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	(89320,4860,'content','February 2014\r\n\r\n<hr />\r\n\r\nInsurance in construction contracts can be complicated and the purpose of this article is to provide an overview of some key issues to be aware of in this intricate area.\r\n\r\n<strong>Types of Insurance</strong>\r\n\r\nThe most common forms of insurance under a construction contract in the Middle East, include:\r\n<ul>\r\n 	<li>All risks insurance – This insures against physical damage to the works (and usually materials on site).  All risks insurance typically covers the full reinstatement value of the works plus a mark up for any ancillary costs (such as consultancy and professional fees) that are incurred.</li>\r\n</ul>\r\nAs contractors generally have “global” all risks insurance policies that cover all its projects, it is generally more cost effective for contractors to maintain this insurance.  Once taken over, the risk in the works passes to the employer, who needs to ensure that the works are adequately insured.\r\n\r\nAlthough defects are usually excluded from all risks insurance policies, wording can be purchased that provides cover for damage that a defect causes to other parts of the works.  For this insurance to be meaningful, the different components of the works must be carefully and clearly delineated. This insurance is only generally available if the works are being undertaken in accordance with well established (rather than evolving) construction techniques.\r\n<ul>\r\n 	<li>Professional indemnity insurance – This insures contractors with design responsibility (i.e. under design and build contracts) against liability arising out of professional negligence and will respond if, for example, designs do not comply with the requirements of the underlying construction contract (although it is not uncommon for professional indemnity insurance to exclude cover for “fitness for purpose” warranties).</li>\r\n</ul>\r\nProfessional indemnity insurance is made on “a claims made basis” (rather than when the breach of professional duty actually occurs). This means that professional indemnity insurance is generally required to remain in place until any limitation period ends (which, in the UAE, is 10 years). The amount of professional indemnity insurance cover the contractor is required to have in place is generally determined on a case by case basis, depending on the extent and the complexity of the design works in question.\r\n\r\nProfessional indemnity insurance is also the most important insurance policy that design consultants (such as architects and engineers) are required to have in place.\r\n<ul>\r\n 	<li>Public liability insurance  – This provides cover for liability arising out of death or personal injury to third parties (but not the contractor’s employees, who should be covered by worker’s compensation insurance) or damage to property belonging to third parties (but not the works, which is covered by the all risks insurance) prior to the works being taken over.</li>\r\n 	<li>Workers’ compensation insurance - This insures the contractor against liability for the death or personal injury to its employees (usually on site) when performing the works.</li>\r\n</ul>\r\nIf an employee of a contractor causes the death of a third party, the Sharia law applied in many Middle Eastern countries allow diyah or “blood money” to be claimed by the victim’s heirs from the individual who caused the fatality. The level of compensation in the UAE, for example, is currently set at AED 200,000 per make. Contractors sometimes purchase additional insurance against this liability.\r\n<ul>\r\n 	<li>Decennial liability insurance  – Under Articles 880 to 883 of the UAE Civil Code the contractor (and supervising architect) are jointly liable to the employer for a period of 10 years (from the date the works are taken over) for any defect that threatens the safety or stability of the building or if the building suffers a total or partial collapse. Decennial liability cannot be contractually excluded and contractors often take out insurance against this liability.  Similar decennial liability regimes apply in most other Middle Eastern jurisdictions.</li>\r\n 	<li>Delay in start-up insurance (DSU)   -  Unless the contractor is entitled to relief under the contract, contractors are customarily required to pay liquidated damages to the employer if the works are not taken over by the date for completion or, depending on the nature of the works, fail to satisfy specified output criteria.</li>\r\n</ul>\r\nHowever, liquidated damages are customarily capped at 10% of the contract price. Caps of this nature may mean that the employer is not fully compensated for any loss suffered and even though caps on delay damages can sometimes be set aside (and damages reassessed so that they correspond with the actual loss suffered), this can be a slow, uncertain and expensive process.\r\n\r\nFor this reason, employers sometimes (especially if the works are project financed) take out DSU insurance which provides compensation for losses (including loss of revenue and other consequential losses) arising out of late completion as well as other forms of delay (such as force majeure).\r\n\r\n<strong>Key provisions</strong>\r\n\r\nApart from the basic requirement to take out and maintain insurance policies, other important ancillary issues regarding insurance include:\r\n<ul>\r\n 	<li>Joint names - Certain insurance policies (especially public liability insurance) are generally taken out in the joint names of the employer and the contractor (as well as a funder) so that, for instance, the employer is insured against any liability (vicariously) incurred by reason of a breach by the contractor.  As a matter of good order, co-insured parties should obtain copies of the policy that they are insured under so they know exactly what they are covered for.</li>\r\n</ul>\r\nGenerally speaking, a party named under an insurance policy can make claims under that policy and it is also common for insurers to be required to waive their rights of subrogation against co-insured parties.  This means that the insurer agrees not to seek to recover against a co-insured party (i.e. the employer) even if the insurer paid out on account of the actions of the employer.\r\n\r\nIt is important that, if two or more parties are insured under the same policy, the policy provides that no act or omission of a co-insured party (i.e. misrepresentation, non disclosure or failure to notify) will vitiate the policy or otherwise prejudice the cover of the other co-insured (and non-breaching) parties under the policy.\r\n<ul>\r\n 	<li>Cross liability – It is usual for contracts that are in joint names to contain a cross liability clause.  A cross liability clause essentially means that each party is insured in its own right as if a separate policy had been issued and, as such, the policy will respond to liability incurred by one co-insured party to another co-insured party.</li>\r\n 	<li>Interest noted on a policy - It is important to distinguish between insurance being taken out in joint names and a party’s interest being simply noted on a policy.  Although a party whose name is noted on a policy has the right to share in insurance proceeds, party does not have any direct right to claim under the policy. Furthermore the insurer generally will not waive its rights of subrogation against a party whose interest is noted on the policy.</li>\r\n</ul>\r\nPer occurrence or in the aggregate - It is important to check if insurance cover is provided on a per occurrence or on an aggregate basis. For the employer, cover on a per occurrence basis is obviously advantageous as, if insurance is provided on an aggregate basis, a previous claim could severely impact on (and even completely exhaust) the amount of available insurance.  This point is made all the more relevant if the insurance is not project specific, as a claim from one project could mean that no cover is available for any other projects.\r\n<ul>\r\n 	<li>Deductibles - Employers should carefully assess the level of the deductible under an insurance policy to ensure that the deductible is reasonable and not prohibitively high.  Excessive deductibles could lead to a risk being effectively uninsured.</li>\r\n 	<li>Exclusions – Insurance policies are normally subject to exclusions that may restrict the amount of available cover (i.e. some insurance policies exclude cover for guarantees and liability for delay damages while “fitness for purpose” warranties are also a relatively common exclusion).  It is therefore important for employers and contractors to review the extent of cover to assess the suitability of a policy in light of the risks that are likely to occur under the contract.</li>\r\n 	<li>Lender’s interests – As part of their security package, a lender may require an assignment of the borrower’s rights under insurance policies and may also wish to be named as the loss payee of the insurance proceeds.</li>\r\n</ul>\r\nAdditionally, lenders may prefer to use insurance proceeds to pay off the loan instead of reinstating the project if the project is destroyed or badly damaged. If lenders require this ability, care needs to be taken to ensure that this right is accommodated by the underlying insurance policy.\r\n<ul>\r\n 	<li>Identity of insurers – Employers usually impose minimum requirements regarding the creditworthiness of insurers to reduce the risk of insurers defaulting on their payment obligations.</li>\r\n 	<li>Caps on liability - It is a common misconception in the construction industry that a contractor’s liability for a particular risk (especially for breach of professional duty or negligence) is implicitly capped at the amount of insurance that the contractor is required to have for that risk.</li>\r\n</ul>\r\nThis is not the case. If, for example, the contractor is required to have professional indemnity insurance of USD 5 million per claim, the contractor’s liability, for say a defective design, is not automatically capped at USD 5 million per claim and the employer may seek to recover from the contractor’s assets (or any additional insurance policy that the contractor has in place) for any loss incurred that exceeds USD 5 million.\r\n\r\nExpress wording is required for a contractor’s liability to be limited and, even then, local laws (such as the UAE Civil Code (i.e. Article 390(2)) can be invoked upon to reassess and adjust pre-agreed caps on liability so that the injured party can only recover damages to compensate it for the actual loss sustained arising out of the breach.\r\n\r\n<strong>Final note</strong>\r\n\r\nThe drafting of insurance clauses usually requires a contractors to “warrant” (or, in other words, guarantee) that it has satisfied all the requirements imposed by the construction contract. As such, these requirements cannot be taken lightly and may result in an inadvertent (and serious) breach of contract if they are not adhered to. It is therefore important that, prior to executing a contract, each party:\r\n<ul>\r\n 	<li>ensures that it understands the extent of its insurance obligations;</li>\r\n 	<li>makes sure that the insurance requirements are reviewed by its legal advisor to ensure that they are consistent with the underlying obligations under the contract and confirm with market norms;</li>\r\n 	<li>confirms with its insurance advisor that the insurance requirements under the contract can be accommodated by the relevant insurance policies (and also determines any cost implications); and</li>\r\n 	<li>checks that any necessary amendments are made to the relevant insurance policies to ensure that the contractually agreed insurance requirements are adequately reflected.</li>\r\n</ul>'),
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	(89341,4861,'content','February 2014\r\n\r\n<hr />\r\n\r\nApproved by His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Vice-President and Prime Minister of the UAE and Ruler of Dubai, Dubai Health Insurance Law No. 11 of 2013 came into effect on 1 January 2014 (Law).  The aim of the Law is to create an integrated health system for Dubai, based on a sustainable financing system that supports the competiveness of Dubai and protects the rights of all participants.  The Law phases in the requirement for all employers in Dubai to have in place compliant health insurance cover for their employees.  It applies to all participants in the health insurance arena including health service providers, insurance companies, insurance brokers, claims administration companies, employers, sponsors and beneficiaries.\r\n\r\nThis article discusses some of the principle features of the Law and what they mean for those involved in health insurance in the Emirate.\r\n\r\n<strong>When will the law begin to apply?</strong>\r\n\r\nWhilst the Law came into effect on 1 January 2014, the provision of health insurance cover will only become mandatory for:\r\n<ul>\r\n 	<li>companies with more than 1,000 employees, from 31 October 2014;</li>\r\n 	<li>companies with 100-999 employees, from 31 July 2015; and</li>\r\n 	<li>companies with less than 100 employees, from 30 June 2016.</li>\r\n</ul>\r\nThe roll out phase also provides that dependents of sponsors, including domestic workers, must also be covered for the basic health coverage by 30 June 2016.\r\n\r\n<strong>What does this mean for me as an employee based in Dubai?</strong>\r\n\r\nThe Law’s jurisdiction spreads across the entirety of the Emirate, including its development areas and free zones so eventually all of the nearly three million residents of Dubai, nationals and expatriates alike, should be covered.  That said, the minimum cover offered will differ between residents and nationals with the later also having access to additional preventative and therapeutic health services.  The schemes for both nationals and residents will at a minimum cover general practitioner visits, emergency treatments, referrals to specialists as well as surgical, investigative and maternity procedures.\r\n\r\nSeparately, in the case of visitors to Dubai, the Law indicates that further regulation will be developed to provide for cover in the case of emergency treatments.\r\n\r\n<strong>What are my obligations as an employer?</strong>\r\n\r\nEmployers are required to put in place health cover for their staff that meets the minimum requirements of the Law.  The Law stipulates that employers cannot simply pass on the cost of the cover to their staff and the Dubai Health Authority (DHA) has made clear that it will treat any attempts to do so seriously.  As a means of ensuring cover is put in place and maintained, the renewal of an employee’s visa will be subject to the employee having health insurance in place.  Employers have to provide a basic health coverage with an annual premium anywhere between Dh500-Dh700 and a maximum insurance cover per person per annum of Dh150,000.\r\n\r\nOne of the key differences of Dubai’s health insurance regime is that employers are not required to provide coverage for the dependents of their employees.  By making family cover compulsory, companies could be biased towards hiring single executives to save costs which could in turn shift the balance of Dubai’s demographic make-up away from its current family-orientated focus.  Instead, cover for dependents falls to the sponsor themselves.  So where a dependent does not receive cover from an employer, it becomes the responsibility of the sponsor to put in place and maintain the required cover (though this does not apply until July 2016).\r\n\r\nFailure by employers to provide insurance carries fines of between Dh500 and Dh150,000.  Repeated breaches carry a maximum fine of Dh 500,000.\r\n\r\n<strong>Licensing of industry participants</strong>\r\n\r\nThe Law requires that health service providers, insurers, claim administration companies and insurance brokers have in place a licence should they engage in any health insurance related activities in Dubai.  The requirement came into effect on 1 January 2014 with an unofficial grace period applying provided that participants lodged their applications with the relevant authority and the DHA before the 1 January deadline.  Licences are valid and renewable for one year periods.\r\n\r\n<strong>Regulations to come?</strong>\r\n\r\nThe Law contemplates incoming regulations to address the specifics around the minimum cover that employers will need to provide.\r\n\r\nIn addition, the DHA has indicated that they will be preparing regulations that govern the pricing of health services by providers and the premium amount charged by insurers to policy holders.  There is a concern that the costs arising from the scheme be efficiently allocated to the various participants so, in order to restrict any particular sector gaining a disproportionate share of market power, pricing parameters may be put in place to ensure the scheme remains sustainable.\r\n\r\nPrevious experiences in the Gulf have also shown that in the race to offer the lowest prices, insurers have offered health products at below cost prices.  This pricing is achieved by insurer’s subsidising the cost of their health products from their more profitable product lines.  Whilst prices are low for the insured in the short term, experience has shown that such practices are not easily maintained and can create issues with the stringent capital requirements that apply to insurers.  In order to address this issue, insurers may be required to submit certification from their actuaries to the effect that the premium will sustain the costs of the product without cross-subsidisation.  It will be interesting to see how the incoming regulations will interact with the U.A.E.’s recently enacted competition law which itself provides for a restriction on companies setting prices less than the actual cost of producing the product or service.\r\n\r\nThe new health insurance regime in Dubai looks to be a considered and timely step in the movement for universal health care throughout the Gulf region.  Although there have been questions raised as to the lack of homogeny of the various regimes, it may well be the better strategy to allow time to show which proves the most efficient before attempting to create a single, consistent regime for the entire region.'),
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	(89363,4861,'_yoast_wpseo_metadesc','Compulsory health insurance has arrived in Dubai. Having watched as Abu Dhabi, Qatar and Saudi Arabia established their health care schemes, Dubai has drawn on certain aspects of these schemes whilst ensuring that its own reflects the uniqueness of Dubai’s society.'),
	(89364,4862,'content','February 2014\r\n\r\n<hr />\r\n\r\nThe court was established under article 22 of the Judicial Regulation Code 2010. Article 22 allows for the creation of first instance courts that specialize in certain types of cases. The commercial court has jurisdiction to handle commercial cases with a foreign element, it does not handle domestic commercial cases.\r\n\r\nThe court came into existence to meet the growing demand by foreign investors for more specialized courts, which increased after Iraq welcomed greater foreign investment following the 2003 gulf war. However the court is not limited to investment disputes. There are two basic requirements for accepting a case: (1) it must have a foreign element; and (2) it must be commercial in nature. Once met, any party can file a case, including foreign government entities and other non-private parties.\r\n\r\nAs a court of first instance, the court follows the same procedure as normal courts but with an emphasis on speed and transparency. One way in which it achieves this is that the court does not require notices to be sent through the Ministry of Foreign Affairs, which is the normal but slow method of service when a non-Iraqi party is involved. Registered mail is used instead. Another improvement over the normal courts is that judges of the Commercial Court have a smaller caseload and so are able to resolve disputes faster than regular courts of first instance. Judges of the Commercial Court also receive special training to aid them in resolving often complex international disputes.\r\n\r\nCommercial Court decisions are still subject to appeal, which is handled by the Court of Appeals along with normal cases. This can hinder timely enforcement of court decisions, but at present cannot be avoided.\r\n\r\nMany have showed interest in the Commercial Court and it is generally seen as a promising step in providing an adequate medium for the resolution of international disputes. Notably the “Commercial Law Development Program” of the US Department of Commerce has helped set up several workshops aimed at helping the Iraqi judicial system realise its aims and establish other similar courts.\r\n\r\nSince its establishment the court has been used by the Iraqi state, private parties and foreign parties alike, and has resolved an impressive amount of cases. The success of the Commercial Court, and the trust it has quickly earned from foreign investors and other foreign entities, has prompted the Higher Judiciary Council to promote other commercial courts of a similar nature. To date, two other courts have been established, one in Basra and another in Al Najaf.'),
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	(89382,4862,'_yoast_wpseo_metadesc','In late 2010 the Ministry of Justice established a new court in Iraq one in Baghdad, Basra and Najaf, now known as the Commercial Court.'),
	(89383,4863,'content','February 2014\r\n\r\n<hr />\r\n\r\nThe new Private Hospitals draft regulation (“Draft Regulation”) proposes to repeal the current Regulation of Private Hospitals No. 85 of 1980, in order to tighten health regulations by creating a committee tasked with overseeing all applications for private hospital licenses (“Committee”). This proposed legislation aims to fill existing gaps in current healthcare regulations, serving as a stepping stone towards enacting a medical accountability law. However, specific procedures relating to services like in vitro fertilization are yet to be targeted by regulation, and no unified regulations exist for standardizing operating rooms.  The proposed legislation intends to contribute towards remedying these issues by improving private hospital regulations in terms of construction, quality of layout and staff management systems in order to increase the quality of Jordanian healthcare standards. Its application will be immediate for all new private hospitals, and retrospective for any private hospitals already established.\r\n\r\nAs in the current regulation, two distinct types of private hospitals are recognized under Art. 15 of the Draft Regulation:\r\n<ol>\r\n 	<li>General Hospital: Contains all the possible medical facilities to treat patients in various specialisations of foundational medicine, namely at least: surgery, gynaecological surgery, obstetrics, internal diseases and infant-specific illnesses.</li>\r\n 	<li>Specialist Hospital: Contains all possible facilities for the treatment of patients, either in a specialised field of medicine or in dentistry.</li>\r\n</ol>\r\n<strong>Application Procedures</strong>\r\n\r\nThose intending to build new private hospitals will be required to apply through the Committee for licensing and registration. The Committee will be invested with a variety of powers including the ability to review license applications, to conduct periodic investigations and monitor compliance levels with the terms of the license and to investigate all complaints referred to it by the Minister of Health.\r\n\r\nThe following categories will be accepted as applicants for private hospital licenses (Art. 5):\r\n<ol>\r\n 	<li>A licensed physician or dentist.</li>\r\n 	<li>An ordinary company or a private joint stock company, provided that one of the partners is a licensed physician or a licensed dentist in any one of them where appropriate.</li>\r\n 	<li>A Jordanian public shareholding company.</li>\r\n 	<li>A Union or association registered in the Kingdom in accordance with enforced legislation.</li>\r\n</ol>\r\nSite plans, building plans and engineer reports must be submitted with any application, which will then either be accepted or rejected by the Minister of Health within one month of the day of submission. Once obtained, licenses must be renewed regularly every five years (Art. 30) and any amendments regarding specialization must receive the approval of the Minister.\r\n\r\n<strong>The Improvement of healthcare through construction and services requirements</strong>\r\n\r\nThe Draft Regulation strongly focuses on the quality of construction and layout of any new private hospitals being built. The infrastructure must be designed to support all required hospital facilities by constructing water tanks, fuel tanks, back power generators, ventilation, lighting, a sewage network for discharging waste amongst others, which must be adequate to the needs of a private hospital. The building itself must stand independently of any other surrounding buildings.\r\n\r\nIn addition, different rooms such as operating rooms, kitchens, bathrooms and patient rooms (themselves subdivided into different classes) are given precise measurements in terms of width and height depending on their functionality. These minimal requirements are aimed at ensuring that new medical facilities are of a higher standard. Essentially, this legislates for the creation of rooms larger than those provided for in the current regulation.\r\n\r\nFurthermore, General private hospitals must comply with the requisite minimum number of services available; there must be at least 40 general beds - four of which must be equipped with intensive care equipment, two operating rooms, a radiology department, a pharmacy and one ambulance. Specialised private hospitals are additionally required to provide the following:\r\n<ol>\r\n 	<li>At least 20 family beds</li>\r\n 	<li>The required hardware and equipment needed for the hospital’s particular specialization</li>\r\n 	<li>X-ray services</li>\r\n 	<li>Intensive care units with at least two beds</li>\r\n</ol>\r\nA hospital specializing in obstetrics will similarly have its own minimum requirements under Art. 18. Marginal improvements can be seen as compared to the current regulation through an increase in basic requirements (such as the number of hospital beds).\r\n\r\n<strong>Specific provisions relating to employment and prohibitions</strong>\r\n\r\nThe Draft Regulation also provides details as to the minimum categories of staff that must be employed, their relative duties and internally created professional committees tasked with overseeing them (e.g. doctors, nurses, pharmacists). Internal systems must also be organized in order to increase staff efficiency and aid with regulating all hospital activities.\r\n\r\nCertain prohibitions are also enacted in the Draft Regulation; there is a requirement that 80% of employed doctors and non-medical staff must be Jordanian.  This contrasts with the current regulation which required 75% of doctors and 50% of non-medical staff to be Jordanian. Additionally, public sector staff are prohibited from performing operations or any other medical work in private hospitals without the explicit prior approval of the Minister. The Draft Regulation also provides for advertising prohibitions forbidding the advertising of services and treatment unless the Minister’s approval has been obtained. Finally, no medical experiments can be performed on human subjects, except in strict accordance with existing legislation on the matter.'),
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	(88449,4810,'pageSummary','A ‘free zone’ is a specific area in a jurisdiction where taxes or restrictions on business or trade do not apply. Although the United Arab Emirates has been a leader in the GCC as far as free zone establishment and development is concerned, the Sultanate of Oman has made it an objective not to stay too far behind.'),
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	(88457,4810,'_yoast_wpseo_metadesc','A ‘free zone’ is a specific area in a jurisdiction where taxes or restrictions on business or trade do not apply. Although the United Arab Emirates has been a leader in the GCC as far as free zone establishment and development is concerned, the Sultanate of Oman has made it an objective not to stay too far behind.'),
	(88458,4811,'content','November 2013\r\n\r\n<hr />\r\n\r\nThis includes infrastructure construction, sporting goods, licensed products and live sports events. That is a large market by anyone’s standards, and the Middle East is at the very heart of the industry’s development.\r\n\r\nThe EMEA (Europe, Middle East and Africa) market is currently ranked as the second largest sports market in the world, with a growth rate expected to hit an impressive 4.6%. Sponsorship is one of the fastest growing segments. The region is considered to be the prime emerging sports market, and its continued growth is creating significant commercial opportunities for both domestic and international companies, whether they are directly involved in sports or the broader framework of associated services.\r\n\r\nThis dynamic regional growth – underscored by successful headline events including annual Formula One races in Abu Dhabi and Bahrain, as well as world class golf, tennis, swimming, horseracing and rugby tournaments held throughout the year – has combined with Qatar being awarded the biggest prize of them all, the FIFA 2022 World Cup. The result has been a revolution in the GCC’s sports industry and it is generating an even greater appetite for more sporting events.\r\n\r\nThe growth potential across the Middle East brings vast opportunities and challenges, but it will certainly act as a catalyst for sustainable development as regional governments seek to further diversify their economies. Public sector investment in the industry is a major driver of growth, while sports tourism, as well as numerous other ancillary markets, is also on the increase.\r\n\r\nWhile all this is hugely positive for both governments and private enterprise, clients are increasingly recognising that the industry’s growth must come hand in hand with the development of regulatory structures and services that adhere to international standards of best practice. Rapid development and a proven platform for global aspirations have led to increasingly complex sports related projects being undertaken in the region.  From inspirational purpose-built facilities infrastructure efforts to sponsorship investments and all transaction points in between, the passion for sports has made its way to the corporate deal table and it is here to stay.\r\n\r\nWith so much at stake, both commercially and reputationally, especially when it comes to major sporting events and initiatives which represent the region around the world, it is clear that the industry requires dedicated professional services to support it. This is particularly true when it comes to legal services, and in fact, many clients are now demanding specialism from their external legal counsel.\r\n\r\nAl Tamimi &amp; Company has responded quickly to this need by launching a dedicated and specialised Sports Law practice, which aims to play a leading role in developing the standards of legal services being provided to the sports industry across the region. The practice will be able to tap into international knowledge and experience and apply this locally in a manner that remains strongly rooted in Arabic culture and language.\r\n\r\nHigher standards will in turn increase the region’s chances of attracting further investment by boosting confidence, as well as improving the opportunity to win more global sporting events or initiatives in the future – including the Olympics.\r\n\r\nWhether it is a question of maximising the opportunity for year-round use of facilities, or simply negotiating a better sponsorship package from a commercial standpoint, clients will receive more value – with an increased ability to optimise strategic input at an early stage and an improved return on investment through the use of focused and experienced legal counsel adept at handling sports-related matters.\r\n\r\nIn essence, providing more specialised legal services to this fast-growing market is a no-brainer from an economic, commercial and reputational perspective. It is an exciting time in the sports industry and Al Tamimi &amp; Company is committed to leading from the front - because getting this transition right will help ensure that the Middle East sports industry maintains the momentum we are currently witnessing.'),
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	(88473,4812,'content','November 2013\r\n\r\n<hr />\r\n\r\nHaving recently been involved in matters in different countries in Europe, I realised that legal reforms are needed in those countries as much as they are needed in the UAE and its neighboring countries. The legal system and the process, including the judicial system, of each country need to evolve to catch up with the growth of the country.\r\n\r\nWe have been fortunate in the UAE to have an independent judicial system with a lack of corruption in its legal system. Major investment has been made in judicial institutes, judicial training and improving the legal system.  In particular, major investment has been made in the judicial IT system to the extent that the Dubai Courts (and soon Abu Dhabi Courts) can be classified as leading courts in the implementation and use of IT systems.\r\n\r\nJudicial training institutes in the UAE have been extremely active in providing training for junior judges as well as continuing education for senior judges. These institutes have also succeeded in bridging the gap between the private law practitioners and judges with open communication and exchange of ideas, particularly in Dubai.  Workshops and seminars provide opportunities for judicial staff and practitioners to exchange ideas on how the practice can be improved on both sides.  However, there are areas where the judicial system urgently needs reform.\r\n\r\nIn my opinion, there are two major challenges to judicial reforms being successful in the UAE:\r\n<ul>\r\n 	<li>Firstly, the legal education provided by colleges and universities in the UAE needs a major revamp in terms of the quality of lecturers and the materials provided to its students; and</li>\r\n 	<li>Secondly, changes need to be made to the case management process as the current system is based on the old fashioned civil law procedure which encourages bureaucracy and inefficiency.</li>\r\n</ul>\r\nCollege education is an important subject, but one which I will leave for another debate.  For the purpose of this article I will instead focus on the case management process and how this affects the overall performance of the judicial system.\r\n\r\nCases are currently managed by the court through the exchange of pleadings in a civil law model where a case is filed, pleadings exchanged and documents submitted.  A brief hearing of approximately five minutes duration takes place during which the parties exchange their pleadings and documents.  The parties are then provided an opportunity to review, comment and file their counter pleadings and documents.  Numerous pleadings and bundles of documents are submitted in the process which can feel endless and result in the process occurring up to eight times or more before the case is reserved for judgment.\r\n\r\nIf the case is referred to an expert, which is a common practice, the process is further delayed.    The expert’s report is filed in court and the parties will then exchange pleadings and documents commenting on the expert’s report.  The experts are not required to appear before the court for cross-examination except in very rare circumstances, which means that their input is restricted to the comments in their written report.\r\n\r\nIn my opinion, there are five essential changes which need to be adopted by the UAE Civil Procedure Law for efficient dispute resolution to occur.  Firstly, referring cases to an expert should only happen in extreme and rare circumstances.  Additionally, the responsibility should be on the parties to jointly appoint a suitably qualified and experienced expert to produce a report.\r\n\r\nSecondly, if an expert is appointed it must be mandatory for the expert to make themselves available for cross-examination.  The court and parties will gain confidence in the competence of the expert and their findings by having them answer questions raised by the parties.  The judge will also be able to determine whether or not either party has a reasonable challenge against the expert’s report, finding or qualifications.  Cross-examination will prevent experts hiding behind reports which may not be technically sound or do not adequately cover the task allocated to them.\r\n\r\nThirdly, the system of exchanging pleading after pleading with numerous adjournments needs to change.  The current system results in the key arguments of a case being diluted by the numerous pleadings submitted and the progress of the case being delayed for months, if not years.  The judge is often provided with case documents that are not in order, not marked and the contents often duplicated and repeated.  It is possible and extremely simple to amend the UAE Civil Procedural Law to produce a case management system which will help the courts achieve their primary service, which is reliable and efficient dispute resolution.  Amendments that need to be made include:\r\n<ul>\r\n 	<li>Well trained and experienced court clerks being involved in the case management process and assisting the parties and the judge.</li>\r\n 	<li>Introducing a requirement for all documents and pleadings to be exchanged before the hearing takes place.</li>\r\n 	<li>A requirement for case files to be organised and complete when provided to a judge prior to the hearing.</li>\r\n 	<li>A requirement for the hearing date to be set following the completion of the exchange of pleadings and documents and for the parties to come before the judge in an open hearing where they can present the case before the judge.</li>\r\n 	<li>If any other matters arise which need to be dealt with, they can be raised at the hearing and determined by the judge. Otherwise the case will be reserved for judgment.</li>\r\n</ul>\r\nIf the above approach is adopted, hearing from experts or witnesses will not result in delays to a case as their findings and statements will have been included in the submissions and pleadings and they will therefore not come as a surprise to either of the parties.  This process will result in the cases being completed (in terms of documents relied on), heard and reserved for judgment more quickly.\r\n\r\nFourthly, cases are often delayed because of ineffective service of summons and notices due to uncertainty of addresses and service details.  This obstacle can be easily overcome by the court working with the Department of Naturalisation and Residency or the Emirates Identity Authority which could make it extremely simple and easy to locate people within the UAE.\r\n\r\nFinally, improvements are needed in relation to the enforcement of judgments.  Locating parties and assets is still a challenge before the UAE judicial system, unless cash is readily available. The court could work with the different authorities in the UAE such as the\r\n\r\nRegistrar of Assets, Land Department and Stock Market to help locate parties and their assets.  This will result in the system being more effective and efficient and will eliminate delay and hardship resulting from the prolonged enforcement of judgments.\r\n\r\nThere are many more reforms which I believe should be considered.  The awarding of professional legal costs to a party who is successful at trial, rather than the nominal advocacy fees which are currently awarded, is another beneficial proposal. The awarding of costs would not only promote access to justice as more people would be able to afford to litigate their disputes, but would also encourage parties to behave correctly (rather than risk being penalised in respect of costs).  Additionally, the current disclosure obligations should be amended so they are more onerous.\r\n\r\nAs you will see from the above, changes can be made which do not require flipping the entire system upside down. Instead, five simple changes to a few articles of the UAE Civil Procedure Law and the internal management of the court could have a large impact. These changes are likely to improve the efficiency of the judicial system immensely.  The proposed reforms are not alien and have been successfully implemented elsewhere.  The DIFC Courts (a court that exists in the Emirate of Dubai) has a similar system which has been tested and is working well. We need not necessarily follow the DIFC Court’s system, but reforms as outlined in this article are needed to improve the case management system so that it can progress and develop in line with the development of the UAE’s businesses and economy. This will also help to instill confidence in nationals and expatriates in the judicial system of the UAE.\r\n\r\n&nbsp;'),
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	(88492,4813,'content','November 2013\r\n\r\n<hr />\r\n\r\nThe Rules are published in a slim booklet, similar in format to the rules published by the ICC, DIAC and the DIFC-LCIA. The Rules contain 42 Articles which cover all stages of the ADCCAC arbitration process, including the initiation process, the formation of the arbitration panel, arrangements for the issue of an Award and the fees and remuneration of the Panel and the administration centre at ADCCAC (“the Centre”).\r\n\r\nImportant features of the Rules include the following:\r\n\r\n<strong>Initiation of proceedings (Article 2)</strong>\r\n\r\nThe matters to be included in the Arbitration Request broadly follow modern arbitration practice, as exemplified by the equivalent rules of the ICC. Allowance is made for the service of a statement of case at the same time (here called a “Memorandum”). A registration fee of AED 1,000 is payable on lodgment.\r\n\r\nThe Respondent is then required to submit its response within 21 days, extendable by a maximum period of 14 days. These time limits are a little tighter than those of DIAC and the ICC.\r\n\r\n<strong>Appointment of Arbitrators (Article 9)</strong>\r\n\r\n<strong>Sole arbitrator</strong>\r\n\r\nThe Respondent has 14 days from receipt of the Request either to agree the arbitrator nominated by the Claimant in that document or to nominate its own and reach agreement with the Claimant.  Save for an unspecified grace period which the Director of the Centre may allow, if the parties cannot agree the arbitrator the Director will make an appointment.\r\n\r\n<strong>Three arbitrators</strong>\r\n\r\nFor the appointment of a three-arbitrator panel, the Respondent will again have 14 days to nominate his own appointee.  The Rules then allow for the two selected arbitrators to appoint a “presiding arbitrator” within 14 days from the appointment of the second arbitrator, failing which (again possibly allowing for a grace period) the Director of the Centre will make an appointment.\r\n\r\nAgain these time limits are a little tighter than those of DIAC or the ICC and the parties will need to be alert to the need to progress this stage of the proceedings with urgency.\r\n\r\nObjections to an Arbitrator and replacement (Articles 11 and 12)\r\n\r\nDetailed provisions govern the procedure to be applied in the event that either party wishes to challenge an appointment or to apply at any stage for the replacement of an arbitrator. These generally follow modern practice.\r\n\r\n<strong>Arbitration language (Article 18)</strong>\r\n\r\nIn a late amendment to the rules, the proceedings are to be conducted in Arabic unless the parties agree otherwise. As to the award, if the arbitration is conducted in a language other than Arabic, the award must be given in the language of the arbitration along with an Arabic translation, unless the parties agree otherwise.\r\n\r\n<strong>Pleadings (Articles 19 and 20)</strong>\r\n\r\nThe DIAC rules provide a period of 30 days from notification of the establishment of a Tribunal for a Claimant to file a Statement of Case and the Respondent is given a similar period for his Statement of Defence.  The Rules do not set such default provisions, but state that the Claimant’s Memorandum and the Respondent’s Defence Memorandum are to be provided within the periods fixed by the Panel.\r\n\r\n<strong>Case management conference</strong>\r\n\r\nWhilst the ICC and DIAC rules provide for a preliminary meeting or case management conference, neither the Rules, not those of the DIFC-LCIA expressly do so. If such a meeting is considered to be desirable, then the parties should seek to agree this.\r\n\r\n<strong>Burden of Proof and Evidence (Article 23)</strong>\r\n\r\nThe Rules follow modern arbitration practice. Each party is required to bear the burden of proof in relation to the establishment of the facts on which it relies. As to evidence, the Tribunal has a discretion as to the rules of evidence that should apply.\r\n\r\n<strong>Hearings (Article 24)</strong>\r\n\r\nWhereas the ICC, DIAC and DIFC-LCIA rules each specify that if either party requests a hearing, the Tribunal will hold one, under the Rules the panel has a discretion whether or not to hold a “pleading session”.\r\n\r\n<strong>Provisional and precautionary measures (Article 25)</strong>\r\n\r\nAn important new measure is a set of provisions providing for the Tribunal to order a party to take provisional or precautionary measures.  Recourse to judicial bodies for such measures will not be regarded as contradicting the terms of the arbitration agreement.  Bearing in mind the frequency with which such measures are taken in litigation proceedings in the UAE, we anticipate that the application of these measures will in future be closely considered by parties involved in arbitration under the Rules.\r\n\r\n<strong>Waiver of Right to invoke rules (Article 26)</strong>\r\n\r\nThis Article provides that “a party who becomes aware that a given provision, a procedural rule or any of the Panel’s orders, had not been complied therewith and yet continues the arbitration without objecting within a reasonable time, shall be deemed to have waived his right to object”. As with similar clauses in other modern rules, the challenge remains for an opposing party to demonstrate that the party seeking to object on the basis of an irregularity actually had been “aware” of the lack of compliance at the time.\r\n\r\n<strong>Exclusion of liability (Article 32)</strong>\r\n\r\nA provision that will be much welcomed by all who sit as arbitrators, Article 32 provides that the panel “…shall not be held responsible towards any of the parties or to third parties for any action, act or inadvertence related to the arbitration taken or arising in good faith.”\r\n\r\n<strong>Confidentiality (Article 33)</strong>\r\n\r\nThe earlier rules did not provide a confidentiality provision, so that the parties to an arbitration were recommended to cover this in the terms of reference.  However, the Rules now include a provision covering confidentiality both in relation to (a) the Award and the documents and evidence generated during the proceedings and (b) in relation to the deliberations of the Tribunal.\r\n\r\n<strong>Fees and Remuneration</strong>\r\n\r\nIn the Rules, an approach has been adopted for the calculation of the fees of the panel and the administrative expenses of the Centre that is similar to those of the ICC and DIAC. Two tables are provided which respectively specify the fees of a sole arbitrator and a three arbitrator panel in accordance with the value of the claims in the arbitration.  The administrative fees of the Centre are 15% of the fees that are calculated for the panel.\r\n\r\nIt should be noted that pursuant to Article 37.3 of the Rules, the Director of the Centre has an over-riding discretion “to modify the Panel’s fees in accordance with the circumstances of the arbitration case and any complexities that may arise in connection with it”.\r\n\r\nThese provisions will provide much-needed transparency to potential parties and arbitrators alike as to the costs likely to be incurred as a consequence of embarking on an ADCCAC arbitration.\r\n\r\n<strong>Generally</strong>\r\n\r\nGood modern arbitration practice has been introduced to key elements of the management of the arbitration process. Arbitrations which are administered in accordance with the Rules are likely to run more smoothly in the future to the benefit of parties and practitioners. The introduction of the Rules is accordingly warmly welcomed.'),
