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	(98513,5351,'content_description','Despite the removal of references to “socialism” and “socialist” terms from the 1971 Constitution and the absence of these words in the current 2014 Constitution, Egyptian laws still adopt socialist principles and it can be said that Egypt remains socialist country. '),
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	(98515,5351,'pageSummary','Despite the removal of references to “socialism” and “socialist” terms from the 1971 Constitution and the absence of these words in the current 2014 Constitution, Egyptian laws still adopt socialist principles and it can be said that Egypt remains socialist country.'),
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	(87946,4784,'content_description','In a unique and significant decision, the Abu Dhabi Court of Cassation established a number of important principles relating to the enforcement of international arbitral awards.  '),
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	(87948,4784,'pageSummary','In a unique and significant decision, the Abu Dhabi Court of Cassation established a number of important principles relating to the enforcement of international arbitral awards.'),
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	(87961,4785,'content','October 2013\r\n\r\n<hr />\r\n\r\nThe UAE labour law applies to the majority of employees in the UAE. However employees of governmental or semi-governmental organisations or government companies (“Public Entity or Public Entities”) may be subject to the UAE Labour Law or the appropriate civil service law (either Federal or Emirate level) (“Civil Service Law”). In practice the position in respect of the applicable employment law for Public Entities can often be unclear.\r\n\r\nFrom an employer’s perspective the UAE Labour Law is a much more beneficial legal framework to work within as the Civil Service Law places quite onerous requirements on the employer, particularly in relation to termination of employment.\r\n\r\nIn this article we will identify and discuss the law to be applied to the employees of Public Entities both at a Federal level and at an Emirate level.\r\n\r\n<strong>Federal Level </strong>\r\n\r\n<strong>What are Public Entities?</strong>\r\n\r\nThe UAE Labour Law states that it does not apply to employees of Federal and local public departments and organisations. The terms ‘public department’ and ‘public organisation’ are not defined and are capable of very broad interpretation. Meanwhile the Federal Civil Service Law states that it applies to (i) employees who receive their salary from the Federal budget, and (ii) civil servants working in “public federal institutions and bodies’. The first category is easy to define but the second one is broader and in some cases difficult to discern, particularly in respect of government companies.\r\n\r\nGovernment companies are not specifically excluded by Article 3(1) of the UAE Labour Law and not specifically included in the Federal Civil Service Law. The question therefore is whether the definition of public entities in the UAE Labour Law includes companies established by the government and either fully or partially owned by the government?  To answer this we must look at the court rulings.\r\n\r\nIn Appeal No. 379/2004  (Judicial Year of 25), the Higher Federal Court held that Article 3(1) means that the UAE Labour Law is not applicable to the officials, employees and workers of the federal and local public departments and organisations and that the Civil Service Law applies to these employees instead. In its decision the Court mentioned that provisions of the particular law creating the company in question did not stipulate that the company was to be considered a public entity, but instead that it was a national joint stock company which enjoys an independent legal personality. The Court therefore found that the company was not to be considered a public entity, and accordingly its employees are not considered to be public servants subject to the Civil Service Law\r\n\r\nA further example of this principle can be found in Appeal No.663/2002 (Judicial Year of 23) in which the Federal Supreme Court ruled that Federal Law No. 1 of 1991 (which created the Emirates Telecommunication Corporation (Etisalat), does not contain any provision stating that the entity is to be considered a public entity. The particular law states that the company is to be managed on a commercial and investment basis, but that the government shall own at least 60% of the company and that five members of the board of directors shall be appointed by the Cabinet to represent the Government. Nonetheless the Court concluded that Etisalat is not to be considered a public entity, but a private joint stock company.  This suggests that if the law setting up the company states that the entity shall be managed on a commercial and investment basis, this may indicate that it is to be a private company for the purpose of the applicable law for its employees.\r\n\r\n<strong>Can a government entity use the Labour Law anyway?</strong>\r\n\r\nYes, most of the Court rulings establish that where a Public Entity is not subject to the Civil Service Law then the UAE Labour Law shall apply.\r\n\r\n&nbsp;\r\n\r\n<strong>Emirate Level- Abu Dhabi </strong>\r\n\r\n<strong>What are Public Entities?</strong>\r\n\r\nThe Abu Dhabi Civil Service Law states that it only applies to employees who receive their salaries from the General Budget of the Abu Dhabi government. Accordingly it should be a very simple exercise to establish which Public Entities are subject to the Abu Dhabi Civil Service Law.  However there have been Court judgements that have applied the Civil Service Law to Public Entities whose employees were not paid from the General Budget but whose founding decree defined it as a public body. Caution must be exercised in this area.\r\n\r\n<strong>Can a Public Entity use the Labour Law anyway?</strong>\r\n\r\nIt depends. In most cases it will be clear whether the employees receives their salary from the general budget or whether they are working for a government department, in which case the Public Entity does not have any discretion. However in respect of government companies the position must be considered on a case by case basis. There are many government companies in Abu Dhabi that apply the Labour Law. The key to this is often down to the description of the company in the founding decree as the following case illustrates.\r\n\r\nIn a case last year (Appeal No. 84-2012 (administrative)) the Abu Dhabi Court of Cassation held that although the company’s human resources policy and a contract of employment stated that the UAE Labour Law was to apply, because the founding decree establishing the company provides that it is a public entity the Civil Service Law shall be applied instead\r\n\r\nThis means that if the law establishing the entity states that it is a public company, the Civil Services Law will apply regardless.\r\n\r\n<strong>Possible Exemptions in Abu Dhabi</strong>\r\n\r\nThe Civil Service Law in Abu Dhabi grants the Abu Dhabi Executive Council the authority to issue a resolution implementing its provisions to any entities or authorities or to exempt same from the application of its provisions (see article 2(2)). It is not clear however whether any exemptions have been granted.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nAt a Federal level if the law establishing a government company fails to state that the company is to be considered a public entity, then it is likely that the UAE Labour Law will apply. This is especially so where the law states that the company is to be managed on a commercial and investment basis.\r\n\r\nIn the Emirate of Abu Dhabi, the law applicable for employees of Public Entities is the Civil Service Law unless (i) the founding decree of the government company defines it as public or (ii) the Executive Council issues a resolution granting an exemption.'),
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	(87975,4786,'content','October 2013\r\n\r\n<hr />\r\n\r\nThe Dubai Chamber of Commerce and Industry President and CEO, Hamad Buamim recently confirmed that the Dubai government is currently considering a proposal to tax remittances.  Whilst I think it is unlikely this proposal will come to fruition, it is worth considering how personal and corporate tax will affect the UAE.\r\n\r\nThere is presently no income tax for individuals and limited tax for companies based in the UAE.  Each emirate has its own corporate tax rate and tax is only imposed on the income of oil and gas exploration companies and branches of foreign banks.\r\n\r\nMost countries’ tax systems are based on direct taxation imposed on individuals income and property; and indirect taxation imposed on transactions.  For example, the tax policy in the European Union is made up of direct taxation which is administered solely by the Member States and indirect taxation affecting the free movement of goods and the provision of services.  Other countries are implementing specific purpose taxes such as carbon tax to discourage businesses and industries from emitting greenhouse gases.\r\n\r\nThe UAE government’s expenditure is increasing as it develops the country’s infrastructure.  It is reasonable for the government to introduce fees to maintain the capital investments it has made.  In my opinion, introducing a low level of tax for local and international companies in the UAE is not a bad idea.  Implementing taxation will generate income for local and federal governments.  However, income is not the only driver behind introducing tax.  Taxation will require proper corporate governance for all companies operating within the UAE.  Companies will need to implement accurate accounting and auditing mechanisms.  Many family run businesses do not yet have such practices and they are not standard across the UAE.  It will also increase the demand for local accountants and financial controllers and encourage people to study and develop their skills in these fields.\r\n\r\nRequiring companies to file taxation returns will provide the UAE government with valuable knowledge and insight into the companies operating within the UAE.  It will also be detrimental to shell companies operating with ulterior motives so the government can remove them from the economy.  A number of expatriates contribute minimally to the UAE economy because they send the majority of their income to their home country and so introducing taxation will cause a portion of their income to remain in the UAE.  Additionally, it will encourage investment in NGO’s and charitable organisations because they will be tax deductable and the UAE community will benefit from a rise in non-profit fundraising for humanitarian, cultural, educational and athletic causes.\r\n\r\nA number of countries have double taxation treaties with the UAE.  Paying tax locally would not affect companies from these countries because it will be taken into account when they repatriate income to their home countries.\r\n\r\nThere are a number of negative implications associated with introducing tax and the administrative cost of direct taxation needs to be taken into account.  If the tax is a small amount such as one to two percent, there is a real possibility that the governmental cost of administering the tax may be greater than the income received from the tax.  The administrative cost is therefore likely to dictate the rate of tax payable.\r\n\r\nOne of the main attractions for businesses and individuals to relocate to the UAE is its tax-free status.  The UAE’s financial model and tax free reputation has resulted in most international and multinational companies choosing the UAE as their headquarters for distribution throughout the Middle East and Africa.  Imposing a tax would have a significant impact on emirates such as Dubai and Abu Dhabi which have attracted individuals and businesses based on their low tax profile and tax free zones.  If the UAE becomes more expensive for these businesses and individuals, it may cease to be competitive with other Gulf States, resulting in companies relocating and expats moving elsewhere.\r\n\r\nThe UAE economy was originally based largely on oil and there is concern that its income is too reliant on it.  The income has now diversified and the UAE has found other sectors to boost the economy and encourage the growth of the private sector.  The UAE has been innovative and creative in establishing 26 special purpose zones including the DIFC, RAK Free Trade Zone, Jebel Ali Free Zone, Ajman Free Zone Authority and the recently announced Al Maryah Island financial free zone in Abu Dhabi.  Dubai and Abu Dhabi consistently rank highly as top investment destinations worldwide.\r\n\r\nIn my opinion, it is unlikely that the UAE will introduce tax on repatriation of capital because it goes against everything that the UAE has developed over the past 20 years.  However, introducing a minimum tax rate of one or two percent is worth evaluating because it will benefit the UAE economy by sophisticating its corporate structure as well as earning the government additional income to be invested in the UAE infrastructure.  It is important to have an informed debate about fiscal policy within the UAE to ensure nothing is introduced that adversely affects the UAE’s status or diminishes its competitiveness as a trading nation.'),
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	(87979,4786,'content_description','Every few years a rumour circulates around the UAE community about the government’s intention to introduce corporate or income tax. '),
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	(87981,4786,'pageSummary','Every few years a rumour circulates around the UAE community about the government’s intention to introduce corporate or income tax.'),
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	(87983,4786,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/is-income-tax-or-corporate-tax-an-option-for-the-uae.html'),
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	(87994,4787,'content','October 2013\r\n\r\n<hr />\r\n\r\nHowever, what remains a thorny issue in the construction industry is delay, which is caused by various factors, including lack of funding, local regulations, lack of management and or otherwise.\r\n\r\nSo what does Law No. 6 of 2004 Organising Construction in the Towers Area of Modern Doha (the ‘Dafna Law’) state with regard to the following classic scenario: land in the Dafna Area has been purchased, the required building permits have been obtained, construction work has commenced, and delay in completing construction within the time frame specified under said law occurred.  What action is the relevant authority entitled to take under such law?  And what are the land owners’ options/remedies, if any?\r\n\r\n<strong>General Overview on Property Ownership</strong>\r\n\r\nLaw No. 6 of 1963 restricted freehold estate in Qatar to Qatari nationals (individuals or juristic bodies); however, in 2002 the State of Qatar introduced a new piece of legislation allowing the Gulf Cooperation Council member countries (GCC) to own up to three properties in residential areas subject to certain restrictions.  Furthermore, Ministerial Resolution No. 5 of 2006 permitted nationals of the GCC member states to own properties in the following three areas the Lusail, Al Kharayj and Jabal Thuaileb.  The 2002 legislation was followed by Law No. 17 of 2004 granting non-Qataris the right to own properties in the Pearl, West Bay Lagoon and Al Khor.  The said law also granted non-Qataris the right to hold usufruct rights - restricted to 99 years - renewable in 18 additional areas defined as ‘Investment Areas’.\r\n\r\nAl Dafna Area is one of the 18 Investment Areas listed under Ministerial Resolution No. 6 of 2006 issued in relation with Law No. 17 of 2004.  As such, freehold in Al Dafna is restricted to Qatari nationals unless an exemption is granted by virtue of an Emiri Decree.\r\n\r\n<strong>The Dafna Law </strong>\r\n\r\nArticle 2 of Dafna Law requires land owners to complete construction within five years from the Law’s effective date or from the date of contracting or acquiring the land, with an obligation to obtain the necessary permits and commence construction within three years of the aforementioned period.  A breach of Article 2 entitles the Ministry of Municipality and Agriculture - now being the Municipality and Urban Planning (the ‘MMUP’) with the right to acquire the relevant land upon compensating the land owner for such acquisition.  Compensation under the said law is estimated in accordance with the price list effective at the time of contracting or ownership and within a maximum price of QAR40/sq ft for residential lands and QAR60/sq ft for commercial lands.\r\n\r\nThe said law also prevents land owners from disposing of title to land prior to completing any construction work.  A transfer is only permitted subsequent to (a) the land owner’s payment for the land price in full or after submission of a financial guarantee that is acceptable by the MMUP; and (b) obtaining a construction certificate issued by the competent authority at the MMUP.  The financial guarantee is only acceptable in lieu of cash if the full price of the project cannot be paid in cash for the construction certificate to be issued.  In other words, the financial guarantee cannot be lodged to transfer property before construction is complete.\r\n\r\n<strong>The Current Practice</strong>\r\n\r\nProperty developers often wish to know whether the local authority (herein the MMUP), has been adhering to the time frame requirement of the Dafna Law and whether such authority does actually resort to acquiring land in the event land owners fail to abide by such requirements.\r\n\r\nExperience demonstrates that the MMUP is in fact active in its attempts to adhere to the Dafna Law requirements and has recently approached the Real Estate Registration Department with at least ten acquisition requests resulting from the land owners’ failure to meet the Dafna Law time frame for completing construction.  The Dafna Law remains applicable to all types of lands in the Dafna Area regardless of whether such lands were granted by a special Emiri Decree or otherwise.\r\n\r\n<strong>Summary of the MMUP procedures  </strong>\r\n\r\nIn co-operation with the Real Estate Registration Department, and in the event the MMUP’s records indicate that construction for a certain project has not been completed within a five year period, the Acquisition Department at the MMUP notifies the land owner(s) of the failure to complete construction and of the MMUP’s decision to acquire the land against compensation in compliance with Article 3 of the DAFNA Law.  The said law does not provide for a specific notice period to be observed, therefore, the MMUP has the right to notify the land owner of the same and to immediately proceed with the acquisition procedures thereafter.  The said law also does not provide for a course of action to be taken by affected land owners; however, in practice land owners have been able to complain against the offered compensation.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nAs noted above, in addition to the restriction on ownership transfer before obtaining the relevant construction certificate, land owners in the Towers of Al Dafna Area are subject to the risk of land acquisition in the event of failure to complete construction within the time frame provided for under the Dafna Law.  The said law does not entitle land owners to a grace period in order to complete construction if construction is delayed beyond the five years time frame; nor does the MMUP seem to refrain from enforcing its rights under the said law.\r\n\r\nHowever, it is advisable for land owners to always communicate with the MMUP to keep the latter informed of construction progress and any expected delays before the five years deadline.  Although there is no guarantee that the MMUP will take into account the reasons put before it, it may nevertheless delay its right in executing acquisition if it believes that construction is nearing completion or there are reasonable grounds for any delay.'),
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	(87998,4787,'content_description','The rate of construction projects in Qatar has been increasing rapidly in recent years and the same is expected to rise as we come closer to the 2022 World Cup.  '),
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	(88000,4787,'pageSummary','The rate of construction projects in Qatar has been increasing rapidly in recent years and the same is expected to rise as we come closer to the 2022 World Cup.'),
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	(88004,4787,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Seem Maleh'),
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	(88013,4788,'content','October 2013\r\n\r\n<hr />\r\n\r\nThis media coverage had many people in the UAE talking about the legal risks of using social media in the UAE, and the importance of being aware of the applicable law. In this article, we touch on some of the legal provisions that might make social media users think twice before posting risky content.\r\n\r\n<strong>Photographs</strong>\r\n\r\nCare needs to be taken when posting pictures of others online, including via social media sites. The Cyber Crimes Law (Federal Law No. 5 of 2012) makes it an offence to use any IT means to breach someone else’s privacy, including by taking pictures of others, or publishing or displaying those pictures. The UAE Penal Code (Federal Law No 3 of 1987) makes it an offence to transmit someone’s photograph without their consent. (Our view is that this is likely to extend to moving images, and not only still images.) The Copyright Law (Federal Law No 7 of 2002 in Respect of Author Copyrights and Parallel Rights) states that, in the absence of an agreement to the contrary (and with limited exceptions), a person who takes a picture of another cannot distribute or publish such picture without the consent of the person appearing in the picture.\r\n\r\n<strong>Privacy and confidentiality</strong>\r\n\r\nThe importance of the sanctity of the individual’s private life is recognised in a number of provisions of UAE law. Disclosing secrets relating to someone’s private life, without that person’s consent, can attract liability under the Penal Code and the Cyber Crimes Law. Similarly, the disclosure of confidential information, such as information belonging to an employer, can also attract legal liability in the UAE. Many of the ‘scandals’ involving social media that we read about in the local press involve the unauthorised disclosure of information relating to the private lives of the victims, or the unauthorised release of commercially sensitive information.\r\n\r\n<strong>Defamatory statements</strong>\r\n\r\nThe Penal Code makes it an offence to publish information that exposes another person to public hatred or contempt, or to make a false accusation which dishonours or discredits another person. The Cyber Crimes Law contains similar provisions that prohibit insulting others, or attributing to them conduct that would make them the subject of the contempt. Users who post defamatory statements about another person on a social media platform may find that they breach UAE law.  It is not always essential for the statement to be false in order for it to be considered defamatory. UAE law also protects commercial reputations, so those operating on-line sites or social media pages that allow the public to provide feedback (eg. about poor service and the like) should familiarise themselves with the risks to which they may, as site operators, be subject.\r\n\r\n<strong>Content contrary to morality, social cohesion, etc.</strong>\r\n\r\nThe Cyber Crimes Law makes it an offence to use any IT means for activities which are inconsistent with public morals and good conduct. This could include content that is un-Islamic, blasphemous, lewd, that encourages sinful activity, or that is aimed at corrupting minors, etc. It can also extend to content that might negatively impact on social cohesion and peace, such as content that that stirs sedition or sectarianism, mocks the leaders of the nation, or that hurts national unity or social peace. UAE law contains some interesting provisions relating to the responsibility of site operators for user generated content that is considered to breach these types of prohibitions, and some interesting provisions relating to the extra-territorial application of UAE law in an on-line context. Once again, users of social media should familiarise themselves with the social mores of the UAE, and the applicable law.\r\n\r\nAl Tamimi’s Technology, Media &amp; Telecommunications team regularly advises on a variety of social media issues, ranging from preparing social media policies for corporate use through to removing fraudulent social media profiles and addressing defamatory content. For any assistance with legal issues involving social media, please contact Nick O’Connell  n.oconnell@tamimi.com or Anita Siassios a.siassios@tamimi.com'),
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	(88036,4789,'content','October 2013\r\n\r\n<hr />\r\n\r\n<strong>What is a “spin-off”?</strong>\r\n\r\nA spin-off is the creation of an independent company through the roll-over of an existing business/division of a company to a new legal entity.  A spin-off operation is where a company, which engages in various activities, creates a new company which specialises in one specific area of business.  The company spins-off the business to a newly created company in which the shareholders are identical to the shareholders of the original company spinning-off that business.  Following the transaction, both the original company and the new spun-off company are completely separate and independent legal entities.  The newly-created entity will be specialised in one activity.  Consequently, following the spin-off exercise there would be different specialised activities within one group of entities.\r\n\r\n<strong>Reasons for a Spin-Off</strong>\r\n\r\nSpin-off transactions have the ability to create new opportunities for companies.\r\n\r\nSome reasons why a company would engage in a spin-off include:\r\n<ul>\r\n 	<li>Focus on its core business and present a clearer financial picture of the separate entity;</li>\r\n 	<li>Have a better targeting of investors;</li>\r\n 	<li>Develop and realise full shareholder value;</li>\r\n 	<li>Refocus one activity which creates a positive effect on the valuation of shares;</li>\r\n 	<li>Give a better allocation of internal capital within the conglomerate;</li>\r\n 	<li>Assist in improving the performance of management;</li>\r\n 	<li>Be more responsive to the market’s evolution;</li>\r\n 	<li>Assisting in tax planning;</li>\r\n 	<li>Creating a positive effect on the valuation of a conglomerate and therefore on the value of the securities held by the company’s shareholders ; and (perhaps most importantly)</li>\r\n 	<li>Provide asset protection concerning the debts of one particular business activity. For the original company, perhaps the principal benefit of spinning off a troubled or risk-ridden operation is that the market value of the presumably profitable remaining businesses may be enhanced by the elimination of risk-ridden or under-performing assets.</li>\r\n</ul>\r\nThese reasons explain and justify the rationale for companies using this alternative option as a key solution to improving their financial performance and efficiency.  However, in sophisticated tax jurisdictions, care needs to be taken that the disposal of a part of the business does not trigger tax consequences such as a capital gains tax disposal.  In fact tax consequences such as triggering capital gains tax events, or loss of an ability to utilise losses is perhaps the biggest down-side of a spin-off.\r\n\r\n<strong>Case Studies</strong>\r\n\r\nCorporate spin-off is not a recent phenomenon.  Since the wave of consolidation in the United States and Europe in the 1980s, some academic research has concluded that when a business conglomerate has various economic activities, its value decreases. A company’s value is negatively influenced by the diversification of its activities when it has at least two distinct business sectors.\r\n\r\nSince 2005, there have been significant spin-off transactions:\r\n\r\n• In 2006, creation of Arkema, separated from Total.\r\n\r\n• In 2008, creation of Axway, separated from Sopra Group.\r\n\r\n• In 2011, creation of TripAdvisor, separated from Expedia.\r\n\r\n• In 2011, creation of Aperam, separated from ArcelorMittal.\r\n\r\n• In 2013, creation of Osram, separated from Siemens AG.\r\n\r\nEven Expedia’s board has approved a plan that would break the company into two public companies. One would be a travel agency, focused on selling air, hotel and car rentals and the other one would be TripAdvisor, the travel reviews site that operates in 27 countries and 19 languages.\r\n\r\n<strong>Qatar</strong>\r\n\r\nChapter 9, Section 3 of the Qatari Commercial Companies Law (Law No. 5 of 2002) allows for corporate spin-offs.\r\n\r\nAccording to the Qatari provisions, a company may be divided into two or more companies with either termination or preservation of the company subject to division. Moreover, the companies arising from the spin-off have an independent legal personality with all its respective effects (Article 278).\r\n\r\nThe new company which is spun-off is able to take any of form permitted by law (Article 279).\r\n\r\nCompanies resulting from the spin-off shall be successors to the initial company, and shall be its legal substitute within the limits of what has been transferred to it from the initial company (Article 280).\r\n\r\n<strong>How Corporate Spin-Offs  May Be Useful In Qatar</strong>\r\n\r\nCorporate spin-offs may help attract investment in Qatar. Since the new entity is specialised in one specific sector, the new investor can have a better picture of its economic health.\r\n\r\nIn addition, a spin-off transaction creates a separation of the different companies’ legal status and results in one entity becoming immune from problems of the other. Therefore, a company would not be liable for the debts of another company within the same group. This can also work for carving out toxic assets.  However, factors such as timing and economic specificity of the country are critical to successful spin-off planning.\r\n\r\nGiven the structure of many Qatari companies, especially family businesses that have traditionally developed into multiple-sector operations, a corporate spin-off may prove to be an attractive option to increase financial performance and diversify their activities and concentrate their efforts on one sector; and the market may react positively to announcements of spin-offs.  Furthermore for family business in estate planning and succession it may be an effect mechanism to divide assets amongst family members simply and can be used inter vivos as well.\r\n\r\nFor 100% Qatari-controlled businesses, there are no tax consequences in undertaking a spin-off, but for companies that have foreign shareholding, tax does become a consideration that needs to be taken into account.'),
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	(88059,4790,'content','October 2013\r\n\r\n<hr />\r\n\r\nBreathtaking projects competed in turn with astounding initiatives to make up what seemed an unending march of economic progress.  In that hectic year, the then Minister of the Economy of the UAE, Shaikha Lubna Qasimi,  was quoted in the media as announcing that the UAE Government was introducing a new Companies Law.\r\n\r\nMuch has changed since 2006, but the UAE Companies Law has not.  The global financial crisis of 2008 was a fiscal asteroid which changed the business landscape.  The crisis is now recognised as a near miss with economic catastrophe, which could well have taken the world to the bottom of an economic abyss almost as deep and black as that which opened in 1929.\r\n\r\nThe 2008 global financial crisis left casualties.  Many of the breathtaking projects and astounding initiatives were scaled back or abandoned altogether.  Likewise, the UAE Companies Law is yet to be enacted.\r\n\r\nThe long delay has not been kind to the draft Law.  Reports circulating in 2006 foreshadowed a new corporate framework with more sophistication and flexibility than any in the region; a Law far more advanced than the 1984 UAE Companies Law which would accommodate the “leading edge” deal making and the sophisticated legal and financial arrangements fashionable before the 2008 crisis.\r\n\r\nAround 2008, the draft Companies Law disappeared into a Bermuda Triangle of opaque government committees and processes.  The draft resurfaced only in 2012.  To the dismay of many, the new draft Law had regressed back to the 1984 law, with an extensive but superficial touch up.  Most provisions have been “fine tuned” but nothing much has changed.  It will be difficult for observers to detect changes in business practices or legal processes when the new law is enacted.\r\n\r\nAlthough the draft Law has now received the approval of Federal National Council it has no force of Law until the UAE Council of Ministers approves it and the Federal Supreme Council enacts it.\r\n\r\nMedia reports on the new Companies Law have until recently speculated it would liberalize the existing 49% limit on foreign investment (possibly in services sectors and in the areas of “mega projects” of national importance). Foreign investment policy issues have been kicked down the road into a new Investment Law, which to date remains unseen.\r\n\r\nThe new Law reflects a conservative and minimalist approach to corporate law reform.  So the problems are not the provisions which were included but the provisions which were not\r\n\r\nBelow is my top five “wish list” of things which are missing from the new Law but which would be welcomed as reforms.\r\n\r\n<strong>1.   No provision for sell-downs in IPOs</strong>\r\n\r\nUnder both the 1984 Law and the new Law, public offerings in public joint stock companies must constitute fresh capital raisings and there is no ability for founding shareholders to sell down.  This restriction on sell-downs reduces the attractiveness of local financial markets to issuers and renders UAE IPOs of limited use as a liquidity exit for private equity players.\r\n\r\n<strong>2.   No differential voting rights and no provision for non-voting shares</strong>\r\n\r\nJust as in the 1984 law, every issued share must be a voting share with the same voting rights attached.\r\n\r\nThis inflexibility inhibits sophisticated financing transactions and also creates problems for family businesses wishing to put in place orderly succession and stewardship.\r\n\r\n<strong>3.   No possibility of removing entrenched statutory pre-emptive rights in LLC companies</strong>\r\n\r\nUnder the 1984 Law every shareholder in an LLC has a statutory right of pre-emption over all the other shares that they do not hold and this regime continues under the new Law.\r\n\r\nIt would be flexible and useful if shareholders could opt in or out of pre-emptive rights in any LLC, according to the terms of the Company’s agreed Memorandum of Association.\r\n\r\n<strong>4.   No takeover code for listed companies</strong>\r\n\r\nThe 1984 Law provides no machinery securing investors in listed companies with an adequate timeframe to consider any proposal for change in control; nor does it specify the type of information which should be provided to investors where a takeover bid is made.  There is no compulsory acquisition machinery to provide a way for successful bidders to “mop up” non-responsive small minorities.\r\n\r\n<strong>5.   No statutory assumptions as to powers of company managers</strong>\r\n\r\nThere would be great benefits to the facilitation of everyday commerce, finance and dealings with government authorities if the new Law specified statutory assumptions which outsiders dealing with general managers of Companies are entitled to make; in particular, outsiders should be able to assume that a general manager of a Company has the power to enter into transactions and sign official documents for and on behalf of the company without viewing notarial powers of attorney given by shareholders.  However, to work to best effect, those provisions would require the back-up of a public and online database of company managers, a public record which presently exists only in relation to the officers of DIFC companies.\r\n\r\nAbove are the top five things which are missing, here are my top five changes which you will notice when the new Law comes into force:\r\n\r\n<strong>1. Abolition of the “two shareholder” rule in the case of LLCs.</strong>\r\n\r\nLLCs continue to be restricted to fifty shareholders but they will be permitted to have only one shareholder.\r\n\r\n<strong>2. Ability to pledge shares in LLCs. </strong>\r\n\r\nThe new law expressly permits shareholdings in limited liability companies to be pledged to secure debts.  It is not clear if only banks licensed by the Central Bank will be able to take the benefit of such pledges as security (a restriction which applies to real estate mortgages).\r\n\r\n<strong>3. The ceiling of five on the number of individuals who can serve on the Board of Managers of an LLC will be removed by the new Law.</strong>\r\n\r\n<strong>4. New prohibition on joint stock companies providing financial assistance in connection with the acquisition of their own shares or bonds </strong>\r\n\r\nThis will be the first time UAE Law has imposed a prohibition on financial assistance in these transactions.\r\n\r\n<strong>5. Strategic placements permitted in joint stock companies without pre-emption rights applying </strong>\r\n\r\nThis allows the issue of new joint stock company shares through placements to particular investors without having to exhaust the statutory pre-emption rights over new issues, provided the placement is made to a strategic investor involved in the same or a related industry as the company.\r\n\r\nAside from the long period taken to deliver a modest degree of change, the other curious thing about the new Law is that it does not incorporate provisions which would facilitate sophisticated financial and legal structures and arrangements commonly used in the UAE.  Ironically, many of these sophisticated structures and arrangements are used by government owned business and investment entities.  The new UAE Law is also less sophisticated and flexible than the DIFC Companies Law and the corporate laws recently enacted in some other GCC countries, including Bahrain, Qatar and Kuwait.\r\n\r\nThe new Law is undoubtedly a step forward, but it is a conservative and carefully measured small step forward, not a great leap for law reform.\r\n\r\n<em>First published in Zawya, September 2013</em>'),
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	(88074,4791,'content','October 2013\r\n\r\n<hr />\r\n\r\nWith a ‘head for figures’ and an interest in finance, New Zealand-born Kevin Hall seemed destined for a career in financial services.  He studied Accountancy at the University of Auckland and his first job was with the National Bank of New Zealand where he worked in general banking and as a branch accountant.  This was followed by a role as the financial controller for Trust Bank – a new bank that was being set up in New Zealand, where Kevin then spent 7 years.\r\n\r\nKevin’s first foray into the world of law firm management came when he joined leading New Zealand law firm Brookfields in 1996 as financial manager.  During the next 11 years, Kevin’s role grew to include managing the IT, marketing and administration functions of the business and he was appointed CEO of the firm.\r\n\r\nIt was in 2007 that Kevin began thinking about the next step in his career and with their children away at university, he and his wife Arlene began thinking about opportunities further afield.   “We originally considered Hong Kong – a lot closer to home than the Middle East!” laughs Kevin.  “But an opportunity arose at Al Tamimi &amp; Company which all of a sudden made Dubai seem like an attractive option.”\r\n\r\nKevin travelled to Dubai to meet with the partners of the firm and was immediately enthused at the prospect of the role at Al Tamimi.  “The firm had a great reputation and an exciting vision for the future.  I was confident my skills were transferable and my meetings with the management team were very positive – I was sure I could bring a lot to the firm and play an important part in its growth.”\r\n\r\nIndeed, since Kevin joined the firm in 2007 Al Tamimi has witnessed phenomenal growth.  The firm has seen new international offices open in Jordan, Qatar, Kuwait and Saudi Arabia and lawyer numbers grow from 99 to over 240.  As General Manager, Kevin is responsible for the firm’s overall business operations, with key functions including developing and executing strategic and operational business initiatives, preparing financial budgets and helping to manage the firm’s overall financial performance. With a regional management team in place, Kevin also keeps a handle on the  firm’s day-to-day operations, including Accounting, HR Management, Marketing/Business Development and IT.\r\n\r\nKevin has been quoted as being ‘instrumental in successfully guiding the firm through unprecedented tumultuous economic times in the Middle East’ and his leadership skills and professionalism have earned him the respect and admiration of many who work with him.  This feeling is entirely mutual as he credits the best part of his job as being “the people I work with – hands down.”  Kevin has nothing but the highest praise for the people he works with – from the partners and lawyers to the support and administrative staff – and considers everyone’s contribution to the success of the firm as invaluable.  “We work in a very multi-cultural environment at Al Tamimi – which is both rewarding and extremely interesting.  As a firm we celebrate Eid, Diwali and Christmas and I think the inclusive, supportive and respectful environment we have created for all of our people – no matter what faith or nationality – speaks volumes about the nature of the firm.”  Kevin goes on to state that “we are without a doubt the most successful firm in the Middle East and it is great that everyone gets to be a part of that.”\r\n\r\nManaging so many people and being involved in so many departments means Kevin’s role is a varied and challenging one.  “No two days are the same,” he says.  Kevin has to be available to deal with the non-routine issues that arise when managing a firm of Al Tamimi’s size but he also has to focus on the long-term strategic plans for the firm.  “It certainly can be challenging,” he notes.  “Law firms are unusual and totally different to standard corporate structures.  Dealing with a partnership where numerous people have an interest means everyone needs to feel included.”\r\n\r\nManaging the business services side of the business means Kevin also has a responsibility for client service – another area that brings an array of challenges.  “The world is constantly changing,” he says.  “The days of writing a letter, sending it by post and waiting a week to receive a response are over.  We constantly need to upgrade our technology and evolve our own internal compliance processes to meet these challenges.  We have an obligation to operate in a way that protects our clients and ourselves and not getting it right would be catastrophic…  Not getting it right is not an option”.\r\n\r\nKevin is quite clearly a man committed to Al Tamimi and someone who speaks extremely proudly of the firm and its achievements.  Happy at work and happy at home – he and his wife ‘love life in Dubai’ – Kevin sees no move back to New Zealand for the foreseeable future and looks forward to being a part of Al Tamimi’s success for quite a while longer.'),
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	(88083,4791,'_currentURL','field_59d35123ab1e7'),
	(88084,4791,'_yoast_wpseo_metadesc','Kevin moved to the UAE from New Zealand in 2007 and joined Al Tamimi & Company as the Firm’s General Manager.'),
	(88085,4792,'content','October 2013\r\n\r\n<hr />\r\n\r\nThis concession entitles a creditor the right of priority to approach and obtain his claim from his debtor’s money before any other creditors. Permission for this priority is given when the priority of a debt is being separated from other debts and consideration is given only to a debt that guarantees recovery for creditor or the person whom a judgment is made for.\r\n\r\nAn insurance loan is a contract that earns the creditor dedicated real estate to settle his pledge in kind, and as a result he has the right to approach ordinary creditors and those below him in ranking to settle his right through the value of the estate regardless of who it is held with. Priority is defined as an in kind right in that it entitles the creditor precedence to require consideration because of his quality and as decided by legal text. Debts that have a priority quality are known as preferential debts whereas those without this quality are known as ordinary debts. Priority rights are divided in civil law to public preferential rights and private preferential rights. A public preferential right entitles the creditor to recover his debt prior to any of the other creditors from the whole of the debtor’s money and is similar to the right of the state to recover income tax imposed on the mortgaged real estate. These are rights that are redeemed against the whole of the debtor’s money from moveable assets and real estate in accordance with the provisions of Article 1426 of the Civil Code. Certified listed bonds are paid to the creditors as part of the conditions set out in each of their bonds and in order of sequential priority ranks. A higher ranking creditor has a prevailing right over a lower ranking creditor.\r\n\r\nDiscussion surrounds the situation where there is contention between the state’s rights in settling the moneys, resulting in custody of the mortgaged money from taxes and penalties, with the rights of the pledging creditor in a situation of execution against the mortgaged money and its sale at auction. Here is where a conflict lies between public priority (priority of state funds) and private priority (individual or company priority) and which of those has first claim to the value of the real estate that has been sold at auction, through the transfer of demanded rights from the property to the value. An interpretation of the Jordanian Judicial Council states that contention between the Treasury in settling its public preferential priority rights with a creditor with special priority results in the creditor with final position advancing in recovering his debt from the mortgaged money against the Treasury with a public preferential loan. The Treasury’s public right in recovering its debts and collecting them is a public preferential right, while those creditors pledging a real estate mortgage have a personal priority. Based on that, contention of the Treasury in recovering its preferential rights through public priority with a lender creditor with private priority causes the last creditor to supersede his ranking in recovering his debt from the debtor’s money against the Treasury with public preferential priority.\r\n\r\nThe law makes an exception to a mortgage bond from this priority in only one case – liquidation of a company that owns real estate registered under its name that is subject of an insurance / lien of a mortgage, by virtue of Article 256 of Companies Law No. 22 of 1997 (relating to the debts of a company under liquidation). We find that this Article has arranged ranking of debts against a company under liquidation in the following manner:\r\n<ol>\r\n 	<li>Liquidation expenses including the liquidator’s fees.</li>\r\n 	<li>Amounts owed by the company to the employees.</li>\r\n 	<li>Amounts due to the state Treasury and municipalities.</li>\r\n 	<li>Amounts in lieu of rent due to the owner of real estate rented to the company.</li>\r\n 	<li>Other amounts due in accordance to the order of priority and in accordance with applicable laws.</li>\r\n</ol>\r\nIn accordance with the interpretation of the Jordanian Judicial Council of Article 256 Companies Law, the ranking of a creditor of a mortgaged loan against real estate who is attempting to settle his debt falling custody of the liquidated company follows ranking of priority rights set out in Article 256. Thus, in ranking, his position comes after rental moneys due to a landlord, as long as no other law contains another provision that sets out the advancement any preferential right in recovering against the creditor. The order of priority ranking that a creditor enjoys during liquidation of a company and sale of its assets and funds, including pledged moneys, follows the priority of ranking set out above and in more detail in Article 256 Companies Law No. 22 of 1997.'),
	(184294,4792,'core_values',''),
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	(88089,4792,'content_description','Initially, all creditors are equal in recovering their rights from the debtor’s money except those creditors that are granted the right to advance in accordance with the law. '),
	(88090,4792,'_content_description','field_59b641c07f473'),
	(88091,4792,'pageSummary','Initially, all creditors are equal in recovering their rights from the debtor’s money except those creditors that are granted the right to advance in accordance with the law.'),
	(88092,4792,'_pageSummary','field_59e59b307dec8'),
	(88093,4792,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/contention-of-public-debt-and-private-debt-in-mortgaged-money.html'),
	(88094,4792,'_currentURL','field_59d35123ab1e7'),
	(88095,4792,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zaid Al Syouf'),
	(88096,4792,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88097,4792,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','z.alsyouf@tamimi.com'),
	(88098,4792,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(88099,4792,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(88100,4792,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(88101,4792,'lawUpdateArticleNoWriters','1'),
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	(88103,4792,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
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	(88107,4792,'_yoast_wpseo_metadesc','Initially, all creditors are equal in recovering their rights from the debtor’s money except those creditors that are granted the right to advance in accordance with the law.'),
