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(81095, 4423, 'content', '<p>Although much has been written about it, decennial liability continues to  surprise and confound architects, engineers and contractors from other parts of  the world who are coming to the Middle East to do business.&nbsp;Often they simply do  not realize that in the Middle East, their customary risk management tools are  not sufficient and they are in fact exposed to potentially catastrophic  liability.<br /><br /><em>Decennial Liability is not covered by most Professional  Liability Insurance Policies and cannot be Limited or Waived by  Contract.</em><br /><br />Architects and engineers are accustomed to the risk of  being held liable for professional negligence and all carry professional  liability insurance for that eventuality.&nbsp; What many don&rsquo;t realize however, is  that professional liability policies written in the U.S., Australia and Europe  are generally triggered by negligence and would not respond in a case of strict  liability, where no negligence is required.&nbsp;ontractors are also accustomed to  being held responsible for their negligence or breach of contract, but rather  than professional liability insurance, which does not cover workmanship and is  not available to contractors, contractors tend to rely on limited warranties and  other contractual limitations of liability to protect themselves.&nbsp;&nbsp;  Unfortunately, decennial liability is a mandatory provision of the civil code in  most Middle Eastern countries and cannot be limited or waived by agreement of  the parties.<br /><br /><strong>The Potential Liability is  Enormous.</strong><br /><br />The civil codes in most Middle Eastern countries were  derived from the French and Egyptian civil codes and so are remarkably similar  in many respects.&nbsp; Set forth below is a table comparing the decennial liability  provisions in the civil codes of Iraq, Jordan, Kuwait, Qatar and the UAE.&nbsp;  Although there are some subtle differences, they are very similar.&nbsp; All impose  strict liability on architect/engineers and contractors for the partial or total  collapse of a building they designed or constructed, as the case may be, and for  any defect which threatens the stability or safety of such buildings.&nbsp; Other  common features are as follows:</p>\r\n<ul>\r\n<li>the liability period commences at handover and is for a period of ten (10)  years, or the intended life of the building, if less.</li>\r\n<li>liability attaches notwithstanding that the collapse or defect resulted from  a defect in the land or that the building owner approved the defective  building.</li>\r\n<li>liability is joint and several, meaning that the building owner can proceed  against either party for the full amount of the claim.</li>\r\n<li>any contractual provision purporting to waive or limit decennial liability  is void.</li>\r\n<li>all have a claim limitation period of either three (3) years or one (1)  year.</li>\r\n</ul>\r\n<p><br /><strong>Insurance Products are Available.<br /></strong><br />Architects and  Engineers who intend to be doing business in the Middle East for the long term  would be wise to consider obtaining their professional liability policies in the  U.K., which has a &ldquo;legal or civil liability&rdquo; trigger as opposed to a  &ldquo;negligence&rdquo; trigger.&nbsp; These policies will provide protection against the  imposition of decennial liability, so long as they are kept in force for ten  (10) years after completion of the work, which is the duration of the liability  period.&nbsp;&nbsp;<br />&nbsp; <br />Another possible alternative with respect to design  professionals is Owner&rsquo;s Protective Professional Indemnity Insurance (&ldquo;OPPI&rdquo;),  which protects the owner in the event that the underlying professional liability  policy is deficient in coverage.&nbsp; Of course, the policy wording would have to be  carefully reviewed to ensure that the policy would respond in the event of  strict liability that is not covered by the underlying design professional&rsquo;s  policy. <br /><br />Unfortunately, contractors face a more difficult situation.&nbsp;&nbsp;  The French market offers decennial insurance on a project specific basis, but it  is very expensive and very invasive.&nbsp; The insurer provides a certificate of  intent to issue the policy when the project is completed and becomes heavily  involved in process, monitoring the design and construction.&nbsp;&nbsp; The combination  of prohibitive cost and interference with the work means this is not a practical  alternative for most contractors, who instead find themselves having to rely on  their balance sheets.<br /><br />Thanks to Michael Earp, Executive Director and Sr.  VP, Aon Risk Solutions in London, and Kamal Hafez, Associate Lawyer,&nbsp; Al Tamimi&nbsp;  - Qatar, for their assistance with this article.</p>\r\n<table class=\"tablestyle\" border=\"1\">\r\n<tbody>\r\n<tr valign=\"top\">\r\n<td><strong>Country</strong></td>\r\n<td><strong>Civil Code Provisions</strong></td>\r\n<td><strong>Who is Liable?</strong></td>\r\n<td><strong>Scope of Liability</strong></td>\r\n<td><strong>Liability Period </strong></td>\r\n<td><strong>Claim Limitation Period</strong></td>\r\n<td><strong>Comments</strong></td>\r\n</tr>\r\n<tr valign=\"top\">\r\n<td>Iraq</td>\r\n<td>Articles 870 &ndash; 872 of the Civil Code No. 40 of 1951</td>\r\n<td>Architect /<br />Engineer and Contractor</td>\r\n<td>Total or partial collapse and any defect which may threaten the strength and  safety of a building or fixed installation</td>\r\n<td>Ten (10) years</td>\r\n<td>One (1) year from collapse or discovery of defect</td>\r\n<td>No liability if defects are found to have resulted from causes which could  not have been foreseen at the time of construction</td>\r\n</tr>\r\n<tr valign=\"top\">\r\n<td>Jordan</td>\r\n<td>Articles 788 &ndash; 791 of the Civil Code No. 43 of 1976</td>\r\n<td>Architect /<br />Engineer and Contractor</td>\r\n<td>Total or partial structural collapse and any defect which imperils the  strength or safety of a building</td>\r\n<td>Ten (10) years</td>\r\n<td>One (1) year from collapse or discovery of defect</td>\r\n<td>Appears to be limited to buildings only, not other installations</td>\r\n</tr>\r\n<tr valign=\"top\">\r\n<td>Kuwait</td>\r\n<td>Article 692 of the Civil Code no. 67/1980</td>\r\n<td>Architect /<br />Engineer and Contractor</td>\r\n<td>Total or partial destruction or damage and any defect that threatens the  strength and safety of a building or fixed construction</td>\r\n<td>Ten (10) years</td>\r\n<td>Three (3) years from collapse or discovery of defect</td>\r\n<td><br /></td>\r\n</tr>\r\n<tr valign=\"top\">\r\n<td>Qatar</td>\r\n<td>Article 711 of the Civil Code, Law No. 22 of 2004</td>\r\n<td>Architect /<br />Engineer and Contractor</td>\r\n<td>Total or partial collapse or fault and any defect which threatens the  sturdiness and safety of a building or fixed construction</td>\r\n<td>Ten (10) years</td>\r\n<td>Three (3) years from collapse or discovery of defect</td>\r\n<td><br /></td>\r\n</tr>\r\n<tr valign=\"top\">\r\n<td>UAE</td>\r\n<td>Articles 880-883 of the Civil Transactions Law No. 5 of 1985</td>\r\n<td>Architect /<br />Engineer and Contractor</td>\r\n<td>Total or partial collapse and any defect which threatens the stability or  safety of a building or other fixed installation</td>\r\n<td>Ten (10) years</td>\r\n<td>Three (3) years from collapse or discovery of defect</td>\r\n<td>Contractor is strictly liable for all defects, including joint and several  liability for design defects</td>\r\n</tr>\r\n</tbody>\r\n</table>'),
(81057, 4421, 'content', '<p>Vessel mortgage in the UAE is governed by the UAE Commercial Maritime Law No.  26 for the year 1981 and amendments as per law No. 11 for the year 1988 (the  &ldquo;Law&rdquo;). The Law permits the mortgage of a vessel if its total tonnage exceeds  ten tons. As per the Law, There is only one type of vessel mortgages which  confers priority rights for mortgagee over other debtors.<br /><br />The mortgagee  must be a natural person or a juridical person (body corporate) including banks,  national financing establishments or those having branches officially licensed  in the UAE. If the vessel is co-owned, it may be mortgaged by the consent of a  majority of the owners having at least three quarters of the shares. If such  majority cannot be achieved, the matter my be referred to the civil court within  its jurisdiction the ship registry is to issue a decision considering what is  best for the joint owners.<br /><br />A vessel mortgage is only valid if it is made  by an official instrument, otherwise it shall be void and shall not be  recognized by any authority. A mortgage on a vessel or on a share therein shall  remain valid on the vessel&rsquo;s wreckage. A mortgage shall not cover freight,  remunerations, assistance and subsidies granted by the State, nor against  insurance monies or compensation for damage, but it shall include compensation  due to the owner for material damage sustained by the vessel which has not been  repaired. Nevertheless, it shall be permissible for an agreement to be made in a  contract of mortgage for the mortgagee creditor to recover his debt out of the  insurance money on condition that the insurers so accept in writing, or if they  are given notice thereof.<br /><br />A mortgage may be placed on a vessel under  construction however; the mortgage must be preceded by a declaration from the  relevant Maritime Office in the port in its jurisdiction the vessel is being  constructed, stating the length and other dimensions of the vessel, its  approximate tonnage, and the address of the yard or place in which it is being  built. Amongst very few jurisdictions, the UAE in articles 101 and 102 of the  UAE Commercial Maritime Law permits the mortgage of a vessel while under  construction.<br /><br />Any mortgage will be registered in the ships&rsquo; register at  the port of registration of the vessel, or with the consul of the State if the  mortgage is made while the vessel is abroad. If the mortgage is made on the  vessel while it is in under construction, it must be registered in the register  of ships at the area in which it is being built. In order to effect the  mortgage, an official copy of the contract of mortgage must be submitted to the  Maritime Inspection Office, accompanied by two schedules signed by the applicant  for registration containing in particular the following: (a) The name, surname  and nationality of each debtor and creditor, together with their places of  residence and occupation. (b) Date and type of contract. (c) The amount of the  debt as shown in the contract, and if the mortgage is being effected against  more than one vessel the schedules must specify the amount of the debt relating  to each of them. If the mortgage is against a vessel and other property, the  schedules should specify the amount of the debt secured by the vessel. (d)  Conditions relating to interest on the debts, if any, and conditions of  settlement. (e) The name and description of the mortgaged vessel, the date and  number of the certificate of registration, or the construction report on the  vessel from the relevant office in accordance with Article 101, and its  registration number on the register for the place of construction. (f) The  chosen address of the creditor within the area of the Registration Bureau in  which registration has been effected. The ships&rsquo; register will endorse the  contents of the schedules and shall deliver one of them to the applicant with an  endorsement to the effect that registration has taken place, and will also  endorse the registration certificate to that effect. The Ships&rsquo; register in  which the mortgage has been registered shall notify all the other ship registers  in the State thereof.<br /><br />A valid mortgage shall rank directly after the  priority debts referred to in subparagraphs (a), (b), (c), (d), and (e) of  Article 84 which are (a) Judicial costs incurred in maintaining and selling the  vessel, distributing the proceeds of its sale, costs of loading, lighthouse and  port, other dues and taxes of the same type, pilotage, compensation for damage  caused to port installations, docks and navigation routes, costs of removing  obstacles to navigation routes caused by the vessel, and costs of towage and  maintenance as from vessel&rsquo;s arrival time to last harbour. (b) Debts arising out  of a contract for the employment of the master, crew and other parties committed  to a maritime employment contract on the vessel. (c) Rewards due for assistance  and salvage and vessel&rsquo;s share in maritime general average. (d) Compensation due  from collisions and other navigation accidents, compensation due for bodily harm  to the passengers and crew and compensation for loss or damage to goods and  luggage. (e) Debts arising out of contracts made by the master and operations  carried out by the master, within his/her authorities, outside vessel&rsquo;s port of  registration for an actual maintenance requirement for the vessel or the  continuance of its voyage that is whether or not the master is the owner of the  vessel, or whether the debt is due to him/her, or to persons undertaking supply  to the vessel, lenders, persons who have made repairs to the vessel or other  contractors.. Debts secured by a mortgage shall rank in order of the dates of  registration thereof. If two or more mortgages are effected against a vessel or  against a share in it, they shall rank in order of registration even if they  were registered on the same day. Registration shall result in the interest on  the debt being secured for the last two years in addition to the interest for  the current year at the time of the auction, and such interest shall rank in the  same order as the principal sum of the debt.</p>'),
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(81038, 4420, 'content', '<p><strong>Overview of 2011</strong><br /><br />To date, 2011 has continued to offer  many milestones in the area of enforcement. The UAE Courts and regulatory bodies  have shown a unique willingness to cooperate with interested parties to reach  best practice in the field of enforcement and particularly in the banking  sector. By all accounts, the heightened success in enforcement reflected during  2011 will continue creating a safer and more transparent investment  jurisdiction.<br /><br /><strong>Background to the UAE legal  system</strong><br /><br />The UAE is a developing jurisdiction. As such the  enforcement of rights and obligations arising from legal relationships under the  Commercial and Civil Codes is continuously being tested in the  Courts.<br /><br />One must also remember that the UAE is a civil law jurisdiction.  In addition to there being no concept of binding legal precedent, many of the  principles applying to security in the UAE are different to those in common law  jurisdictions. Therefore security such as floating charges or hypothecations,  all monies guarantees and assignments of unidentified or future rights are not  recognized in the UAE.<br /><br /><strong>Enforcement in general<br /><br /></strong>As  a general principle, UAE law and procedure does not recognize the concept of  &lsquo;self help&rsquo; remedies and the general rule is that security can only be enforced  by way of a relevant Court order.<br /><br />Typically enforcement in the UAE  involves the secured party filing a claim for the entire amount outstanding and  then requesting the Court to both acknowledge the security and confirm the  secured party&rsquo;s preferred position.<br /><br /><strong>Mortgages and  enforcement<br /><br /></strong>One of the most common types of security utilized in  the UAE is the mortgage over immovable property (i.e. land).<br /><br />In terms of  enforcement procedures, the Emirate of Dubai has enacted Law No.14 of 2008  concerning Mortgages in Dubai (the &ldquo;Dubai Mortgage Law&rdquo;). The Dubai Mortgage Law  outlines the procedures for enforcement of mortgages, under which:</p>\r\n<ol>\r\n<li>the mortgagee (being a UAE licensed bank) is required to notify the  mortgagor of the default in payment by serving a legal notice through the notary  public requiring it to cure the default within thirty (30) days;</li>\r\n<li>once the (30) days grace period is lapsed, the mortgagee may submit an  application/petition directly to the execution department of the Dubai Courts  seeking enforcement of the mortgage. In accordance with the Dubai Mortgage Law,  upon the failure of the mortgagor&rsquo;s to pay the overdue amount, the execution  judge may order an attachment against the mortgaged property so that it can be  sold by public auction.</li>\r\n</ol>\r\n<p>At present mortgage enforcement proceedings (to obtain approval to sell the  property) usually last between 4 to 6 months if no defenses are raised by the  mortgagor.&nbsp;&nbsp;<br /><br />If the mortgagee&rsquo;s application/petition is valid, the  execution judge will issue an order to sell the mortgaged property through  public auction. Public auction is organized by and conducted in the Dubai Lands  Department and can take a further 3 to 6 months. Once the mortgaged property is  sold through the public auction, all proceeds of the sale will be transferred by  Dubai Lands Department to the execution department of Dubai Courts. The  execution department of Dubai Courts will disburse the funds against the  liabilities of the mortgagor in accordance with priority. <br />&nbsp;<br />To date, more  than 100 cases have been filed by Al Tamimi for various lenders, with over 30  successful judgments issued, one of which resulted in the first sale by public  auction in Dubai (under the Dubai Mortgage Law) earlier this year.<br /><br />In  other Emirates such as Abu Dhabi, no specific mortgage laws have been  introduced.&nbsp; The main difference is that application for enforcement will go  through the Court of First Instance as opposed to, in Dubai, being lodged  directly at the execution department of the Court. In most other respects the  process is very similar, albeit we have not seen, as yet, the same level of  cases in Abu Dhabi.<br /><br /><strong>Islamic finance and  enforcement<br /><br /></strong>The UAE is governed by a civil law system, which  means that all relevant underlying commercial and banking laws are, to a large  extent, codified. There is no separate legislation within the UAE which codifies  Shari&rsquo;a law for commercial transactions. However, it can be said that large  portions of the UAE civil and commercial laws are underpinned by Shari&rsquo;a  elements and are therefore compatible with Shari&rsquo;a principles.<br /><br />One common  misconception in relation to enforcement is the application of &lsquo;Shari&rsquo;a law&rsquo;, or  the jurisdiction of Shari&rsquo;a Courts. Should a dispute arise in the UAE, the  matter would be brought before a UAE Court, and the Court is unlikely to apply a  different treatment to the dispute solely on account of the transaction being  Shari&rsquo;a compliant. The dispute will be subject to the same processes and  procedures as a conventional financing counterpart. The Courts will also apply  the laws of the UAE in determining the case. Notably, if a document purports to  be governed by Shari&rsquo;a law, Courts will likely disregard such choice of law, and  will instead apply the applicable UAE laws.<br /><br />Generally speaking, Islamic  financing products in the UAE are based on an underlying asset, which in a  majority of structures is purchased by a bank and sold/leased to a customer by  way of Ijara and/or Murabaha. One of the most commonly used Islamic financial  products in the UAE is the Ijara.<br /><br />In terms of Ijara enforcement, the  financier may have the right under its documents to terminate the lease and/or  exercise its rights under the purchase undertaking (to compel the customer to  purchase the property at an amount equal to the outstanding amount), however in  practice it is unlikely such remedies could be exercised together since the  Courts in Dubai (to date) have viewed the Ijara as a sale meaning it would be  difficult to terminate the sale and then to confirm, or ask the Court to  confirm, the sale through the purchase undertaking.<br /><br />If the financier&rsquo;s  sole goal is to obtain unencumbered title to and vacant possession of the  financed property and the financier does not intend to pursue the customer for  any shortfall, termination may be considered by the financier due to its  simplicity, in particular during execution. Alternatively, if a judgment for the  full amount is required, exercise of the purchase undertaking will be  preferred.<br /><br />To date, Al Tamimi has approximately 150 cases before the  Dubai Courts for enforcement of Ijara documents, a majority of which are based  on exercise of the purchase undertaking. To obtain a successful judgment, one  can expect a timeframe of 6 to 8 months, with over 50 successful judgments  obtained.<br /><br /><strong>Other enforcement options</strong><br /><br />It is common  in the UAE for banks and financial institutions to use post-dates cheques as  part of their security for lending.&nbsp; Usually post-dates cheques will be issued  and signed by the borrower and either dated or undated depending on the  procedures of the banks and financial institutions. Dishonored cheques in the  UAE carry civil liability, together with criminal liability for the signatory.  Criminal complaints are often registered with the police and within 24 hours the  name of the signatory of the cheque will be circulated to all borders of the UAE  with a request to prohibit the same from leaving the country. Issuers of  dishonored cheques can face imprisonment <br />for a period of 1 to 3 years.  Although there has not been a change in the law in this area, we note that the  UAE Courts in practice are no longer imprisoning the issuers of all returned  cheques, especially in real estate transactions. Rather, in certain cases, the  UAE Courts have issued fines to some offenders.<br /><br />Other very valuable and  effective tools of enforcement in the UAE include the use of travel bans and  precautionary attachments, which usually allow the lender to obtain an element  of leverage over defaulted customers and increase the likelihood of engagement  by the customer in negotiations with the lenders. Travel bans continue to be  granted by the UAE Courts and can be obtained within a matter of days.&nbsp;  Precautionary attachments over assets such as property, shares, bank accounts  and so on also remain a integral part of most enforcement proceedings, and are  invaluable in exerting pressure on the customer and ensuring assets are not  disposed of during legal proceedings. Although both are at the Court&rsquo;s  discretion, obtaining a successful order is likely where there is a clear  default in payment.<br /><br /><strong>Summary</strong><br /><br />Although painful for  some, the continued litigation of finance matters and enforcement proceedings in  the UAE has, and is, creating more understanding and certainty for industry  participants.</p>'),
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(81044, 4420, 'pageSummary', 'Overview of 2011: To date, 2011 has continued to offer many milestones in the area of enforcement. The UAE Courts and regulatory bodies have shown a unique willingness to cooperate with interested parties to reach best practice in the field of enforcement and particularly in the banking sector.\r\n'),
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(81008, 4418, 'content_description', 'I. INTRODUCTION: Shares represent fractional ownership of assets in a company. Under the par or nominal value regime shares of a company are ascribed an arbitrary value  at the time of incorporation.\r\n'),
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(81010, 4418, 'pageSummary', 'I. INTRODUCTION: Shares represent fractional ownership of assets in a company. Under the par or nominal value regime shares of a company are ascribed an arbitrary value  at the time of incorporation.\r\n'),
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(81014, 4418, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Hamad Haider'),
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(81023, 4419, 'content', '<p><strong>The need to share business premises</strong><br /><br />Businesses often  need to share their premises with other companies and in the UAE they first need  to consider some practical and legal issues.&nbsp;&nbsp; If businesses do not consider  these issues they could be in breach of the terms of their leases and in  contravention of labour laws, unable to obtain or renew their commercial  licences or secure visas for their employees.<br /><br />Across the globe many  businesses need to share use of their business premises from time to time, for  example:</p>\r\n<ul>\r\n<li>Businesses may share the use of offices with others in order to work  together on joint projects;&nbsp;</li>\r\n<li>It may be necessary or beneficial for connected companies to share premises  for logistical or cost reasons;&nbsp;</li>\r\n<li>Retailers routinely grant concession agreements to enable unrelated  businesses to promote certain brands within their stores;</li>\r\n<li>Employers may contract with third parties for the delivery of services to  their employees within their premises, perhaps for a staff cafeteria or an  onsite cr&egrave;che.&nbsp;</li>\r\n</ul>\r\n<p>These sorts of arrangements usually need to incorporate a degree of  flexibility so that they can be changed at short notice as commercial  circumstances require.<br /><br />In many jurisdictions businesses are able to grant  licences to occupy premises or concession agreements to enable third parties to  share their premises without the need to complete formal leases.&nbsp; Using these  documents it is often possible to conclude arrangements more quickly and at  lower cost than by completing formal leases.&nbsp; In many parts of the world  licences to occupy and concession agreements also allow businesses to retain  flexibility when sharing premises as they can usually be varied or terminated  with much more ease than leases.&nbsp;<br /><br />The concepts of granting licences to  occupy premises or concession agreements is not recognised by UAE law so  businesses in the UAE which need to share premises should consider putting in  place alternative arrangements.&nbsp; Failure to put in place these alternative  arrangements could expose businesses to both practical and legal  difficulties.&nbsp;<br /><br /><strong>Practical and legal  difficulties</strong><br /><br />Difficulties businesses can expect in the UAE if  they record the sharing of premises using licences to occupy or concession  agreements, rather than a suitable alternative arrangement, include:</p>\r\n<ul>\r\n<li><strong>Breach of lease terms</strong></li>\r\n</ul>\r\n<p>Article 787 of the UAE Civil Code provides that the prior consent of the  landlord is required for any subletting.&nbsp; If a business is the tenant of  premises and purports to grant a licence to occupy or concession agreement of  part of those premises to another company then, as the concept of these  documents is not recognised under UAE law, such action is likely to be regarded  as the grant of a sublease.&nbsp; A business may therefore find that it has acted in  breach of the terms of its lease by granting a sublease without the prior  consent of its landlord.&nbsp; In this situation a claim may be brought before the  Rent Committee in Dubai or Abu Dhabi to terminate the unauthorised sublease and  possibly also to terminate the head lease;</p>\r\n<ul>\r\n<li><strong>Labour law issues</strong></li>\r\n</ul>\r\n<p>UAE labour law requires that employees work at the registered premises of  their employer.&nbsp; If an employer has entered into a licence to occupy or  concession agreement, rather than a formal lease, then the employer&rsquo;s right to  use the premises as a place of employment may not be recognised.&nbsp; It is likely  that an employer that does not have a legally recognised right to use premises  will encounter difficulties when applying for visas for its employees.&nbsp;  Furthermore, if inspectors from the authorities carry out an inspection and find  employers from the holder of a licence or concession agreement working at the  premises, there could be serious repercussions for both the tenant and the  holder of the licence or concession agreement;</p>\r\n<ul>\r\n<li><strong>Licensing issues</strong></li>\r\n</ul>\r\n<p>All businesses must provide evidence to the authorities that they either own  or have a valid lease of premises when applying for new commercial licences and  on renewal of existing commercial licences.&nbsp; The business must show that it has  ownership or a valid lease of its own defined and recognisable premises.&nbsp; A  licence to occupy premises or a concession agreement is unlikely to be  sufficient for this purpose.<br /><br />Alternative arrangements<br /><br />Although in  the UAE it is not possible to have licences to occupy premises or concession  agreements in the forms known in many other jurisdictions, we have advised many  clients on suitable alternative arrangements.&nbsp;<br /><br />It is often possible to  agree with landlords during the negotiations for the grant or renewal of a lease  of business premises that these arrangements will take effect if the business  needs to share use of its premises.&nbsp; Alternatively, if the terms of the lease  have already been concluded then it is possible to introduce alternative  structures to accommodate the needs of the business.&nbsp; These structures can  either be temporary, to accommodate the requirements of a particular project or  short term need, or they can deal with long term sharing of  premises.&nbsp;<br /><br />There are also arrangements we can suggest that overcome the  labour law and licensing difficulties businesses may experience when sharing  premises.&nbsp; These arrangements ensure that the business does not breach the terms  of its lease or contravene the law whilst at the same time maintaining the  flexibility necessary to accommodate its commercial needs.</p>'),
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(81004, 4418, 'content', '<p><strong>I.&nbsp;INTRODUCTION</strong><br /><br />Shares represent fractional ownership  of assets in a company. Under the par or nominal value regime shares of a  company are ascribed an arbitrary value&sup1; at the time of incorporation. The  memorandum of association of a company states the total share capital with  division thereof into shares of a fixed par value, which is usually reflected  as:<br /><br />&ldquo;The share capital is AED X, divided into Y shares, of AED Z  each&rdquo;<br /><br />The par value thus becomes a fixed price upon which shares are  issued, which is required either in law or in practice&sup2;. While the par value may  represent the value of share capital contributed at the time of incorporation of  a company, the same does not remain true over the life of the company as, inter  alia, the number and value of assets of a company change. As such a fixed par  value does not recognise the ever changing intrinsic or market value of shares,  and hence can be misrepresentative of the same.<br /><br />This apparent  misrepresentation, along with various considerations discussed herein below,  questions the merits of a par value regime, which regime may well have lost its  value.<br /><br />At the outset may I state that the scope of this article is to  discuss the merits of the par value regime and to introduce an alternative  regime for consideration of lawyers and regulators &ndash; the no par regime. As such  this paper is a discussion and not an exhaustive analysis of the par and no par  value regimes, which analysis will be required particularly in relation to  differences in laws for different forms of entities, both in mainland UAE and in  free zones (including offshore).<br /><br /><strong>II.&nbsp;ISSUE OF  SHARES</strong><br /><br />Par value regime complicates further issuance of shares.  Where the prevailing market value of shares is lesser than the par value, and  shares are issued at a price lower than par value - the difference between the  par and issue price is referred to as the &lsquo;discount&rsquo;. Accordingly, where the  prevailing market value of shares is greater than par value, and the shares are  issued at a price higher than the par value - the difference between the par and  issue price is referred to as the &lsquo;premium&rsquo;. The foregoing concept of discount  and premium may seem odd considering the determining factor, the benchmark par  value, is itself an arbitrary value.<br /><br />Paradoxically, a discount in its  true sense is a premium where shares are issued below their par value but above  the market value. And accordingly a premium is truly a discount where shares are  issued above their par value but below the market value. This incongruity can be  dealt with by introducing a no-par regime, which eliminates the cause of the  confusion &ndash; the par value itself.<br /><br />The concept of discount and premium is  discussed further below:<br /><br /><strong>Discount</strong><br /><br />Since the par  value is the minimum price at which shares are to be issued, it is said to  protect interests of existing shareholders by serving as a floor for  contributions from new shareholders, thereby preventing potential fraud.</p>\r\n<p>However the said protection is often misconceived as shares are in fact  usually issued at a discount where the prevailing price of the shares has  slipped below par, and the cash strapped company is in need of injection of  capital. It may be strongly argued that such injection of capital, albeit lesser  per share, is on the contrary to the advantage of the present shareholders as it  provides the company funding in time of financial drought. Further it is worth  stating that the present shareholders will in any event have the benefit of  pre-emptive rights over further issue of shares and can hence subscribe to the  discounted shares.<br /><br /><strong>Premium</strong><br /><br />Certain laws&nbsp;&sup3; in  relation to free zone companies permit issuance of shares at a premium and  require that the share premium received by the company be deposited in a &lsquo;share  premium account&rsquo;, which is a separate account to the general share capital  account where equity is otherwise deposited. The said laws further prescribe a  manner in which the funds in the share premium account are to be  applied.&nbsp;<br /><br />On the other hand another law&nbsp;<sup>4</sup>in relation to a  public joint stock companies, while provides a procedure for issuance of shares  at premium subject to approval of concerned authorities, does not have a concept  of a &lsquo;share premium account&rsquo; or otherwise prescribe a manner for application of  proceeds of an issue at premium.<br /><br />In relation to the above stated approval  it may be noted that what may be a premium at the time of the approval, could  have been a discount if the company had arbitrarily set its par value high  enough at inception, and in such event the said approval would not be required  even though the company would have priced the issue of shares at that same  value.&nbsp;<br /><br />In a no par value regime since the par value will be eliminated  there will be no concept of premium (or discount). As such there will be no  share premium account and the entire proceeds of an issue will be credited to  the general share capital account. The returns on account of share capital  account may only be through dividend distributions or bonus issues from revenue  reserves. Any related inconsistencies in law as discussed above or confusion in  application thereof will be eliminated. This would be a more logical and simpler  approach.<br /><br /><strong>Transfer of Shares</strong><br /><br />Currently in a  transfer of shares two values of shares come into play. The first is the par  value of shares, which is reflected in the agreement for transfer of shares  notarized by the notary public. The second is the value of the shares actually  paid as consideration, representative of the working capital and true book value  of the shares or the market value, and which is usually reflected in a &lsquo;side  agreement&rsquo;. It is argued that this practice of carrying along two values is  superfluous. The value material to the transaction and to the seller and  purchaser is the true intrinsic or market value, not the par value. The practice  of having side agreements for the purpose stated above is  unnecessary.&nbsp;&nbsp;<br /><br />The current practice can be particularly confusing for an  unsophisticated investor buying a share in a limited liability company. A share  purchased at discount or premium, would declare on the share certificate a  different value &ndash; the par.<br /><br /><strong>III.&nbsp;OVERSTATED CREDITORS&rsquo;  PROTECTION&nbsp;</strong><br /><br />Another common justification for the par value is  that it protects creditors. It is said the total capital paid by shareholders at  par value is an indication of solvency of the company, the adequacy of which is  relied on by creditors while extending finance. However, to put this protection  in context, it is argued that in practice creditors place far greater reliance  on other factors such as the goodwill, relationship, net worth and cash flow of  the company, than they do on the paid up capital.<br /><br /><strong>IV.&nbsp;FINANCIAL  REPORTING</strong><br /><br />While the affects of a no par regime on financial  reporting is an area beyond legal analysis and as such is not in the purview of  this article, the following comments are noteworthy:<br /><br />(a)&nbsp;Prevailing  standards of financial reporting provide for both a par value and a no par value  regime. For instance Paragraph 79 of International Accounting Standard 1  &lsquo;Presentation of Financial Statements&rsquo; in relation to disclosure, states that  &ldquo;An entity shall disclose the following, either in the statement of financial  position or the statement of changes in equity, or in the notes &hellip; (iii) par  value per share, or that the shares have no par value&rdquo; (emphasis  added).<br /><br />(b)&nbsp;A noticeable feature in all the jurisdictions that have  implemented the no par regime is the presence of a developed accounting regime.  In UAE while public joint stock companies have robust financial reporting  requirements, the same is not true for private companies (at least in practice).  Regular, if not perpetual, assessment of the intrinsic value of shares as  envisaged in the no par regime will require sound accounting regimes for private  companies as well.<br /><br /><strong>V.&nbsp;OTHER JURISDICTIONS</strong><br /><br />Various  jurisdictions such as Australia, Germany, Japan, New Zealand, South Africa,  Cayman Islands have migrated to the no par regime. &lsquo;The no par value regime was  introduced in the US in 1912 in the state of New York and subsequently almost  every state has adopted this new regime&rsquo;.<sup>5</sup> The migration is being  seriously considered by UK, India, Hong Kong, Pakistan and various other  jurisdictions. Research reveals that while these jurisdictions acknowledge the  benefits of the no par regime, implementation remains outstanding often due to  the inertia induced by familiarity of the par  regime.<br /><br /><strong>VI.&nbsp;PROPOSAL</strong><br /><br />It is suggested that the  relevant regulators, legislators and stakeholders consider implementation of the  no par regime in light of certain proposals as under:<br /><br />(i)&nbsp;The concept of  discount and premium be abolished which requires elimination of the par  value;<br /><br />(ii)&nbsp;The memorandum should reflect the share capital without  fixing the share price, as follows:<br /><br />&ldquo;The share capital is AED. X, divided  into Y shares&rdquo;<sup>6</sup><br /><br />(iii)&nbsp;The price at which shares are issued  should be determined by the board of directors of the company. In making such  determination the directors will be bound by their fiduciary duty to act in good  faith. The board may also seek assistance from financial advisors, which may  however come as an increase in the cost of doing business;<br /><br />(iv)&nbsp;A further  safeguard for existing shareholders, in addition to the directors fiduciary  duty, may be introduced &lsquo;requiring a special resolution to approve the issue  price where it is less than the immediately preceding issue price of shares of  the company&rsquo;<sup>7</sup>;<br /><br />(v)&nbsp;The no-par regime shall be implemented  mandatorily across all types of companies, irrespective of whether they are  incorporated in the free zone or mainland. Various jurisdictions implemented an  optional system whereby companies could opt for either of the two regimes.  Certain jurisdictions allowed a dual system whereby one company could have both  a par and no-par regime concurrently. The foregoing options however created  further confusion, and given that simplicity and clarity are at the heart of a  no par regime, &lsquo;jurisdictions have opted (or changed) to the mandatory system  because it is much simpler for all concerned&rsquo;<sup>8</sup>. It being acknowledged  here that the no par regime will have to be studied in further depth to ensure  compatibility with public joint stock companies; and&nbsp;<br /><br />(vi)&nbsp;The  implementation of no-par regime shall be led by legislative reform to reflect,  inter alia, the proposals stated above. As the no par value regime does not seek  to distinguish between issued capital and the premium/discount on shares, there  would likely need to be consequential amendments to laws. Particularly laws  relating to: (i) fixing the par value, (ii) issuance of shares at a premium,  (iii) issuance of shares at a discount, (iv) &lsquo;share premium account&rsquo; and  application of funds therein, will need to be amended. With the force of law  relevant provisions in instruments and agreements will not be left to the  parties to amend. Laws requiring more robust financial reporting systems for  private companies will need to be  introduced.<br /><br /><strong>VII.&nbsp;CONCLUSION</strong></p>\r\n<p>Companies should not have to associate themselves with a value of shares  which is not a true representation of fractional ownership of its assets. This  tends to unnecessarily complicate matters, particularly for shareholders.  Significant discrepancy in par and intrinsic values is often seen in companies  which have been incorporated for a long period of time or which have seen a  surge in their share value. The confusion deepens when conceptual  inconsistencies and superfluity of the par regime are embedded in law and  procedure.<br /><br />A no par regime is a significantly cleaner and simpler system  with notable practical benefits. The purpose of this article is to encourage  discourse on migration towards a no par regime in line with advanced  jurisdictions. Time may be taken in preparing a feasible implementation plan  suitable for the local dynamics, as notwithstanding its idiosyncrasies the par  is a &lsquo;functional&rsquo;, though not optimal, system.<br /><br />Put another way, in my  view, the par is a classic case of &lsquo;path dependence&rsquo;, best summed up  below:<br /><br />&ldquo;I eat my peas with honey. I&rsquo;ve done it all my life. It makes &rsquo;em  taste quite funny, but it keeps them on the knife.&rdquo;<sup>9</sup><br /><br />I am  advocating the use of a folk.&nbsp;</p>\r\n<p>Footnotes:</p>\r\n<ol>\r\n<li>Depending on the type of the company and where it is incorporated (mainland  or a free zone), the relevant laws may prescribe a minimum par value, a fixed  par value, a range between which the par value may be chosen, or require the  company to itself choose a fixed par value. Where the law does not have such  prescription, the memorandum of association will prescribe an arbitrary par  value as a matter of practice.</li>\r\n<li>Example: Article 227 of the Commercial Companies Law (Federal Law No. 8 of  1984) was amended by Federal Law No. 1 of 2009, which earlier provided that &lsquo;the  capital of a limited liability company must not be less than one hundred and  fifty thousand Dirhams and should be comprised of equal shares of a minimum  value of one thousand Dirhams each&rsquo; (emphasis added). This was amended to read:  &lsquo;a limited liability company shall have capital that is sufficient... The  capital shall consist of equal shares&rsquo;. Even though the requirement of a minimum  par value of one thousand Dirhams each share has been waived, in practice the  memorandum of association continues to state a par value out of custom and  practice.</li>\r\n<li>Regulations 25 and 26 respectively, of the Dubai Metals &amp; Commodities  Centre Authority, DMCC Company Regulations, Regulation No. (1/03), issued in  Dubai 2003, and Regulations 25 and 26 respectively, of the Dubai Technology and  Media Free Zone, Private Companies Regulations, issued on April 9, 2003,&nbsp; Free  Zone.</li>\r\n<li>Article 203 of the Commercial Companies Law (Federal Law No. 8 of 1984)</li>\r\n<li>Ho Yew Kee &amp; Lan Luh Luh, The Par Value of Shares: An Irrelevant Concept  in Modern Company Law, Singapore Journal of Legal Studies [1999] 552-572 at page  556.</li>\r\n<li>Requirement of &lsquo;equal&rsquo; shares may be added.&nbsp;</li>\r\n<li>Consultation Study Concerning the Implications of Adopting a No-Par Value  Share Regime in Hong Kong, Final Report, by Freshfields Bruckhaus Deringer, (29  November 2004), page 80</li>\r\n<li>Consultation Study Concerning the Implications of Adopting a No-Par Value  Share Regime in Hong Kong, Final Report, by Freshfields Bruckhaus Deringer, (29  November 2004), page 77.</li>\r\n<li>An old Bostonian jump roping rhyme taken from an essay on Path Dependence,  published in Quarterly Journal of Political Science, 2006, 1: 87&ndash;115, by Scott  E. Page Center for the Study of Complex Systems, University of Michigan, Ann  Arbor.</li>\r\n</ol>'),
