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	(97117,5275,'pageSummary','This article provides a general overview of the property laws and regulations in Egypt and the rights of foreigners to own property.'),
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	(97111,5275,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe Civil Code regulates ownership of land in Egypt and is supplemented by some general doctrines of law. There are also specific laws in relation to the ownership of real property.  These specific laws impose several restrictions on foreign property ownership.\r\n\r\n<strong> Types of real property rights and methods of transferring ownership</strong>\r\n\r\nIn Egypt property ownership can be transferred in several ways. We set out below some of the most common methods of transferring property:\r\n\r\n<strong>Rights of Ownership</strong>\r\n\r\n• Inheritance\r\n\r\nProperty can be inherited after the death of its owner. For Muslims, inheritance is governed by the principles of Islamic Sharia and for non-Muslims it is governed by their own religious principles. Ownership of property is transferred to heirs after the death of an owner and the issuance of an inheritance order from the competent court determining the heirs and their relevant ownership percentages.\r\n\r\nTransferring the ownership of real property to another person by inheritance is also possible using a Will in accordance with the principles of Islamic Sharia, as long as the value of such property does not exceed one third of value of the total estate of the deceased.\r\n\r\nProperty can also be gifted using a gift agreement provided the customary regulations to execute transfers are complied with.\r\n\r\n• Sale Agreement\r\n\r\nThe most common way to transfer ownership of property is by using a sale agreement. The Civil Code governs and regulates the rights and obligations of both the seller and the buyer of a property.\r\n\r\nAccording to the Civil Code and the Notary Public Law No. 114 of 1946, the sale of a property in Egypt is not effective unless the sale agreement is registered. The Notary Public Law provides that the registration of sale agreements must take place at the offices of the Notary Public.\r\n\r\nNonetheless much property in Egypt has not been registered. Historically this has been a result of high registration fees which were calculated as a percentage of the sale price. Many land transactions were carried out using preliminary sale agreements that were not registered before the Notary Public. As a result, purchasers under these unregistered sale agreements did not acquire ownership rights or real property rights but had a instead a personal contractual right over the property. This right must be registered with the Notary Public in order to become a real property right.\r\n\r\nIn a recent amendment a reduced registration fee was introduced to encourage property purchasers to register their ownership rights. The procedures for registration are however still cumbersome because it is often necessary to trace the ownership of a property to the first owner through a series of unregistered transfers.\r\n\r\n• Pre-emption (Priority Rights)\r\n\r\nPre-emption is a method of transferring property ownership applied by virtue of Islamic Sharia in many Arab and Islamic countries. The notion of pre-emption can be summarised as a priority right granted to the owner of a neighbouring property to purchase a property before any other third party. Use of this method of acquiring ownership is rare in Egypt due to its complexity but it is a prescribed option under the law and has been the subject of many disputes before the Egyptian courts.\r\n\r\n<strong>Right of Use</strong>\r\n\r\n• Usufruct\r\n\r\nThis is a right to use a property owned by another person for a specific period of time and on terms agreed between the parties. A person who holds a usufruct right over another person’s property has all the rights granted by law to the owner, except for the right to sell or transfer the ownership of such property. Rights of usufruct are transferable real property rights.\r\n\r\n<strong>Encumbrances</strong>\r\n\r\n• Mortgages\r\n\r\nProperty can be mortgaged to third parties as a security for a debt or obligation. For a mortgage to be effective and valid it must be registered with the Notary Public. For such registration to be possible the property which is subject to the mortgage must be also be registered in the name of the borrower or the person offering the property as security.\r\n\r\n• Commercial Entity Mortgage\r\n\r\nProperty owned by a business can be mortgaged as a part of its commercial operations.\r\n\r\n<strong>2. Regulations of Real Estate Ownership</strong>\r\n\r\nThe terms of property ownership vary according to the nature and location of the property. The type of land (desert, reclamation, agriculture) and proximity of the land from the country’s borders determine which laws apply and these laws in certain instances restrict ownership.\r\n\r\n<strong>Ownership of Real Estate</strong>\r\n\r\nIn general, Egyptian nationals, either natural persons or legal entities (regardless of their ultimate ownership), have the right to own property in different areas of Egypt. These rights are subject to various terms and conditions set out by the government. Legal entities in general have the right to own property necessary for their commercial objectives, for example as a head office or as an industrial plant.  For foreigners, whether natural persons or legal entities, there are certain restricted areas and limitations that apply to their rights to own property.\r\n\r\nLaw No. 230 of 1996, regulating the Ownership by Foreigners of Buildings and Land Plots, governs the ownership of property by natural foreign persons for residential purposes. There are restrictions on such ownership; for example, a foreigner who owns a plot of land must erect a building on the land within five years of registering his ownership with the Notary Public. Ownership of non-residential property by foreigners is regulated by other laws. For example there are restrictions on the surface area and number of properties a foreigner may own (currently limited to a maximum of 4,000 square metres and two properties).\r\n\r\n<strong>Ownership of Agricultural Land</strong>\r\n\r\nLaw No. 15 of 1963 was issued to prohibit the foreign ownership of agricultural land. Foreigners, whether natural persons or legal entities, may not own or hold rights of usufruct over agricultural land.\r\n\r\nLaw No. 15 of 1963 provides that the government must inform the relevant authorities of any transfer of agricultural land to foreigners by inheritance. In such cases the agricultural land is seized by the Egyptian government and compensation is paid.\r\n\r\n<strong>Ownership of Desert Land and Agriculture Reclamation Land</strong>\r\n\r\nThe Law on Desert Lands regulates ownership of desert land. This law restricts ownership of such land to Egyptian nationals and to Egyptian companies that are majority owned by Egyptians.\r\n\r\nThe law defines “ownership” as holding full title or ownership, holding usufruct rights or being the tenant under a lease with a term of more than 50 years. The law also imposes a limitation of 50,000 feddans (approximately 50,000 acres) for such ownership.\r\n\r\n<strong>Limitations on Ownership in Some Restricted Areas </strong>\r\n\r\nThe ownership of property in some areas of Egypt is restricted for all regardless of nationality. Ownership of land in these areas is limited to Egyptian government in order to protect the interests of the country.\r\n\r\nLaw No. 14 of 2014 restricts the ownership of property in Sinai. The government has designated development areas in Sinai where companies (whether owned by Egyptians or foreigners) may have the right of usufruct over designated property. Such usufruct rights can be granted for terms of up to fifty years. It must be noted that Egyptian must own at least 55% of the ultimate shareholding of such companies.\r\n\r\n<strong>3.   Government Allocation Rights and Sale Rights</strong>\r\n\r\n<strong>Allocation Rights</strong>\r\n\r\nAllocation is a method used under Egyptian law to grant conditional ownership rights to investors in certain investment properties.\r\n\r\nHistorically, different authorities (including the New Urban Communities Authority, Industrial Development Authority, Tourism Development Authority, Governorates and other public agencies) have been granted the right to allocate land by way of direct order to investors. Such allocation was usually done at prices determined by special committees that investigated and determined the fair market value of such plots for each authority. The different authorities were allocated the lands by law or by presidential decree which they could then allocate to investors.\r\n\r\nThe 1998 Tender Law caused a legal issue because it prohibited any governmental agency or authority from disposing of land without first undertaking a tender process. Nonetheless various governmental agencies continued using their direct order allocation rights under powers which had previously been granted to them. The first ministry to have regard for this legal issue was the Ministry of Housing which from 2006 began using tender processes for all its future land allocations. The issue became a wide scale problem when a judgment was issued by the State Council annulling agreements granted under direct order with effect from 1998. Several legal claims were issued by activists to annul a stream of similar land allocations and huge investments were put in jeopardy.\r\n\r\nIn an endeavour to safeguard the rights of investors that had contracted with governmental agencies, the Egyptian government issued a law ensuring that no third parties would be entitled to make such claims; annulment claims can now only be made by the parties to the allocation agreement. This change has substantially reduced the risk of annulments for investors.\r\n\r\nAllocation, whether granted by tender or direct order, only allows the investor to register the land when the price has been fully paid and the development, plant or other project has been finalised in accordance with the allocation decree or agreement.\r\n\r\n<strong>Ownership of State Owned Land</strong>\r\n\r\nLaw No. 5 of 1996 regulates the disposal of state and corporate lands at no consideration and the leasing of such land for nominal consideration in order to establish or expand an investment project. Article 1 states:\r\n\r\n“It is permitted to dispose of desert lands or lease same at nominal value for the purpose of establishing investment projects or expanding same whether such lands are owned to the state or other public corporate entities... The area of the land to be determined on the basis of the size of the project, its nature and the value of the invested funds ...”\r\n\r\nThe maximum permitted lease term for the purposes of Law No. 5 of 1996 is forty years.\r\n\r\nAs a result of the legal issues governmental entities in Egypt have increasingly been using the public tender process to protect land disposals from the risk of annulment.\r\n\r\n<strong>4.    Mortgages and Property Financing</strong>\r\n\r\nThe objective of Law No. 148 of 2001 regarding Property Financing is to enable the financing of property transactions and construction, whether for residential or commercial use.\r\n\r\nIt is worth mentioning that financial leasing, which is regulated by Law No. 95 of 1995, is also a method for the financing of real estate.  It allows financial leasing companies to purchase property and then lease it to the user.  At the end of the lease term ownership of the property is transferred to the user.\r\n\r\n<strong>5.   New Egyptian Investment Law Real State Rights</strong>\r\n\r\nLaw No. 17 of 2015 amending the Investment Law introduced a new mechanism for valuation of real estate properties. This is expected to improve the mechanics and process for the valuation and allocation of land for investment projects.\r\n\r\nThe amendment allows the General Authority for Investment and Free Zones (“GAFI”) to grant rights of usufruct to investors in respect of properties to be used for fulfilling commercial objectives under the Investment Law. These rights can be granted for periods of thirty years and can be renewed. This saves the investors from the cumbersome process of dealing with different authorities for land allocation.\r\n\r\nOnly companies established under the Investment Law can benefit from this new usufruct option. For a company to be established under the Investment Law it must undertake one of the activities defined in the Investment Law.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThere are many various property ownership options and allocation regimes in Egypt and it is important to seek legal advice on how these provisions may overlap in certain instances. It is also worth noting that Egypt has recently seen major legislative change and the pace of this change is expected to increase with the imminent coming into power of a new parliament. Investors will therefore need to stay up to date with many upcoming changes to the laws regulating the property market in Egypt.'),
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	(97083,5273,'content_description','A hospital or healthcare provider (“Healthcare Provider”) is only as good as the care it provides, and no Healthcare Provider can render quality and superior care to its patients without the leadership and support of quality physicians and other healthcare practitioners (collectively, “Healthcare Professionals”). '),
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	(97085,5273,'pageSummary','A hospital or healthcare provider (“Healthcare Provider”) is only as good as the care it provides, and no Healthcare Provider can render quality and superior care to its patients without the leadership and support of quality physicians and other healthcare practitioners (collectively, “Healthcare Professionals”).'),
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	(97093,5273,'_yoast_wpseo_metadesc','A hospital or healthcare provider (“Healthcare Provider”) is only as good as the care it provides, and no Healthcare Provider can render quality and superior care to its patients without the leadership and support of quality physicians and other healthcare practitioners (collectively, “Healthcare Professionals”).'),
	(97094,5274,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe underlying goal is, in all cases, protection of the consumer.  In this article, we consider the UAE position and provide a short summary of the authorities which control the advertising of healthcare facilities in other GCC countries.\r\n\r\n<strong>The UAE Advertising Regulation</strong>\r\n\r\nIn most countries, the first thing to undertake when considering the advertising of medical services is that the practice itself must be properly registered with the authorities in question.  In the UAE, registration must be undertaken with the relevant healthcare authority for example, the Dubai Health Authority or the Health Authority of Abu Dhabi.\r\n\r\nOnce the entity is properly registered, then that healthcare facility can apply for approval of the healthcare related advertisement through the UAE Ministry of Health (“MoH”).  All advertising must comply with the MoH health advertisements regulation and implementing resolution which detail the permissible and prohibited content of healthcare advertisements(the “Healthcare Advertising Regulation”).\r\n\r\nIt is extremely important, when considering healthcare advertising, to understand the scope of the definition of advertising under the Healthcare Advertising Regulation.  A health advertisement, as defined by the MoH, means “advertisement and publicity made for the sale of a product or service relating to or that may possibly make any person believe that such advertisement or publicity relates to any medical product or service, whether for treatment or prevention purposes”.  Note that this definition does not make any distinction between the media that might be used.  Thus, even social media marketing should be compliant with the Healthcare Advertising Regulation and approved by the MoH before it is used.  Figures that came from the MoH this year indicate that a staggering 20 percent of the prosecutions that they have undertaken in 2015 to date, in relation to Healthcare Advertising Regulation, have been against claims that were made by way of Instagram.  It is clear that the authorities view online advertising as part of their remit and will be watching such materials closely.\r\n\r\nThe Healthcare Advertising Regulation contains a comprehensive list of matters that are relevant to healthcare advertising.  In particular, there are 26 individual matters that the MoH will consider when reviewing the healthcare advertisement.  Some of the more interesting, and sometimes challenging, points raised within this part of the Healthcare Advertising Regulation include the requirement that the “advertisement shall avoid exaggerated wording such as ‘Unique’, ‘Incomparable’, ’Best Quality’, ’Beware of Counterfeiting’, etc.”  As these words are commonly used in jurisdictions outside of the GCC. such a prohibition means that foreign advertisements will not be able to be used in the UAE without amendment if such terms are used.\r\n\r\nAnother interesting, and often difficult, point is that “advertisements may refer to the sponsorship of any party provided that such party is practicing a medical activity and provided the advertiser produces the explicit approval of such sponsoring party”.  Consequently, any person that is paid to endorse a service or product must be a medical professional.  Kim Kardashian’s recent sponsorship of a pregnancy formula would, in the UAE, be a problem on the basis of this part of the Healthcare Advertising Regulation.\r\n\r\nFurther, there are two similar points.  The Healthcare Advertising Regulation states that an “advertisement shall not contain non guaranteed forecasts about the efficiency of the product” and an “advertisement shall not contain any claim, statement or indication that the effect of the product is certain, or is trustworthy, magic or miraculous”. This part of the regulation leaves a few questions open:  What is a “non guaranteed forecast”?  Would the phrase “…will relieve back pain…” be too much of a forecast when used by, for example, an osteopathic practice?  If this cannot be used, then what can a practice say about its results?   Ultimately, it is at the MoH’s discretion regarding where this line is drawn.\r\n\r\nThere is certainly some ambiguity about the scope of some of the Healthcare Advertising Regulation but, it is extremely important to note that the MoH has complete discretion as to whether it accepts advertising for a medical practice or a medical product. The Healthcare Advertising Regulation provides a basis but the MoH may interpret such regulation broadly or narrowly as it sees fit.\r\n\r\n<strong>Advertising Medical Devices</strong>\r\n\r\nA medical device is defined by the UAE MoH to include most instruments or machines that are used by medical practitioners in the provision of healthcare services to patients.  TheMoH requires that medical devices  be registered.  Once registered, they also become subject to the Healthcare Advertising Regulation.\r\n\r\nIt is important to note that a healthcare practitioner cannot advertise for the purchase of a medical device. The practitioner can only make mention that a particular medical device may be used in the care provided by the healthcare practice.  For example, an orthopedic surgeon might say “We use X Brand joint replacements in our practice” but should not say “We recommend Acme Crutches for post-op care”.  Whilst in most cases, this may not be problematic for a medical practice, it does mean that care must be taken with wording in the advertising itself.  In all matters of course, the MoH will ensure that the final advertising does comply with this, and all other restrictions.\r\n\r\n<strong>General Advertising</strong>\r\n\r\nIt is important to also note that, in addition to these regulations, advertising must still comply with the general rules regarding advertising in the relevant country.   For example, “advertisement shall not include images that are falsified or imitated”.  This would not mean that an advertiser could not use the usual methods of creating advertisements, for example, altering the lighting of an image using editing software.  However, it does mean that an advertiser cannot do so in a way that makes the results seem better than they actually are by, for example, using that same editing software to enhance the colour of a patients teeth after using whitening services.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nHealthcare advertising is an area that the authorities take very seriously in the GCC.  The material is clearly being monitored as infringements are common and the fines from some of these infringements are high.  Healthcare operators would be wise to ensure that all of their advertising is properly authorised in all media.  In this regard it pays to note that foreign advertisements may not always meet the exacting standards required of healthcare advertising in the region.\r\n\r\n<img src=\"http://localhost:8888/tamimi/en/media/get/20151129_Inquiry-1.pdf\" />'),
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	(97066,5272,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Houda Meliani'),
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	(97078,5272,'_yoast_wpseo_metadesc','Al Tamimi & Company addresses some of the common questions we receive from clients in relation to the protecting medical and pharmaceutical inventions in GCC countries (i.e. the UAE, Bahrain, Saudi Arabic, Oman, Qatar and Kuwait).'),
	(97079,5273,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe healthcare sector in the United Arab Emirates (“UAE”) remains one of the most competitive in the region: with new hospitals increasingly being planned, existing healthcare and medical facilities seeking out opportunities for growth and expansion and global brands tempted to gain an entry and foothold into the local market, the demand for experienced and high-calibre Healthcare Professionals ever increases.\r\n\r\nThis competition is driven by the rise in medical tourism and the increasing demand for medical treatment in the UAE generally.  For any Healthcare Provider standing in the storm of such a competitive sector, a careful balance requires to be reached between Healthcare Professional incentivisation and maintaining and protecting business and overall financial interests.  It goes without saying that a failure to adequately or properly motivate and incentivise Healthcare Professionals can result in a talent drain to other Healthcare Providers.\r\n\r\n<strong>Top 3 incentivisation Tools... </strong>\r\n\r\n<strong>1.  Remuneration and Benefits package </strong>\r\n\r\nDetermining areas of potential improvement can often begin with examining the package in place (or proposed) for Healthcare Professionals.  The UAE and the GCC are renowned for their transient labour market and it is increasingly common to find Healthcare Professionals (much like employees in other sectors) attracted to the lure of increased remuneration and other lucrative benefit packages.  It is therefore important to ensure that compensation and benefits are sufficiently pitched to attract new Healthcare Professionals as well as sufficiently competitive to retain existing ones.\r\n\r\nA potential option, particularly for new Healthcare Professionals, is the introduction of a sign-on bonus (to be repaid in the event that the employee leaves the Healthcare Provider during the first year of employment).\r\n\r\nA further option for consideration is an incentive based scheme which enables Healthcare Professionals (such as physicians) to profit share.   A scheme of this nature would give some certainty around the ‘pool’ available for distribution to physicians each year (eg. x% of annual profit would be distributed between eligible physicians).  The award could be payable over a two or three year period and the award could be subject to forfeiture and clawback conditions (eg. continuing employment as at the payment dates or else forfeiture, clawback of past paid awards in respect of failure to adhere to the post termination restrictions etc).  The practical difficulties in this option arise in determining how the pool is allocated.  In addition to revenue, it would be advisable to put in place other measurable objectives for the physicians (eg. patient satisfaction, compliance with regulatory requirements etc).  The other option is to make the allocation of bonus discretionary.  This removes the structuring issues but makes the allocation less transparent and has potential employee relations implications.\r\n\r\nCash incentives of the kind above need not only be the single source of incentivisation.  Other benefit package incentivisation tools could include annual return flight tickets (for the employee and his dependants), educational allowances (extending coverage in cases of Healthcare Professionals with larger families) and competitive medical insurance schemes.\r\n\r\nIn addition, company maintained accommodation would go some way towards incentivising staff (or, alternatively, the offering of housing accommodation loans or allowances), particularly against the backdrop of ever increasing rental and real estate in the UAE.  For those relocating from outside the UAE, shipping and other relocation expenses and costs reimbursement or coverage could be offered as a further means of incentivisation.\r\n\r\n<strong>2. Clear Career Paths </strong>\r\n\r\nMore “softer” tools for incentivisation of existing Healthcare Professionals (which, in turn, acts as a guide for new entrants) include engaging with them on their career path and progression within the organisation.  Facilitating an open dialogue is key as a lack of clear advancement opportunities is likely to play a key role in any decision by a Healthcare Professional to seek pastures anew.\r\n\r\nHighly driven Healthcare Professionals require a recognition and acknowledgement of their personal goals, advancement and overall development and those who want to move up the career ranks should be given the opportunity to do so, perhaps by, e.g., increasing responsibility or, for physicians, a clear transition from purely salaried to a fee for service remuneration structure.  Aiding such driven professionals by providing them structured work plans and routine meetings to monitor their progress will go a long way to incentivising and retaining existing Healthcare Professionals to remain committed with the Healthcare Provider they are currently employed with, thereby diluting the “grass is always greener” mindset. As Healthcare Providers, the responsibility of developing and fostering an engaged work force begins by communicating clear, well-defined career paths and opportunities for advancement including any advanced training and providing budget for such advancement.\r\n\r\n<strong>3. Work Schedule Flexibility</strong>\r\n\r\nAnother area for consideration is the approach to the work/life balance.  Whilst not all Healthcare Providers are able to accommodate a flexible working schedule, a low-cost and economic way of achieving this is effectively administering simple scheduling changes.  For example, a Healthcare Provider which ordinarily sees patients from 8.00AM to 6.00PM could accommodate the working mother or father by staggering the working schedule (contractual changes, of course, being subject to prior employee consent).  Alternatively, in cases involving Healthcare Professionals with young children, a flexible working arrangement permitting them to come to the office later/early or leaving early could go some way towards aiding and accommodating employee familial or educational responsibilities.  Such changes can go a long way towards fostering an image of a “caring” employer.  The appeal of flexible scheduling, where possible, should not be underestimated.\r\n\r\n<strong>Concluding Remarks...</strong>\r\n\r\nA talented, motivated and stable workforce will facilitate improved productivity within any Healthcare Provider, which, in turn, will positively impact upon volume and quality, ultimately leading to better business growth.  Healthcare Professionals are well-advised to examine their practices internally and work on improving or initiating incentivisation and retention tools in a fair, transparent and competitive manner.'),
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	(97052,5272,'content','November 2015\r\n\r\n<hr />\r\n\r\nThose that make this investment do so in the hope of creating new innovative products that can be commercially exploited at the exclusivity of their competitors to secure a fair return on their investment. To ensure they have the sole right to exploit the developed innovative products, they need to be confident that these can ultimately benefit from patent protection in countries where they are to commercialize them.\r\n\r\nThis article addresses some of the common questions we receive from clients in relation to the protecting medical and pharmaceutical inventions in GCC countries (i.e. the UAE, Bahrain, Saudi Arabic, Oman, Qatar and Kuwait).\r\n\r\n<strong>How can Patent Protection be Obtained in the GCC?</strong>\r\n\r\nThere are two routes for obtaining patent protection in the GCC, the national route and the regional route.  Patent protection can be obtained through the national route by filing and prosecuting national Patent Applications. If protection is desired in all the GCC countries, separate national applications are to be filed at the respective Patent Office of each GCC country which has its own national Patent Office and Patent law.  National patent applications are subject to examination under the national patent laws.\r\n\r\nAlternatively, patent protection can also be sought by taking the regional route and by filing and prosecuting a GCC Patent application at the GCC Patent Office. A  GCC Patent application is examined centrally by the GCC Patent Office under the GCC Patent Law and once granted, protection would extend to all the GCC countries (subject to certain uncertainties for the UAE).  A GCC Patent is also the only available route for obtaining patent protection in Kuwait at present since the Kuwaiti Patent Office has not yet started examining Patent Applications.\r\n\r\nA regional GCC Patent can also coexist with other nationally granted patents.\r\n\r\nThe availability and suitability of each route would depend on the facts of each case.\r\n\r\n<strong>Are Medical Treatment Methods Patentable in the GCC?</strong>\r\n\r\nUnlike the US and Australia where methods of medical treatment are patentable, in the GCC region (except Oman) methods of surgical or therapeutic treatment on humans or animals are not regarded as inventions and therefore cannot be patented.\r\n\r\nMost GCC patent laws contain specific provisions excluding surgical, therapeutic and diagnosis methods from the scope of patentable subject matter, including Bahrain , Qatar , Saudi Arabia , UAE  as well as at the regional level – the GCC Patent Office.\r\n\r\nOman is a notable exception where diagnostic, therapeutic and surgical methods consist of patentable subject matter, although subject to restricted enforcement against medical practitioners and healthcare entities.\r\n\r\nIn Kuwait, the Kuwaiti Patent Law is silent in respect of the patentability of medical treatment methods, and as the Kuwaiti patent office has not yet started the process of examining patent applications, it is difficult to confirm the position of the Kuwaiti patent office in this respect. However, since pharmaceutical products are excluded from patentability in this country , it is believed that it is likely that medical treatment methods will also be regarded as non-patentable subject matter.\r\n\r\n<strong>How are Pharmaceutical Products Protected?</strong>\r\n\r\nPharmaceutical products are protected through the protection of novel chemical compounds, pharmaceutical compositions, active agents and other medical substances as well as through the protection of novel and inventive processes used for obtaining medical products. Pharmaceutical products can also be protected by any new crystalline forms (polymorphs) of the active ingredient having desirable physical properties such as improved stability.\r\n\r\n<strong>Are Medical Products Patentable?</strong>\r\n\r\nProducts used in medical treatments are considered patentable subject matter in the GCC, with a notable exception of Kuwait for pharmaceutical products, and can be granted a patent as long as they are novel, inventive and useful.\r\n\r\nExamples of patentable products used in medical treatment methods are medical substances, chemical compositions, medical devices and surgical tools.\r\n\r\nThe GCC Patent Office and Saudi Arabia have specific provisions for the patentability of products used in medical methods.  For the other countries, the patentability of these products is provided under the general provisions of the law such as those defining inventions and patentable subject matter.\r\n\r\nKuwait is a notable exception where “chemical discoveries connected with food-stuffs, or medicinal drugs, or pharmaceutical compositions are not regarded as inventions unless such products are produced by special chemical methods or processes, in which case the patent shall not be in respect of the products per se, but of the process of manufacture”.\r\n\r\n<strong>What are Second Medical Use Inventions?</strong>\r\n\r\nSecond medical use inventions refer essentially to medical discoveries related to new uses of known chemical/medical substances, such as use of a known medicament for the treatment of a further disease not originally contemplated by the medicament, use of a new dosage regime for administrating a drug leading to a new therapeutic effect, and use of a medicament for the treatment of a new group of patients not within the original contemplation of the medicament.\r\n\r\nFor example, aspirin, originally used as antipyretic and analgesic was later discovered to have new therapeutic uses and it was in consequence adapted to be used as an anti-coagulant and anti-stroke medication. Uses of aspirin as an anti-coagulant and anti-stroke medication are considered respectively as a second and further medical use not originally considered at the time of conceiving aspirin. The US patent covering the chemical compound of aspirin expired in 1917 and the clinical trials and studies leading to the discovery of the second and further medical uses were made between 1960 and 1980. Another notable example is when Pfizer found that sildenafil citrate, known previously for treating heart and vascular diseases, was also useful for treating erectile dysfunction. This product, marketed for the new use as Viagra, has been extremely successful in securing to the patent owner annual sales of billions of dollars.\r\n\r\n<strong>Why is Patent Protection Important for Second Medical Use Inventions?</strong>\r\n\r\nWhen patent protection of the medical substance (such as a chemical compound) is available, this protection would extend to cover use of the compound for any purpose.  Protection of a second/further medical use of a known compound becomes particularly important when patent protection of the known compound has expired or never existed.\r\n\r\nWithout a legal regime for the protection of second and further medical uses of known substances, generic pharmaceutical companies are free to manufacture and commercialise the known compound for any purpose and innovators can lose incentives for conducting further research, clinical trials and studies investigating new uses of known substances. This would hinder the advancement of science and the public benefit.\r\n\r\nOn the other hand, the availability of patent protection for second medical uses results in granting a monopoly to innovators for the commercial exploitation of the medicaments for the new discovered therapeutic uses and thus increases the cost of these pharmaceutical products on the public and governments which fund these products. This is however seen by the originator companies as being a normal consequence for compensating them for the investment made in terms of Research &amp; Development which can be time consuming and expensive. Countries have therefore adopted different positions on the appropriate level of protection which should be granted for second medical use inventions and uncertainty remains in certain countries as to the availability and scope of such a protection.\r\n\r\n<strong>Are second Medical Use Inventions Patentable in the GCC?</strong>\r\n\r\nFor some GCC countries, the position is clear with respect to the patentability of second medical use inventions. However for some others, there has been some uncertainty as to the availability of such a protection in the absence of specific legal provision, court precedence and examination guidelines in this respect.\r\n\r\nIn the United Arab Emirates  and Bahrain , the position is crystal clear as patent protection of second medical use inventions is guaranteed under their respective patent laws.\r\n\r\nIn Oman, second medical use inventions are also believed to be patentable subject matter as this country allows the patentability of medical treatment methods as discussed above.\r\n\r\nIn Kuwait, pharmaceutical products are not allowed patent protection,  and therefore it is believed that it is likely that medical treatment methods and second medical use inventions will also be regarded as non-patentable subject matter.  The position of the Kuwaiti patent office cannot yet be confirmed until it starts examining patent applications.\r\n\r\nIn Saudi Arabia  and at the GCC Patent Office,  the patent law excludes the patentability of surgical, therapeutic or diagnosis treatment methods “with the exception of products used in any of these methods”.  Though there is no legal precedence on the interpretation of this exception to the best of our knowledge,  in our experience the Saudi Patent Office and the GCC Patent Office are increasingly granting patents for second medical use inventions.\r\n\r\n<strong>What are the generally acceptable types of claims available for the protection of second medical use inventions in the GCC?</strong>\r\n\r\nDespite the fact that some examiners continue to raise objections against the patentability of second medical use claims, ‘Swiss-typ’e claims covering such inventions have increasingly been found acceptable in the last two years by both the Saudi Patent Office and the GCC Patent Office. Product format claims as adopted by EPO following the G2/08 decision have also been found to be acceptable in some granted patents.  Examples of second medical use claims found to be acceptable:\r\n<ul>\r\n 	<li> “Use of a compound (or a composition) X in the manufacture/preparation of a medicament for treating disease Y”; (the Swiss-type format)</li>\r\n 	<li> “A compound X for use in the treatment of disease Y”. (the product format adopted by EPO following the G2/08 Decision)</li>\r\n</ul>\r\nThese claim formats are typically used when inventions are related to the use of a know substance for the treatment of a new therapeutic indication. Pharmaceutical companies can take great benefit from the patentability of the second medical use claim, especially when the product is already known and is no longer protected as such. This fact encourages pharmaceutical companies to continue investigating new therapeutic applications of known drugs to cover existing therapeutic needs. We encourage pharmaceutical companies to use Swiss-type claims covering second and further medical use while filing applications at the Saudi and GCC Patent Offices.\r\n\r\n<strong>What are the Typical Objections Raised Against Second Medical use Claims in the GCC?</strong>\r\n\r\nWhen objections are raised by the Saudi/GCC Patent Office with respect to the patentability of second medical use claims, in most cases they are rejected as being related to medical treatment methods. In some occasions, lack of novelty and/or inventiveness is also raised against the patentability of these.\r\n\r\n<strong>How can Infringement of Second Medical use Related Patents be Determined?</strong>\r\n\r\nWhen the medical substance and first medical use of such substance is already in the public domain (either because patent protection has expired or never existed), it will not be possible to stop generic companies from exploiting the medical substance unless it is used for the treatment of the second medical use covered by the patent. In the GCC, drugs must be approved and registered at the competent regulatory bodies before entering the market. One way of determining whether the medical substance is exploited for a patented use would be to investigate whether the pharmaceutical product has been approved and registered by the competent regulatory body for such a purpose.  When the medicament has not been approved for the patented use and the medicament’s leaflet information does not suggest (or expressly disclaims) such a patented use, it will be difficult to establish direct infringement.  There are other means for investigation and analysing infringement of second medical use invention which are outside the scope of this article.\r\n\r\n<strong>What is the Best Protection Strategy for Medical &amp; Pharmaceutical Inventions in the GCC?</strong>\r\n\r\nThe best protection strategy would depend on the facts of each case, and in particular on the nature of the invention, the main markets of the invention, the importance of the invention for the client’s business, the budget and the protection strategy adopted for equivalent applications in foreign countries. While clients normally go through the PCT route abroad, we generally recommend filing a GCC patent application within the 12 months priority period as this is a cost efficient vehicle for seeking protection in all GCC member states.  If the 12 months priority period has expired, then the national phase route can be considered by filing separate patent applications at the national patent offices where possible. Depending on the nature of the invention, including whether a second medical use is claimed and other factors, we may recommend a different or a backup protection strategy along with a customized prosecution strategy taking into consideration any relevant factors which may impact or leverage acceptance of the applications filed. GCC and national applications can coexist which can be used as part of the strategy. We normally work with clients to align the prosecution strategy for the GCC with their global prosecution strategy as GCC filed applications can be impacted by the examination outcome of equivalent applications filed abroad.\r\n\r\n<strong>Final Comments </strong>\r\n\r\nAs can be seen from the above, there is no single GCC approach to these issues and this can make it complicated and costly to seek patent protection across the GCC. Harmonization of GCC patent laws and the adoption of guidelines with respect to the patentability of second and further medical use inventions would be welcome and is achievable.\r\n\r\nAs matters currently stand, we encourage innovators to file patent applications covering second and further medical use inventions as the chances of securing patent protection for these are fairly good (provided the patentability criteria for novelty, inventiveness and utility are met). More applications will also increase awareness around the importance of such inventions for innovator companies and will help in weighing the balance in favour of further protection for such inventions during any future reviews of the law by the competent legal authorities.\r\n\r\n<strong>How Can Al Tamimi Help?</strong>\r\n\r\nOur intellectual property department has a dedicated life sciences team which can assist pharmaceutical companies and other health care entities in a wide range of contentious and non-contentious legal services across the GCC region. For more information or questions, please contact Ahmad Saleh (Regional Head of Patents &amp; Designs – R&amp;D and Innovations) at a.saleh@tamimi.com or Houda Meliani (Patent Agent, Ph.D. Chemistry) at h.meliani@tamimi.com.');