	(88108,4793,'content','October 2013\r\n\r\n<hr />\r\n\r\nLocal entities are in continuous need to expand their business and engage in new projects in order to keep pace with an ever growing competitive market. Naturally, these expansions and considerable growth are accompanied with a number of legal issues that may turn into legal disputes.\r\n\r\nOne of the main reasons for disputes is a default of payment and the subsequent rescheduling of the debt. Lending banks regularly come across an important question when entering into a rescheduling agreement with their borrowers - does a promise to give security over real estate assets give rise to any property rights over those assets in favor of the secured party?\r\n\r\nUnder Kuwaiti law a promise to give security over assets is considered a ‘promise to enter into a contract’. Under the Kuwait Civil Law, “a promise to enter into a contract” is an agreement between two or more parties according to which one party promises to execute a specific contract in favor of the other party (‘a Promise Agreement’).\r\n\r\nThe Kuwait Civil Law provides for specific formal requirements for the conclusion of a Promise Agreement:\r\n<ol>\r\n 	<li>There must be consent (consent of both parties to enter into the underlying contract);</li>\r\n 	<li>The obligation created by the underlying contract must be valid, applicable and possible; and</li>\r\n 	<li>The cause must be legal.</li>\r\n</ol>\r\nAs long as the formal requirements mentioned above have been met and satisfied with respect to the Promise Agreement, the promise will be considered as a contractual obligation. As such, any failure by the promising party with respect to the execution of the agreed upon contract is considered as a breach of a contractual obligation, entitling the counter party to claim for compensation for any damages and losses sustained as a result of the breach.\r\n\r\nIn this respect, a lender may be in a position to claim for damages arising out of the borrower’s failure to execute a pledge or mortgage on the asset. Nevertheless, a claimant must effectively prove the losses and damages sustained in order to be entitled for compensation.\r\n\r\nIn such cases, a lender may be in a position to file either of the following lawsuits before Kuwaiti Courts:\r\n<ol>\r\n 	<li>A claim requesting the court to execute a mortgage on specific assets of the borrower (if the Promise Agreement specified the properties to be mortgaged in favor of lender);</li>\r\n 	<li>A claim requesting the court to execute a mortgage on any of the borrower’s assets (if the Promise Agreement did not specify which of the properties was to be mortgaged in favor of the lender); and</li>\r\n 	<li>A claim requesting the court to oblige the borrower to pay an amount equivalent to the asset’s value plus compensation (if an asset was specifically determined).</li>\r\n</ol>\r\nGenerally it can be said that in the event the court establishes that specific performance (i.e. the execution or perfection of a mortgage) by the defendant is practically impossible for any reason, the court will likely consider an equivalent payment plus compensation. The compensation under Kuwait Law is calculated according to the damages suffered and loss of profits.\r\n\r\nFinally, the statute of limitations to file a lawsuit for any breach of contract, under Kuwait Law and with respect to a Promise Agreement, is 15 years.\r\n\r\nIn the future, we will discuss how a Promise Agreement may vary on a case by case basis.'),
	(184263,4793,'core_values',''),
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	(88110,4793,'lawUpdateArticleMonth','4780'),
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	(88112,4793,'content_description','The Kuwait banking and finance market is witnessing considerable growth, as evidenced by the significant increase in the amounts of lending and borrowing by banks and financial institutions. '),
	(88113,4793,'_content_description','field_59b641c07f473'),
	(88114,4793,'pageSummary','The Kuwait banking and finance market is witnessing considerable growth, as evidenced by the significant increase in the amounts of lending and borrowing by banks and financial institutions.'),
	(88115,4793,'_pageSummary','field_59e59b307dec8'),
	(88116,4793,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/the-effect-of-using-real-estate-as-security-in-kuwait.html'),
	(88117,4793,'_currentURL','field_59d35123ab1e7'),
	(88118,4793,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','El Hassan Abdel Razek'),
	(88119,4793,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88120,4793,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','h.abdelrazek@tamimi.com'),
	(88121,4793,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(88122,4793,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(88123,4793,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(88124,4793,'lawUpdateArticleNoWriters','1'),
	(88125,4793,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(88126,4793,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(88127,4793,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(88128,4793,'lawUpdateArticlePractices','1'),
	(88129,4793,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(88130,4793,'_yoast_wpseo_metadesc','The Kuwait banking and finance market is witnessing considerable growth, as evidenced by the significant increase in the amounts of lending and borrowing by banks and financial institutions.'),
	(88131,4794,'content','October 2013\r\n\r\n<hr />\r\n\r\nThe CPC also provides for the necessary procedural rules that UAE Courts should consider when adjudicating lawsuits. The CPC is technically a set of rules that govern and determine the procedures litigants should follow to assert their rights (claims), the process of obtaining and appealing judgments and the method to enforce judgments in the UAE.\r\n\r\nGenerally speaking, there are two types of legal proceedings under the CPC; substantive and summary legal proceedings. However, in practice there is a third type that could be available under the CPC where both summary and substantive proceeds are combined. The third type of legal proceedings is known under the CPC with the name of “Order for Payment” under which a claimant requests payment of money (which is a substantive request) through summary proceedings filed before the summary court.\r\n\r\n<strong>Substantive Proceedings </strong>\r\n\r\nThe CPC provides for a claimant’s right to file substantive legal proceedings before the competent court (e.g. Court of First Instance). According to Article 42 of the CPC, the claimant shall file with the competent court a written statement of its claim stating the facts establishing the dispute. Such statement of claim must also enclose a list of dockets evidencing the facts stated by the claimant. On the other side, the defendant will have to prepare its defense statement and list of supporting documents. Substantive proceedings can last for 1- 2 years.\r\n\r\n<strong>Summary Proceedings </strong>\r\n\r\nThe CPC also provides for a claimant’s right to file summary legal proceedings before the summary court. Summary proceedings are meant to adjudicate disputes, which are subject to fear of losts by passage of time, without affecting the original right, rather by only issuing a temporary order for the purpose of protecting or preserving an existing condition or right. Precautionary attachment and travel ban orders are common examples of summary orders issued pursuant to summary proceedings.\r\n\r\n<strong>Payment Orders</strong>\r\n\r\nAs an exception from the general procedure in Article 40 of the CPC, a creditor may follow a shortcut for obtaining a direct order for payment from the summary court. In other words, the creditor can obtain a court judgment against its debtor within 48 hours from the summary court. This is usually called an “Order for Payment”.\r\n\r\nAccording to Article 143 of the CPC, if the debt owing to the creditor is proved in writing and is immediately due for payment, and if the only thing the creditor is claiming is a money debt of specified amount or a moveable of specified type or amount, the creditor is entitled to file an order for payment application in the summary court requesting immediate payment of its debt.\r\n\r\nClearly, the aforementioned conditions apply to payment instruments generally used by traders, banks and financial institutions. In the UAE, banks and financial institutions are familiar with cheques, bills of exchange and promissory notes which are all valid for establishing the main legal requirement for obtaining orders for payment.\r\n\r\nIn practice, the creditor must notify its debtor to pay the due debt within a stipulated time. This usually occurs by serving a legal notice on the debtor through the notary public in order to evidence the debtor’s nonpayment. Once the grace period given by the creditor lapses, the creditor becomes entitled to file its application for a payment order in the summary court. The summary court shall handle such application on an urgent basis and issue its decision within 48 hours.\r\n\r\n<strong>Summary Judge Decision </strong>\r\n\r\nAccording to Article 145 of the CPC, if the summary judge decides not to grant the order for payment for any reason, the summary judge must refrain from issuing the order for payment, and must fix a hearing to determine the action before the competent court. In other words, the summary judge must transfer the payment order application to the Court of First Instance where the application becomes a substantive claim subject to the usual litigation procedures and formalities.\r\n\r\nAccording to the CPC, the summary judge is prevented from dismissing an application for an order for payment no matter what the grounds of the dismissal are, whether linked to incorrect procedures or lack of jurisdiction, or linked to the debt. In such cases, the summary judge must avoid issuing the order for payment, and shall schedule a hearing for the trial before the competent court.\r\n\r\nIf the summary judge decided to transfer the order for payment application to the competent court, there will be no extra cost on the applicant since (i) the court fee paid to the summary court for granting the order for payment is equivalent to court fee payable to the competent court; and (ii) the summary judge is not considered to have rejected the order for payment application; rather the summary judge has transferred it to another judge who sits in an another court.\r\n\r\n<strong>Challenging Payment Orders </strong>\r\n\r\nA payment order is a judgment and hence is subject to challenge by the defendant (losing party). In practice and in line with Article 147 of the CPC, payment orders are subject to two ways of challenge; grievance and appeal. As explained in the Introduction, an order for payment is a combination of summary and substantive legal proceedings; hence it is challengeable by way of grievance (which is applicable to orders issued by the summary court) and appeal (which is applicable to judgments issued by the substantive judge).\r\n\r\nAccording to the CPC, the defendant has the right to file a grievance within15 days from the date of notifying it with the order for payment. Also, the defendant has 30 days to appeal the order for payment following the end of the grievance time bar (i.e. starting from the end of the15 days).\r\n\r\n<strong>Interest </strong>\r\n\r\nSince orders for payment are meant to oblige a debtor to pay a certain and due amount of money pursuant to a written document, claiming interest is not possible. According to the available UAE case law on orders for payment, if an order for payment application contains the applicant’s request for interest, the summary judge has to transfer such application to the competent court as the summary judge is not authorized to award interest.\r\n\r\n<strong>Precedent</strong>\r\n\r\nUnfortunately, the available UAE case law related to orders for payment is very limited and unsupportive. UAE Courts have been reluctant to accept orders for payment applications. In fact, Dubai Summary Court has refused recently to decide on an order for payment application related to money due under a cheque.\r\n\r\n<strong>In summary</strong>\r\n\r\nAn order for payment is an exception to the general rule for claiming debts in UAE Courts. An order for payment is technically a combination of summary and substantive legal proceedings. In practice, there is limited precedent where orders for payment have been issued by UAE Courts. UAE summary judges tend not to decide on orders for payment applications; they rather transfer such applications to the competent court in line with the provisions of the CPC.'),
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	(88135,4794,'content_description','The UAE Civil Procedures Code No. 11 of 1992 (”CPC”) governs the procedural aspect of initiating and litigating disputes before UAE Courts. '),
	(88136,4794,'_content_description','field_59b641c07f473'),
	(88137,4794,'pageSummary','The UAE Civil Procedures Code No. 11 of 1992 (”CPC”) governs the procedural aspect of initiating and litigating disputes before UAE Courts.'),
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	(88139,4794,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/summary-proceedings-orders-for-payment-law-and-practice.html'),
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	(88141,4794,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ahmad Al Awamleh'),
	(88142,4794,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88143,4794,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.alawamleh@tamimi.com'),
	(88144,4794,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(88145,4794,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(88146,4794,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(88147,4794,'lawUpdateArticleNoWriters','1'),
	(88148,4794,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(88149,4794,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(88150,4794,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
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	(88152,4794,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(88153,4794,'_yoast_wpseo_metadesc','The UAE Civil Procedures Code No. 11 of 1992 (”CPC”) governs the procedural aspect of initiating and litigating disputes before UAE Courts.'),
	(88154,4795,'content','October 2013\r\n\r\n<hr />\r\n\r\nIn order to pave the way for such expansion states have started to form trade unions and to enter into bilateral agreements with other states for the creation of a more transparent investment legal framework which protects the interests of their respective investors and workers. The focus for investment has been on countries with developing economies and steady growth within a safe environment. The Sultanate of Oman presents itself as one of the options which meets such criteria.\r\n\r\nThis article outlines the regulatory environment for foreign investment in Oman, the investment incentives provided by the government of Oman, the pitfalls associated with such investment and how to avoid them.\r\n\r\n<strong>Investment Legal Framework </strong>\r\n\r\nA combination of regional and international agreements and local laws has formulated the legal framework for GCC and foreign investment in Oman. Examples of agreements which have had a remarkable impact on the size of GCC and foreign investments in Oman are:\r\n<ol>\r\n 	<li>The Unified Economic Agreements Between Countries of GCC signed on 1981 &amp; 2002 (UEA)</li>\r\n 	<li>The Marrakesh Agreement on the Establishment of World Trade Organization (WTO), ratified by Sultani Decree number 112/2000</li>\r\n 	<li>The Free Trade Agreement with the USA (FTA), ratified by Sultani number 109/2006</li>\r\n 	<li>The Free Trade Agreement between the Republic of Singapore and GCC states, ratified by Sultani Decree number 8/2009</li>\r\n 	<li>The Free Trade Agreement between GCC states and the European Free Trade Association (EFTA), ratified by Sultani Decree 43/2010</li>\r\n 	<li>Bilateral Investment Agreement between Oman and other states like Britain, France, Pakistan, Austrian and Yemen.</li>\r\n</ol>\r\nThe obligations in these agreements are reflected in local laws and regulations in the form of Sultani Decrees issued by His Majesty, the Sultan or Ministerial Decisions issued by his ministers.  The main local law which regulates foreign ownership is the Foreign Investment Law (FCIL), promulgated by Sultani Decree number 102/94 as amended.\r\n\r\nThe most common legal form adopted by foreigners to carry out business in Oman is a limited liability company (LLC). An LLC must have at least two shareholders, often referred to as partners in LLCs. One of them must be an Omani national (whether natural or corporate entity) with an ownership of at least a 30% shareholding of the company.\r\n\r\nOman’s accession to the Unified Economic Agreements Between Countries of GCC and the subsequent issuance of high GCC council decisions and ministerial decisions to implement the provisions of the said agreement, has resulted in permission for GCC nationals (whether they are natural persons or corporate entities wholly owned by GCC nationals) to own the 100% shareholding of an Omani corporate entity (with a few exceptions, including by way of an example, commercial agencies).\r\n\r\nAmerican nationals are accorded similar treatment as Omanis following the implementation of the provisions of the Free Trade Agreement with the USA,  with the exception of the activities included in a list enclosed in a separate schedule to the trade agreement. These excluded activities are common to all foreign nationals.\r\n\r\nBy way of examples of excluded activities, ownership and investment in real estate by foreigners is restricted in designated tourist areas. Secondly, foreign nationals can only own up to 70% shareholding in any enterprise established in Oman that provides legal services. Real estate brokerage services can be carried out only by Omanis (pursuant to the provisions of Sultani Decree No 78/2000 which promulgates the Law Organizing Brokerage Profession in Real Estate Activities). There are other activities like employment placement services, investigation and security services, printing and publishing services, and radio and television transmission services. As these activates are regulated by specific laws legal advice should be sought by the foreign investor intending to carry out investment in such activities to identify the best legal mechanism for its investment.\r\n\r\nHowever, there are some practical issues in the implementation of the USA Trade Agreement by various government bodies (including the Royal Oman Police (customs department), Ministry of Commerce and Industry and Ministry of Manpower) because the interpretation of the trade agreement is left for those bodies to adopt. This can create inconsistencies that take time to overcome. By way of an example, the Ministry of Commerce interprets the provision relating to national treatment in terms of investment as giving the right to American nationals to be treated on equal basis with Omanis while Ministry of Manpower still treats American nationals as foreigners when it comes to issuance of labour clearance for Omanization purposes. Would national treatment provisions or any other similar provisions extend to the workforce or not? It is an area which is still under further scrutiny, and as it is the case with many trade or investment agreements not all issues are thought of or considered during the negotiations between the parties or covered expressly in the text of the agreement.\r\n\r\nApart from GCC and American nationals, the practice implemented by the Ministry of Commerce and Industry responsible for the registration of companies in Oman is that a foreign investor may not own more than a 70% shareholding in the share capital of a corporate entity, and the remaining is legally required to be owned by a local Omani partner as mentioned above. However the profit and loss of the business can be split between the foreign and local shareholder on any other percentage, as it does not need to be proportionate to the shareholding ownership. This depends on the partners’ contribution in the business which is entirely a commercial arrangement. Such percentage could, for example, be 80/20 or 99/1.\r\n\r\n<strong>Investment Incentives</strong>\r\n\r\nThe Foreign Investment Law  provides for a number of incentives for foreign investment which includes exemption from payment of income tax subject to the following conditions:\r\n<ul>\r\n 	<li>That the income is realized directly from the main activity of the company in the following fields (except management and projects contracting execution):</li>\r\n</ul>\r\n<ol>\r\n 	<li>Industry in accordance with the provisions of unified industrial regulatory law of GCC states</li>\r\n 	<li>Mining pursuant to the provisions of mining law</li>\r\n 	<li>Export of products manufactured or processed locally</li>\r\n 	<li>Operation of hotels and touristic villages</li>\r\n 	<li>Production of farms and processing of its products</li>\r\n 	<li>Fishing and fish farming</li>\r\n 	<li>Undergraduate studies or colleges or high institutes or private schools or training colleges or nurseries</li>\r\n 	<li>Medical care through establishment of private hospitals.</li>\r\n</ol>\r\nThe exemption period from income tax is five years from the date of commencement of carrying out the activity, and can be renewed for another five years in case of necessity.\r\n\r\nA number of free zones have been established in the last ten years along the coast of Oman which include Sohar Free Zone, Salalah Free Zone and Al Mazyunah Free Zone. Free zone companies are eligible for exemption from income tax, corporate tax, and customs. They also allow for 100% foreign ownership, full repatriation of profit and capital, and low start-up capital.\r\n\r\nIn addition to this is the Public Establishment for Industrial Estates (PEIE), which was established in 1993 through issuance of Sultani Decree number 4/1993. Its main objective is to plan, establish, administer and develop industrial estates across Oman. There are eight industrial estates in total in the Sulanate. These industrial estates all have facilities that an industrial estate requires with investment incentives, which includes exemption from income tax and customs, as well as loans from the government for fisheries, agriculture, health and traditional handicraft activities.\r\n\r\nThe income tax rate is 12% which is applied to all non-freezone companies registered in Oman equally regardless of the percentage of the foreign shareholding.\r\n\r\n<strong>Investment Pitfalls  </strong>\r\n\r\nIt is a common practice for a foreign investor to enter into a private agreement with an Omani local partner or owner of sole proprietorship. A cautious approach must be taken when entering into these types of arrangements as some have been held to be void by the courts in Oman. The owner of a sole proprietorship is considered to be the legal holder of the license and therefore liable for all debts vis-à-vis third parties and it cannot be agreed otherwise with the foreigner who manages and runs the business for his own interest. Another example of void transactions found in the case law are those agreements in which the Omani partner is not entitled to or responsible for any profit or loss generated by the company, but instead receives an agreed fixed monthly or annual amount. Generally, lock-in clauses whereby one or both parties are obliged not to terminate the contract during a particular period or not to sell their shares to a third party are not recognized by Omani courts.\r\n\r\nEntering into arrangements which are subsequently held to be void will result in the closure of the business. Seeking the right legal advice for a foreigner intending to invest in Oman is essential and any agreement must be reviewed before it is entered into to confirm its validity. It should also be noted that the documents registered with the authorities in Oman supersede any private agreements if there is a conflict. As it is often the case that a foreigner manages the LLC, his powers must be outlined clearly in commercial registration documents to avoid acting outside those powers as there is responsibility on managers under the provisions of commercial law to act in the best interest of the company.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nOman remains an attractive investment opportunity for many foreign businesses especially in infrastructure project and the associated services. Care must however be taken to ensure that the arrangements used to facilitate the investment are valid and made the most of the various freezones and incentives that Oman has to offer. It is worth noting that the foreign investment law and commercial companies law are being reviewed by the relevant authorities in Oman with the aim of relaxing the rules relating to foreign investment. A draft of the antitrust law has been finalized by Consumer Protection Authority but has not come to force yet. It is expected that this piece of legislation will promote fair competition, reduce monopoly in the market and remove practices that lead to restraint of trade.'),
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	(88158,4795,'content_description','Expansion plans for many corporate entities have become a necessity for survival with the rapid and unexpected changes in the economic circumstances at the state, regional and international level. '),
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	(88160,4795,'pageSummary','Expansion plans for many corporate entities have become a necessity for survival with the rapid and unexpected changes in the economic circumstances at the state, regional and international level.'),
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	(88162,4795,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/investment-in-oman.html'),
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	(88171,4795,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(88172,4795,'_yoast_wpseo_metadesc','Expansion plans for many corporate entities have become a necessity for survival with the rapid and unexpected changes in the economic circumstances at the state, regional and international level.'),
	(88173,4796,'content','October 2013\r\n\r\n<hr />\r\n\r\nThe new law is better served to crack down on infringements and ensure a fair market for Chinese and foreign trademark holders.\r\n\r\nThe main aspects of the law consist of the following:\r\n<ol>\r\n 	<li>The new law has stricter penalties, raising the compensation ceiling for trademark infringement to 3 million Yuan (approximately USD 500,000/-), six times the previous limit.</li>\r\n 	<li>The new law contains a provision that trademark agencies are not allowed to accept designation if they are aware or should be aware that their clients are conducting a malicious registration or infringing on the trademark rights of others.  Agencies violating the law will face fines and a bad credit record filed by the industrial and commercial authorities.  In serious circumstances those involved will have their businesses suspended.</li>\r\n 	<li>The new law offers protection for “well-known” trademarks giving owners the right to ban others from registering their trademarks or using similar ones even if such brand names are not registered.  However, the words “well-known trademark” cannot be used in promotions or advertising.</li>\r\n 	<li>The draft also modified clauses regarding the examination period of applications for trademark registration so that the registration process can be more efficient.  The initial review period should last no more than 9 months.  In case objections are raised, examinations should be completed within 12 months.  On average the current review period is 30 months, however this can take anywhere between seven or eight years in case an appeal is launched.</li>\r\n 	<li>The Chinese Trademark Office also plans on introducing an electronic filing system although the Trademark Office has not provided an estimated time as to when they intend to implement the online filing and search system.</li>\r\n 	<li>Under the new law.  multi-class applications are also allowed. Currently, each application is only allowed to be filed in one class however, it is not clear as to when the Trademark Office will put into practice multi-class applications.</li>\r\n 	<li>The registration of sound marks is permitted under the new law though the examination standard and procedures have not been outlined.</li>\r\n 	<li>Collective assignment of trademarks has now been formally adopted in the law.  Note:  Collective assignment of trademarks is when a trademark owner files a request for the assignment of a trademark; the registrations for all identical and similar trademarks on identical and similar goods/services should be collectively assigned at the same time.</li>\r\n 	<li>As per the new law opposition procedures are shortened.  If the Trademark Office of China decides in favour of the application (i.e. the opposition is refused), the mark will immediately proceed to registration.  The losing opponent will no longer have a right to appeal to the Trademark Review and Adjudication Board and can only challenge the registration by filing an invalidation petition with the Trademark Review and Adjudication Board.  On the other hand, if the Trademark Office decides in favour of the opponent (i.e the party launching the opposition) the applicant of the trademark can appeal within 15 days from the issuance of the decision.  The Trademark Review and Adjudication Board’s decision will still be subject to an appeal before the court.</li>\r\n 	<li>It is hence very important for an opponent to submit full arguments and adequate evidence at the opposition stage.</li>\r\n 	<li>Prior use:  A registered trademark owner is not allowed to prohibit a prior user from continuing to use an identical/similar mark within the original scope of use, but may request the prior user to add appropriate markings to distinguish the marks.</li>\r\n 	<li>Damages:  the highest damages a person can obtain are the amount of actual loss, or the amount the infringer gained, or the amount of the actual royalties.</li>\r\n</ol>\r\nIn summary the new law should bring a certain degree of confidence into the Chinese market though certain aspects like the electronic filing system, multi-class registrations, acceptance of sound marks are still vague.\r\n\r\nAs of June this year, China held the world’s largest number of registered trademarks and valid trademark registrations, at 8.17 million and 6.8 million respectively, according to latest official statistics.'),
	(184170,4796,'core_values',''),
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	(88177,4796,'content_description','After three reviews over the past two years, a revised Trademark Law has been recently approved by China’s top legislative body.  The law will come into force on 1 May 2014.'),
	(88178,4796,'_content_description','field_59b641c07f473'),
	(88179,4796,'pageSummary','After three reviews over the past two years, a revised Trademark Law has been recently approved by China’s top legislative body. The law will come into force on 1 May 2014.'),
	(88180,4796,'_pageSummary','field_59e59b307dec8'),
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	(88183,4796,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Shernaz Desa'),
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	(88185,4796,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.desa@tamimi.com'),
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	(88194,4796,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(88195,4796,'_yoast_wpseo_metadesc','After three reviews over the past two years, a revised Trademark Law has been recently approved by China’s top legislative body. The law will come into force on 1 May 2014.'),
	(88196,4797,'content','October 2013\r\n\r\n<hr />\r\n\r\nUnder the new instructions, No 6 of 2012 (‘the Instructions’), the Organisation has established the ‘Unit for Fighting Counterfeiting, Investigation and Reporting’ (‘the Unit’). This is a specialised unit whose purpose is to follow up complaints received from the Internal Control Directorate, which is a directorate inside the Organisation that deals with complaints received from the owners of affected trademarks.\r\n\r\nArticle 3 of the Instructions details the mechanism by which the Unit is to verify the product holding the trademark. The Unit is to receive the product from the Internal Control Directorate or affected trademark owner, with the following attached:\r\n\r\na) If the product entered Jordan through its borders:\r\n<ol>\r\n 	<li>The serial number of the Customs declaration.</li>\r\n 	<li>The date of the Customs declaration.</li>\r\n 	<li>Import invoice.</li>\r\n</ol>\r\nb) If the product was already in the market:\r\n<ol>\r\n 	<li>The name and address of the shop or the importer who has counterfeited the products.</li>\r\n 	<li>The quantity of the counterfeited products.</li>\r\n</ol>\r\nThe Unit will then photograph the product using high quality cameras and specialised scanners, and send the images to the company who owns the trademark. The trademark owner can then investigate whether the product is original or counterfeit.\r\n\r\nIf the trademark owner is not satisfied with the photographs the Unit will send a sample of the product, thought the trademark owner will have to cover the delivery costs of this.\r\n\r\nOnce the trademark owner verifies the products they must inform the Unit in writing as to whether the product is indeed counterfeit or original.\r\n\r\nIf it is confirmed that the product is counterfeit, then under article 30(c) of the Law of the Organisation No. 22 for 2000, the Unit can do the following:\r\n<ol>\r\n 	<li>If the counterfeit product has entered Jordan through its borders, the Unit in collaboration with the Jordan Customs Department and the importer shall re-export the product.</li>\r\n 	<li>If the forged product was created in Jordan, then it shall be destroyed.</li>\r\n</ol>\r\nFurthermore, article 4 of the Instructions provide a mechanism to protect trademarks. The trademark owner and the Organisation are to reach an agreement detailing the following:\r\n<ul>\r\n 	<li>A mechanism for verifying trademarks</li>\r\n 	<li>A method for corresponding with any parent company should a counterfeit product be found.</li>\r\n 	<li>Providing support to the owner of the trademark through training employees or providing equipment such as specialised scanning machines that can ease the procedures for verifying the trademark.</li>\r\n 	<li>The annual fee to be paid by the trademark owner to protect the trademark. This is to be no less than JOD 20,000 for each trademark. The amount shall be determined based on the size of the company’s work, the amount of its sales, the trademark’s fame and its extensiveness, and the ability of the company to protect its trademarks. This fee is to be paid to the Organisation.</li>\r\n</ul>\r\nWhilst the Unit is new and remains largely untested, it is hoped that it will continue the strengthening of Jordan’s commitment and ability to protect trademarks.'),
	(184139,4797,'core_values',''),
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	(88200,4797,'content_description','The Jordanian Standards and Metrology Organisation (‘the Organisation’) has issued new instructions for verifying the validity of trademarks entering Jordan through borders or through the market scanning program (this is a program set up in 2000 by the Organisation to scan the market for counterfeit products and destroy those that do not comply with the meteorology standards set by the Organisation).'),
	(88201,4797,'_content_description','field_59b641c07f473'),
	(88202,4797,'pageSummary','The Jordanian Standards and Metrology Organisation (‘the Organisation’) has issued new instructions for verifying the validity of trademarks entering Jordan through borders or through the market scanning program (this is a program set up in 2000 by the Organisation to scan the market for counterfeit products and destroy those that do not comply with the meteorology standards set by the Organisation).'),
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	(88212,4797,'lawUpdateArticleNoWriters',''),
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	(88217,4797,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(88218,4797,'_yoast_wpseo_metadesc','The Jordanian Standards and Metrology Organisation (‘the Organisation’) has issued new instructions for verifying the validity of trademarks entering Jordan through borders or through the market scanning program (this is a program set up in 2000 by the Organisation to scan the market for counterfeit products and destroy those that do not comply with the meteorology standards set by the Organisation).'),
	(88219,4798,'content','October 2013\r\n\r\n<hr />\r\n\r\nWhen an employee is suspected of misconduct or breach of policy, the employer is faced with a number of issues: whether to initiate its formal disciplinary process against the employee; how and when such processes should be implemented; and what mandatory local law requirements it must additionally follow (if any) prior to or upon imposing a disciplinary sanction on the employee, including but not limited to dismissal.\r\n\r\nThis article provides a general overview of the relevant legal requirements employers should be mindful of under Federal Law No.8 of 1980, as amended (UAE Labour Law) – the principal legislation regarding employment matters in the UAE (excluding the DIFC) – when proposing to and ultimately implementing disciplinary action and/or sanctions against its employees*.\r\n\r\n<strong>Disciplinary action – what should an employer do? </strong>\r\n\r\nIn the UAE, the disciplinary process does not vary significantly from procedures across many other jurisdictions such as the UK or Europe, offering some comfort for HR practitioners working for UAE subsidiaries of UK or European companies.  Employees in the UAE have the ability to bring claims for unfair/arbitrary dismissal and, depending upon the manner of termination and subject to various eligibility requirements, potentially also a claim for an end-of-service gratuity payment, which could, for long-serving, senior and/or highly remunerated employees, prove incredibly costly.\r\n\r\nThe statutory requirements governing disciplinaries are themselves fairly minimal but clearly dictate how a disciplinary procedure should be conducted: in accordance with Article 102 of the UAE Labour Law, an employer may impose certain disciplinary penalties on its employees, which include a warning, fine, or dismissal (with or without notice).  Article 110 of the UAE Labour Law imposes on the employer compliance with strict legal formalities, providing that the penalties listed under Article 102 may not be imposed unless:\r\n<ol>\r\n 	<li>The employee has been notified in writing of the allegations against him;</li>\r\n 	<li>The employee has been given an opportunity to comment on the allegations;</li>\r\n 	<li>The employer has investigated any defence provided by the employee in respect of the allegations;</li>\r\n 	<li>The process listed in (1) to (3) above is recorded in the employee’s personnel file, and the penalty noted at the bottom of the report.</li>\r\n</ol>\r\nIt is not possible to impose more than one penalty or to combine a disciplinary penalty with a deduction of part of an employee’s wages. Article 110 also states that the employee must be notified in writing of the nature of the disciplinary penalty, the reasons for the penalty and the action which would be taken against him in the event of repetition of offence (where relevant). There are very strict time limits within which disciplinary action must be taken.  An employer must initiate the disciplinary procedure within 30 calendar days of discovering the misconduct, and any disciplinary sanction within 60 calendar days of the investigation having been concluded and the employee’s guilt established.\r\n\r\nIn contrast to other jurisdictions, there are no statutory provisions or best practice guidelines detailing the notices to be provided to the employee or the conduct of any disciplinary meetings, apart from providing the employee an opportunity to comment on the allegations against him and to provide any relevant explanation or defence.\r\n\r\nGetting the procedure right before implementation of a particular disciplinary sanction (be that dismissal or otherwise) is important – and the implications of a failure to do so was underscored in a case before the UAE Federal Supreme Court (Case No. 208/2003) where the Court, rejected   decisions by the Courts of First Instance and Appeal and held that there was no evidence that disciplinary procedures under Article 110 had been properly followed and therefore held that an employer was not entitled to impose a disciplinary penalty.  Although the UAE (excluding the DIFC) is not a common law jurisdiction, and so judges are not bound by previous decisions, the judgments of the higher courts – such as the Cassation or Supreme Court – do hold persuasive authority.\r\n\r\n<strong>The law of unfair dismissal – a word of caution </strong>\r\n\r\nIt is common in the UAE to find employees engaged under unlimited term contracts, unless they are working on specific short-term based projects or temporary assignments, the nature of which lends themselves more to limited term contracts.  The type of contract an employee is working under will influence and ultimately dictate the degree of financial (or other) exposure an employer will have on imposing a particular disciplinary sanction, such as dismissal.\r\n\r\nAn unlimited term contract may terminate at any time, on written notice, provided at least 30 calendar days prior to termination.  In accordance with the UAE Labour Law, this must be for a “valid reason”.  Although there is no definition of a “valid reason” stated in the UAE Labour Law, an employee’s employment will be deemed to have been arbitrarily terminated if the reason for the termination was “irrelevant to the work”.\r\n\r\nIn our experience, the Labour Court will generally only accept a termination to be “valid” and thus decline to award arbitrary dismissal compensation, either where the employee is guilty of one of the specified (and exhaustive) gross misconduct reasons listed in Articles 88 and 120 of the UAE Labour Law, or where the employee is a poor performer or guilty of some other misconduct (and there is documentary evidence backing up the poor performance or misconduct).  The maximum compensation arising from a finding by the Labour Court of arbitrary termination is three months’ remuneration, based upon the last pay received by the employee prior to dismissal.  For these purposes, “remuneration” is the employee’s full pay (basic salary plus any monthly allowances).  In addition, where the employee receives commission, or regular or guaranteed bonus payments, these may also be taken into account by the Court for the purposes of calculating the employee’s remuneration.  The actual amount of the award, if any, is ultimately determined by the Labour Court.  Whilst the cap on compensation might be perceived from a costs-benefits ratio as fairly low-risk by some employers, what cannot be overlooked or discounted is the inevitable management time and legal costs that will be usurped in defending a claim brought by an aggrieved employee.\r\n\r\n<strong>Best practice </strong>\r\n\r\nIn order to avoid the legal consequences associated with dismissing (or imposing lesser sanctions on) an employee on disciplinary grounds, it is important that the employer follows a fair and reasonable process.  This should apply equally to cases of summary dismissal – if not more so – under Articles 88 and 120 of the UAE Labour Law.  It is recommended that, if not already in place, employers introduce a disciplinary policy (whether as part of the contract of employment, the staff handbook or a free-standing policy), which takes into consideration the minimum requirements set out in the UAE Labour Law. In addition, because each disciplinary situation will quite often be unique in its facts, there should be an element of flexibility embedded within any such policy to permit the employer the ability to exercise its reasonable discretion.  Any disciplinary policy should be communicated to all employees, be readily available for them to access, and serve as a guide throughout the disciplinary process.  It goes without saying that any disciplinary action taken, at any stage, should always be justifiable and considered in light of the specific and particular circumstances of the case, and, of course, the requirements mandated by the UAE Labour Law.\r\n\r\n_________________________________\r\n\r\n<em>* It should be noted that the termination of UAE national employees in the private sector  is regulated by Ministerial Decree No. 176 of 2009, which requires, in  certain circumstances, the consent of the Ministry of Labour prior to any decision by the employer to terminate.  Such  considerations are outside the scope of this article.   </em>'),
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	(88225,4798,'pageSummary','A key facet of many multinational businesses is that they now operate within a complex matrix of jurisdictions, each of which presents its own unique legal challenges.'),
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	(88227,4798,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/disciplinary-action-in-the-united-arab-emirates.html'),
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	(88233,4798,'_yoast_wpseo_metadesc','A key facet of many multinational businesses is that they now operate within a complex matrix of jurisdictions, each of which presents its own unique legal challenges.'),