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(80989, 4417, 'content', '<p>In this article we examine a key form of transaction offering growth and  liquidity options. Without doubt, mergers are becoming more crucial in the UAE,  post the global financial crises as companies search to improve their critical  mass and liquidity. A key strategy available for companies is merger.&nbsp; Here we  examine the UAE merger regime under the UAE Commercial Companies Law, Federal  Law no. (8) of 1984, as amended, (the &ldquo;CCL&rdquo;). <br /><br /><strong>Background to  Merger Debates:</strong><br /><br />Before analyzing the provisions regulating the  UAE merger regime, it&rsquo;s worth noting the economic debates for and against  mergers as a means of improving value. Several empirical studies indicate the  value of companies tend to increase following a merger, although this outcome  can be subject to many variables. Measuring the improvement in value is not a  matter that can be assessed at the time of announcing a merger or completion of  the same.&nbsp; The process involves a long term, post-merger study to assess the  overall position of the merger targets in terms of value, and the progress of  business post-merger. <br /><br />Having said that, there are undoubtedly companies  where mergers can improve the overall quality and diversity of the underlying  assets; and would bolster the value of both merger parties. <br /><br />Financial  analysis is beyond the scope of this article, but it&rsquo;s crucial to understand the  arguments for and against mergers from a financial and market  perspective.<br /><br /><strong>UAE Merger  Regime</strong><br /><br />1.&nbsp;Characterization of the Merger Agreement<br /><br />A  merger agreement is a form of legal and financial consolidation of two or more  companies under one entity, involving all the companies that will be part of the  transaction. The underlying merger agreement can be characterized as an  &ldquo;exchange agreement&rdquo; for the purposes of Articles 607-611 if the UAE Civil  Transactions Code (the &ldquo;CTC&rdquo;). Such an agreement is very similar to a sale  agreement, regulated under Articles 489-510 of the Civil Transactions Code, yet  the key distinction is that the consideration under exchange agreements is not  cash but shares.<br /><br />2.&nbsp; The Companies Law Merger Regime<br /><br />Mergers of  companies are mainly regulated under Articles 276-280 of the CCL. These CCL  provisions create an avenue for mergers between companies. Two alternative  blueprints for merger are embedded in Article 276 of the CCL. First a merger can  take place through &ldquo;acquisition consolidation&rdquo;, where one of the two companies  becomes the target of a merger and is dissolved, and its shareholders are  provided a stake in the surviving company by means of a capital increase  allocation.&nbsp; In other words, the shareholders of the dissolving company will  exchange their old shares for new shares in the enhanced capital of the  surviving company. The diagram below outlines the structure of such a merger,  under which (A) will be the surviving entity while (B) will be the dissolving  entity.</p>\r\n<p><img alt=\"cocomm1\" border=\"0\" height=\"144\" src=\"https://admin.newsweaver.com/notessa/repository/s1/169641484993255628/H12/arapfk27hp2v0hdolqk16h2lva3006qzk1phb7lpj5cwpujf.jpg\" width=\"284\" /></p>\r\n<p><img alt=\"cocomm2\" border=\"0\" height=\"216\" src=\"https://admin.newsweaver.com/notessa/repository/s1/169641484993255628/Hu/3z66om652a3kanz0p191yvj4jabh9zk2nthboorx73t1gz4pu.jpg\" width=\"450\" /></p>\r\n<p>Secondly Article 276 permits a merger by means of integration i.e., by  merging two or more companies to establish a new company (in which all  shareholders of the underlying companies will be shareholders in such new  company).&nbsp; The diagram below displays the structure for an integration  merger.&nbsp;<br /><br />The merger debate has in some respects been similar to the  debate over the UAE insolvency and bankruptcy regime, during which many  commentators claimed incorrectly that the UAE had no legal regime. Likewise,  many corporate law practitioners have suggested that the UAE lacks a merger  regime.<br /><br />The UAE clearly does have a merger regime under the CCL. However,  this regime has not been tested aggressively in practice. The largest merger  seen in the UAE in recent years, did not rely on the CCL merger provisions,  rather designated special process. The absence of UAE mergers may be attributed  to many factors such as differing dynamics of the UAE economy, lack of market  precedents, and the recently established UAE capital markets being evolving  markets. Therefore, proposing to apply complex merger models employed in markets  like the UK and the US would be impractical.<br /><br />Local considerations require  thorough assessment before utilizing methods in other jurisdictions, which  differ in their legal environments. One vivid distinction between foreign and  GCC regimes is the difference between civil code and common law systems. The  underlying agreements are the main source of law regulating the parties&rsquo;  relations under common law systems, while the civil code provides extensive gap  fillers for common legal relationships.<br /><br /><strong>How does the UAE Merger  Process work?<br /><br /></strong>The CCL addresses the process of a merger, by  requiring shareholders&rsquo; resolutions for a merger, in accordance with the  parties&rsquo; respective Articles of Association. The CCL outlines the process for  evaluating the assets of the defunct company which is absorbed in the surviving  one, where the merger is one by means of an acquisition. <br /><br />The valuation  process also involves a valuation to conclude a swap-ratio formula assessing how  many shares of the entity being absorbed, are equivalent to shares in the rights  issue of the surviving entity. The same would apply to assess the swap-ratio  formula for how many shares the entity, which will be absorbed into a new  entity, will equate in the new entity&rsquo;s shares. The latter is a more simplified  process considering it involves a new entity that does not yet have a particular  market or book value. <br /><br />Article 280 of the CCL allows creditors with  outstanding debts, to object to the merger within 3 months from announcement.  (i.e. its registration on the commercial register). An objection can be referred  to the court to issue a final judgment as to the validity of the same or can be  settled with the creditors. Upon the expiration of the 3 month period noted  above, and without any further objections by creditors, the merger becomes final  and binding. In this case, the surviving entity, whether existing or new,  becomes a successor of the entity (ies) dissolved in the merger process.  <br /><br />Analyzing these concise provisions of the CCL, it is noted that such  provisions include the key components required to implement a corporate merger  process. A merger process can be tailored by companies and their advisors in  close coordination with relevant authorities, notwithstanding the lack of case  studies and practices. However, if companies approach the authorities with a  merger model that is complex and doesn&rsquo;t recognize the local regime nor the  nature of the local market, it will likely not succeed. It is a simpler and more  elegant solution to design a merger transaction which fits the merger regime, in  addition to a few components taken from best international practice. Such a  progressive combination should be undertaken without stretching the process too  much, in order to not become a complex, unrealistic structure that would not be  enforceable locally.&nbsp;&nbsp;<br /><br /><strong>Conclusion:</strong><br /><br />I believe many  companies overdraft the complexity of the UAE merger process. The UAE  authorities are open to realistic and practical solutions for local mergers.  <br />This isn&rsquo;t to say that there are no space for expansion of the UAE regime  governing mergers and acquisitions. For example, the UAE regime should address  issues such as takeover / tender offers in respect of public companies, which in  particular raise a degree of uncertainty. <br />The UAE regime has basic but  effective machinery enabling corporate mergers to be implemented via a set of  enabling provisions covering the merger process. There is a case for market  players to look first to this simple but effective machinery, before they try to  replicate exotic merger structures designed to fit common law legal systems and  foreign tax regimes.</p>'),
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(80970, 4416, 'content', '<p>A sales and purchase agreement (SPA) is the most commonly used document in  commercial transactions, from deals involving purchases of commodities, shares,  businesses and real estate, these types of contracts are vital to business  activity.&nbsp; To execute any deal successfully you need the protection of a well  drafted SPA, but often buyers or sellers fail to take even the basic steps  required to protect their own interests.<br /><br />Below are the top 10 &ldquo;red flag  errors&rdquo; we see when buyers or sellers consult us afterwards looking to salvage  their money or assets, or otherwise engage in &ldquo;damage control&rdquo;.</p>\r\n<ol>\r\n<li>Doing the Deal with the Wrong Person<br />The best drafted SPA in the world is  no use to you, if you sign it with a fraudster or an incompetent.</li>\r\n<li>Essential Parties Are Not Part of&nbsp; the SPA<br />Often buyers will sign an SPA  with Company A, when in reality Company B (or a Shareholder in Company A), is  the actual owner of all or part of the assets being purchased.&nbsp; On the sell  side, sellers often engage in a contract under which Company C is buyer and  makes significant final commitments to the seller, but seller does not realize  until it is too late that Company C is merely a shell company with no assets to  meet the commitments.&nbsp;</li>\r\n<li>Failure to Identify and Address Essential Pre Conditions to the  Deal<br />Conditions precedent are conditions and events which must be resolved  before a transaction detailed in an SPA can be completed.&nbsp; Any buyer or seller  has to identify all these preconditions and make sure they are all properly  addressed in the SPA.&nbsp; Important conditions to include are clearance of the  seller&rsquo;s debts, third party consents, transferring key employees, banking  approvals, and clearances and approvals from the appropriate authorities&nbsp;&nbsp;</li>\r\n<li>Failure to Specify a &ldquo;Long Stop Date&rdquo;<br />Commonly conditions have to be met  before the deal can close. What if the time for satisfying conditions or  obtaining approvals blows out from weeks to months? In this case buyers and  sellers need to have a &ldquo;Long Stop Date&rdquo; in their SPA, so they can bail out of  the SPA if the delay becomes untenable for them. If essential preconditions are  not met by this long stop date, one or both parties can walk away from the  deal.&nbsp;&nbsp;&nbsp;</li>\r\n<li>Failure to Agree Necessary Financial Adjustments<br />In some deals, buyers  seek to protect themselves by including a post acquisition price adjustment.&nbsp;  Upon completion of the transaction, the buyer&rsquo;s accountants finalize the  accounts and determine the net assets of the company to evaluate whether the  price paid at completion was greater or lower than agreed for.&nbsp; If the price was  greater than the value, the buyer will be granted a reconciliation payment.&nbsp; An  alternative to the post completion price adjustment is the &ldquo;locked-box&rdquo; approach  where the seller makes detailed and specific commitment as to the value of the  business&rsquo;s net assets at closing. If the business suffers major losses or the  sellers strip out dividends, any buyer without these safeguards will be  financially exposed.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</li>\r\n<li>Failure to be Specific about Closing Requirements<br />An SPA should clearly  identify all actions to be taken and all the documents to be provided at  closing.&nbsp; Examples include discharge of banking facilities, handover of customer  and financial records, change of bank and regulatory signatories, original  documents, and obtaining regulatory approvals.&nbsp;</li>\r\n<li>Failure to Protect Against Competition from the Seller<br />Any buyer should  consider whether it is appropriate that the SPA contain contractual terms  restricting the seller from competing with or soliciting customers, suppliers,  and against poaching employees of the business for a specified period of time  after completion.&nbsp;&nbsp;&nbsp;&nbsp;</li>\r\n<li>Failure to Change Signatories<br />Often buyers overlook the need to change  the signatories to essential banking and business accounts.&nbsp; Third parties must  be notified in a timely fashion of the new owners and accept the  signatories.</li>\r\n<li>No Simple and Effective Dispute Resolution<br />In the run up to closing,  arguments over money and adjustment are common.&nbsp; The SPA can ease these problems  by providing for independent experts to conduct valuations and provide their  expert advice on (and if necessary determine) issues in dispute.</li>\r\n<li>Skimping on Lawyers&rsquo; Fees<br />Often parties download &ldquo;ready made&rdquo; contracts  from the internet, adapt a form from the last deal or try to draft the contract  themselves.&nbsp; Ensure you have a specialist lawyer review the SPA.&nbsp; Lawyers&rsquo; fees  for reviewing SPAs are often a tiny fraction of lawyers fees for litigation, or  catastrophic financial losses from a deal gone bad or a deal which should never  have been done. </li>\r\n</ol>'),
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(80951, 4415, 'content', '<p>When walking from the car park of the Dubai International Financial Centre to  my office each morning, I pass a Costa Coffee, Caribou Coffee, Caffe Nero, a Yo  Sushi restaurant, a Gourmet Burger Kitchen restaurant and a Potbelly Sandwiches  outlet (among others).&nbsp; Thankfully the DIFC also has a Fitness First  gym!<br /><br />Clearly, franchising is a very popular method of conducting business  in Dubai.&nbsp; When attending the recent Retail City Conference held in Dubai as  part of the Cityscape Global event, the general impression was that  notwithstanding the recent (and also the not so recent) global economic woes the  retail sector in Dubai, and in the UAE generally, is remaining remarkably  resilient.&nbsp; Certainly at Al Tamimi we continue to see a steady flow of enquiries  from both franchisees and franchisors relating to the establishment of new  franchised brands in the UAE.<br /><br />In this article I will look at the main  legal considerations for a potential franchisor in connection with the  appointment of a franchisee in the UAE.&nbsp;<br /><br /><strong>The UAE Commercial  Agencies Law<br /><br /></strong>The main piece of legislation to consider in the  context of franchise arrangements in the UAE is Federal Law No. 18 of 1981 on  the Organisation of Commercial Agencies (as amended by Federal Law No. 14 of  1988, and further amended by Federal Law No. 13 of 2006 and Federal Law No. 2 of  2010) (the \"Commercial Agencies Law\").&nbsp; The Commercial Agencies Law has  potential application not only to what would be strictly considered as agency  agreements in many foreign jurisdictions but also to agreements regarding  franchises, distributorships, commission arrangements, dealerships and other  forms of sales representative or sales agency relationships.<br /><br />I say  \"potential\" application as the Commercial Agencies Law only applies to contracts  that are registered with the UAE Federal Ministry of Economy (the \"Ministry\").&nbsp;  In order for a contract to qualify for registration with the Ministry there are  a number of criteria which must be met, the main ones being:</p>\r\n<ul>\r\n<li>The franchisee must be a UAE national or an entity that is wholly owned by  UAE nationals;</li>\r\n<li>The franchise agreement must grant exclusivity over all or a part of the  UAE; and</li>\r\n<li>The franchise agreement must be notarized.</li>\r\n</ul>\r\n<p>Some franchisees may claim that unless a franchise agreement is registered  with the Ministry it is not legally valid.&nbsp; This is not the case (the reasons  for them wanting to register such an agreement are discussed below).&nbsp; There are  many franchise agreements in the UAE that have been entered into between foreign  franchisors and local limited liability companies, for example, where such  companies have a 49% foreign shareholding (i.e. they are not 100% owned by UAE  nationals) or that are not exclusive which are valid arrangements  notwithstanding that they do not qualify for registration with the Ministry.&nbsp;  Further, even franchise agreements which may meet the qualifying criteria for  registration with the Ministry do not have to be registered although in such  circumstances franchisor&rsquo;s should bear in mind that a franchisee may later  approach the UAE courts for an order that the agreement be registered in order  to obtain the protections offered by registration.<br /><br />Unregistered  arrangements are governed by the various UAE federal laws applicable generally  to commercial arrangements such as the UAE Civil Code and the UAE Commercial  Transactions Law.&nbsp; In general terms, these laws recognize the right of parties  to contract with each other on such terms as they may agree although there is  scope under such legislation for a franchisee to claim damages upon the  cancellation of the agreement by the franchisor even if such cancellation is  done in accordance with terms of the agreement.&nbsp; However, in this article we  will focus on the effect of registration of franchise agreements with the  Ministry.&nbsp;<br /><br /><strong>Consequences of registration under the UAE Commercial  Agencies Law<br /><br /></strong>If an agreement qualifies, franchisees generally  prefer to register an agreement with the Ministry.&nbsp; The main consequences of  registration are:</p>\r\n<ul>\r\n<li>The agreement cannot be terminated by the franchisor without the franchisor  being able to show \"justifiable cause\" even if the franchisor has a clear  contractual right to terminate in the franchise agreement itself. <br />&nbsp;<br />It is  very difficult for a franchisor to establish \"justifiable cause\".&nbsp; Matters that  may amount to justifiable cause would include the franchisee no longer being  appropriately licensed to undertake the franchised activity in the UAE, repeated  material breaches of the terms of the franchise agreement and/or gross  negligence, and dealing with competitive products where this is clearly  prohibited under the terms of the franchise agreement.&nbsp; In practice, the  circumstances surrounding the termination of a registered franchise agreement  will be considered in view of assessing what would be an appropriate  compensation payment, if any, to be awarded to the franchisee as a result of the  termination of the agreement.&nbsp; If a justifiable cause is found to exist then it  may be that the commercial agencies committee (or court on appeal, see below)  will find that no compensation is payable to the franchisee.</li>\r\n<li>The franchisee is able to instruct the UAE ports and customs authorities to  prohibit any products in respect of which it is the registered agent entering  the UAE without its consent.While this provides good protection against parallel  imports it also puts a registered franchisee in an extremely strong negotiating  position in the event that a franchisor wants to terminate an agreement and  appoint a replacement franchisee.&nbsp; This is because the registered franchisee can  force the franchisor to go to the commercial agencies committee (and,  potentially, then to the local courts on appeal) to seek termination of the  registered agreement and while such case is being heard the registered  franchisee (who will remain registered until a judgment for de-registration is  given or a settlement reached between the parties) can block the importation of  the franchisor\'s products into the UAE.&nbsp; This, in practice, restricts the  franchisor from access to the UAE market, either by way of itself establishing a  licensed presence in the UAE or by appointing an alternative franchisee, until  the case has been finally determined or settled and the agreement  de-registered.&nbsp; A final determination, if a decision of the commercial agencies  committee is appealed to the local courts, may take in the region of 3 years (or  possibly longer) to obtain.&nbsp;</li>\r\n<li>The factors that the commercial agencies committee (and local court, if  appealed) will take into account when assessing the level of compensation  payable to a registered franchisee upon termination of the arrangement include  the performance of the franchisee, how long the arrangement has been in place  and whether the franchisee has incurred significant expenditures in establishing  the business (with more weight being given to more recent  expenditures).</li>\r\n</ul>\r\n<p>As a result, franchisors generally consider it preferable not to have their  agreements registered.&nbsp; This is an issue that needs to be fully understood by  any franchisor looking to appoint a franchisee in the UAE prior to the  franchisor entering into any negotiations with a potential  franchisee.<br /><br /><strong>Recent developments regarding the UAE Commercial  Agencies Law</strong><br /><br />By way of background, the UAE Commercial Agencies  Law was amended in 2006 to make it more favourable to principals and less  protectionist towards local registered agents.&nbsp; The key changes made at that  time were (i) the abolition of the commercial agencies committee (a committee  established under the auspices of the Ministry and whose role was to hear  disputes between registered agents and principals) with the result that disputes  were to be referred directly to the UAE courts (who were generally considered at  that time to be less sympathetic to local agents than the commercial agencies  committee had been), and (ii) allowing principals to unilaterally deregister  fixed term registered agreements upon the expiry of their term (and the practice  of the Ministry at one stage extended to allowing principals to de-register  agreements by notifying the Ministry of their intention to give notice of  non-renewal of agreements that contained automatic renewal  provisions).<br /><br />However, in 2010 the Commercial Agencies Law effectively  reverted to the pre-2006 position with the reintroduction of the commercial  agencies committee and the removal of the right of principals to de-register  agents upon the expiry of a fixed term agreement.&nbsp; The UAE&rsquo;s reaction to the  economic crisis was to become more protectionist with regard to local agents.&nbsp;  The commercial agencies committee has only just started to accept disputes and  it remains to be seen what the committee&rsquo;s general approach it will be and how  successful it is in providing a considered and fair forum for the resolution of  disputes between registered agents and principals.<br /><br /><strong>A few other  issues&hellip;..<br /><br /></strong>By way of conclusion, I thought it may be helpful to  mention a few other UAE specific matters that I have come across when dealing  with franchise arrangements in the UAE.&nbsp;<br /><br />I am often asked if an agreement  has to be in Arabic and/or notarized to be valid.&nbsp; As mentioned above, if an  agreement is to be registered then it must be notarized (and in order to be  notarized it must be translated into Arabic).&nbsp; However, if an agreement is not  registered then there is no need for it to be notarized or translated into  Arabic to be valid.<br /><br />I&nbsp;have also come across certain cultural issues such  as a clause regarding uniforms being amended to include a reference to \"giving  due regard to cultural sensitivities\".&nbsp; While Dubai is reasonably relaxed when  it comes to dress requirements other Emirates and countries in the region have  stricter requirements and, for example, it is always considered appropriate for  female employees to wear conservative clothing.&nbsp; There are also issues regarding  restrictions on serving pork products and alcohol and this may also need to be  provided for in the franchise agreement (for example, in the context of the  franchisor being entitled to determine menu items in restaurant  franchises).<br /><br />I&nbsp;am sure that franchising will continue to play a major  role in the UAE economy going forward and franchisors should not be afraid to do  business here.&nbsp; However, there are certain UAE law specific issues that do need  to be dealt with over and above the standard issues that arise in the context of  negotiating franchise agreements and it is always advisable to get local law  advice before entering into any franchise arrangement.<br /><br />Marcus Wallman is  a partner in Al Tamimi &amp; Company&rsquo;s Commercial Advisory practice which  provides a comprehensive range of advice in the areas of General Commercial  &amp; Advisory; Joint Ventures; Commercial Agencies; Consumer Protection &amp;  Competition and Anti-Corruption.</p>'),
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(80932, 4414, 'content', '<p>Internet-capable mobile devices have become ubiquitous. More and more  businesses are trying to meet their customers&rsquo; swiftly evolving needs and  expectations by using mobile devices and social media. This article briefly  considers some risks that businesses should consider when seeking to engage with  their customers via mobile devices and social media.<br /><br /><strong>Acceptance  of terms and conditions via mobile devices</strong><br /><br />In general terms,  accepting the terms of a contract by way of a mobile device is recognized under  UAE law as a valid method of entering a contract. The wording of the E-Commerce  Law (Federal Law Number 1 of 2006 on Electronic Commerce and Transactions)  confirms that an offer can be accepted via electronic means. The E-Commerce Law  is not limited to acceptance via a personal computer connected to the internet;  it aims to be &lsquo;technology neutral&rsquo;, and is thus broad enough to encompass  acceptance by way of a mobile phone or other such electronic or digital  device.<br /><br />The E-Commerce Law provides that where the law requires that  certain documents be &lsquo;in writing&rsquo; or &lsquo;signed&rsquo;, compliance with the relevant  provisions of the E-Commerce Law will (in the absence of statutory requirements  to the contrary) result in the satisfaction of such rules.<br />Any business  wishing to rely on contractual terms that have been accepted by a customer by  electronic means should also ensure that its system adequately records  electronic transactions for evidentiary purposes.<br /><br />The key risk of having  terms and conditions accepted via a mobile device is that the format in which  the terms and conditions are delivered to the customer may provide scope for the  customer to dispute that any agreement ever occurred &ndash; even if the customer has  indicated acceptance of the terms by clicking &rsquo;accept&rsquo;. Terms and conditions may  not be presented to the client prior to acceptance, or may be made available in  an inconvenient way (such as by requiring customers to access the terms and  conditions elsewhere prior to acceptance).<br /><br />While a business should be  able to rely on a customer&rsquo;s clear acceptance of terms and conditions, Article  194 of the Civil Code states that if there is a mistake as to the identity of a  contract, or as to one of the conditions of the concluding thereof, or as to the  subject matter of the contract, the contract shall be void. The ability to  present evidence that a customer accepted the terms and conditions by clicking  &lsquo;accept&rsquo; on a mobile device is thus not the only consideration.<br /><br />Our  recommendation when providing customers with terms and conditions to accept via  mobile devices is to ensure that there is as little scope as possible for there  to be any dispute as to whether or not the terms and conditions have been  considered. Requiring customers to scroll through terms and conditions in full  before they are presented with an &lsquo;accept&rsquo; button is just one example of the  type of process that could be adopted to try to reduce the  risk.<br /><br /><strong>Risks of adopting social media in a business  context</strong><br /><br />Social media can be described as online interaction that  allows for user generated content, often for public consumption, and often in  such a way that provides for dialogue with others. Whether or not we actually  use them ourselves, it is beyond dispute that the popularity of social media  platforms such as Facebook, Twitter and LinkedIn has made them a  well-established part of daily life for many people around the world. The high  degree of up-take of social media by the public is leading businesses to adopt  social media as a means of communicating internally and  externally.<br /><br />Social media considerations for businesses are wide ranging,  and could encompass anything from establishing and using an official corporate  Facebook page or Twitter account, through to the use of social media by  employees at work or in their own time, the use of social media by third parties  in such a way that it impacts on the company, and many more scenarios  besides.<br /><br />Before adopting social media as a business tool, it is important  to develop appropriate social media policies, and ensure that employees are  familiar with those policies. It is also important to ensure that other  corporate policies are considered from a social media perspective. Employee code  of conduct policies, employment candidate screening processes, and brand  protection policies are examples of diverse circumstances in which social media  policies have the potential to be relevant. As such, social media policies  should be of interest to all employees, and to managers across a range of  departments.<br /><br />The issue of privacy has become more and more topical in the  Gulf region. It is essential that companies are familiar with the privacy and  data protection laws applicable to them. While the current UAE laws regulating  privacy are basic, they are nevertheless of considerable effect, and the  consequences of breach are serious. When considering engaging with customers via  social media, companies should also consider aspects such as whether information  being requested from a customer will pass through systems that are inferior to  the company\'s own data-protection measures &ndash; and whether or not customers fully  appreciate this.<br /><br />Social media provides a further avenue for the creation  of data that might be subject to legal and regulatory obligations with regard to  the retention and disposal of records. By way of example, the Commercial  Transactions Law (Federal Law No.18 of 1993) requires traders to retain business  correspondence for a certain period of time. This raises questions as to what  constitutes business correspondence that might be the subject of such  requirements (a &lsquo;post&rsquo; on a corporate Facebook page, for example?), along with  the practical issue of whether it is technically possible to capture and retain  such data.<br /><br />The use of social media can also impact on the  employer/employee relationship. An ill-considered comment about a colleague via  social media could be considered workplace bullying or harassment, and  potentially lead to allegations of misconduct against the employee making the  comment - or even liability on the part of the employer for failing to address  the matter. A social media policy cross-referenced with the IT system and  internet usage policy and employee code of conduct is one way to address this  risk.<br /><br />The use of social media by others brings with it risks to a  company&rsquo;s reputation. The type of risks could involve inaccurate or disparaging  comments by employees or members of the public about the company or its  products. Some content that has the potential to damage a company&rsquo;s reputation  (say, a poorly judged attempt at humour in a viral marketing campaign) is put  out there with the company&rsquo;s blessing. As part of a social media policy, many  companies institute formal social media monitoring to ensure that they are aware  of what is being said about them, and to able to address adverse content  promptly - and appropriately - if the need arises.<br /><br />The use of social  media by corporate users brings with it significant scope for the lines between  professional and personal use to be blurred, and this can be problematic.  Examples include instances where employees responsible for managing a company&rsquo;s  social media account mistakenly post private comments or opinions on a corporate  site (or vice versa). The fall-out from an employee sending an inappropriate  message from a company&rsquo;s social media account can be quite diverse.  Embarrassment, brand degradation, and litigation against the company (as the  employee is seen to be acting as a representative of their employer) are just  some of the risks.<br /><br />The way in which social media usage by businesses is  developing means that it is often by another corporate entity\'s misfortune that  businesses are able to learn the \'rules of engagement\'. Besides relying on other  people&rsquo;s mistakes, businesses should be proactive and consider developing social  media usage policies, so as to help reduce the risks associated with social  media in a business environment.<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, and can provide in-house training on  the subject.</p>'),
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(80894, 4412, 'content_description', 'What: Domain name dispute \r\nWho: The Complainant, Caterpillar, is a MNC with a stellar reputation built in heavy equipment and construction.\r\n'),
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(80896, 4412, 'pageSummary', 'What: Domain name dispute \r\nWho: The Complainant, Caterpillar, is a MNC with a stellar reputation built in heavy equipment and construction.\r\n'),
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(80908, 4412, '_yoast_wpseo_metadesc', 'What: Domain name dispute Who: The Complainant, Caterpillar, is a MNC with a stellar reputation built in heavy equipment and construction.'),
(80909, 4413, 'content', '<p><strong>Preamble:<br /><br /></strong>Arbitration in civil and commercial matters  is an alternative method of dispute resolution that may be agreed upon by the  parties &ndash;Article 203 of the Civil Procedure Law.<br /><br />Certain laws exist which  contain special provisions requiring certain disputes to be settled through  arbitration. This is known as mandatory arbitration.<br /><br />One example is  Article 118 of Federal Law No. 28 of 2005 (Personal Status Law) which deals with  the role of arbitration in cases of marital discord.<br /><br />Another example is  Article 160 of Federal Law No. 8 of 1980 (Labour Law) which deals with  collective labour disputes.<br /><br />In addition to those listed above, a number  of comparative laws contain provisions relating to agricultural, water, property  and other disputes exist.<br /><br />In all cases where the legislator requires  disputes to be referred to arbitration, this may only take place pursuant to a  legislative provision enacted by the competent authority.<br /><br />The rule is  that courts have jurisdiction over disputes with the exception being that  parties may agree to submit their dispute to arbitration. When deciding that  certain disputes should only be settled through arbitration, the legislator must  enact appropriate legislation.<br /><br />The above considerations and the  importance of securities, bonds and shares trading in the UAE led to the  enactment of Federal Law No. 4 of 2000 establishing the Securities &amp;  Commodities Market &amp; Authority. The Law generally provides for arbitration  as follows:<br /><br />1)&nbsp;Federal Law No. 4 of 2000 concerning the Emirates  Securities &amp; Commodities Authority<br /><br />1-&nbsp;Article (2) of the Law states:  &ldquo;A public authority with the name of the \"Securities &amp; Commodities  Authority\" shall be established in the State\'s capital. It shall enjoy legal  personality and financial and administrative independence, and shall have the  supervisory and executive powers necessary to perform its functions according to  the provisions of this Law and the regulations issued in implementation  thereof<br /><br />2-&nbsp;Article 4 of the Law sets out the powers of the Authority and  states at Paragraph 2 that the Authority may issue regulations in consultation  and coordination with the Markets licensed in the State,  including:<br /><br />[Regulations on the arbitration of disputes arising from  securities and commodities transactions]<br /><br />3-&nbsp;Article 47 of the Law  states:<br /><br />The Board (Board of Directors of the Authority) shall issue the  resolutions necessary for the implementation of this Law<br /><br />4-&nbsp;Further, on  05 February 2001, the Chairman of the Board of Directors of the Securities &amp;  Commodities Authority issued Resolution No. 1 of 2001 concerning the regulation  on the arbitration of disputes arising from securities and commodities  transactions pursuant to a resolution of the Board of Directors of the Authority  and following consultations with the authorities concerned with the setting up  of markets in the UAE<br /><br />Article (2) of the Regulation  provides:<br /><br />&ldquo;Disputes arising from the application of the Law(1) between  parties involved in the securities and commodities industry shall be resolved  solely through arbitration. The provisions of this Regulation shall apply in  this regard.&rdquo;&nbsp;<br /><br />&ldquo;Market dealing signifies one&rsquo;s agreement to arbitration  and to be bound by the decision of the arbitrators and one&rsquo;s waiver of the right  to appeal the decision save as provided in this Regulation.&rdquo;&nbsp;<br /><br />\"Article 30  of Resolution No. 1 of 2000, issued by the Chairman of the Board of Directors of  the Securities Authority concerns the regulation of brokers. It  provides:<br /><br />&nbsp;&ldquo;All disputes relating to securities and commodities  transactions and brokers shall be subject to such arbitration regulations as the  Authority shall lay down in consultation and conjunction with the licenced  markets of the State.&rdquo;&nbsp;&nbsp;<br /><br />5-&nbsp;On 1 September 2008 the Chairman of the Board  of Directors of the Authority issued Resolution No. 35/T of 2008 amending  certain arbitration provisions of the Authority&rsquo;s regulations.<br /><br />The  Resolution makes several amendments to the brokers&rsquo; regulations, which are  contained in Article 9 of the regulations dealing with market operation. Also  amended are Article 2 of the regulations on the arbitration of disputes arising  from securities and commodities transactions, and Article 25-2 of the regulation  on commodity listing and trading and commodity contracts.&nbsp;<br /><br />Article 2, as  amended, of the regulation on the arbitration of disputes arising from  securities and commodities transactions states: &ldquo;Disputes arising from  securities and commodities transactions shall be settled through arbitration  when the parties at their discretion agree to arbitration. The provisions of  this Regulation shall apply in this regard.&rdquo;<br /><br />The same provision appears  in the regulation on brokers and the regulation on commodity listing and trading  with the following additional phrase:<br /><br />&ldquo;The provisions of the regulation  on the arbitration of disputes arising from securities and commodities  transactions shall apply in this regard.&rdquo;<br /><br />It is thus clear that Federal  Law No. 4 of 2000 concerning the Securities Authority and Market grants the  Authority the power to issue the regulations necessary to implement its  provisions and to issue arbitration regulations for disputes arising from  securities and commodities transactions.<br /><br />Pursuant to this legal  authority, the Chairman of the Authority&rsquo;s administration issued Resolution No.  1 of 2001 concerning the regulation on the arbitration of disputes arising from  securities and commodities transactions which provides that disputes arising  from the application of the law establishing the Authority shall be settled  solely through arbitration (Article 2)<br /><br />This provision was amended by  Resolution No. 35/T of 2008 which makes arbitration optional such that it does  not take place before the Authority unless the parties so agree.<br /><br />In the  view of the writer, Resolution No. 35/T of 2008 was enacted in response to the  many objections raised over the legality or constitutionality of Article 2 of  the regulation on the arbitration of disputes arising from securities and  commodities transactions.<br /><br />The question is: Can the Board of Directors  impose a legal obligation to pursue arbitration as the only recourse for  settlement of disputes arising from securities and commodities  transactions?&nbsp;<br /><br />The author&rsquo;s position is that Law No. 4 of 2000 grants the  Authority the power to issue the regulations necessary to implement its  provisions and to issue regulations on the arbitration of disputes arising from  securities and commodities transactions<br /><br />In legislative jurisdiction,  where the legislator grants power to any authority to issue rules, regulations  and decisions implementing the law, the role of the authority, be it the  Cabinet, a minister, department head, or board of directors, is limited to  adopting and issuing the law&rsquo;s implementing rules and regulations without  introducing legislative provisions that are not found anywhere in the  law.<br /><br />I&nbsp;consider that the provision in Resolution No. 1 of 2001 concerning  arbitration regulations referring to arbitration as the only recourse is a  legislative provision that should have appeared in the law. Since the law does  not deal with the matter and only authorises the Authority&rsquo;s Board of Directors  to issue arbitration regulations, the introduction of such provision is an  encroachment upon the legislator&rsquo;s chief function, which is to enact  laws.&nbsp;<br /><br />While the Dubai Courts have consistently regarded that provision  of Resolution No. 1 of 2001 as correct, the Securities Authority saw fit to  amend that provision in Resolution No. 35T of 2008 by providing optional  recourse to arbitration where arbitration would take place before the Authority  only if the parties so agree.<br /><br />Resolution No. 1 of 2001 applies to all  disputes that were not referred to arbitration before the Authority and were not  reserved for judgment prior to its issue (see Article (1) of the Civil Procedure  Law in this regard).<br /><br />However, on 20 January 2011, the Abu Dhabi Judicial  Department Supreme Court ruled differently based on other reasons in Commercial  Appeals No.&rsquo;s 809, 841, 848, 867-2010. In the case before the Court, a decision  had been rendered declaring the court to be without jurisdiction and conferring  jurisdiction upon the Authority to which the matter was referred in order to be  heard by an arbitration tribunal appointed pursuant to Resolution No. 1 of 2001  (in its pre-amended form). Since that decision had been issued prior to the  coming into force of Resolution No. 35T of 2008, the Court applied res judicata  as the overriding principle above any public policy considerations and ruled  that based on the principle of res judicata, the subject matter of the dispute  would be referred to the Authority for arbitration as the only recourse for  settlement of the parties&rsquo; dispute.<br /><br /><strong>Concluding  Comments<br /><br /></strong>1)&nbsp;The Securities &amp; Commodities Authority was set  up in the UAE under Federal Law No. 4 of 2000. The Law grants the Authority,  represented by its Board of Directors, the power to issue regulations on the  arbitration of disputes arising from securities and commodities  transactions.&nbsp;<br /><br />2)&nbsp;Pursuant to a Board of Directors resolution, the  Chairman of the Board of Directors of the Authority issued Resolution No. 1 of  2001 concerning the regulation on the arbitration of disputes arising from  securities and commodities transactions which provides that such disputes shall  be settled solely through arbitration (Article 2).&nbsp;<br /><br />3)&nbsp;In Civil Appeal  No. 50-2007, on 17 April 2007, the Dubai Court of Cassation confirmed this  provision, holding that the courts had no jurisdiction over matters involving a  dispute over securities transactions.&nbsp;<br /><br />4)&nbsp;On 01 September 2007 the  Chairman of the Board of Directors of the Authority issued Resolution No. 35/1  of 2008 amending Article 2 of the regulation on the arbitration of disputes  arising from securities and commodities transactions such that the Authority  could only arbitrate a matter when parties have agreed to refer their matter to  it.<br /><br />5)&nbsp;On 20 January 2011, the Abu Dhabi Judicial Department Supreme  Court, in Appeals No.&rsquo;s 809, 841, 848, 867-2010, confirmed that a ruling was res  judicata and accordingly declared the Court of First Instance to be without  jurisdiction to hear a matter involving securities and shares transactions  because the ruling had acquired the force of res judicata prior to the issue of  Resolution No. 35T of 2008 and res judicata overrode any public policy  concerns<br /><br />6)&nbsp;The question of the constitutionality of the old resolution  imposing a mandatory arbitration provision has been resolved by Authority  Resolution No. 35/1 of 2008 which makes recourse to arbitration optional on the  basis that the parties to the dispute must agree to arbitration.</p>'),