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	(88510,4813,'_yoast_wpseo_metadesc','In a significant development for arbitration in the UAE, the Abu Dhabi Commercial, Conciliation and Arbitration Centre (“ADCCAC”) has published new procedural regulations for the conduct of arbitration, which include a new set of rules (“the Rules”), effective from 1st September 2013. The Rules apply to existing as well as new arbitrations.'),
	(88511,4814,'content','November 2013\r\n\r\n<hr />\r\n\r\n<ul>\r\n 	<li>the nature of the judgment;</li>\r\n 	<li>the subject matter of the underlying dispute;</li>\r\n 	<li>the identity and domicile of the parties;</li>\r\n 	<li>the location of relevant assets;</li>\r\n 	<li>whether the court is an ordinary Dubai Court or a court of the Dubai International Financial Centre (‘the DIFC’);</li>\r\n 	<li>whether or not the country in which the judgment was issued has entered into a judicial recognition treaty with the United Arab Emirates; and</li>\r\n 	<li>whether there is a credible assertion that the enforcement of the judgment would be contrary to public policy.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">A fundamental feature of the courts of Dubai since 2004 has been that they operate two distinct branches: the ordinary Dubai Courts (‘the Dubai Courts’) established pursuant to Dubai Law No. 3 of 1992, and the courts of the DIFC (‘the DIFC Courts’) established under the amended Dubai Law No. 12 of 2004 (‘the Judicial Authority Law’). The Dubai Courts adopt the civil law system, while the DIFC Courts follow the common law model and have jurisdiction over all DIFC-related matters that do not involve criminal law or family law. The DIFC itself is a financial free zone with its own commercial laws and regulations.</p>\r\n<p class=\"MsoNormal\"><strong>The Dubai Courts</strong></p>\r\nThe conditions for the enforcement of foreign judgments in the UAE (outside the DIFC) are set out in Article 235 of the UAE Civil Procedure Law (the following is an unofficial English translation):\r\n<ol>\r\n 	<li>Judgments and orders issued in a foreign country may be ordered to be enforced in the UAE on the same conditions as prescribed in the laws of that country for the enforcement of similar judgments and orders issued in the UAE.</li>\r\n 	<li>An enforcement order shall be applied for under the normal litigation procedure in the court of first instance within whose jurisdiction the enforcement is required.  Enforcement may not be ordered until the following has been verified:</li>\r\n</ol>\r\n<ul>\r\n 	<li>That the UAE courts do not have jurisdiction in the dispute in which the judgment has been given or the order made, and that the foreign courts which issued it have jurisdiction therein under the international rules for legal jurisdiction prescribed in their laws.</li>\r\n</ul>\r\n<ul>\r\n 	<li>That the judgment or order has been issued by a court having jurisdiction under the law of the country in which it was issued.</li>\r\n 	<li>That the opposing parties in the case in which the judgment was given were summoned to appear and duly appeared.</li>\r\n 	<li>That the judgment or order has acquired the force of a fait accompli under the law of the court which issued it.</li>\r\n 	<li>That it does not conflict with a judgment or order previously issued by a court in the UAE and contains nothing in breach of public morals or order in the UAE.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">As can be seen, the Dubai Courts will not enforce a foreign judgment where they would have had original jurisdiction to hear the underlying dispute (Article 235(2)(a)). For these purposes, original jurisdiction is interpreted broadly by the Dubai Courts, who will exercise jurisdiction over a defendant with an address or place of residence in Dubai or relevant assets in the emirate. A foreign judgment relating to such a defendant would therefore not usually be enforceable in Dubai even where the underlying contract contains an exclusive jurisdiction clause (i.e. an agreement by the parties that only a particular foreign court has jurisdiction over a dispute). The Dubai Court of Cassation, Dubai’s highest court, has ruled that jurisdiction clauses are void on public policy grounds where UAE courts have jurisdiction over a matter (Decision 325/2004).</p>\r\n<p class=\"MsoNormal\">In addition, the enforcement of foreign judgments granting certain remedies of a non-monetary nature, such as injunctions, is not generally possible because such remedies are not ordinarily available in the Dubai Courts. Any party seeking to enforce a judgment falling within these categories would need to file a new substantive claim in the Dubai Courts based on the original claim in the foreign proceedings and submit the foreign judgment as evidence in support of this new claim.</p>\r\n<p class=\"MsoNormal\"><strong>The DIFC Courts</strong></p>\r\n<p class=\"MsoNormal\">Although the procedure is relatively untested, the laws of Dubai and the DIFC permit the enforcement of foreign judgments by the DIFC Courts in accordance with the Rules of the DIFC Courts (‘the RDC’).  Pursuant to Article 7(6) of the Judicial Authority Law and Article 24(1)(a) of the DIFC Court Law (DIFC Law No. 10 of 2004) the DIFC Courts have jurisdiction to ratify any judgment of a recognized foreign court for the purposes of any subsequent application for enforcement in the courts of Dubai.</p>\r\n<p class=\"MsoNormal\">The enforcement of a recognized foreign money judgment in the DIFC against a defendant with assets located in the DIFC should be relatively straightforward.  This is especially so for such judgments emanating from England because in January 2013 a non-legally binding Memorandum of Guidance as to Enforcement was signed by the DIFC Courts and the English Commercial Court to facilitate the mutual enforcement, subject to certain conditions, of money judgments issued in the two jurisdictions. It is also possible to enforce foreign judgments of a more complex nature, such as injunctions and freezing orders, in the DIFC Courts, again subject to certain conditions.</p>\r\n<p class=\"MsoNormal\">The enforcement of a foreign judgment in the DIFC Courts can be procured by filing a claim for a judgment debt or a declaration, the latter of which is a remedy available under Article 37 of the DIFC Law of Damages and Remedies (DIFC Law No. 7 of 2005). The claim can be filed either under Part 7 of the RDC, which is the more common procedure for commencing claims, or alternatively by way of an RDC Part 8 claim if the claim is unlikely to involve a substantial dispute of fact.  Any resulting judgment issued by the DIFC Courts is effective and binding on any parties with a presence in the DIFC.</p>\r\n<p class=\"MsoNormal\">Based on the reciprocal recognition provisions of the Judicial Authority Law, which permit judgments of the DIFC Courts to be enforced in the rest of Dubai through the Dubai Courts and vice versa, it may also be possible for a party to file a claim for the ratification of a foreign judgment in the DIFC Courts and then convert the resulting DIFC Courts-ratified judgment into a judgment of the Dubai Courts for the purposes of enforcement, even where there is no other link between the judgment and the DIFC. This would effectively be using the DIFC Courts, which deal with civil and commercial disputes that are connected to the DIFC or expressly submitted to its jurisdiction by contracting parties, as a gateway into the rest of Dubai. However, this procedure is untested and it remains unclear whether the DIFC Courts have jurisdiction to recognise any foreign judgment in circumstances where the parties involved have no presence or assets in the DIFC.</p>\r\n<p class=\"MsoNormal\"><strong>Reciprocal enforcement treaties</strong></p>\r\n<p class=\"MsoNormal\">The UAE is a party to several treaties facilitating the reciprocal enforcement of judgments. In practice the most relevant of these treaties is the 1996 GCC Convention, which at Article 1 provides that “the GCC countries shall execute the final judgments issued by the courts of any member state in civil, commercial and administrative cases...”, subject to the condition that the originating court must have had jurisdiction over the underlying claim. According to Article 238 of the Civil Procedure Law, the courts of Dubai must enforce qualifying GCC (and other treaty-governed) judgments without reconsidering their merits even where they had concurrent jurisdiction over the original claims. This is an important exception to Article 235(2)(a) of the Civil Procedure Law, which as noted above prevents the enforcement of foreign judgments in the courts of the UAE where the latter have jurisdiction over the underlying claims.</p>\r\n<p class=\"MsoNormal\">Both the Dubai Courts and the DIFC Courts are courts of the UAE, a GCC member state, and on this basis other GCC states should enforce judgments of these courts in accordance with Article 1 of the GCC Convention. The DIFC Courts are legally bound to comply with the terms of treaties for the mutual enforcement of judgments, pursuant to Article 24(2) of the DIFC Court Law.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The enforcement of foreign judgments in Dubai is possible both in the Dubai Courts and in the DIFC Courts, although in practice it is difficult to achieve in the Dubai Courts and relatively untested in the DIFC Courts. A number of conditions must be met before such judgments can be enforced in either set of courts and the enforcement processes are fairly complex, particularly in the absence of a judicial treaty between the UAE and the state from which the relevant judgment originates.</p>'),
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	(213852,4814,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Tarek Shrayh'),
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	(88526,4815,'content','November 2013\r\n\r\n<hr />\r\n\r\nIn many instances, these clauses are simply not applicable – although they have crept into the standard documentation of US technology companies and are often treated as ‘not negotiable’. It is reasonable for licensees to request further information from licensors to help them determine whether an export control clause is relevant to a particular agreement, and to determine whether there are any further implications or obligations of which they need to be aware. In this article we outline the background to US export control provisions, and some further considerations for licensees.\r\n\r\n<strong>BACKGROUND</strong>\r\n\r\nUS software vendors/licensors typically seek to incorporate an ‘export control’ clause into their software licence agreements. Such export control clauses seek to have licensees contractually agree that ‘US and any other relevant export control laws’ apply to the licensee, and that the licensee will not re-export the subject software in a manner inconsistent with such laws. Typically, such licensors also seek to impose an obligation on licensees to ensure that a certain statement relating to the applicability of such laws accompanies the software (or any data produced with the software) if it is re-exported.\r\n\r\nThis type of export control clause broadly finds its basis in the US Department of Commerce’s Export Administration Regulations (“EAR”) and the US Department of State’s International Traffic in Arms Regulations (“ITAR”). The ITAR is heavily focussed on military weapons, but also includes software relating to military weapons. The EAR regulates items designed for commercial purpose which could have military applications, including goods and technology (including software), and in this article we focus on the EAR.\r\n\r\nThe EAR itself does not specifically require US licensors to have foreign licensees agree to be bound by US export control regulations. Our expectation is that licensors seek to extract licensees’ agreement on this point in order to meet obligations imposed on them pursuant to EAR licences (being regulatory permits that the licensors may have had to obtain in order to export the subject software).\r\n\r\n<strong>APPLICABILITY OF US EXPORT ADMINISTRATION REGULATIONS</strong>\r\n\r\nAs a matter of UAE law, and with reference to basic legal principles, the EAR does not apply to UAE entities operating in the UAE (or elsewhere outside the US). Despite this, it seems clear that, from a US perspective, the EAR is of extra-territorial effect outside the US - and it also applies to non-US entities carrying-out prohibited activities in respect of items subject to the EAR.\r\n\r\nTitle 15 of the US Code of Federal Regulations (“15 CFR”), which sets out the provisions of the EAR, specifies at Part 734.12 that:\r\n\r\n<address>any person who complies with the license or other requirements of a foreign law or regulation is not relieved of the responsibility of complying with US laws and regulations, including the EAR.</address><address> </address>From time to time, US authorities do take action against foreign entities for breach of the EAR. The examples that we were able to find seem to be directly related to security or military use (such as the re-export to Iran of technology used in drone aircraft). We found no information indicating that US authorities have any interest in technical non-compliance with the EAR where the non-compliant entity is not involved in activity of this general nature. For this reason, if the software in question is unlikely to have any security or military use, we expect that there is only a limited risk that US authorities would seek to prosecute a foreign licensee for non-compliance with the EAR that occurs outside the US.\r\n\r\n<strong>SUBJECT TO THE EAR</strong>\r\n\r\nEAR requirements only apply to items that are ‘subject to the EAR’. The term ‘subject to the EAR’ is extremely broad, and basically includes  “all items in the United States[…]”, “all U.S. origin items wherever located”, “certain foreign-made direct products of U.S. origin technology or software”, amongst other items (see 15 CFR 734.3).\r\n\r\nA key ‘exception’ is for items comprising ‘publicly available’ technology and software. The term ‘publicly available’ is further defined in 15 CFR. It includes technology and software included in certain patent applications, as well as technology and software that has been (or will be) published by becoming ‘generally accessible to the interested public in any form’. This includes by way of publication in patents and open patent applications, and by making software available for general distribution - either for free or at a price that does not exceed the cost of reproduction and distribution.\r\n\r\nThus, if the relevant software is the subject of a patent or a published patent application, or if it is made available for general distribution for free or at a price that does not exceed the cost of reproduction and distribution, then it would not be an item ‘subject to EAR’ – and it would therefore not be necessary for a licensee to comply with the EAR requirements (or to agree to do so by way of an export control clause).\r\n\r\n<strong>APPLICABILITY OF GENERAL PROHIBITIONS</strong>\r\n\r\nThe impact of an item being ‘subject to EAR’ is that – depending on the applicability of certain ‘General Prohibitions’ – the item cannot be exported from the US (or re-exported from a  foreign country) except pursuant to an EAR licence. The applicability of any General Prohibition will depend on whether the item falls within a classification identified with an Export Control Classification Number (“ECCN”) or whether it falls within a ‘catch-all’ category (called “EAR99”).A summary of the General Prohibitions taken from 15 CFR 732.1 appears in the box accompanying this article.\r\n\r\nFor its own EAR compliance purposes, a licensor would have determined whether the relevant software is properly classified under an ECCN or under EAR99. If a licensor insists on including an export control provision, then it is not unreasonable for the licensee to request that the licensor confirms the applicable ECCN or whether EAR99 applies. Our general expectation is that if the relevant software is an ‘item subject to the EAR’, the type of software typically licensed in by our clients is more likely to fall within EAR99, as the ECCN categories generally cover very specific weapons-related content.\r\n\r\nOnce a licensee is able to confirm whether or not the relevant software is ‘subject to the EAR’ and (if so) the relevant ECCN or applicability of EAR99, the licensee would need to consider the applicability of the General Prohibitions and (possibly) the need to seek a licence for the proposed activity.\r\n<table border=\"0\">\r\n<tbody>\r\n<tr>\r\n<td><strong>Brief summary of the ten general prohibitions:</strong>\r\n<ol>\r\n 	<li>General Prohibition One (Exports and Re-exports): Export and re-export of controlled items to listed countries.</li>\r\n 	<li>General Prohibition Two (Parts and Components Re-exports): Re-export and export from abroad of foreign-made items incorporating more than a de minimis amount of controlled U.S. content.</li>\r\n 	<li>General Prohibition Three (Foreign-produced Direct Product Re-exports): Re-export and export from abroad of the foreign-produced direct product of U.S. technology and software.</li>\r\n 	<li>General Prohibition Four (Denial Orders): Engaging in actions prohibited by a denial order.</li>\r\n 	<li>General Prohibition Five (End-Use End-User): Export or re-export to prohibited end-user or end-users.</li>\r\n 	<li>General Prohibition Six (Embargo): Export or re-export to embargoed destinations.</li>\r\n 	<li>General Prohibition Seven (U.S. Person Proliferation Activity): Support of proliferation activities.</li>\r\n 	<li>General Prohibition Eight (In-Transit): In-transit shipments and items to be unladen from vessels and aircraft.</li>\r\n 	<li>General Prohibition Nine (Orders, Terms and Conditions): Violation of any orders, terms, or conditions.</li>\r\n 	<li>General Prohibition Ten (Knowledge Violation to Occur): Proceeding with transactions with knowledge that a violation has occurred or is about to occur.</li>\r\n</ol>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly handles software and technology contracting issues. For further information on export control clauses, or any other software or technology contracting issues, please contact Nick O’Connell n.oconnell@tamimi.com'),
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	(88544,4815,'_yoast_wpseo_metadesc','Many clients query the appropriateness of clauses that purport to make them subject to US law relating to the re-export of software and technology.'),
	(88545,4816,'content','November 2013\r\n\r\n<hr />\r\n\r\nThe Companies Law No. 22 of 1997, as amended, does not address the subject of company reorganisation, save for what surrounds the reorganisation of the company’s capital by an increase or reduction in a General Assembly Meeting and in relation to forming an administrative committee if the company faces adverse financial or administrative conditions affecting shareholders’ or third party rights.\r\n\r\nHowever, the Insurance Regulatory Act No 33 of 1999, as amended, provides the following in Article 60(a):\r\n\r\nFor the purposes of restructuring the company in accordance with Article 41(b)(10) of this Law, the Board, upon the recommendation of the General Manager, may dissolve the Board of Directors and form a neutral committee made up experienced and competent members to reorganise the company, and appoint a Chairman of the Committee and a deputy, for a period not exceeding one year from the date of issuance of the decision to this effect.\r\n\r\nIt is possible to say that this law contains a partial definition of reorganization, being the dissolving of the company’s administration and reorganization of its distressed financial position through negotiations with the creditors with the aim of determining the debt and possible settlement.\r\n\r\nReorganisation of a public shareholding company covers:\r\n\r\n<strong>Administrative Reorganisation</strong>\r\n\r\nEvery company’s administration strives to achieve the objectives for which the company was formed. In a public shareholding company, this administration takes the form of the General Assembly and Board of Directors. As the Board is the executive body behind all of the company’s activities, the legislator took care when defining its responsibilities and the provisions relating to its composition and the conditions of its membership, terms of reference and meetings. However, there are several reasons why a company can end up in a dire administrative position, including:\r\n<ol>\r\n 	<li>The inability of the Board to successfully carry out the duties entrusted to it, including not taking sound financial decisions, not applying modern administration methods and not developing the ability to anticipate future difficulties or mitigate their consequences.</li>\r\n 	<li>The Board members’ exploitation of powers in an illegal manner for their own or another’s benefit, omitting an act required by law, manipulation, embezzlement, fraud, etc in such a way as to prejudice the rights of the shareholders or third parties.</li>\r\n 	<li>The resignation of the Chairman or any of the members, or in the event that the Board losses its legal status as a result of such resignations.</li>\r\n</ol>\r\n<strong>Legal Reorganisation</strong>\r\n\r\nThe basis of a company’s success is dependent on its choice of legal structure. Therefore, choosing the appropriate structure for any company must fit with the size of the company’s investments, capabilities and the expertise of its members.\r\n\r\nLegal reorganisation of a company can be defined as:\r\n<ol>\r\n 	<li>Remedying a company’s legal circumstances in situations where its structure is one of the reasons that has lead to its financial difficulties.</li>\r\n 	<li>Remedying the company’s structure in situations where the structure is an obstacle hindering the company’s progress, keeping in mind the activities exclusive to public shareholding companies.</li>\r\n</ol>\r\nBoth circumstances are carried out through legal means that aim at developing and remedying the legal position of the company or merging the same with other companies.\r\n\r\n<strong>Financial Reorganisation:</strong>\r\n\r\nA public shareholding company is established to run vast projects and accordingly the company’s financial position changes annually based on its activities, profits and losses. The company’s financial position is also affected by the deductions due to asset depreciation or capital restructuring, since a company deducts part of its net profit and refrains from distributing these amounts to its shareholders, putting them towards the company reserves as added insurance for future losses. These amounts can also be used to ensure a standard annual dividend paid to shareholders or as financial support for the company.\r\n\r\nIf a company is found to have drastic financial losses that affect shareholder, third party or creditor rights, or if a company is in a position where it is unable to adhere to its financial obligations, or in cases where a company’s losses are more than 50% of its paid capital, the company is said to have entered into the state of “financial distress”.\r\n\r\nIn such an event, the company will require “financial reorganisation”, which can be achieved through negotiations with the company’s creditors for the purposes of rearranging the company’s debts and settlement. If done, the company may be able to avoid the risk of declaring bankruptcy. Mandatory bankruptcy may be automatically declared if the company is legally unable to pay back its debts or if its losses exceed 75% of its subscribed capital and the Board has not resolved to increase the share capital and effectively decrease the losses.\r\n\r\n<strong>Economic Reorganisation:</strong>\r\n\r\nPublic shareholding companies usually initiate their commercial activities by preparing a schedule of intended activities, which not only allows the examination of the success of a certain project, but also highlights possible factors that may affect the outcome of the project.\r\n\r\nNotwithstanding the precautionary procedures that a company undertakes at the time of its establishment, economic problems will sometimes affect its financial position and its ability to achieve its goals (for example, as a result of miscalculating the project risks or due to regional or international economic changes not factored into the company’s research).\r\n\r\nBased on the above, the reorganisation of the public shareholding company aims at aiding the company with overcoming any difficulties that it faces administratively, financially, or legally, in addition to revitalising its commercial activities. Companies faced with such troubles can now work on improving their financial position in addition to reorgansing their business plans and the relationships with their creditors.\r\n\r\nThe above is an introduction regarding the situations that may lead to the reorganisation of public shareholding companies. In future articles we shall provide further information regarding the ways in which the reorganising of companies takes place, in addition to the procedures for resolving issues with the board of directors and forming of the required administrative committees.'),
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	(88549,4816,'content_description','This article considers the reasons why a public shareholding company might be reorganized under Jordanian law.'),
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	(88551,4816,'pageSummary','This article considers the reasons why a public shareholding company might be reorganized under Jordanian law.'),
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	(88555,4816,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Abdallah Al Fraihat'),
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	(88563,4816,'_yoast_wpseo_metadesc','This article considers the reasons why a public shareholding company might be reorganized under Jordanian law.'),
	(88564,4817,'content','November 2013\r\n\r\n<hr />\r\n\r\nThe Executive Regulations were issued to clarify and set out certain requirements necessary for the enforcement of the Companies Law. This article provides a brief overview of some of the key changes and additions to the Companies Law.\r\n\r\n<strong>Non-Profit Companies</strong>\r\n\r\nNon-Profit Companies have been introduced under the Companies Law which can be utilized to address various social interests and allows for the establishment of companies whose main objectives are carried out on a non-profit basis. The Executive Regulations have extended the list of activities that a non-profit company is forbidden to undertake, including (i) political, religious, ideological, sectarian activities; (ii) activities contrary to public order or morality; (iii) the shelter of children, the elderly, and the disabled (unless the necessary permission by the relevant authority has been granted); (iv) the issuance of bonds and negotiable instruments; and (v) the distribution of its revenue or profit directly or indirectly to any of the partners or shareholders.\r\n\r\n<strong>Professional Companies</strong>\r\n\r\nThe Companies Law introduced another type entity which is the Professional Company. The Executive Regulations have added the specific professions that may establish as a Professional Company, as well as the details related to professional insurance.\r\n\r\nA Professional Company may include attorneys, accountants, physicians, engineers and consultants licensed to practice.\r\n\r\n<strong>“One-Stop Shop” Concept </strong>\r\n\r\nIn order to ease the process of establishing a company under the Companies Law, the Ministry of Commerce and Industry is the sole department in charge of quickly undertaking the process and issuing the relevant licenses for companies. As such, the Executive Regulations have provided an abundance of information in regards to certain departments that will be established within the Ministry of Commerce and Industry to ensure efficiency and compliance of policies in connection with the formalities, thereby providing a “one-stop shop” for the establishment and licensing of companies.\r\n\r\n<strong>Company Capital</strong>\r\n\r\nUnder the Companies Law, the specifics as to the minimum capital for certain companies awaited the Executive Regulations. The regulations provide that the company’s capital shall not be less than the minimum capital amount set out in  a comprehensive guide book of commercial activities for companies issued by the Ministry of Commerce and Industry.\r\n\r\n<strong>Transparency of the Company Memorandum and Documents </strong>\r\n\r\nAlthough present in the old law, in the past corporate governance provisions, oversight and enforcement in Kuwait was often limited and led to feelings of insecurity and trepidation with respect to foreign investors who were considering whether to conduct business or invest in Kuwait. To address this, the new Companies Law includes notable concepts of corporate governance, the designation of responsibility accountability, and transparency.\r\n\r\nAs such, the Executive Regulations includes that every concerned party may access the company records and documents, minutes of meetings etc., which can be found at the Ministry of Commerce and Industry. To do so, a concerned party is required to complete and submit an application which includes a small fee to the ministry.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Executive Regulations includes a wealth of information. Although we have only touched on a few items in this article, in the future, we endeavor to provide you with further insight to the regulations. However those doing business in Kuwait should be aware that Article 3 of the Executive Regulations requires existing companies to abide by the Companies Law and the Executive Regulations within one year from the date of the publication of the Executive Regulations, which was on 6 October 2013.\r\n\r\nThe business community will welcome the Executive Regulations of the new Companies Law as it continues to modernize the economy by updating various issues related to current economic and business concepts that have been introduced to the corporate world over the past decades.'),
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	(88568,4817,'content_description','The Ministry of Commerce and Industry has recently released the Executive Regulations to the new Companies Law no. 25 of 2012 (the “Companies Law”). '),
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	(88570,4817,'pageSummary','The Ministry of Commerce and Industry has recently released the Executive Regulations to the new Companies Law no. 25 of 2012 (the “Companies Law”).'),
	(88571,4817,'_pageSummary','field_59e59b307dec8'),
	(88572,4817,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/november-4/kuwait-the-executive-regulations-for-law-no-25-of-2012-to-the-kuwait-companies-law.html'),
	(88573,4817,'_currentURL','field_59d35123ab1e7'),
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	(88576,4817,'lawUpdateArticleWriters',''),
	(88577,4817,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(88578,4817,'_yoast_wpseo_metadesc','The Ministry of Commerce and Industry has recently released the Executive Regulations to the new Companies Law no. 25 of 2012 (the “Companies Law”).'),
	(88579,4818,'content','November 2013\r\n\r\n<hr />\r\n\r\nSome states have laws that deal with particular areas of competition law, such as telecommunications, and a number have ambitions to adopt comprehensive competition law regimes. However, viewed as a region, the development of functioning competition laws is largely aspirational.\r\n\r\n<strong>What is the position in Saudi Arabia? </strong>\r\n\r\nSaudi Arabia adopted a Competition Law in 2004 and it came into effect in January 2005.   The Competition Law and the associated Regulations and Competition Rules make up Saudi Arabia’s competition law regime and they are enforced by a Competition Council.\r\n\r\n<strong>Who does the Competition Law apply to?</strong>\r\n\r\nIt applies to all firms, i.e. any corporation or company and business doing business in Saudi Arabia. A non-Saudi entity can be a firm. The Competition Law does not apply to public (i.e. government) corporations and fully–owned state enterprises.\r\n\r\n<strong>What does the KSA Competition Law do?</strong>\r\n\r\nThe broad aim of the Competition Law is to protect and encourage fair competition and combat monopolistic practices that affect competition. It seeks to achieve this by:\r\n<ul>\r\n 	<li>Prohibiting agreements and arrangements between firms if their objective or effect is to restrict commerce or competition.</li>\r\n 	<li>Restricting the ability of a firm to acquire a dominant position in the market.</li>\r\n 	<li>Making abuses of dominant market position by a firm illegal.</li>\r\n</ul>\r\n<strong>What sort of practices and agreements are prohibited?</strong>\r\n\r\nThe provisions relating to anti-competitive practices and agreements are broadly drafted and would catch a wide variety of anti-competitive practices and agreements. As with the competition laws of many other jurisdictions, certain agreements and behaviour are singled out for special attention and effectively presumed to be ant-competitive (for example, price fixing or complicity in tenders) without any further enquiry. In other cases, it is the effect of the conduct or the agreement that needs to be considered. This appears to leave scope for the argument that a restriction which might be prohibited in certain situations may not be prohibited in other because (for example) it is required to establish a market for products or services.\r\n\r\nArticle 4 of the Competition Law says that practices, agreements or contracts among current or potential competing firms, whether the contracts are written or verbal, expressed or implied are prohibited, if the objective of such practices, agreements or contracts or their effect is the restriction of commerce or the violation of competition between firms.\r\n\r\nAny practices, alliances or agreements, explicit or implicit, between competing entities which violate, restrict or prevent competition shall be prohibited, in particular those whose subject matter or purpose is:\r\n<ul>\r\n 	<li>Fixing prices, service charges or terms of sale and the like.</li>\r\n 	<li>Setting a limit for production of goods or the rendering of services.</li>\r\n 	<li>Dividing markets on the basis of geographical areas, sale or purchase quantities, customers or any other basis adversely affecting competition.</li>\r\n 	<li>Discrimination among clients in prices, facilities and services.</li>\r\n 	<li>Taking measures to hinder the entry of an entity into the market or forcing it out of the market.</li>\r\n 	<li>Complicity in tenders.</li>\r\n 	<li>Setting different prices on a certain commodity according to its place of sale.</li>\r\n 	<li>Selling at less than cost price in order to force competitors out of the market.</li>\r\n</ul>\r\nThe conduct and practices referred to above are presumed to be anti-competitive without the need to demonstrate that they actually have an anti-competitive effect. This would seem to negate the opportunity to argue that a restraint is required in order to develop the market for products and services.\r\n\r\nIn some countries anti-trust provisions distinguish between vertical (e.g. distribution) and horizontal (e.g. cartel) relationships when determining if the relationship has an anti-competitive effect with exemptions allowed for certain kinds of vertical contractual relationship. That is not the case with the Saudi provisions. They may need to be borne in mind in the case of certain kinds of business relationships which would generally be regarded as being beyond of anti-trust provisions such as franchise and distribution agreements.\r\n\r\nThe Competition Council may decide not to apply the prohibitions contained in Article 4 of the Competition Law to practices and agreements in violation of the Competition Law which are deemed to improve efficiency and realise benefits to consumers which outweigh their anti-competitive effect.\r\n\r\n<strong>Dominating Position</strong>\r\n\r\n“Domination” may arise through:\r\n<ol>\r\n 	<li>Sales of at least 40% of total sales in the market for a period of 12 months; or</li>\r\n 	<li>An entity or group of entities being in a position to influence the prevailing price in the market.</li>\r\n</ol>\r\nIt follows that a firm could still have a dominant position in the Saudi market even though it is not directly engaged in the market through the sale of products and services, if it is in a position to influence the price of those products or services in the Saudi market.\r\n\r\nAlso, whilst domination in terms of sales must continue for a period of 12 months, there is no requirement for domination through an ability to influence the prevailing price in the market to exist for a defined period. Applied literally, there seems to be potential for certain types of conduct to be caught which would not be equated with domination. For example, price cutting which has the effect of influencing (i.e. reducing) the level of prices in the market would not typically be regarded as domination in the sense of substantial market power.\r\n\r\nWhilst limb (a) of the test of domination is seller specific, there is potential for limb (b) to apply to buyers as well.\r\n\r\nThe Competition Law requires firms to notify the Competition Council in writing about mergers and acquisitions which may result in the acquisition of a dominating position on the market.   The Competition Council will review all relevant information before deciding whether to clear the merger.\r\n\r\n<strong>Acquiring a Dominating Position</strong>\r\n\r\nFirms involved in merger discussions or desiring to acquire assets, shares etc. which will result in them having a dominating position are required to notify the Competition Council at least 60 days in advance.\r\n\r\nA similar requirement applies to firms wanting to combine different managements into one if that will result in a dominant position.\r\n\r\nThe Competition Council will review all necessary information before deciding whether to approve or not allow the proposed merger etc., giving reasons.\r\n\r\nThe merger etc. may be completed:\r\n<ol>\r\n 	<li>If the Competition Council gives its written approval.</li>\r\n 	<li>Upon the lapse of 60 days from the date of notification if the Competition Council has not previously given notification of its objection or that it is under review or investigation.</li>\r\n 	<li>Upon the lapse of 90 days from the date of notification that the merger etc is under review or investigation if the Competition Council has not previously given notification of its approval or objection.</li>\r\n</ol>\r\n<strong>Abuse of Dominating Position</strong>\r\n\r\nThe existence of a dominating position in the Saudi market is not of itself prohibited. The abuse of that dominating position is.\r\n\r\n“Abuse” of a dominating position requires an act of the kind described in Article 4 of the Competition Law or Article 6 of the Competition Law Regulations.\r\n\r\nBroadly speaking those provisions target any practice which restricts competition between firms, in particular:\r\n<ul>\r\n 	<li>Price control.</li>\r\n 	<li>Restricting the free flow of goods and services.</li>\r\n 	<li>Barriers to entering and leaving markets</li>\r\n 	<li>Forcing out competitors.</li>\r\n 	<li>Partitioning markets.</li>\r\n 	<li>Client Discrimination.</li>\r\n 	<li>Compelling or agreeing with a client to refrain from dealing with a competing entity (third line forcing)</li>\r\n 	<li>Making the sale of a commodity or offer of service contingent on the purchase of another commodity or service (first line forcing).</li>\r\n</ul>\r\nThe examples of abuse which are listed in Article 4 of the Competition Law or Article 6 of the Competition Law Regulations are just that: they are not the universe of what may fall to be considered as “abuse”.\r\n\r\nIntellectual property rights are inherently monopolistic and have the potential to create dominating position opportunities. Anti trust laws would usually allow the legitimate exploitation of those rights is not an abuse of a dominant position but that is not explicitly stated in the Saudi provisions.\r\n\r\nIt would seem that the abuse (as distinct to its effect) does not need to occur in Saudi Arabia.\r\n\r\n<strong>Economic Concentration</strong>\r\n\r\nThe Dominating Position provisions of the Competition Law focus on the acquisition and use of substantial market power. These are reinforced by other provisions which focus upon the acquisition of ownership which is referred to in the Regulations as “Economic Concentration”.\r\n\r\nEconomic Concentration happens where an entity acquires a position of domination of an entity or group of entities through merger, takeover, acquisition or the combination of managements.\r\n\r\nAn entity intending to achieve Economic Concentration in order to dominate 40% of a commodity’s total supply in the market is required to make written application to the Competition Council and provide prescribed information including a report detailing the consequences of the proposed Economic Concentration, in particular its positive effect on the market. The entity can proceed to complete the Economic Concentration if the Council notifies its approval or if the Council doesn’t notify its refusal within 60 days of the application date.\r\n\r\n<strong>Complaints</strong>\r\n\r\nA party claiming to be affected by conduct which they believe breaches the Competition Law or Regulations may request the Competition Council to conduct an investigation to determine whether breaches of the Competitions Law have occurred. The Competition Council may also initiate investigations even though it has not received any complaint.\r\n\r\nThe Competition Council’s investigation must be completed within 180 days from the date of the request for the investigation. If following its investigation, the Competition Council concludes that any party had been breached of the Competition Law and/or the Competition Regulations it will notify the party concerned and afford it an opportunity to defend its interest at a hearing held 15 days after notification. Within 10 days of the hearing the Competition Council will notify its decision to the parties.\r\n\r\nArticle 13 of the Competition Law Regulations says that a suspected entity may not under the pretext of confidentiality withhold any information for any reason whenever judicial investigation officers require such information.\r\n\r\n<strong>Penalties</strong>\r\n\r\nThe Competition Council may require the prohibited conduct to stop, dispose of assets and take other action to remove the effects of the violation. Violators may also become subject to financial penalties:\r\n<ol>\r\n 	<li>A fine not exceeding 5 million Saudi Riyals, to be multiplied in case of recurrence.</li>\r\n 	<li>A daily fine not less than 1,000 Saudi Riyals and not more than 10,000 Saudi Riyals until the violation is removed.</li>\r\n 	<li>Appeals lie to the Board of Grievances (the relevant Saudi Court) against decisions of the Competition Council.</li>\r\n</ol>\r\n<strong>Compensation</strong>\r\n\r\nIn addition, anyone suffering harm caused by conduct prohibited under the Competition Law may apply to the court for compensation.\r\n\r\n<strong>Executive Summary</strong>\r\n\r\nThe Competition Law regime of Saudi Arabia seeks to maintain the competitiveness of the Saudi Arabian market by:\r\n<ul>\r\n 	<li>Making illegal certain types of conduct irrespective of the scale upon which that conduct occurs.</li>\r\n 	<li>Also making illegal conduct if it is an abuse by an entity of its dominating position in the market.</li>\r\n 	<li>Regulating mergers and acquisitions which give rise to a dominating position in the market.</li>\r\n 	<li>Making breaches liable to substantial penalties.</li>\r\n</ul>\r\nThese are features of the competition law regimes of many other countries.\r\n\r\nThese provisions are likely to become increasingly important over time as the Saudi Government steps up its efforts to get private sector participation in key areas of the Saudi Economy.'),
