUnder the latter, specific performance is considered a form of equitable relief, meaning that such required action is awarded to the obligee (the person to whom the other is obligated under contract) to the extent that such damage is unique and monetary damages are inadequate to compensate the same.  In other words, the obligor (the person who owes the obligation under contract) is required to perform the specific act according to the undertaking made under contract, and failure of such performance may be considered as a violation under the judicial system.\r\n\r\nUnder a civil law system, however, specific performance is viewed differently.  In the event of a breach of an obligation by way of non-performance. an alternative remedy, such as compensation, may be imposed on the obligor at the discretion of the judiciary.\r\n\r\nUnder the Civil Law of Kuwait, Law No. 67 of 1980 (the “Civil Law”), specific performance is an available remedy but only at the discretion of the Courts (Article 284).  The exercise of this discretion would override any contractual provisions dealing with these remedies. Further, the Kuwaiti courts may exercise their discretion to make an award of damages, even where specific performance of an obligation or injunctive relief is expressly sought in a contract. Any clause purporting to apply such remedies in relation to a particular agreement may not be applied by the Courts who may prefer to exercise their discretion in terms of an alternative remedy. Accordingly, from a general perspective, Kuwaiti courts are reluctant to provide for remedies other than an award of damages, even where damages are difficult or impossible to value, or an award of damages would otherwise seem inappropriate.  In summary, the Kuwaiti courts are unlikely to award remedies of specific performance, injunctive relief or analogous forms of relief.\r\n\r\nNotwithstanding the above, at the time of drafting the contract, as a means of increasing the likelihood of an undertaking to performing the same, the obligor may offer the obligee a promise to act in favour of the obligee in a separate document ancillary to the underlying contract (the “Declaration”).  In other words, the Civil Law allows for a Declaration to be enforceable where (i) there is consent of the parties to enter into the underlying contract; (ii) the promise to act is valid, applicable and possible; and (iii) the action is legal and not in contravention of public policy. Such a Declaration, coupled with a writ of execution, can be notarized at the Ministry of Justice Notary Department. Samples of Declarations which are common include a declaration to transfer identified assets/equity to the obligee at a prescribed future time. The Declaration is a favourable alternative to seeking redress within the standard litigation and appellate process in Kuwait since the writ of execution allows for the obligee to seek immediate enforcement of the action at the Execution Department of the Ministry of Justice.  However, as with the litigation process, the obligor is entitled to raise a defence to such enforcement.\r\n\r\nAs a note of caution, to the extent that the Declaration and the writ of execution are enforced and the obligor fails to perform the specific action, or raises an affirmative defence, the underlying obligation may still nevertheless be substituted with compensation at the discretion of the judge, particularly where it is determined by the judiciary that impossibility, impracticability, or contravention of public policy play, a prevalent factor. Such compensation may be calculated based on damages suffered and loss of profits.\r\n\r\nIn conclusion, to the extent an obligor is considering offering a Declaration and such action is deemed impracticable or impossible, the obligor should be aware that the envisaged remedy under the Declaration may be set aside and it may face a  potential monetary exposure in the form of compensation.  From an obligee’s perspective, there is need for caution in circumstances where the underlying obligation may be deemed impracticable and/or immeasurable and the application of the discretion of the judge may result in a much lower recovery than the obligee may have anticipated.  Accordingly, the Declaration, as a form of specific performance, should be used where the underlying action is both practical and measurable.'),
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	(90609,4927,'content_description','For commercial contracts, a civil law system generally allows for a non-breaching party to choose between damages and specific performance. '),
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	(90611,4927,'pageSummary','For commercial contracts, a civil law system generally allows for a non-breaching party to choose between damages and specific performance.'),
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	(90619,4927,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Paul Saba'),
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	(90621,4927,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','p.saba@tamimi.com'),
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	(90631,4927,'_yoast_wpseo_metadesc','For commercial contracts, a civil law system generally allows for a non-breaching party to choose between damages and specific performance.'),
	(90632,4928,'content','May 2014\r\n\r\n<hr />\r\n\r\nThe new Investment Management Regulations provide a more regulated regime and greater protection for investors in UAE investment funds. However, there remain some systemic issues with setting up funds in the UAE.\r\n\r\n<strong>Former Central Bank regime</strong>\r\n\r\nPrior to the introduction of the Investment Management Regulations, the Central Bank regulated investment and fund management activities in the UAE and granted investment company licences to entities other than banks, pursuant to which, such activities (including the establishment of funds) could be undertaken.  There has been a limited local fund management industry in the UAE to date, which reflects that these activities have largely been carried out in house by the entities establishing local funds (i.e. banks and investment companies).  Under the new Investment Management Regulations, the Central Bank will still licence investment companies, however, the regulation of investment and fund management activities will move across to the SCA.\r\n\r\n<strong>New SCA regime and its impact</strong>\r\n\r\nWith the shift of regulation of investment and fund management activities to the SCA, all existing entities carrying on such activities in the UAE (including banks and investment companies) will be required to obtain a new licence from the SCA by 28 February 2015.  Enquiries and applications to the Central Bank prior to 28 February have been directed to the SCA for approval and, now that the Investment Management Regulations are effective, it is possible to obtain the licence from the SCA.\r\n\r\nIn short, the effect of the new Investment Management Regulations will be to:\r\n<ul>\r\n 	<li>open up the investment and fund management market in the UAE, including to DIFC asset and fund managers;</li>\r\n 	<li>provide greater security for clients and investors over assets by requiring full separation from, and of, client accounts and for all managed assets to be held by a licensed custodian; and</li>\r\n 	<li>generally create a more regulated regime for investment and fund management in the UAE.</li>\r\n</ul>\r\n<strong>Open up the market (including to DIFC entities)</strong>\r\n\r\nThe new Investment Management Regulations will open up investment and fund management in the UAE more widely than to just banks and investment companies, including to DIFC domiciled and DFSA regulated asset and fund managers. However, a DIFC entity applying for an SCA investment management licence will still need to establish an onshore office in order to operate under that licence.\r\n\r\n<strong>Greater security for investors over assets</strong>\r\n\r\nThe new Investment Fund Regulations provide greater security for clients and investors in funds by requiring investment managers to ensure full separation from and between client accounts and that all managed assets and fund assets are to be held by a custodian licensed by the SCA or a custodian outside the UAE in respect of foreign assets.  However, as discussed below, we note that issues remain concerning the ability to establish a truly legally separate fund entity and the ability of SCA licensed custodians to hold certain assets.\r\n\r\nNotwithstanding the requirements for a custodian, separation of client and fund assets and other client and investor protective measures in the new Investment Management Regulations, there remains risk associated with the current lack of separate legal personality for local funds and corollary risk to fund assets. The inability to establish a local UAE fund with separate legal personality has been an ongoing issue in respect of the separation and protection of fund assets. This is notwithstanding that both the Central Bank resolution concerning Investment Companies (“Investment Company Resolution”) and the SCA Fund Regulations purport to recognise that funds have a separate legal personality, and the expectation that the Central Bank and the SCA would support treatment of a fund’s assets as distinct from those of an investment company fund manager or bank fund manager in any Court proceedings.  However, without recognition in the federal Commercial Companies Law of a separate legal entity for funds and, thus, a clear legal separation of the ownership of those fund assets, there remains a risk that those assets may not be treated as the separate property of a fund.  We note that the latest draft new Commercial Companies Law provides for a recognition of the separate legal personality of funds in the UAE, but stops short, however, of explicitly providing that a fund may be established in a specific legal form or creating a new legal form for funds. The new Commercial Companies Law has been in draft form for several years without any indication when such proposed changes may come into effect.\r\n\r\nIn addition to the above, in respect of the custody requirement under the new Investment Management Regulations and under the Fund Regulations, we note that the SCA securities custody activities regulations (“Custody Regulations”) relate to custody over securities only. They do not extend to all assets of a fund, for example, property; there may also be issues with the ability of an SCA licensed custodian to hold property assets in respect of property funds even if the licence did enable it to do so.  Thus, while the Investment Management Regulations require a custodian licensed by the SCA to hold the assets of a fund, the Custody Regulations themselves appear to prevent this. We also note that the Fund Regulations specifically contemplate a custody role in respect property funds, but again there appears to be a mismatch between this requirement for the assets to be held by a safe custodian licensed by the SCA and the actual ability of such custodians to hold these assets.\r\n\r\nOn a related note, in respect of the required custodian and investment manager SCA licensing requirements, there appears to be no requirement across any of the new Investment Management Regulations, the Custody Regulations or the Fund Regulations for separate independent persons or entities to perform these functions for a fund. That is, on the face of it, a bank can be licensed as a custodian and an investment manager and could thus establish a fund, manage it and provide the required custodial services – effectively the status quo for existing bank funds.  We have not received any indication whether the SCA would require a separation of these roles or would allow the status quo to remain, just confirmation that it would expect all banks to gain an SCA investment management licence if conducting investment and fund management activities.\r\n\r\n<strong>Generally a more regulated regime</strong>\r\n\r\nIn addition to opening up the market and greater prescribed separation for client and fund assets, and notwithstanding the lack of separate legal personality and custodial issues noted above, in general the new Investment Management Regulations will create a more regulated regime for investment and fund management in the UAE which may go somewhat to helping mitigate the abovementioned issues, these provisions include:\r\n<ul>\r\n 	<li>an increased minimum capital requirement to AED 50 million from AED 25 million under the Investment Company Resolution;</li>\r\n 	<li>the new SCA Investment Management licence will be required to be renewed annually rather than every three years under the Investment Company Resolution; also quarterly accounts (plus audited annual accounts) will be required to be submitted to the SCA (as opposed to the Investment Company Resolution requirement for only annual audited accounts) thus giving the SCA more regular prudential and regulatory oversight of investment managers;</li>\r\n 	<li>investment managers must prepare an operational guide for risk management; and</li>\r\n 	<li>the requirement for a more formalised Investment Committee than the administrative committee required under the Investment Company Resolution, which is required to enable the new compliance role of the Internal Controller of the investment manager.</li>\r\n</ul>\r\n<strong>The Investment Management Regulations at a glance </strong>\r\n\r\nWe have set out below a brief summary of the main Investment Management Regulations provisions and application requirements along with certain limited commentary/clarifications we have received from the SCA. However, as the Investment Management Regulations are only newly effective, and we understand the SCA is yet to receive comments and queries on their implementation, there are still some ambiguities surrounding their reach and requirements which we expect will be clarified in due course.\r\n\r\nThe Investment Management Regulations shift regulation of investment management and fund management activities over to the SCA and outline licensing requirements and conditions along with the ongoing obligations of licensed entities to both clients and to the SCA.\r\n\r\nUnder the new regulations, ‘investment management’ is defined as management of securities portfolios of third parties or the management of mutual funds.\r\n\r\nAny entity wishing to carry on or promote investment management activities in the UAE must obtain a licence from the SCA (except local or federal government entities). Entities with existing Central Bank approvals or licences (including local banks as we have specifically clarified with the SCA) must obtain an SCA licence by 28 February 2015.\r\n\r\nApplicants for SCA Investment Management licences must be either:\r\n<ol>\r\n 	<li>a local joint stock company with the purpose to carry on investment management;</li>\r\n 	<li>a local joint stock company with one of its activities being investment management (and an SCA licence relating to the prevention of conflicts of interest);</li>\r\n 	<li>a local bank or branch of a foreign bank or investment company licensed by the Central Bank provided the Central Bank does not object; or</li>\r\n 	<li>a branch of a foreign company established in a financial free zone in the UAE (i.e. the DIFC), or a branch of a foreign company, provided that such branch or company is licensed to carry on investment management and similarly regulated in the free zone or home jurisdiction as relevant. The SCA has clarified that any DIFC entities applying for a licence would need to establish an onshore office in order to operate under that licence.</li>\r\n</ol>\r\nMinimum capital requirements for each SCA licensed investment manager will be AED 5 million along with a bank guarantee for AED 1 million.  There are also requirements as to technical and administrative staff, premises, internal control systems and operational and risk managements systems.\r\n\r\nThe application fee is AED 50,000 and the SCA will approve or reject an application with 30 days of receipt of a complete application. An application to renew the licence on an annual basis will cost AED 25,000.\r\n\r\nOnce licensed, there are requirements to (amongst other matters):\r\n<ul>\r\n 	<li>form an internal Investment Committee to carry out certain prescribed tasks (including internal systems and policies reviews);</li>\r\n 	<li>appoint an Internal Controller (who may only be dismissed by a resolution of the board of directors of the investment manager upon 30 days’ notice to both the Internal Controller and the SCA);</li>\r\n 	<li>provide copies of quarterly reports to the Investment Committee and also to the SCA;</li>\r\n 	<li>provide clients with (at least) monthly reports; and</li>\r\n 	<li>provide quarterly financial statements and annual audited financial statements to the SCA along with any periodic reports on activities and transactions or any other matter as requested the SCA.</li>\r\n</ul>'),
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	(90636,4928,'content_description','As flagged by the Securities and Commodities Authority (“SCA”) when the 2012 Fund Regulations came into force, the SCA has recently released Board of Directors’ Decision No. 1 of 2014, concerning the Regulations on Investment Management (“Investment Management Regulations”), which became effective on 28 February 2014.'),
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	(90638,4928,'pageSummary','As flagged by the Securities and Commodities Authority (“SCA”) when the 2012 Fund Regulations came into force, the SCA has recently released Board of Directors’ Decision No. 1 of 2014, concerning the Regulations on Investment Management (“Investment Management Regulations”), which became effective on 28 February 2014.'),
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	(90651,4928,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(90652,4928,'_yoast_wpseo_metadesc','As flagged by the Securities and Commodities Authority (“SCA”) when the 2012 Fund Regulations came into force, the SCA has recently released Board of Directors’ Decision No. 1 of 2014, concerning the Regulations on Investment Management (“Investment Management Regulations”), which became effective on 28 February 2014.'),
	(90653,4929,'content','May 2014\r\n\r\n<hr />\r\n\r\nIt is necessary to comprehend the dangers associated with money laundering and terrorist financing activities, through the use of banks and financial institutions as a means to pass through dirty money earned from committing various types of organized criminal activities.\r\n\r\nMoney Laundering is defined in the Iraq Anti Money Laundering Law [No. 93 of 2004] (“AML Law”) as:\r\n\r\n<em>“The administration of, or the attempt to administer, a financial process employing revenues from unlawful activity; or anyone who sends or transports a monetary instrument or sums representing revenues of a given illegal activity, with the knowledge that such monetary instrument of the property belongs in a certain way to illegal activity, intention of helping to carry out illegitimate activity, profiting from illegal activity, to protect those who administer the illegal activity from judicial questioning, or shielding, hiding the nature, the source or the ownership of the monetary instrument in order to have power over the revenues of the illegal activity.”</em>\r\n\r\nThe Central Bank of Iraq has within its organizational framework the Anti-Money Laundering Office that is directly connected to the Governorship of the Bank. This Office includes specialized Sections that issue directives and policies from time to time to the certified banks, money transfer companies and money exchange businesses. The Central Bank established the Money Laundering Reporting Office to receive reports related to money laundering issues. The duties of this Reporting Office are:\r\n<ol>\r\n 	<li>Collecting, treating, analysing and publishing testimonials related to financial transactions;</li>\r\n 	<li>Participating in carrying out the Iraqi policy to prohibit money laundering and criminal activities, including terrorism financing;</li>\r\n 	<li>‘Terrorism Financing’ is defined by the AML Law as: “Anyone who offers or requests someone else to offer money, support, financing or other related services, intending or knowing that it is possible to be used totally or partially to carry out activity, which provides a benefit to a terrorist group with the intention of causing death or grave bodily harm to a civilian person who has no active participation in promoting the status of armed hostilities.”</li>\r\n 	<li>Cooperating, collaborating and exchanging information with the Iraqi governmental authorities and the relevant entities of other states and international organizations to fight money laundering and the financing of criminal activities;</li>\r\n 	<li>Investigating statements received and taking the necessary steps. The Office has the right to take these steps and prepare regulations to be approved by the Central Bank as needed to carry out its obligations;</li>\r\n 	<li>Upon becoming reasonably suspicious of a transaction or that certain monies have been earned from an illegal act, the Office would inform the relevant judicial authority and the investigation authority;</li>\r\n 	<li>Answering inquiries from financial establishments and offering guidance related to the manner of the Office’s operations.</li>\r\n</ol>\r\nThe Iraqi Central Bank and the Money Laundering Reporting Office may also liaise with foreign authorities that supervise financial establishments or markets, as well as foreign criminal authorities, in order to exchange information and documents needed to carry out its duties in the fight against money laundering.\r\n\r\nThe Central Bank issues necessary regulations and periodically distributes lists related to financial activities which might form suspicious transactions, including money laundering, criminal financing activities, transactions that employ funds accessible to a criminal organization, or transactions designed to avoid reporting or registration conditions. The Central Bank has the right to carry out site audits at financial institutions.\r\n\r\nThe Central Bank also provides lists of persons and organisations, often based on lists produced by the United Nations Security Council, which financial institutions should monitor against transactions. Upon the discovery of a transaction by a listed person or organisation, a report should be filed with the Central Bank.\r\n\r\nThe obligations of financial institutions in relation to money laundering:\r\n\r\n<strong>1. Verification of the client’s identity.</strong>\r\n\r\nWhen an account is opened, or when a transaction or series of eventual transactions whose value exceeds five million Iraqi Dinars per customer (whether a natural or juridical person) are carried out, the financial institution must obtain the legal name of this customer and his permanent or correct complete address, telephone or fax number and (in the case of natural persons) the date and place of his birth. Juridical persons must provide the incorporation statement, the nationality and the place of incorporation. If the total value of the transaction or of the series of transactions is less than one million Iraqi Dinars, the financial institution needs only the name and address of the customer. The financial institution must verify whether the name of the customer appears on the list provided by the Iraqi Central Bank and report any suspicious transactions to the Iraqi authorities.\r\n\r\n<strong>2. Identification of the beneficial owner of the funds</strong>\r\n\r\nThe financial Institution must request from the customer a written statement about the owner of the monies in cases where it becomes evident that the customer is not the owner, or the ownership of the monies are subject to suspicion, or the transaction is for an amount higher than one million Iraqi Dinars.\r\n\r\n<strong>3. Additional verification of identity</strong>\r\n\r\nThe financial institution ought to take additional steps to verify the identity if it has a reason to doubt the identity of the customer or the beneficial owner of the funds. In case the financial institution cannot form a reasonable image regarding the identity of the customer or the beneficial owner, it must report any suspicious transactions to the Money Laundering Reporting Office. Also, when the financial institution transfers an insurance premium payment or distributes or refers a benefit earning to a person, it must verify the identity of the beneficial owner, if it becomes evident that the beneficial owner is not the designated one according to the contract.\r\n\r\n<strong>4. Additional verification of the purpose and nature of the transaction</strong>\r\n\r\nThe financial Institution shall immediately verify the source of the funds, the nature and the intended purpose of the transaction. Also, it must verify any suspicion whether the funds consist of revenues resulting from a criminal activity or intended to finance a crime. The financial institution must immediately report to the Money Laundering Reporting Office if it is believed that the proposed transaction or series of transactions are suspicious and seek the advice and directives of the Reporting Office. It must follow the guidance and instructions of the Money Laundering Reporting Office and the financial institution, its director, any officer, employee or agent shall not be liable according to any Iraqi law or regulation. When the financial institution requests an investigation, the respective assets must be frozen until it receives directives from the Money Laundering Reporting Office.\r\n\r\n<strong>5. The obligation to report suspicious transactions over 2 million Dinars</strong>\r\n\r\nThe financial institution must report to the Money Laundering Reporting Office in the case of having reason to suspect a transaction - whether it was done by the customer or by another party - where the transaction or transactions total more than two million Iraqi Dinars. This reporting must be done as soon as possible and before the elapse of fourteen days after the date of the event leading to the suspicion. The financial institution must keep the records in separate files, which contain all the details related to the reporting. These files must be conveyed to the Iraqi Central Bank and to the Money Laundering Reporting Office as well as to the judicial prosecuting authorities. These records must be kept for a minimum period of five years after the date of reporting to the Money Laundering Reporting Office.\r\n\r\n<strong>6. Reports of fund transactions over 15 million Dinars</strong>\r\n\r\nEvery financial institution must organize a report for the Money Laundering Reporting Office for every deposit, withdrawal, currency exchange or other transfer through or to the institution that deals with fund transactions, or by using any other type of monetary instrument, which exceeds fifteen million Iraqi Dinars.\r\n\r\n<strong>7. Reports of currency transfers over 15 million Dinars</strong>\r\n\r\nThe Iraqi Central Bank requires everyone to provide reports related to the transfer of currency or any other monetary means, with a value over fifteen million Iraqi Dinars, from or to Iraq. The report shall include the following:\r\n<ul>\r\n 	<li>The judicial identity of the person who provides the report;</li>\r\n 	<li>The origin, destination and transit point of the currency or the monetary instrument; and</li>\r\n 	<li>The amount and type of the monetary instrument.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nMoney laundering activities are a threat to the national and global economy, both in real and reputational terms. The Iraqi government is tackling this threat with the AML Law and we continue to watch with interest as financial institutions act in compliance with its provisions in a combined effort to reduce the effects of organised crime on the Iraqi economy in particular and the global economy as a consequence.'),
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	(90657,4929,'content_description','Banks and financial institutions are considered to be the most targeted organizations by money launderers and terrorist groups, in efforts to hide their identities and conceal the sources of their illegitimate funds. '),
	(90658,4929,'_content_description','field_59b641c07f473'),
	(90659,4929,'pageSummary','Banks and financial institutions are considered to be the most targeted organizations by money launderers and terrorist groups, in efforts to hide their identities and conceal the sources of their illegitimate funds.'),
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	(90663,4929,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ahmed Hasan'),
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	(90665,4929,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.hasan@tamimi.com'),
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	(90675,4929,'_yoast_wpseo_metadesc','Banks and financial institutions are considered to be the most targeted organizations by money launderers and terrorist groups, in efforts to hide their identities and conceal the sources of their illegitimate funds.'),
	(90676,4930,'content','May 2014\r\n\r\n<hr />\r\n\r\nThe draft law amends the name of the Former AML Law to become “Federal Law No. 4 of 2002 on Confrontation of Money Laundering Offences and Combating the Financing of Terrorism” (“New AML Law”).\r\n\r\nThe draft law is a response to the recent recommendations of the Financial Action Task Force (“FATF”) issued in February 2012. The FATF is an inter-governmental body established in 1989. It aims to develop policies to combat money laundering and terrorism financing. Such policies set standards for implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. The primary policies issued by the FATF are the Forty Recommendations on money laundering and the 9 Special Recommendations on Terrorism Financing.\r\n\r\nThe FATF issued the initial Forty Recommendations in 1990, but they were completely revised thereafter. In February 2012, the FATF codified its recommendations and Interpretive Notes into one document (“FATF Recommendations 2012”). The FATF Recommendations 2012 include new rules on weapons of mass destruction, corruption and wire transfers.\r\n\r\nThe New AML Law aims to incorporate the FATF Recommendations 2012 into the UAE legal system. It replaces 17 of the 23 substantive articles of the Former AML Law and adds three new provisions. In this article, we will highlight the key provisions of the New AML Law and the main differences from the Former AML Law.\r\n\r\n<strong>FEDERAL LAW NO. 4 OF 2002 ON CONFRONTATION OF MONEY LAUNDERING OFFENCES AND COMBATING THE FINANCING OF TERRORISM</strong>\r\n\r\nThe Former AML Law defined Property for the purposes of this law as being assets of every kind and the legal documents evidencing title of such assets or any rights related thereto. However, the New AML Law explains that the assets mentioned in this definition may include UAE currency and foreign currencies, while legal documents may include electronic or digital format.\r\n\r\nThe New AML Law provides a definition of Suspicious Transactions. It states that Suspicious Transactions are transactions, or attempted transactions, that relate to property in respect of which there are reasonable grounds for suspecting that such property is the proceeds of any felony or misdemeanor, or is related to the Financing of Terrorism or the Financing of Unlawful Organizations.\r\n\r\nThe main distinction between both legislations is the fact that the Former AML Law confined the crime of Money Laundering to dealings with the proceeds of certain crimes specified in that law (for example: drugs, bribery or fraud), while the New AML Law expands the scope of Money Laundering to include dealing in the proceeds of any felony or misdemeanor with no restrictions.\r\n\r\nThe New AML Law explicitly mentions that Money Laundering offences are stand-alone offences and that the punishment of the offender for committing the predicate crime shall not preclude punishing him once again for the Money Laundering offence. Further, the New AML Law states that a conviction for the predicate offence is not required for evidencing the unlawful source of the proceeds being laundered.\r\n\r\n<strong>WHISTLE-BLOWING</strong>\r\n\r\nAlthough the Former AML Law does not address whistle-blowing and does not give protection to whistle-blowers (as witnesses for example), the New AML Law requires the relevant authorities to provide protection for witnesses or the accused in offences of Money Laundering, Financing of Terrorism and/or Financing of Unlawful Organizations. The Attorney General or the competent court shall request such protection whenever it is required or in case of fear for the lives of the witness or accused.\r\n\r\n<strong>AIRPORT DECLARATIONS</strong>\r\n\r\nThe Former AML Law stipulates that the UAE Central Bank sets the maximum amount of cash that may be brought into the State without the need for declaration. The person in possession of any amount exceeding the limit set by the UAE Central Bank shall be obligated to declare that amount on arrival.\r\n\r\nHowever, the New AML Law states that persons in possession of any currencies, bearer negotiable financial instruments, precious metals or high value stones shall declare their possessions at UAE Airports, as per the Declaration Regime to be set out by the Central Bank. The law requires such declaration to be made whether the person is entering or leaving the UAE.\r\n\r\n<strong>ANTI-MONEY LAUNDERING AND SUSPICIOUS CASES UNIT (“AMLSCU”)</strong>\r\n\r\nThe Former AML Law established a Financial Intelligence Unit (“FIU”) within the UAE Central Bank, which is known as the AMLSCU. The New AML Law maintains the FIU but slightly amends its competencies.\r\n\r\nThe New AML Law requires the FIU to create and maintain a database of the information available at the Unit. Such information shall be made available for law enforcement authorities for the purpose of facilitating their investigations. The law allows the said unit to exchange information on Suspicious Transactions with their counterparts in other countries, pursuant to the international conventions to which the UAE is party, or on the basis of reciprocity. However, it limits the usage of the exchanged information to purposes of Combating Money Laundering, Terrorism Financing or the Financing of Unlawful Organizations.\r\n\r\nThe New AML Law indicates that the FIU studies reports of Suspicious Transactions. After doing so, it may refer the matter to the Public Prosecution to taking any measures deemed necessary. On the other hand, the Public Prosecution may seek the opinion of the FIU on reports brought directly to the Public Prosecution that relate to Money Laundering, Financing of Terrorism or Financing of Unlawful Organizations.\r\n\r\nThe FIU may request information on reports of Suspicious Transactions from all Financial Institutions. It may also request such information from non-profit organizations under certain circumstances.\r\n\r\n<strong>EXPANSION OF THE ROLE OF THE UAE CENTRAL BANK</strong>\r\n\r\nThe New AML Law expands the supervisory and regulatory role of the UAE Central Bank, requiring it to oversee and monitor the operations of Financial Institutions and to ensure that they comply with and properly apply the law and its regulations.\r\n\r\nThe UAE Central Bank may issue resolutions to define rules that Financial Institutions must follow regarding Anti-Money Laundering and Combating the Financing of Terrorism and the Financing of Unlawful Organizations and to report any suspicious transactions. It may also regulations relating to the administrative penalties imposed on Financial Institutions for violating the law.\r\n\r\n<strong>PUNISHMENTS</strong>\r\n\r\nIn general, all the punishments set out in the New AML Law are harsher than under the Former AML Law. A highlight of some of those punishments is as follows:\r\n<ul>\r\n 	<li>Any person who commits, or attempts to commit, a Money Laundering offence shall be punished by imprisonment of up to ten years and / or a fine of between AED 100,000 and AED 500,000. In cases of multiple perpetrators, the Court, subject to its discretion, may exempt a perpetrator from the imprisonment penalty if he takes the initiative and reports the crime to the competent authorities prior to the knowledge of such authorities and if his actions lead to the arrest of the other perpetrators or seizure of the laundered monies.</li>\r\n 	<li>Any establishment that commits an offence of Money Laundering, Financing of Terrorism or Financing of Unlawful Organizations, shall be punished by a fine of between AED 300,000 and AED 1,000,000.</li>\r\n 	<li>Failure to report a Suspicious Transaction shall be punishable by imprisonment and / or a fine of between AED 50,000 and AED 300,000.</li>\r\n 	<li>Tipping off a person being investigated regarding a Suspicious Transaction shall be punishable by imprisonment of up to one year and / or a fine of between AED 10,000 and AED 100,000.</li>\r\n 	<li>Violation of the requirements of Airport Declarations shall be punishable by imprisonment and / or a fine.</li>\r\n 	<li>Unlike the Former AML Law, the New AML Law regulates the confiscation of the proceeds of Money Laundering, the Financing of Terrorism or the Financing of Unlawful Organizations.</li>\r\n</ul>\r\n<strong>CONCLUSION</strong>\r\n\r\nThe New AML Law has harsher punishments with the aim of combating Money Laundering. Also, the law addresses the Financing of Terrorism and the Financing of Unlawful Organizations, which constitutes a step forward for the UAE as Money Laundering is often closely linked to the Financing of Terrorism or Unlawful Organizations.\r\n\r\nThe initiative of the UAE legislator to pass the New AML Law indicates that the UAE shall not tolerate financial crimes and emphasizes that the UAE does not want to be seen as a safe haven for perpetrators of such crimes. We believe that the New AML Law will have a positive impact on the UAE and the integrity of its financial system.\r\n\r\nFor any queries relating to Money Laundering and Financial Crime in the Middle East, contact the Regional Head of Al Tamimi’s Financial Crime Department: Khalid Al Hamrani - k.hamrani@tamimi.com'),