(80890, 4412, 'content', '<p><strong>What<br /></strong><br />Domain name  dispute&nbsp;<br /><br /><strong>Who</strong><br /><br />The Complainant, Caterpillar, is a  MNC with a stellar reputation built in heavy equipment and  construction.<br /><br />The Respondent is a regional software house with offices in  the Middle East &amp; Canada operating a business known as  Catcontrols.<br /><br /><strong>The Prize<br /><br /></strong><a href=\"http://www.catcontrols.com/\">www.catcontrols.com<br /><br /></a>Why<br /><br />CAT  is the Complainant&rsquo;s house mark, which it has cultivated over decades to become  a household name in heavy equipment and construction machinery. The Complainant  enjoys substantial goodwill and reputation in its CAT mark.<br /><br />The use of  CAT in <a href=\"http://www.catcontrols.com/\">www.catcontrols.com</a> is  unauthorised and detrimental to the Complainant as its use is likely to create  confusion amongst consumers that the website is dealing with CAT products and  services or is somehow related to the Complainant. Such use is damaging to the  Complainant&rsquo;s goodwill and reputation and results in brand dilution of its CAT  mark.<br /><br /><strong>Where</strong><br /><br />World Intellectual Property  Organization (&ldquo;WIPO&rsquo;) Arbitration and Mediation Centre under the Rules for  Uniform Domain Name Dispute Resolution Policy<br /><br /><strong>Facts of the  Case</strong><br /><br />The Respondent had registered the disputed domain name and  had been actively operating the website to provide extensive information on its  software products, which were offered for sale.<br /><br />The Complainant has trade  mark registrations for Caterpillar &amp; CAT in a number of countries and has  been using both names as trade marks for decades.<br /><br />The Complainant argued  that the disputed domain name was confusingly similar to marks in which the  Complainant has rights, the Respondent has no rights or legitimate interests in  use of the disputed domain name and the Respondent&rsquo;s registration and use of the  disputed domain name was in bad faith.<br /><br /><strong>WIPO&rsquo;s  Findings</strong></p>\r\n<ol>\r\n<li>The WIPO Panel agreed with the Complainant that the &nbsp;disputed domain name  had incorporated its CAT trade &nbsp;mark in its entirety and that the addition of  the word, &ldquo;controls&rdquo;, had done nothing to remove the confusion likely to be  caused by the Respondent&rsquo;s use of the Complainant&rsquo;s CAT mark in the disputed  domain name.<br /><br />Accordingly, the WIPO Panel found that the disputed domain  name was confusingly similar to the Complainant&rsquo;s CAT mark.</li>\r\n<li>It was found that the Respondent&rsquo;s use of the disputed domain name cannot be  characterised as use in connection with the bona fide offering of goods and  services. The Complainant had argued that the Respondent&rsquo;s prominent use of CAT  and the adoption of the Complainant&rsquo;s well known &ldquo;Caterpillar Yellow&rdquo; in its  corporate livery and website reinforced the impression of a false association  with the Complainant and the Complainant&rsquo;s products. Such contrived use of CAT  must necessarily lead to the inescapable conclusion that there was no bona fide  offering of goods under the disputed domain name.</li>\r\n<li>The WIPO Panel found that the disputed domain name was registered and used  in bad faith.</li>\r\n</ol>\r\n<p>The Complainant had vigorously argued that there was no plausible reason why  the Respondent would have chosen to use CAT as part of the disputed domain name  except to misappropriate the vault of goodwill and reputation, which the  Complainant had painstakingly cultivated over decades of use. Quite clearly, <a href=\"http://www.catcontrols.com/\">www.catcontrols.com</a> was not a  domain name, which any user would have chosen unless they knew of the CAT trade  mark and the custom, which it attracts. The Respondent had manifestly registered  the domain name solely for the purpose of attracting users who would be misled  into thinking that there was some association between the disputed domain name  and the Complainant.<br /><br />It was obvious from the matrix of use that the  disputed domain name was being used in bad faith.<br /><br />Accordingly, the WIPO  Panel was satisfied that the Complainant had succeeded in proving its case and  ordered that the disputed domain name be transferred to the  Complainant.<br /><br /><strong>Learnings<br /><br /></strong>Caterpillar was able to  leverage on its well known CAT trade mark to stop the use of Catcontrols in  relation to software. Caterpillar had argued successfully that Caterpillar was  more than yellow iron.<br /><br />&ldquo;Caterpillar is more than big heavy equipment &ndash;  and much more than yellow iron. The products and applications it is best known  for have evolved from simple mechanical workhorses to sophisticated,  electronically controlled solutions driven by state of the art  software.<br /><br />Caterpillar is not just an iron company, it is a world class  electronics company.&rdquo;<br /><br />Counsel swayed the WIPO panel with arguments that  Caterpillar&rsquo;s fame extended beyond its traditional core business of heavy  equipment and into software.<br /><br />This important case demonstrates  Caterpillar&rsquo;s far reaching fame.<br /><br />It is important to build brand equity in  your trade mark as it will pay dividends in the years to come in arresting  unauthorised use of your mark in domain names, which seek to capitalize on the  goodwill and reputation subsisting in your mark.<br /><br />Brand owners ought to be  vigilant in monitoring any unauthorised usage of their trade marks in cyberspace  and to act swiftly and decisively in rooting out the problem. Using the WIPO  Arbitration and Mediation Centre as a means to do so has proven highly effective  and quick in resolving domain name disputes. The fact that the Caterpillar had  been vigilant in enforcing its rights against offenders in cyberspace was  important in shoring up its arguments that any attempt to free ride on its  substantial goodwill and reputation was damaging to its brand integrity and  likely to cause brand dilution.<br /><br />Fortifying one&rsquo;s cyber presence has never  been more important as an increasing number of users log onto the internet to  shop and be entertained especially in the Middle East where internet penetration  has witnessed exponential growth as investments pour into the development of the  online space as indicated by the proliferation of Arabic language content and  Arabic domain names.<br /><br />This significant case represents yet another  decisive victory for the ATCO Domain Name Dispute Resolution practice, part of  our award winning IP practice which continues to counsel clients in ensuring  that their valuable goodwill and reputation is well protected in cyberspace.</p>'),
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(80873, 4411, 'pageSummary', 'Introduction: In the last few years, the Dubai courts have witnessed many cases filed by investors/purchasers of real estate against developers requesting the courts to terminate their contract.\r\n'),
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(80867, 4411, 'content', '<p><strong>Introduction</strong><br /><br />In the last few years, the Dubai courts  have witnessed many cases filed by investors/purchasers of real estate against  developers requesting the courts to terminate their contract. This article  considers the merits of some of the arguments raised by the purchaser and the  developer in a recent judgment where a developer failed to deliver an apartment  by the contractual hand-over date (at the time of judgment, the hand-over date  was approximately 3 years in delay) and legislation (that has been spurred by  the economic crisis) that sets out circumstances when a purchaser or developer  can terminate a contractual  relationship.<br /><br /><strong>Background</strong><br /><br />The Developer (the  Defendant) and the Claimant entered into a contract in February 2006 for the  purchase of an apartment. Contractual delivery was to occur two years later;  however, the Developer failed to meet its delivery obligation and the Claimant  filed a case against the Developer requesting the court to:</p>\r\n<p>1. cancel the contract;<br />2. order the Developer to reimburse the money that  was paid for the apartment; and<br />3. pay damages incurred by the Claimant as a  result of the delay.&nbsp;<br /><br />The Defendant argued that the delay was caused by  reasons beyond his control and that he made every effort to deliver the  apartment on the delivery date despite the fact that infrastructure services  were not provided to the Developer by the Master Developer. The Defendant filed  a counter claim and requested the court to appoint an engineering expert from  the Land Department to assess the Defendant&rsquo;s justification for the delay.&nbsp; The  Court appointed an expert who prepared a report in favour of the Defendant  confirming that the causes for delay were outside the Defendant&rsquo;s control. As a  result of the report and the Court of First Instance&rsquo;s evaluation of the  Claimant&rsquo;s reasons for termination, the Court of First Instance rejected the  Claimant&rsquo;s case to terminate the contract and decided that the Defendant had  fulfilled its obligations to the best of his ability.<br /><br /><strong>The Court&rsquo;s  reasoning for rejecting the Claimant&rsquo;s case is set out  below:<br /><br /></strong>1.&nbsp;At the outset the Court made reference to the concept  of good faith contained in article 246 of the Civil Code which provides that the  parties have an obligation to conduct themselves towards each other in the  performance of the contract in a manner that is consistent with principles of  good faith.<br /><br />Pursuant to Article 246 of the Civil Code, the Court looked  at the issue of the Defendant&rsquo;s performance and whether the delay, by the  Defendant in performing its obligations was due to his own fault and whether  such delay constitutes grounds for granting the Claimant his request to  terminate the contract. In this case, the courts decided that the Defendant  fulfilled its obligations in good faith as the Defendant had reached the final  stage of completion (and obtained all the necessary approvals) but for reasons  beyond its control was unable to obtain a completion certificate and accordingly  unable to meet the precondition for contractual delivery.<br /><br />2.&nbsp;It was  further established that according to Article 267 of the Civil Code, &ldquo;if the  contract is valid and binding, it shall not be permissible for either of the  contracting parties to resile from it, or to vary or cancel it, save by mutual  consent or an order of the court, or under a provision of the law.&rdquo; In this  case, the Court decided that the contract between the Developer and the Claimant  was still valid. Any variation or cancellation would have to be sought by way of  a court order.<br /><br />3.&nbsp;On the issue of termination, the contract contained a  clause that mirrored the wording set out under Article 271 of the Civil Code  which provides that &ldquo;it shall be permissible to agree that a contract shall be  regarded as being cancelled spontaneously [automatically] without the need for a  judicial order upon non-performance of the obligations arising thereout, and  such agreement shall not dispense with notice unless the contracting parties  have expressly agreed that it should be dispensed with.&rdquo;&nbsp; Notwithstanding the  parties&rsquo; agreement to dispense with the need for a court order to achieve valid  termination, the court still has the right to hear the Claimant&rsquo;s reasons for  termination and the discretion to rule on whether or not termination is valid on  the facts.<br /><br />4.&nbsp;In addition, Article 243 (2) of the Civil Code, provides  that &ldquo;with regard to the rights (obligations) arising out of the contract, each  of the contracting parties must perform that which the contract obliges him to  do.&rdquo; Accordingly, in order to terminate a binding contract, a claimant seeking  termination must not have neglected his obligations under the contract and the  respondent&rsquo;s breach must be due to the respondent&rsquo;s neglect rather than the  failure to exercise a legal right (Court of Cassation decision numbered 187 of  1999).&nbsp;<br /><br /><strong>Conclusion<br /><br /></strong>The court held that despite  the contract containing an effective and enforceable termination clause under  Article 271, this does not prevent the Court from sitting in judgment to hear  the reasons for termination.<br /><br />In this specific case involving a developer  and purchaser, it was clear that the Developer had defaulted in its delivery  obligation, however, the courts applied its discretion and held that, in the  circumstances of the case, delay was not sufficient to terminate the contract.&nbsp;  The Court also considered the concept of duty of good faith and the Defendant&rsquo;s  performance, noting that the Defendant had done everything he could do to meet  its contractual obligations, and held that as there were specific events beyond  the control of the Developer which hindered the Defendant&rsquo;s performance, he  could not be held liable for the failure to deliver the apartment.<br /><br />In  summary, the Courts will consider each case on its own facts and uphold the  terms of the parties&rsquo; contract, however, the courts will always be free to  exercise its discretion when determining the issue of termination.<br /><br />In  addition, a resolution was issued last year which is consistent with the Courts&rsquo;  approach when determining Developer/purchaser disputes and also helps counter  uncertainty with respect to the type of issues mentioned above. The Government  of Dubai issued Executive Council Resolution 6 of 2010&nbsp; approving the executive  regulation of Law 13 of 2008 concerning the regulation of the Interim Real  Estate Register in the Emirate of Dubai which contains provisions setting out a  list of events where:<br /><br />(a)&nbsp;purchaser may apply to the courts to terminate  its contract with the developer (for example, &ldquo;if the developer materially  changes the agreed specifications&rdquo;);<br />(b)&nbsp;reasons considered to be beyond the  developer&rsquo;s control (for example, &ldquo;if the Master Developer makes any variations  to the site of the project which leads to a change in the boundaries and area of  the project in such a manner that affects the performance by the Sub- developer  of its obligations&rdquo;); and <br />(c)&nbsp;&nbsp;when a developer shall be considered to have  failed or neglected to perform its obligations (For example, &ldquo;delay in obtaining  the written approval of the Master Developer of the plans and designs&rdquo;).</p>'),
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(80828, 4408, '_yoast_wpseo_metadesc', 'One of the primary issues in Islamic finance transactions is the determination of the Shariah compliance of the financial instruments. As a market practice, this role to confirm whether or not a financial instrument complies with the requirements of Shariah is commonly taken by the Shariah Board or Shariah Council of an entity, usually the financial institution.'),
(80829, 4409, 'content', '<p>Number a time we receive queries in relation to rights over the designs,  drawings, models, specifications or reports (&ldquo;Designs&rdquo;) prepared upon an  employer&rsquo;s request for its various projects by an specialized Architectural  Engineering firms/individuals appointed for such purpose (the &ldquo;Architectural  Engineers&rdquo;).<br /><br />Employers are usually interested to know what kind of rights  they have over the Designs and to what extent. Also what is required to  safeguard such rights, if any?<br /><br />The matter of copy right over Designs is  regulated under the law No. 7 for the year 2002 as amended by law no. 32 for the  year 2006 in respect of Author Copyrights and Parallel Rights otherwise known as  (&ldquo;Copyright Law&rdquo;).<br /><br />The Copyright Law has referred to the different types  of rights protected under it as the &ldquo;work of Art&rdquo; and defined it as &ldquo;Any  original authored Work of Art in the filed of arts, fine arts or sciences of  whatever type, manner of expression, significance or purpose&rdquo;.<br /><br />And  referred to the creator or originator of such Work of Art as the &ldquo;Author&rdquo; and  defined it to be &ldquo;The person who originates the Work of Art. He whose name  appears on or is ascribed to the Work of Art upon publication as an author  shall, unless a proof to the contrary is established, be considered as the  Author thereof&rdquo;.<br /><br />The law also gives the author and his universal  successors, the exclusive and unlimited non-assignable rights over the Works of  Art.<br /><br />Though the Copyrights Law refers and defines the Author as the  originator of the Work of Art; the word &ldquo;Author&rdquo; also implies and means the  owner of the Work of Art.<br /><br />Clause 2 of the Copyright Law has detailed the  Work of Art that are covered under it, and pursuant to sub clause 2 (7) of the  Copyright Law; the protection is extended to the architectural works and  designs, engineering plans and layout (Designs) from the moment they are  created. The Copyright Law offers automatic protection from the moment of the  creation of the Work of Art. The Copyright Law also has regulated the way in  which such Work of Art is to be registered to enable the Author to protect his  rights under the Copyright Law. Nevertheless, non registration of the Work of  Art shall not prejudice any aspect of protection provided under the law so long  as the Author is able to proof his ownership to the Work of Art.<br /><br />When it  comes to the protection of the Work of Art, the Copyright Law differentiates  between the actual Work of Art and the commercial exploitation of the Work of  Art. While it is not clear as to the period within which the Work of Art shall  remain protected; the commercial exploitation of the Work of Art is protected  during the life time of the Author and for another 50 years commencing from the  first calendar year following the death of the Author. The Copyright Law also  has not defined what &ldquo;commercial exploitation&rdquo; means; however, clause 10 of the  Copyright Law provides that &ldquo;commercial exploitation&rdquo; is any disposition of the  Work of Art by the Author or his successors for any consideration whatsoever.  Therefore, the criteria to determine whether the disposition is commercial or  not lies on the consideration the Author or his successors expect to receive  from such exploitation.<br /><br />By adopting the interpretation of the &ldquo;Author&rdquo; as  being the owner of the Work of Art; then Architectural Engineers are the owners  of their Designs as they are the originators of the Designs and therefore,  posses all rights related thereto.<br /><br />Hence, the Owner of the Design is  capable, by way of contract or otherwise, of transferring or assigning his  ownership, copyright or the commercial exploitation of the Design to any third  party and such agreement is always valid and binding as long as it is in writing  and the subject matter together with the purpose, duration and territory thereof  are specified.<br /><br />Therefore it is indispensable for any employer upon  entering into any Master Architectural Agreement/s to ensure that the original  copy of the Design along with all related copyrights are vested on him and that  by entering into such agreement the Architectural Engineers consent to the  employer that he has the right to transfer, assign and use the Design in  whatever manner serves his purpose. The Author should also acknowledge that the  consideration of such transfer or assignment has been received. For more  protection, the employer may also introduce a provision in the contract that  upon the completion and delivery of the Design, he shall register his rights  over the Design with the concerned authority to confirm its ownership of the  Design and protect his rights thereof.</p>'),
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(80833, 4409, 'content_description', 'Number a time we receive queries in relation to rights over the designs, drawings, models, specifications or reports (“Designs”) prepared upon an employer’s request for its various projects by an specialized Architectural Engineering firms/individuals appointed for such purpose (the “Architectural Engineers”).'),
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(80835, 4409, 'pageSummary', 'Number a time we receive queries in relation to rights over the designs, drawings, models, specifications or reports (“Designs”) prepared upon an employer’s request for its various projects by an specialized Architectural Engineering firms/individuals appointed for such purpose (the “Architectural Engineers”).');
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(80843, 4409, '_yoast_wpseo_metadesc', 'Number a time we receive queries in relation to rights over the designs, drawings, models, specifications or reports (“Designs”) prepared upon an employer’s request for its various projects by an specialized Architectural Engineering firms/individuals appointed for such purpose (the “Architectural Engineers”).'),
(80844, 4410, 'content', '<p>The International Chamber of Commerce (ICC) is a highly respected  organization in the global trading community. One of the services it provides is  the International Court of Arbitration, which is an international arbitration  institution with an outstanding track record in resolving cross border business  disputes.&nbsp; Although based in Paris, it is widely made use of by companies and  organizations undertaking business in the Middle East.&nbsp; Companies entering into  business often conclude contracts which provide that in the event any disputes  arise out of their agreements, they will be settled under the rules of  arbitration of the ICC.<br /><br />The ICC Court of Arbitration is the body which  administers the arbitration process.&nbsp; The arbitrators themselves manage and  direct the arbitration and are responsible for adjudicating on the dispute.&nbsp;  Before awards are released, they are checked by the ICC Courts for accuracy just  to ensure the high standards of the ICC are upheld.<br /><br />All such arbitrations  are conducted in accordance with the ICC arbitration rules.&nbsp; The current rules  have been in place since 1998 but have recently been reviewed by a special task  force consisting of international practitioners including Mr. Essam Al Tamimi,  founder and Senior Partner of Al Tamimi &amp; Company.&nbsp; The new rules have now  been published and come into play with effect from 01 January 2012.&nbsp; The purpose  of this article is to look at some of the changes being  introduced.&nbsp;<br /><br /><strong>Impartiality and availability of  Arbitrators:<br /><br /></strong>The arbitrators are now expressly required to sign  a statement confirming that they will remain impartial and independent, as well  as confirming they will make themselves available to take part and process the  arbitrations, if appointed to the Tribunal.&nbsp; This is intended to minimize delays  caused by arbitrators taking on too many appointments and then having no  available time to deal with them.<br /><br /><strong>The Conduct of the Arbitration  and Case Management.&nbsp;<br /><br /></strong>All clients want to see arbitrations run  as efficiently as possible, because inefficiency simply adds to the time spent  by lawyers, which in turn increases the charges to the clients.&nbsp; Under the new  rules, both the tribunal and the parties are required to make every effort to  conduct their arbitration in an expeditious and cost effective manner.&nbsp; Part of  that process will be for the tribunal to convene a case management conference at  a very early stage so as to ascertain what steps need to be taken to ensure the  conduct of the case is streamlined and well structured.<br /><br />In order to avoid  delays on the part of the Tribunal in issuing its award, the new rules also  provide for the arbitrators to inform the parties of the date by which they  expect to submit their draft award to the ICC Court for approval.&nbsp; This will  clearly help maintain impetus as well as giving the parties precise information  as to what is happening.&nbsp;<br /><br /><strong>An Emergency  Arbitrator&nbsp;<br /><br /></strong>There will be cases where parties require urgent  steps to be taken even before an Arbitration Tribunal has been appointed.&nbsp; The  ICC rules now provide for the appointment of an Emergency Arbitrator who has the  power to grant various orders on an expeditious basis.&nbsp; This will undoubtedly be  very useful, for example to prevent one of the parties from destroying evidence  or acting inappropriately.&nbsp; Although there may be problems about enforcing such  an order, the new rules envisage such relief being used in addition to ancillary  applications being made to relevant courts.&nbsp; Orders made by the Emergency  Arbitrator will not bind the Tribunal which is subsequently  appointed.<br /><br /><strong>Multiple Parties and  Consolidations<br /><br /></strong>There may be occasions where the same parties to  a dispute experience other problems arising out of number of different contracts  between them.&nbsp; Where there is a breakdown in a relationship, it sometimes tends  to escalate and spill over into other issues.&nbsp; In such a case, it would  obviously be sensible to hear all the disputes between the same parties in one  set of proceedings.&nbsp; Under the new rules it will now be much easier for the ICC  to consolidate cases of this sort, thereby keeping the arbitration costs down.&nbsp;  The current ICC rules allow for consolidation in certain circumstances but the  new rules envisage a broader power being given to the ICC Court to  consolidate.&nbsp;<br /><br />The new rules also permit the possibility of joining  additional parties to an arbitration.&nbsp; Whilst the current rules allow for  joinder by consent, the new rules empower the ICC Court to join a party to the  same arbitration agreement without the consent of the other parties.&nbsp; The  exception would be where an arbitrator has already been appointed, in which case  the consent of all parties is still needed.<br /><br />It remains to be seen how  many issues arising out of the multi-parties and multi-contract changes are  referred to and dealt with by the ICC Court.&nbsp; Clearly the ICC cannot legislate  for each and every event and sensibly they have not tried to do  so.<br /><br /><strong>Jurisdictional Challenges<br /><br /></strong>Under the current  rules if one party challenges the jurisdiction of the arbitrators, for example  by saying it is not a contractual party to the arbitration agreement, the matter  will be referred to the ICC Court for a decision.&nbsp; Under the new rules, the  Arbitration Tribunal itself is given the power to determine such issues unless  there is some special reason why the Secretary General of the ICC chooses to  refer the matter to the ICC Court.&nbsp; Such a change will probably speed things up  and reduce costs for the parties, which is to be welcomed.&nbsp; Giving the  arbitrators the right to determine their own jurisdiction also brings the ICC  into line with a number of other international arbitration  practices.<br /><br /><strong>The ICC Court</strong><br /><br />Arbitrations involving  claims against state or state entities are on the increase.&nbsp; So far as ICC  arbitration claims are concerned, the new rules gives the ICC Court the power to  appoint a suitable arbitrator in circumstances where one of the parties is a  state or claims to be a state entity.&nbsp; That power will be particularly useful  where a State is reluctant to take part or prevaricates in an attempt to block  progress.&nbsp;<br /><br /><strong>General Comment and what this means for the Middle  East</strong><br /><br />The ICC procedures are tried and tested.&nbsp; The rules are  highly regarded and work very well in practice.&nbsp; The new changes are not  dramatic, but reflect the need to deal with a few practical problems which have  arisen since the rules were last reviewed in 1998.&nbsp; In so far as the  modifications reduce delays and costs, then clearly the system will have been  improved.<br /><br />As far as the Middle East is concerned we believe the  provisions will be welcomed both by practitioners and clients.&nbsp; The possibility  of seeking emergency interim or conservative measures is likely to appeal, even  though the parties may still need to involve national courts for enforcement of  such orders.&nbsp; The delegation of certain responsibilities by the ICC Court to the  Tribunal will also be widely appreciated.&nbsp; However, as mentioned above, the ICC  Court will still retain an important role, not least to adjudicate on  applications in respect of the multiple party and consolidation  issues.&nbsp;<br /><br />The Middle East is already very well served by arbitral  institutions but the latest revisions being introduced by the ICC will increase  the attractiveness of the ICC across the region.</p>'),
(80817, 4408, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(80816, 4408, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Islam Abaza'),
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(80812, 4408, 'pageSummary', 'One of the primary issues in Islamic finance transactions is the determination of the Shariah compliance of the financial instruments. As a market practice, this role to confirm whether or not a financial instrument complies with the requirements of Shariah is commonly taken by the Shariah Board or Shariah Council of an entity, usually the financial institution. \r\n'),
(80807, 4408, '_content', 'field_59b649b5c8b2b'),
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(80810, 4408, 'content_description', 'One of the primary issues in Islamic finance transactions is the determination of the Shariah compliance of the financial instruments. As a market practice, this role to confirm whether or not a financial instrument complies with the requirements of Shariah is commonly taken by the Shariah Board or Shariah Council of an entity, usually the financial institution. \r\n'),
(80806, 4408, 'content', '<p>One of the primary issues in Islamic finance transactions is the  determination of the Shariah compliance of the financial instruments. As a  market practice, this role to confirm whether or not a financial instrument  complies with the requirements of Shariah is commonly taken by the Shariah Board  or Shariah Council of an entity, usually the financial  institution.&nbsp;<br /><br />While the basic aspects of Islamic transactions are  theoretically simple, the application and implementation in the real capital  market proves to be more complicated given the reality of the operational and  commercial environment within which Islamic transactions exist. One example is  the determination of profit rates in Islamic financial transactions, which are  often tagged to the interest rates so as to make sense of the indication of the  economic level.&nbsp; Another example is the structure of certain financial  transactions such as Murabaha or bai bithaman ajil (BBA), which is in substance  is to provide financing to the consumer or client, but structured as a trade  transaction to enable to commercial entities make profit out of such &lsquo;financing&rsquo;  instead of making profit from interest which is haram (forbidden/ nor  permissible) in Islam, they make profit from the so-called pure trade  transactions.&nbsp; This led to a situation where the critics of modern Islamic  finance, to view such trade transactions undertaken by these Islamic financial  institutions with their consumers as a repackaging of Islamic finance where form  takes over substance. Whether or not this is true and if so, to what extent it  is true is considered below.<br /><br />As a general rule, for a financial  instrument to be Shariah compliant, it has to strictly contain the elements of  what is permissible under Shariah and should carry any element of what is  constituted as haram under Shariah. Shariah scholars have further established  parameters to ensure that financial products comply with Shariah both in form  and substance; otherwise different levels of legitimacy of such financial  products are accorded. Two primary parameters are aqad and maqasid al shariah.  For example, if a contract such as a Murabaha contract fulfills all the  principles of contract making it a valid contract, then it will be further  examined to determine if it fulfills the maqasid parameter, that is to say  whether it fulfills the objectives of Shariah. If such contract fulfills both  the aqd and maqasid parameters, the contract will be valid and halal  (permissible). However, if such contract only fulfills the aqd and not the  maqasid parameter, it will be labeled as only sahih (genuine) but not halal.  This is because the majority of ulama (scholars) are of the view that mere  conformity to the rules, which go against the purposes of Shariah, are generally  unacceptable.<br />&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <br />While it can be said that almost all of the  Islamic finance transactions fulfill the aqd criterias rendering them sahih,  this does not follow that such Islamic financial transactions necessarily  fulfill the maqasid parameter and the objectives that Shariah intends to  achieve. There seems to be a lack of discussion and consideration given by  Islamic financial participants to the aspects of whether or not it fulfills the  objectives of Shariah. These issues are illustrated below in Islamic financial  transactions based on concepts such as (BBA), bai inah and tawarruq. The Islamic  financial transactions based on these concepts have long been the subject of  controversy amongst Shariah scholars and financiers alike and until now, no one  unified stance has been taken by the global Islamic financial industry in  respect of these transactions. <br />&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <br />It is useful to first briefly  describe the meaning of maqasid al shariah and its elements. Maqasid al shariah  literally means the objectives of Shariah and according to Imam Ghazali, a  renowned Egyptian Islamic Scholar, pursues five basic objectives, ie the  preservation of life, preservation of faith, preservation of lienage and the  preservation of property and these elements have to be protected as absolute  priorities.<br /><br />Both the structure of Tawarruq and Inah generally involve the  purchasing of commodity on credit and selling it for a lower price on cash,  however with different issues involved surrounding the two structures due to  their respective characteristics. In Tawarruq, there are three parties to the  contract and in Inah, two parties. In Tawarruq, a person in need of liquidity  purchases an asset from someone on credit and thereafter sells it for a lower  price to a third party, ie someone other than the original seller. In Inah, the  person in need of liquidity purchases an asset from someone on credit and  thereafter sells it for a lower price to the seller himself. This also gives  rise to BBA where the sale price to the third party, in the case of Tawarruq  and, the seller himself, in the case of Inah, is made on deferred payment  basis.&nbsp;<br /><br />The majority of jurists have generally considered Tawarruq to be  legally permissible whilst Inah, on the other hand is generally disapproved. The  legality of Tawarruq on the general Sharia principle of allowing sale while  prohibiting usury with all elements of transactions are declared permissible and  the absence of explicit evidence to the contrary. However, some jurists  prohibited the practice of tawarruq on the basis that it has similar features of  Inah. Inah, on the other hand, is generally disapproved by the majority of  jurists on the basis that the elements surrounding the contract indicate that  the asset in the transaction is merely being utilized to legitimize riba. The  fact that the asset purchased found its way back to the original seller, points  to a legal stratagem for earning riba. Since the purchaser purchases an asset  for its subsequent buyback by the original seller at a lesser price, Inah  denotes a situation where the purchaser is being assisted by this process to  fulfill his need for cash when he does not have an asset to sell in the first  instance. This gives rise to an indication of hilah where the structure is  adopted to solely circumvent riba and therefore does not fulfill maqasid al  shariah. However, the Shafii school of thought allows Inah on the basis that the  two contracts in Inah are independent of each other although concluded  consecutively. The Shafii refused to read into the intention of the parties and  unless such intention is explicitly stated in the contract to go against Sharia  principle, Inah is valid. In contrast, the structure of Tawarruq does not give  rise to an indication of hilah adopted solely for circumventing riba since the  asset does not return to the original seller. <br />&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <br />However, the  recent resolution the International Council of Fiqh Academy resolved was that  Tawarruq, as practiced by many commercial, Islamic and non-Islamic, banks was  not permissible. In particular they ruled that it came into conflict with  Maqasid Shariah. It is argued that although tawarruq has its basis in the  Shariah, it was, as practiced for the most part until recently, refined by  conventional bankers to fit in with profitability and the transaction control  objectives of conventional banks, i.e. to fit in as closely as possible to  products offered by conventional banks and conventional bank objectives related  to guaranteeing profits or what is termed &ldquo;organized Tawarruq.&rdquo; The  non-permissibility of such organized tawarruq was on the basis that it does do  not fit within the maqasid parameters. Presumably, being a hiyal (ruse) to  circumvent the ban on riba\', the niyah of all participants was in contradiction  with the aims of the Shariah.<br /><br />The basic form of tawarruq as being  practiced by individuals without the involvement of banks is allowed. For  example, Individuals buy vehicles on installments and then sell them onward for  an attractive cash price (below that of the vehicle dealers or if lucky higher)  thereby obtaining cash for other purposes, while continuing to pay installments  to the dealers or financiers. As long as the purpose of obtaining cash is  permissible or halal, this has been allowed by the Shariah scholars. What  commercial banks had started to do was basically ensure that the commodity in a  Tawarruq contract (vehicles in the above example) sells for a price that is less  than its cash price, ensuring that banks were the clients&rsquo; agents in not only  buying the commodity but also selling it and organizing the whole transaction  sometimes as a &ldquo;Murabaha&rdquo; contract and other times as a &ldquo;Tawarruq almubarak&rdquo;  contract encouraging borrowing by clients and developing the debt culture which  is not part of the maqasid of Shariah.<br /><br />The issues in BBA transactions are  similar. BBA is a common Islamic banking facility involving immovable properties  as collateral, involving three separate agreements. The bank would purchase the  property concerned from the chargor pursuant to the first agreement. In the  second agreement, the bank would sell the property to the chargor. The third  agreement was a charge given by the chargor to the bank to enable the bank to  sell the property in the event of default by the chargor. It has been argued  that BBA transactions are superficial in its application of the Islamic law. The  mere availability of Arabic terms in an agreement does not mean that the  transaction is Islamic and falls under the ambit of Shariah. For the believers  who transacted on the BBA argued that they are cheated since they are all  labouring under false pretences and misconceptions concocted by the banks under  Islamic guise. True that BBA will offer a fixed amount of repayment unlike its  conventional counterpart which the amount of repayments fluctuates depending on  the market rate hence fulfills the element of uncertainties in Shariah, however  in general the other hand it slaps and oppresses the borrower with a large  repayment sum thus defeating what the maqasid parameters intend to achieve.</p>'),
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(80787, 4407, 'content_description', 'Claim: This judgment of the Court of Appeal arose from four appeals. The facts are that the First Respondent (as he was known in all four appeals) brought Abu Dhabi Commercial Action No. 41-2010 (Full Bench) against the Appellants seeking judgment against them jointly for AED 231 million, which the First Respondent alleged represented compensation for loss of anticipated profits, in addition to AED 15 million in compensation for moral damages.\r\n'),
(80788, 4407, '_content_description', 'field_59b641c07f473'),
(80789, 4407, 'pageSummary', 'Claim: This judgment of the Court of Appeal arose from four appeals. The facts are that the First Respondent (as he was known in all four appeals) brought Abu Dhabi Commercial Action No. 41-2010 (Full Bench) against the Appellants seeking judgment against them jointly for AED 231 million, which the First Respondent alleged represented compensation for loss of anticipated profits, in addition to AED 15 million in compensation for moral damages.\r\n'),
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(80793, 4407, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Mohammed Jamil AK BIK'),
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(80764, 4406, 'content_description', 'I. Introduction: The UAE is a Civil Law jurisdiction and  the law and practice has developed from several sources, including the Sharia’s, and the French and Egyptian legal codes. Banking and commerce in the UAE are predominantly governed by the Commercial Code (Federal Law No. 18 of 1993) and the Civil Code (Federal Law No. 5 of 1985, as amended).'),
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(80766, 4406, 'pageSummary', 'I. Introduction: The UAE is a Civil Law jurisdiction and  the law and practice has developed from several sources, including the Sharia’s, and the French and Egyptian legal codes. Banking and commerce in the UAE are predominantly governed by the Commercial Code (Federal Law No. 18 of 1993) and the Civil Code (Federal Law No. 5 of 1985, as amended).'),
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(80769, 4406, '_currentURL', 'field_59d35123ab1e7'),
(80770, 4406, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Dena Elkhatib'),
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(80782, 4406, '_yoast_wpseo_metadesc', 'I. Introduction: The UAE is a Civil Law jurisdiction and the law and practice has developed from several sources, including the Sharia’s, and the French and Egyptian legal codes. Banking and commerce in the UAE are predominantly governed by the Commercial Code (Federal Law No. 18 of 1993) and the Civil Code (Federal Law No. 5 of 1985, as amended).'),
