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(79517, 4335, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nCreation of securities in the DIFC is governed by the Law of Security - DIFC LAW No. 8 of 2005 (“Security Law”) &amp; DIFC Security Regulations (“Security Regulations”), which also govern the registration and enforcement of securities in the DIFC.\r\n\r\nThe Security Law and Security Regulations (“Law and Regulations”) apply in the jurisdiction of the DIFC and are administered by the DIFC Registrar of Security (“Registrar of Security”)\r\n\r\nThere are no restrictions as to who can hold or obtain the benefit of a security in the DIFC, or who can grant a security interest governed by the Law and Regulations. The application of the Law and Regulations to a security interest does not depend on the law that governs the secured obligation. Accordingly, parties to a security agreement may opt to have the Law and Regulations as the governing law while the financing agreement is governed by another law.\r\n\r\nUnder the Law and Regulations, a security is enforceable when:\r\n\r\n1. value is given, which is normally when the loan is made;\r\n\r\n2. the security provider has the rights to deal with the collaterals, including to transfer them to the secured party; and\r\n\r\n3. a security agreement that binds the debtor and specifies the details of the collateral is in place. If the collateral is a negotiable document of title, a negotiable instrument, money, deposit account or financial property, the secured party must also have control over the collateral.\r\n\r\nPriority of security interests is determined by the existence and timing of perfection or attachment of the security interests.\r\n\r\nThe manner in which collaterals are perfected differ depending on the types and nature of the collaterals. Security interests in the form of assignment of receivables, sale of a receivable or promissory note are perfected when they attach, namely when they are enforceable against the debtor or third party.\r\n\r\nSecurity interests over negotiable document of title, a negotiable instrument, money, financial property or a deposit account are perfected by the filing of a prescribed form of financing statement with the Registrar of Security. Another element to ensure perfection of security over these collaterals is “control” whereby:\r\n\r\n1. in the case of negotiable documents of title, negotiable instruments and money, the secured party, must have possession of these items;\r\n\r\n2. in the case of deposit account, the account should be held by the secured party or by a bank (“account bank”), who will act on the secured party’s instructions without further consent by the debtor. The latter arrangement has to be agreed to by all parties namely the secured party, the bank and the debtor.  Control is also assumed when the secured party becomes the account bank’s customer in respect of the account.\r\n\r\nIf further security interests or other interests are granted in respect of the collateral, the secured party will continue to retain control, so long as the debtor does not have possession or control of the said collaterals.\r\n\r\nThere are some exceptions to the requirement of the filing of the financing statement:\r\n\r\n1. security interests which are perfected upon attachment;\r\n\r\n2. a security interest which is perfected continuously. This is where the security interest if it is originally perfected by one method under the Law and is later perfected by another method under the Law with any intermediate period when its was unperfected;\r\n\r\n3. an assigned security interest, whereby a secured party assigns a perfected security interest. In this case, a filing is not required to continue the perfected status of the assigned security interest;\r\n\r\n4. temporary perfection, whereby security interest remains perfected for twenty days without filing. This is in the case where the secured party makes available to the debtor:\r\n\r\na. goods or title to the goods,  for the purpose of ultimate sale, exchange or dealing prior to the sale or exchange;\r\n\r\nb. certificated security (ie security interest captured by a physical certficate) or negotiable instruments, for the purposes of ultimate sale, exchange or presentation, collections, enforcement, renewal or registration of transfer.\r\n\r\nUpon the expirty of the twenty day period, the security interest must be perfected in accordance with the Security Law.\r\n\r\nIn addition, if the security interest is in respect of securities listed on the Nasdaq Dubai, the securities may be pledged through submission of pledge instruction to the central securities depository of the Nasdaq Dubai (“CSD”) in favour of the pledgee.  The securities will be designated as “pledged securities” held in favour of and controlled by the pledgee.