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	(90703,4931,'content','May 2014\r\n\r\n<hr />\r\n\r\n<strong>The Background to the Professional Contract</strong>\r\n\r\nSport is no longer merely a leisure pastime.  The recognition of elite athletes as economic commodities has led to a worldwide multi-billion dollar industry. Athletes/Players have become recognised household names with economic value and influence.\r\n\r\nInevitably that development requires an appropriate legal framework for regulation and stakeholder rights protection. Substantial high-profile investment in sport within the UAE, Qatar and more widely within the GCC is attracting similarly high-profile players and events to the region and has increased the exposure of home-grown talent. As such, there is an appreciation across the region of the need to regularise sporting contracts.\r\n\r\n<strong>The Legal Relationship </strong>\r\n\r\n<em>Contract of Service or Contract for Services?</em>\r\n\r\nWe use the term “athlete” or “player” generically to cover all professional sportspeople. Contracts usually enter the public consciousness upon an athlete changing clubs or when there is a dispute (e.g. in respect of remuneration or termination). Player contracts are a unique manifestation of the employment relationship. The somewhat hybrid nature of the contract (combining “service” obligations from player to club and often other stakeholders with substantial commercial returns) differentiates it from the conventional employment relationship.\r\n\r\nGenerally, there is no question that a player for a sports club will be engaged as an employee of the club (i.e. under a “contract of service”). There are numerous tests as to “status”.\r\n\r\nA multiple test looking at the overall picture of the relationship may be adopted, where theoretically no single factor is determinative. However, Common Law jurisdictions have tended towards “control” being the most persuasive of the various factors as a single indicator of an employment relationship.\r\n\r\nFor example, a professional footballer or rugby player is acting under the control and direction of the club and remunerated accordingly. Whilst the player may indeed use his own skills and personal attributes to perform the role on the field of play, it does not thereby give him the freedom to act as he pleases.\r\n\r\nIt is essential that the club has control over the athlete’s activities in order to properly realise the benefit of its investment. The athlete is a “commercial commodity” to be carefully protected.\r\n\r\nThe player’s individual abilities and talents inevitably require “personal service” as opposed to a “contract for services” (i.e. the latter being the categorization of a self-employed relationship). It would be strange indeed if an athlete could send a replacement in his place!\r\n\r\nIn individual sports, the distinction may be less clear according to the nature of the activity in which the athlete is engaged. As such, their commercial relationships will generally be with other stakeholders, principally sponsors. Whilst the athlete may be required to provide certain services on behalf of a sponsor (appearances, endorsements, equipment/merchandise), the “control” which arises in that regard is limited to the delivery of certain commercial obligations.\r\n\r\n<strong>Contractual Terms</strong>\r\n\r\n<em>Express Terms</em>\r\n\r\nThe employing club must protect its investment by regularizing the terms of the relationship in a written contract. Whilst there are some terms which will be implied into every employment contract (sporting “employment” contracts are no different), express written terms are crucial.\r\n\r\nKey factors for such an employer are:\r\n<ul>\r\n 	<li>Proper commercial exploitation/protection of their investment in view of the essential public character of the sporting performance (i.e. the athlete’s economic “value” to the club);</li>\r\n 	<li>Protection of stakeholder goodwill in the game (sponsors, supporters etc.)</li>\r\n</ul>\r\n<em>The Influence of the Governing Body</em>\r\n\r\nPlayers’ rights are not simply governed by the terms of the contract with the Club, but may also be subject to wider considerations of the governing body.\r\n\r\nThe regulations of the Governing Body will be incorporated (expressly or implicitly) into the club-player contract. Many governing bodies have their own standard approved form of contract which club and athlete are required to use with only some terms being open to negotiation.\r\n\r\nThe Governing Body’s disciplinary regulations may impose severe sanctions for club and player (including a fine, suspension, points deduction and even relegation) where a non-approved contract has been agreed between the parties. Club, player and respective agents need to be aware of this when negotiating the terms of the contract.\r\n\r\nExample: An English Premier League (EPL) football player’s contract will expressly refer to the Football Association (FA) Rules, Professional Footballers Association (PFA) Rules, Code of Practice and Club Rules. This expressly identifies the parties’ obligations not only within the club framework but also in the wider context of the sport itself.\r\n\r\nProfessional Football Governing Bodies often place restrictions upon when transfer negotiations can be commenced. The principle of “freedom to contract” is subject to regulation by the Governing Body to preserve the stability of the sport and avoid an uncontrolled transfer market.\r\n\r\n<em>Defined Terms</em>\r\n\r\nIn addition to its main express terms, the Contract is likely to first identify a number of defined terms as an aid to interpretation. These may include definitions to clarify those with authority to deal with matters relating to the player (including disciplinary and similar action).\r\n\r\nA contract will likely define (to an extent) conduct which may be sufficiently serious to justify the summary release of the player (e.g. theft/fraud, use/possession/supply of a prohibited substance, conduct which has the effect of or is likely to bring the employing club into disrepute). It would be usual for such conduct to be described as “non-exhaustive”. Contrast this with provisions in (for example) the UAE Labour Law which give an “exhaustive” list of circumstances which might warrant summary termination of the relationship.\r\n\r\nTV and other media exposure of the sport are such that the player’s activities need to be carefully regulated. Media should be defined as accurately as possible, to expressly identify the nature and type of interviews which a player may give.\r\n\r\nContracts typically address the athlete’s inability to perform his duties through injury or illness. This may differentiate between injuries arising (directly or indirectly) in the course of performance of the player’s contractual obligations and those where the incapacity is unconnected with the player’s employment.\r\n\r\nThis contract will typically identify all versions of the employing club’s official clothing, to ensure brand protection and compliance with the club’s obligations to third parties (e.g. sponsors).\r\n\r\n<em>Duties and Obligations of the Player</em>\r\n\r\nMany of the duties owed by the player are obvious and would be implicit in any professional athlete’s contract.\r\n\r\nFor example, it is implicit in professional sporting contracts that the athlete will not take performance-enhancing drugs. That said, there is merit in referring to this expressly to ensure the identification of potential disciplinary sanctions.\r\n\r\nExample: The Chelsea player, Adrian Mutu, was banned for illegal substance use in 2004 and was released by the club. Chelsea sought compensation from Mutu on the basis that he had essentially breached his contract with the club “without just cause”. After much litigation, Mutu was ordered to pay substantial compensation to Chelsea amounting to over 17m Euro plus legal costs.\r\n\r\nExpress Duties &amp; Obligations of the player may be both positive and negative.\r\n\r\nPositive obligations would include a requirement that the athlete will attend training and matches in which the Club is engaged and participate in those for which he is selected. Similarly, an athlete will be required (and reasonably expected) to play to the best of his skill and ability whilst maintaining a prescribed level of fitness.\r\n\r\nExamples of negative obligations (i.e. the player “shall not”...) would include a requirement that the athlete does not engage in activities which might impair or endanger fitness, or be involved in any activity which will cause to render void or voidable any policy of insurance for the benefit of the club in relation to his physical well-being.\r\n\r\nThe player may be required to enter into other detailed commercial undertakings with the Club. These will typically concern areas such as public relations and marketing and Intellectual Property Rights (focused on maximising the commercial benefit of the player’s image) (See also Law Update Issue 267, March 2014)\r\n\r\nA common thread emerges from the terms in a professional player contract which is distinct from the majority of other employment contracts; namely, the protection of the commercial value of the player. The Player Contract is almost a hybrid commercial and employment arrangement.\r\n\r\nIn a separate article, we will consider the obligations of the Club/Employer towards the player/athlete and the resolution of disputes.\r\n\r\nA Senior Associate in the Employment Department, John routinely works with the Sports Law practice group and his experience includes acting for English Premier League football clubs and a football charitable foundation during various restructuring processes. He has also represented rugby players and clubs in disputes and disciplinary hearings before governing bodies. John is a Registered Lawyer under the UK Football Association Player Agents Regulations.'),
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	(90722,4932,'content','May 2014\r\n\r\n<hr />\r\n\r\nWhat does this mean for your business?\r\n\r\nPreviously the Domain Name System was defined by only 22 net address extensions or generic top-level domain names (“gTLDs”), including the most popular ‘.com’, ‘.net’ and ‘.org)’ and approximately 250 country code top level domains (such as ‘.ae’ or ‘.qa’).\r\n\r\nA dramatic expansion of gTLDs is currently taking place. Since late October 2013, over 175 new ‘strings’ have been delegated by the Internet Corporation for Assigned Names and Numbers (“ICANN”), the non-profit organisation responsible for the global management of the domain name system.  More than 1,000 new gTLDs are expected to be added in the next year or so. ICANN’s new gTLD program is intended to increase competition and choice in the domain name space.\r\n\r\nGenerally the new domain name extensions fall into the following categories:\r\n<ul>\r\n 	<li>Brands (‘.mango’ and ‘.axa’ have been delegated and applications for the likes of ‘.ford’, ‘.apple’, ‘.samsung’ and ‘.etisalat’ have passed their initial ICANN evaluations)</li>\r\n 	<li>Communities (‘.democrat’, ‘.actor’)</li>\r\n 	<li>Geographic (‘.london’, ‘.tokyo’, ‘.berlin’ have been delegated; ‘.abudhabi’ and ‘.dubai’ are coming)</li>\r\n 	<li>Generic (‘.events’, ‘.rentals’, ‘.expert’, ‘.flights’, ‘.cool’).</li>\r\n</ul>\r\nICANN has also approved the introduction of gTLDs in non-Latin script such as Arabic, Chinese and Cyrillic.  Among the first of the new gTLDs to be delegated were the Arabic characters for “web/network”.\r\n\r\nThe expansion of net domains offers new opportunities for online identity building.  Whereas previously domains were generally limited to the broad ‘.com’ or ‘.ae’ type country code, a business or organisation now can have a very specific domain name.  If you are a florist, you can now have ‘.florist’.  If you have a club, you can have ‘.club’.  You can even be a ‘.ninja’ or a ‘.guru’ if you want.\r\n\r\nConsequently, while the increase in the number of gTLDs is not expected to change the way the internet operates, it will likely change the way people find information on the internet and how brands and businesses plan their domain name space.\r\n\r\nIt may no longer be good enough for a business to limit its domain name strategy to a decision about registering with “.com” and the relevant country code for where it operates.  Instead, proper domain name management will require planning and strategy as the new gTLDs become available.  For example, from the newly delegated gTLDs, a fashion retail business may need to consider registering their brand with ‘.clothing’, ‘.boutique’, ‘.bargains’, ‘.shoes’, or ‘.luxury’.\r\n\r\nInitially it will be tricky to determine which of the gTLDs will be the most commercially relevant.  The 22 pre-existing gTLDs included ‘.biz’ and ‘.name’, neither of which have been commonly used.\r\n\r\nCritics believe that the increase in domain extensions will lead to consumer confusion. However, most consumers already find their web destinations via search engines rather than by typing web addresses into browsers.  Accordingly, the influx of new domain extensions will most likely increase reliance on search engines.  For businesses, it will be even more important to influence how Google, Bing or any other search engine ranks their web address in response to a search request.\r\n\r\nCritics also claim that businesses will be subjected to unnecessary expense by having to register their name with each relevant new gTLD to avoid it falling it to the wrong hands. A counter argument is that with so many alternative gTLDs becoming available to the legitimate brand owner, cyber squatters may find that locking up an extension does not create the same leverage as before when the options were limited.\r\n\r\nTo address intellectual property infringement concerns with the new gTLD program, ICANN has recently established new mechanisms to assist in protecting the rights of trademark owners.\r\n\r\nThe Uniform Rapid Suspension System (“URS”) is intended as an inexpensive and quick dispute resolution procedure for trademark owners experiencing clear cut cases of infringement caused by domain name registrations under the new gTLDs. If a compliant made under the URS system passes an initial administrative review, the operator of the relevant gTLD registry must lock the domain name in dispute.  If the URS procedure results in a determination that the domain name must be suspended, the registry operator must implement the suspension. ICANN‘s role is to ensure that the registry operator locks and suspends the domain name in accordance with the URS procedure.\r\n\r\nUnder the Trademark Clearinghouse (“Clearinghouse”), owners of trademarks that are registered, court validated or otherwise protected under the statue or treaty, can pay a fee and register their trademarks to a centralised global database for protection (see http://trademark-clearinghouse.com). Benefits of registering a trademark with the Clearinghouse include access to ‘sunrise’ registration for domain names for new gTLDs that match the registered trademark. This means that trademark owners have period of at least 30 days in which to take up the new gTLDs before those domains are made available to the general public. The Clearinghouse will also notify a trademark owner if a domain identical to the registered trademark has been registered by another entity.\r\n\r\nThe Clearinghouse will issue a claims notice as a warning to applicants attempting to register a domain name that matches a trademark registered with the Clearinghouse. The claims notice appears to be an effective deterrent, since the Clearinghouse has publicly stated that it delivered over 500,000 such notices in its first year of operation. Of the queries for registration to which a notice was given by the Clearinghouse, 95% were subsequently not followed through to live registration.\r\n\r\nIf you are a registered trademark owner who has yet to record your mark with the Clearinghouse, it is not too late to benefit since many more new domains are still to be deployed.\r\n\r\n<strong>WHAT SHOULD YOU DO?</strong>\r\n\r\nIf you are a business or brand owner you need to be aware that the domain name system is changing significantly, and as a result you should give proper thought and attention to how you plan and manage your domain name portfolio and your online presence.  Do you want to have first mover advantage in registering your names with new gTLDs as soon as they become available? Will they just be new internet addresses for old content or an opportunity for innovation?\r\n\r\nIf you are the owner of a registered trademark you should also consider registering your trademark with the Trademark Clearinghouse to be able take advantage of the protections that this mechanism provides.'),
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	(90737,4933,'content','May 2014\r\n\r\n<hr />\r\n\r\nThe success of Facebook, Instagram, Twitter and LinkedIn (to name a few) is testament to this.  Users – both commercial and personal – create accounts and post comments and images on these social media applications in an attempt to say something.  From current affairs to personal outings to showcasing products and services (and everything else in between), popular social media applications are bursting at the seams with live and current information.\r\n\r\nThis is great news for the owners and creators of the social media applications.  The success of social media has led to new and exciting ways for people to engage with each other, whereby owners and creators continuously strive to push the digital boundaries into a new era.\r\n\r\nTo this end, we highlight below some interesting new developments that are trending right now internationally.  For some of these developments, and particularly those which may be accessible to users in the UAE, it remains to be seen as to whether or not they will raise any local legal or regulatory issues.  We encourage you to watch this space …\r\n\r\n<strong>Who: </strong><strong>Facebook</strong>\r\n\r\n<strong>What: Passporting: Facebook e-money</strong>\r\n\r\nDetails: Facebook is reportedly seeking regulatory approval in Ireland to provide a service which, if approved, will facilitate digital payments between users across EU member states without Facebook having to gain regulatory approval from each EU member state.  The service is called “passporting”, and will allow users to store money on Facebook and use it to pay others (limited to Europe only) without the intervention of outside parties and without “real” money ever exchanging hands.\r\n\r\nIf this concept is in fact true, then not only does this revolutionalise social media as we know it, it has the potential to raise cross-border financial regulatory and legal issues that arise when dealing with e-money generally. Matters of security, improper use and data protection are a few that are high on the list, as are the overarching central bank / regulatory concerns.\r\n\r\nAvailable in the UAE: No, although perhaps don’t be too quick to dismiss the thought of a branch of the Bank of Facebook coming soon.\r\n\r\n<strong>Who: Getty Images</strong>\r\n\r\n<strong>What: Free Embedding Option for Social Media Users</strong>\r\n\r\nDetails: Getty Images, one of the world’s largest supplier of stock images for businesses and consumers, has recently revolutionalised the concept of photo-sharing and is for the first time ever allowing users to embed images on blogs and social media sites without charging a fee for the (non-commercial) use of those images. This option will be available on the bulk of Getty Images’ images, and will allow users to drop any image into their website or blog – providing that the use is non-commercial.\r\n\r\nGetty Images’ terms of use specifically state that the images cannot be used: “…for any commercial purpose (for example, in advertising, promotions or merchandising) or to suggest endorsement or sponsorship.” For those interested, make sure you read the terms of use, as any use that is deemed commercial will be subject to a fee (whereby the user will have to purchase a license to use the image(s)).\r\n\r\nIn an attempt to clarify what is meant by a “commercial purpose”, Getty Images has been reported as saying that “The key attribute in classifying use as commercial is whether the image is used to promote a business, goods or services, or to advertise something. If not, it is a non-commercial use.”\r\n\r\nIt has also been reported in the media that the new embeds are built on the same iframe code that lets you embed a tweet or a YouTube video, which means that Getty Images may use embeds to place advertisements or collect user information, for example.  This has not been confirmed by Getty Images, although it has not been ruled out entirely.  This may have the potential to raise privacy-type concerns, however in the context of having access to a database of free images for use in non-commercial purposes, this may be the quid-pro-quo for images which would otherwise have been subject to license fees (or copyright claims, for those infringers out there!).\r\n\r\nAvailable in the UAE:  As far as we know, yes.  Happy sharing!\r\n\r\n<strong>Who: Facebook</strong>\r\n\r\n<strong>What: Removing Chat Option from Mobile App </strong>\r\n\r\nDetails: Facebook is reportedly turning off its instant chat function from its mobile phone app.  According to recent media reports, Facebook will slowly begin to roll out this deactivation plan globally, starting with European users, where Facebook has already notified its users in some European countries that they will need to download the Messenger app on their iOS or Android phone to ‘instant message’ their friends.\r\n\r\nThis is an interesting development, given that Facebook recently purchased the popular social chat application, “What’s App” (although given that What’s App has an extensive user base, it is understandable).  Reports say that What’s App and Facebook Messenger will co-exist with little to no cross-over, with Facebook now controlling over two-thirds of the instant messaging market.\r\n\r\nAvailable in the UAE: As far as we know, users in the UAE need to download the Messenger app on their iOS or Android phone to instant message their friends. (We are, however, not clear if it is mandatory like it is in Europe, as users in the UAE can still email chat with their contacts in the Facebook mobile app without downloading Messenger). Until otherwise notified, chat away!'),
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Relying on traditional means of financing could create obstacles for the progress of these projects and, because of the high prices of the machinery and the equipment, traditional financing will require that these projects freeze part of their capital, or provide high-valued guarantees that could hinder the work of the projects as well as expose them to bankruptcy in extreme cases.\r\n\r\nFinancial leasing was therefore introduced in major projects to provide the necessary funds to ensure continuity and the modernization of processes, through technological progress.\r\n\r\nThe essence of financial leasing is to enable the projects to get the equipments and devices needed without bearing the costs of buying them all at once, and in a manner that guarantees the rights of the lessor by retaining ownership of the equipment until its value is fully paid. As such, financial leasing can be considered an active legal tool in financing all forms of projects.\r\n\r\n<strong>How Financial Leasing Works</strong>\r\n\r\nIn practice, a Financial Lease comes into play when one party (who will be the lessee) desires to make use of machinery and equipment needed for the exercise of their business, or when they need to modernize the equipment they already posses while not having the money necessary to purchase such equipment. The lessee will present their project to one of the institutions specialised in financial leasing. If the institution approves the project for financing, they entrust the lessee with the negotiations for the purchase of such equipment and appliances and leave determination of the specifications and delivery of the equipment to the lessee and the provider. The equipment is then purchased in the name of the financial leasing institution (lessor), which in turn leases the equipment to the lessee for a limited period, in exchange for an agreed payment. At the end of the leasing term, the lessee will have three choices: to buy the equipment, return it upon the expiry of the contract, or re-lease it for a further period.\r\n\r\n<strong>The Benefits of Financial Leasing</strong>\r\n\r\nThe importance of financial leasing in economical terms is that the lease, as a contract, encourages its beneficiaries to take on new projects, or upgrade their existing projects by backing them with modern instruments and highly developed equipment. As a result, this  contributes in turning the economical wheel by:\r\n<ol>\r\n 	<li>Encouraging investments: Investments contribute to economic growth, thereby allowing small and medium enterprises to undertake a wide range of new and existing projects and giving them the opportunity to finance their equipment. These projects constitute a broad basis in the economical growth of any country with limited sources of funding. Financial leasing, being one of these means, opens the door for these projects.</li>\r\n 	<li>Contribution to economical growth through direct credit and employment of savings to finance project investment. As a result, this leads to a boost in the economic development in the country by increasing the productivity of projects.</li>\r\n 	<li>Reducing the effects of inflation on the cost of expansions or the establishment of new projects, as financial leasing eliminates the waiting periods required by the projects to provide for their financial needs, whether by the composition of reserves or by the floatation of stock to raise capital. This in turn avoids the higher costs of expansion or new projects, compared to the cost that would have been necessary to obtain equipment without the wait through financial leasing.</li>\r\n 	<li>Stimulation of the competition between the different sources of funding, leading to a reduction in the cost of projects. For example, a project will not have to resort to mortgaging its assets fully in order to get the funding needed for the exercise of their activity. Mortgaging requires expenses for registration, in addition to the fact that it limits the ability of the project to borrow extra funding in cases of emergency expansions.</li>\r\n 	<li>Financial leasing contributes to the regularity with which equipment can be updated, which can result in economic advantages, especially in the constantly changing worlds of medicine and technology.</li>\r\n</ol>\r\nThe government of the Hashemite Kingdom of Jordan recognised the advantages of financial leasing on the economic development of the country and its positive impact on the real lives of its people. Therefore, organising financial leasing within a legislative framework was considered an important step and Law No. 16 of 2002, which included 25 articles that deal with financial leasing, was passed. The adoption of this law was a positive move that led to the acceleration of national economic growth by encouraging individuals and companies to utilise the specialised institutions and enter into financial leasing contracts.'),
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	(90817,4938,'content','June 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\"><strong>Introduction - US Government Watch Lists for Copyright Piracy</strong></p>\r\n<p class=\"MsoNormal\">The U.S. Trade Representative (USTR) produced its annual Special 301 Report in April 2014. This report is named after Section 301 (as amended) of the U.S. Trade Act of 1974 and, among other things, recommends reforms needed to address the theft of intellectual property and other barriers to overseas markets faced by U.S. industries that rely on copyright protection to produce movies, television programmes, music, software, video games, and books and journals.</p>\r\n<p class=\"MsoNormal\">The Special 301 Report also makes recommendations as to countries’ inclusion on the various ‘levels’ of U.S. watch lists (or indeed whether to not include a country on any list): Priority Foreign Country; Priority Watch List or Watch List. The 2014 Special 301 Report lists 10 countries on the Priority Watch List (Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Russia, Thailand and Venezuela) and 27 on the Watch List (down from 30 in 2013). Kuwait is the only GCC country to appear on the Watch List.</p>\r\n<p class=\"MsoNormal\"><strong>Kuwait and Intellectual Property Rights</strong></p>\r\n<p class=\"MsoNormal\">Kuwait is a member of the World Trade Organization, a signatory to the Agreement on Trade Related Aspects of Intellectual Property Rights, a member of the World Intellectual Property Organization and recently a signatory of the Bern Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property. Hence, Kuwait is under an obligation to pass intellectual property laws meeting the minimum standards for the protection and enforcement of intellectual property rights.</p>\r\n<p class=\"MsoNormal\">Kuwait protects intellectual property by Law No. 64 of 1999. Article 42 stipulates that imprisonment and or financial penalty will be imposed on any person who:</p>\r\n<p class=\"MsoListParagraph\">a)     infringes the owner’s rights;</p>\r\n<p class=\"MsoListParagraph\">b)     sells or offers for sale or circulates or broadcasts to the public or brings in or out of the country an imitated literary work;</p>\r\n<p class=\"MsoListParagraph\">c)     discloses or facilitates in the disclosure of computer software; or</p>\r\n<p class=\"MsoListParagraph\">d)     removes or participates in the removal of property rights that regulates or limits public access to literary works.</p>\r\n<p class=\"MsoListParagraphCxSpLast\">In accordance with this law, authors may file their literary work before the National Library for protection of the work to be granted. The procedure for filing for copyright protection is quite simple as it starts with filing the application form and enclosing with hard and soft copies of the work. Copyright registration is relatively quick and easy and the copyright certificate can be received in as little as three days.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The protection of copyright rises above the mere protection of literary works, as it offers the central incentives for the creation of new valuable works and offers appropriate economic and moral rights to authors, performers, producers and publishers.</p>\r\n<p class=\"MsoNormal\">Nonetheless, copyright protection requires collective efforts from creators, distributors, law makers, and other parties, as the negative effects of copyright infringement take their toll on the economy and the cultural heritage of the country. The most common activity contravening to copyrights is illegal file sharing, specifically of music, television shows and movies. There are a number of websites available in the Middle East, which allow file sharing and streaming, such activity being done without authorization of authors and copyright holders. In many Western countries, such as the United States, Canada, the United Kingdom and Australia, authorities are actively involved in shutting down such websites and the infringers, through their IP addresses, are criminally pursued. In addition, rights-holders are pursuing individuals for their illegal activities, including individuals involved in the distribution of pirated movies. The countries named in the 2014 Special 301 report have a challenge to fight against copyright piracy and set up standards which are acceptable to their international counterparts.</p>\r\n<p class=\"MsoNormal\"><strong> </strong></p>'),
	(179964,4938,'core_values',''),
	(90818,4938,'_content','field_59b649b5c8b2b'),
	(90819,4938,'lawUpdateArticleMonth','4936'),
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	(90821,4938,'content_description','The U.S. Trade Representative (USTR) produced its annual Special 301 Report in April 2014. '),
	(90822,4938,'_content_description','field_59b641c07f473'),
	(90823,4938,'pageSummary','The U.S. Trade Representative (USTR) produced its annual Special 301 Report in April 2014.'),
	(90824,4938,'_pageSummary','field_59e59b307dec8'),
	(90825,4938,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/june-6/kuwait-named-on-us-government-watch-list-for-copyright-piracy.html'),
	(90826,4938,'_currentURL','field_59d35123ab1e7'),
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	(90828,4938,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
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	(90830,4938,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(90831,4938,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
	(90832,4938,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
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	(90834,4938,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(90835,4938,'_yoast_wpseo_metadesc','The U.S. Trade Representative (USTR) produced its annual Special 301 Report in April 2014.'),
	(90836,4939,'content','June 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The Anti Counterfeiting and Fraud Department (ACFD) within the Ministry of Commerce and Industry (MOCI) in Saudi Arabia is a platform whereby trademark owners can seek to enforce their registered trademarks rights without having to resort to lengthy and expensive Criminal and/or Civil Court action.</p>\r\n<p class=\"MsoNormal\">The headquarters of MOCI are located in Riyadh with branch offices in other cities.  Once a complaint against trademark infringement is filed before the appropriate branch office of the ACFD (via a MOCI office), an assigned officer of the ACFD will study the complaint and will determine what investigatory steps are taken including an inspection of the premises of the opponent, and whether a raid if necessary.  In the event that these steps identify  counterfeit and/or infringing products and materials these will be confiscated.</p>\r\n<p class=\"MsoNormal\">The ACFD may also issue a direction to the opponent to remove all infringing materials from its premises including any signboards if the dispute involves the opponent’s unauthorised use of complainant’s trademark and the opponent may be required to sign an undertaking to the effect that it will permanently refrain from illegally using the trademark of the complainant without the necessary authorization to do so.  The ACFD is also authorized to destroy the confiscated products and materials and to issue a seizure report to the complainant.  If the situation warrants, the ACFD may also impose interim sanctions and/or injunctions against the opponent’s carrying out certain business transactions. In the event of a failure to comply with an order of the ACFD, such injunctions can go as far as freezing all works, applications, licensing activities before all governmental agencies, ministries and departments.</p>\r\n<p class=\"MsoNormal\">If the opponent is not prepared to comply with the ACFD’s requirements (as stated above), and continues with the infringing activities, then the ACFD will forward the matter to the Bureau of Investigation and Public Prosecution (the “<strong>Bureau</strong>”) with its recommendations.  The Bureau will then investigate the matter and, if it finds the opponent has breached trademark rights, it will refer the case to the competent court.</p>\r\n<p class=\"MsoNormal\">The procedure followed at the ACFD is somewhat similar to the procedure followed by Department of Economic Development (DED) in the UAE in the matter of administrative complaints filed against trademark infringement issues, with the main procedural differences as follows:</p>\r\n<p class=\"MsoListParagraphCxSpFirst\">a)     While processing an administrative complaint filed before the DED, the officials will allow the brand owner and/or his legal representative to accompany them while they inspect or raid the premise of the opponent and confiscate the infringing products, whereas the ACFD will not allow the same and the brand owner or his representative will not have access to the proceedings followed by the ACFD, although they will get updates on their complaint from the ACFD office from time to time.</p>\r\n<p class=\"MsoNormal\">The DED will normally issue a fine against the opponent if they found the opponent is in breach, whereas the ACFD will not normally issue a fine against the opponent, although they impose other sanctions (see above). In order to file a complaint before the ACFD, the following documents and information are required:</p>\r\n\r\n<ul>\r\n 	<li>A power of attorney on behalf of the complainant,</li>\r\n 	<li>A copy of the trademark registration certificate,</li>\r\n 	<li>Address and location details of the opponent,</li>\r\n 	<li>A brief description on the trademark infringement activities of the opponent, and</li>\r\n 	<li>Samples / images of the infringing and genuine products.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Where it is necessary to file a criminal or a civil case before the Grievance Board against trademark infringements in Saudi Arabia, the brand owner has to first file a complaint before the ACFD and get the case referred to Bureau to obtain a finding in the case confirming that there has been a violation of the applicable trademark laws.  In most of the jurisdictions in this region, court cases whether it is criminal or civil are cumbersome, time consuming and expensive, and Saudi Arabia is no exception.</p>\r\n<p class=\"MsoNormal\">For this reason, we have frequently and successfully availed the ACFD as a platform to get redress of trademark infringement issues for our clients, without dragging the matters to long lasting litigation before the courts.  We consider that the ACFD has ample powers to investigate into the trademark infringement issues in question, summon the offending parties, issue orders of removal of infringing materials, confiscate and destroy counterfeit and infringing products and force the offenders to comply with its orders also with the help of police authorities, if necessary.</p>\r\n<p class=\"MsoNormal\">To summarize, enforcing trademark rights through administrative actions is proved a viable and speedy option in Saudi Arabia. Brand owners are advised to consider such options and cooperate with the MOCI and ACFD officials to tackle the menace of trademark infringements issues in the Kingdom.  Al Tamimi and Company with its presence in the Kingdom is well placed to assist businesses in tackling trademark infringement. .</p>\r\n<p class=\"MsoNormal\"></p>'),
	(179912,4939,'core_values',''),
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	(90837,4939,'_content','field_59b649b5c8b2b'),
	(90838,4939,'lawUpdateArticleMonth','4936'),
	(90839,4939,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(90840,4939,'content_description','This article discusses the merits of enforcement of trademark rights in Saudi Arabia through Administrative Actions.  '),
	(90841,4939,'_content_description','field_59b641c07f473'),
	(90842,4939,'pageSummary','This article discusses the merits of enforcement of trademark rights in Saudi Arabia through Administrative Actions.'),
	(90843,4939,'_pageSummary','field_59e59b307dec8'),
	(90844,4939,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/june-6/administrative-actions-to-enforce-trademark-rights-in-saudi-arabia.html'),
	(90845,4939,'_currentURL','field_59d35123ab1e7'),
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	(90849,4939,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(90850,4939,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
	(90851,4939,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(90852,4939,'lawUpdateArticlePractices','1'),
	(90853,4939,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(90854,4939,'_yoast_wpseo_metadesc','This article discusses the merits of enforcement of trademark rights in Saudi Arabia through Administrative Actions.'),
	(90855,4940,'content','June 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">This article considers a recent example of the steps taken by the UAE authorities to enforce such rights.</p>\r\n<p class=\"MsoNormal\">On 17 May 2014 a raid was executed by the Commercial Compliance Section of the Dubai Department of Economic Development (the “DED”) in Souq Nayef in Dubai.  This action (called an “Administration Action”) was taken on behalf of an entity set within Dubai Technology and Media Free Zone, commonly referred to as TECOM.  The entity sought to protect its intellectual property rights in respect of its product being smart phones.</p>\r\n<p class=\"MsoNormal\">The DED assigned two DED inspectors and also another inspector from the Telecommunications &amp; Regulatory Authority who inspected and then seized infringing goods bearing unauthorised reproductions of the smart phones from two apartments.  An estimated <strong>26,000 smart phones </strong>were seized by the DED. In addition, the DED imposed a fine of AED <strong>30,000 (USD 8,200</strong>) against the offending retailer on the basis that this was the second recorded infringement this year. The estimated price of the seized goods was AED <strong>13.000.000</strong> <strong>(USD 3,550,000</strong>).</p>\r\n<p class=\"MsoNormal\">As noted by the above case, the involvement of the DED is an important method through which brand owners can protect their intellectual property rights. Administration Actions are routinely carried out in the UAE by the DED in Dubai, Sharjah and Abu Dhabi.  In the other Emirates such efforts are coordinated through the Ministry of Economy rather than the DED. The DED enforcement actions are usually against outlets that sell the counterfeit goods rather than against major importers or distributors of counterfeit goods; as those late will be subject to anti counterfeit actions through criminal actions conducted by Police.</p>\r\n<p class=\"MsoNormal\">Whilst the UAE operate Administration Actions, it is interesting to consider how other GCC countries operate enforcement of intellectual property rights. For example, in Saudi Arabia, the Anti-Commercial Fraud Department undertakes this responsibility which has proven an effective means of addressing the violation of such rights. In Kuwait, the Ministry of Trade, along with the police, coordinate in the fight against counterfeit goods with prosecutions being before the court.</p>\r\n<p class=\"MsoNormal\">Administration Actions generally result in the confiscation and destruction of the goods with a fine imposed against the offender.  Unfortunately, the amount of the fine is often insufficient to act as a deterrent However, the use of Administration Actions is generally both efficient and quick as compared to court actions.</p>\r\n<p class=\"MsoNormal\">The Intellectual Property Enforcement team at Al Tamimi &amp; Company has been instrumental in supporting various businesses in a systematic drive against the infringement of their valuable rights and will continue to aid the authorities in doing so.</p>'),
	(90856,4940,'_content','field_59b649b5c8b2b'),
	(90857,4940,'lawUpdateArticleMonth','4936'),
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	(90859,4940,'content_description','For many businesses, it is vitally important for brand owners to protect their intellectual property rights.  '),
	(90860,4940,'_content_description','field_59b641c07f473'),
	(90861,4940,'pageSummary','For many businesses, it is vitally important for brand owners to protect their intellectual property rights.'),
	(90862,4940,'_pageSummary','field_59e59b307dec8'),
	(90863,4940,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/june-6/anti-counterfeiting-action-smart-phones-infringement.html'),
	(90864,4940,'_currentURL','field_59d35123ab1e7'),
	(90865,4940,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','809'),
	(90866,4940,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(90867,4940,'lawUpdateArticleWriters','1'),
	(90868,4940,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(90869,4940,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
	(90870,4940,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(90871,4940,'lawUpdateArticlePractices','1'),
	(90872,4940,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(90873,4940,'_yoast_wpseo_metadesc','For many businesses, it is vitally important for brand owners to protect their intellectual property rights.'),