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	(97012,5270,'content','November 2015\r\n\r\n<hr />\r\n\r\nPharmacies are able to capitalise on the rapidly expanding healthcare sector in the region but require less manpower than typical healthcare establishments.  Increases in healthcare services and an aging population in the MENA region inevitably lead to increases in pharmaceutical consumption.  This, in turn, increases the demand for pharmacies to fill prescriptions and dispense over the counter medications and treatments.\r\n\r\nWhile pharmacies typically operate on low-margins, where medicine prices are sometimes fixed by government price controls, they are high volume businesses.  This article explores some of the basic requirements and restrictions imposed under relevant local law in relation to pharmacies operating in Bahrain, Egypt, Iraq, Jordan, Kuwait, Oman, Qatar, and Saudi Arabia.\r\n\r\n<strong>Bahrain</strong><strong> </strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Ministry of Industry and Commerce</li>\r\n 	<li>Name of healthcare regulatory authority: National Health Regulatory Authority</li>\r\n 	<li>Local ownership restriction: The Pharmaceuticals Law of Bahrain No (18) of 1997 (as amended by the Decree No (20) of 2015) provides that only Bahraini citizens (ie: Bahraini, GCC or American nationals) or Bahraini companies wholly owned by Bahraini citizens are permitted to own a pharmacy in Bahrain.</li>\r\n 	<li>Licensing requirements: Under Bahraini law, the applicant for the pharmaceutical license must: 1) be a Bahraini citizen, as defined above; and 2) have no previous criminal convictions in relation to honesty and integrity, unless discharged from such conviction/ granted amnesty.  While the owners are not required to be pharmacists, it is required that a pharmacist, who is licensed to practise the pharmaceutical profession in Bahrain, is assigned to manage the pharmacy.</li>\r\n 	<li>Restriction on the number of licences held by one holder: Under the Pharmaceuticals Law of Bahrain, one person (natural or corporate) can hold a maximum of five pharmaceutical licences.</li>\r\n 	<li>Practical considerations: In certain instances, the National Health Regulatory Authority will waive the licence owernship restrictions and allow an additional pharmacy to be set up by the same person in an area where there are no other pharmacies within five square kilometres (km²).</li>\r\n</ul>\r\n<strong>Egypt</strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Commercial Registry Office.</li>\r\n 	<li>Name of healthcare regulatory authority: Ministry of Health and Population, particularly, the Central Administration for Pharmaceutical Affairs.  A  pharmacy must also be registered with the Pharmacist Syndicate.</li>\r\n 	<li>Local ownership restriction: The pharmacy licence must be 100% held by a pharmacist of Egyptian nationality or of a nationality that allows Egyptians to practice pharmacy in its territory.  Further, a pharmacy may not be owned by a corporate entity.</li>\r\n 	<li>Licensing requirements: According to Pharmacy Practice Law No. 127 year 1955, the applicant for a pharmacy licence must be an Egyptian national who is a pharmacist or a pharmacist from a country that allows Egyptians to practice pharmacy in its territory.  The licence for the pharmacy will be issued in the name of the applicant.  However, a pharmacy licence may be inherited by the pharmacist’s descendants to be managed for their benefit for ten (10) years. After the lapse of the ten (10) years period, the pharmacy must be closed.</li>\r\n 	<li>Restriction On The Number Of Licences Held By One Holder: Under Egyptian law, one pharmacist cannot hold more than two pharmacy licences.</li>\r\n 	<li>Practical Considerations: In practice, there are certain structures that may be utilized to allow corporate entities to achieve the business objectives of pharmacy ownership.  However, there are instances of law suits filed by the Pharmacists Syndicate against companies that indirectly own pharmacies in Egypt.  Nevertheless, companies in Egypt still indirectly own pharmacies using certain structures and arrangements.</li>\r\n</ul>\r\n<strong>Iraq (Excluding Kurdistan Region) </strong><strong> </strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: The commercial registration for pharmacies incorporated with a corporate owner(s) is maintained by the Ministry of Trade, Registrar of Companies.  Otherwise, for pharmacies owned by individual(s), only a licence will be obtained from the Syndicate of Iraqi Pharmacists.</li>\r\n 	<li>Name of healthcare regulatory authority: Syndicate of Iraqi Pharmacists, under the Ministry of Health.</li>\r\n 	<li>Local ownership restriction: Under the Practicing Pharmacy Profession Law No. 40 of 1970, a pharmacy is required to have 100% of its shares owned by an Iraqi national licensed pharmacist(s).  Further, it is prohibited to share the profit or capital with anyone who is not an Iraqi national licensed pharmacist.</li>\r\n 	<li>Licensing requirements:  A license to operate a pharmacy can only be successfully applied for by an Iraqi national licensed as a pharmacist(s) by the Syndicate of Iraqi Pharmacists.</li>\r\n 	<li>Restriction on the number of  licences held by one holder: According to Iraqi law, an individual pharmacist owner may not hold more than one license for a pharmacy. On the other hand, a corporate owner may obtain separate licences for each pharmacy under one pharmacist’s name.</li>\r\n</ul>\r\n<strong>Jordan</strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Jordan Food and Drug Administration</li>\r\n 	<li>Name of healthcare regulatory authority: Ministry of Health</li>\r\n 	<li>Local ownership restriction: In Jordan, under Regulation 54 of 2000, pharmacies are required to have at least 50% of the shares owned by Jordanian partner(s).</li>\r\n 	<li>Licensing requirements: All the partners must be individuals and must be pharmacists, under Drug and Pharmacy Law No 13 of 2013 (“Pharmacy Law”).  A pharmacist is required to hold a pharmacy degree from an accredited university in Jordan, be registered in the pharmacist’s registrar with the Pharmacist’s Bar Association in Jordan, and be licensed to practice pharmacy activities by the Ministry of Health in Jordan.</li>\r\n 	<li>Restriction on the number of  licences  held by one  holder: Jordanian law prohibits an individual pharmacist from wholly owning more than one pharmacy.  A company, however, is allowed to own one or more pharmacies, provided that: (i) all shareholders in such companies are licensed pharmacists in Jordan; (ii) the number of pharmacies owned by a company does not, at any time, exceed the number of shareholders in that company (i.e. a company owned by three pharmacists can own no more than three pharmacies); and (iii) the shareholding of any pharmacist in a company must not be less than 2.5%, or more than 30%, of the capital of the pharmacy.</li>\r\n 	<li>Practical Considerations: Despite the legal requirement, that the shareholding of any pharmacist in a company must not be less than 2.5%, we are not aware of any instances whereby the Jordanian authorities have imposed a penalty or taken adverse action against pharmacies who do not meet the shareholding minimum requirement, and were established prior to the Pharmacy Law.</li>\r\n</ul>\r\n<strong>Kuwait</strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Ministry of Commerce and Industry</li>\r\n 	<li>Name of healthcare regulatory authority: Ministry of Health</li>\r\n 	<li>Local ownership restriction: Under Law 28 of 1996, only Kuwait nationals holding a pharmacy licence issued by the Ministry of Health may own, operate and manage a pharmacy.  Thus 100% Kuwaiti ownership is required; no foreign person or corporate entity may have shares in the pharmacy in Kuwait.</li>\r\n 	<li>Licensing requirements: A pharmacist may not obtain more than one license, and thus a pharmacist may only own one pharmacy. Furthermore, the law prohibits anyone other than a pharmacist, medicine factories or agents of medicines factories from warehousing medicines for resale.</li>\r\n 	<li>Restriction on the number of licences held by one holder: A pharmacist may hold only one pharmacy licence and may then operate or manage only one pharmacy in Kuwait.</li>\r\n 	<li>Practical Considerations: In practice, corporate entities do hold investments in various pharmacies in Kuwait.</li>\r\n</ul>\r\n<strong>Oman</strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Ministry of Commerce and Industry</li>\r\n 	<li>Name of healthcare regulatory authority: Ministry of Health</li>\r\n 	<li>Local ownership restriction: Under Royal Decree No 4/1974, the Commercial Companies Law, Royal Decree No 102/94 (as amended), at least 30% of the shares of a pharmacy must be owned by Omani nationals or corporate entities wholly owned by Omani’s. Up to 70% thereof may be owned by non-Omani natural/legal persons.  If the pharmacy is to be owned by American persons, up to 100% of the shares in the pharmacy can be owned by the American shareholders.</li>\r\n 	<li>Licensing requirements: The Omani national or the local corporate entity with the right to conduct business in Oman, will be the licence applicant.</li>\r\n 	<li>Restriction on the number of licences held by one holder:  Under Omani law, there are generally no restrictions on the number of pharmacy licences held by the same license holder.</li>\r\n</ul>\r\n<strong>Qatar</strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Ministry of Economy and Commerce</li>\r\n 	<li>Name of healthcare regulatory authority: Supreme Council of Health (“SCH”)</li>\r\n 	<li>Local ownership restriction: Qatari law (Commercial Companies Law No 11 of 2015 and the Commercial Registry Law No 25 of 2005 as amended by Commercial Registry Law No 20 of 2014 and Regulating the Investment of Non—Qatari capital in Economic Activity Law No 13 of 2000) requires that at least 51% of the shares in a pharmacy are owned by a Qatari partner (individual or corporate), unless a higher shareholding percentage by a foreign partner has been permitted under a special Ministerial decree.</li>\r\n 	<li>Licensing requirements: The pharmacy license applicant, if individual, must be a Qatari national, not less than 21 years old.  Under the law, where the applicant is a company, however, all partners must be of Qatari nationality.</li>\r\n 	<li>Restriction on the number of licences held by one holder: In Qatar, there are no restrictions on the number of the pharmacy licences held by the same owner.</li>\r\n 	<li>Practical considerations: Even if a pharmacy has some foreign shareholders, under the SHC licence, the only party that the SHC will name on the licence is the Qatari shareholder.  Further, in practice, the SCH grants pharmaceutical licences to companies where there are foreign shareholders provided that the majority of the shareholders are Qataris. When applying for a pharmacy licence, the SCH may also impose applicant-specific requirements that the applicant is required to comply with.</li>\r\n</ul>\r\n<strong>Saudi Arabia</strong><strong> </strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Ministry of Commerce and Industry</li>\r\n 	<li>Name of healthcare regulatory authority: Ministry of Health and Saudi Food and Drugs Authority</li>\r\n 	<li>Local ownership restriction: Under the KSA Pharmaceutical Establishments and Products Law No M/3 of 18/07/2004, only Saudi nationals or 100% Saudi owned companies can own a pharmacy, thus 100% Saudi ownership is required.</li>\r\n 	<li>Licensing requirements: The applicant for a licence to operate a pharmacy must be Saudi.  Further, either the owner or a co-owner must be a Saudi licensed pharmacist. The manager must also be a licensed Saudi pharmacist.</li>\r\n 	<li>Restriction on the number of licences held by one holder: Under Saudi law, no person can hold a licence for more than 30 pharmacies.  If one of the owners is not a pharmacist (for example, a Saudi company) then the entity is limited to a maximum of five pharmacies.</li>\r\n 	<li>Practical considerations: The condition that the owner or a co-owner must be a Saudi pharmacist may be waived if the pharmacy is to operate in a remote part of Saudi Arabia or if Saudi Arabia has a shortage of licensed pharmacists.</li>\r\n</ul>\r\n<strong>United Arab Emirates</strong><strong> </strong>\r\n<ul>\r\n 	<li>Name of commercial registrar: Department of Economic Development</li>\r\n 	<li>Name of healthcare regulatory authority: For pharmacies, approvals will need to be granted by the relevant healthcare ministry of the Emirate in which the Pharmacy is to be established: Dubai Healthcare Authority; Healthcare Authority Abu Dhabi; and the Ministry of Health.</li>\r\n 	<li>Local ownership restriction: Local ownership restrictions require that there be a UAE national ownership of at least 51% of the shares of the company.  UAE and other GCC nationals may own 100% of the shares of a pharmacy under the UAE Commercial Companies Law No 2 of 2015.</li>\r\n 	<li>Licensing requirements: In practice, UAE health authorities generally issue the health license of a pharmacy in the name of the individual(s) local partner(s) in the concerned company or to list the said partner(s) as “owner” or “holder” of the license.  In other words, the local partner(s) is listed as the “owner” and the legal ownership of the other foreign partner(s) in the concerned company is disregarded for the purposes of the health licence.  However, this practice is not applied across the board consistently by the various health authorities.</li>\r\n 	<li>Restriction on the number of licences held by one holder: Strictly speaking, under UAE law, one person may be licensed to operate up to two pharmacies only.  In some instances, an exemption is sought and a “chain” license is obtained.</li>\r\n 	<li>Practical considerations: In practice, some health authorities, such as those in Abu Dhabi, are very strict in the enforcement of the restrictions on the number of licences held by one holder.  However, the health authorities in other Emirates are more flexible on this issue and disregard this provision, granting more than one pharmacy licence to the same person.</li>\r\n</ul>\r\n<strong>Conclusion </strong>\r\n\r\nWhen planning for and establishing a pharmacy, it is important to note the ownership restrictions to avoid sanctions for violations.  In most jurisdictions, a case can be made for exceeding the number of licences held by one person, however, it is more difficult to receive an exception to the local ownership restrictions.  As the legal requirements and conditions can differ from practice, it is important to thoroughly assess options that might be available to your business even though, at the outset, there are many structuring and licensing challenges.  The legal framework can be restrictive but options for solutions that meet commercial business objectives and also achieve legal compliance are available.\r\n\r\nAs Dr. Napoleon Hill once said, “Whatever the mind can conceive and believe, the mind can achieve.”'),
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	(96986,5268,'content_description','The healthcare sector in the Kingdom of Saudi Arabia (“KSA”) is the largest in the Middle East and has huge potential for further development.  '),
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	(96988,5268,'pageSummary','The healthcare sector in the Kingdom of Saudi Arabia (“KSA”) is the largest in the Middle East and has huge potential for further development.'),
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	(96996,5268,'_yoast_wpseo_metadesc','The healthcare sector in the Kingdom of Saudi Arabia (“KSA”) is the largest in the Middle East and has huge potential for further development. Healthcare investment in KSA can potentially reap vast rewards and this article will explore the subject in more detail.'),
	(96997,5269,'content','November 2015\r\n\r\n<hr />\r\n\r\nPharmaceutical companies generally have a number of registered activities including ‘marketing’.  However, bureaus of the Ministry of Health are only giving marketing authorizations to ‘scientific offices’ being , stand alonethe entities with a limited scope of operation, and the Ministry is refusing to authorise marketing for issue the same to pharmaceutical companies even where they have if the latter has “marketing” among their registered activities. This article considers the issue in further detail. From a structuring standpoint and from experience, a corporation typically opts to reduce the number of legal vehicles and entities it holds, to simplify its structure, reduce its running cost, and eliminate unnecessary corporate work and day-to-day filings.  Thus, such practices by the Ministry of Health increase the corporate structuring burden of pharmaceutical companies.\r\n\r\n<strong>1. Scientific offices Under Egyptian Law:</strong>\r\n\r\nAccording to the Decree no. 429 for the year 1976 of the Ministry of Health and Population, the ‘scientific office’ is regulated as follows:\r\n\r\n<strong>Objective:</strong> The main objective of a scientific office is to market the medical drugs, products and supplies, and pharmaceutical chemicals.\r\n\r\n<strong>Licence:</strong> The licence to establish a scientific office may only be granted to companies manufacturing drugs (local or foreign) and ratified and delegated commercial agents who hold a licence from the Central Administration for Pharmaceutical Affairs (CAPA).\r\n\r\n<strong>Samples:</strong> Each scientific office must include a warehouse for storing the drug samples according to technical methods.\r\n\r\nScientific offices must adhere to the following:\r\n<ul>\r\n 	<li>Preserve the samples in accordance with the technical specifications provided in the Pharmacy Law no. 127 for the year 1955 (“Pharmacy Law”) and its executive decrees;</li>\r\n 	<li>Hold samples register as sealed by CAPA;</li>\r\n 	<li>Provide CAPA with a monthly report on its samples’; and</li>\r\n 	<li>Release samples only for persons authorized to be granted samples according to the Law.</li>\r\n</ul>\r\n<strong>Prohibitions:</strong> Scientific offices are prohibited to undertake the following:\r\n<ul>\r\n 	<li>Advertise products not registered at the Ministry of Health pursuant to the Pharmacy Law or products banned from being imported;</li>\r\n 	<li>Advertise its pharmaceutical products in fields other than the medical or specialized fields of such office’s activity.</li>\r\n 	<li>Subordination: Scientific offices are run administratively and financially by a sole agent – if any - who holds a licence. Otherwise, a scientific office follows the manufacturer.</li>\r\n</ul>\r\nIt is admissible to establish one common private office for several companies or manufacturers.\r\n\r\n<strong>2. Pharmaceutical Companies’ Right to Advertise </strong><strong>Pharmaceutical Products:</strong>\r\n\r\nAs per the Pharmacy Law, pharmaceutical companies are not prohibited from advertising pharmaceuticals on the condition that they obtain the approval of the competent authority. This is indirectly stipulated by Article 63 which sets the standards for the information that should be reflected on any bulletin or advertisement for a pharmaceutical product, without limiting the right of advertisement to a certain entity.  In other words, there is no restriction in this law that limits the activity of advertising solely to scientific offices. However, certain approvals are required under Article 63, which states that the information regarding a pharmaceutical product on any pharmaceutical bulletin or advertisement must be approved by the Technical Committee for Pharmaceutical Supervision at the Ministry of Health (the “Committee”) before it is published.\r\n\r\nThe Minister of Health and Population  Decree no. 76 for the year 2000 provides that pharmaceutical companies wishing to advertise any pharmaceutical product, whether on newspapers, magazines, or any other different  advertising medium, must obtain the approval of the Committee prior to advertising any products. This decree specifically states that pharmaceutical companies are allowed to advertise pharmaceutical products after obtaining the required approval. Further, this decree provides a penalty for any breach of its provisions. According to the said decree, a company is warned about its breach, if such company does not stop the advertisement or amended its contents within 10 days, the relevant pharmaceutical product is promptly withdrawn from the market and its registration is cancelled.\r\n\r\nIn addition to the Committee, under the Ministry of Health and Population Decree no. 91 for the year 1999, approval of the New Cure Systems Committee is required for all forms of advertising of any pharmaceutical products, drugs, or new methods of cure which are to be placed in newspapers, magazines, television, radio or any other different advertising medium. In practice, this approval is obtained in conjunction with that of the Committee. Whoever breaches this decree shall be subject to legal liability, in addition to the withdrawal of such person’s pharmacist license.\r\n\r\n<strong>3. Actual Practice:</strong>\r\n\r\nAs per CAPA’s advice, the Committee does not, in practice, give advertising permits to pharmaceutical companies to advertise their products. According to CAPA, the Committee only approves advertisements of pharmaceutical products submitted by scientific offices. Thus, CAPA is applying a limitation with no legal basis which is a unconstitutional practice.\r\n\r\n<strong>4. Argument with the Competent Offices:</strong>\r\n\r\nWhile CAPA officials agree that there is no legal basis for not approving advertisements conducted by pharmaceutical companies, CAPA officials have indicated that they will not change their practice unless they receive higher orders or instructions to this effect.  Thus, for the time being, a pharmaceutical company must also establish a scientific office if it wishes to carry out advertising activities.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nFrom a structuring standpoint, the present approach by the Ministry of Health creates an unfortunate requirement that pharmaceutical companies have to set up a separate scientific office in order to market their products in circumstances where their existing license already caters for ‘marketing’. A corporation will typically opt to reduce the number of legal vehicles and entities it holds in order to simplify its structure, reduce its running cost, and eliminate unnecessary corporate work and day-to-day filings.  However, this is compromised by the current practice of the Ministry of Health which acts to increase the corporate structuring burden of pharmaceutical companies.\r\n\r\nIn our opinion, if need be, a claim before the competent administrative courts maywould overrule the current practice given the lack of a legal basis for the approach currently being taken and thus help to rectifying the practice to simplify  alleviate the existing burden uponto pharmaceutical companies in terms of their required structure and the existing requirement for increased , reduce corporate secretarial work, and decrease filings and other associated costs.'),
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	(96971,5267,'content_description','The recent crash of a Russian passenger plane in Sinai, Egypt, has brought into sharp focus the role of aviation regulatory bodies, investigatory bodies, insurers and aviation disaster management professionals. '),
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	(96973,5267,'pageSummary','The recent crash of a Russian passenger plane in Sinai, Egypt, has brought into sharp focus the role of aviation regulatory bodies, investigatory bodies, insurers and aviation disaster management professionals.'),
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	(96982,5268,'content','November 2015\r\n\r\n<hr />\r\n\r\nPartly responsible for this is KSA’s population growth rate, which is the highest in the GCC. The healthcare sector in KSA is made up of many industries – from medical devices and pharmaceuticals to hospitals and health care information technology (“IT”). Healthcare investment in KSA can potentially reap vast rewards and this article will explore the subject in more detail.\r\n\r\n<strong>Current Climate in Saudi Arabia</strong>\r\n\r\nSaudi nationals are entitled to free health care, which is also available to religious pilgrims. However, in 2014, the government announced that nationals working in the private sector would no longer be able to access free treatment in government hospitals. This announcement was expected as all Saudi nationals in the private sector must have private health insurance provided for by their employers. This is the same for expatriate workers, whose employers must provide private health insurance for them and their dependants within KSA.\r\n\r\nThe high demand for healthcare services, which is continuously increasing in KSA, is largely due to the following factors:\r\n<ul>\r\n 	<li>A rapidly growing population;</li>\r\n 	<li>Rising life expectancies;</li>\r\n 	<li>Increasing per capita incomes; and</li>\r\n 	<li>A high incidence of lifestyle related diseases.</li>\r\n</ul>\r\nPublic spending in KSA on healthcare and social affairs of around USD 43 billion is estimated to be around 19 percent of the national budget in 2015, making it second only to education in terms of percentage of government spending. By comparison, KSA spent an estimated USD 35.9 billion, or 4.8 percent of GDP, on health care provision in 2013. The spend is expected to rise to an estimated USD 48.3 billion by 2018. In 1970 there were 74 hospitals with just over 9,000 beds in KSA. By 2005, there were 350 hospitals with nearly 48,000 beds serving 22.7 million people.\r\n\r\nThe Saudi national budget for 2015 budget announced funding for 27 new hospitals and health facilities, in addition to the continuing construction of 117 hospitals and 8 medical cities. Overall, the health ministry is planning to raise hospital capacity to 68,000 beds by 2016.\r\n\r\nPrivate sector spending for health care in KSA currently accounts for 25 percent of the total. This is set to rise as the government seeks to increase the private sector’s participation in healthcare in order to reduce the burden on government spending whilst increasing the quality and efficiency of the healthcare system.  The Saudi government is making every effort to promote private health care, via private health insurance, loans to build private hospitals and public-private partnerships.\r\n\r\n<strong>Future Trends in Health care</strong>\r\n\r\nThe population in KSA is expected to grow significantly over time. As a result it is envisaged that health care expenditure will increase dramatically. Demand for hospital beds is likely to grow to 70,000 and the number of hospitals is likely to rise to 502. KSA is expected to become the largest healthcare market in the GCC, accounting for 58.2 per cent of the total market in 2018, according to a report by investment bank Alpen Capital.\r\n\r\nThe new Private Health Institutions Regulations have been implemented this year which allows for foreign ownership of hospitals in KSA whereas, previously, ownership was limited to Saudi wholly owned entities and nationals. It is envisaged that the amended regulation is an attempt to further liberalise the country’s healthcare sector and open it for increased foreign investment from global healthcare companies. Furthermore, the new law will also allow citizens who are not healthcare professionals to run hospitals in the country. However, a Managing Director of a hospital must still be a Saudi national.\r\n\r\nThere is growing interest from foreign investors in the KSA healthcare market as it is very attractive in the current world economic environment. Further regulatory developments (if implemented) will potentially attract further private sector investors who will continue to bring world-class knowledge and skills to this developing market. It is understood that the Ministry of Health is working with the Saudi Arabian General Investment Authority to coordinate a strategy to achieve the following objectives:\r\n<ul>\r\n 	<li>Create an effective regulatory system that will allow for private sector investment in healthcare and the production and distribution of pharmaceuticals and medical supplies; and</li>\r\n 	<li>Cultivate a favourable atmosphere to attract private healthcare providers and investors.</li>\r\n</ul>\r\n<strong>Regulation of Healthcare</strong>\r\n\r\nHealthcare in Saudi Arabia is governed by:\r\n<ul>\r\n 	<li>The Ministry of Health (the “MOH”);</li>\r\n 	<li>The Saudi Commission For Health Specialties;</li>\r\n 	<li>The Saudi Food and Drug Authority (the “SFDA”);</li>\r\n 	<li>Saudi Arabian General Investment Authority(“SAGIA”); and</li>\r\n 	<li>Bureau of Investigation and Prosecution.</li>\r\n</ul>\r\nThe MOH is the key regulator for healthcare whilst the other authorities may also be relevant depending on whether the subject matter is a hospital, pharmaceuticals or medical devices and the investment vehicle.\r\n\r\nIn order to establish and own a hospital the following are required:\r\n<ul>\r\n 	<li>MOH preliminary approval;</li>\r\n 	<li>Ministry of Commerce and Industry (“MOCI”) approval (and SAGIA approval if the applicant is a foreign national or entity);</li>\r\n 	<li>Final approval from the General Directorate of Health Affairs.</li>\r\n</ul>\r\nThe SFDA monitors and controls the import and distribution of medical devices and pharmaceuticals. It has established a comprehensive marketing authorisation program intended to safeguard public health as it relates to medical devices and pharmaceutical products. Various processes have to be undertaken before a product is allowed onto the KSA market.\r\n\r\n<strong>Opportunities</strong>\r\n\r\nKSA’s ever developing healthcare sector offers investors many attractive opportunities. Although already the Middle East’s largest healthcare market, it is far from mature and will continue to grow at a significant pace. The amended investment rules regarding hospitals and compulsory healthcare insurance policies will assist with this growth in the coming years. KSA’s aging, yet mostly affluent, population, affords investors an unprecedented opportunity to benefit from new developments in healthcare. Over the coming years, a variety of opportunities are likely to open up in virtually every aspect of the Saudi healthcare sector. The “Saudi Arabian Healthcare Outlook 2020” report, by RNCOS business consultancy services, said that the healthcare sector in the Kingdom is anticipated to expand at a compound annual growth rate of around 9 percent during the period 2015-2020.\r\n\r\nOn key metrics for hospital beds per 1,000 population, however, KSA is among the lowest in the world even though there has been significant improvement in the last few years. Currently, only around 38 percent of hospitals in KSA are privately operated. The increased need for hospital beds presents ample opportunity for hospital owners and operators alike and facilitates the shift towards the private sector. With the recent change in the Private Healthcare Institutions Regulations, this opportunity is now open to foreign investors.\r\n\r\nThe Saudi pharmaceutical market is heavily reliant on imported drugs and around 80 percent of the market is accounted for this way. Pharmaceutical sales are growing as a result of population growth and there is scope for investment. However, strict controls on price and the inability for foreigners to distribute their imported pharmaceuticals (a Saudi distributor must be appointed) could act as a deterrent. Nevertheless, the sector is characterised by a growing domestic manufacturing base, mainly for generic and over the counter drugs, as well as licensing arrangements with branded research-based foreign innovative drug manufacturing firms. Yet, the Saudi market is almost completely dependent on imports for medical devices.\r\n\r\nThe healthcare IT market in KSA is estimated to grow by at least 12 percent by 2019. The need to maintain a standard record format has led to the transformation of traditional medical records to electronic health records. The increased necessity for private health insurance and the need for monitoring of illnesses are also contributing to the growth of this market. Mobile health solutions are becoming increasingly popular as they allow healthcare providers to send information and reminders to patients and allow doctors to monitor patients in remote locations and transmit data digitally through applications.\r\n\r\nThe following are particularly considered growth areas within KSA:\r\n<ul>\r\n 	<li>Generic pharmaceuticals – domestic manufacturing is actively encouraged and is also open to foreign investors who are then able to distribute their products in KSA (foreigners are able to import pharmaceuticals but cannot distribute them).</li>\r\n 	<li>Medical devices – the manufacturing of such is a rapidly growing market and more effective regulations will make it more attractive to produce locally.</li>\r\n 	<li>Healthcare IT – as the infrastructure for technology improves in KSA, healthcare IT will continue to develop. It is key for operational effectiveness in the sector and huge investment is being made in cloud, mobility, virtualisation, telemedicine, and remote patient monitoring.</li>\r\n 	<li>Education – there is a shortage in medically trained personnel in KSA, As a result the government supports the development of more medical education facilities. Some of these will be available for private sector investment and partnerships with leading international educational institutions to build the country’s medical education capacities will be encouraged.</li>\r\n</ul>\r\n<strong>Foreign Investment in the Saudi Arabian Market</strong>\r\n\r\nAll direct foreign investment in KSA requires a SAGIA licence.  The grant of such a licence is not a formality and a number of conditions must be fulfilled before such licence will be granted.  Each case will be considered on a case by case basis. The applicant must be able to demonstrate that it will add value to KSA, assist with the transfer of knowledge or technology and contribute positively to the Saudi labour force. In general SAGIA will only grant licences to internationally recognised entities of substance, quality and reputation in their chosen field of activity.\r\n\r\nAll healthcare applicants must have prior approval from MOH. However, notwithstanding MOH approval, SAGIA may elect not to grant an investment licence for reasons stated above.\r\n\r\nIt is not possible for a foreign entity to import and distribute pharmaceuticals or medical devices in KSA (it is able to manufacture such products in the country and as a result distribute them) and a commercial arrangement will need to be entered into with a Saudi distributor in order to distribute imported products. An arrangement can take the following forms:\r\n<ul>\r\n 	<li>Franchise Agreement;</li>\r\n 	<li>Distribution Agreement.</li>\r\n</ul>\r\nBoth franchise and distribution agreements are a commercial agency and require registration with the MOCI under the Commercial Agency Law. Furthermore, this is a requirement for SFDA approval for a distributor of pharmaceuticals and medical devices.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Saudi healthcare market is going from strength to strength across all its industries. It is relatively young and still developing with unlimited scope for growth. The government is taking this sector seriously and we can expect to see further changes to regulatory controls in order to achieve the goal of increased private sector involvement and investment.'),
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	(96956,5266,'content_description','Chartering a ship is not for the faint of heart. Risk lurks around every corner, for owner and charterer alike. '),
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	(96958,5266,'pageSummary','Chartering a ship is not for the faint of heart. Risk lurks around every corner, for owner and charterer alike.'),
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	(96967,5267,'content','November 2015\r\n\r\n<hr />\r\n\r\nThis article will consider their roles and how they work to establish the facts and apply international law to resolve the complex issues that arise when such disasters occur.\r\n\r\n<strong>The Disaster</strong>\r\n\r\nOn 31 October 2015, 224 passengers died where a Metrojet plane operated by Kogalmavia, and flying from Sharm El Sheikh in Egypt to St. Petersburg in Russia, came down over the Sinai peninsula without broadcasting a mayday warning.\r\n\r\nSpeculation has raged about the cause of the tragedy, and aviation hull liability and war risk insurers have been quick to act on behalf of the Russian carrier, as is the norm when dealing with such an incident. The official investigation committee has been formed from representatives from Ireland (where the plane is registered), Russia (where its operations are based and the majority of passengers were born), France (where the plane was designed) and Germany (where the aircraft was made). At the time of writing the UK has intervened, despite playing no part in the official incident investigation, and a temporary moratorium on flights to and from Sharm El Sheikh has been imposed on UK carriers whilst security assessments are carried out following specific intelligence that sabotage may have caused the destruction of the aircraft, with the possibility of an explosive device on board. Russia, whilst initially criticizing the UK moratorium, has followed suit in suspending flights to Egypt whilst investigations continue.\r\n\r\nIn all aviation loss incidences, there is speculation in the early days of the investigation and the Metrojet loss is no different. Reasons put forward have ranged from the age of the Airbus A329 (built 1997), a catastrophic mechanical failure, possible structural damage to the aircraft’s tail from a previous incident in 2001, a bomb planted by terrorists (such as Chechen separatists or Islamic State) and a missile attack from armed groups on Sinai peninsula.\r\n\r\n<strong>The Ukraine Comparison</strong>\r\n\r\nIt is likely that an interim report revealing some of the facts contained in the aircraft “black box” will be published within the next few weeks (perhaps at the time of publication of this article), and then there will be a further interim report. The final report into the incident will take much longer.\r\n\r\nWe can obtain some clarity as to how the aviation regulatory authorities will investigate these issues, as just two weeks before the Metrojet incident, the formal report into the incident last year of Malaysian Airlines (“MAS”) MH17, which was shot down over an area of armed conflict in Eastern Ukraine, was released.\r\n\r\nMAS Flight MH17 crashed on the 17 July 2014 over Eastern Ukraine in airspace that had not been closed to commercial airline traffic even though there was heavy military action in the area between the Ukraine military and pro-Russian rebels fighting for autonomy from the Ukraine. The Boeing 777 aircraft was en-route from Amsterdam to Kuala Lumpur and flying at 33,000 ft, 1,000 ft above a no-fly zone which the Ukraine authorities had imposed. It was believed to have been shot down by pro-Russian rebels with the loss of all 298 passengers.\r\n\r\nLike Metrojet, there was enormous speculation in the immediate aftermath of the crash. The EU imposed sanctions on Russia and reciprocally Russia threatened an outright ban on European airlines using trans-Siberian airspace. Much of the world’s media blamed pro-Russian rebels fighting in Eastern Ukraine and it was alleged that they used a Russian surface-to-air missile launched from a separatist held area in Eastern Ukraine. The alternative view from Russian separatist forces was that the aircraft was shot down by the Ukrainian military, which has similar missiles, in order to blame the disaster on Russia and the pro-Russian rebels fighting for autonomy from the Ukraine.\r\n\r\nIn the immediate aftermath the situation on the ground was particularly complex: rescue teams and crash investigators were prevented from getting access to the crash site by armed rebels and Dutch, Australian and Malaysian forensic experts had access to this crash site for less than a week before being pulled out of the area of fighting for their own safety, returning some four months later to carry out their duties in a safe environment.\r\n\r\nUkraine perhaps realized that it would not be seen as a neutral party in the crash investigation and also acknowledged that the majority of the passengers who perished were Dutch nationals. In accordance with the Chicago Convention on International Civil Aviation (1944) (“Chicago Convention”), Ukraine was the country in which the aviation incident occurred and was responsible for the investigation. However under the Convention it could delegate the investigation to another state, and consequently Ukraine handed over the leadership of the investigation to the Dutch Safety Board (“DSB”). It will be noted that in the Metrojet incident, Egypt has handed over the formal investigation to the committee formed by representatives from Ireland, Russia, France and Germany.\r\n\r\nTwo parallel MH17 investigations are being led by the Dutch: the first investigation is in accordance with the International Civil Aviation Organization (ICAO) rules set out in Annex 13 to the Chicago Convention to establish the cause of the crash (without allocating blame) and to prevent future such occurrences. The second investigation is a criminal enquiry led by the Dutch and consisting of a Joint Investigation Team consisting of police officers and public prosecutors from Australia, Belgium, Malaysia, Netherlands and the Ukraine, all co-ordinated by a public prosecutor from the Netherlands. This investigation should be completed next year and its intention is to establish and prosecute the perpetrators.\r\n\r\nOn the 9 Sept 2014, the DSB issued its preliminary report which stopped short of saying that a surface-to-air missile brought down MH17, but that the damage was consistent with a surface-to-air missile exploding alongside the aircraft. Now, on the 13 Oct 2015, the DSB has published its final 279 page report with its definitive conclusions.\r\n\r\nThe report concludes that the plane was brought down by a warhead that detonated outside the front of the aircraft causing structural damage to the cockpit and contributing to a later mid-air break-up of the plane. The warhead was carried on a type of missile known to be used in Russian-built BUK systems, a 9N314M model warhead carried on a 9M38 series of missiles fired from a BUK surface to air missile system, and all other scenarios for the break-up of the aircraft have been rejected. The impact killed all four of the cockpit crew and there was no evidence of any conscious action of any passenger on the plane recorded after impact. A large area of some 320 sq km in Eastern Ukraine was identified from which the missile could have been fired.\r\n\r\nGiven the number of aircraft which had been shot down in the area during the conflict prior to the incident, and in particular, the shooting down of a Ukranian Antonov on the 16 July 2014 and a Sukhoi SU25 on the 17 of July 2014, the report states that the risk assessment by all involved parties was inadequate and the DSB has concluded that the Ukrainian Air Traffic Control should have closed the airspace, MAS possibly should have chosen an alternative route, and other parties such as the ICAO did not sufficiently account for the risks of flying over conflict areas.\r\n\r\nIn the Metrojet incident there is speculation that a Thompson airliner had to take evasive action to avoid a missile in the weeks before the Russian crash and the DSB conclusion on MH17 is worryingly prescient.\r\n\r\nThe two main themes of the DSB Report were firstly, there was a “blind spot” in the risk assessment undertaken and secondly there should be new guidelines. Conflicts in the modern world are less predictable than traditional wars between States, and weapons can hit targets at great distances and altitudes. The DSB called for urgent measures to assess and manage risks associated with flying over conflict zones. Secondly, the DSB concluded that there is no conclusive system of responsibility for the management of air space in conflict zones: States have sovereignty over an airspace and are responsible for operators being able to safely fly through that airspace, but “unrestricted airspace” cannot be simply relied on as an indicator of safety. There should be a second barrier drawn up by operators, other States and international organizations such as ICAO and IATA to improve decision making on flight routes.\r\n\r\nThe choice of flight route by MAS and other airlines was not deemed to be unsafe, and it is pointed out that no airline changed its route on the day of the crash and indeed 160 flights took place on the day of the incident alone all over Eastern Ukraine up and until the airspace was closed. Also, there were three other aeroplanes flying through the same sector, all in relatively close proximity to MH17. Again, this is very similar to the airline traffic situation in Sharm El Sheikh before the Metrojet incident.\r\n\r\n<strong>Impact on Industry and Insurers</strong>\r\n\r\nThe DSB report goes some way to establishing the cause of the crash and may have consequences for MAS specifically, and other airlines routed to fly over conflict zones in the future. ICAO and IATA may have to redraft its rules in respect of risks of flying over conflict areas and that is more likely now after Metrojet. Aviation insurers will also need to reconsider their position in terms of policy cover and liability.\r\n\r\nWe can assume that MAS will have had aviation hull and liability risk coverage and within that coverage there would normally be a “wartime exclusion” clause to ensure that insurers underwriting the risk of the aircraft are not liable if the aircraft is destroyed through either an act of terrorism or war. In this case it is possible that there may be issues as to whether the wartime exclusion clause would be triggered given that there has been no formal declaration of war between Russia and Ukraine. In all probability, MAS will have had coverage within the niche aviation war market should the wartime exclusion clause apply, and that underwriters would have attended to the collection of funds and preparation of settlement documents shortly after the incident. In any event, the DSB report of 13 October 2015 will be looked at closely by both hull and liability underwriters and war risk insurers.\r\n\r\nFor MAS, there may be questions asked as to why MH17 was flying just 1,000 ft above airspace restricted by the Ukrainian Government as a no-fly zone, albeit that DSB report strongly points out that not one airline changed its route and some 160 flights took place on the day of the crash alone over Eastern Ukraine.\r\n\r\nMAS will also look at the detail of the report. Even though the Dutch Safety Board’s remit is not to apportion blame, its conclusion is that the missile was fired from a system in Russian separatist controlled Eastern Ukraine and if the culpability of the Russian government can be proven by the Malaysian government (the State which owns MAS) it is possible that Malaysia may attempt to seek damages in compensation in the International Court. There is a precedent for this, being the Vincennes incident of July 1998 where an Iran Air Airbus was brought down by a US navy ship missile after it mistook the civilian aircraft for an Iranian fighter plane. Although the U.S Government did not admit legal liability for Vincennes, compensation was paid to the families of the Iranian victims.\r\n\r\nIt is certain that, following on from the Metrojet loss and the MH17 report, aviation professionals, insurers, airlines, regulatory bodies and governments will be looking at all the issues arising, and will be awaiting the interim and final reports from the ICAO Annex 13 investigation by the Irish/Russian/French/German team in the same way as we have now received definitive conclusions from the DSB report into the cause of the MH17 disaster.'),
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	(96933,5265,'content_description','Islamic Finance: Combining Islamic and Conventional Financing\r\n'),
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	(96935,5265,'pageSummary','Islamic Finance: Combining Islamic and Conventional Financing'),
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	(96939,5265,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Azlin Ahmad'),
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	(96951,5265,'_yoast_wpseo_metadesc','The past decade has witnessed a flourish in the growth of Islamic financing, with the majority of the main banks in the United Arab Emirates either operating as fully fledged Islamic financing institutions or having Islamic banking windows.'),