\r\n\r\nIn the case of default, chapter 7 of the Law and Regulations set out the rights and remedies available to a secured party that include:\r\n\r\n1. rights to demand payment from or specific performance by the obligor;\r\n\r\n2. rights to take any proceeds that the secured party is entitled to;\r\n\r\n3. step-in rights against any persons obligated on the collateral, such as an account debtor;\r\n\r\n4. rights to set off or demand a bank to set off the balance of deposit account against the obligation secured by the deposit account; or\r\n\r\n5. rights to take possession of the collateral and to sell, lease, license or dispose of the collaterals on the terms which are commercially reasonable, through private or public proceedings.\r\n\r\nThere are prescribed requirements in the Law and Regulations that a secured party must comply with when enforcing its rights under the securities, which amongst others include notifying the debtor or obtaining consent of a security party who has priority over the securities. While there are no court proceedings or orders required to enforce the securities, the court may order or restrain the enforcement of the security if it is established that the secured party fails to comply with these prescribed requirements. In this respect, the debtor or the obligor may also bring an action for damages for any loss arising out of the secured party’s failure.\r\n\r\nThis right to enforce securities without court order is one of the features distinguishing the Law and Regulations from that of the UAE laws. Under the UAE laws, all security interests need to be enforced through a court of law and thus a debt is required to be first proven before any securities can be enforced. Once debt is proven and a final judgment is issued, the security will executed through a court order.\r\n\r\nUnder the Laws and Regulations, security interests can be created in after-acquired collateral and future advances. In other words, floating charge, pledge over or assignment of all and future assets may be created by the security agreement. This is another distinguishing feature from the legal position in the UAE whereby security over all and future assets is not possible.\r\n\r\nIt is not necessary for the party taking the benefit of the security interest under the Law and Regulations to be registered, licensed or otherwise authorised in the DIFC. In the UAE however, while there can be exceptions, for instance in the case of the creation of pledge over shares listed on Dubai Financial Market and Abu Dhabi Exchange, the general position is that a secured party needs to be a financial institution that is licensed and regulated by the UAE Central Bank before it can take security over assets in the UAE.\r\n\r\nThe general rule in relation to security interests is that security interest should be governed by the law of the place in which the asset is located. It is prudent therefore for a lender to obtain and perfect the security over assets located in the DIFC under the Law and Regulations.  In addition, the fact that an entity providing the securities are is  domiciled in the DIFC, may also be the determining factor for a lender to apply the Laws and Regulations as the governing laws and regulations for the securities.'),
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(79498, 4334, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nAs a general principle, a limited liability company will be held liable for the actions of its manager when those actions are carried out in its name and within the scope of the manager’s authority as set out in the company’s Memorandum of Association. The exception to this general principle is where the manager’s activities are fraudulent.\r\n\r\nIn a recent decision, the Court of Cassation held that a manager of a limited liability company shall be held liable with his personal assets at risk, for any fraudulent or criminal act committed while dealing with the company’s creditors. The Court of Cassation held that the manager will be held personally liable along with the company when issuing a cheque. The exception to this is unless the manager proves that at the time of the issuance of the cheque the company had sufficient funds. A failure to prove this shall warrant payment of the cheques from his personal assets. In reaching its decision the Court of Cassation had regard to  Articles 218, 219, 237-3 &amp; 111 of the Commercial Companies Law  (“CCL”).\r\n\r\n<strong>Claim</strong>\r\nA commercial action was filed by a buyer (the “Claimant”) against a Limited Liability Company (“the First Defendant”) and its Manager (“the Second Defendant”) (together “the Defendants”). The Claimant submitted that the First Defendant had purchased scaffolding from him amounting to AED 473,750, but that the First Defendant had paid only AED 99,812. The Claimant argued that the First Defendant had issued two posted dated cheques – signed by the Second Defendant - for the remaining amount. The first cheque was dated 2 September 2008 and amounted to AED 75,938, and the second cheque was dated 14 September 2008 and amounted to AED 298,000.\r\n\r\nThe Claimant alleged that the two cheques had bounced upon their presentation, due to insufficient funds.  