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	(88583,4818,'content_description','How widespread are Competition Laws in the GCC Region?'),
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	(88585,4818,'pageSummary','How widespread are Competition Laws in the GCC Region?'),
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	(88594,4819,'content','November 2013\r\n\r\n<hr />\r\n\r\nBorn and raised in the Eastern region of Oman, Ahmed spent his school days thinking he would grow up to be an engineer - not a lawyer.  “At my school at that time, you chose a scientific path or an artistic path,” he recalls.  “I chose the scientific path.”\r\n\r\nWith his decision to study engineering made, Ahmed’s educational promise was recognised and he was offered a sponsorship opportunity by a major oil company in Oman to study in the UK.  18 year-old Ahmed then moved to England, along with several other Omani students, to study for his A-Levels at Loughborough College.  Whilst living abroad without his family was at times difficult and studying in a second language often challenging, Ahmed say his time in England was ‘very enjoyable’ and an experience on which he looks back with good memories.\r\n\r\nFollowing the successful completion of his A-Levels, Ahmed was offered a place at the University of Swansea in Wales to study engineering.  It was here that his analytical yet creative skills became evident and the question of whether he had ever considered a career in law was posed.  Intrigued by the idea, Ahmed enthusiastically set out about researching the subject and decided to switch his degree to law.  “I found law fascinating,” he says. “In particular, learning about case law was very interesting and I was so glad I had made the switch.”\r\n\r\nAfter earning his law degree, Ahmed stayed in the UK for a while before returning to Oman to take up his first full-time legal role.  Working for Oman’s Ministry of Legal Affairs, he spent a year drafting laws and reviewing international agreements for the government before moving to private practice in order to qualify.  Whilst working for a local law firm in Oman on corporate and commercial matters, Ahmed qualified as a lawyer and then moved to the Muscat office of international law firm SNR Dentons.  Almost immediately he was seconded to the firm’s London office where he spent the next year gaining experience in a number of different practice areas before deciding to specialise in corporate and commercial matters.  Ahmed then returned to Oman and continued to work at Dentons for the next seven years, focusing on joint ventures, mergers &amp; acquisitions and restructurings.\r\n\r\nAt the beginning of 2013, after having kept abreast of news in the legal market of the firm’s expansions plans, Ahmed began talks with Al Tamimi &amp; Company about the possibility of opening an office in Oman. “As the largest law firm in the Middle East, it made sense to have an office in Oman,” says Ahmed and the firm’s management agreed with him.  Since the country’s membership of the World Trade Organisation in 2000, which led to the internationalisation of its financial and commercial practices, Oman has witnessed a foreign direct investment boom and the country was seen as a key market for Al Tamimi.\r\n\r\nAs a qualified Court of Appeal Omani lawyer and with his vast experience, Ahmed was the clear choice to head the new Al Tamimi office and says it is a ‘great honour’ to do so.  The office, in the country’s capital of Muscat, is the firm’s 13th office across a network of seven countries in the Middle East and was formally opened on 29 October with a launch event attended by a number of local dignitaries, government officials and clients based in Oman.\r\n\r\n“The office launch party was a great event,” says Ahmed.  “It was a very enjoyable evening and a good opportunity to meet both existing and potential clients of the firm - as well as colleagues from different offices I had not yet met - all of whom are excited that we now have a presence in Oman.”\r\n\r\nAhmed is now looking forward to the challenge of running the firm’s newest office and ‘continuing to provide the first class service’ that Al Tamimi clients expect to receive.'),
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	(88598,4819,'content_description','Last month saw Al Tamimi & Company continue to expand its network of operations in the Middle East with the opening of a new office in Muscat, headed by respected Omani lawyer Ahmed Saleh. '),
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	(88600,4819,'pageSummary','Last month saw Al Tamimi &amp; Company continue to expand its network of operations in the Middle East with the opening of a new office in Muscat, headed by respected Omani lawyer Ahmed Saleh.'),
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	(88604,4819,'_yoast_wpseo_metadesc','Last month saw Al Tamimi & Company continue to expand its network of operations in the Middle East with the opening of a new office in Muscat, headed by respected Omani lawyer Ahmed Saleh.'),
	(88605,4820,'content','November 2013\r\n\r\n<hr />\r\n\r\nDuring the process of registration, and once the technical examination for the applied mark is successfully completed, the trademark office requests from applicants permission to publish the approved marks in the UAE official gazette for third party opposition to meet the statutory requirements. Third parties (i.e. trademark owners of conflicting marks or preexisting rights) are legally entitled to challenge the acceptance decision and lodge administrative oppositions before the Trademark Office within 30 days from publication date. Through the opposition proceedings the opponents are given a chance to object to the decision made by the Trademark office in accepting the trademark. The registration process is halted until a decision is made.\r\n\r\nOnce the opposition action is filed, the Trademark Office notifies the applicant, of the opposition proceeding action (and this should typically be completed within 15 days period counted from the date of filing the opposition in according to the UAE Trademark Law). Thereafter, the applicant will have 30 days to submit a response, i.e. counter-opposition, to defend the registerability of the trademark, calculated from the date of summoning the applicants with the notice of opposition. Failure to submit a response within the statutory timeframe will result in the automatic acceptance of the opposition action and the proposed trademark will be rejected.\r\n\r\nIn the past, it was customary that the UAE Trademark office would accept a brief notice of opposition to start the proceeding formalities, i.e. serving the opposition on the applicants and calculating the statutory period for the counter-opposition. As a result of this practice, opponents opted to file a brief notice of opposition in order to safeguard their rights and without making solid references to the legal grounds on which the opposition was initiated. This practice was considered sufficient for the purpose of commencing the opposition formalities. However, this has been recently changed and the opposition examiner at the UAE Trademark Office has refused to notify the applicant with the opposition proceeding unless the opponent submits detailed statement of opposition which reflects the opposition grounds.\r\n\r\nWhilst the brief notice of opposition remains a valid tool for the purpose of meeting the statutory deadline, brand owners and their IP lawyers will need to ensure prompt submission of detailed opposition statements explaining the merits of opposition to ensure that the UAE Trademark Office serves the opposition notice to the applicants. We have been aware of cases where an applicant considered their marks registered due to lack of opposition and moved to pay registration fees; whereas a third party presumed that their notice of opposition had been accepted and assumed that the applicants had failed to respond to it ( and so believed the  opposition notice had been automatically upheld).\r\n\r\nIt is therefore recommended that when filing an opposition proceeding, the third party must make sure that the opposition statement contains sufficient  legal grounds and facts surrounding the case, and that it periodically verifies the status of the proceedings with the Trademark office to ensure it is being processed.'),
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	(88627,4820,'_yoast_wpseo_metadesc','Trademark protection is ideally secured through registration of the trademark in the UAE.'),
	(88628,4821,'content','November 2013\r\n\r\n<hr />\r\n\r\nSuch initiatives seek to exploit the fact that smart electronic devices are a part of our everyday lives, and many companies are now creating and launching their own applications to expand their accessibility to consumers. An Application or also known as an “App” is essentially a software programme developed for smart devices (phones or tablets).\r\n\r\nIt is a common trend that companies are now providing their services and even products through mobile applications. However, with this new selling tool companies are faced with new challenges as to their trademark protection and enforcement strategies. In this article we are going to highlight the basic steps to be undertaken when protecting and enforcing trademarks in the smart environment.\r\n\r\n<strong>1. Expand protection of trademarks to cover additional Classes </strong>\r\n\r\nAlthough many brand owners have protection for their trademarks under the specific Classes covering their services or products; brand owners are now required to also expand their protection to cover the services provided through applications as well.\r\n\r\nThe protection of a trademark depends on the classes under which the trademark is registered.  According to the Nice Classification (an international standard for the classification of goods and services), there are 45 Classes which cover almost all goods and services that can be offered. Usually when considering registering a trademark, the Classes of protection are decided based on the primary product or service the mark will be used for and any other relevant Classes.\r\n\r\nIt is important to consider the expansion of the protection of trademarks to cover Classes related to computer software and associated services, even if a company is not providing such services, as this is necessary to have protection for the App.\r\n\r\nIn addition, a company may offer additional services through its App which were not previously provided. In such cases new protection for such services should be considered. The services provided through an App shall be carefully reviewed to determine the proper protection to be sought.\r\n\r\n<strong>2. Consider protection of the App icon logo</strong>\r\n\r\nAnother issue to be taken into consideration is the protection of the App icon that will show in the application store or on the device desktop. Companies can create new logos as App icons, and these logos should be reviewed and proper trademark protection shall be made.\r\n\r\n<strong>3. Conduct clearances if using a new name for an App</strong>\r\n\r\nIn some instances companies may choose to use a new name for their App. , which has not been used before. In such instances, and before using this new name for the App, the usual process for trademark clearances shall be made for the application name.\r\n\r\nThe clearance would include official searches at Trademark Registry to ensure that the name is available for use and does not infringe third parties rights. If the name was cleared an application to register the name as a trademark shall be made to cover the relevant services.\r\n\r\n<strong>4. Amend the enforcement strategy to include App stores</strong>\r\n\r\nObtaining the proper trademark protection for the App name and logo is of no value if the trademark rights are not enforced properly. Enforcement of a trademark right means preventing third parties from using your trademark without authorization or improperly, as such use may cause damage to the trademark value and image, and can even result in you losing the trademark.\r\n\r\nAs usual practice enforcement strategies require trademark owners to monitor their trademarks to ensure that identical and/ or similar trademarks are not used by third parties. As a monitoring tool trademark owners may use ‘watch notices’, which is the term used for the process of essentially monitoring the publication pages of trademarks published in the local  Trademark Journal, monitoring domain names and websites, and monitoring the market and the activities taking place.\r\n\r\nTherefore, it is recommended that trademark owners amend their enforcement strategy to include App stores within their monitoring programs, so as to ensure that their trademarks are not being used by third parties through Apps. In case a potential infringement of a trademark is discovered through an App, action should be taken against such infringement as it may affect the overall brand of the company.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nIn conclusion, a careful review of the current trademark protection is required to ensure it is adequate to the business plans in the smart environment and covers the existence of the brand through application. In addition, it is crucial for brand owners to revise their trademark protection and enforcement strategies to reflect these changing times.\r\n<div></div>'),
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	(88632,4821,'content_description','The Dubai Government has recently announced a project to transform Dubai into a “Smart City”, linking the emirate’s government services and the public through the use of smart devices accessed freely using high-speed wireless internet connections. This initiative has been the talk of the city for the past couple of weeks. '),
	(88633,4821,'_content_description','field_59b641c07f473'),
	(88634,4821,'pageSummary','The Dubai Government has recently announced a project to transform Dubai into a “Smart City”, linking the emirate’s government services and the public through the use of smart devices accessed freely using high-speed wireless internet connections. This initiative has been the talk of the city for the past couple of weeks.'),
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	(88646,4821,'_yoast_wpseo_metadesc','The Dubai Government has recently announced a project to transform Dubai into a “Smart City”, linking the emirate’s government services and the public through the use of smart devices accessed freely using high-speed wireless internet connections. This initiative has been the talk of the city for the past couple of weeks.'),
	(88647,4822,'content','November 2013\r\n\r\n<hr />\r\n\r\nLocal insurers often rely on reinsurance from international entities to shore up their capital requirements. The sourcing of foreign capital is a common theme of emerging insurance markets such as the UAE where local capital is thin on the ground compared to the mature markets of Europe and the United States. In light of increases in capital requirements, international insurers have been turning to capital markets to provide cover for large scale risks that require capital not easily obtained in the traditional insurance market.  Insurance-linked securities, such as catastrophe bonds, are proving a popular asset class with investors. Could insurance-linked securities provide an alternative for local insurers to the sourcing of capital from international reinsurers?\r\n\r\n<strong>Securitisation of insurance – how does it work?</strong>\r\n\r\nThe insurer will incorporate a special purpose vehicle (SPV) with the SPV’s shares usually held in a charitable or purpose trust on behalf of the insurer. Depending on the jurisdiction, the SPV can also take the form of a cell of a protected cell company (discussed below). The SPV enters into a contract to either insure or reinsure a particular risk, for example earthquake catastrophe. The SPV then ‘transfers’ the liability for the risk to the capital markets by way of a bond or note issue.\r\n\r\nOwing to the complex nature of the instruments used, offers are generally limited to the ‘sophisticated investor’ class thus avoiding the need to comply with public issue disclosure requirements. The SPV will then fully collateralise the ceded risk by depositing the proceeds from the issue in a restricted trust or collateral account for the benefit of the insurer. The SPV uses income from the premiums paid under the insurance contract as well as the releases from the collateral trust to meet its payment obligations to noteholders.\r\n\r\nIf no loss event occurs, note holders receive a return of both principal and interest payments.  Where a loss event occurs, the SPV transfers funds to the insurer in accordance with the insurance contract; investors will then suffer either total or partial loss of interest and/or principal.  So as to better quantify the loss for investors, insurers are moving to non-indemnity based contracts whereby the loss event is actually the physical event itself, i.e. an earthquake (a ‘parametric trigger’) as opposed to the loss arising from the event.  Insurers are also using weighted industry indexes that model the loss for a particular catastrophe thereby reducing the reliance on costly and time-consuming loss assessment after the event has occurred.\r\n\r\n[image src=\"http://localhost:8888/tamimi/en/media/get/20131121_securitisation-insurance.jpg\" class=\"__image__\" imageId=\"2581\"]\r\n\r\nWhilst insurance securitisation is often used for the hedging of catastrophic risks, it is also used by life insurers to securitise future cash flows from a block of business thereby obtaining immediate access to the value of their in-force book.\r\n\r\n<strong>Use of SPVs in the DIFC</strong>\r\n\r\nFollowing a round of consultation in mid-2007, the DFSA introduced a framework for insurance securitisation that allowed for the establishment of insurance-specific SPVs (ISPV) as well as the treatment of ISPV-generated capital.\r\n\r\nFor an insurer to treat the funds of an ISPV as either an asset or as reinsurance, the insurer must first apply for and obtain a waiver from the DFSA. For the application to be successful the ISPV will either need to be authorised to carry on the business of an insurer in the DIFC or, if it is not, it will need to show that it is subject to financial services regulation in a jurisdiction acceptable to the DFSA. As with most jurisdictions that allow ISPVs, the insurance contract must provide for the transfer of risk occurring under the insurance contract. Under DIFC requirements, an ISPV is not able to insure a risk outside of the DIFC; it can only contract to reinsure the risk. In addition, the DFSA must be satisfied of the ‘bankruptcy remoteness’ of the ISPV from the insurer, that is, the degree to which the assets of the ISPV are isolated from the any creditors of the insurer.  Bankruptcy remoteness can be achieved through limiting the purpose of the ISPV as well as ensuring the ISPV’s governance decisions around bankruptcy will be made in isolation of the insurer.\r\n\r\nThe framework exempts ISPVs from certain business and risk requirements that would be overly restrictive and inappropriate in light of the ISPVs singular function as well as its relationship with the ceding insurer. The ISPV is still required to maintain a compliant risk management system of its own.\r\n\r\nThe arrangement must also serve to ensure that the assets of the ISPVs are at all times equal to or greater than the ISPV’s liabilities. To effect this position, the DFSA requires that the SPV be in actual receipt of the funds from any debt issuance and include in the insurance contract that the SPV’s contractual liability does not exceed its assets at that time.  The terms of the notes must provide for the subordination of the holders’ rights to the claim of the ceding insurer under the insurance contract.\r\n\r\n<strong>Use of a protective cell companies for insurance securitisation </strong>\r\n\r\nThe DIFC provides a comprehensive framework for the establishment and use of protected cell companies (PCC), including as SPVs.  PCCs are entities that are able to offer individual cells to third parties that are legally and financially ring-fenced from the PCC itself as well as the PCC’s other cells. Traditionally, PCCs were used by non-insurance companies to allow those companies to put in place their own insurance cover (known as ‘captive insurance’).\r\n\r\nRecently, PCCs are increasingly being formed to be used as SPVs for securitisation of insurance products. By using the cell of an existing third party PCC, the regulatory burden is minimised (though the insurer is still required to obtain a waiver from the DFSA) and the insurer can leverage off the expertise of the PCC in respect of management of the ISPV. In addition, an insurer is able to create different categories of notes using different cells known as ‘cellular-asset backed securities’. For example, one class of note may only expose the investor to the risk of losing their coupon with the capital outlay remaining intact, whereas another class may expose both capital and coupon investments.\r\n\r\nJust as with standalone SPVs, collateral accounts can be used, the funds from each cell being aggregated and placed into the account for the benefit of the insurer (provided the assets of each cell remain identifiable). The insurer is then able to cede a risk to the PCC equal to the aggregated funds received from all classes of notes issued. Currently, the DIFC limits the use of PCCs for insurance purposes to ‘Contracts of Insurance’ for risks situated in the DIFC.  By comparison, other jurisdictions are expanding the notion of insurance to include payment in the event of a loss of money or money’s worth on the happening of an event.\r\n\r\nAt present, the UAE is yet to see an issue of insurance-linked securities with most listings being confined to the US and European markets. However, with the steady growth of the UAE insurance industry and the ever-increasing need to obtain and manage capital, local insurers may yet seek out this alternative to traditional insurance funding.'),
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	(88651,4822,'content_description','The use of Special Purpose Vehicles as a means of reinsurance for UAE-based insurers\r\n'),
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	(88653,4822,'pageSummary','The use of Special Purpose Vehicles as a means of reinsurance for UAE-based insurers'),
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	(88657,4822,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Thomas Bicknell'),
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	(88659,4822,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','t.bicknell@tamimi.com'),
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	(88664,4822,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(88665,4822,'_yoast_wpseo_metadesc','The use of Special Purpose Vehicles as a means of reinsurance for UAE-based insurers'),
	(88666,4823,'content','November 2013\r\n\r\n<hr />\r\n\r\nAt present the Commercial Companies Law does not provide a mechanism for pledging the shares of a limited liability company in the UAE, and there is accordingly no official register on which to record the pledge of shares to perfect such security. In addition, one of the concerns about pledging the shares of a limited liability company is that a limited liability company does not have shares or shares certificates to be pledged. A partner’s percentage of allocated ownership in a limited liability company is listed in a private registry maintained by the company and are typically referred to as quotas as opposed to shares. Such quotas are similar to shares, however no certificates of ownership are issued to the partners.\r\n\r\nThe proposed amendment to the Commercial Companies Law (the “Amendment Law”) - which has been approved by the UAE Federal National Council and pending approval by the Federal Supreme Council - is expected to resolve this issue.\r\n\r\n<strong>The Amendment Law </strong>\r\n\r\nArticle 79 of the Amendment Law states that:\r\n<ol>\r\n 	<li>“A partner may transfer or pledge it shares in the company to another party or to a third party. Such transfer or pledge shall be made in accordance with the terms of the Memorandum of Association of the company under an official document, in accordance with the provisions of this Law.  Such transfer or pledge shall not be valid against the company or third parties until the date of its entry in the Commercial Register with the competent authority.</li>\r\n 	<li>The company may not refuse to enter such transfer or pledge in such register unless the transfer or pledge violates the provisions of the Memorandum of Association or this Law.”</li>\r\n</ol>\r\nThe above provision of the Amendment Law would appear to indicate the following requirements for a valid pledge over shares in a limited liability company:\r\n\r\n<strong>A pledge must be in accordance with the terms of the Memorandum of Association of the company</strong>\r\n\r\nThe Amendment Law appears to make it a requirement for limited liability companies to specifically authorise the pledging of shares by the partners in their Memorandum of Association (similar to provisions commonly included in the articles of free zone companies). What is not clear is whether the Memorandum of Association would have to contain such an express provision, or whether the lack of any prohibition would suffice. Assuming an express provision is required, to facilitate registration of the pledge with the competent authority, this new requirement would force most, if not all, limited liability companies in the UAE to amend their existing Memorandum of Association to incorporate provisions on the authority, requirements and procedures of pledging a partner’s shares in favour of another party or a third party.\r\n\r\n<strong>A pledge must be under an official document</strong>\r\n\r\nReference to “official document” suggests that an agreement in relation to a share pledge would need to be executed before a competent authority (i.e. notary public in the UAE) prior to actual registration in the Commercial Register.  This requirement would reflect the existing practice of the Dubai Economic Department and many of the free zone authorities in the Emirates.\r\n\r\n<strong>A pledge must be made in accordance with the provisions of the Commercial Companies Law as amended by the Amendment Law</strong>\r\n\r\nUnder the proposed Amendment Law, in order to register a pledge over shares in a UAE limited liability company, a pledge should not violate any provision of the Commercial Companies Law or any UAE law.  Parties to the share pledge must ensure that the pledge does not conflict with any statutory provision which would render the security void and unenforceable.\r\n\r\n<strong>The pledge must be registered with a competent authority and its details entered in the Commercial Register</strong>\r\n\r\nArticle 79 intends to provide a solution to the historic problem regarding the absence of a formal register on which to record the share pledges. The proposed amendment presumes that the Commercial Register maintained by the competent authority (i.e. the relevant Economic Department) will accept and record share pledges in respect of shares/quotas of limited liability companies (as, for example, the Dubai Economic Department has been doing in recent times).\r\n\r\nWhile the Amendment Law specifically mentions that a partner in a limited liability company may pledge its shares, Article 79 of the Amendment Law does not refer to any share certificate that should be presented with the competent authority to complete the pledging of the shares. At present the Dubai Economic Department does not require physical share certificates when filing a share pledge over a limited liability company, and it is likely this would be the approach taken by the other relevant authorities.\r\n\r\n<strong>Enforceability of a Share Pledge</strong>\r\n\r\nArticle 81 of the Amendment Law provides a mechanism of enforcement against a partner’s share in a limited liability company noting that a creditor may agree with the partner (debtor) and the company on the method and terms of sale (i.e. by way of private arrangement), otherwise, the subject shares shall be offered for sale at a public auction. Article 81 further states that the company may, within 15 days from the date on which the auction is awarded, recover the shares on the same terms as awarded at the auction (effectively giving the company a pre-emptive right).\r\n\r\nIt is interesting to note that Article 81 of the Amendment Law has not addressed the issue on the local ownership requirement and the restrictions that should be imposed on a share pledge (or any sale of shares following enforcement) to maintain the local ownership over a limited liability company.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Amendment Law should bring to an end the prolonged uncertainties which have existed regarding the ability to take, and validity of taking, security over shares/quotas in limited liability companies. However as Article 79 intends to implement a new system which does not currently exist (outside of, arguably, Dubai), it will remain subject to implementation of formal procedures by each relevant Commercial Register, and of course the enactment of the Amendment Law.'),
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	(88670,4823,'content_description','Following our previous article explaining the difficulties and uncertainties of pledging the shares of a limited liability company in the UAE (“Pledging of Shares of a Limited Liability Company: fact or fiction?”, Law Update, October 2012) this article provides an update on the matter in view of the proposed amendment to Federal Law No. 8 of 1984 (the “Commercial Companies Law”).'),
	(88671,4823,'_content_description','field_59b641c07f473'),
	(88672,4823,'pageSummary','Following our previous article explaining the difficulties and uncertainties of pledging the shares of a limited liability company in the UAE (“Pledging of Shares of a Limited Liability Company: fact or fiction?”, Law Update, October 2012) this article provides an update on the matter in view of the proposed amendment to Federal Law No. 8 of 1984 (the “Commercial Companies Law”).'),
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	(88674,4823,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/november-4/update-pledging-of-shares-of-a-limited-liability-company-in-the-uae.html'),
	(88675,4823,'_currentURL','field_59d35123ab1e7'),
	(88676,4823,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Cherry Turcal'),
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	(88705,4826,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\n<strong>Background to the Case</strong>\r\n\r\nThe Claimant (a bank) provided a real estate mortgage to the Defendant for an amount of QAR 7 million (USD 2,000,000) with an interest rate of 8.25% per annum, in addition to other benefits which amounted to QAR 1 million (USD 280,000) in debits against the Defendant’s account with the bank.\r\n\r\nIn 2010, the Claimant filed a civil case with the Court of First Instance in Qatar, seeking payment on the arrears of the principal amount in addition to the interest of 8.25%.\r\n\r\n<strong>The Case at First Instance</strong>\r\n\r\nIn 2011 the Court of First Instance issued a judgment for the Claimant and awarded the Claimant the full amount of the principal amount but refused to grant him any interest.\r\n\r\n<strong>Ruling of the Court of Appeal</strong>\r\n\r\nThe Claimant brought appealed the decision of the Court of First Instance to the Court of Appeal.  In a judgment delivered in 2011, the Court of Appeal upheld the finding of the Court of First Instance but additionally awarded further compensation amounting to QAR 100,000 (USD 28,000) as damages for the delay caused by the borrower’s nonpayment.\r\n\r\n<strong>Judgment of the Court of Cassation</strong>\r\n\r\nIn 2012 the Claimant lodged an appeal with the Court of Cassation, seeking to overturn the judgment for the damages of QAR 100,000 and asserting that the court erred in the calculation method used to reach this figure. The appeal was argued on three grounds:\r\n<ol>\r\n 	<li>That the QAR 100,000 compensation was calculated in an arbitrary manner with no regard to the appropriate legal reasoning or factual considerations between the parties (i.e. the interest rate of 8.25% agreed by the parties in the contract). There was a degree of certainty in reaching a foreseeable figure of damages, and it therefore follows that the Court should not have reached a figure contradictory to the terms agreed to between both parties;</li>\r\n 	<li>The basis for the calculation of compensation award used by the Court was tortious liability not contractual liability with respect to the agreed interest rate between the parties; and</li>\r\n 	<li>The damages should have been measured from the date when the Claimant filed his claim to the date the judgment was issued.</li>\r\n</ol>\r\n<strong>The Court of Cassation’s Decision</strong>\r\n\r\nThe Court of Cassation rejected all three grounds of the Claimant’s appeal and reasoned as follows:\r\n<ol>\r\n 	<li>In principle it was a well regarded fact that when banks lend to borrowers there is a certain degree of risk associated with making such a loan, namely, that the borrower may default. The Court retains full discretion in measuring the damages associated with such a loss. In reaching their decision, the Court of Cassation reviewed the decision of the lower court and found that in issuing their judgment their legal reasoning for calculating the compensation amount was sound and therefore the Claimant’s claim on the first ground failed.</li>\r\n 	<li>With regards to the second ground, the Court reiterated that the Court reserves its authority to tackle the issue of measuring damages.  The legislature had set out two forms of liability in this context, tortious and contractual liability, each governed by separate rules and regulations. In this instance, tortious liability will apply not contractual liability.</li>\r\n 	<li>Finally, in considering the third and final ground, the Court confirmed that the compensation amount of QAR 100,000 had accounted for and included  the date the Defendant fell behind in his repayments until the date the judgment was issued, and that this timeframe in the Court’s estimation was valued appropriately.</li>\r\n</ol>\r\nIn light of the foregoing, the Court of Cassation upheld the judgment of the Court of Appeal and rejected the bank’s appeal with respect to challenging the measure of damages valued at QAR 100,000.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThis judgment has significant implications for day-to-day transactional banking activities conducted in Qatar. In considering this case the Court appears to have overlooked the substance of the terms agreed between the parties regarding the interest rate. It is not clear from this ruling why the court refused to apply the interest rate agreed upon between the parties. In addition, the judgment does not explain why the liability of the borrower was based on the principles of tortious rather than contractual liability. As the said ruling contradicts previous judgments issued by the Court of Cassation confirming the enforceability of the interest rate stipulated in the loan contract, we hope that the Court of Cassation issues a new judgment clarifying these matters.'),
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	(88723,4826,'_yoast_wpseo_metadesc','A recent decision from Qatar’s highest court, the Court of Cassation, may prove to have significant implications for court-awarded compensation to a lender when a borrower defaults on a loan agreement.'),
	(88724,4827,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\n<strong>Background</strong>\r\n\r\nAn employee brought an action against her former employer (a university) seeking employment entitlements and AED 200,000 (USD 55,000) as compensation for harm caused by a report filed by the employer with the authorities claiming that she had absconded.\r\n\r\nThe employee’s employment contract was terminated on the 25 March 2010. After the termination, the employee failed to cooperate with the employer to cancel her residence visa and did not turn up at the Naturalization and Residence Department to complete the necessary formalities. On the 19 May 2010 the employer filed a report alleging that the employee absconded. On the same day, the employee initiated court proceedings for her entitlements and compensation for damages.\r\n\r\n<strong>Court of First Instance</strong>\r\n\r\nThe Court of First Instance delivered its judgment and rejected the employee’s claim for compensation for material and moral damages. The court found that the employee failed to prove the elements of liability and accordingly the court rejected the allegation that the employer had maliciously reported her as absconding.\r\n\r\n<strong>Court of Appeal</strong>\r\n\r\nThe employee filed an appeal and insisted on her claims. The Court of Appeal overturned the decision of the Court of Instance with respect to its dismissal of the claim for compensation and ordered the employer to pay AED 74,610 (USD 20,000) as compensation (equivalent to two months’ salary for the employee).\r\n\r\nThe Court of Appeal found the report malicious because the employer had reported the employee as an absconder knowing that she had not absconded. This had caused her psychological harm and made her liable to arrest. The court relied on the fact that the employee had filed a claim against the employer for her employment benefits before the employer had filed the report that the employee had absconded. This meant that the employer knew that the employee had not absconded.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nThe employer filed an appeal to the Court of Cassation arguing that the Court of Appeal erred by ordering it to pay compensation because no fault giving rise to liability had been established. In reporting that the employee had absconded, the employer had legitimately exercised its right to report an absconder as required by the formalities for canceling the employee’s residence visa and sponsorship at the end of her employment contract. The employee failed to cooperate with the university by turning up at the Naturalization &amp; Residence Department in order to complete those formalities. The employee had disappeared without a trace, could not be contacted and the employer had no power to compel the employee to appear. Therefore reporting her as an absconder was not an error but the legitimate exercise of a right, and one which had not been exercised in bad faith or with intent to cause prejudice to the employee. The employer therefore argued that it was not liable for the alleged damage.\r\n\r\nThe Court of Cassation concurred with the employer.  It held that the employer was required by Article 6(a) and (d) of Ministerial Decision No. 52 of 1989 (regulating the recruitment and employment of expatriates in the UAE) to sponsor and be responsible for the employee as an expatriate employee, and to repatriate her to the country from where she was recruited at the end of her employment contract (which is when her visa should be cancelled). This takes effect after the necessary documents are presented to the Naturalization &amp; Residence Department, and the Department requests that both parties submit the documents. According to the documents, the employee’s ties with the employer are severed following the termination of her employment contract on 25 March 2010, until she was reported as absconding on 19 May 2010. In filing the absconding report after nearly two months, the employer exercised a right required by law under Article 4 of Ministerial Decision No. 390 of 1991 in order to avoid prosecution under the Labour Law. Article 181(1) of the Labour Law Article states that an employer will be punished if the employee is caught still residing in the UAE after the termination of her employment contract because her residence visa had not been cancelled and she was not reported.\r\n\r\nThe Court of Appeal had erred when it considered the employer’s absconding report to be malicious on the basis that the employer filed the report knowing that the employee had not absconded. The employer is required by law to cancel the employee’s residence visa and so had acted in good faith and not vexatiously. Article 104 of the Civil Code states that “the doing of what is permitted by law negates liability, and no person who lawfully exercises his rights shall be liable for any harm arising there out”. The employer was not therefore liable.\r\n\r\nHaving reached the above conclusion, the Court of Cassation dismissed the law suit filed by the employee as being without merit.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nThere are often differences and controversies between employers and employees on the issue of visa cancellations and often this leads to complaints by employees that the employer acted maliciously or arbitrarily in exercising certain rights. One of these issues is when an employee declines or fails to attend before the immigration authorities to cancel his visa on the basis that he has not yet been paid his employment benefits. In such instances questions arise as to whether or not the employer has any rights to report that his employee has absconded from him to avoid his visa cancellation and to what extent such reports shall be considered as malicious or within the legal rights given to the employer by law.\r\n\r\nThe above judgment is important because it firmly answers these important questions. An employer has a right to report an employee as absconding if they fail to attend to cancel their visa, and filing such a report cannot give rise to a claim against the employer.'),
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	(88728,4827,'content_description','The Abu Dhabi Court of Cassation has recently issued a judgment confirming that employers have a duty to report employees that have absconded, and that the reporting of such employees cannot give rise to liability. Al Tamimi & Company successfully represented the employer in the case.'),
	(88729,4827,'_content_description','field_59b641c07f473'),
	(88730,4827,'pageSummary','The Abu Dhabi Court of Cassation has recently issued a judgment confirming that employers have a duty to report employees that have absconded, and that the reporting of such employees cannot give rise to liability. Al Tamimi &amp; Company successfully represented the employer in the case.'),
	(88731,4827,'_pageSummary','field_59e59b307dec8'),
	(88732,4827,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-8/december-january-1/abu-dhabi-court-of-cassation-judgment-on-reporting-employess-who-have-absconded.html'),
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	(88738,4827,'_yoast_wpseo_metadesc','The Abu Dhabi Court of Cassation has recently issued a judgment confirming that employers have a duty to report employees that have absconded, and that the reporting of such employees cannot give rise to liability. Al Tamimi & Company successfully represented the employer in the case.'),