	(96952,5266,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe standard form New York Produce Exchange Time Charter (“NYPE”) has been an industry favourite for just over a century, and its 2015 makeover is seeking to continue this.\r\n\r\n<strong>The NYPE</strong>\r\n\r\nThe NYPE first took its place as the pre-eminent dry cargo time charterparty in 1913, with periodic revisions ever since. The Baltic &amp; International Maritime Council (“BIMCO”) is the driving body behind the standard form contract, as currently supported by the Association of Ship Brokers &amp; Agents (“ASBA”) and the Singapore Maritime Foundation (“SMF”). Arguably the most successful of such revisions was in 1946 (commonly referred to as “NYPE 46”) and remains widely used today, including in the Middle East. The document’s last revision was in 1993 (“NYPE 93”) and did well to gain market traction against its popular predecessor.\r\n\r\nThe NYPE 2015’s appeal to parties will, to a large degree, depend on their respective commercial interests. Given the contract’s standard form nature, balancing interests between owners and charterers is no mean feat. Market conditions will also play an important role in determining the negotiating powers of charterers and owners, and may affect the popularity of the document if it is considered to be particularly favourable to either.\r\n\r\n<strong>Key Changes to the NYPE</strong>\r\n\r\nThe stalwart NYPE 46 spans all of 28 clauses. Its clauses are well trodden, steeped in history and, importantly, steeped in precedent. The NYPE 93 increased this to 45 clauses. The latest NYPE 2015 now encompasses 57 clauses. BIMCO has argued that parties routinely elect the NYPE but then flood it with rider clauses and amendments, dissipating many advantages of the standard form structure. BIMCO suggest that the NYPE 2015, after three years of concentrated discussions and debate, will embody many of these routinely incorporated riders and amendments.\r\n\r\nBelow we explore some of the key changes to the NYPE.\r\n\r\n<strong>Preamble</strong>\r\n\r\nA more comprehensive description of the vessel is now included in a (rather lengthy) annexure. Whilst the NYPE has avoided the “box style” format of many other BIMCO contracts, the addition of the standard form annexure does hold some semblance of this style.\r\n\r\n<strong>Clause 1 – Trip or Period Charter?</strong>\r\n\r\nA distinction is now drawn between “trip” and “period” charters. Should the parties stipulate a time charter longer than five months the arrangement will be deemed a period charter, resulting in the automatic application of further clauses, as outlined in Clause 52. The four default period charter clauses stipulate the following:\r\n\r\nFirstly, a “last voyage” clause now permits a charterer to maintain the terms of the charterparty, either at the same rate or the prevailing market rate (whichever is the higher), should its last voyage exceed the stated charter period. This last voyage must either be a ballast voyage to the place of redelivery, or a laden voyage which was reasonably expected to have been completed within the charter period when the voyage commenced.\r\n\r\nSecondly, charterers have the option to add any time the vessel is deemed “off-hire” to the charter period.\r\n\r\nThirdly, charterers may fly their own flag, and paint the vessel with their own markings.\r\n\r\nFinally, owners will have the option of drydocking the vessel during the currency of the charterparty.\r\n\r\nClause 1 also now contains a NAABSA provision (Not-Always-Afloat-But-Safely-Aground) which permits the charterer to order the vessel to lie safely aground during loading and discharging. The provision requires express agreement and is subject to certain practical restrictions.\r\n\r\n<strong>Clauses 2 &amp; 4 – More Notices for Delivery &amp; Redelivery </strong>\r\n\r\nThe required communications between the parties for delivery and redelivery of the vessel have been increased. Both require specific notices and a general obligation to inform the other party of the vessel’s itinerary. An owner is now required to notify a charterer of the vessel’s “approximate” delivery date, and subsequently her “definite” delivery date. Parties may elect the time periods for such notices. Once any such notice is given, an owner is restricted from providing the vessel with any employment orders that stand to jeopardise the stipulated delivery dates. A final notice is provided by owners when the vessel is in a position to come on hire. These delivery notices are virtually mirrored the in charterer’s redelivery notification obligations.\r\n\r\n<strong>Clause 6 – Owners to Provide: Certificate of Financial Responsibility for Oil Pollution</strong>\r\n\r\nFollowing the Exxon Valdez oil spill catastrophe, the United States Oil Pollution Act of 1990 now requires Certificates of Financial Responsibility (“COFR”) to be carried by vessels over 300 gross tonnes or which transport oil, in US waters. The NYPE places a direct obligation on owners to provide and maintain such COFR. If at the renewal of the COFR it is not available in the market place, or its premium has increased substantially, then the parties are obliged to attempt to find a mutually agreeable solution.\r\n\r\n<strong>Clause 8 – Performance of Voyage: Due Despatch Subject to Slow Steaming Orders</strong>\r\n\r\nTypically an owner is strictly obliged to perform voyages with the “utmost” or “due” despatch. Failure to adhere to this obligation may give rise to recourse by third parties, for example; bill of lading holders. The NYPE 2015 permits the charterer to order the vessel to “slow steam,” a practice which has become a popular fuel saving method, as detailed further in Clause 38. The reduced speed is deemed to nevertheless satisfy the owner’s due despatch requirements. Charterers are obliged to incorporate the clause in any sub contracts or contracts of affreightment issued pursuant to the charterparty. Charterers are further obliged to indemnify owners for any liability arising from such contracts due to a failure to proceed with due despatch.\r\n\r\n<strong>Clause 9 – Bunkers</strong>\r\n\r\nBunkers play a pivotal role in the profitability of a time charter.  The NYPE 2015 provides significantly extended and detailed provisions relating to bunkers. The amended clause relies on the latest industry standards, utilising MARPOL and ISO frameworks. The provisions cover quantities and pricing, bunkering prior to delivery/redelivery, bunkering operations and sampling, quality and liability, fuel testing, ECA trading, and grades and quantities on redelivery.\r\n\r\n<strong>Clause 11 – Grace Period &amp; Damages for Withdrawal</strong><strong> </strong>\r\n\r\nPerhaps the most striking amendment to the NYPE is the owner’s clear right to claim damages following withdrawal after unpaid hire. Clause 11 stipulates that, following a failure to make punctual payment, an owner may give a charterer three banking days’ written notice to rectify such failure. This is referred to as a “grace period.” Should payment not be received after the grace period the owner may withdraw the vessel and claim damages for the loss of the remainder of the charterparty.\r\n\r\nClause 11 also introduces a new right of the owner to suspend its performance at any time hire is outstanding. BIMCO suggests that the suspension right may be an effective mechanism for owners wishing to place commercial pressure on tardy charterers. The suspension may be invoked immediately once hire is outstanding and is not subject to any grace period.\r\n\r\n<strong>Further Noteworthy Amendments</strong>\r\n\r\nThe modernised NYPE 2015 has sought to address a plethora of other contemporary issues, with references to the prevailing international bodies and their respective legal instruments. These include:\r\n<ul>\r\n 	<li>Piracy</li>\r\n 	<li>Electronic bills of lading</li>\r\n 	<li>Speed &amp; Consumption</li>\r\n 	<li>Pollution</li>\r\n 	<li>Solid Bulk Cargoes</li>\r\n 	<li>Hull fouling</li>\r\n 	<li>Hold cleaning</li>\r\n 	<li>Ballast water regulations</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nTime will tell whether the NYPE 2015 will be a success. Many similarly styled amendments to other standard form maritime documents over the years have fallen by the wayside. Parties may find themselves driven by an array of factors when considering whether to adopt the new contract, such as legal certainty, efficiency, financial and commercial gains, market pressures and familiarity with the workings of the contract. The NYPE 2015 has certainly gone a long way to cater for contemporary issues faced by the industry. The extensive planning and reviewing is now complete. It’s over to industry to see whether it is in with the new and out with the old, or simply business as usual.'),
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	(96906,5264,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe selling and trading of a rights issue was explicitly permitted under the Qatar Financial Markets Authority (the “QFMA”) rules for the first time in March 2014 regulating the listing and trading of rights issue of Qatari public joint stock companies on the Qatar Exchange.  Under the QFMA regulations, a rights issue is an invitation to existing shareholders to buy new shares in a listed company’s capital increase at a discounted price.  According to the QFMA Selling Rights Issue Rules (“SRIR”), the invitation to existing shareholders is considered a ‘right’.  Such right may be issued as ‘securities’ that may be listed and traded on the Qatar Exchange until the new shares are purchased.  The shareholders may trade the rights on the Qatar Exchange in the same way they would trade ordinary shares.\r\n\r\nA rights issue is subject to ownership limits determined in the listed company’s Articles of Association and the Foreign Investment Law (Law No. 13 of 2000).  The existing limit on foreign shareholding in public joint stock companies is 49%.  Therefore, rights may not be sold to foreign shareholders who may, by virtue of holding the right, own more than 49% in the capital of a listed company.\r\n\r\nAccording to the QFMA, a company may file an application with the QFMA for the listing of the rights within 10 days from the company’s approval on the capital increase at an Extraordinary General Assembly.  The QFMA will provide its consent on the listing within five days from receiving the listing application of the rights.  Two days following the QFMA approval, the rights are listed on the Qatar Exchange in the names of the shareholders to which the rights are allocated.  Upon the listing of the rights, they can be traded on the Qatar Exchange for up to 15 days prior to the subscription date in the capital increase shares.  The listed rights are dematerialised and deposited with the Qatar Central Securities Depository following the listing.  Setting the prices of the rights is determined by the Qatar Exchange and is subject to the QFMA’s approval.\r\n\r\nThe rights are offered for sale for 10 days.  The rights cannot be resold within the original sale period, being 10 days from the offering of the rights for sale.  The rights cannot be pledged or attached and cannot be purchased through margin financing.  The listing of the right shall be cancelled at the end of the original sale period, which is considered the expiry date.  After this date the rights lapse and have no value, unless they are used in the subscription of the company’s capital increase.\r\n\r\nThe SRIR aim to compensate the shareholders for the decrease in the value of the shares held by those shareholders. A shareholder may have the following options to deal with a rights issue:\r\n<ul>\r\n 	<li>Allowing the right to expire without exercising it;</li>\r\n 	<li>Subscribing in the shares of the capital increase pursuant to the right; or</li>\r\n 	<li>Selling its rights to a third party investor.</li>\r\n</ul>\r\nIt is important that investors exercise their rights by subscribing in the shares or by selling the rights to a third party investor before expiry of the right to avoid losing the value of the right.\r\n\r\nThere are two types of rights issue, renounceable rights and non-renounceable rights.  A non-renounceable right is non-transferable.  This means that if the shareholders do not exercise the right during the subscription period, they lose their opportunity to purchase the new shares.  If a shareholder receives a renounceable right, the shareholder can either choose to buy the additional shares or sell its right on the Qatar Exchange.\r\n\r\nRights are generally a useful financial tool for a company that wishes to raise more funds by issuing additional securities.  In addition, the QFMA regulations allow for attracting new investors to a company’s capital increase.  It is possible for investors to buy the rights on the market (through a broker licensed with the Qatar Exchange).  The rights are a new type of security product available on the Qatari market, thus, numerating the sources of the corporate funds.\r\n\r\n<em>This article first appeared in the September 2015 edition of IFLR Magazine – International Briefing Qatar.</em>'),
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	(96916,5264,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sarah El Serafy'),
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	(96928,5264,'_yoast_wpseo_metadesc','The selling and trading of a rights issue was explicitly permitted under the Qatar Financial Markets Authority (the “QFMA”) rules for the first time in March 2014...'),
	(96929,5265,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe past decade has witnessed a flourish in the growth of Islamic financing, with the majority of the main banks in the United Arab Emirates either operating as fully fledged Islamic financing institutions or having Islamic banking windows.\r\n\r\nOne of the commercial objectives driving Islamic banks is the ability to offer products which are at par or at least comparable with conventional products, both from overall suitability and pricing. This has spurred the development of new Islamic financing products which are gaining ground with their conventional counterparts, and the flexibility to cater to a wider range of financial needs.\r\n\r\n<strong>Can all Corporate Customers Apply for Islamic Financing? </strong>\r\n\r\nUnless a sufficient proportion of the company’s business or the underlying purpose of the financing breaches Shariah principles, there should generally be no restriction against a company from availing both Islamic and conventional financing. As no laws or regulations have been formulated on who can obtain Shariah compliant funding, ultimately, it is the Islamic banks, upon the advice of their Shariah Boards, which decide the appropriate parameters for their customers. For example, one aspect which falls in a grey area is whether the proceeds of an Islamic financing transaction can be used to refinance existing interest based loans.\r\n\r\nMore generally, there is sometimes a need for the corporate customers to obtain both Islamic and conventional financing. This may be due to their specific lines of business, and also due to lending limits on the parts of conventional banks which may restrict the amounts that such bank may offer as financing to the customer. The pooling of resources between a conventional and Shariah compliant financier offers the customer a wider range of financing options and competitive pricing.\r\n\r\nIt is common that the conventional and Islamic financing are offered separately to fund specific needs of the customer. These normally comprise unrelated transactions, which are independent of each other.\r\n\r\nA complication arises when a company wishes to raise conventional and Islamic financing under the same loan documentation or under the same transaction. The issues are not just limited to pricing differences, but more fundamentally, clashes in structures, values and approaches between conventional and Islamic financing.\r\n\r\nWe next explore the boundaries and under what circumstances Islamic and conventional financing can co-exist.\r\n\r\n<strong>Same Loan Documentation?</strong>\r\n\r\nUnder conventional financing, it is accepted practice for a single loan document to provide for multiple facilities. Hence, it is common for a range of lending and trade finance facilities to be bundled in one master loan agreement, whether involving bilateral or syndicated lenders. In such a situation, a range of financing needs can be addressed with the minimum combination of loan and security documents.\r\n\r\nThe issue is not as clear cut for Islamic financing documentation. As a starting point, Islamic financing is a relatively new area, and is guided by Islamic principles rather than codified laws on the various structures employed. No specific statute has been passed to govern Shariah aspects of a financial transaction, which leads to the players in this field drawing analogies from and needing to work within secular laws, such as the Civil Code and the Commercial Code.\r\n\r\nHowever, it is agreed practice by most banks to adopt the guidelines issued by the Accounting and Auditing Organisation For Financial Institutions (“AAOIFI Guidelines”). The AAOIFI Guidelines are not a codified set of laws, but rather accounting standards which set the benchmark for Islamic financing.\r\n\r\nAccording to the AAOIFI Guidelines, the combination of contracts in one set is allowed as long as one contract does not impose a condition on the other and provided that each contract is permissible in its own right. A common example of a combined contract is in the case of Islamic trade financing documentation containing a variation of different murabaha (sale) products.\r\n\r\nThe AOOIFI Guidelines also prohibit contracts which are contradictory regarding underlying rules and goals. Hence, it is conceptually impossible for entirely separate structures under which the parties have multiple or conflicting roles, to be combined in one contract, for example, an ijarah (leasing) arrangement to be combined with a murabaha arrangement.\r\n\r\nThere is also a clear prohibition in the AAOIFI Guidelines against combining Shariah contracts with those that are explicitly banned by Shariah or those which are to be used as an excuse for practicing riba (usury). For this reason, an interest based lending cannot be combined with an Islamic structure under the same document. The prohibitions against such an approach are not based on legal arguments rather than Shariah observance. For this reason, it is the general consensus that conventional and Islamic financing should not be combined in the same agreement. This restriction also generally applies to the sharing of security.\r\n\r\n<strong>The Legal Difficulties</strong>\r\n\r\nApart from the Shariah restrictions, assuming that the AAOIFI Guidelines are not adopted, one would still have difficulty in combining Islamic and Shariah structures in a single loan agreement or security document.\r\n\r\nIn a conventional lending scenario, the bank always maintains the role of the lender and the customer is always the borrower. For Islamic financing, the bank and customer can have multiple roles depending on the Shariah structure being adopted. In an ijarah scenario for example, the bank is the landlord or lessor, while the Customer is the tenant or lessee. In a goods murabaha transaction, the bank is the seller and the customer is the buyer. This situation leads to issues in ascertaining and separating the capacities in both the main financing document as well as the security documents. For example, for property finance transactions, under an ijarah structure, the bank owns the underlying land and leases it out to the customer. In a conventional structure, the customer owns the underlying land and mortgages the land to the bank as security for the loan. These essentially two conflicting approaches in ownership make it conceptually impossible for the sharing of the same loan document or even type of security. The difficulty would not just be limited to reconciling the various roles in one document, but it would spill over to issues such as the types of representations and warranties applicable to the customer, and the different remedies for enforcement under each structure.\r\n\r\nWhile secular law is still being applied to govern Shariah compliant financing documents, the documentation traditionally includes language for the governing law to be interpreted in reference to Shariah principles. There are also other related provisions, such as the express statement usually included in Shariah financing documentation that interest is considered repugnant and is therefore waived in enforcement proceedings or court judgments. Such clauses would be at odds with conventional interest-based practice, and would introduce an inherent conflict into the transaction document potentially undermining its legal enforceability.\r\n\r\n<strong>Is Co-Existence Possible?</strong>\r\n\r\nGiven the above difficulties, majority of the Islamic and conventional banks refrain from providing a joint document for Islamic and conventional facilities.\r\n\r\nHowever, especially in larger scale projects, it may be necessary for Islamic and conventional lenders to pool their resources in order to provide attractive financing rates to the customer, and also due to limitations in the single customer limit.\r\n\r\nOne of the ways to overcome this challenge to separate out the conventional and Islamic limb for the same underlying transaction. Each of the conventional and Islamic portions will have a separate set of documentation, and each supported by a separate set of securities of comparable value. Therefore, the Shariah elements of the financing can still be retained without impeding the rights of the conventional lenders.\r\n\r\nIn order to achieve a level playing field between the conventional and Islamic lenders, an intercreditor agreement can be entered into by all parties, under which a facility agent is appointed to regulate the administration of the financing (to ensure parity in drawdown, interest/profit rates, application of payment or repayment etc), including during the enforcement proceedings under the security documents.\r\n\r\nThere are issues to be mindful of, in particular to coordinate the expectations of both sets of banks. One of the commercial challenges is to allocate assets of comparable value so that neither conventional nor Islamic bank is disadvantaged. Such an approach is especially useful in the cases of syndicated lending where the pool of banks comprise conventional and Islamic financial institutions.\r\n\r\n<strong>The Way Forward</strong>\r\n\r\nThe sharing of a conventional and Islamic transaction is possible, although it can require several extra steps in the drafting and negotiating process. But Islamic financing is still a relatively new field in the UAE and therefore it is expected that the legal framework and market practice will develop as this industry matures—absorbing international best practice and cultivating its own local characteristics. We look forward to the developments in this field and will keep abreast of the key advancements that occur.'),
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	(96886,5262,'_yoast_wpseo_metadesc','Al Tamimi & Company in this article aims to shed light on some of the key procedures required to establish a Medical Centre in Qatar.'),
	(96887,5263,'content','November 2015\r\n\r\n<hr />\r\n\r\nTo support and encourage these changes the UAE has instituted laws and a legal framework to safeguard women’s rights, improve the business and political climate for women, and to protect women from violence.\r\n\r\nFollowing is a discussion about the legal reforms and measures that have driven change and looks at what remains to be done to reach equality for women and enhance women’s economic potential in the UAE.\r\n\r\n<strong>Constitutional Protection</strong>\r\n\r\nThe UAE Constitution stresses the importance of equality for all UAE citizens. Article 14 provides that “Equality, social justice, and providing safety, security, and equal opportunities to all citizens are pillars on which the community stands. Solidarity and shared sympathies are close links that tie the Emirates together”.\r\n\r\nArticle 25 further states that “All individuals are equal in Law. There shall be no distinction among the citizens of the UAE on the basis of origin, nationality, faith or social status”.\r\n\r\nAlthough Article 25 does not explicitly refer to gender as a protected category, there can be little doubt that women are to have an equal status to men before the Law. Furthermore, Article 7 of the Constitution states that Islamic Sharia is to be the main source of legislation in the Union, and the Quran explicit refers to the equality of men and woman before God (‘I waste not the labour of any that labours among you, be you male of female – the one of you is as the other’ (3:195)) .\r\n\r\n<strong>Economic Life and Leadership</strong>\r\n\r\nIn the UAE, the government encourages women’s participation in economic life and there are laws and policies that affect women’s economic opportunities in a positive way.. Women have equal employment rights under the UAE Labour Law, although they face partial employment bans such as working at night and jobs considered too hazardous for women. These restrictions are in place to protect women.\r\n\r\nEqual pay is an essential legal incentive that encourages women to work. Federal Decree No. 30 of 1996  mandates equal remuneration for women and men for work of equal value. Further, Article 32 of the UAE Labour Law specifically provides that a ‘working woman shall be entitled to the same wage as that of a working man, if she does the same work.’\r\n\r\nEfforts to increase leadership roles for woman continue. Earlier this year, Sheikh Mohamed Bin Rashid, Vice President and Ruler of Dubai, established the Gender Balance Council, chaired by Sheikha Manal bint Mohamed Al Maktoum, to help increase the role of young Emirati women in building the future of the nation. Sheikh Mohamed said that “the impact of a significant female presence in leadership roles has wide-ranging benefits on the economy, on governance and on society at large”.\r\n\r\nThe Council’s work will complement the work of other institutions and foundations in the UAE which have been set up to support women, such as the General Women’s Union and the Family Development Foundation.\r\n\r\nA new law has also been passed to encourage companies to appoint more women to their Board of Directors. According to Ministerial Resolution 225 of 2015, (amending some provisions of the Ministerial Resolution 518 of 2009 concerning Governance Rules and Corporate Discipline Standards), the Board of Directors (managing a joint stock company) must comprise of at least one woman. This is important as it enables a more equitable representation of women in leadership positions and means more equitable representation of women’s interests in decision-making.  Interestingly, the 30% Club, established in the UK in 2010 with the vision of promoting gender balance on boards to encourage better leadership and governance, recently launched in the UAE.\r\n\r\n<strong>International Conventions</strong>\r\n\r\nThe UAE has signed and ratified a number of conventions that either directly or indirectly support women. The most significant is the Convention on the Elimination of All Forms of Discrimination against Women. This Convention is one of a cluster of human rights treaties developed and administered by the United Nations, and in In 2011, on the UAE’s 40th National Day, President Sheikh Khalifa decreed children of Emirati women and non-Emirati men could become citizens.\r\n\r\nIt is important to note that women’s rights are human rights and the UAE has signed and ratified the Arab Charter on Human Rights which reaffirms the principles of the Charter of the United Nations and the Universal Declaration of Human Rights. This Charter undertakes to “ensure to all individuals… the right to enjoy all the rights and freedoms recognized herein… without any discrimination between men and women.”\r\n\r\n<strong>Violence Against Women</strong>\r\n\r\nThere is no accurate information or statistics regarding violence against women in Emirati households. In a recent policy study, it was found that only 9.5 per cent of women who had been victims of sexual crimes had reported them. This may be due to family and cultural pressure. There is also a problem with criminal justice agencies not recording reported attacks on women, however the UAE government is working to improve this.\r\n\r\nWomen are often victims of human trafficking, and the UAE has taken steps to combat this. Human trafficking is prohibited under UAE law (Federal Law 51 of 2006 Combating the Crimes of Trading in Humans; Article 33 of Federal law 13 of 1996). The Ewa’a Shelters (for women and children victims of human trafficking) were established in the UAE to combat human trafficking and support human rights, and to provide safe refuge to victims of human trafficking and sexual exploitation. These shelters provide victims with health and psychological care as well as social support.  According to the Abu Dhabi Judicial department, human trafficking cases referred to the courts declined between 2012 and 2013. However, more needs to be done in the UAE and around the world to combat human trafficking.\r\n\r\nAnother important foundation for women is the Dubai Foundation for Women and Children (DFWAC), the first licensed non-profit shelter in the UAE for women and children victims of domestic violence, child abuse, and human trafficking. It was established in July 2007 to offer victims immediate protection and support services in accordance with international human rights obligations.\r\n\r\nInstitutions and foundations such as the ones mentioned above are essential in providing support to women and spreading awareness in the community.\r\n\r\n<strong>Legal Reform</strong>\r\n\r\nThere are economic benefits in reforming laws, but also important social benefits. Currently women receive a statutory minimum of 45 days in the UAE, the lowest in the GCC, and we would suggest that this needs to be improved to help women balance their career and family life and encourage more to remain in work if this is what they wish to do.\r\n\r\nThere also remains a lack of representation of women in political institutions and other decision making positions. The adoption of special measures such as quotas will definitely help change this.\r\n\r\nThe UAE has a bright future, but it will only reach it with the help and participation of women. There is much to do, but the UAE should be proud of what it has achieved so far. This article first appeared in Gulf News, 14 November 2015.Magazine – International Briefing Egypt.'),
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	(96876,5262,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.maleh@tamimi.com'),
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	(96868,5262,'content_description','Qatar has a number of both public and private medical institutions, clinics and hospitals (“Medical Centres”). '),
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	(96874,5262,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Seem Maleh'),
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	(96850,5261,'_content','field_59b649b5c8b2b'),
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	(96853,5261,'content_description','Shareholder meetings link the Company’s management and its shareholders. '),
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	(96855,5261,'pageSummary','Shareholder meetings link the Company’s management and its shareholders.'),
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	(96857,5261,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/november-6/conducting-shareholder-meetings-in-the-uae.html'),
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	(96863,5261,'_yoast_wpseo_metadesc','In this article Richard Catling address certain of the legal requirements arising from the Commercial Companies Law (Federal Law No. 2 of 2015) in relation to Limited Liability Companies, along with practical steps for management to consider when convening and conducting shareholder meetings.'),
	(96864,5262,'content','November 2015\r\n\r\n<hr />\r\n\r\nFor any Medical Centre to operate in Qatar, it must be incorporated as an entity with specific medical activities included on its commercial registration. In addition, the Medical Centre will have to meet the requirements and procedures set out by the Supreme Council of Health (the “SCH”). Such requirements vary depending on the nature of the Medical Centre i.e. whether it is a hospital, a polyclinic, a laboratory or otherwise. This article aims to shed light on some of the key procedures required to establish a Medical Centre in Qatar.\r\n\r\n<strong>Entity Incorporation Requirements – The Ministry of Economy and Commerce’s Approval</strong>\r\n\r\nArticle 4 of Law No. 11 of 1982 promulgating the Law Regulating Medical Institutions requires 51% of any Medical Centre’s capital to be held by Qatari nationals. However, under Law No. 13 of 2000, concerning Foreign Capital Investment, there are a number of fields in which foreigners may be permitted to hold up to 100% of the capital of the enterprise, subject to the approval of the Ministry of Economy and Commerce (the “MEC”), and investment in the health sector is one of these fields. However, the process for granting such an exemption is discretionary and is a very time consuming process.\r\n\r\nForeign-owned enterprises must be limited liability companies, whether 49% owned or higher, unless it is a joint venture with a Qatari government company in which case registration as a private joint stock company under Article 207 of Law No. 11 of 2015, promulgating the Commercial Companies Law, is permissible.\r\n\r\nFor a limited liability company, there is no minimum capital requirement; however, the MEC has in the past required certain enterprises to incorporate with specific levels of capital.  The entity’s articles of association must be in Arabic, or bilingual, and provide details of the company’s trade name, members, head office, business objectives, capital amount, number of shares, conditions to share transfers, duration, managers and methods of distribution of profits and losses.\r\n\r\nRegistration fees at the MEC are dependent upon the specific activities which are registered for each entity. Information on these fees can be obtained from the MEC.\r\n\r\nBefore the MEC approves the name of any Medical Centre and its related activities, it requires a letter from the Facilities Licensing Department of the SCH establishing the SCH’s initial approval for the incorporation.\r\n\r\n<strong>SCH Licensing Procedures </strong>\r\n\r\nStage A- As a pre-requisite for the SCH to provide an approval letter to the MEC, the applicant, who must hold a Qatari ID, is required to complete an SCH form specifying the applicant’s personal details (i.e. name, nationality, Qatari ID, profession, address and contact numbers) along with the details of the proposed entity’s owners, who do not need to necessarily possess a Qatari ID. If satisfied, the SCH will then provide a provisional approval for the incorporation, usually within 1 to 3 days. This provisional approval is valid for a period of 6 months, in which period the applicant is required to finalise the incorporation of the Medical Centre and obtain the final medical licence.\r\n\r\nAfter receipt of the letter from the SCH, the applicant can proceed with the incorporation process at the MEC. Once the MEC approves the name of the Medical Centre, the related activities and the articles of association (as signed and authenticated by the parties), it will then issue a commercial registration certificate.\r\n\r\nStage B- As a second step, the SCH will inspect the Medical Centre’s premises. If the SCH determines that the premises meet certain requirements, it will grant preliminary approval for the premises.  For the applicant to obtain such preliminary approval, the applicant will have to file an application with a copy of the interior design of the Medical Centre describing the size and structure. Each medical centre should maintain the following as a minimum:\r\n<ul>\r\n 	<li>Administration room;</li>\r\n 	<li>Waiting room;</li>\r\n 	<li>Separate male and female waiting rooms not less than 12sqm with separate washrooms;</li>\r\n 	<li>Rooms compatible with the provided services; and</li>\r\n 	<li>Appropriate store room for medical and related equipment.</li>\r\n</ul>\r\nThe SCH will not approve the premises if it is attached to commercial or residential premises. It must be maintained as stand-alone premises. All Medical Centres are required to adhere to the international and architecture standards for Medical Centres which are adopted by the SCH from time to time.\r\n\r\nThe preliminary approval of the premises usually takes up to 5 business days. Once obtained, the applicant will need to continually provide details regarding the staff and equipment so that the SCH can maintain this on its file for the Medical Centre.\r\n\r\nStage C- Any entity established in Qatar is required to hold a trade licence, a valid tax card and an immigration card. The trade licence can be obtained from the MEC. The immigration card entitles the entity to hire local or expatriate personnel.\r\n\r\nThe SCH will have to approve the credentials of the recruited staff as a preliminary procedure to the SCH’s final approval for the Medical Centre’s operation. The SCH offers an online registration system for registering medical practitioners.\r\n\r\nThe SCH’s final approval will be granted only after a final inspection of the premises. During this inspection, the SCH verifies, among other things, the Medical Centre’s (i) compliance with required safety and security procedures, (ii) the manner determined for disposal of waste; (iii) telecommunication connections, (iv) internal and external signage, (v) cleaning facilities, and (vi) room sizes and equipment.\r\n\r\nWhen the SCH’s final approval is obtained, the Medical Centre may commence its operations. The Medical Centre is required to display at the premises its licence, the licence of the practitioners and the price list of the services provided. Only after obtaining the operation licence, may the Medical Centre advertise its activities.\r\n\r\n<strong>Licence Term and Fees</strong>\r\n\r\nEach Medical Centre’s licence is valid for one year. The licence can be renewed at the SCH subject to payment of required fees. Depending on the medical services provided at the Medical Centre, the Medical Centre is required to hold valid licences (annual in duration) for each of its practice units (e.g. x-ray, laboratory etc).\r\n\r\n<strong>Management Requirements</strong>\r\n\r\nThe manager of the Medical Centre should be a general medical practitioner licensed to practice medicine inside Qatar. In the event the manager’s position becomes vacant for any reason, the licence holder is required to notify the SCH within a period of two weeks and to appoint a new manager within a period of sixty days from the date the position becomes vacant. In the event a manager is not appointed within that sixty day period, the licence holder is required to close the premises, failing which the SCH may order its closure until a new manager is appointed.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe procedures for establishing a Medical Centre in Qatar are fairly straight forward, particularly when the entity is incorporated with 51% Qatari ownership. However, when the MEC’s approval for 100% foreign ownership is required, the process is expected to be much more complex and time consuming. Where it typically takes about four weeks for an application to reach stage B and obtain the SCH’s preliminary approval on the premises, obtaining the final licence for the operations will be much longer because, apart from the time it may take to have the premises physically meet the required standards, there is also the necessity to obtain approvals from various other government authorities concerning such premises (e.g. Civil Defence’s approval, electricity approval, etc.) before the SCH can conduct its final inspection and grants the licence.'),
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	(96849,5261,'content','November 2015\r\n\r\n<hr />\r\n\r\nEach of the company and the shareholders have interests which they wish to see protected and an agenda to pursue. From the company’s perspective, holding general meetings of shareholders is a legal requirement, necessary for the company to ensure compliance within the relevant regulatory framework and its corporate policies. For an individual shareholder, attendance at the general meeting is, particularly for shareholders representing a minority interest, often their only chance to question management and hold them to account, and to inform themselves as to the company’s policies and prospects.\r\n\r\nWhilst certain listed companies occasionally have widely publicised reports of acrimonious shareholder meetings, the vast majority of shareholder meetings are mundane and not at all controversial. However, even in private companies with a disparate shareholder base, the potential for difficulties at meetings is always present, especially if management find themselves confronted with shareholders prepared to act in a concerted manner to attempt to frustrate management or the majority shareholders from pursuing a direction with which the minority does not agree.\r\n\r\nMore often than not, a shareholder looking to disrupt the process of shareholder meetings will question the legality of the process of calling and convening a meeting, and the conduct of the meeting itself. In this article I address certain of the legal requirements arising from the Commercial Companies Law (Federal Law No. 2 of 2015) (“CCL”) in relation to Limited Liability Companies (not Joint Stock Companies), along with practical steps for management to consider when convening and conducting shareholder meetings.\r\n\r\n<strong>Notice of Meetings</strong>\r\n\r\nArticle 92 of the Commercial Companies Law (Federal Law No. 2 of 2015) (“CCL”) provides that at least once in a year, within four months after the end of the fiscal year of the company, the general assembly shall convene at such time and place as set out in an invitation letter from the general manager which should stipulate where the meeting should be convened and at what time. This letter is in effect the notice of meeting, an integral part of any properly convened meeting under the CCL and other statutory regimes.\r\n\r\nThe CCL does allow for flexibility by providing for any alternative means of invitation that are provided for in the Memorandum of Association which could potentially enable notice to be delivered by electronic means. Given the often used tactic by disgruntled shareholders of claiming that no notice of meeting was received, a notice delivered in hard copy by the relevant form of registered delivery or courier should be employed to enable management to evidence delivery.\r\n\r\nThe CCL provides that notice must be given at least 15 days prior to the date for the meeting.  Whilst specific references in other provisions in the law refer to ‘working’ days, in respect of notice of meetings for limited liability companies and joint stock companies under the CCL working day is not utilised and so this provision should be read to mean that 15 calendar days, (i.e. not the day of the meeting itself) should be allowed for due delivery of any notice.  As the relevant article of the CCL refers to notice being given 15 days prior to the meeting this indicates that the 15 day period does not begin with the date of the notice but rather the date of delivery to the recipient. In our view, given the lack of commentary or precedent to rely upon, the prudent course of action would be to ensure that there are at least 15 days between the date of the delivery of the notice to the recipient and the date of the meeting itself.\r\n\r\n<strong>The Contents of the Notice</strong>\r\n\r\nThe CLL provides that a shareholder meeting may only discuss matters included in the agenda; unless a decision to include any item proposed at the meeting itself is the subject of a separate shareholder vote  For this reason it is necessary for the agenda of the meeting to be included with the notice so that shareholders have advance warning of the subject matter of the meeting.\r\n\r\n<strong>Role of the Chairman</strong>\r\n\r\nIn any shareholder meeting the role of chairman is critical. As the Chairman’s appointment is made by the shareholders themselves and the appointee would come from amongst them, the Chairman has an implicit authority to bind the shareholders in matters relating to the conduct of the meeting which may not necessarily be obvious from the provisions of the law or available precedent.\r\n\r\nIn any well run meeting, the Chairman will ensure that the meeting proceeds smoothly, that it has been properly constituted and that a quorum is present, that shareholders are able to exercise their legal right to voice opinions and discuss any matters set out in the agenda prior to any formal vote in a reasonable manner. The Chairman would also be responsible for permitting people who are not shareholders, or entitled to exercise the rights of shareholders (i.e. proxies), e.g. auditors and other professional advisors to the company, from attending and speaking at a meeting. Finally the Chairman should be cognisant of the time allotted for the meeting and ensure that proceedings proceed in an orderly fashion, in particular by cutting short protracted debates which have, or may be about to, descend into argument  With this in mind the ultimate aim of the meeting would be to move forward to a formal vote on the issues to be debated, and the Chairman should ensure that this happens with the consent of the meeting.\r\n\r\nIn all matters, including points of order as well as more general questions, the Chairman’s decision should be considered final. In order to ensure that this decision is properly informed, and therefore more likely to be accepted, shareholders and others present should have the opportunity to put their opinion on any matter and the Chairman should take these opinions into account when making any final determination.\r\n\r\n<strong>The Chairman’s Script</strong>\r\n\r\nThe best way for management to assist the Chairman in this complicated task, especially if the Chairman may not have had prior experience of running meetings, is to ensure that the Chairman is fully briefed on the agenda and the procedure for conducting the meeting in line with the Company’s constitutional documents. It is common practice for the company secretary (or the general manager or in-house lawyer), to prepare a chairman’s script. This would include opening and closing statements, a statement of the resolutions to be proposed, as well as a summary of the voting process.\r\n\r\n<strong>Votes of Shareholders</strong>\r\n\r\nThe CCL provides that for an LLC, votes on resolutions are valid if passed by the majority of shareholders present in person and those represented at the meeting (subject to the memorandum of association providing for a higher majority). Consequentially for a chairman of the meeting resolutions should be taken by way of a show of hands. In all cases, the Chairman’s declaration as to whether a resolution has been passed is conclusive evidence that it has been passed. The record of the shareholders’ vote should be the subject of a clear record in the minutes of meeting which should set out the shareholders present and represented and those that voted in favour of the resolution, as well as shareholders who voted against or abstained.\r\n\r\n<strong> Adjournment of a Meeting</strong>\r\n\r\nThe CCL provides that an adjournment of a meeting may only take place if the originally convened meeting is not quorate.  For an LLC this requires 75% or more of the share capital to be present or represented. At the adjourned meeting this requirement drops to 50% or more of the share capital and at any further reconvened meeting following a second adjournment the quorum will be whatever members are present.\r\n\r\nCrucially, at any meeting, the votes of those members present will be valid and consequentially shareholders with a significant interest in a company, represented by a relatively large proportion of the share capital, should ensure that their interests are at least represented at any meetings of shareholders, to ensure that those interests are not compromised by resolutions being passed in their absence.\r\n\r\n<strong>Formalisation of Process in the Memorandum of Association </strong>\r\n\r\nThe processes set out above expand on, and are informed by, the provisions of the CCL which are relatively brief when it comes to this important topic.\r\n\r\nIn our view the best and most effective way of ensuring good corporate governance at shareholder level, as well as ensuring shareholder meetings are conducted efficiently, is to embed more comprehensive and suitable provisions into the memorandum of association of the company. A well drafted and comprehensive set of provisions detailing how meetings should be held and run will ensure that an accurate point of reference is available which will assist the Chairman in ensuring that meetings can be conducted with the minimum of disruption arising from questions as to the validity of a decision or point of order.\r\n\r\nThe level of detail will depend on the number, and interests, of stakeholders in the business, but in every case those interests are best served by clarity.'),
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	(96831,5260,'_content','field_59b649b5c8b2b'),
	(96832,5260,'lawUpdateArticleMonth','5256'),
	(96833,5260,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(96834,5260,'content_description','The long awaited new UAE Federal Commercial Companies’ Law was finally enacted on 25 March 2015 (Federal Law No. 2 of 2015, the “New Law”) and entered into force on 1 July 2015.'),
	(96835,5260,'_content_description','field_59b641c07f473'),
	(96836,5260,'pageSummary','The long awaited new UAE Federal Commercial Companies’ Law was finally enacted on 25 March 2015 (Federal Law No. 2 of 2015, the “New Law”) and entered into force on 1 July 2015.'),
	(96837,5260,'_pageSummary','field_59e59b307dec8'),
	(96838,5260,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/november-6/article-279-of-the-new-uae-federal-commercial-companies-law-limits-on-the-size-of-a-sell-down-offeri.html'),
	(96839,5260,'_currentURL','field_59d35123ab1e7'),
	(96840,5260,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Mohamad Nizam'),
	(96841,5260,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(96842,5260,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','m.nizam@tamimi.com'),
	(96843,5260,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(96844,5260,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(96845,5260,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(96846,5260,'lawUpdateArticleNoWriters','1'),
	(96847,5260,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(96848,5260,'_yoast_wpseo_metadesc','The long awaited new UAE Federal Commercial Companies’ Law was finally enacted on 25 March 2015 (Federal Law No. 2 of 2015, the “New Law”) and entered into force on 1 July 2015.'),
	(96806,5259,'_content','field_59b649b5c8b2b'),
	(96807,5259,'lawUpdateArticleMonth','5256'),
	(96808,5259,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(96809,5259,'content_description','His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice-President and Prime Minister has issued, in his capacity as Ruler of Dubai, Law No. 21 for 2015 regarding the new fees of the Dubai Court (the “New Law”). \r\n'),
	(96810,5259,'_content_description','field_59b641c07f473'),
	(96811,5259,'pageSummary','His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice-President and Prime Minister has issued, in his capacity as Ruler of Dubai, Law No. 21 for 2015 regarding the new fees of the Dubai Court (the “New Law”).'),