The Claimant subsequently initiated legal proceedings against the Defendants and requested the Court to direct them to pay the outstanding amount plus interest and legal fees.\r\n\r\n<strong>The Court of First Instance</strong>\r\nThe Court of First Instance accepted the claim against the First Defendant only. The First Defendant was directed to pay the amount of AED 373,938 plus interest. The case against the Second Defendant was dismissed. On that basis the Claimant appealed the judgment to the Court of Appeal.\r\n\r\n<strong>The Court of Appeal</strong>\r\nThe Court of Appeal upheld the Court of First Instance’s decision. Consequently the Claimant appealed to the Court of Cassation.\r\n\r\n<strong>The Court of Cassation</strong>\r\nThe Claimant argued that the Court of Appeal had erred in its decision to uphold the decision of the Court of First Instance. The two main grounds for the Claimant’s appeal were as follows:\r\n<ul>\r\n 	<li>the Second Defendant is a partner in a limited liability company;</li>\r\n 	<li>the Second Defendant shall be only held liable only to the extent of the capital of the company</li>\r\n</ul>\r\nThe Claimant argued that the Second Defendant was both responsible of the management of the First Defendant and that he had signed the two bounced cheques in the knowledge that the First Defendant company did not have sufficient funds.  The Claimant submitted that this equated to a finding that the Second Defendant should be held personally liable (together with the First Defendant company) to the Claimant as a creditor of the company.\r\n\r\nThe Court of Cassation overturned the Court of Appeal’s decision and held that acts committed by a manager of an LLC Company bind the company when they are carried out in the company’s name and within the scope of the manager’s authority. The exception, as outlined above, is when the subject acts are fraudulent. With respect to the issue of a cheque, if the manager is aware that the company does not have sufficient funds at the time he signs and issues the cheque, he will be liable in his personal capacity.\r\n\r\nIn light of the above, the Court of Cassation overturned the Court of Appeal’s decision. The Second Defendant was found to have acted in his capacity as a  duly authorised manager of the First Defendant. The Second Defendant was also found to have signed the cheques in the knowledge they would bounce. The Second Defendant was therefore held jointly and severally liable with the First Defendant with respect to the payment of the outstanding amount.'),
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(79483, 4333, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nOur Intellectual Property, Technology, Media and Telecommunications practice offers the full range of registration, enforcement and commercial legal services to clients across the world.  With our genuine bi-lingual capabilities, our local expertise gained over years of practice, our regional coverage, and our blend of lawyers with skills and expertise gained locally and internationally, we offer clients a genuine “one stop shop” for their IP, IT, media and telecoms legal requirements in the Middle East.\r\n\r\nWe focus on understanding our clients’ businesses and needs and our clients can be confident that we are at the forefront (and, where possible, use and enjoy), the products, services and technologies they are dealing with. This ensures we are perfectly positioned to truly understand the business environment our client work in and the needs that arise as a result of new technologies.\r\n\r\n<strong>Trademark, Design and Patent Registration </strong>\r\nAs a leading firm in this area of work (Tier 1 ranking 2011, Managing Intellectual Property – world’s leading IP publication) we have the expertise to handle our clients trademark portfolios on an international scale. With a very close network of associates worldwide, we are able to assist clients with trademark registrations throughout the world. More specifically, our work includes filing, assignments, license recording, renewals handling opposition actions and we were the first to register a colour trademark in the UAE.\r\nOur team manages trademarks throughout the Middle East and is able to advise clients on expected results and preempt Office actions saving clients time and costs. Our lawyers maintain open communication with registrars and examiners and are able to verify or check status fairly quickly. For patents and industrial designs, we have acting as coordinating attorneys throughout the Middle East and successfully prosecuted applications throughout the region.\r\n\r\n<strong>Intellectual Property Enforcement and Advisory</strong>\r\nOur work in this area includes anti counterfeiting, software piracy actions, customs complaints against shipments carrying counterfeit goods, in market seizures through administrative actions and IP court litigation.