	(88739,4828,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe court issued the decision on 2 October in Appeal No. 519 of 2013. While there have been similar decisions from the lower courts, this is believed to be the first time a court of cassation in the United Arab Emirates has explicitly made such a declaration. It continues a line of judgments from the Abu Dhabi Court of Cassation that are supportive of arbitration, and will be welcomed by the legal community in the UAE.\r\n\r\nAl Tamimi &amp; Company represented the successful claimant before the Abu Dhabi courts.\r\n\r\n<strong>Background: the UAE court system</strong>\r\n\r\nTo appreciate the significance of the judgment, it is necessary to understand the complex court structure in the UAE. The country is a federation of seven emirates, and has four main court systems: the Dubai courts, the Ras Al Khaimah courts, the Abu Dhabi courts, and the federal courts. The federal courts cover the remaining four emirates, and originally covered Abu Dhabi before that emirate set up its own courts in 2007. Within Dubai, there also exists the Dubai International Financial Centre Courts (which cover the English-language common-law freezone in Dubai known as the DIFC), which are excluded from the analysis in this article.\r\n\r\nEach of the court systems has three levels: the court of first instance, the court of appeal, and the court of cassation. There are also summary courts, otherwise known as courts of urgent matters. which review certain applications on an urgent basis without going through the merits of the dispute. Such requests includes attachment orders and other precautionary actions.\r\n\r\nAs a civil law jurisdiction, there is no strong system of precedent, but judgments by a court of cassation are considered highly persuasive if not binding, particularly in the emirate in which they were issued. Only the judgments of the court of cassation are ever officially reported, and even this can be haphazard.\r\n\r\n<strong>Attachment orders and arbitral awards</strong>\r\n\r\nThere are two ways that a precautionary attachment order can be sought under the UAE federal civil procedure law.\r\n\r\nThe first is where a claimant relies on article 252 of the civil procedure law by showing that it has a credible claim against the defendant and has a legitimate fear that the defendant is dissipating or may dissipate its assets to frustrate any judgment awarded to the claimant. The court’s power to issue a precautionary attachment order in these circumstances is found at articles 252 to 256 of the civil procedure law.\r\n\r\nThe second way such an order can be sought is found through a combination of articles 227(2), 254(2) and 258 of the civil procedure law. Article 227(1) states that rulings may not be enforced so long as they may be contested at appeal. However, article 227(2) states that “where required, however, precautionary procedures may be taken”. This means that, once the claimant has secured a favourable decision from the court of first instance, a precautionary attachment order can be granted without the need to establish a fear that the defendant may dissipate assets. The fact that the claimant has a judgment is sufficient, even thought the judgment itself may not be enforceable because it may be contested at appeal. Articles 254(2) and 258 state that where a creditor holds a ruling, even if not enforceable, a precautionary attachment order must be made. So when these three provisions are used together, the result is that the creditor can, as of right, obtain a precautionary attachment order provided there is a ruling for a specified amount, even if that ruling may still be appealed and is not capable of being executed.\r\n\r\nLower court decisions have sometimes interpreted article 227(2) broadly to include other deeds and instruments that establish that a debt is owed to the claimant, such as cheques and also arbitral awards. Like a decision from the court of first instance, the substance of these documents cannot be contested, but their enforcement may be challenged on certain legal grounds.\r\n\r\nTo our knowledge, the broad interpretation of article 227(2) has not been tested before the court of cassation, until now.\r\n\r\n<strong>The facts of the case</strong>\r\n\r\nThe claimant secured a favourable arbitral award in a domestic arbitration. At the same time that the claimant filed a claim seeking ratification of the award, it also went to the Abu Dhabi Court of Urgent Matters and, without notice to the defendant, sought a precautionary attachment order over the defendant’s assets. This was granted on the basis of the arbitral award.\r\n\r\nThe claimant then filed a claim before the Abu Dhabi Court of First Instance seeking the ratification of the arbitral award and confirmation that the attachment order was valid. This was resisted by the defendant, who instead sought an order for the nullification of the arbitral award and the cancellation of the attachment order.\r\n\r\nThe defendant argued that the attachment order was void because, among other things, arbitral awards are not judgments of a court and are not enforceable until a national court has ratified them. They argued that the civil procedure law only allows precautionary attachment orders to be made in respect of court judgments, and not arbitral awards before they have been ratified. The defendant further argued that there was no evidence that assets would be dissipated and so the claimant’s application for the attachment order failed the test under article 252 and the order should not have been granted.\r\n\r\n<strong>The Abu Dhabi courts’ findings</strong>\r\n\r\nThe Abu Dhabi Court of First Instance ratified the arbitral award and confirmed the validity of the precautionary attachment order. The defendant filed an appeal, but the Court of Appeal found the first-instance judgment to be reasonable and in compliance with the law and so dismissed the appeal.\r\n\r\nThe defendant challenged the judgment before the Court of Cassation. The defendant repeated the same arguments presented to the lower courts (that arbitral awards cannot be considered as a judicial judgment, and so could not form the basis of a precautionary attachment order).\r\n\r\nIn Appeal No.519 of 2013, the Court of Cassation rejected the defendant’s appeal and upheld the arguments presented by the claimant and the reasoning applied by the lower courts.\r\n\r\nThe Court of Cassation made the following findings:\r\n<ul>\r\n 	<li>Although article 252 of the civil procedure law allows a creditor, as a general rule, to seek a provisional attachment order over the assets of debtor when there is a fear that assets will be dissipated, this is not the only basis on which such an order can be sought. Article 227(2) also allows such an order to be granted, and without the need to show fear of dissipation. The judge in such a case has no power to decline issuing the attachment order.</li>\r\n 	<li>Articles 227(2), 254(2) and 258 primarily refer to seeking an attachment order in reference to a court judgment that is not yet enforceable (as it may be subject to appeal, such as a judgment of the Court of First Instance). Provided the judgment established the debt and the amount, an attachment order must be granted.</li>\r\n 	<li>Articles 227(2), 254(2) and 258, however, also apply to arbitral awards, which, like decisions of the Court of First Instance, establish that there is a debt that is not yet enforceable (as it must be ratified by the local court). This means an arbitral award can form the basis of an application for a precautionary attachment order prior to its ratification.</li>\r\n 	<li>The precautionary attachment order relied solely on the arbitral award that had been issued in its favour and for a specified amount. Therefore the defendant’s argument that there was no evidence to justify a fear of dissipation is irrelevant.</li>\r\n</ul>\r\n<strong>The importance of the judgment</strong>\r\n\r\nThe judgment is important for a number of reasons.\r\n\r\nOn a practical level, it firmly clarifies that an award-creditor can seek a precautionary attachment order without needing to first ratify the award. Further, the order can be sought as of right and must be granted, with no need to show that there is a fear that assets will be dissipated.\r\n\r\nBefore the judgment parties were hesitant to seek orders on the basis of articles 227(2), 254(2) and 258 because it was not clear whether the lower courts were correct in their interpretation and a considerable risk that an application may fail. This recent judgment, however, will make parties far more confident.\r\n\r\nOn a more abstract level, the arbitral community will take heart that the Abu Dhabi Court of Cassation so unequivocally considers arbitral awards to be more than simply evidence of debt, but to have an elevated status akin to a judgment of the Court of First Instance. This is a sound endorsement of the arbitration process, and continues a series of supportive judgments from the court.\r\n\r\nThis article was first published online by Global Arbitration Review on 13 December 2013.');

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	(88761,4828,'_yoast_wpseo_metadesc','The Abu Dhabi Court of Cassation recently ruled that a precautionary attachment order can be granted on the basis of an arbitral award before the award has been formally recognised by the courts and without the need to show any fear that the assets may be dissipated.'),
	(88762,4829,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nWhether such a power existed had been the subject of inconsistent DIFC Court judgments, but the amendments have finally resolved the matter in a way that re-affirms the DIFC’s commitment to international arbitration and the New York Convention.\r\n\r\n<strong>The Issue</strong>\r\n\r\nAlthough the DIFC is a separate civil and commercial jurisdiction in Dubai, as a jurisdiction within the UAE it is bound by the various international treaties and agreements entered into by the UAE. This includes the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, which despite its name also addresses the recognition of arbitral agreements. Article II(3) of the Convention states that a court of a state that has ratified the Convention must, at the request of one of the parties, refer a dispute to arbitration if the parties have made an agreement to arbitrate. The only exception is where the court finds that the arbitration agreement is void or inoperable.\r\n\r\nArticle II(3) is a vital provision of the Convention because if arbitral agreements are not recognised then the efficacy of international arbitration is undermined and there is the risk of simultaneous proceedings before an arbitral tribunal and national courts on the same matters.\r\n\r\nThe DIFC has its own arbitration law – the DIFC Arbitration Law 2008. This law is largely based on the UNCITRAL Model Law of International Arbitration, and as such is a modern and comprehensive law that will be familiar to international business and legal professionals. It is also a law which aims to comply (and is obliged to comply) with the New York Convention. However in the 2012 case of Injazat Capital Limited v Denton Wilde Sapte &amp; Co [CFI 019/2010], the DIFC Arbitration Law was found by the DIFC Court not to be incompliance with the Convention.\r\n\r\n<strong>Injazat</strong>\r\n\r\nIt was held in Injazat that because Article 7 of the 2008 Law states that the article regarding the recognition of arbitral agreements (Article 13) only applies when the seat of the arbitration is the DIFC, the Court could not stay court proceedings in favour of a foreign-seated arbitration.\r\n\r\nThe judge in that case, Sir David Steel, acknowledged that this represented a failure to implement Article II(3) of the New York Convention, but found that the court did not have inherent jurisdiction to remedy the oversight. This was because in his view the court had no residual discretion in matters explicitly covered by statute, and this was an issue that was explicitly covered in the 2008 Law.\r\n\r\n<strong>IES v Al Fattan</strong>\r\n\r\nThe reasoning in Injazat was not however followed in the subsequent case of International Electromechanical Services Co LLC v Al Fattan Engineering LLC [CFI 004/2012]. In that case Judge Williams QC held that the DIFC court had an inherent jurisdiction to stay proceedings which was ‘wide-ranging and fundamental’ and gave the court discretion to stay proceedings in favour of a foreign-seated arbitration, not withstanding the terms of the 2008 Law. In his view Article 7 merely failed to provide that the mandatory stay provision applies to foreign-seated arbitration, and it takes more than an inference from silence to oust the court’s inherent jurisdiction.\r\n\r\nAlthough the judgment in IES v Al Fattan was welcomed by the arbitration community, it remained the case that the DIFC Courts had within a year rendered differing judgments on this issue, and the risk of further judgments could not be ruled out.\r\n\r\n<strong>The Amendments</strong>\r\n\r\nArticle 7 of the 2008 Law (which describes the scope of the law’s application), has now been amended pursuant to DIFC Laws Amendment Law No.1 of 2013, which came into force on 15 December 2013.\r\n\r\nArticle 7 now provides that Article 13 of the 2008 Law (concerning the recognition of arbitration agreements) applies (1) where the seat of arbitration is the DIFC; (2) where the seat is other than the DIFC; and (3) where no seat is designated or determined.\r\n\r\nThere can now be no doubt that the DIFC Courts will stay proceedings in favour of an agreement to arbitrate, irrespective of what seat, if any, is stated in the agreement. This brings the law into compliance with the New York Convention on this issue.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe amendment to the DIFC Arbitration Law is welcome because it removes any lingering doubt on the issue of whether the DIFC Courts have the power to stay proceedings in favour of foreign-seated arbitrations. Furthermore it demonstrates that the DIFC is committed to international arbitration and upholding the New York Convention, and that it will take active steps to preserve its reputation as an arbitration-friendly jurisdiction.\r\n\r\nPlease follow us on Twitter @AlTamimiArb for all the latest arbitration news from the Middle East.'),
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	(88772,4829,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Robert Karrar-Lewsley'),
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	(88785,4830,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nExpo 2020’s announcement confirms Dubai’s position as an international hub for the region, as well as its continued appeal as a place for foreign investment and businesses. The announcement has already strengthened the UAE’s robust economy which is currently experiencing high growth in all sectors.\r\n\r\nOver the past 20 years Dubai has developed state of the art infrastructure in areas such as ports, airports, roads, public transport, safety, hotels, tourism, schooling, housing and healthcare. This solid infrastructure has enabled Dubai to recover from the global financial crisis and bounce back into a growth phase. The UAE economy has been steadily growing by 4 - 4.5% each year, including real estate and banking which suffered a significant hit in 2008 and 2009.\r\n\r\nThe UAE’s advanced recovery is not due to the Arab Spring (although this may have helped marginally) but instead credited to its infrastructure which is the best in the region.  Expo 2020’s announcement will promote Dubai’s status as a truly global city with world class infrastructure and a hub for global business.  Dubai will continue to invest in its roads, public transport and airports in preparation for Expo 2020. Increased confidence in the construction and real estate industries is also anticipated as a result of the win.\r\n\r\nIt is envisaged that between 2018 and 2020, the growth of the UAE’s economy may shoot up to 8% per annum. This takes into account the expected USD 7-8 billion investment for the Expo’s preparation; the additional USD 7-8 billion investment for hotels and tourism; the growth of the private and government sectors; and the hike in salaries. Government and private sectors are planning their investments and are setting their sights on 2020 as the target year of growth. It is predicted that more than 250,000 jobs will be created between 2013 and 2020. It is also expected that the Expo will cause a rise in living costs and employers should expect annual salary increases to rise further.\r\n\r\nIt is imperative for the government and private sector to view 2020 as the beginning and a platform for Dubai and the UAE to soar to new heights, rather than limiting the focus of that year to the culmination of economic growth. It is important that the UAE does not experience a slump after Expo 2020. Anticipating and planning for these patterns of fluctuation is critical. Previous host countries such as China (Expo 2010) reached their ultimate point in terms of tourism, hotel capacity and visitors during their Expo and experienced a sudden vacuum due to the drop of hotel occupancy, visitors and growth in the years that followed. This experience serves as a learning opportunity and one must steer away from a similar experience by planning ahead.\r\n\r\nIf Dubai and the UAE can learn from the experience of previous Expo’s, it could move the country into a different level internationally and allow it to serve a wider community than what it is currently catering for. Potential areas of expansion include the areas of trade, manufacturing and service industries, including tourism.\r\n\r\nThe UAE needs to attract and secure foreign investment to continue serving as a hub. In order to do this there must be a well established investment law and a carefully planned company law that clearly deals with a number of long standing issues, such as ownership restrictions. There are also a number of regulations which require amendment and improvement in the banking and finance sector throughout the UAE, including in the free zone areas such as the DIFC.  Now is the time to focus on our regulations and ensure our legislation is in line with international business needs.\r\n\r\nThe UAE can easily emerge as a great arbitration centre and there are already signs that such a hub is required by the international community. We therefore need to put in place modern arbitration centers based on the UNCITRAL rules, along with training and development of the local arbitration community.\r\n\r\nThe judicial system’s legislation will be meaningless unless it is very advanced and in line with international business needs. These legislative amendments need to be backed up by extensive training. Changes must also be made to the procedural law in providing the support required for businesses and the kind of stability that investors would like to see.\r\n\r\nIf the UAE can do this - as I believe it can - it will not only experience a very successful 2020, but it will also sustain its growth thereafter.'),
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	(88804,4831,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nBelow is an overview of UAE Court Procedure which answers some of the most common queries lawyers practicing in the UAE receive from clients.\r\n\r\n<strong>How do I start a claim before the Court of First Instance?</strong>\r\n\r\nIn order to commence a claim in the UAE, a claim will have to be filed at the relevant court (i.e. the court which has jurisdiction to hear the dispute). The claim needs to set out the basis of the dispute and the remedies sought. A court fee will also need to be paid. This is 7.5% of the value of the claim which is capped at a maximum of AED 30,000 (USD 8,000).\r\n\r\nAll of the documents filed at court and the claim itself will need to be in Arabic or translated into Arabic by an official translator.\r\n\r\nThe court bailiff’s office will then serve the claim on the defendant and the first hearing date will be set. This is usually 2-3 weeks after the claim has been filed.\r\n\r\nIn the event that the defendant cannot be physically located then the Court will usually order that the claimant assist the Court with finding the address (service by way of guidance). If this is unsuccessful then the Court will usually order that investigations are carried out with various authorities to locate the defendant (such as DEWA (the Dubai Electricity and Water Authority)). If these searches also prove to be unsuccessful then the Court will usually order that service take place by way of publishing the details of the case in a local newspaper.\r\n\r\nIf a defendant ignores a claim or cannot be located it is possible to obtain a judgment in the defendant’s absence.\r\n\r\n<strong>What happens in the hearings?</strong>\r\n\r\nAt the first hearing the parties’ legal representatives will need to produce their powers of attorney in order to confirm that they are authorized to act on behalf of their clients. If powers of attorney cannot be provided at this hearing the court will usually adjourn the hearing to allow the parties to obtain the necessary powers of attorney.\r\n\r\nAfter powers of attorney have been provided by the parties, the court will set another hearing date (again, usually 2-3 weeks later) to allow the defendant to respond to the claimant’s claim. The pleadings which are filed by each party are known as memoranda.\r\n\r\nThe defendant submits its memorandum in response to the claimant’s memorandum at the hearing set by the judge.\r\n\r\nBefore the UAE local courts hearings are very short and administrative in nature and are usually merely a way of allowing parties to submit written memoranda which are then addressed by the other party at the next hearing.\r\n\r\nEach hearing is set usually 2-3 weeks apart and there can be as many hearings as a judge believes are necessary for each party to have adequately stated its position. This is unlike the position in common-law jurisdictions such as in England and Wales (and also in the DIFC Courts) which have usually one hearing after several months of preparation during which all the points are raised following detailed procedure rules which set out the court’s case management powers and the means by which the court is provided with information such as by disclosure and witness statements.\r\n\r\n<strong>Will an expert be appointed?</strong>\r\n\r\nIt is very common for experts to be appointed by the UAE local courts. If the court believes there are any sufficiently technical areas in the case (e.g. if an account is required or a valuation needed) it will appoint a court expert to review the documents, meet with the parties to discuss the case and to provide a report to the court. The expert will generally be appointed from a list of court-appointed experts which is held by the Court.\r\n\r\nAs witness testimony is rarely used before the UAE Courts, expert reports are heavily relied on by judges when issuing judgments.\r\n\r\n<strong>What documents will I need to disclose?</strong>\r\n\r\nThere is no formal requirement for disclosure before the UAE courts. Parties are not obliged to submit to the court all documents which either support their case or are detrimental to their case. However since a court-appointed expert can ask to see such documents, the appointment of an expert is also a means of investigating the documents which each party to the dispute has in its possession.\r\n\r\n<strong>How long will it take?</strong>\r\n\r\nOnce the judge believes that he has sufficient information regarding the dispute he will set a date to hand down judgment. Judgment is handed down in written form (in Arabic).  Some Dubai Court of Cassation Judgments are also displayed on the court website with the parties’ names redacted. Lawyers and people with subscriptions to this website are able to access these judgments. Because parties’ names are redacted it can be difficult to search for judgments. Judgments are categorized in relation to subject matter such as particular articles of the UAE Civil Code which they relate to. Also, the website is not always updated on a regular basis.\r\n\r\nWith regards to the Federal Courts, there is a monthly publication of Supreme Court judgments which is available to the public as well as lawyers.\r\n\r\nThere is a procedure in place for appealing judgments. Appeals against a Court of First Instance decision are to be made to the Court of Appeal within 30 days of the date of the judgment. Appeals against a Court of First Instance Judgment can be in relation to issues of fact or issues of law. Appeals against a Court of Appeal decision are to be made to the Court of Cassation within 30 days of the date of the judgment. Appeals against a Court of Appeal Judgment can only be in respect of matters of law. Permission to appeal is not required and is an automatic right (provided that the sum in dispute is over AED 20,000 in relation to the Court of Appeal and over AED 200,000 in relation to the Court of Cassation save for in cases where the sum claimed has not yet been evaluated such as a case to appoint an expert to assess the level of compensation). It is therefore very common for parties to appeal decisions as a tactical measure in order to draw out the proceedings and lengthen the time before a judgment is enforced.\r\n\r\nCases in which an expert is not appointed can last between 9 and 18 months before the Court of First Instance. If an expert is appointed a case can last for two years before judgment is handed down in the Court of First Instance.\r\n\r\n<strong>Can I get my costs back?</strong>\r\n\r\nAs regards costs, the Court will usually make an order for costs in favour of the winning party. However, the amounts awarded are generally fairly nominal covering only court fees paid, experts’ fees and a nominal fee for advocacy. This differs from common-law jurisdictions such as in England and Wales where a successful claimant is generally awarded a substantial amount of its legal professional fees.\r\n\r\n<strong>Are Without Prejudice Communications honoured?</strong>\r\n\r\nThe principle of without prejudice communications is not recognized by the UAE courts and any documentation can be produced before the court, even if it purports to be without prejudice. Parties should bear this in mind if they are trying to settle a dispute. Having said this, many of the large international law firms and the local firms which they instruct to present cases before the courts on their behalf will honour the concept of without prejudice communications as a matter of good practice.\r\n\r\n<strong>How are Money Judgments enforced?</strong>\r\n\r\nMoney Judgments can be enforced by way of attachment applications. An attachment application is an application made to the court that the defendant’s assets (such as a bank account or property) be frozen pending resolution of the dispute. Attachment applications can also be applied for before proceedings are commenced (i.e. before the claim is filed at court).\r\n\r\n<strong>What forms of Interim Relief are available before the UAE Courts?</strong>\r\n\r\nThere is no concept of interim or injunctive relief available from the UAE Courts save for an attachment of assets.\r\n\r\nIn order to obtain a precautionary attachment of assets, a claimant needs to demonstrate that on the documentary evidence available there is a valid claim and also that there is a risk that the defendant will not make payment of the sums owing orthat there is a risk of dissipation of assets. The claimant also needs to be able to identify the assets which it seeks to attach or at least give the court a general indication (i.e. supply the court with a list of up to five banks if the claimant believes that the defendant has funds in a bank account but does not know which bank).\r\n\r\nThe claimant needs to provide an undertaking to the Court in respect of the attachment application to the effect that if the attachment application is found to have been incorrectly granted then the claimant will reimburse the defendant for any damages suffered. In our experience, such undertakings are never called upon, even in circumstances where grievance applications requesting that attachment orders are set aside are successful.\r\n\r\nPrecautionary attachments are heard by the court on an ex parte basis (i.e. without the defendant being made aware) and a judgment is usually handed down within 24-48 hours of an application being made.\r\n\r\nIf the application is successful and an attachment order is granted, a substantive claim will need to be filed within eight days of the order being enforced, failing which the attachment falls away.\r\n\r\nOnce an attachment order is made and enforced, the defendant may file a grievance application to seek to get the attachment order set aside.\r\n\r\n<strong>Some Final Advice</strong>\r\n\r\nFiling the claim is the first step in what can be a long and difficult process. Those seeking to bring a claim need to have a good understanding of the process they are embarking on, and should take good legal advice on the strength of the claim before it is filed.\r\n\r\nOnce the decision to file a claim has been made, it is vital that parties ensure that they have a power of attorney in place and that the relevant documents have been translated into Arabic by an official translator.'),
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	(88822,4831,'_yoast_wpseo_metadesc','Many potential litigants can find the UAE legal system daunting, particularly expats who are not familiar with a civil law system.'),
	(88823,4832,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe settlement of these differences is to a large extent governed by the proper construction (or interpretation) of the contract. In arriving at its conclusion the court applies relatively well-established principles of interpretation found in Chapter 4 of The Civil Transactions Act (commonly referred to as the Civil Code), under the title “Construction of Contracts”. Generally, no distinction is drawn between the ‘construction’ and ‘interpretation’ of contracts and the two terms are used interchangeably.OBJECTIVE OR SUBJECTIVE METHOD OF CONSTRUCTION\r\n\r\nThere are two approaches that can be taken when interpreting a contract. Judges can seek to determine the subjective intent of the parties in order to ascertain what their stipulations mean, or they can consider the external acts of the parties and ascertain, in an objective manner, the meaning of the contractual clause\r\n\r\nIn common law traditions, the interpretation of a contract is often an objective exercise, the aim of which is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language using the famous ‘reasonable man’ standard test. However, unlike the trend in the common-law system, the UAE Civil Transactions Act as we shall see is unequivocal in applying a subjective test of what the real intention of the parties was.\r\n\r\nRULES OF CONSTRUCTION\r\n\r\nArticles 265 and 266 of the Civil Transactions Act state that there are three instances where expressions contained in a contract may require interpretation. These are detailed as follows:\r\n\r\n1. PLAIN EXPRESSIONS\r\n\r\nIn this regard, two scenarios may be distinguished from one another. The first one is whether the expression in a contract is plain and conforms to the true will of the parties. The second is where the expression does not conform to that will.\r\n\r\nIn the first scenario wherever the expression of the contract is plain in its entirety and matches and conforms to the will of the parties, then there can be no room for further interpretation. Hence, it is incumbent on the judge to consider the apparent meaning of the expression provided that it is not in conflict with the law. Article 258(2) of the Civil Transactions Act states that ‘there shall be no room for inference by implication in the presence of express provisions’. This rule has been quoted and applied by the UAE courts on countless occasions. For example, in judgment No 280 of2008 the Dubai Court of Cassation stated that ‘where the wording of the contract is clear and obvious, there shall be no deviation from that clear wording to another’.\r\n\r\nIn the second scenario the expression is plain but it does not represent the true will of the parties, as they intended a meaning contrary to the wording. Here, the content of the expression in the contract is not plain as to what the parties intended it to be. In this case, the judge may carry out the interpretation despite the clarity of the expression, as clarity in this instance involves only the wording and not the parties’ will. Undoubtedly, in such a case, significance should be given to the true meaning of the expression as actually envisaged by the parties with disregard to the apparent meaning of the expression contained in the contract. This is reflected in Article 285(1) of the Civil Transactions Act which provides that ‘In interpreting contracts what matters is the real intention of the parties and not the wording and syntax’. The application of this rule can be found in the Dubai Cassation Court’s judgment No 294 of2008 in which it was stated that ‘In interpretating the contract what matters is to ascertain the true meaning of the word and not to stick to its apparent wording or syntax’.\r\n\r\n2. AMBIGIOUS EXPRESSIONS:\r\n\r\nGenerally speaking, a statement may be said to be ambiguous when it has two or more primary meanings, each of which may be adopted without distortion of the language. If the expressions of a contract are so ambiguous to the extent that they may imply more than one meaning, then they do require interpretation.  Article 265(2) of the Civil Transactions Act details how they are to be interpreted: ‘if there is a room for construing the contract, the common intention of the parties shall be looked at without stopping at the literal meaning of expressions together with seeking guidance in the same by the nature of the dealing and bona fide governing relations between the parties in accordance with the current customs in dealings.  Thus, It had been decided by the Dubai Cassation Court judgment No 125 of2007 that ‘According to the tradition of this court, and to the provisions of articles 258, 265(2) of the Civil Transactions Act, the contract’s aim is defined by the true intentions and meanings [of the parties] and not the wording or the syntax. If there is a room for construing the contract, then the mutual intention of the contracting parties shall be considered without stopping at the literal meaning of the contractual wording’.\r\n\r\nHowever, it is important for both the court and practitioners to keep in mind a clear distinction between evidence of context and extrinsic evidence. While relying on the former to interpret an ambiguous contract is admissible, it is not legally acceptable to use the latter as an aid for construing a written contract. Therefore, parties’ intention may only be ascertained from the contract itself. This is simply representing the so-called parol evidence rule. The application of this rule may be found in Article 36 of the UAE Evidence Act 1992.\r\n\r\n3. CONSTRUCTION IN CASE OF DOUBT\r\n\r\nArticle 266 of the Civil Transactions Act Code provides that ‘doubt is construed in favor of the debtor’. This is complicated article which calls for an interpretation itself. The key problem with this article is that it raises questions as to the nature of the “doubt” referred to, and the identity of the party who may be considered to be the “debtor” in whose favor the doubt in question is to be construed.\r\n\r\nIn my opinion, the doubt contemplated by article 266 can only be understood to mean ambiguity which is not resolved by the application of the rule of construction laid down by article 265 of the Civil Transactions Act, for if Article 266 is taken to be applicable independently and in isolation of the other provisions, there would be no need for those other articles. Therefore article 266 must be interpreted to be a residual rule to be applied after the other rules of constructions have been exhausted.\r\n\r\nAnother difficulty in article 266 is the confusion it creates when it comes to defining the term ‘debtor’. In most contracts, each one of the parties is alternately debtor and creditor simultaneously as each party is obliged to give something to the other and has a right to expect something else in return. In my opinion, it would have been more helpful if the term debtor in article 266 had been replaced by the term ‘aggrieved party’. Alternatively, it would have been wiser if in such a case the doubt is to be construed ‘contra proferentem’ i.e. against the party who put forward the ambiguous clause. However, to the best of my knowledge no decided case in UAE seems to have encountered a dispute in which these concerns were invoked.\r\n\r\nCONCLUSION\r\n\r\nThis has been an overview of the general framework of the UAE Civil Transactions Act regarding the issues of the interpretation of contracts. A general survey into the judicial precedents reveals that the UAE courts will usually abide by the statuary provisions when interpreting a contract. However, it is important to remeber that all the above-mentioned rules of construction are not of an obligatory nature -  they are merely guidelines for the court to help it ascertain the presumed intention of the parties.\r\n\r\nThe parties are free to modify or exclude any of these statutory rules of construction by agreement and to stipulate their own rules of construction.\r\n\r\n&nbsp;'),
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	(88842,4833,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nWith that in mind, we thought that a reminder of some of the key legal issues in development finance in the UAE would be of interest to our readers.\r\n\r\nAlthough the UAE is undoubtedly a development-friendly jurisdiction there are a number of regulatory measures and licensing requirements to consider. In addition, clearly defining the roles and responsibilities of the parties and ensuring that correct and sufficient security is available and in place at the appropriate times are also of paramount importance and should be treated as a priority in the structuring stage.\r\n\r\nThere are three themes to our analysis of the relevant issues:\r\n<ul>\r\n 	<li>Due diligence;</li>\r\n 	<li>Roles and responsibilities; and</li>\r\n 	<li>Regulation and licensing.</li>\r\n 	<li>Due diligence</li>\r\n</ul>\r\nIn the early stages of any development finance transaction, the parties should be considering the type of project, its revenue sources, how any finance will be serviced and the potential market for the project. Each of these will be important in identifying how the lenders can best protect their position, while ensuring that the financing solution offered to the borrower meets their short and longer term commercial needs.\r\n\r\nAlongside these project-related due diligence streams, the underlying land and other project assets should be assessed, including a review of the title itself, to confirm what type of title it is and whether security can be granted over it. Although it sounds rudimentary, it is of course crucial to ensure that the ownership interests and assets reflect the parties’ expectations and are suitable for the type of financing and/or security proposed. It is also important to understand the borrower’s group structure and identify which companies will be providing security and which will form part of the covenant package in the finance documents.\r\n\r\nIncreasingly, we are seeing longer term facilities being offered in development finance transactions, rather than borrowers relying on shorter term funding arrangements which do not match the project term and would have to be renegotiated or refinanced periodically. While this move to longer term facilities makes sense from a development perspective, when the background of increasing capital adequacy requirements is overlaid, there are some pertinent issues to consider around pricing and how any costs associated with changes in the banking world’s regulatory framework should be allocated  between the borrower and the lenders.\r\n\r\nSimilarly, understanding the cashflows of the project is key to defining what account structure is appropriate to the project and the timing and quantum of repayments to the lenders. The revenues and cash flows will also be important in identifying what security over the project accounts should be granted and also what cash waterfall between the project accounts is most appropriate. Time spent understanding these issues at an early stage will save headaches further down the line when specifics are to be drafted into the documents.\r\n\r\nBased on the due diligence and the borrower’s requirements, the financing structure can be settled, with both Islamic and conventional structures being available. Any requirement of the borrower to ring fence the project, assets and liabilities should also be communicated at an early stage and agreed with the lenders. If acceptable to the lenders, this would benefit the borrower by limiting cross contamination between projects. This is increasingly relevant where companies will be running several developments, each of which will have its own financing arrangements, and given that the use of special purpose vehicles remains limited.\r\n\r\n<strong>Roles and responsibilities</strong>\r\n\r\nIn summary, the key roles in a development finance transaction are:\r\n<ul>\r\n 	<li>The developer, which will undertake the development. There may be local ownership requirements depending on the nature of the project and the Emirate, which should be considered at an early stage.</li>\r\n 	<li>The land owner – if this is not the same party as the developer, the land owner will (usually) enter into an agreement with the developer to develop the project. This development agreement should be carefully reviewed by lenders to understand the implications of a default under the facility and to ensure that the lenders have appropriate remedies in the event of a breach of the development agreement or the facility agreement. This is often by way of a cure period during which the lenders can remedy a breach by the parties to the development agreement or, in the case of a breach of the facility agreement, a right to step into the development agreement and replace the defaulting party. These underlying agreements can also dictate who needs to be a party to the finance documents.</li>\r\n 	<li>The project consultant – this consultant is appointed to oversee the technical aspects of the project. There may be more than one project consultant if the lenders have also appointed their own specialist advisor who will, for example, approve payment of development costs and sign off completion certificates.</li>\r\n 	<li>The master developer – there maybe a master developer, who will run the large site within which the project is located. Often the master developer and developer must enter into agreements as to how the project will be set up, run and progressed. It is also prudent to review the original document under which the land owner obtained the land for any unepected or unusual provisions.</li>\r\n 	<li>The lender/s – the lenders in a development finance transaction will usually expect to be more closely involved in the project, with varying degrees of rights to approve and oversee in respect of the project.  One of the most important areas is of course in relation to deviations from the project budget.</li>\r\n 	<li>The contractors – the contractor for the project, the documents under which they are appointed and any performance security to be provided by a bank on their behalf should all be reviewed. Not only to ensure the lenders are comfortable with the appointed contractor, but also to inform the security package and extent to which the contractor will need to enter into agreements  with the lenders.</li>\r\n 	<li>In the case of hotels or residential complexes there will also usually be management companies who need to be wrapped into the financing structure.  Direct agreements between the lenders, the developer and these management companies are often required, so the early engagement  of these parties in the financing process is sensible.</li>\r\n</ul>\r\nThe project itself will involve multiple stakeholders, from those noted above to subcontractors and the banks providing any required performance security. The lenders’ position and rights will usually need to be overlaid into these (often pre existing) relationships and it can take some time to identify which rights and responsibilities are fundamental to each party and how best to protect the lenders’ position while not smothering the stakeholders’ ability to operate the project in a sufficiently flexible way.\r\n\r\nGiven the number of interested parties, it is clear that one of the keys to successfully implementing financing arrangements for developments is early engagement between the project’s stakeholders. The intention of this engagement should be to clarify what each of them can expect from the others and what each of them is required to do for the others. The negotiations with third parties who are involved too late in projects are almost always more difficult than those where the relevant third parties have been prepared and involved in the project financing.\r\n\r\n<strong>Regulation and licensing</strong>\r\n\r\nGiven the federal nature of the UAE, it is important to assess and understand the regulatory regime where the project is to be established. For example, in Dubai there are mandatory requirements to maintain an escrow account in respect of off plan sales and rules regarding termination by developers of sale agreements whereas in Abu Dhabi there are currently no such rules (although a raft of new regulation is expected soon, which is expected to include escrow requirements similar to those in place in Dubai). By way of further contrast, Ras Al Khaimah has similar escrow requirements to those in Dubai, whereas in Sharjah the law provides that a bank guarantee for a percentage of the project cost must be provided, rather than having escrow requirements.\r\n\r\nOther examples of differences between the Emirates are (i) the availability of the interim register in Dubai for offplan properties, which is not currently an option in other Emirates and (ii) the eligibility to own real estate in each Emirate, which vary from eligibility being limited to UAE and GCC nationals to lesser restrictions on ownership by foreign nationals provided that the property is in certain designated zones, as is the approach in Abu Dhabi, Dubai and Ras Al Khaimah.\r\n\r\nAs we have seen with the introduction of the recent mortgage regulations, reported on in this issue by my colleague Ravi Gill, many expect further real estate regulation in coming years, in addition to the proposed new laws in Abu Dhabi.\r\n\r\nAt present, the main areas under this theme which a lender should consider are whether the land owner is eligible to own the land in question, whether the developer has the skills, expertise, licenses and approvals necessary to carry out the project in question and whether the project has been or is reasonably likely to be successfully registered in the relevant Emirate. The applicable rules can differ between the Emirates quite considerably and so early enquiries should always be made.\r\n\r\nSome of the differences between the Emirates have been noted above. One of these key differences is the escrow arrangements which the Dubai Lands Department requires to be established with an approved bank. These requirements can be confusing, particularly where funding is required to acquire the land and where off plan sales have also been made. In our experience, the relevant authorities can show flexibility in respect of the escrow requirements where the business case for such exceptions has merit, is sensibly presented and the consumer protection motives behind the relevant rules are still respected.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWe expect the number of development finance and infrastructure projects to rapidly increase over coming years, as a result of the increasing economic optimism, Dubai’s successful bid to host Expo 2020 and the well-placed confidence in the UAE market. We hope that this article was of interest. Should you wish to discuss any of the issues outlined in this article, please feel free to contact the author or any member of the Banking and Finance team.'),