	(90874,4941,'content','June 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The UAE is a young and dynamic country and its real estate market is developing at an incredible speed.  It has a distinct identity as a regional hub for trade and investment which is attractive to foreign investors; however, in recent years there has been a number of court decisions concerning the sale of property which have reached unusual conclusions. This article will discuss how the rules of public policy are being interpreted by the courts to set aside property related arbitral awards.</p>\r\n<p class=\"MsoNormal\">With the real estate boom in the UAE, there has been an increasing number of arbitral cases involving developers, contractors and investors. In the past few years disputes have increased significantly. In 2012 the Dubai International Arbitration Centre (DIAC) administered 379 cases compared to 2003 where only 15 cases were administered.  With respect to the ICC, out of a total of 2036 parties involved in ICC arbitration cases in 2012, 59 parties came from the UAE. The UAE (and Dubai in particular) has not only been a business hub for Middle Eastern and Asian investors but also a centre for dispute resolution for the entire Middle East and Africa. The economic growth in the Middle East, despite the four year downturn from the year 2008 to 2012, has attracted a lot of legal challenges and interest from the arbitration community. As the UAE continues to grow, it is likely more disputes will arise, some of which will find themselves in court and others in local and international arbitration.</p>\r\n<p class=\"MsoNormal\">Despite the increase in property disputes, the past few years has been an exciting time for the property market as a number of laws were enacted. The impact of these laws will also be seen in the judgments discussed below.  This article will reference Dubai Law 13 of 2008 regulating the registration of off-plan property sales (as amended by Law 9 of 2009), Abu Dhabi Law 3 of 2005 concerning property ownership in Abu Dhabi (as amended by Law 2 of 2007), the UAE Civil Code 1985 (as amended) and the UAE Civil Procedure Law 11 of 1992 (as amended).</p>\r\n<p class=\"MsoNormal\"><strong>Cases</strong></p>\r\n<p class=\"MsoNormal\">All the cases mentioned below consider the public policy concept in matters concerning property disputes.</p>\r\n<p class=\"MsoNormal\"><strong>Dubai Court of Cassation judgment 43 of 2009</strong></p>\r\n<p class=\"MsoNormal\">In <strong>Dubai Court of Cassation judgment 43 of 2009</strong> dated 11 April 2010, the court held that “the provisions of Article 3 of Law 13 of 2008 regulating the preliminary land registry in the emirate of Dubai shows, as has been held in the precedents of this court, that registration of all dispositions over real estate units sold on plan must be registered, and that the person who has the obligation to submit the application for registration to the Department is the developer.  His role is limited to submitting the necessary documents with the application.  He is not the body entrusted with registration.  The task of registration is entrusted to the Lands and Property Department.  The time limit is 60 days as provided for in that article.  That is a regulatory time limit and the mere fact that the developer goes beyond the time limit or delays submitting his application for registration will not render the disposition void.  What will render the disposition of a sale on the plan void is its not being registered at all.  This is what was intended and aimed at by the legislature, in harmony with and consistently with the principle of the probative force of the real estate register.</p>\r\n<p class=\"MsoNormal\"><strong>Dubai Court of Cassation Judgment 180 of 2011</strong></p>\r\n<p class=\"MsoNormal\">In <strong>Dubai Court of Cassation Judgment 180 of 2011</strong> issued on 12 February 2012, a dispute arose out of a contract concerning the sale of an off-plan unit.  The Respondent requested the arbitrator to cancel the contract and refund it for payments it had already made towards the purchase price as the contract had not been registered on the interim property register. The Respondent sought ratification of the arbitral award.  The court held that pursuant to Article 203 (4) of the Civil Procedure Law, arbitration is not permissible in areas that cannot be subject to conciliation.  On that basis, the sale of off-plan units, without complying with the mandatory registration requirement, as provided for in Article 3 of Law 13 of 2008 regulating the interim property register in the Emirate of Dubai, cannot be the subject matter for arbitration as this is contrary to the principles of public policy.</p>\r\n<p class=\"MsoNormal\"><strong>Dubai Court of Cassation Judgment</strong> <strong>14 of 2012</strong></p>\r\n<p class=\"MsoNormal\">In <strong>Dubai Court of Cassation Judgment</strong> <strong>14 of 2012</strong> issued on 16 September 2012, a claim was made to enforce three related DIAC awards that concerned a private property dispute and the application of Dubai law 13 of 2008 regulating the registration of off-plan property sales. The Court nullified the awards on grounds that the application of the relevant property law is a matter of public policy which cannot be resolved through arbitration.</p>\r\n<p class=\"MsoNormal\">The Court of Appeal held that the sale contract was void because it was not registered on the interim property register in accordance with Law No. 13 of 2008 (as amended by Law No. 9 of 2009) regarding the interim property register in the Emirate of Dubai as it involves rules of individual ownership and the circulation of wealth (which the courts considered a public policy issue). The Court held that the arbitrator erred and incorrectly applied the law by ruling on the issue of invalidity and the Court of First Instance’s decision is contrary to the correct application of the rule of law.  For this reason it was dismissed without the need to examine the remaining grounds of appeal. Arbitral Award No. 80-2009 (Dubai International Arbitration Centre) was set aside.<strong> </strong></p>\r\n<p class=\"MsoNormal\"><strong>Abu Dhabi Court of Cassation Judgment</strong> <strong>663 of 2012</strong></p>\r\n<p class=\"MsoNormal\">In <strong>Abu Dhabi Court of Cassation Judgment</strong> <strong>663 of 2012</strong> issued on 28 March 2013, the Appellant filed an action against the Respondent seeking to set aside an arbitral award. The Respondent had purchased units in the Appellant’s buildings and pursued arbitration to cancel the sale and purchase contracts for the units on account of the Appellant’s failure to complete the buildings.  The Respondent requested a refund of the amount he paid towards the purchase price of the property. An arbitral award was issued which terminated the sale and purchase contract<strong>.</strong> The Court of Cassation, however, held that a court must intervene to investigate the irregularity in light of the rules of law of the judge’s country even if the irregularity is not one of the grounds for setting aside the arbitral award under <strong>Article 216 </strong>of the<strong> Civil Procedure Law</strong>.  This is in the event an arbitrator exceeds his authority and resolves an issue relating to public policy that is outside the scope of conciliation.  Public policy is a set of guidelines for taking decisions and pursuing action that are of fundamental concern to society and the basis for the social, political, economic or ethical laws of the state, as a result, all public policy issued must be determined by the courts.</p>\r\n<p class=\"MsoNormal\"><strong>Dubai Court of Cassation judgment 282 of 2012</strong></p>\r\n<p class=\"MsoNormal\">In <strong>Dubai Court of Cassation judgment 282 of 2012</strong> dated 3 February 2013, the courts limited the application of Article 3 of the UAE Civil Code, Article 203 of the UAE Civil Procedures law and Dubai Law No. 13 of 2008 to disputes where one of the parties is seeking a remedy for the invalidity of the sale and purchase contract. In this judgment, one of the parties requested to cancel the sale and purchase agreement and refund the payment as the seller failed to deliver the unit. The Respondent in the arbitration challenged the enforcement of the award before the Dubai Courts on the grounds that it is a matter of public policy, therefore the arbitration clause, it was argued, was invalid and the award should be set aside. The Dubai Court of Cassation however, held that the remedy sought by the claimant in this arbitration was limited to cancelling the contract as the seller failed to comply with the terms and conditions of the sale and deliver the unit on the date agreed in the contract (which contains an arbitration clause). The court held that this is different from a request to invalidate the contract (because it had not been registered at the Land Register). Accordingly the arbitration award was upheld and deemed enforceable.</p>\r\n<p class=\"MsoNormal\">The remedy sought in the above case did not seek to void the transaction pursuant to Article 3 of the Dubai Law 13 of 2008. The remedy sought through arbitration was damages and a termination order, as a result, the arbitration award was upheld and enforced.</p>\r\n<p class=\"MsoNormal\"><strong>Abu Dhabi Court of First Instance judgment numbered 2847 of 2013</strong></p>\r\n<p class=\"MsoNormal\">In a recent <strong>Abu Dhabi Court of First Instance judgment numbered 2847 of 2013 </strong>issued on the 12 February 2014, the arbitration tribunal rescinded a contract relating to a property unit and ordered the refund of payments made by the Claimant in addition to damages payable as a result of the Defendant’s breach of contract.  In this case, the court held that the matter did not relate to a public interest of a political, social or economic nature concerning the system of society but related to the private interests of the parties in respect of which they are entitled to act and pursue conciliation.  The arbitral award in question did not violate any rule of public policy.</p>\r\n<p class=\"MsoNormal\"><strong>What are the legal grounds for these judgments?</strong></p>\r\n<p class=\"MsoNormal\">The courts  based their decisions on both local and Federal law. The judgments cited case law that applied the relevant articles from the UAE Civil Procedure Law (in particular Article 203) pertaining to Arbitration, the UAE Civil Code as well as local property law relating to acquiring property in the Emirates.</p>\r\n<p class=\"MsoNormal\"><strong>Article 203 </strong>of the <strong>UAE Civil Procedure</strong> <strong>Law </strong>states that:</p>\r\n<p class=\"MsoNormal\"><strong><em>“</em></strong><em>1 </em><em>- It shall be permissible for contracting parties generally to stipulate in the original contract or in a subsequent agreement to refer any dispute between them concerning the implementation of a specified contract to one or more arbitrators and it shall likewise be permissible to agree by special conditions to arbitration in a particular dispute.</em></p>\r\n<p class=\"MsoNormal\"><em>2 - An arbitration agreement may be proved only by writing.</em></p>\r\n<p class=\"MsoNormal\"><em>3 - The subject matter of the dispute must be defined in the arbitration instrument or during the trial of the action even if the arbitrators are empowered to effect a conciliation, failing which the arbitration shall be void.</em></p>\r\n<p class=\"MsoNormal\"><em>4 - It shall not be permissible to arbitrate matters is which conciliation is not permissible. An agreement to arbitrate shall not be valid unless made by persons having the legal capacity to make a disposition over the right the subject matter of the dispute.</em></p>\r\n<p class=\"MsoNormal\"><em>5 - If the parties agree to arbitrate the dispute it shall not be permissible to bring an action in respect thereof before the courts but nevertheless if one of the parties does have recourse to litigation without regard to the arbitration clause and the other party does not object at the first hearing the action must be tried and the arbitration clause shall be deemed to be cancelled.”</em></p>\r\n<p class=\"MsoNormal\">Most of the judgments relied on <strong>Article 203</strong> to emphasize the fact that arbitrators are not empowered to deal with matters which cannot be settled amicably between the parties. In other words, the parties cannot arbitrate or agree to arbitrate matters where they have no power. This principle, of course, exists in most comparative legislation but the courts in the above cases applied this principle and construed the meaning in a unique way as discussed in more detail below.</p>\r\n<p class=\"MsoNormal\">Most importantly the judgments relied on <strong>Article 3 </strong>of the<strong> UAE Civil Code (Law No. 5 of 1985</strong> <strong>as amended by Law No. 1 of 1987)</strong> which states the following:</p>\r\n<p class=\"MsoNormal\"><strong><em> “</em></strong><em>Public order shall be deemed to include matters relating to personal status such as marriage, inheritance, and lineage, and matters relating to systems of government, freedom of trade, the circulation of wealth, rules of individuals ownership and the other rules and foundations upon which society is based, in such a manner as not to conflict with the definitive provisions and fundamental principles of the Islamic sharia.”</em></p>\r\n<p class=\"MsoNormal\">Article 3 of the Civil Code therefore sets out the concept and wide reach of “public policy” in the UAE. The concept of public policy in the UAE is not very different from other civil law systems (however, only the Islamic states make reference to the Islamic Sharia which is considered part of public policy). Nevertheless, the meaning of public policy in the UAE is subject to wide interpretation.</p>\r\n<p class=\"MsoNormal\">What is relevant to these cases is the line in Article 3 which states that public order shall be deemed to include “<em>the rules of law enacted to regulate the circulation of wealth</em>”. It is evident from some of the UAE judgments mentioned above that the courts had knowledge or had been influenced by recent Egyptian court rulings. In Cairo Court of Appeals 91<sup>st</sup> Commercial circuit dated 25 September 2005, the Egyptian courts considered the principles of public policy in the context of setting aside an arbitral award involving the sale of property, however in this case, the sale and purchase agreement did not have a lawful purpose.  One of the parties pursued arbitration with the “<em>intention of avoiding legal provisions that would apply should the dispute go to trial or avoiding regular service of process and the guarantees that are associated therewith, as afforded by court proceedings, or circumventing the procedure for establishing title to real property or conspiring to dispose of property in order to usurp property rights or circumventing the procedure for registering dispositions of real property and applicable fees</em>.” In the UAE cases discussed above, the issue of fraud does not apply.  In <strong>Court of Cassation Judgment 14 of 2012</strong>, the court concluded that dealing with real estate property is construed as dealing with the circulation of state wealth and therefore arbitrators cannot arbitrate such matters according to Article 3 of the Civil Code. The Court of Cassation’s analysis is set out as follows:</p>\r\n\r\n<ol>\r\n 	<li>The parties cannot agree to arbitrate matters which they themselves cannot reach an amicable settlement in nor can the arbitrator arbitrate matters where the parties cannot settle the matter amicably.</li>\r\n 	<li>On the basis of Article 3, dealing with the circulation of wealth is a matter of public policy and the parties therefore cannot agree to arbitrate matters relating to this issue.</li>\r\n 	<li>It can be concluded that an arbitration concerning real estate property (national wealth) is a matter that is not within an arbitrator’s scope, therefore, they cannot arbitrate matters concerned with the invalidity of a property disposition.  As a result, any arbitration award that decides on the validity of a real estate transaction would be deemed invalid and the arbitration award will be set aside.</li>\r\n 	<li>Reference was made to Article 3 of Dubai Law No. 13 of 2008 as amended by Law No. 9 of 2009 regulating the Interim Real Estate Register in the Emirate of Dubai;</li>\r\n</ol>\r\n<p class=\"MsoNormal\"><strong><em>Article 3 </em></strong><em>provides<strong>:  </strong></em>“<em>1- The Interim Real Estate Register is used to record all disposals of Real Estate Units that are marked as sold off plan.  Any sale or other disposition that transfers or restricts title or any ancillary rights shall be void if not recorded on that Register.</em></p>\r\n<p class=\"MsoNormal\"><em>2- Any developer who made a sale or other disposition that transferred or restricted title prior to the enactment of this Law should approach the Department to get it registered in the Real Estate Register or the Interim Real Estate Register, as applicable, within 60 days from the date this Law comes into force</em>.”</p>\r\n<p class=\"MsoNormal\">In <strong>Abu Dhabi Commercial judgment 663 of 2012</strong> a similar law in Abu Dhabi (Law 3 of 2005 concerning property ownership in Abu Dhabi, as amended by Law 2 of 2007) also requires property to be registered in the Emirate of Abu Dhabi. Article 6 of Law 3 of 2005 (as amended) provides:</p>\r\n<p class=\"MsoNormal\">“<em>The registration of all transactions effected on the Properties described in Article 10 of this Law which would create an original or subordinate real right or the transfer or the removal thereof, and also the conclusive judgments confirming such matter, in the Register kept for this purpose at the Relevant Department within whose jurisdiction the property is located; non-registration shall result in all the above rights being considered as having not been created, transferred or removed as between the relevant parties or with respect to others.</em></p>\r\n<p class=\"MsoNormal\"><em>This provision shall apply to lease contracts with a term of more than four years. Unregistered Transactions shall not be relied upon nor shall they have any effect save for the personal obligations between the parties involved.</em>”</p>\r\n<p class=\"MsoNormal\">The difference between the Abu Dhabi judgment and the above mentioned judgments is that the court stated that “<em>where a mandatory rule of law does not relate to public policy… or its purpose is the protection of private rights and interests, there would be no justification for invoking the public policy argument.</em>”  However, in <strong>Abu Dhabi case 663 of 2012</strong> public policy was invoked as the subject matter of the arbitral award concerned a property disposition that did not comply with Abu Dhabi’s registration requirements. As mentioned above, property registration is a public policy issue.</p>\r\n<p class=\"MsoNormal\">With respect to (<strong>Abu Dhabi Judgment 2847 of 2013</strong>), the court held that Article 3 of the Civil Code is a “<em>broad article that cannot be applied to all forms of circulation of wealth and rules of individual ownership as only some [forms] relate to public policy such as those that relate to property registration, right of freehold ownership in the Emirate of Abu Dhabi, and the disposal and transfer of land according to Law 3 of 2005 regulating property registration in the Emirate of Abu Dhabi and Law 19 of 2005 concerning property ownership (as amended by Law 2 of 2007).”</em></p>\r\n<p class=\"MsoNormal\">The judgment also states that “<em>Where an arbitration concerns matters of public policy, there are cases where autonomy comes into play in choosing to resolve a dispute by arbitration.  In such cases, the role of public policy is to ensure that the dispute is not resolved in a manner that goes against the requirements of protecting the interests of society.  The parties are entitled to act with respect to the private interests at stake and there would be no violation of public policy in referring disputes (in relation to such interests) to arbitration rather than the courts of the State, provided that the arbitration does not produce an award in conflict with public policy.  An arbitral award may be set aside as contravening public policy only if the award violates any of the rules of public policy while the arbitration agreement would remain valid notwithstanding</em>.”</p>\r\n<p class=\"MsoNormal\"><strong>Are these judgments now UAE law?</strong></p>\r\n<p class=\"MsoNormal\">Until the new UAE Arbitration law is promulgated (the draft is currently in an advanced stage) and until another judgment is issued by the Court of Cassation to overturn the principles mentioned above, it is likely that the lower courts in the UAE will follow the principles set out by Dubai and Abu Dhabi Court of Cassation in relation to the invalidity of sale and purchase agreements of properties in the UAE which have not been registered at the Land Registrar.  The main issue, according to these judgments, is that the arbitrator cannot decide that the contract is invalid due to a failure to register or transfer land.</p>\r\n<p class=\"MsoNormal\"><strong>Is Article 3 of Dubai law 13 of 2008 a matter of public policy – and why:</strong></p>\r\n<p class=\"MsoNormal\">It is common for a state to require that real estate transactions be registered at the Land Department whether it relates to the preliminary sale which is made at the beginning of the construction of the building or any other transaction. However, it is important to highlight a legal doctrine applied in some civil law jurisdictions in relation to the issue of invalidity. In the UAE, a contract will be considered invalid if the contract’s subject matter is unlawful or the contract doesn’t take a certain form specified by law (e.g. a sale and purchase agreement must be registered at the land department).</p>\r\n<p class=\"MsoNormal\"><strong>Article 209 of the Civil Code</strong> provides: “<em>A valid contract is a contract which is lawful in its essence and description, in that it is made by a person of proper capacity in respect of a subject matter properly falling within the ambit of a contract, having an existing, valid and lawful purpose and in proper form, and unaccompanied by any vitiating condition.” </em><em> </em></p>\r\n<p class=\"MsoNormal\">There are two main types of invalidity that are distinguished by the well known jurist Abd El Razaak el Sanhuri in his commentary “<em>Al Waseet fi Sharh al qanun al madani</em>” (which has influenced UAE law and judgments). The first type (relative invalidity) is where a valid contract becomes effective (it meets all the requirements of a valid contract- there is consent, lawful subject matter and purpose) but is subject to a condition/defect that can still be satisfied in the future (i.e. registration of a sale and purchase agreement).  In the case of relative invalidity, the aim of the outstanding requirement/condition is provided by law to protect the interests of an injured party (a private individual) and there is very little harm or benefit to the state in that transaction.  In this case, it is up to the injured party to bring  a complaint of relative invalidity. If the injured party didn’t raise this argument, the court will not declare the transaction invalid (on its own initiative). Relative validity protects the interests of the individuals not society. In Arabic, this is called “<em>butlan nisbee</em>”. The second type is absolute invalidity “<em>butlan mutlaq</em>” which means the contract was invalid from the outset. The aim of absolute invalidity protects public interests and matters relating to public policy.  If an injured party failed to file a complaint, the court or tribunal still have to declare an invalidity to protect the interests of society. As a result, if the invalidity relates to a matter of public policy (absolute invalidity), the court will declare the contract null and void on its initiative (Dubai Civil Appeal 216 of 2003).</p>\r\n<p class=\"MsoNormal\">As a result, a sale transaction for the sale of a unit between a buyer and seller cannot be construed narrowly and be deemed a matter of public policy. The requirement to register the sale of the unit at the Land Register is aimed to protect the parties to a transaction who are investing in the UAE.  The purpose is to ensure the seller secures his schedule of payment and the buyer obtains delivery of his property at the price and date agreed. Accordingly, the public policy defence should not be argued in cases involving Article 3 of Dubai Law 13 of 2008.</p>\r\n<p class=\"MsoNormal\">In the judgments delivered by the courts, the courts have provided that the parties are free to register their transaction at anytime in the future.  As confirmed by the courts, the 60 days provided by law is a regulatory time limit and it is not compulsory to register the transaction within 60 days. The judgments also conclude that a disposition of property will only be considered void if it is not registered at all. This judgment demonstrates that the parties can reach a settlement over the issue of registration amicably. It can also be argued that Article 203 of the UAE Civil Procedure law will not apply as parties can reach settlement in these types of issues and accordingly, can be arbitrated. This is the conclusion correctly reached by the court in Dubai Court of Cassation judgment 43 of 2009 which confirms the fact that the doctrine of relative invalidity applies, not the doctrine of absolute invalidity. It is an invalidity which is made for the protection of private interests and not a matter of wide public interest to society.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The essence of the UAE judgments provide that the purpose of the Land Register is to register property or to annul contracts relating to the sale of land/unit and this is the exclusive jurisdiction of the Register which can only be supervised by the court.  What can be gleaned from some of the judgments and the discussion above is that it is imperative for property dispositions to be registered, otherwise, a party seeking a declaration of invalidity and nullification of the contract can proceed to the UAE Courts, not arbitration. This narrow interpretation does not, however, effect the parties’ agreement to proceed to arbitration if the parties want to rescind the contract, claim a refund or to enforce a contract of sale.  As a result, the award is likely to be upheld and enforced.</p>\r\n<p class=\"MsoNormal\">It is essential to also highlight that the courts must not examine the merits of an arbitral award once it has been issued.<strong> Dubai Court of Cassation judgment 225 of 2005</strong> delivered on 10 December 2005 held that when a court is looking to confirm an arbitral award, a Court should not examine the substantive aspects of the arbitral award and the extent it conforms to the law.  Any challenge raised by any of the parties to arbitration with respect to the arbitral award in terms of the arbitral tribunal’s opinion on the dispute or the invalidity or insufficiency of the reasons for the award is unacceptable.  It is sufficient that the award include a copy of the arbitration agreement, a summary of the parties’ arguments, documents and the reasons supporting the tribunal’s opinion in the operative part of the award. Moreover the award should not violate any rules of public policy.</p>\r\n<p class=\"MsoNormal\">In summary, it can be deduced from the above that:</p>\r\n\r\n<ol>\r\n 	<li>Arbitrators are not prohibited from dealing with matters of public policy.  However, it is prohibited for the award or the agreement to be contrary to public policy.  As seen in the cases mentioned above, the courts did not state that arbitrators must not deal with matters of public policy;</li>\r\n 	<li>In the above cases, the courts are advancing the public policy argument because of Article 3 of the Civil Code.  The UAE Courts are of the view that dealing with real estate and property dispositions is akin to dealing with the circulation of the country’s wealth (as provided in Article 3). There is nothing in UAE law that provides that dealing with real estate is considered dealing with national wealth and as a result falls under the meaning of Article 3. Article 3 in my opinion does not apply to real estate or property dispositions made in the private sector between private individuals. However, in most national resource transactions such as in precious metals, commodities, oil and gas and water, the preferred method of dispute resolution is arbitration. What is actually classified as public policy is the country’s control and regulation of its national resources not the private sector’s right to transact among themselves. In matters concerning the sale and purchase of commodities or real estate, the transactions of which can be complex in nature, it is recommended that the disputes are resolved by arbitration</li>\r\n 	<li>Further, an action for the termination of a contract of sale is a claim for a right of entitlement based on contract.  An arbitrator will not examine or look at matters that are within the ambit of the Land Register.  The arbitrations discussed above did not settle disputes concerning the right of registration or non registration.  The arbitrator is actually dealing with the contract of the parties upon which they agreed to arbitrate the dispute and not to step in the shoes of the Land Department.  The arbitrator should look into the breach of one party’s obligation under the contract and the remedy sought by the other.</li>\r\n</ol>\r\n<p class=\"MsoNormal\"><em>Previously published by </em>ICC UAE quarterly Magazine.</p>'),
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	(90271,4910,'content','April 2014\r\n\r\n<hr />\r\n\r\nThe Electronic Transactions Law does not itself pertain to a certain system, but rather provides a set of provisions relating to the use of electronic communication as a recognisable mechanism in Kuwait.  The Electronic Transactions Law provides certainty for electronic transactions and allows electronic commerce to operate on the same basis as paper transactions. Prior to the issuance of the Electronic Transactions Law, it was a requirement of a paper transaction that a person:\r\n<ul>\r\n 	<li>Give information in writing;</li>\r\n 	<li>Provide a handwritten signature;</li>\r\n 	<li>Produce a document in material form; and</li>\r\n 	<li>Record or retain information</li>\r\n</ul>\r\nAs per the provisions of the Electronic Transactions Law, a person is now allowed to satisfy a legal requirement for a manual signature by using an electronic communication.  Additionally, article 9 of the Electronic Transactions Law sets forth the conditions which give the electronic document legal effect.  For example, the electronic communication must be maintained in the form in which it was created, sent and received, or in any other form which proves the accuracy of the information contained in the document as it was sent, created or received.  Notwithstanding the above, the Electronic Transactions Law has exempted the following from its operation:\r\n<ul>\r\n 	<li>Transactions and means pertaining to personal affairs, waqf and wills;</li>\r\n 	<li>Property deeds for real estate and the resulting original or complementary rights;</li>\r\n 	<li>Promissory notes and tradable vouchers; and</li>\r\n 	<li>Any document which is required to be made as an official document, registered by law or which is required by another law, e.g. attestation certificates (except as defined under article 24 of the Electronic Transactions Law).</li>\r\n</ul>\r\nWhat is notable about the Electronic Transactions Law is that an electronic signature holds the same legal effect as a manual signature on a paper transaction.  The electronic signature may refer to the information in the form of letters, numbers or symbols, which may be filled in electronically, digitally, optically, or in any other similar means, on an electronic document or register (or one added or relating thereto), which has a stamp that allows determination of the identity of the signatory and which differentiates him from others.\r\n\r\nThe Electronic Transactions Law provides that a signature shall be considered as a protected electronic signature if the following conditions are met:\r\n<ul>\r\n 	<li>Means of determining the identity of the signatory;</li>\r\n 	<li>Connection of the signature to the signatory himself only;</li>\r\n 	<li>Execution of the signature using a safe signature tool which is controlled by the site alone during signature; and</li>\r\n 	<li>Means of detecting any change in the information pertaining to the protected signature or the relation between the information and signature.</li>\r\n</ul>\r\nThe Electronic Transactions Law aims to streamline and unify the laws to allow for both the electronic retention of original paper copies, and to effectively grant legally binding status to original electronic documents and signatures.'),
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	(90296,4911,'content','April 2014\r\n\r\n<hr />\r\n\r\nArticle 257 of the UAE Maritime Commercial Code expressly stipulates that the carriage contract is evidenced by the bill of lading which is issued by the carrier or his representative at the demand of the shipper. In addition, the bill of lading is a document of title giving the consignee or the endorsee of the bill the right to sell the goods while they are in transit. A bill of lading is therefore one of the most important documents in the shipping world.\r\n\r\n<strong>Three Types</strong>\r\n\r\nThere are three types of bills of lading: Nominate bills of lading, order bills of lading and bearer bills of lading. Briefly, a nominate bill of lading requires the delivery of the goods to a named party and is a non-negotiable document of title. An order bill of lading provides for the delivery of the goods to the order of a specified person “or assigns”, and may be negotiated by endorsement or endorsement in blank. A bearer bill of lading permits any holder of the bill of lading to take delivery of the goods, and may be negotiated by simple delivery, without endorsement. These three types are enumeraed in Article 264 of the UAE Maritime Commercial Code.\r\n\r\n<strong>The Bill of Lading as a Receipt</strong>\r\n\r\nThe bill of lading, being a receipt for the goods, contains in its free space (known as the margin) a description of the goods. This description is perhaps the most vital part of the whole bill of lading, because the consignee or endorsee of the bill of lading, who wishes to buy the goods by having the bill of lading endorsed to him, normally has no opportunity of verifying the representations of the buyer as to their quantity and quality by examining them. The consignee or the endorsee therefore parts with the purchase price in reliance upon the carrier’s description of the goods in the bill of lading.\r\n\r\nIn other words, the bill of lading is an acknowledgment of the receipt of the goods specified in it. It usually indicates (1) the leading marks necessary for the identification of the goods, as furnished in writing by the shipper before loading; (2) either the number of packages or pieces or the quantity or weight, as indicated by the shipper in writing; and (3) the apparent good order and condition of the goods (Article 258 of the UAE Maritime Commercial Code). If fraudulently or negligently made, such representations may form the basis of an action in tort against the carrier by third parties who suffer loss in reliance on them, in particular consignees who take up and pay for the shipping documents when, if the true facts had been stated, they would have been entitled to reject them. In this context, it must be noted that the stipulations of the Hague-Visby Rules and the Hamburg Rules are broadly similar to this effect.\r\n\r\nA bill of lading is prima facie evidence or, in certain cases, conclusive evidence of the facts contained in it, for example, as to the condition of the goods, quantity, marks, quality, and date of loading (Article 266 of the UAE Maritime Commercial Code). The bill of lading may contain a conclusive evidence clause.\r\n\r\nWhere the bill of lading is prima facie evidence only, the burden of proving that it is incorrect is on the carrier. The carrier or the master or agent of the carrier must, after receiving the goods into his charge, issue to the shipper upon his demand, a bill of lading showing, among other things, the leading marks necessary for the identification of the goods as furnished in writing by the shipper and the apparent order and condition of the goods, save where the carrier, master or agent has reasonable ground for suspecting that the marks, number, quantity or weight do not accurately represent the goods actually received or which he has had no reasonable means of checking.\r\n\r\nIn considering the precise legal position relating to the statements in the bill of lading relating to the cargo, regard must be made not only to the contractual clauses but also to the applicable maritime Rules (Hague, Hague-Visby and Hamburg Rules or any other Rule). It is also necessary to consider separately the extent to which a bill operates as a receipt as to quantity, condition and quality. It is important to note the legal purpose of focusing on the bill of lading as a receipt. A bill of lading holder who shows that goods have been discharged in quantities or in a different condition from that recorded in the bill of lading will have good evidence that the damage or loss occurred during the time when the goods were in the custody of the carrier. The evidence will be used to show that the carrier has been in breach of an obligation to look after the goods as laid down in the contract, or in the Hague, Hage-Visby or Hamburg Rules.\r\n\r\nThe bill of lading may also be considered conclusive evidence regarding the representations contained in it.  A bill of lading which:\r\n<ol>\r\n 	<li>represents goods to have been shipped on board a vessel or to have been received for shipment on board a vessel; and</li>\r\n 	<li>has been signed by the master of the vessel or by a person who was not the master but had his express, implied or apparent authority of the carrier to sign the bills of lading,</li>\r\n</ol>\r\nIs conclusive evidence in favour of a person who has become the lawful holder of the bill, against the carrier of the shipment of the goods or, as the case may be, of their receipt for shipment. Such a bill of lading is not, however, conclusive evidence of statements as to the order and condition of the goods or any other such matters.\r\n\r\nThis principle is founded on a common-law rule according to which where a person has made to another a clear and unequivocal representation of fact, with knowledge of its falsehood or with the intention that it should be acted on, and the other person has acted on such representation and thereby altered to his prejudice, an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be. Thus, the shipowner is estopped as against the assignee of a bill of lading by an erroneous statement in it that freight has been paid in advance or that goods have been shipped in apparent good order and condition.\r\n\r\nBy an express term, the bill of lading may be made conclusive evidence of the quantity shipped. In this case, in the absence of fraud, the shipowner is bound by the statement in the bill of lading, and cannot escape liability by showing that the goods specified in it, or some portion of them had not been shipped, or even that they had been lost before shipment by an accepted peril. The cause of the misstatement is immaterial; it may be a pure miscalculation, or it may be a mistaken belief that in the circumstances the goods had to be signed for although not put on board. If there is a miscalculation, the shipowner cannot, where there are two or more classes of goods concerned, escape liability for delivering less than the specified quantity of another class, since as against him both quantities are conclusive. Where, however, words are inserted qualifying the statement as to quantity, or where the charterparty contains an inconsistent condition which is incorporated in the bill of lading, the bill of lading is no longer to be regarded as conclusive evidence of the quantity shipped, and the shipowner, in spite of them, is not precluded from showing that the whole or part of the goods was not shipped.\r\n\r\nWhere the Hague-Visby Rules apply, a bill of lading issued by the carrier or the master or agent of the carrier to the shipper and showing, among other things, the leading marks necessary for the identification of the goods, the number of packages or pieces, or the quantity or weight, as the case may be, and the apparent order and condition of the goods, is prima facie evidence of the receipt by the carrier of such goods; and, where the bill of lading has been transferred to a third party acting in good faith, it is conclusive evidence.\r\n\r\nIn a bill of lading the words “shipped in good order and condition” do not import a warranty, but they do amount to a representation of fact that the goods were shipped in apparent good order and condition; and, if an endorsee changes his position on the faith of this representation and afterwards sues the shipowner for delivering the goods in bad condition, the shipowner (at any rate where he was not induced to make the statement by fraud) will be estopped from denying that the goods were shipped in apparent good order and condition. The shipowner will not, however, be estopped to prove that the internal condition of the goods was bad.\r\n\r\nOf course the bill of lading us only conclusive evidence as to what it acknowledges as having been shipped. Account must be taken of clauses qualifying the statements in the bill by the use of words such as “said to contain” or “weight unknown” and the extent to which the mandatory maritime Rules allow such qualifications. Where the bill of lading contains such qualifications it is called a “claused bill of lading”. Furthermore, particular receipt problems arise where containers are used to carry goods.\r\n\r\n<strong>The Bill of Lading as a Document of Title</strong>\r\n\r\nIt has been seen that a principal purpose of the bill of lading is to enable the person entitled to the goods represented by the bill to dispose of the goods while they are in transit. By mercantile custom, the possession of the bill is in many respects equivalent to the possession of the goods and the transfer of the bill of lading has normally the same effect as the delivery of the goods themselves. The bill of lading is thus a symbol of, or a key to, the goods specified in it.\r\n\r\nIn this context, it must be noted that the bill of lading is merely deemed to operate as a symbolic transfer of possession of the goods, but not necessarily as a transfer of the property in them. The transfer of the bill passes such rights in the goods as the parties intend to pass. Where the consignee or endorsee of the bill of lading is the agent of the shipper at the port of destination, it is evident that the parties, by transferring the bill of lading, intend only to pass the right to claim delivery of the goods from the carrier upon arrival of the ship.\r\n\r\nUpon a transfer, therefore, of a bill of lading by way of sale, mortgage or pledge, the property in the goods passes either absolutely or otherwise, according to the intention of the parties, to the transferee, provided that the transferor was able to dispose of them; and the right of the original owner of the goods to stop them in transit is either wholly defeated, where there is an absolute transfer by way of sale, or becomes subject to the mortgage or pledge. Although a bill of lading is not in the full sense of the word a negotiable instrument, the title of the transferor to the bill of lading and his ability to dispose of the goods specified in it are nonetheless important elements to be taken into consideration.\r\n\r\nAs regards the shipowner, the bill of lading is a document of title, entitling its holder on production to delivery of the goods. Accordingly, a delivery to the holder of the bill of lading, even where he is not entitled to the goods, discharges the shipowner, provided that it is made in good faith without notice of any defect in the holder’s title. The shipowner is not, however, discharged, however bona fide his act may be, by delivery to the wrong person without the production of the bill of lading.\r\n\r\n<strong>The bill of lading as a contract of carriage</strong>\r\n\r\nIt has long been accepted that the terms set out on the reverse of the bill of lading are only evidence of the contract of carriage as between the shipper and the carrier, since the contract is agreed before the bill of lading is issued. In other words, the contract of carriage will generally be made before the goods are sent to the ship and the contract may afterwards be reduced into writing and expressed in the bill of lading.\r\n\r\nIt is equally accepted that as between the carrier and a bona fide transferee, the bill of lading terms of the contract of carriage are conclusive and the carrier is estopped from adducing external evidence to the contrary.\r\n\r\nWhere there is a chaterparty, the bill of lading is prima facie, as between the shipowner and an endorsee, the contract on which the goods are carried. This is certainly so when the endorsee is ignorant of the terms of the charterparty, and may be so even if he knows of them. As between the shipowner and the charterer, the bill of lading may in some cases have the effect of modifying the contract as contained in the charterparty, although, in general, the charterparty will prevail, and the bill of lading will operate solely as an acknowledgment of receipt.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe bill of lading, which is one of the most important document in the carriage of goods by sea, may be defined as a receipt for the goods delivered to and received by a ship, signed by the person who contracts to carry them, or his agent, and evidencing the terms of the contract of carriage under which the goods have been so delivered and received. During the period of transit and voyage the bill of lading is recognised by the law as the symbol of the goods described in it, and the endorsement and delivery of the bill of lading operates symbolic delivery of the goods. Property in the goods passes by such endorsement whenever and to the extent that it is the intention of the parties that the property should pass, just as in similar circumstances the property would pass by actual delivery of the goods.'),