	(88234,4799,'content','October 2013\r\n\r\n<hr />\r\n\r\n<strong>Medical Complaints  </strong>\r\n\r\nThe Authority deals with medical complaints against healthcare providers and medical practioners working in the public and private sectors in Dubai. A medical complaint is any written or spoken expression of dissatisfaction with a healthcare service in the Emirate of Dubai.\r\n\r\nAll medical complaints are handled by the Health Regulation Department of the Authority. Medical complaints filed against healthcare professionals or entities are dealt with in a timely, professional and consistent manner by the Health Regulation Department. The Department will only accept complaints related to a health service or its quality.\r\n\r\nAll medical complaints will be considered, whether they are formal written complaints or a concern expressed towards a healthcare professional or institution in a customer feedback survey.\r\n\r\nThe Department will investigate the complaint and determine whether or not a healthcare professional’s actions or inactions constitute malpractice.\r\n\r\nMalpractice is an error that occurs due to a practitioner’s unfamiliarity with the technical aspects of a procedure being undertaken, or due to his negligence (see Article 14 of Federal Law No. 10 of 2008 (“The Medical liability Law”).\r\n\r\nHowever, a medical practitioner will not be liable in the following circumstances:\r\n<ol>\r\n 	<li>If the damage was sustained due to the action of the patient (i.e. refusing receiving treatment, failing to follow the medical instructions provided by persons supervising the patient’s treatment or due to an external cause).</li>\r\n 	<li>Where the physician followed a certain medical method when administering the treatment other than the generally accepted method, there will be no liability if the method nonetheless followed recognized medical principles.</li>\r\n 	<li>If the medical side effects and complications are known in the medical practice.</li>\r\n</ol>\r\n<strong>Complaint Procedure</strong>\r\n\r\nA medical complaint can be made by a patient affected by the actions or inactions of a healthcare provider. Medical complaints can also be made by someone acting on behalf of the complainant, provided that the complainant’s consent is obtained.\r\n\r\nA typed summary of the complaint with the Authority complaint form (which can be found on the Authority’s website) must be personally submitted by the complainant to the Department. Once a complaint is filed, all members of hospital staff who can provide information about the complaint (I.e. patient’s medical file) will be contacted.\r\n\r\nIf a complaint requires investigation, a panel of medical specialists will be formed to review the complaint. The final outcome of the investigation will be communicated to the complainant, the physician and the healthcare facility.\r\n\r\n<strong>Investigation Process</strong>\r\n\r\nThe Department deals with each complaint separately based on the severity of a complaint.  A thorough investigation of each complaint will be conducted and the Department will determine the causal link between the actions of the healthcare professional and the harm sustained by a complainant.\r\n\r\nThe investigation process at the Authority is as follows:\r\n<ol>\r\n 	<li>Department will contact the health care institutions involved in the complaint to obtain the complainant’s medical files,</li>\r\n 	<li>The Department will then separately invite the medical practioner/s and the complainant to the investigation;</li>\r\n 	<li>The panel will examine the complainant’s medical file, the complaint itself, and the testimonials from doctors, staff and other information before presenting their decision.</li>\r\n</ol>\r\nThe Department will then prepare a report on its findings and communicate their decision to the parties.\r\n\r\nThe Department will ensure that the complainant receives an apology, if appropriate, and will further assess the steps that need to be taken to avoid the issue from occurring again.\r\n\r\n<strong>Appeal Process</strong>\r\n\r\nThe appeal process is as follows:\r\n<ol>\r\n 	<li>The complainant can appeal the Department’s decision within 15 days of receiving the final result of the investigation.</li>\r\n 	<li>The appeal will be reviewed by another panel of medical specialists at the Department as well as the legal department of the Authority, and finally by the director general of the Authority who will render a final decision on the complaint.</li>\r\n 	<li>Appeals will be accepted if complainants have new evidence to support their appeal.</li>\r\n 	<li>The appeal will be reviewed and the parties (i.e. patient/healthcare provider) will be notified of the Authority’s final decision.</li>\r\n 	<li>Only one appeal is accepted per case.</li>\r\n 	<li>The Authority’s final decision will not be subject to any further appeals.</li>\r\n</ol>\r\n<strong>Disciplinary actions</strong>\r\n\r\nThe Authority is empowered to take the following actions should a complaint be upheld:\r\n<ol>\r\n 	<li>To reprimand the healthcare professional or facility;</li>\r\n 	<li>To send warning letters that similar violations in the future will result in temporary or permanent suspension of the physician licensee; revocation or refusal to renew the licensee’s Authority license;</li>\r\n 	<li>Further training for the licensee and supervision by another licensed healthcare professional.</li>\r\n</ol>\r\n<strong>Time Frame</strong>\r\n\r\nThe Authority normally takes between 6-12 months to render final decisions on complaints.\r\n\r\n<strong>The Dubai Healthcare City Authority </strong>\r\n\r\nDubai Healthcare City was established in 2002 to provide the best patient healthcare.\r\n\r\nThe DHCC hears medical complaints filed against hospitals and healthcare professionals within the healthcare city only.\r\n\r\n<strong>The Centre for Planning and Quality at the DHCC.</strong>\r\n\r\nThe Centre for Planning and Quality is an independent regulatory body with the role of setting and maintaining international best practice in healthcare delivery and patient care at the DHCC.\r\n\r\nEvery healthcare provider and professional within DHCC must meet stringent standards in order to be licensed by the Centre.\r\n\r\nHealthcare quality and patient safety are of the utmost priority for the Centre, and it ensures that standards are maintained through a series of ongoing requirements and inspections.\r\n\r\n<strong>Medical Complaints before the Customer Protection Unit </strong>\r\n\r\nThe Customer Protection Unit is responsible for all complaints against Centre licensees, healthcare professionals and facilities, public health and non-clinical facilities.\r\n\r\nThe Unit is responsible for managing the investigation of each complaint and presenting the complaints to the Health Professionals Council, Licensing Board and the Facility Committee at the DHCC, according to the Dubai Health Care City Authority’s Governing Regulation No.1 of 2008.\r\n\r\n<strong>Complaints Procedure </strong>\r\n\r\nThe procedure for complaints made to the Unit is as follows:\r\n<ol>\r\n 	<li>Complaints are reviewed and analyzed to determine whether the facts alleged by complainant constitute a violation of any of the DHCC regulations, rules, and policies.</li>\r\n 	<li>An investigation is then conducted, including on-site investigations, witness statements or interviews, visual inspections, etc.</li>\r\n 	<li>Panels of medical experts may be formed to provide their opinion on the complaint.</li>\r\n 	<li>Fitness to practice panels may also be formed to ensure that a Licensed Healthcare Professional (“Licensee”) continues to meet the required standard of competence and has not engaged or is not engaging in professional misconduct;</li>\r\n 	<li>A complete file is then presented to the Customer Protection Unit Committee for review.</li>\r\n 	<li>The Committee’s proposed findings on evidence; opinion regarding the occurrence of violations; and recommendations for penalties, are then presented to the Licensing Board for review and final decision.</li>\r\n 	<li>Following a thorough review, the Licensing Board will issue a final decision, including findings of facts and conclusions of law as well as a decision for either dismissal or for disciplinary action.</li>\r\n 	<li>The complaints process will be concluded within 3-6months and the  unit will be responsible for communicating the final decision to the licensee and the complaint.</li>\r\n</ol>\r\n<strong>The Licensee’s role in the complaints process</strong>\r\n\r\nThe licensee must respond to allegations in the complaints within 10 working days of receiving the complaint. Their response to each allegation must be supported with documents, such as complete medical records (if possible). The Licensee must fully cooperate with the Unit in its investigation, within a reasonable time frame.\r\n\r\n<strong>The Licensing Board’s Decision</strong>\r\n\r\nThe Licensing Board’s final decision is not subject to appeal unless further relevant facts become known after the board has rendered its decision that was not available to the complainant or the licensee in the course of the investigation process.\r\n\r\n<strong>Disciplinary Actions</strong>\r\n\r\nThe disciplinary actions that the Licensing Board can take range from:\r\n<ol>\r\n 	<li>The imposition of financial penalties</li>\r\n 	<li>A reprimand against healthcare professionals or facilities</li>\r\n 	<li>Warning letters stating that similar violations in the future will result in temporary or permanent suspension of the licensee; revocation or refusal to renew the licensee’s DHCC license</li>\r\n 	<li>Further training for the licensee and supervision by another licensed healthcare professional</li>\r\n 	<li>A refund to the complainant with expenses for the treatment or service acquired at a healthcare facility</li>\r\n</ol>\r\nAlthough various complaints are made against medical practioners and hospitals before the health authorities in Dubai, healthcare professionals and entities are not always found to have committed malpractice or negligence by the health authorities in practice. Sometimes patients file complaints against physicians for injuries sustained following surgical procedures which are in fact well known and common side effects which were communicated to them in advance of the treatment (often by way of consultation on the treatment plan, with a consent form being signed by the patient on the date of the surgery).\r\n\r\nOther common complaints relate to the method or technique used by medical practioners in certain procedures that differ from the methods followed by doctors in the same field of specialty. The fact that a doctor followed a certain technique that was not common in treatments performed by other doctors specialized in the same field does not mean that the physician was negligent in the treatment of a patient, provided that the technique followed acceptable and recognized medical standards. The above mentioned departments at the health authorities allow the complainant, healthcare professional or institution, the right to be heard equally in the complaints process to ensure the investigation procedure is conducted fairly for both parties.\r\n\r\nThe inception of the health authorities have improved the healthcare management sector in Dubai by implementing advanced mechanisms for tackling medical complaints efficiently in accordance with the law and the acceptable medical standards of practice.'),
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	(88235,4799,'_content','field_59b649b5c8b2b'),
	(88236,4799,'lawUpdateArticleMonth','4780'),
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	(88238,4799,'content_description','The Dubai Health Authority was established in June 2007 under Dubai Law No.13 of that year. The aim of the Dubai Health Authority is to enhance the healthcare sector and the medical profession within the Emirate of Dubai.'),
	(88239,4799,'_content_description','field_59b641c07f473'),
	(88240,4799,'pageSummary','The Dubai Health Authority was established in June 2007 under Dubai Law No.13 of that year. The aim of the Dubai Health Authority is to enhance the healthcare sector and the medical profession within the Emirate of Dubai.'),
	(88241,4799,'_pageSummary','field_59e59b307dec8'),
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	(88244,4799,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Hiam Al Muhtadi'),
	(88245,4799,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88246,4799,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','h.almuhtadi@tamimi.com'),
	(88247,4799,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
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	(88251,4799,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(88252,4799,'_yoast_wpseo_metadesc','The Dubai Health Authority was established in June 2007 under Dubai Law No.13 of that year. The aim of the Dubai Health Authority is to enhance the healthcare sector and the medical profession within the Emirate of Dubai.'),
	(88253,4800,'content','October 2013\r\n\r\n<hr />\r\n\r\nThe same level of experience should apply to all parties involved with maritime work and industry, including the courts which often must decide on the complex disputes that can arise. The courts generally appoint maritime experts to assist them when deciding such cases, and this article examines whether the UAE courts are too reliant on such experts.\r\n\r\nThe UAE courts, and the Dubai courts in particular, have reached a high level of proficiency in handling maritime claims. However, with (a) the large number of cases referred to individual experts or expert panels by courts, and (b) the wide scope of tasks given to the experts by the court, experts are given a level of responsibility which far exceeds the normal scope of work for experts in other jurisdictions. They are often empowered to consider evidence, determine liability and apportion compensation between the parties. This means that parties effectively have to plead their case twice: first to the expert, and then to the court.\r\n\r\nThis is an additional burden imposed on the parties. It also requires them to rely on not only the expert’s technical expertise, but also the expert’s legal reasoning (which may be limited). Although the expert’s report will be reviewed by the court, the problem is that the expert will usually tell the court that he has reached the “legal” conclusion about who is liable based on his technical expertise and background, which is a matter that the court will have to trust the expert on, since they depend on the expert on technical matters.\r\n\r\nThe experts appointed by the court are chosen from a list and are described as either a ‘maritime expert’ or as a ‘maritime engineer’. There are no subcategories to reflect the various specialized aspects relating to maritime affairs. This is unsatisfactory given how exceptionally complicated and technologically advanced vessels and everything surrounding a vessel can be. In the author’s view the list should be replaced with a specialized maritime list of experts, which should contain a detailed and regularly updated background for each expert. The list should also include international parties which the court can rely on for additional advice if the expert list does not include the required expertise needed by the court. Finally, in light of how onerous a maritime case can be, the expert should submit a detailed plan for the work to the court and the parties before starting. This report will demonstrate to the court and the parties that the expert actually has the required knowledge, background and experience to handle the technical task entrusted to him.\r\n\r\nThe UAE is rapidly becoming a regional icon and the preferred destination for many major businesses worldwide. Jebel Ali port as one of the largest ports in the world, and there are many other ports on the way. There is therefore a real need for specialized and internationally recognized court maritime experts. This will make the courts more effective when resolving maritime disputes, and therefore give the local and international maritime community more confidence in the UAE. This is a natural development stemming out of the continuous development and specialisation of the courts and the increasing demands of the growing maritime sector. The courts should also consider creating admiralty courts, night courts and courts available during the weekends and public holidays, to further support the sector’s growth and enable the UAE to remain competitive.'),
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	(88255,4800,'lawUpdateArticleMonth','4780'),
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	(88257,4800,'content_description','Maritime law is a peculiar science which requires not only a knowledge of maritime law, but also a solid knowledge of many other related laws such as insurance, crime and corporate laws. A good practical knowledge of the shipping industry is also needed. '),
	(88258,4800,'_content_description','field_59b641c07f473'),
	(88259,4800,'pageSummary','Maritime law is a peculiar science which requires not only a knowledge of maritime law, but also a solid knowledge of many other related laws such as insurance, crime and corporate laws. A good practical knowledge of the shipping industry is also needed.'),
	(88260,4800,'_pageSummary','field_59e59b307dec8'),
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	(88269,4800,'lawUpdateArticleNoWriters',''),
	(88270,4800,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(88271,4800,'_yoast_wpseo_metadesc','Maritime law is a peculiar science which requires not only a knowledge of maritime law, but also a solid knowledge of many other related laws such as insurance, crime and corporate laws. A good practical knowledge of the shipping industry is also needed.'),
	(88272,4801,'content','October 2013\r\n\r\n<hr />\r\n\r\nThis method of cooling is commonly used in large residential projects across the GCC and replaces the need for individual air conditioning units or traditional in-building chillers.\r\n\r\nA key advantage of district cooling is the relatively small space it takes up (thus increasing the total sellable/lettable area of a plot of land) and this also brings aesthetic benefits. Water and energy use is also less than alternative forms of air conditioning, which has both pricing and environmental benefits.\r\n\r\nGiven the popularity of district cooling as a means of cooling large developments in the region, together with rapid population growth, it is an opportune time to touch on some of the key issues in a typical district cooling arrangement/concession agreement.\r\n\r\nThe GCC’s district cooling industry is subject to little law and regulation. This means that the rights and obligations of stakeholders need to be addressed in a clear and integrated contractual framework.\r\n\r\nOn account of the high cost of constructing a district cooling plant and associated pipe network and infrastructure, district cooling services are usually procured under a long-term concession agreement that authorises the provider to exclusively provide district cooling services to a development for an agreed period of time (i.e. 25 years but sometimes as long as 50 years) in accordance with certain benchmarks and standards, particularly regarding quality and availability.  These benchmarks are commonly know in the industry as key performance indicators and are usually abbreviated to KPIs.\r\n\r\nAdherence to KPIs is especially important as exclusivity prevents end-users from obtaining air conditioning from an alternative source if they are dissatisfied with the provider’s performance.  To incentivise performance, financial penalties are often levied against a provider if it fails to comply with KPIs, while the concession agreement may contain a right to terminate for persistent or fundamental breach. To avoid this, providers must diligently operate and maintain both the plant and network.\r\n\r\nA key risk in a district cooling arrangement is demand and it is imperative, from the provider’s (and any funder’s) perspective, that end-users are contractually required to enter into agreements for the provision of cooling services and that this obligation is rigorously policed.  Allocation of demand risk is a matter for negotiation between the developer and provider, but the provider often seeks that the master developer underwrites a portion of demand. Master developers, however, do not like to provide any demand guarantee and will generally only agree to this if a considerable portion of end-user agreements have been entered into. This subject is normally a key element of negotiation in these types of agreements.\r\n\r\nClosely connected to demand is the issue of billing and collection. Payments can either be made to the provider by the developer (as a single point of collection for all end-users) or by each end-user.  Providers unsurprisingly prefer that they are paid by the developer, which avoids the time and expense of seeking payment from each individual end-user.  This can be considerable if there are many end-users (i.e. individual unit owners in a high-rise tower).\r\n\r\nIf the developer is responsible for the collection of district cooling charges, a provider may require the developer to provide security to guarantee these payment obligations and, as a last resort, the provider typically seeks a right to disconnect the service if non-payment passes a particular threshold.  A hefty penalty is usually charged for reconnection.\r\n\r\nAlthough there is no independent regulator of the industry, tariffs usually consist of a connection charge, an availability/capacity charge and a consumption charge.  Given the length of district cooling concessions, tariffs should be subject to clear and periodically applied adjustment mechanisms to allow the charge to vary on account of such things as the fluctuating cost of providing district cooling services (i.e. water, power and labour), inflation and the consequences of changes in law. The benchmarking of the tariff regime is obviously a subject that parties need to carefully negotiate when entering into long-term agreements.'),
	(184005,4801,'core_values',''),
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	(88273,4801,'_content','field_59b649b5c8b2b'),
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	(88276,4801,'content_description','District cooling is the centralised production and distribution of chilled water to end-users for air conditioning. '),
	(88277,4801,'_content_description','field_59b641c07f473'),
	(88278,4801,'pageSummary','District cooling is the centralised production and distribution of chilled water to end-users for air conditioning.'),
	(88279,4801,'_pageSummary','field_59e59b307dec8'),
	(88280,4801,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/key-issues-in-district-cooling-master-arrangements.html'),
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	(88287,4801,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(88288,4801,'lawUpdateArticlePractices','1'),
	(88289,4801,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(88290,4801,'_yoast_wpseo_metadesc','District cooling is the centralised production and distribution of chilled water to end-users for air conditioning.'),
	(88291,4802,'content','October 2013\r\n\r\n<hr />\r\n\r\nIt is this brand association that most corporations rely on in order to maintain the goodwill associated with their name. Since brand association is a crucial catalyst for a corporation’s growth, corporations want to build up brand association as much as possible to earn market share.\r\n\r\nIn order to maintain a strong and consistent corporate identity, corporations with well-known brands are faced with the daily challenge of stopping third parties from infringing their brands, designs, and trademarks. In other words, they must prevent third parties from “piggy-backing” on their brands hard-won reputation. The strongest form of protection for a brand is by registering the trademark or design element. A trademark helps identify and distinguish the products or services of one trader from all the other traders. To this end, Federal Law No. 37 of 1992 on Trademarks and as amended by Federal Law No. 8 of 2002. states:\r\n\r\n(2) The following shall be considered a trade mark:\r\n\r\nNames, worlds, signatures, letters, numbers, drawings, symbols, addresses, hallmarks, stamps, pictures, vignettes, notices, packages or any other mark or combination of marks having a distinctive form and used or meant to be used in distinguishing goods or products of whatever origin, or in showing that the goods or products are owned by the owner of the trade mark because he manufactured it or selected it or traded in it, or rendered a service under it.\r\n\r\nA sound shall be considered part of the trade mark if it was accompanying it.\r\n\r\nTherefore a brand containing words, designs, letters, numerals and even a slogan can satisfy the test of trademark, so long as the proposed trademark is distinguishable from others in the market. The challenge faced by most corporations is that they are unaware of what may be subject to intellectual property right protection. Legal advice is necessary to determine whether a brand or a newly developed concept can be subject to registered rights. Protecting a brand owner’s right is important, but it is equally important to ensure that the brand owner is not infringing on another’s right. Once a brand has been selected it is necessary to proceed with the necessary due diligence (such as trademark searches) to determine whether another business is using or trading under the same or similar brand.\r\n\r\nCorporations operating in the Middle East recognize the “power of the brand” and a large portion of their annual budget is invested into marketing, branding and protecting their ideas.  To this end the UAE has emerged as the MENA regions top-brand building country, with Saudi Arabia coming in second. In the report released by Brand Finance and Gulf Marketing review, out of the 50 top regional brands, 15 out of those belong to the UAE.  According to the study, the value of UAE brands accounts for 37% of the total value of $39.33 billion of the top 50 MENA brands. Emirates Airlines leads the list with a brand value of $4 billion, followed by Etisalat comprising of a brand value of $3.4 billion. The top five brands are as follows:\r\n\r\n[image src=\"http://localhost:8888/tamimi/en/media/get/20131022_Screen-shot-2013-10-08-at-2.04.11-PM.png\" class=\"__image__\" imageId=\"2503\"]\r\n\r\nAccording to a special report prepared by Thomson Reuters and released in 2012, the UAE, Saudi Arabia, Jordan and Egypt were amongst the top trademark publishing countries in the Middle East. Overall the study reports a 600% increase over the last 22 years.\r\n\r\nThese two reports show that with regional brand development, corporations have become more aware of protecting their developed ideas. Although the MENA region is still in the developing stages of building its own brands, there has been some tremendous growth in the past years, and top brands such as Emirates and Etisalat are well underway in becoming global brands. Much like the top worldwide brands and their western counterparts, the common thread among these Middle Eastern corporations is that they all have a unique brand, either a trademark, design or even a catchy slogan that immediately sets off a trigger in the consumer’s mind. They have also taken measures to register and protect their brands to prevent third parties from taking advantage of them.\r\n\r\nFor a complete list of the top 50 brands in the MENA region please visit http://brandfinance.com/images/upload/gmr_article_final.pdf'),
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	(88295,4802,'content_description','Much of today’s advertising is defined by the use of distinct and unique brands that resonate in the minds of consumers. '),
	(88296,4802,'_content_description','field_59b641c07f473'),
	(88297,4802,'pageSummary','Much of today’s advertising is defined by the use of distinct and unique brands that resonate in the minds of consumers.'),
	(88298,4802,'_pageSummary','field_59e59b307dec8'),
	(88299,4802,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/mena-regions-top-50-brands-a-protected-brand-is-an-effective-brand.html'),
	(88300,4802,'_currentURL','field_59d35123ab1e7'),
	(88301,4802,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sadaf Nakhaei'),
	(88302,4802,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88303,4802,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.nakhaei@tamimi.com'),
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	(88305,4802,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(88307,4802,'lawUpdateArticleNoWriters','1'),
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	(88313,4802,'_yoast_wpseo_metadesc','Much of today’s advertising is defined by the use of distinct and unique brands that resonate in the minds of consumers.'),
	(88314,4803,'content','October 2013\r\n\r\n<hr />\r\n\r\nThe New Decree does the following:\r\n<ol>\r\n 	<li>substitutes Decree No. 2 of 1993 which established a special judicial committee called the Rent Committee to settle disputes of any nature between landlords and tenants;</li>\r\n 	<li>substitutes Law No. 15 of 2009 pertaining to the hearing of rent disputes inside the free zones; and</li>\r\n 	<li>repeals any other legislative provisions that contradicts the provisions in the New Decree.</li>\r\n</ol>\r\nThe New Decree has been published in the Official Gazette as at 18 September 2013. According to Article 31 of the New Decree, it shall come into force 60 days after it is published in the Official Gazette. This provides a two month transition period for the New Decree to be implemented from 18 September 2013.  This means that the current regime remains in place pending the New Decree is implemented.\r\n\r\n<strong>The Current Regime</strong>\r\n\r\nUnder the current regime disputes arising between landlords and tenants are referred to the Special Judicial Committee for Dispute Settlement between Landlords and Tenants, better known as the Rent Committee. The Rent Committee has exclusive authority under Decree No. 2 of 1993 to consider and decide all tenancy disputes.  Such authority was extended by Law No. 15 of 2009 to include the determination of rental disputes arising within the free zones, except for rental disputes:\r\n<ol>\r\n 	<li>to which any free zone authorities in the Emirate of Dubai is a party; and</li>\r\n 	<li>arising within the free zones which have their own special judicial committees or special courts (for example the Dubai International Financial Centre).</li>\r\n</ol>\r\nThe Rent Committee comprises of various sub-committees.  Although it is a judicial committee, the members are not judges.\r\n\r\nIf either a landlord or tenant files a claim with the Rent Committee, before the dispute can be heard the Rent Committee is required to first serve a notice to the other party (and to publish another notice in a newspaper if the party fails to attend the hearing on the first notice). Once adequate notices are served and published, the hearing will usually take place after a period of one to two weeks. The Rent Committee’s decisions must be passed by a majority resolution and such decisions are final and non-appealable.\r\n\r\nDespite the completion of the final hearing and a decision being passed, a written judgment will not usually be made available to the landlord and tenant until after a lengthy period of time.  This means that the enforcement of a judgment by the Rent Committee and by the Execution Division of the Dubai Court is usually delayed.\r\n\r\n<strong>The New Decree</strong>\r\n\r\nThe New Decree aims to establish a judicial system and develop a quick and simple adjudication procedure for all tenancy disputes (article 3). When the New Decree comes into force it will abolish the Rent Committee and replace it with the Tenancy Disputes Settlement Centre, which some may refer to as a Rent Disputes Settlement Centre, (the ‘Centre’).  The Centre will be based in the Dubai Land Department and it is consisting of a judicial section and an administrative section.  It will be headed by a judge (of the Appeal Court level) to be appointed by a decree to be issued in due course.\r\n\r\nAccording to article 6 of the New Decree, the Centre shall settle all:\r\n<ol>\r\n 	<li>tenancy disputes in the Emirate of Dubai except for tenancy disputes in relation to finance lease contracts (Ijara) and long term lease contracts; and</li>\r\n 	<li>rental disputes inside the free zones except if the free zones are under the jurisdiction of special judicial committees or courts, such as the Dubai International Financial Centre.</li>\r\n</ol>\r\nThe judicial section of the Centre will consist of four departments. A summary of each of the four departments and their respective structures and functions is set out below.\r\n\r\n[image src=\"http://localhost:8888/tamimi/en/media/get/20131022_Property-Rent-Disputes-Settlement-Center-Alex-Foo-3.jpg\" class=\"__image__\" imageId=\"2506\"]\r\n\r\nAs for the fees payable to the Centre, this will be determined and set by the Chairman of the Executive Council of the Emirate.  Prior to such determination, the fees structure for the Rent Committee under Local Order No. 1 of 2004 remains applicable.\r\n\r\n<strong>Current Regime vs The New Decree – A Comparative Study</strong>\r\n\r\nThe differences between the current regime and the New Decree are emphasised by its objectives set out in Article 3. The New Decree emphasises the need for:\r\n<ol>\r\n 	<li>a fast and simple mechanism;</li>\r\n 	<li>judicial involvement; and</li>\r\n 	<li>an adjudication procedure, to resolve tenancy disputes between landlords and tenants.</li>\r\n</ol>\r\n<strong>Fast and simple mechanism</strong>\r\n\r\nAs explained earlier, the Centre will be established to expedite tenancy disputes settlement.  As opposed to the situation under the current regime, a time frame is provided under the New Decree where the Centre is required to facilitate amicable settlement between landlords and tenants or to issue a judgment within a time frame set out in Article 10 and Article 16 respectively.\r\n\r\n<strong>Judicial involvement</strong>\r\n\r\nUnlike the current practice where members of the Rent Committee are not judges, the New Decree expressly emphasises the need for:\r\n<ol>\r\n 	<li>a judge at the Appeal Court level to be the Head of the Centre;</li>\r\n 	<li>supervision of tenancy disputes settlement by a judge at the Reconciliation Department;</li>\r\n 	<li>a judge in each committee of the First Instance Department and two judges in each committee of the Appeal Department; and</li>\r\n 	<li>a judge to chair the committee for each tenancy dispute at the First Instance Department and Appeal Department.</li>\r\n</ol>\r\n<strong>Adjudication procedure for appeal</strong>\r\n\r\nAlso unlike the current regime where the Rent Committee’s decisions cannot be appealed, the New Decree allows appeals.  According to Articles 17 and 18, a judgment issued by the First Instance Department may be appealed within 15 days from the date of issuance of the judgment provided that the tenancy disputes are for a value of AED 100,000 or more. Any tenancy disputes for a value less than the required monetary threshold can only be appealed if the judgment issued:\r\n<ol>\r\n 	<li>involves an eviction judgment;</li>\r\n 	<li>is in violation of the jurisdiction rules;</li>\r\n 	<li>involves something not requested by the parties, or is more than what the parties requested, or disregards some of the parties’ requests;</li>\r\n 	<li>is against a person who is not properly represented or where a notice is not properly served;</li>\r\n 	<li>is based on forged documents discovered after the judgment or a false testimony determined after the judgment; or</li>\r\n 	<li>would have been different because a party has hidden data or documents from the First Instance Department.</li>\r\n</ol>\r\n<strong>Conclusion and Future Developments</strong>\r\n\r\nThere is no doubt that the New Decree aims to improve the current regime by introducing a quick and simple adjudication procedure for all tenancy disputes in the Emirate of Dubai. As is the case for all proposed new legislation, some aspects of the New Decree still require clarification:\r\n<ol>\r\n 	<li>What constitutes a long term lease such that the dispute cannot be heard by the Centre?  Is it a lease for a period longer than five years in accordance with the lease (or Ejari) registration practice or between 10 years and 99 years according to Law No.14 of 2008 concerning mortgages in the Emirate of Dubai?</li>\r\n 	<li>Is it compulsory for landlords and tenants to attend the amicable settlement hearing of their tenancy dispute at the Reconciliation Department before their disputes can be heard in the First Instance Department?</li>\r\n 	<li>When can the Head of the Centre rely on the Execution Department of the Dubai Court to enforce the judgments issued by the Centre?</li>\r\n 	<li>What are the adjudication procedures for each of the Reconciliation Department, First Instance Department and Appeal Department?</li>\r\n 	<li>Should the recognition of arbitration awards be dealt with by the Centre or the Dubai Court?</li>\r\n</ol>\r\nArticle 8 of the New Decree suggests that the Head of the Centre will propose regulations and resolutions to regulate the work of the judicial section. The implementation of such regulations and resolutions may address the questions raised above. We will report further on the implementation of the New Decree when the questions raised above are answered, the Centre has been established, the Head of the Centre is appointed and details of the Centre’s methods of operating are available.'),
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	(88318,4803,'content_description','On 18 September 2013, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice-President and Prime Minister of the United Arab Emirates and Ruler of Dubai, issued ‘Decree No. 26 of 2013 concerning tenancy disputes settlement centre in the Emirate of Dubai, establishing the Tenancy Disputes Settlement Centre (the “New Decree”). '),
	(88319,4803,'_content_description','field_59b641c07f473'),
	(88320,4803,'pageSummary','On 18 September 2013, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice-President and Prime Minister of the United Arab Emirates and Ruler of Dubai, issued ‘Decree No. 26 of 2013 concerning tenancy disputes settlement centre in the Emirate of Dubai, establishing the Tenancy Disputes Settlement Centre (the “New Decree”).'),
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	(88322,4803,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/solving-dubais-tenancy-disputes-the-new-tenancy-disputes-settlement-centre.html'),
	(88323,4803,'_currentURL','field_59d35123ab1e7'),
	(88324,4803,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Alex Foo'),
	(88325,4803,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88326,4803,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.foo@tamimi.com'),
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	(88328,4803,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(88331,4803,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(88332,4803,'_yoast_wpseo_metadesc','On 18 September 2013, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice-President and Prime Minister of the United Arab Emirates and Ruler of Dubai, issued ‘Decree No. 26 of 2013 concerning tenancy disputes settlement centre in the Emirate of Dubai, establishing the Tenancy Disputes Settlement Centre (the “New Decree”).'),
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	(88343,4804,'lawUpdateStartMonth','November'),
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	(88345,4804,'currentURL','http://localhost:8888/tamimi/en/section/law-update/section-5/november-4'),
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	(88347,4806,'content','November 2013\r\n\r\n<hr />\r\n\r\n<strong>The Facts of the Case</strong>\r\n\r\nA Dubai real estate developer entered into a sale and purchase agreement with an individual. The agreement contained a clause that the parties agreed to resolve their disputes in relation to the purchased real estate unit to arbitration before the Dubai International Arbitration Centre (‘DIAC’). However the clause also stated that before doing so a party would need to give 20 days notice.\r\n\r\nA dispute arose between the parties due to the performance of the agreement and the purchaser filed for arbitration before DIAC.\r\n\r\nBefore the arbitration tribunal, the developer argued that the tribunal lacked jurisdiction since the Claimant to the arbitration filed the case before the DIAC after the twenty days period set out in their agreement. The arbitral tribunal issued an interim arbitral award confirming its jurisdiction to hear the dispute.\r\n\r\nThe developer therefore filed a case before the Dubai Court of First Instance seeking to set aside the interim arbitral award issued by the DIAC arbitral tribunal.\r\n\r\nThe Claimant argued, amongst other things, that the arbitral award is null and void on public policy grounds since it was issued based on an arbitration clause included in a sale of an-off plan construction unit agreement.\r\n\r\n<strong>First Instance Court:</strong>\r\n\r\nThe court dismissed the case for being premature. It held that the tribunal’s award on jurisdiction did not resolve the case, and so could not be subject to annulment proceedings. Only a final award can be subject to such proceedings.\r\n\r\n<strong>Dubai Appeal Court: </strong>\r\n\r\nBefore the appeal court, the developer submitted a new argument to support its request to set aside the arbitral award. It argued that the arbitral award violated public order because it related to the registration of an off-plan unit in the interim register, which the courts have already held is a public order issue and not a matter to be arbitrated.\r\n\r\nThe appeal court found that this argument was inadmissible and dismissed the case. Although the Court accepted that issues concerning the registration of real estate units were matters of public order and so not arbitrable, the court noted that the purchaser was not seeking to terminate the sale and purchase agreement on the basis that it was not registered. The claim was based on the developers failure to construct the unit. The arbitral tribunal therefore had jurisdiction to hear the dispute.\r\n\r\nThe Court referred to the judgment of the Dubai Court of Cassation, real estate appeal no. 282/2012, in which it was held that:\r\n\r\n“An arbitration clause in an off-plan contract for the sale of a property unit is unenforceable where an action is brought to annul the sale contract for non-registration on public order grounds, as the subject matters falls outside the realm of conciliation and is not therefore capable of settlement by arbitration. However, if the claimant merely sought to terminate the contract for non performance because the developer has failed to fulfill his obligation to build the property unit, the arbitration clause would be deemed valid and enforceable. As such, an award issued – for termination of the contract- pursuant to arbitration conducted on the basis of that arbitration clause is not void, as would be the case if the Claimant had sought to annul the sale contract for non registration of the off-plan sale in the interim property register“.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThere has been some confusion in the past as to what extent real estate disputes are arbitrable. The earlier decision of the Dubai Court of Cassation made it clear that real estate disputes are generally arbitrable, but that the specific issue concerning the registration of units on the property registers is a matter of public policy that cannot be decided by the parties (and by extension an arbitrator appointed by them). The Court of Appeal judgment reported above helpfully confirms this, and has recognized the importance of the earlier Court of Cassation judgment. Though it may be appealed it nonetheless bodes well.\r\n\r\nArbitration clauses are widely used in the property sector and this judgment will give greater confidence that they will be upheld. It remains the case however that claimants must be careful to avoid basing any part of their claim on issues of registration.'),
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	(88348,4806,'_content','field_59b649b5c8b2b'),
	(88349,4806,'lawUpdateArticleMonth','4804'),
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	(88351,4806,'content_description','A recent judgment by the Dubai Court of Appeal has explained the grounds on which an arbitration clause included in a sale of an off-plan unit would be enforceable. '),
	(88352,4806,'_content_description','field_59b641c07f473'),
	(88353,4806,'pageSummary','A recent judgment by the Dubai Court of Appeal has explained the grounds on which an arbitration clause included in a sale of an off-plan unit would be enforceable.'),
	(88354,4806,'_pageSummary','field_59e59b307dec8'),
	(88355,4806,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/november-4/dubai-court-of-appeal-judgment-on-the-scope-of-public-policy-in-real-estate-arbitrations.html'),
	(88356,4806,'_currentURL','field_59d35123ab1e7'),
	(88357,4806,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Robert Karrar-Lewsley'),
	(88358,4806,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88359,4806,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','r.lewsley@tamimi.com'),
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	(88361,4806,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(88362,4806,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(88363,4806,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Marwa El Mahdy'),
	(88364,4806,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(88365,4806,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
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	(88375,4806,'_yoast_wpseo_metadesc','A recent judgment by the Dubai Court of Appeal has explained the grounds on which an arbitration clause included in a sale of an off-plan unit would be enforceable.'),
	(88376,4807,'content','November 2013\r\n\r\n<hr />\r\n\r\nThe terms in this other document are then incorporated by reference and become part of the contract. One of these standard terms may be an arbitration clause.\r\n\r\nSuch practices can create problems under UAE law because arbitration is considered a special form of dispute resolution which takes away the jurisdiction of the national courts. As such, parties must be shown to have consciously agreed to arbitration (usually evidenced by their signature on the contract), and this may not be the case if the clause is found embedded in a separate list of standard terms referred to in the main body of the contract.\r\n\r\nIn the case reported below, the Dubai Court of Cassation held that an arbitration clause in a charter party (which is a contract between a ship owner and merchant for the hire of a ship and delivery of cargo) that was referred to in a bill of lading (the document listing the goods to be transported) was sufficiently clear to enable the arbitration clause to be incorporated by reference.\r\n\r\n<strong>Background</strong>\r\n\r\nThe Appellant (an insurance company) initiated civil court proceedings against the Respondent (a ship owner) seeking judgment for US$ 2,364,065 (AED 8,676,120.2). Pursuant to a Bill of Lading, the Respondent had agreed to transport and ship a consignment of sulfur fuel oil on board the Respondent’s vessel from Yanbu Port, Saudi Arabia, to Khorfakkan Port, UAE, to be delivered to a third party. Upon the arrival of the vessel at Khorfakkan Port, the third party discovered that the consignment had become contaminated in transit.\r\n\r\nThe Insured (the consignment owners) had an insurance policy whereby the Appellant agreed to indemnify the third party or its subsidiaries) against any damage arising from the transport or shipment of any quantity of crude fuel oil, gas, diesel, or any other petroleum products specified in the bill of lading. On that basis, the Appellant proceeded to appoint loss adjustors to inspect the consignment and assess the quantum of damages sustained by the Appellent. The loss adjustors’ survey concluded that the Respondent was liable for the contamination of the consignment and assessed the damages at US$ 2,340,065.45. The Appellant paid this amount to the third party and then brought the claim against the Respondent for compensation.\r\n\r\nThe Respondent objected to the proceedings on the basis of an arbitration clause. The charter party stated that all disputes and differences arising out of the charter party shall be referred to arbitration. This clause was incorporated into the bill of lading because the bill stated that “arbitration clauses contained in the vessel’s charter party are herewith incorporated and form part hereof”.\r\n\r\n<strong>Court of First Instance </strong>\r\n\r\nThe Court of First Instance ordered the Respondent to pay to the Appellant the sum of AED 8,676,120.2 plus interest. The Court dismissed the objection against the proceedings and held there was no arbitration clause.\r\n\r\n<strong>Court of Appeal </strong>\r\n\r\nThe Respondent appealed in Civil Appeal No. 325-2011. The Court of Appeal overturned the decision of the Court of First Instance and held that there was an arbitration clause.\r\n\r\n<strong>Court of Cassation </strong>\r\n\r\nThe Appellant appealed to the Court of Cassation.\r\n\r\nThe Appellant (the Insurer) argued that the bill of lading did not contain any explicit or implicit agreement showing intent on the part of the parties to have any dispute arising between them in relation to the consignment resolved through arbitration. The bill of lading (an original English copy of which was submitted to the Court) was a printed form that contained, amongst other things, sections dealing with the details of the charter party that had been left blank. Since there was no charter party for the vessel among the documents and the bill of lading itself does not establish the intent of the parties to refer any disputes between them to arbitration, there was no arbitration clause.\r\n\r\nThe Court of Cassation disagreed. It held that arbitration clauses in charter party agreements are often incorporated by reference to the bill of lading. While mere reference in a bill of lading to the validity of all the conditions of a charter party is not sufficient to incorporate the arbitration provisions into the bill of lading, a charter party arbitration clause that is clearly referred to in the bill of lading will be incorporated into the bill of lading. It follows that the parties to the bill of lading intended to refer their dispute to arbitration according to the arbitration clause contained in the charter party.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe important aspect of the Court of Cassation’s judgment is that the arbitral clause was incorporated because it was explicitly referred to in the bill of lading as existing in the charter party. Had the bill of lading merely referred simply to the charter party terms, the arbitral clause would not have been upheld. This is consistent with the court’s longstanding view that arbitration is a special form of dispute resolution and parties will only be held to have agreed to arbitration if there is some evidence that they are aware of having done so.\r\n\r\nIt is advisable then when incorporating standard terms by reference which contain an arbitration clause, either the arbitration clause should be explicitly mentioned in the main contract, or the standard terms should themselves be signed so there is some evidence that the parties were both aware of their terms and the arbitration clause within.'),
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	(88380,4807,'content_description','Most arbitral clauses are contained within the main body of a contract. However sometimes parties find it convenient to agree the specifics of an agreement in one document, and then refer to another document for the standard terms. '),
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	(88382,4807,'pageSummary','Most arbitral clauses are contained within the main body of a contract. However sometimes parties find it convenient to agree the specifics of an agreement in one document, and then refer to another document for the standard terms.'),
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	(88386,4807,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Robert Karrar-Lewsley'),
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	(88388,4807,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','r.lewsley@tamimi.com'),
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	(88392,4807,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Zane Anani'),
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	(88404,4807,'_yoast_wpseo_metadesc','Most arbitral clauses are contained within the main body of a contract. However sometimes parties find it convenient to agree the specifics of an agreement in one document, and then refer to another document for the standard terms.'),