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	(88846,4833,'content_description','With the increased economic optimism we have seen over the last year, Dubai’s successful bid to host the World Expo 2020 and Abu Dhabi’s “Plan Abu Dhabi 2030”, the UAE looks set to continue developing its land banks and to see a renaissance of a number of projects which were put on hold during the economic downturn. '),
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	(88848,4833,'pageSummary','With the increased economic optimism we have seen over the last year, Dubai’s successful bid to host the World Expo 2020 and Abu Dhabi’s “Plan Abu Dhabi 2030”, the UAE looks set to continue developing its land banks and to see a renaissance of a number of projects which were put on hold during the economic downturn.'),
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	(88860,4833,'_yoast_wpseo_metadesc','With the increased economic optimism we have seen over the last year, Dubai’s successful bid to host the World Expo 2020 and Abu Dhabi’s “Plan Abu Dhabi 2030”, the UAE looks set to continue developing its land banks and to see a renaissance of a number of projects which were put on hold during the economic downturn.'),
	(88861,4834,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe Circular accompanying the Regulations states that the Regulations will come into effect a month after they are published in the Official Gazette. The Regulations were published in the Official Gazette on the 28th November 2013.\r\n\r\n<strong>The Aim of The Regulations</strong>\r\n\r\nIn effect, the Regulations define the eligibility of various categories of borrowers based on a loan to property value ratio (“LTV’).  The Regulations state that the aim of the Central Bank is to ensure that banks, finance companies and other financial institutions providing mortgage loans to UAE nationals and expatriates do so in accordance with best practice and have control frameworks in place. The Regulations will also apply without exemption to banks and institutions providing shariah complaint loans for the purchase of properties.  In essence it would appear that the Regulations are an attempt by the Central Bank to regulate borrowing in the market by reducing the level of leverage currently available to borrowers and increasing equity in property investments.\r\n\r\n<strong>The Effect of the Regulations</strong>\r\n\r\nSo what do the Regulations actually say?\r\n\r\nIn the case of UAE nationals, for properties valued at AED 5 million and below, the LTV will be a maximum of 80 per cent of the value of the property. In cases where the property value exceeds AED 5 million, the LTV shall be 70 per cent of the value of the property. Each borrower is only entitled to seek a loan for one property falling within these two categories and therefore it would appear that these LTV ratios are intended for owner occupiers.\r\n\r\nIf UAE nationals seek loans for a second home or investment property, the LTV must not exceed 65 per cent of the value of the property.\r\n\r\nIn the case of non UAE nationals, the Central Bank has set the mortgage limit for the first property at 75 per cent of the value for properties that are valued at AED 5 million or less. If the value of the property is more than AED 5 million, an expatriate borrower can borrow a maximum of 65 per cent of the value of the property. Once again each borrower is limited to one loan for the purchase of properties within these categories.\r\n\r\nIn the event of a second home or an investment property purchase by a non UAE national, the Regulations state that the maximum loan available will be 60 per cent of the value of the property.\r\n\r\nFor the avoidance of doubt, GCC citizens would fall under the non UAE national category and the Regulations would apply accordingly.\r\n\r\nThe above LTV’s apply to properties that are completed. The Regulations set different rules relating to properties which are incomplete and therefore purchased off plan. The Regulations state that irrespective of whether the purchaser is a UAE national or non UAE national, the maximum loan amount for the purchase of an off plan property shall be 50 per cent of the value of the property. This is regardless of how many other properties the purchaser owns and whether the purchaser intends to be an owner occupier of the off plan property.\r\n\r\nThe only current exception to the above LTV’s are in the case of loans to UAE nationals under Government Housing Programmes.\r\n\r\nThe Regulations further state that mortgage loans with deferred principal repayment (i.e interest only mortgages) should only apply to “investment loans” and that such loans should not allow for non-payment of the principal for longer than 5 years from the date of first drawdown of the loan.  Investment loans are not defined in the Regulations.\r\n\r\nInserted table is an overview showing the LTV ratios set by the Regulations as discussed above.\r\n<table class=\"MsoTableGrid\" border=\"1\" width=\"440\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"121\"></td>\r\n<td valign=\"top\" width=\"161\"><address class=\"MsoNormal\"><strong> </strong></address><address class=\"MsoNormal\"><strong>UAE National</strong></address></td>\r\n<td valign=\"top\" width=\"158\"><address class=\"MsoNormal\"><strong> </strong></address><address class=\"MsoNormal\"><strong>Non UAE National</strong></address><address class=\"MsoNormal\"><strong> </strong></address></td>\r\n</tr>\r\n<tr>\r\n<td rowspan=\"2\" valign=\"top\" width=\"121\"><address class=\"MsoNormal\"><strong> </strong></address><address class=\"MsoNormal\"><strong>First Property (Built)</strong></address></td>\r\n<td valign=\"top\" width=\"161\">&nbsp;\r\n\r\n<address class=\"MsoNormal\">Property valued at AED 5 Million or less: LTV = 80%</address>&nbsp;</td>\r\n<td valign=\"top\" width=\"158\">&nbsp;\r\n\r\n<address class=\"MsoNormal\">Property valued at AED 5 Million or less: LTV = 75%</address></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"161\">&nbsp;\r\n\r\n<address class=\"MsoNormal\">Property valued at more than</address><address class=\"MsoNormal\">AED 5 Million: LTV = 70%</address>&nbsp;</td>\r\n<td valign=\"top\" width=\"158\">&nbsp;\r\n\r\n<address class=\"MsoNormal\">Property valued at more than</address><address class=\"MsoNormal\">AED 5 Million: LTV = 65%</address></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"121\"><address class=\"MsoNormal\"><strong> </strong></address><address class=\"MsoNormal\"><strong>Second or subsequent Properties</strong></address><address class=\"MsoNormal\"><strong>(Built)</strong></address></td>\r\n<td valign=\"top\" width=\"161\">&nbsp;\r\n\r\n<address class=\"MsoNormal\">LTV = 65%</address><address class=\"MsoNormal\">(irrespective of value of property)</address>&nbsp;</td>\r\n<td valign=\"top\" width=\"158\">&nbsp;\r\n\r\n<address class=\"MsoNormal\">LTV = 60%</address><address class=\"MsoNormal\">(irrespective of value of property)</address></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"121\">\r\n<p class=\"MsoNormal\"><strong> </strong></p>\r\n\r\n<address class=\"MsoNormal\"><strong>Property bought off plan</strong></address>\r\n<p class=\"MsoNormal\"><strong> </strong></p>\r\n</td>\r\n<td valign=\"top\" width=\"161\">\r\n<p class=\"MsoNormal\"></p>\r\n\r\n<address class=\"MsoNormal\">LTV = 50%</address><address class=\"MsoNormal\">(irrespective of value of property)</address>\r\n<p class=\"MsoNormal\"></p>\r\n</td>\r\n<td valign=\"top\" width=\"158\">\r\n<p class=\"MsoNormal\"></p>\r\n\r\n<address class=\"MsoNormal\">LTV = 50%</address><address class=\"MsoNormal\">(irrespective of value of property)</address>\r\n<p class=\"MsoNormal\"></p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n&nbsp;\r\n\r\nMortgage providers are required by the Regulations to have in place a board approved list of independent valuers for the purpose of property valuations. The valuer to be used in each case must be a suitably qualified third party who is independent of the seller, borrower, developer/contractor and the loan decision process.\r\n\r\nIn addition to setting the LTV ratios the Regulations state that the maximum term of a mortgage is set at 25 years and the maximum age limit of a borrower at the date of the last repayment due on the loan is to be 70 years for UAE nationals and 65 years for non UAE nationals (or 70 years if self employed).\r\n\r\nThe Regulations require mortgage providers to put in place proper processes and procedures to ensure that accurate information is collected regarding a borrower’s income in order to determine a borrower’s ability to repay the loan. Loan providers are required to develop standard Debt Burden Ratio (“DBR”) calculation templates for this purpose. The DBR cannot exceed 50%. In addition, the maximum financing amount allowed for UAE nationals is set at eight times their annual income and at seven times for non UAE nationals. The calculation of the DBR should disregard any promotional or introductory interest rate being offered by the lender.\r\n\r\n<strong>So what happens next?</strong>\r\n\r\nThere is much speculation about how the Regulations will affect the property market in general once the Regulations come into force. Some welcome the Regulations as a long awaited tool to govern what they see as an otherwise unregulated market in terms of borrowing and cooling down an overheated property market by putting checks on speculators. Others are worried that this type of regulation will not in fact curb speculation and will instead have a negative impact on the first time owner occupiers with a genuine interest in purchasing a home in the UAE. The Regulations have clearly opened up an interesting debate and the effects, remain to be seen.'),
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	(88865,4834,'content_description','At the end of October 2013 the Central Bank of the UAE (“Central Bank”) issued a new set of regulations (“Regulations”) on mortgage lending to banks and other financial institutions. '),
	(88866,4834,'_content_description','field_59b641c07f473'),
	(88867,4834,'pageSummary','At the end of October 2013 the Central Bank of the UAE (“Central Bank”) issued a new set of regulations (“Regulations”) on mortgage lending to banks and other financial institutions.'),
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	(88871,4834,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ravi Gill'),
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	(88873,4834,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','r.gill@tamimi.com'),
	(88874,4834,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(88875,4834,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(88878,4834,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(88879,4834,'_yoast_wpseo_metadesc','At the end of October 2013 the Central Bank of the UAE (“Central Bank”) issued a new set of regulations (“Regulations”) on mortgage lending to banks and other financial institutions.'),
	(88880,4835,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nLandlords and tenants were allowed to agree to fix the rent payable under a lease.  Where the rent was not fixed, landlords had the right to an annual increment which had been capped in recent years at 5% per annum.\r\n\r\nLaw No. 4 of 2010 introduced a change to these tenant protections and now allows landlords to oppose lease renewals provided either two months’ notice is given in the case of residential premises, or three months’ notice is given in the case of commercial premises.  The implementation of this change was delayed by three years but took effect from 9 November 2013.   It effectively allows landlords to oppose lease renewals if tenants do not agree to the increased rents landlords may now demand.\r\n\r\nThe rent caps were beneficial during the boom years when stability was needed in the property market in order to combat inflation and speculation. This has been less relevant since 2009 as rents have been stabilizing or even falling in some cases. A drawback for landlords has been that they were essentially stuck with tenants who have been in possession of premises for a long time and have been paying low rents, which do not correspond with current market rental levels. The abolition of the rent caps now means that market forces will be allowed to prevail.\r\n\r\nLandlords with long standing tenants will seek to increase rents and bring them into line with the market. If these tenants do not agree to increases then it is expected that landlords will refuse to renew their leases. Long-term tenants who will have their rent increased by landlords may start to vote with their feet and move to take advantage of offers within newer developments where they may find that they will be paying rent equivalent to any increases imposed by their current landlord but with the benefit of better facilities. As new supply comes on to the market (for example new residential apartments on Reem Island), this should counter increases in demand from tenants wishing to move so as to secure better rental deals and higher-class accommodation.  In turn this is likely to leave vacancies in older buildings where landlords will have to take note and respond to a shifting market by charging competitive rents.\r\n\r\nIn the longer term it is expected that many landlords and tenants will consider agreeing longer lease terms, with fixed rents or fixed rent increases, in order to have some certainty over rent increases. This is particularly relevant for commercial tenants who often incur significant expenditure fitting out their offices or places of business.'),
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	(88884,4835,'content_description','Abu Dhabi Law No. 20 of 2006 regulates most landlord and tenant relationships in the Emirate of Abu Dhabi.  Until recently the law had protected tenants from rent increases beyond a defined rent cap and only allowed landlords to oppose lease renewals in a limited range of circumstances.  '),
	(88885,4835,'_content_description','field_59b641c07f473'),
	(88886,4835,'pageSummary','Abu Dhabi Law No. 20 of 2006 regulates most landlord and tenant relationships in the Emirate of Abu Dhabi. Until recently the law had protected tenants from rent increases beyond a defined rent cap and only allowed landlords to oppose lease renewals in a limited range of circumstances.'),
	(88887,4835,'_pageSummary','field_59e59b307dec8'),
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	(88894,4835,'_yoast_wpseo_metadesc','Abu Dhabi Law No. 20 of 2006 regulates most landlord and tenant relationships in the Emirate of Abu Dhabi. Until recently the law had protected tenants from rent increases beyond a defined rent cap and only allowed landlords to oppose lease renewals in a limited range of circumstances.'),
	(88895,4836,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe Dubai International Financial Centre (DIFC) is a federal financial free zone which, in contrast to the other UAE free trade zones, has its own set of unique laws and regulations, including an employment law.  Employment matters in the DIFC are governed exclusively by the DIFC Employment Law (Law No. 4 of 2005, as amended) which is loosely based upon the employment regime in England and Wales. One of the guiding principles of the DIFC Employment Law is the promotion of fair and equitable treatment between employers and employees; a principle which the DIFC has sought to achieve through the introduction of express anti-discrimination provisions which prohibit discriminatory treatment or conduct on the basis of an employee’s membership of a protected class (specifically, sex, marital status, race, nationality, religion and/or mental or physical disability).\r\n\r\n<strong>Unlawful discrimination </strong>\r\n<ul>\r\n 	<li>Under the DIFC Employment Law, unlawful discrimination against an employee is divided into three separate categories:</li>\r\n 	<li>direct discrimination: less favourable treatment on one of the protected classes.</li>\r\n 	<li>indirect discrimination: the application of neutral provisions, criteria or practices (“PCP”) which put employees of a particular protected class at a disadvantage not faced by others who do not share that particular class.  For example, a requirement for all staff to be on-site on a Friday lunchtime would disproportionately affect Muslims as Friday prayers take place at that time (salat al-jumu’ah).</li>\r\n</ul>\r\nharassment: unwanted treatment or conduct which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive workplace. The “purpose or effect” wording broadens the scope of the harassment provisions to the extent that notwithstanding the fact that the intent of the treatment or conduct was not to create a hostile or offensive workplace, if the effect on the complainant was that it created just that, such treatment will be sufficient to fall within the net of protection.\r\n\r\nThe discrimination and harassment provisions do not extend to capture associative or perceptive discrimination; accordingly, the complainant’s actual protected characteristic (e.g. disability) does have to be the reason for the discrimination or harassment.  This is in contrast to the position in England and Wales where, for example, an employee denied a promotion because her manager believes she will not be able to focus on her new role due to caring responsibilities for her disabled mother may be able to bring a claim for discrimination because of her association with a disabled person.\r\n\r\nWhilst both direct and indirect discrimination are defensible on the grounds of a bona fide (i.e. genuine) occupational requirement or (in the case of indirect discrimination) where the employer can show the PCP to be a proportionate means of achieving a legitimate aim, the offence of harassment cannot be justified on such grounds.  The DIFC Employment Law defines a genuine occupational requirement as a requirement reasonably necessary for the normal performance of a particular role or occupation.\r\n\r\nAn employee has a disability for the purposes of the DIFC Employment Law if he has a mental or physical impairment which has a substantial and long-term adverse effect on his ability to carry out his duties in accordance with the employment contract. An impairment has a long-term effect if it has lasted at least 12 months or is likely to last at least 12 months.  If the employer fails to make reasonable adjustments to any physical feature of the workplace or the applicable PCP would, if made, enable the employee to otherwise meet the genuine occupational requirement, this will amount to disability discrimination.\r\n\r\n<strong>Positive Discrimination</strong>\r\n\r\nIn many jurisdictions the concept of positive discrimination (that is, treating one person more favourably than another because of their membership of a particular protected class) is generally prohibited in the workplace context. Under the DIFC Employment Law, employers are permitted to positively discriminate in favour of disadvantaged groups, including (but not limited to) those that are disadvantaged because of mental or physical disability.\r\n\r\nThere are also separate (and specific) positive discrimination provisions in the DIFC Employment Law such as reduced working hours for fasting Muslim employees during the Holy Month of Ramadan.\r\n\r\n<strong>Pregnant employees </strong>\r\n\r\nAdditional protections for pregnant women are laid down in the DIFC Employment Law, which provides that an employer shall not, because of an employee’s pregnancy or maternity leave, terminate employment or change the position or condition of employment without the employee’s prior written consent.  Moreover, an employee has the right to return to work at the end of maternity leave to the same role or a suitable alternative on the same terms and conditions, and with same seniority rights she would have had had she not taken maternity leave.\r\n\r\n<strong>Remedies for breach of anti-discrimination provisions</strong>\r\n\r\nNotwithstanding specific anti-discrimination provisions, the DIFC Employment Law fails to expressly provide for any scheme of statutory compensation (such as future loss of earnings or an award for injury to feelings as provided for in jurisdictions such as England and Wales) for breach of the laws prohibiting discrimination. It is therefore, at present, unclear what approach or test the DIFC Courts will apply in determining the level of compensation to be awarded for a successful claim.\r\n\r\n<strong>Vicarious liability </strong>\r\n\r\nUnder the DIFC Employment Law, an employer may also be held vicariously liable for the actions of its employees (e.g. for bullying or harassment) committed in the course of employment. In order to avoid liability, an employer must demonstrate that the employees responsible for the bullying, harassment, etc., acted outside the course of their employment or that it took reasonable measures to prevent the employees concerned from committing the acts in question.\r\n\r\n<strong>Practical measures and best practice </strong>\r\n\r\nFrom a practical perspective, the DIFC’s express anti-discrimination provisions are more likely to promote and enhance the success of a global business than frustrate it and those companies genuinely committed to equal opportunity are less likely to be subjected to complaints of unlawful discrimination. As a minimum, it is recommended that companies operating in the DIFC are mindful of the following best practice:\r\n<ul>\r\n 	<li>awareness and understanding of the DIFC’s anti-discrimination framework.</li>\r\n 	<li>the introduction of a company-wide equal opportunities policy.</li>\r\n 	<li>robust training on the equal opportunities policy across the company but in particular, bespoke and periodic training for those within the organisation who will be tasked with applying and implementing the policy in practice (such as managers and HR professionals).</li>\r\n 	<li>periodic review and auditing of such equal opportunity policies and practices to determine the level of compliance within the business and issues requiring resolution going forward.</li>\r\n</ul>'),
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	(88899,4836,'content_description','Many global and multinational businesses, whether operating in the UAE or generally, are committed to effectively managing a diverse workforce and applying global corporate policies and best practice, in particular on issues concerning compliance and equality.  '),
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	(88901,4836,'pageSummary','Many global and multinational businesses, whether operating in the UAE or generally, are committed to effectively managing a diverse workforce and applying global corporate policies and best practice, in particular on issues concerning compliance and equality.'),
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	(88910,4837,'content','December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nIt is important to understand that Islam is the official religion of the country, pursuant to the Constitution of the UAE.  Gambling is prohibited in Islam, and this forms the basis for the federal and local emirate laws that prohibit all forms of gambling, as well as the advertising of any form of gaming.\r\n\r\nIn many jurisdictions, the legality of gambling and gambling-related advertisements is contentious and continues to be topical.  However, these issues, more often than not, tend to be focused on concerns with children or minors’ exposure to gambling culture, as well as protecting vulnerable people, as opposed to having a religious element driving the need for regulation.\r\n\r\nThe UAE regime is relatively straight-forward: subject to the exceptions we set out below, gambling and any gambling-related advertising in any way, shape or form is prohibited.  Our view is that this includes offering online gambling services to UAE residents from offshore.\r\n\r\n<strong>Exceptions</strong>\r\n\r\nDespite the blanket prohibition on gambling, it is permissible to run competitions (including raffles) in the UAE, subject to prior permission from the relevant regulatory department.\r\n\r\nAdditionally, the UAE Civil Code permits wagers in specific circumstances – namely in respect of racing, shooting, sports and trials of strength.  A number of requirements must be met: there must be certainty of the prize, certainty of the person who must give the prize, and certainty of the subject matter and scope of the competition.\r\n\r\nHowever, it is not as simple as trying to work within the requirements set out in the Civil Code.  A prize in a contract for betting can only be paid to the winner – being the party to the contract who wins the contest through his own efforts and skill.  The implication is that any arrangement that may lead to the prize being paid to a third party (i.e. someone who is not a participant in the race/contest, etc.) would be outside the scope of what is permitted - and thus illegal ‘gambling’ and subject to the criminal provisions that prohibit gambling and which we set out below.\r\n\r\n<strong>UAE Gambling Laws</strong>\r\n\r\nA range of local laws set out the prohibitions on gambling and gambling-related advertising.  Some of these laws expressly set out the prohibition, while others deal with it indirectly.  By this, we mean that given the religious element underpinning the law of the UAE, there are a number of other prohibitions on acts which are contrary to public morality, or which are contrary to Islamic beliefs.  It is important to note that these laws not only apply to those in the UAE, but may also have extra-territorial application, depending on the circumstance.\r\n<ol>\r\n 	<li>The Penal Code defines gambling as “a game whereby each of the parties thereto agrees – in case he is the loser – to pay the winner a certain sum of money or any other thing agreed upon”.  It makes gambling an offence punishable by imprisonment and/or a fine.  It also prohibits the opening or managing of a venue for gambling, or organizing a game of chance in a public place or in a venue for gambling.</li>\r\n 	<li>The Cyber Crimes Law sets out a penalty of imprisonment and/or a fine for anyone caught establishing, managing or running a website, or transmitting, sending, publishing or re-publishing through a computer network gambling activities and whatever may afflict public morals. It also prohibits producing, creating, preparing, sending or saving for exploitation, distribution or display to others through a computer network, gambling activities and whatever may afflict public morals.</li>\r\n 	<li>There are also media regulations which require media corporations and outlets to comply with the various standards in relation to advertisements which are broadcasted or published through such corporations.  The standards relevant to gambling-related advertisements are:</li>\r\n</ol>\r\n<ul>\r\n 	<li> Not to offend God and Islamic beliefs and to respect other divine religions.</li>\r\n 	<li> Not to publish any pictures or words that may breach public morals.</li>\r\n 	<li> Not to spread and disseminate information which may prejudice children and women and any other social categories and provoke violence and hatred.</li>\r\n</ul>\r\n<ol>\r\n 	<li class=\"clear-space\">4.  The Telecommunications Regulatory Authority implements an “Internet Access Management” policy.  This policy requires internet service providers to block access to websites providing illegal content or content that is inconsistent with the moral or public norms of the UAE.  As a result, access to gambling related content is generally blocked from viewing on the internet in the UAE.</li>\r\n</ol>\r\n&nbsp;'),
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	(88428,4809,'content_description','On 18 September 2013, Dubai Law No. 7 of 2013 (concerning the Dubai Land Department) came into force (‘the Land Department Law’), having been published in Issue No. 371 of the Official Gazette. '),
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	(88430,4809,'pageSummary','On 18 September 2013, Dubai Law No. 7 of 2013 (concerning the Dubai Land Department) came into force (‘the Land Department Law’), having been published in Issue No. 371 of the Official Gazette.'),
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	(88442,4809,'_yoast_wpseo_metadesc','On 18 September 2013, Dubai Law No. 7 of 2013 (concerning the Dubai Land Department) came into force (‘the Land Department Law’), having been published in Issue No. 371 of the Official Gazette.'),
	(88443,4810,'content','November 2013\r\n\r\n<hr />\r\n\r\nOman’s interest in establishing free zones dates back at least a decade. Oman initiated the creation and development of economic free zones with the enactment of Royal Decree 56 of 2002 (concerning establishment of free zones in Oman) (“Free Zones Decree”).\r\n\r\nCompanies operating in such free zones are not subject to certain Omani law requirements.\r\n\r\nFurthermore, under the Free Zones Decree, such companies are exempt from:\r\n<ol>\r\n 	<li>taxes applicable to on-shore entities in Oman (normally 12% of their profits);</li>\r\n 	<li>local ownership restriction (normally of 30 % of the capital of an entity);</li>\r\n 	<li>provisions of Commercial Agency Law that require a business to have a local agent or distributor to carry out distribution of goods;</li>\r\n 	<li>restrictions on the repatriation of profits and investments;</li>\r\n 	<li>foreign currency restrictions; and</li>\r\n 	<li>commodities’ import/export custom duties within the free zone in question (unless the goods are brought out of the free zone into Oman or any other GCC country when the standard 5% GCC customs duty will apply).</li>\r\n</ol>\r\nThe Free Zones Decree resulted in the establishment of three free zones:\r\n<ol>\r\n 	<li>Sohar Free Zone (“Sohar Zone”)</li>\r\n 	<li>Salalah Free Zone (“Salalah Zone”)</li>\r\n 	<li>Al Mazyounah Free Zone (“Almaz Zone”)</li>\r\n</ol>\r\nIn this article we provide an overview of each of these free zones.\r\n\r\n<strong>SOHAR ZONE</strong>\r\n\r\n<strong>Legal Foundations: </strong>\r\n\r\nThe Sohar Zone was established under H.M. Sultan Qaboos Royal Decree 123 of 2010  (“Decree”).  In accordance with the Decree, the Sohar Zone is managed by Sohar Industrial Port Company SAOC and operated by its subsidiary, Sohar Free Zone Company LLC (“SoharCo”).\r\n\r\nSohar Free Zone Law, issued under the umbrella of the Free Zones Decree, governs business operations carried out in the Sohar Zone.\r\n\r\n<strong>Location:</strong>\r\n\r\nThe Sohar Zone is located at Sohar in the Batinah Region of Oman, near Sohar Industrial Port and as such within an easy reach of Muscat (about 200 km away), Dubai (about 180 km away), Abu Dhabi and Al Ain ports, KSA ports and those of the Indian subcontinent.\r\n\r\n<strong>Permitted Activities:</strong>\r\n\r\nThe following business activities can be conducted in or from the Sohar Zone:\r\n<ul>\r\n 	<li>Steel manufacturing and processing.</li>\r\n 	<li>Manufacturing, production, trade and logistics in:</li>\r\n</ul>\r\n<ol>\r\n 	<li>oil and gas;</li>\r\n 	<li>petrochemicals;</li>\r\n 	<li>minerals and aggregates;</li>\r\n 	<li>ceramics;</li>\r\n 	<li>food (with cold storage and warehouse facilities available).</li>\r\n</ol>\r\n<strong>Why It’s Worth Considering</strong>\r\n\r\nApart from the general benefits set out under the Free Zones Decree, Sohar Zone businesses can benefit from:\r\n<ul>\r\n 	<li>no minimum capital requirement;</li>\r\n 	<li>getting all the approvals required to start and proceed with their operations processed through and with the assistance of SoharCo;</li>\r\n 	<li>a ten-year corporate tax exemption (extendable) provided that at least 15% of the business’s staff are Omani nationals;</li>\r\n 	<li>lower insurance premiums resulting from the use of the Strait of Hormuz;</li>\r\n 	<li>relaxation on Omanisation to 25% only.</li>\r\n</ul>\r\n<strong>Licensing Considerations: </strong>\r\n\r\nA business that wishes to operate in the Sohar Zone needs to apply to SoharCo for a license to be registered as:\r\n<ol>\r\n 	<li>a working company (a Sohar Zone LLC),  i.e. a limited liability company (with at least two shareholders) that leases land operating under: (i) industrial; (ii) light manufacturing and assembly; or (iii) logistics license; or</li>\r\n 	<li>a third party service provider, providing ancillary services that support the operations of Sohar Zone LLCs.</li>\r\n</ol>\r\nSoharCo acts as a “one stop shop”,  arranging all required administrative permits and approvals from other Omani administrative (public or governmental) authorities.\r\n\r\nThe license requires annual renewal. Should the license applicant be required to obtain a special permit (e.g. in order to execute civil works on their plot of the leased land, outside the plot within common areas e.g. laying a pipeline or transport some goods), it shall apply to SoharCo for the relevant permit and obtain the same before commencing any such works.\r\n\r\n<strong>Licensing Process:</strong>\r\n\r\nFor service providers there is no formal licensing process, but for Sohar Zone LLCs the licensing process entails the following stages:\r\n<ol>\r\n 	<li>Submission, by the applicant, of a plot of land lease application form and license application form with SoharCo.</li>\r\n 	<li>Review of the application by SoharCo.</li>\r\n 	<li>Agreement, between the applicant and SoharCo, on land lease commercial terms (e.g. cost, term, etc.).</li>\r\n 	<li>Application, by SoharCo, for and on behalf of the applicant, to the Ministry of Environmental and Climate Affairs for applicant license no objection.</li>\r\n 	<li>SoharCo due diligence on the applicant.</li>\r\n 	<li>Application approval by SoharCo.</li>\r\n 	<li>Payment of fees (land lease, incorporation and license) by the applicant to SoharCo.</li>\r\n 	<li>Applicant license issuance by SoharCo; and</li>\r\n 	<li>Entry into a land lease agreement between SoharCo and the applicant.</li>\r\n</ol>\r\n<strong>SALALAH ZONE</strong>\r\n\r\n<strong>Legal Foundations: </strong>\r\n\r\nThe Salalah Zone was established under Royal Decree 62 of 2006, issued under umbrella of the Free Zones Decree.  It has been further governed by the Implementing Regulation No. 1 of 2006.\r\n\r\n<strong>Location:</strong>\r\n\r\nThe Salalah Zone is situated on the south east of the Arabian Peninsula, on the import – export sea route between the MENA region and Asia.\r\n\r\nSalalah is home to one of the largest deep water ports in the world.\r\n\r\n<strong>Permitted Activities:</strong>\r\n\r\nThe following business activities can be undertaken from or in the Salalah Zone:\r\n<ul>\r\n 	<li>Chemical and material processing.</li>\r\n 	<li>Manufacturing and assembling.</li>\r\n 	<li>Logistics and distribution.</li>\r\n</ul>\r\n<strong>Why It’s Worth Considering:</strong>\r\n\r\nApart from the general benefits set out under the Free Zones Decree, Salalah Zone businesses can benefit from the no minimum capital requirement.\r\n\r\n<strong>Licensing Considerations: </strong>\r\n\r\nA business that wishes to operate in the Salalah Zone needs to apply to the Salalah Zone for one of the following licenses:\r\n<ol>\r\n 	<li>A general trading license, in order to import, export, distribute and store goods;</li>\r\n 	<li>A specific trading license, in order to import, export, distribute and store specific goods named on the license;</li>\r\n 	<li>An industrial license, in order to import raw materials, carry out the manufacturing of specified products and export finished products (subject to clearances from respective ministries); or</li>\r\n 	<li>A services license, in order to carry out the services specifically named on the license, within the Salalah Zone, that correspond with the services provided by its parent company in on-shore Oman.</li>\r\n</ol>\r\nA Salalah Zone entity can be set up as an establishment, a company, a branch of a local or foreign business.\r\n\r\n<strong>ALMAZ ZONE</strong>\r\n\r\n<strong>Legal Foundations: </strong>\r\n\r\nThe Almaz Zone was established under Royal Decree 103 of 2005.  It is further governed by Decision No. 22 of 2010 (Issuance of Regulation Organising Al Mazyounah Free Zone).\r\n\r\n<strong>Location:</strong>\r\n\r\nAlmaz Zone is located in Oman’s southern region of Dhofar, only 4 km away from the Yemeni border, 14 km away from Shahn City, Yemen.\r\n\r\n<strong>Permitted Activities:</strong>\r\n\r\nThe following business activities can be carried out from Almaz Zone:\r\n<ol>\r\n 	<li>Commercial, i.e.: (i) commodities storage; (ii) vehicles display and storage; (iii) vehicle spare parts trading; (iv) heavy equipment storage and trading; and (v) fruits and vegetables storage and trading.</li>\r\n 	<li>Light crafting and industry, i.e.: operating/manufacturing (i) packing, soaring, and filling factories; (ii) foods, juices, and agricultural minor trade production factories; (iii) maintenance workshops, for small, medium and heavy duty equipments and vehicles; (iv) maintenance and requalification of vehicles workshops; and (v) light plastic; (vi) readymade garments &amp; textiles; (vii) wood/other light manufacturing.</li>\r\n 	<li>Support services, i.e.: providing (i) transportation and distribution services across the Oman-Yemen border; from- to both Omani &amp; Yemeni sides; (ii) customs expedition services; (iii) catering Services; and (iv) up and download services.</li>\r\n</ol>\r\n<strong>Why It’s Worth Considering:</strong>\r\n\r\nApart from the general benefits set out under the Free Zones Decree, Almaz Zone businesses can benefit from:\r\n<ul>\r\n 	<li>exemption of profits from the income tax for 30 years.</li>\r\n 	<li>decreased Omanisation requirement to 10% only.</li>\r\n 	<li>no work permit/visa requirement for Yemeni staff.</li>\r\n 	<li>obtaining Omani national certificates of origin on goods produced in Almaz Zone.</li>\r\n 	<li>Licensing Considerations:</li>\r\n 	<li>A business that wishes to operate in the Almaz Zone needs to apply to Almaz Zone authority for a license.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nThere are many reasons to come to Oman.  For many their first thought may be the alluring activities for visitors, including shopping at the Muscat Gold Souk, enjoying a walk by Mutrah Corniche or having a dinner at Shangri-La Barr Al-Jissah Resort &amp; Spa. There are however equally alluring business opportunities, particularly with the free zones described above, whose purpose is to enable local and international businesses to flourish.\r\n\r\nFor those who want to see their business grow but also enjoy a little peace and quiet and the camaraderie of a tight-knit expat community, Oman it is.'),
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	(98820,5369,'content','April 2016\r\n\r\n<hr />\r\n\r\nQatar is also the world’s leading producer of liquefied natural gas and liquid fuels using gas-to-liquids technology.  So, it is no surprise that Qatar has emerged as one of the most prosperous countries in the world.  With one of the highest GDP per capita figures in the world, a high growth rate and strong Government finances, Qatar has predictably attracted businesses and professionals from around the globe. Interest in the country has also increased following the award of hosting rights for the 2022 FIFA World Cup and other marquee sporting events.\r\n\r\nAt the same time, Qatar has been developing its legislative framework.  This article summarises some of the key developments.\r\n\r\n<strong>Foreign Investment</strong>\r\n\r\nIn 2000, Qatar issued Law No. 13 concerning Foreign Capital Investment in Economic Activities (the Foreign Investment Law).  The Foreign Investment Law sets the current ground rules for foreigners wishing to establish business enterprises and other investments in Qatar.  The Foreign Investment Law allows foreigners to directly invest in almost all sectors of the economy through foreign ownership of 49% of a company’s capital (some exceptions include banks and insurance companies). In addition, it permits foreign investors to own up to 100% of businesses in the agriculture, industry, health, education, tourism, development/exploitation of natural resources, energy and mining sectors.  Subsequent amendments to the Foreign Investment Law have allowed 100% foreign ownership in the areas of information technology, technical and consultancy services and entertainment, sport and cultural services and distribution services.  Any exemption to be granted will be subject to Ministerial discretion.  The rules relating to foreign ownership of listed public companies (which had previously been restricted to 25% of shareholding) have also been updated, and these have now been brought into line with the 49% rule set out above.\r\n\r\nThe rights of foreign investors in Qatar were also significantly widened with the establishment in 2005 of the Qatar Science and Technology Park (QSTP) and the Qatar Financial Centre (QFC).  The QSTP (supervised by Qatar Foundation) was established with the aim of promoting scientific and technological research and allows non-Qatari persons (whether natural or legal) to own a business licensed to exercise an activity within the QSTP and in line with those aims.\r\n\r\n<strong>Companies </strong>\r\n\r\nThe Commercial Companies Law was established by Law No. 5 of 2002 which, together with the Commercial Register Law (Law 25 of 2005) and the Foreign Investment Law, represents the main legal framework for companies looking to conduct business operations in Qatar.  The Commercial Companies Law establishes the legal forms that entities may take in Qatar and the methods for their registration.\r\n\r\nIn 2015, a new Commercial Companies Law (the New Companies Law), Law No. 11 of 2015, was passed.  The New Companies Law introduced some material amendments affecting entities currently registered in Qatar (MEC), and those to be registered in the future. The most significant change is the removal for limited liability companies of the minimum share capital requirement, which is intended to promote the establishment of small and medium enterprises in Qatar.\r\n\r\n<strong>Qatar Financial Centre</strong>\r\n\r\nAnother key change introduced in 2005 saw the establishment of the Qatar Financial Centre (QFC).  The QFC is a business and financial centre located in Doha, created as an on-shore jurisdiction separate from the state of Qatar.  It was established by virtue of Law No. 7 of 2005, with the aims of enhancing growth and diversification of Qatar’s economy, and providing an attractive platform for firms to establish and do business in Qatar and the region. The QFC provides a transparent environment and offers flexibility to conduct business, inside or outside Qatar.\r\n\r\nThe QFC was first set up to offer domestic and international firms the opportunity to establish and provide a broad range of financial services related to banking, asset management and insurance businesses. In addition to the financial-type regulated activities, the QFC expanded the scope of its permitted activities to include non-regulated activities that are not financial-type services.\r\n\r\nThe QFC offers its own legal, regulatory, tax and business infrastructure, which allows 100% foreign ownership, unlimited repatriation of profits and a competitive rate of 10% corporate tax on locally-sourced profits. Since the QFC is not a separate geographical zone, all entities in the QFC operate on a fully onshore basis. This enables them to access the local market and operate from more than 50 locations all over Doha, with no restrictions on the currency in which they can trade.  The QFC offers its own civil and commercial courts system, as well as its own stable and transparent tax regime.\r\n\r\nThe QFC has recently implemented several legal and structural enhancements. Changes have been introduced to clarify various aspects of the QFC legislation, in order to give QFC entities more certainty and flexibility in how they operate.  In an attempt to provide a more efficient registration or incorporation process, QFC agencies now respond to applications to set up in the QFC in a shorter time frame.\r\n\r\nThe QFC has also expanded the scope of the non-regulated activities that can be undertaken through the QFC. The changes include the broadening of the definition of “professional services” to include “any business which provides qualified business-to-business services” such as management consulting, IT services, media, events management, engineering and environmental consulting.  A wider range of structures for investing and holding assets, or managing business interests and operations, can also now be accommodated.\r\n\r\n<strong>E-commerce</strong>\r\n\r\nKeeping pace with the substantial technological advancements of our age, in 2010 Qatar passed its first comprehensive e-commerce law.  This aims to facilitate and provide a clear legal framework to address matters such as e-signatures, e-documents and authentication.  It covers e-commerce transactions in Qatar, including e-Government services.  The law was modelled on the UN and the EU models and directions on e-commerce and electronic signature and other international practice.  The law does not apply to documents relating to family and personal status, documents that by law must be notarised and negotiable instruments.\r\n\r\n<strong>Cyber-crime and Anti-Money Laundering </strong>\r\n\r\nIn relation to crimes involving businesses, in 2010 Qatar established Law No. 4 on Combating Money Laundering and Terrorism Financing which has put into place a more robust identification and reporting regime in line with international standards and in 2014 Law No 14 put into place the Cybercrimes Protection Law in an effort to increase awareness and allow for a more stringent regime for combating cyber-crime. The legislation is intended to safeguard the country’s technological infrastructure and strengthen cyber security.\r\n\r\nThis article highlights a small number of the profound legislative changes in Qatar which have taken place over the past 15 years. It is expected that momentum will continue in the future with several new laws on the horizon. Both investors and businesses set up in Qatar are now eagerly awaiting the issuance of the draft Arbitration Law which is based on the UNCITRAL Model Law. Furthermore, a new Commercial Agency Law is said to be in the drafting phase.'),