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	(90298,4911,'lawUpdateArticleMonth','4888'),
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	(90300,4911,'content_description','A bill of lading is a document signed by the carrier (whether shipowner or master or charterer) which states that certain goods have been shipped on board a particular ship in order to be transported from one place to another and to be delivered to a particular party named in the bill of lading. '),
	(90301,4911,'_content_description','field_59b641c07f473'),
	(90302,4911,'pageSummary','A bill of lading is a document signed by the carrier (whether shipowner or master or charterer) which states that certain goods have been shipped on board a particular ship in order to be transported from one place to another and to be delivered to a particular party named in the bill of lading.'),
	(90303,4911,'_pageSummary','field_59e59b307dec8'),
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	(90306,4911,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zeina Wakim'),
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	(90308,4911,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','z.wakim@tamimi.com'),
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	(90318,4911,'_yoast_wpseo_metadesc','A bill of lading is a document signed by the carrier (whether shipowner or master or charterer) which states that certain goods have been shipped on board a particular ship in order to be transported from one place to another and to be delivered to a particular party named in the bill of lading.'),
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	(90321,4912,'lawUpdateImageURL','5917'),
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	(90324,4912,'_lawUpdateDesc','field_59da24cd91f17'),
	(90325,4912,'lawUpdateYear','2014'),
	(90326,4912,'_lawUpdateYear','field_59da245091f13'),
	(90327,4912,'pageSummary',''),
	(90328,4912,'_pageSummary','field_59e59b307dec8'),
	(90329,4912,'lawUpdateStartMonth','May'),
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	(90331,4912,'currentURL','http://localhost:8888/tamimi/en/section/law-update/section-8/may-7'),
	(90332,4912,'_currentURL','field_59d35123ab1e7'),
	(90333,4914,'content','May 2014\r\n\r\n<hr />\r\n\r\nArticle 2 defines a commercial agent as “every person exclusively licensed to distribute the goods and products or to put them on sale or circulation or to perform certain services within the scope of the agency on behalf of his principal in exchange of remuneration.” The Court held that Article 2 requires three specific conditions to be met for a commercial agency agreement to exist: exclusivity, scope of the agency on behalf of the principal and remuneration. Pursuant to the facts of the case before it in 2009, the Court found that while exclusivity and remuneration were clearly established, the local distributor failed to successfully establish the scope of the agency on behalf of the foreign company.  Therefore, the Court held that a commercial agency did not exist.\r\n\r\nA new case was presented to the Court of Cassation on 17 December 2013 regarding the existence of commercial agency. The Court of First Instance and the Court of Appeal, applying the earlier 2009 judgment of the Court of Cassation, held that commercial agency could not be proven as the appealing party failed to successfully establish scope of the agency on behalf of the principal company. Remarkably, the Court of Cassation overruled the judgments of the Court of First Instance and Court of Appeal.  In its recent judgment, the Court of Cassation first set out the facts of the case and repeated the same three conditions as in its earlier 2009 judgment. However, when analysing the merits of the case before it, the Court determined that the Commercial Agency Law was applicable and a commercial agency did indeed exist thereunder, because the conditions of exclusivity and remuneration were established.  Notably, the Court remained silent with respect to the third condition in its analysis and sent the case back to the Court of Appeal to be re-heard by a different panel of judges.\r\n\r\nOn a practical note, the 2009 judgment of the Court of Cassation, while favourable to the foreign company, constituted a bright line rule and provided clarity by requiring three specific conditions to be met to establish commercial agency in cases of disputes.  However, the recent judgment, which appears to be more favourable to local agents, may cause serious concerns to foreign companies as regards contractual relationships with local agents, particularly when viewed in light of the compensation provisions found in the Commercial Agency Law.  Under Article 8 of the Commercial Agency Law, upon the expiry of fixed term agency and irrespective of agreement to the contrary by the parties, the agent shall have the right to demand the principal to pay indemnity if it is apparent that the principal obtained a successful outcome from the efforts of the agent.  In addition, Under Article 9, if the agency contract term is indefinite, the parties must mutually agree to terminate the contract. Further, in the event of termination of an indefinite term agency contract, and irrespective of agreements to the contrary, the agent shall have the right to demand the principal to pay indemnity if the principal obtained a successful outcome from the efforts of the agent.  Therefore, under both Articles 8 and 9, a foreign company would be liable to pay indemnity to the local agent upon the termination or expiry of contracts if the contracts are determined to be commercial agency contracts under Article 2 of the Commercial Agency Law.'),
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	(90334,4914,'_content','field_59b649b5c8b2b'),
	(90335,4914,'lawUpdateArticleMonth','4912'),
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	(90337,4914,'content_description','In 2009, the Court of Cassation issued a judgment interpreting Article 2 of Law No. 8 of 2002 (“Commercial Agency Law”) and defined the conditions that must be met to establish the existence of a commercial agency agreement between a foreign company and its local distributor in Qatar.  '),
	(90338,4914,'_content_description','field_59b641c07f473'),
	(90339,4914,'pageSummary','In 2009, the Court of Cassation issued a judgment interpreting Article 2 of Law No. 8 of 2002 (“Commercial Agency Law”) and defined the conditions that must be met to establish the existence of a commercial agency agreement between a foreign company and its local distributor in Qatar.'),
	(90340,4914,'_pageSummary','field_59e59b307dec8'),
	(90341,4914,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/may-7/qatar-court-of-cassation-shifts-its-view-regarding-commercial-agency.html'),
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	(90346,4914,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(90347,4914,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zehra Manni'),
	(90348,4914,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(90349,4914,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','z.manni@tamimi.com'),
	(90350,4914,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(90351,4914,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(90352,4914,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(90353,4914,'lawUpdateArticleNoWriters','1'),
	(90354,4914,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(90355,4914,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
	(90356,4914,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(90357,4914,'lawUpdateArticlePractices','2'),
	(90358,4914,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(90359,4914,'_yoast_wpseo_metadesc','In 2009, the Court of Cassation issued a judgment interpreting Article 2 of Law No. 8 of 2002 (“Commercial Agency Law”) and defined the conditions that must be met to establish the existence of a commercial agency agreement between a foreign company and its local distributor in Qatar.'),
	(90360,4915,'content','May 2014\r\n\r\n<hr />\r\n\r\nPursuant to Article 401 of the UAE Penal Code, the practice of the criminal courts has been to dismiss a criminal case related to a dishonoured cheque on the basis only of withdrawal of the complaint by the complainant or payment of the value of the cheque.\r\n\r\n<strong>Article 401 of the UAE Penal Code states </strong>\r\n\r\n“Shall be sentenced to detention or to a fine, whoever draws in bad faith a cheque without sufficient funds or who, after giving the cheque withdraws all or part of the funds, so that the remaining balance is insufficient to cover the amount of the cheque, or gives an order to the drawee to stop payment, or deliberately writes or signs the cheque in such a manner as to make it unpayable.\r\n\r\nShall be sentenced to the same penalty whoever endorses to another, or delivers to him, a bearer draft, knowing that it does not have sufficient funds available in consideration thereof or that it is not drawable.\r\n\r\nThe criminal action shall be ended/terminated upon withdrawal of the case by the Complainant or upon payment of the cheque value subsequent to the perpetration of the crime but prior to the issuance of a final verdict, otherwise stay of execution shall be ordered …”\r\n\r\nIn this judgment the Dubai Court of Appeal decided to terminate the criminal proceedings against the accused despite non-fulfilment of either of the above conditions required for dismissal of the case.\r\n\r\n<strong>Facts</strong>\r\n\r\nThe Dubai Public Prosecution filed a criminal case against the accused for issuing a cheque payable to the complainant without sufficient funds to cover the amount of the cheque. The Court of First Instance penalized the accused and ordered payment of a fine of AED 20,000.\r\n\r\nThe accused filed an appeal and argued that the cheque was issued subject to a condition precedent and, since the condition was fulfilled by the accused, the cheque was subsequently fulfilled. The Accused asserted that, pursuant to a contracting agreement concluded with the complainant, she was appointed as contractor for a project. As such, she wrote the cheque as a guarantee against the advance payment of the project price.\r\n\r\nIn light of this, the accused requested the Appeal Court to overturn the judgment and dismiss the charges for fulfilment/payment of the cheque amount.\r\n\r\n<strong>The Appeal Court</strong>\r\n\r\nThe Appeal Court held that, pursuant to Article 401 of the Penal Code, the criminal case pertaining to a dishonoured cheque shall be terminated either by payment of the value of the cheque or by withdrawal of the complaint following the occurrence of the crime and prior to the issuance of a final court judgment.\r\n\r\nAccording to the complainant’s admission, the cheque in this case was issued to him as a guarantee against advance payment in a construction project. Further, it was agreed that the complainant would return the cheque to the accused once deductions against advance payment were completed or upon completion of the contracted works.\r\n\r\nIt is evident from the completion certificate of the project and the letter sent to the Complainant (Employer) by the Consultant that both conditions mentioned above were fulfilled; a fact from which the court inferred that the cheque was paid in full. As such, the criminal charges against the Accused must be dismissed.\r\n\r\nAccordingly, the Appeal Court overturned the judgment of the Court of First Instance and dismissed the criminal charges against the accused.\r\n\r\n<strong>Practice note</strong>\r\n\r\nThis decision is an important precedent, in that the court dismissed criminal charges relating to a dishonoured cheque, based on the fulfilment of the value of the cheque without an actual payment of the value, since the cheque in this case was written as a guarantee for the execution of works on a project. It is also important to note that the court admitted the complainant’s evidence that the value of the cheque was not actually due to him, following fulfilment of the obligation for which the cheque was given to him (payment for the works done).'),
	(180669,4915,'core_values',''),
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	(90362,4915,'lawUpdateArticleMonth','4912'),
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	(90364,4915,'content_description','Al Tamimi and Company represented a client in a criminal case related to a bounced cheque and succeeded to obtain judgment in favour of the client.'),
	(90365,4915,'_content_description','field_59b641c07f473'),
	(90366,4915,'pageSummary','Al Tamimi and Company represented a client in a criminal case related to a bounced cheque and succeeded to obtain judgment in favour of the client.'),
	(90367,4915,'_pageSummary','field_59e59b307dec8'),
	(90368,4915,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/may-7/dismissal-of-criminal-case-related-to-a-dishonoured-cheque-that-was-honoured-without-actual-payment.html'),
	(90369,4915,'_currentURL','field_59d35123ab1e7'),
	(90370,4915,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Marwa El Mahdy'),
	(90371,4915,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(90372,4915,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
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	(90374,4915,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(90382,4915,'lawUpdateArticleNoWriters','1'),
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	(90384,4915,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
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	(90388,4915,'_yoast_wpseo_metadesc','Al Tamimi and Company represented a client in a criminal case related to a bounced cheque and succeeded to obtain judgment in favour of the client.'),
	(90389,4916,'content','May 2014\r\n\r\n<hr />\r\n\r\nAccording to Article 212(1), an arbitrator operating under the CPL shall issue his award without being bound by the CPL, save as is provided in Chapter Three. Article 212(5) states that arbitral awards shall, in particular, include a copy of the arbitration agreement. The purpose of including this information in the arbitral award is to ensure that the arbitrators have observed their limits under the arbitration agreement. Inclusion of the arbitration agreement is therefore necessary for the validity of the arbitral award and its omission would render an award void.\r\n\r\nAn important factor that comes into play when considering how Article 212(5) might apply is the difference between an arbitration agreement in the form of an arbitration clause, where the parties have chosen to arbitrate their claims in their contract, and a post-contract submission agreement.\r\n\r\nThe Dubai Court of Cassation held, in Appeal No. 277-2002, that the arbitration agreement mentioned in Article 212(5) may take the form of either an arbitration clause in the parties’ contract or a submission agreement, in cases where a dispute already exists between them when they agree to arbitrate. The Cassation Court thus confirmed in that appeal that an arbitral award that includes the arbitration clause in the parties’ contract as the arbitration agreement would satisfy the requirements of Article 212(5) as far as including a copy of the arbitration agreement.\r\n\r\nThe Federal Supreme Court has held that the arbitration agreement mentioned in Article 212(5) may take the form either of an arbitration clause in the parties’ contract or a submission agreement drawn up after a dispute has arisen between them, and that each of these two forms represents an arbitration agreement for the purpose of Article 212(5).\r\n\r\nIn view of these decisions, it is clear that the CPL does not require that arbitral awards include a summary of the terms of reference drawn up during the arbitration. The terms of reference normally include the suite of procedural rules applicable to the arbitration and the language and place of arbitration. The CPL only requires that the terms of reference be enclosed with the arbitral award in the event that an application is made to nullify the arbitral award under Article 216. Article 216(1) provides that an arbitral award may be nullified (at the stage when the court considers the award for ratification) in the following circumstances:\r\n<ol>\r\n 	<li>If the award was issued otherwise than with an arbitration instrument or on the basis of an instrument which is invalid or has lapsed by effluxion of time, or if the arbitrator acted outside the scope of the instrument;</li>\r\n 	<li>If the award was… issued on the basis of an arbitration instrument that does not specify the subject matter of the dispute…;</li>\r\n</ol>\r\nIn summary, whether the arbitration agreement takes the form of an arbitration clause or a submission agreement, the CPL requires that the arbitral award includes, under risk of nullity, the arbitration agreement in its entirety or in summary format.'),
	(90390,4916,'_content','field_59b649b5c8b2b'),
	(90391,4916,'lawUpdateArticleMonth','4912'),
	(90392,4916,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(90393,4916,'content_description','The provisions of the UAE Civil Procedure Law [Federal Law 11 of 1992] as amended (“CPL”) that relate to arbitration are contained in Articles 203 – 218, which make up Chapter Three of Book Two of the CPL (“Chapter Three”). '),
	(90394,4916,'_content_description','field_59b641c07f473'),
	(90395,4916,'pageSummary','The provisions of the UAE Civil Procedure Law [Federal Law 11 of 1992] as amended (“CPL”) that relate to arbitration are contained in Articles 203 – 218, which make up Chapter Three of Book Two of the CPL (“Chapter Three”).'),
	(90396,4916,'_pageSummary','field_59e59b307dec8'),
	(90397,4916,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/may-7/is-there-any-legal-requirement-set-out-in-the-uae-civil-procedure-law-to-include-a-summary-of-the-te.html'),
	(90398,4916,'_currentURL','field_59d35123ab1e7'),
	(90399,4916,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','501'),
	(90400,4916,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(90401,4916,'lawUpdateArticleWriters','1'),
	(90402,4916,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(90403,4916,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
	(90404,4916,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(90405,4916,'lawUpdateArticlePractices','1'),
	(90406,4916,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(90407,4916,'_yoast_wpseo_metadesc','The provisions of the UAE Civil Procedure Law [Federal Law 11 of 1992] as amended (“CPL”) that relate to arbitration are contained in Articles 203 – 218, which make up Chapter Three of Book Two of the CPL (“Chapter Three”).'),
	(90408,4917,'content','May 2014\r\n\r\n<hr />\r\n\r\nTime bars take the form of statutory rules that restrict the period of time within which a legal action can be brought successfully, and therefore restrict the rights of the disputing parties to bring legal proceedings to recover losses or obtain compensation. There are various time bar rules set out in UAE legislation, and each one varies depending on the subject matter of the dispute. However, this article will focus on two significant time bar rules with respect to construction-related disputes; specifically Articles 880 and 883 of UAE Law No. 5 of 1985 (the UAE Civil Code).\r\n\r\nA legal claim that is brought by a plaintiff past the limitation period does not automatically fail. The existence of a time bar to the claim (generally, where the claim is brought outside the set limitation period) must be raised by the defendant as a legal/procedural defence. If the defence is successful, the plaintiff’s claim will not be heard in the courts.\r\n\r\nTherefore, when representing a client in a civil/commercial dispute, it is fundamental to consider first whether there is any applicable time bar. Before a plaintiff makes a decision on whether or not to bring a legal action in the courts, he should be informed by his legal attorney as to whether the claim is time barred. Conversely, the defendant’s attorney should determine whether or not the claim is time barred and raise this as a legal defence in the court before addressing the subject matter of the case. Thus, ascertaining the existence of a time bar to a legal claim can potentially shorten the legal proceedings and help the parties to the dispute save time and legal costs.\r\n\r\nDetermining the existence of a time bar at the beginning of the legal dispute has another strategic importance. As a matter of procedure, the time bar must be raised as a legal defence at the beginning of the proceedings at the Court of First Instance. If a defendant fails to invoke this defence in the Court of First Instance, he will not be able to do so in proceedings at the Court of Appeal or the Court of Cassation.\r\n\r\nWith regard to construction related disputes, the most important (but not the only) time bar rules are found in Articles 880 and 883 of the UAE Civil Code which state:\r\n\r\n“Article 880:\r\n<ol>\r\n 	<li>If the subject matter of the contract is the construction of buildings or other fixed installations, the plans for which are made by an architect, to be carried out by the contractor under his supervision, they shall both be jointly liable for a period of ten years to make compensation to the employer for any total or partial collapse of the building they have constructed or installation they have erected, and for any defect which threatens the stability or safety of the building, unless the contract specifies a longer period. The above shall apply unless the contracting parties intend that such installations should remain in place for a period of less than ten years.</li>\r\n 	<li>The said obligation to make compensation shall remain notwithstanding that the defect or collapse arises out of a defect in the land itself or that the employer consented to the construction of the defective buildings or installations.</li>\r\n 	<li>The period of ten years shall commence as from the time of delivery of the work.</li>\r\n</ol>\r\nArticle 883: No claim for compensation shall be heard after the expiration of three years from the collapse or the discovery of the defect.”\r\n\r\nEach of Articles 880 and 883 sets out a distinct time bar to be applied in respect of claims brought by an employer against “an architect” (consultant) or a “contractor” for “any total or partial collapse of the building they have constructed or installation they have erected, and for any defect which threatens the stability or safety of the building”, provided the relevant contract does not specify a longer period.\r\n\r\nArticle 880 provides that a consultant and a contractor will remain jointly liable for a period of ten years to compensate the employer, beginning from the time the “work” is delivered. This gives the employer a right to compensation that lasts for ten years but then expires after the ten year period (decennial liability period). If a defect is discovered by the employer after the expiration of the ten year period, he will not have a right to claim compensation from the consultant and/or contractor; in other words, the employer’s claim is time barred. It must be stressed that this legal defence should be raised by the defendant in his first submission at the Court of First Instance. Otherwise, it will not be acceptable as a legal defence in the Court of Appeal or Court of Cassation, as it is not a matter of public order.\r\n\r\nAs for the limitation period in Article 883, this commences when the defect is discovered by the employer. Accordingly, the employer must commence a legal action by bringing a claim in arbitration or before the Court of First Instance (depending on the mode of dispute resolution stipulated in the contract) within three years from the date the defect was discovered.\r\n\r\nThe practical consequences of Article 883 is that it can effectively extend the decennial liability period set out in Article 880 if a defect is discovered within the last three years (or less) of the decennial liability period, or it can shorten the decennial liability period if the defect is discovered within the first seven years.\r\n\r\nFor example, in a fictional scenario (excluding the consideration of any other factors) where the work was delivered on 1 January 2010, the decennial liability period lasts until 1 January, 2020. If a defect is discovered on 1 January, 2019, the employer would have until 1 January, 2022 to bring a claim against the consultant or contractor. If he fails to do so, the employer’s claim would be time barred after 1 January, 2022. However, if a defect was discovered on 1 January, 2015, the employer would have only until 1 January, 2018 to bring a claim against the consultant or contractor. If he fails to do so, the employer’s claim would be time barred after 1 January, 2018.\r\n\r\nThe application of Articles 880 and 883 of the UAE Civil Code was addressed in the judgment of the UAE Federal Supreme Court (Court of Cassation) Case No. 267 of Year No. 17 in the Civil Circuit, dated 28 January 1996. The facts of the case are as follows: a contract was entered into between the appellant and the defendant, whereby the appellant engaged the defendant to construct a building project. The final handover of the building (works) was on 11 December 1982; and the appellant discovered a defect in the building (works) that threatened its safety and notified the defendant, on 8 December 1986 of the existence of such defect and requested the defendant to carry out the necessary repairs. The appellant brought a legal action against the defendant in the Court of First Instance on 13 November 1992.\r\n\r\nAccordingly, the UAE Federal Supreme Court dismissed the appeal on the basis of its application of Article 883 of the UAE Civil Code. Its reasoning was that notwithstanding  that the appellant discovered the defect within 10 years from the final handover date, the appellant only had until 8 December 1989 (three years from the date of the aforementioned notice of defect and repair to the defendant) to commence legal action against the defendant. However, since the appellant did not do so until 13 November 1992, which is a number of years after the expiration of the three year time limit set by Article 883, its claim was time barred and  should therefore not be heard.\r\n\r\nAnother case that illustrates the UAE courts’ application of Articles 880 and 883 is provided in the judgment of UAE Federal Supreme Court Case No. 211 of the Year No. 19 in the Civil Circuit, dated 14 February 1999. In this case, a contract was entered into between the appellant and the defendant on 11 February 1979, whereby the appellant engaged the defendant to construct a building project.  The final handover of the building (works) was on 1 May 1982 and on 17 December 1986 the appellant notified the defendant of the existence of a defect in the building (works) and specified the defect. On 14 January 1987, the defendant responded to the notification and denied its liability in respect of any defect in the building (works). On 22 March 1988, the appellant notified the defendant that it was liable for the defect in the building (works) and that it would resort to legal action in the courts, and the appellant did so  on 6 September 1994.\r\n\r\nThe defendant argued that since the legal claim was not brought until after more than three years had passed since the discovery of the defect on 22 March 1988, the claim should not be heard, in accordance with Article 883 of the UAE Civil Code. Accordingly, the UAE Federal Supreme Court decided that the case should not be heard on the basis of its application of Article 883 of the UAE Civil Code.\r\n\r\nOverall, there are a number of different time bars in UAE legislation and the relevant time bar provisions should be considered by each party to a commercial dispute at the beginning of the dispute, and if relevant, raised as a defence at the beginning of the legal proceedings. If this is done then it will provide a good defence against the action. However, if the defendant’s lawyer does not do so at the appropriate time the court will nevertheless hear the case, even though it is outside the time limits.'),
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	(90428,4917,'_yoast_wpseo_metadesc','One of the fundamental legal aspects to be considered by a party to a legal dispute is the statutory time bars that are relevant to the subject matter of the dispute.'),
	(90429,4918,'content','May 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The Law of the Judiciary is administered by the Ministry of Justice in accordance with the directives of the government relating to the development of the judiciary. In 2007 H.H. King Abdullah issued royal decrees with the aim of reforming the legal system.  Some of the changes foreshadowed by the reforms have already been implemented.</p>\r\n<p class=\"MsoNormal\"><strong>The structure of the new court system</strong></p>\r\n<p class=\"MsoNormal\">Once the reforms have been fully implemented, the court system will be organised hierarchically as expressed diagrammatically below.</p>\r\n<p class=\"MsoNormal\"><img src=\"http://localhost:8888/tamimi/en/media/get/20140528_Document4.jpg\" width=\"600\" height=\"313\" /></p>\r\n<p class=\"MsoNormal\"><strong>Notes</strong>:</p>\r\n<p class=\"MsoNormal\">1)     Some Criminal matters are still being dealt with by the Board of Grievances.</p>\r\n<p class=\"MsoNormal\">2)     The Commercial Courts have not yet been established.  Until they are, the Board of Grievances will continue to exercise first instance jurisdiction over commercial matters.</p>\r\n<p class=\"MsoNormal\">3)     The Labour Courts have not yet been established.  Until they are, the Primary Commission for Settlement of Labour Disputes (of the Ministry of Labour) will continue to resolve employment disputes.</p>\r\n<p class=\"MsoNormal\"><strong>The Supreme Court</strong></p>\r\n<p class=\"MsoNormal\">The Supreme Court, in Riyadh, is the highest appellate court in Saudi Arabia.  The jurisdiction of the Court is spelt out by Article 11 of the Law of Justice:</p>\r\n\r\n<ol>\r\n 	<li><em>Reviewing judgments and decisions issued or supported by the appellate courts such as death, amputation, stoning or punishment.</em></li>\r\n 	<li><em>Review judgments and decisions issued or supported by the appellate courts and related to cases not mentioned in the previous provision or to finalise matters without dealing with the merits of a case, if the reason of the objection to the judgment is the following:</em><em>  </em></li>\r\n</ol>\r\n<ul>\r\n 	<li><em>Inconsistence with Islamic Shari’ah laws and laws that the king shall issue that are not inconsistent with Shari’ah laws.</em></li>\r\n 	<li><em>Issuing the judgment from a court that does not have a valid composition according to what is stated in this law and others.</em></li>\r\n 	<li><em>The judgment is issued by a non-competent panel or court.</em></li>\r\n 	<li><em>There is a fault in the case facts or description of the case</em>.</li>\r\n</ul>\r\n<strong>Appellate courts</strong><strong> </strong>\r\n<p class=\"MsoNormal\">Each province in the Kingdom has at least one appellate court.  There are 5 categories of appellate courts, with jurisdiction as follows:</p>\r\n\r\n<ol>\r\n 	<li>Legal “rights”</li>\r\n 	<li>Criminal</li>\r\n 	<li>Family status</li>\r\n 	<li>Commercial</li>\r\n 	<li>Labour</li>\r\n</ol>\r\n<p class=\"MsoNormal\">Article 17 of the Judiciary Law says that “<em>the appellate courts shall look in judgments issued by the first instances courts. They shall issue judgment after viewing the respondents\' petitions according to Shari’ah Procedure law courts and law of criminal procedure</em>”.</p>\r\n<p class=\"MsoNormal\"><strong>Courts of First Instance</strong></p>\r\n<p class=\"MsoNormal\">There are courts of first instance in the various provinces and governorate.  The Law of Procedures before the Shari’a Courts issued by Royal Decree No. M/1 on 22/01/1435H corresponding to 25 November 2013 regulates the jurisdictions of the courts of first instance. This is supplemented by <a href=\"http://www.saudilaws.net/TablesTree.asp?TreeID=0&amp;TableTreeID=216&amp;TableID=4&amp;Type=2&amp;Section=\">the Law of Criminal Procedures</a>, which was issued by Royal Decree No. M/2 on 22/01/1435H corresponding to 25 November 2013 in relation to the jurisdiction of first instance Criminal Courts.</p>\r\n<p class=\"MsoNormal\"><strong>General Courts</strong></p>\r\n<p class=\"MsoNormal\">Article 31 of the Law of Procedures before the Shari’a Courts states that “<em>General Courts shall have jurisdiction over all claims and cases or the like not under the jurisdiction of other courts, notary public, and Board of Grievances. In particular, such courts shall have jurisdiction over the following: </em></p>\r\n\r\n<ol>\r\n 	<li><em>Lawsuits involving property, disputing the ownership thereof, a right relative thereto, fault case against the property or the beneficiaries thereof, lawsuits for restraining interference with possession or for recovery of possession, evacuation, paying the rent, or contributing therein, or the lawsuits for restraining interference with possession or for recovery of possession or the like, unless otherwise stated herein.</em></li>\r\n 	<li><em>Issuing title deeds or registration of endowment.</em></li>\r\n 	<li><em>Lawsuits arising from the traffic accidents or the violations set forth in the traffic code and the executive regulations thereof</em>.</li>\r\n</ol>\r\n<p class=\"MsoNormal\"><strong>Criminal Courts</strong></p>\r\n<p class=\"MsoNormal\">Article 128 of the Law of Criminal Procedures states:</p>\r\n<p class=\"MsoNormal\"><em>Without prejudice to the jurisdiction of other courts, the criminal court shall have jurisdiction over all criminal cases</em>.</p>\r\n<p class=\"MsoNormal\">Article 20 of the Judiciary Law states:</p>\r\n<p class=\"MsoNormal\"><em>The criminal court shall compose the following specialised panels:</em></p>\r\n<p class=\"MsoListParagraph\"><em>(a)   </em><em>Panels for punishments (Qassas) and Shari\'ah laws (Al Houdood).</em></p>\r\n<p class=\"MsoListParagraph\"><em>(b)   </em><em>Panels for discretionary punishments (Tazir).</em></p>\r\n<p class=\"MsoListParagraph\"><em>(c)    </em><em>Panels for juveniles/minors.</em></p>\r\n<p class=\"MsoNormal\"><strong>Family Courts</strong></p>\r\n<p class=\"MsoNormal\">Article 33 of the Law of Procedures before the Shari’a Courts states that:</p>\r\n<p class=\"MsoNormal\"><em>Family Courts shall have the jurisdiction over the following:</em></p>\r\n\r\n<ol>\r\n 	<li><em>All family status cases including:</em>\r\n<ol>\r\n 	<li><em>Recording marriage, divorce, ‘khul’ divorce at the insistence of the wife, marriage dissolution, Raj`a “Return” custody, support, and visit.</em></li>\r\n 	<li><em>Registration of endowment, probate, paternity, absence, death, and determination of heirs.</em></li>\r\n 	<li><em>Legacy and division of succession including disputed property, shares in endowments or wills, minor, or absent parties.</em></li>\r\n 	<li><em>Designating trustees, guardians and administrators and permitting them to perform actions that require the judge’s permission, and dismissing them if required, interdicting spendthrifts or lifting thereof. The regulations hereof shall determine the necessary procedures therefore.</em></li>\r\n 	<li><em>Recording the authorization of the mute who cannot read and write.</em></li>\r\n 	<li><em>Marrying off women who have no guardians or whose marriage preventer is the guardian thereof.</em></li>\r\n 	<li><em>Lawsuits arising from personal status issues.</em></li>\r\n 	<li><em>Lawsuits filed to execute the penalties set forth in the law of the General Authority for Custody over the Properties of Minors or the like.</em></li>\r\n</ol>\r\n</li>\r\n</ol>\r\n<p class=\"MsoNormal\"><strong>Commercial Courts</strong></p>\r\n<p class=\"MsoNormal\">According to Article 35 of the Law of Procedures before the Shari’a Courts the Commercial courts shall have jurisdiction over the following:</p>\r\n\r\n<ol>\r\n 	<li><em>All commercial disputes, whether principal or consequential, occurring among traders.</em></li>\r\n 	<li><em>Lawsuits filed against the trader because of the principal or consequential acts thereof.</em></li>\r\n 	<li><em>Disputes occurring among partners in partnerships.</em></li>\r\n 	<li><em>All lawsuits and violations relating to commercial laws without prejudice to the jurisdiction of the Grievance Board.</em></li>\r\n 	<li><em>Bankruptcy lawsuits, interdiction of the bankrupt, or lifting thereof.</em></li>\r\n 	<li><em>Other commercial disputes.</em></li>\r\n</ol>\r\n<p class=\"MsoNormal\"><strong>Labour Courts</strong></p>\r\n<p class=\"MsoNormal\">Article 34 of the Law of Procedures before the Shari’a Courts states:</p>\r\n<p class=\"MsoNormal\"><em>Labour courts shall have jurisdiction over the following:</em></p>\r\n\r\n<ol>\r\n 	<li><em>Disputes relating to employment contracts, wages, rights, labour injuries, and granting compensation thereto.</em></li>\r\n 	<li><em>Disputes relating to imposing of the disciplinary penalties by the employer on the employee or exemption thereof.</em></li>\r\n 	<li><em>Lawsuits filed to execute the penalties set forth in the Labour Law.</em></li>\r\n 	<li><em>Disputes arising from lay-off.</em></li>\r\n 	<li><em>The complaints of employers and employees whose objections are against any resolution, issued by any competent body in the General Organization for Social Insurance, relating to registration, subscription, or compensation.</em></li>\r\n 	<li><em>Disputes involving employees subject to the provisions of labour law including the civil servants.</em></li>\r\n 	<li><em>Disputes arising from the application of labour law and social insurance law without prejudice to the competencies of the other courts and Grievance Board.</em></li>\r\n</ol>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The new court system, once fully in place, will result in a structure that will be familiar to lawyers in many other jurisdictions. It will simplify and clarify the jurisdictions of the courts. It may also lead to the development of greater specialisation by members of the judiciary which in turn could lead to greater certainty in the dispute resolution process. The initiative is a highly significant reform.</p>'),