	(88405,4808,'content','November 2013\r\n\r\n<hr />\r\n\r\nMost people are closely attached to their mobile numbers and some people even pay a considerable sum for a distinctive number, usually one which is memorable.  Over time, a mobile number seems to become a part of a person’s identity.\r\n\r\nThe Telecommunications Regulatory Authority (‘TRA’) reported in July 2013 that the UAE mobile services market had almost 15 million active mobile subscribers with approximately 1.8 mobile subscriptions per person.\r\n\r\nCurrently, if a person wishes to change operator they will lose their mobile number. This makes people reluctant to change operators and so stifles competition. The TRA  however has now announced measures that will allow a person to keep their mobile number despite changing operators. This article looks at these new measures and the likely impact they will have.\r\n\r\n<strong>The Telecommunications Market</strong>\r\n\r\nTraditionally, telecommunication markets have one large operator (usually the original Government-owned telephone company, also known as the ‘incumbent’ operator), smaller operators, a well developed local and international infrastructure and a large customer base.  In the UAE, the incumbent operator is Etisalat and the smaller operator in the mobile services market is du.\r\n\r\nIn order to stimulate competition in the mobile services market, barriers that hinder competition need to be removed or their impact reduced.  In some markets, the solution may be the introduction of more mobile operators, or the licensing of Mobile Virtual Network Operators (‘MVNO’) e.g. FRiENDi in Oman.  MVNOs do not own their own physical telecommunications networks but have agreements with the other telecoms operators to use their networks.\r\n\r\nFurther, as mobile numbers are a limited resource, the management of the numbering system needs to be closely regulated so that the competing operators are treated fairly and equitably in the issuing of mobile numbering blocks.\r\n\r\nThe TRA has carefully considered the various approaches to increasing competition in the mobile market at this time of the technology cycle.  It has decided that now is an appropriate time to introduce “Mobile Number Portability” (‘MNP’) to pursue this goal.\r\n\r\n<strong>The mobile telephone numbering system</strong>\r\n\r\nMobile telephone numbers are given out by the TRA, in large blocks, to each of the mobile operators.  The operators then effectively have exclusive control over those particular numbers for a lengthy period.\r\n\r\nAt present, if someone has an account and a mobile phone number with one operator and sees a better offer from another operator, moving the account is generally a time consuming and sometimes costly endeavour.  The subscriber will need to cancel the existing mobile contract and give up the mobile number to the original operator. The subscriber will then need to open a new account with the new operator and receive a new number. All the subscriber’s previous contacts will need to be informed of the new number, with the risk that some contacts will be lost as a result of the change.\r\n\r\n<strong>What is happening?</strong>\r\n\r\nThe situation described above is about to change. After discussions between the TRA and the two mobile operators in the UAE, the TRA plans to introduce Mobile Number Portability to the market, possibly as soon as December this year.  This will allow subscribers to move from one operator to another operator and keep their original mobile number (also known as ‘porting’ the number).\r\n\r\n<strong>How will it work?</strong>\r\n\r\nMNP can be a difficult technical solution for operators to introduce, and requires close collaboration between regulators and operators on matters such as the technical architecture, guidelines on cost allocation, recovery, tariffs, rules for porting numbers and the ability for the solution to integrate with future technologies.\r\n\r\nPorting mobile numbers in the UAE will be a ‘recipient-led’ process.  This means that if a subscriber wants to change to a new operator, all they will need to do is contact the new operator.  That operator will then contact the old operator on behalf of the subscriber and make arrangements for the mobile number to be ported to the new operator’s network.  This avoids the need for the subscriber to make contact with the original operator.\r\n\r\nIn every case where MNP is introduced there is a debate about the “porting time”, or the time it takes to switch over the number from one operator to another.  Regulators seek to keep this to a minimum, in some cases to a few hours, to give the greatest benefit to the consumer.  Such short turnaround times can be challenging for the operators and the MNP service provider (who typically will run the MNP system on behalf of the operators and the TRA), especially in dealing with surge periods such as weekends and evenings.  It will not be until the system is operational that we will have a true indication as to the porting time in the UAE.\r\n\r\n<strong>The rationale for MNP</strong>\r\n\r\nThere are many arguments for the introduction of MNP:\r\n<ul>\r\n 	<li>From a regulator’s perspective, it will increase competition in the mobile market and ultimately result in better services and choices for consumers between two strong competitors (Etisalat and du).  It should also make the market more attractive for future investors.</li>\r\n 	<li>From an operator’s perspective, it may be an opportunity to increase market share, offer new services and increase the loyalty of existing customers.  These opportunities are driven by the knowledge that an operator’s subscribers can more easily switch to another operator under MNP.  There is every incentive for operators to become more competitive in holding on to existing customers and attracting new ones.</li>\r\n 	<li>From the consumer’s perspective, MNP will lead to better value products, better quality solutions and eliminate previous problems such as losing the original number and needing to advise all contacts of a new mobile number, reprinting business cards and so on.</li>\r\n</ul>\r\n<strong>Impact on operators</strong>\r\n\r\nIt is expected that MNP will increase customer “churn” (one operator losing customers to another operator) which, depending on the position of the particular operator, will either benefit it if it gains more customers, or will be detrimental if it loses customers to a competitor.\r\n\r\nIn order to attract or keep customers, it is expected that operators will become more competitive by launching products at attractive prices and further developing their product offerings.\r\n\r\nAnother factor which impacts operators is the cost of developing and maintaining a MNP system and the porting process.  Despite this cost, it is expected that the prices for mobile services will decrease.\r\n\r\n<strong>MNP and the UAE</strong>\r\n\r\nThere are a high proportion of prepaid subscribers in the UAE and, if experience in other countries can be a guide, it is expected that those subscribers are generally less concerned about retaining their mobile numbers than post-paid subscribers.  The flip side of this is that pre-paid subscribers may be more sensitive to price, service and quality and as such, may continue to churn without using MNP despite its introduction.  It will be interesting to see what impact, in any, MNP will have on how prepaid subscribers behave.\r\n\r\nAs with any major IT project and particularly one which requires complex new technical solutions, it would not be surprising if there were some teething problems when MNP is launched.  This may range from how quickly the porting process takes place to how a person’s bad debt with an operator may delay the porting of a number.\r\n\r\nRegardless of this, the TRA is confident that MNP will ultimately improve the level of service available to customers.'),
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	(88424,4809,'content','November 2013\r\n\r\n<hr />\r\n\r\nThe Land Department Law is groundbreaking in terms of its scope for two main reasons:\r\n<ol>\r\n 	<li>It is the first law since the formation of Dubai Land Department in 1960 which sets out, amongst other matters, the objectives and competencies of the Land Department; and</li>\r\n 	<li>It paves the way for the introduction of a new fee structure for real estate transactions, as it specifically states that any legislation which contradicts the Land Department Law is repealed (Article 15), which includes Law No. 7 of 1997 (concerning Land Registration Fees).</li>\r\n</ol>\r\nThe new fee structure itself is set out in Executive Council Resolution No. 30 of 2013, which was also published in Issue No. 371 of the Official Gazette and came into force on September 18 2013 (‘the Fees Resolution’).\r\n\r\nPart One of this article will highlight the main provisions of the Land Department Law, and Part Two will discuss the main provisions of the Fees Resolution.\r\n\r\n<strong>PART ONE:  The Land Department Law</strong>\r\n\r\n<em>Objectives</em>\r\n\r\nArticle 5 sets out the nine objectives of the Dubai Land Department:\r\n<ol>\r\n 	<li>To create an environment of an international standard to attract real estate investment;</li>\r\n 	<li>To achieve the Government’s strategic goals in relation to the registration of real estate;</li>\r\n 	<li>To keep up to date on all the latest global systems for the registration of real estate;</li>\r\n 	<li>To enhance the efficiency of real estate monitoring and regulation in Dubai;</li>\r\n 	<li>To develop and manage the leasing sector in Dubai;</li>\r\n 	<li>To update and develop the real estate registration systems to keep up to date with the latest global systems in this regard;</li>\r\n 	<li>To encourage real estate investment by establishing a suitable environment for real estate investors;</li>\r\n 	<li>To promote the real estate sector as a contributor to the overall development of Dubai; and</li>\r\n 	<li>To plan and develop an integrated strategic plan for real estate development in Dubai with the aim of setting an international standard.</li>\r\n</ol>\r\n<em>Competencies </em>\r\n\r\nArticle 6 of the Land Department Law gives 22 specific ‘tasks’ which the Land Department is to handle. It also provides for a general (or catch-all) competency of ‘any other tasks necessary to achieve the Objectives’, thus emphasising that all of the Competencies are a tool to be used by the Land Department to meet the Objectives enshrined in Article 5.\r\n\r\nSome of the specific Competencies set out in the Land Department Law are as follows:\r\n<ol>\r\n 	<li>Formulate policies and strategic plans and follow up on the implementation of Dubai’s strategic plan for the development and regulation of Dubai’s real estate sector (Competency 1);</li>\r\n 	<li>Regulate real estate by setting up regulation in relation to trust accounts of real property project executions, mortgage brokerage  and joint ownership (Competency 3);</li>\r\n 	<li>Propose legislation regulating the real estate sector in Dubai, measure the effectiveness of legislation after it has been applied, as well as regulate the relationship between landlords and tenants, and register lease contracts of real estate units (Competency 6);</li>\r\n 	<li>License the real estate activities in Dubai, supervise and monitor its operation and those responsible for it (Competency 7);</li>\r\n 	<li>Through cooperation and contribution from the competent authorities, to develop precautionary measures to ensure the protection and stability of the real estate market in Dubai (Competency 8);</li>\r\n 	<li>Review real estate investment applications in relation to obtaining the benefits prescribed by legislation and policies adopted by the Land Department (Competency 10);</li>\r\n 	<li>Provide real estate valuation services (Competency 13);</li>\r\n 	<li>Conduct survey and re-surveys of lands, and issue the maps to these lands (Competency 14)</li>\r\n 	<li>Provide specialized real estate consultations for developers, brokers, real estate investors and others (Competency 16); and</li>\r\n 	<li>Prepare, develop and update a unified central database for real estate activities in Dubai and regularly provide data services, to planning and decision makers (Competency 20).</li>\r\n</ol>\r\nInterestingly, the Land Department Law also provides for the Land Department to prepare, develop and up-date a unified central database for ‘Real Estate Activities’. The term ‘Real Estate Activities’ is defined in the law and is far reaching. It includes ‘all the financial activities and legal proceedings in relation to the development, sale, purchase, registration as well as regulation and leasing of properties in Dubai, in addition to other real estate activities and services of which the Land Department and the organizations affiliated with it, are specialized in providing, regulating and supervising’.\r\n\r\n<em>Appointment of Key Personnel </em>\r\n\r\nArticles 7 – 9 provide that the Land Department is to have a Chairman appointed by Decree. The Chairman is to generally take decisions necessary for accomplishing the Objectives and in addition certain specific powers are detailed in the Land Department Law.\r\n\r\nThe department is also to have a Director General appointed by Decree. The Chairman may delegate any of his powers to the Director General. The role of the Director General is to supervise the department’s affairs in relation to administrative, financial and technical matters. Certain specific powers in this regard are listed in the Land Department Law.\r\n\r\nThe Land Department Law also provides for an Executive Body of the Land Department to be established composed of a number of administrative and technical employees. The Land Department Law also envisages that the department will have specialised institutions operating in the fields of organisation, provision and development of Real Estate Activities.\r\n\r\n<em>Financial</em>\r\n\r\nArticles 11 – 14 of the Land Department Law provide that the financial resources of the department are composed of:\r\n<ol>\r\n 	<li>Funding allocated to it by the Government’s general budget.</li>\r\n 	<li>Fees and allowances for services provided by it (including fees collected in exchange for registration).</li>\r\n 	<li>Any other resources approved by the Executive Body.</li>\r\n</ol>\r\nThe fiscal year of the department runs from 1st January to 31st December each year.\r\n\r\n<strong>PART TWO:  The Fees Resolution</strong>\r\n\r\n<em>Adoption of Fees </em>\r\n\r\nArticle 2 provides that fees are to be paid for the registration of Real Estate Transactions including those where properties are already built, under construction or off plan.  Fees are also to be paid in exchange for certain services being provided by the Land Department.\r\n\r\n‘Real Estate Transactions’ are defined in the Fees Resolution as:\r\n\r\n‘Any legal act which transfers the ownership or possession of a property, including but not limited to, contracts which deal with the transfer of the right of usufruct and long-term leasing rights […] and rent to own contracts.’\r\n\r\nThe fees to be paid are set out in Schedule 1 to the Fees Resolution and some fees are discussed more fully below.\r\n\r\n<em>Collection </em>\r\n\r\nArticle 3 deals with the collection of fees, which is different depending on the type of agreement\r\n\r\n<em>Sale &amp; Purchase:</em>\r\n\r\nThe Fees Resolution provides that the applicable fee in relation to the sale of a property shall be collected from both the seller and the buyer equally, unless otherwise agreed by them. The fee prescribed for registration of a sale and purchase contract is 4% of the total value of the agreement.  This is double the previous fee.\r\n\r\nThe impetus for the 100% increase from the previous fee is thought to be to reduce ‘flipping’ – the process whereby a property is bought and held only for a short while before being sold on.  To date ‘flipping’ has been particularly prevalent with regard to off-plan purchases where for example a broker may buy speculatively in the hope that an end purchaser willing to pay a higher price can be found.  While the increase in the fee may go some way to making ‘flipping’ less attractive the higher fee would equally be levied on a homeowner who had lived in their property as a family home for several years.  In a particularly buoyant market would-be purchasers would probably be willing to pay the total 4% fee (as opposed to the seller also paying 2%) in an attempt to secure their chosen property.\r\n\r\nFor those who are familiar with UK property transactions the 4% fee is similar to the 4% rate levied by the UK Government’s tax department on properties with a purchase price of £500,000 to £1,000,000 (AED 3,000,000 to AED 6,000,000). In the UK, top end properties can attract a rate of 7% or in some cases 15% (if purchased by certain persons, including corporate bodies).\r\n\r\nWarehouses are treated differently and registration of a sale and purchase contract for a warehouse is AED 10 per sq. m. of land on which the warehouse sits subject to a minimum fee of AED 10,000.\r\n\r\n<em>Long Term and Usufruct Leases:</em>\r\n\r\nArticle 3(2) of the Fees Resolution provides that for usufruct and long-term leases, registration fees shall be collected from the owner, beneficiary or lessor at 2% of the property value and 2% of the property value is to be collected from the beneficiary or the lessee, unless otherwise agreed i.e. a total 4% is to be paid.\r\n\r\nOn the other hand, Items 14 &amp; 16 of the Schedule to the Fees Resolution stipulates registration fees of 4% of the total value of the rent contract for long-term leases and 2% of the property value for usufruct leases respectively.\r\n\r\nWe understand that the Land Department will shortly issue clarification as to this discrepancy.\r\n\r\n<em>Musataha:</em>\r\n\r\nThe fees applied to Musataha contracts are 1% of annual rental and are to be collected from the tenant (unless agreed otherwise). The reasoning behind the Land Department’s reduced fee treatment towards Musataha contracts stems from the fact that they are comparatively shorter contracts (i.e. 50 years) than Long Term Leases and Usufruct contracts.\r\n\r\nThe divergence in the registration fees applied to long-terms leases, usufruct and Musataha contracts is interesting and certainly unexpected given all such lease contracts are long term contracts which give a real right to the lessee upon registration. We believe there will be an increase in use of Musataha contracts due to their reduced registration fees.\r\n\r\n<em>Rent-to-Own Contracts:</em>\r\n\r\nFees applicable to the registration of rent-to-own contracts are 4.25% in total, to be collected at 2% of the property value from the lessor, 2% of the property value from the lessee and 0.25% of the rent value from the lessee (if applicable) unless agreed otherwise.\r\n\r\nIjarah finance is subject to similar fees – 0.25% of the value of the debt is to be collected from the lessee unless otherwise agreed.\r\n\r\n<em>Common Property:</em>\r\n\r\nThe owners of common and non-removable property are to pay 1% on a division of property transaction, based on the value of the share owned by each co-owner prior to the division.\r\n\r\n<em>Other Fees:</em>\r\n\r\nIt is the person in whose favour the right is registered (unless otherwise agreed) who is required to pay the applicable fee on the registration of each of the below:\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Takharoj contracts</td>\r\n<td valign=\"top\" width=\"239\">1% of the value of the property</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Donation in kind contracts</td>\r\n<td valign=\"top\" width=\"239\">0.125% of the value of the gifted/donated property subject to a minimum of AED 2,000</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Wills</td>\r\n<td valign=\"top\" width=\"239\">0.125% of the value of the bequeathed property</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Mortgages</td>\r\n<td valign=\"top\" width=\"239\">0.25% of the value of the debt</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Transfers of debt</td>\r\n<td valign=\"top\" width=\"239\">0.25% of the value of the debt</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Family endowments</td>\r\n<td valign=\"top\" width=\"239\">AED 2,000 per property</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Registration of the rights of the lessee’s heirs</td>\r\n<td valign=\"top\" width=\"239\">AED 1,000 per property<em> </em></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<em>Evaluation</em>\r\n\r\nArticle 5 states that for the purposes of calculating the fees payable the Land Department may:\r\n<ol>\r\n 	<li>Verify the value of the property which is the subject of the transaction; and</li>\r\n 	<li>Estimate the value of Real Estate Transactions which have an undefined value, have been undervalued in comparison to their market value, or those transactions which have had incorrect information submitted in relation to them.</li>\r\n</ol>\r\n<em>Evasion &amp; Fines</em>\r\n\r\nArticles 6 – 8 provide that the following are specifically considered to be acts of fee evasion:\r\n<ol>\r\n 	<li>Providing false information in relation to the value of the Real Estate Transaction.</li>\r\n 	<li>Using fraud or methods of whatever nature to evade the payment of Fees.</li>\r\n</ol>\r\nIn addition the Fees Resolution also states that ‘committing any other act to evade the payment of Fees’ will be deemed to be fee evasion, thus giving the DLD an almost unfettered discretion. Article 8 specifically states that Land Department employees (as delegated by a decision of the Director General) will have capacity as judicial officers to identify acts of fee evasion.\r\n\r\nThe Fees Resolution provides that the penalty for fee evasion will be payment of double the prescribed fees for the transaction but harsher penalties may also be imposed. In addition a developer or real estate agent who assists will also be liable to pay double the prescribed fee for the transaction as a penalty.  While the Fees Resolution does not specifically provide for such an act to be treated as a crime, it would be open to the Land Department to refer any fraud to the Police and for the party committing the fraud to be liable to criminal proceedings.\r\n\r\nThe test for the effectiveness of this penalty provision and the Fees Resolution in general is how the framework will be implemented in practice, and this remains to be seen.'),
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	(87380,4754,'_yoast_wpseo_metadesc','Lenders often rely on guarantees provided by corporations and individuals for third party debts as a form of security. While both corporate and personal guarantees justifiably provide lenders with some comfort, they do not in themselves create a security interest and there are various aspects a cautious lender must be aware of in respect of such guarantees in the UAE.'),
	(87381,4755,'content','July - August 2013\r\n\r\n<hr />\r\n\r\n<strong>Concept Origin and Rationale</strong>\r\n\r\nThe concept of responsabilité décennale originated in the French Civil Code and evolved from a desire to protect building owners, who could not ordinarily be expected to possess the technical expertise required to identify defects in design or construction at the point of delivery of a project, particularly where such defects are latent.\r\n\r\n<strong>Benefits to Owners, Risks for Contractors</strong>\r\n\r\nAs we will see below, decennial liability is a form of strict liability and, accordingly, offers significantly more security to real estate investors than collateral warranties, which will only be triggered by breach or negligence on the part of the contractor. Furthermore, the breadth of the pool of potential defendants lessens the risk that an owner or investor would be left out of pocket in the event that defects are discovered after one of the parties involved in the construction is adjudged insolvent. Many civil law jurisdictions worldwide – including most Middle Eastern countries – have codified decennial liability in their civil laws; the position in Qatar is set out at Articles 711 to 715 of the Civil Code (Law No. 22 of 2004).\r\n\r\nHowever, despite the topicality of this issue, and notwithstanding the high levels of commercial sophistication and industry experience they likely possess, foreign contractors entering the Qatari market are often ignorant of the potentially devastating implications of decennial liability. Accustomed to standard forms of contract, such as FIDIC or JCT, and to being obliged to address issues arising during the defects liability period following practical completion, contractors may not realise that their existing risk management structures are often insufficient to cover their potential exposure under decennial liability, nor has the significant cost of insuring against that risk been priced into their tender for the works in Qatar. Where the contract and the structure it produces are of high value, the application of decennial liability could pose a catastrophic threat to the liquidity of even the most prominent of international contractors.\r\n\r\n<strong>Fast Facts</strong>\r\n\r\n• Projects Covered\r\n\r\nDecennial liability applies to all buildings and fixed installations constructed in Qatar. Interestingly however, while contracts having a Qatari State entity as employer will in most instances be subject to local law (including decennial liability), the position is less clear where the parties have chosen to have their contract governed by the laws of another jurisdiction - which law may not recognise the concept of decennial liability, or may not consider it to be of mandatory application.\r\n\r\n• Parties Responsible\r\n\r\nDepending on the type of defect and the extent of their respective involvements in the particular project in question, decennial liability can apply to main contractors, design consultants (architects) and those acting in a supervisory capacity (such as engineers and project managers). As liability is imposed on a joint and several basis, the building owner can proceed against any or all of the parties involved for the full amount of the claim. Accordingly, if one such party becomes insolvent, the other(s) will shoulder the burden of making good all damage incurred by the owner as a result of the defect(s).\r\n\r\nHowever, a design consultant having no involvement in the execution or supervision of the works will be liable only for defects attributable to his design. Architects who undertake to approve a contractor’s shop drawings should be mindful of the risk that such activities may represent involvement in contract administration. Similarly, contractors will be excused from liability for pure design defects, but only where those defects would not have been apparent to a competent contractor exercising due diligence in the performance of his obligations.\r\n\r\nHowever, contractors or project consultants may not seek to avoid the imposition of decennial liability on the basis that fault in relation to the relevant defect(s) lies with a sub-contractor or sub-consultant.\r\n\r\n• Owners’ Options\r\n\r\nBuilding owners with a claim for decennial liability may demand specific performance by the contractor or designer of his obligations to repair or rebuild the structure, or the damaged part thereof. Alternatively, with the permission of the Court (required in all but urgent cases), the owner could opt to perform the necessary remedial works himself (or to engage a third party to do so), and could then recover from the original contractor or designer the monies expended. As such, actual loss and any loss of profit incurred will always be recoverable, provided same is a direct and foreseeable consequence of the defect(s) at the time of entering into the contract – for example, personal injuries suffered by a building’s occupants as a result of its collapse, or a retail outlet’s loss of profit due to temporary closure.\r\n\r\n• Burden of Proof\r\n\r\nLiability is strict, meaning that the occurrence of damage or discovery of a defect generates an automatic presumption of liability, and there is no onus on the owner/employer to prove fault or negligence on the part of the contractor.\r\n\r\n• Limitation or Waiver of Liability\r\n\r\nAs decennial liability is a mandatory provision of Qatari law, any contractual attempt to limit its scope or exclude or waive its application will be void and unenforceable as a matter of public policy. However, in accordance with general principles of Qatari law, once the collapse occurs or the defect is discovered – and the right to claim for the resulting damage has crystallised – the building owner can then validly waive that right.\r\n\r\n• Liability and Prescription Periods\r\n\r\nThe liability period commences at project handover, and runs for the lesser of ten years or the intended life cycle of the building or structure. If various individual elements of a project are capable of being operated independent of one another – such as may be the case with regard to a power plant consisting of a number of generators, constructed on a phased basis – decennial liability will attach to each part separately; if they are linked, the ten year period will begin to run from the delivery of the final phase.\r\n\r\nThe prescription period for filing claims on the basis of decennial liability in Qatar is three years from the date of occurrence of the collapse or actual discovery of the defect. Thus, in theory, a contractor or consultant could find themselves facing a claim under decennial liability some thirteen years after practical completion of the works.\r\n\r\nIf the contractor carries out repairs to any defect discovered during that initial ten year period, his liability in respect of that element of the structure which required repair or reinforcement will remain in force for a further ten years from completion of those remedial works.\r\n\r\n• Other Salient Points\r\n\r\nDecennial liability attaches notwithstanding that the collapse or defect resulted from geotechnical deficiencies, such as poor soil quality or subsidence. Contractors are therefore advised to carry out thorough site investigations prior to commencing work.\r\n\r\nThe fact that the building’s owner approved or supervised the design or method of construction, or accepted delivery of the building (even with knowledge of the existence of defects), will not protect the contractor, unless he can establish that the owner has technical knowledge or industry experience to equal or better his own. Thus, if faced with persistent instructions from an employer to perform the work in a manner which the contractor knows or believes to be ill-advised, the latter should refrain from acquiescing to the former’s demands, as the employer’s consent will not necessarily protect the contractor from the imposition of decennial liability later on.\r\n\r\nOf course, no liability will attach where the damage to the building or structure was caused by an extraneous event, such as an event of force majeure.\r\n\r\n<strong>Managing the Risk through Insurance</strong>\r\n\r\nIn France and Egypt, on whose Civil Codes Qatar’s own law is modelled, specific insurance for decennial liability is mandatory and failure to carry appropriate cover is punishable by law; this is not the case in Qatar, where insurance requirements are primarily governed by the contract. However, in light of the risks outlined above, contractors and consultants considering entering the Qatari market should be acutely aware of any shortcomings in the scope of the protection offered by their existing insurance policy.\r\n\r\nOf particular concern to architects and engineers is that fact that traditional Professional Indemnity insurance policies are usually invoked where there is negligence on the part of the insured – rather than having a broader ‘legal or civil liability’ trigger - and thus do not cover decennial liability.\r\n\r\nFor their part, contractors looking to add decennial liability to the laundry list of risks insured under their standard Contractors’ All Risks policy may be met with a hefty upwards adjustment of their premium, in addition to higher deductibles, extended limitation and exclusion clauses and stricter reporting requirements. Project-specific cover may be available, but often at a prohibitive cost and on the condition that the insurer becomes intimately involved with activities on site during the currency of the works. There have been some developments in recent years in relation to the availability of latent defects insurance; contractors availing of such cover should ensure that it is properly maintained for the full period of liability.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nOf course, harmonisation of the approaches of different jurisdictions to liability for latent defects would provide greater certainty for construction industry participants, may reduce the need for extensive collateral warranties, and would drive down the cost of insuring against such liability, whilst weeding out serial offenders from the market. However, unless and until such time as a consistent approach is adopted internationally, contractors and consultants of all disciplines eyeing the opportunities presented by Qatar’s booming construction market would be ill-advised to underestimate the potentially far-reaching implications of decennial liability.\r\n\r\nThis article first appeared in the June 2013 edition of Ta’ameen Qatar magazine.\r\n<div></div>'),
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	(87385,4755,'content_description','Decennial liability is a strict form of liability imposed by law on construction contractors and design professionals for the total or partial collapse of buildings they designed and/or constructed, or for the discovery of latent structural defects which imperil the safety or stability of such buildings, for a period of ten years after their completion and handover. '),
	(87386,4755,'_content_description','field_59b641c07f473'),
	(87387,4755,'pageSummary','Decennial liability is a strict form of liability imposed by law on construction contractors and design professionals for the total or partial collapse of buildings they designed and/or constructed, or for the discovery of latent structural defects which imperil the safety or stability of such buildings, for a period of ten years after their completion and handover.'),
	(87388,4755,'_pageSummary','field_59e59b307dec8'),
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	(87395,4755,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sarah Kelly'),
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	(87397,4755,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.kelly@tamimi.com'),
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	(87407,4755,'_yoast_wpseo_metadesc','Decennial liability is a strict form of liability imposed by law on construction contractors and design professionals for the total or partial collapse of buildings they designed and/or constructed, or for the discovery of latent structural defects which imperil the safety or stability of such buildings, for a period of ten years after their completion and handover.'),
	(87408,4756,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nArticle 141 of the UAE Commercial Transactions Law (Federal Law 18 of 1993) states: ’A CIF sale is one concluded against a lump sum price covering the price of the item sold, the maritime insurance charges and freight by vessel to the port of destination.’\r\n\r\nThis article explains the essential features of a CIF contract. A CIF contract requires the vendor to ship at the port of shipment the agreed goods in the underlying contract of sale, to procure a contract of carriage (bill of lading) under which the goods will be delivered to the agreed destination, to arrange for insurance which will be available for the benefit of the purchaser, to make out a commercial invoice and finally to tender these documents to the buyer who must be ready and willing to pay the price of the shipped goods. In such a case, the title of the goods may pass either on shipment or on tender of the documents. The risk generally passes on shipments or as from shipments, but possession does not pass until the documents which represent the goods are handed over in exchange for the price.  As a result, the buyer, after receipt of the documents, can claim against the carrier for breach of the contract of carriage and against the underwriter for any loss covered by the policy.\r\n\r\nUnder a CIF contract, the purchaser is obliged to pay against the tender of a clean bill of lading that covers the goods contracted to be sold, an insurance policy and a commercial invoice that shows the price. The purchaser is obliged to pay against the tender of the documents notwithstanding of fact that the goods have been lost or damaged at sea after the shipment. In the event of loss, the purchaser must pay the price on tender of the documents and his remedies, if any, will be against the carrier as per the bill of lading or against the underwriter as per the insurance policy, but not against the vendor under the contract of sale. If the purchaser refuses to pay against the documents without any legitimate reason, he shall be liable to compensate the vendor for damage that may result, as per Article 150 of the Commercial Transactions Law.\r\n\r\nEnglish case law, which forms the basis for many international shipping contracts, has established that it is irrelevant whether both buyer and seller knew of the loss of the ship before the latter tendered the documents; the buyer must pay the price. Hence, the vendor can tender the documents even though he possesses, at the time of tender, actual knowledge of the loss of the ship or the goods. Consequently, in the event of loss, the purchaser will receive the documents rather than the goods for which he contracted. Even if the purchaser had already paid the price, he cannot demand its return. In addition, a vendor under a CIF contract for the sale of goods who has shipped the agreed goods under a clean bill of lading and obtained the proper documents, can tender those documents to the purchaser notwithstanding he knows at the time of such tender of the loss of the goods.\r\n\r\nUnder a CIF contract, the vendor performs his obligations by tendering the documents to the purchaser. He is not obliged to deliver the goods to the agreed destination but he is under a negative duty not to prevent the goods from being delivered to the purchaser at their destination. This might done by preventing the carrier from delivering them to the purchaser or by sending them to a different destination. However, if the contract contains a clause that imposes on the vendor an obligation to deliver the goods to the agreed destination, it is not considered as a CIF contract, even if the letters of ‘CIF’ appear in the contract.  Not every contract which is expressed to be a CIF contract is such. Article 155 of the Commercial Transactions Law states that ’a contract which contains such conditions as will render the seller liable for the perishing of the goods after shipment, or makes the performance of the contract conditional on the safe arrival of the vessel, or which vests the buyer with an option to accept the goods according to the contract or according to the pro-forma delivered to him at the time of contracting, shall neither be a CIF nor a FOB sale, but shall be deemed to be a sale conditional upon delivery at the place of arrival.’\r\n\r\nIn a CIF contract, the documents which must be tendered by the vendor to the purchaser will include a bill of lading. However, the contract may stipulate for tender of a delivery order or give the vendor the option of tendering a delivery order. It has been recognised, since the English case of Re Denbigh Cowan &amp; Co and R Atcherley &amp; Co [1921] 90 LJKB 836, that the mere substitution of a delivery order for a bill of lading under the terms of the contracts does not impart any obligation to deliver the actual goods, so as to prevent the contract from being a true CIF contract. Nevertheless, in another English case, The Julia [1949] AC 293, a contract for the sale of rye ‘CIF Antwerp’ gave the seller the option of tendering bills of lading or delivery orders. The seller shipped the rye in bulk and tendered a delivery order in respect of a quantity smaller than the entire shipment. This order was directed to the seller’s agent in Antwerp. Accordingly, it was held that the contract was not a CIF contract but one for the delivery of the goods in Antwerp. As the goods were not so delivered, there was a total failure of consideration. Here it can be said that if the seller in the Julia case had chosen to tender a bill of lading, he would have performed his obligations and it would have been a CIF contract.\r\n\r\nFurther, if a contract gives the purchaser the option of tendering documents or goods, it is not a CIF contract, so the seller is not bound to tender the documents. A true CIF contract does not give the seller this option; the seller must tender the documents and cannot perform by instead tendering goods alone.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIn light of the above, it can be concluded that under a CIF contract the purchaser cannot refuse the documents and demand from the vendor the actual goods. Nor can the vendor withhold the documents and tender the goods. Furthermore, the performance of a CIF contract is fulfilled by delivery of the documents and not by the actual delivery of the goods by the vendor. Accordingly, it has been argued that a CIF contract is not a sale of goods but a sale of documents. As a result, the feature of an ordinary CIF contract is to be fulfilled by delivery of the documents and not by the actual physical delivery of the goods by the vendor. On the other hand, it could be argued that although under CIF contracts shipping documents are very important for the performance of these contracts, CIF contracts cannot be deemed as a sale of documents. Otherwise Book Two, Part Two, Chapter Two of the Commercial Transactions Law, which deals with the ‘certain types of commercial sales’ including CIF contracts, would not govern such contracts.'),
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	(87412,4756,'content_description','A Cost, Insurance and Freight (CIF) contract is an agreement to sell goods at a price inclusive of the cost of the goods, insurance coverage and freight. '),
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	(87414,4756,'pageSummary','A Cost, Insurance and Freight (CIF) contract is an agreement to sell goods at a price inclusive of the cost of the goods, insurance coverage and freight.'),
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	(87422,4756,'_yoast_wpseo_metadesc','A Cost, Insurance and Freight (CIF) contract is an agreement to sell goods at a price inclusive of the cost of the goods, insurance coverage and freight.'),
	(87423,4757,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nIn the spirit of the Holy month of Ramadan, we focus on charity, goodwill and the need to help those less fortunate than ourselves.  Stephen Forster, Head of Al Tamimi’s Pro Bono Committee, talks about the importance of giving back to the communities in which we operate and having a positive impact on those we are able to help.\r\n\r\nThe Al Tamimi Pro Bono Committee was formed in November 2011 and was the brainchild of Founding Partner Essam Al Tamimi.  Both Essam and Managing Partner Husam Hourani are driving forces behind the initiative and their vision of providing legal services to disadvantaged individuals and charitable organisations is one that Stephen wholeheartedly believes in.\r\n\r\nTo establish the programme, a committee was formed comprising of lawyers in the firm with an interest in pro bono work with Stephen as its Chairman.  “We recognise the positive benefits not only to those receiving our help but also to the personal and professional development of the lawyers involved,” says Stephen.  Al Tamimi lawyers see it as both their responsibility and a privilege to be able to use their skills, training and experience to provide legal services to those whose interests would otherwise remain unrepresented and this is something the firm is keen to support.\r\n\r\n“We actively encourage our lawyers to become involved in pro bono initiatives” says Stephen, “We see it an as essential part of our professional responsibility and it allows them to work together while making a difference to the communities in which they live and work.”\r\n\r\nAl Tamimi lawyers have donated and devoted their time to approximately 20 pro bono projects across a number of practice areas including employment, arbitration and IP in the past 18 months, acting for disadvantaged individuals who would not otherwise have access to legal services.   However, the firm is still keen to do more and has a targeted plan to raise awareness of the services on offer and help ensure that the programme reaches even further to those in need.\r\n\r\n“The Pro Bono Programme is also designed to help charities and institutions whose aim is to help the disadvantaged, particularly if the institution is not very wealthy and/or tries to distribute as many of its funds as possible to help the disadvantaged,” explains Stephen.  “We are therefore putting together a list of such organisations with a view to going to visit them to make them aware of our services. “\r\n\r\nIn addition to the firm’s own pro bono work, Al Tamimi lawyers from the firm’s litigation department are also actively involved in the pro bono programmes run by Dubai Courts, the Abu Dhabi Courts and the DIFC Courts, whereby they provide free initial counsel to individuals before proceeding with litigation.  Ahmed Allouz, Partner and Head of Litigation (Dubai), says it is an “honour” to be of service to the community in this way.\r\n\r\n<em><strong>“A man’s true wealth is the good he does in this world.”</strong></em>\r\n\r\n— Prophet Muhammad (PBUH)\r\n\r\nIt is said that one of the most meaningful forms of giving is the giving of our time and our talents.  It is with this in mind that Al Tamimi is proud of our pro bono programme and our commitment to improving the lives of individuals in our communities who are in need.  The Holy month of Ramadan and all it teaches about charitable giving serves as a reminder to us all of the importance of helping others.\r\n\r\nIf you know of any organisations that may need our services or an individual in need of legal assistance, please do contact us.   The Pro Bono Committee looks upon all applications sensitively with a view to trying to help if it falls within the terms of the programme.'),
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	(87427,4757,'content_description','Partner & Head of Abu Dhabi Office'),
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	(87429,4757,'pageSummary','Partner &amp; Head of Abu Dhabi Office'),
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	(87433,4757,'_yoast_wpseo_metadesc','Partner & Head of Abu Dhabi Office'),
	(87434,4758,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nThe raid was conducted on behalf of our clients Wahl Clipper Corporation and Wahl GmbH, the owners of the well-known brands WAHL and MOSER for hair clippers and shavers.\r\n\r\nWe received information from our client on the availability of counterfeit products bearing the WAHL brand in a warehouse in Ajman. Acting on this information, Al Tamimi and Company conducted further investigations and identified more details of the warehouse and the available counterfeit products.\r\n\r\nUpon the confirmation of the availability of the counterfeit products, a complaint was immediately filed with the Ajman Police.  Al Tamimi &amp; Company was able to work with the Ajman Police to arrange a raid of the warehouse on the same day that the complaint was filed.\r\n\r\nThe Ajman Police, accompanied by the Al Tamimi &amp; Company team, raided the warehouse and seized more than 5,600 counterfeit products bearing the brands WAHL and more than 100 counterfeit products bearing the MOSER brand.\r\n\r\nMoreover, during the raid the son of the owner of the warehouse attended at the warehouse. The fact that this person was involved in dealing with counterfeit products was brought to the attention of the police officers and after the police obtained the required permission, the person was arrested immediately.\r\n\r\nThe warehouse located in Ajman was related to a company with its main business in Dubai. Indications are that many businesses in Dubai use warehousing facilities in other emirates. It should be encouraging to brand owners that the enforcement authorities in Ajman have been very cooperative in taking actions in the fight against counterfeiting in the Emirate.\r\n\r\nAl Tamimi and Company’s Intellectual Property Department continues to works with the enforcement authorities in the various Emirates in order to effectively protect our clients’ valuable intellectual property rights.'),
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	(87438,4758,'content_description','Al Tamimi and Company were instrumental in arranging for a major police raid on a warehouse in Ajman on 30 May 2013. '),
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	(87440,4758,'pageSummary','Al Tamimi and Company were instrumental in arranging for a major police raid on a warehouse in Ajman on 30 May 2013.'),
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	(87452,4758,'_yoast_wpseo_metadesc','Al Tamimi and Company were instrumental in arranging for a major police raid on a warehouse in Ajman on 30 May 2013.'),
	(87453,4759,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nIran deposited its instrument of ratification on 4 July 2013 and will be bound by the PCT from 4 October 2013. Accordingly, this entitles Iran to be automatically designated for any international patent applications filed on or after 4 October 2013. As Iran will be subject to Chapter II of PCT, it will also be automatically designated in any demand for international preliminary examination which has been filed by an Applicant from 4 October 2013 onwards. The nationals and residents of Iran will also be allowed to file international applications from 4 October 2013.\r\n\r\nIran has now become the 148th contracting state of the PCT and the 13th country in the Middle East and North Africa (MENA) region to accede to the PCT. Other countries in the region include Algeria, Bahrain, Egypt, Libya, Morocco, Oman, Qatar, Saudi Arabia, Sudan, Syria, Tunisia and the UAE.\r\n\r\nIran has been a member of the Paris Convention for the Protection of Industrial Property since 1998. Iran is also signatory to various WIPO treaties related to intellectual property rights such as the Madrid Agreement and Madrid Protocol for Trademarks, Locarno Agreement for International Classification of Industrial Designs, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration  and the Strasbourg Agreement concerning the International Patent Classification.'),
	(87454,4759,'_content','field_59b649b5c8b2b'),
	(87455,4759,'lawUpdateArticleMonth','4742'),
	(87456,4759,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87457,4759,'content_description','The Islamic Republic of Iran has become the latest member to join the WIPO administered Patent Cooperation Treaty (PCT).'),
	(87458,4759,'_content_description','field_59b641c07f473'),
	(87459,4759,'pageSummary','The Islamic Republic of Iran has become the latest member to join the WIPO administered Patent Cooperation Treaty (PCT).'),
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	(87475,4759,'_yoast_wpseo_metadesc','The Islamic Republic of Iran has become the latest member to join the WIPO administered Patent Cooperation Treaty (PCT).'),