(80783, 4407, 'content', '<p><strong>Claim:<br /><br /></strong>This judgment of the Court of Appeal arose  from four appeals. The facts are that the First Respondent (as he was known in  all four appeals) brought Abu Dhabi Commercial Action No. 41-2010 (Full Bench)  against the Appellants seeking judgment against them jointly for AED 231  million, which the First Respondent alleged represented compensation for loss of  anticipated profits, in addition to AED 15 million in compensation for moral  damages. Statutory interest at the rate of 12% from the date of filing of  proceedings until full payment was also requested.<br /><br />It is contended that  in mid-March 2005 a Member of the Board of Directors of UAB Shareholders  Investment Portfolio Limited notified the First Respondent of opportunity to  purchase portfolio shares at a price of AED 8 per share. The First Respondent  confirmed an interest in purchasing the portfolio shares. Members of the Board  invited the First Respondent to a meeting to discuss the arrangements. Personal  circumstances meant the First Respondent could not attend; instead, he  authorised his two business partners to attend on his behalf and accept the  deal.&nbsp; The First Respondent was notified that his first business partner would  receive 10 million shares, the Member of the Board who had initially brought the  deal to the attention of the First Respondent would receive 5 million shares.  The First Respondent was to receive 30 million shares. These arrangements were  confirmed to the First Respondent by way of fax, which set out the details of  the deal, the number of shares, and the price per share. The fax was followed by  an email setting out the same details and requesting the First Respondent&rsquo;s  signature, which he provided in reply to the email. In order to pay for the  deal, the First Respondent sold a number of his shares at reduced prices. The  First Respondent also requested provision, from a certain Member of the Board,  of&nbsp; details of the account number in which he was to deposit the price for the  purchase of the shares. The First Respondent alleged, however, that two Members  of the Board and his business partner had executed an arrangement pursuant to  which the balance of shares (including those the First Respondent intended to  sell) to Qatar Bank, which the First Respondent alleged caused him substantial  loss and damage by way of a loss of anticipated profits, because the share price  had&nbsp; increased to AED 15.7 per share. The share portfolio was held by UAB and  its shareholders, and the First Respondent alleged that the Chairman of the  Board of Directors of UAB and one additional person caused the collapse of the  deal and thus were jointly liable for the damage suffered by the First  Respondent.<br /><br />The Appellants pleaded both res judicata (relying on a  previous decision of the Abu Dhabi Federal Court and a previous decision of the  Sharjah Courts) and a lack of local jurisdiction on the part of the Abu Dhabi  Court.<br /><br /><strong>Court of First Instance:</strong><br /><br />The Court of  First Instance dismissed those arguments (res judicata and lack of jurisdiction)  and appointed an expert in the proceedings.<br /><br /><strong>Court of  Appeal:<br /><br /></strong>The individuals against whom the First Respondent  alleged were the source of his loss and damage appealed in separate appeals. UAB  also lodged an appeal.<br /><br />In 30 June 2010 the Court of Appeal upheld the  decision of the Court of First Instance.<br /><br /><strong>Supreme  Court:</strong><br /><br />Again, al parties appealed.<br /><br />They again placed  reliance on the doctrine of res judicata, citing Abu Dhabi Court of First  Instance Decision No. 2402-2007 which both confirmed that the Court had no local  jurisdiction and referred the matter to the Sharjah Court of First Instance. The  Appellants had also argued that the Abu Dhabi Court of First Instance had no  local jurisdiction on the basis that they were not employed in UAB&rsquo;s Abu Dhabi  branch, and that one of them resided in Dubai, which meant he was not competent  to receive service of proceedings in Abu Dhabi.<br /><br />These arguments were held  to be unsound. The determination of whether a decision can be appealed is a  public policy issue which the Court must decide on its own motion even if not  raised by the parties. It is established according to Article 151 of the Civil  Procedure Law that rulings which are made during the course of proceedings and  which do not entirely conclude the dispute may not be contested until after the  issue of the ruling which concludes the dispute in its entirety. Exceptions to  this principle include interim or summary rulings, rulings issued with respect  to the suspension of a case, rulings subject to forcible implementation, rulings  of lack of jurisdiction and likewise those rulings confirming jurisdiction.. In  those exceptional circumstances, the ruling can be appealed separately even if  it does not conclude the merits of the case in its entirety. A decision  confirming the jurisdiction of the Court may be appealed separately as long as  the court is not competent to try the matter i.e. the matter is outside its  jurisdiction within the meaning of Article 85 the Civil Procedure Law. With  local jurisdiction however, once the Court has dismissed the jurisdictional  plea, its decision cannot be appealed to the Courts of Appeal or Cassation.  Likewise, a Court of First Instance&rsquo;s dismissal of a plea of res judicata is a  decision rendered prior to the adjudication of the merits and as such may not be  appealed separately. It is deemed to be appealed along with the decision on the  merits. The decision may not be challenged by way of appeal or cassation as it  does not conclude the case definitively.<br /><br />In this case, the Court of First  Instance ruled it had local jurisdiction to hear the matter, hence it dismissed  the plea regarding lack of local jurisdiction and the plea of res judicata.&nbsp; The  Appellants challenged the ruling and the Court of Appeal held that no appeal  would be entertained with respect to Court of First Instance&rsquo;s dismissal of the  pleas. The Court of Appeal was found to have correctly applied the law and its  decision on the matter cannot be appealed to the Court of Cassation.<br /><br />The  Appellants argued that the lower Court had erred in its application of the law  by dismissing the plea as to its jurisdiction on the basis that the arbitration  of disputes involving shares and bonds had become optional by virtue of Chairman  of the Board of Directors of Securities &amp; Commodities Authority Resolution  No. 35/T of 2008 amending Article 2 of Securities &amp; Commodities Authority  Resolution No. 1 of 2001. This was despite the Sharjah Court of First Instance  having ruled on 14 May 2008 that it lacked jurisdiction to hear Sharjah Civil  Action No. 755-2008 (Full Bench) and that jurisdiction over the dispute belonged  solely to the arbitration committees of the Capital Market Authority. Since no  appeal was filed, that ruling became final.<br /><br />The Chairman of the Board of  Directors of Securities &amp; Commodities Authority Resolution was dated 1  September 2008, which meant that the amendment was inapplicable here (i.e.  inapplicable to matters which have been decided). The fact that the ruling has  not been appealed amounts to an implicit agreement to refer the dispute to the  arbitration committees of the Securities &amp; Commodities Authority. The  decision is thus flawed and ought to be reversed.<br /><br />This Court of Cassation  considered that this argument had merit.&nbsp; It is established according to Article  1 of the Civil Procedure Law that laws on procedure shall apply to proceedings  awaiting determination and to proceedings not yet concluded to the exclusion of  the cases specifically mentioned Article 1, including laws amending  jurisdiction, if those laws they came into force after the closing of the  arguments in the case. Normally, laws amending jurisdiction apply forthwith to  all pending cases unless pleadings had closed and the case was reserved for  judgment before the new law came into force. Laws amending jurisdiction are laws  that amend all manners of jurisdiction: subject matter jurisdiction, local  jurisdiction or jurisdiction of value, to the exclusion of laws that cancel a  Court or remove an issue from the scope of a judicial authority, which laws  apply forthwith with the changes taking effect as soon as the law comes into  force such that cases pending before the cancelled court are transmitted to the  judicial authority specified in the law (unless otherwise  stipulated).<br /><br />Cases which are &ldquo;decided&rdquo; are those that have been  determined, even without finality. Cases decided prior to the entry into force  of the new law are not subject to the new law and remain subject to the old law  in deference to the settled and complete position. They are not reconsidered in  the light of the new law even if the new law materially amends the procedure for  hearing, filing or proving the case. The principle of non-retroactivity of laws  requires that litigation which ended with a decision must not be interfered with  even if the decision is open to ordinary or extraordinary forms of review or has  in fact been challenged.<br /><br />It is further established that when ruling that  it has no jurisdiction and remanding, as per Article 85 of the Civil Procedure  Law, the Court ends the entire proceedings with its determination of  jurisdiction, which is not followed by any ruling on the merits. The ruling may,  therefore, be appealed forthwith and, if not appealed, it becomes final and  binding on the Court which has been declared as having jurisdiction even if it:  a) contradicts an earlier ruling or, b) is based on a different rule that is  incorrect as a matter of law. This is because res judicata overrides any public  policy considerations and prevents the re-litigation of issues that have already  been decided.<br /><br />Accordingly, such rules must be applied whenever the issue  at hand relates to jurisdiction, including circumstances where the ordinary  court declares itself without jurisdiction because the matter falls within the  jurisdiction of arbitration committees set up under Resolution No. 1 of 2001  (concerning the regulation on the arbitration of disputes arising from  securities and commodities transactions).<br /><br />Article 2 of the said  Resolution provides that &ldquo;disputes arising from the application of the Law  between parties involved in the securities and commodities industry shall be  resolved solely through arbitration. The provisions of this Regulation shall  apply in this regard.&rdquo; The Resolution was then amended by Chairman of the Board  of Directors of the Authority via Resolution No. 35 of 2008 dated 1 September  2008, which was published in the Official Gazette and made arbitration before  those committees optional and at the discretion of the parties.<br /><br />When  faced with this issue, the Sharjah Court of First Instance ruled on 14 May 2008  that it had no jurisdiction in the matter and that jurisdiction belonged to the  arbitration committees of the Capital Market Authority. With no appeal, the  ruling became final prior to the coming into force of Resolution No. 35 of 2008.  Hence, the instant action is not subject to the Resolution but subject to the  old Resolution irrespective of the position regarding its constitutionality in  deference to res judicata principles which override any public policy  considerations and prevent the re-litigation of issues that have been decided.  In adopting a different view, the Court of First Instance erred in dismissing  the plea of the absence of its jurisdiction, on the basis of Resolution No. 35  of 2008.&nbsp;<br /><br />The appeals were therefore upheld by the Court of Cassation.  The matter regarding the collapse of the share purchase was referred to the  arbitration committees of the Securities &amp; Commodities Authority.</p>'),
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(80741, 4405, 'content', '<p>According to the Doing Business Report 2011, which was published by the World  Bank and assesses the efforts of 183 countries worldwide, the UAE has made  notable recent strides when it comes to providing opportunities to the private  sector. And this progress has been in no small part due to the initiatives of  Dubai&rsquo;s government &ndash; Dubai Customs&rsquo; new Mirsal 2 e-clearing system, for example,  was singled out for particular praise in the latest report.<br /><br />The World  Bank also commended the UAE for enhancing access to credit, so making it easier  to launch new enter- prises, and it&rsquo;s this aspect of the business environment to  which Dubai has been paying close attention in recent months. The emirate  already boasts an advan- tageous geographic location, stable political system,  talented labour market, and world-class infrastructure. And as its government  focuses on smoothing the path for corporate set-ups, Dubai is likely to become  an even more attractive prospect for foreign direct investment  (FDI).<br /><br />&nbsp;&ldquo;Dubai Government has always been consistent in reviewing and  aligning the emirate&rsquo;s regulatory framework to cater to new challenges,&rdquo; says  Samer Qudah (pictured), a partner and Head of Corporate Structuring at law firm  Al Tamimi and Company. &ldquo;Dubai has built a leading position as a major  commercial, indus- trial and trading hub in the region, and in order to maintain  that position, partic- ular attention has been paid to easing the process of  setting up companies, to attract more foreign investment,&rdquo; he adds.<br /><br />The  Business Registration and Licensing Division is a key component of Dubai&rsquo;s  Department of Economic Development (DED), and is constantly reviewing existing  procedures to simplify rules and regula- tions related to trade licensing. It  has also embraced the internet age, launching a series of e-initiatives which  means users may now pay for their licence, renew their licence, reserve a  company name and secure initial approval to set up a company, all at the click  of a mouse. <br /><br />At the same time, Dubai Government has established a  dedicated office within the DED, to drive foreign direct investment into the  emirate. The Foreign Investment Office (FIO) works with potential investors to  identify opportunities, and provides valuable support services to those same  would-be business partners. At Al Tamimi, Qudah notes that the work of bodies  such as the FIO is likely to increase the rate of corporate set-ups in the  emirate, as a formal corporate set-up &ldquo;would normally act as a repository of  FDI, in the form of a joint venture company, or a special purpose  vehicle&rdquo;.<br /><br />Dubai Government has also taken advantage of an amendment to  Article 227 of the UAE Commercial Companies Law, which means that limited  liability companies (LLCs) no longer require a minimum share capital of  Dh300,000 (US$81,673) upon start-up. The shift, which came in 2009, means that  prospec- tive business partners seeking to establish an LLC have the freedom to  determine the capital requirements of their new company, and there is no minimum  par value for the company&rsquo;s shares. Instead, the law provides that the LLC must  have &ldquo;sufficient capital... to achieve the object of incorporation&rdquo;.<br /><br />As  Qudah points out, no discussion of FDI growth in Dubai would be complete without  mention of the free zones that have attracted such significant foreign interest,  particularly in the industrial sector. The emirate&rsquo;s pioneering adoption of the  free zone concept dates back to Jebel Ali Free Zone, which was established in  1980. Since then, Dubai has unveiled a host of increasingly successful free  zones, which act as a catalyst for foreign investment by offering incentives  including 100 per cent foreign ownership, statutory exemption from corporation  and income taxes, duty-free import of goods and services, no foreign currency  restrictions, streamlined labour and immigration procedures, and full  repatriation of profits and capital.<br /><br />&ldquo;Free zones can offer more incen-  tives compared to an LLC incorporated on mainland Dubai,&rdquo; says Qudah, of the 36  existing and proposed free zones in the emirate. &ldquo;This could be in terms of  shareholding and dedicated services for companies involved in particular commer-  cial activities &ndash; Dubai Healthcare City, Dubai Media City and Dubai Textile  city, for example.&rdquo;</p>'),
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(80760, 4406, 'content', '<p><strong>I.&nbsp;Introduction</strong><br /><br />The UAE is a Civil Law jurisdiction and&nbsp;  the law and practice has developed from several sources, including the Sharia&rsquo;a,  and the French and Egyptian legal codes. Banking and commerce in the UAE are  predominantly governed by the Commercial Code (Federal Law No. 18 of 1993) and  the Civil Code (Federal Law No. 5 of 1985, as amended).<br /><br />The law and  practice of creating security in the UAE is an area that has significant  differences from the law and practice adopted by Common Law jurisdictions.  Security such as floating charges or hypothecations, all monies guarantees and  assignments of unidentified or future rights are not recognised in the  UAE.<br /><br />This article will set out some of the key differences when taking  security in the UAE as compared to taking security in Common Law  jurisdictions.<br /><br /><strong>No Concept of a Floating  Charge</strong><br /><br />Under UAE law, there is no concept of a floating charge  The law in the UAE does not allow for the creation of a security interest,  whether by mortgage or pledge, over future assets that were not in existence at  the time the security interest was created.&nbsp; A pledged item must be able to be  sold and therefore (i) must exist at the time of the contract, (ii) must have a  monetary value and (iii) must be capable of being delivered. Consequently, a  security interest under UAE Law can only be created over assets that are  ascertained and identifiable at the time of creating such interest and may not,  subject to certain exceptions, be created over assets that change from time to  time.<br /><br />Therefore, future assets are not able to be captured, nor is a  &lsquo;floating&rsquo; pledge possible. This does make it difficult to take security over  book debts and stock in trade. In the context of working capital facilities, as  an alternative to taking a charge over current assets, bankers in the UAE may  secure facilities by taking a pledge over machinery or a registered mortgage  over immovable property.<br /><br /><strong>No Requirement for Registration &ndash;  Security over Plant, Machinery, Raw Materials</strong><br /><br />In some  jurisdictions, a mortgage over movable property is achieved by a recording  system within the Courts or authorized Governmental Departments (eg Registrar of  Companies), which allows the filing of financing documents. The filing system  protects the mortgagee against third parties or subsequent mortgages against the  same movable property; however, there is no such recording system for pledges of  movable property in the UAE. This is true in the context of plant, machinery and  raw materials.<br /><br />As a consequence, banks are unable to search public  records in order to determine if the security provider has pledged the same  assets to another bank.<br /><br />However, where the security is being created in a  Free Zone (eg the Jebel Ali Free Zone), the Free Zone Authority may require  registration in its records.<br /><br /><strong>No Equitable Mortgages or Mortgage  by Deposit of Title Deeds</strong><br /><br />In order to create a mortgage over  property in the UAE, the mortgage is required to be registered at the Lands  Department of the relevant Emirate. It is insufficient to merely deposit  documents of title with the bank to create security over such  property.<br /><br /><strong>Requirement of Notification and Acceptance - Assignment  of Receivables</strong><br /><br />In certain Common Law jurisdictions, the assignor  and the assignee enter into an assignment agreement and the assignor&rsquo;s debtor is  merely notified of the assignment in order to perfect the assignment. Under UAE  law, especially in certain Emirates (eg Abu Dhabi), the Courts have held that  the debtor&rsquo;s consent is required in order for the assignment to be created. This  issue is developing in the courts and the approach taken by some bankers is to  obtain express consent of the debtor.<br /><br /><strong>All Monies  Guarantees</strong><br /><br />Guarantees for \'all monies\' may be unenforceable in  the UAE, with Article 1061 of the Civil Code requiring that guarantees must be  issued with respect to a specified debt or a thing certain in amount. While  there have been judgments in the recent past where the UAE Courts have  recognised and enforced all monies guarantees, the application of such judgments  is limited (typically to current accounts).<br /><br />The above is a brief note on  some of the differences between UAE law and the practices that Common Law  lawyers are accustomed to in the context of security creation. It is pertinent  to note that the Dubai International Financial Centre (established in the  Emirate of Dubai) has issued its laws and regulations that do permit the  creation of security such as floating charges and also have a Security Registry.  However, these regulations would be applicable to assets that are located within  the Dubai International Financial Centre.</p>'),
(80726, 4404, 'content', '<p>With the IBA conference being held in Dubai, there&rsquo;s no better time to get up  to speed with the latest legal professional developments in the Middle East and  beyond.<br />What we also know is that the IBA conference offers many other  opportunities including of course, the opportunity to form new relationships and  re-kindle old ones.<br /><br />So what does the IBA mean to you? Why do you attend  the conference year in, year out? We asked some of our good friends from around  the world including Akira Kawamura the President of the IBA.<br /><br /><strong>What  do you believe are the main benefits for lawyers attending the IBA Conference  and why do you continue to return to the conference each  year?</strong><br /><br /><strong>Akira Kawamura, President of the  IBA</strong><br /><br />I think lawyers attending the IBA&rsquo;s Annual Conference are  provided with the excellent opportunity of professional development on a number  of levels. International lawyers of all jurisdictions and specialisms attending  the event develop their professional networks, and utilise business  opportunities; hear the latest thinking of the legal profession; advance their  knowledge base and skills sets; debate with their peers; and form life-long  relationships. Some delegates have been attending the IBA Annual Conference for  more than a quarter of a century. Also, Bob Stein, an IBA elder, once said as an  officer that lawyers should use the skills of our profession to serve the public  for the betterment of society. I believe in this ethos and as President of the  IBA, I have asked my colleagues to devote their efforts to this objective. I am  very sure that we are succeeding in this through the work of the IBA and that  those attending the Annual Conference are happy to be associated with, and  involved in, the work of our organisation. I believe that delegates return year  after year because they recognise the IBA Annual Conference as the preeminent  event in the legal calendar for legal professionals across the globe. The IBA  has been the global voice of the legal profession for 64 years and the expertise  of this non-political, professional organisation is recognised and valued.</p>\r\n<p><strong>Patrick Ang, Partner at Rajah Tann (Singapore)</strong><br /><br />I see  3 main benefits for attending the IBA conference. Firstly, the IBA conference  provides a platform for building relationships. The IBA as a community of  lawyers provides a convenient and well organised forum not just for senior  partners but also future generations of lawyers to build relationships and keep  in touch with each other. Secondly, it is an avenue for knowledge acquisition.  The IBA puts together some of the most prominent leaders in the profession. With  the interaction of different cultures, shared knowledge of best practices and  thought leadership in the law, all participants can expect to involve themselves  in the setting of new norms and standards. This is especially helpful as it  encourages personal improvement as much as it does for service delivery levels  for the profession as a whole. The topics selected for each IBA conference  reflect the most relevant and pressing issues faced by the profession. Thirdly,  the IBA builds a legacy for future generation of lawyers. The IBA espouses the  principles of integrity and ethics of the profession at every conference and  serves as a timely reminder of the importance of the role we play in society.  What better way is there for the IBA traditions to continue to be passed down to  future generations of lawyers?<br /><br /><strong>Doug Jones, Partner at Clayton Utz  (Sydney)</strong><br /><br />The IBA provides a great opportunity to share  professional knowledge and experience with practitioners from a wide range of  jurisdictions.&nbsp; The members of the IBA, in each of the specialist practice  areas, are experts in their field who are willing to share experiences across  legal cultures.<br /><br /><strong>David Rivkin, Debevoise &amp; Plimpton LLP (New  York &amp; London)</strong><br /><br />The IBA offers the best programming of any  bar organization anywhere in the world.&nbsp; The substantive programs presented at  the annual conference are a superb way to hear from the best lawyers in a  lawyer&rsquo;s field of practice and to learn the most innovative techniques and  up-to-date information.&nbsp; Because more than 50 committees present programs, the  annual conference also offers the chance to learn about many different  substantive areas.&nbsp; And in addition to these excellent learning opportunities,  the conference offers the chance to meet the best lawyers from around the  world:&nbsp; more than 4000 lawyers from more than 100 different jurisdictions.&nbsp;The  lawyers whom I have met at the IBA have become professional colleagues with whom  I have worked on cases and also good friends.<br /><br /><strong>George Savvides,  Managing Partner at George L. Savvides &amp; Co LLC  (Nicosia)</strong><br /><br />The annual IBA conference is a unique opportunity for  international lawyers to broaden their professional knowledge through attending  high class specialized sessions. At the same time it provides an excellent  opportunity for networking with lawyers with similar interests from all over the  world, something which I have found over the years to be a very helpful  marketing tool.&nbsp;&nbsp;</p>\r\n<p><strong>What would be your top three tips for first time delegates attending  the IBA to ensure their experience is valuable both from a professional and  personal development perspective?</strong><br /><br /><strong>Akira Kawamura,  President of the IBA</strong><br /><br />My first tip would be to strongly encourage  first-time delegates of the IBA annual conference to attend the opening ceremony  and the welcome party. These are both extremely attractive and splendid events.  This year the distinguished Nobel Peace Prize laureate and international lawyer,  Dr Mohamed ElBaradei, will provide the opening address &ndash; and should not be  missed! While the Welcome Party provides a wonderfully relaxed environment for  delegates to mingle, eat, and drink. A stunning firework display ends the  evening&rsquo;s activities. These events are planned with the utmost care over a long  period of time to ensure that all delegates feel a sense of belonging to a truly  international organisation. Great care is taken to reflect the culture of the  venue of the Conference. This is much appreciated by delegates who attend in  significantly large numbers. <br /><br />Secondly, I would advise first-time  delegates to bring a high number of business cards to exchange with other  delegates throughout the week. In addition to the plethora of working sessions  there is also a wide selection of social gatherings, some arranged by the IBA,  others by law firms, or trade delegations. Business cards are essential. In  addition, first-time delegates should bring copies of their firm&rsquo;s brochure  which would be a good promotional tool for introducing and impressing  individuals they meet. My third tip would be to recommend first-time delegates  to attend as many sessions of their interests as possible. With more than 200  working sessions covering a vast array of topics including competition law,  construction law, arbitration, oil and gas law, and banking law to name a few, I  think the IBA annual conference provides an unparalleled experience.  <br /><br />Furthermore, I would encourage new delegates to talk with the committee  officers responsible for coordinating the sessions. IBA Officers are always  approachable and welcoming. By engaging with the officers and getting involved  in the work of an IBA committee, you position yourself as a possible future  panellist, or perhaps even a committee officer &ndash; this is hard work but  thoroughly enriching, professionally and personally. I would also add enjoy  yourself; work hard and play hard!<br /><br /><strong>Patrick Ang, Partner at Rajah  Tann (Singapore)</strong><br /><br />Firstly, remember that there is much you can  learn from experience and secondly, that the profession is as personable as we  lawyers make it to be. Lastly, take time to appreciate the offerings at IBA  which extend beyond your traditional practice areas.<br /><br /><strong>Doug Jones,  Partner at Clayton Utz (Sydney)</strong><br /><br />Make sure that you attend the  working sessions of a limited number of committees.&nbsp;This will give you a  thorough working knowledge of the areas of specialty and the contributions that  these committees can provide. Take full advantage of the social networking  opportunities that the functions associated with the IBA provide and make  yourself known to the officers of the committee or Committees in which you are  most interested in your area of specialty and seek to become involved in the  work of those Committees.<br /><br /><strong>David Rivkin, Debevoise &amp; Plimpton  LLP (New York &amp; London)<br /></strong><br />First, scan the program to find the  sessions that are of the greatest relevance to your practice, and plan which  ones you will attend during the week.&nbsp; Also be sure to attend one or more of the  showcase programs that present issues of great importance.&nbsp; Second, introduce  yourself to officers of any committee in which you have an interest and learn  from them how you can assist the committee and become active.&nbsp; Third, attend the  regional lunch and other interest group gatherings that would be most valuable  to you.<br /><br /><strong>George Savvides, Managing Partner at George L. Savvides  &amp; Co LLC (Nicosia)<br /></strong><br />Firstly, attend as many relevant sessions  within your fields of specialization or interest and make the most of social  functions: both those organized by the various committees as well as those  organized by other firms. Make sure you go through the list of participants and  try to contact those with whom you feel that there is an opportunity or  potential of networking and bring many business cards as you can with  you!<br /><br /><strong>The IBA is a great networking opportunity.&nbsp; How do you make  the most of the networking opportunities  available?</strong><br /><br /><strong>Akira Kawamura, President of the  IBA<br /></strong><br />Yes, the IBA annual conference provides supreme  international networking opportunities. Typically, delegates use the working  sessions, coffee breaks, lunches and social events to converse with like-minded  attendees and exchange contact details. Once again, the importance of having a  sufficient supply of business cards cannot be over emphasised; when the world&rsquo;s  eminent specialist lawyers are gathered, you do not want to be caught short. In  this time of increased cross-border transactions it is essential to have a  strong international network of professional contacts. With delegates from more  than 120 jurisdictions including international lawyers both private and  in-house, government officials, business executives, bankers, and economists set  to attend the IBA Annual Conference conversations held allow delegates to  establish business relationships with trustworthy professionals in foreign  jurisdictions.<br /><br /><strong>Patrick Ang, Partner at Rajah Tann  (Singapore)<br /><br /></strong>Cocktails and dinners are always a great way to  unwind and meet new people. It is also helpful to venture out of our practice  areas to meet lawyers who do different areas of work and gain fresh insights  from them. Think of it less as &ldquo;net-working&rdquo; and more as  &ldquo;net-enjoyment&rdquo;!<br /><br /><strong>Doug Jones, Partner at Clayton Utz  (Sydney)<br /><br /></strong>The networking opportunities of the IBA conference are  both social and professional.&nbsp; In order to take maximum advantage of the  professional networking, research the committees closest to your area of  specialty and get to know the officers of those committees thus enabling you to  choose your best networking opportunities from a professional point of view.&nbsp;  From a social perspective both the committees, committee functions and the law  firm functions associated with the IBA are ideal opportunities to meet  professionals from all over the world.&nbsp; Take maximum advantage of these social  activities.<br /><br /><strong>David Rivkin, Debevoise &amp; Plimpton LLP (New York  &amp; London)<br /></strong><br />By attending many of the sessions of the  committees that fit your practice, you can meet many other lawyers with similar  practices and interests.&nbsp; They often need referrals in your home country.&nbsp;  Similarly, attending the regional lunch for your area is a great way to meet  people.&nbsp; At the evening social events, ask many questions of whomever you meet.&nbsp;  And of course, carry a lot of business cards!<br /><br /><strong>George Savvides,  Managing Partner at George L. Savvides &amp; Co LLC  (Nicosia)<br /></strong><br />Further to my previous response, it&rsquo;s important to  follow up with any contacts you have made at the conference. Also aim to get  involved with committees that interest you and actively participate as speaker,  moderator or committee officer. The more IBA conferences you attend and get  involved in, the greater the benefits.<br /><br /><strong>This is the first time the  conference has been held in the Middle East.&nbsp; How do you plan to make the most  of your time in Dubai?</strong><br /><br /><strong>Akira Kawamura, President of the  IBA<br /></strong><br />We are all so very excited about the 2011 IBA Annual  Conference being held in the Middle East. Hosting the event in Dubai is the  culmination of years of work and planning. We are hopeful that it will be our  most successful conference to date. Delegate registration figures indicate that  we are on track to fulfil this ambition. Although I am very much looking forward  to attending a great number of the conference&rsquo;s plenary and working sessions, I  am also hopeful, though I do not know how realistic I am being, to see some of  the many wonderful sites and places of interest and excitement unique to Dubai.  I would like to visit the tallest man-made structure ever built, the Burj  Khalifa; visit the Old Bastakiya District and the Dubai Museum in Al Fahidi  Fort; watch some camel racing; and spend a few days on some of Dubai&rsquo;s beautiful  beaches. Unfortunately, my schedule may not be able to accommodate these  activities. However, through some of the social events, such as the IBA welcome  and closing parties, I am looking forward to experiencing some of the marvels of  Dubai.<br /><br /><strong>Patrick Ang, Partner at Rajah Tann  (Singapore)</strong><br /><br />First and foremost, I am really looking forward to  visiting my friends at Al Tamimi. We had wonderful exchanges back in June this  year when we jointly organised a &lsquo;Doing Business in the Middle East&rsquo; seminar in  Singapore. I also hope to set aside some time to enjoy the sights of the dunes  and other attractions particular to the unique Arabian  culture.<br /><br /><strong>Doug Jones, Partner at Clayton Utz  (Sydney)</strong><br /><br />I plan to attend as many of the professional and social  activities of the IBA as possible and also hope to take advantage of the visit  to Dubai to understand both the legal and social culture of the United Arab  Emirates.<br /><br /><strong>David Rivkin, Debevoise &amp; Plimpton LLP (New York  &amp; London)<br /></strong><br />This is a time of extraordinary change in the  Middle East, and I am delighted that the IBA is in the region this year.&nbsp; I hope  that I will have the chance to meet many lawyers from the region who will be  attending the conference.&nbsp;I look forward to hearing their perspectives on  current events and on the future of the region.<br /><br /><strong>George Savvides,  Managing Partner at George L. Savvides &amp; Co LLC  (Nicosia)<br /></strong><br />Attending the conference and the social functions  associated with it is a full time job. However I plan to stay for an extra day  to take to see Dubai and some of the numerous attractions that it has to  offer.<br /><br />For more information on the conference or the IBA membership,  please visit: <a href=\"http://www.ibanet.org/\">www.ibanet.org</a></p>'),
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(80711, 4403, 'content', '<p><strong>Introduction</strong><br /><br />A country&rsquo;s strength ties in with the  success of its legislative, judicial and executive authorities. The function of  the judiciary is to promote justice and equity through the proper application of  laws and regulations in order to give every man his due.<br /><br />The UAE leaders  have demonstrated their interest and commitment to the judiciary since the  founding of the UAE by setting up courts and public prosecution departments in  all the Emirates and facilitating the work of the judiciary in line with its  goals and mission. This has reinforced the UAE&rsquo;s positive image in the  international community as a country with a modern system of justice that is  fair and impartial regardless of gender, religion or  colour.<br /><br /><strong>Developments</strong><br /><br />The UAE judiciary has  undergone many changes over the years&nbsp; and is still being developed to  effectively administer justice, consistent with the government&rsquo;s general policy  towards its various sectors. Besides the establishment of courts and the  enactment of legislation, the introduction of electronic services has  facilitated many aspects of the litigation process with courts being able to  dispense justice quicker to the point that swift case resolution and service  quality have become the norm despite heavy caseloads. Among the developments  witnessed by the judiciary over the past few years is the diversity of cases.  Specialized courts and special committees have been established and assigned to  handle certain types of cases with unique features. These developments extend  beyond the work of the courts and encompass the public prosecution and its  services, particularly online services.<br /><br />The developments further  encompass the work of lawyers and legal consultants. There has been a growing  interest in regulating the legal profession in what seems to be a serious move  towards advancing the profession given the importance of this vital sector and  its influential role in the judicial  system.&nbsp;<br /><br /><strong>Challenges</strong><br /><br />While it is important to  discuss the developments witnessed by the judiciary, the question remains: Are  these achievements the pinnacle of our ambitions and aspirations or does the  work of the judiciary still face many challenges which need to be  overcome?<br /><br />Of course, there are many challenges to overcome in order to  prove the ability of the judiciary to keep pace with the developments and plans  the UAE is pursuing as an active member of the international  community.<br /><br />The judiciary is one of the most important factors in the  success of any country aspiring to attract investment and build successful  international relations. A fair and modern judicial system is needed to gain the  confidence of the international community. Hence, responsibility for the  development of the judiciary does not rest with any particular entity or  department in the UAE and requires collective action on the part of several  entities in order to reach the desired end. The efforts required to achieve that  end and overcome the challenges of the next phase include:<br /><br /><strong>The  Role of the Ministry of Justice:</strong><br /><br />This Ministry has complete  oversight of the courts and prosecution departments across the federation in  terms of recruiting judges and organising the work of the courts and prosecution  departments.&nbsp; In addition to the recruiting, the Ministry regulates and licenses  lawyers, experts and interpreters.. First and foremost the Ministry of Justice&rsquo;s  responsibility to develop the work of the judiciary are highlighted in the  following examples below:</p>\r\n<ol>\r\n<li>Propose and implement amendments to the rules of procedure for civil and  criminal litigation as would serve the interests of justice and the public good,  taking into account international best practices that do not conflict with the  public order of the UAE and are consistent with the rules of justice and  equity.</li>\r\n<li>Operate a more practical online service where online services are used, not  only to register cases and file applications, but to create an online forum for  hearing witnesses and experts from outside the UAE within statutory guidelines  that are first codified then implemented over a transitional period in which  case documents can be filed online to help ease the paper load of the court and  prosecution system.</li>\r\n<li>Hire judges who possess a high degree of legal acumen especially with regard  to commercial transactions which are peculiar to the UAE as a business hub  located at the crossroads of east and west. In addition to attracting the right  experts in procedural laws, we need to attract specialists in diverse fields  such as e-commerce, banking, real estate, maritime law and insurance law not to  mention educating and qualifying a new generation of UAE judges specialising in  the above fields.<br /><br />Deciding to have specialist courts is quite beneficial  but it would be even better if we could have a qualified judicial cadre with a  high level of specialisation in the above fields and other legal fields so that  the call for establishing specialist courts can come to fruition with practical  results.<br /><br />Likewise, with the public prosecution, there is a need to  qualify a new generation of public prosecutors to deal with modern crimes of an  exceptional nature. Criminal law is now a different discipline in terms of both  methodology and subject matter. Today, an innovative approach is necessary to  investigate the new forms of crime which are on the rise e.g. cyber crime,  corruption, fraud and deception in commercial transactions, human trafficking  and terrorism.</li>\r\n<li>In terms of lawyers, experts and interpreters, the role of the ministry  should extend beyond granting and renewing licences to administering practical  and theoretical assessment tests for individuals who wish to become licenced  professionals. <br /><br />Drawing from my experience, I recall ten years ago, there  was a shortage of lawyers and the government had to steer law graduates towards  the profession in order to fill the void. With that trend reversed, the ministry  can now focus on quality rather than quantity. It is now time to prepare our  young people to take the lead in this profession by subjecting them to  theoretical and practical tests for a period of at least a year which would  culminate in their admission to practice before the trial courts, as is the  current practice. The immediate focus, moving forward, should be to implement a  minimum number of professional development courses and professional conferences  which lawyers need to attend each year in order to renew their licences  (continuing education) with the aim of enhancing their personal and professional  skills in keeping pace with developments in the larger legal industry and the  economy, thus developing both the profession and the skills of the  practitioner.<br /><br />Likewise, with experts, only the best experts and  interpreters should be licenced and accredited by the Ministry of Justice.  Assistance can be sought from international auditing and consulting firms in the  UAE to develop the work of experts in the fields of accounting, engineering  consulting, auditing and various other disciplines, using timelines and  practical programs designed to raise the standard of their work which is  important to most cases before the UAE courts</li>\r\n</ol>\r\n<p><strong>The Role of Universities and Judicial Institutes-  Recommendations<br /><br /></strong>University law schools in the UAE have a  responsibility to develop both the theoretical and practical knowledge of their  students as follows:&nbsp;</p>\r\n<ol>\r\n<li>By giving students the option of specialising in different aspects of the  law instead of requiring them to study general law. I propose that students be  required to undergo a study of general law over the first two years with the  option of studying a particular area of law in detail and depth. To specialise  and excel in a particular area of law is far better than having a general  overview of laws which the student may never encounter in his professional  career. This approach is not unusual and many professions, including medicine  and engineering, believe in specialisation and apply it from the time of  study.&nbsp;&nbsp;</li>\r\n<li>Law students should be proficient in both the Arabic and English languages  for several reasons, including the nature of commercial transactions in the UAE  and the make up of its business community. In all cases, the student will need  English especially if he wishes to pursue postgraduate studies in the future.  Many modern laws relating to emerging transactions originate in foreign  jurisdictions which are ahead of us in terms of practical experience. Finally,  let us not forget that the UAE judicial community includes a court that operates  in English with a legal framework based on English law. Why not train the next  generation of lawyers and judges to make appearances and take up posts in such  courts? To that end, the student would first need to train at university level,  then complete his professional practice at the Institute of Judicial Studies  before taking up practice as a lawyer, judge or legal consultant.</li>\r\n</ol>\r\n<p><strong>The Role of Judicial Training Institutes and Legal  Institutions:</strong></p>\r\n<ol>\r\n<li>Training institutes play an instrumental and important role in the  qualification, education and training of members of the judiciary through a  continuous series of courses, conferences and seminars. However, training  institutes will need to play a more positive role through partnering with  international bodies and organisations to host an annual conference in the UAE  on various legal issues of concern to all segments of the legal and judicial  community so that members of the judiciary can keep abreast of the latest  international developments and practices in business transactions, commercial  and civil litigation, and criminal law. We propose that such an initiative be  conducted between the Federal Institute of Training &amp; Judicial Studies and  the Dubai Judicial Institute.&nbsp;&nbsp;&nbsp;</li>\r\n<li>Training institutes should be given wide and comprehensive powers to develop  training courses and programs (continuing education) for members of the  judiciary including judges, public prosecutors, lawyers and even legal  consultants. The training would be made compulsory for promotion (of judges) and  for the renewal of licences (for lawyers and legal consultants). This suggestion  is to be measured not so much by the obstacles and difficulties that may come as  by our commitment to the advancement of the UAE legal community through  development and the pursuit of excellence.</li>\r\n</ol>\r\n<p><strong>The Role of Law Firms:&nbsp;&nbsp;<br /><br /></strong>UAE based law firms and  multinational law firms have an important role to play within the UAE judicial  system as a key component which, apart from providing services to their clients,  can significantly contribute to the effectiveness and performance of the UAE  judiciary in the following ways:&nbsp;</p>\r\n<ol>\r\n<li>Facilitating the professional development of new lawyers and consultants  with theoretical and practical training with a view to qualifying interns and  acquainting them with the core values and basic principles of the  profession.&nbsp;</li>\r\n<li>Partnering and cooperating with judicial training institutes by sending  lawyers and consultants to attend their conferences and seminars and selecting  experienced in-house lawyers and consultants to participate as speakers and  lecturers in such conferences and seminars.</li>\r\n<li>Partnering and cooperating with judicial training institutes by hosting  in-house qualification and training workshops for lawyers which acquaint them  with methods and procedures for effectively managing law firms across their  administrative, financial, marketing and other functions.&nbsp;&nbsp;</li>\r\n<li>Partnering and cooperating with universities through the development of  joint programs for visiting lecturers to speak at faculties of law on the  practical aspects of enforcing various procedural and special laws in order to  give students a solid understanding of how such laws might apply in  practice.&nbsp;</li>\r\n<li>Arranging for lawyers and legal consultants to attend courses and  international seminars and conferences abroad and encouraging their  participation as speakers and delegates. In addition to the obvious marketing  benefits for the law firm, there is also an educational benefit for participants  who are kept abreast of the latest global developments in their field.</li>\r\n</ol>\r\n<p>In summary, this overview of the contribution various parties can make to the  development of the judiciary underscores our appreciation for the ongoing  efforts to improve the functioning of the judiciary. As mentioned earlier, we do  realise that there are still many challenges ahead if the industry is to reach  the desired objectives. Concerted efforts are needed in order to advance the UAE  legal community as a world-class centre of professional excellence.</p>'),