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	(90435,4918,'pageSummary','The Saudi Arabian court system is regulated by the Law of Judiciary promulgated by Royal Decree No. M/78 on 19/09/1428H corresponding to 1 October 2007.'),
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	(90437,4918,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/may-7/the-new-court-system-in-saudi-arabia.html'),
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	(90443,4918,'_yoast_wpseo_metadesc','The Saudi Arabian court system is regulated by the Law of Judiciary promulgated by Royal Decree No. M/78 on 19/09/1428H corresponding to 1 October 2007.'),
	(90444,4919,'content','May 2014\r\n\r\n<hr />\r\n\r\n<strong>In the name of the Emir</strong>\r\n\r\nIn a much–commented on decision issued on 7 December 2013 (Decision No. 2216 of 2013), the Qatar Court of First Instance refused to enforce and simultaneously annulled an arbitration award rendered in ICC proceedings seated in Paris.\r\n\r\nThe reason for this decision, published only recently, was that the award was not issued in the name of His Highness the Emir of Qatar. This judgment affects any award which concerns Qatar law, irrespective of the place of arbitration and is likely strongly influenced by an earlier ruling of the Qatar Court of Cassation of June 2012 concerning the enforceability of domestic awards. In that case, the Court of Cassation held that “Article 69 of the Civil Procedure Law indicates that […] judgments should be rendered and enforced in the name of the highest authority in the country, i.e. His Highness The Emir of Qatar. If this public order rule is violated, the relevant judgment is considered null and void”. Following this analysis, the Qatar Court of First Instance ruled that since the ICC award was not made in the name of the Emir, it was “conclusively invalid since this invalidity is related to public order”.\r\n\r\nThis judgment – which was upheld by the Court of Appeal on 13 April 2014 – is troubling for two reasons. Firstly, it poses an impediment to the enforcement of international arbitral awards in Qatar based on arguments of public policy. Qatar is a member of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and although it is not clear from the judgment whether the court considered the New York Convention, this convention permits the refusal of enforcement of awards on limited grounds, such as that the enforcement would be contrary to the public policy of the country where enforcement is sought. However, in order to give meaning to the Convention and its aim to facilitate the easy enforcement of awards across the world and its jurisdictions, it appears desirable that those grounds of public policy which warrant the refusal to enforce an award are interpreted narrowly. Otherwise, the New York Convention loses its force and appeal.  Secondly, the judgment ignored fundamental principles of arbitration law and rules relating to the role of the seat of an arbitration. Since the award was rendered in Paris, only the French courts were competent to consider an application for its annulment. The reasoning on the basis of which the Qatar court assumed jurisdiction concerning this issue is thus at odds with well-established principles of international arbitration.\r\n\r\n<strong>Change of Approach </strong>\r\n\r\nQatar’s Court of Cassation has however now changed this approach. In its decision of 25 March 2014 (Qatar Court of Cassation Civil Challenge No. 45 and 49 of 2014), the Court applied the New York Convention and reinstated an ICC award rendered in Doha in 2012.\r\n\r\nThe award related to a matter between a Qatari subcontractor and a locally incorporated joint venture. The Doha Court of First Instance had set aside the award in April last year and this decision was upheld by the Doha Court of Appeal last December. Relying upon the 1990 Qatari Civil Procedure Law, the courts in both instances found that an arbitrator’s “judgment”, which is not rendered in the name of the Emir of Qatar, must be considered void and contrary to the public order.\r\n\r\nIn its ruling, the Court of Cassation upheld arguments by the Qatari subcontractor that the ICC award was in fact a foreign award to which the New York Convention should apply for enforcement purposes. It then found that the Convention did not require that a foreign award must be rendered like a court judgment in the name of a head of State such as an Emir. At the same time, the Court appears to have arrived at the conclusion that the award was a foreign, rather than domestic, award on the basis that the award was rendered in English and - confusing the governing law of the contract and the applicable law - that the applicable law was “the rules of the Paris commercial chamber”.\r\n\r\nEven though this reasoning might leave much to be desired, it can only be seen as a step in the right direction when it comes to the attitude of the Qatari courts towards arbitration. Based upon this, there is hope that the award rendered in the above-mentioned ICC arbitration in Paris might also be reinstated when considered again by the Court of Cassation and, more generally, that a new era has begun for the enforcement of arbitral awards in Qatar.'),
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	(90466,4919,'_yoast_wpseo_metadesc','The Qatari Courts have in recent months issued a series of important judgments concerning the enforcement of arbitral awards in Qatar.'),
	(90467,4920,'content','May 2014\r\n\r\n<hr />\r\n\r\n<strong>Determining the Public Ways Through Private Disputes</strong>\r\n\r\nContracting parties are often justifiably keen to avail the perceived advantages of arbitration over litigation. These benefits include the choice of a neutral forum, enhanced enforceability of decisions internationally, and greater flexibility and privacy (if not confidentiality) of proceedings.\r\n\r\nBut too often parties simply re-use arbitration clauses from other documents and insert them into their new contract, without considering whether arbitration is an appropriate dispute resolution mechanism in all the circumstances or a path which will avail the most effective means of enforcing their contractual rights. More importantly, contrary to some commercial parties’ expectations (or rather, ambitions), not every dispute is “arbitrable” i.e. permitted to be settled by arbitration.\r\n\r\nChoosing the right path and knowing whether or not a dispute is arbitrable requires an analysis of all the laws affecting the parties and their transaction.  Each State decides in accordance with its own social, political and economic policy which matters may be fit for arbitration and those which must remain within the domain of the domestic courts or other special tribunals.\r\n\r\n<strong>The Common Law position</strong>\r\n\r\nIn a case related to one of Europe’s worst oil spills by The Prestige, the English Commercial Court reviewed the common law authorities on this topic and recited with approval the commentary in Mustill &amp; Boyd, Commercial Arbitration (2nd ed) (1989) at pp 149–150:\r\n\r\n<em>“English law has never arrived at a general theory for distinguishing those disputes which may be settled by arbitration from those which may not. […] the types of remedies which the arbitrator can award are limited by considerations of public policy and by the fact that he is appointed by the parties and not by the state. For example, he cannot impose a fine or a term of imprisonment, commit a person for contempt or issue a writ of subpoena; nor can he make an award which is binding on third parties or affects the public at large, such as a judgment in rem against a ship, an assessment of the rateable value of land, a divorce decree, a winding up order or a decision that an agreement is exempt from the competition rules of the EEC under article 85(3) of the Treaty of Rome . It would be wrong, however, to draw from this any general rule that criminal, admiralty, family or company matters cannot be referred to arbitration: indeed, examples of each of these types of dispute being referred to arbitration are to be found in the reported cases.”</em>\r\n\r\nThe issue of arbitrability was also considered in the English Court of Appeal decision in Fulham Football Club (1987) Ltd v Richards and another [2012] Ch 333. In that case, Patten LJ stated at [40] that “it is necessary to consider in relation to the matters in dispute in each case whether they engage third party rights or represent an attempt to delegate to arbitrators a matter of public interest which could not be determined within the limitations of a private contractual process”. Longmore LJ at [94] identified the key consideration as being whether reference of such matters to arbitration is prohibited as a matter of statute or public policy.\r\n\r\nRecent developments in common law jurisdictions mean that certain disputes which were previously prohibited for public policy reasons from being arbitrated, can now be arbitrated if the parties so agree. Examples include agreements to arbitrate divorcing couples’ claims for financial relief under pre-nuptial agreements; warring shareholders’ disputes and claims for compensation for unfair prejudice in the conduct of company affairs; disputes arising from intellectual property licensing agreements; and disputes arising from conduct which was also subject of regulatory and/or criminal sanction, including anti-competitive transactions.\r\n\r\nHowever, even in arbitration-friendly jurisdictions, it remains the position that criminal and regulatory matters, and those which affect the capacity or legal status of a person (individual or corporate) including bankruptcy or insolvency, are usually not arbitrable. Similarly, disputes about rights or interests in property (real or intellectual) granted by the State cannot be arbitrated, such as land title by registration; patents or trademarks; and other claims invoking statutory relief such as claims under employment, retail insurance policies or consumer legislation.\r\n\r\nThe issue of arbitrability is more vexed in developing economies such as the UAE and other GCC States where the debates concerning public policy are more fluid but often less transparent and where the competition between evolving private and public interests is much more acute. Some decrees disallow arbitration expressly or impose special pre-conditions before a dispute can be arbitrated. For example, contracts between foreign corporations and a local agent are routinely afforded special protection by law and to reinforce such protection, any disputes arising from these contracts must be resolved by recourse to litigation in the domestic courts rather than by arbitration. Also, traditionally there have been strict limits imposed on the arbitrability of disputes involving State or municipal entities, consistent with the desire to maximise control of foreign trade and investment and of the exercise of public functions.\r\n\r\n<strong>Arbitrability in the UAE – an issue of UAE (not foreigners’) public policy</strong>\r\n\r\nArbitrations in the UAE are governed by the provisions found in Chapter 3 of the Civil Procedures Law (Federal Law No. 11 of 1992). These provisions do not apply in the Dubai International Financial Centre which has its own arbitration law. Pursuant to Article 203 of the Civil Procedures Law, for an arbitral tribunal to have jurisdiction to determine the merits of a specified dispute and to issue a valid final award, there must exist a written agreement signed by all of the parties that the dispute be arbitrated. Moreover, even if there exists a contract containing the arbitration clause between each of the parties and duly signed by them, it should still be considered whether the subject matter of the dispute and the claims as formulated are arbitrable.\r\n\r\nIn this regard, Article 203(1) provides that any dispute which arises over the implementation (performance) of a particular contract may be arbitrated. However Article 725 provides that the compromise or settlement of any dispute (an accord) must relate to permissible subject matters for contracts and not contradict mandatory law or UAE public policy. Thus, UAE law appears to restrict arbitral power to decide only contractual claims, there being no arbitral jurisdiction to decide tortious, delict or statutory claims or to award non-contractual relief. Further, Article 203(4) provides that arbitration is not permissible in matters in which conciliation is not allowed and the Court of Cassation has on many occasions determined that as a matter of UAE law no conciliation is permitted for matters relating to public policy.\r\n\r\nThe DIFC’s Arbitration Law (No. 1 of 2008 as amended) contemplates fewer restrictions than UAE law on the types of disputes and claims which may be arbitrated in the DIFC. However DIFC law still requires much the same analysis to be undertaken to determine whether a dispute is suitable for arbitration or instead whether arbitral proceedings might be invalid or an award vulnerable to be set aside on grounds of conflict with UAE public policy.\r\n\r\nArticle 41 (2)(b) of the DIFC Arbitration Law provides that an arbitral award may be set aside by the DIFC Court only if:\r\n<ol>\r\n 	<li>the subject-matter of the dispute is not capable of settlement by arbitration under DIFC Law;</li>\r\n 	<li>the dispute is expressly referred to a different body or tribunal for resolution under this Law or any mandatory provision of DIFC Law; or</li>\r\n 	<li>the award is in conflict with the public policy of the UAE.</li>\r\n</ol>\r\nThis requires consideration of what actually is the public policy of the UAE. The Federal Law of Civil Transactions No. 5 of 1985 (the “Civil Code”) is the platform for all civil and commercial laws in the UAE and governs all contracts. It also addresses public policy. Article 3 of the Civil Code states:\r\n\r\n“Public policy shall be deemed to include matters relating to personal status such as marriage, inheritance, and lineage, and matters relating to systems of government, freedom of trade, circulation of wealth, rules of individual ownership and the other rules and foundations upon which society is based, in such a manner as to not conflict with the definitive provisions and fundamental principles of Islamic Shari’a.”\r\n\r\nOft quoted are judicial statements to the effect that public policy is a set of guidelines for taking decisions and pursuing action that are of fundamental concern to society and the basis for the social, political, economic, or ethics laws of the State. However, where a mandatory rule of law does not relate to public policy, within the above meaning, or its purpose is the protection of private rights and interests, there would be no justification for invoking a public policy exception (see judgment of the Abu Dhabi Court of Cassation in  Commercial Appeal No. 663/2012 (28 March 2013).\r\n\r\nMeanwhile, Article 733 of the Civil Code states that the following potentially usurious transactions are unequivocally not permitted to be the subject matter of an accord or compromise and are thus not arbitrable.\r\n<ol>\r\n 	<li>The cancellation of a debt by another debt.</li>\r\n 	<li>The sale of food by way of commutative contract prior to delivery.</li>\r\n 	<li>The deferred exchange of gold against silver and vice versa.</li>\r\n 	<li>Riba al nasia (usurious interest in consideration of the deferment of the payment of a debt).</li>\r\n 	<li>Reducing part of a deferred debt owed by a debtor in consideration of accelerating the date of payment.</li>\r\n 	<li>Reducing the amount of a guarantee on a deferred debt owed by a debtor in consideration of accelerated payment with an increase.</li>\r\n 	<li>An advance involving a benefit.</li>\r\n</ol>\r\nBut the generality of these statements about public policy does nothing to reduce the uncertainty of arbitral jurisdiction in new and developing areas of law. As the legal and social infrastructure of each Emirate matures and internationalises, new legislation proliferates and so the issues of public policy become more complex, and the attitudes to its application more variable. This uncertainty is particularly pronounced in the determination of real estate disputes.\r\n\r\n<strong>Real Estate Disputes</strong>\r\n\r\nFrom the early 2000s developers’ and landlords’ standard form agreements routinely inserted arbitration clauses purporting to cover any type of dispute arising in relation to the contract. This was the result of a lack of confidence in local litigation due to the delays and vagaries associated with the local courts. However, legislation soon caught up to offer a more sophisticated regulatory framework for the Emirates’ principal areas of economic growth. The interpretation of these laws has resulted in some conflicting and confusing decisions regarding the validity of arbitral proceedings and certain awards in this area. Trying to regulate the property boom (and bust) in recent years, the Emirates of Abu Dhabi and Dubai have been particularly active in legislating for the development, sale, purchase and leasehold of real estate.\r\n\r\nArbitral awards dealing with the consequences of non-registration of contracts for the sale of an “off plan” property unit have been declared unenforceable in Dubai on public policy grounds because the subject matter falls outside the realm of conciliation and is not, therefore, capable of settlement by arbitration (Dubai Court of Cassation Property Appeal No. 282/2012 (3 February 2013)). Other attempts to arbitrate very similar claims to terminate the contract or to adjust the price for non-performance (for example, because the developer has failed to fulfill his obligation to build the property unit in good time) have however been held to be valid and enforceable. In Abu Dhabi it has been decided that arbitration is available for matters relating to property unless the dispute concerns the rules and regulations governing property registration, right of freehold ownership in the Emirate of Abu Dhabi, or the disposal and transfer of land (Abu Dhabi Court of First Instance Commercial Action No. 2847/2013, 12 February 2014).\r\n\r\n<strong>Escrow Accounts</strong>\r\n\r\nThe issue of arbitrability of claims for recourse against escrow accounts (in which monies are deposited pending completion of a real estate project) and also of claims in respect of cancelled projects, is even more complex.\r\n\r\nArticle 11(5) of Dubai Law No. 13 of 2008 (regulating the Interim Real Estate Register in the Emirate of Dubai as amended by Law No. 9 of 2009) gave the Real Estate Regulatory Authority (“RERA”) exclusive power to cancel a real estate project upon a reasoned technical report. Subordinate legislation Executive Council Resolution No.6 of 2010 sets out procedures by which RERA can cancel real estate projects. Article 26 of the Resolution provides that if there are insufficient funds in the escrow account to fully refund all purchasers, the developer must pay the short fall to purchasers within 60 days from the date of cancellation of the project, which period can be extended at the discretion of RERA.\r\n\r\nArticle 27 of the same Resolution provides that if the developer fails to repay purchasers within the period established pursuant to Article 26, then RERA shall take all the required procedures to secure the rights of the purchasers including referring the issue to the competent judicial authorities. Decree No. 21 of 2013 vests jurisdiction in the Special Judicial Committee to hear claims relating to cancelled projects. The relevant judicial authority is now confirmed as the newly established Committee and the Decree expressly excludes the jurisdiction of the national courts.\r\n\r\nArbitral tribunals would have no power to order how matters shall be dealt with by the competent authorities including the Land Department and Special Committee and consequently, it appears that most if not all disputes pertaining to the cancellation of registered real estate development projects, ownership of real estate in Dubai, and recourse to monies held in escrow accounts registered at the Dubai Land Department, require some exercise of State function and thus invoke public policy.   Consequently, land contracts in the UAE may not be suitable for arbitration because not all of the relief which might be needed to resolve disputes arising from such contracts can be granted validly by an arbitrator.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIn a rapidly evolving economic, social and legal environment the achievement of contracting parties’ desire to resolve their disputes validly by arbitration has depended much upon the way in which the claim is formulated and the precise nature of the relief sought.  Therefore, parties transacting in an increasingly regulated market need to choose their pathways to satisfactory dispute resolution carefully because otherwise they cannot be guaranteed an enforceable arbitral award.\r\n\r\nWhether the “arbitration game is worth the candle” can be difficult to determine, especially in the absence of a clear statement of jurisdictional policy from the legislators. Unless and until the scope of arbitrable disputes is clarified by decree, it is better to invest some time considering all the available dispute resolution pathways and to choose the most viable, rather than setting off blindly down a familiar alley which may result in a dead end.'),
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	(90489,4921,'content','May 2014\r\n\r\n<hr />\r\n\r\nThis will continue to attract substantial inward investment in the UAE. It goes without saying that increased inward investment ought to be complemented by effective and transparent dispute resolution mechanisms in the host State (in addition to international recourse under multilateral and bilateral investment agreements, where appropriate). The UAE increasingly favors arbitration as a suitable mechanism for alternative dispute resolution and is committed to ensuring that this mechanism develops in the UAE in line with international best practice, such as that exemplified by the ICC and other international institutions.\r\n\r\n<strong>DRAFT FEDERAL ARBITRATION LAW</strong>\r\n\r\nThe Ministry of Economy has released various drafts of the proposed UAE Federal Arbitration Law (the “Draft Law”); the latest draft was issued by the Ministry in 2013. The Draft Law marks the UAE’s desired modernization of its legislation, in effect replacing Articles 203 to 218 of the Civil Procedure Code that are currently in force, in order, among other things, to fully comply with its obligations under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Whilst enactment of the Draft Law is still pending, this latest release manifests the UAE’s intentions to introduce a modern legislative framework for arbitration in the UAE.\r\n\r\n<strong>DIAC</strong>\r\n\r\nReplacing the former Conciliation and Commercial Arbitration Centre of Dubai Chamber of Commerce and Industry, the Dubai International Arbitration Centre (“DIAC”) was inaugurated in May 2003. It is currently the busiest arbitration centre in the Gulf region. Having its location in Dubai, the DIAC is financially and administratively autonomous.\r\n\r\nThe DIAC issued its own Arbitration Rules (“DIAC Rules”), applicable to all DIAC arbitrations commenced on or after 7 May 2007, consequently replacing the DCCI Rules of Commercial Conciliation and Arbitration of 1994 (“DCCI Rules”) which were drafted mainly with domestic arbitration in mind. For one, the DIAC Rules, unlike the DCCI Rules, are not limited in application to commercial disputes and the default language of the arbitration is now English rather than Arabic.\r\n\r\n<strong>ADCCAC</strong>\r\n\r\nThe Abu Dhabi Commercial, Conciliation and Arbitration Centre (“ADCCAC”) was established in 1993. ADCCAC is often the venue preferred by Abu Dhabi-based parties for the resolution of disputes, especially those related to construction and commercial contracts.\r\n\r\nLast year, ADCCAC published new procedural regulations for the conduct of arbitration, which include a new set of regulations (“the ADCCAC Regulations”), effective from 1st September 2013 (applying to existing as well as new arbitrations). It is generally agreed that the new ADCCAC Regulations represent a very significant improvement on its former rules. The new regulations thus introduce good modern arbitration practice to the ADCCAC arbitration process, as a result of which it is hoped that arbitrations which are administered in accordance with the new ADCCAC regulations will run more smoothly in the future to the benefit of parties and practitioners.\r\n\r\nPractitioners should be aware that unlike the DIAC rules, however, the default language is Arabic, unless the parties expressly choose English.\r\n\r\n<strong>DIFC</strong>\r\n\r\nThe Dubai’s International Financial Centre (DIFC) is an autonomous common law jurisdiction, empowered by Federal Law No.8 of 2004 to enact its own regulatory and legal framework for all matters civil and commercial complemented by its own independent courts and law-making powers.\r\n\r\nThe DIFC Arbitration Law No. (1) of 2008, is based upon the UNCITRAL Model law. In accordance with this law, there is no requirement for parties to have any “nexus” or “connection” with the DIFC in order to provide for arbitration to be seated in the jurisdiction. Anyone, from any jurisdiction, can opt for the DIFC as an arbitration seat.\r\n\r\nPursuant to the Judicial Authority Law (Law No.12 of 2004), DIFC awards, once ratified by the DIFC Courts are enforceable by the Dubai Courts as if the judgment is “final and appropriate for enforcement”, if accompanied by an Arabic translation.\r\n\r\n<strong>DIFC-LCIA</strong>\r\n\r\nLocated in the DIFC and in collaboration with London Court of International Arbitration (LCIA), the DIFC-LCIA Arbitration Centre was established in February 2008. Functioning with the assistance of the LCIA Secretariat, the DIFC-LCIA Arbitration Rules are largely modeled on the LCIA Arbitration Rules. The DIFC-LCIA centre relies on the LCIA’s database and know-how.\r\n\r\n<strong>SHARJAH AND RAS AL KHAIMAH</strong>\r\n\r\nOther Emirates, such as Sharjah and Ras Al Khaimah, also feature arbitral institutions and rules, which are intended to cater for domestic and international arbitrations. However, these feature less prominently than their counterparts in Abu Dhabi and Dubai.  Also available is the Islamic Centre for Reconciliation and Arbitration which is intended to facilitate the resolution of disputes of an Islamic financial nature, thereby further increasing the choice of arbitration options in the UAE.\r\n\r\n<strong>CONCLUSION</strong>\r\n\r\nThe modernization trend of UAE’s arbitration rules and institutions towards international best practice standards is a welcome and timely response to the evolving requirements of continued global investment in the UAE. The enactment of a singular legislative framework consisting of a modern arbitration code would be a welcome next step. It is to be hoped that when ratified the draft Federal Arbitration Law will serve as yet another example of the UAE’s commitment to position itself as an attractive seat for international arbitration, just as it has positioned itself as an attractive place in which to do business. For its part, in its endeavors to promote arbitration in the Arab world, the ICC’s creation of a steering committee as part of the UAE national committee, chaired by Essam Al-Tamimi, Senior Partner with Al Tamimi &amp; Company, will help contribute - through the valuable collective international and regional experience of its sub-committee members - to the achievement of that objective.\r\n\r\n<em>Previously published by ICC UAE quarterly Magazine.</em>'),
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	(90509,4921,'_yoast_wpseo_metadesc','The United Arab Emirates (UAE) is experiencing a period of substantial economic growth again as it a continues to diversify its economy.'),
	(90510,4922,'content','May 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">This article seeks to discuss where, when and which types of experts are used in the UAE. The article also touches on some of the criteria a party should consider when looking to retain an expert.</p>\r\n<p class=\"MsoNormal\">Whilst experts have been giving evidence in the courts of England and Wales since the late 18<sup>th</sup> century, their use in construction disputes in the UAE really came of note following the explosion of construction disputes which resulted from the global financial crisis impacting upon Dubai’s construction industry in late 2008.</p>\r\n<p class=\"MsoNormal\"><strong>Some Useful Meanings</strong></p>\r\n<p class=\"MsoNormal\">At the outset it might be useful to identify two important meanings.  Firstly, an expert is someone who has special technical or scientific skill or knowledge above that of the average person.  Secondly, an expert is required to provide an opinion when a court or tribunal requires assistance on a technical or scientific matter when the facts alone are insufficient to allow the court or tribunal to determine an issue.</p>\r\n<p class=\"MsoNormal\">In addition to the above, it should be noted that there are different types of experts:</p>\r\n<p class=\"MsoListParagraphCxSpFirst\">(i)              Expert Determiners</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(ii)             Expert/Assessors</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(iii)            Expert Advisers</p>\r\n<p class=\"MsoListParagraphCxSpLast\">(iv)           Expert Witnesses</p>\r\n<p class=\"MsoNormal\">An expert determiner is a contractual dispute decider who is either named, or subsequently appointed, by the parties to decide a technical dispute under a contract.  Expert determiners are often encountered in oil and gas type disputes.</p>\r\n<p class=\"MsoNormal\">An expert/assessor is appointed by the court, or tribunal, to assist the judge. Under English law, and in the DIFC Courts, there is a difference between a court appointed expert and an assessor. This difference is discussed in a bit more detail below.</p>\r\n<p class=\"MsoNormal\">An expert adviser’s duty is to his client. There are two types of expert adviser. The first is one that remains engaged solely to assist his client throughout the proceedings.  A claims consultant will often carry out this role. This type of expert adviser can become actively involved in the pleading of a case. The second type of expert adviser is where the expert becomes involved early on, but his role later morphs into that of an expert witness. This second role has to be carefully managed by the expert, client and lawyer alike so that the expert remains objective throughout to ensure his credibility is not undermined.</p>\r\n<p class=\"MsoNormal\">An expert witness is appointed by a party but the expert’s duty is to the court or tribunal. The well known English case of the <em>Ikarian Reefer</em> [1993] 2 Lloyd’s Rep 68 laid down the duties of an expert. It is crucial that the expert witness remains objective and independent throughout because a failure of either will affect the credibility and, therefore, weight to be given to the expert’s evidence which, in turn, may affect the success of the client’s case.</p>\r\n<p class=\"MsoNormal\">This article deals primarily with the role of the expert witness in constructions disputes.</p>\r\n<p class=\"MsoNormal\">In the UAE parties are likely to encounter experts in the local courts, the DIFC Courts or arbitration proceedings.</p>\r\n<p class=\"MsoNormal\"><strong>Experts in the Local Courts</strong></p>\r\n<p class=\"MsoNormal\">Articles 69 to 92 of Federal Law No. 10 of 1992 (the Law of Evidence) deal with the use of experts in the local courts. In addition, Article 68 of the Law of Evidence allows a judge to instruct an expert to inspect the subject matter if an urgent application is made by a party.</p>\r\n<p class=\"MsoNormal\">In the local courts a judge (who will often not have any specialist or technical knowledge of the issues in dispute between the parties) will normally appoint an expert to prepare a report (i.e. issue a mandate).    Federal law No. 7 of 2012 (Law of Experts), which recently came into force, regulates experts in the local courts and has placed new restrictions on those who can act as an expert.</p>\r\n<p class=\"MsoNormal\">In short, the expert receives a mandate from the judge as to what the expert is to provide a report on.  The expert will meet with both parties and request that they provide relevant documents so that the expert can investigate the matter. The expert will file his report (in Arabic) in court and provide both parties with a copy. Whilst the parties will have an opportunity to pass comment on the expert’s report, experience shows that it is not often altered. The judge is likely to rely heavily upon the expert’s report.</p>\r\n<p class=\"MsoNormal\">Whilst the parties can retain their own experts to assist in preparing their respective cases, it is very unlikely that the local courts will call these party appointed experts to give evidence so the best use of party experts is probably in the meetings with the court appointed expert before the expert files his report with the court.</p>\r\n<p class=\"MsoNormal\"><strong>Experts in the DIFC Courts</strong></p>\r\n<p class=\"MsoNormal\">In the DIFC Courts there may be a court appointed expert, assessor, single joint expert or party appointed expert.</p>\r\n<p class=\"MsoNormal\">Experts are governed by the Rules of the DIFC Court (RDC) Part 31 and Schedule A to it. The RDC pretty much follows the English Civil Procedural Rules (CPR), and indeed Schedule A replicates in full the<a class=\"msocomanchor\" href=\"#_msocom_1\">[RK1]</a>  English ‘Protocol for the Instruction of Experts to give evidence in civil claim’ (including its references to the CPR and to single joint experts which RDC Part 31 does not expressly cater for (although they would no doubt be allowed under the RDC)).</p>\r\n<p class=\"MsoNormal\">The parties require the DIFC Courts’ permission to rely on an expert witness, but, in substantive construction disputes anyway, this is pretty much the norm.</p>\r\n<p class=\"MsoNormal\">An assessor carries out a different function insofar as he will not give oral evidence and will, therefore, not be subjected to cross-examination. Unlike a court appointed expert who is paid by the parties, an assessor will be paid by the DIFC Courts itself.</p>\r\n<p class=\"MsoNormal\"><strong>Experts in Arbitration Proceedings</strong></p>\r\n<p class=\"MsoNormal\">Arbitration in the UAE is governed by Articles 203 to 218 of Federal Law No. 11 of 1992 (the Civil Procedural Law).</p>\r\n<p class=\"MsoNormal\">It is trite that the UAE’s current law relating to arbitration is not a comprehensive arbitration law<a class=\"msocomanchor\" href=\"#_msocom_2\">[RK2]</a> , but parties will often make reference in the arbitration clause to institutional arbitration procedural rules to govern the arbitral process.  In an ad hoc scenario (i.e. where there is no institution involved), experienced construction arbitrators will often seek to adopt the UNCITRAL Arbitration Rules (2010).</p>\r\n<p class=\"MsoNormal\">Specifically in terms of expert evidence, all the main rules used in the UAE address the use of experts: the DIAC Arbitration Rules (2007) at Articles 27 to 30; the DIFC-LCIA Arbitration Rules at Articles 20 and 21; the ICC Arbitration Rules (2011) at Articles 24 (Appendix IV) and 25; the UNCITRAL Arbitration Rules (2010) at Articles 27 to 29.</p>\r\n<p class=\"MsoNormal\">In our experience, most substantive construction arbitrations will incorporate the IBA Rules on the Taking of Evidence in International Arbitration (2010) and the Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration (2007).</p>\r\n<p class=\"MsoNormal\"><strong>What Type of Issues Require Expert Evidence?</strong></p>\r\n<p class=\"MsoNormal\">Whilst construction disputes can cover a whole host of complicated technical issues, we generally tend to retain experts in the disciplines of delay, quantum, valuation, forensic accounting, geotechnical, concrete, structural, MEP. Certainly in terms of delay, there has been some recent debate as to whether a delay expert really falls within the meaning of an expert in the strict sense because, some would say, he is really carrying out a detailed analysis of facts, which a court or tribunal should be able to do for itself based on the factual evidence. However, given that most significant construction projects will involve the understanding of both the hard and soft logic to be applied to thousands upon thousands of work activities and the review of detailed programming software (normally Primavera P3 or P6), one queries how many judges, arbitrators or lawyers could do this. In short, the court or tribunal needs the delay expert to help it determine the cause and effect of individual delay events.</p>\r\n<p class=\"MsoNormal\">One should also not forget that there may be a requirement for legal experts. Ordinarily, a judge would not require expert evidence on the law of the jurisdiction where the judge is sitting, but if a foreign law is being applied, or if in an arbitration the tribunal is not familiar with the relevant law, and notwithstanding that the parties will, of course, make reference to and submissions on the relevant law, it may be prudent to engage a legal expert.</p>\r\n<p class=\"MsoNormal\"><strong>When should an expert be engaged and who by?</strong></p>\r\n<p class=\"MsoNormal\">The expert should be appointed as soon as possible, maybe as an expert adviser in the first instance.  Whilst this will, of course, have early cost implications, one would expect a prudent disputes lawyer to highlight to the client that a failure to do so may lead to the possibility of more significant costs and procedural problems being encountered later in the dispute process.  It is crucial to a client that an experienced disputes lawyer takes a lead role in managing and implementing the strategy of the overall dispute process.</p>\r\n<p class=\"MsoNormal\">At the outset a client (especially one who is experiencing a complicated construction dispute for the first time) should have the whole dispute process from start to finish explained to him, including an explanation of the roles and responsibilities of all relevant persons and parties, because this allows the client to fully comprehend what is involved in the process and, therefore, factor in contingencies and costs accordingly.  A client who is not fully informed at the outset may well be taken by surprise when a lawyer suddenly insists on the requirement to engage experts.</p>\r\n<p class=\"MsoNormal\">Appointing an expert early allows a party and its lawyers to more fully understand the technical issues and consider the chances of success or failure.  Moreover, it allows the lawyer to properly plead the client’s case in the knowledge that the expert’s evidence will be fully supportive.</p>\r\n<p class=\"MsoNormal\">If the expert is instructed late in the day, not only is there a risk of not getting the right one (i.e. the preferred expert may not have the capacity to accept the appointment), but the expert may not have sufficient time to review all the relevant documents to provide a detailed report.  However, the biggest risk of appointing an expert late is that the expert will provide a report which is at odds with the client’s pleaded case. This results in two options: (i) get a new expert on board in the hope that the new expert will support the pleaded case (but there will be no guarantee that will happen); or (ii) amend the case, which will have significant time and cost implications, if it is allowed at all.</p>\r\n<p class=\"MsoNormal\">It is quite usual for the expert to be retained by the client but to receive instructions solely from the lawyer.  There will always be some commercial negotiations to be had when agreeing upon fees and deliverables, but it is important that these issues are resolved satisfactorily at the outset; otherwise serious problems could come to a head at the door of a final hearing. For example, it is not unknown for an expert to ‘threaten’ to either withdraw his services or exercise a lien on his final signed report until his fees have been paid in full. However, an expert who exercises such strong-arm commercial tactics would do well to consider his own predicament in terms of both his professional reputation and his duties (obligations) to the court or tribunal.</p>\r\n<p class=\"MsoNormal\">Clients who have little experience of being involved with disputes will often try and insist on fixed fees for their expert. Whilst clients want some degree of price certainty, construction disputes inherently involve so many variables and unknowns that it makes it highly unlikely that any expert would agree to carry out a service at a fixed price.  Clients should, therefore, consider other cost options, e.g. fee caps, reduced billing, etc.  If a fixed price was agreed then serious questions should be asked about how the expert will continue with the matter in a professional and diligent manner knowing he will receive no further payment.  Contingency fee arrangements for experts should be avoided.