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	(98796,5367,'pageSummary','The Amir of Kuwait’s Vision 2035 is aimed at transforming Kuwait into a financial and economic hub both in the region and globally.'),
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	(98805,5368,'content','April 2016\r\n\r\n<hr />\r\n\r\nA vast range of treaties and primary and secondary legislation now pervades the legislative system with a key focus: to modernise the legislative framework and bring it into line with some of the other more mature global economies. In turn, Oman’s economy has grown and flourished. This growth occurred during a period in which the price of Oman’s main export, oil, peaked and the Government of Oman recognised that a plan for economic diversification ought to become a priority. That plan became urgent in the latter part of 2014 and during 2015 as Government revenues reduced in line with the falling cost of oil. In line with previous iterations, Oman unveiled its ninth five year plan under the Vision 2020 economic programme to reflect prudent and realistic goals for the future.\r\n\r\nThe key features of the most recent five year plan for Vision 2020 are increasing private investment and reducing non-core expenditure. The Government has outlined five promising sectors likely to benefit from investment: manufacturing, transport and logistics, tourism, fisheries and mining. Set out below is a summary of some of the legislation and other bodies of law which are likely to have an impact on these five promising sectors.\r\n\r\n<strong>Foreign Investment Law: – Foreign Investor Independence</strong>\r\n\r\nThe current foreign capital investment law was passed in the early 1990s and offered a compromise against a complete opening up of the private sector. While offering the foreign investor the opportunity to own up to 70% and, in certain limited situations 100%, of an Omani company, the law was designed to ensure that Omani nationals were not excluded from participation in the private sector. The law worked well for many years although critics argued it created an unnecessarily high entry barrier to the Omani economy because it required investors to raise a minimum of approximately USD 400,000 as a condition to trading the law favoured the national population by imposing a requirement on the foreign investor to partner with an Omani shareholder.\r\n\r\nIt was not until the end of 2015 that the Government, in consultation with the World Bank, decided the time was right for further reform and economic development and a draft of the new foreign investment law was passed through the legislative process for approval. The prevailing view in the business community is that the new law will significantly reduce some of the thresholds and barriers to trade which critics aimed at the old law and there could be scope for foreign investors to own 100% of companies in certain business sectors. When the law finally arrives it will mark a significant turning point in the private sector and may serve to act as the catalyst for a private sector growth spurt.\r\n\r\n<strong>US Free Trade Agreement: – Equal Treatment For US Investors In Oman (And Omani Investors In The US)</strong>\r\n\r\nThe US entered into a free trade agreement (FTA) with Oman in January 2009 for the purpose of eliminating tariffs, expediting movement of goods and services and strengthening protection for investors. The agreement resulted in the prevalence of US goods in Oman rather than Omani goods entering the US market but one of the key benefits for US investors was the opportunity to invest in Oman without the requirements of the Foreign Capital Investment Law; the US had negotiated a key arrangement providing US investors with a competitive edge in the Omani economy and allowed big hitters from the US to successfully tender and win oil and gas contracts quicker than might be the case without the FTA. One of the defining features of the FTA is the reciprocal benefit available to Omanis investing in the USA. While this benefit is of limited application in the current climate, it may become more valuable as the Omani private sector strengthens and businesses look for new markets.\r\n\r\n<strong>Recognition Of Foreign Arbitral Awards: Providing Certainty </strong>\r\n\r\nOman formally acceded to The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1997. The accession provided greater comfort to foreign investors in Oman and to businesses which were indirectly connected to projects in Oman. Companies in the infrastructure and construction sector have cited the certainty that comes with having arbitral awards enforced and upheld in countries such as Oman where large scale projects are still a relatively new phenomenon and the court system has not yet had the opportunity to acquaint itself with the type of complex claims often made in large scale infrastructure projects. As time moves on so too does Oman, and the Chamber of Commerce recently announced the development of an arbitration centre to enable disputes which have originated in Oman to be settled in Oman without investors having to seek the comfort of arbitration centres outside the Middle East.\r\n\r\nThe Civil Code:– A Compendium Of Laws\r\n\r\nThe Civil Code which was promulgated in 2013 filled some of the holes created by such a fast growing economy. Not only did it restate the Commercial Companies Law of 1974, but it provided additional framework on a wide range of areas such as employment, real estate, banking and finance, construction, personal injury and contracts. While a relatively new law, it is perhaps one of the most commonly consulted because of its range of application and applicability to international transactions.\r\n\r\n<strong>The Creation Of A Public M&amp;A Regime</strong>\r\n\r\nAs the Muscat Stock Exchange evolved, its constituent public companies began to grow and attracted the attention of larger foreign acquirers. The Government recognised that the existing legislation was devoid of provisions which sought to protect shareholders of a public company from a potentially more aggressive acquirer. The introduction of the Takeover and Acquisition law was an interesting moment because it strongly resembled legislation taken from a jurisdictions where takeovers of public companies occur almost all the time and under all market conditions. The message provided by the legislation appeared to be a very strong and assertive statement that Omani public company shareholders will be treated fairly and equally under all circumstances and that takeovers would be strictly regulated.  The real strength in these regulations is that they come with the force of law (rather than a code) by which companies are required to comply and sanctions are likely to be imposed for non-compliance.\r\n\r\n<strong>Competition Law: – Lowering The Barriers To Trade</strong>\r\n\r\nOne of the key facets of a developing economy is the apparent strength which can sometimes be wielded by enterprises which have some level of dominance over an economy, for example in their ability to control pricing and exclude competitors. As the Omani economy strode forwards, the need to protect smaller market participants from larger players became more important. The result was the Competition and Anti-Monopoly law which drew inspiration from European treaty legislation on the same topic. Abusive behaviour by dominant players was now outlawed, as were agreements which had the effect of restricting competition in the Omani market. A range of prospective mergers affecting trade in Oman would now potentially be subject to approval by the Omani regulator and certain mergers above a certain threshold would not be permitted. How the law is applied in practice remains to be seen.\r\n\r\n<strong>Electronic Transactions Law: – Taking Oman Online </strong>\r\n\r\nA developing economy is at an advanced stage of development when it can lay claim to having legislation which recognises the validity of contracts made electronically and the Electronic Transactions Law does no less than that. As the age of wet ink drifts even further away, more and more contracts are now being concluded electronically. Oman’s Government has long recognised the potential of information technology, its importance to the growth of an economy and the explosion of the internet and social media. For this reason it gave validity – and accordingly certainty – to online transactions made between individuals. Companies offering products and services online had to abide by a minimum standard with respect to collection and processing of personal data and employ minimum standards to protect the security of their systems. Together with the Cyber Crimes Law, Oman has made a good start in building up a legislative repository of laws which govern some of the issues arising out of doing business on the worldwide web.\r\n\r\n<strong>The Future</strong>\r\n\r\nLegislative activity in Oman has been pronounced during the last ten to fifteen years. How this legislation copes not only with adaptation inside Oman’s economy but also with the changing global economy will be a true indicator of its success because with each new law comes expectation of change but also uncertainty in how it will be applied and interpreted.\r\n<div></div>\r\n&nbsp;'),
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	(98790,5367,'content','April 2016\r\n\r\n<hr />\r\n\r\nAs the Kuwaiti economy continues to modernise, there has been a growing acknowledgment that the legal system must expand, as well as become more sophisticated, to handle the requirements of modern businesses.  Seizing the aspirations of the Vision, the government has passed a series of laws governing a range of sectors, including laws relating to the protection of competition, taxation, foreign investment, public-private partnerships (PPP’s), anti-money laundering, regulation of companies, and protection of labour and capital markets.\r\n\r\n<strong>Shaping Policies in Light of the Vision</strong>\r\n\r\nIn 2007, Kuwait passed the Competition Law which aims to ensure fair competition in Kuwait and affects a wide variety of areas, from mergers and acquisitions to the fixing of prices for goods. As with so many other laws passed in recent years, the Competition Law also creates an authority for greater oversight of the protection of competition in Kuwait.\r\n\r\nSince the global financial crisis of 2007-08, Kuwait has continued to strengthen its commercial, legal and regulatory framework. As a direct response to the crisis, Kuwait passed the Financial Stability Law of 2009 and established the Capital Markets Authority (CMA) in 2010. The CMA was established pursuant to the CMA Law in 2010, and is currently the authority responsible for regulating the marketing, offer and sale of securities activities in Kuwait. The CMA law provides a much stronger regulatory framework for securities activities in Kuwait than under the former legal regime that had existed before it. The CMA has also played a crucial role by issuing guidance under the law from time to time.\r\n\r\nMoreover, Kuwait has made great strides in the area of public-private partnerships (PPP’s) with the passage of an initial PPP law in 2008 and its subsequent amendment in 2014. The passage of these laws has facilitated and will continue to facilitate PPP projects throughout Kuwait. Al Tamimi led the local financing of the first PPP project in Kuwait, the Al Zour North Independent Water and Power Project. The amended PPP law has also established the Kuwait Authority for Partnership Projects, to be the chief regulatory body for PPP projects in Kuwait.\r\n\r\nOther efforts have included a modernisation of Kuwait’s corporate income taxations scheme through the passage of Law No. 8 of 2008, and the laws governing companies with the passage of the New Companies Law in 2012 and recently amended under Law No. 1 of 2016. This law is more comprehensive than the previous companies law and provides for more types of companies that can be established in Kuwait. The country has also acknowledged and met international demands for fighting against money laundering and terrorist financing by passing Law No. 106 of 2013 Regarding Combating Money Laundering and Terrorist Financing.\r\n\r\nOne of the most exciting pieces of legislation concerns foreign investment - Law No. 116 of 2013 regarding the Promotion of Direct Investment in the State of Kuwait, known as the “Direct Investment Law”. Pursuant to the Direct Investment Law, which also established an authority for direct investment in Kuwait, foreign companies may be issued investment licenses through which they will have full ownership over a Kuwaiti company.\r\n\r\nThe net effect of establishing these new regulatory bodies is manifold. As with all regulatory bodies, the investment authority is justified by the complexity of certain regulatory and supervisory tasks requiring expertise, the need for rapid implementation of public guidance in certain sectors and the drawbacks of political interference.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIn Kuwait there is a great hope that the country will continue to strengthen its commercial legal framework and realise its full potential in the global economy. While there is still much more to do, such as ensuring the implementation of laws, developing expertise in Kuwait’s court systems and ensuring professionalism in government ministries, Kuwait has made great strides in the development of its commercial legal system and such progress will continue to take place over the years ahead.'),
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	(98749,5365,'content_description','Transforming a Vision into an Economic Reality'),
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	(98751,5365,'pageSummary','Transforming a Vision into an Economic Reality'),
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	(98759,5365,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Dana Al Ghareeb'),
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	(98768,5366,'content','April 2016\r\n\r\n<hr />\r\n\r\nEgypt has suffered major turmoil during the past 5 years but its situation has not been as dramatic as some neighbouring countries.\r\n\r\nA new elected government came to power in 2014 and a new parliament was recently elected in line with Egypt’s new constitution issued in 2014.\r\n\r\nIt is not an easy job for the current government to meet the calls for social justice and to tackle the challenges Egypt faces such as deficits, need for economic reform and reform for healthcare, training and development and education.\r\n\r\nThe government however has taken material steps towards developing Egypt by, first, identifying all the major challenges and second, designing a roadmap with measurable objectives to achieve a more developed Egypt. This was set out in the recently announced Egypt Vision 2030. Egypt Vision 2030 focuses on inclusive development that has social justice at its heart.\r\n\r\nWithout dramatic legislative reform and administrative changes to the outdated bureaucracy that is obstructing Egypt’s development, these aspirations will be difficult to realise. Legislative changes will require cultural changes to accompany their enactment, ie. they must achieve Egypt’s overall objective of attracting more investments to fuel economic growth without being restricted by other legislation or customs.\r\n\r\nEgypt’s legislative challenges have long been on the agenda of many governments to try to find a solution to the thousands of laws which conflict in some instances. Though not sufficient in our view, Egypt has already taken some steps towards legislative development in recent years, both pre and post-2011, and much more is expected from the current parliament.\r\n\r\nSome recent legalisation has provided a good starting point, even though it has had its critics (for example, there have been calls for a unified investment regime rather than the changes introduced in 2015).\r\n\r\nSome of the key legislative reforms that have taken place in Egypt since 2007 can be summarised as follows:\r\n\r\n<strong>Minority Protection - Ministerial Decree No. 12 of 2007 Introducing Mandatory Tender Offers</strong>\r\n\r\nIn 2007, the Minister of Investment issued an amendment decree adding a new chapter to the Executive Regulations of the Capital Market Law 95 of 1992, whereby an additional tier of minority protection was introduced to companies listed by the Egyptian Stock Exchange or those which have undergone an IPO or public subscription whether full or partial, and even if not listed.\r\n\r\nThe amendment, as enacted in March 2007, requires a shareholder who acquires or intends to acquire one third of the share capital, voting rights or convertible bonds of the target company (whether alone or together with a third party as broadly defined to include any person with which an arrangement is made) to submit a tender offer to acquire the entire share capital and voting rights of the target company. The Mandatory tender Offers should generally be unconditional. However, the Egyptian Financial Supervisory Authority may make conditional offers by meeting certain thresholds in certain instances.\r\n\r\nThe obligation to submit a Mandatory Tender Offer is also triggered if a shareholder whose ownership is more than one third but does not exceed 50% of the share capital, voting rights or bonds convertible into shares, acquires in a consecutive 12 months more than an additional 2%. Similarly, shareholders owning more than 50% but not exceeding 75% are obliged to acquire the entire share capital of the target company if said shareholder increased its ownership acquired during a consecutive 12 months by more than 2%. At any point of time, exceeding 75% of the share capital triggers the submission of an offer.\r\n\r\nPursuant to the above, the Mandatory Tender Offer obligation can be triggered for the same shareholder every time it increases its shareholding stake. Additionally, the minority shareholders (owning at least 3% of the target company) have the right to request the shareholder owning 90% during the 12 months following its acquisition to purchase the minorities’ stake in the company.\r\n\r\nThe outlined amendments above have succeeded in securing an additional protection from and supervision of the shareholder(s) who control the target company in a manner that affects the rights of the minority shareholders (whether directly or indirectly through their related parties).\r\n\r\nThe Economic Courts – A More Commercially and economically Responsive Route for Litigation\r\n\r\nThe legal maxim “justice delayed is justice denied” was the impetus for the legislature to promulgate Law No. 12 of 2008 establishing and vesting competence in the Economic Courts to decide on commercial and criminal disputes evolving from commercial and investment laws. These laws include the:\r\n<ul>\r\n 	<li>Capital Market Law;</li>\r\n 	<li>Investment Incentives and Guarantees Law;</li>\r\n 	<li>Trade Law in relation to the transfer of technology, commercial agency, banking transactions and bankruptcy;</li>\r\n 	<li>Telecommunications Law;</li>\r\n 	<li>Anti-Trust Law;</li>\r\n 	<li>Banking Law;</li>\r\n 	<li>IP Law;</li>\r\n 	<li>Law governing joint stock companies, partnerships limited by shares and limited liability companies; and</li>\r\n 	<li>Banking Law and Mortgage Finance Law.</li>\r\n</ul>\r\nThe Economic Courts are intended not only to overcome the lengthy and slow pace of the ordinary court system but also to provide the expertise to satisfy the special nature of the disputes arising from commercial laws.\r\n\r\n<strong>Public Private Partnership Law - Enabling active participation by the private sector</strong>\r\n\r\nThe continued efforts of the Egyptian government to increase private sector involvement in public mega projects and reduce governmental borrowing to finance these projects was encapsulated in the issuance of Law No. 67 of 2010 regulating the Participation of the Private Sector in Infrastructure, Public Services and Utilities Projects (known as the PPP Law). The PPP Law is part of the economic and social reform plan in the field of public utilities services.\r\n\r\nThe PPP Law regulates BOT and BOOT arrangements for infrastructure and public utilities projects executed by the private sector company with a value of not less than EGP100 million. The PPP Law defines the private sector as the companies where the ownership by public entities does not exceed 20% of the share capital.\r\n\r\nThe length of involvement for the private project SPV varies between five years and thirty years guaranteeing the feasibility of the project to the private SPV. Where there is a material public interest, the government can execute the arrangement for more than thirty years.\r\n\r\n<strong>EGX Listing Rules &amp; Related Party Transactions Control</strong>\r\n\r\nFurther to the amendment to the Executive Regulations of the Law No. 159 of 1981 regulating Joint Stock Companies, Partnerships Limited by Shares and Limited Liability Companies (as issued by Decree No. 96 of 1982), an ordinary general assembly of shareholders was required not only to approve related party transactions in advance but to approve each contract separately and allowing the shareholders commercial scrutiny before giving their approval.\r\n\r\nIn line with this amendment, the latest Listing and De-Listing Rules of securities at the Egyptian Stock Exchange (as issued by the Egyptian Financial Supervisory Authority by virtue of Decision No. 11 of 2014) require listed companies to promptly disclose any arrangements concluded with related parties and to demonstrate general assembly approval of the same. Conflicted or concerned shareholders are deprived of their right to vote on the pertinent resolution, which adds another tier of protection to the shareholders not covered under the Companies Law and its Executive Regulations.\r\n\r\n<strong>Law No. 17 of 2015 Amending The Investment Regime in Egypt</strong>\r\n\r\nContemporaneously with Egypt’s Economic Development Conference in Sharm El Sheikh in March 2015, Law No. 17 of 2015 was passed to amend certain provisions regulating investment in Egypt.\r\n\r\nThe amendments touch on certain World Bank business criteria as well as the bureaucratic requirements for investors to obtain the approvals necessary for their projects. The law proposed an integrated unit for approval and allocation of land procedures while awarding certain investment incentives and opening the door for further motivation.\r\n\r\nThe Movables Security Law – a Step Towards Banking Secured Transactions\r\n\r\nLaw No. 115 of 2015 regulating the grant of banking loans against movable securities (known as the Movables Security Law) was passed as a response to the need for more secured grant of facilities by banks and financial institutions especially to small and medium size enterprises (“SMEs”) which in most cases lacked sufficient collateral (ie. real estate and other immovable assets).\r\n\r\nThe Movables Security Law is a step to encourage and expand SMEs and micro financing through allowing non-possessory pledges to be arranged over movable assets and electronically registered in a special record established for this purpose.\r\n\r\nThe movable assets that can be used as collateral under this Law include, in addition to movables existing at the date of the facility, future movables expected to be possessed by the borrower or guarantor in the ordinary course of business as well as intangible movables. This would include, without limitation, outstanding or deferred debts, banks credit accounts (including saving and current accounts), equipment and machinery, trees, agriculture crops, animals and birds, minerals before extraction as well as innovation rights associated with patents trademarks and copyrights.\r\n\r\nThe register in which the immovable assets are recorded would include sufficient information to allow the financing bank or institution to trace and undertake enforcement procedures in the case of disposal by the borrower or guarantor.\r\n\r\nNew Importation Regulations a Combined Strategy between the Government &amp; the Central Bank of Egypt\r\n\r\nThe Egyptian Government together with the Central Bank of Egypt (“CBE”) in a series of successive decrees and circulars have adopted a new currency support strategy aimed at minimising the importation of unnecessary or luxury finished products and thereby lifting pressure on the Egyptian pound.\r\n\r\nThe strategy was first put into force by virtue of the Resolution No. 992 of 2015 issued on 31 December 2015, which requires exporters to Egypt of certain products including certain food products, dairy products and electrical equipment as well as certain accessories and other products outlined in the resolution, to register their plants in Egypt in order for these products to be cleared for trading therein. Products of unregistered manufacturers or trademark holders cannot be imported into Egypt.\r\n\r\nThis resolution was misperceived to be a ban on importation, but instead it provides a more regulated importation climate where importation of trivial or unnecessary goods can be controlled. This further guarantees an additional route for trademark counterfeit control since only products of registered manufacturers and trademarks holders will be allowed.\r\n\r\nThe above resolution was issued simultaneously with successive CBE circulars that regulated the financing of importation transactions and provision of documentary credit services. This strategy is aimed at allowing the CBE to control the transfer of foreign currency by importers that do not have sufficient solvency or importing goods which are considered unnecessary in the current economic climate.\r\n\r\nThe CBE has later eased deposit and withdrawal restrictions on foreign currency followed by an historic devaluation of the Egyptian pound along with offering attractive dollar and Egyptian pound investments at local banks.\r\n\r\nThese steps are collectively targeting the following:\r\n<ul>\r\n 	<li>Reduction of unnecessary importation particularly when it causes a de facto dumping of counterfeited projects;</li>\r\n 	<li>Increasing investment by minimising concerns as to the value of the currency; and</li>\r\n 	<li>Mitigating the risks of black market trade and moving towards its eradication.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nAlthough Egypt has made several legislative improvements and countless changes over the past 25 years, it is our view that much more is needed to achieve the following:\r\n<ul>\r\n 	<li>Increase the speed of doing business and speed of resolving disputes;</li>\r\n 	<li>Develop the overall justice system; and</li>\r\n 	<li>Abolish control by bureaucracy and improve the capability of public servants to meet international standards.</li>\r\n</ul>\r\nSuch improvements will require the currently elected parliament to implement further changes soon. The approach needed is substantive rather than superficial. Three examples of this can be listed below:\r\n<ul>\r\n 	<li>\r\n<div>Social justice cannot be furthered without a strong civil service system based on qualitative measures; therefore a law digging deep down on the merits is urgently required;</div></li>\r\n 	<li>\r\n<div>Social justice cannot be furthered without attracting more foreign investment and the latter will not happen without reducing obstructive bureaucracy and its deep-routed culture. This role should be assigned, when it involves investment, to well-trained and competent civil servants who rely on current or forthcoming legislation; and</div></li>\r\n 	<li>\r\n<div>The justice system cannot be further developed without increasing the number of judges and setting time barriers on resolving disputes as well as cost measures to limit frivolous lawsuits.</div></li>\r\n</ul>\r\nThese are not impossible changes but will require detailed debate and immediate implementation by the parliament. We hope this will be the approach it adopts when executing its legislative functions to meet Egypt’s demands for a better future. A version of this article first appeared in IFLR Magazine, April 2016.'),
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	(98745,5365,'content','April 2016\r\n\r\n<hr />\r\n\r\nSustainability, fairness and competitiveness. These are the pillars which lie at the heart of the Bahrain Economic vision 2030 (“Bahrain Vision”) - a vision that has sparked a subsequent stream of on-going economic and institutional reforms since its launch in 2008. Bahrain’s economy has enjoyed significant prosperity over the last few decades: real GDP growth at 4.5% (2014), direct foreign investment and a thriving financial sector are just a few of several contributing factors linked to its economic success. However, a key area of focus within the national strategy is diversification. Bahrain’s status as a ‘regional pioneer’ has spanned almost a century. As  the first GCC State to start an economic diversification strategy that favoured non-oil industries in the 60’s, the Kingdom was also, historically, the first  to establish a Chamber of Commerce and a banking sector, to introduce democratic reforms and, most recently, allow Parliament to amend the state budget- to name but a few.  Bahrian continues to shift to a productive and globally competitive economy, inherently shaped by the government and facilitated through a booming private sector.\r\n\r\nSince gaining independence in 1971, Bahrain has continued to steadily develop into a modern state with organised political, administrative and legal institutions. In a world that is increasingly interconnected, it cannot be denied that there is a constant spill-over effect that comes into play when assessing economic, legislative and social policies. The Bahrain Vision is simply another means by which the Kingdom will continue its growth and expansion into the future.\r\n\r\nBahrain’s on-going ascendancy into becoming an essential international player can be evidenced by observing its willingness to ensure that legislation is constantly being altered and transformed so that it is in line with its global counterparts. This is an important component promulgated by the Bahrain Vision, which sets ambitious targets to secure the Kingdom’s future.\r\n\r\nThis article will explore some key legislative changes that were implemented with this comprehensive vision in mind.\r\n\r\n<strong>Electronic Transactions Law - Gateway into the Esoteric</strong>\r\n\r\nGiven that the majority of business and administrative tasks (and increasingly, even social interactions) are conducted online, the introduction of Legislative Decree No. 28 of 2002 with respect to Electronic Transactions (the “E-Transactions Law”), placed Bahrain on an international platform that is in keeping with the constantly evolving zeitgeist of the time.\r\n\r\nThe E-Transactions Law governs the vast obscure abyss that is the web; debates surrounding the notorious difficulties in regulating this area remain highly relevant to this day. However, the technological revolution has undoubtedly played a key role in speeding up arduous procedural transactions that are now largely conducted online, thereby significantly cutting both time and costs. The E-Transactions Law extensively covers all areas, from the legal recognition of electronic records to the formalities surrounding the formation and receipt of contracts online. Article 24 also creates a severe penalty for cyber crime or fraudulent behaviour, to act as a powerful deterrent for such acts: for instance, a person who intentionally creates, publishes, alters or otherwise uses a certificate or an electronic signature for a fraudulent or other unlawful purpose, is liable to imprisonment for a term of up to 10 years, and a maximum fine of  BD100,000 (or either penalty).\r\n\r\n<strong>The Labour Law - Empowering Women and Workers with a Voice</strong>\r\n\r\nThe Labour Law for the Private Sector Legislative (Decree No.36 of 2012) (the “New Labour Law”) came into effect in September 2012, and repeals and replaces the old Labour Law for the Private Sector (No.23 of 1976 (the “Old Law”).\r\n\r\nThe negligible increase in the real income of the average Bahraini has, over the last decade, progressively become a cause for concern, and an undesirable trend that has hindered the evolution of Bahrain’s Vision. As a result, the New Labour Law heralded the introduction of much sought-after legislative amendments. Particularly worthy of praise is the recognition of the rights of domestic staff (including gardeners, cooks and drivers) in Bahrain. Such employees are now hired on a contractual basis, and in many respects receive the same legal status as their private-sector employed counterparts. This amendment is aimed at addressing the issue of human trafficking, and has laid the foundations for future reform - given that the New Labour Law does not include basic protections such as weekly rest days, a minimum wage and limits on working hours, legislation exclusively protecting the rights of domestic staff (such as in Kuwait), which we understand is currently being considered.\r\n\r\nHowever, despite its overall commendable reformative precept, the New Labour Law has also been met with a healthy amount of scepticism - from employers and employees alike. With regards to the latter, perhaps one of the greatest shortcomings of this piece of legislation is its near silence on minimum wage requirements. Instead, under Part 6, wages are defined as “the total remuneration payable in cash or in kind to an employee under an employment contract”, and includes additional increments, gratuity payments and allowances, if any. Article 16 alludes to the acceptance of minimum wage, yet the topic is one that remains shrouded by ambiguity and ought to be included in future reforms).\r\n\r\nThe New Labour Law has also introduced further recognition of women’s rights, resulting in the increase in the period of maternity leave to 60 days. Female employees have also been given the right to take up to six months without pay, up to three times throughout her period of service with the employer for the purposes of caring for her child if the child is under six years of age. The right of women to undertake more manual forms of labour has also been extended.\r\n\r\nProvisions in relation to non-discriminatory practices are also covered. For instance, Article 39 strictly prohibits wage discrimination whether based on sex, ethnicity, language, religion or belief.\r\n\r\nAn expedited resolution for labour disputes has also been introduced (set out in Part Thirteen of the New Labour Law) which under the 1976 legislation took up to four or five years to resolve through the courts. Compensation calculations for unfair dismissal cases, based on the form of employment contract in question, have also been implemented.\r\n\r\nAdditionally, and in line with the Bahrainisation strategy whereby employers are required to give priority to Bahraini nationals when looking to hire, the New Labour Law states that companies may not terminate a Bahraini employment contract in favour of keeping a foreign employee if both have the same qualifications.\r\n\r\nBy attempting to create an environment of greater transparency, accountability and establishing anti-discriminatory safeguards, the New Labour Law is an additional component that will create a large impact in bolstering the Bahrain Vision guiding principles.\r\n\r\n<strong>Consumer Protection - Promoting an Ethos of Fairness and Honesty</strong>\r\n\r\nIn keeping with the aim to honour sustainability, fairness and competitiveness, consumer protection laws were recently stepped up in late 2012 with Law No 35 of 2012. Bahrain’s Ministry of Industry and Commerce (“MOIC”) now has the right to assign inspectors to scrutinise documents provided by merchants on new products that are to be introduced in the market.\r\n\r\nThe law also allows for inspection of shops and businesses on a regular basis to check existing products.\r\n\r\nInspectors with judicial authority will also have the right to take action on violations committed by businesses after substantial evidence has been provided or through random inspections.\r\n\r\nThe protection of consumers promotes an atmosphere of fairness within an effective legislative framework. Such an environment will play a prominent role in consumer transactions and have a trickle-down effect in accordance with the Bahrain Vision.\r\n\r\n<strong>The Commercial Companies Law - Transforming Bahrain One Investment at a Time</strong>\r\n\r\nOne of the main principles which Bahrain’s Vision is guided by is the principle of competitiveness. Bahrain aims to attain a high level of competitiveness in a global economy. A competitive market is one which combines high quality with increased productivity. In line with this concept, the government of Bahrain aims to attract both local and foreign companies to invest in the Kingdom by offering several attractive incentives to high value-add industries that want to do business in the region as a whole, and in Bahrain specifically. Attractive aspects of doing business in Bahrain include the quality of public services, a well developed infrastructure, and an appealing living environment.\r\n\r\nLegislative Decree No. 50 of 2014 amending the Commercial Companies Law (the “New Companies Law”) introduced a number of significant changes that are more aligned with the principle of competitiveness. For instance Article 3 of the New Companies Law crucially replaces all references to ‘60 days’ in the old law with ‘15 days’, super charging a previously slow procedural practice. For example, when converting a company’s form, a resolution must be passed to amend the company’s Memorandum and Articles of Association to reflect the same. The Commercial Companies Law No 21of 2001 (the “Old Companies Law”) provided that such resolution shall not be effective before the lapse of 60 days from the date of its publication in the Official Gazette and in at least one of the local daily newspapers. Under the New Law, this period is now reduced to 15 days,  a clear attempt to expedited process of conversion of a company’s form.\r\n\r\nIn order to facilitate and incentivise foreign investment in the Kingdom, Article 64 of the Old Companies Law, which required 100% of shareholders in a joint public stock company to be of Bahraini nationality, has been repealed. This has opened up the Bahrain Bourse to foreign investment. However, it is noteworthy that MOIC still applies certain (albeit limited) policies favouring Bahraini (and GCC) investors  over foreign investors. For example, as in other GCC States, there remain specific restrictions on foreigners in relation to certain commercial activities which they may undertake (e.g. export and import). Trading stock and share restrictions under Article 65 of the previous law, which limited dealings of existing shares with any potential new shareholders in closed joint-stock companies for a three year period, have also been repealed. These changes are, again, in harmony with the key tenets underpinning the Bahrain Vision.\r\n\r\nThe New Companies Law further amends Article 347 of the Old Companies Law. Branches of foreign entities no longer require a Bahraini sponsor to set up in Bahrain. Previously, branches of foreign companies had to be guaranteed either by a Bahraini sponsor, or by the parent company (head office), or by way of bank guarantee (Article 348 of the Old Companies Law). The New Companies Law has relaxed this requirement, and now foreign branches may provide a guarantee by way of a letter from the foreign company’s head office, coupled with a copy of the parent’s constitutional documents and audited financial statements.\r\n\r\nFurthermore, a new amendment which became effective in 2016 provides that the incorporation of a company with a limited liability (‘WLL’) no longer requires the minimum capital of BHD 20,000 (USD 53,000). Instead, the shareholders can now jointly agree on the sum of the capital provided that it is sufficient to achieve the objectives of the company. Additionally, the capital must be divided proportionately pro-rata amongst the shareholders. The shares’ value must not be less than BHD 50 (USD 130). Moreover, amendments to the required start-up capital have also been made in relation to the minimum required share capital of a Single Person Company (“SPC”). Previously an SPC’s minimum capital requirement was BHD 50,000 (USD 130,000). Under the new provisions, the minimum capital requirement for an SPC is BHD 50 only.\r\n\r\nAnother significant amendment to the Old Companies Law is the introduction of “shelf companies” (amendment No 28 of 2015 of the Companies Law), being companies created but then ‘left on the shelf’ until sold later to a person who wishes to create a company but does not wish to go through the creation process. This is the first time such corporate forms have been made available in any GCC country. It is noteworthy that the amendment provided above has been issued, but is now pending ratification by the parliament since it was passed when the parliament was not in session.\r\n\r\nRecently, Bahrain has been the first in the GCC to adopt the International Standard Industrial Classification of All Economic Activities (“ISIC”) Rev. 4. The standards are developed by the Department of Economic and Social Affairs of the United Nations Secretariat. This has resulted in key changes to the organization and structure of the available commercial business activities (as set out by the Ministry of Industry and Commerce) within the Kingdom. As of April 2016, not only have the activities become simplified, but restrictive practices have also been relaxed or in some cases entirely removed. For instance, certain activities once exclusively reserved for Bahrainis and GCC citizens, have now opened up for foreign ownership - a welcomed change that can only be seen as progressive for the region.\r\n\r\n<strong>Bahrain’s Property Law - Building Prosperity From The Ground Up</strong>\r\n\r\nBahrain has recently introduced a string of measures designed to regulate its property development industry and to ultimately restore investor confidence in the real estate sector - an objective critical to the development of a country. Law No. 28 of 2014 on Real Estate Development (the “Real Estate Law”) sets out the overall framework of this new regulatory regime. The Real Estate Law includes provisions for establishment of a real estate regulatory body. An Executive Regulation (the “Regulation”) issued under the Law in May this year sets out the functions of the new regulator. The Regulation operates at two levels: it regulates both the developer, and the individual projects undertaken by the same developer.\r\n\r\nIn alliance with Bahrain’s Vision, it is important to note that this new suite of legislative changes, of which both the Real Estate Law and the Regulation are important elements, is a clear demonstration of the Bahrain government’s long-term commitment to making Bahrain’s real estate sector both attractive and transparent for developers and purchasers.\r\n\r\nPrivate Health Institutions- The True Measure Of Economic And Social Success\r\n\r\nThe New Private Health Institutions Law (No.21 of 2015) (the “New Health Law”) offers a wider scope of application than the previous law in this area, as it introduces a change in terminology. Under the New Health Law, it is not only private hospitals that are regulated (as was the case previously) but rather all private health institutions of any size, shape or form, including hospitals, clinics, and medical complexes. The government’s drive to develop transparent policies is in line with the Bahrain Vision.\r\n\r\nThe New Health Law introduces the National Health Regulatory Authority (“NHRA”). The categorisation of private health institutions and licensing requirements and procedures will all be determined by a resolution of the NHRA’s board of directors. The NHRA has the duty to monitor medical services provided by health institutions and to ensure that said services are in compliance with the quality standards and key performance indicators issued by NHRA’s board of directors’ decisions. Said standards are usually in line with international medical standards. Additionally, NHRA has the duty to perform general and thorough revisions and assessments on the performance and quality of the services provided by private health institutions and to ensure that all activities are in accordance with the action plan set out by NHRA’s board of directors.\r\n\r\nThe New Health Law widens the authority of NHRA inspectors by granting them certain quasi-judicial powers. Inspectors are allowed to inspect files, medical records, documents, charts and all other required information available at the private health institution and may obtain copies of the relevant information. The inspectors are now appointed by the Minster of Justice and are exercising their roles in relation to criminal acts (as specified in Article 25 of the New Health Law).\r\n\r\n<strong>Anti-Bribery- Holding Private Individuals Accountable </strong>\r\n\r\nFebruary 2013 saw a new addition to the anti-bribery laws contained within the Bahrain Penal Code ( “Penal Code”) which had previously covered the public sector alone. Law No. 1 of 2013 with Respect to Amending Certain Provisions of the Penal Code, promulgated by Legislative Decree No. 15 of 1976 (the “Amendment”), criminalises bribery in the private sector. In an unprecedented move toward corporate transparency and individual liability, the class of persons subject to the sanctions has been widened to include, but is not limited to, private corporate persons, boards of directors, boards of trustees, chairmen, deputy chairmen and all members of the board irrespective of designation or formation. The sanctions themselves are in several cases more severe than those proscribed for the public sector. Furthermore, a new agency, The Anti-Corruption Authority, is in the process of being formed. Its responsibilities will include the investigation and prosecution of offences related to corruption and bribery. Moreover, as a part of the Ministry of Interior’s strategy to combat corruption, the National Anti- Corruption Campaign (launched in June 2014) was an undertaking aimed at enhancing awareness on the effect of unscrupulous practices on society,\r\n\r\n<strong>Arbitration Law - Ensuring fairness and Transparency in Dispute Resolution</strong>\r\n\r\nThe Arbitration Law No.9 of 2015 (the “New Arbitration Law”) is considered a leap in Bahrain’s arbitration history. The New Arbitration Law provides that the UNCITRAL Model law on International Commercial Arbitration (the “UNCITRAL Law”) applies to all arbitration cases regardless of their legal status, whether or not the arbitration is being held inside or outside of Bahrain, whether one of the parties is subject to the laws of Bahrain, and regardless of  the legal relationship between the parties.\r\n\r\nA new addition has been introduced in Article 6 of the New Arbitration Law which provides that non-Bahraini lawyers may represent any party to a dispute in any international commercial arbitration that is conducted in Bahrain. This is significant and in line with the principles of fairness and the right of parties to choose their own legal representatives.\r\n\r\n<strong>In Conclusion</strong>\r\n\r\nThe last 12 months have been critical for Bahrain’s future and development. The significant drop in global oil prices (and their subsequent rise locally) has highlighted the Kingdom’s continued reliance on its oil revenue, and the increasing importance of shifting its main source of national income elsewhere. Continuing to issue and amend legislation that can work hand-in-hand with an over-arching economic vision is perhaps the key to Bahrain’s success. By placing focus on the strengthening of trust and confidence in our free market economy, the ripple effect of foreign investment, an increased local workforce and continued emphasis on the rights of workers, may be felt in all areas of Bahraini life.\r\n\r\n&nbsp;'),