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(80696, 4402, 'content', '<p>A message from Essam Al Tamimi, Chair of the IBA Dubai Host Committee and  Senior Partner of Al Tamimi &amp; Company<br /><br />As we embark on the biggest  conference hosted by the IBA each year, I am overwhelmed by what an achievement  this has been not only for Dubai but for all involved in the legal profession in  the Middle East.<br /><br />We began speaking to the IBA about considering Dubai as  a destination for the annual conference many years ago, and it was in 2005 that  they began to really consider the value of our proposition. Since then, the UAE  government and local legal community has worked very closely with the IBA to  ensure a successful conference and warm welcome to all visiting Dubai during  this time.<br /><br />With a membership base of 45,000 individual lawyers and over  200 bar associations and law societies spanning all continents, I am excited  about the diverse opportunities that this annual meeting will offer on a  regional, professional and personal level. I myself have been involved with the  IBA for 24 years and have attended and presented at many of their seminars and  conferences around the world. The professional development opportunities that I  have been exposed to are invaluable and the friendships that I have formed  remain very close to me. I look forward to seeing many of the friends that I  have made over the coming week as well as developing new relationships.<br /><br />I  would like to take this opportunity to thank my colleagues of the Host Committee  for their support over the past year. Together we have been able to provide 50  scholarships for young Arab lawyers from across the region to attend the  conference &ndash; the first time in IBA history that such an initiative has come to  fruition. I&rsquo;d also like to thank Emirates Airlines and the Jumeirah Group for  their generous support in providing flights and accommodation to our young  scholars.<br /><br />To everyone attending the conference, I hope you thoroughly  enjoy the programme and, of course, the social aspect of it all. I encourage you  to take some time out to enjoy our wonderful city and all that it has to  offer.<br /><br />Essam Al Tamimi</p>'),
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(80667, 4399, 'content', '<strong>Introduction</strong>\r\n\r\nThe Civil and Commercial Court (the Court was established by virtue of the Qatar Financial Center law no.7 of 2005 as amended by law no.2 of 2009(QFC Law). Although the Court has already heard a few cases, the procedural rules were issued only early this year. The Minister of Economy and Finance issued resolution No.1 of 2011 setting forth the regulations and procedural rules for the Court including the Appellate circuit (the Rules).\r\n\r\nThis article highlights the most important provisions of the Rules.\r\n\r\n<strong>The language of the Court</strong>\r\n\r\nThe Rules describe the Court as a Qatari Court but at the same time, it is international in nature. Accordingly, although proceedings before the Court will usually be conducted in English, the Court shall pay due respect to the fact that Arabic is the official language of the State of Qatar. Therefore, the parties before the Court shall be entitled to conduct proceedings in Arabic if they wish to do so.\r\n\r\nAlternative dispute resolution; dispute resolution center. The Court will encourage the parties, whenever it is appropriate to do so, to resolve their dispute by resorting to arbitration or mediation or any other method of alternative dispute resolution.\r\n\r\n<strong>The jurisdiction of the Court</strong>\r\n\r\nThe Court has jurisdiction as provided by article 8.3 of the QFC Law, in relation to:\r\n<ol>\r\n 	<li>Civil and commercial disputes arising from transactions, contracts, arrangements or incidences taking place in or from the QFC between the entities established in the QFC.</li>\r\n 	<li>Civil and commercial disputes arising between the QFC institutions and the others entities established in the QFC.</li>\r\n 	<li>Civil and commercial disputes arising between entities established in the QFC and contractors and employees, unless the parties agree otherwise.</li>\r\n 	<li>Civil and commercial disputes arising from transactions, contracts or arrangements taking place between entities established within the QFC and residents of the State, or entities established in the State but outside the QFC, unless the parties agree otherwise.</li>\r\n</ol>\r\n<strong>What is the applicable law?</strong>\r\n\r\nThe Court shall apply the QFC Law and QFC regulations. The parties however may agree the law that shall apply to their dispute, in which case the court will ordinarily determine the dispute in accordance with that agreement. However, the Court has the right to refuse to apply the law agreed by the parties, if it has good reasons to consider that it is inappropriate to do so. In addition, the Court will not apply any law which is inconsistent with the public order or public policy in Qatar.\r\n\r\n<strong>How to commence proceedings in the court\r\n</strong>\r\nAny proceedings shall be commenced <strong>within 6 years </strong>of the date on which the cause of action accrued.\r\n\r\nProceedings are commenced by the issue of a claim form by the Registry of the Court.\r\n\r\nA claim form must include the names of the parties, addresses, contacts numbers, and the nature of the dispute briefly and the supporting documents. A claim form is valid for service for <strong>4 months from the date of issue.\r\n</strong>\r\n<strong>The method of service of claim and other documents</strong>\r\n\r\nThe claim form and any other document shall be served by the party concerned and not by the Court.\r\nPermission of the Court is not required to serve a claim form outside Qatar. The claimant shall ensure that the claim form is served in accordance with the rules for service applicable to the country concerned, including any applicable service convention.\r\nThe service of documents may be by personal service, recorded mail, fax or any method agreed between the parties or directed by the Court.\r\n\r\n<strong>How to respond to a claim</strong>\r\n\r\nA defendant shall serve and file his defence to a claim form, or shall indicate that he admits a claim or any part of it, <strong>within 28 days of date of service </strong>or deemed service of the claim form.\r\n\r\n<strong>The judgments, decisions and orders</strong>\r\n\r\nAny judgments or decisions or order of the Court is effective from the moment of its pronouncement.\r\n\r\n<strong>What are the possible costs in a dispute before the Court?</strong>\r\n\r\nThe Court shall make such order as it thinks fit in relation to the parties\' costs of the proceedings. In general, the unsuccessful party pays the costs of the successful party that may include the costs of an expert or assessor or any other payment in relation to the case.\r\n\r\n<strong>What are the procedures to enforce judgments and orders?</strong>\r\n\r\nAny judgment or order of the Court is a judgment or order of Qatari court and capable of enforcement and execution by the courts of Qatar as would be a judgment or order of any other Qatari court.\r\n\r\nAll relevant competent agencies and authorities of the State shall give effect to a judgment of the Court.\r\nThe Court shall have the power to enforce its own judgments, decisions and orders and to deal with contravention of its judgments by levying a fine, making an order or referring the matter to another agency or authority of the State.\r\nThe enforcement judge is primarily responsible for the enforcement of the Court\'s judgments, decisions and orders.\r\nThe judgment shall be translated into Arabic for the purposes of enforcement only.\r\n\r\n<strong>How to appeal the Court\'s judgment and decisions</strong>\r\n\r\nA first instance judgment or decision of the Court will usually be final. However, if there are substantial grounds for considering that a judgment or decision is erroneous and there is a significant risk that it will result in serious injustice, the appeal should be permitted by a Court consisting of three judges. The period of appeal is 60 days from the date of the judgment. The appeal circuit is composed of three judges, including the president, unless he is incapacitated or his sitting would not be in the interests of justice.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Rules are considerably different from the Rules applicable before the Qatari Courts. Given the novelty of the Rules and their interaction with the other laws in Qatar, their application might create some confusion. The QFC Law provides that in case the Rules are silent, the Court shall apply the Qatari Procedures Law No.13 of 1990. If the lawyers who have the right of audience are familiar with the Rules, they may not be necessarily familiar with the Qatari law and vice versa.\r\nIn any event, we need to wait and see how the Court will apply and interpret the Rules and how the authorities in Qatar will deal and co-operate with the Rules.'),
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(80633, 4397, 'content_description', 'Hospitality in the Middle East – the journey\r\nLooking back over the last 5 - 10 years, the hospitality industry throughout the Middle East region has undergone an exciting and eventful journey.'),
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(80635, 4397, 'pageSummary', 'Hospitality in the Middle East – the journey\r\nLooking back over the last 5 - 10 years, the hospitality industry throughout the Middle East region has undergone an exciting and eventful journey.'),
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(80644, 4398, 'content', '<p>With the strong focus on trading in the United Arab Emirates (&ldquo;UAE&rdquo;), traders  often require short term financing and this is where banks and financial  institutions step in.&nbsp;<br /><br />While typically most banks and financial  institutions restrict short term financing to letter of credit facilities, the  financing of the retirement of the letters of credit is also in great demand and  more and more banks choose to extend the existing L/C facility to a trust  receipt facility to enable the customer to make payment towards the L/Cs and  retire them by taking on a further short term loan. This type of financing is  popular especially in the UAE where the options for creation of several types of  security (that are otherwise available in most commonwealth countries) are not  available. Financing by way of trust receipts does not amount to secured  financing. However, it does create certain rights and obligations that put the  lender in a better position than most other unsecured lenders.<br /><br />From the  customer&rsquo;s perspective, financing by way of trust receipts is particularly  relevant for importers of raw or semi-finished goods who require such materials  for their manufacturing process. Given that a customer who is an importance of  raw material would receive funds only once he sells finished goods in the  market, such customers often seek financing from banks or other financial  institutions for payments due to their suppliers&nbsp; during the manufacturing  stage.<br /><br />Typically under this structure, the financier pays the supplier of  goods on behalf of the customer at the time the customer takes delivery of the  goods (usually to retire the existing letters of credit). The ownership of the  goods (being financed) is transferred to the financier and the customer is  immediately provided with the authority to deal with such goods (under a trust  receipt), including use the goods for manufacturing and sell the goods or the  finished product.<br /><br />While the customer is permitted to use the goods  received from the supplier, the financier obtains and retains title to such  goods, with the customer acting as agent, trustee and/or bailee on behalf of the  financier in respect of such goods during the financing period. Any proceeds  received from the sale of the finished goods, shall, to the extent these are  related to the raw material supplied under the trust receipts, be held by the  customer for and on behalf of the financier and for remittance to the financier.</p>\r\n<p><strong>What are Trust Receipts?<br /><br /></strong>Trust Receipts are not  defined under UAE law. In practice trust receipts are receipts issued by the  owner of the goods permitting another party to deal with the goods on behalf of  the owner.<br /><br /><strong>UAE Law and trust receipts<br /><br /></strong>The UAE is  a civil law jurisdiction and does not recognise common law trusts. However trust  receipts are commonly used in the UAE and would be recognised under UAE law  provided the ownership of the goods clearly lies with the financier and the  trust receipt issued by the bank clearly permits the customer to deal with the  goods as agent of the financier.<br /><br />Trust receipt facilities are commonly  used in the UAE as documentary credit financing.&nbsp; Banks and financial  institutions issue letters of credit on behalf of their customers in order for  the customers to avail their goods purchased (financed by such letters of  credit) and enter into a trust receipt arrangement so that the goods may be  released to the customer for sale in the local markets. The trust receipt  ensures that the bank retains its title in the goods while releasing the right  to deal in the goods to the customer.<br /><br />The UAE Commercial Code and the UAE  Maritime Code recognises bills of lading as the title and transport documents  for the transport and shipment of goods. In practice most trade finance  (including documentary credit) is based on either bills of lading in the name of  the importer (the customer) or bills of lading &lsquo;to the order of&rsquo; the financier.  We find that financiers in the UAE often require bills of lading to be made to  the order of the financier. In the event the bills of lading are issued &lsquo;to the  order of&rsquo; the financier then ownership and title in relation to such bills of  lading would already vest with the financier. When bills of lading are issued in  the name of the customer, it is essential (for the purpose of entering into a  valid trust receipt structure) that the ownership to the bills of lading and the  underlying goods be transferred to the financier. This may be achieved in the  UAE by using the appropriate structure and documentation. <br /><br />The Commercial  Code specifically permits banks to entrust their customers with taking delivery  of goods on a trust / agency basis and selling them on behalf of the bank (and  to the bank&rsquo;s account) under terms and conditions agreed between the bank and  the customer. The customer will act as commission agent and the bank shall have  all the rights of the principal on such goods or their value. To this end, the  customer and the bank may enter into a trust receipt arrangement whereby the  bank entitles the customer to release the goods under the bills of lading as a  commissioning agent on behalf of the bank.<br /><br />The term &lsquo;trust&rsquo; as referred  to in the Commercial Code is different from the concept of trusts as understood  in common law jurisdictions.&nbsp; The term &lsquo;trust&rsquo; is literally translated from the  term &lsquo;amanah&rsquo;. The term trust or amanah is derived from the UAE Civil Code and  relates to a custodianship or deposit arrangement created contractually where a  party entrusts or deposits its property to another party for safeguard and  preservation. The concept of amanah and/or a deposit contract would apply to the  operation of trust receipts.<br /><br />Note that in a trust receipt structure it  would be essential that the customer (as agent) should be required to abide by  the compulsory and express instructions of the bank (as principal), and if the  customer violates such instructions without an acceptable excuse, the bank may  reject the deal. The customer will also be responsible to the principal if the  goods perish or there is any damage to the goods and other things that are in  the customer&rsquo;s possession unless the damage or perish results from a foreign  cause beyond the control of the customer, or from an inherent defect in the  goods.<br /><br />The UAE Civil Code also contains detailed provisions on &lsquo;deposit  contracts&rsquo; under which a depositor authorises another person to take care of his  property and to maintain the said property (or use it under instructions of the  depositor) and make restitution thereof in rem. <br />Enforcement  Process<br /><br />The trust receipt structure does not amount to a security but  does place the financier in a better position for recourse than other unsecured  lenders so long as the goods related to the relevant bills of lading or the  proceeds thereof are adequately traced and identified.<br /><br />If the customer  trades with the goods in its custody with the permission of the bank, the  proceeds arising out of such trade shall then be transformed to a debt owed by  the customer to the bank and will not be discharged except by returning the  equivalent of the value of the goods to the bank.<br /><br />Also, if the goods  under the trust receipt arrangement are sold by the customer to a bona fide  third party then the bank may not be able to trace such goods in the custody of  such bona fide purchaser. Further, on insolvency of the customer, if the  proceeds of the goods have been co-mingled with the other assets of the  customer, the bank will need to claim in the insolvency, as an unsecured  creditor.<br /><br />Any breach or consequence of such arrangement attributable to  the customer may be seen as a breach of duties by the customer as the commission  agent under the Commercial Code and a breach of trust under the Penal  Code.&nbsp;<br /><br /><strong>Conclusion</strong><br /><br />To conclude, the trust receipt  structure is a viable option for banks and financial institutions looking to  fund short term requirements and for manufactures and traders in the UAE.  However, while entering into the relevant documentation care should be taken to  ensure that the title documents clearly pass ownership to the bank and that  subsequently, the parties execute the trust receipt agreement in respect of the  specific title documents granting rights of use to the customer.<br /><br />Please  contact the author for any further information on the subject of this  article.</p>'),
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(80613, 4395, '_yoast_wpseo_metadesc', 'Dubai Healthcare City (DHCC) was launched in 2002 by the UAE Vice President, Prime Minister and Ruler of Dubai, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, to meet the demand for high-quality, patient-centred healthcare.'),
(80614, 4396, 'content', '<p>Article (7) of Law No. 14 of 2008 Concerning Mortgages in the Emirate of Dubai  provides that a mortgage is not valid unless it is registered with the Land  Department and any agreement to the contrary is void. Article (8) of Law No. 14  requires the mortgagor and mortgagee (and the guarantor in rem, if any) to sign  a mortgage application containing the following information:<br /><br />a)&nbsp;All  information related to the property; <br />b)&nbsp;Value of the property; <br />c)&nbsp;Value  of the debt; <br />d)&nbsp;Mortgage term; and <br />e)&nbsp;Personal details of the mortgagor,  mortgagee and guarantor in rem (if any), including domicile and place of  residence.<br /><br />Law No. 14 refers to two documents: the mortgage application  and the Land Department&rsquo;s standard form of Mortgage Contract. In practice, the  parties to the mortgage need to sign only the Land Department&rsquo;s standard form of  Mortgage Contract in order to register the mortgage and there is no separate  application form.<br /><br />The parties can attach their special terms and  conditions to the Land Department&rsquo;s standard Mortgage Contract, which then  become incorporated into the Mortgage Contract.<br /><br />Due to the large number  of mortgage registrations in Dubai, the Dubai Land Department recently decided  to ease the process of registration by allowing the mortgagor to sign the  Mortgage Contract at the premises of the mortgagee (the lending financial  institution) and there is no longer any need for the mortgagor to attend at the  Land Department. The parties are requested to sign three original counterparts  of the Mortgage Contract which are each stamped by the Land  Department.<br /><br />The Land Department has amended its Mortgage Contract to  ensure that all information required by Article (8) of Law No. 14 is captured in  the document.<br /><br />The above changes are a welcome improvement in the process  of mortgage registration at the Dubai Land Department.</p>'),
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(80628, 4396, '_yoast_wpseo_metadesc', 'Article (7) of Law No. 14 of 2008 Concerning Mortgages in the Emirate of Dubai provides that a mortgage is not valid unless it is registered with the Land Department and any agreement to the contrary is void.'),
(80629, 4397, 'content', '<p><strong>Hospitality in the Middle East &ndash; the journey<br /><br /></strong>Looking  back over the last 5 - 10 years, the hospitality industry throughout the Middle  East region has undergone an exciting and eventful journey.&nbsp;<br /><br />Investment  has poured into the region, attracted by the ever-increasing number of tourists,  creation of the many free-zones attracting international business, relaxation of  property ownership restrictions and a general opening up of the region.&nbsp; The  boom which started at the beginning of the last decade saw new hotel and resort  developments being announced so fast, that it was hard to keep count.&nbsp; For many  countries, room rates and occupancy were at an all time high and visitors had  money to burn.<br /><br />The end of the last decade brought an abrupt slow down,  reduction of revenue and profit, cancelled developments, litigation between  investors and developers, an oversupplied and stagnated property market,  redundancy, and bankruptcy/corporate restructuring.&nbsp;If that wasn&rsquo;t enough, the  turbulence emanating from the &lsquo;Arab Spring&rsquo; protests added fuel to the fire.&nbsp;  For the hotel business, this has benefitted some and caused suffering to  others.<br /><br />Now, as we draw towards the end of 2011, things appear to be more  stable and with the experience of the past 10 years, we are able to look to the  future.<br /><br />As a hotel owner or a lender with exposure to the hospitality  industry, what does the future hold for you?&nbsp; What should you be doing to ensure  that your business is in good health and well-placed to grow over the next  decade?<br /><br /><strong>A healthy business?&nbsp; Book a check-up<br /><br /></strong>A  successful business is about financial performance and growth.&nbsp; To achieve this,  the business must have the right foundations underpinning its day to day  activities.&nbsp; These extend from the corporate structure that &lsquo;owns&rsquo; the business,  its risk exposure (financial and operational), its management, its product, its  performance, its position amongst competition and its ability to adapt to a  changing economic environment.&nbsp;<br /><br />As the business matures, it would be wise  to make sure that you understand what has brought it to its current position,  what is needed to keep it fit, healthy and growing, and how to plan ahead.&nbsp; For  some, it might be a case of learning how to revive a sick business to good  health, for others, how to make healthy performance even  better.&nbsp;&nbsp;<br /><br /><strong>In this article, I have set out some important areas to  focus on:</strong><br /><br /><strong>Performance<br /><br /></strong>The hospitality  industry for most of the Middle East region is now mature and well-established.&nbsp;  For many hotels, stabilization has been reached and long-term overall  performance can be analysed in detail, and effectively measured against  competitors.&nbsp; As an owner or lender, you should always have a right of access to  the financial records of the hotel, together with a right of  audit.&nbsp;<br /><br />Don&rsquo;t just pay this lip service to these rights, now is a good  time to really dig into the business, with the help of industry experts, to  understand how best to move forwards.<br /><br />Undergoing such analysis will  assist in understanding the business&rsquo; performance, including not just the  performance of the hotel, but also of the operator and the brand.&nbsp; Looking  forwards at future growth, you should be able to consider whether the business  is positioned appropriately, all in terms of its structure, market position,  competition, customers and  cost.&nbsp;<br /><br /><strong>Strategy<br /><br /></strong>Measures to be taken to improve  performance can be considered, both short and long term.&nbsp; Additionally, a longer  view might be appropriate in terms of focusing on the business strategy going  forwards.&nbsp; This might include consideration of future hotel renovation,  repositioning, asset/brand conversion, or liquidation of some parts of the  business or its assets.&nbsp;<br /><br /><strong>Corporate  Structure<br /><br /></strong>Equally important to business performance is its  structure.&nbsp; Does the structure remain appropriate to the business?&nbsp; It may have  been sensible at the outset for a hotel to be held in a personal name when the  portfolio only consisted of 1 property, however, that is unlikely to remain the  case for a growing business.&nbsp;<br /><br />A health check will give business owners  and lenders, an opportunity to examine the underlying corporate structure and  either change or reinforce it.&nbsp; Consider whether new corporate vehicles should  be introduced to ring-fence a business and its assets from potential risks and  liabilities of other parts of the business.<br />Consider personal liability, or  succession and inheritance issues where assets are personally  owned.&nbsp;<br /><br />What are the tax implications for the existing and proposed  structures &ndash; can savings be made?&nbsp;<br /><br /><strong>Ownership, consolidation and  appropriate vehicles<br /><br /></strong>In tandem with ensuring the correct  corporate structure is in place, portfolio ownership should also be analysed,  with thought given to the various &lsquo;investment&rsquo; options that may be available to  the business, and consideration of whether these align with the business  requirements.&nbsp;<br /><br />In the Middle East, it is common for the hotel and the  land upon which it is situated to be owned.&nbsp; The owner then enters into a  management agreement with a third party operator to manage the hotel on the  owner&rsquo;s behalf.&nbsp;<br /><br />Is a different option available and if so, is it more  attractive?&nbsp; Perhaps sale of an asset(s), or sale with a leaseback of the asset  from the new owner might be worth considering? This would enable capital to be  released for the owner to improve its debt position, or to take advantage of the  current economic environment and purchase distressed assets, thereby providing a  way for the company to reduce its risk/financial exposure, or to continue to  expand.<br /><br /><strong>Contractual obligations and risk  analysis<br /><br /></strong>For many, negotiation of a contract culminates in its  signature by the parties involved, and the contract is then filed safely away  never to be looked at again unless things go wrong.<br /><br />No business can  properly operate unless it knows what it can and cannot do, how it should  operate, and how its future might be impacted by existing rights and  obligations.&nbsp; No analysis can be complete, nor should plans be made, without  understanding the contractual framework within which a business  operates.&nbsp;<br /><br />This extends not just to the hotel management and ancillary  agreements, but also to the business&rsquo; financial arrangements, its principal  operational contracts, its staff, and the local licensing framework, regulations  and restrictions that may impact any future action.&nbsp; An understanding of these  is therefore vital.<br /><br />Does the business have any potential claims against  it, or should it consider taking any claims against third parties?&nbsp; What is its  conflict exposure and what steps can be taken, if any, to remove or mitigate  these.<br /><br /><strong>Conclusion<br /><br /></strong>I have outlined above why, in a  changing environment, it is prudent to take stock and analyse the health of your  business and asset portfolio, and have given examples of what I consider to be  the main areas for consideration.<br /><br />The time and cost spent on undergoing  such an exercise need not be huge &ndash; many of these can be looked at from a high  level and where issues are identified for further examination, the exercise can  then be drilled down specifically where required.&nbsp;<br /><br />Prevention is always  better than cure and a healthy business will be in a position to expand and  prosper where an unhealthy one cannot.<br /><br />Owners and lenders alike can  benefit from such an exercise, and Al Tamimi is well-placed to assist and advise  you.&nbsp; Our Hospitality team incorporates experienced lawyers across all legal  practice areas, who have excellent relationships with experts throughout the  hospitality industry.<br /><br />If you would like more information, please contact  Tara Marlow, Head of Hospitality on <a href=\"mailto:t.marlow@tamimi.com\">t.marlow@tamimi.com</a>.</p>'),
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(80599, 4395, 'content_description', 'Dubai Healthcare City (DHCC) was launched in 2002 by the UAE Vice President, Prime Minister and Ruler of Dubai, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, to meet the demand for high-quality, patient-centred healthcare.'),
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(80580, 4394, 'content_description', 'SUMMARY: In this case, the exclusive distributor (the Claimant) filed a case against its principal (the Defendant) for terminating the distributorship contract, without lawful cause or prior notice.'),
(80581, 4394, '_content_description', 'field_59b641c07f473'),
(80582, 4394, 'pageSummary', 'SUMMARY: In this case, the exclusive distributor (the Claimant) filed a case against its principal (the Defendant) for terminating the distributorship contract, without lawful cause or prior notice.'),
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(80595, 4395, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nDubai Healthcare City (DHCC) was launched in 2002 by the UAE Vice President, Prime Minister and Ruler of Dubai, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, to meet the demand for high-quality, patient-centred healthcare. Today, DHCC is home to two hospitals, over 90 outpatient medical centres and diagnostic laboratories with over 2000 licensed professionals occupying 4.1 million square feet in the heart of Dubai.\r\n\r\nDHCC combines the leading expertise of medical institutions and pre-eminent healthcare providers to deliver the A-Z of medical services. The mission of DHCC is to create a platform for the provision of healthcare, education and research services within an informed regulatory framework located in the Gulf to service the regional and international community. The DHCC is part of TECOM Investments, which is a subsidiary of the conglomerate Dubai Holding. TECOM Investments has pioneered cutting edge industries through the creation of dedicated free zones which serve as leading centers of excellence in global industries that include academia, communication, science and healthcare. TECOM have recently implemented innovative processes in allowing both free zone and onshore companies licensed by the Dubai Department of Economic Development to be situated in their dedicated free zones enabling free zone and onshore companies in a specific industry such as healthcare to be situated side by side reaping the benefits of being situated in a zone dedicated to their industry.\r\n\r\n<strong>Business Segments and Activities Permitted in DHCC</strong>\r\n\r\nThe categories of business for which a commercial license may be issued in DHCC are as follows:\r\n\r\n• Clinical – Inpatient\r\n• Clinical – Outpatient\r\n• Healthcare Consultancy\r\n• Healthcare Support\r\n• Healthcare Education\r\n• Publishing\r\n• Education &amp; Training Services (non healthcare)\r\n• Service Provider\r\n• Consultancy\r\n• Regional Head Quarters\r\n• Hotels and Leisure Services\r\n• Property Management Services\r\n\r\n<strong>Setting the highest Global Standards in the regional healthcare industry</strong>\r\n\r\nThe DHCC was established to ensure patients receive the highest quality care and clinical services in a safe and reliable environment. This is why the Center for Healthcare Planning and Quality (CPQ) was established jointly with Partners Harvard Medical International, as the independent regulatory body responsible for implementing rigorous standards that are aligned with international best practice to ensure the highest quality care.\r\n\r\n<strong>In order to protect patients, CPQ is responsible for:</strong>\r\n<ul>\r\n 	<li>Ensuring rigorous licensing of healthcare professionals and facilities within DHCC.</li>\r\n 	<li>Enforcing top quality standards for healthcare practice.</li>\r\n 	<li>Ongoing assessment of clinical facilities to maintain best practice.</li>\r\n 	<li>Regulating traditional and alternative medical practice (the only body regulating complementary and alternative medicine in the region).</li>\r\n 	<li>Patient care and patient safety initiatives to drive continuous quality improvement.</li>\r\n</ul>\r\nCollecting statistical information to monitor clinical standards and patient satisfaction and to improve healthcare delivery and customer care.\r\n\r\nAll clinical and non-clinical facilities within DHCC are required to meet CPQ’s quality requirements by implementing practices which support healthcare excellence at every level.\r\n\r\n<strong>Laws &amp; Regulations</strong>\r\n\r\nAll companies that operate within the DHCC free zone must comply with the rules, regulations and all applicable policies and standards of the free zone itself which consist of the following:\r\n<ul>\r\n 	<li>Commercial Services Licensing Regulation No. 9 of 2008 – sets out the framework under which DHCC companies may carry out their business within DHCC.</li>\r\n 	<li>Company Regulation No. 8 of 2008 – set out the framework under which companies may become registered within DHCC.</li>\r\n</ul>\r\nOther regulations regarding provision of specific healthcare services in the DHCC also include the following:\r\n<ul>\r\n 	<li>Complementary and Alternative Medicine Regulation No. 3 of 2008.</li>\r\n 	<li>Medical Liability Regulation No. 5 of 2005.</li>\r\n 	<li>Education Regulation No. 5 of 2008.</li>\r\n 	<li>Governing Regulation No. 1 of 2008.</li>\r\n 	<li>Health Data Protection Regulation No. 7 of 2008.</li>\r\n 	<li>Healthcare Operators Regulation No. 4 of 2008.</li>\r\n 	<li>Healthcare Professionals Regulation No. 2 of 2008.</li>\r\n 	<li>Research Regulation No. 6 of 2008.</li>\r\n</ul>\r\nFailure to comply with the applicable Regulations, Rules, Standards and Policies may result in:\r\n\r\n(a)  A Penalty being imposed; and/or\r\n(b)  Suspension, termination or refusal to renew the Company’s license\r\n\r\n<strong>Legal Structures and Licensing of a business entity in the DHCC</strong>\r\n\r\nAn individual or a corporate entity can form the following business entities in DHCC:\r\n\r\n1.   Free Zone Limited Liability Company (FZ-LLC).\r\n2.   Branch of a Foreign Company, where the applicant is a foreign registered corporate person.\r\n3.   Branch of a UAE Company, where the applicant is a UAE registered corporate person.\r\n\r\nBelow is a step-by-step guide for prospective investors who wish to establish a company in DHCC.\r\n\r\nPlease note that the availability of either a Manager, Director or Shareholder of the proposed company (or his/her legal representative in Dubai) is required throughout the process.\r\n\r\n<strong>Step 1: </strong> Allocate premises and submit application for Provisional Approval\r\nTime scale:   5-10 working days\r\n\r\nThe first step is to select premises in the free zone. This process consists of completing a reservation form confirming the following details:\r\n-  Details of allocated office\r\n-  Payment details\r\n-  Payment due date\r\n-  Proposed activity\r\n\r\nThe Applicant should sign and return the reservation form to DHCC Sales and settle the applicable reservation fee.\r\n\r\nOnce the premises is allocated, the Applicant should submit the following documents to DHCC Sales:\r\n<ul>\r\n 	<li>A completed CPQ Initial Application Form for Operators.</li>\r\n 	<li>A completed application for License .</li>\r\n 	<li>A Business Plan as per the prescribed format.</li>\r\n 	<li>A color copy of passports (valid for at least 6 months from the date of submission for each of the following individuals):   -  Manager of the proposed company.\r\n-  Director(s) of the proposed company.\r\n-  The shareholder(s) of the proposed company (or duly authorized signatory of each shareholder).\r\n-  The legal representative (if appointed).</li>\r\n</ul>\r\n<strong>Step2: </strong> Application Review\r\n<strong>Time Scale: </strong>15 working days\r\n\r\nThe DHCC Sales representatives forward applications to the relevant parties for review, on behalf of the Applicant.\r\n\r\nApplications for facilities to operate in DHCC must be approved by the CPQ, who will assess whether the proposed company meets all of CPQ’s operating requirements.  The operating requirements are intended to ensure patient safety, enhance the quality of clinical care, and advance clinical excellence.  The operating requirements can include the following:\r\n<ul>\r\n 	<li>Quality and patient safety requirements.</li>\r\n 	<li>Clinical planning requirements.</li>\r\n 	<li>Facility operating requirements.</li>\r\n 	<li>Administrative requirements.</li>\r\n</ul>\r\n<strong>To avoid delay in processing </strong>the application please ensure that adequate information is provided.  During the review process, DHCC and CPQ may contact the applicant to request additional information or clarification.\r\n\r\n<strong>If the application is rejected, </strong>the applicant will be notified with a regret letter by the representative of CPQ.  DHCC and CPQ reserves the right not to disclose the reasons for unsuccessful applications.\r\n\r\n<strong>If the application is provisionally approved, </strong>the representative of CPQ will send the applicant a Provisional Approval letter (to be signed by the applicant and returned to CPQ by fax or email), as well as a request for submission of the legal documents required for company  registration.\r\n\r\nApplications for healthcare professionals to practice in DHCC will be reviewed by CPQ’s Professional Licensing Department.\r\n\r\n<strong>Step 3: </strong> Submit legal documents for company registration\r\n<strong>Time Scale: </strong> 10 Working Days\r\n\r\nThe Applicant should forward the required legal documents within 10 working days to ensure speedy registration of the proposed entity.\r\n\r\n<strong>Step 4: </strong> Legal Documentation Review\r\n<strong>Time Scale: </strong> 1-2 Working Days\r\n\r\nDHCC Sales will conduct an initial review of the legal documents submitted by the Applicant.  Should the submitted legal documents be incomplete, the application is put on hold, and the application is informed accordingly.\r\n\r\n<strong>Step 5:</strong> Make Required Payments\r\n<strong>Time Scale:  </strong>5 Working Days\r\n\r\nApplicant will be requested to settle the registration and license fee.\r\n\r\n<strong>Step 6: </strong> Sign Articles &amp; Memorandum of Association &amp; Collect Bank Introduction letter\r\n<strong>Time Scale: </strong> 4 Working Days\r\n\r\nEach shareholder (or their duly appointed representative) will need to visit DHCC offices to sign the original Articles and Memorandum of Association for the new company.  DHCC Registration &amp; Licensing team will then issue a ‘bank introduction letter’ and an attested Board Resolution in order to facilitate the opening of a corporate bank account at your chose bank in the UAE.\r\n\r\n<strong>Step 7: </strong> Deposit Share Capital\r\n<strong>Time Scale:  </strong>10 Working Days\r\n\r\nThe bank introduction letter is valid for 10 days.  Within this period, the Applicant will need to open a corporate bank account and deposit the share capital, as per the Board resolution.\r\n\r\nOnce the share capital has been deposited in the corporate bank account, the bank will provide a letter confirming the opening of the account and details of the deposit (the ‘Proof of Capital’ Letter).  The original ‘Proof of Capital’ Letter needs to be returned to the DHCC Sales Team.  Please note that until the company registration process is completed, the new bank account will be deemed “under formation” and the deposited funds will not be accessible.\r\n\r\n<strong>Step 8: </strong> Sign Lease Agreement &amp; Personnel Sponsorship Agreement (PSA)\r\n<strong>Time Scale:  </strong>5 Working Days\r\n\r\nUpon receiving the Proof of Capital Letter, DHCC will issue a Personnel Sponsorship Agreement (PSA). The company’s premises lease agreement will also be prepared.