</p>\r\n<p class=\"MsoNormal\"><strong>Instructing the Expert</strong></p>\r\n<p class=\"MsoNormal\">As mentioned above, notwithstanding that the expert will likely be contractually retained by the client, the lawyer will prepare the instructions to the expert setting out what the expert is to do. Because an expert will likely refer to these instructions in the report some lawyers will try to draft these instructions as general or as wide as possible.  However, such vagueness can cause problems for the expert in that the expert may not know what he is specifically being asked to provide a report on, which may lead to problems during his cross-examination.</p>\r\n<p class=\"MsoNormal\">As part of the terms of retainer and instructions a timetable for deliverables should be agreed upon. It benefits neither the lawyer nor the client to have to wait until a few days before the date for filing to receive a report when no drafts have been reviewed.  Ample time should be allowed for reviewing draft reports. Of course, the report should be the expert’s and his alone, but it should be reviewed in advance to ensure it covers all of the relevant issues and that all relevant evidence has been properly considered to reach the opinions stated therein.</p>\r\n<p class=\"MsoNormal\">It is a cardinal rule that an independent expert witness should not advocate a client’s case. However some experts who lack experience or confidence, or who may be unwilling to assist (which is rare), will often hide behind this rule and do very little to help prepare and present a client’s case. Such inactivity should be frowned upon. So long as the expert remains objective at all times and does not actively take part in pleading a client’s case (which should be done by the lawyer), the expert can assist a great deal and should be actively involved in the early stages of advising and assisting the client to properly consider and present its case (e.g. identifying the allegations to be made in the pleadings, reviewing or identifying documents, preparing questions for the taking of witness statements (without leading), etc.). Indeed, in the recent English case of <em>Stanley</em> v. <em>Rawlinson</em> [2011] EWCA Civ 405, the learned judge had this to say on the issue of an expert witness’s active involvement:</p>\r\n<p class=\"MsoNormal\">“<em>Experts are often involved in the investigation and preparation of a case from an early stage. There is nothing inherently objectionable, improper or inappropriate about an expert advising his client on the evidence needed to meet the opposing case, indeed, it is often likely to be the professional duty of an expert to proffer such advice</em>.”</p>\r\n<p class=\"MsoNormal\"><strong>What should you look for when engaging an expert?</strong></p>\r\n<p class=\"MsoNormal\">It is crucial that the lawyers take the lead when looking to appoint the expert. Clients involved in construction disputes should be under no illusion - construction cases may be won or lost based on the quality of expert evidence.</p>\r\n<p class=\"MsoNormal\">Simply stated, a party will often get what it is prepared to pay for.</p>\r\n<p class=\"MsoNormal\">One would do well to remember that whether the dispute involves claims for tens of thousands or hundreds of millions, there is one overriding maxim: the party who asserts must prove.  Therefore, if a party is seeking to make a claim for delay then it will have to show that the events caused the delay. Similarly, in terms of quantum, a party making a claim to recover costs will have to show that those costs relate to the breach and have been actually incurred.</p>\r\n<p class=\"MsoNormal\">Inexperienced construction dispute lawyers will often only look at two criteria when looking to appoint an expert: experience and qualifications. Whilst these are clearly fundamental to identifying a potential candidate as an expert in the first place, there are also other important criteria to be considered:</p>\r\n\r\n<ul>\r\n 	<li>Scrutinize the expert’s profile or resume. Has the expert given live evidence before? There are many experts who have ‘assisted’ with cases, or simply provided reports, but who have not given live testimony and been subjected to cross-examination.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Beware of the ‘professional expert’, i.e. his career may now simply be that of acting as a testifying expert, so much so that he is no longer up to date with recent construction technical developments, which could cause embarrassment during cross-examination.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Check that the expert is familiar with your type of construction project. A delay expert who predominantly deals with claims for major civil engineering projects (such as bridges or desalination plants) may not be fully familiar with the construction processes involved in a multi-storey tower development.</li>\r\n</ul>\r\n<ul>\r\n 	<li>The lawyer should search to see if the expert’s name crops up on any case law and, if it does, check to see if there have been any adverse judgments against the expert. Lawyers with knowledge of construction disputes will be aware of at least three well known delay experts who have been subjected to fairly heavy criticism in construction cases.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Obtain references. Most experts will be only too willing to provide the names of referees.  Ideally, speak to the lawyers who have worked with the expert in the past to see what their thoughts are.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Establish if the expert is a team player and has reputation for working hard and reading the documents, or whether he is somewhat aloof and remote, and simply expects to be spoon-fed all the information he requests. It is a duty of the expert to carry out a forensic investigation of the relevant facts, so, for him to sit back in a passive manner would, possibly, put him in breach of his professional duty. The expert should know better than anyone what further facts he needs to review and consider. Moreover, one can foresee an uncomfortable time for him during cross-examination if he has not immersed himself in the documents and evidence.  If the expert is not a team player then he is unlikely to be retained by the same client or receive instruction from the same lawyer on future disputes.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Beware the beauty parade (where you request a number of potential experts to pitch for the role at the same time). It is not unknown for high-level experts to be wheeled out for a beauty parade to secure the commission, but once the commission has been secured you then find yourself dealing with the expert’s assistants because the expert is too busy with another case in a different part of the world, or, worse still, trying to secure another commission. This leads on to the expert’s availability. The best experts will be in high demand. Therefore, you need to know his foreseeable commitments.</li>\r\n</ul>\r\n<ul>\r\n 	<li>If the expert is to use assistants then you need to know who they are, what they will do and where will they be based.  Some experts will employ a team (which can be very costly) and will expect this team to be based at the client’s own premises (this could be for one of two reasons: (i) easy access to documents and relevant personnel; (ii) to save on his (or his employer’s) overhead costs). Clients will, therefore, need to consider this logistical issue when considering a fee proposal.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Related to the expert’s fee proposal and the lawyer’s fees too, will be accessibility to, and quality of the contract documents. One of the significant differences between construction disputes and other commercial disputes is the sheer volume of technical documentation. In this day and age, both lawyers and experts alike anticipate that clients will have their documents stored electronically in a format that allows for their easy search and use. If the documents are not stored electronically then this will likely lead to a significant uplift in the costs of preparing a case and expert report.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Does the expert demonstrate an attention for detail?  A good way of assessing this is to study his fee proposal.  Does he simply provide a few lines with his charge out rate, or does he go and show that he has considered some key documents to ascertain certain information and identify some key issues.  An expert gets one chance to make a first impression, so he should make sure it’s a good one.</li>\r\n</ul>\r\n<ul>\r\n 	<li>The expert should be able to communicate, both orally and in writing, with clarity and conciseness.  Good experts have the ability to communicate complicated technical issues in a way that allows non-technical persons to easily understand them.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Finally, there are some legal formalities regarding conflicts of interest and the giving of evidence which should also be checked by the lawyer.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">Parties are likely to encounter experts in most substantive construction disputes in the UAE.  Experts fulfill different roles in the UAE depending on the arena for the dispute and they cover a wide variety of technical disciplines.</p>\r\n<p class=\"MsoNormal\">Whilst the use of experts will add to a party’s costs, they provide invaluable support, without which a party’s case may be severely undermined.</p>\r\n<p class=\"MsoNormal\">Clients should consult with their lawyers when looking to retain the services of an expert and should give consideration to numerous criteria to ensure they get the right expert at the right time.</p>\r\n\r\n<div>\r\n<div>\r\n<div class=\"msocomtxt\">\r\n<p class=\"MsoCommentText\"></p>\r\n\r\n</div>\r\n</div>\r\n</div>');

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	(90533,4923,'content','May 2014\r\n\r\n<hr />\r\n\r\nThe Rules govern the parties’ agreement to ICC Mediation or any request made by the parties following a dispute to use the ICC Mediation process. The Rules are simple and straightforward and the cost is comparatively low. These Rules are not as extensive as the arbitration rules because the Rules are not binding and are subject to the parties continuing with mediation.\r\n\r\nThe Rules emphasise the strict confidentiality of the process and outcome including everything disclosed or submitted therein. They also provide for the independence of the mediator and the restrictions on them acting in any future capacity once the mediation is completed. The mediation process, however, is left for the mediator to agree in consultation with the parties and no specific details are outlined in the Rules. Finally, the Rules provide for the mediation cost and the fee of the mediators.  Other arbitration centres around the world, like the LCIA, have mediation rules similar to the ICC’s.\r\n\r\nPart of the discussion at the conference focused on whether in-house counsels prefer to settle disputes through mediation, litigation or arbitration as well as the effectiveness of mediation. It was agreed that mediation is the preferred option for clients for a number of reasons which will be discussed in this paper.  It is important to note that mediation is not appropriate for all cases and some are better suited to litigation or arbitration.  Certain cases are litigated for strategic reasons and others because one of the parties is completely unreasonable and unrealistic and has no interest in reaching a compromise settlement. In such cases there is no room for mediation as the mediation can only proceed if the two parties agree to it.\r\n\r\nMediation is often the preferred dispute resolution mechanism in complex commercial transactions where the parties have differences but their common focus is on running a successful business.  Destroying the other party is not the intention and both parties seek to reach a balanced commercial settlement so they can finalise the dispute and move forward.  The mediation process provides an opportunity for the parties to clarify and better understand the issues of the dispute and the other party’s position which may not have been presented in a sensible way prior to mediation commencing.  Appointing a mediator who is trained, experienced and not affiliated to either party with a fresh eye on the dispute is beneficial to both parties.\r\n\r\nFor mediation to be most effective and the process to be worthwhile, the following considerations must be taken into account by the parties.\r\n\r\nIt is important to choose an experienced mediator who is skillful in mediating between the parties or has the full trust of the parties who are willing to be engaged with them in the mediation process because of their status or relationship with the parties.\r\n\r\nThe mediator must be independent and it is extremely useful if they do not have any background in relation to the dispute.  Having a fresh eye on the documents, the facts and the issues between the parties and listening to them first hand is extremely important. The mediator will be able to express their opinion and reflect on what they hear for the first time whilst trying to balance the differences between the parties.\r\n\r\nThere is no requirement for the mediator to be a particular nationality or to be the same nationality as the parties or to be a specific gender.  Appointing a mediator is the parties’ choice and if the parties are unable to agree on a mediator, the Rules provide for the ICC to propose a mediator in consultation with the parties as their involvement in the process is extremely important. The aim is reaching common ground through the mediation process rather than imposing a decision on the parties.\r\n\r\nIt is beneficial if the mediator is familiar with the relevant industry, particularly if the dispute requires technical expertise.  However, if these skills are not available the mediator can still achieve progress through briefings and clarifying the parties positions and narrowing the dispute to one or two specific points or in some cases to a quantum.\r\n\r\nIt is extremely important for the mediator to have access to the senior management of both the parties to discuss the issues with them, understand their point of dispute and share their thoughts and the thoughts of the parties with either side to make progress on the issues in dispute.  Reaching out to the senior management and obtaining their input will help to progress the mediation faster and is likely to reach a favorable result.  However, the mediator is often not in control of this and the in-house counsel may not provide them with such access.\r\n\r\nNot all mediation achieves results and even with a skillful mediator, they may not be able to reach an amicable settlement and the parties may continue with their dispute to proceed to arbitration or litigation.  This is why most of the Rules provide for the mediation to be confidential and not to be shared or disclosed by either party or the mediator. Critics to mediation argue that it is another level of litigation and sometimes a waste of time and money when no binding decision is reached and the parties subsequently litigate.  When mediation fails this is a valid point, however I believe the benefits of a successful cost effective mediation, outweigh this concern.  Parties to a successful mediation are more likely to keep their relationship friendly and possibly continue their business relationship in the future.  It is also true that even if the parties do not reach an agreement and are bound by confidentiality, they tend to learn a great deal about the facts of each party’s respective case and are more reasonable and rational in litigation or arbitration in the future. Investing in reaching a settlement must be one of the responsibilities of the senior management and in-house counsel of any organisation and mediation is one such investment that needs to be made or at least explored, particularly when the cost to the parties is relatively minimal.  While the cost and the mediation process vary at different mediation centres, they have a common aim with very similar rules and most of the process being determined by the mediator and parties.\r\n\r\nThere is nothing different in the Middle East from the rest of the world when it comes to litigation, arbitration or mediation.  Mediation existed in the Middle East hundreds of years ago and continues to be the preferred method for settling disputes. While most of the disputes are settled out of court, they are not usually settled through a recognised mediation process or mediation centre. Most of the disputes throughout history and in the modern days are settled by the parties seeking the assistance of an independent, trusted, honorable person in the community who will help in mediating between them to reach an amicable settlement.  This usually occurs through a number of meetings and discussions and a technical person may be used by the mediator to assist them with technical issues to help the parties reach an amicable settlement.  Mediation has historically been the mechanism of settling disputes between tribes and neighboring countries and again the status and the honor of the mediator and the respect of both parties have helped the process in reaching amiable compromise settlements.  One feature of mediation in the Middle East which distinguishes it from other mediations is that the respect of both parties to the mediator makes it difficult for the parties to withdraw from mediation or terminate mediation and therefore, whenever mediation commences there is a likelihood that both parties will see the process through and consequently reach an amicable settlement.'),
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	(90552,4924,'content','May 2014\r\n\r\n<hr />\r\n\r\nThe most recent implementation by DLD is in the form of two circulars.  The first circular was issued on 26 February 2014 for all Owners’ Associations (“OA”), being Circulation No. 1 of 2014 on Regulating Service Fees Claims (“OA Circular”).  The second circular was issued on 10 March 2014 for property developers, being Circulation No. 2 of 2014 on Establishment of Owners Associations (“Developer Circular”).\r\n\r\n<strong>Jointly Owned Property Concept – An Overview</strong>\r\n\r\nIn order to understand the purpose of these two circulars, it is crucial for one to understand the general concept of a jointly owned property and the current practice in Dubai.\r\n\r\nA jointly owned property is an ownership concept allowing the division of a property into privately owned units and collectively owned common areas.  An OA is formed upon the registration of the first sale of a unit in a development and the owners of all the units would automatically become a member of the OA (Article 17 of JOP Law).  It is a not-for-profit legal entity and has the right to sue in its capacity and to own assets (Article 18 of the JOP Law).  An OA will manage, operate and maintain the collectively owned common areas (the performance of which would require collection of service fees from all unit owners) together with appropriate licensing to be issued to the OA for such purpose (Article 21 of the JOP Law).  As a result, the OA would need to be registered and granted a licence in order to be fully functional in its own rights as required under the JOP Law.\r\n\r\nUnfortunately, there has been very little progress in the OA registration and licensing process following the enactment of the JOP Law.  This has rendered an OA lacking the ability to fully function as a legal entity in reality (e.g. to enter into contract, to open bank account, to sue and be sued, etc).  As a result, many developers remain involved in the management of their developments and they also hold a utility services account for the development in their names.\r\n\r\nThe Real Estate Regulatory Agency (“RERA”) previously introduced a temporary measure by granting an “Interim OA” status to some OAs for specific functional purposes in relation to some developments in Dubai.  The degree to which the Board of an Interim OA controls the management of a development can vary significantly and is heavily dependent on the cooperation from the developer to jointly control and manage the development.  Such approach may not be ideal as a breakdown in the relationship between the Interim OA and the developer would cause problems. This has proved the case in some developments in Dubai.\r\n\r\nAlongside a number of recent media releases and reports that OA registration is now in progress and escrow accounts can now be set up by an OA for some developments in Dubai, the introduction of the Developer Circular and the OA Circular could be considered as a further attempt by the DLD to instil more functionality to the OA. This is demonstrated by:\r\n<ol>\r\n 	<li>imposing a mandatory requirement for OA establishment on developers in the Developer Circular; and</li>\r\n 	<li>confirming the OA’s right to collect service fees in the OA Circular.</li>\r\n</ol>\r\n<strong>Mandatory OA establishment </strong>\r\n\r\nThe Developer Circular imposes a mandatory OA establishment requirement on the developers in relation to completed development projects under the following circumstances:\r\n<ol>\r\n 	<li>after the developers have been managing their developments for one year; or</li>\r\n 	<li>when there is a complaint about the developer’s mismanagement or negligence during the first year after the completion of the development and following the revocation of the developer’s management power.</li>\r\n</ol>\r\nFor OA establishment, the developers must submit the following documents to DLD for approval:\r\n<ol>\r\n 	<li>Architectural drawings and survey plans;</li>\r\n 	<li>Common Areas Site Plan;</li>\r\n 	<li>Building Management Statement;</li>\r\n 	<li>Jointly Owned Property Declaration; and</li>\r\n 	<li>Volumetric subdivision plan.</li>\r\n</ol>\r\nAn association manager should be appointed by the OA to manage the jointly owned property.  A corporate association manager must be one that is registered with RERA.\r\n\r\nThe Developer Circular unfortunately is silent as to how the OA registration and licensing process is to be implemented. Without any contrary requirements by DLD, one could assume that the registration requirements set out in Articles 23 and 25 of the Direction for General Regulation Concerning Jointly Owned Properties issued by DLD in 2010 are still applicable, whilst the actual implementation mechanism remains to be determined, clarified and confirmed by DLD.\r\n\r\nIf a developer fails to comply with the Developer Circular, it is liable to pay a fine (in addition to any other penalty available by law). The amount of such fine is not specified. DLD may have kept it generic so that the amount of fine could be determined on a case by case basis for effective deterrence depending on the seriousness of breach by the developers.\r\n\r\nAs a best practice going forward, developers should:\r\n<ol>\r\n 	<li>start considering, planning and preparing for the OA establishment following their project’s completion;</li>\r\n 	<li>ensure the OA for their developments is approved in accordance with DLD’s requirements (i.e. by submitting the required documents, service fee calculation, etc to DLD); and</li>\r\n 	<li>continue with the current practice for Interim OA application with DLD until the formal OA registration and licensing process is implemented and fully understood.</li>\r\n</ol>\r\n<strong>OA’s rights to collect service fees </strong>\r\n\r\nOn the basis that the service fee calculations have been approved by RERA, the OA Circular states that an OA has a right to collect service fees. An auditor approved by RERA should be engaged by the OA in preparation of a certified financial report in relation to service fee for the past years. The service fees calculation for a development project (including a villa community development) must be in accordance with the methods put in place by RERA. The apportionment of service fee amongst unit owners for completed projects will be based on the net area stated in the title deed for the units forming the development.\r\n\r\nIn the event of a service fee dispute after a unit owner has been invoiced, the OA must ensure that a notarised notice is served at the owner’s address and evidenced by delivery confirmation. If the owner refuses to pay the service fees, the OA can instigate legal proceedings in a competent court, as the OA has a lien over every unit for unpaid service fees pursuant to Article 25 of the JOP Law, and is required to inform RERA in writing of such action.\r\n\r\nNotwithstanding an owner’s failure to pay the service fees, the OA is prohibited to discontinue public utility services to the unit or make a claim for additional fees (other than the RERA approved service fees).\r\n\r\nIf an OA fails to comply with the OA Circular, the enforcement mechanism for non-compliance is either the payment of a fine or a call for the re-election of a new OA Board. Again, the amount of the fine is not specified in the OA Circular.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nDespite expectation following some media releases and reports that the OA registration and licensing process will be further clarified and implemented, the issuance of the Developer Circular and OA Circular does not provide the much needed clarification that one would have hoped for. However, the introduction of the Developer Circular and OA Circular has no doubt highlighted DLD’s intention to recognise the OA’s legal status by gradually shifting developers’ management functions to the OA.'),
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	(90570,4924,'_yoast_wpseo_metadesc','Following the introduction of Law No. 27 of 2007 on Ownership of Jointly Owned Properties in the Emirate of Dubai (“JOP Law”), the Dubai Land Department (“DLD”) has been introducing guidelines and directions to implement the JOP Law over time.'),
	(90571,4925,'content','May 2014\r\n\r\n<hr />\r\n\r\nFurther clarifications have now been issued by the Department of Tourism and Commerce Marketing (“DTCM”), and we have taken the opportunity to report on these below.\r\n\r\nThe DTCM have held various workshop sessions for hotel industry finance personnel to introduce DTCM’s dedicated team who will be supporting the implementation of the Tourism Dirham Fee.  Attendance at the sessions is mandatory and is required in order to acquire an ‘Administrative Account Number’ for each establishment, which will be registered on DTCM’s system.\r\n\r\n<strong>(A) Executive Council Resolution No. 2 OF 2014</strong>\r\n\r\nAs mentioned in the March edition, Executive Council Resolution No. 2 of 2014 introduced the Tourism Dirham Fee in Dubai (“ECR 2 of 2014”) which is applicable to all hotel establishments operating in Dubai, including hotel apartments, holiday homes, and any such establishments which are located in special development zones and free zones such as DIFC.\r\n\r\nThe Tourism Dirham Fee is payable for each night of occupancy per room in accordance with Schedule 1 of the ECR 2 of 2014.  We have provided a summary of ECR 2 of 2014 as follows:\r\n<ul>\r\n 	<li>The hotel establishment shall submit the proceeds collected towards the Tourism Dirham Fee to DTCM before the 16th day of the month following collection of such fees;</li>\r\n 	<li>The hotel establishment shall maintain books and records regarding collection of the Tourism Dirham Fee in accordance with recognized accounting standards for at least five (5) years. A monthly account report on occupancy and fees collected shall be provided to DTCM;</li>\r\n 	<li>The hotel establishment shall have its final accounts audited by an licensed auditor at the end of the financial year and provide DTCM a copy within six (6) months;</li>\r\n 	<li>In the event of suspension of the hotel establishment’s activities, no Tourism Dirham Fee shall be collected during this period subject to the prior notification and approval of the suspension by DTCM;</li>\r\n 	<li>The hotel establishment shall be deemed to have evaded payment of the Tourism Dirham Fee in the event that it, (i) fails to pay the Tourism Dirham Fee within the stipulated time frame to DTCM; (ii) fails to collect the Tourism Dirham Fee from guests; (iii) fails to maintain accounting books recording payment of the Tourism Dirham Fee and submission to DTCM; (iv) manipulates accounting data or provides false information; (v) obstructs  DTCM employees in performing inspections or audits; (vi) performs any act deemed by DTCM as an evasion of payment of the Tourism Dirham Fee.</li>\r\n 	<li>Failure to pay the Tourism Dirham Fee to DTCM within the stipulated time frame or failure to collect such fee from guests would entail a fine of ten per cent (10%) of the unpaid fee amount provided that the fine is not less than AED 1,000. The complete list of violations and fees payable by the hotel establishment are provided in Schedule 2 of ECR 2 of 2014.</li>\r\n 	<li>In addition to imposition of the various fines, DTCM may also adopt additional stringent measures such as temporary closure of the hotel establishment up to three (3) months or more serious cases, permanent closure.</li>\r\n 	<li>DTCM employees nominated by a resolution of the Director General of DTCM, in coordination with the Director General of the Government of Dubai Legal Affairs Department, shall work in the capacity of law enforcement officers pursuant to ECR 2 of 2014.</li>\r\n 	<li>An affected party shall be entitled to submit his written grievance to the Director General of DTCM against any decision, procedure or measure issued or taken against him within fifteen (15) days of its notification. Upon receipt of the grievance, a DTCM committee formed specifically to consider the grievance shall issue its final decision within thirty (30) days with this decision being final and binding.</li>\r\n</ul>\r\n<strong>(B) DTCM Circulars</strong>\r\n\r\nSince the issue of ECR 2 of 2014, three circulars have been issued by DTCM to clarify certain matters, and to introduce guidelines for implementation of the scheme.\r\n\r\nThe key issues addressed by these Circulars can be summarized as follows. The Tourism Dirham Fee:\r\n<ul>\r\n 	<li>is a separate fee to be listed separately on any invoice/receipt.  It should not be included in a room rate for calculation of the existing Dubai Municipality Fee and Service Charges;</li>\r\n 	<li>is not applicable to:</li>\r\n</ul>\r\n- any late checkout extension (even if a fee for same is charged by the hotel); or\r\n\r\n- a room which is not classified by DTCM to be rented to guests as part of the hotel establishment’s inventory (ie. rooms designated as accommodation supplied by the hotel to its own employees that are registered under the hotel trade licence).\r\n<ul>\r\n 	<li>is charged on a room per night basis, irrespective of the number of guests occupying the room (eg. a 2 room suite would be subject to a charge for 2 rooms);</li>\r\n 	<li>is calculated at a maximum stay of 30 (thirty) nights in respect of any guest’s stay which exceeds 30 (thirty) nights.</li>\r\n</ul>\r\nFor your information, we have provided more detailed summaries of the Circulars below:\r\n\r\n<strong>(1) Circular no. D/000/152/187 dated 23 February 2014 (“Circular 1”)</strong>\r\n\r\nCircular 1 provides the guidelines for the implementation of the Tourism Dirham Fee together with a form of notice which has been approved by the DTCM for use by hotels to provide to their guests at the time of check-in.\r\n\r\n<strong>Summary: </strong>\r\n<ul>\r\n 	<li>A notification in accordance with the template attached to Circular 1 shall be provided to the customers at the time of check-in by the hotel establishment. The Tourism Dirham Fee shall be paid by the guest at the time of check-out in accordance with Schedule 1 of ECR 2 of 2014;</li>\r\n 	<li>The Tourism Dirham Fee is also applicable to commercial stays, complimentary stays, promotional stays, upgrades and short stays less than 24 hours. However the Tourism Dirham Fee is not applicable in cases of late checkout and house use rooms (i.e. rooms in a hotel designated for its employees);</li>\r\n 	<li>The Tourism Dirham Fee shall be calculated based on each day’s stay and the number of bedrooms. For example, a guest staying two (2) nights in a one bedroom hotel apartment in the Standard Hotel Apartment category will be charged: 2 nights x 1 bedroom x AED 10 = AED 20;</li>\r\n 	<li>Transition Period:  The Tourism Dirham Fee shall be applicable for the transition period i.e. any stays on or before 31 March 2014 irrespective of payment as well as booking made for a stay prior to 1 June for which payment was completed prior to 23 February 2014. Any extension or contract renewals on or after 31 March 2014 would attract the Tourism Dirham Fee.</li>\r\n</ul>\r\n<strong>(2) Circular No. D/000/152/187/1 dated 30 March 2014  (“Circular 2”)</strong>\r\n\r\nCircular 2 provides clarity on the following two matters namely:\r\n<ul>\r\n 	<li>In case of stays exceeding 30 consecutive nights, the Tourism Dirham Fee would be capped and payable at 30 nights; and</li>\r\n 	<li>The last date for exempted bookings was 31 March 2014 where bookings were fully paid up prior to 23 February 2014, regardless of the date of payment collected by the hotel establishment.</li>\r\n</ul>\r\n<strong>(3) Circular No. D/000/152/187 dated 26 March 2014 (“Circular 3”)</strong>\r\n\r\nCircular 3 announced the formation of the dedicated team at DTCM and the dates of those workshops which shall take place on the implementation of the Tourism Dirham Fee.'),
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	(90586,4926,'content','May 2014\r\n\r\n<hr />\r\n\r\n<em><strong>Rent Control</strong></em>\r\n\r\n<strong>The 2006 Lease Law</strong>\r\n\r\nLaw No. 4 of 2006 (”2006 Lease Law”) which has since been repealed, capped the rental increase in any renewed lease to 10% of the rental amount. The 10% increase cap applied to all types of leases, whether residential or commercial, and whether commencing before or after the 2006 Lease Law came into effect.\r\n\r\n<strong>The 2008 Lease Law</strong>\r\n\r\nLaw No. 4 of 2008 and its amendments (”Lease Law”) applies to all lease contracts in Qatar excluding State private and public properties; agricultural land; undeveloped land; industrial services land; hotels and tourist apartments and units; and residential units allocated by the State or other companies for their employees.\r\n\r\nArticle 10 of the Lease Law does not permit landlords to increase the rent in respect of leases existing prior to or after the enactment of the Lease Law, except in accordance with the rules, terms and rates to be issued by the Council of Ministers.\r\n\r\n<em><strong>Council of Ministers’ Decisions</strong></em>\r\n\r\n<strong>a. Decision No. 9 of 2008 – rent increase restrictions upon renewal applied in residential and commercial leases</strong>\r\n\r\nThe first Council of Ministers’ decision in this regard was issued in 2008. This decision prevented landlords from increasing rent for leases entered into on or after 1 January 2005, except after two years from the date the Lease Law became effective, unless the parties had agreed otherwise. The same decision set out the rent increase limits permitted for leases entered into before 1 January 2005. Under this decision, the two-year period and the rent cap applied equally with regard to residential and commercial leases.\r\n\r\n<strong>b. Decision No. 9 of 2010 – rent increase restrictions upon renewal applies only in commercial leases</strong>\r\n\r\nThe Council of Ministers’ Decision No. 9 of 2010 (”2010 Decision”) replaced decision No. 9 of 2008 referred to above. It set out new rental increase limits but restricted the application of such limits to commercial leases that were made before 1 January 2005. Pursuant to the 2010 Decision, a landlord is entitled to increase the rent upon renewal for commercial leases made before 1 January 2005 every year upon renewal, provided that the landlord is complying with the limits set out below:\r\n<ul>\r\n 	<li>20% annual increase if the monthly rent is less than QR 3,000;</li>\r\n 	<li>15% annual increase if the monthly rent is between QR 3,000 and QAR 6,000;</li>\r\n 	<li>10% annual increase if the monthly rent is between QR 6,000 and QAR10,000;</li>\r\n 	<li>5% annual increase if the monthly rent is more than QR 10,000.</li>\r\n 	<li>Such increase becomes effective from the date it is notified to the tenant.</li>\r\n</ul>\r\nThe 2010 Decision also prohibited rental increases for commercial leases entered into from 1 January 2005 onwards, except after a year from the date of the 2010 Decision, unless the lease provides otherwise. The 2010 Decision became effective on 15 February 2010. By virtue of a subsequent Council of Ministers’ decision, the one-year period provided for under the 2010 Decision was extended for another year until 15 February 2012. As such, landlords were not permitted to increase rent upon renewal until 15 February 2012, unless the lease provides otherwise. There were, however, no further decisions issued in this regard leaving any rent increase upon renewal or expiry in commercial leases subject to negotiation between the parties (unless the lease provides for certain increases).\r\n\r\n<strong>c. Protection for commercial tenants</strong>\r\n\r\nNotwithstanding the above, Article 27 of the 2008 Lease Law offered an exceptional measure of protection for commercial tenants (this protection was initially given to tenants under Article 3 of the 2006 Lease Law) by preventing landlords from evicting tenants with expired lease terms for a one-year period commencing on 15 February 2010 (eviction can only be done on specific grounds set out under Article 19 of the said law).  The same Article conferred authority upon the Council of Ministers to extend the relevant period thereafter, should it see fit. Accordingly, by virtue of Decisions 22 of 2011, 8 of 2012, and, recently, 15 of 2014, the Council of Ministers extended the protective periods until 15 February 2012, 15 February 2014 and 15 February 2015 respectively.\r\n\r\nThe said decisions excluded commercial companies’ headquarters, engineering, lawyers and accountant offices, veterinary clinics and offices of agricultural, fish and animal welfare experts from such extensions. These tenants can, therefore, be evicted upon the expiry of the lease term.\r\n\r\nThe provisions relating to the protective periods offered to commercial tenants at the end of the lease term have been confirmed in various Court of Cassation judgments as being related to public order and therefore of mandatory application.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Council of Ministers’ decisions, which provided commercial tenants with extension rights by force of law until 15 February 2015 reflected the Qatari Government’s strategy and intention to control rent with regard to commercial properties.\r\n\r\nRegardless of the fact that some provisions of the law may be of mandatory application and make contradictory contractual provisions unenforceable (i.e. Article 27 of the 2008 Lease Law), parties are always encouraged to ensure that any clause on rent increase upon renewal or expiry is drafted clearly and precisely, with perhaps fixed annual increase, so that the law will not interfere with such increases, where applicable.'),
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	(89868,4890,'content','April 2014\r\n\r\n<hr />\r\n\r\nThe youngest of six children, Grahame was born and raised in the north of England.  A keen football and rugby player, Grahame’s childhood dream was that of one of many young boys - to play football for Manchester United.  “That dream didn’t last too long and then I began to toy with the idea of becoming a history teacher,” he laughs.\r\n\r\nBy the time he was due to start university, Grahame had given serious thought to his future and had his sights firmly fixed on a career in Law.  He studied at Liverpool University,   all the while continuing to play sports, and graduated with a Bachelor’s degree in Law.  On completion of his studies, he immediately entered the world of work and began a training contract, or articles as they were then known, at a law firm in Manchester.\r\n\r\n“I emerged from articles mostly unscathed, which as I look back is even more surprising to me now than it was then,” Grahame says.  He remained at the firm for another year after qualifying, before moving to London to take up at an in-house position at UAC International, a company looking after the interests of global company Unilever in African countries such as Nigeria, Ghana and Sierra Leone.  That’s also when he got his first exposure to Middle Eastern law: “I recall looking at the Iraqi Commercial Agency Law for a Unilever company that wanted to appoint a distributor there. From memory the law was called “The Law on Middlemen”.  It was a model of brevity with only two articles.  Article 1 said that there were to be no middlemen in Iraq and Article 2 prescribed the penalty: death.  The company I was advising decided against appointing a distributor in Iraq”.\r\n\r\n“Living in London and working for UAC was a great experience but I don’t miss the daily commute into the city!” says Grahame.  “I spent two years at UAC before seeking a move further afield”.\r\n\r\nFurther afield indeed – Grahame and his wife, Barbara and then infant son, Paul, moved to Perth, Western Australia.  Grahame worked for a large Australian  law firm there and was later made a partner, heading the Corporate Commercial practice.  He worked in Perth for over 20 years, mostly on large corporate and privatisation projects as well as banking &amp; finance and intellectual property matters.  By the mid-2000s and with three grown-up children, Grahame was seeking a new challenge and considering another move.\r\n\r\nIn 2004, Grahame and his wife moved to Bahrain when he joined a Bahraini law firm, becoming a partner in the firm a year later.  “I loved Bahrain and the Middle East as a whole,” he says.  “There are so many opportunities here, it is a great place to live and very easy to travel to and from”.  A claim to fame not many other corporate lawyers can share is that whilst in Bahrain, Grahame represented the late Michael Jackson on many business and personal matters including the refinancing of his Beatles music catalogue and Neverland ranch.    “I still have the photos and an autographed rugby shirt which I planned to auction for my rugby club in Perth.  The shirt is still unsold and the last time I saw it, was in a toolbox,” he says.   When work slowed in Bahrain due to the country’s political instability and effects of the Arab Spring, Grahame, like many others, felt it was perhaps time to leave Bahrain.  “I wanted to stay in the Middle East and so when the opportunity arose to join Al Tamimi &amp; Company, it was perfect timing.” notes Grahame.\r\n\r\nGrahame heads Al Tamimi’s Saudi office and is now based in Riyadh.  Whilst this comes with expected (and some unexpected) challenges, he is revelling in the role and ‘thoroughly enjoying’ the experience.  He splits his time between management matters and advising corporate clients, as well as advising on litigation matters and says that ‘tomorrow is always another day’.\r\n\r\nGrahame regularly travels back to Australia to visit his children – his daughter, a lawyer, his youngest son, a mining investment analyst and his eldest son, a winemaker who manages the family’s winery and cidery on the southwestern coast of Australia.  Grahame plans to one day retire back to Australia and laughs as he says he looks forward to spending his days “mowing the lawns.”\r\n\r\nThat, however, is quite a way off as Grahame is enjoying life and work in the Middle East and is ‘immensely proud’ to be a part of a firm as successful as Al Tamimi &amp; Company.  Looking to the future, Grahame says he is looking forward to being involved in the firm’s expansion into other cities in Saudi Arabia and helping to continue to strengthen the firm’s position as the leading law firm in the Middle East.'),