	(96812,5259,'_pageSummary','field_59e59b307dec8'),
	(96813,5259,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-11/november-6/an-overview-of-law-no-21-for-2015-establishing-the-judicial-fees-before-the-dubai-courts.html'),
	(96814,5259,'_currentURL','field_59d35123ab1e7'),
	(96815,5259,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Hiam Al Muhtadi'),
	(96816,5259,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(96817,5259,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','h.almuhtadi@tamimi.com'),
	(96818,5259,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(96819,5259,'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation',''),
	(96820,5259,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(96821,5259,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Marwa El Mahdy'),
	(96822,5259,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(96823,5259,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','m.elmahdy@tamimi.com'),
	(96824,5259,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','field_59e59afcd15de'),
	(96825,5259,'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation',''),
	(96826,5259,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(96827,5259,'lawUpdateArticleNoWriters','2'),
	(96828,5259,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(96829,5259,'_yoast_wpseo_metadesc','His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice-President and Prime Minister has issued, in his capacity as Ruler of Dubai, Law No. 21 for 2015 regarding the new fees of the Dubai Court (the “New Law”).'),
	(96830,5260,'content','November 2015\r\n\r\n<hr />\r\n\r\nOne of the main objectives of the New Law was to boost IPO activities in the UAE and align UAE capital markets, to the extent possible, with international standards and practices. Hence, most of the key amendments and increments of the New Law were focused in the chapters relating to public offerings and public joint stock companies. The new provisions aim to provide more comfort to investment banks and issuers, facilitate the offering process and enhance corporate governance practices of public joint stock companies.\r\n\r\nInterestingly, however, Article 279 of the New Law does not appear to be consistent with the liberal spirit and objectives of the New Law. This article will briefly shed the light on the implications of Article 279 on future IPOs, in particular those which will be structured as secondary offerings or a combination of both primary and secondary offerings.\r\n\r\nBy way of background, public offerings may take one of three forms: primary, secondary and a combination of both. A primary offering is essentially the offering of new shares in a company by way of capital increase. The proceeds of a primary offering are usually used to finance the company’s operations and expansion. A secondary offering is one where one or more of the founding shareholders in a company sell a portion of their stake in the company, without increasing the capital of the company in question. It is simply a sale of shares to the public whereby the selling shareholders collect the proceeds of the sale. Hence, a secondary offering offers a viable exit option to the selling shareholder(s). Other offerings may be structured to combine both a primary and secondary offering.\r\n\r\nThe rules and regulations of financial markets sometimes set a number of restrictions and limitations on the selling shareholders in secondary offerings, and these limitations include a limitation on the number or percentage of sale shares. In this regard, Article 279 of the New Law provides:\r\n<ul>\r\n 	<li>“Subject to the provisions of Article 117/2 of this Law, a company proposing to be converted into a Public Joint Stock Company may sell by way of public subscription 30% maximum of its share capital upon assessment in accordance with the provisions of Article 118 of this Law.</li>\r\n</ul>\r\n<ul>\r\n 	<li>The Chairman of the Authority shall issue a Resolution including the conditions and procedures for the sale of part of the shares of the company upon its conversion”</li>\r\n</ul>\r\nPut simply, under the New Law, in a secondary offering, selling founders may not sell shares to the public in excess of 30% of the issued capital of the company.\r\n\r\nSuch limitation may have negative implications on the appetite of investors to explore an IPO exit option in the future which will consequently impact the UAE capital markets.  In fact, such limitation may inevitably push selling shareholders to look for other financial markets and listing venues to sell their shares. Therefore, and contrary to the objectives behind the New Law, particularly in respect of the leadership of the UAE financial market in the GCC region, Article 279 may end up undermining the position of the UAE when compared to other financial markets.\r\n\r\nThe issue of secondary offerings was not addressed under the old Commercial Companies’ Law (Federal Law No. 8 of 1984); only primary offerings were permitted with a cap of 80%. Under the New Law, the size of primary offerings was capped at 70% of the share capital of the company; while secondary offerings were capped at 30%. This variation in the sizes of the primary and secondary offerings under the New Law may not necessarily be justified.\r\n\r\nAs a note of interest, we should bear in mind that the selling shareholders are subject to a two years lock-up period. As a result, selling shareholders will not be able to sell any additional shares in the company for two years following the offering. Therefore, the limitation of Article 279 materially dilutes the purpose of a secondary offering.\r\n\r\nOne may argue that the limitation set out by Article 279 is justified on the basis that there is a need to protect public or non-sophisticated investors by requiring the selling founders to maintain their control of the company. According to this point of view, forcing the selling shareholders to keep 70% of the share capital grants the public more comfort and assurance that the selling shareholders will remain locked in and continue to be responsible for the management of the company. This argument seems to have its underlying rationale, but the question remains why this limitation is not applicable to primary offerings as well. Public investors are worth protecting in both offerings. In all cases, protection of investors could be achieved by many ways depending on various factors including, inter alia, the size of the company’s business, its financial position and business track record and feasibility.\r\n\r\nIn order to circumvent the limitation in question, some shareholders, who are still keen to list their shares on a UAE stock exchange, may consider carrying out a dual listing, in order to sell more than 30% of the share capital. A dual listing of shares is a process whereby a company lists its shares on a foreign stock exchange in addition to its domestic exchange. In our case, the selling shareholders, instead of listing their shares on a UAE stock exchange only, will first sell their shares on another financial market which allows a sale exceeding the 30% ceiling. Then will follow it by a listing on a UAE stock exchange. As the rules of the “main” market will apply, the selling founders will be able to trade in more than 30% on the UAE market. However, going through the dual listing route is not time and cost efficient and will always be associated with arbitrage, as listing on two different markets might entail different share prices, exchange rates, trading times and liquidity rates etc.\r\n\r\nTo protect public investors and facilitate secondary offerings in the UAE, it would be more useful and effective if, instead of fixing a limit on the percentage of shares that can be sold in a public offering, a free float minimum requirement was set (ie. the minimum percentage that has to be sold to and held by the public). The determination of the offering size could be determined at the regulator’s (ie. in the UAE, the Securities &amp; Commodities Authority) and the market authority’s discretion, in light of the size of the company, its type of business, market conditions, the investor’s risk appetite and the post-IPO guaranties provided by the selling shareholders etc. Despite the risk of this discretion being exercised arbitrarily, which is inherent in such a solution, this method may be best suited to serving both the selling founder’s and investor’s interests.'),
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	(96805,5259,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe New Law regulates the fees required by the courts of Dubai for legal proceedings presented to the courts and is effective from 1 September 2015.\r\n\r\nThis article provides an overview of some of the key amendments enacted by the New Law.\r\n\r\n<strong>Scope of New Law</strong>\r\n\r\nThe Law enumerates several changes in the court fees for claims and petitions, examples of which include the fee for an attachment application which was capped at AED 15,000 and is now calculated as 50% of the main action fees. Another example is the court fee for filing a case which was calculated as a percentage (7.5%) by reference to the monetary value of the claim and capped at AED 30,000. This cap has increased to AED 40,000.\r\n\r\nThe provisions of the New Law are not applicable to claims filed before the courts prior to its enforceability and fees which were partially or entirely deferred during the course of litigation. In this case, the fees due at the time of registration of the claim will be applicable.\r\n\r\nAll other legislation or rules in contravention of the New Law now stand superseded. The New Law further repealed the Court Fees Law No. 1 of 1994 and Regulation No. 2 of 1992 concerning Appeal Registration Fees in Criminal Cases.\r\n\r\n<strong>Court of First Instance Fees</strong>\r\n\r\nThe New Law provides the basis for calculating court fees in claims for both specified and unspecified amounts before the Dubai Court of First Instance. A fee of 6 % of the value of the claim will be applied for civil cases and civil actions affiliated to criminal cases (excluding personal status cases) provided that the result of this calculation does not fall below AED 500. The applicable fees before the Court of First Instance are set out below:\r\n\r\n<strong>Court of Appeal Fees</strong>\r\n\r\nAccording to article 29(a) of the New Law, appeals against judgments issued in claims other than personal status matters will be calculated as 50% of the fee collected before the Court of First Instance on the following basis:\r\n<ul>\r\n 	<li>If the appeal is possible for the entire challenged judgment, the full due fee shall be due.</li>\r\n 	<li>If the appeal is possible for a part of the challenged judgment, the fee shall be collected based on the value of the part of the challenged judgment.</li>\r\n 	<li>If there are several appellants and the judgment is issued jointly and severally, the fee shall be collected only once from the party which filed the appeal first.</li>\r\n 	<li>If there are several appellants and the judgment is not issued jointly and severally against the parties, an independent fee shall be collected for each appeal whether the appellants file one or several appeals.</li>\r\n 	<li>25% of the collected fee in the first instance stage shall be collected if the appeal is possible for a judgment issued in a subject matter which does not end the dispute but results in ceasing the progress of the claim.</li>\r\n</ul>\r\n<strong>General Provisions</strong>\r\n\r\n<em>1. Committee for Deferral and Exemption from Judicial Fees </em>\r\n\r\nArticle 10 of the New Law introduces the formation of a committee to decide on applications for entire or partial exemption or postponement of court fees (the “Committee”). A resolution will be issued by the Director General of the Dubai courts to identify the Committee’s scope, method of work, legal quorum of its meetings and decision making. The Committee’s decisions are final and may not be subject to appeal.\r\n\r\n<em>2.   Effect of Postponement and Exemption from Fees</em>\r\n\r\nIn the event an exemption or postponement is approved by the Committee, such exemption or postponement will include all the fees due for all stages of the litigation as well as any insurance deposit and any other amounts stipulated by the New Law or the applicable legislation. This is applicable even if the claim filed by the party in whose favor the exemption or postponement was granted, dismissed or rejected. If the Committee grants the party with the exemption or deferment, the applicable court fees and insurance deposits will be payable by the judgment debtor.\r\n\r\nIf the court ruled to dismiss or reject a claim brought by the party in whose favor a postponement decision was issued by the Committee, such party will be directed to pay the relevant court fees and applicable insurance deposits.\r\n\r\n<em>3.  Exemption from Court Fees </em>\r\n\r\nArticles 8 and 9 of the New Law determine the types of cases and entities/persons that are either exempted or are not subject to payment of court fees.\r\n\r\nArticle 8 provides that the following claims, requests and challenges are not subject to the fee structure set out in the New Law:\r\n<ul>\r\n 	<li>Claims, challenges and requests submitted by ministries, federal governmental entities and local governmental entities of Dubai or any other Emirate</li>\r\n 	<li>Challenges of judgments issued in respect of alimony</li>\r\n 	<li>The bankruptcy trustee’s deposit of proceeds to the benefit of the bankruptcy</li>\r\n 	<li>Amounts deposited by bidders of the price of the real estate</li>\r\n 	<li>The amounts deposited by the ministries, federal or local governmental entities towards liabilities of concerned persons</li>\r\n 	<li>Claims concerning charity endowments, grants, wills dedicated for philanthropy if such claims were submitted by these parties</li>\r\n 	<li>Requests of declaration or proof of Islam</li>\r\n 	<li>Attestation of social care applications</li>\r\n 	<li>Death and inheritance declaration applications</li>\r\n</ul>\r\nArticle 9 enumerates the following categories of claims and requests that are exempted from the New Law:\r\n<ul>\r\n 	<li>\r\n<ul>\r\n 	<li>Claims, challenges, and requests pertaining to the UAE Labour Law (Federal Law No. 8 of 1980) where the value of the claim does not exceed AED 100,000. The Law states that if a judgment issued in a labour case directs a party to pay costs and fees, the court fees will be calculated based on the judgment amount. If the claim amount exceeds AED 100,000 the value of the court fees will be calculated at 5% of the claimed amount provided that the fees do not exceed AED 20,000.</li>\r\n</ul>\r\n</li>\r\n</ul>\r\n<ul>\r\n 	<li>\r\n<ul>\r\n 	<li>Victims of domestic violence by virtue of a resolution issued by the Committee based on the request of the Dubai Foundation for Women and Children.</li>\r\n</ul>\r\n</li>\r\n</ul>\r\n<ul>\r\n 	<li>\r\n<ul>\r\n 	<li>Cases in which the Committee decides on exemption from court fees in accordance with the directives of the director general of Dubai courts in coordination with the financial department of the court.</li>\r\n</ul>\r\n</li>\r\n</ul>\r\n<em>4.  Payment of Court Fees</em>\r\n\r\nAccording to article 3 of the New Law, claims or petitions will only be considered following full payment of the due fees, unless a resolution for partial or full exemption or deferment is issued by the Committee.\r\n\r\nAny disputes regarding the quantum of fees shall be referred to the chief of the competent court whose decision shall be final and irrevocable. The court, however, may re-consider the amount of fees to be paid (article 4 of the New Law).\r\n\r\nIf during the course of the proceedings (before reserving the case for judgment) the competent court finds that the paid court fees do not commensurate with the final claims and are less than the due fees or that the fees were collected against the provisions of the Law, the court shall order the plaintiff to pay the difference of the fees during a time frame specified by the court. Otherwise, the court shall dismiss the claim (article 5 of the New Law).\r\n\r\nHowever, if the case was reserved for judgment, the court shall order the plaintiff to pay the difference in the fees in its ruling.\r\n\r\nIf it was discerned from the judgment to be executed that there is a difference between the claimed amount upon which the fees were calculated, and the adjudicated amount, such judgment will not be conferred with the writ of execution until payment of the difference in fees is made.\r\n\r\nIn the event the judgment creditor does not obtain the writ of execution within 60 days from the date of the judgment as a result of non-payment of the difference in fees, the judgment debtor will then be obliged to remit the difference in the court fees through an order from the chief of the court which shall be executed in the same manner as a writ of execution.\r\n\r\n<em>5. Costs of the Proceedings</em>\r\n\r\nArticle 13 of the New Law states that the party who is ordered to pay the costs of the proceedings is also obliged to pay the court fees. Article 13 further provides that a judgment debtor who is ordered to pay the court fees may object or challenge the quantum before the chief of the competent court within 8 days from the date the debtor is notified of the execution proceedings.\r\n\r\n<em>6. Notification Fees</em>\r\n\r\nThe party who requests for notification to be affected through private process servers shall bear the full expenses and costs for such notifications.\r\n\r\n<em>7. Centre for Amicable Settlement of Disputes </em>\r\n\r\n50% of the applicable court fees will be due upon registration of a dispute before the Centre for Amicable Settlement of Disputes and the remainder will be due upon referring the case to the competent court of first instance.\r\n\r\n<em>8.  Execution Fees </em>\r\n\r\nThe New Law provides a fee threshold between AED 200 - AED 5,000 for the execution stage of court proceedings.\r\n\r\nIt is pertinent to mention that the former practice of the Dubai Court was for court fees to be payable for opening an execution file to enforce a court judgment only, without the requirement of paying additional fees for filing applications or requests in the execution stage. However, the New Law sets out fees payable for applications and petitions filed in execution proceedings, examples of which include AED 300 for a travel ban order and AED 200 for an arrest order.\r\n\r\n<em>9. Fixed Fees</em>\r\n\r\nSchedule 1 of the New Law sets out fixed fees for several claims and requests, such as AED 1,000 for the appointment of arbitrators and AED 500 for the validity of an attachment order.\r\n\r\n<em>10. Court fees for several requests in the claim </em>\r\n\r\nIf all requests are specified in value and are based on one cause of action, the court fees will be estimated based on the aggregate amount of all the requests. If all requests are specified in value but based on different causes of action, the court fees will be estimated according to the value of each request separately.\r\n\r\nIf the claim included an original and alternative request, the higher estimation of the requests will be applicable. Additional requests will be added to the original request and the fees will be estimated based on the aggregate of the original and additional requests together.\r\n\r\nIf the claim includes requests which are of unspecified amounts, the fee shall be collected based on the value of each of them separately if they are based on different causes of action. The court fees will be estimated according to the value of each request separately.\r\n\r\nIf one claim consists of requests specified in value and requests that are not specified in value, the court fees will be estimated according to the value of each request separately.\r\n\r\n<em>11.  Mortgage Claims </em>\r\n\r\nArticle 23 of the New Law provides that court fees related to the validity, revocation, termination, annulment of the mortgage or the approval for selling the mortgaged object or any other right related thereto, will be based on the value of the mortgage. However, from our recent experience with the Dubai courts in a mortgage foreclosure claim, the court fee for enforcing a foreclosure application remains capped at AED 5,000.\r\n\r\nWe trust that this article acts as a useful overview of some of the amendments to the structure of court fees before the Dubai court.'),
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	(96804,5258,'_yoast_wpseo_metadesc','At the top of the federal court system is the Federal Supreme Court. For the purpose of this article, we shed some light on some of these matters.'),
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	(96786,5258,'content_description','Overview of UAE Court Structure \r\n'),
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	(96782,5258,'content','November 2015\r\n\r\n<hr />\r\n\r\nThe UAE consists of seven emirates, together forming the Union and the UAE as a whole. Accordingly, the Union is considered a federal system for sharing sovereignty between a central governing authority and several different emirates.\r\n\r\nWhen the Union was being formed, the Constitution was drafted to allow for each emirate, in addition to being affiliated to the federal system, to establish its own local courts. This option was sought by three emirates, namely Ras Al Khaimah, Abu Dhabi and Dubai, which have all established their own local courts.\r\n\r\nHowever, there are specific circumstances in which it is mandatory for the Federal Courts in Abu Dhabi to adjudicate on a given matter. For example, a claim against a private company in Abu Dhabi would normally be filed before the local Abu Dhabi Court of First Instance. Where the defendant is a federal body, the claim has to be filed before the Federal Court of First Instance in Abu Dhabi.\r\n\r\nWhether local or federal, all court systems are three-tiered, meaning that there are Courts of First Instance, Courts of Appeal and Courts of Cassation in both systems, as shown in the illustration above.\r\n\r\n<strong>Federal Supreme Court</strong>\r\n\r\nAt the top of the federal court system is the Federal Supreme Court (“FSC”). Normally, the FSC looks into challenges made by litigants to judgments issued by the Federal Court of Appeal. Exclusively, the FSC retains jurisdiction, in certain circumstances, over exhaustive matters that no other type of UAE court could look into. For the purpose of this article, we shed some light on some of these matters.\r\n\r\nArticle 99 of the UAE Constitution states that the FSC shall decide on the following matters:\r\n<ol>\r\n 	<li>Disputes among the member emirates of the UAE, or between any one or more emirates and the federal government, if the dispute is referred to the Court upon the request of any of the concerned parties.</li>\r\n 	<li>The constitutionality of a federal law if it is appealed by one or more emirates on the ground that it is in conflict with the constitution of the UAE. The Court shall also consider the constitutionality of legislation enacted by an emirate if it is appealed by a federal authority on the ground that it is in conflict with the constitution of the UAE or federal laws.</li>\r\n 	<li>The constitutionality of laws, legislations and regulations in general, if it is so requested by any court in the country while hearing a relevant claim. The concerned court shall comply with the judgment of the Federal Supreme Court rendered in this respect.</li>\r\n 	<li>The interpretation of the provisions of the cConstitution, if it is so requested by any federal authority or by the government of any emirate. Any such interpretation is binding on everyone.</li>\r\n 	<li>The accountability of ministers and senior officials of the UAE appointed by Decree for their actions while performing their official duties upon the request of the Supreme Council and in accordance with the relevant law.</li>\r\n 	<li>Criminal cases that directly affect the interests of the UAE, such as crimes relating to the UAE’s internal or external security, forgery of official documents or seals of a federal authority, and counterfeiting of currency.</li>\r\n 	<li>Claims of conflict of jurisdiction between a federal court and the court of an emirate.</li>\r\n 	<li>Claims of conflict of jurisdiction between courts of different emirates. The rules governing these claims shall be regulated by federal law.</li>\r\n 	<li>Any other responsibilities provided in the Constitution or which may be referred to the Federal Supreme Court by a Federal Law.</li>\r\n</ol>\r\nConsequently, and in certain circumstances, any matter touching upon the above issues would be reviewed, exclusively, by the FSC.\r\n\r\nThe following  cases provide some examples of the work of the FSC:\r\n\r\n<strong>Accountability of UAE Minister and Senior Officials / Interpreting the Constitution</strong>\r\n\r\nCase Study 1:\r\n<ul>\r\n 	<li>Criminal action was initiated against a former minister and others for undertaking unlawful courses of action to ultimately embezzle funds owned by the emirate.</li>\r\n 	<li>As the case involved a former minister and accordingly should be reviewed only by the FSC, a preliminary objection concerning lack of jurisdiction was invoked.</li>\r\n 	<li>Applying Article 99(4) of the UAE Constitution, the Federal Court of First Instance issued a preliminary judgement to stay the proceedings and refer the case to the FSC, requesting it to interpret a provision from the UAE Constitution. The provision was the last sentence of paragraph five of Article 99 of the Constitution, which concerns the accountability of ministers and senior officials. This interpretation was a key issue so as to determine which court has jurisdiction of this issue.</li>\r\n 	<li>The FSC noted that, pursuant to Article 99(5), it does have jurisdiction to look into the accountability of ministers and senior officials. However, such jurisdiction is subject to the satisfaction of two conditions. The first one is to initiate such proceedings by virtue of an application from the UAE Supreme Federal Council. The second condition is to issue a private law concerning the accountability of ministers and senior officials of the Union.</li>\r\n 	<li>As the foregoing two conditions were not satisfied in this case, the FSC interpreted Article 99(5) of the Constitution as being inapplicable to the facts of this case. Thus, the Federal Court of First Instance had full jurisdiction to review this case.</li>\r\n</ul>\r\n<strong>Crimes relating to UAE’s security</strong>\r\n\r\nPhotographing restricted areas without approval\r\n\r\nCase Study 2:\r\n<ul>\r\n 	<li>Two persons were arrested by a police officer in  Fujairah while taking pictures of the Fujairah Airport and the airplanes located there. They confessed that they were attempting to enter the airport to take photographs and that, although they saw a sign prohibiting taking pictures, they chose to ignore it.</li>\r\n 	<li>As such acts constitute criminal conduct under the UAE Criminal Law No. 3 of 1987 as amended, the two persons were accused of the same and released on bail pending the completion of the case.</li>\r\n 	<li>Although the crimes were committed in the Emirate of Fujairah, which normally means that the Fujairah Criminal Court would possess jurisdiction to review the case, the case was transferred to the FSC for jurisdictional purposes.</li>\r\n 	<li>The above crimes are classified as ones relating to state security, which fall under Article 99(6) of the Constitution, giving the FSC exclusive jurisdiction to decide on their merits.</li>\r\n</ul>\r\nCase Study 3:\r\n<ul>\r\n 	<li>Similarly to the preceding case, a person took photographs without prior approval from the relevant authority and saved them on his mobile phone. This time, the photographs were of the premises of the UAE military.</li>\r\n 	<li>Criminal proceedings were initiated by the Abu Dhabi Public Prosecution and referred to the Abu Dhabi Criminal Court.</li>\r\n 	<li>The Criminal Court dismissed the case for lack of jurisdiction and referred it to the Military Public Prosecution to reinvestigate it.</li>\r\n 	<li>In turn, and upon completion of the investigation process, the Military Public Prosecution referred the case to the FSC who has exclusive jurisdiction over such cases.</li>\r\n</ul>\r\n<strong>Forgery of official seals and documents:</strong>\r\n\r\nCase Study 4:\r\n<ul>\r\n 	<li>This case involved forgery of the seal of the UAE Ministry of Foreign Affairs in Dubai.</li>\r\n 	<li>During the course of the proceedings before the Dubai Criminal Court, lack of jurisdiction was argued by Dubai Public Prosecution.</li>\r\n 	<li>Ultimately, the Dubai Court of Cassation noted that in order for the FSC to have jurisdiction over cases of forgery of official documents and seals, the documents and seals should be issued from one of the federal authorities in the UAE.</li>\r\n 	<li>Article 99(6) of the Constitution refers to the FSC having jurisdiction for crimes involving the forgery of seals of the “federal authorities”. However, the Dubai Court of Cassation noted that Article 45 of the Constitution exhaustively lists the federal authorities for the purpose of the Constitution and that the Ministry of Foreign Affairs is not included in the list, which is as follows:</li>\r\n</ul>\r\n<ol>\r\n 	<li>The Federal Supreme Council.</li>\r\n 	<li>The UAE President and Vice President.</li>\r\n 	<li>The UAE Council of Ministers.</li>\r\n 	<li>The Federal National Council.</li>\r\n 	<li>The Federal Judiciary.</li>\r\n</ol>\r\n<ul>\r\n 	<li>Accordingly, the forgery of the seal of the Ministry of Foreign Affairs is not a crime affecting the interest of the federation as the Ministry of Foreign Affairs is not one of the federal authorities listed under Article 45 of the Constitution. The Dubai Court of Cassation judgment therefore rejected the argument relating to jurisdiction in this regard.</li>\r\n</ul>\r\nHaving a proper understanding of the UAE Court structure and the competencies of each court system is essential before filing any court case, to avoid any dismissal of your case for lack of jurisdiction or the unnecessary prolonging of the case that may occur in some instances.'),
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	(96757,5255,'content_description','Enforcement of a judgment should be the crown jewel of every successful claim. '),
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	(96759,5255,'pageSummary','Enforcement of a judgment should be the crown jewel of every successful claim.'),
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	(96767,5255,'_yoast_wpseo_metadesc','Al Tamimi & Company attempts to discuss the situation of empty judgments, what brings them about, ways to prevent them, as well as some practical recommendation and suggestions from our practice and experience.'),
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	(83942,4579,'_pageSummary','field_59e59b307dec8'),
	(83941,4579,'pageSummary','The Capital Markets Authority Law (“CML”) was issued under Law No.7 for the year 2010 and its subsequent executive regulations (the “Regulations”) were issued in March 2011 and published in the Official Gazette on 13/03/2011.'),
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	(83620,4562,'_yoast_wpseo_metadesc','Introduction: In August 2012, the UAE Securities and Commodities Authority (“SCA”) issued Board Resolution No. 37 of 2012 concerning the rules of investment funds (the “Regulation”), which will become effective upon publication in the Official Gazette.'),
	(83621,4563,'content','The Criminal Courts rule over all crimes under its jurisdictions. The “Shari’a” courts have exclusive jurisdiction in connection with all family law matters.\r\n\r\nThe Government of Qatar has been keen to support and organise its legal system along contemporary lines, therefore its legal system is rooted in the Napoleonic Code which was adopted for the Middle East by Egypt.  Judges are independent and their decisions are taken and implemented in accordance with the law. The court proceedings are open to the public unless the court decides of its own accord or at the request of an interested party to hold them in closed session. if that would best serve the interests of the public or general order. In all cases, sentences are pronounced in public sessions. Arabic is the official language in the courts of law in Qatar, but the courts will also hear evidence given by non-Arabic speakers  and witnesses through an interpreter, who are required to take an oath and obliged to observe all honesty, integrity and sincerity.\r\n\r\nThe courts of justice are divided into the following main categories:\r\n<ol>\r\n 	<li>The Criminal Court which comprises the Lower Criminal Court and the Higher Criminal Court;</li>\r\n 	<li>The Civil Court which comprises the Lower Civil Court and the Higher Civil Court and also contains the Civil Department and Administrative Department;</li>\r\n 	<li>The Court of Appeal which contains three divisions: Criminal, Civil and Administrative; and</li>\r\n 	<li>The Court of Cassation which contains four divisions Criminal, Civil, Administrative and Constitutional.</li>\r\n</ol>\r\nThe Lower Criminal Court hears and decides on cases of minor offences and misdemeanours. It is presided over by a single judge referred to as the lower criminal court judge.\r\n\r\nThe Higher Criminal Court hears and decides on all cases of major crimes as well as appeals filed on sentences issued by the lower criminal court on minor offences. The authorities of this court are vested on a tribunal comprising a judge known as the President of the Higher Criminal Court and two judges as members.\r\n\r\nThe lower Civil Court is composed of a single judge called the lower Civil Court Judge who hears and decides on all civil and commercial cases in which the disputed amounts of money dose not exceed the sum of QAR100,000.\r\n\r\nThe Higher Civil Court hears and decides on all civil and commercial cases were disputed and cases of personal status of non-Muslims. It also acts in an appellant jurisdiction in relation to dispute rulings of the Lower Civil Court. The court is formed of three judges with the senior of them presiding over the court and holding the title of President of the Higher Civil Court. Each of the other two judges holds the title of Higher Civil Court Judge.\r\n\r\nThe Administrative Court determines applications concerning administrative actions and disputes over certain government contracts and decisions. There are two circuits which exclusively hear and decide on the application against administrative actions and disputes over certain government contracts and decisions. The inferior is a circuit in the Court of first instance and is composed of three judges. The superior is the appellate circuit with a similar formation to hear appeals from the decisions of the first instance circuit beside the preliminary jurisdiction to entertain and decide on applications on matters relating to elections of the Shura (consultation) council and central municipal council and review of certain administrative decisions. The objections to the decisions of the administrative circuit of the Court of Appeal may be carried over to the Court of Cassation if the other requirements of the application for Cassation are satisfied.\r\n\r\nThe Court of Appeal is responsible for deciding on the appeals filed against the sentences issued by the Higher Criminal, Civil Courts, and Administrative and Labour Courts, and comprises of three members.\r\n\r\nThe Court of Cassation is the highest court in the Qatari judicial system. It is responsible for deciding on the appeals filed against the judgment issued from the Court of Appeal.\r\n\r\nThe Constitutional Court was established by virtue of Law No. 6 of 2007 and forms a division of the Court of Cassation.\r\n\r\nAt the same time there are a number of specialist tribunals in addition to the court systems, in 2008, the new Lease Law no. 4 of 2008 established a specialist committee presided over by a judge. This tribunal exercises jurisdiction over all rental disputes (residential and commercial) and plays a central role in the day to day business of companies and residents in Qatar. The findings of this tribunal may be appealed to the Court of Appeal.\r\n\r\nIn addition, the QFC Regulatory Authority (QFCRA) regulates financial issues including, banking, insurance, derivatives and securities.  The QFC Regulatory Tribunal (QFCRT) has jurisdiction to hear appeals raised by individuals and corporate bodies against decisions of QFCRA and other QFC institutions.'),
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	(83639,4563,'_yoast_wpseo_metadesc','In Qatar the legal framework is made up of three types of courts, the civil, the Criminal and the Islamic “Shari’a” courts.The civil courts have exclusive jurisdiction over civil, commercial, banking, insurance and maritime matters.'),
	(83640,4564,'content','<p><strong>Background to the Case<br /><br /></strong>In autumn 2004, the Plaintiff was driving along Doha&rsquo;s Salwa Road in a 4x4 vehicle manufactured by a large multi-national car company and purchased from a local dealership in Qatar. Whilst passing over a speed bump, the vehicle&rsquo;s rear axle broke, causing the vehicle to overturn. The Plaintiff&rsquo;s wife and daughter, who had been passengers in the vehicle at the time of the accident, died at the scene.<br /><br /><strong>The Case at First Instance<br /><br /></strong>The Plaintiff filed a civil case with the Court of First Instance (&lsquo;CFI&rsquo;) in Qatar in October 2005, naming the vehicle&rsquo;s foreign manufacturer and the local distributor as Co-Defendants to the action. The Plaintiff&rsquo;s claim sought compensation in the amount of $25 million for all damage arising as a result of the accident, which it was alleged was caused by a defect in the vehicle&rsquo;s rear axel.<br /><br />The CFI refused to hear the Plaintiff&rsquo;s claim on the basis that the prescription period set out in Article 266 of the previous iteration of Qatar&rsquo;s Civil Code (Law No. 16 of 1971) applied and the Plaintiff had not filed his claim timely in accordance with that Law. Article 266(1) states that, in the absence of a contrary agreement between the parties, the right to claim on foot of a guarantee in relation to defects shall lapse upon the expiration of one year from the date of delivery of the product to the purchaser, irrespective of whether the defect was latent and was not apparent to, or discovered by, the purchaser until a later date. However, Article 266(2) sets out an exception whereby the aforementioned prescription period shall not apply if it can be established that the seller intended deliberately and deceitfully to conceal the defect.<br /><br />[Although the 1971 Law has since been replaced by a new Civil Code (Law No. 22 of 2004), its provisions nonetheless continue to have application in respect of rights and obligations arising prior to the enactment of the new Law. In any event, the provisions of Article 266 are quoted verbatim in Article 462 of the new Civil Code.]<br /><br /><strong>Ruling of the Court of Appeal<br /><br /></strong>In 2006, the Plaintiff appealed the decision of the Court of First Instance to the Court of Appeal. The appellate court ordered the preparation of an expert report but nonetheless, in a judgment delivered in March 2011, affirmed the finding of the lower court that the Plaintiff&rsquo;s claim was time-barred.&nbsp;<br /><br /><strong>Judgment of the Court of Cassation<br /><br />I</strong>n May 2011, the Plaintiff lodged a further appeal with the Court of Cassation.<br /><br /><strong>The Plaintiff&rsquo;s Arguments</strong><br /><br />The Plaintiff sought to evade the application of the prescription period on two fronts:<br /><br />(i)&nbsp;The Plaintiff contended that his right to be awarded the compensation sought had resulted from a fault in the manufacturing of the vehicle so fundamental that its deliberate concealment and/or the failure to disclose its existence to the Plaintiff at the time of purchasing the vehicle amounted to fraud; thus coming within the exception set out at Article 266(2).<br /><br />(ii)&nbsp;In the alternative, the Plaintiff argued that the liability of the Co-Defendants was tortious, rather than contractual in nature, and therefore, the prescription period did not apply.<br /><br /><strong>The Court&rsquo;s Decision<br /><br /></strong>The Court decided that the Plaintiff was entitled to have his claim heard and that Article 266(1)&rsquo;s time-bar provision did not apply in the circumstances. In so ruling, the Court made the following observations in relation to the nature of the relationship between the parties and the nature of the liability in this case:<br /><br />(i)&nbsp;The Contractual Link<br /><br />The Court opined that passenger vehicles are sold subject to an implied warranty as to merchantable quality &ndash; that is, that they are free from manufacturing defects &ndash; and this guarantee creates a direct contractual nexus between the manufacturer and the initial purchaser, in this case the local distributor. The Court went further in stating that this guarantee passes by assignation and inures to the benefit of any subsequent owners, such as the Plaintiff. Thus, the Court found that the link between the parties in this case was contractual and not tortious; the Plaintiff&rsquo;s privity of contract with the manufacturer, and his resultant right to pursue a claim in relation to the defect against the manufacturer directly, derived from the manufacturer&rsquo;s guarantee to the distributor in respect of manufacturing defects, which was passed on to the Plaintiff by virtue of the contract he had entered into with the local distributor.<br /><br />(ii)&nbsp;The Presence of Fraud<br /><br />The Court had reference to an expert report which found that a manufacturing defect caused the rear axel in the Plaintiff&rsquo;s vehicle to break and that this defect could not have been discovered by the Plaintiff but for the occurrence of the accident. It was the opinion of the Court that vehicle manufacturers have a responsibility to perform the industry-standard quality control checks on each vehicle prior to releasing it for sale. The Court held that if component part of the vehicle which is critical to its structural and mechanical soundness, such as an axel, fails during its operation, serious defects must have existed at the manufacturing stage; and the failure to discover, or concealment of, such defects amounts to fraud sufficient to negate the prescription period set out in Article 266(1).<br /><br />The Court of Cassation overturned the judgment of the Court of Appeal and remitted the case to the lower court for fresh determination by a newly-convened three-Judge panel.<br /><br /><strong>Comment<br /><br /></strong>This case imposes significant obligations on vehicle manufacturers to conduct thorough investigations of vehicles and their components prior to their entry into the marketplace, as any significant misstep in the discovery and/or disclosure of defects may be considered fraudulent and may prevent a manufacturer from relying on the prescription period now enshrined at Article 462 of the Civil Code 2004.<br /><br /><strong>Please note:<br /><br /></strong>Al Tamimi &amp; Company did not provide legal representation to any of the parties to this litigation.</p>'),
	(83641,4564,'_content','field_59b649b5c8b2b'),
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	(83644,4564,'content_description','A recent decision of the Court of Cassation in Qatar has significant implications for manufacturers of passenger vehicles and their local distributors in this jurisdiction.'),
	(83645,4564,'_content_description','field_59b641c07f473'),
	(83646,4564,'pageSummary','A recent decision of the Court of Cassation in Qatar has significant implications for manufacturers of passenger vehicles and their local distributors in this jurisdiction.'),
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	(83648,4564,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-6/september-2/qatar-defects-liability-manufacturers-warranties-and-prescription-periods.html'),
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	(83650,4564,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Sarah Kelly'),
	(83651,4564,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(83652,4564,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','s.kelly@tamimi.com'),
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	(83658,4564,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','410'),
	(83659,4564,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(83660,4564,'lawUpdateArticlePractices','1'),
	(83661,4564,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(83662,4564,'_yoast_wpseo_metadesc','A recent decision of the Court of Cassation in Qatar has significant implications for manufacturers of passenger vehicles and their local distributors in this jurisdiction.'),