\r\n\r\nEither the manager, or all shareholders or all Directors of the proposed company (or their duly appointed representative) must visit DHCC Sales team to sign both the PSA and premises lease agreement.\r\n\r\n<strong>Step 9: </strong> Collect License\r\n<strong>Time Scale: </strong> 7 Working Days\r\n\r\nUpon signing the premises lease agreement and PSA  the Applicant will be able to collect the Commercial License.  The license should be submitted to the bank to remove the “under formation” status of the corporate account and allow access to the company’s funds.\r\n\r\n<strong>Check-List of Legal Documents Required for Company Registration</strong>\r\n\r\n<strong>1. Establishing a FZ-LLC with a corporate person as shareholder(s)</strong>\r\n\r\n1.1 Details of the Shareholders\r\n\r\n<strong>For Foreign Companies: </strong>\r\n<ul>\r\n 	<li>Original certificate of registration (or equivalent) of the shareholder.  A copy will be accepted if notarized.</li>\r\n 	<li>Original certificate of good standing (or equivalent) of the shareholder.  A copy will be accepted if notarized</li>\r\n</ul>\r\nIf the above documents do not state the names of Directors, company officers and official signatories, please submit additional documents setting out this information (such as the official company register)\r\n\r\n<strong>For UAE Companies:</strong>\r\n<ul>\r\n 	<li>Copy of a valid Commercial License issued by the Department of Economic Development for the Corporate Person.</li>\r\n 	<li>Copy of the Commercial Register issued by the Department of Economic Development for the Corporate Person</li>\r\n</ul>\r\n<strong>1.2 Memorandum and Articles of Association of the corporate shareholder</strong>\r\n\r\nOriginal or notarized copy of the Memorandum of Association, Articles of Association and list of current Directors.\r\n\r\n<strong>1.3 Board resolution of the corporate person(s) calling for the establishment of the FZ-LLC</strong>\r\n\r\nThe board resolution must be, notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is incorporated.\r\n\r\nIf the power of attorney is a separate document and not part of the Board Resolution, it must be notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is incorporated.\r\n\r\n<strong>1.4 Specimen signatures and Passport and visa copy of the Manager, Director(s) and legal representative</strong>\r\n\r\nSpecimen signatures must be submitted for each of the following individuals:\r\n<ul>\r\n 	<li>the Manager</li>\r\n 	<li>The Director(s)</li>\r\n 	<li>The negotiator/legal representative (if applicable)\r\nThe specimen signature forms must be notarized if non UAE shareholder.</li>\r\n</ul>\r\n<strong>1.5 ‘Letter of No Objection’ for employment of the Manager if applicable</strong>\r\n\r\nA ‘Letter of No Objection’ must be provided from the existing Residency visa sponsor of the Manager (if he/she holds a UAE Residency visa).  The letter of no objection must be signed by the sponsor or his or her duly appointed signatory.\r\n\r\n<strong>2 Establishing a FZ-LLC with a natural and a corporate person as shareholder(s)</strong>\r\n\r\n2.1 Details of the corporate shareholder(s)\r\n\r\n<strong>For Foreign Companies:</strong>\r\n<ul>\r\n 	<li>Original certificate of registration (or equivalent) of the shareholder.  A copy will be accepted if notarized</li>\r\n 	<li>Original certificate of good standing (or equivalent) of the shareholder.  A copy will be accepted if notarized</li>\r\n</ul>\r\nIf the above documents do not state the names of Directors, company officers and official signatories, please submit additional documents setting out this information (such as the official company register)\r\n\r\n<strong>For UAE Companies:</strong>\r\n<ul>\r\n 	<li>Copy of a valid Commercial License issued by the Department of Economic Development for the Corporate Person.</li>\r\n 	<li>Copy of the Commercial Register issued by the Department of Economic Development for the Corporate Person</li>\r\n</ul>\r\n<strong>2.2 Details of the natural shareholder(s)</strong>\r\n<ul>\r\n 	<li>Personal profile/CV of the individual shareholder(s) - optional</li>\r\n 	<li>A Bank reference letter for the personal account of the individual shareholder(s)</li>\r\n 	<li>Passport and visa copy</li>\r\n</ul>\r\n<strong>2.3 Memorandum and Articles of Association of the corporate shareholder</strong>\r\n\r\nOriginal or notarized copy of the Memorandum of Association, Articles of Association and list of current Directors\r\n\r\n<strong>2.4 Board resolution of the corporate person(s) calling for the establishment of the FZ-LLC</strong>\r\n\r\nThe board resolution must be notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is incorporated.\r\n\r\nIf the power of attorney is a separate document and not part of the Board Resolution, it must be notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is incorporated.\r\n\r\n<strong>2.5 Owner Declaration of the natural shareholder(s) calling for establishment of the FZ-LLC</strong>\r\n\r\nThe owner declaration must be notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is incorporated.\r\n\r\nIf the power of attorney is a separate document and not part of the owner declaration, it must be notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is residing.\r\n\r\n<strong>2.6 Specimen signatures, passport and visa copy of the Manager, Director(s), legal representative and natural shareholder</strong>\r\n\r\nSpecimen signatures must be submitted for each of the following individuals:\r\n<ul>\r\n 	<li>the Manager</li>\r\n 	<li>The Director(s)</li>\r\n 	<li>The negotiator/legal representative (if applicable)\r\nThe specimen signature forms must be notarized if non UAE shareholder.</li>\r\n</ul>\r\n<strong>2.7 ‘Letter of No Objection’ for employment of the Manager if applicable</strong>\r\n\r\nA ‘Letter of No Objection’ must be provided from the existing Residency visa sponsor of the Manager (if he/she holds a UAE Residency visa).  The letter of no objection must be signed by the sponsor or his or her duly appointed signatory.\r\n\r\n<strong>3. Establishing a FZ-LLC with a natural person as shareholder(s)</strong>\r\n\r\n3.1 Details of the natural shareholder(s)\r\n<ul>\r\n 	<li>Personal profile/CV of the individual shareholder(s) - optional</li>\r\n 	<li>A Bank reference letter for the personal account of the individual shareholder(s)</li>\r\n 	<li>Passport and visa copy</li>\r\n</ul>\r\n<strong>3.2 Owner Declaration of the natural person(s) calling for the establishment  of a FZ-LLC</strong>\r\n\r\nThe owner declaration must be notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is incorporated.\r\n\r\nIf the power of attorney is a separate document and not part of the owner declaration, it must be notarized and, if non UAE shareholder, legalized up to the level of UAE embassy in the country in which the shareholder is incorporated.\r\n\r\n<strong>3.3 Specimen signatures, passport and visa copy of the Manager, Director(s), legal representative </strong>\r\n\r\nSpecimen signatures must be submitted for each of the following individuals:\r\n<ul>\r\n 	<li>the Manager</li>\r\n 	<li>The Director(s)</li>\r\n 	<li>The negotiator/legal representative (if applicable)\r\nThe specimen signature forms must be notarized if non UAE shareholder.</li>\r\n</ul>\r\n<strong>3.4 ‘Letter of No Objection’ for employment of the Manager if applicable</strong>\r\n\r\nA ‘Letter of No Objection’ must be provided from the existing Residency visa sponsor of the Manager (if he/she holds a UAE Residency visa).  The letter of no objection must be signed by the sponsor or his or her duly appointed signatory.\r\n\r\nFor further information on any of the above please contact Mr. Samer Qudah, Partner &amp; Head of Corporate Structuring Department based at our World Trade Centre Office, 9th floor, Dubai (<a href=\"mailto:s.qudah@tamimi.com\">s.qudah@tamimi.com</a>).'),
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(80576, 4394, 'content', '<p><strong>SUMMARY<br /><br /></strong>In this case, the exclusive distributor (the  Claimant) filed a case against its principal (the Defendant) for terminating the  distributorship contract, without lawful cause or prior notice.&nbsp; The Claimant  claimed the termination caused him to suffer substantial loss and claimed loss  of profit and other expenses.&nbsp; The Claimant also brought a case against the  newly appointed distributor (the Second Defendant) as well as the First  Defendant for collusion and conspiring with the First Defendant to terminate the  Claimant&rsquo;s distributorship agreement.<br /><br />This case confirmed that exclusive  distributorships are subject to the general rules governing commercial agency  contracts which are set out under Chapter II of the Commercial Transactions Law  (Federal Law 18 of 1993) dealing with specific types of commercial agency  (Articles 220, 225 &amp; 226).&nbsp; Pursuant to Article 227 of the Commercial  Transactions Law <em>&ldquo;a distribution contract, whereby a trader undertakes to  promote and distribute the products of an industrial or commercial establishment  in a specific area on an exclusive distributorship basis, shall be considered a  contracts proxy and be governed by the provisions of Articles 220, 225 and 226  (of this law) hereof.&rdquo;</em><br /><br />Exclusive distributorships need not be  subject to the special provisions relating to commercial agencies contained in  the 1981 Commercial Agencies Law. The Court of Appeal was right to hear the  action involving the distributorship agreement despite the fact it was not  registered in the commercial agencies register, as this requirement is not  necessary for distributorship agreements.&nbsp; Further, unlike commercial agency  disputes, a court can look at the reason for the termination of a  distributorship agreement directly without a requirement that the dispute should  first be referred to the Commercial Agencies Committee, whereas with a  commercial agency, the Commercial Agencies Committee is the competent authority  to adjudicate commercial agency disputes before these are finally referred to  court after the Committee&rsquo;s decision.<br /><br />The Claimant, the exclusive  distributor, successfully won its case against the First Defendant, the  Principal.&nbsp; The Court ordered the First Defendant to pay AED 7,179,518 in  damages.<br /><br /><strong>COURT OF FIRST INSTANCE<br /><br /></strong>The Court of  First Instance appointed an accounts expert who prepared his report confirming  the claim amount. The Court of First Instance rejected the Claimant&rsquo;s claim and  accepted the First Defendant&rsquo;s argument that the action against him should not  be entertained on the basis that the agency had not been registered in the  commercial agencies register at the Ministry of Economy. The Court of First  Instance here treated the agency as a commercial agency and not a  distributorship agreement and relied on Article (3) of the Commercial Agencies  Law which prevents the courts from entertaining disputes relating to commercial  agencies, if the agency is not registered.<br /><br /><strong>COURT OF  APPEAL</strong><br /><br />The Claimant appealed this decision in Appeal number 78  of 2009. The Claimant contended that the Court of First Instance was incorrect  when it rejected the claim simply because the distributorship agreement was not  registered with the Ministry of Economy. The agreement is not subject to the UAE  Commercial Agency law.&nbsp; The Court of Appeal ruled that the Court of Instance  decision should be reversed, that it would entertain the action against the  First Defendant, ordering the First Defendant to pay the amount of AED 7,179,518  in damages.<br /><br />The First Defendant appealed this decision and the case was  sent to the Court of Cassation<br /><br /><strong>COURT OF  CASSATION<br /><br /></strong>The Court of Cassation confirmed the Court of Appeal&rsquo;s  decision and ruled that commercial agencies that are governed by the Commercial  Agency Law (Federal Law 18 of 1981) are subject to strict requirements, such as  the requirement that the business be conducted exclusively through UAE nationals  and that the contract be attested and registered with the Commercial Agency  register at the Minister of Economy.&nbsp; Therefore, parties opting for this type of  contract for their business must comply with these requirements in order to have  all the rights and protections afforded to them.&nbsp; In contrast, commercial  representation and exclusive distributorships are subject to articles 220, 225  and 226 of the Commercial Transactions Law.&nbsp;<br /><br />The Court of Cassation held  that the interpretation of agreements in a manner that reflects the intention of  the parties is for the court.&nbsp; The Court of Appeal, based on the evidence of  record and the expert&rsquo;s report, rightly concluded that the agreement between the  parties is in fact an exclusive distributorship contract and the action should  be heard without the regard to the requirement that the agreement should be  registered in the commercial agencies register.<br /><br />The First Defendant&rsquo;s  appeal was therefore dismissed.</p>'),
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(80556, 4392, '_yoast_wpseo_metadesc', 'The facts surrounding the introduction of the branded partnership between Virgin Mobile and Qtel in Qatar last year suggest that arguably, a mobile telecommunications services provider may be introduced into the Qatar market-place without a license from the Qatar telecommunications regulator providing the partnership complies with the necessary laws and regulations.'),
(80557, 4393, 'content', '<p>As the Islamic financial market becomes increasingly global, financial  participants from multiple jurisdictions are taking opportunities to gather  their resources and form alliances to jointly participate in the global  business. As a consequence, and given that the cornerstone of Islamic finance  transactions are the application of Shariah principles, such principles are  being adapted into international commercial agreements and assimilated into a  non-Islamic legal environment. Attempts are being made to implement Islamic  finance transactions in jurisdictions which are not bound to give effect to  Islamic principles, at least where commercial agreements are  concerned.<br /><br />Most countries have adopted either the common law, or civil  law system, and there is a lack of a comprehensive legal system to support the  application of Islamic principles in Islamic finance transaction documents. Even  if market participants agree to use contracts based on Shariah principles, most  laws and the courts lack the sufficient and specific legal backdrop,  infrastructure, resources and expertise to interpret and enforce the transaction  documents Islamically.<br /><br />In certain countries like Pakistan, Egypt and  Malaysia, despite the existence of Shariah judicial systems, the application of  Islamic laws are limited to traditional areas of law such as family laws,  marriage and inheritance. Even where some countries have successfully  established separate Islamic statutes such as Islamic banking laws passed by  Kuwait and Malaysia, its applications in the respective judicial systems are  limited and are still the subject of debate.<br /><br />The issues which arise as a  result of the increasing participation of financial institutions and other  market players from multiple jurisdictions in a single Islamic finance  transaction in light of the above mentioned scenario are mainly two-fold &mdash;  firstly, the choice of governing law which will govern the Islamic finance  transaction documents and extent to which Islamic law principles are applied  within the chosen governing law framework, and; secondly, given the lack of an  Islamic legal system, the proper forum of dispute resolution for disputes under  the Islamic finance transaction documents. This article attempts to outline the  challenges surrounding both issues.<br /><br /><strong>Role of Shariah principles  vis-&agrave;-vis the choice of governing law </strong><br /><br />All finance transaction  documents have a governing law clause. Although rarely the primary concern of  the parties, the choice of governing law can be a point of confusion for  cross-border finance transactions involving parties from multiple jurisdictions.  For a conventional cross-border finance transaction, although still an important  point, there is less complication as there is no requirement to consider the  application of Islamic principles. Rather the issues revolve around the  applicability of the choice of law in the jurisdiction where a party  contemplates a legal action in other jurisdiction and the enforcement of a  foreign judgment in the jurisdiction where the obligor resides and/ or where the  assets of the obligor are located.<br /><br />With Islamic finance transactions, the  choice of law is more delicate given that the parties will naturally want to opt  for Islamic law as the governing law of the finance documents. As Shariah is not  a national system of law and there is no one standard codified Islamic law to be  used as guidance and reference, parties cannot merely adopt Islamic law as the  governing law without reference to the law of a particular jurisdiction.  Therefore, a national law system is often used as the governing law to provide  more certainty on the rights and obligations of the transacting  parties.<br /><br />The reference to Shariah principles is embedded in the provision  on the governing law, often drafted in such a way that the governing law will be  used subject to the Shariah principles. Such provision gives rise to the  question as to the extent of applicability of Shariah principles in the law of a  chosen jurisdiction. In practice, English law is widely chosen as the governing  law of Islamic cross- border finance transactions.<br /><br />There is ample  evidence to suggest that the reference to Shariah rules and principles amid the  choice of law clauses such as illustrated above are included in the Islamic  finance transaction documents with no particular thought of the effect or  implementation of the provision by the judicial system. Therefore, it is not  surprising for the parties to provide for the Shariah principles the law of a  specific domestic jurisdiction, only to discover later in litigation that the  courts lack the expertise or resources to implement the Shariah  rules.<br /><br />There have been a number of cases litigated in the English courts  involving Islamic finance agreements, where the courts examined the issue of the  governing law in such agreements.<br /><br />One of such case, Shamil Bank of  Bahrain v Beximco Pharmaceuticals, illustrates this point very well. The case  was significant because for the first time, the questions of the validity,  interpretation and scope of the English law vis-&agrave;-vis Islamic principles were  considered by a secular court.<br /><br />In that case, Shamil Bank of Bahrain  (Shamil Bank) claimed that certain monies were outstanding from Beximco  Pharmaceuticals (Beximco) under a Murabahah agreement. The governing clause in  the Murabahah agreement stated that &ldquo;subject to the principles of the glorious  Shariah&rdquo;, the agreement would be governed by and construed in accordance with  the laws of England. Beximco argued that the agreement was contrary to Shariah  law and therefore was not enforceable.<br /><br />The judge in the first instance  held that English law was the governing law and there was no scope for the  Shariah law to apply as there could not be two separate law systems governing a  transaction. Further, it would be highly impossible that an English secular  court would apply religious principles in making the determination of a dispute.  The appeal by Beximco against the decision of the first instance judge was  dismissed along the same arguments. The judge in the English Court of Appeal  case further argued that the general reference of the Shariah law in the  agreement did not identify any specific Shariah principles to be applied and  further ruled that the reference to Shariah law is repugnant to English  law.<br /><br />The above case illustrates two main challenges, first, the  reluctance of a secular court to admit the application of Shariah principles and  second, the scope for potential abuse by defaulting obligors to use Shariah  invalidity arguments to avoid making payments under the Islamic documents. Due  to the various interpretations of Islamic finance structures, defaulting  borrowers have the opportunity to &lsquo;shop around&rsquo; for the Shariah view which  favors their argument of Shariah invalidity which will absolve them from the  responsibility of payment of amount owing, which is why in the above case, the  judge determined that the sole intention of Beximco was to obtain financing from  Shamil Bank. Therefore the form of the agreements and the impact of the Shariah  law on the validity of the agreement were not points of contention.<br /><br />The  judgment of the Court of Appeal relating to 11 separate cases involving Bank  Islam Malaysia and Arab Malaysian Finance confirmed the validity of certain  Islamic finance structure in Malaysia. Similarly, the Michigan district court  has recently dismissed a case alleging that AIG&rsquo;s Shariah compliant financial  services violated the constitution of the US; however the interpretations of the  Islamic principles are still being debated. In the Malaysian case, the judge  stated that the notion that the question of whether an Islamic finance  transaction is Shariah compliant is finally determined by the Shariah board is  flawed. While the courts will take into account the views and opinions of the  Shariah scholars, the final decision maker on making a determination of such  issue will be the court. Arguably, these two cases opened up the acceptability  and recognition of Islamic principles in the secular judicial systems although  its application is still vague and unclear.<br /><br /><strong>Choice of dispute  resolution<br /></strong><br />There is also the question to the choice of forum. If  there is a legal dispute, where will the dispute be resolved? As discussed in  the preceding section, there is an absence of judicial systems capable of  litigating and enforcing Islamic finance documents. Secular courts do not have  the capability to ascertain and determine what does or does not comply with  Shariah. Even among Shariah experts there can differences in matters of  interpretation of Islamic law.<br /><br />In light of the above, the question is  whether a dispute resolution through arbitration over the judicial courts is  able to resolve the issue of application of Shariah principles in Islamic  finance documents.<br /><br />Arbitration is recognized under the Shariah. The  advantages of arbitration are that the parties can participate in the process;  work and decide on the outcome together, as opposed to against each other. This  can help maintain, restore or rebuild their relationship and save costs and  time. The alternative dispute resolution approach is generally more efficient,  private and more flexible for both parties as compared to litigation. The  parties are able to emphasize that the aim of the arbitration is to have  disputes resolved in accordance with Shariah principles.<br /><br />Arbitration  provides an avenue to bring in and appoint Shariah scholars as arbitrators,  which could issue an arbitration award which is a binding decision on the  parties. However, the arbitrators or other persons involved in arbitration  procedures also need to have some familiarity with financial, commercial and  legal issues and not just the Shariah issues. The arbitration award, however,  still requires enforcement in the secular courts. This requires the  determination as to whether the arbitration award is enforceable in the relevant  jurisdiction.<br /><br /><strong>Conclusion</strong><br />For a conventional  cross-border finance transaction, the choice of governing law and dispute  settlement resolution constitutes important sections of the document. The  parties have to consider the legal consequences stemming from choosing a law of  a particular jurisdiction, such as the issue of the applicability of such  governing laws in the jurisdiction where a party chooses to bring a legal  action, conflicts of&nbsp; law rules and enforcement of foreign judgments in a local  jurisdiction.<br /><br />When the parties use Islamic finance structure, another  layer of governing law or principle is referenced to the finance document which  adds to the complexity of the existing issues. It seems to be easy enough for  the parties to merely include in the finance documents a clause that the  governing law is subject to Shariah principles without giving much thought to  the legal consequences. In a legal environment where there is an absence of a  judicial system that can uphold and implement Islamic principles in Islamic  finance documents, a governing law clause with a reference to Shariah principles  seem to be irrelevant and has no particular effect.<br /><br />The best practice  which has been increasingly adopted by legal practitioners in Islamic cross  border finance documents is to include a representation that the parties are  satisfied that the agreement complies with the Shariah and a provision whereby  the parties agree not to seek to challenge the enforceability of the agreement  in the future on the basis of non-compliance with Shariah  principles.<br /><br />Consequently, the governing law clause only provides for the  choice of law and without reference to Shariah. In addition, parties involved in  Islamic cross border finance transactions have increasingly opted for  arbitration as the choice of dispute resolution to take advantage of the  flexibilities it offers and the opportunity to bring in Shariah and financial  experts as arbitrators. For example in Kuwait, the court is more willing to  enforce a foreign arbitration award.&nbsp;<br /><br /><em>This article was originally  published in Islamic Financial News on; May 25, 2011 volume 8, issue 20.</em></p>'),
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(80523, 4391, 'content_description', 'The Facts: A Civil Action was filed before Dubai Court of First Instance by a local company (“the Claimant”) against another local company (“the Defendant”).'),
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(80525, 4391, 'pageSummary', 'The Facts: A Civil Action was filed before Dubai Court of First Instance by a local company (“the Claimant”) against another local company (“the Defendant”).'),
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(80537, 4391, '_yoast_wpseo_metadesc', 'The Facts: A Civil Action was filed before Dubai Court of First Instance by a local company (“the Claimant”) against another local company (“the Defendant”).'),
(80538, 4392, 'content', '<p><em>The facts surrounding the introduction of the branded partnership between  Virgin Mobile and Qtel in Qatar last year suggest that arguably, a mobile  telecommunications services provider may be introduced into the Qatar  market-place without a license from the Qatar telecommunications regulator  providing the partnership complies with the necessary laws and regulations.&nbsp;  However, while this question-mark in the industry remains, the Supreme Council  of Information and Communication Technology&rsquo;s final decision to terminate the  Qtel/Virgin Mobile partnership shows that it has a zero-tolerance approach when  it comes to non-compliance with the telecommunications legal  framework.<br /><br /></em><strong>Telecommunications Regulatory Framework in  Qatar<br /><br /></strong>The telecommunications industry is regulated by the  Supreme Council of Information and Communication Technology (&ldquo;ictQATAR&rdquo;), which  was established under the Decree Law No. 36 of 2004.<br /><br />The main legislation  governing telecommunications is the Decree Law No. 34 of 2006 on the  Promulgation of the Telecommunications Law (Telecommunications Law) . Licensing  of telecommunications service providers, interconnection and access, prohibition  of anti-competitive practices and abuse of dominance as well as consumer  protection are among the matters which fall within the ambit of the  Telecommunications Law. In particular, the Telecommunications Law lists a number  of activities and conduct that would constitute an abuse of dominance ,  including &ldquo;performing any actions that would have the effect of substantially  lessening competition in any telecommunications market&rdquo;.<br /><br />The executive  by-laws&nbsp; for the Telecommunications Law were issued in 2009. The by-laws  expanded on the matters within the scope of the main law, including consumer  protection. Amongst others, the by-laws contained a provision prohibiting  service providers from making any false or misleading claims in relation to the  price, quality or availability of their services or equipment or that of another  provider.&nbsp;<br /><br />The by-laws also set out the mechanism for resolving disputes  between service providers as well as between customers and service providers. In  2010, ictQATAR issued the Dispute Resolution Rules which detailed the procedure  for service providers to refer disputes to ictQATAR and the time frame for  deciding on such disputes.<br /><br />On 19 April 2011, ictQATAR issued a notice on  anti-competitive conduct (directed at providers of fixed networks,  infrastructure and related services), pursuant to its power under the  Telecommunications Law to monitor any abuse of market power or dominant position  and to determine appropriate procedures for this purpose. The notice details the  types of conduct and arrangements or agreements that would be considered  anti-competitive.&nbsp;<br /><br /><strong>ictQATAR Decision and Orders against Qatar  Telecom (Qtel) Q.S.C.<br /><br /></strong>Qtel is the leading licensed provider of  mobile telecommunications services in Qatar.&nbsp; On 13 May 2010, Qtel and Virgin  Mobile together launched a branded partnership for a pre-paid mobile service,  aiming to combine the coverage and call quality benefits of Qtel&rsquo;s mobile  network with the unique brand experience delivered by Virgin  Group.<br /><br />Within days of this launch, ictQATAR issued Qtel with instructions  to discontinue its potentially misleading marketing and branding activities, and  to implement corrective measures to ensure legal compliance.&nbsp;<br /><br />In addition  to this, Vodafone Qatar, which launched approximately 12 months prior as the  second licensed provider of mobile telecommunications services in Qatar, filed a  formal complaint against Qtel over the Qtel Virgin Mobile-branded service (&ldquo;Qtel  Virgin Mobile Service&rdquo;) a few weeks after the branded partnership was launched,  through the dispute resolution mechanism provided in the by-laws.&nbsp; Vodafone  claimed that the introduction of the Qtel Virgin Mobile Service, amongst other  things, amounted to the introduction of Virgin Mobile into Qatar as a third  (unlicensed) mobile telecommunications provider.&nbsp;<br /><br />The dispute was  referred to ictQATAR in accordance with the Dispute Resolution Rules, and in  July 2010, ictQATAR rejected Vodafone\'s allegation that Virgin Mobile amounted  to a third provider.&nbsp; ictQATAR did, however, rule that Qtel had breached the  Telecommunications Law through its branding partnership with Virgin Mobile, and  that Qtel&rsquo;s marketing and branding strategies for the Qtel Virgin Mobile Service  constituted misleading and deceptive conduct and anti-competitive behaviour in  breach of the Telecommunications Law and the executive by-laws issued in 2009 as  well as the terms and conditions of Qtel&rsquo;s license to provide mobile  telecommunications services.<br /><br />ictQATAR had provided Qtel with many  instructions designed to enforce compliance with the Telecommunications Law and  the executive by-laws issued in 2009, including specific requirements for the  display of the Qtel Virgin Mobile brand (to the extent that the logo had to be  displayed in the size ratio of 60% Qtel logo/40% Virgin logo), and instructions  to cease and desist all marketing and advertising that represented Virgin Mobile  as if it were a third mobile operator.&nbsp; These instructions, as well as the July  2010 decision, were re-affirmed in December 2010 when Qtel had requested  ictQATAR reconsider and modify its previous instructions and decisions.&nbsp; This  December 2010 decision also prohibited Qtel from offering any new promotions for  the Qtel Virgin Mobile Services until ictQATAR certified that Qtel had met all  its obligations as previously instructed.<br /><br />However, further non-compliance  by Qtel with these instructions resulted in ictQATAR finding on 11 April 2011  that:<br /><br />1.&nbsp;Qtel Virgin Mobile Services were marketed to the public by Qtel  in a manner which was misleading or deceptive;<br />2.&nbsp;Qtel had engaged in  anti-competitive conduct and an abuse of dominance; and<br />3.&nbsp;Qtel failed to  comply with Orders and Instructions previously issued to it by ictQATAR to  correct its conduct concerning Qtel&rsquo;s marketing of its Virgin Mobile  Services.<br /><br />This decision was final and binding, and gave finality to the  matter. ictQATAR required Qtel to immediately terminate its Qtel Virgin Mobile  Services, remove all marketing materials and products from the marketplace, and  cease all trading of Virgin Mobile Services by 4 August 2011. ictQATAR decisions  and orders on 11 April 2011 also simultaneously released Guidelines on  advertising, marketing and branding of telecommunications products and services  in Qatar, which apply to Qtel, Vodafone and all their distributors, dealers and  agents.<br /><br /><strong>Closing comments<br /><br /></strong>While ictQATAR&rsquo;s  instructions to Qtel to discontinue its Virgin Mobile Services would favour  Vodafone, it remains to be seen whether Vodafone can recover the potential  customers that have been &lsquo;lost&rsquo; to Qtel&rsquo;s Virgin Mobile Services, particularly  as Qtel planned to automatically migrate all existing Qtel Virgin Mobile  services customers to Qtel&rsquo;s existing Hala service.<br /><br />In any event,  ictQATAR&rsquo;s decision should be of some comfort to the telecommunications industry  and consumers in Qatar. Although the regulator stopped short of determining that  Virgin had been operating as a mobile virtual network operator through Qtel, the  decision by ictQATAR to take firm action against an operator for  anti-competitive conduct and non-compliance of ictQATAR&rsquo;s instructions is still  a positive sign. Given that Qtel had a monopoly over the telecommunications  market until Vodafone&rsquo;s entry in 2008, it is important to ensure that the new  entrant be allowed to compete fairly and consumers are offered a viable  alternative service provider.</p>\r\n<ol>\r\n<li>To the extent that a telecommunications service provider provides e-commerce  services, then Decree Law No. 16 of 2010 on the Promulgation of the Electronic  Commerce and Transactions Law (E-Commerce Law) would also be applicable. The  E-Commerce Law includes provisions on the legal treatment of and evidential  weight given to data messages and electronic signatures, as well as consumer  protection provisions.</li>\r\n<li>Article 43 of the Telecommunications Law</li>\r\n<li>Telecommunications By-Law No. 1 of 2009</li>\r\n<li>&nbsp;Article 90 of the by-laws</li>\r\n</ol>'),
(80519, 4391, 'content', '<p><strong>The Facts<br /><br /></strong>A Civil Action was filed before Dubai Court of  First Instance by a local company (&ldquo;the Claimant&rdquo;) against another local company  (&ldquo;the Defendant&rdquo;). The Claimant requested the Court to confirm an attachment  order recently issued from the summary judge until the issuance of the arbitral  award in related arbitration proceedings.<br /><br />The Claimant submitted that a  Muqawala Agreement incorporating an arbitration clause was concluded between the  Claimant and the Defendant on 14 May 2005. The Claimant contended that muqawala  prescribed that the Claimant would perform the construction work and subsequent  maintenance of an office and warehouse complex on a plot in the Jebel Ali Free  Zone.<br /><br />The Claimant completed the agreed works rendering the Defendant  liable for payment. Of the amount due, the Defendant failed to pay the Claimant  the amount of AED 664,335.16. The Claimant accordingly applied for and obtained  a precautionary attachment order against the Defendant&rsquo;s properties.<br /><br />In  view of the existence of an arbitration clause in the agreement between the  parties, the Claimant also sought the appointment of an arbitrator by the Court  to resolve the dispute.<br /><br /><strong>Court of First  Instance<br /><br /></strong>On 12 June 2008, the Court of First Instance dismissed  the claim. The Claimant appealed to the Court of Appeal.<br /><br /><strong>Court of  Appeal<br /><br /></strong>The Court of Appeal upheld the Court of First Instance&rsquo;s  decision and dismissed the appeal., The Plaintiff subsequently appealed to the  Court of Cassation.<br /><br /><strong>Court of Cassation<br /><br /></strong>Before the  Court of Cassation the Claimant argued that the Court of Appeal had erred in its  decision to uphold the lower Court&rsquo;s decision. The basis for the Claimant&rsquo;s  appeal was that Arbitration may not be conducted in respect of an attachment or  the proceedings required for the confirmation or validation of an attachment  unless referral to arbitration for that purpose has been pre-agreed. However,  the Claimant also submitted that he had simultaneously filed a case to appoint  an arbitrator to resolve the dispute together with the lawsuit filed to confirm  and validate the attachment order.<br /><br />The Court of Cassation overturned the  Court&rsquo;s of Appeal decision and held that pursuant to Article 22 of the Civil  Procedure Law (CPL), Courts shall have jurisdiction over summary and  precautionary proceedings that shall be executed in the country although they  have no jurisdiction over the original action. Unless the arbitration agreement  specifically empowers arbitrators to award precautionary relief such as  attachments, they may not do so &ndash; jurisdiction in this respect remains with the  competent court.&nbsp;<br /><br />It was agreed between the parties that disputes between  them would be resolved by arbitration. However, the arbitration clause within  the parties&rsquo; agreement did not specifically grant the Arbitral Tribunal  jurisdiction over precautionary procedures against the Respondent&rsquo;s properties  in Dubai.<br /><br />The Court of Cassation continued in its analysis and found that  Article 255 of the UAE Civil Procedure Law requires the applicant for attachment  to bring, within eight days from the date of the attachment order, an action  before the Court to prove his right and to validate the attachment. The Court of  Cassation said that this principle applied to cases where the attachment order  has been rendered by a summary court; otherwise, the attachment order shall be  deemed void ab initio.<br /><br />If the substantive has been brought beforehand  (i.e. prior to the awarding of the attachment), and the action to validate the  attachment was brought subsequently before the same Court in order that both  actions be heard together, Article 255 shall be applicable as it deals with  cases where the Court is competent to decide the merits. Therefore, the Court is  competent to hear the claim for validating the attachment  order.&nbsp;<br /><br />However, if the Court is not competent to decide the merits, the  Plaintiff shall still have the right to file an action to validate and enforce  the attachment order independently from the substantive claim. The original rule  is that the action will be admitted unless there is a restriction. The  restriction provided for in Article 255 is a &ldquo;non-standard&rdquo; exception which  deprives the Arbitral Tribunal of jurisdiction over the precautionary summary  procedures decided by the Court.<br /><br />In light of the above, the Court of  Cassation held that the appealed decision did not properly construe Article 255  of the Civil Procedure Law, resulting in the misapplication of the law. The  Court of Cassation overturned the Court of Appeal&rsquo;s decision and remitted it  back for further analysis.</p>'),
(80497, 4389, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-7/august-september-1/employment-at-al-tamimi.html'),
(80498, 4389, '_currentURL', 'field_59d35123ab1e7'),
(80499, 4389, '_yoast_wpseo_metadesc', 'We have offered specialised employment services to clients for a number of years; the success of this much sought-after and well-respected group has meant that effective 1 July 2011 the employment team has been set up as a department in its own right.'),
(80500, 4390, 'content', '<p>The rules of litigation relating to maritime disputes are different, the  maritime claim is urgent by its nature and most of the legislators are keen to  adopt the laws accordingly.<br /><br />The UAE civil procedures law and the  commercial maritime law stipulate special procedures for maritime claims.  <br />Article 43 (paragraph 2) of the UAE civil procedures law states that, &ldquo;The  time for appearing in urgent matters shall be twenty four hours and it shall be  permissible in the case of necessity to curtail that period and to make it from  hour to hour provided that the summons is served on the opponent in person  unless the claim is a maritime claim&rdquo;.<br /><br />The UAE civil procedures law  establishes a sepcial rule for the date of the hearing if it relates to a  maritime claim, as it could be one hour following the time of notifiying the  defendant with the case.&nbsp; There is no need to prove the necessisty for such  short notice nor to notify the defendant in person one hour prior to the time of  the hearing as long as the subject of the case is a maritime dispute. For other  cases, the plaitiff should prove the urgency and the necessity for the short  notice as well as to notify the defendant in person with a case in order to  curtail the time for appearing before the court and to make it one hour  following the time of notifiying the defendant with the case.<br /><br />Attachment  against vessels is also different. There are several conditions for placing  attachment against any assets with the most familiar condition being when it is  feared that the debtors&rsquo; assets may be lost as security for the creditor&rsquo;s  right.<br />However, there is only one condition for attaching vessels, which is  the &ldquo;maritime debt&rdquo;, the attachment against vessels shall not be unless it is a  maritime debt.<br />According to the UAE commercial maritime law the maritime  debts are:</p>\r\n<ul>\r\n<li>damage caused by reason of a collision or otherwise;</li>\r\n<li>loss of life or personal injuries;</li>\r\n<li>salvage claims, contracts relating to the use or exploitation of the vessel  under a charterparty or otherwise;</li>\r\n<li>contracts relating to the carriage of goods;</li>\r\n<li>loss of or damage to goods or chattels being carried on board;</li>\r\n<li>general average claim, towage or pilotage, supplies of products or equipment  necessary for the utilization or maintenance of the vessel;</li>\r\n<li>construction, repair or fitting out of the vessel;</li>\r\n<li>sums expended on account of the vessel wages of the crewmembers;</li>\r\n<li>a dispute as to the ownership, the co-ownership, the possession or use of  the vessel and the maritime mortgage.</li>\r\n</ul>\r\n<p>The UAE law balanced two interests, the first is that the vessels should not  be stopped from operation in support of a non maritime debt which may hinder the  flow of the shipping trade, the second is to protect the interest of the  creditor who directly deals with the vessel given that vessel is always the sole  security for his/her debt.<br /><br />If the debt is not a maritime debt, it is not  allowed to place an attachment against a vessel even if it is feared that the  debtor&rsquo;s assets may be lost as security for the creditor&rsquo;s right, and in the  interim the law allows the creditor to attach the vessel without proving that it  is feared that the debtors&rsquo; assets may be lost in case the debt is a maritime  debt.<br /><br />On a second note, contrary to the general rules of the procedures  of the preservatory arrest and attachment of debtor&rsquo;s assets in the hands of  third parties under the civil procedures law, the commercial maritime law allows  the creditor to attach a vessel not owned by the debtor in case the charterer or  the operator of such vessel is solely responsible for a maritime debt connected  with such vessel. Article 117 of the commercial maritime law stipulates that:  &ldquo;<br /><br />If the vessel has been chartered to a charterer together with the right  of navigational management thereof, and he alone is responsible for a maritime  debt connected therewith, the creditor may arrest the said vessel or any other  vessel owned by the same charterer, and he may not, in respect of that debt,  arrest any other vessel of the disponent owner.&rsquo;<br />&lsquo;The provisions of tzhe  foregoing subsection shall apply in all cases in which a person other than the  owner of the vessel is liable for a maritime debt.&rsquo;<br /><br />There are special  procedures for selling vessels by a public auction, as the UAE commercial  maritime law states for particular procedures in this respect, starting from  placing the executory arrest against the vessel to the process of the auction.  For instance, it is noted that it should not be permissible for the hearing  scheduled to hear the order for selling the vessel to be fixed earlier than  fifteen days nor later than thirty days from the date of the arrest; also the  sale shall be affected after three sessions held at intervals of seven days, the  highest bid made at the first session shall be taken as the provisional basic  price for the auction at the second session and likewise for the third auction  session at which shall be finalized the sale to the bidder who has made the  highest offer.&nbsp;<br /><br />The legislator always considers any procedures that would  be taken in connection with the shipping industry to be finalized on urgent  basis and to be compatible with the characteristics of such industry.</p>'),