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	(89878,4891,'content','April 2014\r\n\r\n<hr />\r\n\r\nAs companies explore alternative ways to generate brand recognition, the concept of sponsoring sports events is now a key element for some local and global businesses’ marketing campaigns.  Nowadays it is quite common to see non-sports industry companies, such as global financial institutions and airlines, making strategic decisions to sponsor sporting events, such as rugby, golf and horse-racing, as well as sporting venues and arenas.\r\n\r\nNo doubt these companies are focusing on the commercial advantages (and disadvantages) of attaching their name to an event or venue. The value of these sponsorship deals is generally high, as can be the duration of the sponsorship.\r\n\r\nSome attention and consideration, however, should also be given to the local laws which govern the location of the sporting event or venue. A company’s decision to sponsor a global sporting event, such as the Formula 1 event or the World Cup, should factor in that there could be some local laws that may impede the company’s ability to have its sponsorship (in full or in part) displayed in that country.\r\n\r\nIn the UAE, the local law doesn’t distinguish between sponsorship and advertising. Sponsorship is considered a form of advertising, and as such, all sponsorship should be compliant with the local advertising laws and regulations.\r\n\r\nAdvertising in the UAE is predominantly regulated by the National Media Council’s Advertising Regulations (Resolution No. 35 of 2012 Concerning the Standards of Advertisement Content in Mass Media). These Regulations reinforce a number of fundamental ethical principles, mainly respect for religious, cultural, and social values and norms in society, which are provisions found in other local laws such as the Printing and Publications Law (Federal Law No 15 of 1980 Regarding Printed Matters and Publications) and which also regulate advertising in the UAE.\r\n\r\nThe main principles under the Advertising Regulations are:\r\n<ul>\r\n 	<li>Respect for religion and political institutions: Advertising content must be respectful of all divine religions and not offend Islamic beliefs. It must not disrespect the regime in the UAE, its symbols or  political institutions. Further, no content broadcast or published by a media corporation or outlet may disrespect the local and international policies of the UAE or disrespect the cultural heritage of the UAE.</li>\r\n 	<li>Prohibited products/services:  Advertising alcoholic beverages, tobacco, smoking and all banned products or services (including banned narcotics) is prohibited.</li>\r\n 	<li>Prohibited content: The publication of words and pictures that breach public morals is prohibited, as is the spread and dissemination of information that may prejudice children, women or any other members of society.</li>\r\n 	<li>Consumer Protection: Compliance with the laws governing consumer protection and commercial activities is mandatory particularly in relation to anti-competitive practices and illegal monopolies.</li>\r\n 	<li>Health regulations: Advertising content relating to medicines or pharmaceutical products must comply with the rules set out by Cabinet Resolution No. 7 of 2007 Regarding Health Advertisements Regulation.</li>\r\n</ul>\r\nThe National Media Council is authorised, under the Advertising Regulations, to apply various penalties for non-compliant advertisements. Such penalties may not be in isolation of any other penalties that may perhaps be imposed upon an entity under the Printing and Publications Law, or any other applicable law.\r\n\r\nAnita frequently works with the Sports Law practice, engaging with some of the leading governmental and private sector media and sports companies in the region.  Anita has previously worked with the UAE Pro League Committee and Yas Marina Circuit drafting, negotiating and advising on a range of sponsorship and advertising issues for major sporting events in the UAE, as well as a broad spectrum of related commercial matters.'),
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	(89897,4892,'content','April 2014\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nThe Abu Dhabi Court of Cassation, in Appeal no. 924 of 2009, integrated the following important rules in respect of arbitration:\r\n<ul>\r\n 	<li>The power of attorney of the Respondent’s representative can only be contested by the Respondent.</li>\r\n 	<li>If the parties fail to agree on arbitrators, or if the appointed arbitrator was precluded from acting or disagreed over the appointment of an arbitrator, the Court may appoint one.</li>\r\n 	<li>The arbitrator’s attendance at the hearings would be sufficient to constitute an implicit acceptance of his nomination and mandate.</li>\r\n 	<li>The award is not void if it does not rely on the unsworn testimony of the witness.</li>\r\n 	<li>The arbitrator may rely on foreign documents as long as the other side does not object to it during the procedure and that this issue is not one of public policy.</li>\r\n</ul>\r\n<strong>Facts</strong>\r\n\r\nThe Petitioner entered into an agreement with the Respondent for the purchase of a luxury dress. Since the Petitioner failed to make full payment of the price, the Respondent requested the Court to appoint an arbitrator to resolve the parties’ dispute, in accordance with the arbitration clause in the agreement. The Court of First Instance appointed an arbitrator who issued an award in favor of the Respondent. The Respondent initiated an action for the ratification of the award before the Court of First Instance, which ratified the award. The Petitioner appealed before the Court of Appeal, which confirmed the decision of the Court of First Instance. Thereafter, the Petitioner filed a petition to the Court of Cassation.\r\n\r\n<strong>The Court of Cassation</strong>\r\n\r\nThe Petitioner made the following arguments. The Court of Cassation’s findings are set out below each point:\r\n<ol>\r\n 	<li>The power of attorney given by the Respondent’s representatives to the attorney who instituted the action was not accompanied by proof of their authority to appoint attorneys to agree on arbitration and execute an arbitration agreement.  The Court of Cassation held that the relationship between the parties and their attorneys before the lower courts is a matter that concerns the parties alone and may not be contested by others or by the court of its own motion as long as the party itself does not question the power of attorney that it granted to its representative. An agreement to arbitrate that had been agreed without specific authority provided in the power of attorney is sanctioned by a relative nullity of the agreement to arbitrate that only the grantor of the power of attorney has the right to raise. The Respondent has not denied giving a power of attorney to the attorney who instituted the action. The Petitioner cannot therefore dispute the power of attorney or claim nullity of the arbitral award on the basis that the Respondent’s attorney has exceeded his powers and that the power of attorney did not authorize him to agree to arbitrate or execute an arbitration agreement.</li>\r\n 	<li>The Respondent instituted the action in court without regard to the arbitration clause and without any objection from the Petitioner. In light of this, the arbitration clause is void and the Court of First Instance should have heard the action and not referred it to arbitration. Pursuant to Articles 203(1) and 204 of the UAE Federal Law No. 11 of 1992 Concerning Civil procedures (as amended) (“Civil Procedure Law”), where the parties have agreed to arbitrate any disputes that may arise in relation to the performance of their contract, but have failed to agree on arbitrators or had agreed on an arbitrator who was then precluded from acting or disagreed over the appointment of an arbitrator, the Court originally competent to hear the dispute shall appoint whatever arbitrators are required by normal litigation procedures. The Petitioner and the Respondent had agreed under Clause 12 of their agreement that any dispute or difference arising between the parties to the agreement shall be referred to arbitration before a sole arbitrator who is to be appointed. A dispute arose between the parties concerning the performance of the agreement and the Respondent asked the Petitioner to perform its obligations and, should it refuse to pay the amount owing to the Respondent, to appoint an arbitrator on its behalf within seven days in order to commence arbitration. When the Petitioner refrained from nominating an arbitrator, the Respondent approached the Court of First Instance to appoint an arbitrator. Therefore, this argument is groundless.</li>\r\n 	<li>The award was rendered without terms of reference. Pursuant to Article 203(3) of the Civil Procedure Law, “The subject matter of the dispute must be defined in the arbitration document or during the course of proceedings even if the arbitrators are authorized to conduct conciliation; otherwise the arbitration shall be deemed null and void.” This means that an agreement to arbitrate may be set out in a contract or separately in an arbitration document. An arbitration clause in a contract dispenses the need to establish terms of reference or an arbitration document in order to validate the proceedings. Since the parties have provided for an arbitration agreement in their contract, there was no need for separate terms of reference.  The arbitrator’s acceptance of his appointment must be evidenced in writing or recorded in the minutes of hearing. Neither party had communicated its acceptance to the arbitrator, nor was such acceptance recorded in the minutes of hearing.</li>\r\n 	<li>The arbitrator’s attendance at the hearings is sufficient to constitute an implicit acceptance of his nomination and mandate. Further, the minutes of the hearing indicate that all the witnesses heard by the arbitrator had taken the oath except for the Respondent’s witness, who was not questioned by the arbitrator but by the Petitioner’s attorney. While unsworn testimony is void, the arbitral award did not rely on that witness’ testimony. The Court therefore rejected the Petitioner’s arguments.</li>\r\n 	<li>The arbitrator did not have the witnesses take the oath. The arbitrator further accepted foreign documents that were not accompanied by certified translations, despite the Petitioner’s insistence on production of the originals. While Article 45(4) of the Civil Procedure Code requires that documents drafted in a foreign language be accompanied by certified translations into Arabic, the court may rely on foreign documents after acquainting itself with their content and the other side not objecting to the content or insisting on an Arabic translation. The issue is not one of public policy and as long as the other side accepts the documents and discusses their content, it cannot then claim that the award which has relied upon the documents is void.</li>\r\n</ol>\r\nAccordingly, the appeal was dismissed by the Court of Cassation.'),
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	(89916,4893,'content','April 2014\r\n\r\n<hr />\r\n\r\nImportantly, the Court also confirmed that a decision by the Land Department to cancel the registration of off plan units in the Interim Register is subject to the Court’s review if the parties dispute such a decision.\r\n\r\n<strong>Facts </strong>\r\n\r\nThe Claimant (the Purchaser company) entered into a Sale and Purchase Agreement (“SPA”) of four off plan residential units with a real estate developer (the Second Defendant/ the Developer). Pursuant to the SPA, the expected date of completion was 30 November 2011. Additionally, an escrow account number was included in the SPA as the Second Defendant’s account. The Claimant paid AED 4,884,720 (the Claim amount) to the First Defendant, who is the main developer for the project where the units subject of the SPA are located.\r\n\r\nThe Claimant, after inspecting the site of the project, discovered that:\r\n<ul>\r\n 	<li>The Second Defendant did not fulfil its obligation in respect of the completion percentage;</li>\r\n 	<li>The Second Defendant did not obtain a permit to work as a developer;</li>\r\n 	<li>The developer for this project was the First Defendant;</li>\r\n 	<li>An escrow account was not opened specifically for this project;</li>\r\n 	<li>The units were not registered in the Interim Register.</li>\r\n 	<li>As a result of these discoveries, the Claimant initiated legal action before the Dubai Court of First Instance on 21 April 2009, seeking a Court order against the Defendants for the Claim Amount and interest at the rate of 12%.</li>\r\n</ul>\r\n<strong>Procedural History:</strong>\r\n\r\nBefore the Court of First Instance, the First Defendant argued the lack of its legal capacity in the case. Additionally, the Land Department addressed the Court, stating that the units subject of the dispute are registered under the Claimant’s name.\r\n\r\nThe Court of First Instance dismissed the case and the Claimant appealed before the Dubai Court of Appeal which, after appointing an expert and after submission of his report, quashed the lower Court’s decision and ordered the Second Defendant to pay to the Claimant the Claim Amount plus interest from the date of filing the claim until full completion at a rate of 9%.\r\n\r\nDeveloper’s grounds for appeal:\r\n\r\nThe Second Defendant challenged the Appeal Court’s decision before the Dubai Court of Cassation on the following grounds:\r\n<ol>\r\n 	<li>The case was filed prematurely. This argument was on the grounds that the parties agreed in their SPA that the expected completion date was 30 November 2011 extendible for twelve months, which makes the completion date 30 November 2012, yet the Claimant filed his case in 2009.</li>\r\n 	<li>It was also agreed that the parties relinquish any liability on the side of the Second Defendant in the event of delay in fulfilling its obligation when such delay was the result of a third party’s delay in performing a related obligation.</li>\r\n 	<li>It was concluded by the expert appointed by the Land Department in another case related to the same project that the main reason for the delay in completing the work on this project was that the main developer did not avail the necessary infrastructure where the project is located.</li>\r\n 	<li>The delay in completing the project was primarily due to (i) the delay caused by the main developer (First Defendant) in constructing the infrastructure, (ii) the breaches caused by the project’s investors including the Claimant in scheduled payments for their purchased units and (iii) the delay caused by the competent authorities in issuing the necessary permits required to resume works in the project.</li>\r\n 	<li>The Claimant did not have the legal capacity to file this case on the grounds that a decision was issued by the Land Department terminating the SPA and cancelling the registration of the units from the Claimant’s name. The Land Department had cancelled the units’ registration because the Claimant did not make the second instalment, due in December 2008, or subsequent scheduled payments. However, the appealed decision stated that the Land Department’s decision has no effect against the Claimant.</li>\r\n 	<li>The appealed judgment relied on the expert’s findings that the Second Defendant changed the payment schedule without obtaining the Claimant’s consent.</li>\r\n</ol>\r\n<strong>The Court of Cassation</strong>\r\n\r\nThe Cassation court found the Second Defendant’s arguments inadmissible and held:\r\n<ul>\r\n 	<li>According to Article 246 of the UAE Civil Code, “a contract must be performed in accordance with its contents, and in a manner consistent with the requirements of good faith” and “the contract shall not be restricted to an obligation upon the contracting party to do that which is contained in it, but shall also embrace that which is appurtenant to it by virtue of the law, custom and the nature of the transaction”. Determining whether the delay in performing a contractual obligation is considered a breach which would give one of the parties the right to terminate an agreement falls within the discretionary power of the Court.</li>\r\n 	<li>In light of the foregoing, if it was proven that a developer (i) was not serious in completing the project, (ii) was incapable of completing the project due to its negligence, or (iii) disclosed his wish not to complete the project, the buyer in these cases is entitled to withhold performing his side of the obligation i.e. payment of due instalments, according to Article 247 of the UAE Civil Code, until elimination of the threat of non-completion of the project or negligence.</li>\r\n 	<li>The practice adopted by the Court is that negligence or a breach on the side of the main developer does not exempt the sub contractor/developer from performing all his obligations derived from the latter’s agreement with the buyer.</li>\r\n 	<li>It is also established that a decision issued by the Land Department – upon a request from the developer -  to cancel registration of units in the Interim Register is subject to the Court’s review if a dispute arose in respect of such decision. If the Court discerned, after examination of the subject of the Land Department’s decision, that such decision was faulty, the Court may reverse the decision, which would eliminate the effects of the Land Department’s decision and accordingly the developer and the buyer would be restored to the same legal positions as before the issuance of the Land Department’s decision.</li>\r\n 	<li>In addition to the above, the Court considered the expert report’s finding (adopted by the lower Court) that (i) the works on the project started on 17 May 2009 and has only progressed to 2% on 28 February 2010 then the works on the project completely stopped; (ii) the Land Department cancelled the units‘ registration in the Interim Register and forfeited the instalments paid without taking into consideration the ongoing dispute between the parties before Court; (iii) the Land Department justified the cancellation due to the buyer’s breach in payment and did not take into consideration that the buyer withheld payment due to the developer’s breach in performing its obligations.</li>\r\n 	<li>The Cassation Court therefore upheld the appealed decision and dismissed the appeal.</li>\r\n</ul>\r\n<strong>Practice Note</strong>\r\n\r\nThis decision of the Court of Cassation reinforces its recent series of decisions in respect of contractual reciprocal obligations. It also confirms that a developer must ensure that it fulfils all its contractual obligations prior to resolving to the Land Department to cancel the registration of an off plan unit, since such a decision is subject to the Court’s review and does not have res judicata status against the buyer and does not protect the seller (developer) in the event of the latter’s breach of its obligations.\r\n\r\nAdditionally, if the Court finds differently to the Land Department, the parties will be restored to the same legal positions as before the Land Department’s decision. In practice, there have been examples where developers, in breach of their obligations, resolve to obtain a cancellation from the Land Department and resell the units. The original buyer has taken the matter to Court and the developer has then found itself in a peculiar situation where a Court has issued judgment in favour of the old buyer, even though they have re-sold the units.'),
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	(89940,4893,'_yoast_wpseo_metadesc','Another judgment by the Dubai Cassation Court, issued on 4 November 2012 continued its trend of deciding that a buyer may legitimately withhold the performance of his due obligation (as to price), if there are serious reasons to lead him to believe that the developer will fail to perform his future obligation.'),
	(89941,4894,'content','April 2014\r\n\r\n<hr />\r\n\r\nOne of the main restrictions is the procedure which must be followed by an employee to collect her dues in case of a dispute with the employer. The procedure, which is mandatory and strictly followed, requires the employee to first contact the Ministry of Labour (or the relevant authority) and then file a labour claim with the court.  The UAE courts, as detailed below, view this procedure and the court’s jurisdiction over labour disputes as a matter of public policy.\r\n\r\nIn cassation appeal 123/2009, the Dubai Court of Cassation heard a challenge to the lower court’s judgment denying the defendant employer’s request to dismiss the case for want of jurisdiction. The defendant argued that the labour contract with the employee contained an arbitration clause which precludes the Dubai Courts from hearing the case. The Defendant argued that Article 203 of the Civil Procedure Law allows parties to a contract to agree to an arbitration clause and the employee agreed to the clause, therefore the court should respect the parties’ wishes and arbitration agreement.\r\n\r\nThe Court in its analysis quoted Article 7 of the Labour Law which states: “any condition contrary to the provisions of this Law, even if was made prior to its commencement, shall be null and void, unless they are more beneficial to the Employee”. The Court reasoned that this article evidences the legislative intent and makes the employee’s rights given under the Labour Law part of public policy. Matters of public policy, the Court explained, are not matters which can be waived or conciliated. Therefore a labour contract may grant an employee more rights than the ones provided by law; however, an employee may not waive his rights under the law as this waiver would be contrary to public policy.\r\n\r\nThe court, for example, has affirmed an employee’s claim of 3 months payment in lieu of notice based on a clause in the employee’s contract which granted the employee more benefits than the Labour Law. (Cassation 65/2008). On the other hand, an employee’s agreement to clauses in a labour contract which lessens his rights as compared to the basic rights in the Labour Law is seen as waiver and is invalid.\r\n\r\nAs regards the arbitration clause, the Court quoted Article 203 (4) of the Civil Procedure Code which states that “It shall not be permissible to arbitrate matters in which conciliation is not permissible” and read it along with Article 7 of the Labour Law to conclude that conciliation is not permissible in labour disputes and therefore arbitration is not permissible either. Therefore, even if the parties agreed to an arbitration clause in their contract, the jurisdiction will remain with the Court since the clause would be against public policy.'),
	(181287,4894,'core_values',''),
	(89942,4894,'_content','field_59b649b5c8b2b'),
	(89943,4894,'lawUpdateArticleMonth','4888'),
	(89944,4894,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(89945,4894,'content_description','Federal Law 8 of 1980 (“the Labour Law”) provides special protections for employees and sets specific restrictions to labour contracts. '),
	(89946,4894,'_content_description','field_59b641c07f473'),
	(89947,4894,'pageSummary','Federal Law 8 of 1980 (“the Labour Law”) provides special protections for employees and sets specific restrictions to labour contracts.'),
	(89948,4894,'_pageSummary','field_59e59b307dec8'),
	(89949,4894,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/april-7/limitations-on-labour-contracts.html'),
	(89950,4894,'_currentURL','field_59d35123ab1e7'),
	(89951,4894,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Eman Ahmad'),
	(89952,4894,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(89953,4894,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','e.ahmad@tamimi.com'),
	(89954,4894,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(89955,4894,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(89956,4894,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(89957,4894,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Hussain Al Matrood'),
	(89958,4894,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(89959,4894,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','h.almatrood@tamimi.com'),
	(89960,4894,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(89961,4894,'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation',''),
	(89962,4894,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(89963,4894,'lawUpdateArticleNoWriters','2'),
	(89964,4894,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(89965,4894,'_yoast_wpseo_metadesc','Federal Law 8 of 1980 (“the Labour Law”) provides special protections for employees and sets specific restrictions to labour contracts.'),
	(89966,4895,'content','April 2014\r\n\r\n<hr />\r\n\r\nAchieving a strong Arab economic alliance was also a long-term goal of the Arab League. Although the Arab League was established a few years before the United Nations, attempts to overcome trade barriers between the Arab states have made limited progress, perhaps because most of the initiatives established were of a political nature at a time when Arab countries had differing political systems and were aligned to different foreign powers. There was no political desire to implement free trade agreements and the Arab countries were actually diverging socially, politically and economically.\r\n\r\nThe Greater Arab Free Trade Area Agreement (“GAFTA”) was first conceived at the Arab League Summit in 1982, but very little progress was made until it came into formal existence in 1998 and was signed by 17 member countries. Even though GAFTA has waived most customs duties on Arabic products between the member states since 2005, it lacks benefits for cross-border investment and effective dispute resolution mechanisms. In fact the Arab states have better-structured agreements, providing for greater benefits, with foreign western states than they do with other Arab countries. For example, Jordan, Egypt, Bahrain, and the Sultanate of Oman have free trade agreements with the US. Other Arab countries, such as Morocco, enjoy limited agreement with the European Union that provide better investment opportunities and trade than GAFTA.\r\n\r\nI believe the current social and political situation in the Arab states means there is no better time than the present to develop a proper, effective, free trade agreement, eliminating trade barriers among the Arab states.  Most of the Arab states now agree that they must focus on establishing economies that benefit the people, rather than on political motivation. For the first time, the Middle Eastern states have digested their political and cultural differences and realised that the best way to stabilise the political situation within the region is to create an economic environment that benefits all.\r\n\r\nWhereas the difference in living standards be tween Arab states has previously been seen as a barrier to progress, I believe it should now be seen as an advantage. The different states can each benefit by creating new economic opportunities - wealthy countries that do not have the manpower to manage certain industries can develop relationships with other countries to assist each other in building strong economic opportunities and trade across their borders.\r\n\r\nAccordingly, there is an immediate need for the Arab League to progress GAFTA. It must become a true free trade agreement, eliminating all barriers in trading, manufacturing and investment among the Arab states and from outside the region. It is also vital that a mechanism is established to settle disputes effectively.\r\n\r\nImportantly, the benefits of greater economic integration will not be limited to Arab government-owned companies. The Arab private sector will benefit from a proper free trade agreement allowing labour, capital, raw material and goods to flow freely.  A stronger Arab market will also attract foreign direct investment from non-Arab manufacturers, for example, who could set up in the Middle East and utilize the benefits of free trade, while being comforted by a proper dispute resolution mechanism that would avoid the need to be subjected to the criminal or civil procedures in those jurisdictions.\r\n\r\nThe key challenge that a comprehensive free trade agreement will face, either at the GCC level or the Arab League level, is the political differences that still exist among the Arab states.  In particular, the countries involved in the Arab Spring, whose internal political parties are not able to agree in what direction the county is going and which lack a process for such decision making. These countries are in desperate need of a free trade agreement and the economic benefits it will create. Even with their political similarities and historical family ties, the achievement of the GCC states on the legislative front, and in relation to a free trade agreement, has been far from perfect.\r\n\r\nThe creation of a strong economic alliance among Arab states requires an agreement with wording of an international standard that is purely motivated and driven by economic needs for the benefit of the private sector, without political motivation. Excellent drafting is essential and there are many examples that can be used as guidelines to achieve such a comprehensive workable agreement.\r\n\r\nIn conclusion, it is evident that there is a need among the Arab states to have a comprehensive free trade agreement for goods and investment (which is unlikely to extend to services at this time) to be able to achieve economic growth and benefit across the board.  Even acknowledging the common benefit to the Arab countries, there are political challenges to overcome before a comprehensive free trade agreement can be achieved.  However, I do not doubt that such an agreement will be at the top of the agenda in future Arab-to-Arab relationship discussions, in the pursuit of the economic, social and political stability that all Arab states desire.'),
	(181233,4895,'core_values',''),
	(181234,4895,'_core_values','field_59b64ab071de4'),
	(181235,4895,'file',''),
	(89967,4895,'_content','field_59b649b5c8b2b'),
	(89968,4895,'lawUpdateArticleMonth','4888'),
	(89969,4895,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(89970,4895,'content_description','The Arab states have sought economic unification ever since they collaborated with the British to force the Ottoman Empire out of the Middle East in the early 20th century. '),
	(89971,4895,'_content_description','field_59b641c07f473'),
	(89972,4895,'pageSummary','The Arab states have sought economic unification ever since they collaborated with the British to force the Ottoman Empire out of the Middle East in the early 20th century.'),
	(89973,4895,'_pageSummary','field_59e59b307dec8'),
	(89974,4895,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/april-7/is-it-the-right-time-for-an-arab-free-trade-agreement.html'),
	(89975,4895,'_currentURL','field_59d35123ab1e7'),
	(89976,4895,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','957'),
	(89977,4895,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(89978,4895,'lawUpdateArticleWriters','1'),
	(89979,4895,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(89980,4895,'_yoast_wpseo_metadesc','The Arab states have sought economic unification ever since they collaborated with the British to force the Ottoman Empire out of the Middle East in the early 20th century.'),
	(89981,4896,'content','April 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">This law amended Dubai Law No. 12 of 2004, which established the DIFC Courts and set out the original gateways granting exclusive jurisdiction to them.  The parties in this case initially agreed that the courts of the Claimant’s country would have exclusive jurisdiction over any dispute arising under or in connection with the agreement between them.  Subsequently, however, the parties decided to confer jurisdiction on the DIFC Courts by way of a written agreement.</p>\r\n<p class=\"MsoNormal\">In the DIFC Courts’ short history, this case represents a further example of its expanding jurisdiction.  Prior to Law No. 16, the DIFC Courts could only assume jurisdiction over matters that had a direct connection to the DIFC, as set out in Law No. 12.  Broadly, this connection had to involve the subject matter of the dispute, the location of the parties or the transaction concluded.  Law No. 12, as amended by Law No. 16, opened the gates to potential cases without such a jurisdictional connection, or gateway.  It granted the DIFC Courts jurisdiction over cases “<em>if submitted thereto by the agreement of the parties in writing whether before or after the dispute</em>”.  As seen in the SPX Case, the effect of this opt-in provision is to allow the DIFC Courts to hear disputes between parties located anywhere in the world where there is no other jurisdictional connection with the DIFC.</p>\r\n<p class=\"MsoNormal\">Although the decision to opt into the jurisdiction of DIFC Courts should take account of a number of factors, the DIFC Courts have become known for offering several advantages over other courts in the region.  Their advantages include: an international  judiciary with significant experience in sophisticated commercial disputes; the availability of an immediate/summary judgment; and the opportunity to recover most of a successful party’s legal costs.  As a firm, Al Tamimi shares Justice Sir David Steel’s sentiment expressed in the SPX Case that it is “<em>legitimate to hope that this example is the first of many where parties take advantage of the extended jurisdiction of the Court</em>”.</p>'),
	(181199,4896,'core_values',''),
	(89982,4896,'_content','field_59b649b5c8b2b'),
	(89983,4896,'lawUpdateArticleMonth','4888'),
	(89984,4896,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(89985,4896,'content_description','The recent DIFC Courts’ decision in SPX Middle East FZE v Judi for Food Industries was the first judgment to have been issued as a result of contracting parties’ election to opt into the DIFC Courts’ jurisdiction, which has been possible since October 2011 pursuant to Dubai Law No. 16 of 2011.  '),
	(89986,4896,'_content_description','field_59b641c07f473'),
	(89987,4896,'pageSummary','The recent DIFC Courts’ decision in SPX Middle East FZE v Judi for Food Industries was the first judgment to have been issued as a result of contracting parties’ election to opt into the DIFC Courts’ jurisdiction, which has been possible since October 2011 pursuant to Dubai Law No. 16 of 2011.'),
	(89988,4896,'_pageSummary','field_59e59b307dec8'),
	(89989,4896,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/april-7/opting-into-the-jurisdiction-of-the-difc-court.html'),
	(89990,4896,'_currentURL','field_59d35123ab1e7'),
	(89991,4896,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','888'),
	(89992,4896,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(89993,4896,'lawUpdateArticleWriters','1'),
	(89994,4896,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(89995,4896,'_yoast_wpseo_metadesc','The recent DIFC Courts’ decision in SPX Middle East FZE v Judi for Food Industries was the first judgment to have been issued as a result of contracting parties’ election to opt into the DIFC Courts’ jurisdiction, which has been possible since October 2011 pursuant to Dubai Law No. 16 of 2011.'),