	(87476,4760,'content','July - August 2013\r\n\r\n<hr />\r\n\r\nThis means that the ability to take effective action against the trade in counterfeit goods within the market in Kuwait is of critical importance.\r\n\r\nIn addition to the regular civil and criminal proceedings that a brand owner may bring against counterfeiters in order to enforce their intellectual property rights, the Commercial Control Department (the “CCD”) at the Ministry of Commerce and Industry in Kuwait provides a highly effective administrative mechanism through which enforcement actions can be taken. The CCD is the government authority within the Ministry of Commerce and Industry in Kuwait that is responsible for inter alia protecting intellectual property rights within the market.\r\n\r\nIn order for the CCD to take administrative action against a suspected trader dealing in counterfeit goods, the CCD requires the relevant brand owner to file an appropriate complaint.  The purpose of the complaint is to provide the CCD with all relevant details, including that of the target, that of the goods being counterfeited and the relevant rights that are infringed.\r\n\r\nThe preparation for a complaint to the CCD should include the following:\r\n<ul>\r\n 	<li>The identity of the target dealing in the counterfeit goods;</li>\r\n 	<li>A sample of the counterfeit goods sold or offered for sale and a receipt of its sale (if this can be obtained); and</li>\r\n 	<li>A comparison of the counterfeit product with the authentic product confirming that the counterfeit product is in fact counterfeit.</li>\r\n</ul>\r\nOnce the above steps have been taken, a complaint can be filed with the CCD, providing it with the details obtained in the above mentioned preparatory steps as well as copies of the certificates of registration for the relevant trade mark rights that are being infringed. Further, it is very important to note that the CCD will also require samples of the authentic products that are being counterfeited.  The CCD will consider a complaint and refer it for further action to the investigation department within the CCD that is responsible for the specific area where the infringement is taking place.\r\n\r\nAl Tamimi &amp; Company recently assisted a manufacturer of a well-known brand of mobile and smart phone handsets in filing a complaint with the CCD and in conducting a very successful raid against an establishment offering counterfeit handsets for sale.  This particular matter commenced when Al Tamimi &amp; Company received information from a client’s distributor on the sale of suspected counterfeit goods.  Al Tamimi &amp; Company supported the client in preparing and filing the required complaint, and followed up on the complaint and accompanied the CCD on the raid.\r\n\r\nThe CCD conducted the raid and found approximately 240 counterfeit mobile phone and smart phone handsets with an estimated value of more than US$ 35,000.   The counterfeit goods were seized by the CCD and the CCD also obtained an undertaking from the store owner not to deal in the offending goods again.  The powers of the CCD are not limited to seizing goods and it also has certain investigative powers allowing it to obtain information on the supply and distribution of goods.  In this particular CCD action, valuable information regarding the source of the counterfeit products was also obtained.\r\n\r\nThe CCD will submit samples of the seized goods, along with the authentic samples provided by the complainant, to the Criminal Evidence Department of the police to conduct an independent comparison of the goods.  The Criminal Evidence Department shall issue a report on the comparison of the counterfeit and authentic goods and if it confirms that the confiscated products are counterfeit, the matter will be transferred to the Commercial Public Prosecutor and the criminal courts of Kuwait.  The report prepared by the Criminal Evidence Department represents good evidence that the confiscated goods are counterfeit.  As the criminal prosecution authorities base their decision on whether to prosecute on the reports from the Criminal Evidence Department, there is a very high level of successful prosecution based on such evidence from the Criminal Evidence Department.\r\n\r\nThe CCD provides an effective mechanism to address the trade in counterfeit goods in the Kuwaiti market with the high level of detail required in complaints playing an important role in the criminal prosecution of counterfeit traders. If you require any assistance in respect of taking action against counterfeit trade in Kuwait, please contact Tarek Abu Mariam in the Kuwait office of Al Tamimi &amp; Company at t.abumariam@tamimi.com.'),
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	(87480,4760,'content_description','Like in many other jurisdictions in the Middle East, trade in counterfeit goods in Kuwait poses a significant challenge for brand owners. At this time, there is still no formal process available to brand owners to record their valuable trademarks with the customs authorities in Kuwait in order to address the importation of counterfeit goods at the borders of the country.  '),
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	(87482,4760,'pageSummary','Like in many other jurisdictions in the Middle East, trade in counterfeit goods in Kuwait poses a significant challenge for brand owners. At this time, there is still no formal process available to brand owners to record their valuable trademarks with the customs authorities in Kuwait in order to address the importation of counterfeit goods at the borders of the country.'),
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	(87509,4763,'content','September 2013\r\n\r\n<hr />\r\n\r\nIn this case, the Main Contractor was unable to pay an outstanding amount owed to the Subcontractor as a result of not receiving his payment from the Project Owner.\r\n\r\nA ‘pay when paid’ clause in a back to back agreement is a provision making payment under a construction contract conditional on the payer receiving payment from a third person (typically the project owner).\r\n\r\nIn this case, the Main Contractor argued that the action be stayed or dismissed pending the resolution of the arbitration matter which they brought against the Project Owner.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe Claimant (a subcontractor) was a company specialized in the installation of glass and aluminum who initiated legal action before the Dubai Court of First Instance against the Respondent (the Main Contractor) seeking a court order obligating the latter to pay the amounts due  to the Claimant plus legal interest.\r\n\r\nThe Claimant agreed to undertake all aluminum and glass works for the project within ten days from the date of meeting with the Respondent on the understanding that the former would not incur any fines and that all amounts due to the Claimant would be released.\r\n\r\nAfter completing the work, the Claimant informed the Respondent of the completion and the project consultant issued a completion certificate.\r\n\r\nWhile the Respondent paid part of the outstanding amounts owed to the Claimant for the completed work, the Respondent did not settle the outstanding balance due as a result of their inability to pay.  The Respondent had not received payment from the project owner.\r\n\r\n<strong>Procedural History</strong>\r\n\r\n<em>The Court of First Instance</em>\r\n\r\nBefore the Court of First Instance, the Respondent pleaded lack of capacity and requested that the court dismiss the case or alternatively, to stay the action pending a decision in the arbitration case brought by the Respondent against the Project Owner.\r\n\r\nThe Court of First Instance appointed an expert, who examined the case.  The expert gave his decision and the Court ordered the Respondent to pay the outstanding amount calculated by the expert in his report in addition to payment of legal interest.\r\n\r\nThe Respondent appealed before the Dubai Court of Appeal seeking to overturn the lower court’s decision on the following grounds:\r\n\r\nThe appealed judgment in its reasoning relied on a flawed expert report that did not examine the payment mechanism agreed upon between the Claimant and the Respondent and separately between the Respondent and the Project Owner. The Claimant and the Respondent agreed that the amount owed to the Claimant will be paid by the Respondent when the latter’s dues are paid by the Project owner i.e. pay when paid.\r\n\r\nAs the Respondent’s dues were not settled by the Project Owner, the Respondent argued that the Court of First Instance erred by rejecting their plea in relation to lack of capacity.  The Respondent also argued that filing the case was premature because of the non-fulfillment of the condition precedent.\r\n\r\nThe Respondent further argued that they had a direct relationship with the Project owner and the case is conditional upon the Respondent receiving payment from the latter. In this regard, the appealed judgment erred by not ordering that the action be dismissed or stayed pending the court’s decision in the case between the Respondent and the Project owner.\r\n\r\nFurthermore, the appealed judgment erred in rejected the Respondent’s request to join the Project owner to the proceedings.\r\n\r\nThe Respondent concluded their argument before the appeal court by requesting that the lower court’s decision be overturned or alternatively for the matter to be referred to a different court appointed expert to establish the existence of a ‘pay when paid’ clause in the agreement concluded between the Respondent and the Claimant.\r\n\r\n<em>The Court of Appeal </em>\r\n\r\nThe appeal court appointed a different engineering expert, and after submitting his report the court held that:\r\n\r\nIt has been established by the cassation court that a clause allowing the main contractor to pay his subcontractor only when the former has been paid by the project owner renders the obligation of the main contractor subject to a condition precedent. Such condition must be fulfilled before the subcontractor has the right to be paid by the main contractor. As such, the burden of proving that the condition has been fulfilled rests with the creditor.\r\n\r\nIn this case, the Claimant and the Respondent concluded in their agreement that all terms of the subcontract shall be performed back to back with the main contact (between the Project Owner and the Main Contractor). Additionally, the Claimant did not object to the clause and did acknowledge that they received the project progress payments on a ‘pay when paid’ basis.\r\n\r\nIn light of the above, the Respondent (a main contractor) made payments to the Claimant conditional on receipt of payment by the Project Owner. The Respondent’s obligation therefore is subject to a condition precedent and consequently the Claimant cannot claim outstanding payments as long as that condition has not been fulfilled.\r\n\r\nThe appeal court found that the lower court is contrary to the sound interpretation of the agreement between the disputing parties and the clauses included therein.\r\n\r\nConsequently, the appeal court overturned the lower court’s decision and dismissed the action as premature.\r\n\r\n<em>Practice note:</em>\r\n\r\nIn this case the court classified a ‘pay when paid’ clause as a condition precedent. The sub contractor can claim any outstanding payment owed to him by the main contractor only when the condition precedent is fulfilled.\r\n\r\nAny legal action initiated before the fulfillment of a pay when paid clause can be dismissed as premature.'),
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	(87513,4763,'content_description','Al Tamimi and Company successfully represented a client in an action filed against a client, a Main Contractor, who had entered into an agreement which contained a ‘pay when paid’ provision.  '),
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	(87515,4763,'pageSummary','Al Tamimi and Company successfully represented a client in an action filed against a client, a Main Contractor, who had entered into an agreement which contained a ‘pay when paid’ provision.'),
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	(87525,4763,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Marwa El Mahdy'),
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	(87527,4763,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
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	(87538,4764,'content','September 2013\r\n\r\n<hr />\r\n\r\nIn accordance with Article 267 of the UAE Civil Code unilateral termination of a contract can have no legal effect in the UAE, but the practice of the UAE Courts show that the employer in construction cases can be entitled to unilaterally terminate a contract. In a recent Court of Appeal judgment it was held that “the reason behind this exception is that muqawala contracts often take a long time to complete and circumstances may change in the period between contract formation and completion of the contract work”.  This exception has its roots in Egyptian law.  In this case, the court held that when a main contractor gives notice of termination to the subcontractor, the muqawala contract terminates and the main contractor must compensate the subcontractor for the expenses incurred, any work already performed and loss of profit which the subcontractor expected to earn by undertaking the work.\r\n\r\nThis decision applies a provision found in Egyptian law which is not available under UAE law.  Pursuant to Article 663 of the Egyptian Civil Code:\r\n\r\n“(1) An employer may terminate the contract and stop the work at any time before the completion of the works, provided that he compensates the contractor for all expenses he has incurred, for the work that he has done and the profit that he would have made if he had completed the work.\r\n\r\n(2) The Court may, however, reduce the compensation due to the contractor for loss of profit if the circumstances justify such reduction.  In particular, the court shall deduct from such compensation any savings realized by the contractor as a result of the rescission of the contract by the employer and any profit which the contractor could have made by employing his time otherwise.”\r\n\r\nIn the UAE, the primary source of law is statutory code and judges, therefore, do not make law. However, the UAE legal system has been influenced to a large extent by the Egyptian legal system, courts and practice.  In this case, the UAE Court looked to the practice of the Egyptian courts because of the absence of a provision in the UAE Civil Code specifically dealing with the unilateral termination of muqawala contracts.\r\n\r\n<strong>Background</strong>\r\n\r\nThe claimant (a subcontractor) sued the defendant (the main contractor) seeking judgment against them for AED 8,739,230 plus 12% interest per annum from the due date until payment.  According to the contract, the parties agreed that the subcontractor was to supply lights and their accessories for AED 10,378,800. The subcontractor commenced manufacturing, and produced a batch of items in accordance with the conditions and specifications agreed upon and prepared them for delivery to the main contractor in accordance with the timetable. The subcontractor also purchased the necessary quantity of raw materials to manufacture all the items agreed upon. The main contractor received a batch as scheduled in the delivery timetable on site but did not receive a further batch that was ready for delivery so the main contractor asked the subcontractor to store the items until further notice.  The main contractor paid AED 544,928 out of the total cost of the contract items and AED 8,739,230 remained outstanding. The subcontractor argued that the main contractor’s unwarranted breach of contract harmed the subcontractor who was unable to meet their commitments towards their raw material suppliers, to the detriment of their business reputation.\r\n\r\n<strong>Main contractor’s arguments for termination</strong>\r\n\r\nThe main contractor argued that production, delivery and payment were conditional on the approval of the project consultant and the employer and that the contract in question, a subcontract, was back-to-back with the main contract which, having been terminated, meant that the subcontractor could not assert any claims against the Main Contractor.  The Main Contractor argued that he repeatedly notified the subcontractor to stop production and deliveries due to financial difficulties experienced in the project, but to no avail.\r\n\r\nThe Court subsequently appointed an engineering expert who submitted a report concluding that the subcontractor had obtained the necessary approvals from the main contractor for the materials that were to be used in the project as the Main Contractor would send confirmation to the subcontractor via inspection requests.\r\n\r\n<strong>The Court’s final decision</strong>\r\n\r\nThe judgment referred to Article 872 of the Civil Code which provides that a “muqawala is a contract by which one of the parties thereto undertakes to make a thing or to carry out work for consideration which the other party agrees to provide.”\r\n\r\nThe Court also held that it is judicially established that the employer may, for any reason, terminate the muqawala contract before it has been fully performed. This is an exception to the rule that the contract is binding on its parties and may only be revoked or varied by mutual agreement. As mentioned in the introduction, the reason behind this exception is that muqawala contracts often take a long time to complete and circumstances may change in the period between contract formation and completion of the contract work. In the interests of ensuring that the employer (or main contractor) does not have to bear unnecessary costs, the courts have given the employer the legal option of unilaterally terminating the muqawala contract while at the same time safeguarding the subcontractor’s interests by requiring the employer to compensate the subcontractor for expenses incurred, work already performed as well as loss of profit which the contractor expected to earn by undertaking the work. This applies where the main contractor has subcontracted work such that the main contractor is considered the employer in the relationship with the subcontractor and thus is entitled to terminate the subcontract before completion of the work. This option may be exercised regardless of the method of payment involved (whether lump sum or unit prices under an itemized list).\r\n\r\nIn this particular case it was clear from the main contractor’s correspondence that they had notified the subcontractor to stop production and deliveries. This was followed up with a letter giving notice of termination of the master project and requesting from the subcontractor a list of manufactured items to support the main contractor’s claims for compensation against the employer. The muqawala terminated upon notice of termination.  As a result, the main contractor’s responsibility to continue making payments under the contract and the subcontractor’s obligation to complete the work ceased as well. However, the main contractor would have to compensate the subcontractor as mentioned above.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nUnilateral termination (or termination-for-convenience) can be an attractive option where grounds for termination are uncertain or the project is no longer feasible. The terminating party is not faced with making the argument that a material or fundamental breach giving rise to termination rights has occurred, but must be prepared to compensate the subcontractor for loss of profit and the expenses incurred at the date of termination.');

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	(87566,4764,'_yoast_wpseo_metadesc','Under the UAE Civil Code there are three ways to terminate a contract: by consent, by operation of law and by court order (Article 267). Articles 892 to 896 of the UAE Civil Code also deal with the issue of termination of muqawala contracts, which are contracts for works (i.e. construction contracts).'),
	(87567,4765,'content','September 2013\r\n\r\n<hr />\r\n\r\nThe Court of Cassation held that:\r\n\r\n“decisions rendered by the Land Department in disputes that arise between developers and investors are strictly administrative decisions which, unlike court decisions, are not binding and final and are only of a conciliatory nature; they do not impose any limitations on the court’s discretion to hear such disputes”.\r\n\r\n<strong>Background </strong>\r\n\r\nThe plaintiffs in this case were two developers that sold an off-plan unit located in their project to the respondent, a real estate company.\r\n\r\nIt was agreed that the respondent would pay 10% of the unit price and the remainder of the price in installments. The agreement stated that in the event the agreement was terminated, the deposited amount would be retained by the seller (the plaintiffs).\r\n\r\nThe respondent paid the 10% deposit, thereafter; the plaintiffs fulfilled their obligation and deposited the paid 10% amount in an escrow account for the project under the respondent’s name. They also registered the contract under the respondent’s name in the Interim Property Register. 77.6% of the project works was completed.\r\n\r\nThe respondent however did not pay any other installments after the initial 10% with no acceptable reason. The plaintiffs filed an application to the Dubai Land Department to cancel the interim registration and for a declaration that they were entitled to retain 40% of the total price (as provided by Article 11 of Law No. 13 of 2008 regulating the interim property register in Dubai).\r\n\r\nThe Land Department agreed with the plaintiffs and issued a decision cancelling the registration of the unit and stating that the plaintiffs’ were entitled to terminate the contract and retain 40% of the total price of the sold unit.\r\n\r\nIn light of the Land Department’s decision, the plaintiffs filed a case before the Dubai Court of First Instance seeking a court order in the terms of the decision rendered by the Land Department.\r\n\r\n<strong>Procedural History </strong>\r\n\r\nThe Dubai Court of First Instance issued its judgment ordering the respondent to pay the remaining amount of the 40% of the unit price with legal interest. The respondent was not satisfied by the court’s order and filed an appeal. The Dubai Court of Appeal rendered a decision lowering the amount adjudicated by the lower court but otherwise upholding the appealed judgment.\r\n\r\nThe respondent challenged the appeal court’s decision before the Dubai Court of Cassation, requesting the appealed judgment be overturned. The plaintiffs also challenged the appeal court’s decision in the part relating to the lowering of the amount previously awarded by the Court of First Instance\r\n\r\n<strong>The Court of Cassation  </strong>\r\n\r\n<em>The respondent’s challenge</em>\r\n\r\nThe respondent argued that the appealed judgment erred in terminating the contract based on Article 11 of Law No. 13 of 2008. Additionally, the appealed judgment erred when it disregarded the respondent’s plea that its breach was due to the plaintiffs’ failure to deliver the final sale contract of the unit. Furthermore, the percentage ordered by the court to be paid to the plaintiffs should have been calculated based on the amounts paid to the plaintiffs to date and not based on the full amount of the price.\r\n\r\nThe court in response of the above argument decided a crucial principal that “decisions rendered by the Land Department in disputes that arise between developers and investors are strictly administrative decisions which, unlike court decisions, are not binding and final and are only of a conciliatory nature; they do not impose any limitations on the court’s discretion to hear such disputes”.\r\n\r\nSimultaneously, it is concluded from reading of Article 11 of Law No. 13 of 2008 and Articles 15,16 and 17 of the Executive Council Decision no. 6 of 2010, that where a dispute arises between a developer and a purchaser in relation to a contract for the sale of an off-plan unit and the developer wishes to terminate the contract for reasons attributed to the purchaser, the following conditions must apply.\r\n\r\nthe developer should have commenced work on the project. The criteria in measuring the commencement is if the developer has completed the infrastructure work of the project\r\n\r\nthe developer should have fulfilled all his contractual obligations towards the purchaser and the delay in construction should not be due to any negligence on the side of the developer\r\n\r\nthe developer should notify the purchaser to fulfill his contractual obligations, either by appearing in person before the Land Department or in writing by means of registered mail or by an email provided that a copy of such communication is provided to the Land Department. Thereafter, the Land Department shall grant the purchaser a period of 30 days to perform his contractual obligations failing which the following apply …… (ii) if the developer has completed at least 60% of the project, he may terminate the contract and keep a maximum of 40% of the unit’s purchase price.\r\n\r\nIn the event that the payment received by the developer in the escrow account is less than the respective percentage set out in the above clause, the developer may apply to the competent court seeking recovery of the balance owed by the purchaser.\r\n\r\nThe court noted from the documents prepared by the lower court that the respondent had paid 10% of the price and it was also proven that the plaintiffs has completed 77.6% of the project. Therefore as per Article 11 of Law No. 13 of 2008, the plaintiffs were entitled to 40% of the price amount.  The Cassation court concluded that the lower court’s decision was sound and upheld it.\r\n\r\n<strong>The plaintiffs’ challenge </strong>\r\n\r\nThe plaintiffs argued that the appealed judgment erred when it reduced the adjudicated amount below the 40% provided in Article 11 of Law No. 13 of 2008. The Court of Cassation found that this argument was sound and overturned the appealed judgment in this part.\r\n\r\n<em>Practice Note </em>\r\n\r\nThe above judgment helpfully clarifies both the status of decisions made by the Land Department, and how relief under Article 11 of Law No. 13 of 2008 works.\r\n\r\nThe judgment will lend confidence to both developers and investors, since it ensures that both now know the consequences should there be a breach by the purchaser of the payment obligations.  Developers will be keen to progress projects in the confidence that the more they progress, the more they can keep of the purchase price should the investor default; where investors have an incentive to maintain instalments, else they risk losing a significant amount on default.'),
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	(87571,4765,'content_description','In the following judgment, the Dubai Court of Cassation answered a question important to both developers and purchasers of off-plan units  - whether the decision of the Land Department is binding in such matters. '),
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	(87573,4765,'pageSummary','In the following judgment, the Dubai Court of Cassation answered a question important to both developers and purchasers of off-plan units - whether the decision of the Land Department is binding in such matters.'),
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	(87576,4765,'_currentURL','field_59d35123ab1e7'),
	(87577,4765,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zafer Oghli'),
	(87578,4765,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87579,4765,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','z.oghli@tamimi.com'),
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	(87581,4765,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(87582,4765,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87583,4765,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Marwa El Mahdy'),
	(87584,4765,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87585,4765,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
	(87586,4765,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(87587,4765,'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation',''),
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	(87589,4765,'lawUpdateArticleNoWriters','2'),
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	(87594,4765,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87595,4765,'_yoast_wpseo_metadesc','In the following judgment, the Dubai Court of Cassation answered a question important to both developers and purchasers of off-plan units - whether the decision of the Land Department is binding in such matters.'),
	(87596,4766,'content','September 2013\r\n\r\n<hr />\r\n\r\nMost family businesses have governance structures in place for their commercial matters, but fewer have formal ownership structures.\r\n\r\nUnfortunately, corporate governance is often given a lesser status than profitability. It is important that a well defined succession plan or good corporate governance is implemented before the business passes to the next generation.\r\n\r\nWhy does a family business need restructuring? Arab families are large and continue to grow with each generation. The increase of family members calls for transparency and accountability.  There may not be direct communication about the business within the family so it is important to ensure that business information is provided to all family members.  The ownership responsibilities will inevitably pass from one generation to the next and conflict may result if strong policies are not in place. Corporate governance defines the members’ roles and responsibilities, thereby reducing uncertainty and opportunity for conflict.  Family businesses may function sufficiently under the founders with few formal procedures, but the lack of formality is likely to create conflict with succession.\r\n\r\nIn other parts of the world, family trusts are established to hold and regulate shares.  Similar trust structures are not used in the Middle East.  A number of models are available ranging from Western to Islamic Sharia that propose ways which family business can be structured and a family constitution drafted with the new generation in management. Families must instruct a competent advisor who understands their culture, family history and inner problems and can consequently propose the right model for the family.  Respect for elders, a desire for privacy and exclusivity are common factors.  There is no model tailored to suit a particular family and families must invest time in determining the structure most suitable to them. In my opinion, it would be wrong to try and fit one model to all families irrespective of whether it is Sharia compliant or not, because all families are unique.  The model must live up to the expectations of the family and promote sustainability and continuity.\r\n\r\nThere are a number of considerations to take into account when restructuring a family business.  For example, is there a clear and set criteria for family members joining the business or taking on senior roles? Will performance appraisal mechanisms and remuneration fixing processes be applied to family members? Is the business willing to have board members from outside the family?  Will female family members be included on the board? The value of independent directors is becoming more recognised, particularly when they bring skills the board is lacking such as legal or financial expertise.  Some families may prefer to include an independent member in a purely operational role so it is therefore important to define their role clearly.\r\n\r\nIn my opinion, it is fundamental that the founder carries out the restructure whilst he is still in control or at least while he is still an authoritative figure among the family.  It is important that the new generation is given an opportunity to experience running the business while the founder is still alive. Any family business restructure requires stability, at least initially while the changes are implemented. The founder must continue to have some authority and autonomy, at least for the first few years until the younger members are given more responsibility.  A number of the changes may not affect the business commercially, but are instead cultural changes. Without the founder being there to oversee the implementation of the restructure, it may collapse.\r\n\r\nThe purpose of the restructuring is to avoid turbulence or conflict that will affect the continuity of the management and to sustain the wealth and benefits of the business for future generations. It is important to consider the drive of the next generation to be engaged in the restructuring and invest in creating a drive if it does not exist. If the next generation is not involved in the restructuring process they may challenge the structure and it will have a weaker foundation.\r\n\r\nThe laws of the Middle East are lacking for encouraging family businesses to restructure at the right time. There is an absence of developed corporate or trust law which could facilitate a founder of a family business choosing the right option to restructure the business during his lifetime. In my opinion, the absence of developed corporate or trust law discourages founders from handing over the levels of power to non-family members or young family members during their lifetime.  This may be due to there being no guarantee that the restructure will be sustainable or doubts as to whether the founder can retain control during his lifetime.\r\n\r\nA relaxing of the requirements for listing family businesses will be beneficial as it will introduce public shareholdings, which in turn are likely to promote better management with a blend of private, public and family members.  There is a need to raise awareness of governance issues, structures and policies among family businesses so that family businesses undergo restructure during the founder’s lifetime.  Founders desire to pass on a healthy organisation to the next generation.  Strong corporate governance leads to greater professionalism, confidence during succession and may enhance the international standing and competitiveness of the business.'),
	(185060,4766,'core_values',''),
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	(87597,4766,'_content','field_59b649b5c8b2b'),
	(87598,4766,'lawUpdateArticleMonth','4761'),
	(87599,4766,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87600,4766,'content_description','Along with oil, family businesses are the backbone of the Arab economies. The majority of family businesses in the Middle East are now transferring to the second generation and it is important that they have succession plans in place to ensure that the business survives and prospers following this transition. '),
	(87601,4766,'_content_description','field_59b641c07f473'),
	(87602,4766,'pageSummary','Along with oil, family businesses are the backbone of the Arab economies. The majority of family businesses in the Middle East are now transferring to the second generation and it is important that they have succession plans in place to ensure that the business survives and prospers following this transition.'),
	(87603,4766,'_pageSummary','field_59e59b307dec8'),
	(87604,4766,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/family-businesses-handing-over-to-the-next-generation.html'),
	(87605,4766,'_currentURL','field_59d35123ab1e7'),
	(87606,4766,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','957'),
	(87607,4766,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(87608,4766,'lawUpdateArticleWriters','1'),
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	(87613,4766,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87614,4766,'_yoast_wpseo_metadesc','Along with oil, family businesses are the backbone of the Arab economies. The majority of family businesses in the Middle East are now transferring to the second generation and it is important that they have succession plans in place to ensure that the business survives and prospers following this transition.'),
	(87615,4767,'content','September 2013\r\n\r\n<hr />\r\n\r\nOn 21 August 2013, the MoJ distributed Circular No. 2 of 2013 on Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT) Regulations for Lawyers and Other Legal Professionals and Public Notaries dated 11 August 2013 (the ‘Circular’).\r\n\r\nThe Circular reminds lawyers, other legal professionals and public notaries that they are subject to certain obligations in accordance with:\r\n<ul>\r\n 	<li>Federal Law No. 2 of 2002 regarding the criminalization of money laundering (‘AML Law’);</li>\r\n 	<li>Federal Law No. 1 of 2004 on combating terrorism offences (‘CT Law’); and</li>\r\n 	<li>Financial Action Task Force (FATF) Recommendations.</li>\r\n</ul>\r\nWhereas the AML Law and the CT Law do not make specific reference to the obligations imposed on legal professionals, The Circular makes it clear that the obligations under those laws and the Circular apply to lawyers, legal professionals and public notaries in the conduct of the following activities by them:\r\n<ul>\r\n 	<li>Transactions in real estate.</li>\r\n 	<li>Management of client money, securities and other assets.</li>\r\n 	<li>Management of bank, savings or securities accounts.</li>\r\n 	<li>Organisation of contributions for the creation, operation or management of companies legal persons or other arrangements, and the buying and selling of business entities.</li>\r\n</ul>\r\nA key requirement of the Circular is that Senior Management and owners of law firms must ensure that the firm’s policies, procedures, systems and controls appropriately and adequately address the requirements of the AML and CT Laws and the Circular.\r\n\r\nThis bulletin is intended to bring the Circular to the attention of those persons to whom it applies. If you have any queries regarding the Circular or the areas of law it addresses, please contact Ibtissam Lassoued, Partner, Financial Crime Department at: i.lassoued@tamimi.com and Andrew Hudson at: a.hudson@tamimi.com.'),
	(87616,4767,'_content','field_59b649b5c8b2b'),
	(87617,4767,'lawUpdateArticleMonth','4761'),
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	(87619,4767,'content_description','The UAE Ministry of Justice (‘MoJ’) has recently issued the latest initiative by the UAE to ensure that it adheres to the highest international standards of practice in the important areas of Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT).'),
	(87620,4767,'_content_description','field_59b641c07f473'),
	(87621,4767,'pageSummary','The UAE Ministry of Justice (‘MoJ’) has recently issued the latest initiative by the UAE to ensure that it adheres to the highest international standards of practice in the important areas of Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT).'),
	(87622,4767,'_pageSummary','field_59e59b307dec8'),
	(87623,4767,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/uae-ministry-of-justice-circular-amlcft-responsibilities-of-law-firms-lawyers-public-notaries.html'),
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	(87628,4767,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(87629,4767,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Andrew Hudson'),
	(87630,4767,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87631,4767,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.hudson@tamimi.com'),
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	(87633,4767,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(87634,4767,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
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	(87637,4767,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','631'),
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	(87640,4767,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87641,4767,'_yoast_wpseo_metadesc','The UAE Ministry of Justice (‘MoJ’) has recently issued the latest initiative by the UAE to ensure that it adheres to the highest international standards of practice in the important areas of Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT).'),
	(87642,4768,'content','September 2013\r\n\r\n<hr />\r\n\r\nSuch policies also aim to reduce the damaging effects money laundering and terrorism financing have on a global, local, economic, social and political level.\r\n\r\n<strong>New and improved governing principles and standards to protect local financial institutions </strong>\r\n\r\nAlthough not a widespread problem in Kuwait, the Government has taken steps to address the aforementioned issues by passing Law No. 106 of 2013 Regarding the Combating of Money Laundering and Financing of Terrorism (’New Law’).  The New Law supersedes the previous Law No. 35 of 2002 (’Old Law’) and establishes new and improved governing principles and standards to protect local financial institutions from being used to launder money and finance terrorism. There were numerous issues with the Old Law, which were highlighted by the Middle East &amp; North Africa Financial Action Task Force (MENAFATF) in their 2011 Mutual Evaluation of the 2002 Kuwaiti Anti Money Laundering Law.\r\n\r\nThe most pressing issue for the MENAFATF and the international community was that the Old Law failed to criminalise terrorist financing. Further, there were no measures in place that enabled the identification and freezing of terrorist assets. This was of great concern, especially when taking into consideration the plans of the Kuwaiti Government to create an international financial centre, along with the expected growth in their domestic economy as global economic recovery boosts the demand for oil. Adhering to the advice given by MENAFATF, terrorist financing has been criminalised under Article 3 of the New Law, which states:\r\n\r\nA person who can be said to have committed a terrorist financing crime is any person that has directly or indirectly, willingly and illicitly, collected funds with the intention to use these funds for committing a terrorist act.\r\n\r\nMeasures were also put in place that enable the freezing of terrorist assets, implemented under Article 22 of the New Law. Article 22 gives power to the public prosecutor or his authorised public lawyers to freeze or confiscate funds or instruments, if sufficient evidence exists to suggest that they were obtained or used with regards money laundering or terrorism financing.\r\n\r\nAdditionally, The Central Bank of Kuwait has supplemented the New Law by issuing circulars and instructions to local financial institutions, instructing them on measures that should be taken to ensure that customer due diligence practices are adhered to, in order to give the new law the best possible chance of succeeding.\r\n\r\nDue diligence was something that MENAFATF put great emphasis on in their analysis of the Old Law, as this was not provided for. Customer due diligence measures, if implemented correctly, act as a valuable whistle-blowing mechanism by which the relevant authorities are notified by the banks of transactions or persons they deem suspicious. The new due diligence measures are provided for under Article 5 of the New Law and detail the specific due diligence measures that should be undertaken by all banks and financial institutions in Kuwait. Emphasis is placed on making sure that banks have suitable safeguards in place to ensure no accounts are opened for the purpose of terrorist financing or money laundering and that staff are trained to identify suspicious behaviour and transactions.\r\n\r\nThe Kuwaiti Government also implemented a fully independent Financial Intelligence Unit (‘FIU’). The creation of the FIU was sanctioned under Article 16 of the New Law. The FIU will serve as the main investigative body and, as stipulated under Article 16, will be responsible for receiving, applying for, analysing and transferring information related to what is suspected of being the proceeds of money laundering or monies used to finance terrorism, either in part or in whole.\r\n\r\nThe introduction of the FIU demonstrates the Kuwaiti Government’s level of commitment to combating both terrorist financing and money laundering and sends a strong message to the criminal and terrorist organizations that prey on the relatively new and inexperienced banking systems in the Middle East.\r\n\r\nWith new laws come new sanctions and penalties, something the New Law has covered quite thoroughly. Article 28 refers to the punishment for a breach of Article 2 and provides for a prison sentence not exceeding ten years and a financial penalty not exceeding the funds laundered in breach of Article 2. The punishment for breach of Article 3 (financing of terrorism) is not dissimilar and is provided for by Article 29. Article 29 states that any person found guilty of financing terrorism shall be subject to a prison sentence not exceeding 15 years and a fine of no less than the funds subject to the crime and no more than double their value. Both these penalties mark a stricter stance on money laundering and the financing of terrorism for Kuwait, something which the Kuwait Government recognised was an issue that needed to be addressed.\r\n\r\nIt is relevant to note that one of the biggest barriers to combating money laundering and the financing of terrorism in the Middle East are Hawaladars or ‘Hawala’ agents. These agents provide a no-questions-asked cross border cash courier service. Whilst the UAE have implemented a system of registration, whereby they require all Hawala agents to register themselves with the relevant authority in order to better regulate the service, Kuwait has gone one step further by including restrictive provisions covering such issues in the New Law. For example, as per Article 20 of the New Law, any person wishing to leave the State of Kuwait with currency or other negotiable financial instruments, whether they are in their possession for themselves or on behalf of another, is required to disclose to the Kuwaiti Customs Authority the value of these currencies or negotiable financial instruments. The FIU may also review this information whenever required.\r\n\r\n<strong>A positive step </strong>\r\n\r\nUnder the New Law there have been implemented a number of key, important provisions that were worryingly absent from the law it superseded. As the law is still new, an evaluation of its effectiveness cannot yet be given. However, it is important to note that the recommendations made by MENAFATF have been acknowledged and taken on board by the Kuwaiti Government and thus included in the New Law. We will continue to monitor the application of the New Law and to report any related developments.\r\n\r\nFor any queries in relation to this topic, please contact Ibtissam Lassoued, Partner, Financial Crime Department (Dubai) at i.lassoued@tamimi.com and Fatema Fathnezhad, Associate (Kuwait Office) at f.fathnezad@tamimi.com.\r\n\r\n&nbsp;\r\n\r\n&nbsp;\r\n\r\n&nbsp;'),
	(185000,4768,'core_values',''),
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	(87646,4768,'content_description','Two major sources of concern for governments and financial institutions worldwide are money laundering and terrorism financing transactions.  In order to curb the instances and effects of such transactions, the international financial community has made significant efforts to introduce policies aimed at setting certain criteria and recommendations related to raising awareness of money laundering and terrorism financing transactions.  '),
	(87647,4768,'_content_description','field_59b641c07f473'),
	(87648,4768,'pageSummary','Two major sources of concern for governments and financial institutions worldwide are money laundering and terrorism financing transactions. In order to curb the instances and effects of such transactions, the international financial community has made significant efforts to introduce policies aimed at setting certain criteria and recommendations related to raising awareness of money laundering and terrorism financing transactions.'),
	(87649,4768,'_pageSummary','field_59e59b307dec8'),
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	(87655,4768,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87656,4768,'_yoast_wpseo_metadesc','Two major sources of concern for governments and financial institutions worldwide are money laundering and terrorism financing transactions. In order to curb the instances and effects of such transactions, the international financial community has made significant efforts to introduce policies aimed at setting certain criteria and recommendations related to raising awareness of money laundering and terrorism financing transactions.'),