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(80489, 4389, 'content', '<p>We have offered specialised employment services to clients for a number of  years; the success of this much sought-after and well-respected group has meant  that effective 1 July 2011 the employment team has been set up as a department  in its own right.&nbsp;<br /><br /><strong>The Employment Department</strong><br /><br />We  are proud of the fact that the employment department is the largest specialist  employment group of its kind in the Middle East, providing specialised  employment advice to a large number of multinationals, government owned  entities, local companies and other law firms both locally, regionally and  internationally.<br /><br />Lead by Samir Kantaria and Rebecca Ford, the employment  practice consists of nine lawyers in total. Our extensive experience and  capabilities enable us to advise clients on all aspects of employment work,  including transactional work, day to day employee relations advice, and  employment litigation.<br /><br /><strong>Expertise</strong><br /><br />As the largest,  dedicated employment department of any law firm in the region, we have built a  reputation for providing the most relevant legal advice and we do this by  ensuring our lawyers remain at the forefront of any changes in the law and when  the need arises, by clearly communicating this to our clients.<br /><br />We can  guide clients through the complex and changing employment environment in the  region and we aim to provide advice and assistance that is practical,  commercially viable and cost effective.<br /><br />Our expertise spans all aspects  of employment law in the public and private sectors, whether onshore in the  Emirates, or within the free zones, including the Dubai International Financial  Centre, including:<br /><br /><strong>POLICIES, PROCEDURES AND CONTRACTUAL  DOCUMENTATION</strong> including service agreements, employment contracts,  secondment arrangements and employee handbooks, for all categories of staff,  including directors and senior executives<br /><br /><strong>CORPORATE  SUPPORT</strong>&nbsp; on employment aspects of acquisitions and disposals (both  share and business transactions), including due diligence and related  reports<br /><br /><strong>BUSINESS REORGANISATIONS</strong> including redundancy  programmes, changing terms and conditions, and transfer of  employment<br /><br /><strong>EMPLOYEE RELATIONS ISSUES</strong> including  disciplinary, dismissal and grievance procedures, settlement negotiations and  severance agreements<br /><br /><strong>LITIGATION ASSISTANCE</strong> in the  Ministry of Labour, UAE Labour and other Civil courts, and in the Dubai  International Financial Centre courts, from termination and bonus claims, to  protecting trade secrets, confidential information and business  interests<br /><br />For more information please contact:<br /><br />Samir  Kantaria&nbsp;<br />Partner, Head of Employment&nbsp;<br /><a href=\"mailto:s.kantaria@tamimi.com\">s.kantaria@tamimi.com</a></p>\r\n<p>Rebecca Ford<br />Partner<br /><a href=\"mailto:r.ford@tamimi.com\">r.ford@tamimi.com</a></p>'),
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(80466, 4388, 'content', '<p>As the Middle East grows as a hub for dispute resolution, the role of Sharia law  in the legal affairs of the region is becoming an increasing cause for concern.  Paul Turner, head of arbitration at Al Tamimi &amp; Co in Dubai, and Robert  Karrar-Lewsley, a senior associate at the same firm, consider its impact on  arbitration and whether it gives rise to public policy defences to enforcement  under the New York Convention.<br /><br /><strong>What is the  Sharia?</strong><br />The Arabic word &ldquo;Sharia&rdquo; literally means &ldquo;the way&rdquo; or &ldquo;the  path&rdquo;. It refers to the divine law that Islam teaches has been prescribed by God  to govern human life. Muslims believe that this divine law has been revealed to  different communities though various prophets throughout the ages, concluding  with the Prophet Mohammad.<br /><br />The divine law (Sharia) is found in two  sources, the Quran and the Sunnah. The Quran is the written collection of  revelations verbally communicated to the Prophet Mohammad. The word &ldquo;Quran&rdquo;  literally means &ldquo;the recitation&rdquo;, and is believed by Muslims to be the direct  word of God. The Sunnah consists of authenticated stories regarding the customs  and practices of the Prophet Mohammad, who was divinely guided. Together these  two sources constitute a basic divine law, which for the believer is immutable  and absolute. The Sharia is not, however, solely concerned with law but also  comprises rules regarding moral, economic, social and political issues. In fact  only 350 of its estimated 6,616 verses address legal issues. Many of its  provisions are unique to the time and place of revelation (7th century Arabia),  while others are universal and perennial.<br /><br />It is important to distinguish  between Sharia law and Islamic law, because they are terms that are often  mistakenly used synonymously. Islamic law includes the Sharia, but also includes  the rulings of scholars and courts on the interpretation and application of the  Sharia. Since the Quran and Sunnah are not self-explanatory, the role of the  Islamic scholar and the courts is to interpret and develop the Sharia into a  robust code of rules and principles so as to assist the wider Muslim community  to live in accordance with God&rsquo;s law. These rulings and laws are created using  &lsquo;fiqh&rsquo; (literally &ldquo;understanding&rdquo;, or jurisprudence) and &ldquo;ijtihad&rdquo; (legal  reasoning). Unlike the Sharia, which is a &ldquo;revealed&rdquo; law that is divinely made,  the rulings of judges and scholars are man-made and so change over time as  attitudes and beliefs develop. For Sunni Muslims, who form the vast majority,  the four main authoritative schools of Sunni Islamic jurisprudence are the  Hanafi, Maliki, Shafi&rsquo;i and the Hanbali, all named after their respective  founders and established as far back as the 10th century.&nbsp;<br /><br />All this means  that, although the Sharia is static and unchanging, Islamic law is dynamic &ndash; it  alters as each generation interprets the Sharia. Many centuries of scholarly and  judicial debate regarding the interpretation and application of the Sharia have  given rise to competing schools of thought: including modernist, traditionalist  and fundamentalist schools. To give an example of how Islamic law interprets and  develops the Sharia, at the time the Quran was revealed slavery was an everyday  part of life in Arabia (as it was in most parts of the world). Accordingly there  are many verses in the Quran, as well as stories of the Prophet, that address  slavery and how slaves are to be treated. Although the Quran recommends that  slaves be freed, it does not expressly forbid slavery. However not even the most  fundamentalist or traditional Muslim advocates that slavery be made lawful, and  indeed the consensus amongst scholars today is that slavery is contrary to the  Sharia.<br /><br />Thus Muslims are not the passive recipients of divine knowledge  they are sometimes portrayed to be, but are participants in a debate as to what  the Sharia consists of and how it is to be applied &ndash; with ideas developing over  time and differing from one country to another.&nbsp; The amorphous nature of Sharia  law can be difficult to appreciate as one often reads that a product is  &ldquo;Sharia-compliant&rdquo;, or that a state applies &ldquo;Sharia law&rdquo;. In fact, the term  Sharia no more denotes a cohesive, codified law than the term &ldquo;natural law&rdquo;  does.<br /><br /><strong>The role of Sharia in national laws in the Middle East  today </strong><br /><br />Given the origin of the Sharia it should be of no  surprise that, in many Muslim states, it is explicitly referred to in their  constitutions as a primary source of law. It is often applied through three  gateways. Taking the UAE as an example, the first gateway is the constitution,  which states at Article 7 that the Sharia shall be &ldquo;a main source of  legislation&rdquo; (although not the source of legislation, as it is in some other  states). Secondly, the Sharia is to be applied where legislation is silent (this  rule is found in Article 1 of the UAE Civil Code). The third gateway is that  when interpreting the law, the courts are to take notice of Islamic  jurisprudence (fiqh). This is found in Article 2 of the UAE Civil  Code.<br /><br />However, people should not be misled into believing that lawyers  and judges in the Middle East are constantly referring to the Quran and  reviewing it for applicable legal provisions, before moving on to the national  statutes. The Sharia really acts as a kind of common law, and its influence on  national laws varies widely between states. In some countries the national laws  are heavily influenced by former colonial regimes and so are similar to European  legal systems, whereas in other states the influence of the Sharia is more  apparent. At one end of the spectrum is Turkey, which has an almost exclusively  Muslim population but removed Sharia from its legal system in order to produce a  secular state. At the other end, Saudi Arabia has a constitution that states (at  Article 1) that the Quran and the Sunnah are the country&rsquo;s constitution. In  Egypt, Sharia is the source of legislation, but the country does not adopt  Sharia&rsquo;s criminal provisions and has a modernised family law. Each country  therefore needs to be considered separately.<br /><br /><strong>The Sharia and  arbitration<br /><br /></strong>Arbitration, in some form, has been practised in  Arabia for thousands of years. In pre-Islamic Arabia, tribes would settle  disputes by referring them to a neutral third party who was considered  trustworthy and respectable. This form of dispute resolution was subsequently  recognised and confirmed by Islam, and there are stories regarding the Prophet  Mohammad being asked to act as an arbitrator due to his personal qualities both  before and after becoming a prophet. Arbitration is also referred to and  promoted in the Quran, most explicitly at verse 4:35, which states that &ldquo;If you  fear dissention between a married couple, send forth an arbiter from his family  and an arbiter from her family. If they desire reconciliation, God will bring  them together&rdquo;. The Quran and the Sunnah repeatedly stress the benefits of  settling disputes quickly and discreetly, and at a time when courts did not  exist the arbitral process was the only means of achieving this.<br /><br />The  process in those days was, however, quite different to what we consider  arbitration to be today. It was often more akin to conciliation, with the  arbitrator liaising between the parties to find a solution to a dispute rather  than the parties formally presenting their case before the arbitrator, who would  then decide the matter on the application of the law. Further, arbitrators were  often considered to be the representative of the party that had nominated them,  and were not always required to act in a neutral and impartial manner. The award  rendered was binding but not enforceable (there being no courts), so to ensure  compliance parties would be asked to provide security before any decision was  made.<br /><br />Nonetheless, history shows that arbitration is not a process alien  to or incompatible with the Sharia. On the contrary, it is specifically  recommended by it and all the four main schools of Islamic thought endorse it,  although their approaches are different. For example in the Hanafi school,  arbitration is closely connected with conciliation and the award is considered  as having less force than a court judgment. In contrast, in the Hanbali school  (which is considered the most conservative of the four main schools) an award is  just as binding as a court judgment, and the arbitrator must be as qualified as  a judge. This is another illustration of how, although the Sharia law remains  the same, its interpretation and application can vary widely and change over  time.<br /><br />Broadly speaking, the Sharia rules on arbitration are not unusual  to modern practitioners. All four main schools agree that there must be a  dispute, and that there must be an agreement by the parties to submit the  dispute to the arbitrator; they also agree that all commercial matters can be  arbitrated. It has been said that Sharia does not allow parties to agree to  arbitrate future disputes, but this does not prevent conventional arbitral  agreements being used in the Middle East, including in Saudi Arabia where such  clauses are explicitly allowed under Article 1 of the Arbitration Law.  Similarly, in Islamic jurisprudence there is much debate as to whether an  arbitral award is binding, but in practical terms all Middle Eastern states  accept that they are. Finally, under traditional Sharia principles, the  arbitrator must be a male Muslim, but Saudi Arabia is the only country in the  Muslim world to enforce this rule.<br /><br />In practice, arbitration proceedings  are not greatly influenced by the Sharia, and those who wish to undertake an  arbitration in a Muslim country will only need to consider the arbitration law  in that country. Many countries have undergone modernising reforms in recent  years, and modern arbitration laws can be found in many Middle Eastern states,  such as Bahrain, Dubai, and Qatar.<br /><br /><strong>Sharia and public  policy</strong><br /><br />The main concern raised regarding Sharia is that it may  make it difficult to enforce arbitral awards in the region because there is  always the risk that the award will be deemed non-compliant with a Sharia  principle (such as the rule against interest), and so be found to be contrary to  public policy and unenforceable. Although it is generally the case that Muslim  states will consider non-compliance with (their understanding of) the Sharia a  breach of public policy (as stated explicitly in Article 3 of the UAE Civil  Code, for example), in practice&nbsp; these fears are largely unfounded.<br /><br />With  the exception of Iraq, Yemen, Libya and Sudan, all the Middle Eastern and Muslim  countries are signatories to the New York Convention. Many, furthermore, have  acceded to it without making any reservations (in contrast to the US, the UK and  France). Under Article V(2)(b) of the convention it is open to all signatory  states to refuse to enforce a foreign arbitral award on the basis that the award  is contrary to the state&rsquo;s public policy &ndash; a provision that can be applied  inconsistently because of the lack of definition of &lsquo;public policy&rsquo;, and because  the concept is interpreted differently from country to country. On occasions  this has led to awards being refused for unforeseen reasons. For example, an  award was refused enforcement by the Chinese courts in the 1970s on the basis  that it related to the performance of heavy metal music in China, which at that  time was considered to be contrary to social and public interests. It is  unlikely that this would be the case today.<br /><br />Given the flexibility with  which the Sharia is applied in the national laws of modern Muslim states, there  is no basis for believing that it will cause problems when it comes to the  enforcement of awards. Those states that are supportive of arbitration will be  slow to set aside an award on the grounds of public policy (either because of an  infringement of Sharia law or otherwise), whereas those that are more wary of  the process may look to the Sharia for a pretext to refuse enforcement. The  dominant issue for practitioners, then, is not whether a particular state  applies the Sharia, but its attitude to arbitration.<br /><br />Practitioners must  accept that the enforcement of foreign arbitral awards will never be a certainty  in the Middle East, just as it will never be a certainty in any region. There  will always be occasions where the public policy exception will be used because  the award violates a state&rsquo;s basic notions of morality and justice, even if they  have a well-established pro-arbitration policy. For example, in the 1998 case of  Soleimany v Soleimany, the English courts refused to enforce an award that arose  from a contract relating to an illegal operation to smuggle rugs out of Iran.  Under the applicable law (Jewish law) the illegality did not impede the claim,  but the English courts found that it was against the public policy of England  for an illegal contract to be enforced.<br /><br />Furthermore, domestic awards must  comply with domestic laws to be enforced at the seat, and this is so in the  Middle East as in other parts of the world. Those unfamiliar with the region  need therefore to seek advice from local practitioners to avoid falling foul of  local practices. For example, the Dubai courts have ruled that if an arbitral  award is not signed by the arbitrators on every page (or if the signed page  containing the award does not also contain part of the reasoning) then the award  will not be enforced. This is because, under UAE law, an award simply does not  exist unless the arbitrator has signed it to evidence both the award and the  reasoning (whereas in England, for example, the award simply needs to be  signed).<br /><br />Finally, there is a common assumption that, because interest is  forbidden under Sharia law, awards granting interest will not be enforced in  Muslim countries. This is not the case. Although it is commonly accepted that  Sharia forbids interest, the great majority of Muslim states have legalised it,  and only a few continue to forbid it. The UAE courts, for example, have stated  that the charging of interest is in the public interest and so permissible, even  though it is contrary to Sharia law. Even in those states that continue to ban  interest, such as Saudi Arabia, the rest of the award will be enforced, assuming  it can be severed from that part which relates to interest.<br /><br /><strong>The  usual questions</strong><br /><br />The mere fact that a country enforces Sharia in  some form, or ostensibly gives it prominence, should not concern arbitration  practitioners. Indeed its impact on their arbitration is likely to be no more a  matter of consideration than the impact of Christian values on an arbitration in  Western Europe. When considering whether to conduct an arbitration in a Muslim  country, or assessing how easy it may be to enforce an award, practitioners  should instead focus on the usual questions. Does the country have a modern  arbitration law? Does it have courts that are arbitration-friendly, efficient,  and generally permit enforcement?&nbsp; Is there any case law relating to the  question of whether an award might be set aside for public policy &ndash; and if so do  the courts construe this concept widely or narrowly? Only local counsel will be  able to give reliable answers to these questions - we recommend practitioners  seek advice at an early stage, or they risk overlooking one of the most diverse  and dynamic commercial regions in the world.<br /><br /><strong>Cases  referenced</strong><br /><strong>Soleimany v Soleimany [1999] QB  785.</strong><br /><strong>First Published in Global Arbitration Review, Volume 6  Issue 3</strong></p>'),
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(80450, 4386, '_yoast_wpseo_metadesc', 'This is the second and final part of the article written for China Construction Law Review which provides a brief comparison on some aspects of UAE construction law with PRC law, common law principles and provisions of the FIDIC Red Book conditions.'),
(80451, 4387, 'content', '<p><strong>INTRODUCTION</strong><br /><br />Law No. 27 of 2007 on Ownership of  Jointly-Owned Properties in the Emirate of Dubai (the &ldquo;JOP Law&rdquo;) came into force  on 1 April 2008. The Law laid the foundation for a regulated and transparent  regime concerning the management of strata developments and ownership of Units  in Dubai.<br /><br />In terms of Article 32 of the JOP Law, the Chairman of the Land  Department was entitled to implement regulations as required to ensure a  comprehensive strata title regime.<br /><br />In April 2010 these regulations (&ldquo;JOP  Regulations&rdquo;) were released as &ldquo;Guidelines&rdquo; by the Land Department.<br /><br />In  this article we briefly outline the purpose of each of the JOP Regulations. We  then list in simple terms the steps developers need to take to ensure they  comply with the JOP Regulations. We then review how these laws are being applied  and implemented to date in practical terms.<br /><br /><strong>I. IMPLEMENTING  REGULATIONS</strong><br /><br />The JOP Regulations comprise the following:</p>\r\n<ol>\r\n<li>The General Regulation - Concerning Jointly Owned Properties under the Law  on Jointly Owned Properties in the Emirate of Dubai (&ldquo;General Regulation&rdquo;);</li>\r\n<li>The Regulation Concerning Jointly Owned Property Declaration under the Law  on Jointly Owned Properties in the Emirate of Dubai (&ldquo;JOPD Regulation&rdquo;);</li>\r\n<li>The Regulation Concerning Preparation of Survey Plans in the Emirate of  Dubai (&ldquo;Survey Regulation&rdquo;) and Directions;</li>\r\n<li>The Association Constitution (&ldquo;Constitution Regulation&rdquo;).</li>\r\n</ol>\r\n<p>Below we provide an Overview of the JOP Regulations by considering briefly  the purpose of each regulation. A more detailed analysis of the JOP Regulations  is completed under the section On-Going compliance below.<br /><br /><strong>II.  OVERVIEW</strong></p>\r\n<ol>\r\n<li>General Regulation<br />This regulation is the principal JOP Regulation. The  General Regulation covers such matters as:</li>\r\n</ol>\r\n<p>a) Consumer protection;<br />b) Developer disclosure;<br />c) Financial  disclosures;<br />d) Apportionment of costs as between developers and the Owners  Association; <br />e) Collection of service charges;<br />f) The requirements for  lodging of Jointly Owned Property Declarations and setting up of Owners  Associations;<br />g) The form and content of Building Management  Statements;<br />h) The form and content of Supply Agreements;<br />i) Community  Rules Enforcement Notices;<br />j) Appointments of Administrators; <br />k) Interim  measures.<br /><br /><strong>2.&nbsp; JOPD Regulation<br /><br /></strong>This Regulation  sets out in more detail what is required to set up on a jointly owned property  scheme and register an Owners Association. A default procedure is specified  allowing Unit Owners to establish a Jointly Owned Property scheme where the  developer fails to do this. A new procedure is also introduced allowing  developers to stage their developments as well as provisions allowing up to  three layers of Jointly Owned Property within any one Jointly Owned Property  development.<br /><br /><strong>3.&nbsp;&nbsp; Survey Regulation<br /><br /></strong>This  Regulation provides for the following:</p>\r\n<p>a) The accreditation and registration of surveyors;<br />b) The duties of  registered surveyors;<br />c) Suspensions and cancellations of surveyors;<br />d)  Standards to be used and the ability for the Land Department to issue binding  Directions;<br />e) Transitional provisions relating to the preparation of plans  are also specified.<br /><br />Directions have also been put in place which describe  how areas must be calculated and survey requirements.<br /><br /><strong>4.&nbsp;  Constitution Regulation</strong></p>\r\n<p>This Regulation specifies the form of constitution for each Owners  Association formed. If developers have specified their own form of constitution  in their sale contract they will need to be aware that such documents will now  not apply.<br /><br /><strong>III.&nbsp; ON-GOING COMPLIANCE WITH THE JOP  REGULATIONS<br /><br /></strong>In this section we briefly summarise the effect of  the JOP Regulations on an on-going basis. Each topic is discussed under the  heading of the JOP Regulation setting out the  obligations.<br /><br /><strong>General Regulation<br /><br />Article 4 &ndash; of the General  Regulation -&nbsp; Disclosure Statements</strong></p>\r\n<ol>\r\n<li>The most immediate concern of developers with&nbsp; new proposed or incomplete  developments or developments that are complete but for which no titles have  issued will be completing their Disclosure Statements.</li>\r\n<li>A Disclosure Statement must be signed by a representative of the developer  and set out the following information:</li>\r\n</ol>\r\n<p>(a) The description of the building&nbsp; or project of which the proposed Unit  will be part;<br />(b) The intended land use within building project (for eg.  residential, serviced apartments or retail);<br />(c) Any features pertaining to  ecological sustainability;<br />(d) Any special use that applies to the proposed  Unit ( e.g. serviced apartment);<br />(e) Facilities on the Common Areas that will  be available for use by owners and occupiers as of right;<br />(f) Facilities  within the building or project that will be available for the use of owners or  occupiers on a commercial basis;<br />(g) Items of furniture and furnishings (if  any) for the proposed Units that the developer commits to make available without  additional charge;<br />(h) A draft plan for the proposed Units showing the areas  of the units required by the survey Directions to be shown on the plan for  registration purposes but showing no other areas;<br />(i) A schedule of materials  and finishes for both the proposed Common Areas and the proposed Unit;<br />(j)  Whether any Supply Agreements are to be entered into by the proposed Owners&rsquo;  Association and, if so which agreements;<br />(k) If available, an estimate of the  Service Charges payable in respect of the proposed Unit and, if not available, a  statement to that effect;<br />(l) Proposed arrangements for the supply of utility  services to the Jointly Owned Property and the Unit;<br />(m) Where any utility  service will be provided by non-Dubai government entity, other than the Owners&rsquo;  Association, a statement identifying the utility service and indicating how  charges will be paid for that utility service;<br />(n) Whether the Owners&rsquo;  Association will on-sell any utility service to Unit Owners and, if so, details  on the supply arrangements;<br />(o) Whether construction has commenced and if not  a reasonably estimated date for commencement of construction;<br />(p) A  reasonably estimated date on which the property will be handed over to the  purchaser;<br />(q) A statement directing the purchasers&rsquo; attention to the  development and purchasing obligation to register the contract in the Interim  Real Estate Register in accordance with Law No. 13 of 2008 and related laws  including the statement explaining the consequences of non-registration.<br />(r)  Any ecologically sustainable development ratings applying to the building  project including details of the rating authority will be included;<br />(s) A  copy of the proposed Jointly Owned Property Declaration will be  included;<br />(t)&nbsp; Copy of the proposed Building Management Statement will be  included;<br />(u) A budget prepared on a reasonable basis and including provision  for general fund and reserve fund and catering for the first two years of  operation will be included;<br />(v)&nbsp; An estimate (based on the budget) of the  Service Charges for the Unit will be provided;<br />(w)&nbsp; Details of utility  service providers will be disclosed including whether the entity is related to  the developer and a reasonable estimate of the annual cost except where the  utility service provider is a government entity.</p>\r\n<ol>\r\n<li>Failure by the developer to provide the Disclosure Statement will mean that  the contract is voidable by the purchaser.</li>\r\n<li>The developer will also warrant that the information in the Disclosure  Statement is complete and accurate in all material respects. Where the  information is incomplete or inaccurate in a material way, the developer shall  be liable to the purchaser or any subsequent purchaser for a period of two years  from the date which the Unit is transferred from the developer.</li>\r\n</ol>\r\n<p><strong>Al Tamimi&rsquo;s Comments and Observations</strong></p>\r\n<ol>\r\n<li>Arguably Disclosure Statements are not required for developments that are  complete and where the Unit to be sold has its own title. We state that it is  &ldquo;arguable&rdquo; because the logic behind no disclosure being required where a Unit  has a title is that the Unit will be complete and the title documentation  (including the Jointly Owned Property Declaration and Building Management  Statement (if applicable) should be available for inspection. Arguably therefore  if no JOP Declaration is available disclosure should be made. If the development  is incomplete or complete but with no title then a Disclosure Statement will be  required.</li>\r\n<li>The plan to be attached to the contract must be completed in accordance with  the Directions. The Directions are given pursuant to the Survey Regulation.</li>\r\n<li>Disclosure is a large task on the part of developers as the modelling will  need to be virtually complete for the entire building noting in particular that  a Jointly Owned Property Declaration including the service charge modelling,  Building Management Statement and necessary modelling and more comprehensive  budgets and estimates in relation to service charges will all be necessary. We  would suggest that developers will need to take great care pre-estimating.  Leaving a reasonably large margin of error may also be necessary.</li>\r\n<li>Much of the content required for the Disclosure Statement is also regulated  within the JOP Regulations including the content of Jointly Owned Property  Declaration and Building Management Statements. Developers therefore need to  ensure all documentation is compliant. In terms of minimising risk developers  may also wish to seek the approval of the Land Department to any proposals that  may be the subject of any discretion on the part of the Land Department or  RERA.</li>\r\n</ol>\r\n<p><strong>Article 7 &ndash; of the General Regulation - Financial  Matters</strong></p>\r\n<ol>\r\n<li>Article 7 clarifies what is mostly standard practice by making it clear that  developers are responsible for all costs and expenses associated with plot until  the Owners Association comes into existence. Developers must also pay the cost  of all connection charges for the project. Connection charges for Units will  depend upon the contractual terms signed between the developer and  purchaser.</li>\r\n<li>Fees and expenses paid in advance by the developer may be recovered from the  Owners Association where it is proper to do so.</li>\r\n<li>Developers may not collect service charges from purchasers of the Units  unless these have been authorised by RERA. Any funds collected which are  unexpended must be handed over to the Owners Association within 21 days of it  being registered and licensed.</li>\r\n<li>Where a developer has collected charges from purchasers, the developer must  within three months of the date upon which the Owners Association was registered  and licensed have a registered auditor undertake an audit of the monies received  and expended and within 21 days pay to the Owners Association the reconciled  balance of unexpended funds as certified by the auditors. The department may  also direct the developer to pay funds to the Owners Association.</li>\r\n<li>Developers must transfer title to any goods or equipment purchased with  funds collected from purchasers to the Owners Association.</li>\r\n</ol>\r\n<p><strong>Articles 8, 9 and 10 &ndash; of the General Regulation - Building  Management Statements</strong></p>\r\n<ol>\r\n<li>It has become clear to legal and association management practitioners that  RERA will play a very significant role in ensuring the content of Jointly Owned  Property documentation is appropriate. The role of RERA in this regard is  particularly apparent when considering whether a Building Management Statement  can be used.</li>\r\n<li>A Building Management Statement is a system that when used appropriately may  lead to simplification of complex mixed use schemes. Essentially a Building  Management Statement creates a parallel concept to that of Jointly Owned  Property but rather than having &ldquo;Common Areas&rdquo; the shared areas fall into the  ownership of one &ldquo;Component&rdquo; or another with easements created in favour of the  other users. Components can then be sub-divided into Units and a Jointly Owned  Property Declaration filed in relation to this&nbsp; Component only.</li>\r\n<li>Practically speaking RERA will in most cases require an &ldquo;Owners Association&rdquo;  to be the legal entity in charge of Common Areas or any other shared parts of  the development. This has caused some people to state that there is no such  thing as Building Management Statements in Dubai Jointly Owned Property. This is  however only partially the case.</li>\r\n<li>Building Management Statement can be created within a simple or layered  scheme and registered as a separate restriction over the title to each Unit.  Most areas that are shared will become &ldquo;Common Areas&rdquo; however the Building  Management Statement can be used to deal with management and cost issues thereby  effectively ensuring equitable outcomes are entrenched and cannot be over-ridden  for example by a majority interest.</li>\r\n</ol>\r\n<p><strong>Articles 14, 15, 16 and 17 of the General Regulation &ndash; Supply  Agreements</strong></p>\r\n<ol>\r\n<li>Supply Agreements are defined as agreements for a term of one year or more  for the supply of goods or services including utility services to an Owners  Association either directly or through a Building Management Statement.</li>\r\n<li>Examples of Supply Agreements will be facilities management agreements,  agreements for the bulk supply of utilities such as district cooling agreements,  association manager agreements and insurance agreements.</li>\r\n<li>Supply Agreements may not have a term exceeding three years.</li>\r\n<li>The content of Supply Agreements is regulated as follows:(a) In the case of  goods supplied a description of these and the price paid for them must be  included. The price must be competitive with prices obtainable on the open  market.<br />(b) In the case of services detailed descriptions of these services  must be provided and the fee for these set out. The fee must be competitive with  fees obtainable on the open market for similar services. The provisions must  also have a means of monitoring and assessing the performance of the service  provider and the ability to terminate the agreement for non-performance or other  default. Provisions must also be included allowing the Owners Association to  vary the services or service levels whereupon adjustments of the fee will also  take place. Secret commissions are prohibited.<br />(c) In any case where the  Supply Agreements are noncompliant, an Owner may apply to the Court for relief  and the Court may either invalidate the Supply Agreement or make an order  varying the terms of the agreement.</li>\r\n<li>In addition all companies supplying services in the nature of management of  Common Areas must be licensed with RERA and any agreements for such services  registered with RERA.&nbsp;</li>\r\n</ol>\r\n<p><strong>Al Tamimi&rsquo;s CoMments and Observations</strong></p>\r\n<ol>\r\n<li>The restrictions pertaining to Supply Agreements and agreements for  management services in relation to Common Areas are targeted at developers who  may seek to tie Owners Associations into lucrative long term contracts for goods  and services.</li>\r\n<li>There are also restrictions in the Constitution Regulation on Board members  allowing the Owners Association to enter into contracts with any entity related  to a Board member. Developers can expect therefore that RERA will be vigilant in  protecting purchaser&rsquo;s rights with regard to these requirements.</li>\r\n</ol>\r\n<p><strong>Articles 23, 24, and 25 &ndash; of the General Regulation - Registration of  Owners Associations</strong></p>\r\n<ol>\r\n<li>The JOPD Regulation makes it clear that the developer is responsible for  registering the Owners Association.</li>\r\n<li>The General Regulation contemplates that some developers may not apply for  the registration of the Owners Association whereupon the application may be made  by Unit owners (see Article 23 (1) (g) of the General Regulation and Article 11  (3) of the Jointly Owned Property Declaration Regulation).</li>\r\n<li>The following documents must be lodged with the Land Department and found to  be in order on or before the Owners Association is constituted:(a) An  application for registration;<br />(b) The Common Areas Site Plan;<br />(c) The  Jointly Owned Property Declaration;<br />(d) The Title document for the plot, the  subject of the Site Plan or a statement from the Land Department stating that  the title document is under process;<br />(e) The audit report obtained under  sub-article 10 of Article 7 of the General Regulation or an undertaking to  provide this within three months;<br />(f) The transfer of the first Unit;<br />(g)  The Land Department&rsquo;s fees;<br />(h) Such other documents as the Land Department  may require.</li>\r\n<li>In addition to the above the developer may be required to use an electronic  management accounting system approved by RERA and:(a) Establish the books and  records that the Owners Association is required to keep under its  Constitution;<br />(b) Effect in the name of the Owners Association the insurances  that it is required to effect;<br />(c) Prepare all the documents required to be  dealt with at the first annual general assembly of the Owners  Association;<br />(d) Convene and hold the first Annual General Assembly;<br />(e)  Administer the Owners Association and the Common Areas (including their repair  and maintenance) until the first Annual General Assembly;<br />(f) The Owners  Association will be responsible for the reasonable costs of those matters set  out above.</li>\r\n</ol>\r\n<p><strong>Survey Regulation<br /><br />Article 11 &ndash; Preparation of  Plans</strong></p>\r\n<ol>\r\n<li>The Land Department may allow architectural or engineering drawings to be  lodged instead of survey plans prepared in accordance with the Survey Directions  in relation to projects that have been constructed and occupied and other  projects under construction at the Land Department&rsquo;s discretion. These projects  have been defined as &lsquo;Existing Projects&rsquo; in the Survey Regulation.</li>\r\n<li>In the case of communities that are Existing Projects the Owners Association  will be responsible for preparing the Common Areas Site Plan in accordance with  the Survey Directions and having these lodged within one year from the date the  Owners Association comes into existence.</li>\r\n<li>In the case of buildings that are Existing Projects there is no obligation  to have a Common Areas Site Plan prepared in accordance with the Survery  Directions.</li>\r\n<li>Owners in Existing Projects will be responsible for preparing their own unit  plans and may be prevented from transferring their unit at the Land Department  until this is done.</li>\r\n<li>For projects that are not Existing Projects developers shall be responsible  for completing unit plans and Common Areas Site Plans in accordance with the  Directions.</li>\r\n</ol>\r\n<p><strong>JOPD Regulation</strong></p>\r\n<ol>\r\n<li>The JOPD Regulation specifies when a Jointly Owned Property Declaration is  required in relation to a building, project or component within the building.  The JOPD Regulation also specifies what is required to complete the application.  The principle requirements are as follows:<br />(a) A Common Areas Site  Plan;<br />(b) A schedule setting out the Entitlement for each Unit;<br />(c) The  criteria used for allocating the Entitlements amongst units (i.e. <br />based on  &lsquo;area&rsquo; or the &lsquo;fair and equitable&rsquo; approach);<br />(d) Details about the staging  of the project;<br />(e) Arrangements for the delivery and use of utility  services;<br />(f) Any easements or covenants that burden or benefit the Common  Areas;<br />(g) The Community Rules;<br />(h) A statement indicating if the Jointly  Owned Property Declaration is over the freehold or leasehold interest in the  land.</li>\r\n<li>Jointly Owned Property Declarations may contain following matters:<br />(a)  Restrictions on how particular Units can be used;<br />(b) Architectural and  landscaping codes;<br />(c) Restrictions on use of specified parts of the Common  Areas;<br />(d) Allocations to specific Units of rights of exclusive use over  specified parts of Common Areas including conditions attaching those  rights;<br />(e) Special management arrangements to which the Owners Association  will be party for example multiple layers of Jointly Owned Property and projects  the subject of Building Management Statements;<br />(f) Such other things as the  Land Department may allow;</li>\r\n<li>Jointly Owned Property Declarations will be subject to the approval of RERA  and cannot conflict with the Jointly Owned Property Laws and JOP  Regulations.</li>\r\n<li>Article 11 of the JOPD Regulation required any Jointly Owned Property  Declaration to be lodged by the developer in respect of a project, whether  complete or not, by 13th April 2010. Master Developers must also complete in due  course documentation appropriate for Master Communities.</li>\r\n<li>The JOPD Regulation will also enable developers to complete projects in  stages. In such cases developers will be able to submit amended or new Jointly  Owned Property Declarations provided the updates relate solely to the staging  for the project. In all other cases amendments must be by Special Resolution of  the Owners Association.</li>\r\n<li>The principal benefit to the developer in staging a project will be that  they may limit their exposure by completing part of the project only and then  establishing this as its own Jointly Owned Property whilst reserving the ability  to incorporate this initial stage into a larger development at a later  date.</li>\r\n<li>The JOPD regulation also allows layers of Jointly Owned Property that is to  say a Unit within a Jointly Owned Property may be able to be itself subject of a  separate Jointly Owned Property Declaration. No more than three layers of  Jointly Owned Property will be allowed.</li>\r\n</ol>\r\n<p><strong>Al Tamimi&rsquo;s Comments and Observations</strong></p>\r\n<ol>\r\n<li>The Jointly Owned Property Declaration will be the principal &lsquo;title&rsquo; and  &lsquo;disclosure&rsquo; document relating to any project. It will enable all purchasers and  other stakeholders to understand the structure of the development and each  party&rsquo;s rights and obligations. It should be noted that the Jointly Owned  Property Declaration is required for &lsquo;Disclosure&rsquo; purposes as well as required  to be filed in order for the Owners Association to come into existence.</li>\r\n<li>Due to the importance of the Jointly Owned Property Declaration appropriate  legal and other consulting advice should be taken when preparing the same and  structuring a development.</li>\r\n</ol>\r\n<p><strong>IV.&nbsp; PROGRESS WITH THE IMPLEMENTATION OF THE JOP  REGULATIONS</strong></p>\r\n<ol>\r\n<li>Having been involved in assisting with the documentation and legal issues  pertaining to the JOP Regulations, Al Tamimi and Company are well placed to  comment on their implementation.</li>\r\n<li>To the well informed it was clear that implementation was going to present  some challenges. Firstly much of the development that has occurred in Dubai took  place prior to the JOP Regulations being issued. This meant that not all  purchasers received the benefit of clear disclosure. RERA and the Land  Department have therefore had to mediate in relation to disputes in relation to  areas that developers may have retained and the owners dispute as Common  Areas.</li>\r\n<li>A further challenge has been the volume of schemes that had to be brought  within the new regulatory regime within a relatively short period. RERA has  understood this challenge and have been flexible with developers whilst also  keeping pressure on them to ensure compliance. This flexible approach has also  enabled the supporting industries such as the surveying industry and association  management industry to bulk up to meet the demand. RERA and the Dubai Real  Estate Institute (DREI) have also spearheaded important educational initiatives  which have assisted greatly developers, owners and association managers  understand their new obligations.</li>\r\n<li>The documentation for many schemes has now been submitted to RERA and the  final form of plans approved by the Survey section of the Land Department. There  is now a good understanding in the support industries as to what is required in  terms of plans and documentation.</li>\r\n<li>Recently RERA have also required developers to call a General Assembly for  the purpose of the election of a Board and association manager. This process has  also required a lawyer to assist the Interim Board and ensure that a transparent  tender process was used to elect the association manager. This process in  particular has inspired some confidence in RERA ensuring that owners interests  are protected and developers comply with their obligations. In addition RERA  have actively regulated service charges and made it clear to the public that  developers cannot collect service charges without RERA approval. Developers who  have not handed over control of their developments to the Owners Association may  now find themselves in a position where they cannot levy service charges unless  the Owners Association Board has approved the same.&nbsp;</li>\r\n<li>To the best of the writers knowledge however Owners Associations are not  being issued with licenses. This aspect creates legal challenges for Owners  Associations in terms of enforcing their rights. In particular it means an  Owners Association has questionable legal capacity in terms of pursuing  defaulting owners for non payment of service charges, arranging contracts for  goods or services, opening a bank account or pursuing developers or others for  breaches of their obligations.&nbsp;</li>\r\n<li>The fact that Owners Associations are not being issued with licenses also  creates problems for some developers. Many developers would prefer to hand over  their obligations to an Owners Association but are prevented from doing so due  to the reluctance of the Owners Association board members to sign the necessary  contracts on behalf of the Owners Association without clear legal recognition of  the legal status of the Owners Association. In some instances owners also blame  developers for problem missing and refuse to pay service charges which leads to  the developer having to subsidise the owners or expend resources in trying to  cause owners to comply.&nbsp;</li>\r\n</ol>\r\n<p><strong>CONCLUSIONS<br /><br /></strong>The JOP Regulations round out a  comprehensive ownership system that goes beyond the mere management of buildings  through the inclusion within the scheme of provisions relating to the  subdivision of land, including Master Communities.<br /><br />The comprehensive  disclosure regime will place additional obligations on developers but should not  prejudice significantly quality developers who complete extensive planning or  their projects and will therefore hold the relevant data at the time they are  ready to go to market.<br />The establishment of Owners Associations and the  consumer protection provisions in the JOP Regulations should see a knock on  effect with regard to service charges and the accompanying transparency should  improve confidence in the sector.<br /><br />The implementation process has as  predicted lead to some challenges however there is now a strong and committed  Jointly Owned Property community and a good understanding of the respective  rights and obligations of the stakeholders.<br /><br />It is anticipated that  licenses for Owners Association will issue in due course and the transition will  be complete. The fully implemented JOP Regulations should once again emphasise  why the Dubai real estate market is the logical choice for investment in the  region.</p>'),