	(83663,4565,'content','<p>There are two court systems in the UAE: Federal and Local. In 1971 when the federation was formed, a federal judicial structure was established to deal with civil and criminal matters within the UAE. However, two of the emirates, Dubai and Ras Al Khaimah, have remained outside the federal structure and maintained their own independent judicial systems.<br /><br />The federal court system applies in the emirates of Sharjah, Ajman, Umm Al Quwain and Fuijarah. Each of these emirates has its own federal courthouse which houses the court of first instance and appeal court. The Federal Supreme Court is located in Abu Dhabi and hears all appeals from the appeal courts of the emirates which fall within the jurisdiction of the federal court system.<br /><br />A local court system applies in Abu Dhabi, Dubai and Ras A Khaimah. Each of these emirates has its own local courts with first instance, appeal and cassation divisions that hear cases within their jurisdiction. Consequently there are four high courts in UAE: the Federal Supreme Court, the Abu Dhabi Cassation Court, the Dubai Cassation Court and the Ras Al Khaimah Cassation Court. These high courts represent the final stage of the appeals process and rule only on matters of law. In view of this framework, understanding the jurisdiction of the UAE Federal and Local Courts to hear disputes is essential prior to the filing of a claim by a potential litigant. <br /><br />Article 31 of the UAE Civil Procedure Law (&ldquo;CPL&rdquo;) identifies several factors which need to be considered in determining whether the courts of a particular emirate will have jurisdiction in relation to a dispute. It is important to note that other than in the circumstances stipulated in Article 32 of the CPL, parties can agree to empower another court to hear their dispute unless public policy considerations prevent this. For example, with respect to proceedings relating to real estate (dealt with in Article 32 of the CPL), parties cannot nominate a court other than the court which has original jurisdiction over the location of the real estate that forms the subject matter of the proceedings. This is a matter of public policy.<br /><br /><strong>Article 32 of the CPL stipulates that:</strong></p>\r\n<p>&ldquo;With regard to actions in rem concerning real estate or possession, if the subjects are located within the jurisdiction of various courts, competence lies with a court within the jurisdiction of which the property or some part thereof is located.<br /><br />In personal real estate actions, competence lies with the court within the jurisdiction of which the real estate or the address of the defendant is located.&rdquo;<br /><br />Apart from the Dubai International Financial Centre free zone (&ldquo;DIFC&rdquo;), the free zones in Dubai do not have separate jurisdiction and are subject to the jurisdiction of the regular Dubai Courts. The DIFC, which was established in 2002 by Dubai Law No. 3 of 2002, has its own separate legal system. As part of the establishment of the DIFC, the DIFC Courts were created pursuant to Dubai Law No. 12 of 2004 (as amended recently by Dubai Law No. 16 of 2011), which is often referred to as the &ldquo;Judicial Authority Law&rdquo;. The Judicial Authority Law established the Judicial Authority at the DIFC, sets out the jurisdiction of the DIFC Courts and protects the independent administration of justice in the DIFC. The DIFC Law No. 9 of 2004 outlines the powers, procedures, functions and administration of the DIFC Courts.<br /><br />Until October 2011, the DIFC Courts were not an &ldquo;opt in&rdquo; jurisdiction. Their jurisdiction was limited to civil or commercial cases and disputes that fell within one of the four jurisdictional gateways set out in Article 5A(1) of the Judicial Authority Law. Where the DIFC Courts had jurisdiction, the jurisdiction of the Dubai Courts was specifically excluded, except in relation to criminal and matrimonial matters. In order for a dispute to fall within the DIFC Courts&rsquo; jurisdiction, there had to be a connection to the DIFC. This connection could have related to the subject matter of the dispute, the location of the parties involved and/or the transaction concluded by the parties.&nbsp;</p>\r\n<p>This arrangement changed on 31 October 2011 with the signing of Dubai Law No 16 of 2011 (&ldquo;New Law&rdquo;), which amended the jurisdictional limitations in the Judicial Authority Law. Article 5A(2) of the New Law now permits contracting parties to agree clearly and expressly in writing to refer their civil and commercial dispute to the DIFC Courts, even where they or their contract have no other connection to the DIFC (and as long as no final judgment has been issued by another court).&nbsp;<br /><br />Moreover, if a dispute has already arisen it can still be resolved in the DIFC Courts if both parties agree to have it heard there. In other words, parties, regardless of where they are located, are now free to &ldquo;opt in&rdquo; to the jurisdiction of the DIFC Courts and select it as the forum to hear and rule on their dispute.&nbsp;&nbsp;<br /><br />Where parties have not agreed clearly and expressly in writing to refer their dispute to the jurisdiction of the DIFC Courts, the DIFC Courts still maintain exclusive jurisdiction in relation to civil and commercial cases falling within one of the (now) five jurisdictional gateways set out in Article 5A(1) of the New Law:<br /><br />(a)&nbsp;civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;</p>\r\n<p>(b)&nbsp;civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalized or performed within the DIFC or that will be performed or is supposed to be performed within the DIFC pursuant to express or implied terms stipulated in the contract;</p>\r\n<p>(c)&nbsp;civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within the DIFC and is related to DIFC activities;</p>\r\n<p>(d)&nbsp;appeals against decisions or procedures made by DIFC Bodies where DIFC Laws and DIFC Regulations permit such appeals; or</p>\r\n<p>(e)&nbsp;any claim or action over which the DIFC Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations.</p>\r\n<p>Cases are therefore clearly within the DIFC Courts&rsquo; exclusive jurisdiction if they either fall within one of the five jurisdictional gateways in Article 5A(1) of the New Law or because contracting parties have expressly agreed to submit to the DIFC Courts&rsquo; jurisdiction. Alternatively, cases clearly fall outside the jurisdiction of the DIFC Courts where neither the parties, nor their contract, have anything to do with the DIFC and the parties have not expressly selected this jurisdiction as permitted under the New Law. Between these two categories there may be borderline cases where issues as to the DIFC Courts&rsquo; jurisdiction are raised and the relationship between the DIFC Courts and the regular Dubai Courts requires further clarification.<br /><br /><strong>Practice in the Dubai Courts<br /><br /></strong>In one case Al Tamimi &amp; Company was instructed to act for the sellers of properties (&ldquo;Defendants&rdquo;) and for a third party joined to the proceedings by the Purchaser (&ldquo;Claimant&rdquo;).&nbsp; The Claimant applied for an order from the regular Dubai Courts:</p>\r\n<ul>\r\n<li>validating and enforcing a Sale and Purchase Agreement concluded between parties on 15 April 2008 (&ldquo;SPA&rdquo;) in respect of shops A, B, C and D (&ldquo;Shops&rdquo;) and ordering the Defendants to hand over the Shops; and</li>\r\n<li>requiring the Defendants to pay the Claimant jointly and severally an amount of AED 19.4m and compensating him for the loss of profits that he suffered together with 9% interest starting from the due date.</li>\r\n</ul>\r\n<p><strong>Facts of the claim<br /><br /></strong>The Claimant argued that on 15 April 2008 he purchased the Shops for AED 34.1m (the &ldquo;Price&rdquo;). The Claimant further argued that an additional amount of AED 3.48m was paid as due under the SPA. The Claimant also alleged that the Defendants had refrained from both the registration of the SPA and from the handover of the Shops because they intended to sell the Shops to a third party as their value had increased to more than AED 50m.<br /><br />During the proceedings before the Court of First Instance, the Claimant filed an application requesting the Court to join a third party to the proceedings. The Claimant argued that the UAE courts had jurisdiction to hear the case pursuant to Dubai Law No. 13 of 2008 regulating the Interim Real Estate Register in the Emirate of Dubai (&ldquo;Law No. 13 of 2008&rdquo;). The Defendants, however, mounted a jurisdictional challenge seeking the dismissal of the case on the basis that the Shops were located in the DIFC. They argued that any disputes relating to the Shops fell within the exclusive jurisdiction of the DIFC Courts.<br /><br /><strong>Court of First Instance<br /><br /></strong>The Court of First Instance ruled in favor of the Defendants and dismissed the case as the Shops were located in the DIFC. It ruled that the DIFC Courts had exclusive jurisdiction in relation to the dispute. The Claimant appealed this decision.<br /><br /><strong>Court of Appeal<br /><br /></strong>The Court of Appeal reversed the decision of the Court of First Instance and ruled in favor of the Claimant. It held that the UAE courts had jurisdiction to hear the case. The case was consequently referred back to the Court of First Instance for a decision as to its merits. The Defendants and the third party appealed the Court of Appeal&rsquo;s decision to the (Dubai) Court of Cassation. Similar arguments were heard in that the Appellants submitted that the Dubai Courts lacked the necessary jurisdiction to hear the case.<br /><br /><strong>The Court of Cassation<br /><br /></strong>The Defendants and the third party argued that the Court of Appeal had erred in its decision to reverse the decision of the Court of First Instance. The following arguments were submitted:</p>\r\n<ul>\r\n<li>the Claimant&rsquo;s argument that Decree No. 28 of 2008 gave the Dubai Court jurisdiction over all real estate cases without any exception was erroneous as this Decree did not incorporate such terms. The Defendants and the third party argued that the basis for the Decree was the cancellation of Decree No. 30 of 2007 establishing a special judicial committee for tenancy disputes in the Emirate of Dubai and that it therefore excludes the DIFC;</li>\r\n<li>Article 8 of Dubai Law No. 9 of 2004 regarding the DIFC Judicial Authority grants exclusive jurisdiction to the DIFC Courts to hear and determine any claims to which the DIFC, DIFC Establishments or DIFC Bodies are parties (and also to hear and determine any dispute arising out of any transaction carried out in the DIFC or to determine an incident which took place there);</li>\r\n<li>by virtue of the Shops&rsquo; location in the DIFC, the DIFC Courts had the exclusive jurisdiction to hear the case; and</li>\r\n<li>the parties had agreed, in Clause 13 of the SPA, that the DIFC Courts would have the jurisdiction to hear any disputes that may arise between them.</li>\r\n</ul>\r\n<p>The Court of Cassation held that as the Shops were located in the DIFC, the DIFC Courts had exclusive jurisdiction to hear and determine the dispute. The result of this ruling was that the Court of Cassation overturned the Court of Appeal&rsquo;s decision and upheld the Court of First Instance&rsquo;s decision (which had initially held that the DIFC Courts had jurisdiction).</p>'),
	(83664,4565,'_content','field_59b649b5c8b2b'),
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	(83667,4565,'content_description','Introduction: Jurisdiction is the authority granted to a formally constituted legal body to administer and decide legal matters. By extension, jurisdiction is also the authority to administer justice within a defined area of responsibility.'),
	(83668,4565,'_content_description','field_59b641c07f473'),
	(83669,4565,'pageSummary','Introduction: Jurisdiction is the authority granted to a formally constituted legal body to administer and decide legal matters. By extension, jurisdiction is also the authority to administer justice within a defined area of responsibility.'),
	(83670,4565,'_pageSummary','field_59e59b307dec8'),
	(83671,4565,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-6/september-2/jurisdiction-and-property-disputes-in-dubai.html'),
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	(83680,4565,'_lawUpdateArticlePractices_0_lawUpdateArticlePractice','field_59dc79c8e10ce'),
	(83681,4565,'lawUpdateArticlePractices','1'),
	(83682,4565,'_lawUpdateArticlePractices','field_59dc7918de021'),
	(83683,4565,'_yoast_wpseo_metadesc','Introduction: Jurisdiction is the authority granted to a formally constituted legal body to administer and decide legal matters. By extension, jurisdiction is also the authority to administer justice within a defined area of responsibility.'),
	(83684,4566,'content','<p>These treaties simplify the judicial process related to disputes persons and/or companies of Member States and the process of executing judgments obtained in a Member State.</p>\r\n<p>One of the benefits of such treaties and the focus of this article is the ability in the UAE to execute a foreign judgment received in a Member State despite a UAE court having concurrent jurisdiction of the underlying matter.<br /><br />Under the Civil Procedure Code (&ldquo;the Code&rdquo;) the UAE does not allow execution of judgments obtained from other countries if a UAE court also has jurisdiction over the matter regardless if the UAE court exercised that jurisdiction or not.&nbsp; (Civil Procedure Code, Art. 235 (2), Fed. Dec. 11 of 1992) It is important to note that, the Code also applies this restriction to Arbitration awards, however, this article will not deal with those due to the existence of different treaties for the execution of Arbitration awards.<br /><br />The courts are stringent in its application, whereby jurisdiction clauses of contracts are often of no consequence where the UAE courts have found concurrent jurisdiction. By way of example, the Dubai Court of Cassation ruled that two parties to a contract remained subject to UAE jurisdiction despite having agreed to UK jurisdiction for any dispute arising under the relevant contract, citing the fact that the products, being the subject matter of the contract, were delivered in the UAE. (Dubai Court of Cassation, 10/1999) In fact, the Court has gone so far as to say that as a matter of public policy UAE courts must not waive their jurisdiction in instances in which it has concurrent with a foreign court. (Dubai Court of Cassation, 325/2004).<br /><br />This protectionist policy is waived however with the applicability of international treaties. The Code also provides, in the same chapter: &ldquo;The rules laid down in the foregoing articles shall be without prejudice to the provisions of conventions between the UAE and other countries in this regard.&rdquo; (Civil Procedure Code, Art. 238, Fed. Dec. 11 of 1992). Thus, whenever there is an international treaty that the UAE is party to and the treaty details rules for the execution of judgments between the parties to the treaty, the rules of the treaty will supersede the relevant rules of the Code (mainly 235-237).</p>\r\n<p><strong>Facts<br /><br /></strong>One of the cases from the Dubai Court of Cassation which illustrate the application of these rules concerns a divorce judgment (&ldquo;Judgment&rdquo;) that was granted in a Court in Beirut, Lebanon. The wife (&ldquo;Petitioner&rdquo;) petitioned the Court of First Instance in Dubai for execution of the Judgment which granted her custody of their infant child, who was at the time less than a year old. The husband (&ldquo;Respondent&rdquo;) responded by claiming that a UAE Court has jurisdiction over the underlying matter as he is a resident of Dubai and the Petitioner was residing with him in Dubai prior to the divorce.<br /><br /><strong>Procedural History<br /><br /></strong>The Court of First Instance rejected the execution of the Judgment reasoning that since the Courts of the UAE have jurisdiction over the underlying matter, a foreign judgment should not be executed. On appeal the Court of Appeals overturned the rejection and the Respondent appealed to the Court of Cassation.<br /><br /><strong>Analysis of the Court of Cassation<br /><br /></strong>Citing Article 238 of the Code, the Dubai Court of Cassation reasoned that because the UAE and Lebanon are both parties to The Riyadh Arab Convention on Judicial Cooperation Treaty (&ldquo;the Riyadh Treaty&rdquo;), the treaty&rsquo;s provisions establishing rules for execution of judgments between contracting countries would be applicable.<br /><br />The Riyadh Treaty provides that &ldquo;recognition of the judgment shall be rejected&rdquo; in a number of instances such as violation of Islamic Sharia Law, the constitution of the country, lack of service, and other restriction listed in Article 30 of the Riyadh Treaty. However, the two relevant of these restrictions, which the Court found to not have been violated by this judgment, are:&nbsp;</p>\r\n<ul>\r\n<li>If a final judgment was issued in one Member State relating to the same underlying claim or a final judgment from another Member State relating to the same underlying claim was executed in it, any other final judgments relating to the same underlying claim from a third Member State may not be executed.&nbsp;&nbsp;</li>\r\n</ul>\r\n<p>(Ex. If a final judgment was issued in Yemen and it is sought to be executed in UAE, it will only be executed if there is no final judgment related to the same matter in the UAE and the UAE did not previously execute a third country&rsquo;s final judgment regarding the same matter.)&nbsp;</p>\r\n<ul>\r\n<li>If a court within one Member State has concurrent jurisdiction over a matter with another court in another Member State, and a judgment in the second State is sought to be executed in the first State, there must not be a legal proceeding regarding the matter filed in a court in the first State prior to the one in which the judgment was issued.&nbsp;</li>\r\n</ul>\r\n<p>(Ex. If a final judgment was issued in Tunisia and it is sought to be executed in UAE, and a UAE court also has jurisdiction over the same underlying matter, the UAE court must execute the judgment unless a hearing in the UAE regarding the matter was initiated prior to the one in Tunisia.)</p>\r\n<p><strong>Conclusion<br /><br /></strong>The Court reasoned that despite the Courts of UAE having concurrent jurisdiction over the matter, since the Judgment was issued prior to the dispute being raised in the UAE, and it did not violate any of the other provisions in Article 30 of the Riyadh Treaty, it should be executed.&nbsp; (Dubai Court of Cassation, 5/2004)<br /><br /><strong>Practice Note<br /><br /></strong>In light of the above, it is critical to review the relevant international treaties before initiating a legal action that is intended to be executed in the UAE. Failure to review these treaties could render a final judgment obtained useless, as it will not be executed in the UAE if a UAE court is found to have concurrent jurisdiction. The Riyadh Treaty, as explained above, provides instances where concurrent jurisdiction would be waived by a UAE court. The UAE has similar provisions in Judicial Cooperation treaties with France (Ch.5, Article 13 &ndash; Dec. 31 of 1992), India (Article XX - Dec. 33 of 2000), Pakistan (Article 16 - Dec. 12 of 2005), Afghanistan (Article 21 - Dec. 23 of 2009), Azerbaijan (Article 21 - Dec. 37 of 2007), Armenia (Article 16 of Part III &ndash; Dec. 26 of 2003) and Egypt (Article 31 &ndash; Dec. 83 of 2000)</p>'),
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	(83688,4566,'content_description','Introduction and Policy: In order to promote cooperation and ease financial and personal international conflict resolution, the UAE has entered into several international treaties for judicial cooperation.\r\n'),
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	(83690,4566,'pageSummary','Introduction and Policy: In order to promote cooperation and ease financial and personal international conflict resolution, the UAE has entered into several international treaties for judicial cooperation.\r\n'),
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	(83711,4567,'content','<p>However although arbitration is clearly private (being a product of the private agreement between the parties) whether or not it is confidential depends on where the legal place of the arbitration is.<br /><br />This article will explore whether arbitration is confidential under UAE law; the limits of any confidentiality; and what actions parties can take to enhance and enforce the confidentiality of their arbitration.<br /><br /><strong>Where does confidentiality come from?<br /><br /></strong>Confidentiality is not an inherent attribute of arbitration, and although many countries recognise that arbitrations are confidential (for example England), other countries take the opposite view (for example Sweden and the United States). Furthermore, even in countries with a long history of arbitration, the extent of the obligation to keep an arbitration confidential is often unclear (although it usually covers the process itself, the award, and the documents disclosed and prepared during the proceedings). Parties cannot assume that by agreeing to arbitration they are necessarily agreeing to a confidential process. They will need to consider what the position is under the law of the legal place of the arbitration.<br /><br />When discussing matters of UAE law it must be appreciated that the UAE is a complex legal environment. Each of the seven emirates has its own legal jurisdiction, and Dubai has two (Dubai and the DIFC). Each jurisdiction is able to supplement (but not override) federal law, except for the DIFC which by virtue of a change to the UAE constitution is exempt from all federal and local civil and commercial laws. There are also four civil court systems: the Dubai Courts, the Ras Al Khaimah Courts, the Federal Courts (used by Abu Dhabi and the other emirates) and the DIFC Courts. Legal issues can change significantly depending on which jurisdiction is being considered and the attitudes of the courts in that jurisdiction.<br /><br />Since none of the emirates have enacted any specific law regarding arbitration, all the emirates follow the same federal law provisions and so are broadly consistent when it comes to arbitration. This means that in practice we can speak of the UAE having two seats (or legal places) for arbitration, that of the UAE and that of the DIFC.<br /><br /><strong>Confidentiality under UAE law (excluding the DIFC)<br /><br /></strong>The UAE law on arbitration is found in the UAE Civil Procedure Law (Federal Law No.11 of 1992), Articles 203 &ndash; 218. These provisions do not address confidentiality. However in a recent Dubai Court of Cassation case (157/2009) it was stated that as a general principle, arbitration is a private process to be conducted in secret unless the parties agree otherwise. This would appear to confirm that arbitration is a confidential process under UAE law.<br /><br /><strong>Confidentiality under DIFC law<br /><br /></strong>The DIFC has a modern and comprehensive arbitration law, the DIFC Arbitration Law 2008. The law is based on the popular UNCITRAL Model Law of Arbitration, but whereas the Model Law is silent on the issue of confidentiality, the DIFC Arbitration Law specifically addresses it. Article 14 of the law states that &lsquo;unless otherwise agreed by the parties, all information relating to the arbitral proceedings shall be kept confidential, except where disclosure is required by an order of the DIFC Court&rsquo;.<br /><br />Parties using the DIFC as their seat can therefore have greater confidence in the confidentiality of their arbitration because it is explicitly enshrined in the applicable arbitration law. There have not been any cases relating to the confidentiality of arbitration proceedings, and so the precise limits of confidentiality under DIFC law have yet to be explored, but it is likely that the DIFC Courts will follow the approach taken under English law.<br /><br /><strong>Institutional Rules<br /><br /></strong>From the above it would appear that the confidential nature of arbitration is recognised under both UAE law and DIFC law. Both laws allow the parties to alter the position, and so if an institution is being used, the rules of the institution regarding confidentiality will apply.<br /><br />Most parties agree to use an arbitral institution to administer the arbitration because it greatly helps to ensure an efficient process. The Dubai International Arbitration Centre (DIAC) and the DIFC-LCIA contain the same rule on confidentiality (DIAC Rules Article 41; DIFC-LCIA Rules Article 30:<br /><br />&ldquo;Unless all parties expressly agree in writing to the contrary, the parties undertake as a general principle to keep confidential all awards and orders in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain- save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority&rdquo;.<br /><br />The two other institutions widely used in the UAE are ADCCAC in Abu Dhabi and the ICC based in Paris. Their rules however that do not contain any provision regarding confidentiality, although the ICC Rules do state that hearings are to be private (Rule 26(3)), and arguably this extends to the process itself.<br /><br /><strong>The Limits of Confidentiality<br /><br /></strong>As can be seen from the DIFC-LCIA and DIAC clause on confidentiality, the rules of the institution may include explicit limitations. Even if they do not, most jurisdictions recognise that confidentiality has inherent limits similar to those explicitly referenced in the DIFC-LCIA/DIAC clause above. This means that where disclosure of confidential information is necessary due to court order, or to protect a legal right, or to enforce an arbitral award, the confidential information may legitimately be disclosed into the public domain. Furthermore, witnesses who give evidence during the arbitration are unlikely to be a party to the agreement (unless they are employees of the parties involved), and so cannot be bound by any obligations regarding confidentiality.<br /><br />As regards enforcing the arbitral award (or taking other court action in relation to the arbitral process), some national courts will seek to preserve the confidential nature of the process. For example the general position under the DIFC Court rules is that claims related to arbitration will be held in private unless the court orders otherwise (DIFC Court Rule 43.41).&nbsp; The general position under UAE law however is that any case filed regarding an arbitral award will be heard in public like any other case, unless upon the application of a party the court is persuaded that there is good reasons to keep the hearings confidential (such as commercial sensitivities, although such occasions will be rare).<br /><br /><strong>Enforcing Confidentiality<br /><br /></strong>Assuming that there is an obligation to keep the arbitration confidential, what actions can a party take to enforce this obligation? This is particularly important because once facts have been made public it is impossible to reverse the situation.<br /><br />First of all, it must be acknowledged that it is extremely rare for confidentiality to be breached. Usually both parties have a vested interest in keeping the process confidential, and they are often represented by lawyers who are able to advise them of their legal obligation regarding confidentiality.<br /><br />There are times however, either because of ignorance or because of a potential commercial advantage, where a party may breach or seek to breach confidentiality. In the case of a threatened breach, one solution is to make an application to the arbitral tribunal to seek an order restraining a party from breaching confidentiality. The power of the tribunal is however limited because it cannot itself enforce its orders, though it does have the ability to punish a party in costs. There is also the fact that a tribunal is unlikely to look kindly on a party who deliberately flouts its obligations and the tribunal&rsquo;s orders.<br /><br />Where however it is essential that confidentiality be preserved, the most effective remedy is to seek an injunction from the local courts restraining the other party from making the disclosure. The local courts in this instance would be the courts in the jurisdiction where it is feared the disclosure will be made, and so specific legal advice will need to be taken in relation to the ability to seek an injunction in that jurisdiction. As regards the UAE and the DIFC, it is anticipated that such an injunction can be sought because both jurisdictions recognise the confidential nature of the arbitral process.<br /><br />Taking such action does take time and money, but the costs of making such an application ought to be recoverable by way of an order from the local court itself or from the arbitral tribunal at the conclusion of the arbitral process.<br /><br />If confidentiality is breached, seeking an injunction may be of less value but it may still prevent further and worse breaches. A claim for damages arising from the breach may become available, and if the breach is serious enough it may allow the other party to pull out of the arbitration (although the tribunal usually has a right to continue the arbitration notwithstanding the fact that one party is no longer engaging, so there is a risk that an adverse award will be rendered).<br /><br /><strong>Practical Tips<br /><br /></strong>There are a number of steps that can be taken to reduce the prospect of a party breaching its obligation to keep an arbitration confidential:<br /><br />a.&nbsp;Even if the law applicable to the arbitration and the institutional rules recognise the confidential nature of arbitration, a clause in the agreement can be included to specifically recognise that any arbitration is to be private and confidential.<br /><br />b.&nbsp;Once it becomes foreseeable that a dispute between the parties is going to be referred to arbitration, remind the opposing party in writing of their obligation to keep the arbitration confidential and not to disclose documents received during the process.<br /><br />c.&nbsp;At the preliminary hearing, raise the issue of confidentiality and have it recognized by all the parties and the tribunal, and recorded in the Terms of Reference.</p>\r\n<p><strong>Conclusion<br /><br /></strong>The confidential nature of arbitration is recognised under both UAE law and DIFC law, as well as in the rules of the DIAC and the DIFC-LCIA. Although the confidentiality of an arbitration is not absolute, the ability to resolve disputes in private and, if necessary, to seek orders to prevent sensitive information from entering the public domain, remain key advantages that arbitration holds over court litigation.</p>'),
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	(83749,4569,'content','<p>The effort against both the increasing threat of terrorism and the development and proliferation of weapons of mass destruction, has consistently involved the implementation and imposition of economic sanctions against offending nations. Following action by the United Nations Security Council, the European Union Commission and the United States Government against Iran in particular, Al Tamimi &amp; Company has been receiving more and more queries in relation to the impact of the various economic sanctions upon commercial relations with Iran. <br /><br />Recurrent questions include, but are not limited to, the following:</p>\r\n<ul>\r\n<li>As an entity located in the United Arab Emirates (UAE), can Company &ldquo;X&rdquo; deal with any Iranian entities?</li>\r\n<li>If an Iranian Company is subject to the UN/EU/US sanctions, can Company &ldquo;X&rdquo; still work with the Iranian Company as an UAE registered company? What economic and/or penal repercussions could this have on the Company or its staff, if any?</li>\r\n<li>Shall Company &ldquo;X&rdquo; conduct enhanced due diligence to determine if transactions contains a &ldquo;Government of Iran&rdquo; element or interest?</li>\r\n<li>In case an Iranian Company is subject to UN/EU/US sanctions, can/should Company &ldquo;X&rdquo; (easily) cut ties and halt business with the Iranian Company or does it face the possibility of being blacklisted or isolated from the global financial system?</li>\r\n</ul>\r\n<p><br />It is crucial that a lawyer be aware of any transactions when his/her client or a client&rsquo;s business partner is located in a sanctioned country, has business dealings with a sanctioned country, gained its funds from a sanctioned country or is owned or controlled by a sanctioned entity or individual. The reason why it is so crucial for such a determination to take place is that the number of economic sanctions continue to increase as do the potential consequences upon the client, whether at the business or at the personal level. One only has to witness the recent significant financial penalties upon major global banks as reported in official press releases (e.g. Standard Chartered Bank) and the potential penalties upon other financial institutions that have transgressed the economic sanctions against trade dealings with Iran.<br /><br />In order to properly understand the significance of the global economic sanctions, one must understand their primary objectives and implications. <br /><br />Given the complexity of this topic, this article is not an exhaustive analysis of all the existing economic sanctions and mainly addresses the Iran sanctions, in light of the UAE and Iran trade ties and geographical proximity. For more information on this article, please contact Ibtissem Lassoued, Senior Associate - Special Projects Department: <a href=\"mailto:i.lassoued@tamimi.com\">i.lassoued@tamimi.com</a>.<br /><br /><strong>1.&nbsp;Global Economic Sanctions: Global Effective Measures for Global Concern</strong><br /><br />An economic sanction can be defined as &ldquo;any action taken by one country or a group of countries acting collectively in order to harm the economy of another country or group of countries, with the objective being to engender economic or political change.\" Often used as an instrument of foreign policy, it can be applied for various reasons including, but not limited to, the punishment of the other country, or as an incentive for change, political, policy or otherwise, in the target country. There are two general types of sanctions that are exercised: unilateral sanctions (imposed by a single country against another) or bilateral sanctions (sanctions imposed by a group of countries acting either individually or collectively against another). Economic Sanctions can affect all industries and there are several ways in which a sanction is exercised through laws and regulations of imposing states including mainly the following:&nbsp;</p>\r\n<ul>\r\n<li>Trade restrictions (embargoes) that prevent a country and its citizens from engaging in economic activity with <br />the sanctioned country.</li>\r\n<li>Blocking or freezing of assets and restrictions on movement of people or capital.</li>\r\n<li>Imposition of taxes on goods imported from the country against which the sanction is exercised.</li>\r\n<li>Restrictions placed on goods imported into a country from a country against which the sanction is exercised.</li>\r\n<li>Quotas on the quantity of goods that can be either exported or imported from country subject to sanctions.</li>\r\n</ul>\r\n<p><br /><br /><strong>a)&nbsp;Countries / International Entities Exercising Economic Sanctions</strong><br /><br /><br /></p>\r\n<table class=\"nw_boxed_table\" border=\"1\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\"><em>Country / International Organization Exercising Economic Sanctions</em></td>\r\n<td valign=\"top\"><em>In Practice</em></td>\r\n<td valign=\"top\"><em>Examples of Middle East Countries Subject to Economic Sanctions</em></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\"><em>United Nations (UN) Security Council Sanction Committee</em></td>\r\n<td valign=\"top\">The UN imposes mandatory sanctions on countries through the <strong>Security Council Sanctions Committees</strong> (the &ldquo;SC&rdquo;) under Articles 39 and 41 of Chapter VII of the UN Charter. <br />The SC adopted: (i) Resolution 1730 (2006) by which the SC requested the Secretary-General to establish within the Secretariat, a focal point to receive de-listing requests and (ii) Resolution 1904 (2009) by which it established the Office of the Ombudsperson.</td>\r\n<td valign=\"top\"><span>Iran</span> \r\n<ul>\r\n<li>Resolution No. 1696 of 2006</li>\r\n<li>Resolution No. 1737 of 2006</li>\r\n<li>Resolution No. 1747 of 2007</li>\r\n<li>Resolution No. 1803 of 2008</li>\r\n<li>Resolution No. 1835 of 2008</li>\r\n<li>Resolution No. 1929 of 2010</li>\r\n</ul>\r\n<span>Iraq</span> \r\n<ul>\r\n<li>Resolution No. 1518 of 2003</li>\r\n</ul>\r\n<span>Lebanon</span> \r\n<ul>\r\n<li>Resolution No. 1701 of 2006</li>\r\n</ul>\r\n<span>Libya</span> \r\n<ul>\r\n<li>Resolution No. 1970 of 2010</li>\r\n</ul>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\"><em>European Union (EU)</em></td>\r\n<td valign=\"top\">The EU imposes sanctions and restrictive measures pursuant to the objectives of the <strong>EU Common Foreign and Security Policy (CFSP)</strong> as set out in Article 11 of the Treaty establishing the European Union.<br />The Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common Foreign and Security Policy provides guidance and standard wording that could be used in legal instruments.</td>\r\n<td valign=\"top\"><span>Iran</span> \r\n<ul>\r\n<li>Council Regulation (EU) No. 961/2010</li>\r\n</ul>\r\n<span>Iraq</span> \r\n<ul>\r\n<li>Council Regulation (EC) No. 1210/2003</li>\r\n</ul>\r\n<span>Lebanon</span> \r\n<ul>\r\n<li>Common Position&nbsp; 2006/625/CFSP</li>\r\n</ul>\r\n<span>Syria</span> \r\n<ul>\r\n<li>Council Regulation (EU) No. 442/2011&nbsp;</li>\r\n</ul>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\"><em>Country, individually</em></td>\r\n<td valign=\"top\"><span>In the US:</span><br />Sanctions are set forth&nbsp; in the Iranian Transactions Regulations (31 CFR Part 560)1 and enforced through the <strong>Office of Foreign Assets Control (OFAC)</strong> which derives its authority from a variety of US federal laws regarding embargoes and economic sanctions and operates under the auspices of the US Department of the Treasury. <br />OFAC administers and regularly updates the Specially Designated Nationals (SDN) List which is a publication listing individuals and organizations with whom US citizens and permanent residents are prohibited from doing business. OFAC regulations often provide general licenses authorizing the performance of certain categories of transactions and also issues specific licenses on a case-by-case basis under certain limited situations and conditions2.<br /><br /><br /><span>Other countries:</span><br />Countries other than the US also impose sanctions on individuals/entities/third countries and frame their stands on sanctions ensuring their national interests are protected.</td>\r\n<td valign=\"top\">Currently, OFAC administers sanctions programs against the following countries in the MENA Region (Middle East and North Africa) see notes below:<br /><br /> \r\n<ul>\r\n<li><span>Iran<sup>3</sup></span></li>\r\n<li><span>Iraq</span></li>\r\n<li><span>Lebanon</span></li>\r\n<li><span>Libya</span></li>\r\n<li><span>Syria<sup>4</sup></span></li>\r\n<li><span>Yemen</span></li>\r\n<li><span>Iran </span></li>\r\n</ul>\r\n<p><br />Countries such as Switzerland, Canada<sup>5</sup>, Australia, the UK and Japan have recently tightened sanctions against Iran.</p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p><br /><br />Notes:</p>\r\n<ul>\r\n<li>Iraq: After the fall of Saddam Hussein regime, there are still certain prohibitions and asset freezes against specific individuals and entities associated with the former regime.</li>\r\n<li>Libya: After the fall of Gaddafi regime, the United Nations, the European Union and the United States have progressively been removing restrictions on Libya with restrictions remaining for individuals and entities associated with the former regime.&nbsp;</li>\r\n<li>Yemen: No resolutions were passed by either the UN or the EU imposing sanctions on Yemen with recently only the US passing an Executive Order dated 16th May 2012 which provides the US Treasury Department with a new authority to target individuals and entities posing a threat to Yemen&rsquo;s peace, security, or stability. Upon identification and listing of a designated individual or entity under this Executive Order by OFAC, any property in the United States or in the possession or control of United States persons in which the individual or entity has an interest would be blocked, and United States persons would be prohibited from engaging in transactions with them.</li>\r\n</ul>\r\n<p><br /><strong>b) Comprehensive Sanctions Imposed Against Iran to Curtail Nuclear Armament Development</strong><br /><br /><strong>I.&nbsp;Scope of the Sanctions:</strong><br /><br />The sanctions cover mainly (a) the blocking of persons involved in terrorism, proliferation of mass destruction weapon and (b) Iran&rsquo;s energy sector and financial transactions with Iran.<br /><br />&bull;<strong>&nbsp;US Key Sanctions<sup>6</sup> </strong></p>\r\n<ul>\r\n<li>Executive Order 12170/November 1979, resulting in the freezing of about USD 12 billion in Iranian assets, including bank deposits, gold and other properties.</li>\r\n<li>Executive Orders 12205 and 12211/April 1980, prohibiting certain transactions with Iran.</li>\r\n<li>Executive Order 12276/January 1981, relating to establishment of Escrow accounts.</li>\r\n<li>Executive Order 12277/January 1981, relating to transfer Iranian Government assets.</li>\r\n<li>Executive Order 12278/January 1981, direction to transfer Iranian Government assets overseas.</li>\r\n<li>Executive Order 12279/January 1981, direction to transfer Iranian Government assets held by domestic banks.</li>\r\n<li>Executive Order 12280/January 1981, direction to transfer Iranian Government financial assets held by non-banking institutions.</li>\r\n<li>Executive Order 12281/January 1981, direction to transfer certain Iranian Government assets.</li>\r\n<li>Executive Order 12282/January 1981, revocation of prohibitions against transactions involving Iran.</li>\r\n<li>Executive Order 12283/January 1981, non-prosecution of claims of hostages and for actions at the United States Embassy and elsewhere.</li>\r\n<li>Executive Order 12284/January 1981, restrictions on the transfer of property of the former Shah of Iran.</li>\r\n<li>Executive Order 12294/February 1981, suspension of litigation against Iran.</li>\r\n<li>Executive Order 12613/October 1987, prohibiting the importation and exportation of any goods or services from Iran.</li>\r\n<li>Executive Order 12613/October 1987, prohibiting imports from Iran.</li>\r\n<li>Executive Order 12957/March 1995, prohibiting United States trade in Iran\'s oil industry.</li>\r\n<li>Executive Order 12959/May 1995, prohibiting United States trade in Iran\'s oil industry.</li>\r\n<li>Iran&ndash;Libya Sanctions Act 1996 further broadening the scope of US sanctions against Iran for companies engaging in energy transactions with Iran.</li>\r\n<li>Executive Order 13059/August 1997, prohibiting on exports and imports between the US and Iran or with Iran by a US person.</li>\r\n<li>Executive Order 13224/ September 2001 on terrorist financing, blocking property and prohibiting transactions with persons who commit, threaten to commit, or support terrorism.</li>\r\n<li>Executive Order 13382/June 2005, freezing the assets of individuals connected with Iran\'s nuclear program.</li>\r\n<li>Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA) / July 2010.</li>\r\n</ul>\r\n<p><br />The CISADA authorized sanctions on foreign financial institutions that engage in financial transactions with:</p>\r\n<ul>\r\n<li>Financial institutions designated in Iran WMD and support to terrorism</li>\r\n<li>UN listed individuals and entities</li>\r\n<li>IRGC or its agents or its affiliates</li>\r\n</ul>\r\n<p><br />Note: The financial provisions of CISADA are implemented through the Iranian Financial Sanctions Regulations (IFSR) issued by the US Treasury Department in August 2010.</p>\r\n<ul>\r\n<li>Executive Order 13553/September 2010, Executive Order 13574/May 2011 and Executive Order 13590/November 2011, strengthening existing U.S. sanctions with respect to the Iranian energy industry, and adds the potential for the imposition of serious limits on foreign financial institutions&rsquo; access to the U.S. financial system if they engage in certain transactions involving Iran.</li>\r\n</ul>\r\n<p><br />Recently in 2012:</p>\r\n<ul>\r\n<li>Executive Order 13599/February 2012, blocking all property of the Government of Iran and Iranian Financial Institutions subject to US jurisdiction.</li>\r\n<li>Executive Order 13606/April 2012, blocking all property and suspending entry into the US of certain persons with respect to Grave Human Rights Abuses by the Governments of Iran and Syria Via Information Technology (also referred to as the &ldquo;Ghravity Executive Order&rdquo;)</li>\r\n<li>Executive Order 13608/May 2012, prohibiting certain transactions with and suspending entry into the US of Foreign Sanctions Evaders with respect to Iran and Syria (also referred to as the &ldquo;Foreign Sanctions Evaders Executive Order&rdquo;).</li>\r\n</ul>\r\n<p><strong>&bull;&nbsp;UN Key Sanctions</strong></p>\r\n<ul>\r\n<li>Resolution Order 1696/July 2006, urging Iran to cease its nuclear enrichment and reprocessing activities, threatening the possibility of economic sanctions should it fail to do so.</li>\r\n<li>Resolution Order 1737/December 2006, Member States are requested to prevent Iran from importing and exporting &ldquo;sensitive nuclear material and equipment&rdquo;.</li>\r\n<li>Resolution Order 1747/March 2007, banning Iranian arms exports, freezing assets and restricting travel of individuals engaged in the country&rsquo;s nuclear development activities.</li>\r\n<li>Resolution Order 1803/March 2008, apart from further extending the freezing of certain individuals&rsquo; assets, Member States were asked to inspect cargo to and from Iran of aircraft and vessels owned or operated by Iran Air Cargo and Islamic Republic of Iran Shipping Line should there be &ldquo;reasonable grounds&rdquo; to believe that prohibited goods were being transported.</li>\r\n<li>Resolution Order 1835/September 2008, affirming the previous four resolutions regarding trade restrictions, asset freezing, restriction of arms sales and movement of certain individuals coming from Iran due to the country&rsquo;s continued non-compliance with the aforementioned resolutions.</li>\r\n<li>Resolution Order 1929/June 2010, noted the particular need to exercise vigilance over transactions involving Iran&rsquo;s banks and the potential connection between Iran&rsquo;s energy industry and the funding of its nuclear effort.</li>\r\n</ul>\r\n<p><strong>&bull;&nbsp;EU Key Sanctions</strong></p>\r\n<ul>\r\n<li>EU Council Regulation No. 961 /2010, relates to restrictive measures against Iran and repealed EU Council Regulation No 423/2007.</li>\r\n<li>23 January 2012, EU foreign ministers agreed on Iran oil embargo i.e. to ban new contracts to import petroleum and petroleum products from Iran and to end existing contracts by 1st July, 2012. It is relevant to note that the OPEC proven crude oil reserves by end of 2010 were amounting to 151.17 billion barrels for Iran<sup>7</sup>, i.e. one of the highest proved oil reserves.</li>\r\n<li>23 March 2012, EU Regulation No. 267 of 2012 replaced the earlier EU Regulation No. 961 of 2010 laying down the restrictions imposed on Iran by the EU.</li>\r\n<li>20 May 2012, the G8 countries applied further pressure on Iran with a joint agreement to source oil from their strategic reserves if the situation with Iran worsened and there was a disruption to the supply of oil.</li>\r\n</ul>\r\n<p><strong>Sanctionable Activities and Restrictions:</strong><br /><br />&bull;&nbsp;US Sanctions<br /><br />As described in the IFSR, the sanctionable activities of a foreign financial institution are:</p>\r\n<ul>\r\n<li>Facilitating the efforts of the Government of Iran (GOI) to acquire or develop Weapons of Mass Destruction (WMD) or delivery systems for WMD or to provide support for terrorist organizations or acts of international terrorism;</li>\r\n<li>Facilitating the activities of a person subject to financial sanctions pursuant to United Nations Security Council Resolutions 1737, 1747, 1803, or 1929, or any other Security Council resolution that imposes sanctions with respect to Iran;</li>\r\n<li>Engaging in money laundering, or facilitating efforts by the Central Bank of Iran or any other Iranian financial institution, to carry out either of the facilitating activities described above; or</li>\r\n<li>Facilitating a significant transaction or transactions or providing significant financial services for the IRGC or any of its agents or affiliates whose property and interests in property are blocked pursuant to the International Emergency Economic Powers Act (IEEPA), or a financial institution whose property and interests in property are blocked pursuant to IEEPA in connection with Iran&rsquo;s proliferation of WMD, Iran&rsquo;s proliferation of delivery systems for WMD, or Iran&rsquo;s support for international terrorism.</li>\r\n</ul>\r\n<p><br />&bull;&nbsp;EU Sanctions<br /><br />EU Council Regulation No 961/2010 implements additional restrictive measures against Iran, and repeals Regulation No 423/2007. It follows the UN Security Council Resolution 1929.<br /><br />The restrictions are mainly as follows:</p>\r\n<ul>\r\n<li>Freezing of funds and economic resources of specific Iranian persons and entities;</li>\r\n<li>Restrictions on transfers of funds to and from an Iranian person, entity or body;</li>\r\n<li>Restrictions on Iran&rsquo;s access to the EU&rsquo;s bonds markets; and,</li>\r\n<li>Restrictions on Iran&rsquo;s access to the EU&rsquo;s insurance and reinsurance markets.</li>\r\n</ul>\r\n<p><strong>II.&nbsp;Consequences of breach</strong><br /><br /><strong>US sanctions:<br /><br /></strong>The extra-jurisdictional approach by the US involves the unilateral imposition of an obligation on foreign entities to comply with its laws. Penalties vary from &ldquo;caution&rdquo; letters to transaction-based civil penalties, to criminal prosecution that could result in millions of dollars worth of fines or up to 20 years imprisonment (sentences vary based on the program). The penalty will be less important if there was a voluntary self-disclosure (e.g. a bank disclosing that through negligent or reckless conduct, it had breached the sanctions), than an egregious and willful breach of sanctions.<br /><br /><strong>EU sanctions:<br /><br /></strong>Each member country will enact its own statutes to give effect to EU criminal stipulations. Violations of EU legislation shall be punished either by fine or imprisonment. If the Member State is at fault, they will be required to pay the EU Commission a fine. For example, in the UK, the current maximum penalties for breaching the embargo on financing or importing crude oil or petroleum originating from Iran are imprisonment (for up to three months for summary offences and two years upon indictment) and/or a monetary fine (up to &pound;5,000 on summary conviction and unlimited in the event of indictment).