	(89996,4897,'content','April 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">One of the most problematic issues relating to construction delay claims is that of concurrency.  Indeed, concurrency causes problems for many of those involved with construction claims, not only contract administrators (e.g., architects and engineers), but also for claims consultants, experts, lawyers and, apparently, even some members of the judiciary.<a href=\"#_ftn1\">[1]</a>  This article seeks to discuss the issue of concurrency in both an international and regional setting.<a href=\"#_ftn2\">[2]</a></p>\r\n<p class=\"MsoNormal\">The problems stem partly from the fact that there appears to be no agreed definition of what is meant by concurrency or how it should be interpreted and applied. Other problems arise when trying to determine whether concurrency applies to simultaneous or sequential<a href=\"#_ftn3\">[3]</a> events and whether it is the event or its effect which is important.</p>\r\n<p class=\"MsoNormal\">The above problems are not helped by the lack of a single, definitive authority which deals with all of the above, and these problems are further compounded by a difference of approach in different legal jurisdictions.<a href=\"#_ftn4\">[4]</a></p>\r\n<p class=\"MsoNormal\"><strong>What is concurrency?</strong></p>\r\n<p class=\"MsoNormal\">In the 2010 Scottish case of <em>City Inn</em> <em>v</em> <em>Shepherd</em> (referred to below) the judge highlighted the problem of trying to define the meaning of ‘concurrency’.<a href=\"#_ftn5\">[5]</a>  Indeed, it is probably easier to define what is meant by ‘concurrent delay’.  A definition of the latter, which is often used by English lawyers, is:</p>\r\n<p class=\"MsoNormal\"><em>‘A period of project overrun which is caused by two or more effective causes of delay which are of equal causative potency</em>.’<a href=\"#_ftn6\">[6]</a></p>\r\n<p class=\"MsoNormal\">In other words, a concurrent delay occurs when competing delay events (occurring either simultaneously or sequentially) overlap in their consequences.<a href=\"#_ftn7\">[7]</a>  Therefore, it is the ‘effect’ of the event which is all important and this is inextricably linked to the issue of causation.</p>\r\n<p class=\"MsoNormal\"><strong>Some Relevant Case Law</strong></p>\r\n<p class=\"MsoNormal\">Whilst it is acknowledged that the reference below to common law authorities which deal with the subject of concurrency and other time related issues are not binding in the UAE (for example the prevention principle<a href=\"#_ftn8\">[8]</a>), it is suggested that the principles laid down by these authorities may offer some guidance on how the international construction community may deal with the issue of delays in general and, in particular, concurrency.  Similarly, reference has also been made to the SCL Delay Protocol,<a href=\"#_ftn9\">[9]</a> which, whilst not a legal document (or statement of law) as such, may be considered to be informative (and, possibly, influential) as representing the general (or good) practice of dealing with delay claims in the construction industry. Readers will also be aware that many construction arbitrators in the UAE have common-law backgrounds, so parties (and their respective lawyers) appearing before them may wish to bear in mind how these arbitrators may themselves understand and deal with the issue of concurrency.<a href=\"#_ftn10\">[10]</a></p>\r\n<p class=\"MsoNormal\"><strong><em>Trollope &amp; Colls </em></strong><strong>v<em> North West </em>[1973] 9 BLR 60 </strong>– If an employer causes a delay then it cannot insist upon strict adherence to the time for completion.</p>\r\n<p class=\"MsoNormal\"><strong><em>Percy Bilton </em></strong><strong>v<em> GLC </em>[1982] 20 BLR 1 (HL) </strong>– Unless a contract provides otherwise, an employer cannot rely upon a liquidated damages clause if it has prevented the contractor from completing; instead, it would have to claim general damages from whenever the contractor should have completed, after allowing a reasonable time for completion. However, and most importantly, in order to be entitled to an extension of time a contractor must still demonstrate a causal link between the relevant event and the delay to completion.</p>\r\n<p class=\"MsoNormal\"><strong><em>SMK Cabinets </em></strong><strong>v<em> Hilti </em>[1984] VR<em> 391–</em></strong> This Australian case appears to have gone against the application of both the ‘but for’ and dominant cause tests. The case held that it does not matter if the contractor would not have been able to complete in time anyway, if the employer caused delay then it prevented the contractor from completing.</p>\r\n<p class=\"MsoNormal\"><strong><em>H Fairweather </em></strong><strong>v<em> Borough of Wandsworth </em>[1987] 39 BLR 106<em> – </em></strong>In this case the judge expressly disapproved the use of the dominant cause test when dealing with concurrent delays for claims for an extension of time. This view was subsequently agreed upon by an eminent construction lawyer.<a href=\"#_ftn11\">[11]</a></p>\r\n<p class=\"MsoNormal\"><strong><em>Balfour Beatty </em></strong><strong>v<em> Chestermount </em>[1993] 62 BLR 1 </strong>– This case dealt with relevant events occurring after the original completion date and when the contractor was in culpable delay. It was held that the contractor was entitled to an extension of time attributable to a (post-completion) variation/instruction, but that the period of the extension should only be ‘dotted-on’ to the original or extended completion date (colloquially known as the ‘dot-on’ or ‘net’ approach).  However, and crucially, the relevant event must still be shown to cause a critical delay. It is not enough that a relevant event occurred; a causal link between cause and effect must still be established. It is suggested that the judge in this case caused some confusion when he commented that in some circumstances it may not be ‘fair’ to grant a contractor an extension of time if the relevant event was ‘caused’ by the contractor’s own delay”.<a href=\"#_ftn12\">[12]</a></p>\r\n<p class=\"MsoNormal\"><strong><em>Henry Boot </em></strong><strong>v<em> Malmaison </em>[1999]</strong> <strong>70 ConLR 32</strong>– It was agreed between the parties in this case that if there are two concurrent causes of delay, one of which is a relevant event, then the contractor is entitled to an extension of time for the delay caused by the relevant event, provided it can be shown to have caused a critical delay. Notwithstanding the <em>Royal Bromptom</em> case (see below), an eminent construction lawyer takes the view that <em>Malmaison</em> represents how English law should deal with concurrency and that the dominant cause test is not applicable to extension of time claims.<a href=\"#_ftn13\">[13]</a><sup>,<a href=\"#_ftn14\">[14]</a></sup></p>\r\n<p class=\"MsoNormal\">Arguably, when considering whether to grant an extension of time an engineer should (unless the contract provides otherwise) consider other events, and not just the relevant events relied upon by the contractor, to see if the contractor’s progress has been affected.<a href=\"#_ftn15\">[15]</a></p>\r\n<p class=\"MsoNormal\"><strong><em>Royal Bromptom </em></strong><strong>v<em> Hammond </em>[2001] 76 ConLR 148</strong> – In order to obtain an extension of time a contractor must show that the relevant event caused a delay to completion, it is not enough that it is a relevant event. In the author’s experience, this crucial requirement is often overlooked by contractors and it comes down to a detailed analysis of factual events and a consideration of the critical path to determine when the event occurred and if completion was actually affected, and if so, by how much.</p>\r\n<p class=\"MsoNormal\">In this case the judge sought to distinguish between simultaneous and sequential concurrency.  The judge said that the case of <em>Malmaison</em> was concerned only with simultaneous concurrency.  However, a reading of the judgment in <em>Malmaison </em>discerns that the judge appeared to make no such distinction.</p>\r\n<p class=\"MsoNormal\">The judge in <em>City Inn</em> (referred to below), along with an eminent construction lawyer,<a href=\"#_ftn16\">[16]</a> took the view that the judge in <em>Royal Bromptom</em> case was wrong to distinguish between simultaneous and sequential concurrency.</p>\r\n<p class=\"MsoNormal\"><strong><em>Multiplex v Honeywell </em></strong><strong>[2007] BLR 195<em> – </em></strong>An employer cannot hold a contractor to a completion date if the employer has caused the contractor to miss that date, i.e., time becomes at large.<a href=\"#_ftn17\">[17]</a> <a href=\"#_ftn18\">[18]</a></p>\r\n<p class=\"MsoNormal\"><strong><em>City Inn v Shepherd </em></strong><strong>[2008] 8 BLR 269 (CSOH); [2010] BLR 473 (CSIH)<em> – </em></strong>In this Scottish case the judge went against <em>Royal Bromptom</em> and instead chose not to distinguish between simultaneous and sequential concurrent delays, but also went further by adopting the “apportionment approach”. The judge’s interpretation of the <em>Malmaison </em>case and disagreement with the <em>Royal Bromptom </em>case (i.e., there should be no difference between simultaneous and sequential delays) has since been supported by an eminent construction lawyer.<a href=\"#_ftn19\">[19]</a></p>\r\n<p class=\"MsoNormal\"><strong><em>De Beers UK v Atos </em></strong><strong>[2010]</strong> <strong>EWHC 3276</strong>– This case followed the <em>Malmaison </em>approach, i.e., where there is concurrent delay then a contractor should get time but not its costs.</p>\r\n<p class=\"MsoNormal\"><strong><em>Adyard v SD Marine </em></strong><strong>[2011] BLR 384 </strong>– This shipbuilding case appears to have used the dominant cause test to deal with delays, i.e. it was decided that variations were instructed by the employer when the contractor was already in culpable delay and so these variations had no effect on the already delayed completion date. The authorities referred to above suggest that the judge in this case was wrong to have applied the dominant cause test approach and failed to have proper regard to the prevention principle.</p>\r\n<p class=\"MsoNormal\"><strong><em>Jerram v Fenice </em></strong><strong>[2011] BLR 644 – </strong>In this case the judge not only followed the judge in <em>Adyard</em>  but appeared to go even further and suggest that when a relevant event occurs and the contractor is already in culpable delay, then the prevention principle will not apply. The judge in this case also appeared to apply the dominant cause test. At least one legal commentator has suggested that the judgment in <em>Jerram</em> was wrong.<a href=\"#_ftn20\">[20]</a></p>\r\n<p class=\"MsoNormal\"><strong><em>Walter Lilly</em></strong><strong> <em>v MacKay</em> [2012] BLR 503</strong> – In his judgment the judge confirmed that there was a difference of approach in England and Scotland when dealing with concurrency. The judge confirmed that the ‘apportionment approach’ was not applicable in England. The English approach may be stated thus: if there are two events causing concurrent delay, one of which is caused by the employer, then the contractor is entitled to an extension of time and there is no reason (or legal basis in England) to apportion delay.<a href=\"#_ftn21\">[21]</a></p>\r\n<p class=\"MsoNormal\"><strong>SCL Delay and Disruption Protocol</strong></p>\r\n<p class=\"MsoNormal\">The SCL Delay Protocol appears to mirror the English law (<em>Malmaison</em>) position where it talks about concurrency because at Core Principle No.9 it provides that if there is both a contractor and employer caused delay then the contractor’s entitlement to an extension of time should not be reduced. The SCL Delay Protocol explains the basis of its position in this respect at Sections 1.4.5 and 1.4.7.</p>\r\n<p class=\"MsoNormal\"><strong>UAE laws dealing with late completion and delay damages</strong></p>\r\n<p class=\"MsoNormal\">Whilst the above may demonstrate what concurrent delay is and how it is applied in the English courts at least, how is it dealt with under UAE law?</p>\r\n<p class=\"MsoNormal\">It will be appreciated by those familiar with construction law in the UAE that principles and concepts which are fairly well developed in other legal jurisdictions may not be so easily found within the laws of the UAE.<a href=\"#_ftn22\">[22]</a>  Experience suggests that it is not uncommon for some foreign lawyers who are new to the region try and shoehorn their own legal principles into the provisions of UAE law in an attempt to deal with some of the legal issues they encounter here in the UAE.</p>\r\n<p class=\"MsoNormal\">Concepts such as ‘concurrent delay’, ‘extension of time’, ‘prevention principle’ and ‘time at large’ are not expressly provided for within UAE law.<a href=\"#_ftn23\">[23]</a>  However, the fact that they do not exist as such should not cause too much concern because there are provisions to be found which may provide for a similar result.</p>\r\n<p class=\"MsoNormal\">It is trite, according to English law anyway, that a time delay does not necessarily give rise to financial recompense.  What this means is that whilst a contractor may be entitled to an extension of time under a contract, this does not necessarily mean it will receive compensation for that delay, i.e. it must prove a causal link between the delay and its loss. To distinguish between time and money, experts and lawyers often refer to excusable and compensable delays.  However, it is suggested that when considering these issues under UAE law, one should look at both the bigger picture and the end result to see how concurrent delay can be dealt with under UAE law.</p>\r\n<p class=\"MsoNormal\">Whilst UAE law does not allow for a contract to be extended without agreement,<a href=\"#_ftn24\">[24]</a> Articles 247, 249, 414 and 472 of the UAE Civil Code may, in some (possibly exceptional) cases, be relied upon to give a contractor a release from strict performance in terms of time.</p>\r\n<p class=\"MsoNormal\">Where a completion date cannot be extended (either pursuant to the contract or law), a contractor is, by default (under FIDIC), liable for liquidated damages.  However, Article 878 of the UAE Civil Code may assist a contractor because it provides that a contractor will only be liable for any loss or damage insofar as the loss does not arise from an event which the contractor could not prevent (e.g. an employer caused delay).<a href=\"#_ftn25\">[25]</a>  Similarly, Article 290 of the UAE Civil Code provides that a judge (or tribunal) may take into account the level of involvement of the other party (i.e. the employer) when assessing compensation.<a href=\"#_ftn26\">[26]</a>  One possible interpretation of Article 291 of the UAE Civil Code is that it may allow a judge (or arbitrator) to ‘apportion’ liability for concurrent delay.  Of course, conversely, an employer can rely upon these same provisions insofar as a contractor may be claiming an extension of time or prolongation costs during a period of concurrent delay.</p>\r\n<p class=\"MsoNormal\">One of the provisions of UAE law which is most often cited in construction disputes is the duty of ‘good faith’, which can be found at Article 246(1) of the UAE Civil Code. This provision is often relied upon by contractors when making allegations of unlawful acts (or inaction) by engineers or employers. In addition to this provision of good faith, Article 106 of the UAE Civil Code prohibits the unlawful exercise of a right. Hence, if an employer causes delay and the engineer subsequently fails to grant an extension of time for the same (or the contract does not allow an extension of time to be granted) then an employer’s subsequent attempt to levy liquidated damages for the contractor’s late completion could possibly fall foul of the Articles 106 and 246(1). Alternatively, a contractor may argue that in circumstances where the employer caused delay the employer would be unjustly enriched if it were to recover liquidated damages for this period. Again, these are all provisions which could also be relied upon by the employer if the contractor’s concurrent delay can be proven.</p>\r\n<p class=\"MsoNormal\">Notwithstanding the above, if a contractor believes that it has not been properly granted an extension of time (or if the contract does not allow for an extension) it may, amongst other things, seek to challenge an employer’s deduction of liquidated damages by way of Article 390(2) of the UAE Civil Code.  The decision whether to adjust the amount of liquidated damages will be at the discretion of the judge (or tribunal). At first glance, Article 390(2) may seem like a contractor’s trump card insofar as it may make life difficult for an employer because the employer would then have to prove its actual loss. However, contractors would do well to remember that the UAE Courts have consistently held that it is the contractor who has the burden of proving that the pre-agreed liquidated damages do not represent the employer’s actual loss.<a href=\"#_ftn27\">[27]</a> Of course, an employer may also apply to lift the capping of liability if it believes (and can prove) its actual losses are far greater than the pre-agreed liquidated damages.</p>\r\n<p class=\"MsoNormal\">When exercising its discretion under Article 390(2) a court (or tribunal) will likely consider the UAE’s hierarchy of laws and the underlying theme of freedom to contract and <em>pacta sunt servanda </em>(‘agreements must be kept’).<a href=\"#_ftn28\">[28]</a><sup> <a href=\"#_ftn29\">[29]</a></sup> It is widely recognized that clear words cannot be easily departed from.<a href=\"#_ftn30\">[30]</a>  Therefore, it may not be as easy as first thought for a party to simply turn round when later in dispute and cry ‘foul’ because it no longer likes the consequence of what it had previously agreed as acceptable as liquidated damages.</p>\r\n<p class=\"MsoNormal\"><strong>Dealing with Concurrency in the UAE</strong></p>\r\n<p class=\"MsoNormal\">In light of the above, what principles can be drawn when faced with arguments of concurrent delay in a construction dispute in the UAE?</p>\r\n<p class=\"MsoNormal\">As with any construction claim, careful consideration should first be had to the terms of the contract.</p>\r\n<p class=\"MsoNormal\">Pursuant to Sub-Clause 43.1 of FIDIC 4<sup>th</sup> Ed.,<a href=\"#_ftn31\">[31]</a> one of the contractor’s primary obligations is to complete on time<a href=\"#_ftn32\">[32]</a> and this obligation is reinforced by Articles 243, 246(1), 874 and 877 of the UAE Civil Code.<a href=\"#_ftn33\">[33]</a>  Particular regard should be had to how the parties have agreed to apportion risk for delay under the terms of the contract, e.g. Sub-Clause 44.1 of FIDIC 4<sup>th</sup> Ed.<a href=\"#_ftn34\">[34]</a></p>\r\n<p class=\"MsoNormal\">Because of the serious financial consequences arising from the late completion of a construction project, a contractor will often seek to excuse its delayed completion by laying some (if not all) of the fault at the door of the employer (or engineer). Conversely, an employer will likely argue that there was concurrent delay on the part of the contractor. Specifically in terms of concurrency:</p>\r\n\r\n<ol>\r\n 	<li>A contractor will likely argue that if the employer has caused a critical delay then the contractor is entitled to an extension of time, even if the contractor was in culpable (i.e. concurrent) delay itself.<a href=\"#_ftn35\">[35]</a> <a href=\"#_ftn36\">[36]</a></li>\r\n 	<li>An employer will likely argue that by reason of the contractor’s culpable delay the contractor would have been late anyway; hence, there is no entitlement to an extension of time.<a href=\"#_ftn37\">[37]</a><em> </em></li>\r\n</ol>\r\n<p class=\"MsoNormal\">To determine whether there has been a concurrent delay when faced with a contractor’s claim for an extension of time it is suggested that one approach would be for the engineer to first carry out a comprehensive review of the facts against the relevant and most recently updated programme (i.e. the programme which shows the latest critical path prior to the events occurring) to determine whether an employer and/or contractor risk event actually caused a critical delay to the overall completion date.<a href=\"#_ftn38\">[38]</a></p>\r\n<p class=\"MsoNormal\">As part of such a review it would be imperative for the engineer to have regard to the apportionment of risk for delay events under the contract. A perusal of most standard form contracts used in the UAE discerns that if a relevant event occurs <em>and</em> causes (or, is likely to cause) delay to completion then a contractor should be awarded an extension of time.</p>\r\n<p class=\"MsoNormal\">In the context of concurrent delay, this raises the question: can an extension of time clause be interpreted in such a way that the intention of the parties was that if an employer risk event caused (or is likely to cause) a critical delay when a contractor was in concurrent delay then the contractor is not entitled to an extension of time? A possible answer to this question is that, based on an interpretation of the FIDIC forms of contract at least, it appears that if there is concurrency then, provided the contract allows for the award of an extension of time, the contractor should still get an extension of time and the financial consequences would flow as laid down in the UAE laws referred to above.</p>\r\n<p class=\"MsoNormal\"><strong>Summary</strong></p>\r\n<p class=\"MsoNormal\">Leaving aside possible time bar and condition precedent issues, when faced with a claim from a contractor for an extension of time based upon an employer risk event an engineer should firstly determine whether the alleged event occurred in the manner described by the contractor and, secondly, determine whether the event actually caused a critical delay or not.<a href=\"#_ftn39\">[39]</a> If it did, then the next stage is to consider by how much. Ordinarily, if there was no concurrent delay the engineer would then likely grant an appropriate extension of time. However, if upon reviewing the facts the engineer determines that a concurrent delay did occur the engineer will (as best he can) need to review the as-built information for the period when the concurrent delay event occurred and determine whether this concurrent delay event also affected the completion date and will, no doubt, make a decision as to the extension of time entitlement based on one of the approaches referred to above.</p>\r\n<p class=\"MsoNormal\">Whilst the award of an extension of time will negate a contractor’s liability for liquidated damages, if the contractor was in concurrent delay then UAE law will likely protect an employer from a contractor’s claims for prolongation costs.</p>\r\n<p class=\"MsoNormal\"><em>The views</em> <em>expressed in this article are the author’s own and should in no way be taken as those of the firm. </em></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>  Winter J., <em>How Should Delay be Analysed – Dominant Cause and its Relevance to Concurrent Delay, </em>SCL Paper 153, January 2009, p.20.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[2]</a> This article does not seek to deal with other construction delay related topics such as the ownership of float or pacing delays.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[3]</a> Sequential in this context means events which do not start and finish at the same time but which involve a degree of overlap; whereas, simultaneous events are those which start and finish together and give rise to the term ‘true concurrency’.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[4]</a>  Some of the more notable cases on the issue of concurrency are referred to below.  However, this article is not intended to be an exhaustive review of the case law on the subject.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[5]</a>  ‘One of the problems in using such expressions as “concurrent delay” or “concurrent delaying events” is that they may refer to a number of different situations.’  Per Lord Osborne <em>City Inn v. Shepherd</em> [2010] BLR 473.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[6]</a>  John Marrin QC, <em>Concurrent Delay</em>, SCL Paper, February 2002.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[7]</a> It should be said at the outset that upon a forensic investigation of the facts there is often found to be no ‘true concurrency’.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[8]</a> The meaning of the “prevention principle” was succinctly stated by Jackson J (as he then was) in <em>Multiplex </em>v<em> Honeywell  </em>[2007]  BLR 195<em>; </em> namely “the essence of the prevention principle is that the promisee cannot insist upon the performance of an obligation which he has prevented the promisor from performing …”</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[9]</a> <em>The Society of Construction Law Delay and Disruption Protocol</em>, SCL, October 2002.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[10]</a>  Some of these authorities may prove useful in the DIFC Courts.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[11]</a>  Winter J., <em>How Should Delay be Analysed – Dominant Cause and its Relevance to Concurrent Delay, </em>SCL Paper 153, January 2009, p.14.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[12]</a>  With this confusion in mind, it should be noted that Sub-Clause 44.1 of FIDIC 4th Ed refers to the extension of time to which a contractor is <em>fairly</em> entitled.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[13]</a>  Winter J., <em>How Should Delay be Analysed – Dominant Cause and its Relevance to Concurrent Delay, </em>SCL Paper 153, January 2009, p.20.  It is suggested that the cases of <em>SMK Cabinets</em> and <em>Fairweather </em>support the view that the dominant cause approach should not be used in extension of time claims (i.e., it is only applicable to damages claims arising therefrom).</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[14]</a> This also appears to be the view of another eminent construction lawyer: Corbett E., <em>FIDIC</em> 4<sup>th </sup><em> A Practical Legal Guide, </em>Sweet &amp; Maxwell, 1991, pp. 254-257; and of a leading delay analyst: Pickervance K., <em>Delay and Disruption in Construction Contracts, </em>LLP, 3<sup>rd</sup> Ed, 2005, p.624.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[15]</a> FIDIC 4<sup>th </sup>Ed: Sub-Clause 44.1 refers to what a contractor is ‘fairly’ entitled to and Sub-Clause 2.6 refers to the Engineer taking in ‘all the circumstances’.   Sub-Clause 3.5 of FIDIC 1999 Red Book refers to the Engineer ‘taking due regard of all relevant circumstances’.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[16]</a> Winter J., <em>et al,</em> ‘<em>One step forward, two steps back’, Civil Engineering Surveyor</em>, November 2011. p.36.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[17]</a> <em>Time at large</em> is a common law concept which is not found within UAE law.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[18]</a> Of course, the concept of ‘time at large’ does not exist per se in the UAE.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[19]</a> Winter J., ‘<em>How Should Delay be Analysed – Dominant Cause and its Relevance to Concurrent Delay’, </em>SCL Paper 153, January 2009, p.16.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[20]</a> Winter J., <em>et al,</em> ‘<em>One step forward, two steps back’, Civil Engineering Surveyor</em>, November 2011. p.38.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[21]</a> <em>Walter Lilly &amp; Co. Ltd</em> v. <em>GPC MacKay and DMW Developments Ltd</em> [2012] EWHC 1773 (TCC) per Mr. Justice Akenhead at [370].  It may be said that the English courts apply the test of causation mores strictly than in Scotland in this context.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[22]</a> Many of the UAE’s larger construction projects have adopted either the FIDIC 1987 or 1999 forms of contract, both of which post-date the UAE’s Civil Code of 1985.  This dilemma is compounded by reason of the fact that the FIDIC 1987 form can be traced back to the English ICE standard form which was drafted with common law principles in mind.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[23]</a> By ‘UAE law’ regard here is had to Federal Law No.5 of 1985 (the Civil Code), unless stated otherwise.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[24]</a> Article 877 of the Civil Code provides that a contractor must complete in accordance with the conditions of contract, which, some would argue, means it must complete by the agreed time for completion.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[25]</a> Article 386 of the UAE Civil Code may have a similar effect.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[26]</a> Articles 287 and 291 of the UAE Civil Code may have a similar effect.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[27]</a> There are ways whereby a contractor can possibly overcome this evidential burden.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[28]</a> Article 257 – UAE Civil Code, i.e., the contract (and terms thereof) is what the parties freely consented to.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[29]</a> See also, Articles 389 and 390(1) of the UAE Civil Code which expressly refer to the compensation fixed by the contract.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[30]</a> Article 265(1) – UAE Civil Code.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[31]</a> Sub-Clause 8.2 FIDIC 1999 Red Book.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[32]</a> This includes any extended time for completion.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[33]</a> As intimated above, some might argue that Article 877 does not extend to obligations such as progress and completion.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[34]</a> Sub-Clauses 8.4 and 8.5 FIDIC 1999 Red Book.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[35]</a> This is the <em>Malmaison </em>approach of the English courts.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[36]</a> Contractors will often argue that its own delay was not a concurrent delay but merely a pacing delay.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[37]</a> This is dominant cause approach and the <em>Royal Brompton</em> approach if there was no true concurrency.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[38]</a> If the records are not available and/or the programmes have not been properly updated then a critical path analysis may not be possible.  Moreover, a critical path analysis may sometimes be seen as too theoretical.  This issue arose in one of the cases referred to above.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[39]</a> Under the FIDIC forms of contract issues relating to timely notice (i.e., conditions precedent and time bars) and the level of detailed particulars provided would also be considered at this stage, but the legal status of the same is outside the scope of this article.</p>\r\n\r\n</div>\r\n</div>'),
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	(90021,4898,'content','April 2014\r\n\r\n<hr />\r\n\r\nThis note considers the position under UAE law and how a Court (or Arbitral Tribunal) might approach this issue where a contractor cannot (or will not) implement the option selected by the employer.\r\n\r\n<strong>The problem</strong>\r\n\r\nAn example of the issue, based on an actual set of facts, is as follows:\r\n\r\n‘A’ enters into a contract with ‘B’ to build a swimming pool for his hotel. The design depth is three metres at the deep end. Upon completion it is discovered that the depth is 2.5 metres.  A requires B to specifically perform the contract by rebuilding the pool to the agreed depth. B refuses on the basis that the pool complies with international safety codes for minimum water depths for head first diving, but is willing to pay an amount equivalent to the decrease in value of the pool, which is considerably less than the cost of rebuilding the pool. A sues B under the contract to recover the cost of rebuilding the swimming pool to the agreed depth.\r\n\r\n<strong>Position under UAE law</strong>\r\n\r\nUnder Articles 877 and 878 of Federal Law No.5 of 1987 (commonly referred to as the Civil Code), a contractor must complete its work in accordance with the conditions of the contract (including agreed specifications etc.).  If works are defective or do not comply with contractual conditions, the employer may require the contract to be cancelled if it is impossible to correct the works. If it is possible to make good the work (as it would be in the above example) the employer may require the contractor to do so within a reasonable period, failing which application can be made to the Court (or Arbitral Tribunal) to either cancel the contract or engage a third party to complete the work at the cost of the first contractor.\r\n\r\nArticle 274 of the Civil Code provides that if the contract is cancelled, the Court must ensure that the parties are restored to the position they were in had the contract been properly performed.\r\n\r\nArticles 386 and 389 of the Civil Code provide that the judge must assess compensation in an amount equivalent to the damage caused by the breach of contract. Under Article 390 of the Civil Code the Court may, upon application of either party, re-assess and adjust the pre-agreed amount of compensation so that it is equal to the actual loss suffered.\r\n\r\nFor comparative purposes, consider the position for a moment in England. The Courts in this jurisdiction could measure the sum of money to be awarded as compensation in one of three ways, namely:\r\n<ul>\r\n 	<li>the cost of reinstatement, i.e. remedial works to reinstate the pool to the agreed depth;</li>\r\n 	<li>reimbursement of any cost saving to the contractor of building a more shallow pool; or</li>\r\n 	<li>reimbursement of the diminution in value of the swimming pool, i.e. loss in value of the property because it is less marketable due to the defective work.</li>\r\n</ul>\r\nAn English court generally considers reinstatement as the appropriate measure of compensation, since the employer is, as a general rule, entitled to have a building which conforms to the contract plans on the provisio that it is reasonable for the employer to insist upon reinstatement and making good the defective work is not unnecessary or extravagant. If an employer is insisting that a pool be opened up and made one inch deeper, it would in all probability be considered unnecessary.\r\n\r\nUnder UAE law, a Court must decide whether to order specific performance or that the cost of engaging a third party to complete the work (i.e. remedial work) be paid by the contractor to the employer, or cancel the contract and order that the contractor pay compensation. It is a basic principle under Article 386 of the Civil Code that before assessing compensation the judge must be satisfied that specific performance is impossible. Under Article 885 of the  Code the employer is only obliged to pay the countervalue of the thing contracted, i.e. the contractor cannot be unjustly enriched from his breach of contract, and therefore reimbursement of the difference in cost to the builder of the actual work done and the work specified is also one of the bases for assessing the sum of money to be awarded.\r\n\r\nUnlike the general position in England that the employer’s insistence on reinstatement must be reasonable, this is not an express requirement under the Code.  However, Article 246 of the Code provides for a pervasive principle of fairness in all contractual dealings, and Article 389 provides for something akin to the duty to mitigate the loss, which together provides some protection to contractors.\r\n\r\nIf the above example were decided in the UAE then a UAE Court would, provided it is satisfied that specific performance is impossible, choose between ordering that remedial costs or compensation be paid by B. Courts frequently appoint an expert to identify the options for remedying defective works, but it is rarer for Arbitral Tribunals to do so. If an expert is not appointed or the expert identifies more than one option, and the contractor can establish that reinstatement is unreasonable or extravagant, then a Court (or Arbitral Tribunal) could assess the sum of money to be awarded as compensation on the basis of reimbursing the employer the difference in cost of the actual work done and the work specified or payment of the loss in value of the property because the swimming pool is more shallow. If the loss in value exceeds the difference in building cost, then the former would be the more likely basis for assessing the sum to be awarded as compensation.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nCases involving construction defects are extremely fact sensitive. However the above demonstrates that under UAE law there are a variety of potential remedies. Which is the most appropriate will depend on the particular contract, the records and evidence available, and how expensive it may be to remedy the defect.'),
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	(90043,4898,'_yoast_wpseo_metadesc','Deciding upon the appropriate remedy for defective works is an issue that frequently arises during construction disputes and is often hotly contested.'),
	(90044,4899,'content','April 2014\r\n\r\n<hr />\r\n\r\nThe RDC was established by Decree No. 26 of 2013 and has been operational since 17 November 2013 to provide improved resolutions to tenancy disputes in Dubai within a shorter time frame. Judge Abdul Qader Mousa is the current head of the RDC.\r\n\r\n<strong>Tenancy Law</strong>\r\n\r\nIn Dubai, the relationship between landlord and tenant is governed by Law No. 26 of 2007 as amended by Law No. 33 of 2008 (“Tenancy Law”).\r\n\r\nArticle 25(2) of the Tenancy Law provides four grounds whereby a landlord may evict a tenant upon expiry of the tenancy contract provided that a prior written notice of termination is served to the tenant at least 12 months beforehand by Notary Public or by registered mail. The four grounds are as follows:\r\n<ol>\r\n 	<li>“If the owner wishes to demolish the property for reconstruction or add new constructions that prevent tenant from benefiting from the leased property, provided that necessary licences are obtained;</li>\r\n 	<li>If the property requires renovation or comprehensive maintenance which cannot be executed while tenant is occupying the property, provided that a technical report issued by Dubai Municipality or accredited by it is submitted to this effect;</li>\r\n 	<li>If the owner of the property wishes to recover the property for use by him personally or by his next of kin of first degree provided that he proves that he does not own a suitable alternative property for that purpose; and</li>\r\n 	<li>If the owner of the property wishes to sell the leased property.”</li>\r\n</ol>\r\nIn a recent judgment, the Appeal Department of the RDC overruled the First Instance Department of RDC in relation to eviction and non-renewal clauses in the contractual agreement between the landlord and the tenant. We highlight below the main clarifications issued by the Appeal Department regarding tenancy contracts disputes.\r\n\r\n<strong>Notice Period</strong>\r\n\r\nThe RDC has clarified that it shall not admit any tenancy dispute case prior to completion of the mandatory 30 days’ notice period stated in Article 16 of Dubai Decree No. 26 of 2013.\r\n\r\nThis is a departure from previous judgments passed by the old rent committee and adds an increased level of transparency and fairness to the parties in dispute. Further RDC’s renewed approach is in compliance with best practices applicable to tenancy disputes.\r\n\r\n<strong>Non renewal clause</strong>\r\n\r\nA common clause seen widely in tenancy contracts is: “Renewal is at the discretion of the Landlord. This Tenancy Contract shall terminate upon expiry and the tenant shall vacate the premises.”\r\n\r\nIn the present judgment, the Appeal Department of the RDC emphasized the importance of UAE public policy and regarded this clause to be in breach of such policy. Article 25(2) of the Tenancy Law lays down the four limited grounds whereby a landlord can demand eviction of the tenant upon expiry of the tenancy contract and any other ground would not be acceptable to RDC.\r\n\r\nIn the past we have seen varying judgments with conflicting views issued by the old rent committee. We hope that the RDC continues to issue such clear judgments in future cases.\r\n\r\n<strong>Practice Note</strong>\r\n\r\nThe decision by the Appeal Department is particularly helpful as it provides a clear judgment. The approach adopted by the new RDC is consistent with the Tenancy Law as well as public policy in UAE.\r\n\r\n<strong>Future Developments</strong>\r\n\r\nThe RDC has indicated that they will implement various new initiatives in the near future including the following:\r\n<ol>\r\n 	<li>The issuance of further clarifications and the introduction of new laws relating to RDC procedures and fees;</li>\r\n 	<li>Amendments to the current Tenancy Law;</li>\r\n 	<li>The introduction of electronic filing for cases before the RDC whereby attendance in person will be unnecessary;</li>\r\n 	<li>The introduction of a new template tenancy agreement.</li>\r\n</ol>\r\nAl Tamimi &amp; Company’s Litigation team together with the Property team regularly advise clients on such tenancy dispute matters, including filing and managing cases before the RDC.'),
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	(90050,4899,'pageSummary','As an update to our previous article in October 2013 regarding introduction of the new Rental Dispute Settlement Centre (“RDC”) in Dubai, this article focuses on the key clarifications issued by the RDC in a recent judgment.'),
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	(90058,4899,'_yoast_wpseo_metadesc','As an update to our previous article in October 2013 regarding introduction of the new Rental Dispute Settlement Centre (“RDC”) in Dubai, this article focuses on the key clarifications issued by the RDC in a recent judgment.'),
	(90059,4900,'content','April 2014\r\n\r\n<hr />\r\n\r\nOver the last few years, the IP practice of Al Tamimi &amp; Company has played a key role to lead such initiatives and has built bridges between brand owners and local officials working in anti-counterfeiting duties. This strategy appears to be very effective as a means to:\r\n<ol>\r\n 	<li>Increase the level of awareness of protected trademarks and equip officials with basic knowledge to distinguish genuine products;</li>\r\n 	<li>Enhance the inspection skills of law enforcement officers and capability to distinguish counterfeited/infringing goods; and</li>\r\n 	<li>Most importantly, assist brand owners to exchange ideas, discuss the obstacles they face and voice their commercial concerns to governmental decision makers.</li>\r\n</ol>\r\nIn return, officials have become more skilled to address counterfeiting and improve the administrative enforcement procedures and formalities. In this instance, we emphasise the recent progress made in cooperation with officials and we anticipate that there will be promising developments in the regulations, level of seizures and efficiency of procedures that IP enforcement officials are willing to implement and adopt.\r\n\r\nIn March 2014, a number of our clients and brand owners based in Europe, in coordination with Al Tamimi &amp; Company, hosted a delegation of officials from the Sharjah Economic Development Department (SEDD), who participated in a program educating them on anti-illicit procedures and training them in respect of products’ identities and manufacturing standards.  The delegates from the Commercial Compliance and Control Department at SEDD, who oversee anti-counterfeiting actions within Sharjah, were able to receive practical training to empower their products analytical skills. Furthermore, delegates were able to visit factories and speak directly to the management of brand owners about the IP enforcement and commercial protection formalities and learn about the brand owners’ priorities and issues in local the market. On the other hand, brand owners had the opportunity to convey technical knowledge which will assist officials to be familiar with elements of genuine products, exchange their business risks and highlight the commercial challenges that result from illicit trade activities in the Middle East region. In addition, officials were also able to briefly hear about enforcement experiences in other countries and consider proposals to improve the procedures of fighting the counterfeiting trade.\r\n\r\nThe Dubai Customs and its IPR department is another good example of direct dialogue with brand owners. This is evident in several visits made between senior officials to brand owners’ factories and offices overseas to exchange knowledge and experiences. The IP department of Dubai Customs had imposed a requirement on IP attorneys to include information about the brand owner’s contact details while completing the recording process of all trademarks. This enables direct interaction between brand owners and officials for the benefits of improving knowledge, awareness and brand protection.\r\n\r\nThis new strategy of interacting with the private sector was recently led by His Highness Sheikh Mohammed Bin Rashid Al Maktoum, UAE Vice President, Prime Minister and Ruler of Dubai, when he urged decision makers and governmental departments to closely interact with the public and private sectors while setting up future plans and goals. His Highness gave a great example of transparency and inspired officials and governmental officers to be more involved with the public and companies, in order to maintain open communication, the sharing of ideas and to consider creative ideas to overcome obstacles at the brainstorming stage in planning for the upcoming year’s goals and priorities.\r\n\r\nWe urge all IP owners to consider such initiatives and take further steps to closely interact with officials at all levels of law enforcement agencies and governmental departments, to clearly share their objectives and challenges while protecting or enforcing their Intellectual property rights in the UAE.\r\n<div></div>'),