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(80428, 4386, 'content', '<p>This is the second and final part of the article written for China Construction  Law Review which provides a brief comparison on some aspects of UAE construction  law with PRC law, common law principles and provisions of the FIDIC Red Book  conditions.&nbsp; In this part of the article, legal provisions relating to  suspension of works, taking over of works, defects liability and subcontracting  are dealt with.<br /><br /><strong>The Right to Suspend Work </strong><br />It goes  without saying that cash flow is vital for any business venture, construction  projects in particular.&nbsp; It is an industry practice that, save for any advance  payment of between 10% and 20% (depending on the nature of the project),  contractors would have to use their own finances, or at the very least,  financially expose themselves to subcontractors and suppliers by producing or  delivering material and execute works in advance for their employers for a fixed  period of time (usually monthly) or until a certain stage of completion is  reached before they get paid, and even then contractors don&rsquo;t get paid in  full&sup1;.<br /><br />Therefore, in the effort to reduce the contractors&rsquo; risk in  relation to payment, construction contracts usually provide a number of  potential remedies in the event employers fail to make payment in accordance  with the agreed time or schedule.&nbsp;The remedies include the right to recover late  payment interest or financing charges &sup2;, suspend work&sup3; or reduce the rate of  work&nbsp; and exercise termination for default provision<sup>4</sup> Of the three  foregoing remedies, the right to suspend work is perhaps the more commonly used  remedy given that the right to receive interest does not, in any significant  way, compel employers to pay on time, and contractors are wary about terminating  contracts for fear of losing the opportunity to complete the works and realise  the profit that they had initially bargained for.&nbsp;<br /><br />In the UAE, in the  absence of a contractual right to suspend work for non-payment, a contractor may  rely on Article 247<sup>5</sup> , and to some extent, Article 414<sup>6</sup>&nbsp;  of the UAE Civil Code.&nbsp; The right to suspend work under these provisions however  are more general in scope and are not specifically intended to address  situations of non-payment.&nbsp; What they do provide though is that a contracting  party may withhold or suspend the performance of its obligation if the other  party fails to discharge a mutual or corresponding obligation that has since  become due for performance.&nbsp; Translating this to a construction setting, it  would mean that a contractor would be entitled to suspend work if it has not  been paid by the employer for any claims that have been certified or accepted  despite the contractor&rsquo;s continued performance beyond the due date for  payment.<br /><br />However, before exercising the right to suspend work a  contractor should take into consideration and address any issues that the  employer may have raised as justifications for non-payment. This is so that the  contractor is not taken to have acted in bad faith. It is to be noted that the  Dubai Court of Cassation decided in a case that the requirements of good faith  under Article 246 is applicable to the right to suspend performance.&nbsp; In this  case, the Court held that a party cannot invoke the right to suspend work if the  other party has substantially discharged its part of the obligations leaving  only a minor part of it unperformed; in other words, the de minimis approach  applies.&nbsp;<br /><br />Unlike the standard FIDIC provisions, the UAE Civil Code does  not expressly provide that a contractor is entitled to receive an extension of  time and payment in respect of additional costs caused by the suspension or  reduction in the rate of work<sup>7</sup>.&nbsp;&nbsp; To address this, it is arguable  that, on the basis of the requirements of good faith, the employer would not be  able to recover any liquidated delay damages from the contractor for delays  attributable to the contractor&rsquo;s suspension (or reduction in the rate of work)  due to non-payment; and that the contractor would be able recover the additional  costs incurred or losses suffered as a result of the suspension (or reduction in  the rate of work) by way of damages<sup>8</sup>.&nbsp;<br /><br />It is interesting to  note that under the standard provisions of the 1999 FIDIC Red Book conditions,  the additional costs that a contractor is entitled to recover in the event of  suspension or reduction in the rate of work for non-payment include an allowance  for reasonable profit which appears to be more favourable than the provisions of  the UAE Civil Code given that there is no clear and express provision under the  Code to enable a contractor to recover reasonable profit in such  circumstances.<br /><br />Under the PRC Contract Law<sup>9</sup>, a contractor may  prolong the construction period and claim compensation for work stoppages,  idling costs, re-mobilisation costs, material storage costs and other resulting  costs and expenses if the employer fails to supply or deliver items that it has  agreed to provide in accordance with the requirements of the contract (which  include funds or payments).&nbsp; Although the relevant provisions do not expressly  provide that a contractor may suspend or reduce the rate of work on the basis of  an employer&rsquo;s failure to make payment, the fact that a contractor is entitled to  prolong the construction period and recover costs and expenses for work  stoppages would mean that it is entitled to suspend or slow down work  progress.&nbsp;<br /><br /><strong>Taking Over Completed Works <br /><br /></strong>Under the  UAE Civil Code<sup>10</sup>,&nbsp; an employer is obliged to take delivery of  completed contract works and pay the contractor the agreed price accordingly.&nbsp;  This requirement is normally supplemented or amended according to the contract  of the parties where elaborate procedures and conditions for handing over and  taking delivery of completed works are often specified in the  contract<sup>11</sup>.&nbsp;<br /><br />The UAE Civil Code further provides that if there  is no valid reason for an employer not to take delivery of the completed works,  the risk or care of the completed works shall be deemed transferred to the  employer.&nbsp; In the local construction scene, it is not unusual to find an  employer refusing to take delivery of completed works or preventing its  technical consultant from issuing a taking over or completion certificate due to  financial difficulties. Otherwise to do so the employer will have to incur the  cost of maintaining the works or project and, if FIDIC Red Book conditions  apply, pay the contractor half of its retention money<sup>12</sup>.&nbsp;&nbsp;&nbsp;  Therefore, in specific circumstances, the relevant provisions of the Civil Code  may be relied upon by a contractor as a ground for transferring the risk and  care of the completed works to an employer despite the latter&rsquo;s refusal to take  over the works or the absence of a taking over or completion  certificate<sup>13</sup>.<br /><br />Similar to the FIDIC taking over of works  regime, the PRC Contract Law require a process of inspection to be carried out,  however, it goes a step further by imposing the need for the works to be in  compliance with the &ldquo;inspection rules&rdquo; and &ldquo;quality standard&rdquo; issued by the  government. Whilst one may say that it is given that completed works must, as a  matter of right, be in conformance with the applicable building or construction  code before it can be accepted as completed<sup>14</sup>,&nbsp;problem may still  arise in a situation where a contractor argues that certain requirements of the  local authorities or government agencies are additional or a variation to its  original scope of works<sup>15</sup>.&nbsp;<br /><br /><strong>Defects Liability  <br /></strong><br />In the event a contractor is carrying out works defectively the  UAE Civil Code<sup>16</sup>&nbsp; allows an employer to cancel the contract  immediately if it is impossible to remedy the defective works; otherwise, the  employer should give the contractor a reasonable period of time to remedy the  defective work<sup>17</sup>.&nbsp;&nbsp;&nbsp; If a contractor fails to remedy the defect  within the said period an employer may request the court to cancel the contract  and allow it to engage a third party to remedy the defect at the contractor&rsquo;s  expense.&nbsp; However, Dubai Court of Cassation has held that in case of urgency an  employer may proceed to engage a third party to remedy the defect without the  need to obtain prior permission from the court.<br /><br />Turning to the PRC  Contract Law, an employer also has the right<sup>18</sup>&nbsp;to require a  contractor to remedy defective works within a reasonable period of time.&nbsp; If the  contractor fails to do so after it has been urged, the employer may terminate or  rescind the contract<sup>19</sup>.&nbsp;Similarly, under Sub-Clause 15.2(c)(ii) of  the 1999 FIDIC Red Book conditions, an employer may terminate the contract if a  contractor fails to comply within 28 days from receiving a notice under  Sub-Clauses 7.5 or 7.6 to remove, re-execute or remedy defective works or  execute any urgent work<sup>20</sup>.<br /><br />One important distinction between  the two laws in respect of defect liability is that under the UAE Civil Code the  contractor, design architect/engineer and supervising architect/engineer are  jointly liable to the employer for the structural integrity of the building or  installation for a period of 10 years from the date of handing over, unless,  such building or installation are intended to remain for less than 10  years<sup>21</sup>.&nbsp;The liability imposed under this mandatory law on the liable  parties is popularly known as the Decennial Liability.&nbsp; It is a strict liability  that does not require the employer to show negligence or default on the part of  any of the liable parties<sup>22</sup>.&nbsp;<br /><br />Under Decennial Liability, an  employer has 3 years from the total or partial collapse of the building or  installation, or the discovery of the structural defects in the building or  installation, to seek compensation against the liable parties.&nbsp;&nbsp;This would mean  that the liable parties will have 13 years of liability over buildings or  installations that have been handed over.&nbsp;Any agreement to exempt or limit such  liability is unenforceable at law<sup>23</sup>.&nbsp;It should also be noted that  defects in the land upon which the building or installation is located, or the  fact that, the employer has consented to the construction of the building or  installation does not excuse the liable parties from the  liability<sup>24</sup>.&nbsp;<br /><br /><strong>Subcontracting </strong><br />It is of  course common practice for a contractor to subcontract parts of its works.&nbsp;There  are several reasons for a contractor to sub-let its works, it may be the case  that certain parts of the works require specialist knowledge or skills of  certain subcontractors, or it may also be the case that the contractor wishes to  spread its risk by dividing the works into smaller portions to several  subcontractors.&nbsp;<br /><br />The UAE Civil Code allows a contractor to sub-let either  the whole or part of the works unless prohibited by the terms of the contract or  the nature of the works is such that the contractor must personally perform  it<sup>25</sup>.&nbsp;Under the Code, a subcontractor has no right against an  employer<sup>26</sup> , all rights and liabilities in relation to the sub-let  portion of the works will be a matter between the contractor and its  subcontractor.&nbsp; In the UAE, it is common for an employer to request specialist  subcontractors to provide a collateral or direct warranty to the employer with  regard to the quality and/or fitness of the subcontract work<sup>27</sup>.&nbsp;This,  however, does not in itself gives any right to a subcontractor to have direct  recourse against an employer<sup>28</sup>.&nbsp;&nbsp;<br /><br />Based on the standard FIDIC  Red Book Conditions<sup>29</sup>,&nbsp;a contractor must obtain the Engineer&rsquo;s  consent before it is allowed to sub-let any part of the Works&nbsp;&nbsp; and it will  remain liable for the acts and defaults of all subcontractors including  nominated subcontractors (指定分包商), however, a contractor is prohibited from  sub-letting the whole of the Works<sup>30</sup>.&nbsp;There is serious implication if  a contractor fails to comply with the restrictions in relation to subcontracting  because it may give the employer the right to terminate the  contract<sup>31</sup>. <br /><br />Unlike UAE law, a contractor under the PRC  Contract Law has lesser freedom to sub-let works.&nbsp;Although a contractor may,  with the consent of the employer, sub-let part of the works to a third party it  may not sub-let the whole of the works or divide the works in order for several  subcontractors to complete the whole of the works<sup>32</sup>.This begs the  question whether does this restriction means that the PRC Contract Law does not  allow Construction Management or Management Contracting type of contracts to be  implemented in the PRC? Generally, these types of contract entail a main  contractor<sup>33</sup>&nbsp;sub-letting the whole of the works (either as agent of  the employer or in its own capacity) to several trade or specialist contractors  for the execution of the whole of the works. Perhaps, in the writer&rsquo;s view, this  type of contract is not deemed by the PRC Contract Law to be a construction  contract for the purposes of Chapter 16, but more so of a contract providing  consultancy services<sup>34</sup>.&nbsp;<br /><br />Further restriction is imposed under  the PRC Contract Law whereby a subcontractor is not allowed to further sub-let  its works. There is no such prohibition either under UAE law or within FIDIC  standard conditions.&nbsp;Another notable difference between the UAE and PRC laws is  that under the latter regime, a contractor and all its subcontractors are  jointly and severally liable to the employer.&nbsp;In other words, an employer may  pursue or claim against a subcontractor jointly with the main contractor for any  of the subcontractor&rsquo;s defaults; whereas in the UAE, unless a subcontractor has  provided a collateral or direct warranty to the employer, or there exist some  special circumstances that create a legal relationship between them, an employer  will not have the right to pursue claims directly against a  subcontractor.<br /><br /><strong>Conclusion</strong><br />The UAE is a melting pot of  different cultures.&nbsp;This also applies to the local construction industry with  its players (developers, consultants, contractors, suppliers, etc) having  originated from different parts of the world.&nbsp;In this regard, Chinese  contractors are certainly not newcomers to the UAE.&nbsp; They have, along with other  foreign contractors, made significant contribution to the development of UAE&rsquo;s  real estate and infrastructure, and they continue to do so despite the current  lull in the market.<br /><br />However, a rich mix of cultures is also a recipe for  construction disputes when the industry players do not give sufficient regard to  local law and issues.&nbsp; Ideally, the provisions of construction contracts should  apportion and allocate all conceivable commercial or legal risks between the  contracting parties.&nbsp;But they are often fraught with ambiguities and pitfalls  partly due to the fact that the contracting parties fail to address local law  and issues.&nbsp;<br /><br />In light of the sluggish construction market that the UAE is  currently experiencing (especially within the real estate sector<sup>35</sup>),  the shortcomings in many of the local construction contracts are now the subject  of legal disputes. As a result, the awareness and the need to take cognisance of  local law amongst the construction industry players have increased during these  difficult times.&nbsp;This is a positive development as further appreciation of local  law will contribute to the maturity of the construction industry as a  whole.<br /><br /><strong>Footnotes </strong></p>\r\n<ol>\r\n<li>Progress payments are usually subject to retention sum and evaluation by a  third party consultant, namely &ldquo;the Engineer&rdquo; if it is under FIDIC Red Book  conditions.&nbsp;</li>\r\n<li>See Sub-Clauses 60.10 and 14.8 of the 1987 and 1999 FIDIC Red Book  conditions respectively.</li>\r\n<li>See Sub-Clauses 69.4 and 16.1 of the 1987 and 1999 FIDIC Red Book conditions  respectively.</li>\r\n<li>See Sub-Clauses 69.1(a) and 16.2(c) of the 1987 and 1999 FIDIC Red Book  conditions respectively.</li>\r\n<li>Article 247, in translation, reads &ldquo;In contracts binding upon both parties,  if the mutual obligations are due for performance, each of the parties may  refuse to perform his obligation if the other contracting party does not perform  that which he is obliged to do&rdquo;.&nbsp;</li>\r\n<li>Article 414, in translation, reads &ldquo;Any person who is obliged to perform a  thing may refrain from so doing so long as the obligor has not discharged an  obligation of his arising by reason of an obligation of the obligee and  connected with it&rdquo;.&nbsp;&nbsp;&nbsp;</li>\r\n<li>See Sub-Clauses 69.4 (a) &amp; (b) and 16.1 (a) &amp; (b) of the 1987 and  1999 FIDIC conditions respectively</li>\r\n<li>A contractor may rely on Articles 338 and 389 of the UAE Civil Code to  recover compensation as a result of the employer&rsquo;s failure to make payment in  accordance with the contract.</li>\r\n<li>Articles 283 and 284 of the PRC Contract Law.</li>\r\n<li>Articles 884 and 885 of the UAE Civil Code.</li>\r\n<li>For example Clauses 48 and 10 of the 1987 and 1999 FIDIC Red Book conditions  respectively.</li>\r\n<li>Under the FIDIC Red Book regime, a Taking-Over Certificate will trigger the  contractor&rsquo;s entitlement for the release of the first half of its retention  money; it also marks the end of the construction period and the contractor&rsquo;s  responsibility for the care of the works followed by the commencement of the  Defect Liability Period.&nbsp;&nbsp;</li>\r\n<li>However, the contractor would need to be mindful of issues relating to  insurance coverage for the completed works and the project site.&nbsp;</li>\r\n<li>Sub-Clauses 26.1 and 1.13 of the 1987 and 1999 FIDIC conditions respectively  require a contractor to comply with all laws including any applicable  regulations or by-laws of the relevant local authorities.</li>\r\n<li>This may occur in situation where there are conflicting or competing  building codes imposed by different local authorities with no clear distinction  as to which one takes priority.&nbsp;</li>\r\n<li>Article 877 of the UAE Civil Code.</li>\r\n<li>What amounts to a reasonable period of time is a question of fact.&nbsp; The  writer submits that the extent and seriousness of the defects and its impact on  the safety of the works and people at the project site would be relevant factors  to be considered.</li>\r\n<li>Articles 262 and 281 of the PRC Contract Law.</li>\r\n<li>Article 94(3) of the PRC Contract Law.</li>\r\n<li>Sub-clause 63.1(c) of the 1987 FIDIC Red Book conditions provides similar  remedy to an employer.&nbsp;&nbsp;</li>\r\n<li>Articles 880 and 881 of the UAE Civil Code.</li>\r\n<li>Article 883 of the UAE Civil Code.</li>\r\n<li>Article 882 of the UAE Civil Code.</li>\r\n<li>Article 880(2) of the UAE Civil Code.</li>\r\n<li>Article 890 of the UAE Civil Code.</li>\r\n<li>Article 891 of the UAE Civil Code.</li>\r\n<li>This practice takes place more often in the case of a nominated  subcontractor.</li>\r\n<li>Unless there are special circumstances where a legal relationship can be  established between the employer and the subcontractor.</li>\r\n<li>Sub-Clauses 4.1 and 4.4 of the 1987 and 1999 FIDIC Red Book conditions  respectively.</li>\r\n<li>Save for certain conditions specified in the relevant sub-clauses.</li>\r\n<li>See Sub-Clauses 63.1(e) and 15.2(d) of the 1987 and 1999 FIDIC Red Book  conditions respectively.</li>\r\n<li>Article 272 of the PRC Contract Law.&nbsp;</li>\r\n<li>Sometimes known as the Construction Manager or Management Contractor.</li>\r\n<li>However, even if this view is correct there appears to be another issue to  overcome because the same law also prohibits an employer from dividing up the  works in a construction projects so to be undertaken by several contractors.&nbsp;  Presumably, the way to overcome this prohibition is to only employ one  contractor to carry out the whole of the structural works of the project as  required under Article 272 of the PRC Contract Law.<br />The real estate sector in  Dubai in particular has gone through significant legislative changes which has  in some ways influenced the local construction market.&nbsp; See Lisa Dale, &ldquo;Eight  Years in Review - Legislating for Dubai&rsquo;s First &lsquo;Boom and Bust&rsquo; Cycle,&rdquo; Al  Tamimi Law Update (<a href=\"http://altamimi.newsweaver.ie/Newsletter/kalr5lz78an\">http://altamimi.newsweaver.ie/Newsletter/kalr5lz78an</a>).</li>\r\n</ol>'),
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(80413, 4385, 'content', '<p><strong>Introduction</strong><br /><br />This article focuses upon the implications  of illegal working for the illegal worker, the employing entity and its  employee(s) who are responsible for the management of personnel.&nbsp;<br /><br />The  scale of the problem was highlighted in July 2011, when the Acting Director of  the Dubai Police Criminal Investigation Department (CID), stated that &lsquo;the  category of illegal workers comes top on the list of theft crimes in the  country&rsquo; whilst confirming that those who breach the immigration legislation by  recruiting illegal workers will be held liable.<br /><br />In terms of applicable  legislation, the legislation governing immigration and residence within the UAE  is primarily governed by UAE Federal Law No 6 for 1973 (as amended) (the  &ldquo;Immigration Law&rdquo;) and a series of further Ministerial Resolutions and Decrees.&nbsp;  It is also relevant to consider the UAE Federal Law No 8 of 1980 (as amended)  (the &ldquo;Labour Law&rdquo;) which governs employment law in the UAE.&nbsp;<br /><br /><strong>The  Issue<br /><br /></strong>Essentially, all expatriate employees who wish to work in  the UAE must be employed by an appropriately licensed and approved company and  be issued with an entry permit for employment purposes, a labour card (work  permit) and a residence visa.&nbsp;<br /><br />The employer is the &ldquo;sponsor&rdquo; of the  employee where the company is onshore.<br /><br />Where a company is based offshore  within a free zone, the free zone authority takes on the role of sponsor, in  return for the company agreeing to abide by certain terms (usually contained in  a Personnel Sponsorship/Secondment Agreement) as the employer.&nbsp; Rather than a  labour card being issued by the Ministry of Labour, the relevant free zone will  issue an identity card which acts as the work permit.</p>\r\n<p>The employee must work for the employer at the stated place of business and  cannot work elsewhere.In some circumstances, it may be possible to obtain  approval from a free zone to allow an employee with an onshore visa to  temporarily work within the free zone for a group company in that free zone.&nbsp; It  is not possible to make arrangements the other way around to enable use of a  free zone visa to work onshore.<br /><br />Press interest in this issue inevitably  focuses upon cases whereby large volumes of blue collar workers fall foul of the  immigration laws.&nbsp; For example, the recent case of the 160 Filipinas, who were  recently arrested for allegedly working illegally at a wedding reception at the  World Trade Center in Dubai.&nbsp; <br /><br />Whilst, such cases are more likely to grab  the headlines, this is very much a potential issue for all employers within the  region.&nbsp; <br /><br /><strong>The implications: The employer</strong><br /><br />Where  the immigration authorities identify that employees have employed non UAE  nationals who do not have valid residence visas and work permits, there is the  potential for significant sanctions. <br /><br />In 2007, Federal Decree Law No7 for  2007 was passed which amended the Immigration Law and increased the level of  potential sanction which can be levied to the employer by the immigration  department from 10,000 AED per employee to the present level of 50,000 AED.&nbsp;  This is indicative of the approach of the Federal Government to the problem of  illegal working. <br /><br />In addition, for onshore employers, it is open to the  Ministry of Labour (MoL) to levy a further fine of 50,000 AED per  employee.<br />For offshore employees, there is the prospect of an additional fine  by the relevant free zone authority with the amount of the potential fine per  employee varying from free zone to free zone.<br /><br />If there is a repeat and an  employer does not rectify and address the illegal working, there is scope for  the Court to double the fines that had been previously issued.&nbsp;The Labour Law  also provides that the Court may consider criminal proceedings against the  employer where it has issued a warning to the employer which has gone  unheeded.&nbsp;&nbsp; The Labour Law makes provision for imprisonment of up to 6 months  should <em>&lsquo;any person violate any of the obligatory provisions of this  Law&rsquo;.&nbsp;&nbsp;</em>&nbsp;<br /><br />The previous Minister of Labour Ali Abdullah Al Kaabi very  clearly reiterated the legislative position on illegally working when he stated  that:<br /><em>\"Any company that is caught employing illegal workers will face a  AED 50,000 fine per worker on the first offence, and a AED 100,000 fine per  worker on the second offence.&nbsp; And if the owner of the company is an expatriate,  he will be deported and banned from entering the country for life while if the  owner is a national, he will be jailed for a minimum of six  months.\"</em><br /><br /><strong>The implications: The  &lsquo;employee&rsquo;</strong><br /><br />There are also grave implications for the employee  who is held to be working illegally.<br /><br />If the individual has been found to  have entered the country illegally, the Immigration Law provides that he shall  be imprisoned for a period &lsquo;not less than one month&rsquo; and will receive a fine of  &lsquo;not less than Ten Thousand Dirham&rsquo;.&nbsp; To complete the suite of sanctions, the  immigration court may also impose a labour ban upon the individual and/or order  deportation.<br /><br />For individuals who enter the country legally but thereafter  work illegally, the potential sanctions under the Immigration Law are the same  save for the potential length of imprisonment which is for a period &lsquo;not  exceeding one month&rsquo;.&nbsp;However, there remains scope for the authorities to impose  a greater sentence given that the Labour Law also makes provision for  imprisonment of up to 6 months.<br /><br /><strong>The implications: The employee(s)  responsible for the management of personnel </strong><br /><br />Where a breach of  the Labour Law is identified (including illegal working), the Labour Law also  makes provision for criminal proceedings to be filed against the &lsquo;<em>General  Manager who is responsible for the management of the establishment and against  the employer if circumstances give the belief that he was not unaware of the  facts constituting the violation&rsquo;.&nbsp;&nbsp;</em><br /><br />Therefore, there is the  prospect of criminal proceedings being initiated against the &lsquo;General Manager&rsquo;  and/or the company where it is shown to be aware of the illegal  working.<br /><br />A General Manager is often not responsible for the management of  personnel within the organisation and such responsibility usually falls to an HR  manager.<br /><br />The authorities have not taken a prescriptive approach to the  Labour Law by holding the person with the title of &lsquo;General Manager&rsquo; accountable  for illegal working within an organisation.&nbsp; Rather the employee who is  ultimately responsible for the management of personnel should be aware that they  are likely to be held to be accountable.<br /><br />This approach was brought into  sharp focus recently, when an HR professional, an Australian business graduate,  was accused of employing staff illegally on behalf of her employer.&nbsp; The  employer was a car parking management company that provided services to Dubai  International Financial Centre.&nbsp;Three of the employer&rsquo;s valet drivers were  arrested by local police for working without valid visas.&nbsp;The HR manager, who  had only been employed by the company for 7 months, was arrested on the basis  that she was responsible for employment in the organisation.&nbsp;The HR manager now  faces potential imprisonment and a fine when the case calls before the  immigration court.&nbsp;<br /><br />The case has generated publicity given the HR  manager&rsquo;s strong conviction that the General Manager and other senior personnel  were able to deliberately avoid potential sanction by absolving themselves of  responsibility. As a consequence it is the HR manager&rsquo;s position that she has  been left to &lsquo;carry the can&rsquo; as she is now reportedly liable for a fine of up to  50,000 AED per employee (150,000 AED in this case) and potential imprisonment  for up to 6 months.&nbsp;&nbsp; <br /><br />This case provides a salutary warning for HR  managers throughout the UAE.&nbsp; In the event that illegal working is identified  within the organisation, the implications are not restricted to the corporate  entity and, irrespective of how harsh it may appear, personal liability is a  potential consideration.<br /><br /><strong>Conclusion</strong><br /><br />There are  onerous sanctions for employers, rogue employees and HR managers (or other staff  responsible for the management of employees within an organisation).&nbsp; Further,  the authorities are aware of the scale of illegal working and wish to address  the problem.&nbsp; <br /><br />Employers would be well advised to undertake a review of  their employment records to ensure that all staff have valid residence visas and  work permits.&nbsp; A robust system with appropriate checks and balances should be  put in place to ensure that visas do not expire without being renewed and copies  of valid visas and work permits are retained within personnel  records.<br /><br />There is a vested interest for Human Resources departments to  take ownership of the review process given that there is a good prospect that  accountability for employing illegal workers may rest within the HR  function.</p>'),
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(80376, 4382, 'content_description', 'The Capital Markets Authority Law (“CML”) and its executive bylaws (the “Executive Bylaws”) provide for different types of disclosure obligations in connection with the activities of a licensed person under the CML (the “Licensed Person”) or any of its dependents, affiliates or employees. \r\n'),
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(80378, 4382, 'pageSummary', 'The Capital Markets Authority Law (“CML”) and its executive bylaws (the “Executive Bylaws”) provide for different types of disclosure obligations in connection with the activities of a licensed person under the CML (the “Licensed Person”) or any of its dependents, affiliates or employees. \r\n'),
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(80371, 4381, '_yoast_wpseo_metadesc', 'The Capital Markets Authority Law (“CML”) and its executive regulations (the “Regulations”) granted the Capital Markets Authority (the “Authority”) the right to issue resolutions after the publication of the Regulations that will determine the minimum capital requirement and the legal form of the entities subject to licensing under the CML.'),
(80372, 4382, 'content', '<p>The Capital Markets Authority Law (&ldquo;CML&rdquo;) and its executive bylaws (the  &ldquo;Executive Bylaws&rdquo;) provide for different types of disclosure obligations in  connection with the activities of a licensed person under the CML (the &ldquo;Licensed  Person&rdquo;) or any of its dependents, affiliates or  employees.<br /><br /><strong>General</strong><br /><br />The obligation of &ldquo;disclosure&rdquo;  under the CML and the Executive Bylaws is not restricted to a particular  activity or mechanism. Such disclosure obligation has been set forth under the  Executive Bylaws with respect to disclosure of risks to the licensed person&rsquo;s  clients, disclosure of personal transactions of the employees of such licensed  person, and finally, disclosure of interests in a Licensed Person&rsquo;s equity  structure.<br /><br />Accordingly, we will highlight herein each type of disclosure  rules as set forth in the Executive Bylaws, each in accordance with the purposes  and intention of such rules.<br /><br /><strong>Disclosures Required Under Licensed  Person&rsquo;s Regulations<br /><br /></strong>Chapter Five (5) of the Executive Bylaws  generally discusses how a Licensed Person can secure a license to engage in  securities activities and what steps it must take to comply with the CML after  receiving said license.<br /><br />Within this context, the disclosure issues are as  follows:<br /><br />Article 164 of the Executive Bylaws provides for the first type  of disclosure by specifying that the Licensed Person shall sufficiently enable  its client to understand the nature of risks related to the type of transaction  the client will enter into.<br /><br />Article 197 of the Executive Bylaws provides  for the second type of disclosure and specifies that any employee affiliated to  a Licensed Person shall disclose to the Adherence and Compliance Executive  (which should be established within the structure of the Licensed Person in  compliance with the CML and the Executive Bylaws) about all the securities  transactions concluded, thereby through another Licensed Person.<br /><br />Further,  Article 198 of the Executive Bylaws provides that the Adherence and Compliance  Executive shall lay down proper measures for monitoring the personal  transactions of employees in securities in such a manner guaranteeing compliance  with the CML and the Executive Bylaws.<br /><br /><strong>Disclosure of Interests in  Listed Companies<br /><br /></strong>Chapter Ten (10) of the Executive Bylaws  discusses the obligations to disclose interests in any listed company, whether  directly or indirectly.<br /><br />Within this chapter, Articles 380 to 400 of the  Executive Bylaws provides for the third and last type of disclosure with respect  to disclosure of interest in the Licensed Person&rsquo;s equity structure.<br /><br />In  such respect, Article 380 provides that a beneficiary person shall mean each  person having an interest representing five percent (5%) and above from any of  the categories of voting shares in a company listed in the Exchange whether  directly, indirectly or in alliance with other persons (the &ldquo;Beneficiary  Person&rdquo;).<br /><br />The Executive Bylaws specifies that when calculating the total  number of shares, wherein a Beneficiary Person has an interest, it shall be  taken into consideration any share held or controlled by its spouse, minor  children, any company wherein it holds 30 % or more of the voting rights and any  shares held by other persons with whom such person agreed to obtain an interest  in the shares of the issuer.<br /><br />Accordingly, if the ownerships of the  aforementioned parties (i.e. family members specified above, affiliate or  associate companies to a listed company) collectively exceed (5%) or more, they  shall be treated on the basis that they represent the interest of a Beneficiary  Person under the CML and the Executive Bylaws, thus subject to its  provisions.<br /><br />Further, the Executive Bylaws provides other interests that  the Beneficiary Person should disclose:</p>\r\n<ol>\r\n<li>Agreeing with third parties to use the rights of vote resulting from holding  such percentage in favor of certain person(s).</li>\r\n<li>Purchasing or agreeing to purchase the said percentage whether on credit  basis or by agreeing to buy the same in the future.</li>\r\n<li>Person holding, whether directly or indirectly through portfolios managed by  third parties, a percentage of 30 % or more of the capital of any legal person  or there is an interest equivalent to such percentage if such person holds 5 %  or more of the capital of a shareholding company listed in the Exchange.</li>\r\n<li>Person holding the said percentage for the account of third parties, whether  for the interest of one person, or several persons.</li>\r\n</ol>\r\n<p>Pursuant to the above, the Beneficiary Person shall notify the Capital Market  Authority (the &ldquo;Authority&rdquo;), the Exchange and the Issuer of such securities of  achieving the interest within a period of five days of achieving the same. Such  notification should occur within a period not exceeding five business days as of  the end of day of trading on which change reached such percentage.&nbsp;This  notification shall remain due when change causes to reduce the interest at five  percent of the capital.<br /><br />More importantly, any disposal of any of the  shares may not occur except after such disclosure and any interested person may  notify the Authority of such breach whenever such person has relevant  information indicating the failure of the Beneficiary Person to disclose its  interests under the legal provisions hereto.<br /><br /><strong>Form of  Disclosure</strong><br /><br />The disclosure of the interest shall be made  according to a template form set by the Authority for this purpose, which  include, as a minimum:</p>\r\n<ol>\r\n<li>Name of the Beneficiary Person, names of any other persons contributed to  achieving the interest.</li>\r\n<li>Details about any financial support from another person for the process of  acquisition or financing loans.</li>\r\n<li>Indicating the objective of acquisition whether to acquire the company,  invest therein or otherwise.</li>\r\n<li>Total relevant shares with detail of what is held before disposition and  total number of shares it acquired after disposition and the percentage  representing the same from the company capital.</li>\r\n<li>Nature of disposition and legal basis for disclosur</li>\r\n</ol>\r\n<p>Following the above, the Exchange wherein the security is listed shall  announce the information it received regarding the disclosures about the  interests upon receiving the information on the bulletin board of the market and  the market website and any other means coming up for announcing data in the  Securities Exchange. The Exchange shall notify the Authority of each disclosure  submitted thereto after verifying the accuracy of  data.<br /><br /><strong>Obligations for Disclosure</strong><br /><br />Further to the  above, each listed shareholding company shall keep a special register for the  disclosures of the board members and executive management containing all the  data and information required to be disclosed in accordance with the Executive  Bylaws. It shall also contain all the information related to remunerations,  salaries, incentives and other financial benefits and the same shall be included  in the reports of the general assembly. The concerned persons shall have the  right to review such register during the normal working hours.<br /><br />The  shareholding companies listed in the Exchange shall disclose the name of any of  their shareholders whose ownership reaches (5%) or more of the capital thereof  at any time and each change made to such percentage.<br /><br />To such effect, the  managing director, executive director, deputies thereof and the like shall  disclose to the Authority, the Exchange and the company upon assuming the  functions thereof about the following:</p>\r\n<ol>\r\n<li>Any interest for itself, its spouse and minor children in the securities of  the company where it works or any affiliate or associate company irrespective of  the percentage of such interest in proportion to the company capital.</li>\r\n<li>Any change made to this interest and disclosure shall be made before any  disposition is made in the securities.</li>\r\n<li>Exercising a right granted thereto by the company, any associate or  affiliated company for any subscription in the securities of the company, its  affiliate or associate companies.</li>\r\n<li>Exercising a right granted thereto by any other company by subscription in  securities of such company.</li>\r\n</ol>\r\n<p>The disclosure referred to in the above paragraph shall be submitted within  five business days as of the date of disposition, provided that it shall include  the following:</p>\r\n<ol>\r\n<li>Name of company manager or any person connected therewith and degree of  acquaintance.</li>\r\n<li>Reason for disclosure of disposition.</li>\r\n<li>Quantity and nature of securities disclosed and their rate, if any.</li>\r\n<li>Nature of disposition.</li>\r\n<li>Date and place of disposition.</li>\r\n</ol>\r\n<p>Finally, it is to be noted that the Authority may obligate any person  connected with securities businesses to submit public or private disclosure and  provide any data connected with the business thereof. It shall, for carrying out  its functions and obligations, order that any investigation it deems necessary  be conducted in application of the CML and the Executive Bylaws. Failure to  comply with the aforementioned requirements may subject the concerned person  (whether the Beneficiary Person and/or the Licensed Person) to penalties and to  settle any damages caused to the Authority, Exchange or third parties as a  result of not disclosing its interests in accordance with the  aforementioned.</p>');