<br /><br /><strong>UN sanctions:<br /><br /></strong>To enforce sanctions, the UN requests that countries implement Resolution measures and establish authorized persons to ensure adherence to these sanctions within their respective territories. Since the UN is effectively a forum wherein other countries convene, it is assumed that a vote by members of the Security Council &ndash; or in wider sittings of the UN &ndash; could be used to impose sanctions on Member States who have violated the Iranian embargos.&nbsp;</p>\r\n<p><strong>2.&nbsp;Recent developments and the practical implications of Global Economic Sanctions</strong><br /><br /><strong>Disconnection of all Iranian banks from the international network Society for Worldwide Interbank Financial Telecommunication (SWIFT)<sup>8</sup></strong><br /><br />On 17 March 2012, SWIFT - the worldwide financial messaging network to facilitate the interbank transfer of funds - disconnected all Iranian banks from its international network that had been identified as institutions in breach of current EU sanctions. This has been described as having the analogous effect of prohibiting access to waterways. This occurred following an agreement between all 27 Member States of the EU Council, and the Council\'s subsequent ruling.<br /><br />It is worth noting that SWIFT has never before expelled an institution in its 39 year history. There is a clear and present possibility that countries found to be non-compliant with EU, US and UN measures against Iran, could be compelled to &lsquo;fall in line&rsquo; and become more cooperative&nbsp; with the sanctions via payment network sanctions. <br /><br />There is a reasonable likelihood that Iran will successfully establish and implement its own SWIFT-type transfer systems so as not to get locked out of the international monetary system in the future. Cutting the network to Iran could force alternate networks to appear, similar to the &ldquo;Barter Network&rdquo;, as there is no other alternative currency to use. It is actually worth noting that on 26 May 2012, the Governor of the Central Bank of Iran Mr. Mahmoud Bahmani announced&nbsp;<sup>9</sup> that it had created such a system. This proves that there may be indeed state-initiated avenues through which the various sanctions imposed on Iran can be made less effective if there are subscribers to these types of methods. <br /><br /><strong>The Financial Action Task Force (FATF)</strong><br /><br />In June 2012, the FATF, which is an inter-governmental body to promote policies to combat money laundering and terrorist financing, reaffirmed<sup>10</sup>&nbsp; its call on members and urged &ldquo;all jurisdictions to advise their financial institutions to give special attention to business relationships and transactions with Iran, including Iranian companies and financial institutions&rdquo; and &ldquo;to protect against correspondent relationships being used to bypass or evade counter-measures and risk mitigation practices and to take into account ML/FT risks when considering requests by Iranian financial institutions to open branches and subsidiaries in their jurisdiction&rdquo;. Simultaneously, the FATF urged Iran to immediately address its AML/CFT deficiencies, in particular by criminalizing terrorist financing and implementing suspicious transaction reporting (STR) requirements, failing which the FATF will ask its members to strengthen counter-measures in October 2012.<br /><br /><strong>Major Global Banks under investigation</strong> <br /><br />Major Global Banks are currently being investigated by US regulators over allegations of illicit dollar transactions / money laundering with Iran, exposing non-US banks to sanctions by the US after the &ldquo;u-turn exemption&rdquo; was rendered illegal by the US Treasury in November 2008. in particular, said investigations are based on the use of the &ldquo;wire stripping&rdquo; technique by which global banks managed to ensure the anonymity of Iranian US Dollar clearing activities by stripping information from the SWIFT system and hence (i) removing references to Iranian entities and (ii) consequently not triggering investigations before clearing the US Dollar transactions via the bank&rsquo;s branches located in the US (since sanctioned countries, individuals or entities&rsquo; names would not appear and hence could not be identified). <br /><br />Examples of major global banks under official or internal investigation, as highlighted in various press releases and newspapers articles:</p>\r\n<ul>\r\n<li>Standard Chartered Bank (SCB): Benjamin Lawsky, superintendent of New York&rsquo;s Department of Financial Services announced on 14 august 2012&nbsp;<sup>11</sup> that an agreement has been reached with the UK bank SCB.<br />SCB shall pay a civil penalty of USD 340 million but also install an on-site monitor to ensure that SCB&rsquo;s New York operations comply with the AML and book keeping requirements. In light of the aforementioned, SCB&rsquo;s New York banking license has not been revoked, but SCB may have to contend with the other relevant US authorities with which it continues to engage.</li>\r\n<li>Other major global banks such as HSBC, Deutsche Bank, UniCredit<sup>12</sup>, Royal Bank of Scotland (RBS)&nbsp;<sup>13</sup> are currently under investigation by the Financial Services Authority, OFAC and the US Department of Justice for allegations of money laundering or allegedly breaching US sanctions.</li>\r\n<li>French banks BNP Paribas and Credit Agricole are currently conducting internal investigations into US dollar payments while Societe Generale stated it had returned its banking license to Tehran<sup>14</sup>.</li>\r\n</ul>\r\n<p><strong>US Foreign subsidiaries: Iran Sanctions Accountability and Human Rights Act of 2012</strong><br /><br />Since May 2012, there are no more loopholes in relation to the liability of US Parent Companies for Violations of Sanctions by Foreign Subsidiaries: in Section 218 of the Iran Sanctions Accountability and Human Rights Act of 2012, US Parent companies are held liable for dealings with Iran by their foreign subsidiaries, which means there will be no more exemptions for the latter even when non US persons would have facilitated the subsidiaries activities with Iran. Section 218 states the following: &ldquo;Not later than 60 days after the date of the enactment of this Act, the President shall prohibit an entity owned or controlled by a United States person and established or maintained outside the United States from knowingly engaging in any transaction directly or indirectly with the Government of Iran or any person subject to the jurisdiction of the Government of Iran that would&nbsp; be prohibited by an order or regulation issued pursuant to the International Emergency Economic Powers act (50 U.S.C. 1701 et seq.) if the transaction were engaged in by a United States person or in the United States.&rdquo;</p>\r\n<p>In circumstances where US companies have subsidiaries located abroad and dealing with Iran, the US Parent companies would need to separate from those subsidiaries to avoid any liability.<br /><br /><strong>3.&nbsp;The Ultimate Defense: Preventive Action<br /><br /></strong>In light of the above, it appears that international companies need to be compliant with several jurisdictions at the same time and the ultimate defense in protecting yourself from the possibility of infringing any of the highlighted sanctions is preventive action. Abstaining from dealing with blacklisted entities, ensuring that self-regulation is diligent and thorough, and actively ensuring the validity of client or transaction in line with applicable trade sanction laws will best enable a lawyer&rsquo;s client to comply with these far-reaching economic sanctions. Keeping abreast of legislative changes from the UN, EU and US that affect Iran and other sanctioned countries will allow for more time to effect the changes necessary to align your client&rsquo;s operations with the law.&nbsp;<br /><br /><br /><strong>Footnotes:</strong> <br /><br /><br /></p>\r\n<ol>\r\n<li>Amended in February 2012 to be updated in light of Section 1245 of the &ldquo;National Defense Authorization Act for Fiscal Year 2012&rdquo;</li>\r\n<li><a href=\"http://www.treasury.gov/resource-center/sanctions/Pages/default.aspx\">http://www.treasury.gov/resource-center/sanctions/Pages/default.aspx</a></li>\r\n<li><a href=\"http://www.treasury.gov/resource-center/sanctions/Programs/pages/iran.aspx\">http://www.treasury.gov/resource-center/sanctions/Programs/pages/iran.aspx</a></li>\r\n<li><a href=\"http://www.treasury.gov/resource-center/sanctions/Programs/Pages/syria.aspx\">http://www.treasury.gov/resource-center/sanctions/Programs/Pages/syria.aspx</a></li>\r\n<li>Example for Canada: <a href=\"http://www.international.gc.ca/sanctions/iran.aspx?view=d\">http://www.international.gc.ca/sanctions/iran.aspx?view=d</a></li>\r\n<li>Executive Orders rely on the International Emergency Economic Powers Act (IEEPA/1977)</li>\r\n<li><a href=\"http://www.opec.org/opec_web/en/data_graphs/330.htm\">http://www.opec.org/opec_web/en/data_graphs/330.htm</a>&nbsp;</li>\r\n<li><a href=\"http://www.swift.com/news/press_releases/SWIFT_disconnect_Iranian_banks\">http://www.swift.com/news/press_releases/SWIFT_disconnect_Iranian_banks</a></li>\r\n<li><a href=\"http://presstv.com/detail/2012/05/26/243243/iran-designs-alternative-swift-cbi/#.UD9sHCI43CM\">http://presstv.com/detail/2012/05/26/243243/iran-designs-alternative-swift-cbi/#.UD9sHCI43CM</a></li>\r\n<li><a href=\"http://presstv.com/detail/2012/05/26/243243/iran-designs-alternative-swift-cbi/#.UD9sHCI43CM\">FATF</a> Public Statement - 22 June 2012: <a href=\"http://www.fatf-gafi.org/topics/high-riskandnon-cooperativejurisdictions/documents/fatfpublicstatement\">http://www.fatf-gafi.org/topics/high-riskandnon-cooperativejurisdictions/documents/fatfpublicstatement</a>- 22june2012.html#Iran</li>\r\n<li><a href=\"http://www.dfs.ny.gov/about/press/pr1208141.htm\">http://www.dfs.ny.gov/about/press/pr1208141.htm</a></li>\r\n<li><a href=\"http://www.bbc.co.uk/news/business-19384702\">http://www.bbc.co.uk/news/business-19384702</a></li>\r\n<li><a href=\"http://www.bloomberg.com/news/2012-08-22/rbs-said-to-be-probed-by-u-s-regulators-over-iranian-sanctions.html\">http://www.bloomberg.com/news/2012-08-22/rbs-said-to-be-probed-by-u-s-regulators-over-iranian-sanctions.html</a></li>\r\n<li><a href=\"http://www.bloomberg.com/news/2012-08-22/rbs-said-to-be-probed-by-u-s-regulators-over-iranian-sanctions.html\">French</a> banks investigate potential breach of U.S. sanctions: <a href=\"http://www.reuters.com/article/2012/08/27/us-bnpparibas-creditagricole-sanctions-idUSBRE87Q0QN20120827?type=companyNews\">http://www.reuters.com/article/2012/08/27/us-bnpparibas-creditagricole-sanctions-idUSBRE87Q0QN20120827?type=companyNews</a></li>\r\n</ol>'),
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	(83755,4569,'pageSummary','The effort against both the increasing threat of terrorism and the development and proliferation of weapons of mass destruction, has consistently involved the implementation and imposition of economic sanctions against offending nations.'),
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	(83768,4570,'content','<p>These laws are the Execution/Enforcement Law; the Registered Real Estate Mortgage Law; the Real Estate Financing Law; the Law on Supervision of Financing Companies and; the Finance Lease Law. It is expected that these laws will have an enormous impact upon the mortgage and finance markets. <br /><br />With the exception of the Registered Real Estate Mortgage Law, the implementing regulations of these laws should be issued within the coming months by the relevant authorities. <br />This article presents a general overview of the content of these laws:<br /><br /><strong>1)&nbsp;The Execution Law (EL)</strong><br /><br />Under the EL, execution and execution procedures will be carried out by specialized Execution/Enforcement Judges (EJ) in the general courts in the main cities and districts. Specifically, the EJ would be in charge of enforcing any judicial resolution issued by the competent courts, judicial authorities, arbitration tribunal, as well as, judgments and arbitration awards issued outside the Kingdom. Additionally, the EJ will be entrusted with the authority to seek police support in relation to enforcement. <br />The EL provides that there will be certain documents that can be enforced without the resort of the judicial channels, for example, Negotiable Instruments, Reconciliation Statements and Authenticated Contracts. <br /><br />Further, the EL introduces several provisions in considerable detail related to the method of enforcement attachments, protective attachments and selling of assets through auctions or any other methods depending on the type of asset.<br /><br />More discussion about the EL will be subject to another article to be published in the coming months.<br /><br /><strong>2)&nbsp;The Registered Real Estate Mortgage Law (RREML)</strong><br /><br />The mortgage under the RREML refers to a contract where the mortgagee obtains rights on a certain real estate, pursuant to which the mortgagee may seek settlement of the debt owed to it.<br />The RREML provides that the mortgage will be registered, as per the rules of the Realty in Kind Registration Law (RKRL), or the recordation of the mortgage will be by way of indication at the competent court or notary public if the RKRL is not applied.&nbsp;<br /><br />The mortgagor may dispose of its mortgaged property if the mortgage is recorded as per the RKRL, otherwise, the mortgagor shall have no right to dispose of its mortgaged property unless an agreement is concluded otherwise.&nbsp; The mortgagee may assign its right in settlement of the debt along with the guarantee of the mortgage to others.&nbsp;<br /><br />Under the relevant Council of Ministers resolution, it was indicated that the Ministry of Commerce, in coordination with the Capital Market Authority, should review the Commercial Mortgage Law in line to the new provisions stipulated under the RREML. Some observers are of the view that the registration of a real estate mortgage would include registration of movables as well, for example, cars, vessels or planes.<br /><br /><strong>3)&nbsp;The Real Estate Financing Law (REFL)</strong><br /><br />The REFL provides that the Saudi Arabian Monetary Agency (SAMA) would be responsible for the supervising the real estate financing practice in the Kingdom. The REFL were issued in 15 articles and SAMA will issue the implementing regulations of the REFL within 90 days from the issuance of the REFL, however, delays are likely.<br /><br />Under the REFL, the real estate finance companies should be licensed by SAMA in accordance with REFL and the Law on Supervision of the Financing Companies. Also, it would be permissible to incorporate joint stock companies to refinance the real estate financing, as well as being possible to cover the risks related to real estate financing through insurance companies licensed by SAMA in accordance with the Cooperative Insurance Law.<br /><br />More importantly, the REFL has introduced that the real estate financing companies may refinance through securitization in accordance with the Capital Market Regulations. <br />SAMA will issue the benchmarks and procedures for the real estate financing and for reviewing the financing forms and contracts.&nbsp; SAMA is to publish the data for the real estate funding and sponsoring development of financing techniques including facilitation of cash flows between the primary and secondary markets.&nbsp;<br /><br />It is also indicated that under the REFL, the Real Estate Development Fund plays the role of government supporter by allocating a part of its budget as guarantees and support for the real estate development to the entities which are entitled to the support.&nbsp; The government guarantees fulfillment of the financial obligations against the Fund\'s guarantees<br /><br /><strong>4)&nbsp;The Law on Supervision of Financing Companies (LSFC)</strong><br /><br />Similar to the real estate financing companies, SAMA will be the regulatory body to license finance companies in the Kingdom. The LSFC provides that the finance company will be in the form of a joint stock company and that a certain percentage of the finance company must be offered through a public offering after two financial years. SAMA will also determine the maximum foreign ownership allowance in the finance company.<br /><br />The LSFC provides that each finance company must carry out its financing practice in accordance with Shari&rsquo;ah principles as per the decisions of the Shari&rsquo;ah committees that should be formed within the financing companies itself. The finance company may carry out financing in one or more activities; for example real estate financing, lease financing, credit card financing ..etc, each of which will need to be licensed by SAMA.<br /><br />The LSFC stipulates that the finance company would be obligated to allow its customers early repayment in exchange for deductions from the financing as per a certain formula that should be available to the customers before contracting take place.<br /><br /><strong>5)&nbsp;Finance Lease Law (FLL)</strong><br /><br />The FLL is intended to regulate the large market in finance leasing currently being practiced throughout the Kingdom. Under the FLL, a lessor, under a lease contract, may lease the assets or utilities in his capacity as the owner of these assets, or owner of interests arising from these assets.<br /><br />Through the lease contract, the lessor is obligated to use the leased asset for the purpose agreed upon and will be responsible for the operational maintenance versus the basic/main maintenance which is typically the responsibility of the lessor.<br /><br />The FLL provides that it would be permissible to issue negotiable deeds against the leased assets pursuant to the rules issued by the Capital Market Authority. Furthermore, it is indicated that one or more joint stock companies can be incorporated to be responsible for the registration of lease financing contracts. Such joint stock company must be licensed by SAMA.&nbsp; A new judicial committee should be established under the name &ldquo;the Financing Disputes and Violations Resolution Committee&rdquo; to resolve any dispute arising from application of the LSFC and the Finance Lease Law.<br /><br />The above was an overview of the &ldquo;New Finance Laws&rdquo;. It was stipulated that the laws will take effect after 90 days of the publication of the laws in the official gazette, with the exception of the EL, which will come into force after 180 days of the publication of the law in the official gazette, however, to date none of these laws have been published.&nbsp; Further, we are of the view that the full picture on how these laws will be applicable and that the full enforceability of the laws will take some time, perhaps years.</p>');

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	(83786,4570,'_yoast_wpseo_metadesc','On July 2012, the Saudi Council of Ministers issued 5 new laws in relation to the finance industry, with more focus to real estate financing, as well as the execution/enforcement mechanism.'),
	(83787,4571,'content','<p>The article quoted the market research firm Yankelovich who estimated that a person living in a city at the time was exposed to up to 5,000 advertising messages per day.&nbsp; <br /><br />With so many advertising messages competing for the attention of consumers, it may be safe to conclude that there is significant pressure on both advertising agencies and advertisers to ensure that their advertisements are the most memorable.&nbsp; Further considering that the average time to make an impression through billboard advertising is apparently between three and five seconds, the pressure to ensure that an advertisement is effective increases significantly.&nbsp; As a result of the competition for the attention of consumers, advertisers may be tempted to exaggerate the characteristics and qualities of products or services, or use language that may be more memorable than accurate.<br /><strong><br /><br /><br />&ldquo;Slow release energy&rdquo; &ndash; really?<br /><br /></strong></p>\r\n<p>A recent example of an advertising complaint from the United Kingdom illustrates the conflicting interests of consumers and advertisers that may be involved in advertising related matters. In The Independent it was reported on 1 August 2012 that &ldquo;Weetabix has been ordered to amend the claim with &lsquo;slow release energy&rsquo; after it was ruled misleading by the advertising watchdog.&rdquo;&nbsp; In this matter the claim was that the product was &ldquo;Packed with slow release energy to keep you going.&rdquo; &nbsp; Consumers complained that the claim &ldquo;slow release energy&rdquo; was misleading as Weetabix has a high glycaemic index (GI) rating.&nbsp; A high GI rating means that a product raises blood sugar and quickly releases energy.&nbsp; It turned out that the Weetabix claim was based on the product being consumed with milk, rather than on its own.&nbsp; The Advertising Standers Authority in the United Kingdom accordingly found that consumers could infer that the claim related to the product itself and that the claim was accordingly ambiguous.&nbsp;<br /><br /></p>\r\n<p>Considering the large financial resources brought to bear behind advertising campaigns and the impact that successful campaigns can have in achieving higher sales or higher consumer engagement, it is not only consumers that require protection from misleading advertising, but also trade competitors.&nbsp; Exaggerated or misleading claims in advertising about the benefits of or characteristics of a product may be prejudicial to the sales of competing products and may indirectly suggest deficiencies in competing products.&nbsp; For example, a claim that product X is the only product on the market that provides a particular benefit clearly states that other similar products are deficient compared to product X as they do not provide the relevant benefit.<br /><br /></p>\r\n<p><strong>Examples of regulation in the UAE<br /><br /></strong></p>\r\n<p>In some jurisdictions, such as for example the United Kingdom, advertising is primarily regulated through independent self-regulating bodies, as well as specific legislation.&nbsp; In the United Arab Emirates there is no such self regulating body and advertising is regulated through a combination of provisions drawn from laws focusing on the protection of consumers on the one hand and the activities of businesses that may constitute unfair competition on the other.<br /><br /></p>\r\n<p>The Executive Regulation to the Consumer Protection Law provides that consumers have a right to be provided with facts that assist them in proper purchases and consumption.&nbsp; The Executive Regulation further specifically deals with advertising, providing that:<br /><br /></p>\r\n<p><em>&ldquo;No person shall be permitted to advertise in any medium any goods or service in such manner leading to deceiving or confusing consumers.&rdquo;<br /><br /></em></p>\r\n<p>The Department for Consumer Protection is the appropriate governmental department dealing with consumer complaints and the Consumer Protection Law provides for a minimum fine in the event of a contravention of the law.&nbsp; Consumers aggrieved by misleading advertising may accordingly address their complaints directly to the Department for Consumer Protection.<br /><br /></p>\r\n<p>In addition to the provisions of the Consumer Protection Law, the Suppression of Fraud Executive Regulation (the &ldquo;Fraud Regulation&rdquo;) addresses commercial statements whether made directly or indirectly, providing that such statements:<br /><br /></p>\r\n<p><em>&ldquo;must be accurate in all respects whether placed on products, shops, inside shops or on packaging, invoices, correspondence, advertising material or other things used to offer good to the public.&rdquo;<br /><br /></em></p>\r\n<p>Commercial statements are specified in the Fraud Regulation to include for example the &ldquo;power and specifications&rdquo; and &ldquo;composition&rdquo; of products and as such, advertising containing relevant claims that are inaccurate in any respect will be in contravention of the Fraud Regulation.&nbsp; &nbsp;<br /><br /></p>\r\n<p>The ambit of the Fraud Regulation is much wider than the mere focus on &ldquo;commercial statements&rdquo; as defined therein, as it also provides that a trader may not resort to any tactic that would confuse or mislead the public, as well as providing that &ldquo;A trader, manufacturer or producer may not&rdquo;:&nbsp;<br /><br /></p>\r\n<p><em>&ldquo;Use&hellip; any form of manipulation of the truth&rdquo;; and&nbsp;<br /><br /></em></p>\r\n<p><em>&ldquo;All acts that could create confusion or mix-up in any manner with&hellip; commercial or industrial activity of competitors.&rdquo;<br /><br /></em></p>\r\n<p>Having regard to the provisions of the&nbsp;Fraud Regulation along with that contained in the Suppression of Fraud Law, contravention of the Fraud Regulation may expose an offending advertiser to both a fine and imprisonment.&nbsp;<br /><br /></p>\r\n<p>In addition to the application of the above mentioned laws to advertising activities, the Commercial Transactions Law provides additional protection to competitors in trade that may be affected by misleading advertising.&nbsp; The Commercial Transactions Law provides that a &ldquo;trader must not resort to fraud and cheating when making his goods, nor may he spread or publish false particulars that are prejudicial to the interests of another competitor trader&rdquo;.&nbsp; Where a trader is guilty of transgressing this provision, it shall be liable to pay damages.<br /><br /></p>\r\n<p>Although there is no self regulating body in the UAE that provides a forum for the submission and hearing of advertising related complaints, the UAE legal system provides a number of mechanisms through which both consumers and traders can complain against irresponsible and misleading advertising.&nbsp; There is accordingly no reason for either consumers or traders to accept irresponsible and misleading advertising in the UAE, especially where advertisers should take careful consideration of the significant cultural and language differences that exist in the consumer population in the UAE.&nbsp;<br /><br /></p>\r\n<p><strong>A complex regulation landscape<br /><br /></strong></p>\r\n<p>The legislation and regulations referred to above do not, and is not intended to, represent a summary of the law in the UAE as it applies to advertising, but rather highlight that both consumers and traders are protected in the UAE against irresponsible and misleading advertising.&nbsp; At the same time, it is important for advertisers to take note that their advertising activities are regulated in the UAE through a complex web of laws and regulations that demand of them to ensure the accuracy of communications with customers.&nbsp; When advertising relate to regulated products and services such as healthcare or tobacco, the level of regulation increases significantly, as does the associated sanctions flowing from non-compliance.<br /><br /></p>\r\n<p><strong>Best practice in compliance<br /><br /></strong></p>\r\n<p>There is a likelihood that the UAE Government&rsquo;s increased focus on consumer protection and efforts to make consumers aware of their rights as consumers may result in the more critical assessment of advertising claims by both consumers and government officials.&nbsp; Against the background of advertising regulation in the UAE and the more general social responsibility of advertisers to consumers, advertisers should ensure as a best practice that internal advertising approval includes an appropriate legal review and legal compliance approval.</p>\r\n<p>Please contact the Al Tamimi &amp; Company Intellectual Property department if you require any assistance related to the legal compliance of advertising campaigns, legal risk assessments related to advertising campaigns and advertising related complaints.</p>'),
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	(83809,4571,'_yoast_wpseo_metadesc','Endangered blank spaces: In 2007 in an article entitled “Anywhere the Eye Can See, It’s Likely to See an Ad”, appearing in the New York Times, it was suggested that blank spaces be added to the endangered list.'),
	(83810,4572,'content','<p>We routinely handle some of the ground breaking IP matters in the Middle East,  acting for major global brands and international and regional right  owners.<br /><br /><strong>BRAND PROTECTION<br /><br /></strong>Entrusted with some of  the most recognizable brands in the world, Al Tamimi &amp; Company&nbsp; trade mark  lawyers are amongst the most awarded in the region. Experts in the management of  entire portfolios of trade marks on a regional basis, our services include:-</p>\r\n<ul>\r\n<li>Trademark searches and clearances covering the Middle East region and  providing detailed analysis and advice on the availability and registrability of  a trademark on a regional basis.</li>\r\n<li>Trademark registration and prosecution of trademarks before the official  registries in the UAE and the Middle East region. This includes the registration  and prosecution of non-traditional trademarks, such as single color and 3D shape  trademarks.</li>\r\n<li>Enforcing IP rights by way of court, police, brooders (customs) and  administrative actions. This includes supervising raids commenced by the  relevant law enforcement agency, enforcement of non-traditional trademark rights  and enforcement of trademark rights against look-alikes.</li>\r\n<li>Coordinating and managing cross-jurisdictional IP litigation and disputes  involving Office actions (cancellations, oppositions) and Court actions.</li>\r\n<li>Providing strategies for multi-jurisdictional conflicts/disputes.  Structuring and negotiating settlement agreements on regional and global basis  on behalf of our clients.</li>\r\n<li>Advising clients prior to any product launches and taking measures to secure  proper protection for the intellectual property rights, and establishing a  system with clients&rsquo; marketing departments to ensure adequate protection is  sought at the outset.</li>\r\n<li>Providing advice on effective alternative dispute resolution.</li>\r\n<li>Structuring strategies for developing and strengthening clients&rsquo; existing  brands, and advising clients on the development, ownership, clearance and  protection of new brands and products.</li>\r\n<li>Advising clients on their promotional and advertising activities from a  trademark and copyright perspective.</li>\r\n</ul>\r\n<p><strong>PATENTS &amp; DESIGNS</strong></p>\r\n<p>Al Tamimi&nbsp; continues to be a leading force in the patent &amp; design  protection space in the Middle East through its services across the entire gamut  of patent &amp; design prosecution, litigation and commercialization matters for  large scale portfolio proprietors.</p>\r\n<p>Multijurisdictional Portfolio Management is a core strength of Al Tamimi  Patent &amp; Design lawyers. Compelling reasons why our clients have chosen to  rely on us as their first line of defence for patent &amp; design matters in the  Middle East include the following:-</p>\r\n<p><strong>-&nbsp;International Experience</strong><br /><br />Our lawyers have  international experience and exposure having worked with some of the most  recognizable names in the international Intellectual Property business including  regional inhouse experience. This translates into an in depth knowledge of cross  border anti counterfeiting campaigns as well as patent systems and a true  understanding of multijurisdictional issues especially in a region as complex as  the Middle East.</p>\r\n<p><strong>-&nbsp;Regional Coordination</strong><br /><br />Having a centralized point of  contact for patent matters makes sense in the Middle East as corresponding  applications entering into the national phase of a PCT application or enjoying  convention priority periods are filed. Our clients truly value the efficiency  and reduced risk that flows from using a centralized contact point in a complex  region. Relying on Al Tamimi as the regional coordinator means being able to  depend on our expertise with the local laws and practices, our relationships  with local agents and authorities, and our international level standards of  advice and service.</p>\r\n<p><strong>LITIGATION<br /><br /></strong>Building on our firm&rsquo;s strength as a  pioneering litigation powerhouse, we continue to write history by helming the  first ever patent infringement and revocation in the UAE. In the area of  trademarks, Al Tamimi&nbsp;&nbsp; has participated in shaping numerous court principles in  judgments establishing principles of well known marks, free riding and trade  dress infringement, priority of ownership and confusing similarity  factors.<br /><br /><strong>MEDIA &amp; ENTERTAINMENT</strong><br /><br />We  continue to work with major media companies and provide the contractual  essential advice, protection of IP assets, defend the clients in defamation  claims and underline the necessary guidelines for the operating staff, such as  news reporters, representatives and correspondents  overseas.<br /><br /><strong>CONSUMER PROTECTION AND COMPETITION,</strong></p>\r\n<p>Our consumer and regulatory affairs lawyers regularly provide clients,  including manufacturers and distributors, with legal advice concerning consumer  protection and competition issues in line with various laws such as the Consumer  Protection Law, the UAE Civil Code and the UAE Commercial Transactions Law. The  team works closely with the Litigation department in order to gain a clear  understanding of the courts&rsquo; approach in related circumstances for the benefit  of our clients.<br /><br /><strong>DATA PRIVACY</strong> <br /><br />Our Privacy and  Data Protection side, and owing to an unparalleled comparative knowledge and  local insight that our lawyers have as regards the privacy related legal regimes  in the whole Middle East, we are often called upon by many clients to coordinate  data privacy compliance assignments for the whole region. We regularly renders  advice in relation to the data privacy and information security issues in the  light of the legal thresholds protecting individual privacy as laid out in  various laws of the UAE, Saudi Arabia, Jordan, Qatar, Kuwait, and Iraq. We also  specialize in data compliance matters as regards the laws applicable to  specially regulated free zones, such as, the Dubai International Financial  Centre (DIFC) and the Qatar Financial Center  (QFC).<br /><br /><strong>ADVERTISING AND REGULATORY  AFFAIRS</strong></p>\r\n<p>This area remains quite rigidly regulated by the  relevant authorities in the region particularly in the areas of promotional  campaigns, marketing activities and competitions. We have extensive experience  in approaching the relevant authorities in the region to verify the conformity  of such activities. In addition, we are able to draw on the language skills of  our Arabic-speaking lawyers to make specific enquiries to the relevant  authorities including, for example, the Emirates Standards &amp; Metrology  Authority (ESMA) and the Consumer Protection Department of the Ministry of  Economy. We advise on the standards and regulations that govern food additive,  import and re-export requirements for foodstuff among other relevant regulatory  issues.</p>\r\n<ul>\r\n<li>Advising on brand position and restrictions of advertising</li>\r\n<li>Pharmaceutical and medical regulatory affairs, we advise clients&nbsp; in  regulatory related polices and registration</li>\r\n<li>Advising on online campaigns, consequences&nbsp; and required permits and the  jurisdictions of UAE enforcement bodies.</li>\r\n<li>Advising and drafting terms and conditions for promotions and marketing  campaigns on a regional basis.</li>\r\n<li>Advising on compliance of promotions with competition laws.</li>\r\n<li>Advising on formalities that are required before the competent authorities  including Economic Department licensing formalities and medical devices  registration formalities before the UAE Ministry of Health.</li>\r\n<li>Advising on the UAE Ministry of Health Pharmaceutical preparations  guidelines.</li>\r\n<li>Advising on permits, policies of marketing authorization holder, company  registration at the Ministry of Health and product registration before Dubai  Municipalities, including health related products.</li>\r\n<li>Advising on regulations of food control department at Dubai Municipality,  including the guidelines of registering the foods &amp; beverages importers and  compliance with Import and Re-Export requirements for foodstuff  regulations.</li>\r\n<li>Advising on compliance with Foreign Corruption Practices Act &ldquo;FCPA&rdquo; &amp;  Transparency International policies.</li>\r\n</ul>\r\n<p><strong>INTELLECTUAL ASSET MANAGEMENT</strong><br /><br /><strong>Our  Practice&nbsp;</strong> <br /><br />Intellectual Asset Management is a core competency of  our practice. We adopt a holistic approach in assisting our clients in realising  the optimal potential in mining their intellectual assets to extract the maximum  IP value from their investments in intangibles. <br /><strong>&nbsp;</strong></p>\r\n<p><strong>Our  Expertise</strong><br /><br />Our collective experience includes regional inhouse  experience at a global FMCG giant, which means that we can draw upon our  understanding of the inner mechanisms of corporate IP departments in conducting  IP due diligence with a multijurisdictional approach in respect of mergers &amp;  acquisitions, complex licensing structures, and intellectual asset management  across all IP subject matters including copyright, patent, trademark and  designs.<br /><br />We have an established network of IP associates in the major  markets of the world with whom we could access in conducting the necessary due  diligence and investigation on the targets&rsquo; IP worthiness as companies scour the  world for investment grade IP opportunities.</p>\r\n<p><strong>Our Services</strong></p>\r\n<ul>\r\n<li>We run Intellectual Asset Management programs for clients in managing their  IP portfolios for value by implementing programs designed to identify, protect  and exploit the resulting IP rights.</li>\r\n<li>We conduct reviews and gap analysis studies of the IP portfolios of IP rich  companies to optimize their IP holdings.</li>\r\n<li>We assist clients in evaluating patent, design, and trade mark portfolios of  target investee companies and investors in coordinating the necessary validity,  infringement and freedom to operate analyses including prior art and clearance  searches.</li>\r\n<li>We manage the IP aspects of acquisitions and strategic investments of target  companies where IP invariably underpins the entire deal</li>\r\n<li>We advise management teams on the restructuring of the operations, which  would involve IP audits of the various operations being restructured</li>\r\n</ul>\r\n<p>&nbsp;</p>'),
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	(83820,4572,'lawUpdateArticlePractices_0_lawUpdateArticlePractice','634'),
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	(83824,4572,'_yoast_wpseo_metadesc','Our comprehensive IP practice is the leading in the region with capabilities provided trademark, patent and design professionals across 10 offices in five countries.'),
	(83825,4573,'content','<p>The question arises however, as to the legal position of a party that has used  an unregistered trademark from a date anterior to the date of application for  registration of the same trademark by another.&nbsp; Should the party who applied  for, and secured registration of the relevant trademark still be the exclusive  owner of that mark?&nbsp; Should such a trademark proprietor be able to prevent the  prior user of the mark from making further use thereof? &nbsp; Should the prior user  of the mark be in a position to object to and / or cancel the registration of  the relevant mark by another?</p>\r\n<p>These questions are not academic.&nbsp; There is a real risk to both the users  of unregistered trademarks and the owners of some trademark registrations that  their rights to use their respective marks may be limited or even cancelled  under UAE law.&nbsp; The position with respect to the prior use of trademarks in the  registration context is not explicitly regulated under UAE law, resulting in a  level of legal uncertainty and possible prejudice to the parties involved in  such matters.</p>\r\n<p>With the implementation in 1992 of Federal Law no. 37 Concerning  Trademarks (the &ldquo;Law&rdquo;), owners of trademark registrations in the separate  Emirates, as well as the owners of unregistered trademarks, where all required  to re-apply for the registration of their trademarks with the Ministry of  Economy.&nbsp; In order to ensure that the proprietors of trademarks previously  registered or used where given a reasonable opportunity to retain the ownership  of their trademark rights during the one year transition period, Article 44 of  the Law specifically provided that prior use of a trademark would grant a  priority right to the user of the mark for the purpose of registration.&nbsp; Apart  from this one provision dealing with prior use, the Law is silent on the legal  effect of the prior use of trademarks in the trademark ownership and enforcement  contexts. &nbsp;</p>\r\n<p>The WTO Agreement on Trade-Related Aspects of Intellectual Property  Rights (TRIPS) provides in Article 16 (1) that: &nbsp;</p>\r\n<p><em>&ldquo;The owner of a registered trademark shall have the exclusive right  to prevent all third parties not having the owner&rsquo;s consent from using in the  course of trade identical or similar signs for goods or services which are  identical or similar to those in respect of which the trademark is registered  where such use would result in a likelihood of confusion.&rdquo;</em></p>\r\n<p>Article 16 (1) continues however, providing specifically that:</p>\r\n<p><em>&ldquo;The rights described above shall not prejudice any existing prior  rights, nor shall they affect the possibility of [WTO] Members making rights  available on the basis of use.&rdquo; &nbsp;</em></p>\r\n<p>Article 17 of the Law is aligned with the UAE&rsquo;s obligations under the  TRIPS agreement to the extent that it relates to the rights of owners of  registered trademarks, but as mentioned before, there is no explicit provision  related to the protection of &ldquo;existing prior rights&rdquo;.</p>\r\n<p>The prior use of trademarks may be relevant at a number of stages in the  trademark protection and enforcement lifecycle, but in all cases it turns to the  fundamental question of the ownership of the trademark. &nbsp;</p>\r\n<p>The Law provides in Article 3 for the kind of trademarks that shall not  be accepted for registration.&nbsp; In the event that a party who alleges prior use  of a trademark wishes to oppose a trademark application on the basis that the  mark is identical or similar to the prior used mark (and sought to be protected  in respect of the same or similar goods or services), the party alleging prior  use will have to rely on the existing general provisions of the Law.&nbsp; &nbsp;</p>\r\n<p>Based on our experience with the Ministry of Economy, we have found that  the registration of trademarks is based on a &ldquo;first to file&rdquo; basis and that  oppositions based on prior use are unlikely to be entertained.&nbsp; This position  appears to be an appropriate approach to prior used trademarks, provided that  there is adequate consideration of and provision for dealing with factors such  as possible bad faith on the part of the trademark applicant, the bona fide  ownership of the trademark and the possibility for the prior used trademark to  also be registered under such conditions as may be reasonable (limited with  respect to goods/services or geography for example).&nbsp; The position can be taken  that an equitable approach to dealing with situations where there is continuous  use of a trademark subsequently registered by a third party in good faith, is  not to penalize either party by &ldquo;expropriating&rdquo; their rights, but rather to  allow for the formalisation of a co-existence relationship that would have  existed in the market. &nbsp;</p>\r\n<p>Article 21 of the Law provides for the cancellation of registered  trademarks where a mark was registered wrongly.&nbsp; Article 21 does not specify  the criteria to determine when a mark is to be considered registered &ldquo;wrongly&rdquo;  and there is accordingly more scope in cancellation proceedings to argue for the  removal of a trademark from the register based on &ldquo;prior use&rdquo;.&nbsp; Where prior use  is underpinned by a clear prior right copyright, or a cancellation action is  supported by proven bad faith on the part of the trademark applicant, a  cancellation action may have good prospects to be successful. &nbsp;</p>\r\n<p>Article 21 must be read with the provisions of Article 17 which provides  that once a trademark had been used for a period of five years from the date of  its registration, its validity can no longer be disputed.&nbsp; This article provides  a clear statutory limitation on the possible cancellation of trademark  registrations providing some balance between the rights of registered right  holders and the users of unregistered marks.</p>\r\n<p>The exclusive right of the proprietor of a registered trademark in  respect of the use of its trademark is articulated in Article 17 of the Law,  which&nbsp; provides that the owner of a registered mark shall enjoy the right of  preventing third parties to use an identical or similar mark to distinguish  identical or similar products or services or products or services related to the  products and services in respect of which the mark is registered, in a way that  may lead to cause confusion to consumers.&nbsp; In addition to this general  provision, there are also specific trademark infringement provisions in the Law,  but again there is no provision in respect of prior use in the context of  infringement.&nbsp; The implication is that &ldquo;prior use&rdquo; is not recognized as a  defense to trademark infringement claims in the Law, as it is in some other  jurisdictions.&nbsp;</p>\r\n<p>The prior user of an unregistered trademark in the UAE may accordingly be  subjected to a trademark infringement claim despite use of the &ldquo;infringing&rdquo;  trademark predating the date of application for the relevant registered  trademark.&nbsp; If the infringement action takes place within five years from the  date of registration of the registered trademark, it may be possible for the  prior-user to seek the cancellation of the relevant trademark registration.&nbsp;  However, in the event that the infringement action takes place after five years  from the date of registration of the registered trademark, the cancellation of  the registered trademark would no longer be a possible way to defend the claim  of infringement.</p>\r\n<p>The question of &ldquo;prior use&rdquo; has been the subject of a number of legal  disputes in the UAE in the past, with users of unregistered trademarks having  sought the cancellation of registered trademarks before the competent courts.&nbsp;  In a number of cases dating back to the 1980s (predating the Law) the courts  accepted the principle of &ldquo;prior use&rdquo; and found in favour of the earlier users  of marks. This approach was also followed by the Cassation Court of Dubai in a  judgment of 30 November 2003 (case no. 260/2003) where it confirmed that the  ownership right in a trademark can be established through the use of the mark  and not only through obtaining a trademark registration. It accordingly follows  that, the prior users of registered trademark(s) remain entitled to challenge  the registration of those marks by third parties and seek cancellation of such  registration(s) within the first five year of their registration.&nbsp; However,  indications are that there is no consistency in the way that courts deal with  the claims of&nbsp; &ldquo;prior use&rdquo; or the evidences related to the proof thereof in  cancellation proceeding.</p>\r\n<p>As mentioned above, an equitable approach to claims of trademark  cancellation or infringement where there is &ldquo;prior use&rdquo; involved, may not be to  &ldquo;expropriate&rdquo; the right or penalize the party making use of the unregistered  trademark, but rather to allow for the formalisation of a co-existence  relationship that would have existed in the market.&nbsp; In order however to achieve  this goal, the Law will have to be amended to provide for the coexistence of  such marks, as well as a statutory defense to trademark infringement proceedings  in this context.&nbsp;</p>\r\n<p>The Law&rsquo;s silence on the regulation of prior use has resulted in  considerable uncertainty and an imbalance in the protection of the rights of the  proprietors of registered trademarks and the rights of the prior users of  unregistered trademarks.&nbsp; There is clearly a need on the part of trademark  owners for the legislator to address prior use in order to provide both  certainty and an equitable framework with respect to the ownership, protection  and enforcement of rights in this context.&nbsp; It is hoped that with adequate  involvement from relevant stakeholders, the legislator may consider amending the  Law, which may include:</p>\r\n<ol>\r\n<li>An express provision that a mark in respect of which the application for  registration was made in bad faith should not be registered as a trademark.</li>\r\n<li>A provision to the effect that the proprietor of a registered trademark  shall not interfere with or restrain the use by any person of an unregistered  trademark where that person has made use of that unregistered trademark  continuously and in good faith from a date that is earlier than the date of the  use of the registered trademark.</li>\r\n<li>A statutory recognition of the laches doctrine as a defense against prior  users that neglect to assert a claim for an unreasonable lapse of time to the  detriment of the owner of a registered trademark.&nbsp;</li>\r\n</ol>\r\n<p>While the uncertainty with respect to matters of &ldquo;prior use&rdquo; continue,  and irrespective of any amendments to the Law that may or may not take place in  the future, it is of critical importance to the users of trademarks to ensure  that they diligently clear the use of proposed marks and seek adequate  protection for those marks through registration.&nbsp; These steps will not remove  the uncertainty that exists with respect to &ldquo;prior used&rdquo; trademarks, but will  put trademark owners in the best possible position to address this uncertainty  and protect their rights.</p>'),