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	(98734,5364,'content','April 2016\r\n\r\n<hr />\r\n\r\n<strong>Can you give a brief overview about how Law Update started? </strong>\r\n\r\n25 years ago, we were a very small law firm. There was myself, a secretary, office admin and two assistant local lawyers and we mainly focused on litigation. I was, at the time, wearing two hats; one working with Clifford Chance and one handling my local advocacy before the Courts.\r\n\r\nAt the time, there was one legal newsletter, in English, that was circulated among the small legal community in Dubai, with updates about what was happening in terms of laws, regulations, draft laws and so on.\r\n\r\nHowever, the newsletter had no updates about judgments, and I felt that it would be extremely useful for the community to have updates, in English, about laws and regulations, which included the details of our Ministers and the Cabinet, the heads of different authorities and departments, as well as three leading judgments each month that were released from the Court of Cassation.\r\n\r\nAt the time, my small team, who were at full capacity, would find the judgments for me and I would translate and summarise them, usually between 10pm and midnight when I had some free time at home. I would then bring them to my secretary on a floppy disk and we would then publish. We would print out our newsletter and send to our list of contacts, which at the time was about 50 people, and we also kept them at our reception.\r\n\r\nAlmost immediately, we received a very positive response from the expat legal community, who started asking for more and more copies, as well as from local and international universities who were hungry for information for their students.\r\n\r\nSince day one, we have not missed a single edition of our newsletter. I continued to type them up myself for over a year at the beginning, and choose the judgments that were included for a further ten years. Every time I travelled by car to Abu Dhabi or by plane abroad, I would bring around 50 judgments with me and mark and summarise them, to ensure the right information was included in our newsletters. As the firm grew, ambitious young lawyers would write articles, usually about something happening in the community, and we continued to build on our newsletter, the design, the brand, the name, and so on. The newsletter helped us build up an excellent library of judgments, and as our business development and marketing teams have expanded, our Law Update has continued to develop, to resemble what it does today. It is now one of our best marketing and information tools and I’m very proud of what we’ve achieved.\r\n\r\n<strong>What did the legal landscape look like when you started Al Tamimi over 25 years ago?</strong>\r\n\r\nThe legal landscape was very primitive with very few firms. There were only about four western firms across the UAE, a small pool of local lawyers and around three major local law firms, which predominantly focused only on litigation.\r\n\r\nThe courts were mainly Shariah courts, and civil courts only dealt with shipping and banking matters. There were very few databases available containing information on judgments, records, updates on the UAE laws and regulations.  The majority of information came from the Law Gazette, however it was not published very regularly, so the Law Update filled a huge gap there.\r\n\r\n<strong>What was your vision for the firm? </strong>\r\n\r\nMy vision for the firm has not changed at all. From day one, I have wanted to become the leading law firm in the UAE and the Middle East, offering the quality legal advice to our clients and the wider legal community.\r\n\r\n<strong>Has this vision translated into what you have created now?</strong>\r\n\r\nI am very pleased with what has been achieved so far, but we are not there yet. There are always new opportunities and new levels to reach. We have wonderful talent within the firm, very good lawyers, excellent ethics and a very high level of professionalism.  We are also well established in the UAE and across the region. As I always say to my colleagues, we are not here to set up, we are here to lead, and I want to continue to strive to be the number one firm in every jurisdiction we have a presence in.\r\n\r\nI am proud of the size of the firm we have created and the talent we have managed to attract, and also the type of partnership we have established. We are now 55 partners at the firm, with a unique and wonderful combination of minds that has helped the firm to grow. We have withstood challenges; economic and others, and during these times, we have remained true to our vision and become what we are today.\r\n\r\n<strong>What is your proudest moment in relation to Al Tamimi, and can you discuss a few of your key achievements? </strong>\r\n\r\nWe started as a small litigation advocacy firm, and we have grown to become a firm providing the full range of corporate services to clients across various practices and sectors.\r\n\r\nI am very proud that we have created such a dynamic firm, acting and representing leading multinationals on a local and regional basis.\r\n\r\n<strong>How has the legal landscape in the UAE changed over the past 25 years, and what does it look like today? </strong>\r\n\r\n25 years ago, the UAE had a small, village-type legal system, where local people learned how to do court work, drafting laws and litigation themselves. Today, the legal system in the UAE is extremely sophisticated, whether looking at the DIFC or the Abu Dhabi Global Market, and the country has grown to become a true international business hub. The UAE’s legal sector is now home to some of the best talent from around the world, specialising in a range of industries including banking, insurance, technology and more.\r\n\r\n<strong>What have been some key moments of change?</strong>\r\n\r\nA major turning point for the UAE was the opening the Jebel Ali Free Zone, which saw a lot of international businesses starting to look to Dubai and the UAE as a base for their operations. The establishment of TECOM’s free zones , such as Dubai Internet City and Dubai Media City which followed, attracted many companies operating in these sectors and of course, a highly skilled workforce to complement this. A major turning point, the DIFC, followed, which saw Dubai and the UAE become a hub for regional financial markets, and with this came the attraction of top talent and leading firms and institutions from around the world.\r\n\r\nLooking at the legal system in particular, as different companies arrived in Dubai and the UAE, an international level of legal services was required. The opening of DIFC, for example, meant different levels of laws were needed across to support this expansion, and the regulators responded which has seen the legal system operate on par with international centres. The expertise held by legislators and lawyers are also at a much higher level as a result, with over 80 international law firms operating in Dubai alone today.\r\n\r\n<strong>What do you think the legal landscape will look like in the UAE in 25 years from now?</strong>\r\n\r\nI believe we will see greater challenges, and as a result, greater opportunities. As internationals continue to focus on the UAE, the country will have to respond by further developing its legal system and policies. Whether this is relating to the role of women, human rights, labour, bilateral treaties, for example, the UAE will see that what was acceptable five years ago, will not be acceptable in 25 years from now. We therefore need a highly sophisticated legal system to support this growth and a very well designed strategy to tackle the challenges which I like to call opportunities.\r\n\r\nIn addition to this, with the growth of the digital environment, business is being conducted differently to the way it was and there will be another level of legislation required to protect this new environment – one that I don’t think any of us are able to envisage right now.\r\n\r\n<strong>What advice would you give to the business and legal community – any key tips to doing business in the region?</strong>\r\n\r\nFor the business community, my advice would be to focus on enhancing your internal corporate governance and ensuring your policies and procedures are of global standards. This is extremely important for the future. Business is changing and this requires appropriate business behaviour; sound human resources, accounting and reporting procedures, IT systems, and a very employee-friendly working environment.\r\n\r\nOn an international level, the UAE and the region provide wonderful opportunities for businesses, including tax advantages, re-export hubs, international treaties, exemption of tariffs and customs duties, and companies should take advantage of these, and look to structure themselves within the region to benefit from this.\r\n\r\nFor the legal community, we are still very short on local and regional talent. Most of the talent here is either western or western-educated, and we need to ensure that good training programmes are in place for the next generation of local lawyers. We need our law schools to be of international standard and to provide a level of education for our future lawyers and judges to be the best they can be. This is what will help us to succeed in the future. We also need to promote the legal profession to our young local students as a profession that is rewarding and attractive.'),
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	(98700,5362,'content_description','A Crucial Phase'),
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	(98714,5362,'_yoast_wpseo_metadesc','As far as the aviation industry is concerned, the issue of a consensus on how to deal with the limitation of aviation emissions is reaching a crucial phase, and it will be a major topic for discussion and possible agreement at the forthcoming 2016 (‘ICAO’) General Assembly in Montreal in September 2016.'),
	(98715,5363,'content','April 2016\r\n\r\n<hr />\r\n\r\nConstruction projects in the Middle East are often procured under a single stage tender process, pursuant to which the employer issues an invitation to tender to 5 or 6 contractors for a particular project and then selects the most competitive tender, usually based on price.\r\n\r\nWhile this approach has clear and well-known benefits, it can be expensive for all concerned, encourages claims if the successful contractor has underpriced the project (which can easily occur if there was inadequate time to enable the contractor to evaluate risks) and fails to incentivise value engineering between the parties.\r\n\r\nTo address these issues, two-stage tendering is becoming more accepted in the Middle East (particularly in a design and build context) and is viewed as a real alternative to traditional procurement.\r\n\r\n<strong>Procurement Structure</strong>\r\n\r\nAs a first step to implementing a two-stage process, the employer would typically approach several contractors, on a competitive tender basis, with basic information regarding the project (i.e. an outline design) and request an indicative price (including details of each contractor’s profit, overhead and preliminaries) for the works as well as the contractor’s proposal for executing the project.\r\n\r\nFollowing receipt of this basic information, the employer will engage its preferred contractor to perform buildability services under a pre-construction agreement.\r\n\r\nUnder the pre-construction agreement, the contractor will usually work with the employer’s design team to resolve buildability issues and undertake a concept programme for the project (typically on an accelerated basis), which is usually accompanied by a ‘maximum ceiling price’.   To arrive at the maximum ceiling price, the contractor will need to obtain indicative price quotes for key subcontract packages and the maximum ceiling price should be presented on an open book basis.\r\n\r\nIf the contractor is engaged to take the lead on the design, the employer may instruct the contractor to develop a concept design into a schematic design.  However, it is important that the employer has the express right to terminate the pre-construction agreement if either the concept design or the maximum ceiling price fails to meet the approval of the employer (although a right of termination only tends to be activated following a period of unsuccessful negotiations).\r\n\r\nIf the contractor is requested to undertake the schematic design, the contractor may also be required to provide a guaranteed maximum price (also on an open book basis) for completing the project, which generally should not exceed the maximum ceiling price.\r\n\r\nAs with the concept design, the employer should have the express contractual right to terminate the pre-construction agreement if either the schematic design or the guaranteed maximum price is unacceptable to the employer.\r\n\r\n<strong>Pre-Construction Agreement   </strong>\r\n\r\nThere are no ‘standard form’ pre-construction agreements so careful bespoke drafting is required to ensure that the agreement is properly documented.\r\n\r\nAs well as the ability to terminate the pre-construction agreement at certain key points, the pre-construction agreement should also make it clear that the contractor has no expectation of being awarded the construction contract.\r\n\r\nIn the event of early termination of the pre-construction agreement, the contractor should therefore be paid for the pre-construction services performed as at the date of termination (i.e. principally for buildability and design work undertaken) but liability for such things as loss of profit, loss of expectation and loss of opportunity should be expressly excluded.\r\n\r\nIt is also important that intellectual property rights are addressed.  In short, any designs prepared by the contractor should vest in the employer or, alternatively, the employer must be granted a sufficiently broad license to freely use and develop any designs prepared by the contractor following termination of the pre-construction agreement.\r\n\r\n<strong>Conversion Mechanism</strong>\r\n\r\nIf the employer is looking to have a design and build contract, the employer will seek to engage the Contractor for the construction of the poroject under a design and build contract where the employer is satisfied with the schematic design and the guaranteed maximum price. This will enable the contractor to simultaneously undertake the detailed design and to commence the construction of the works.\r\n\r\nA guaranteed maximum pricing mechanism often provides that the employer and the contractor may share any savings (i.e. the extent to which the cost of the project is less than the guaranteed maximum price) or alternatively the contractor may be entitled to a bonus.\r\n\r\nIn this situation, the construction contract needs to include an open book pricing mechanism pursuant to which the employer has full visibility regarding the actual cost of completing the project.\r\n\r\n<strong>Advantages Of Two-Stage Tendering</strong>\r\n\r\nThe main advantage of two-stage tendering for the employer is that it facilitates the fast tracking of the project and this is particularly appealing if the employer is under time pressure to deliver (i.e. perhaps a development agreement imposes aggressive timelines on the employer).  As the employer and the contractor are working together from an early stage, two-stage tendering will facilitate construction works commencing prior to the finalisation of the design.\r\n\r\nPrice certainty can also be achieved if a two-stage tender results in a guaranteed maximum price construction contract being executed.  Allied to this point, risks are more likely to have been properly evaluated and priced by the contractor on account of the greater visibility afforded to him under during the pre-construction phase, thus potentially decreasing the contract price and the risk of variations.\r\n\r\nAdditionally, the contractor’s involvement with the employer’s designers from an early stage means that buildability and sequences issues can be addressed and resolved quickly while there is also greater scope for value engineering, which should also make the final contract price more competitive (and may facilitate a cost savings mechanism).\r\n\r\nfinally, two-stage tendering promotes more a collaborative approach between the parties and the possibility of disputes arising during the construction phase is therefore reduced.\r\n\r\n<strong>Disadvantages Of Two-Stage Tendering </strong>\r\n\r\nTwo-stage tendering is not without risk.\r\n\r\nAlthough the pre-construction agreement may provide the employer with the express right of termination at various points, the employer may, from a practical perspective, become ever more reluctant to exercise this right as the contractor becomes an increasingly entrenched member of the design team and this will lead to the employer’s bargaining power being eroded.\r\n\r\nThe strength of the contractor’s bargaining power may increase further if the contractor is permitted to perform significant construction works on site without a construction contract being in place.\r\n\r\nFurther, the employer may still face difficulties even if the employer terminates the pre-construction agreement.  Terminations are seldom smooth and there is almost inevitably some form of fall out (regardless of how well the pre-construction agreement has been drafted).  For example, the contractor may retain possession of key deliverables, difficulties may be encountered in transferring approvals and permits to the employer or to the incoming contractor while the contractor may also retain possession of the site (assuming that it has been granted access and has started work) until its claims have been resolved.\r\n\r\nEven if the termination process is seamless, the project will almost certainly be delayed by the employer having to engage an alternative contractor, which may be something that the employer can ill afford if a two-stage tender was adopted on account of time sensitivities.  A further point to consider is that an incoming contractor will almost certainly demand a price premium if he is required to accept responsibility for the design or works undertaken by a previous contractor.\r\n\r\nFrom a practical perspective, employers could potentially mitigate these risks by prolonging negotiations for as long as possible with two interested parties, thereby retaining competitive tension.  However, negotiating with two contractors can be a time consuming and expensive exercise which cuts across the underlying principle of collaboration and is unlikely to be a workable solution.\r\n\r\nAnother option may be for the employer to allow adequate float to provide a buffer against unforeseen and prolonged negotiations but again this may not be practical in the circumstances.\r\n\r\nRegardless of the above, the main risk for the contractor is that it has no guarantee of being awarded the construction contract until it has been actually signed.  This is a significant exposure as it is unlikely that payment under the pre-construction agreement will adequately compensate it for the extent of the design and collaborative work that it will have performed.\r\n\r\n<strong>Concluding thoughts  </strong>\r\n\r\nThere are many variants for two-stage tendering and, in our view, it is a realistic alternative to traditional tendering, yielding positive results for both the employer and the contractor.  As with any other form of contracting, two-stage tendering should be approached with care and both parties need to ensure that their commercial interests are adequately addressed by a well-drafted pre-construction agreement and construction contract.\r\n\r\n&nbsp;'),
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	(98652,5360,'content_description','This article considers the merits of a new tool in the effort to combat cyber squatting.  \r\n'),
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	(98654,5360,'pageSummary','This article considers the merits of a new tool in the effort to combat cyber squatting.'),
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	(98666,5360,'_yoast_wpseo_metadesc','The expansion of generic Top-Level Domains (gTLDs) such as .COM, .ORG, .NET in the Domain Name System is well known and familiar to us. This article considers the merits of a new tool in the effort to combat cyber squatting.'),
	(98667,5361,'content','April 2016\r\n\r\n<hr />\r\n\r\nEgypt has been recognised as one of the major volume markets in the region. With nearly one hundred million in total population, Egypt is considered the largest market in the Middle East and North Africa for many international and local traders and entities.\r\n\r\nThe expanding significance of the economic value of the local market requires establishing practical mechanisms for intellectual property (‘IP’) rights, enforcement and protection. Whilst trademark rights represent a substantial focus for IP owners, many other aspects of IP rights also exist, such as copyright, patents, industrial designs, trade secrets and plant varieties.\r\n\r\nAl Tamimi &amp; Company’s IP team will publish a series of articles on Egyptian IP law and practice to provide more clarity on the current regime and legal platform, protection strategies, enforcement options and. most importantly. provide an update on recent developments. This series of articles is aimed at assisting international IP rights owners, such as multinational enterprises, regional and local entities, to become more familiar with the current system, find suitable ways to improve their protection strategies and understand their legal options to ensure continuity and proper protection of their rights.\r\n\r\n<strong>Trademark Practice</strong>\r\n\r\nThe trademark practice in Egypt generally focuses on protection, i.e. filing and registration, and enforcement of brands against infringement and counterfeit. Other areas such as transactions, advisory on branding and ownership disputes remain core areas for brand owners but the majority of IP priority services relate to protection and enforcement. We set out in this article a brief overview of procedures, options, timeframes and the challenges that brand owners can face when protecting their brand and initiating enforcement proceedings in Egypt.\r\n\r\n<strong>Protection: Procedures, Requirements and Challenges</strong>\r\n\r\nProtection starts by acquiring rights and obtaining official recognition of those rights by the local trademark office. This is also a prerequisite for any claim of ownership or attempt to initiate enforcement action. The registration of a trademark in Egypt involves the typical procedures, i.e. filing, examination, publication and registration. The typical time frame to complete the registration process is from 12 to 24 months with relatively minimal fees and expenditures for brand owners. The brand owner should complete the process though a local attorney and should provide the following information and documents:\r\n<ul>\r\n 	<li>name of the applicant</li>\r\n 	<li>address of the applicant</li>\r\n 	<li>nationality and nature of business of the applicant</li>\r\n 	<li>a clear and detailed description of the list of goods and services to which the trademark applies</li>\r\n 	<li>a Power of Attorney to the applicant’s representative, which is properly legalised if executed outside Egypt or notarised if executed within Egypt.</li>\r\n</ul>\r\nA clearance search of the trademark is always recommended to brand owners prior to registration and/or use. Whilst proof of use is not required to protect and register a trademark in Egypt, we recommend that brand owners run such searches prior to commencing registration or commercial exploitation of brands. The searches can be initiated and completed within an average period of five working days.\r\n\r\nIn practice, the Egyptian Trademark Office employs expert examiners and systems and has been recognised locally as one of the well-established governmental offices and authorities in Egypt. The examiners, however, apply some conservative rules in examination when compared with trademark office examiners in neighbouring countries or the Middle East region. Challenges that can face applicants vary in type, which can include unexpected provisional refusals, office actions and imposing disclaimers. Therefore, trademark owners are always advised to consult with their local IP attorney at the stage of branding to understand the implications of their selection and ensure that registration properly progresses.\r\n\r\n<strong>Enforcement: Options, Requirements and Formalities</strong>\r\n\r\nOnce the trademark is officially registered, enforcement procedures can be initiated. Recently, we noted an increase in trademark infringements and many well-known trademarks are being counterfeited. The infringing products are either displayed at local markets or offered online to internet users through e-commerce platforms.\r\n\r\nBrand owners usually take enforcement issues seriously due to many commercial and legal factors. We have been engaged to work with various brands to support their enforcement strategy in Egypt, and there are several options to initiate anti-counterfeiting proceedings or tackle infringement cases. The local regulations entitle trademark owners to seek adequate remedies, including injunctive relief, compensation and permanent seizure and destruction of counterfeit and infringing goods.\r\n\r\nFor easy reference, we set out below the most common options for trademark owners under Egyptian law and practice:\r\n\r\n<strong>Legal Notice</strong>\r\n\r\nSending a legal notice appears to be a very efficient tool to resolve many problems at an early stage in Egypt. Therefore, we always recommend trademark owners to think of this option against retailers, traders or local entities that infringe or sell counterfeit goods. The legal notice can be sent as a letter from the trademark owner or its lawyer or via an official notice that is served through a court bailiff.\r\n\r\n<strong>Administrative Action: Ministry of Supply Raid Actions</strong>\r\n\r\nThe Ministry of Supply accepts complaints from owners of registered trademarks and then moves to conduct raid actions. The raid can be completed on an expedited basis and concluded within two to five working days in average. Thereafter, the Ministry officials will investigate the outcome and transfer the case to the public prosecutor for further proceedings provided that they have received confirmation that the seized goods are counterfeit. The product’s assessment is completed by the Trademark Office, which can cause some delay in the timeframe. Nevertheless, once the assessment is completed by the Trademark Office and the goods are confirmed as an infringement of a registered trademark, the case will be transferred to the criminal court for further proceedings and hearings.\r\n\r\nIt is very important to note that after the raid action occurs, the Ministry of Supply will seize the counterfeit products and wait for further judicial decisions for destruction or other rulings. The Ministry of Supply may conduct this action in conjunction with imposing any official fees on the brand’s owner. The procedure requires some documents, such as proof of registration, samples and guidelines to differentiate between products and a properly made Power of Attorney. Once the raid action is approved, the representative of brand owner can attend the proceeding, assist officials in the inspection and, most importantly, the raid can cover many targets simultaneously.\r\n\r\n<strong>Administrative Action: Customs</strong>\r\n\r\nAnother option to stop counterfeit products at the border is to file complaints before the competent Customs Authority. When there is information regarding a shipment carrying counterfeit products, the Customs Authority can accept complaints and hold the infringing shipment. Raids can often occur upon the arrival of the counterfeiting products. However, the brand owner is required to provide sufficient documents and information, such as full information of the shipment, and later the importer should submit the documents of the shipment prior to the Customs Authority moving with the seizure. The brand owner is also required to post a monetary bond that is equal to 25% of the total shipment’s value, but this can be released once the seizure is found to be legitimate and lawful.\r\n\r\nIt is very important to note that customs seizure is only a temporary measure to hold the shipment and it needs to be followed by a court order. Therefore, the customs seizure lasts for ten (10) days during which time the brand owner should secure an order from the court, i.e. an attachment order or injunctive relief, to sustain the seizure and progress the case. Once the Customs Authority receives notice of the injunctive relief granted by the court, it will hold the shipment until a final decision is issued by the court.\r\n\r\n<strong>Civil Action</strong>\r\n\r\nTrademark owners can always initiate civil proceedings to claim damages, seizure of counterfeit or infringing goods or other remedies. Typically, trademark owners take civil action for an administrative seizure or following the grant of an attachment order. There is a specialised court in Egypt, called the Economic Court, that has jurisdiction to look into IP and trademarks disputes. The Economic Court employs specialised judges who are educated in IP rights, understand the infringement implications and, most importantly, are willing to grant relatively high damages in counterfeit cases. The Economic Court also hears the proceedings promptly and a case can be concluded within an expedited time frame, such as six to 14 months in average.\r\n\r\nIn civil proceedings that follow administrative seizures, the Economic Court gathers information from the Ministry of Supply, the Customs Authority, police raids or criminal proceedings, and uses the same information to determine the civil claim.\r\n\r\nCivil action, however, requires expenditure on legal costs and court fees, e.g. official fees for filing a civil case. This depends on the claim and is assessed based on a percentage of the amount claimed. In general, the costs are calculated at 5% of the amount of the claims above EGP 4,000.\r\n\r\n<strong>Criminal Action </strong>\r\n\r\nThe option to take criminal action is also available for trademark owners to counter infringement incidents. In practice however, we recommend that the criminal proceeding is initiated after completing the above administrative options as this will ensure that the seizure happens promptly. However, a criminal case can always be raised directly before the police or through a complaint before the public prosecutor to issue an arrest and inspection warrant.\r\n\r\nIf the complaint is filed before the police, it will be transferred after the raid to the public prosecutor for further proceedings. In order to progress a criminal proceeding, the police will investigate any criminal complaint and move with raid action as a part of the investigation procedures. If sufficient evidence of infringement crime is found and collected at the raid action, the matter is referred to the public prosecutor to consider further. The public prosecutor will thereafter complete the investigation and refer the case to the criminal court for further proceedings.\r\n\r\nThe location of the infringement or the counterfeit goods plays a substantial part in determining whether to take this option. Strategically speaking, we note that the police give extra attention to major crimes, for which they will often act promptly and move with inspection. Being a misdemeanour, trademark counterfeit criminal cases may get delayed before being accepted and actioned and therefore it is always recommended to consider administrative options when possible. However, progressing the case with police could also be one of the most important and suitable options depending on the circumstances of the case, the location and the availability of qualified personnel at the police station to undertake the necessary procedures.\r\n\r\nThe typical time frame to progress a criminal proceeding with the police and public prosecutor varies from 12 to 24 months. Criminal courts impose sanctions, such as destruction of counterfeit products, imposition of penalties, namely fines, and possibly imprisonment when public safety and personal injury occurs from trading with counterfeit products.\r\n\r\nIn term of fees, there are no official fees associated with a criminal complaint. However, if a civil claim is filed jointly with the criminal proceeding, nominal court fees apply. In fact, it is possible to initiate a civil action before the criminal court that is examining the criminal case. If a civil case is joined with a criminal case in this manner, the civil plaintiff is able to make submissions that may ultimately be considered by the criminal court in the context of the criminal aspects of the case. Therefore, it is always recommended for trademark owners to pursue this option to ensure proper support is given to the public prosecutor’s claims, to observe the outcomes of hearings and, most importantly, be able to litigate the case before higher courts in case a negative judgement is given at the first instance level.\r\n\r\nOnce a destruction order is granted by the court, the complainant is responsible for liaising with the logistic service providers, if any, and the municipality to arrange the destruction formalities and expenses.\r\n\r\nIt is important to note that if a criminal action has already been initiated in respect of a claim that is pending before the civil courts, or if a criminal action is initiated subsequent to the filing of a civil action, the civil action will be put on hold until a final decision is concluded in the criminal proceedings.\r\n\r\n<strong>Summary</strong>\r\n\r\nTrademark prosecution is an evolving practice in Egypt. Brand owners should understand the likely outcomes, time frames and expenses when registering their trademarks, and we recommend that they register their marks for the Egyptian market at early stage. Once the trademark is registered, enforcement proceedings can be taken and several options are generally available, including administrative actions, civil and criminal proceedings.\r\n\r\nIt is recommended that enforcement campaigns consider the nature of the infringement, the locations, the level of proactivity of the relevant authority and the legal expenses that will result from each action.\r\n\r\nFor any further inquiries, please contract Munir Suboh at m.suboh@tamimi.com or Hassane Hassan at h.hassan@tamimi.com'),
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	(98634,5359,'_content','field_59b649b5c8b2b'),
	(98635,5359,'lawUpdateArticleMonth','5353'),
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	(98637,5359,'content_description','Three government officials in Abu Dhabi have recently been prosecuted for invading the privacy of their female co-workers by placing CCTV cameras in an Al Ain workplace.'),
	(98638,5359,'_content_description','field_59b641c07f473'),
	(98639,5359,'pageSummary','Three government officials in Abu Dhabi have recently been prosecuted for invading the privacy of their female co-workers by placing CCTV cameras in an Al Ain workplace.'),
	(98640,5359,'_pageSummary','field_59e59b307dec8'),
	(98641,5359,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/april-9/watching-the-watchmen-the-requirement-for-and-regulation-of-cctv-and-other-monitoring-and-control-de.html'),
	(98642,5359,'_currentURL','field_59d35123ab1e7'),
	(98643,5359,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','508'),
	(98644,5359,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(98645,5359,'lawUpdateArticleWriters','1'),
	(98646,5359,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(98647,5359,'_yoast_wpseo_metadesc','Three government officials in Abu Dhabi have recently been prosecuted for invading the privacy of their female co-workers by placing CCTV cameras in an Al Ain workplace.'),
	(98648,5360,'content','April 2016\r\n\r\n<hr />\r\n\r\nThe expansion of generic Top-Level Domains (gTLDs) such as .COM, .ORG, .NET in the Domain Name System is well known and familiar to us.\r\n\r\nIn addition, the Internet Corporation for Assigned Names and Numbers (ICANN), the international organization responsible for the management and oversight of the Internet’s domain name system has been allowing registrants to expand the Internet beyond the traditional top-level domains into new fangled gTLDS such as .ROCKS, .SUCKS,.GLOBAL,.ONLINE,.LIFE,.TECH,.COMPANY,.XYZ, .WORLD,.SOLUTIONS,.NYC,.GURU etc.\r\n\r\nWith registry operators continuously rolling out new gTLDs to the market, the protection of trademark rights in cyberspace is becoming increasingly challenging. Over a thousand new gTLD applications have been received by ICANN, and over 100 new gTLDs have been delegated and are going “live” for registration by Internet users worldwide.\r\n\r\nAs domain name registration is on “first-come, first-served” basis, it is expected that the expansion of the gTLD system will lead to an increase in disputes between trademark proprietors and domain name registrants concerning the registration and use of domain names in bad faith.\r\n\r\nTo try and combat the risk of disputes arising in respect of new gTLDs, ICANN has devised the Uniform Rapid Suspension System (URS) to complement the availability of the existing and well-developed ICANN Uniform Domain Name Dispute Resolution Policy (UDRP).\r\n\r\nIn essence, the URS has been designed to give trademark owners a faster, cheaper alternative to the UDRP for combating cybersquatting and other forms of trademark infringement by domain name registrants. The URS is incorporated into all registry agreements executed by the operators of new gTLDs, and it may be adopted voluntarily by existing gTLD operators (such as .com, .org, and .net).\r\n\r\nThe URS is a rights protection mechanism that complements the existing UDRP by offering a lower-cost, faster path to relief for trademark proprietors complaining of the most clear-cut cases of infringement.\r\n\r\n<strong>Mechanics</strong>\r\n\r\nThe core requirements for a URS complaint are substantially similar to those arising in UDRP proceedings.\r\n\r\nIn order to be entitled to relief, a URS complainant must satisfy 3 grounds being:\r\n<ul>\r\n 	<li>The registered domain name is identical or confusingly similar to a word mark:</li>\r\n 	<li>for which the complainant holds a valid national or regional registration that is in current use; or (For the purposes of demonstrating evidence of ‘use’ in the context of (a) above, it requires a declaration by the complainant and also one specimen of current use in commerce with this proof of use being submitted directly with the complaint.)</li>\r\n 	<li>that has been validated through a court proceeding; or</li>\r\n 	<li>that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed;</li>\r\n 	<li>The registrant has no legitimate right or interest to the domain name; and</li>\r\n 	<li>The domain was registered and is being used in bad faith.9</li>\r\n</ul>\r\nThere is no discovery or hearing; the evidence examined by the URS panel is restricted to the materials submitted by the parties with their respective complaint and response, and those materials will serve as the entire record used by the URS panel to arrive at a decision.\r\n\r\nIn the event that the URS panel decides that all three grounds are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then it shall issue a decision in the complainant’s favour. If the URS panel finds that any of the groundshave not been satisfied, it shall deny the relief requested and  terminate the URS proceedings without prejudice to the complainant’s right to proceed with court action or under the UDRP.\r\n\r\n<strong>Remedy</strong>\r\n\r\nIn the event of a successful URS complaint, the registry operator shall be required to suspend the domain name, which shall remain suspended for the balance of the registration period and will not revert to the original website. The registry operator shall cause the nameservers to redirect to an informational web page provided by the URS provider.\r\n\r\n<strong>Is it For You?</strong>\r\n\r\nAs set out, URS  is an efficient, low-cost dispute mechanism for obvious cases of cybersquatting. The enforcement of URS complaints has reflected this purpose. For example, where there is some sign of plausible good faith, even if circumstantial and completely uncorroborated by concrete evidence, URS panels have been known to find in favour of the domain name registrant. Accordingly, the use of URS is very much ‘horses for courses’ and it may not serve as the best option for trademark proprietors where there is a likely bone of contention on the part of the domain name registrant.\r\n\r\nThe URS has certainly proven to be useful as a mechanism for suspending websites that areblatantly infringing.  The use of the URS is also particularly suited for trademark proprietors with famous brand names.  It is often the case that success from an enforcement perspective will often be more likely when the trademark proprietor has a high profile presence in the markethence, the message to brand owners would be to continue to cultivate the goodwill and reputation in one’s brand.'),