	(87657,4769,'content','September 2013\r\n\r\n<hr />\r\n\r\n<strong>Early legislation</strong>\r\n\r\nThe introduction of the Insurance Companies Law No. 74 of 1936 and its relevant regulations, namely the Regulation for the Insurance Company Permits No. 25 of 1936 mark the introduction of legislation that deal solely with the insurance industry in the country.\r\n\r\nWith the introduction of the Insurance Firms and Agents Law No. 49 of 1960, the aforementioned Law No. 74 of 1936 as well as Regulation No. 25 of 1936 were abolished.\r\n\r\nFurthermore, the aforementioned law no. 49 of 1960 was repealed by a decision granting the Iraqi Ministry of Finance the authority to proceed with activities in insurance and reinsurance for the purposes of the Iraqi Companies Law No. 21 of 1997. In accordance with this law, an insurance agent is the natural person or legal entity granted a license to practise insurance agency by the Minister of Finance under the law.\r\n\r\nAdditionally, several regulations and instructions have been enacted in relation to the work of the insurance agency license. These include the Rules of Procedure of the National Insurance Company Law No. 1 of 1987 and the Rules of Procedure of the Iraqi Public Insurance Company Law of 1999.\r\n\r\n<strong>Permitted activities</strong>\r\n\r\nIn accordance with the Instructions to Exercise Insurance and Re-Insurance No. 12 of 1999, the Iraqi legislator has classified the types of insurance which may be practiced by insurance and reinsurance companies in Iraq. Some of these include the following:\r\n<ul>\r\n 	<li>Life insurance;</li>\r\n 	<li>Insurance against risks of all types of transportation, ships and aviation;</li>\r\n 	<li>Fire insurance and additional risks attached to it;</li>\r\n 	<li>Vehicle insurance;</li>\r\n 	<li>Different kinds of engineering insurance; and</li>\r\n 	<li>Personal accident insurance and work accidents, theft, security guaranteeing, civil liability and other types of insurance against accidents.</li>\r\n</ul>\r\n<strong>Licensing body</strong>\r\n\r\nOrder No. 10 of 2005 for Regulating the Insurance Business has identified the Iraqi Insurance Diwan (IID) as the sole authority capable of granting such licenses to practice insurance activities in the country. In this capacity, the IID has issued instructions identifying the requirements and qualifications that have to be met by companies before being granted a license to practice insurance-related activities. Furthermore, the IID has issued further instructions identifying the responsibilities of any such company licensed for the same.\r\n\r\n<strong>Permitted practitioners</strong>\r\n\r\nIn accordance with the aforementioned instructions issued by the IID, insurance activities in Iraq should only be practiced by the following:\r\n<ul>\r\n 	<li>Iraqi public companies;</li>\r\n 	<li>Iraqi joint stock corporations (private/ mixed);</li>\r\n 	<li>Branches of foreign insurers registered in Iraq;</li>\r\n 	<li>Takaful or retakaful entities; and</li>\r\n 	<li>Insurers or reinsurers considered by the Head of Diwan eligible and with the financial capacity.</li>\r\n</ul>\r\nIn accordance with Iraqi legislation, any natural person wishing to perform any insurance-related activities in Iraq should be a holder of a high school diploma as a minimum requirement. Furthermore, the aforementioned person wishing to conduct insurance activities in Iraq has to have experience in the insurance business, or, in the case where no experience is attained, the same should prove that he has passed a training course specialised in insurance business not less than 15 days from the date of the application.\r\n\r\n<strong>Cases where licences may not be granted</strong>\r\n\r\nAdditionally, Article 19 of the aforementioned order grants the IID the right to refuse granting a license to all or some of the insurance branches stated in the application, based on one of the following reasons:\r\n<ul>\r\n 	<li>The application does not satisfy the specified conditions, some of the required documents are missing or the documents do not satisfy the required conditions;</li>\r\n 	<li>The technical basis is not compatible with the costs of the operations that the insurer carries out, the reserves or the investment funds; or</li>\r\n 	<li>Non-compliance with insurance-related laws, orders, regulations or instructions currently in force.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>Obligations of insurance branches</strong>\r\n\r\nWhen it comes to the functions and obligations of Iraqi insurance branches, Iraqi legislation has provided for this to include claims, paying insurance reimbursements prepared by the insurer, issuing insurance policies under an agreement with the insurer, tackling any queries regarding the insurance policies, and much more.\r\n\r\nFurther, it is provided for by the order that no insurer may reinsure insurance contracts with another insurer for any of the branches of insurance that are practised, unless the reinsurer is licensed to practice in that branch. As for any financial obligations, it is important to note that no insurer may practise insurance business unless it adheres to the minimum level of capital as specified by the relevant Iraqi legislation at hand.\r\n\r\n<strong>Role of the IID</strong>\r\n\r\nEstablished under the order above, the aim of the IID is to regulate the insurance sector, supervise it to ensure its development and to secure an open market, and strengthen the role of the insurance industry to insure people and property against risks.\r\n\r\nIn accordance with the order, the IID shall be administered by a President. This President shall be appointed on the basis of a recommendation by the Minister of Trade for a period of four years, renewable for one term only. Additionally, the order requires that certain requirements be met for a person to be eligible for the position of IID President. Some of these requirements include:\r\n<ul>\r\n 	<li>That the President be no less than 24 years of age;</li>\r\n 	<li>That the President have, as a minimum, a degree in law or public accounting or any other specialisation related to the insurance business; and</li>\r\n 	<li>That the President has no less than five years’ experience in insurance or any related field.</li>\r\n</ul>\r\n<strong>Other instructions and regulations </strong>\r\n\r\nFinally, it is important to note that several instructions and regulations have been issued on the organizing of insurance and reinsurance business in Iraq, such as:\r\n<ul>\r\n 	<li>Instructions No. 8 of 2006 on granting insurance and reinsurance business licenses;</li>\r\n 	<li>Instructions No. 9 of 2006 - types and branches of insurance;</li>\r\n 	<li>Instructions No. 10 of 2006 - organizing the work and determining the responsibilities of insurance brokers; and</li>\r\n 	<li>Instructions No. 11 of 2008 - any natural person or legal entity can practise as an insurance agent after obtaining a license by the IID.</li>\r\n</ul>\r\n<strong>Progress report</strong>\r\n\r\nAfter decades of economic stagnation, wars and economic boycott, the organisational development of the laws and regulations of insurance and reinsurance in Iraq and of Law No. 5 for the year 2005 has broadened the scope of the insurance industry in Iraq. Additionally, it has provided for scope to help attract international insurance and reinsurance companies, thereby developing competitiveness and supporting the development and revival plans of the economy.\r\n\r\nMoreover, the Security Council recently unanimously adopted Resolution 2017 (2013), which removed Iraq from its Chapter VII obligations of the United Nations Charter. This significant step will lead to positively generating a number of gains to the insurance sector of Iraq, as it contributes to a reduction in insurance costs for air freight &amp; passenger flights, shipping and sea cargo costs. In addition, change will grow the insurance industry by the opening and creation of local and international insurance agencies in Iraq.\r\n\r\n<em>First published in “Middle East Insurance Review” October 2012 issue.</em>'),
	(184967,4769,'core_values',''),
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	(87661,4769,'content_description','The insurance industry in Iraq, in its modern form, was not founded as a result of economic or social need to protect the locals and their assets, as was the case in other Western countries. In reality, insurance was introduced into Iraq through the establishment of agencies and branches of Western insurers.'),
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	(87663,4769,'pageSummary','The insurance industry in Iraq, in its modern form, was not founded as a result of economic or social need to protect the locals and their assets, as was the case in other Western countries. In reality, insurance was introduced into Iraq through the establishment of agencies and branches of Western insurers.'),
	(87664,4769,'_pageSummary','field_59e59b307dec8'),
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	(87667,4769,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ahmed Al Jumaili'),
	(87668,4769,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87669,4769,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.aljumaili@tamimi.com'),
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	(87675,4769,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','632'),
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	(87679,4769,'_yoast_wpseo_metadesc','The insurance industry in Iraq, in its modern form, was not founded as a result of economic or social need to protect the locals and their assets, as was the case in other Western countries. In reality, insurance was introduced into Iraq through the establishment of agencies and branches of Western insurers.'),
	(87680,4770,'content','September 2013\r\n\r\n<hr />\r\n\r\nAccording to Article 9 of the New Decree, it shall come into force from the date of its publication in the Official Gazette. As at the date of preparing this article, the New Decree has not been published.\r\n\r\n<strong>Background</strong>\r\n\r\nArticle 11(5) of Law No. (13) of 2008 Regulating the Interim Real Estate Register in the Emirate of Dubai, as amended by Law No. (9) of 2009, gave the Real Estate Regulatory Authority (“RERA”) authority to cancel a real estate project based on a reasoned technical report.\r\n\r\nExecutive Council Resolution No. (6) of 2010 approving the executive regulation of Law No. (13) of 2008 (the “Resolution”) sets out further details of the manner in which RERA is authorised to cancel a real estate project. In particular:\r\n\r\nArticle 23 of the Resolution sets out the nine (9) grounds pursuant to which RERA may resolve to cancel a real estate project, as follows:\r\n<ol>\r\n 	<li>If the developer fails, without any good reason, to commence the construction works although the developer has already obtained all the required approvals from the relevant authorities;</li>\r\n 	<li>If the developer commits any of the crimes as provided under Article 16 of Law No. 8 of 2007 concerning the escrow accounts for real estate developments in the Emirate of Dubai;</li>\r\n 	<li>If RERA confirms that the developer has no serious intention to perform the project;</li>\r\n 	<li>If the plot for the intended project is withdrawn due to the breach by the sub developer of any of its contractual obligations with the master developer;</li>\r\n 	<li>If the plot is fully affected by planning or re-planning projects undertaken by the relevant authorities in the Emirate;</li>\r\n 	<li>If the developer fails to perform the project due to its gross negligence;</li>\r\n 	<li>If the developer expresses its intention not to perform the project for reasons satisfactory to RERA;</li>\r\n 	<li>If the developer declares its bankruptcy; or</li>\r\n 	<li>Any other reasons as determined by RERA.</li>\r\n</ol>\r\n<ul>\r\n 	<li>Article 24 of the Resolution gives the developer of a real estate project seven (7) working days to appeal a resolution by RERA to cancel the project.  RERA has a further seven (7) working days to determine the appeal. If RERA accepts the appeal and allows the project to proceed, it may establish terms and conditions that the developer must meet, which terms and conditions the developer must accept in writing, in order to annul the resolution to cancel the project. However, if RERA rejects the developer’s appeal, the determination is final and RERA shall proceed to cancel the project.</li>\r\n 	<li>Article 25 of the Resolution sets out the steps that RERA must follow immediately after resolving to cancel a real estate project. Accordingly, RERA must first prepare a technical report setting out the reasons for the cancellation and notify the developer of the cancellation resolution. Next, RERA must appoint an auditor, at the cost of the developer, to review the financial position of the project to confirm the amounts paid to the developer or deposited in the project’s escrow account, as well as the amounts spent. Any funds available in the escrow account are to be refunded to purchasers within fourteen (14) days of the date of cancellation of the project.</li>\r\n 	<li>Article 26 of the Resolution provides that if there are insufficient funds in the escrow account to fully refund the purchasers, the developer must pay the shortfall to purchasers within sixty (60) days from the date of cancellation of the project, which period can be extended at the discretion of RERA.</li>\r\n</ul>\r\nFinally, Article 27 of the Resolution provides that if the developer fails to repay purchasers within the period established pursuant to Article 26, then RERA “shall take all the required procedures to secure the rights of the purchasers, including the reference of the issue to the competent judicial authorities”.\r\n\r\nThe special judicial committee (the “New Judicial Committee”) that is to be established pursuant to the New Decree will be the ‘competent judicial authority’ referred to in Article 27 of the Resolution.\r\n\r\n<strong>Provisions of the New Decree</strong>\r\n\r\nFirstly, it is important to note that the New Judicial Committee will only be concerned with real estate projects that have been cancelled by RERA pursuant to the procedures outlined above – the New Judicial Committee will not be involved at all in disputes arising between developers and purchasers in relation to real estate projects that have not been cancelled.  In particular, Article 2A of the New Decree provides the New Judicial Committee the following powers:\r\n<ol>\r\n 	<li>To consider and decide such issues, demands and claims that may arise between the real estate developers and the purchasers, whose subject matter or cause is cancelled real estate projects.</li>\r\n 	<li>To liquidate real estate projects cancelled under a final resolution to be issued by the Real Estate Regulatory Authority, in accordance with the provisions of the Law No. 13 of 2008 and its executive regulation, and to settle the relevant rights upon deducting the liquidation expenses.</li>\r\n 	<li>To consider all executive proceedings, complaints and grievances whose subject matter or cause is cancelled real estate projects.</li>\r\n</ol>\r\nTo assist in the performance of its duties, Article 2B of the New Decree provides that the New Judicial Committee may do any of the following without limitation:\r\n<ol>\r\n 	<li>Seek the assistance of experts and consultants and in particular from the Dubai Lands Department.</li>\r\n 	<li>To appoint auditors at the cost of the developer to audit the financial position of the cancelled real estate project and to verify the amounts paid to the developer by the purchasers or deposited in the escrow account of such project and the amounts spent.</li>\r\n 	<li>To issue such orders to the trustee of the escrow account of the project or the developer, in any issue in connection with the liquidation of the project, including refunding the amounts deposited in the account or paid by the developer to the relevant persons.</li>\r\n 	<li>To take all the required procedures to secure the rights of the purchasers.</li>\r\n</ol>\r\nThe New Judicial Committee will consist of one or more panels of judges from Dubai Courts. Each panel must have at least three (3) members (Article 1).\r\n\r\nArticle 3 of the New Decree establishes the exclusive authority of the New Judicial Committee in relation to cancelled real estate projects in the Emirate of Dubai. In particular:\r\n<ol>\r\n 	<li>All courts in the Emirate of Dubai, including the Dubai International Financial Centre Courts, are prohibited from hearing any matter concerning a cancelled real estate project, and any existing cases are to be referred to the New Judicial Committee to handle; and</li>\r\n 	<li>Judgments issued prior to the effective date of the New Decree by any court in the Emirate of Dubai, including the Dubai International Financial Centre Courts, in connection with the liquidation of a cancelled real estate project must be referred to the New Judicial Committee for consideration.</li>\r\n</ol>\r\nJudgments, orders and resolutions issued by the New Judicial Committee shall be final and binding, not subject to appeal and can be enforced by the Execution Section of the Dubai Courts (Article 5).\r\n\r\nFinally, it is worth noting that the liquidation procedures of real estate projects together with all demands, claims and issues handled by the New Judicial Committee are exempt from court fees (Article 7).\r\n\r\n<strong>Future Developments</strong>\r\n\r\nWe will report further on the implementation of the New Decree when the New Judicial Committee has been established and further details of its modus operandi are available.'),
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	(87682,4770,'lawUpdateArticleMonth','4761'),
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	(87684,4770,'content_description','On July 23 2013, His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE, in his capacity of Ruler of Dubai, issued Decree No. (21) of 2013 concerning the formation of a special judicial committee for the liquidation of cancelled real estate projects in the Emirate of Dubai and the settlement of relevant rights (the “New Decree”). '),
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	(87686,4770,'pageSummary','On July 23 2013, His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE, in his capacity of Ruler of Dubai, issued Decree No. (21) of 2013 concerning the formation of a special judicial committee for the liquidation of cancelled real estate projects in the Emirate of Dubai and the settlement of relevant rights (the “New Decree”).'),
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	(87689,4770,'_currentURL','field_59d35123ab1e7'),
	(87690,4770,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Lisa Dale'),
	(87691,4770,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87692,4770,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','l.dale@tamimi.com'),
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	(87694,4770,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
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	(87697,4770,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(87698,4770,'_yoast_wpseo_metadesc','On July 23 2013, His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE, in his capacity of Ruler of Dubai, issued Decree No. (21) of 2013 concerning the formation of a special judicial committee for the liquidation of cancelled real estate projects in the Emirate of Dubai and the settlement of relevant rights (the “New Decree”).'),
	(87699,4771,'content','September 2013\r\n\r\n<hr />\r\n\r\nThis article sheds some light on the taking and enforcement of security (which is always of essence to banking business) in the UAE in comparison with that under the law of the People’s Republic of China (‘PRC’)  .\r\n\r\n<strong>Source of Law</strong>\r\n\r\nSecurity-related matters in PRC were primarily governed by the Security Law of the People’s Republic of China (1995) (‘PRC Security Law’) and the Property Law of the People’s Republic of China (2007) (‘PRC Property Law’) which together set out the main structure of the security legal system under PRC law. In the UAE, unlike that of PRC, while there are a few laws governing the taking and enforcement of a specific type of security (such as Law No. 14 of 2008 Concerning Mortgage in the Emirate of Dubai) no comprehensive laws have been promulgated to govern security-related matters as a whole. In practice, relevant provisions of the Federal Law No. 18 of 1993 issuing the UAE Commercial Transaction Law (‘UAE Commercial Code’) and Federal Law No. 5 of 1985 issuing the Federal Civil Transaction Law (‘UAE Civil Code’) will be taken into account in respect of matters related to the taking of security.\r\n\r\n<strong>Types of Security Interest</strong>\r\n\r\nPRC law generally provides for three types of security, namely mortgage, pledge and lien, the perfection of which enables the secured party to enjoy a priority right over secured property above unsecured creditors and secured creditors subsequent in rank. In comparison, generally under UAE law  security would either be a mortgage or pledge  without necessarily guaranteeing the right of priority (except for registered mortgage and pledge). In practice, six types of security (or documents used for security purpose) are widely used based on the type of property to be secured, which are discussed below.\r\n\r\n<strong>Mortgage over immovable property </strong>\r\n\r\nUnder UAE law, very similarly to that under PRC law, immovable property comprises land, buildings and fixtures and a mortgage over immovable property is perfected by signing a written mortgage contract and registering the same with the relevant authority. Furthermore, once a mortgage is registered, the mortgagee obtains a priority right over the mortgaged property above unsecured creditors and secured creditors subsequent in rank to that of the mortgagee. However, a mortgage over immovable property under UAE law differs from that under PRC law in the following aspects:\r\n<ol>\r\n 	<li>Under UAE law, an interest in land could be freehold, leasehold, usufruct, musataha, granted or gifted, which will dictate what type of mortgage is possible and impacts the interest and value a mortgagee will obtain from the mortgage. But under PRC law, mortgages can only be granted over land use rights because all lands in China are owned by the state while individuals or entities can only hold land use rights (for a limited term);</li>\r\n 	<li>A mortgage over land under UAE law will automatically extend to any building or structure to be constructed on the land in the future, which is not possible under PRC law; and</li>\r\n 	<li>Under UAE law, certain registered leases can be mortgaged, which does not exist under PRC law.</li>\r\n</ol>\r\n<strong>Mortgage/Pledge over movable property </strong>\r\n\r\nThere are two types of mortgages over movable property in the UAE: registered mortgages and unregistered pledges.\r\n\r\nRegistered mortgages under UAE law can be granted over registered properties such as vehicles, ships and aircraft and such registered mortgages are perfected by signing a mortgage contract and registering the same with the relevant authorities. While the perfection requirement of a registered mortgage (or its equivalent) under PRC law is very similar to that under UAE law, the scope of mortgageable properties is more extensive, as registered mortgages can also be granted over machinery, raw materials, semi-finished products and finished products, as well as ships and aircrafts under construction. Furthermore, the PRC Property Law makes the list of mortgageable property nonexclusive by providing that a mortgage can be granted to any property that is not explicitly prohibited by laws and regulations.\r\n\r\nUnder UAE law, very similar to that under PRC law, a possessory pledge can be granted over movable property (i.e. not permanently affixed to an immovable property) and the same can be perfected by signing a written pledge agreement and delivering the relevant property by the pledgor to the pledgee (either actual or constructive). Pledged assets must be in existence and indentified and security cannot be granted to future assets.\r\n\r\n<strong>Mortgage over commercial business </strong>\r\n\r\nUnder UAE law, commercial business comprises tangible elements (goods, tools, machines and equipments) and intangible elements (trade name, goodwill, intellectual property rights, contracts with clients and the right to let and licenses). A mortgage over commercial business can be perfected by signing and notarising an Arabic (or bilingual) mortgage contract and registering the mortgage with the relevant Commercial Registry. For the ease of reference, a mortgage so created is referred to as a “Commercial Business Mortgage”.\r\n\r\nA similar provision can be found in Article 181 of the PRC Property Law which provides that an enterprise, individual industrial and commercial household or agricultural production operator may mortgage the manufacturing facilities, raw materials, half-finished products and products it owns now or in the future, and the mortgagee shall be entitled to enforce the mortgage and seek preferred payments from the chattels that exist at the time of the enforcement. For the ease of reference, a mortgage so created is referred to as a “Chattel Mortgage”.\r\n\r\nIt is worth noting the following fundamental differences between the above-mentioned mortgages:\r\n<ul>\r\n 	<li>a Chattel Mortgage can only be granted over tangible assets such as manufacturing facilities and  inventories, but a Commercial Business Mortgage can also be granted over intangible assets such as intellectual property rights which is secured by way of pledge under PRC law;</li>\r\n 	<li>chattels secured by a  Commercial Business Mortgage (such as goods) should be existing and identified and cannot be changed after the perfection of the mortgage, but the chattels secured by a Chattel Mortgage may include future chattels and are to be identified at the time of enforcement. In China, the Chattel Mortgage has been generally considered as a type of floating charge recognised by law for the first time. The concept of a floating charge is not recognised under UAE law.</li>\r\n</ul>\r\n<strong>Pledge over bank accounts</strong>\r\n\r\nAs a general principal under UAE law, very similarly to that under PRC law, funds in an account subject to an account pledge must be ascertained and identified at the time of perfection of the pledge. Therefore, practically pledges over operating accounts or accounts with fluctuating balances are problematic. To overcome the problem and as a common practice in the UAE, it is preferable to hold cash flows in an account held under the name of the pledgee (i.e. the lender) or look at alternative structures (such as sweep mechanisms, reserve accounts or an offshore account, including the DIFC). In China it is possible to overcome the problem by pledging a deposit certificate or pledging a “special account” pursuant to the Interpretation of the Supreme Court regarding the PRC Security Law.\r\n\r\n<strong>Pledge over shares</strong>\r\n\r\nOnly four types of companies may issue shares in the UAE and can therefore be pledged: public joint stock companies, private joint stock companies, partnerships limited by shares and free zone companies.  One notable feature of share pledges under UAE law is that the equity interest (or quota) in a limited liability company may not be pledged (this will be changed, however, with the introduction of the new companies law).\r\n\r\nHowever, pledges over shares, equity interest and fund units are commonly recognized and widely used in China. Shares or equity interest (as the case may be) in most types of companies under PRC law, including domestic companies, foreign invested enterprises and list companies, are capable of being pledged.\r\n\r\nThe perfection requirements under both jurisdictions are similar to each other which involve the signing of a written agreement and registration of the pledge with the relevant authorities.\r\n\r\n<strong>Assignment of rights</strong>\r\n\r\nUnder UAE law, contractual rights under an underlying agreement, including receivables, are typically secured by way of assignment. For finance transactions, it is common for banks in the UAE to take assignments of customer’s rights to receive rentals from property, insurance proceeds, rights under construction contracts, management contracts, payments under invoices and so on. Perfection of assignment requires a written assignment agreement to be signed, a notice to the counterparty under the underlying agreement and (as the case may be) the consent of such counterparty. In essence, assignment of rights is merely a contractual arrangement between the parties and there is no priority right granted by law that can be enjoyed by the assignee (although in practice, the assignee can secure its rights under assignment by a setting off or sweeping mechanism).\r\n\r\nVery differently, receivables are pledgeable according to PRC Property Law. Perfection of a pledge of receivables requires a written pledge contract and registration of the pledge with the Credit Reference Centre maintained by the China Central Bank.\r\n\r\n<strong>Enforcement of security </strong>\r\n\r\nThe concept of “self help” is not recognized under UAE law and an order from a UAE court will be required to enforce a security. Enforcement involves the secured party filing a claim for the entire amount outstanding on a debt and then requesting the court to both acknowledge the security and confirm the secured party’s preferred position. Following a court order, the security interest can either be realized by way of public auction (in respect of a mortgage) or otherwise.\r\n\r\nIn contrast, enforcement of security in China is much less onerous. In terms of mortgages, the PRC Property Law permits the mortgagee to enter into an agreement with the mortgagor with respect to the method to realize the mortgage, failing which a court order will be required. In terms of pledges, the PRC law encourages the parties to realise a pledge between themselves (either by agreement or by public auction), the court will be involved only when a pledgee refuses to enforce a pledge.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile this article is not intended to be a comprehensive analysis of the taking and enforcement of security in the UAE and China, it does serve to highlight material differences in each jurisdiction, which should be kept in mind when doing business in the UAE. Should you have any inquiry in relation to the issues discussed herein, please feel free to contact us.'),
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	(87703,4771,'content_description','In recent years, the market has seen increasing numbers of Chinese banks establishing a presence in the UAE (including the Dubai International Financial Centre). As a Chinese-qualified lawyer practising banking law in the UAE, the author always feels obligated to help ensure that Chinese banks comprehensively understand the local legal environment.'),
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	(87705,4771,'pageSummary','In recent years, the market has seen increasing numbers of Chinese banks establishing a presence in the UAE (including the Dubai International Financial Centre). As a Chinese-qualified lawyer practising banking law in the UAE, the author always feels obligated to help ensure that Chinese banks comprehensively understand the local legal environment.'),
	(87706,4771,'_pageSummary','field_59e59b307dec8'),
	(87707,4771,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/taking-security-in-the-uae-comparing-the-taking-of-security-in-the-uae-to-china.html'),
	(87708,4771,'_currentURL','field_59d35123ab1e7'),
	(87709,4771,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Alex Peng Shi'),
	(87710,4771,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87711,4771,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','p.shi@tamimi.com'),
	(87712,4771,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(87713,4771,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(87714,4771,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87715,4771,'lawUpdateArticleNoWriters','1'),
	(87716,4771,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(87717,4771,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','411'),
	(87718,4771,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(87719,4771,'lawUpdateArticlePractices','1'),
	(87720,4771,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87721,4771,'_yoast_wpseo_metadesc','In recent years, the market has seen increasing numbers of Chinese banks establishing a presence in the UAE (including the Dubai International Financial Centre). As a Chinese-qualified lawyer practising banking law in the UAE, the author always feels obligated to help ensure that Chinese banks comprehensively understand the local legal environment.'),
	(87722,4772,'content','September 2013\r\n\r\n<hr />\r\n\r\nThe NMC is undergoing a series of changes prompted by Cabinet Resolution No. 9 of 2013 and Cabinet Resolution No. 12 of 2013, both of which come into force on 30 July, 2013.\r\n\r\nResolution No. 9 of 2013 brings about reform to the internal organizational structure of the NMC. The Resolution hence has two functions: (i) it outlines and redefines the role of the NMC itself, and (ii) it outlines the roles and the powers of the NMC’s key representatives. This Resolution revokes the previous Resolution No. 34 of 2011, which concerned the organizational structure of the NMC.\r\n\r\nMost importantly, Article 3 sets out the new powers of the NMC, and is a definitive step in the gradual process of power delegation from the Ministry of Information and Culture to the NMC. The list of powers includes: the power to supervise all media affairs of the UAE (Article 3(2)); to receive newspaper correspondents and international news agencies and provide them with the required information and publications to acquaint the public on the position of the State in various fields (Article 3(3));  to grant media licences to media institutions in the UAE (Article 3(4)); and to follow up media content concerning all matters printed, published and broadcasted in the State and that which is taken from abroad.\r\n\r\nResolution No. 12 of 2013 introduces a fee structure for commercial-based media licenses and for obtaining permits to deal in media materials. The fee schedules resemble the ones provided by the previous law, Cabinet Resolution No. 14 of 1999 which has now been revoked by virtue of this new Resolution. However, Resolution No. 12 of 2013 tackles a more comprehensive and specific list of media materials and services for which licenses are payable. Resolution No. 12 of 2013 lists 49 services which require licences and 13 media materials which require permits. Some notable categories include the newly introduced permit for those practicing as foreign correspondents in the UAE, fees payable for the sale of media materials such as pictures, and licenses for cafés providing internet services to the public.\r\n\r\nWe consider that there is some ambiguity to the scope and application of the licensing fees. While categories under the license provision do not distinguish between media and non-media institutions, in our view, it would be prudent for all organizations which trade or otherwise deal with media materials or services to take note of these licensing categories. Failure to comply and obtain a relevant permit and/or license can attract penalties up to the amount payable for the license, depending on the breach.'),
	(184872,4772,'core_values',''),
	(87723,4772,'_content','field_59b649b5c8b2b'),
	(87724,4772,'lawUpdateArticleMonth','4761'),
	(87725,4772,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87726,4772,'content_description','The National Media Council (NMC) is a federal government body which has been established to oversee and undertake the media affairs of the United Arab Emirates. '),
	(87727,4772,'_content_description','field_59b641c07f473'),
	(87728,4772,'pageSummary','The National Media Council (NMC) is a federal government body which has been established to oversee and undertake the media affairs of the United Arab Emirates.'),
	(87729,4772,'_pageSummary','field_59e59b307dec8'),
	(87730,4772,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/overview-of-the-changes-to-the-national-media-council.html'),
	(87731,4772,'_currentURL','field_59d35123ab1e7'),
	(87732,4772,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Anita Siassios'),
	(87733,4772,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87734,4772,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.siassios@tamimi.com'),
	(87735,4772,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(87736,4772,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(87737,4772,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87738,4772,'lawUpdateArticleNoWriters','1'),
	(87739,4772,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(87740,4772,'_yoast_wpseo_metadesc','The National Media Council (NMC) is a federal government body which has been established to oversee and undertake the media affairs of the United Arab Emirates.'),
	(87741,4773,'content','September 2013\r\n\r\n<hr />\r\n\r\nIn particular this article will attempt to address the following issues.\r\n<ul>\r\n 	<li>What expensesguarantees are requited to submit an offer?</li>\r\n 	<li>What legal presence is required to sign contracts, for foreign entities?</li>\r\n 	<li>What penalties can be imposed by the government with regard to public contracting?</li>\r\n 	<li>How to handle disputes arising before or during contract formation, esp related to public biding and offer acceptance?</li>\r\n 	<li>What are the available Mechanisms for dispute resolution after contract formation? Mediation, Arbitration, litigation?</li>\r\n 	<li>In what language(s) are contracts written? which one prevails in case of difference in interpretation?</li>\r\n 	<li>What’s the definition of “special circumstances” or force majeure effecting timely performance. Can security problems in Iraq excuse non performance?</li>\r\n</ul>\r\nFirst we need an overview of the contracting process. This article concerns official contracts governed by the Public Government Contracts law No 1 for the year 2008 and followup regulations for implementing government contracts. Please note that exceptions can be made where there is a need for confidentiality or speed, or for other reasons such as a market monopoly by one supplier. It should be noted as well that contracts totaling 50 000, 000 IQD (fifty million Iraqi Dinars) and less are also exempt from most of the said procedures. The latter is handled by an acquisition committee.\r\n\r\nFor construction and supply contracts the first step is to buy a tender. This is a requirement to enter public biding and submit offers, this payment can not be refunded. Potential Contractors/Suppliers then submit technical and commercial offers, along with any other documents which may be required for the specific contract. At this stage a guarantee of 1% of the total contract price is required. This is to ensure the seriousness of an offer. This guarantee has to be issued from a CBI – Central Bank of Iraq - certified bank and is refundable. When opening a Letter of Credit the buyer (Public Entity) refunds the fees if it’s opened inside Iraq.\r\n\r\nIf an offer is accepted the government entity will enter negotiations with the offeree to sign a contract. Contracts specify the need for a performance bond of 5% of the total contract price. This is a guarantee for good faith performance and is refunded by the bank after successful contract completion. Requires inspection reports for supply contracts and other similar documents for construction contracts.\r\n\r\nThere are no restrictions on foreign entities wishing to do business in Iraq so generally speaking foreign contractors and suppliers do not have to be registered with the ministry of planing. However to sign contracts a foreign entity needs to either open a branch in Iraq or incorporate an Iraqi company, it can own 100% of its stock in. A representative office does not suffice and needs to be converted to a branch.\r\n\r\nIn case of refusal to sign a contract within 15 days after a valid offer has been accepted the penalty is to liquidate the 1% preliminary guarantee. Other legal measures may be taken in case of other damages. In case of delayed or non performance the Iraqi contracting entity can suggest  inserting the defaulting Contractor/Supplier in the ministry of planing black list. Being blacklisted deprives a party from any future business with the government for a minimum of two years. This does not effect litigation or any other legal actions taken.\r\n\r\nDisputes arising before or during contract formation, complaints about offer acceptance, conditions effecting fair competition and other public biding procedure issues are handled by an administrative court at the ministry of planing, complaints have to be submitted within 7 days of contract formation. The ministry of planing central contracting department oversees this process by following up on the courts decisions with contracting departments in relevant public ministries.\r\n\r\nArticle 11 of the regulation for implementing government contracts No 1 for the year 2008 allows for and encourages Mediation and arbitration, including International arbitration when dealing with a foreign entity. Article 9 states that (a) Contracts shall be written in Arabic, Kurdish and English whenever possible and (b) The tender document shall determine the prevailing version in case of difference in interpretation. This is relatively new in Iraq\r\n\r\nWhen it comes to defining “special circumstances” or force majeure, Iraqi law requires that the impediment causing non performance be unforeseeable to the non performing party. Since 2003 Iraqi courts have ruled that security problems are not considered unforeseeable and that parties assume this risk when contracting. Therefore, it can not excuse non performance.'),
	(184839,4773,'core_values',''),
	(184840,4773,'_core_values','field_59b64ab071de4'),
	(87742,4773,'_content','field_59b649b5c8b2b'),
	(87743,4773,'lawUpdateArticleMonth','4761'),
	(87744,4773,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87745,4773,'content_description','The Iraqi government is the most prominent business partner in the Iraqi market. To date most of the money flows from public sources. As such it is essential for a foreign entity doing business in Iraq to know the general guidelines for submitting offers, acceptance criteria and contract formation procedure. '),
	(87746,4773,'_content_description','field_59b641c07f473'),
	(87747,4773,'pageSummary','The Iraqi government is the most prominent business partner in the Iraqi market. To date most of the money flows from public sources. As such it is essential for a foreign entity doing business in Iraq to know the general guidelines for submitting offers, acceptance criteria and contract formation procedure.'),
	(87748,4773,'_pageSummary','field_59e59b307dec8'),
	(87749,4773,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/a-guide-to-contracting-with-the-iraqi-government-construction-supply-contracts.html'),
	(87750,4773,'_currentURL','field_59d35123ab1e7'),
	(87751,4773,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','619'),
	(87752,4773,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(87753,4773,'lawUpdateArticleWriters','1'),
	(87754,4773,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(87755,4773,'_yoast_wpseo_metadesc','The Iraqi government is the most prominent business partner in the Iraqi market. To date most of the money flows from public sources. As such it is essential for a foreign entity doing business in Iraq to know the general guidelines for submitting offers, acceptance criteria and contract formation procedure.'),
	(87756,4774,'content','September 2013\r\n\r\n<hr />\r\n\r\nIf the business is in the form of a Kuwait commercial entity, the Kuwaiti partner(s) must own at least 51% of the company. Alternatively, if a foreigner will not engage with a Kuwaiti partner to establish a commercial entity, that foreigner may only do business in Kuwait through the use of a Kuwaiti agent.  Such agents receive favorable treatment under the Commercial Law in respect to termination of the agency relationship and other matters which can act as a disincentive for foreign investors.\r\n\r\n<strong>The Foreign Investment Law </strong>\r\n\r\nIn 2001 Kuwait passed the Foreign Direct Investment Law No. 8 of 2001(the “FDI Law”) to encourage and secure direct foreign investment into the Kuwait market.  The FDI Law was established as part of the Kuwait 2035 Plan which seeks to transform Kuwait into a financial and commercial regional hub by diversifying the economy, reducing its dependence upon the oil industry and inviting the private sector to drive economic activities.\r\n\r\nThe FDI Law created an exception to the Commercial Law by allowing foreigners to own up to 100% of a commercial entity in Kuwait where the entity operates in select industrial sectors such as infrastructure, insurance, hospitals, housing, tourism and entertainment.\r\n\r\nUnder the FDI Law, foreign investors are incentivized to invest in Kuwait including property incentives in the form of a land grant and a tax holiday for up to 10 years.  These incentives are linked to the proportion of Kuwaiti nationals that are employed.\r\n\r\nThe FDI Law was introduced with much anticipation and optimism given its alignment with the 2035 Plan. However, to date, the FDI Law has arguably not had the desired impact that was envisaged at the outset. This is primarily due to the difficulty foreign investors have faced in obtaining a license from the Kuwait Foreign Investment Bureau (KFIB), the entity established to implement the FDI Law.  Further, where a license was granted by the KFIB it can often take many months to process and there have also been delays in obtaining land grants.\r\n\r\nUntil fairly recently, the FDI Law was largely viewed as ineffective by the private sector, leading many to abandon pursuing their own license and instead focusing their efforts on participation in Kuwait through other means (e.g. the use of SPVs within the GCC). This is not entirely attributable to the FDI Law as inward investment has been affected by political turmoil and the delay of many anticipated projects in Kuwait which were also designed to boost economic diversification and foreign investment.\r\n\r\n<strong>Changes to the Foreign Investment Law </strong>\r\n\r\nIn line with the recent modernization of legislation in Kuwait, the KFIB and government officials sought to revise the FDI Law after discussing the various concerns with investors. Due to the critical need for change, the FDI Law was repealed and replaced by Foreign Direct Investment Law No. 116 of 2013(the “New FDI Law”) in June 2013. The intent of the New FDI Law is to address flaws in the repealed FDI Law, encourage more direct investment in Kuwait and make it much easier for investors to obtain a license.\r\n\r\nAs a starting point, the KFIB is replaced with the Direct Investment Promotion Authority (“DIPA”), which is essentially created with the same mandate as the KFIB. DIPA will assume all assets and liabilities attributed to KFIB, which will be subsequently dissolved.  KFIB is enthusiastic about the issuance of the New FDI Law and deems this as a promising step towards achieving the objectives of the 2035 Plan.\r\n\r\nIt should be noted that the New FDI Law will be accompanied by executive regulations (the “Regulations”) which we anticipate will be introduced in December of this year. Accordingly, the New FDI Law will become effective upon the issuance of the Regulations.  The Regulations should shed light and provide further detail as to the implementation of the New FDI Law. Nonetheless, there are a few improvements, which can already be seen in the New FDI Law.\r\n\r\nFirst, the New FDI Law provides a “One-Stop Shop” whereby a DIPA license application is considered by a specialised unit comprising of all relevant officials from the various relevant government departments.  This unit will hopefully deal with the issuance of commercial, employment and all other licenses required for operations and avoid or reduce bureaucratic delays. Additionally, this specialized unit is expected to deal with the grant of land required for many projects, a role typically held by the Public Authority for Industry.  Whilst the concept of a “One-Stop Shop” is not new, the New FDI Law formalizes its creation and should hopefully reduce ‘red tape’ for foreign investors.\r\n\r\nAnother improvement is the use of a “Negative List” in Article 11 of the New FDI Law to identify the sectors available to foreigners for investment. The repealed FDI Law specifically identified 14 available sectors for foreign investment. The New FDI Law expands the available sectors by stating that the Council of Minister shall prepare a list of those sectors which are excluded from foreign investment within the scope of the New FDI Law. This implies that investment in any sector not identified by this list would be permissible.\r\n\r\nAnother likely improvement is the reduction of time required to receive a license from the DIPA. Unlike the KFIB who could take up to 8 months to issue a license, the New FDI Law establishes that the DIPA must respond within 30 days of receipt of the license application. This brings Kuwait closer to its GCC neighbors with respect to the length of time ordinarily required to process a foreign investment license.\r\n\r\nThe New FDI Law is certainly in need of the Regulations in order to be able to establish how the proposed improvements will be implemented.  However, to meet the objectives of the 2035 Plan, we consider it crucial that the New FDI Law proves effective in attracting foreign investment to the Kuwaiti market.\r\n\r\nWe look forward to the introduction of the Regulations to enable a further analysis of the implementation of the New FDI Law and its likely impact.'),
	(184806,4774,'core_values',''),
	(184807,4774,'_core_values','field_59b64ab071de4'),
	(184808,4774,'file',''),
	(184809,4774,'_file','field_59b64c10f6600'),
	(184810,4774,'orderValue4','4'),
	(87757,4774,'_content','field_59b649b5c8b2b'),
	(87758,4774,'lawUpdateArticleMonth','4761'),
	(87759,4774,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87760,4774,'content_description','It is a long held and established business principle under the Commercial Law No. 68 of 1980 (the “Commercial Law”) that foreigners cannot engage in any commercial business without having a Kuwaiti partner.  '),
	(87761,4774,'_content_description','field_59b641c07f473'),
	(87762,4774,'pageSummary','It is a long held and established business principle under the Commercial Law No. 68 of 1980 (the “Commercial Law”) that foreigners cannot engage in any commercial business without having a Kuwaiti partner.'),
	(87763,4774,'_pageSummary','field_59e59b307dec8'),
	(87764,4774,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/the-new-kuwait-foreign-investment-law.html'),
	(87765,4774,'_currentURL','field_59d35123ab1e7'),
	(87766,4774,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Ramy Shabana'),
	(87767,4774,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87768,4774,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','r.shabana@tamimi.com'),
	(87769,4774,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(87770,4774,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(87771,4774,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87772,4774,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Sonia Salah'),
	(87773,4774,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87774,4774,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','s.salah@tamimi.com'),
	(87775,4774,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(87776,4774,'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation',''),
	(87777,4774,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87778,4774,'lawUpdateArticleNoWriters','2'),
	(87779,4774,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(87780,4774,'_yoast_wpseo_metadesc','It is a long held and established business principle under the Commercial Law No. 68 of 1980 (the “Commercial Law”) that foreigners cannot engage in any commercial business without having a Kuwaiti partner.'),
	(219516,7697,'orderValue3','3'),
	(219517,7697,'_orderValue3','field_59d2094f8ff33'),
	(219518,7697,'content_header',''),
	(219519,7697,'_content_header','field_59b641b57f472'),
	(219520,7697,'content_description',''),
	(219521,7697,'_content_description','field_59b641c07f473'),