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	(83829,4573,'content_description','The point of departure in considering trademark ownership is that the party who applies for and secures registration of a trademark shall be the exclusive owner of that trademark in respect of the goods and services in relation to which it is registered.'),
	(83830,4573,'_content_description','field_59b641c07f473'),
	(83831,4573,'pageSummary','The point of departure in considering trademark ownership is that the party who applies for and secures registration of a trademark shall be the exclusive owner of that trademark in respect of the goods and services in relation to which it is registered.'),
	(83832,4573,'_pageSummary','field_59e59b307dec8'),
	(83833,4573,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-6/september-2/the-prior-use-doctrine-in-uae-trademark-law.html'),
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	(83835,4573,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Waldo Steyn'),
	(83836,4573,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(83837,4573,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','w.steyn@tamimi.com'),
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	(83840,4573,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation','field_59e59b05d15df'),
	(83841,4573,'lawUpdateArticleNoWriters_1_lawUpdateAuthorName','Munir Suboh'),
	(83842,4573,'_lawUpdateArticleNoWriters_1_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(83843,4573,'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail','m.suboh@tamimi.com'),
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	(83853,4573,'_yoast_wpseo_metadesc','The point of departure in considering trademark ownership is that the party who applies for and secures registration of a trademark shall be the exclusive owner of that trademark in respect of the goods and services in relation to which it is registered.'),
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	(83860,4574,'lawUpdateYear','2012'),
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	(83862,4574,'pageSummary',''),
	(83863,4574,'_pageSummary','field_59e59b307dec8'),
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	(83866,4574,'currentURL','http://localhost:8888/tamimi/en/section/law-update/section-6/october-2'),
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	(83868,4576,'content','<p>More guidance is provided than in the existing laws and regulations and there are a few important matters of note, including changes to registration and capital requirements (differing between local and foreign brokers), guarantees and premium collection. <br /><br /><strong>Capital</strong><br /><br />For Local Brokers, the Regulations have increased the minimum paid up capital requirement to AED5 million, up from AED1 million as currently stipulated in the Ministerial Decision No. (543) of 2006 regulating of Insurance Brokers\' Profession. There is still a 51% local share capital ownership requirement in terms of a Local Broker.&nbsp; <br /><br />Where the Broker is classed as foreign (branch), it requires a minimum paid up capital of AED10 million in its country of registration and they require a local national representative.<br /><br /><strong>Financial Guarantees</strong><br /><br />Financial guarantees currently required of Brokers has also increased, from the indemnity required under professional liability insurance, to bank guarantees required to survive the termination of a Broker arrangement.<br /><br />Insurance Brokers are obliged to submit to the IA a professional liability policy of not less than AED3 million for a Local Broker and AED5 million for a foreign Broker per event, in the event of civil liability arising from damages occurring due to the practicing of its profession. This is up from the current requirement of AED1.5 million for local or foreign brokers.<br /><br />A further Bank Guarantee is also required for liabilities not arising/covered under the above-mentioned insurance policy and is to be dedicated to rights arising to third parties. This Guarantee is to be for one year, automatically renewable during the term of the Brokers registration and of continual duration beyond the date of terminating registration until a decision is made by the IA to cancel the Guarantee. Currently this Guarantee need only be for a period of one year following termination of registration.&nbsp; For Local Brokers the guarantee has gone up from AED1 million to AED2 million for the main office and from AED500,000 to AED1 million for each branch office.&nbsp; Foreign Brokers require AED3 million for the main (branch) office and AED 2 million for each additional branch in the State.<br /><br /><strong>Duties of Broker</strong><br /><br />Not only do the Regulations provide for increased financial guarantees from Brokers, but it also sets out with more detail, the responsibilities and obligations of Brokers to Insurers and Brokers to Clients.&nbsp; Brokers duties need to be encompassed in an agreement containing several provisions including the period of the agreement, classes of insurance to be brokered, geographic territory, whether the broker is authorised to collect premiums (where authorisation is permitted, i.e. compulsory motor vehicle insurance), how to pay balances from one party to the other (if permitted) and the Broker&rsquo;s entitlement to commission.&nbsp;<br /><br /><strong>The Brokerage agreement is not to include authorisations for the Broker to:</strong></p>\r\n<ul>\r\n<li>Issue policies, endorsements or amendments (except in respect of motor vehicle policies);</li>\r\n<li>Accept indemnities due to the insured or its beneficiaries; or</li>\r\n<li>To deny claims.</li>\r\n</ul>\r\n<p>Provisions are also included to prevent Insurers from poaching Clients already working with the Broker and neither party is permitted to offer a better deal to a Client who has authorised both Insurer and Broker in respect of the same insurance. <br /><br />The Regulations stipulate that the Broker now requires a Power of Attorney (&ldquo;POA&rdquo;) from the Client authorising them to carry out the anticipated insurance brokerage.&nbsp; The POA will need to be sent to the IA for their comment and amendment if necessary. The Regulations also set out certain requirements for the POA.<br /><br />The Broker is required to solicit conditions and rates from at least two or more companies for the client. The Broker is obliged to advise the client of their disclosure obligations, the importance of paying premiums and the repercussions for not complying with these obligations.<br /><br />When a policy is coming up for renewal, the Broker is obliged to advise the client in a timely manner. They should also (if authorised) follow up on claims and indemnities due to the client, specify the legal procedures, documents to be submitted and provide explanations and guidance.<br /><br /><strong>Finances<br /><br /></strong>Contrary to the common practice of local insurance Brokers in the UAE, the Regulations stipulate that the Client is to pay the insurance premium and any other amounts due from the Client, directly to the insurance company and not to the Broker.&nbsp; Furthermore, the Broker has no right to receive the insurance premiums or any amount due from the Client (this does not apply to compulsory insurance of civil liability arising from motor vehicle accidents where the Broker is permitted to collect premiums and pay to the Insurer).<br /><br />Brokers need to keep their accounts and records for their business, separate from Client accounts and records.<br /><br />Brokers will also be required to submit audited accounts to the IA every year; and the IA may also be appointed to examine Brokers&rsquo; books and records.<br /><br /><strong>Penalties and Disputes<br /><br /></strong>Penalties provided for under the Regulations in cases of violations, include the service of a written notice and an opportunity to remedy; suspension from practice (not to exceed 6 months, or double in the case of a repeated offence): and/or cancellation of registration.&nbsp; If an IA registration is to be cancelled, the IA is to give notice by way of publication in two newspapers, one Arabic and one English.<br /><br />If there are any disputes arising in relation to the Regulations and any requirements/obligations/ action there under, it is to be first referred to the IA to see if a compromise can be reached, before judicial action is taken.<br /><br /><strong>Effects</strong><br /><br />The proposed Regulations are more likely to have a greater effect upon the Local insurance brokerage industry, particularly the smaller companies who may struggle to come up with the increased paid up capital. It may also require a change to long held practices of collecting premiums from clients and using for their own short term capital requirements.&nbsp;<br /><br />Irrespective of the above, the above changes may bring the UAE closer to a standard of international best practice of which our insurance broking industry should be striving for.<br /><br />With only one year provided to comply once the Regulations are implemented; Brokers, Local and Foreign, need to start considering now some of the proposed changes to compliance requirements, in order to be able to smoothly implement any systems or organisational changes necessary, within the allocated time frame.</p>'),
	(83869,4576,'_content','field_59b649b5c8b2b'),
	(83870,4576,'lawUpdateArticleMonth','4574'),
	(83871,4576,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(83872,4576,'content_description','The Insurance Authority (“IA”) issued a circular in August this year containing the proposed new regulations (the “Regulations”) in relation to Insurance Brokers, their registration requirements, basic rules on organisation structure, as well as guidance on the relationship between Broker, Insurer and Client.'),
	(83873,4576,'_content_description','field_59b641c07f473'),
	(83874,4576,'pageSummary','The Insurance Authority (“IA”) issued a circular in August this year containing the proposed new regulations (the “Regulations”) in relation to Insurance Brokers, their registration requirements, basic rules on organisation structure, as well as guidance on the relationship between Broker, Insurer and Client.'),
	(83875,4576,'_pageSummary','field_59e59b307dec8'),
	(83876,4576,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-6/october-2/proposed-draft-regulation-the-registration-of-insurance-brokers-and-organisation-of-their-operations.html'),
	(83877,4576,'_currentURL','field_59d35123ab1e7'),
	(83878,4576,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Angelique Watkins'),
	(83879,4576,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(83880,4576,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.watkins@tamimi.com'),
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	(83890,4576,'_yoast_wpseo_metadesc','The Insurance Authority (“IA”) issued a circular in August this year containing the proposed new regulations (the “Regulations”) in relation to Insurance Brokers, their registration requirements, basic rules on organisation structure, as well as guidance on the relationship between Broker, Insurer and Client.'),
	(83891,4577,'content','<p>However in relation to immovable property (land) in the UAE, there is a divergence between how ownership, and the transfer of ownership, is dealt with under Shari&rsquo;a principles and UAE law. This issue is further compounded by the different approaches in each Emirate to registration of Islamic finance contracts such as Ijara, including whether financial institutions with foreign ownership can own (under an Ijara) property in certain areas.<br /><br />So what happens when a finance party does not take legal ownership and instead relies on contractual ownership of immovable property (commonly referred to as Shari&rsquo;a title) with a mortgage?<br /><br />In previous articles we have highlighted the numerous positive Court judgments which have been obtained for our clients in relation to termination of Ijara to confirm the ownership of the finance party, including compensation in some cases, and enforcement of the purchase undertaking. All of these cases involved the finance party as legal owner of the property.<br /><br />Recently Al Tamimi filed proceedings to enforce a mortgage held by a finance party under an Ijara, where the legal ownership of the property was left in the name of the customer.&nbsp; In this case:</p>\r\n<ol>\r\n<li>Pursuant to Article 25 of Law No.14 of 2008 (the &ldquo;Mortgage Law&rdquo;), notice was served on the customer through the notary public giving the 30 days cure period.&nbsp; The default in payment was evidenced by bounced cheques of the customer.</li>\r\n<li>Consequently, an execution case was filed directly before the execution judge on the basis of the mortgage deed, the finance application submitted by the customer, the offer letter and the bounced cheques.</li>\r\n<li>The Court ordered to enforce the mortgage and to sell the mortgaged property by auction through the Dubai Lands Department, and ordered for the finance party to receive all the outstanding (the claim amount) and all related expenses.</li>\r\n</ol>\r\n<p>In addition to the structural differences with this case as a result of the ownership of the property and security, one of the fundamental differences to previous cases was the way the debt claim was approached. In order to work within the requirements of the Mortgage Law, and to have an actual amount due and secured by the mortgage, proceedings were lodged on the basis the finance party had provided finance to the customer which had defaulted in payment (as opposed to utilising the customary remedies provided for in the Ijara documents).<br /><br />While issues still surround the enforcement of Ijara with mortgage (such issues warranting their own article), and while it is a structure we would not necessarily recommend, the judgment is a positive result for finance parties in Dubai with this existing structure.</p>\r\n<p><strong>Speedy execution of share pledge<br /><br /></strong>Al Tamimi recently obtained a judgment for our client in relation to the enforcement of a pledge of shares listed on the Abu Dhabi Securities Exchange.&nbsp; In a case involving a debt of AED170 Million the Abu Dhabi summary Court of First Instance ruled to sell the pledged shares as a result of the default in payment by the customer on the due date.<br /><br />In this case, the bank had registered a pledge on the shares owned by the customer as security of the facility given by the bank. As a result of the customer (debtor) failing to pay back the facility, the bank served notice as per Article 172 of the Commercial Code.&nbsp; After the 7 days stipulated in the above mentioned article passed, the bank submitted an application to the Summary Court of Abu Dhabi requesting the Court to make an order to sell the shares in order to cover the loan and its interests and all related expenses.<br /><br />The Court agreed to hear the case on an urgent basis and ruled to sell the pledged shares through one of the broker companies authorized by the ADX, and to pay the debt owed to the bank plus interests and expenses.<br /><br />This judgment represents a positive outcome for banks and security holders, in particular where registered security over listed shares is held, in that:</p>\r\n<ol>\r\n<li>the case was heard on a urgent basis.&nbsp; Although the Court requested that the customer be formally notified, it was for all other purposes completed on a summary proceedings basis;</li>\r\n<li>the process was completed very quickly - judgment was issued within 6 months, with sale of the shares on the market taking another 4 months; and</li>\r\n<li>rather than selling the shares by public auction, the Court followed past precedent to allow the listed shares to be sold on market.</li>\r\n</ol>'),
	(83892,4577,'_content','field_59b649b5c8b2b'),
	(83893,4577,'lawUpdateArticleMonth','4574'),
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	(83895,4577,'content_description','Ijara with mortgage – a contradiction? A fundamentally element of the Ijara is the fact that the finance party is the owner of the relevant assets, whether they be immovable or movable property.\r\n'),
	(83896,4577,'_content_description','field_59b641c07f473'),
	(83897,4577,'pageSummary','Ijara with mortgage – a contradiction? A fundamentally element of the Ijara is the fact that the finance party is the owner of the relevant assets, whether they be immovable or movable property.\r\n'),
	(83898,4577,'_pageSummary','field_59e59b307dec8'),
	(83899,4577,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-6/october-2/enforcement-update.html'),
	(83900,4577,'_currentURL','field_59d35123ab1e7'),
	(83901,4577,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Jody Glenn Waugh'),
	(83902,4577,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
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	(219850,7728,'videoContentField','The United Arab Emirates, has issued Federal Law No. 6 of 2018, which formally promulgates a new arbitration law for the UAE and repeals the previous provisions contained within the Arbitration Chapter of the UAE Civil Procedures Law No. 11 of 1992. In the video Thomas Snider, Partner &amp; Head of Arbitration in Al Tamimi &amp; Company, explains the new arbitration law.\r\n\r\nThe much-awaited self-standing arbitration law of 61 articles, which is based on the UNCITRAL Model Law, will significantly revamp UAE arbitration law. The new law is expected to build the UAE’s reputation as a preferred seat for international arbitration in the region, since it is aligned with international best practice and standards.\r\n\r\nIt touches on arbitration agreements, the appointment of the arbitral tribunal, arbitral proceedings, arbitration awards, and reinforcement of those awards.\r\n\r\nThe law incorporates the key features and principles that one sees in international arbitration, principles such as the doctrine of separability.\r\n\r\nRead more on the issuing of <a href=\"http://localhost:8888/tamimi/blog/uae-issues-federal-arbitration-law-no-6/\">the UAE’s New Arbitration Law Federal Law No 6</a>.\r\n\r\nAn unofficial English translation of the law can also be found <a href=\"http://localhost:8888/tamimi/crm-media-uploader/fileupload/server/php/files/UAE%20Arbitration%20Law%20-%20Federal%20Law%20No%20%206%20of%202018.pdf\">here</a>.\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Company has a dedicated arbitration team and advises on international commercial and investment arbitration. For further information, please contact <a href=\"http://localhost:8888/tamimi/lawyer/essam-al-tamimi/\">Essam Al Tamimi</a> (<a href=\"mailto:e.tamimi@tamimi.com\">e.tamimi@tamimi.com</a>), <a href=\"http://localhost:8888/tamimi/lawyer/hassan-arab/\">Dr. Hassan Arab</a> (<a href=\"mailto:h.arab@tamimi.com\">h.arab@tamimi.com</a>), or <a href=\"http://localhost:8888/tamimi/lawyer/thomas-snider/\">Thomas Snider</a> (<a href=\"mailto:t.snider@tamimi.com\">t.snider@tamimi.com</a>).\r\n\r\n<strong><em> <a href=\"https://www.youtube.com/channel/UCiNjxGP327UmWLNNghaunyg?view_as=subscriber\">Subscribe</a> to our channel today for access to the best legal solutions, knowledge, experience and expertise.  </em></strong>\r\n\r\n<hr />\r\n\r\n&nbsp;\r\n\r\nText Transcript\r\n<em>We’re very pleased to announce that the UAE has signed a new arbitration law, Federal Law Number Six of 2018. The new law covers the entire arbitral process. It covers the arbitration agreement, the appointment of the tribunal, the arbitral proceedings themselves, as well as the award and the enforcement of the award. Importantly, the law incorporates the key features and principles that one sees in international arbitration, principles such as the doctrine of separability which says that arbitral agreement is separate or severable from the underlying contract in which it appears, and the principle of competence-competence which allows the arbitral tribunal rather than the courts to assess its own jurisdiction in the first instance. The UAE is already an arbitration-friendly jurisdiction. That flows from the simple fact that there’s a tremendous amount of trade and commerce flowing through the UAE. With this new law, you could start to see the UAE being on par with established international arbitral seats, such as London, Paris, and increasingly Singapore.</em>'),
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	(219881,1002,'_wp_attachment_image_alt','Ivor McGettigan'),
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	(83935,4579,'content','<p>The CML and its Regulations were issued to regulate the securities market in Kuwait and to organize stocks and securities in a fair, transparent and competitive way.&nbsp; They also help to keep the public aware of stock activity, along with the risks, the benefits and the responsibilities associated with investing in securities and aim to encourage growth and to provide protection to those partaking in trading activities of securities and stocks.<br /><br />On 5 June 2012, the Board of Commissioners of the Capital Market Authority (&ldquo;Board of Commissioners&ldquo;) issued a set of detailed instructions aiming to apply full disclosure policies in such a manner that would achieve justice and transparency while preventing conflicts of interest and exploitation of internal information (&ldquo;Disclosure Requirements&rdquo;).&nbsp;<br /><br />Disclosure Requirements are applicable to all listed companies (&ldquo;Issuing Companies&rdquo;) having their securities listed with the Kuwaiti Stock Exchange (&ldquo;Stock Exchange&rdquo;). Moreover, according to the Disclosure Requirements, Issuing Companies must disclose any information related to the company which is not known to the public and would be critical to the potential investor&rsquo;s investment decisions.<br /><br />The information shall be deemed to be critical to the public&rsquo;s investment decision and hence the Disclosure Requirements shall be triggered if the information falls under the &ldquo;materiality&rdquo; criteria defined therein. Material information includes any event that might have an effect on the Issuing Company&rsquo;s assets, financial position or normal course of business, leading to a change in the Issuing Company&rsquo;s securities price, tradability, attraction or reluctance of investors to purchasing the security or reducing the Issuing Company&rsquo;s capability to meet its financial obligations.<br /><br />The Disclosure Requirements include a wide range of cases and events that may occur and constitute Material Information triggering the disclosure requirement. Upon the occurrence of any of such events, Issuing Companies are obliged to announce such matters to the public in accordance with the mechanism specified by the Disclosure Requirements. As previously illustrated, the material cases and events provided under the Disclosure Requirements are quite extensive and include numerous events that may be directly or indirectly related to the Issuing Companies. However, the following are some of the most significant and relevant of these cases:</p>\r\n<ul>\r\n<li>entering into a joint venture and merging with or acquiring another company;</li>\r\n<li>entering into or concluding a material agreement (including but not limited to credit facilities and corporate guarantee agreements);</li>\r\n<li>purchasing or selling a material asset;</li>\r\n<li>any changes to the board of directors of the Issuing Company; and</li>\r\n<li>any changes to the shareholding structure of the Issuing Company leading to an acquisition of a shareholder of 5% or more of the Issuing Company shares.</li>\r\n</ul>\r\n<p>As noted above, these cases are a sample provided under the Disclosure Requirements requiring announcement and disclosure thereof to the public. Nevertheless, in order for the Issuing Company to determine the impact and materiality of the potential information (hence disclose it as required) it must take into consideration the relevance of the information to the &ldquo;prudent investor&rsquo;s&rdquo; decision. A prudent investor is defined as the normal investor seeking to increase his profits. In other words, the Issuing Company must take in to consideration whether or not the prudent investor shall rely on such information in his investment decision. Also in determining the materiality of the information, the Issuing Company must consider different factors related thereto including but not limited to its size (large, medium and small), recent developments related thereto and the general status of the market and the sector it operates in.</p>\r\n<p>Finally, it is also worth noting that the Disclosure Requirements have provided exceptions to the disclosure requirements, where the Issuing Company may be entitled to postpone disclosing material information if such information is still unconfirmed or within the negotiations phase.</p>'),
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	(83591,4561,'_yoast_wpseo_metadesc','Following the Council of Ministers Resolution Nos. 125/6/4 of 2012 dealing with the collection, recycling and safe disposal of mobile phone handsets in the United Arab Emirates (UAE), the Council of Ministers on 5 June 2012 issued Resolution No. 20 of 2012 (the “Resolution”) imposing a levy on all mobile phone handsets imported into the UAE for the purpose of use within the UAE.'),
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	(83069,4531,'content_description','Summary :On 21.05.12, the Dubai Court of Appeal ruled in favour of Global Investment House (GIH), a Kuwaiti investment company represented by Al Tamimi & Company in a case which confirmed the refund of the deposit made by GIH (an amount of USD 250 million) plus interest at the rate of 9 % with effect from 3 December 2008 (the date of the legal notice given to National Bank of Umm Al Quwain to return the deposit).\r\n'),
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	(83071,4531,'pageSummary','Summary :On 21.05.12, the Dubai Court of Appeal ruled in favour of Global Investment House (GIH), a Kuwaiti investment company represented by Al Tamimi & Company in a case which confirmed the refund of the deposit made by GIH (an amount of USD 250 million) plus interest at the rate of 9 % with effect from 3 December 2008 (the date of the legal notice given to National Bank of Umm Al Quwain to return the deposit).\r\n'),
	(83072,4531,'_pageSummary','field_59e59b307dec8'),
	(83073,4531,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-6/june-4/al-tamimi-company-wins-one-of-the-largest-commercial-disputes-before-the-dubai-courts.html'),
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	(83078,4531,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(83079,4531,'_yoast_wpseo_metadesc','Summary :On 21.05.12, the Dubai Court of Appeal ruled in favour of Global Investment House (GIH), a Kuwaiti investment company represented by Al Tamimi & Company in a case which confirmed the refund of the deposit made by GIH (an amount of USD 250 million) plus interest at the rate of 9 % with effect from 3 December 2008 (the date of the legal notice given to National Bank of Umm Al Quwain to return the deposit).'),
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	(83092,4532,'currentURL','http://localhost:8888/tamimi/en/section/law-update/section-6/july-august-1'),
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	(83094,4534,'content','<p>In the United Arab Emirates alone, consumers spend three times more than enterprises on IT - smartphone penetration in the UAE is 47%; higher than the US which stands at 40%. Employee productivity can be increased by making advantage of the popularity of mobile devices. Although cost savings can be realized by companies exploring this avenue there are IT issues that should&nbsp;making the switch.</p>\r\n<p><strong><br /></strong></p>\r\n<p><strong>BYOD: THINGS TO KEEP IN MIND</strong></p>\r\n<p><strong><br /></strong></p>\r\n<p>While an increase in employee satisfaction and productivity is a valid consideration, there are several challenges to implementing a BYOD policy:</p>\r\n<p><strong><br /></strong></p>\r\n<p><strong>Security</strong></p>\r\n<p><strong><br /></strong></p>\r\n<p>It is very dangerous for a device that is loaded with company data and emails to fall into the wrong hands. Most mobile devices come with basic security features like passwords and locks. However, many users do not enable these, and when they do they use very weak passwords. A device&rsquo;s inbuilt security features may not be entirely reliable. Companies planning on allowing BYOD must first educate their employees on best practices for securing their devices. The use of complex passwords and should be a consideration when giving corporate users access to business applications.</p>\r\n<p>Smart phones come in many shapes, forms and operating systems. Companies should decide how much they can invest in making the proper modifications to connect each employee&rsquo;s personal device tothecorporatenetwork.Moreover,given the variety of IT issues users are likely to encounter, corporate users must also decide who is responsible for the device&rsquo;s technical support before considering a BYOD policy. If BYOD means that the IT team will have to be familiar with a range of devices, there will be a cost impact.</p>\r\n<p><strong><br /></strong></p>\r\n<p><strong>Malware/Viruses</strong></p>\r\n<p><strong><br /></strong></p>\r\n<p>The often indiscriminate use of personal smartphones, laptops and PDAs to access applications, documents and social networking sites can leave personal devices open to a variety of viruses and malware. Corporate users are also more prone to targeted attacks using unique malware designed by hackers to gather sensitive information. Companies should put in place an acceptable usage policy in order to ensure that employees are not unwittingly disclosing sensitive corporate&nbsp;</p>\r\n<p>information and documents when using personal devices on the company&rsquo;s network.</p>\r\n<p>Before implementing a BYOD policy:</p>\r\n<ul>\r\n<li>Develop an accurate picture of the nature of the data and classify it in order to determine its sensitivity level.</li>\r\n<li>Determine where the corporate data is stored (i.e. which systems and devices it is stored in, and what back-up procedures anddisasterrecoverypoliciesareinplace).</li>\r\n<li>Review how and where employees, contractors and visitors to the company can access, copy, and transmit data.</li>\r\n<li>Institute a workable usage policy and code of conduct for how users should use their devices.</li>\r\n<li>Install security on all computers and mobile devices owned by the company, and work with employees to ensure that they have installed up-to-date security software on their devices.</li>\r\n</ul>\r\n<p><strong><br /></strong></p>\r\n<p><strong>SETTING UP AND ENFORCING A BYOD POLICY</strong></p>\r\n<p><strong><br /></strong></p>\r\n<p>Companies that allow or are considering allowing employees to use their own mobile devices at work should implement a BYOD security policy that clearly outlines the company&rsquo;s position and governance policy to help IT better manage these devices and ensure network security is not compromised by employees using their own devices at work.</p>\r\n<p>Two departments that should be consulted regarding the development of a BYOD policy are the IT and HR departments. An IT department has the technical expertise to provide information on the abilities and limitations of devices and give insight on its capacity to support and handle logistic challenges presented by the use of a range of devices. Further, an IT department can provide&nbsp;information about the security of sensitive material on personal devices and provide guidance on the kinds of policies that would aid in data protection.</p>\r\n<p>To ensure data security, companies should set up a secure remote access procedure that details the technical steps users must take to connect their devices securely to any company-connected network. Furthermore, a &ldquo;digital certificate&rdquo; (i.e. a means to verify that a user sending a message is who he or she claims to be) should be installed on every device so that e-mail and calendaring functions can be authenticated between the device and the company server.</p>\r\n<p>The HR department is instrumental to the development of a new BYOD policy and must make sure that it integrates all existing policies without contradicting the same. It determines the penalties for not adhering to the policy and ensures that the policy and penalties are in line with company standards. Competent legal assistance should be sought to draft such policies and procedures to ensure that they are suited to the task.</p>\r\n<p>Adapting to the changing technology landscape and industry demand is a routine exercise for all businesses but it is important to undertake such changes in an informed manner so as to avoid security risks and needless cost.</p>\r\n<p>Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team, led by David Yates, regularly handles issues arising from the impact of technological developments in a business context.</p>\r\n<p>Our Employment and Incentives team, led by Samir Kantaria, regularly advises on HR policies, and legal compliance in the context of employment relations. For further information about BYOD and its impact in an employment context, please contact David Yates (d.yates@tamimi.com) or Samir Kantaria (s.kantaria@tamimi.com)</p>\r\n<p>The writer wishes to thank Ahsan Hasnani for his contribution to this article.</p>'),
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	(83098,4534,'content_description','In the consumerization of IT, bring your own device (BYOD) refers to the use of personal devices, such as smartphones, laptops and PDAs, for work purposes, including connectivity on the corporate network.'),
	(83099,4534,'_content_description','field_59b641c07f473'),
	(83100,4534,'pageSummary','In the consumerization of IT, bring your own device (BYOD) refers to the use of personal devices, such as smartphones, laptops and PDAs, for work purposes, including connectivity on the corporate network.'),
	(83101,4534,'_pageSummary','field_59e59b307dec8'),
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	(83107,4534,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(83108,4534,'_yoast_wpseo_metadesc','In the consumerization of IT, bring your own device (BYOD) refers to the use of personal devices, such as smartphones, laptops and PDAs, for work purposes, including connectivity on the corporate network.'),
	(83109,4535,'content','<p>Given the pervasive nature of social media, and the substantial increase in the use of social networking sites by individuals and corporate entities in the UAE, we outline the legal landscape and some of the key issues that affect users of social media, whether in a personal or corporate capacity.<br /><br />The increased popularity of social networking sites (or otherwise known as &ldquo;social media&rdquo;) in the UAE brings with it the potential to create great economic value. The Arab Media Outlook 2011-2015 (a report presenting an overview of the regional media industry) showed that social media has grown significantly across the Arab world, with over 90 per cent of all internet users in the UAE using social networking sites like Facebook. Additionally, the frequency of use has significantly increased in the past couple of years with over 65 per cent of these users visiting social networks more than once a day.<br /><br />Users of social media are not limited to the &ldquo;i-generation&rdquo; of individual bloggers, Facebook and Twitter users. Instead, its popularity and potential audience-reach has influenced corporate entities to adopt social media as part of their day-to-day marketing campaigns. While the corporate use of social media can help boost business growth, it can also bring with it increased risks, including targeted attacks on personal information, software attacks, and risks to reputation. These concerns are not limited to corporate entities, and can also affect non-corporate entities and individual users of social media.<br /><br /><strong>Laws Regulating Social Media in the UAE</strong><br /><br />As laid out in the &ldquo;Regulation of digital content in the UAE &ndash; Part One&rdquo;, published in the last issue of Law Update, there are various laws and regulations that apply to traditional media. These laws also apply to digital media, and may be applicable in social media contexts. We summarize these key laws again below:<br /><br />1.&nbsp;Federal Law No 15 for 1980 concerning Publications and Publishing (Publications Law) &ndash; The Publications Law governs both traditional media and digital media content. It covers all forms of published content and sets out matters that may not be published, which include matters related to religion and politics, national security, individual rights, and public morals.<br /><br />2.&nbsp;Federal Law No 2 of 2006 on the Prevention of Information Technology Crimes (Cyber-Crime Law) - The Federal Government has also enacted the Cyber-Crime Law which prohibits any intentional act that abolishes, destroys, or reveals secrets, or that results in the republication of personal information. Social media and networking sites fall directly within the purview of the Cyber-Crime Law, which aims to deter abuses of technology.<br /><br />The Telecommunications Regulatory Authority (TRA),tasked with&nbsp; regulating digital content, prohibits activities encompassed in the Publications Law and the Cyber-Crime Law.&nbsp; The TRA monitors online content available to users in the UAE and prohibits content for hacking and malicious codes, internet content providing unlicensed VoIP services and other illegal internet content. Licensed service providers (e.g. Du and Etisalat) can also block online content if required and subsequent to complaints of abuse or defamation, official authorities can take legal action against those running the sites after verifying the validity and seriousness of the complaint.<br /><br />Once finalized and enacted, the &ldquo;Media Law&rdquo; that was made available for public comment in 2009 will also apply to social media and social networking sites. It has still not been finalized or enacted as at the date of writing of this article.<br /><br /><strong>Use of Social Media Sites: Things to Consider</strong><br /><br />Social media sites were originally used as spaces for individuals to share their lives, although, more recently, corporate entities have begun to use this medium to promote their businesses and communicate with customers. Either way, users of social media (whether corporate or individual) may encounter any one or more of the issues below at any given time:<br /><br />1.&nbsp;Security - It is important to be aware that the use of social media has the potential to affect the integrity of the users&rsquo; IT security. The use of social networking sites can expose the system to viruses and malware, so appropriate IT security policies should be implemented. In the context of a corporate setting, employees should be made aware of the risks of social media so that they do not disclose information that could leave the company&rsquo;s IT systems vulnerable to attack. Furthermore, agreements with software vendors should be reviewed in order to make sure they are suitable for the task.<br /><br />2.&nbsp;Privacy - The use of social media by individuals and companies also raises privacy concerns. For example, companies often use Facebook and Twitter to stay connected with clients and customers. There have been instances where&nbsp; the individuals responsible for these networking sites accidently post confidential or inappropriate content. It is important for companies who use this medium to monitor the content put online on their behalf, and to issue guidelines so as to ensure that such incidents do not occur. Where such services are provided by a third party service provider, a clear service agreement incorporating penalties may provide some comfort &ndash; although where the damage is reputational or involves the leakage of customer data, this comfort may be far outweighed by the damage.&nbsp;<br /><br />3.&nbsp;Theft &ndash; Seemingly innocent use of social media can also expose individuals and companies to theft, corporate espionage and fraud. Several security companies in the UAE carry out &ldquo;penetration tests&rdquo; that are designed to test a company&rsquo;s defenses against cybercrime. One example, of which we are aware, uses fake Facebook profiles to test the ability of employees to resist scams on social networking sites.) Fake social network profiles can (amongst other risks) expose users to theft of information, and this can have devastating consequences for companies that rely heavily on confidentiality for their competitive edge. Users should take care to use all social media sites conscientiously and companies should educate their employees of the potential hazards.<br /><br />4.&nbsp;Terms and Conditions - Users should also be aware that Facebook, Twitter, and such other networking sites have their own terms and conditions that must be followed, particularly as they relate to advertising on their platforms. In addition to complying with the terms of use of these sites users must ensure compliance with all applicable laws, regulations and guidelines of the country where the advertisements are being promoted. Companies and individual users should review the Terms and Conditions of Use and follow those requirements to avoid having their accounts deleted from these platforms, incurring wasted costs related to advertising, and potential legal liability.<br /><br />5.&nbsp;Defamation - Care must also be taken to ensure that no defamatory content is posted onto these sites because this could lead to civil or criminal liability. Such content could include posting secret information about others without their consent (even if such information is true), or posting photographs without the consent of the subject of the photograph.<br /><br />Posting defamatory comments about co-workers can have employment repercussions. There is scope for employers to dismiss employees for misconduct as a result of indiscreet social network postings about the employer, colleagues, or their own activities.<br /><br />In recent months, a number of Facebook and Twitter accounts in the UAE have been closed down by authorities subsequent to complaints of abuse and defamation.<br /><br />The rapid increase in the use of social media within the UAE makes it an area of growing concern and interest. Its development brings new legal challenges making it a &ldquo;hot topic&rdquo;. Users of social media should educate themselves in order to ensure that they are in compliance with all the relevant laws and regulations so that they may benefit by optimally harnessing the strength of this medium.<br /><br />Al-Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team regularly handles issues arising from the use of social media in a business context. For further information please contact David Yates at<a href=\"mailto:d.yates@tamimi.com\">d.yates@tamimi.com</a>, Anita Siassios at&nbsp;<a href=\"mailto:a.siassios@tamimi.com\">a.siassios@tamimi.com</a>&nbsp;or Sana Saleem at&nbsp;<a href=\"mailto:s.saleem@tamimi.com\">s.saleem@tamimi.com</a></p>'),
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	(83113,4535,'content_description','In the United Arab Emirates, digital media content, like traditional media content, is regulated.'),
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	(83115,4535,'pageSummary','In the United Arab Emirates, digital media content, like traditional media content, is regulated.'),
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	(83123,4535,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Anita Siassios'),
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	(83125,4535,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','a.siassios@tamimi.com'),
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	(83131,4535,'_yoast_wpseo_metadesc','In the United Arab Emirates, digital media content, like traditional media content, is regulated.'),