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	(98619,5358,'_content','field_59b649b5c8b2b'),
	(98620,5358,'lawUpdateArticleMonth','5353'),
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	(98622,5358,'content_description','The Dubai Statistics Centre (‘’DSC’’), a public entity established in 2006, is responsible for surveys and statistics in the Emirate of Dubai. Law No.28 of 2015 Concerning the Dubai Statistics Centre (the ‘’DSC Law’’) recently clarified the role of the DSC, which is now particularly relevant in this era of big data, data breaches, and data protection concerns.  '),
	(98623,5358,'_content_description','field_59b641c07f473'),
	(98624,5358,'pageSummary','The Dubai Statistics Centre (‘’DSC’’), a public entity established in 2006, is responsible for surveys and statistics in the Emirate of Dubai. Law No.28 of 2015 Concerning the Dubai Statistics Centre (the ‘’DSC Law’’) recently clarified the role of the DSC, which is now particularly relevant in this era of big data, data breaches, and data protection concerns.'),
	(98625,5358,'_pageSummary','field_59e59b307dec8'),
	(98626,5358,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/april-9/data-collection-by-the-dubai-government-and-the-regulation-of-survey-firms.html'),
	(98627,5358,'_currentURL','field_59d35123ab1e7'),
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	(98632,5358,'_yoast_wpseo_metadesc','Law No.28 of 2015 Concerning the Dubai Statistics Centre (the ‘’DSC Law’’) recently clarified the role of the DSC, which is now particularly relevant in this era of big data, data breaches, and data protection concerns.'),
	(98633,5359,'content','April 2016\r\n\r\n<hr />\r\n\r\nThis matter raises questions about the installation and use of CCTV, or other monitoring and control devices, in the Emirate of Abu Dhabi.\r\n\r\nThe fact is that under Abu Dhabi law most public and many private facilities are expressly required to have monitoring and control systems.\r\n\r\nThe Monitoring and Control Center (“MCC”) was established by the Executive Council  of the Emirate of Abu Dhabi under Abu Dhabi  Law No.5 of 2011 (“MCC Law”) with the statutory aims of :\r\n<ul>\r\n 	<li>\r\n<div>Managing, organising and utilising the systems of monitoring and control devices in vital places,  facilities and public and private establishments as well as analysing the data provided by such devices in order to prevent the commission of crimes and discover the perpetrators and preserve security and public order in the Emirate; and</div></li>\r\n 	<li>\r\n<div>Ensuring continuous operation of monitoring and control devices and systems and their integration and coherence with other monitoring and control devices and systems in the Emirate.</div></li>\r\n</ul>\r\nThe vision of the MCC is a safe and smart Abu Dhabi. Under Abu Dhabi Law Executive Regulations No.5 of 2011 (“MCC Regulations’) the MCC is responsible for issuing the permits, non-objection certificates and accreditation certificates for the practice of monitoring works in the public places and facilities, private places and their infrastructure. The MCC also sets the standards and technical specifications of the monitoring and control devices.\r\n\r\nThe establishment of monitoring stations or operating monitoring devices without obtaining the MCC’s approval is an offence punishable by imprisonment of up to two years and/or a fine of no less than AED 50,000 and no more than AED 200,000. The MCC has the authority to seize and confiscate any monitoring and control devices used in breach of provisions of the law.\r\n\r\nThe following public and private facilities in Abu Dhabi are required to have the monitoring and control systems in accordance with the terms and conditions set by the MCC:\r\n<ul>\r\n 	<li>Hotels, hotel apartments and residences</li>\r\n 	<li>Banks, exchange offices and monetary and financial institutions</li>\r\n 	<li>Shopping centres, entertainment centres and clubs</li>\r\n 	<li>Fuel stations</li>\r\n 	<li>Gold and jewellery shops</li>\r\n 	<li>Deposits and warehouses of precious material and hazardous substances</li>\r\n 	<li>Hospitals and medical centres</li>\r\n 	<li>Sports clubs</li>\r\n 	<li>Ports, airports and land ports</li>\r\n 	<li>Commercial buildings</li>\r\n 	<li>Public and private schools, universities and institutes</li>\r\n</ul>\r\nThe public and private facilities are required to install cameras in particular locations (for example in front of all doors and elevators and in all stairs including emergency stairs).\r\n\r\nThe MCC Regulations also prescribe restrictions on how cameras can be installed.  Mobile cameras with zoom lenses cannot be installed in private places such as swimming pools and dressing rooms except with the particular permission of the MCC.  Further, no private places should fall within the scope of vision of cameras unless with permission.\r\n\r\nUnder the MCC Law and MCC Regulations, a public or private facility that is legally entitled to use monitoring and control devices (i.e. they are licensed by the MCC) is defined as a “Monitoring Agency”.\r\n\r\nAll staff of Monitoring Agencies are subject to specific legal prohibitions in relation to the use of monitoring and control devices.\r\n\r\nIt is illegal for staff of a Monitoring Agency to misuse the monitoring and control devices by directing them towards any person or any private place for personal objectives or purposes or for the disclosure of any information to achieve any personal objectives (e.g.  for the defamation, degradation, humiliation or blackmail of any person).\r\n\r\nStaff of Monitoring Agencies cannot do any act that prejudices freedom or privacy of a person or the inviolability of their homes.\r\n\r\nThe MCC Regulations also prohibit the staff of Monitoring Agencies from installing or operating monitoring devices for persons inside their workplaces. It is not expressly clear how this correlates with the separate express requirements in the MCC Regulations to have fixed cameras in front of reception counters, boxes and selling desks, which as a consequence would also monitor employees working in those areas.\r\n\r\nEmployees of the MCC or a Monitoring Agency cannot disclose any information of data recorded by Monitoring Agencies to any entity or person that is not legally authorised to have access to that information or data except with the permission of the MCC.\r\n\r\nThe MCC may request a copy of the information and data recorded by Monitoring Agencies and provide competent local and federal judicial, police and security authorities with that information and data which may lead to or contribute to the identification of criminals, inciters, involved parties, witnesses, accomplices or victims of any criminal act that may affect the public or private interests. An affected party may, during the hearing of a Court action, request the Court to contact the MCC to obtain information in case the event or the crime takes place in the monitored area in the MCC jurisdiction.\r\n\r\nAs the MCC Law and MCC Regulations are Abu Dhabi laws, a person’s right to privacy may need to be considered under relevant Federal Laws such as Articles 378 and 379 of the UAE Penal Code (Federal Law No. 3 of 1987) and the UAE Cybercrimes Law (Federal Law No. 5 of 2012) which contain restrictions on recording of visual materials.\r\n\r\nDubai has its own separate law concerning CCTV. We have previously discussed in this publication Law No.10 of 2014 Amending Provisions of Law No 24 of 2008 - See more at: http://localhost:8888/tamimi/en/magazine/law-update/section-8/october-4/surveillance-cameras-in-dubai.html\r\n\r\nWhat is clear is that in Abu Dhabi you should not be installing or using monitoring or control devices without the necessary MCC licence.'),
	(163115,5359,'core_values',''),
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	(98618,5358,'content','April 2016\r\n\r\n<hr />\r\n\r\n<strong>Dubai Statistics Centre: The Official Source Of Statistical Information Relating to Dubai</strong>\r\n\r\nThe DSC Law makes clear that the DSC is the official source for emirate level (as opposed to federal level) statistics in Dubai. The DSC is responsible for compiling and analysing statistical information, and for preparing and disseminating statistical reports.\r\n\r\nThe aims of the DSC include establishing an advanced statistical system for Dubai, contributing to the social and economic development of the emirate, and providing statistical support to policy decision makers to assist with policy development and to measure performance. Additionally, the DSC is concerned with ensuring the accuracy of opinion polls conducted in the emirate, and for regulating statistical work and opinion surveys in Dubai. Non-government entities that wish to run opinion polls in Dubai now need a permit from the DSC, and failing to obtain a permit is an offence under the DSC Law.\r\n\r\nThe DSC’s responsibilities include:\r\n<ul>\r\n 	<li>establishing a modern and comprehensive system for compiling, analysing, and disseminating official statistics, and disseminating statistical information using advanced methods;</li>\r\n 	<li>designing and conducting demographic, social, and economic surveys in the emirate, including the general census of population and housing, and surveys on social, economic, health, educational, and other matters;</li>\r\n 	<li>preparing and providing high quality statistical data and information to interested parties, including government entities, businesses, media, researchers, and others;</li>\r\n 	<li>setting the standards and rules regulating statistical work and methodology in the emirate; and</li>\r\n 	<li>regulating the work of non-government entities working in the survey and opinion polling field.</li>\r\n</ul>\r\nThe DSC Law requires ‘data sources’ to provide the DSC with the statistical information it requires, in accordance with the requirements determined by the DSC. Data sources include government departments, authorities, public corporations, free zone authorities, other Dubai government related entities, federal ministries, authorities, public corporations, and international agencies, as well as charitable foundations, companies, and individuals in the emirate.\r\n\r\nPrivate individuals and entities that want to run surveys in Dubai need first to obtain a permit from the DSC. Public entities need a permit from the DSC for surveys to be conducted ‘in the field’, but for surveys that will not be in-the-field surveys (such as on-line surveys), it is only necessary for the government entity to coordinate with the DSC and no permit is required.\r\n\r\nPersonal information obtained through any statistics or surveys is deemed confidential and may only be disclosed by the DSC with the written consent of its owner or upon judicial order. Such information may not be disseminated other than for statistical purposes. It cannot be used for taxation assessment, as evidence of a crime, or in support of a legal claim - with an exception in respect of evidence against someone for providing false data to the DSC.\r\n\r\nThe DSC law makes it an offence to breach the confidentiality of any statistical data; presumably this refers to statistical data that has been gathered by the DSC but not yet publicly reported. Additionally, it is an offence to use statistical data other than for its intended purposes, or to change or add to it; on its face, this could significantly inhibit the potential benefits and efficiencies of being able to use general information for multiple analytical purposes. The DSC Law also makes it an offence to sell or disseminate any statistical information without obtaining a permit as provided in the DSC Law. Penalties for this are not insignificant: imprisonment for up to six months and/or a fine of up to AED 100,000. A variety of other offences are specified in the law and these include failing to cooperate with surveys, providing misleading information, failing to provide data, disseminating false statistics, and other offences.\r\n\r\nThe DSC Law contemplates a DSC advisory board that will include specialist members with experience and specialisation in the fields of planning and statistics. If the DSC uses this opportunity to seek input from specialists with practical, commercial and current experience in modern statistics methodologies and technologies, survey management, and big data management, then this will enhance the advisory board and enable the DSC to excel in meeting its stated goals.\r\n\r\n<strong>Regulating Polling Companies Operating in Dubai</strong>\r\n\r\nAdditionally, Executive Council Resolution No.39 of 2015 Regulating Poll Studies Firms Operating in the Emirate of Dubai (the ‘’Resolution’’), has been issued to regulate the survey industry in Dubai. The Resolution provides that no one can conduct surveys in Dubai (including in any free zones located in Dubai) without a trade licence from the relevant licensing authority and a permit from the DSC.\r\n\r\nBesides seeking to ensure the proper and accurate conduct of surveys in Dubai, the objectives of the Resolution include providing legal protection for personal data, ensuring the efficient conduct of surveys by survey firms, and removing obstacles and creating a favourable environment for survey firms. The new permit process and associated official fee are likely to be of some interest to those operating in the industry, who have until mid-2016 to comply with the Resolution in this respect.\r\n\r\nThe DSC’s role in regulating survey firms will significantly impact on their operations. The DSC will be responsible for: accepting or rejecting applications for permits by survey firms; monitoring the activities of survey firms to ensure compliance with the DSC’s requirements; issuing identification cards to field researchers; investigating complaints about survey firms; creating a finding of surveys and using these findings to update statistical data on Dubai; reviewing the reports based on surveys, and preparing appropriate responses in coordination with relevant government entities.\r\n\r\nUnder the Resolution, survey firms are required to provide details of all personnel involved in the conduct of surveys in Dubai, cooperate with the DSC, and grant access to their premises, records, and data related to their activities. Upon request by the DSC, survey firms are also required to provide the DSC with any information or data relating to the firm’s activities in the emirate.\r\n\r\nThe Resolution provides for penalties for various prohibited acts, including:\r\n<ul>\r\n 	<li>violating the confidentiality of personal data (AED 20,000);</li>\r\n 	<li>changing or modifying the findings of surveys to misrepresent the facts (AED 10,000); and</li>\r\n 	<li>using survey findings to undermine the image of the UAE or its achievements (not specified).</li>\r\n</ul>\r\nSignificantly, the DSC is also responsible for finding appropriate solutions to overcome obstacles facing survey firms. While the new regulatory regime is likely to be greeted with some apprehension by those operating in the survey industry, the fact that one of DSC’s key roles is to find appropriate solutions for hurdles facing those in the industry should come as some relief.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on issues relating to big data, personal data, data breaches, and other data-related issues. For further information, please contact Nick O’Connell (n.oconnell@tamimi.com) or Sana Saleem (s.saleem@tamimi.com).'),
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	(98617,5357,'_yoast_wpseo_metadesc','Al Tamimi & Company takes a look at the MAS Clearsight (MASC) Decision Notice and the important points which arise out of that decision.'),
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	(98584,5356,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-14/april-9/right-of-defence-is-guaranteed-by-uae-federal-supreme-court.html'),
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	(214172,5356,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ahmed Abdulshafe'),
	(98588,5356,'lawUpdateArticleWriters',''),
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	(98593,5356,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(98594,5356,'_yoast_wpseo_metadesc','The UAE Federal Supreme Court recently issued a judgment confirming that an accused person’s right of defence must be respected by the UAE Courts.'),
	(98595,5357,'content','April 2016\r\n\r\n<hr />\r\n\r\nThey are therefore important in assisting firms to review their internal policies and procedures from the DFSA’s point of view.\r\n\r\nThe purpose of this article is to take a look at the MAS Clearsight (MASC) Decision Notice and the important points which arise out of that decision. It is important to note that whilst DFSA Decision Notices provide guidance on DFSA’s view of certain regulations, more often than not it is an uncontested view. That is, most disciplinary matters are settlements between the Authorised Firm and the DFSA, and accordingly the decision does not reflect a robust questioning of DFSA’s position on particular rules.\r\n\r\nThe reason that this Decision Notice is worth reviewing is that the DFSA came to the view that:\r\n<ul>\r\n 	<li>The investments which MASC was offering to investors amounted to a foreign fund under the Collective Investment Law 2010; and</li>\r\n 	<li>MASC was Advising and Arranging in relation to these Investments and accordingly was required to treat the Investors as clients and “on-board” them in accordance with the Conduct of Business module of DFSA.</li>\r\n</ul>\r\nDFSA came to this view, even though MASC was of the view that:\r\n<ul>\r\n 	<li>It was not marketing a foreign fund; and</li>\r\n 	<li>The investors were investors, and not clients of MASC.</li>\r\n</ul>\r\nIt will be important for firms to consider these findings particularly where they are providing services akin to a placement agent and finding investors for and on behalf of an issuer.\r\n\r\n<strong>A Foreign Fund</strong>\r\n\r\nIn its response to the DFSA, MASC argued that the investment opportunity which it was providing to investors did not meet the requirements to be classified as a foreign fund. In its argument for why the investment opportunity should not be considered as a foreign fund MASC argued that amongst other things, it was not registered in a foreign jurisdiction as a fund; it did not have an investment manager, and there was no private placement memorandum.\r\n\r\nThe DFSA was of the view that the arrangement was a “foreign fund” under Article 11(1) of the Collective Investment Law. In coming to this view, the DFSA appears to have emphasised certain parts of the definition of ‘‘Collective Investment Fund’’ set out in the Collective Investment Law and in particular:\r\n<ul>\r\n 	<li>Article 11(1) (a) which provides that the purpose or effect of the arrangements is to enable persons who participate in the arrangements to participate in or receive profits or income arising from the acquisition, holding, management or disposal of the property or sums paid out of such profits;</li>\r\n 	<li>The arrangements are such that persons who participate do not have day to day control over the management of the property (Article 11(1) (b)); and</li>\r\n 	<li>The arrangements have either or both of the following characteristics: contributions of the investors are pooled, and/or the property is managed as a whole by or on behalf of the Fund Manager (Article 11(1)(c)).</li>\r\n</ul>\r\nNotwithstanding that MASC had not intended to create a fund, the DFSA found as a matter of fact that sufficient of the matters set out above existed for it to conclude that the arrangements constituted a Foreign Fund. In particular the words “purpose or effect” would allow the DFSA to conclude that an arrangement is a fund, whatever the intention of the parties to the arrangements. As result of the DFSA’s finding, certain other requirements followed, which had not been fulfilled by MASC.\r\n\r\nThe important part of the reasoning of the DFSA which is relevant to Authorised Firms, is that the DFSA looks at the structure and the purpose behind the arrangement (“purpose or effect”) when forming a view about whether the arrangement constitutes a fund (foreign or domestic). It will not be sufficient for an Authorised Firm to make the statement that the arrangement is not a fund, as this will not prevent DFSA from looking at the true structure ofthe arrangement and on that basis, forming a view about whether the arrangement constitutes a fund.\r\n\r\n<strong>Investors v Clients</strong>\r\n\r\nWhen looking at the reasoning of DFSA on this point it is important to look at the scope of the mandates which MASC signed up with the issuer. The scope of the mandates included identifying, short listing, introducing or referring investors” and:\r\n<ul>\r\n 	<li>Conducting closing discussions and negotiations with investors and finalising the term sheet;</li>\r\n 	<li>Negotiating the best suitable terms on behalf of the issuer and the investors;</li>\r\n 	<li>Remaining the contact point between the issuer and the investors;</li>\r\n 	<li>Assisting the issuer in discussions and negotiations with investors;</li>\r\n 	<li>Assisting the issuer in closing discussions and finalising the term sheets with investors.</li>\r\n</ul>\r\nIn its findings, the DFSA concluded that the investors should have been treated as clients of MASC because of the nature of the activities which MASC provided to investors. In this regard the DFSA concluded that the relevant conduct of MASC which resulted in investors being treated as clients, included:\r\n<ul>\r\n 	<li>Making statements to investors to influence them to make investments in the books;</li>\r\n 	<li>Facilitating investments in the books by, amongst other things, providing term sheets to investors, obtaining signatures of investors, sending the signed terms sheets to the issuer and overseeing the payment of the funds into the SPV accounts.</li>\r\n</ul>\r\nAdditionally, the term sheets provided by MASC included a statement that MASC was advising on the investment opportunity.\r\n\r\nThe above being the case, the DFSA concluded that the investors needed to be treated by MASC as clients and therefore the subject of the relevant provisions in COB (the Conduct of Business module).\r\n\r\nIt is clear that the scope of providing services according to a mandate entered into with an issuer, and the extent that providing additional services to an investor results in an investor becoming a client and therefore the subject of the provisions in COB, is going to be problematic for many Authorised Firms which provide these kind of services.\r\n\r\nAuthorised Firms which routinely act for issuers will now need to consider how they can manage the risk that somewhere in the continuum of providing services to the issuer, they unwittingly stray into a relationship with an investor which results in the investor becoming a client, with all of the additional obligations which an Authorised Firm owes to a client.'),
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	(98599,5357,'content_description','One of the important things about DFSA disciplinary decisions is that they provide an insight into the DFSA’s view of how particular rules work and what they mean. '),
	(98600,5357,'_content_description','field_59b641c07f473'),
	(98601,5357,'pageSummary','One of the important things about DFSA disciplinary decisions is that they provide an insight into the DFSA’s view of how particular rules work and what they mean.'),
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	(98605,5357,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Michael Dalby'),
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	(98607,5357,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','m.dalby@tamimi.com'),
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	(98582,5356,'pageSummary','The UAE Federal Supreme Court recently issued a judgment confirming that an accused person’s right of defence must be respected by the UAE Courts.'),
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	(98580,5356,'content_description','The UAE Federal Supreme Court recently issued a judgment confirming that an accused person’s right of defence must be respected by the UAE Courts.  '),
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	(98561,5355,'content_description','Protecting freedom of expression or subtle censure of arbitral bias?'),
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	(98563,5355,'pageSummary','Protecting freedom of expression or subtle censure of arbitral bias?'),
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	(98567,5355,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ismail Selim'),
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	(98569,5355,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','i.selim@tamimi.com'),
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	(98575,5355,'_yoast_wpseo_metadesc','This article reports on the decision and its implications. Prior to joining Al Tamimi and Co., the author of this article was part of Q-Soft’s legal team before the Egyptian courts.'),
	(98576,5356,'content','April 2016\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Co represented the First Defendant and obtained the favourable Supreme Court judgment on his behalf.\r\n\r\n<strong>The Indictment </strong>\r\n\r\nIt should be noted at the outset that the First Defendant (“Client”) does not accept any of the allegations made against him in the indictment.  Our Client is a UAE national and was at the material time a high-level UAE Government employee.  The Second Defendant (“D2”) was an accountant working with him.  They were both, therefore, Public Officials as defined by Article 5 of the UAE Federal Law No. 3 of 1987 as amended (“UAE Penal Code”).\r\n\r\nThe Public Prosecutor alleged in the indictment that our Client had instructed D2 to keep the cash income of the department aside, rather than depositing it in the appropriate bank account.  The amount in question is AED18m.  It was alleged that our Client used this money for personal expenditure, while D2 also received benefits for his part in the scheme.  The Public Prosecutor alleged that this behaviour amounted to an offence contrary to Article 224 of the UAE Penal Code, which states:\r\n\r\nA Public Official, or any person to whom a public service is assigned, who embezzles funds which are in his possession due to his office or assignment, shall be liable to a maximum penalty of 15 years’ imprisonment.\r\n\r\nThe Indictment further alleged that, as part of the embezzlement, the defendants had acted together to forge official documents (UAE government forms) and unofficial documents (bank statements) in order to cover up the embezzlement, in violation of Articles 216, 217, 218 of the UAE Federal Penal Code and that they used these forged documents contrary to Article 222.\r\n\r\nArticle 218 defines an ‘official document’ as a document:\r\n\r\n...which a Public Official has the competence to prepare, to be involved in the production of, or to grant an official quality.\r\n\r\nThe forged UAE government forms and bank statements were submitted to the accounting department in the relevant UAE Ministry.  Together, these forms showed that the amount received by the department had been deposited in the bank account, which was not the reality of the situation.\r\n\r\n<strong>Court Judgments</strong>\r\n\r\nD2 had made a confession during the investigation, in which he blamed our Client and stated that he was acting upon the orders of our Client.  The Public Prosecutor relied upon this confession as evidence against our Client.\r\n\r\nThe Court of First Instance convicted both defendants – our Client attended but D2 was convicted in his absence – and passed sentences of five years’ imprisonment and an AED18m fine.  The Court also made orders for the refund the embezzled amount, seizure of the forged documents and for D2 to be deported from the UAE after the execution of the sentence.  Further, and of particular significance to our Client, the Court made a number of punitive orders against him, including prohibitions on voting, acting as a legal custodian or agent, wearing national or foreign medals and managing public institutions or joint stock companies, all of which were imposed for a period of three years beginning after completion of the prison term.\r\n\r\nOur Client appealed the decision of the Court of First Instance but the court of Appeal ruled to reject the appeal on the merits, and upheld the lower court’s verdict.\r\n\r\nAl Tamimi &amp; Company filed a Cassation petition against the Court of Appeal judgment, arguing that the judgment was flawed and that it prejudiced our Client’s right of defence, as neither of the lower courts reviewed any of the allegedly forged documents in the presence of our Client, in violation of his right to properly defend himself.  Further, the lower courts had not considered critical documents that we submitted on behalf of our Client and which contradicted the confession made by D2 (upon which the lower courts had relied for the conviction) and proved our Client’s innocence of the allegations against him.\r\n\r\n<strong>Supreme Court Judgment </strong>\r\n\r\nThe Supreme Court found in favour of our Client, stating that the omission of the lower courts to allow our Client the opportunity to review the allegedly forged documents had prejudiced the fairness of the trial proceedings.  The allegedly forged documents were a fundamental aspect of the case and the courts are required by duty to scrutinise the basic evidence and defendants must be given the opportunity to review and comment on such evidence.\r\n\r\nFurther, with regard to the argument that the confession by D2 was unreliable, we had asked the lower courts to appoint an expert to review the documents submitted but, this request was rejected.  The Supreme Court found that the lower courts had also failed our Client in this regard.\r\n\r\nThe Supreme Court held that the defence advanced on behalf of our Client related to challenges of essential evidence in the case which, if such challenges were upheld, would have led to a different verdict.  The rights of the defendant must be respected and the verdict of the lower courts must be set aside and the case returned to the Court of Appeal to be heard by a differently constituted panel of judges.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThis Supreme Court ruling confirms that the right of a defendant to present his defence should be respected by the courts of the UAE.'),
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	(98528,5352,'content_description','Foreign companies and multinational firms doing business in Kuwait will need to be keenly aware of the provisions contained in Book 5 of the newly issued Capital Market Authority (“CMA”) bylaws entitled, “Securities Activities and Registered Persons” (“Book 5”). '),
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	(98530,5352,'pageSummary','Foreign companies and multinational firms doing business in Kuwait will need to be keenly aware of the provisions contained in Book 5 of the newly issued Capital Market Authority (“CMA”) bylaws entitled, “Securities Activities and Registered Persons” (“Book 5”).'),
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	(98534,5352,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Hani Thabet'),
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	(98557,5355,'content','April 2016\r\n\r\n<hr />\r\n\r\nOn 6 January 2016, Cairo Court of Appeal annulled an EGP 100 million award against the famous satirist Bassem Youssef and his TV show production company Q-Soft, thereby giving both of them a new lease of life (Cairo Court of Appeal, 7th Circuit - Commercial - 6 January 2016 – Lawsuits No 11,12,14 of Judicial Year 13). This article reports on the decision and its implications. Prior to joining Al Tamimi and Co., the author of this article was part of Q-Soft’s legal team before the Egyptian courts.\r\n\r\n<strong>Background </strong>\r\n\r\nThe dispute arose out of a contract dated 25 July 2012, whereby Q-Soft licensed Capital Broadcasting Center (“CBC”) to exclusively screen episodes of Bassem Youssef’s satirical show starting from 11 November 2012 for the duration of pre-determined screening seasons.\r\n\r\nThe satirical show, “El Bernameg”, was an unprecedented success, providing humorous criticism in 2012 and 2013 of the ousted President Mohamed Morsi, who was a senior leader of the Muslim Brotherhood. Despite numerous complaints lodged by pro-Morsi activists (which led to criminal investigations against Bassem Youssef), El Bernameg’s team sustained its satirical criticism until the Muslim Brotherhood Regime fell as a result of unprecedented protests which started on 30 June 2013.\r\n\r\nAfter a four-month break, Bassem Youssef resumed his show in October 2013, with an episode that stirred popular criticism as it appeared to satirise the Interim Egyptian President and the very popular Minister of Defence. Public opinion was divided among those who still supported El Bernameg as a matter of freedom of expression and those who disliked it for patriotic reasons. As a result, CBC decided to stop airing it on its channels and Q-Soft served a notice of termination of its contract with CBC.\r\n\r\n<strong>The Arbitration</strong>\r\n\r\nIn accordance with a clause providing for arbitration in the event of disputes, Q-Soft submitted a Notice of Arbitration against CBC to the Cairo Regional Centre for International Commercial Arbitration (“CRCICA”). Q-Soft sought compensation of EGP 1.9 million for the damage caused by CBC’s breach of the contract and its decision to stop screening episodes.\r\n\r\nCBC filed a counterclaim before CRCICA against both Q-Soft and Bassem Youssef seeking a compensation of more than EGP 363 million for their non-compliance with the terms of the contract, their intentional failure to submit the scripts of the remaining episodes to the channels’ administration, and their breach of the channels’ content/screening policies. Bassem Youssef denied the jurisdiction of the Tribunal and did not submit any claim.\r\n\r\nThe arbitral tribunal issued its award on 10 November 2014. It decided, by majority, to reject Bassem Youssef’s claim regarding the tribunal’s lack of jurisdiction and to dismiss Q-Soft’s claims as well as “Bassem Youssef’s claims” (though the latter did not seek any remedy save for its objection to the Tribunal’s jurisdiction). The tribunal decided to uphold the counterclaim and ordered that Q-Soft and Bassem Youssef were to each pay CBC EGP 25 million in compensation and another EGP 25 million in moral damages (a total of EGP 100 million in damages plus interest).\r\n\r\n<strong>Annulment Proceedings</strong>\r\n\r\nAnnulment proceedings were brought by Bassem Youssef and Qsoft before Cairo Court of Appeal.\r\n\r\nOn 6 January 2016, Cairo Court of Appeal annulled the arbitral award on two major grounds. The first ground was that the damages had been awarded without stating reasons. The other ground was that the award was a ‘breach of a constitutional right to freedom of expression’.\r\n\r\nOpting to condemn the award itself rather than the majority of the arbitral tribunal, the Cairo Court of Appeal endorsed the latter ground explicitly rather than Q-Soft’s main ground for annulment which was based on arbitral bias or partiality being contrary to procedural public policy. Q-Soft and Bassem Youssef had aimed to demonstrate that the majority of the arbitral tribunal was, for ideological reasons, irritated by the content of Bassem Youssef’s satirical TV show. They referred to the following paragraph of the award as evidence of bias:\r\n\r\n“[various types of medias] whether visible, audible, readable or electronic  should be united on preserving the interests of the country, and aim to be Egypt’s safeguard, to consider the exceptional and serious circumstances that Egypt is going through at this period, and to adopt the media charter of honor and code of ethics and the values of our community, and to refrain at this period from using any methods that aim to achieve temporary material gains at the expense of the interests of a homeland that must survive and remain”.\r\n\r\nAgain, Cairo Court of Appeal opted not to explicitly address the alleged ideological partiality or bias of the arbitral tribunal but rather emphasised the lack of reasoning of the award on damages and relied on the constitutional right of freedom of expression by stating that:\r\n\r\n“It is not permissible--under the veil of discretionary power--to alter the principles set by the Constitution or to separate such principles from the purpose of their enactment or their final objective. Constitutional principles are not enacted in alienation, merely as philosophical principles, and hence, they do not exist in a vacuum. The objective of constitutional principles is general wellbeing as it guarantees in its substance an idea of fairness that is compatible to the modern democratic state which it aims to create and to ensure the welfare of its people.\r\n\r\nThe judgments of the Constitutional Court have confirmed that the freedom of expression of one’s views and the ability to express such views either orally or photographically or by any other mean of communication, is described in the Constitution as the “Mother” of rights, in the absence of which, no open dialogue exists. The safeguards provided for by Constitutions in relation to freedom of expression is constituted on the guarantee of the expression of views, ideas, and their articulation to others, in order to expand horizons and to increase the sources of knowledge to all. Freedom of expression is a supreme value/principle, from which derogations are not permissible ”.\r\n\r\nIt is well known that Bassem Youssef is a major political satirist and harshly critical of the present Egyptian President and others. Nevertheless, the 7th Commercial Circuit of Cairo Court of Appeal confirmed the independence of the Egyptian Judiciary by annulling the arbitral award on the basis of constitutional rights pertaining to public policy. By setting aside this award, the Cairo Court of Appeal affirmed their pro-arbitration stance by safeguarding the reputation of arbitration from an award grounded in arbitral bias.\r\n\r\n&nbsp;'),
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	(98508,5350,'_yoast_wpseo_metadesc','It has been widely reported that the government of Saudi Arabia has introduced a tax on undeveloped urban land, so called “white lands”.'),
	(98509,5351,'content','March 2016\r\n\r\n<hr />\r\n\r\nThe Egyptian Labour Law is pro-employee and imposes limits on employers’ rights. For example, if local parties under a fixed-term contract continue the working relationship beyond the original term of the contract, or agree to automatic renewal and create no new contract, the contract is automatically renewed and becomes an indefinite-term contract, thus limiting the employer’s right to terminate the employee. Thus, an employer that does not wish to be put in the position where it cannot terminate an employee whose performance is dissatisfying should consider entering into a fixed-term contract of short duration, renewable as many times, but pursuant to new analogous contracts freshly executed each time. Once this expires, the employee will have no rights of termination compensation under the law.\r\n\r\n<strong>Military leave</strong>\r\n\r\nWhile the Labour Law largely dictates employment requirements, there is a question over an employer’s position with regard to an employee who is required to undertake military service. If an employee is on a fixed-term contract and must undertake military service and returns after his contract ends, is the employer bound to reinstate him in accordance with the Law on Military and Patriotic Service (No. 127 of 1980)?\r\n\r\nArticle 43 of the law (as amended) provides that (Arabic text prevailing):\r\n\r\n“The administrative body of the state, municipality units, general authorities, public sector companies, business public sector companies, private companies, associations and institutions and employers must keep, to whom is undertaking his military service, staying thereafter or called in for service thereafter amongst the employees, their position or analogous position until the end of the military service, the stay thereafter or the call in thereafter. The said position may be filled on temporary basis during such period.…\r\n\r\nThe employee or worker shall return to his job or work kept therefore if he so requests within thirty days from the day he is released from military service or the stay thereafter and within one week from the date of his release after the in-call for service.\r\n\r\nHe must be returned to work within sixty days from the date of submitting the request. The date of submitting the request shall be the date of his reinstatement at work.…\r\n\r\nIf the employee or worker does not submit his request on time or start his work within thirty days or a week, respectively, from the date of the reinstatement order, the request to be reinstated may be rejected unless the delay is for due cause.\r\n\r\nThe employee or worker shall remain entitled during his military service, the staying thereafter and the in-call for service thereafter, to his promotions and bonuses, as if he were performing his work. The service period shall be added to their work period and accounted for in respect of the bonus and pension. He shall also be accounted for the additional service periods and additions in the calculation of such bonus or pension according to Law No. 90 for the year 1975 on Insurance, Retirement and Pensions of the Armed Forces.\r\n\r\nThe service period shall be deemed successfully completed if the employment was under probation. During the period of stay after the military service and the in-call for service, all material and moral rights and other advantages including allowances, bonuses and production incentives disbursed to their peers at their original work locations shall be paid thereto in addition to what the Ministry of Defense pays therefore for the stay or call period.”\r\n\r\nBecause the law does not stipulate whether reinstatement is obligatory,  even if an employee is on a fixed-term contract that has expired, several questions are raised. Does Article 43 create a new right for the employee and impose a new obligation on the employer? Is Article 43 limited to indefinite-term employment contracts and events where the period of absence for military service does not extend beyond the term of the fixed-term employment contract?\r\n\r\nIt appears from Cassation Court Case no. 876 of the Judicial Year 48 that the Egyptian Court of Cassation does not view Article 43 as a special clause that prevails over the Labour Law and the employee contract. They have adopted the opinion of many scholars that there should be no automatic extension with regard to fixed-term contracts. The undertaking of military service is not a tool to prevail over the nature of terms and conditions of the employment contract.\r\n\r\nIt is a step towards equality between the interests of the employer in relation to those of the employee.\r\n\r\nA version of this article was recently published in International Financial Law Review.');