	(219522,7697,'content','<img class=\"size-full wp-image-7696 alignright\" src=\"http://localhost:8888/tamimi/wp-content/uploads/2018/06/shutterstock_656669977-1-799x1024-2.jpg\" alt=\"\" width=\"291\" height=\"373\" />\r\n<p class=\"p1\">The purpose of this article is to provide developers, investors and other stakeholders with an overview of the main laws and regulations affecting the real estate practice in the Kingdom of Saudi Arabia, as well as the practical issues to consider.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Who can Own Property in Saudi Arabia?</b></p>\r\n<p class=\"p1\"><span class=\"s1\">Gulf Cooperation Council (‘GCC’) nationals and GCC companies (with shareholders who are all GCC nationals) have certain rights to own land, subject to a number of restrictions. A GCC company or a GCC national may lease or purchase land to use it to conduct any licensed business activity from the land, and may own residential properties in Saudi Arabia, except for properties within the vicinity of Mecca and Medina.</span></p>\r\n<p class=\"p1\">Foreigners (being non-GCC nationals or companies who are not 100 percent owned by GCC nationals) have certain rights to own land and property in Saudi Arabia. The Foreign Ownership of Real Estate Regulation (enacted by Royal Decree No. M/15 dated 17/04/1421H, corresponding to 19 July 2000) regulates the acquisition by foreign, non-GCC nationals, of real estate in Saudi Arabia. Under this regulation, the ownership and investment in real estate by a foreign investor is permitted, subject to obtaining a foreign investment licence from the Saudi Arabian General Investment Authority (‘SAGIA’).</p>\r\n<p class=\"p1\">A non-GCC development company may, subject to certain licencing conditions by SAGIA, own real estate in connection with a particular project for property development provided that the construction of buildings is for investment purposes (whether through sale or lease), and is carried out by a Saudi Arabia licensed contractor.</p>\r\n<p class=\"p1\">A non-GCC entity may own Saudi Arabian real estate that is reasonably required for (i) the conduct of its professional, technical or economic activities, including for its headquarters and warehouses, or (ii) private residences for housing employees of licensed projects, or (iii) residential use by individuals with normal legal residency status.</p>\r\n<p class=\"p1\">Foreign owned entities are restricted from acquiring any right of property in real estate within the borders of the cities of Mecca and Madina. There are also ownership restrictions whereby other resolutions of the Saudi Council of Ministers, and royal decisions expressly prohibit the acquisition of real estate in specified locations.</p>\r\n<p class=\"p1\">There are other rules whereby a foreign individual may own property in Saudi Arabia if he has normal legal residency status and has a permit from the Ministry of the Interior.</p>\r\n<p class=\"p1\">It must be pointed out that Saudi Arabia has a strict anti-fronting law, which must be carefully considered when structuring investments through an entity.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Titling and the Registration System</b></p>\r\n<p class=\"p1\">The Realty in Kind Registration Law, issued by Royal Decree No. 6 on 9/21423H, creates an efficient and transparent land identification, ownership and registration system which will ultimately cover all real estate in the Kingdom. This law is also supported by the following laws relating to surveying of land and the sale of units in a building:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">The Law of General Survey Authority; and</li>\r\n 	<li class=\"p4\">The System of Ownership of Units, Estates, units, apartments and their Sorting, issued by Royal Decree No. 5 on 11/2/1423H, corresponding to 24/4/2002.</li>\r\n</ul>\r\n<p class=\"p6\"><span class=\"s1\">In practice, however, the system remains less structured than as set out in the above laws and the practice could be compared with a “deeds system” whereby ownership was traced through the various contractual agreements between buyer and seller, with the “First Notary Public” completing a change in ownership and recording such details in a register retained by the Ministry of Justice. The practice may vary in different regions and separate rules may apply in the Economic Cities. </span></p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Economic Cities</b></p>\r\n<p class=\"p1\">There are a number of economic cities which are at development stage in Saudi Arabia, namely the King Abdullah Economic City, the Knowledge Economic City, the Prince Abdulaziz bin Mousaed Economic City and the Jazan Economic City.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Regulations have been issued by the Economic Cities Authority for the registration of all foreign companies established in the economic cities, the registration of all land title deeds in the name of foreign entities established in the economic cities and the issuance of licences and other approvals to service providers such as district cooling, warehousing, logistics, etc in the economic cities.</span></p>\r\n&nbsp;\r\n<p class=\"p3\"><b>REITs</b></p>\r\n<p class=\"p1\">In 2016, the Capital Market Authority introduced new rules allowing the formation of Real Estate Investment Traded Funds (‘REITs’) on the Saudi Stock Exchange (Tadawul), in an effort to open the real estate market to investment by a wider range of investors. The rules cover the management, operation, and ownership of the REITs.</p>\r\n<p class=\"p1\">Subscription in a REIT is open not only to Saudis, but also GCC citizens and non-Saudi residents in Saudi Arabia. Non-resident foreign investors are also allowed to trade in the units of the REITs on the Tadawul.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Off Plan Sales </b></p>\r\n<p class=\"p1\">On 6 September 2016, Resolution No. 56 concerning the Regulations on the Sale of Off Plan Real Property was passed to provide added consumer protection in relation to off-plan sales.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Prior to making any off-plan sales, a developer will have to register the project with the Off-plan Sale Committee at the Ministry of Housing. The developer will have to show that it has the financial ability to carry out the project and that it has put sufficient guarantees in place, in particular, opening an escrow account to ensure that collections from unit purchasers for a particular project are properly channelled towards that project in question and not spent on other unrelated projects.</span></p>\r\n<p class=\"p1\">The regulation also provides for the supervision of the construction progress by a consultation office (accredited by the Organisation of Saudi Engineers), which will provide quarterly technical reports on the project status until completion.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Mortgage of Real Estates</b></p>\r\n<p class=\"p1\">The Registered Real Estate Mortgage Law was issued in 2012.</p>\r\n<p class=\"p1\">This new law is to create certainty over the priority of a debt secured by a registered mortgage and to do away with the practice whereby banks would cause the borrower to make an outright transfer of title to the real estate to a nominee named by the banks for the duration of the financing, with title reverting back to borrower once the financing is repaid.</p>\r\n<p class=\"p1\">An important aspect of the law is that the debt being secured by the mortgage must not relate to a conventional finance whereby interest in payable, but must be pursuant to a Sharia’ compliant financing transaction under KSA laws.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Jointly Owned Property</b></p>\r\n<p class=\"p1\">The Law of Proprietorship and Sorting of Real Estate Units promulgated under the Council of Ministers Resolution No. 40 dated 09/02/1423 AH and endorsed by Royal Decree No. M/5 dated 11/2/1423 AH, as amended, and the Executive Regulations promulgated under Ministerial Resolution No. (11985) dated 21/2/1424 (the “Jointly Owned Property Laws”) governs the formation of homeowner’s associations and the management of jointly owned property.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Jointly Owned Property Laws lay down the foundation to ensure that the jointly owned property is managed in accordance with good industry practice, including maintenance of the common areas and management of the homeowner’s association funds and shared assets. The level of implementation of such homeowner’s association laws is variable and often developers retain a management role in such buildings. </span></p>\r\n<p class=\"p1\">As the popularity of ownership of apartments is likely to grow, the Ministry of Housing has taken a greater role in supporting and regulating homeowners associations and has recently published a “Bylaw” setting out best practices in relation to the internal operations of homeowners associations.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Value Added Tax</b></p>\r\n<p class=\"p1\">The Kingdom of Saudi Arabia along with the United Arab Emirates (“UAE”) were the first countries in the GCC to introduce Value Added Tax (“VAT”). VAT has been implemented and is payable from 1 January 2018.</p>\r\n<p class=\"p1\">As with the UAE, supplies of commercial real estate will be standard rated at five percent (5%) per annum. Unlike the UAE, however, where the first supply is zero-rated, supplies of residential real estate will also be standard rated, except for supplies by way of lease which shall be exempt.</p>\r\n<p class=\"p1\">Sales of occupied commercial buildings may also constitute sales of a business and therefore fall outside the scope of the VAT law.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Etmam</b></p>\r\n<p class=\"p1\">Etmam (Developers Services Centre) is a government initiative aimed at facilitating real estate developers through various stages of their development projects.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Etmam has, as its permanent members, the Ministry of Housing, the Ministry of Municipal and Rural Affairs, the Ministry of Justice and others. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In essence, Etmam acts as liaison centre by following up with the relevant authorities to avoid inordinate delays in the licencing and approval process for real estate developments, in particular, residential and commercial projects comprising more than 50,000 square metres.</span></p>\r\n<p class=\"p1\">Among other things, Etmam facilitates the developer in respect of the following:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">Approval for subdivision of land;</li>\r\n 	<li class=\"p4\">Approval for comprehensive development schemes;</li>\r\n 	<li class=\"p4\">Issuance of building permits;</li>\r\n 	<li class=\"p4\">Issuance of building completion certificates;</li>\r\n 	<li class=\"p4\">Issuance of off-plan sales licences; and</li>\r\n 	<li class=\"p4\">Issuance of off-plan marketing licences within Saudi Arabia for off-plan projects outside Saudi Arabia.</li>\r\n</ul>\r\n<p class=\"p6\">Etmam also welcomes communications from developers and holds periodic meetings in an attempt to overcome unnecessary project obstacles and ensure continuous improvement of Etmam’s services.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Ejar</b></p>\r\n<p class=\"p1\">The Ministry of Housing in Saudi Arabia recently launched its Ejar rental service e-network. Landlords and tenants (including expatriates) can now download an app, which allows the user to:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">search for licensed real estate agents for renting property;</li>\r\n 	<li class=\"p4\">check the landlord’s or tenant’s identity prior to the conclusion of the tenancy agreement;</li>\r\n 	<li class=\"p4\">check the unit ownership and authority of the landlord’s representative;</li>\r\n 	<li class=\"p4\">report violations to the supervisory team at Ejar, including brokers charging excessive commissions, brokers charging commissions on renewal of tenancy agreements, brokers colluding with the aim of manipulating the rent, and landlords failing to register the tenancy agreements on the Ejar network.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p3\"><b>Real Estate General Authority</b></p>\r\n<p class=\"p1\">The Real Estate General Authority was established by the Council of Ministers Decision No. 239 of 25/4/1438. The purpose of the Authority is to enhance transparency, stimulate investment and provide consumer protection in the real estate industry.</p>\r\n<p class=\"p1\">The Authority has already started working on enhancing transparency by developing price indicators (selling and rental) and other indicators pertaining to construction progress.</p>\r\n<p class=\"p1\">To incentivise investments, the Authority has conducted several local and international comparisons with the aim of implementing the best practices based on the global experiences from reputable real estate regulators in Australia, the United States, Hong Kong, Singapore and the United Arab Emirates. It is understood that the Authority will also be coming up with proposed changes in the regulations in order to reduce the number of property disputes and their processing time.</p>\r\n<p class=\"p1\">Further, the Authority aims at organising various training programs and accredited courses in an endeavour to increase skills and quality among the various stakeholders in the real estate market.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Idle/ White Land Tax Law</b></p>\r\n<p class=\"p1\">The government of Saudi Arabia has introduced a tax on undeveloped urban land, the so-called “white lands”.</p>\r\n<p class=\"p1\">The Tax Law on vacant lands is purported to achieve the following:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">increase the availability of land for development in order to achieve a balance between supply and demand;</li>\r\n 	<li class=\"p4\">provide residential land at a reasonable cost; and</li>\r\n 	<li class=\"p4\">encourage fair competition and combat monopolistic practices.</li>\r\n</ul>\r\n<p class=\"p6\">The tax rate levied on vacant lands owned by non-government persons is at the rate of 2.5% of the value of the land, payable per annum.</p>\r\n<p class=\"p1\">Though not an unreasonably high amount in itself (when compared to other similar land taxes in other jurisdictions), when vacant land remains non-income producing, there is less incentive on the land owner to hold the undeveloped land.</p>\r\n<p class=\"p1\">This new tax is consistent with the Saudi Arabian Government’s policies for stimulating development and increasing affordable housing across the Kingdom.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Conclusion</b></p>\r\n<p class=\"p1\">It is clear that Vision 2030 will create many opportunities in the real estate sector and will be an impetus for the issuance of additional regulations and guidelines to adopt best international practices and make the Kingdom of Saudi Arabia a leading real estate jurisdiction of choice.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-7513 aligncenter\" src=\"http://localhost:8888/tamimi/wp-content/uploads/2018/06/shutterstock_679218187-1024x298.jpg\" alt=\"\" width=\"1345\" height=\"391\" />'),
	(87804,4776,'content','September 2013\r\n\r\n<hr />\r\n\r\nWelsh-born Andrea grew up with childhood ambitions of becoming a doctor.  She studied sciences at school and had intended to embark upon a career in medicine, when a 6 month work experience placement at the age of 18 caused her to have a complete change of heart.  “I did work experience for a judge and absolutely loved it,” recalls Andrea.  “The work was really interesting, and from then on, I wanted to become a lawyer.”\r\n\r\nAndrea embarked on a law degree at the leading Aberystwyth University, followed by Guildford Law College and then entered into a training contract at UK law firm Morgan Cole.  It was there that Andrea gained experience in a number of practice areas before deciding to qualify into the litigation department, the hub of the firm’s healthcare practice, which focused mainly on contentious healthcare disputes and clinical negligence claims.  It was there that she was able to put her interest in medical law to use and healthcare law became the sector into which she later specialised.\r\n\r\nEver keen to combine the two subjects, Andrea later went on to complete a Master’s Degree in Medical Law.  “My dissertation focused on the legal aspects of medical practice in light of the Woolf reforms and I was able to use real-life examples, as one of my own cases was before Lord Woolf in the Court of Appeal at that time” notes Andrea.\r\n\r\nAfter spending 7 years at Morgan Cole focusing on healthcare and clinical negligence cases, Andrea was head-hunted by international law firm Osborne Clarke to work on a high-profile case acting for a UK children’s hospital where the procedures for conducting cardiac paediatric surgery had come under intense regulatory scrutiny (and public interest) following the deaths of a significant number of babies and young children undergoing very complex heart surgery.  “At that time, the inquiry into the activities of the cardiac paediatric surgeons at the hospital was the longest-ever running General Medical Council inquiry” Andrea explains.\r\n\r\nOn completion of the inquiry and seeking a new challenge, Andrea was offered an opportunity to expand her practice to include a broader range of regulatory work.  This then led to her developing expertise across the regulatory landscape, spending the next decade working on some of the most high profile cases in the UK, including the London Underground tunnel collapse and the first ever arbitration before the Department of Trade &amp; Industry relating to regulations governing high-voltage electricity.\r\n\r\nFollowing her husband’s move to the UAE last year, Andrea remained in the UK whilst deciding on the next step in her career.  Monthly commutes to Abu Dhabi to visit her husband soon saw her fall in love with the UAE and the Middle East, in particular “the weather and the promise of sunshine every day” laughs Andrea.\r\n\r\nWith the decision to move to Abu Dhabi made, Andrea set about enquiring into the opportunities available for a regulatory lawyer in the UAE.  At the top of her list was Al Tamimi &amp; Company, having previously been aware of them at her firm in the UK when referring work to the Middle East.  “Al Tamimi were ahead of the curve and they saw the importance of developing a Regulatory practice, not only in the UAE but across the GCC” explains Andrea.\r\n\r\nSupported by partners Essam Al Tamimi, James MacCallum and Stephen Forster, Andrea remains impressed with the Firm’s commitment to addressing both the current needs of its clients and anticipating their future needs.   “This is a highly regulated country but with huge scope for regulatory change as the economy grows and moves away from traditional revenue streams.  I remember being very excited at the prospect of the challenge ahead and inspired by Essam and James’ enthusiasm at building a Regulatory practice at the Firm” recalls Andrea.\r\n\r\nThree months in at Al Tamimi and Andrea is pleased with how well the new practice area is being received.  “We have already helped so many clients and it is a great way for me to meet and interact with lawyers from across the firm as regulation interacts across so many sectors,” says Andrea.  “For example, foreign investors and healthcare companies are looking at the UAE as a home for healthcare businesses, pharmaceutical production and medical research.  I also anticipate that there will be significant developments in the way the UAE manages its energy and waste needs. This will inevitably lead to regulation governing more sustainable ways of managing these needs.  With this in mind, we are looking forward to the Abu Dhabi Sustainability Week in January 2014 and raising the profile of the regulatory services that Al Tamimi is able to offer.”\r\n\r\nA true regulatory lawyer at heart, Andrea finds her natural interest in all things ‘regulatory’ sometimes spills over into her personal life.  “I love sailing” she explains, but not content with just being out on the water, her affinity with rules and regulations has also led her to become the Director for Safety at her local yacht club and a qualified race officer.\r\n\r\nWith the sailing season in the UAE set to start this month and a number of projects in the pipeline on the regulatory front, Andrea is looking forward to a busy few months ahead both in and out of the office.'),
	(184742,4776,'core_values',''),
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	(184745,4776,'_file','field_59b64c10f6600'),
	(87805,4776,'_content','field_59b649b5c8b2b'),
	(87806,4776,'lawUpdateArticleMonth','4761'),
	(87807,4776,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87808,4776,'content_description','Andrea Tithecott joined Al Tamimi’s Abu Dhabi office in June 2013 with the aim of building the Firm’s Regulatory practice.  As the UAE enters a new phase of growth and development, Andrea brings with her a wealth of experience and expertise in tackling the increasing regulatory issues it will face.'),
	(87809,4776,'_content_description','field_59b641c07f473'),
	(87810,4776,'pageSummary','Andrea Tithecott joined Al Tamimi’s Abu Dhabi office in June 2013 with the aim of building the Firm’s Regulatory practice. As the UAE enters a new phase of growth and development, Andrea brings with her a wealth of experience and expertise in tackling the increasing regulatory issues it will face.'),
	(87811,4776,'_pageSummary','field_59e59b307dec8'),
	(87812,4776,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/a-moment-with-andrea-tithecott-senior-associate-abu-dhabi.html'),
	(87813,4776,'_currentURL','field_59d35123ab1e7'),
	(87814,4776,'_yoast_wpseo_metadesc','Andrea Tithecott joined Al Tamimi’s Abu Dhabi office in June 2013 with the aim of building the Firm’s Regulatory practice. As the UAE enters a new phase of growth and development, Andrea brings with her a wealth of experience and expertise in tackling the increasing regulatory issues it will face.'),
	(87815,4777,'content','September 2013\r\n\r\n<hr />\r\n\r\nThis is a welcome development by Tunisia, which had previously withdrawn from the Madrid Agreement in 1988.\r\n\r\nAccordingly, Tunisia will become the 91st state to join the Madrid system, which provides trademark protection for its member states across multiple jurisdictions.\r\n\r\nThe Madrid Protocol (1989) will enter into force, with respect to the Republic of Tunisia, on October 16, 2013.\r\n\r\n<strong>About the Madrid Protocol</strong>\r\n<ul>\r\n 	<li>The Madrid Protocol is an international treaty, administered by the International Bureau of the World Intellectual Property Organization (WIPO), which has the aim of facilitating the procurement and maintenance of trademark registrations.</li>\r\n 	<li>Adopted in 1989, the system provides an efficient method of achieving expanded international protection for a trademark that has already been applied for or registered in the applicant’s home country (the country of origin).</li>\r\n 	<li>In a nutshell, the Madrid Protocol (1989) is a vehicle to obtain and maintain registration of trademarks in multiple jurisdictions through a single trademark office.</li>\r\n</ul>'),
	(87816,4777,'_content','field_59b649b5c8b2b'),
	(87817,4777,'lawUpdateArticleMonth','4761'),
	(87818,4777,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87819,4777,'content_description','The Republic of Tunisia on July 16, 2013 acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 (‘Madrid Protocol (1989)’), as amended on October 3, 2006, and on November 12, 2007.  '),
	(87820,4777,'_content_description','field_59b641c07f473'),
	(87821,4777,'pageSummary','The Republic of Tunisia on July 16, 2013 acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 (‘Madrid Protocol (1989)’), as amended on October 3, 2006, and on November 12, 2007.'),
	(87822,4777,'_pageSummary','field_59e59b307dec8'),
	(87823,4777,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/tunisia-joins-the-madrid-protocol.html'),
	(87824,4777,'_currentURL','field_59d35123ab1e7'),
	(87825,4777,'lawUpdateArticleWriters_0_lawUpdateArticleWriter','926'),
	(87826,4777,'_lawUpdateArticleWriters_0_lawUpdateArticleWriter','field_59da2ac06b065'),
	(87827,4777,'lawUpdateArticleWriters','1'),
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	(87829,4777,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
	(87830,4777,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(87831,4777,'lawUpdateArticlePractices','1'),
	(87832,4777,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87833,4777,'_yoast_wpseo_metadesc','The Republic of Tunisia on July 16, 2013 acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 (‘Madrid Protocol (1989)’), as amended on October 3, 2006, and on November 12, 2007.'),
	(87834,4778,'content','September 2013\r\n\r\n<hr />\r\n\r\n<strong>What</strong>\r\n\r\nTrade Mark Cancellation Action\r\n\r\n<strong>Who</strong>\r\n\r\nThe Complainant, Caterpillar, is a MNC with a stellar reputation built in heavy equipment and construction.\r\n\r\nThe Respondent is the registrant of Trade Mark Registration No. 85220 in Class 3 for Cat Wax in relation to “shoe cream, shoe accessories and shoe wax” (“the Registration”).\r\n\r\n<strong>Why</strong>\r\n\r\nCAT is the Complainant’s house mark, which it has cultivated over decades to become a household name in heavy equipment and construction machinery. The Complainant enjoys substantial goodwill and reputation in its CAT mark.\r\n\r\nThe Registration is unauthorised and detrimental to the Complainant as its registration is likely to create confusion amongst consumers that the registration is authorised by or belongs to the Complainant or is somehow related to the Complainant. Such registration is damaging to the Complainant’s goodwill and reputation and results in brand dilution of its CAT mark.\r\n\r\n<strong>Where</strong>\r\n\r\nTrade Mark Registry of the Ministry of Industry &amp; Trade in Jordan (“the Ministry”)\r\n\r\n<strong>Facts of the Case</strong>\r\n\r\nThe Respondent had registered the disputed trade mark Registration in 2006.\r\n\r\nThe Complainant has trade mark registrations for Caterpillar &amp; CAT in a number of countries including Jordan and has been using both trade marks for decades.\r\n\r\nThe Complainant argued, inter alia, that the disputed Registration was confusingly similar to marks in which the Complainant has rights, and the Respondent has no rights or legitimate interests in the registration of the disputed Registration.\r\n\r\n<strong>Ministry’s Findings</strong>\r\n<ol>\r\n 	<li>Importantly, the Ministry found that the Complainant’s CAT and CATERPILLAR trade marks satisfied the threshold for well known marks in Jordan. In reaching its finding, the Ministry referred to the extensive evidence filed by the Complainant.  The Complainant had adduced voluminous evidence through affidavits to substantiate its claim of goodwill and reputation in its well known CAT and CATERPILLAR trade marks. Evidence of trade mark registrations in multiple classes in Jordan and abroad as well as reams of evidence demonstrating the vast amounts of advertising and promotion of its CAT and CATERPILLAR trade marks was filed in the course of the proceedings to highlight the vault of goodwill and reputation, which the Complainant had painstakingly cultivated over decades of use.</li>\r\n 	<li>The Ministry compared the Registration to the Complainant’s well known trade marks and found that the most distinctive element of the Registration i.e. CAT was identical to the Complainant’s well known CAT trade mark. The Ministry agreed with the Complainant that the disputed Registration had incorporated its CAT trade mark in its entirety and that the addition of the word, “wax”, had done nothing to remove the confusion likely to be caused by the Respondent’s use of the Complainant’s CAT mark in the disputed Registration. Specifically, the Ministry found the word, “wax”, to be a common word.</li>\r\n</ol>\r\nAccordingly, the Ministry found that the disputed Registration was confusingly similar to the Complainant’s CAT mark.\r\n\r\nIn conclusion, the Ministry was satisfied that the Complainant had succeeded in proving its case and ordered that the disputed Registration be struck out from the register of trade marks in its decision dated 3 July 2013.\r\n\r\n<strong>Learnings</strong>\r\n\r\nCaterpillar was able to leverage on its well known CAT trade mark to strike out the registration of  Cat Wax Caterpillar had argued successfully that Caterpillar was more than yellow iron and is highly diversified with broad ranging businesses.\r\n\r\nThis important case demonstrates Caterpillar’s far reaching fame.\r\n\r\nIt is important to build brand equity in your trade mark as it will pay dividends in the years to come in arresting unauthorised use of your mark in similar trade marks, which seek to capitalize on the goodwill and reputation subsisting in your mark.\r\n\r\nBrand owners ought to be vigilant in monitoring any unauthorised usage of their trade marks and to act swiftly and decisively in rooting out the problem by engaging trade mark counsel to keep watches of offending trade marks. The fact that Caterpillar had been vigilant in enforcing its rights against offenders was important in shoring up its arguments that any attempt to free ride on its substantial goodwill and reputation was damaging to its brand integrity and likely to cause brand dilution.\r\n\r\nThis significant case represents yet another decisive victory for the ATCO IP Dispute Resolution practice, part of our award winning IP practice which continues to counsel clients in ensuring that their valuable goodwill and reputation is well protected.'),
	(184676,4778,'core_values',''),
	(184677,4778,'_core_values','field_59b64ab071de4'),
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	(87836,4778,'lawUpdateArticleMonth','4761'),
	(87837,4778,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87838,4778,'content_description','Trade Mark Cancellation Action'),
	(87839,4778,'_content_description','field_59b641c07f473'),
	(87840,4778,'pageSummary','Trade Mark Cancellation Action'),
	(87841,4778,'_pageSummary','field_59e59b307dec8'),
	(87842,4778,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/caterpillars-brand-power-finds-fame-in-jordan.html'),
	(87843,4778,'_currentURL','field_59d35123ab1e7'),
	(87844,4778,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
	(87845,4778,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(87846,4778,'lawUpdateArticlePractices','1'),
	(87847,4778,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87848,4778,'_yoast_wpseo_metadesc','Trade Mark Cancellation Action'),
	(87849,4779,'content','September 2013\r\n\r\n<hr />\r\n\r\nBy way of background, Ms Al Herz and Mr Lutfi were both employed and subsequently dismissed by the DIFC Authority (“DIFCA”).  A key factor which impacted on the employees’ relationships with the DIFCA and appeared to influence its decision to dismiss the individuals was that Ms Al Herz and Mr Lutfi married on 27 July 2011.\r\n\r\nIn particular, given their respective senior positions in the DIFCA, it was determined that a potential conflict of interest had arisen in the workplace pursuant to the marriage and that certain internal policies had been breached.  Both individuals pursued claims again the DIFCA arising out of the termination of their employment and although the claims were heard at separate hearings, both cases were heard before Deputy Chief Justice Sir Anthony Colman.\r\n\r\n<strong>Hana Al Herz and DIFCA</strong>\r\n\r\nMs Al Herz was dismissed on 31 January 2012 because the DIFC Authority had determined that her conduct “had not been in line with the DIFCA Code of Values and Ethics and the DIFCA Employee Policies and Procedures”.   Consequently, Ms Al Herz was dismissed in accordance with the notice provisions contained in her contract of employment with the DIFCA.\r\n\r\nAs there is no statutory protection against unfair dismissal in the DIFC Employment Law No.4 of 2005 (as amended) (the “Law”), Ms Al Herz’s primary claim was that notwithstanding the absence of a concept of unfair dismissal within the Law, her dismissal should be deemed unfair on the basis that DIFCA had acted in breach of the following implied terms:\r\n<ul>\r\n 	<li>good faith;</li>\r\n 	<li>reasonableness; and</li>\r\n 	<li>a requirement that DIFCA does not conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.</li>\r\n</ul>\r\nIn rejecting her claim, Justice Colman set out the following key points:\r\n<ol>\r\n 	<li>There is no concept of unfair dismissal or constructive dismissal in the DIFC;</li>\r\n 	<li>Employers are entitled to dismiss employees in accordance with the express notice provisions set out in the contract of employment.  It is not possible or appropriate to imply terms into employment contracts, which fetter the right of an employer to terminate the employment contract in accordance with the express contractual notice provisions; and</li>\r\n 	<li>Only where an employer purports to dismiss an employee for “cause” (as defined in the Law) will the Court assess whether the dismissal was conducted in accordance with the employer’s disciplinary procedure.</li>\r\n</ol>\r\nIn dismissing the notion that the concept of unfair dismissal should effectively be introduced via terms being implied into the employment contract, Justice Colman stated that “if any such principle of unfair dismissal is to be introduced, it should be by legislation and not by judicial innovation”.\r\n\r\nAs a side note, Ms Al Herz had also brought a claim for discrimination on the grounds of marital status and a claim for end of service gratuity.  The Court also dismissed Ms Al Herz’s claim for discrimination on the basis that the decision to dismiss her was not because of or on the grounds of her marriage.  The end of service gratuity claim was dismissed on the grounds that she was not entitled to such a payment on the basis that she was a UAE national who had been enrolled by the DIFCA into the statutory UAE pension scheme.\r\n\r\n<strong>Marwan Ahmad Lutfi and DIFCA</strong>\r\n\r\nMr Lutfi was dismissed on 4 December 2011 because the DIFCA had determined that there had been a failure to comply with the DIFCA’s policies and procedures.  In particular, following his marriage to Ms Al Herz, the DIFCA determined that Mr Lutfi’s continuing employment was in breach of its policy which provided that “employment of relatives is generally not allowed” and specifically, that relatives should not work within the same department and/or have direct or indirect supervision for each other.  Mr Lutfi was paid in lieu of his three month notice period and received all other contractual entitlements on termination.\r\n\r\nMr Lutfi presented similar claims to those set out by Ms Al Herz above, which were considered by Justice Colman.  In dismissing Mr Lutfi’s claim that the dismissal was unfair, Justice Colman referred to passages from the Hana Al Herz judgment and confirmed that the DIFCA’s “express power to terminate was not fettered by any implied terms”.\r\n\r\nIn addition, Justice Colman dismissed Mr Lutfi’s claim for end of service gratuity for reasons similar to those set out in the Hana Al Herz judgment.  Justice Colman also dismissed Mr Lutfi’s claim for defamation as being untenable insofar as there was no evidence of any damage to his reputation arising from the manner in which he was dismissed.\r\n\r\nThe two judgments are unambiguous and absolute insofar as they confirm that employers may dismiss employees in accordance with the express contractual notice provisions and no additional obligations should be implied on employers in this respect.  They are certainly positive judgments for DIFC employers and further reduce the ability of employees to pursue claims arising from the termination of their employment.'),
	(184643,4779,'core_values',''),
	(184644,4779,'_core_values','field_59b64ab071de4'),
	(184645,4779,'file',''),
	(184646,4779,'_file','field_59b64c10f6600'),
	(87850,4779,'_content','field_59b649b5c8b2b'),
	(87851,4779,'lawUpdateArticleMonth','4761'),
	(87852,4779,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87853,4779,'content_description','The DIFC Court of First Instance recently issued two key judgments in the cases of Hana Al Herz and Dubai International Financial Centre Authority [CFI 011/2012] and Marwan Ahmad Lutfi and Dubai International Financial Centre Authority [CFI 003/2012], which both addressed and clarified certain principal issues on the law relating to the termination of employment in the DIFC. '),
	(87854,4779,'_content_description','field_59b641c07f473'),
	(87855,4779,'pageSummary','The DIFC Court of First Instance recently issued two key judgments in the cases of Hana Al Herz and Dubai International Financial Centre Authority [CFI 011/2012] and Marwan Ahmad Lutfi and Dubai International Financial Centre Authority [CFI 003/2012], which both addressed and clarified certain principal issues on the law relating to the termination of employment in the DIFC.'),
	(87856,4779,'_pageSummary','field_59e59b307dec8'),
	(87857,4779,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/september-3/no-concept-of-unfair-dismissal-in-the-difc.html'),
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	(87863,4779,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Luke Tapp'),
	(87864,4779,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87865,4779,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','l.tapp@tamimi.com'),
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	(87870,4779,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(87871,4779,'_yoast_wpseo_metadesc','The DIFC Court of First Instance recently issued two key judgments in the cases of Hana Al Herz and Dubai International Financial Centre Authority [CFI 011/2012] and Marwan Ahmad Lutfi and Dubai International Financial Centre Authority [CFI 003/2012], which both addressed and clarified certain principal issues on the law relating to the termination of employment in the DIFC.'),
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	(87881,4780,'_pageSummary','field_59e59b307dec8'),
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	(87886,4782,'content','October 2013\r\n\r\n<hr />\r\n\r\n<strong>Summary</strong>\r\n\r\nThe law itself will usually state by which method the law is to come into force. Laws do not apply retrospectively unless this is stated in the law.  The exception is that if the law relates to issues of public policy, then the law will apply retrospectively regardless of whether the law itself states this.\r\n\r\nFor this purpose, ‘law’ is defined widely to  include orders issued by HH the Ruler of Dubai, whether in the form of a law, decree, or directive (written or verbal), all being equally enforceable as acts of the Ruler who has the power to pass all legislation for the Emirate of Dubai.\r\n\r\n<strong>The Facts of the Claim</strong>\r\n\r\nIn an action filed before the Dubai courts, the Claimant sought an order for specific performance and requested the courts to confirm the validity of a sale contract involving land in the Shindagha area in Dubai.  In 1989, the Claimant paid the purchase price for a plot of land to one of the heirs of the owner of the land (since deceased).  The heir had an irrevocable power of attorney on behalf of all the heirs of the deceased owner. Ownership of the land was not formally transferred but simply recorded at the Dubai Notary Public.\r\n\r\nIn 2000, the Ruler of Dubai issued an order prohibiting the disposition of Shindagha property which prevented the creation and conveyance of title and the attestation of simple contracts between the parties that had not been attested by the Land Department or were not accompanied by an attested title deed. This order was deemed mandatory and related to public policy because it involves property wealth and individual ownership in the Emirate of Dubai.  As a result, the order had to be observed and unregistered contracts of sale for land located in Shindagha were considered unenforceable.  Following the issuance of this order, compensation from the Land Department (on behalf of the Dubai government) was awarded to the heirs of the deceased owner and not the Claimant.  As a result, the Claimant commenced proceedings, claiming that the compensation was his since he had bought the land from the heir before the prohibition came into force.\r\n\r\n<strong>Summary of Judgment</strong>\r\n\r\nThe Court of Cassation held that it is well established by the courts that in accordance with Article 3 of the UAE Civil Code, provisions relating to the circulation of wealth and rules of individual ownership are part of public policy.  Article 3 of the UAE Civil Code provides:\r\n\r\n<em>“Public order shall be deemed to include matters relating to personal status such as marriage, inheritance, and lineage and matters relating to systems of government, freedom of trade, the circulation of wealth, rules of individual ownership and the other rules and foundations upon which society is based, in such a manner as not to conflict with the definitive provisions and fundamental principles of the Islamic sharia.”</em>\r\n\r\nAs the new order concerned property, it was therefore a matter of public policy and must be applied retrospectively. Consequently, it affected the Claimant and his right to own the land. The transaction between the Claimant and the heir was deemed effective but the conditions for its validity (registration) were not satisfied and as a result the courts considered the contract not properly concluded.  The Claimant argued that despite the sale contract not being registered with the Land Department, he was still entitled to the benefits of ownership (i.e. he was entitled to the compensation awarded by the Land Department, not the heir, as he was the true owner).  However, the order issued by the Ruler of Dubai specifically stated that customary contracts (unregistered contracts) should not be approved unless approved by the Land Department or a title deed is issued. The Claimant’s sale of land located in Shindigha was therefore deemed unenforceable and he was not entitled to the compensation.\r\n\r\n<strong>Comments</strong>\r\n\r\nArticle 112 of the UAE Constitution provides that “No laws may be applied except from the date they become in force and no retrospective effect shall result in such laws.  The law may, however, stipulate the contrary in matters other than criminal matters, if necessity so requires.” It is settled law under the principles of Islamic sharia and general constitutional principles that laws will not have retrospective effect and the effect thereof will not cover past event or things that happened prior to them. That would be contrary to the principles of justice and legality and the need to protect acquired rights. This is also necessary in the public interest in order that the transactions of individuals should have stability. However, there are exceptions to the general rule when issues of public policy are concerned and the Order of 2000 specifically mentioned that it would have retrospective effect. The Order issued in 2000 was intended to apply with retrospective effect to contracts that had not been perfected prior to the Order coming into force. Individuals that entered into transactions (that took place prior to that Order) that had been perfected were entitled to compensation. The Claimant, however, could file a separate action against the heirs of the deceased owner for unjust enrichment.\r\n\r\n&nbsp;'),
	(184581,4782,'core_values',''),
	(184582,4782,'_core_values','field_59b64ab071de4'),
	(87887,4782,'_content','field_59b649b5c8b2b'),
	(87888,4782,'lawUpdateArticleMonth','4780'),
	(87889,4782,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(87890,4782,'content_description','The general rule in the UAE is that laws only apply to events which occur after the law comes into force. Laws come into force either on the date they are published in the monthly gazette (a translation of which can always be found at the back of Law Update)  or immediately from the date the law is signed. '),
	(87891,4782,'_content_description','field_59b641c07f473'),
	(87892,4782,'pageSummary','The general rule in the UAE is that laws only apply to events which occur after the law comes into force. Laws come into force either on the date they are published in the monthly gazette (a translation of which can always be found at the back of Law Update) or immediately from the date the law is signed.'),
	(87893,4782,'_pageSummary','field_59e59b307dec8'),
	(87894,4782,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-5/october-3/uae-application-of-the-law-with-regard-to-time-and-public-policy.html'),
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	(87900,4782,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Zane Anani'),
	(87901,4782,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87902,4782,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','Zane Anani'),
	(87903,4782,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(87904,4782,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(87905,4782,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87906,4782,'lawUpdateArticleNoWriters','1'),
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	(87908,4782,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
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	(87910,4782,'lawUpdateArticlePractices','1'),
	(87911,4782,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87912,4782,'_yoast_wpseo_metadesc','The general rule in the UAE is that laws only apply to events which occur after the law comes into force. Laws come into force either on the date they are published in the monthly gazette (a translation of which can always be found at the back of Law Update) or immediately from the date the law is signed.'),
	(87913,4783,'content','October 2013\r\n\r\n<hr />\r\n\r\nThis provision provides that a person who is convicted of embezzling or damaging public property shall be sentenced to pay restitution plus a fine equivalent to the proceeds of their crimes. In other words, a person who is convicted of embezzling or damaging public property potentially faces a total of three penalties. The first penalty shall be the principal penalty of imprisonment. The second penalty is restitution of the proceeds of the crime which shall be payable to the victim. The third penalty is a fine equivalent to the proceeds of the crime which is payable to the Public Treasury of the Government of the UAE.\r\n\r\nIn the Dubai Cassation Court case below, the question arose: who is the “victim” who shall benefit from the court order of restitution in accordance with Article 230?\r\n\r\n<strong>Summary of facts</strong>\r\n\r\nThe Dubai Public Prosecution (the “Prosecution”) referred the accused to the Criminal Court on the basis that he was alleged to have misappropriated commissions totaling approximately AED 17 million. The accused was a sales manager for a public entity who was responsible for executing sale and lease transactions of land owned by the public entity. The Prosecution argued that the accused committed a crime by requesting kickbacks from clients in order to sell and lease lands owned by his employer. The Prosecution argued that the accused succeeded in misappropriating the commissions through depositing cheques and bank transfers to the bank account of a private company owned by his family. The Prosecution requested that the accused be punished in accordance with Articles 228 and 230 of the Penal Law.\r\n\r\nArticle 228 of the Penal Law is concerned with public officers who work with preparation, administration or execution of contracting, supply or public works in relation to any UAE public entity. When a public officer obtains for himself or for another person a commission in contradiction with his duties at the public entity, such officer shall be sentenced to temporary imprisonment. A person convicted of obtaining commissions according to Article 228 of the Penal Law has embezzled public property. In that regard, Article 228 relates to Article 230 of the Penal Law in application.\r\n\r\nThe Dubai Court of First Instance sentenced the accused to three years’ imprisonment and he was ordered to restitute the misappropriated monies and also pay the same amount as a fine. This decision was upheld on appeal to the Appeal Court.  The accused challenged the judgment on the basis that it was ambiguous as to whether restitution should be paid to the Public Treasury or be paid back to the clients of his ex employer.\r\n\r\nThe lower court considered matters and ordered the individual to pay the restitution amount to the clients of the public entity rather than to the Public Treasury.\r\n\r\nThe Prosecution filed an appeal before the Dubai Court of Cassation. The Prosecution argued that the lower court erred in the application of the law as restitution should be paid to the Public Treasury on the basis that the individual was guilty of malfeasance in public office (misuse of public office) and the real “victim” of the committed crime was the public entity (and in turn the Treasury) rather than its clients.\r\n\r\nFurthermore, the Prosecution argued that the monies should be paid to the Public Treasury to compensate it for the damages suffered by reason of the individual’s misuse of his public office.\r\n\r\n<strong>Cassation Court</strong>\r\n\r\nThe Dubai Court of Cassation determined that restitution is a mandatory punishment. The punishment intends to return misused funds to their rightful owner and restore the status quo prior to the crime taking place. To that extent, restitution shall always be paid to the victim of the crime which it deemed to be the UAE Government in this case.\r\n\r\nThe Cassation Court considered that the clients of the public entity who had paid commissions to this public official who in turn misused his office should not to be considered as victims of the crime. The Court considered that these clients had demonstrated bad faith in that the commissions were intended to enable them to own or lease lands while disregarding the interests of those who had legitimately joined waiting lists with a view to owning or leasing land. The Court went further and considered these clients as bribers who acted as an accessory to the crime.  The judgment stated “Doing so [compensating the clients] will urge others dealing with public officials to take the same devious course of action as long as whatever they pay will be returned back to them once their shameful behavior is discovered”. The Court took the view that this was certainly not the intent of the legislator and should not be an approach adopted by the courts.\r\n\r\nTherefore, the Cassation Court declared that the Appeal Court misapplied the law and ordered the payment of the amount of restitution to be paid to the Public Treasury.\r\n\r\nHowever, in cases where the victim of the crime is a person or entity other than the government, restitution shall be paid to that victim. The Court used an example of increased taxes or other sums of monies being collected by a public official.  Notwithstanding that a public official committed the crime, the Court noted that the “victim” is the person that surrenders more money that what he owes to the public official and restitution should properly be paid to that person.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nPublic officials are entrusted to act and represent the government that employs them. They have vast powers that are tailored to enable them to perform their functions and carry out important roles. Generally the laws of the UAE, including the Penal Law, strive to protect the integrity and honesty of public offices whilst seeking to enhance the trust of people towards public offices and officials.\r\n\r\nThis approach is reflected by the above decision of the Cassation Court which widely interprets the articles of the Penal Law to hand down tough sentences and effectively deter public officials from abusing their powers.\r\n\r\nThis judgment also clarifies the approach of the Court when identifying the appropriate “victim” of such crimes and ensuring that the appropriate person or entity is the beneficiary of a restitution order.\r\n\r\nFinally, although this is not addressed in the above judgment, we would like to draw to your attention that sometimes the “victim” in similar cases is an entity comprising of a mixture of public and private ownership like a Public Joint Stock Company as opposed to the above judgment where the “victim” was an entity wholly owned by the government. When a Public Joint Stock Company is a victim to a crime, the restitution order shall be issued in favor of that Public Joint Stock Company and not in favor of the Public Treasury. The aim of the legislation and the Courts is to preserve the rights of private shareholders in such companies who are deemed to be the “victim” for the purposes of the legislation.'),