	(83132,4536,'content','<p>It is a process which allows the parties to focus on the commercial aspects of their dispute rather than the legal issues and it can be used in all disputed matters, subject to a few exceptions.&nbsp; In recent years the use of mediation has increased exponentially.&nbsp;It is a concept which is widely considered and used in common law jurisdictions and more recently within the civil law jurisdiction of the UAE.&nbsp;<br /><br />Whilst the benefits of Alternative Dispute Resolution (&ldquo;ADR&rdquo;) are recognised and explored within this jurisdiction, the advantages of the mediation can sometimes be overlooked; possibly due to lack of understanding of the process which can lead to negative attitudes.&nbsp; The mediation process is certainly being explored and implemented favourably in the UAE, however it can take time for attitudes to change in order accept a settlement concept which may previously not have been considered.&nbsp;<br /><br />The introduction of the Civil Procedure Rules (CPR) in England and Wales meant that mediation became an integral part of the pre-trial process, a process which any party to litigation cannot afford to ignore for fear of costs consequences.&nbsp; Parties who refuse to enter into mediation as a pre-trial process without a valid and reasonable reason will be penalised by costs penalties imposed by the judge.&nbsp;<br /><br />There are many advocates who would argue that mediation should be considered as a pre-trial process in all jurisdictions, whether for fear of costs consequences or otherwise.&nbsp; The true benefit of mediation will only be recognised if the attitudes of those in the position to use the process, or indeed advise on it, are focused on the positive aspects of mediation rather then the draconian idea that settlement is a compromise beneficial only to one party.&nbsp;&nbsp;&nbsp;<br /><br />In order to make an informed decision whether or not to mediate a dispute, it is important to understand what the process involves.&nbsp; Mediation is a voluntary and confidential dispute resolution process, which is non binding to the point of agreement. During mediation a neutral third party mediator helps the parties to attempt to reach a settlement, negotiated by the parties.&nbsp;&nbsp;<br /><br /><strong>A voluntary process</strong><br /><br />Mediation is a voluntary process.&nbsp; It is therefore not possible without full participation and commitment from all parties, and it will cease if one party walks out, which they are free to do at any time.&nbsp; All parties must therefore agree to enter into the process with the right mindset, although in some jurisdictions this may only be after judicial recommendation with associated risks of cost sanctions against the party which refused to mediate.&nbsp;&nbsp;<br /><br />In a jurisdiction where the parties do not have to consider cost consequences, the idea of mediation as a pre-trial option may not even enter into the equation.&nbsp; For the process to become widely accepted therefore, it is important that the advantages of mediation are promoted so that any misconceived negativity can be disregarded.&nbsp;<br /><br /><strong>Confidential dispute resolution process</strong><br /><br />Mediation is both &ldquo;without prejudice&rdquo; (under the law of England and Wales) and confidential. This means that the discussion and/or any documents submitted during the process cannot be used against the party who made or produced them in subsequent proceedings. A mediator is bound by a duty of confidentiality to each party both during and after the mediation.&nbsp; This means that the position of either party is not compromised in any way if the mediation fails and litigation or some other dispute resolution route is pursued.&nbsp; Should mediation break down a party is free to formalise an offer made during mediation within any subsequent court procedural process or even attempt mediation again at a later stage.<br /><br />The terms of any settlement agreed in mediation are confidential. However, the parties are free to agree to an alternative arrangement.&nbsp; For example a party may insist on a public apology or vindication and this can form part of the mediated settlement, if agreeable to the other party.<br />&nbsp;&nbsp;<br />&nbsp;<strong>Non binding to the point of agreement</strong>&nbsp;<br /><br />The mediation process does not bind the parties to reaching settlement.&nbsp; This can only come about when the parties have given authority to settle.&nbsp; The mediator will not make any binding determination or order and if the parties do not wish to agree a settlement at the end of the mediation then the matter will simply move onto the next stage of legal proceedings.<br /><br />If and when a settlement has been agreed by the parties, the terms of the settlement will be written into a binding and enforceable contract.<br /><br /><strong>The neutral third party mediator</strong><br /><br />The mediator must be a truly neutral person having no association with either of the parties or any interest in the outcome. It is essential that all parties trust and entrust authority to the mediator. Should any party withdraw that authority, the mediation will come to an end. Likewise, should trust in the mediator be broken for any reason, it is unlikely that a settlement will be reached.<br /><br />The mediator&rsquo;s role is to facilitate the discussions between the parties, allow them to explore options which they may not have previously considered and focus the parties on their aims and requirements for settlement. The mediator is not there to judge, give opinions or impose a decision.The mediator creates the conditions for dialogue between the parties using a non-adversarial, non-partisan approach. The final outcome of mediation is agreed by the parties, not the mediator.<br /><br />Mediation is more likely to succeed when the mediator is properly trained and qualified. There are various respected organisations which provide ADR professionals and services globally. These include the Centre for Effective Dispute Resolution (&ldquo;CEDR&rdquo;), the Royal Institute of Chartered Surveyors (&ldquo;RICS&rdquo;) and the ADR Group to name a few.&nbsp; The three mentioned organisations provide mediation training accredited by the Civil Mediation Council (&ldquo;CMC&rdquo;) which accredits mediators and mediation bodies in England and Wales. CMC accreditation is recognised throughout the EU, the Commonwealth and in most nations of the world.<br /><br /><strong>A settlement, negotiated by the parties</strong><br /><br />The process of mediation is completely flexible and will allow the parties to remain in control of both cost and outcome while being guided by the neutral mediator.&nbsp; The parties remain responsible for their own decisions and answerable for the terms of any settlement that may be agreed.<br /><br />Parties can run their mediation in whatever manner they chose.&nbsp; There is, however, a developed classic mediation model which recommends that the parties open the mediation with a joint session, whereby the mediator explains the process and answers any questions.&nbsp; During the opening joint session each party makes an opening statement and thereafter the mediator separates the parties into private rooms and spends time with each party in turn (known as private sessions).&nbsp;During the private sessions the mediator will discuss the dispute, explore and challenge the required aims and assess the attitude of each party towards settlement.&nbsp; The private sessions are an imperative part of the mediation process as they give the parties opportunity to talk about the dispute from their point of view, vent feelings, say what they want, and generally &lsquo;clear the air&rsquo;.&nbsp;<br /><br />Mediation aims to resolve a dispute by maximizing all parties&rsquo; interests and achieving a &ldquo;win-win&rdquo; outcome so that the parties do not feel compromised or hard done by. The parties must agree the terms of the settlement themselves and hence the results achieved are such that may never be considered or imposed by a court or tribunal.&nbsp; A judge or a tribunal will simply review available evidence and apply the applicable legislation to a dispute, whereas during mediation the parties must agree their own terms of the settlement and this allows for ingenuity and extra-legal solutions.<br /><br /><strong>The Strength of the Mediation Process<br /></strong><br />Mediation addresses the underlying causes of conflict or tension.&nbsp; Mediators are skilled in investigating the potential for joint gains in resolving disputes.&nbsp; This is one of the most important tools in unlocking the potential for settlement.&nbsp; By gaining a birds-eye view of the conflict, and exploring the respective needs and priorities of the parties, the mediator is usually able to encourage the parties to consider mutual gains.&nbsp;&nbsp;<br /><br />Mediation enables the parties to consider and identify what value there is in avoiding legal proceedings, where the arguments will focus on the merits of the case, and look to extra-legal solutions which a court or tribunal could not provide.&nbsp; This inevitably focuses the minds of the parties on the reality of the dispute and any potentially negative outcome, rather then the legal arguments.<br /><br />When considering mediation one must bear in mind the objectives of the process and consider the following:</p>\r\n<ul>\r\n<li>You may have a strong case, actual or perceived, but you need to consider the value of your wasted time, your irrecoverable costs (especially in the UAE Courts, even if you win your case), the time of any witnesses, employees or co-workers in preparing for litigation and attending any court/tribunal hearings; the impact of such time loss on your business or employment; the impact of any publicity; the proportionality of cost and time against your chances of recovering any damages if the matter were to proceed to court or arbitration.</li>\r\n<li>You may have a weak case which should not be tested on the merits.</li>\r\n<li>There may be an ongoing commercial, social or economic relationship between the parties which may be ruined by years of legal disputing.</li>\r\n</ul>\r\n<p><br />Mediation has a very high success rate. It is a quick and relatively cheap process when compared to litigation or arbitration.&nbsp; The average mediation will last one or two days and therefore the process enables parties to swiftly finalise a dispute and move on.&nbsp; In the minority of cases that do not settle, the mediation process helps to narrow the number of disputed issues between the parties, often saving costs in preparing for litigation. Involvement in the mediation process is a wise investment, likely to save both time and money and providing the opportunity for rebuilding trust where relationships have broken down.<br /><br />Mediation can be attempted at any stage of a dispute. If a dispute has already been running for a long time the parties are free to consider the possibility of recourse to mediation in the interests of achieving a speedy resolution to an ongoing matter.&nbsp;This is another advantage of the flexible process.&nbsp;<br /><br /><strong>When is Mediation not suitable?</strong><br /><br />Mediation is unlikely to work unless all parties genuinely wish to reach agreement, or if one party has little incentive to enter into the process. It is not suitable when:&nbsp;<br /><br />1) A legal decision is needed because an area of law is unclear or untested&nbsp;<br />This is less likely to be a consideration in the UAE civil law jurisdiction which does not recognise the doctrine of stare decisis, although Court of Cassation judgments are considered as guidance and are binding on the lower courts.&nbsp;</p>\r\n<p>2) There is no bona fide dispute, i.e. one side&rsquo;s position is devoid of merit<br />If a party believes that his case has merit, when in fact it does not, the legal adviser must be able to deal with this and manage his client&rsquo;s expectations effectively.&nbsp; In reality, there will always be difficult parties who believe that they have a &ldquo;right to justice&rdquo;, even though they technically have no case to answer.</p>\r\n<p>3) You need a remedy which mediation cannot achieve, namely an injunction or other mandatory or prohibitory order of the court<br />These are remedies which will need a court order and hence could not be agreed by way of mediation.</p>\r\n<p><strong>Recent Developments in the UAE<br /><br /></strong>The Centre for Amicable Settlement of Disputes<br /><br />His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice-President and Prime Minister of the UAE and Ruler of Dubai, created the Centre for Amicable Settlement of Disputes in Dubai under UAE Law Number 16 of 2009.&nbsp; The publication of this law demonstrates that the Government wishes to encourage and increase the use of mediation in Dubai.&nbsp;<br /><br />The Centre deals with amicable settlement of civil and commercial matters excluding certain categories of case and those involving Government bodies. The settlement of a dispute before the Centre is reviewed by a number of mediators under direct supervision of the concerned judge and based on relevant laws and regulations.&nbsp;&nbsp;<br /><br /><strong>Dubai International Financial Centre (&ldquo;DIFC&rdquo;) and Mediation</strong>&nbsp;<br /><br />The DIFC Courts have their own rules regarding ADR, found in Part 27 of the Rules of the DIFC Court (&ldquo;RDC&rdquo;). While emphasising its primary role as a forum for deciding civil and commercial cases, the DIFC Court encourages parties to consider the use of justice by reconciliation (such as, but not confined to, mediation and conciliation) as an alternative means of resolving disputes or, particular issues within a dispute.&nbsp;<br /><br />The DIFC Court will not compel parties to engage in justice by reconciliation as a prerequisite to litigation (although Part 38.24 of the RDC gives the court discretion, when assessing costs, to consider efforts made in trying to resolve the dispute). The court will however, if appropriate, invite the parties to consider justice by reconciliation at the Case Management Conference, and may adjourn the case for a specified period of time to encourage and enable the parties to use justice by reconciliation.&nbsp;<br /><br />In addition, the DIFC-LCIA Arbitration Centre, established in February 2008, offers mediation as well as arbitration services to users of the Centre under the rules contained in the LCIA mediation procedure.<br /><br /><strong>RICS UAE Mediation Panel</strong><br /><br />The RICS has been actively promoting its mediation services in the UAE with great success.&nbsp; It has recently conducted a further training course in Dubai in order to train and prepare members of the proposed RICS UAE President&rsquo;s Panel of Mediators in time for its official launch at the joint-hosted RICS and Dubai Land Department Conference in Dubai on 1 October 2012.&nbsp; The launch of the RICS Mediation Panel demonstrates growth in the demand for mediation in the region.<br /><br /><strong>Summary</strong><br /><br />The UAE has made some impressive recent progress in implementing various forms of mediation.&nbsp; As the process becomes more readily available and accepted in the jurisdiction, it is hoped that it will be more widely used.&nbsp; Recognised mediation service providers are promoting mediation within the jurisdiction with very positive effects.&nbsp; As continued professional training is provided in the UAE it is likely that the process will gain further momentum and the popularity of the process will increase.&nbsp;&nbsp;<br /><br />Mediation is a positive, forward-thinking way of resolving disputes using a neutral third party.&nbsp; Parties should be encouraged to use mediation as a pre-trial process, where possible, as the process is an excellent way to assist those in dispute to find a resolution, before costs start to escalate and the commercial relationship is destroyed forever.</p>'),
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	(83142,4536,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Abigail Powell'),
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	(83150,4536,'_yoast_wpseo_metadesc','Mediation is the catalyst which puts the thought of settlement into the minds of parties in dispute.'),
	(83151,4537,'content','<p>The study, conducted in partnership with IDC and Ipsos Public Affairs is based on a survey of 14,700 computer users in 33 countries, including computer users in the UAE.&nbsp;<br /><br />In the study various data sources were used to determine the total number of licensed and unlicensed software units installed in a country and by expressing the unlicensed software units as a percentage of the total software units installed in a country, the &ldquo;piracy rate&rdquo; applicable in the relevant country was determined.&nbsp; According to the study, the global piracy rate for PC software is approximately 42% which is valued at US$63.4 billion.&nbsp; The study also breaks results down to a regional level, which are set out below:</p>\r\n<table border=\"0\" frame=\"box\">\r\n<tbody>\r\n<tr>\r\n<td><strong>Region</strong></td>\r\n<td><strong>2011 Piracy Rate</strong></td>\r\n<td><strong>2011 Commercial value&nbsp;</strong><strong>of unlicensed&nbsp;</strong><strong>software in US$ million</strong></td>\r\n</tr>\r\n<tr>\r\n<td>Middle East &amp; Africa</td>\r\n<td>58%</td>\r\n<td>4,159</td>\r\n</tr>\r\n<tr>\r\n<td>North America</td>\r\n<td>19%</td>\r\n<td>10,958</td>\r\n</tr>\r\n<tr>\r\n<td>Western Europe</td>\r\n<td>32%</td>\r\n<td>13,749</td>\r\n</tr>\r\n<tr>\r\n<td>Central &amp; Eastern Europe</td>\r\n<td>62%</td>\r\n<td>6,133</td>\r\n</tr>\r\n<tr>\r\n<td>Asia Pacific</td>\r\n<td>60%</td>\r\n<td>20,998</td>\r\n</tr>\r\n<tr>\r\n<td>Latin America</td>\r\n<td>61%</td>\r\n<td>7,459</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p>The UAE has the third lowest piracy rate in the Middle East Africa region at 37%, which compares favourably with the piracy rates in other GCC countries (Bahrain 54%, Kuwait 59%, Oman 61%, Qatar 50% and Saudi Arabia 51%).&nbsp;&nbsp; Despite the comparatively low piracy rate of the UAE, the value of unlicensed software installed in the UAE is the fifth highest in the region, valued at US$208 million (South Africa US$564m, Turkey US$526m, Saudi Arabia US$449m and Nigeria US$251m).<br /><br /><strong>THE ECONOMIC BENEFITS OF REDUCING SOFTWARE PIRACY</strong><br /><br />During 2010 the BSA and IDC conducted an impact study entitled The Economic Benefits of Reducing Software Piracy.&nbsp; The analysis conducted by IDC showed that every one US dollar spent in respect of licensed software, generates approximately US$1.25 in additional revenue for software services companies.&nbsp;&nbsp;&nbsp; It is well known that software piracy directly results in lost opportunities for software vendors, distributors and service providers, but the extent and value of those lost opportunities are perhaps not that clearly understood.<br /><br />In the 2010 study, IDC determined that in the 42 countries surveyed a total of US$45 billion of unlicensed software was in use.&nbsp; In the report it is stated that the lost opportunities resulting from the use of this unlicensed software &ldquo;caused total losses of revenue, employment and taxes from related sectors in excess of US$110 billion.&nbsp; The study also considered the impact of a possible reduction of piracy on the economy and it was found that in the UAE, a reduction of 10% in the piracy rate could lead to 841 new job opportunities.&nbsp; Further, a reduction of 10% in the piracy rate over a period of four years could contribute as much as US$425m to the UAE&rsquo;s GDP and US$566m if the 10% reduction could be achieved over a period of two years.<br /><br />The Federal Government in the UAE clearly appreciates the impact that software piracy (and counterfeiting in general) has on the economy as illustrated by the 2011 circular issued by the Ministry of Economy entitled &ldquo;Anti-Piracy Circular 2011&rdquo;.&nbsp; The circular, directed at distributors, resellers and media related retailers reiterated the Ministry of Economy&rsquo;s commitment to combat piracy of copyrights and the intention of the Ministry to take action against entities offering for sale and selling unlicensed software.&nbsp; In particular the Ministry requested the relevant parties to:</p>\r\n<ul>\r\n<li>Refrain from dealing with counterfeit and / or unlicensed software, coded cards, loose certificates of authenticity and electronic products without prior permission from the copyright holder.</li>\r\n<li>Refrain from illegally copying and downloading of software.</li>\r\n<li>Maintain contacts, licenses and purchase invoices of all software and computers offered for sale or sold.</li>\r\n<li>Ensure that all software installed on computers brought for repair, maintenance or other service by customers is genuine and licensed and that the owner of the computer has a license for all software prior to receiving the computer hardware for repair, maintenance or other service; otherwise the reseller or maintenance centers will be liable for any copyright violation, unless they provide the customer with a lawfully licenced solution or refuse to perform any service in this regard.</li>\r\n</ul>\r\n<p><strong>THE RISK OF USING PIRATED SOFTWARE IN BUSINESS<br /></strong><br />The Anti-Piracy Circular 2011 refers to Federal Law No. 7 of 2002 in respect of author copyrights and parallel rights, which deals with the protection of copyright in the UAE and in particular software.&nbsp; Articles 37, 38 and 39 of this law provide for punishment by way of detention and fines with article 38 specifically criminalizing the downloading and saving of unlicensed software.&nbsp;<br /><br />Article 39 extends the protection offered to software by also criminalizing the use of unlicensed software and provides that where a person uses unlicensed software in the name of, or for the account of a corporate person, commercial or professional establishment, the court may determine that that entity be closed for a period of not more than three months.&nbsp;<br /><br />The provisions of article 39 are of particular importance especially considering that the 2011 BSA Global Software Piracy Study revealed that &ldquo;business decision makers around the world admit to pirating software more frequently than do other computer users&rdquo;.&nbsp; Typically this form of piracy consists of purchasing for example one license to use software, but then installing the software on numerous machines.&nbsp; The implication of article 39 for employees of a business where unlicensed software is used is that they may be liable as a result of the use of that software.&nbsp; The other side of this coin is however, that a business may be ordered to be closed for a period of up to three months in the event that a person uses unlicensed software in the name of or for the account of the business.<br /><br />Based on the above, it is clearly in the interest of employees and business owners to ensure that the software used within businesses are used lawfully. In this regard adequate organizational policies with respect to the installation, recordal of licenses and use of software must be put in place, monitored and enforced both to protect employees, but also to protect business against employees obtaining and using unlicensed software &ldquo;for the account of the business&rdquo;.<br /><br /><strong>REDUCING COPYRIGHT PIRACY THROUGH EDUCATION</strong><br /><br />The BSA suggests a basic blueprint to reduce software piracy which includes modernizing intellectual property laws, stepping up enforcement activity and ensuring that governments as significant users of software lead by ensuring that only fully licensed software is used.&nbsp; An important consideration raised by the BSA is an increase in public education and awareness, articulated in the 2011 BSA Global Software Piracy Study as follows:<br /><br />&ldquo;Reducing software piracy requires a fundamental shift in public attitudes towards software and IP.&nbsp; Public education is critical, therefore, to increase awareness of the importance of managing software assets and respecting creative works through compliance with software licensing.&rdquo;<br /><br />Australia&rsquo;s Intellectual Property Awareness Foundation (IPAF) conducted a study in 2011 related to attitudes and behaviors in relation to the illegal downloading of online movies and television content which revealed that there was a high level of confusion among members of the general public with respect to which activities constituted acts of copyright piracy.&nbsp; According to the IPAF, as many as one in three Australians may be &ldquo;accidental pirates&rdquo;.&nbsp; Although the study did not relate to software specifically, the results may suggest that in other societies - such as here in the UAE - and in respect of other works in which copyright subsist - such as software - there exist a similar level of &ldquo;confusion&rdquo;.<br /><br />According to the 2011 BSA Global Software Piracy Study &ldquo;experience has shown that pubic-private awareness campaigns about piracy and the value of IP can be extremely effective&rdquo;. In order to bring about the &ldquo;fundamental shift in public attitudes&rdquo; referred to by the BSA, a wide range of audiences should be educated about copyright and in particular the impact of copyright piracy on the economy.&nbsp;Such audiences should include schoolchildren, university students, information technology professionals and professionals in the creative industries, but also more generally business decision makers, business owners and employees.<br /><br /><strong>CONCLUSION</strong><br /><br />In this article I set out to highlight the impact that software piracy has on the local economy, the risks to individuals and to businesses resulting from the use of pirated software and the need to educate the public with respect to the legal rules governing copyright.&nbsp; There are two clear steps that business decision makers, business owners and educators can take to address some of the risks highlighted and these are:<br /><br />(i)&nbsp;ensuring that organizational policies with respect to the installation, recordal of licenses and use of software are put in place and monitored; and<br /><br />(ii)&nbsp;ensuring adequate education of students, business decision makers, business owners and employees.</p>'),
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	(83155,4537,'content_description','During May 2012, the Business Software Alliance (BSA), described as “the voice of the global commercial software industry”, published the 2011 BSA Global Software Piracy Study. '),
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	(83157,4537,'pageSummary','During May 2012, the Business Software Alliance (BSA), described as “the voice of the global commercial software industry”, published the 2011 BSA Global Software Piracy Study. '),
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	(83161,4537,'lawUpdateArticleNoWriters_0_lawUpdateAuthorName','Waldo Steyn'),
	(83162,4537,'_lawUpdateArticleNoWriters_0_lawUpdateAuthorName','field_59e59ad5d15dd'),
	(83163,4537,'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail','w.steyn@tamimi.com'),
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	(83168,4537,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(83169,4537,'_yoast_wpseo_metadesc','During May 2012, the Business Software Alliance (BSA), described as “the voice of the global commercial software industry”, published the 2011 BSA Global Software Piracy Study.'),
	(83170,4538,'content','<p>The Labour Law applies to all employees working in the UAE, whether national or non-national, with the exception of certain categories of people. One of the exempted categories are employees working in the Dubai International Financial Centre (DIFC) are subject to the DIFC Employment Law No. 4 of 2005 (Employment Law). The legislative regime in the DIFC (save for certain laws such as criminal and immigration) is independent from the UAE. The DIFC has its own laws and regulations which govern commerce within the DIFC supported by its own independent English language common law court system.&nbsp;<br /><br />The UAE faces relatively unique challenges, in that its population and workforce are predominantly made up of expatriates (for example, figures released last year indicated that 93 percent of the private sector workforce was made up of expatriates).&nbsp; The UAE must therefore balance the need for access to jobs and training for its local population and the retention of expatriates, particularly in light of the recent changes provoked by the economic climate.&nbsp;<br /><br /><strong>Key developments</strong><br /><br />It is possible to characterise recent key developments in the laws as addressing certain areas which, as identified above, result from the UAE&rsquo;s unique position and broadly fall into three main categories, (1) management of the movement of workers; (2) protection of UAE nationals; and (3) developing practices to ensure that the UAE is in line with international standards for workers.&nbsp; Each of these is dealt with in turn.<br /><br /><strong>1. &nbsp;Management of the movement of workers</strong><br /><br /><strong>Labour Bans</strong><br /><br />Prior to January 2011, the Ministry of Labour (Ministry) imposed an automatic 6-month ban on all expatriates leaving their employer.&nbsp; This applied to all employees falling within their jurisdiction (i.e. outside the free zones or the DIFC) and could only be lifted for those individuals with more than one year&rsquo;s service by way of a &ldquo;no objection certificate&rdquo; provided by the former employer and/or payment of a fee (depending upon length of service).&nbsp; However, during the economic downturn of 2009/2010, the automatic ban affected employees who had been made redundant by their employer, and this in turn resulted in the loss of some skilled workers with local UAE knowledge.&nbsp;<br /><br />From January 2011, the practice has been amended and in accordance with a Ministerial resolution, the automatic ban will not be imposed in certain circumstances, having regard to issues such as length of service, level of expertise, and reason for dismissal, including whether the termination is due to a business reorganisation.&nbsp; In addition, in practice, the Ministry has further relaxed the enforcement of the employment ban provisions, so that at present, employees are free to move between employers (subject to any post-termination restrictions or other issues raised before the Ministry).&nbsp; However, the Ministerial resolution remains in place and may be more rigorously enforced in the future.<br /><br /><strong>Internal work permits</strong><br /><br />In order to work in the UAE, an expatriate must obtain a residency visa and work permit.&nbsp; If the employee works within a free zone, their residency visa and ID card (work permit) is obtained via the relevant free zone (for example, DIFC).&nbsp;&nbsp;<br /><br />The use of work permits is a further method by which the authorities are able to manage the movement of workers.&nbsp; From January 2011, the Ministry introduced five new work permits, which are applicable in cases where an individual already has a residence visa (or, in the case of a UAE national, is entitled to reside in the UAE).&nbsp; These permits are for a work transfer, temporary work, part-time work, cases where individuals are sponsored by family members and juveniles.&nbsp;&nbsp; One of the aims of the temporary work permit is to allow expatriates to obtain employment from another employer, pending the outcome of any ongoing litigation with their former employer (with whom they retain their visa).&nbsp; The part-time work permit is open for use by both expatriate and UAE nationals, although it is likely that one of the aims of the permit is to encourage UAE national females into the workforce.&nbsp;&nbsp; As with all permits, these are only issued upon the approval of the Ministry and therefore they are tightly controlled.&nbsp; The use of the part-time permit remains in doubt, in light of the fact that the Labour Law does not make any provision for part-time work and therefore minimum provisions applicable to full time employment (such as annual leave and sickness absence entitlement) will continue to apply to part time employees.<br /><br /><strong>Retirement</strong><br /><br />As noted above, all employees must have approval to work, by way of a work permit or ID card from the relevant authority.&nbsp; Prior to January 2011, employees falling under the Ministry jurisdiction were required to obtain express approval to continue working once they reached the age of 60 years.&nbsp; The age limit after which such express approval must be obtained has been increased to 65 years.<br /><br /><strong>2.&nbsp;Protection of UAE nationals</strong><br /><br />The UAE operates a policy of &ldquo;Emiratisation&rdquo;, which seeks to encourage private sector employers falling under the jurisdiction of the Ministry to maintain minimum levels of UAE nationals in their workforce.&nbsp;&nbsp; Whilst prior to January 2011, the Emiratisation policy was relatively indiscriminate, focusing purely on the number of UAE nationals in the workforce, a Ministry resolution which came into force in January 2011 now addresses the requirement for UAE nationals to fall within the white collar labour force and in particular, UAE nationals should make up 3 percent of the top three professional categories in an employer&rsquo;s workforce.&nbsp; The professional categories have to date been based upon educational qualifications, although there is a move towards reclassifying these, based upon professional experience.<br /><br />Firms which maintain the required level of UAE nationals at the professional categories, and also comply with certain other Ministry requirements, are categorised as &ldquo;First Class&rdquo; companies, out of three possible categories. The Second Class categorisation also focuses on employee diversity, and seeks to limit the percentage of the workforce made up of one of three nationalities (Indian, Pakistani, and Bangladeshi).&nbsp;&nbsp;A Third Class categorisation includes those companies who receive a certain number of fines or &ldquo;penalty points&rdquo; issued by the Ministry for breach of Ministerial resolutions, as well as companies undertaking more serious activities, such as human trafficking.&nbsp;The category into which a company falls will determine the amount of fees and bank guarantees that the company will be required to pay to the Ministry, as part of the normal administrative requirements when obtaining Ministerial consent for the employment of staff.<br /><br />UAE nationals have also enjoyed protection from dismissal, since 2009, when a Ministerial resolution was provides that the termination of UAE nationals in the private sector is unlawful if the employer does not first notify the Ministry of the proposed dismissal (and at least 30 days before the termination date).&nbsp; The Ministry will investigate whether the employment is being terminated for a legally valid reason. If the Ministry decides the termination is not for a legally valid reason, the employer is given 15 days to resolve the situation.&nbsp; In accordance with the resolution, the termination will not be valid where (a) the employment is being terminated for a reason other than one of ten specified reasons for cause listed in the Labour Law (in practice, the ten reasons listed in the law are very narrowly interpreted); (b) a non-national is undertaking the same role (in other words, the non-national should be dismissed first); or (c) where the UAE national has not received all end of service benefits due to them.&nbsp;&nbsp;<br /><br /><strong>3.&nbsp;Development in line with international best practices</strong><br /><br />Although it remains the case that collective bargaining and strike action remain illegal in the UAE, there have been a number of recent developments intended to give protection to employees, particularly blue-collar workers who may lack the ability to challenge unfair practices.&nbsp; Recent key developments are:</p>\r\n<ul>\r\n<li>In 2009, the Wage Protection System (WPS) was introduced and came into effect in 2010. This applies to all employees falling within the Ministry jurisdiction.&nbsp; Employers are required to pay employees&rsquo; salary in UAE dirhams through the WPS.&nbsp; This is intended to ensure that employees are paid the correct salary amounts, and that the salaries are paid on time.&nbsp;</li>\r\n<li>Manpower supply companies are strictly regulated by the Ministry and a Ministerial resolution in 2010 revised the criteria for the issuance of licenses for such entities.&nbsp; The key requirement is that the owner (whether an individual or an entity) must be a UAE national.&nbsp; The resolution was issued in response to complaints that certain employees recruited by manpower supply companies offshore were badly treated or mislead over employment opportunities. It was also brought in to stamp out illegal practices by certain entities in the UAE that provide manpower without being appropriately licensed.</li>\r\n<li>Although the Employment Law contains anti-discrimination protection, the Labour Law only contains positive discrimination provisions.&nbsp; However, the Twofour54 Abu Dhabi Media Free Zone introduced anti-discrimination provisions in its employment regulations in 2011, which state that the free zone aims to create an environment where employment and advancement is based on merit and an employee is not treated less favourably by reason of gender, marital status, race, religion or disability. The regulations also impose an obligation on companies operating in the free zone to be guided by the principle of non-discrimination when employing employees.</li>\r\n<li>The DIFC Court offers employees an informal forum (the Small Claims Tribunal) in which to bring employment claims. In 2011, the SCT extended its jurisdiction to all employment claims which equal or are less than AED200,000&nbsp; (approx.. US$ 55,000).&nbsp; In addition, it is possible for the SCT to hear all employment claims (regardless of size of the amount of the claim), upon consent by both parties.&nbsp;</li>\r\n</ul>\r\n<p><strong>Looking forward</strong><br /><br />In light of recent socio-economic and political developments in the region, it is likely that the UAE will remain one of the prime destinations for expatriates but at the same time the UAE government will be keen to continue to ensure that its nationals are protected adequately. After a relatively busy year in 2011 on the legislative front, it is envisaged that the authorities will consolidate the changes implemented.&nbsp;<br /><br />There has been some discussion of implementing new schemes to encourage Emiratisation, for example, by partnering with the private sector to train and employ UAE nationals for a minimum period in return for subsidies provided by the government.<br /><br />Pensions for expatriate employees are expected to be high on the agenda for 2012 following widely reported talks between the World Bank and the UAE. Currently expatriate employees are only entitled to statutory end of service gratuity (in the form of a lump sum payment) at the end of service which is calculated by reference to their period of service with employers in the UAE/DIFC.&nbsp; This is seen as one of the key requirements to make employment in the UAE more attractive to expatriates and encourage individuals with specialised expertise to remain in the UAE long term.<br /><br />Along with the possible changes in the UAE legislation, the DIFC is also likely to implement amendments to the Employment Law. A consultation paper on proposed amendments to the Employment Law was launched in December 2011 with the consultation period ending on 14 January 2012. The proposed amendments are being viewed as an attempt to address some of the inconsistencies in and provide clarity on certain aspects of the law.<br /><br />We expect that the Arab Spring will continue to have a positive effect in the UAE with more foreign investment earmarked for the region being channelled into the UAE, but at the same time it is likely that the focus will continue to be on the issue of jobs for UAE nationals.</p>'),
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	(83183,4538,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(83184,4538,'_yoast_wpseo_metadesc','Employment relationships in the United Arab Emirates (UAE) are generally regulated by the UAE Federal Law No. 8 of 1980, Regulating Labour Relations, as amended (Labour Law) together with regulations promulgated under that law.'),
	(83185,4539,'content','<strong>Background to the Case</strong>\r\n\r\nThe Claimant (a Swiss watchmaker) was the owner of a trademark which had been registered in the office of origin, Switzerland, with the World Intellectual Property Organisation (WIPO) and internationally registered as well. The Claimant lodged an application to register their trademark in Qatar, which consisted of a semi-figurative trademark featuring the company name and a symbol, with the Ministry of Business and Trade’s Industrial Property Rights Office. The application was accepted and as part of the examination period was published for opposition purposes in the monthly Official Gazette.\r\n\r\nAn objection to the registered trademark was filed with the Trademark’s Registrar by the Defendant on the grounds that the Claimant’s trademark shared an identical symbol to theirs, namely. The Registrar issued a decision upholding the objection made by the Defendant and the registration process was halted.\r\n\r\n<strong>Ruling of the Court of First Instance</strong>\r\n\r\nThe Claimant contested the decision of the Registrar before the Court of First Instance based on  the provisions of Article 6(5) of the Paris Convention (of which Qatar is a signatory state) and Article 8 of Qatar’s Trademark Law No 9 2002.\r\n\r\nThe Claimant stated that the trademark is differed from that of the Defendant’s for the following reasons:\r\n<ul>\r\n 	<li>Pursuant to Article 8 (1) of the Trademark Law No 9 of 2002 certain symbols, including the contested one, are generic symbols which cannot be registered as a trademark;</li>\r\n 	<li>The two trademarks were different both in size and shape; and,</li>\r\n 	<li>The two trademarks differ in the overall appearance and are distinct from one another.</li>\r\n</ul>\r\nThe Court of First Instance rejected the claim on the following grounds:\r\n<ul>\r\n 	<li>The trademarks were similar in appearance;</li>\r\n 	<li>The symbol in question was identical to that of the Claimant; and,</li>\r\n 	<li>The main distinguishing feature of the trademark being the symbol, would cause confusion to the consumer as to the source of the trademark.</li>\r\n</ul>\r\nIn reaching its decision to uphold that of the Registrar, the Court also took into account the fact that the Defendant had registered their trademark in Qatar before the Claimant did.\r\n\r\n<strong>Judgment of the Court of Appeal</strong>\r\n\r\nThe Claimant appealed against the Judgement before the Court of Appeal based on the aforementioned reasons and argued that the Court of Cassation had issued a principle which had stated that in assessing the degree of similarity between two trademarks, the trademark should be examined in its entirety and not solely on a particular feature or aspect.\r\n\r\nThe Court of Appeal overruled the findings of the Court of First Instance and ruled in favour of the Claimant. In deciding the case, the Court of Appeal applied the balancing test , where it viewed the overall aspects of the trademark and concluded that the trademarks were dissimilar and can be distinguished by the consumer; and that the symbol in question was generic and the Defendant could not be afforded exclusivity of its use. The Court of Appeal ruled that the Claimant be allowed to proceed with the registration of the trademark in Qatar.'),
	(150631,4539,'core_values',''),
	(150632,4539,'_core_values','field_59b64ab071de4'),
	(83186,4539,'_content','field_59b649b5c8b2b'),
	(83187,4539,'lawUpdateArticleMonth','4532'),
	(83188,4539,'_lawUpdateArticleMonth','field_59da2a396b063'),
	(83189,4539,'content_description','Al Tamimi’s Qatar Litigation team successfully won a lawsuit brought on behalf a Swiss watchmaker recently, following a dispute which arose from the trademark registration process where the Swiss watchmaker was prevented from registering their trademark by a rival high end watchmaker for trademark infringement. '),
	(83190,4539,'_content_description','field_59b641c07f473'),
	(83191,4539,'pageSummary','Al Tamimi’s Qatar Litigation team successfully won a lawsuit brought on behalf a Swiss watchmaker recently, following a dispute which arose from the trademark registration process where the Swiss watchmaker was prevented from registering their trademark by a rival high end watchmaker for trademark infringement.'),
	(83192,4539,'_pageSummary','field_59e59b307dec8'),
	(83193,4539,'currentURL','http://localhost:8888/tamimi/en/magazine/law-update/section-6/july-august-1/qatar-trademarks-dispute.html'),
	(83194,4539,'_currentURL','field_59d35123ab1e7'),
	(150615,4539,'lawUpdateArticleNoWriters',''),
	(150616,4539,'_lawUpdateArticleNoWriters','field_59e59aaed15dc'),
	(83197,4539,'lawUpdateArticleWriters','1'),
	(83198,4539,'_lawUpdateArticleWriters','field_59da2a866b064'),
	(83199,4539,'_yoast_wpseo_metadesc','Al Tamimi’s Qatar Litigation team successfully won a lawsuit brought on behalf a Swiss watchmaker recently, following a dispute which arose from the trademark registration process where the Swiss watchmaker was prevented from registering their trademark by a rival high end watchmaker for trademark infringement.'),
	(83200,4540,'content','<p>In Jordan, Article 215 of the Jordanian Maritime Trade Law No. 12 of 1972 (the \"Maritime Trade Law\") stipulates that \"notwithstanding any other law, any clause or agreement that ousts the Jordanian court\'s jurisdiction with regards to disputes arising in relation to shipping and maritime transportation documents shall be nullified\". In the case outlined below, the Court of Cassation settled the matter by referring to international conventions that address the same issue.<br /><br /><strong>Facts of the case:</strong></p>\r\n<ul>\r\n<li>In the bill of lading of a shipment, there was an arbitration clause that referred any dispute to an international arbitral court excluding the courts&rsquo; jurisdiction in any other country.</li>\r\n<li>The Claimants (an insurance company acting in subrogation of the insured) claimed an amount of 21068.775 Jordanian Dinars (JOD), in addition to the legal fees, expenses, interest, and lawyer\'s fees for the loss of a part of the shipment.</li>\r\n<li>The Defendant requested that the case be dismissed on account of the arbitration clause in the Bill of Lading. They argued this case pursuant to Article 10(b) of the Jordanian Arbitration Law No. 31 of 2001 which stipulates that:<br />\"The reference in a contract to the provisions of a standard contract or to an international convention or any other document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference (to such clause)&nbsp; is clear with regards to that clause as a part of the contract\"</li>\r\n<li>As a result, the Court of First Instance ruled in favor of the Defendant and ordered the dismissal of the case. In addition, it ordered that the Claimant pay the fees and interests incurred by the Defendant.</li>\r\n<li>The Defendant challenged the Court of First Instance\'s decision and then to the Court of Cassation.</li>\r\n</ul>\r\n<p><strong>The Judgment:<br /><br /></strong>In the Court of Cassation&rsquo;s decision, the Court first highlighted the issue of the Claimant subrogating the Insured. This is as if the Claimants were not a party to the Bill of Lading, and because the insurance policy in question did not contain an arbitration clause. Consequently, the Claimants could not make a claim except if they act in lieu of the Insured. In the Court of Cassation&rsquo;s decision, it was stipulated that the Claimant subrogated the Insured in the contract with the Defendants in accordance with Article 926 of the Jordanian Civil Code. Both of the conditions specified by the aforementioned Article were fulfilled in this case by virtue of the following:<br /><br />1.&nbsp;Because the Claimant had paid the amount of the insurance to the Insured.<br />2.&nbsp;For the fact of the existence of a tort.</p>\r\n<p>Additionally, and with respect to the Claimants argument that the arbitration clause in the insurance policy did not apply in accordance with Article 215 of the Jordanian Maritime Trade Law No. 12 of 1972, which stipulates that \"notwithstanding any other law, any clause or agreement that ousts the Jordanian court\'s jurisdiction with regards to disputes arising in relation to shipping and maritime transportation documents shall be nullified\", the Court of Cassation decided that this provision conflicts with the United Nations Convention on the Carriage of Goods by Sea (the Hamburg Rules) (the \"UN Convention\") of 1978. In accordance with Article 22 of this UN Convention, it is permissible for parties of a contract to refer any dispute, relating to the shipment of products, to international arbitration through the use of an arbitration clause or an agreement. As such, and as international conventions supersede domestic laws, the Court of Cassation decided in favor of the Defendant and ordered the rescinding of the contested decision.<br /><br /><strong>Conclusion:<br /><br /></strong>In view of the foregoing, if a dispute arises in connection with a maritime or shipping document which contains an arbitration clause referring the said dispute to an international institution and in view of the fact that Jordan is a party to the UN Convention supersedes Article 215 of the Jordanian Maritime Trade Law, the parties in question are therefore allowed to refer to international authorities excluding any authority in any other country. It is important to note, however, that this UN Convention is with respect to arbitration clauses only; as such, the judgment issued by the Court of Cassation does not affect the fact that Article 215 of the Maritime Trade Law nullifies any provision in an agreement ousting the Jordanian courts\' jurisdiction when dealing with a dispute.</p>'),