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	(87917,4783,'content_description','This article focuses upon the practical application of Article 230 of the UAE Penal Law No. 3 of 1987 (the “Penal Law”).  '),
	(87918,4783,'_content_description','field_59b641c07f473'),
	(87919,4783,'pageSummary','This article focuses upon the practical application of Article 230 of the UAE Penal Law No. 3 of 1987 (the “Penal Law”).'),
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	(87922,4783,'_currentURL','field_59d35123ab1e7'),
	(87923,4783,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Eslam Hassan'),
	(87924,4783,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87925,4783,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','e.hassan@tamimi.com'),
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	(87927,4783,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(87928,4783,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(87929,4783,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Omar Khattab'),
	(87930,4783,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(87931,4783,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','o.khattab@tamimi.com'),
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	(87933,4783,'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation',''),
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	(87937,4783,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
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	(87940,4783,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(87941,4783,'_yoast_wpseo_metadesc','This article focuses upon the practical application of Article 230 of the UAE Penal Law No. 3 of 1987 (the “Penal Law”).'),
	(87942,4784,'content','October 2013\r\n\r\n<hr />\r\n\r\nThis judgment supports international commercial arbitration and reiterates the UAE’s commitment to international conventions and agreements entered into by the UAE, particularly when they conflict with domestic laws that were passed before the international conventions/agreements were ratified by the UAE.\r\n\r\nIn Commercial Appeal No. 679-2010 (issued on 16.06.11), the Abu Dhabi Court of Cassation overturned and remanded the Abu Dhabi Court of Appeal decision which refused to recognize and enforce a foreign arbitral award issued pursuant to the ICC Rules on the basis that the award conflicts with a criminal verdict issued in the UAE (in which the Appellant was ordered to pay a fine).  The Abu Dhabi Court of Appeal ruled that the conflict was within the meaning of paragraph 2(e) of Article 235 of the Civil Procedure Law (Law No. 11 of 1992 as amended by Law No. 30 of 2005) which provides:\r\n\r\n<em>“2)  An enforcement order shall be applied for in the normal manner of filing proceedings to the Court of First Instance within whose jurisdiction the enforcement is required. Enforcement may not be ordered until the following has been verified: </em>\r\n\r\n<em>e) that it does not conflict with a decision or order previously issued by a court in the UAE and contains nothing in breach of public morals or order in the UAE.”</em>\r\n\r\nThe Court of Cassation, however, accepted the Appellant’s argument that the Court of Appeal failed to apply the rules of Article III of the New York Convention on the Recognition and Enforcement of Arbitral Awards 1958 and cited 235, 236 and 238 of the Civil Procedure Law. A detailed summary of the case is set out below:\r\n\r\n<strong>Background </strong>\r\n\r\nThe Appellant brought Abu Dhabi Commercial Case No. 410-2008 against the Respondent to enforce the arbitral award issued in Action No. 13534 as a domestic award in the UAE.\r\n\r\nA final arbitral award was issued in the Appellant’s favor by the ICC International Court of Arbitration in Paris. The award was issued by a court of jurisdiction and had the authority of res judicata when it was notified to the Respondent.\r\n\r\nThe Respondent argued that the arbitral award ruled contrary to a criminal verdict issued by a domestic court in AD Misdemeanors Case No. 3257-2005 in which the Appellant was ordered to pay a fine of AED 5,000 for committing contract fraud.\r\n\r\n<strong>Summary of Case</strong>\r\n\r\nThe Court of Cassation dismissed the Respondent’s argument that the arbitral award issued in the Appellant’s favor was in conflict with a local criminal verdict issued in absentia against the Appellant (on the basis of paragraph 2(e) of Article 235 of the Civil Procedure Law). The Court of Cassation held that the argument was inconsistent with the provisions of the New York Convention 1958 (the UAE is a party pursuant to Federal Decree No. 43 of 2006), particularly Article III of the Convention which mandates that a foreign award must be enforceable without unnecessary inconvenience or excessive fees, and the conditions must not be more onerous than those for domestic awards. The Court of Cassation further cited Articles 235, 236 and 238 of the Civil Procedure Law which provides that the provisions of international conventions between the UAE and foreign countries or international agreements to which the UAE is party shall apply to the enforcement of foreign judgments and arbitral awards notwithstanding the conditions of Article 235 of the Civil Procedure Law which would apply only if the UAE is not party to a bilateral convention or international agreement. Having acceded to the New York Convention, the UAE must implement it as domestic law notwithstanding any principles of conflicts of law. By becoming party to the New York Convention, the UAE has agreed to recognize foreign arbitral awards as binding and enforce them in accordance with the procedural rules applicable in the UAE and the requirements of Article V of the Convention. The New York Convention has simplified the enforcement of foreign awards and harmonized the national rules for the enforcement of foreign awards in the UAE.\r\n\r\nIn summary, the importance of this decision is that it reinforces the UAE’s commitment to comply with international conventions and agreements, especially those concerned with the enforcement of foreign arbitral awards. The other important aspect is that the decision above makes a distinction between domestic arbitration and international arbitration in the UAE. The purpose of this distinction is to clarify that the arbitration provisions of the Civil Procedure Law, particularly those relating to enforcement, apply only to domestic arbitral awards while the provisions of the New York Convention apply to foreign arbitral awards, notwithstanding any conflict they may arise in respect of previously enacted domestic legislation.\r\n\r\nIn light of these important principles, I feel that it is now time for the UAE legislature to introduce an independent arbitration law to ensure there is no ambiguity with respect to the enforcement of foreign arbitral awards. There should be no confusion as to which provisions the courts should apply when faced with a particular arbitration situation. The provisions of the New York Convention appear much easier to apply than the applicable arbitration provisions in the Civil Procedure Law. This is because the relevant provisions of the Civil Procedure Law are outdated and insufficient.  In view of the accelerated pace at which arbitration has evolved over the last two decades, there is therefore a pressing need for a new comprehensive modern law.'),
	(184552,4784,'core_values',''),
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	(55175,3268,'_wp_attachment_metadata','a:5:{s:5:\"width\";i:100;s:6:\"height\";i:133;s:4:\"file\";s:22:\"uploads/media-3267.jpg\";s:5:\"sizes\";a:0:{}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
	(86942,4732,'content','June 2013\r\n\r\n<hr />\r\n\r\nNot only does this dissuade potential investors investing in a country, but it also undermines the rule of law and weakens trust in public and private institutions.\r\n\r\nIn recent years Emirati legislators have enacted several laws to fight corruption. These include laws combating money laundering, laws criminalizing fronting (which is where a local resident acts as a front to allow a foreigner to undertake activities he would not otherwise be allowed to do) and others suppressing fraud in commercial transactions. There have also been several amendments to the penal code.\r\n\r\nThe most recent effort by the UAE government to further combat corruption is a proposed new federal law to establish an anti-corruption authority named “The Federal Authority for Combating Corruption”. The law is currently in the form of a bill being scrutinized by the relevant authorities and it is hoped that it will be passed later this year. We have been able to review the bill and this article highlights some of the key features of it.\r\n\r\n<strong>The Federal Authority for Combating Corruption</strong>\r\n\r\nThe Federal Authority for Combating Corruption will be based in Abu Dhabi but will be entitled to branch out into any of the other emirates and has the full capacity and a number of powers needed to combat corruption. The bill defines corruption as comprising of various crimes including money laundering; embezzlement; bribery; breach of trust; abuse of public functions or authorities; damage to public property; and the concealment of the proceeds of any of these crimes.\r\n\r\nThe authority will be tasked with developing strategies to effectively combat corruption while taking into account the federal law and the United Nations Convention Against Corruption which was signed by the UAE on 10 August 2005. The authority will monitor the implementation of its strategies, and liaise with national, regional and international authorities and organizations to help eliminate corruption in public and private sectors. It will create a database to log acts of corruption and may exchange this information with national and international authorities. The authority will participate in international conferences relating to corruption and is expected to liaise with the media to raise awareness amongst the public regarding the serious harm caused by corruption and how it can be eradicated.\r\n\r\nThe bill explicitly orders all legal bodies to cooperate with the Federal Authority for Combating Corruption. Such legal bodies include: federal and local authorities; the public and private sector; banks and financial institutions; and other natural or juridical persons in the UAE. While forms of cooperation with the authority are numerous, they include complying with its requests; providing it with any information necessary to achieve its goals; and refraining from acts that hinder such goals. Acts that may be considered a hindrance to the performance of the authority and its goals include not only refraining from providing the authority with any data, information, accounts, records, papers or documents; but also procrastinating, stalling or delaying the supply of any of these materials. The bill provides a strict time limit of 15 days for the requested legal body to provide the authority with the required support unless a reasonable excuse is provided for the delay. In urgent matters the time limit may be reduced. In all cases overdue performance is penalized with a sentence of up to six months imprisonment; a fine between AED 30,000 and AED 200,000; or both.\r\n\r\nIt is expected that much of the work to be undertaken in implementing the strategies devised by the new authority will fall to local and federal public bodies but under the authority’s supervision and instructions. This may involve investigating allegations of corruption, gathering evidence, speaking to witnesses, and tracing and recovering the proceeds of the corrupt practice. They will also need to keep the authority informed of the actions they have taken.\r\n\r\n<strong>Whistle Blowing</strong>\r\n\r\nWhistle-blowing occurs when a person speaks up about an illegal activity or injustice to authorities, executives within an organization or directly to the media. Each year around the world many illegal activities are exposed by whistle-blowers. Although they help in bringing injustice into the light and enable perpetrators to be held accountable, whistle-blowers can also be subject to intimidation, harassment, and even threats of violence.\r\n\r\nHowever, due to the importance of whistle-blowing to combating corruption, the bill states that the Federal Authority for Combating Corruption, once established, will issue regulations to protect whistle-blowers. Such regulations shall guarantee the freedom, security and well-being of whistle-blowers and protect them from being prosecuted criminally, civilly or administratively.\r\n\r\nThe bill defines a whistle-blower as a person who reveals information - in good faith – pertaining to a crime relating to corruption (as defined above) without being a principal or accessory to the reported crime. In addition to this, a witness, expert or victim will also be considered as whistle-blowers. Whistle-blowers report actions that come to their knowledge regarding allegedly dishonest or illegal activities occurring in a government department or private company or organization. The bill creates a general presumption that a whistleblower is acting in good faith if the whistleblower reports the crime for the apparent benefit of the public interest and in the belief that there is enough information or proof to justify reporting it.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe bill is still being deliberated by Emirati legislators and is in the process of being passed. However, given the previous approach of the legislators and their dedication to combating corruption we expect it to be passed before the end of 2013. Ever since the ratification by the UAE of the United Nations Convention Against Corruption, serious reforms have been taken to eradicate corruption in public and private sectors.\r\n\r\nCorruption has always been frowned upon in the region, and the steps discussed in this article show that the UAE is further strengthening its anti-corruption regime in order to secure the integrity and dignity of transactions and dealings before different legal bodies. The bill encourages the whole of UAE society to support the proposed Federal Authority for Combating Corruption, and by doing so it is hoped that society will become more aware of the perils and threats of corruption to private and public welfare.\r\n<div></div>'),
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	(86969,4733,'content','June 2013\r\n\r\n<hr />\r\n\r\n<em>Instead it exists in electronic format on computers located on corporate and government networks which can be accessed via the internet. The advent of electronic storage of information has removed the need for people to be physically present to perform transactions; instead they can trade shares or book an airline ticket from their living room over the computer. It has also given rise to an entire generation of computer savvy criminals who have turned hacking into a highly lucrative criminal pursuit. As a result, information security has emerged as a new discipline which serves to ensure the confidentiality, integrity and availability of data, and the availability of technology that enables delivery and processing of that data.</em>\r\n\r\nThis article presents an overview of the laws impacting information security in the UAE and generally provides tips based on industry standards that may be considered when evaluating an entity’s information security regime.\r\n\r\n<strong>Information security obligations under UAE law</strong>\r\n\r\nGenerally information security breaches result in one or more parties incurring loss or damage that can range from minor to catastrophic. Although the UAE has no consolidated information security law, the following pieces of legislation generally govern information security in the UAE:\r\n\r\n<em>Cyber Crimes Law </em>\r\n\r\nFederal Law No. 5 of 2012 (“Cyber Crimes Law”) provides for a range of offences committed online including issues like hacking into IT networks to steal data, hindering access to an IT system and distributing viruses. Generally, the relevant information security related provisions of the Cyber Crimes Law prohibit the following:\r\n<ul>\r\n 	<li>Unauthorized access to an IT system resulting in access to personal data;</li>\r\n 	<li>Unauthorized access to an IT system to obtain government data;</li>\r\n 	<li>Hindering access to an IT system;</li>\r\n 	<li>Disabling an IT system by introducing spam email and virus programs; and</li>\r\n 	<li>Hacking into an IT system.</li>\r\n</ul>\r\n<em>DIFC Data Protection Law</em>\r\n\r\nThe DIFC Data Protection Law 2007 and its Regulations (together referred to as the “DIFC Data Protection Law”) regulate the processing and transfer of personal data including sensitive personal data located in the Dubai International Financial Centre (a free zone hereinafter referred to as the “DIFC”). Specifically, the DIFC Data Protection Law requires all data controllers (i.e. any person in the DIFC who alone or jointly with others determines the purposes and means of the processing of personal data) to implement appropriate technical and organizational measures to protect personal data.\r\n\r\nAdditionally, obligations to properly secure information arise in a range of other laws and regulations, including the Dubai Healthcare City (“DHCC”) Governing Regulations and the Federal Credit Information Law which require data holders to institute appropriate information security policies to protect health and credit related data.\r\n\r\n<strong>Government security standards</strong>\r\n\r\nMeanwhile, the governments of Abu Dhabi and Dubai are in the process of developing their own information security standards in an effort to maintain the security of critical government information.\r\n\r\n<strong>AD Information Security Policy</strong>\r\n\r\nThe Abu Dhabi Government Information Security Policy and related Abu Dhabi Government Information Security Standards (together referred to as the “AD Information Security Policy”) constitute the most comprehensive regulation addressing government data in the Emirate of Abu Dhabi. The AD Information Security Policy defines requirements for ensuring that critical government information is secure regardless of the medium in which the information resides.\r\n\r\nGenerally, pursuant to the AD Information Security Policy, all Abu Dhabi government entities are required to:\r\n<ul>\r\n 	<li>categorize their information assets (including information systems) based on the importance and critical nature of the relevant asset;</li>\r\n 	<li>develop an Information Security Program Plan;</li>\r\n 	<li>build the required capabilities to monitor the information systems and manage information security incidents in the entity; and</li>\r\n 	<li>regularly report to the Abu Dhabi Systems and Information Center (“ADSIC”) – responsible for assisting the government entities in implementing their respective Information Security Program Plans.</li>\r\n</ul>\r\nAll Abu Dhabi government entities must comply with the obligations set out in the AD Information Security Policy to ensure the confidentiality, integrity, and availability of government information. Additionally, Abu Dhabi government entities must ensure that suppliers engaged by them adhere to the applicable obligations of the AD Information Security Policy.\r\n\r\n<em>Dubai Information Security Policy</em>\r\n\r\nWith the passing of the Executive Council Resolution No. 13 of 2012 – Regarding the Information in the Government of Dubai (“Dubai Information Security Resolution”), the Dubai e-Government Department is now set to develop an information security policy for the government of Dubai. Pursuant to the Dubai Information Security Resolution, such policy will include:\r\n<ul>\r\n 	<li>governance of information security;</li>\r\n 	<li>incident and risk management;</li>\r\n 	<li>access control;</li>\r\n 	<li>process, system and communication management;</li>\r\n 	<li>development and management of information systems; and</li>\r\n 	<li>legislative regulation.</li>\r\n</ul>\r\nThe 2012 Dubai Information Security Resolution is Dubai’s first step towards facilitating a further exchange of information between the private sector and government entities in Dubai.\r\n\r\n<strong>Corporate security standards</strong>\r\n\r\nThere is no uniform standard that may be used as a benchmark against which the adequacy of an information security regime may be assessed. Instead various industry standards have developed which can be used as a basis for implementing ‘reasonable’ measures in the context of information security.\r\n\r\n<strong>ISO/IEC 27001</strong>\r\n\r\nISO 27001 relates to the development and maintaining of an Information Security Management System (“ISMS”) within an organization. The system constitutes an integrated set of documented policies and procedures. The fundamental approach of ISO 27001 can be expressed as follows:\r\n<ul>\r\n 	<li>Establish ISMS policy, objectives, processes and procedures relevant to managing risk and improving information security to deliver results in accordance with an organization’s overall policies and objectives.</li>\r\n 	<li>Implement and operate the ISMS policy, controls, processes and procedures.</li>\r\n 	<li>Assess and, where applicable, measure process performance against ISMS policy, objectives and practical experience and report the results to management for review.</li>\r\n 	<li>Take corrective and preventive actions, based on the results of the internal ISMS audit and management review or other relevant information, to achieve continual improvement of the ISMS.</li>\r\n</ul>\r\nThe standard does not provide any detailed operational direction as to how to actually implement these processes; that is left up to each organization to work out for itself, on the basis that there can be no “one size fits all” information security management system. However, the standard does provide overall requirements in terms of the approach to be taken when developing and managing an ISMS.\r\n\r\n<strong>PCI DSS</strong>\r\n\r\nThe Payment Card Industry Data Security Standard (“PCI DSS”) is a security standard developed and administered collectively by the leading credit card companies (including American Express, Visa and Mastercard). The PCI DSS is globally applicable, and applies to any person, business or organization that handles credit card data – from the small retailer through to the multinational organization. The PCI DSS standard contains 12 overall requirements which need to be satisfied in order to establish compliance. The PCI DSS standards are significantly more granular than the ISO 27001 standard - for example one of the 12 requirements of the PCI DSS standard is to “Install and maintain a firewall configuration to protect cardholder data”.\r\n\r\nWhile PCI DSS is confined in scope to organizations handling credit card transactions, in practice its detailed provisions provide general practical advice on a number of security issues for organizations that are considering their information security regimes (particularly the more technical aspects of those regimes).\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises clients with respect to information security management policies in a corporate context. For further information please contact Chris Appleby at c.appleby@tamimi.com or Sana Saleem at s.saleem@tamimi.com.'),
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	(86975,4733,'pageSummary','The digital revolution has radically changed commerce, industry and government. Information is no longer stored in rooms full of filing cabinets under lock and key.'),
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	(86984,4734,'content','June 2013\r\n\r\n<hr />\r\n\r\nWith the GCC region tipped as being the world’s fastest-growing market for e-commerce, it is easy to understand how many traditional “bricks and mortar” stores are establishing an online presence alongside the ever-increasing number of online outlets. However, there are some legal issues that should be considered when engaging in e-commerce in the UAE, and set out below is an overview of these issues below.\r\n\r\n<strong>ONLINE CONTRACTING</strong>\r\n\r\nThe development of new technologies has meant that commercial transactions and contracts can now be entered into via a variety of electronic means. The most common methods of contracting with a customer are by ‘click-to-accept’ means (i.e. a physical act by the customer to indicate their consent to the contract) and deeming consent by a customer’s general use of a website.\r\n\r\nIn the UAE, the Electronic Transactions and E-Commerce Law (Federal Law No 1 of 2006) generally permits the execution of contracts between two parties via electronic means, and expressly states that the consent and acceptance of contracts may be expressed via electronic communications.\r\n\r\nThe risk of contracting in this manner is that the way in which the terms and conditions are delivered to the customer permits scope for the customer to dispute that any agreement ever occurred. Steps should be taken to ensure that there is as little scope as possible for there to be any dispute as to whether or not the terms and conditions of the contract have been considered and accepted by the customer. For example, have the customer ‘click-to-accept’ the terms which relate to his/her purchase of goods as opposed to just having the terms placed in the ‘legal’ section on the website where the customer may or may not see them.\r\n\r\n<strong>PRIVACY</strong>\r\n\r\nIf a website owner is collecting and using personal data, then it is essential that the collection and in particular use of the personal data is in accordance with applicable law.\r\n\r\nAlthough there is no specific data protection legislation in the UAE (with the exception of some of the UAE’s free zones where specific legislation governs data protection in those free zones) data protection is governed and regulated by a combination of legislative and practical measures, including the UAE Penal Code.   Specifically, Article 379 prohibits the use or disclosure of ‘secret’ information without the consent of the person to whom the secret relates.\r\n\r\nIn an online setting it is essential that the basis upon which personal information is submitted by this “consent” take the form of an electronic contract between the user and the owner of the site. This electronic contract generally takes the form of a privacy policy of the website.\r\n\r\n<strong>CONTENT</strong>\r\n\r\nContent is the material that makes up a website, and includes all things such as images, text, audio-visual material, advertisements, graphics and user generated content.  Whether the content is owned by the owner of the website, or licensed to the website owner by a third party, the website owner should ensure that it has the necessary right to display the content on their website, and also regulate how users of the website use such content.  This is best achieved through the website terms and conditions.\r\n\r\nIf a website allows users to interact and upload comments, material, etc., it is necessary to consider whether or not the website terms and conditions adequately provide for this and appropriately address what users can/cannot upload. In addition, a website owner should consider what rights it is granted to the content uploaded by its users. For example, will the website owner require the right to edit, remove, copy, and/or share the content uploaded by users?\r\n\r\nFinally, alongside all of this sits the UAE regulatory regime which governs content (including digital content).  The key laws and regulations are the Publications and Publishing Law – UAE Federal Law No 15 of 1980, the Cyber Crimes Law – UAE Federal Decree No 5 of 2012 on Combating Cybercrimes and the National Media Council Resolution No. 20 of 2010 on the Criteria for Media Content.  For entities either set up in TECOM in Dubai or in 2454 in Abu Dhabi, the TECOM Codes of Guidance 2003 and the Media Zone Authority Content Code apply to these entities respectively.\r\n\r\nEntities based in the UAE, and to some extent, entities based outside of the UAE specifically targeting customers within the UAE need to ensure they comply with these laws and regulations or else risk receiving any of the penalties prescribed in these laws and regulations.  Some of the penalties are quite severe, particularly under the new Cyber Crimes Law (fines can reach up to 1m dirhams, depending on the infringement).\r\n\r\n<strong>PROMOTIONS</strong>\r\n\r\nRetailers often conduct promotional campaigns to drive consumer traffic to their stores. In the UAE, promotional campaigns offering incentives or benefits in the form of instant prizes are categorized as sales promotions. Sales promotions are regulated on an emirate-by-emirate basis by the relevant Department of Economic Development. (The relevant authority in Dubai is the Dubai Department of Economic Development, for example.)\r\n\r\nThe issue of whether on-line sales promotions are subject to this requirement raises an interesting issue, particularly for promotions operated from off-shore. Ultimately, however, for entities based outside of the UAE and targeting consumers in the UAE, compliance with the local regulatory regime cannot be discounted and can still require consideration.\r\n\r\n<strong>SOCIAL MEDIA</strong>\r\n\r\nMany entities, whether online or otherwise, are more and more frequently using social media to reach a wider audience and promote their business.  We regularly advise our clients to ensure that they have effective social media policies in place to regulate their employees’ use of social media and to ensure that there is a consistent approach with how the business is promoted. More importantly, the social media policy will (hopefully) raise awareness to the individual employees that the regulatory regime governing content also applies to content displayed on social media platforms.  Simply posting comments on behalf of an employer does not exonerate an employee of any liability under this regulatory regime.\r\n\r\n<strong>TECHNICAL</strong>\r\n\r\nE-commerce transactions generally require some form of an online payment gateway to facilitate the transaction. There are a range of such providers operating in the UAE. The website owner will generally enter into an agreement with the gateway provider, to provide certain services for the payment of a fee. For e-commerce businesses that rely on online payments, it is necessary to carefully consider the terms of agreements with gateway providers, and in particular ensure that the gateway providers provide adequate assurances that the transactions facilitated by their systems will be completed.'),
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	(87002,4734,'_yoast_wpseo_metadesc','The retail landscape of the UAE is rapidly changing. We now live in a world where we can shop for goods and services from the comfort of our own home and without the need to brave the heat and head to the nearest mall.'),
	(87003,4735,'content','June 2013\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nUnder UAE Law, Bank Guarantees are considered a commercial activity regardless of the capacity of the person to whom the Bank Guarantee is issued or the purpose for which it is issued, hence they are governed under the CTL. But on some points reference may also be made to the Civil Transactions Law No. 5 of 1985.\r\n\r\nIn a Bank Guarantee, the obligation of the issuing bank (the “Guarantor”) is separate from that of the principal debtor (“Principal Debtor”). It is an independent obligation by the Guarantor to the creditor of the Principal Debtor (“Beneficiary”). A Bank Guarantee is independent from the underlying contract or transaction between the Principal Debtor and the Beneficiary. The Guarantor is bound by the Bank Guarantee irrespective of the position of the Beneficiary or the nature of the contracts between the Guarantor and the Principal Debtor, or between the Principal Debtor and the Beneficiary. In issuing the Bank Guarantee, the Guarantor is not acting as a representative, agent or surety of the Principal Debtor but as a principal debtor itself.  Both the Guarantor and the Principal Debtor owe an independent obligation to the Beneficiary since a Bank Guarantee gives rise to joint and several obligations. In this way a Bank Guarantee can be distinguished from other guarantees under UAE Law which create incidental obligations dependent on the enforceability of the underlying obligations of the debtor.\r\n\r\n<strong>Amount and Time Limit of Bank Guarantee</strong>\r\n\r\nA Bank Guarantee under UAE law cannot be for an undefined amount and should contain the fixed amount for which the Bank Guarantee is being provided.\r\n\r\nThere is no requirement under UAE Law to provide a time limit in the Bank Guarantee. However, if included a Bank Guarantee will expire automatically upon the expiration of such limit.  As per Article 418 of the CTL, unless it had been expressly agreed to renew the said term of the Bank Guarantee prior to its expiry and provided no request for payment has been received from Beneficiary during the validity period of the Bank Guarantee, the Guarantor shall be discharged from liability vis-à-vis the Beneficiary upon the expiry of the validity period of the Bank Guarantee.\r\n\r\nHowever, in the event there is no time limit specified in the Bank Guarantee, then the general limitation periods (time bars) provided under UAE Law will be applicable. UAE Law does not provide for a limitation period specifically for Bank Guarantees, therefore the general limitation period of ten (10) years shall be applicable for Bank Guarantees.\r\n\r\n<strong>Assignment of Bank Guarantee</strong>\r\n\r\nUnder Article 416 of the CTL it has been prescribed that the Beneficiary shall not assign its rights under a Bank Guarantee to any third party without the consent of the Guarantor. Therefore all assignments by the Beneficiary shall be with the prior consent of the Guarantor which should be in writing. A right to assignment can however be provided to the Beneficiary at the time of signing of the Bank Guarantee by making the right a part of the Bank Guarantee and the Guarantor agreeing to it at the outset.\r\n\r\nOnce the Beneficiary has assigned its rights under the Guarantee the assignee steps into the shoes of the Beneficiary and all rights of the Beneficiary vest in the assignee. The Guarantor shall be liable only to the assignee, and shall be duly discharged from its obligations under the Bank Guarantee once it has made the payment under the Bank Guarantee to the assignee upon invocation by the assignee. The Beneficiary will have no right to make any further claims on the Guarantor under such assigned Bank Guarantee.\r\n\r\n<strong>Invocation of Bank Guarantee</strong>\r\n\r\nEven though the issuance of a Bank Guarantee results in joint and several obligations of the Guarantor and the Principal Debtor, the Guarantor is only liable to pay to the Beneficiary upon an invocation of the Bank Guarantee by the Beneficiary and not upon a default or act or omission by the Principal Debtor. Principally, a Bank Guarantee should be unconditional, however if it is subject to conditions or submission of any documents by the Beneficiary and such conditions are provided within the text of the Bank Guarantee. The Beneficiary shall not be able to invoke the Bank Guarantee unless such conditions are met or the required documents are submitted. It is the responsibility of the Guarantor to prove that the Bank Guarantee is subject to such conditions.\r\n\r\nUpon the successful invocation of the Bank Guarantee, the Guarantor is required to make all payments due under the Bank Guarantee and can not decline to make such payment except if it is pursuant to a court order.\r\n\r\nThere has been no time limit prescribed under the laws of UAE for the Guarantor to make payment post invocation of the Bank Guarantee. This is governed by the terms of the Bank Guarantee and the Guarantor will have to comply with the time limit provided in the Bank Guarantee for making payment. Therefore it is between the Guarantor, Beneficiary and the Principal Debtor to decide at the time of signing of the Bank Guarantee, the time limit to be provided to the Guarantor for making payments under the Bank Guarantee upon its invocation.\r\n\r\nIn expectional cases, the court may levy a seizure on the Bank Guarantee amount with the Guarantor. Article 417 of the CTL lays down that an interim injunction over the Bank Guarantee amount is only possible when the Principal Debtor requests for an injunction on serious and exceptional grounds, in the opinion of the courts.  The Dubai Commercial Court of Cassation held in Appeal No. 247/2007 that a court will not stop the bank from paying the money under the Bank Guarantee to the Beneficiary unless there are exceptional and compelling reasons to do so, the claim is fully ascertained and provided that there are no previous judgments in favour of the Principal Debtor against the Beneficiary based on the same documentation.\r\n\r\nIn the event the Guarantor fails to make payments under the Bank Guarantee in absence of a court order, it shall amount to a breach of the Bank Guarantee, permitting the Beneficiary to file proceedings against the Guarantor claiming the value of the Bank Guarantee and any other damages arising from such a breach. Since this is an independent obligation of the Guarantor, the Beneficiary is not required to file a claim against the Principal Debtor prior to filing a case against the Guarantor for breach of a Bank Guarantee.'),
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	(87007,4735,'content_description','A bank guarantee (“Bank Guarantee”) is defined in Article 411 of the Commercial Transaction Law  No. 18 of 1993 (“CTL”) as  “An undertaking issued by a bank to settle the customer’s debt to a third party in accordance with conditions agreed and included in the guarantee, which may be for a limited or unlimited period of time”.'),
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	(87009,4735,'pageSummary','A bank guarantee (“Bank Guarantee”) is defined in Article 411 of the Commercial Transaction Law No. 18 of 1993 (“CTL”) as “An undertaking issued by a bank to settle the customer’s debt to a third party in accordance with conditions agreed and included in the guarantee, which may be for a limited or unlimited period of time”.'),
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	(87017,4735,'_yoast_wpseo_metadesc','A bank guarantee (“Bank Guarantee”) is defined in Article 411 of the Commercial Transaction Law No. 18 of 1993 (“CTL”) as “An undertaking issued by a bank to settle the customer’s debt to a third party in accordance with conditions agreed and included in the guarantee, which may be for a limited or unlimited period of time”.'),
	(87018,4736,'content','June 2013\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nOf pressing concern to all contractors is the extent and duration of their liability in respect of the works they agree to perform. Parties to a construction contract will routinely agree to allow for the payment of liquidated damages (‘LDs’) by the Contractor in the event that he breaches certain of his contractual obligations thereunder. The Contractor derives some comfort from being able to estimate his potential exposure to the Employer in such circumstances (and to price the risk accordingly); for his part, the Employer benefits from having a mechanism to quickly recover pre-agreed amounts to compensate for losses flowing from such breach, without having to prove his actual damage in the context of costly and time-consuming formal legal proceedings. While liquidated damages are generally enforceable as a matter of Qatari law, this article will examine the scope for their imposition to be refuted in certain circumstances.\r\n\r\nFurthermore, where the Employer is a state entity whose contracting activities come within the scope of Law No. 26 of 2005 (‘the Tender Law’) – as is almost invariably the case in relation to the most high-profile and valuable infrastructure projects currently being let in Qatar – we will also see that pre-agreement as to compensation in the form of an LDs clause might not be sufficient to limit a contractor’s exposure to the Employer in respect of delay.\r\n\r\n<strong>The Mechanism in Practice</strong>\r\n\r\nWhile liquidated damages clauses can be used to regulate various contractual breaches – such as the failure of a power station, constructed under a Design and Build, to meet specified target outputs for a particular period; or where agreed noise tolerances are exceeded in transport infrastructure contracts – they are most commonly used in the context of delayed completion of the whole works or, in a multi-phase project, to compensate for a contractor’s failure to achieve sectional completion milestones. Indeed, in the 1999 version of the FIDIC Red Book, the term “liquidated damages” was replaced with the more specific “delay damages”.\r\n\r\nDelay damages are commonly calculated on the basis of a specific amount for each day that the Employer is deprived of the use of the works for their intended purpose - usually the period between the contractual completion date(s), (adjusted to take account of any Extension of Time granted), and actual handover. In practice this amount might equate to the daily cost of financing the contract price, together with an element of loss of profit. All of the FIDIC Books allow for an upper limit to be placed on the Contractor’s liability to compensate for delay – in practice, usually in the range of 5-15% of the value of the contract.\r\n\r\nWhile many common law jurisdictions require that liquidated damages represent a genuine and reasonable pre-estimate of the Employer’s probable loss in the event of delay – or risk being construed as penalties and rendered unenforceable on that basis – Qatari law simply empowers the court (or tribunal) of competent jurisdiction to reduce the compensation payable to a level more reflective of the Employer’s actual loss in such circumstances.\r\n\r\n<strong>The Qatari Law Context</strong>\r\n\r\n<strong>1. General Principles under the Civil Code (Law No. 22 of 2004)</strong>\r\n\r\nThe general principle enunciated at Article 171 of the Civil Code is that of pacta sunt servanda, often referred to as ‘freedom of contract’. As such, contracting parties can agree to structure their relationship on any terms which do not contravene the law, and will be bound accordingly. More specifically, pre-agreement as to the amount of compensation due for specified instances of breach – the purpose of a liquidated damages clause - is expressly permitted by Article 265 of the Civil Code: “if the subject matter of the obligation is not a sum of money, the contracting parties may agree in advance to the value of the compensation, whether in the contract or in a later agreement.”\r\n\r\n<strong>2. Challenging the Imposition of Liquidated Damages</strong>\r\n\r\n(i) The Employer’s Actual Loss is Non-Existent, or is Greatly Outweighed by the LDs\r\n\r\nLiquidated Damages clauses, by their very nature, obviate the need for a creditor to prove his damage; instead, a debtor who breaches his obligations will be liable, upon default, to pay the prescribed amount of compensation. However, unlike many other jurisdictions, Qatari law provides for a contractor to wholly resist the imposition of delay damages where he can establish that the Employer suffered no damage whatsoever as a result of the delay; the law also grants the local courts (and by extension, a tribunal applying Qatari law) discretion to reduce the amount payable if it finds the agreed rate to be vastly disproportionate to the Employer’s actual loss in the circumstances. The operative provision of the Civil Code in this context, Article 266, provides as follows:\r\n\r\n“The agreed upon compensation shall not be due if the debtor proves that the creditor did not suffer any damage. The court may reduce the compensation from the one agreed upon if the debtor proves that the assessment was exaggerated to a high degree, or that the obligation has been partially performed. Any agreement to the contrary shall be null and void.”\r\n\r\nAs a mandatory provision of Qatari law, Article 266 will prevail over any provision of the contract which purports to render LDs payable irrespective of the actual loss to the Employer.\r\n\r\nIt is noteworthy that where the amount of the LDs is insufficient to discharge the full loss occasioned to the Employer as a result of the Contractor’s delay, there is no scope under Qatari law – absent the presence of ‘deceit or gross mistake’ - for a court or tribunal to intervene in order to increase the amount of damages payable by the Contractor in respect of such breach.\r\n\r\nThe foregoing interpretation of the provisions of Article 266 is consistent with reported case law emanating from the Qatari courts, including the decision of the Court of Cassation in Case No. 70 of 2006, and the more recent Court of Appeal Judgment in Joint Case Nos. 1612 of 2012 and 90 of 2013.\r\n\r\n<strong>(ii) The Delay is Attributable to Extraneous Causes</strong>\r\n\r\nA contractor who finds himself faced with payment of LDs, but without grounds to rely on Article 266, may look to more generally to other provisions of the Civil Code to support an argument that the delay was totally or partially caused by another party, and the Contractor’s liability for any resultant losses to the Employer should be eliminated or proportionately reduced as a result.\r\n\r\nArticle 256 of the said law stipulates that “if a debtor does not perform the obligation specifically, or is delayed in its performance, he is obliged to compensate for the damage caused to the creditor, unless it is proved that the non-performance or the delay was for an extraneous cause for which the debtor is not responsible” (emphasis added).\r\n\r\nSuch ‘extraneous cause’ can take one or more of only three forms, as follows:\r\n\r\na) Force majeure, or an ‘exceptional incident’\r\n\r\nCircumstances of force majeure render the due performance of a contractual obligation impossible and result in its termination. ‘Exceptional incidents’ are those which fulfil the five criteria set out at Article 171(2) of the Civil Code – that is, are public; exceptional in nature; could not have been anticipated or reasonably foreseen; render the contractual obligation(s) onerous (though not necessarily impossible) to perform; and cause, or threaten to cause, great loss to the party burdened by performance.\r\n\r\nb) Breach by the Employer – Concurrent Liability\r\n\r\nExamples here would include the Employer’s failure to grant site access in good time, or to take over works which were completed in accordance with the requirements of the contract.\r\n\r\nc) Mistake of a third party (such as a sub-contractor, or a party with no involvement in the contractual chain).\r\n\r\nIt is noteworthy that, unlike the prohibition on attempts to contract out of Article 266 (discussed above), parties can expressly agree assign to either one of them the risk of delay attributable to an ‘extraneous cause’.\r\n\r\n<strong>3. Increased Exposure under the Tenders Law</strong>\r\n\r\nThe provisions of Law No. 26 of 2005 are stated to apply to the contracting activities of all Ministries, governmental bodies, public institutions and authorities in Qatar, with the exception of Qatar Petroleum and, in specified circumstances, the Armed Forces and the Police. In the event of delay, Article 56 of the said law permits a Government Employer to impose upon the Contractor, without advance warning, a penalty which does not exceed 10% of the contract value, in exchange for the granting of an extension of time to complete the works. This entitlement is expressly stated to be without prejudice to the Employer’s right to recover from the Contractor any compensation otherwise payable in relation to such delay.\r\n\r\nThe aforementioned Article 56 does provide for the Contractor to be exempted, by virtue of a Decision issued by the Minister of Finance, from payment of some or all of the specified fine, if it is established that he is not responsible for causing the delay and same did not cause the Employer to suffer any damage. However, this exemption is discretionary and, as such, even where a contractor working on a government-funded project is ultimately successful in refuting the imposition of LDs by relying on one of the grounds referred to above, he might first find himself subjected to an irrecoverable penalty equivalent to 10% of the total contract price.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile contractors might be comforted by the scope Qatari law offers to resist the imposition of liquidated damages in certain circumstances, those tendering for State-funded projects should be mindful of Employer’s legal entitlement to impose an additional penalty of up to 10% of the contract price in the event of delay, and should price accordingly.\r\n<div></div>'),