\r\n\r\nWe also advise in taking preventative branding procedures to assure adequate protection for the clients’ IP rights. We have successfully managed to profile our clients’ trademarks awareness with key officials and enforcement bodies. With supervising and arranging for persuasive events, we put our clients in officials-facing stand. For example, we arrange for enforcement officials to attend special training, presentations, field visits and awareness programs provided by our clients in the UAE or overseas at the client’s locations/ production factories.\r\n\r\nWe are recognised by the market as a leading force in patent litigation with a current Tier 1 Patent Contentious ranking by Managing Intellectual Property.\r\nOur practice has expertise in managing domain name disputes ranging from the obvious cybersquatter to tussles with competitors.\r\n\r\n<strong>Data Privacy and Information Security</strong>\r\nOur lawyers have demonstrated a deep understanding of client’s expectations as to assessment of legal risks involved in data privacy and information security compliance issues.  We have worked on data privacy issues for clients from diverse industrial sectors, such as, communications and media companies, banks and financial institutions, healthcare and pharmaceutical companies, specialized and sensitive industrial product companies, human resources and Internet companies.\r\n\r\n<strong>Regulatory work and compliance </strong>\r\nOur work in this area includes advising on pharmaceutical registration and product advertisement restrictions, standards compliance and municipality labeling and safety requirements, tobacco regulation, consumer protection and price control, marketing campaigns licenses and clearances.\r\n\r\n<strong>Technology</strong>\r\nOur team offers the full range of legal services comprising original drafting, legal document review and advice, due diligence, contract negotiation, dispute avoidance and reconciliation and local law compliance and risk management in connection with the following areas:\r\n<ul>\r\n 	<li>Consumer-oriented online and mobile technology and services (including social networking and online news, music, movies, gaming and other entertainment)</li>\r\n 	<li>Technology projects, infrastructure and solutions for a broad range of industries including manufacturing, education, property management, financial services and telecommunications</li>\r\n 	<li>The supply of technology solutions including hardware, software, services, data management and protection and combinations of these</li>\r\n 	<li>Patent protection for technological inventions, and subsequent commercialization</li>\r\n 	<li>Domain name disputes through the dispute settlement mechanisms.</li>\r\n</ul>\r\nWe also specialize in e-Business, m-Business and e-Government, offering the full range of legal services comprising original drafting, legal document review and advice, due diligence, contract negotiation and local law compliance and risk management.\r\n\r\n<strong>Media</strong>\r\nOur Media expertise covers the full spectrum of requirements including media advisory work, defamation, art production and performer’s rights protection, advertising and related advisory work.  We advise on defamation laws, represent clients in defamation litigation, and review and advise upon advertising and other promotional campaigns.\r\n\r\nWe offer the full range of legal services in relation to media content, comprising original drafting, internal training, legal document review and advice, contract negotiation and local law compliance and risk management.\r\n\r\nWe are also active in Sports and Entertainment involving:\r\n<ul>\r\n 	<li>Brand protection and exploitation such as merchandising and other licensing arrangements</li>\r\n 	<li>Merchandise distribution and selling arrangements</li>\r\n 	<li>Anti-ambush marketing and anti-counterfeiting strategies</li>\r\n 	<li>Trademark advice and registration</li>\r\n 	<li>Copyright protection and exploitation</li>\r\n</ul>\r\nBroadcast agreements: television, radio, mobile phone and online content production, distribution, management and exploitation, from the perspective of rights holders, broadcasters and broadcast partners\r\n\r\n<strong>Telecommunications</strong>\r\nWe provide advice on the legal and regulatory environments within the Middle East in respect of the following:\r\n<ul>\r\n 	<li>License applications and license obligations</li>\r\n 	<li>Interconnection agreements and infrastructure sharing arrangements</li>\r\n 	<li>Appropriate costing models for incremental pricing of wholesale and retail services</li>\r\n 	<li>Submissions in complex and sophisticated proceedings before Telecommunication Regulators</li>\r\n 	<li>Develop international best practices for meeting technology, commercial and regulatory requirements</li>\r\n</ul>\r\nWe provide advice on the legal requirements applicable to the delivery and/or reselling of the following services:\r\n<ul>\r\n 	<li>Networking Integration Services</li>\r\n 	<li>Converged Communications Services</li>\r\n 	<li>Network Strategy Services</li>\r\n 	<li>VOIP Services</li>\r\n 	<li>RFID and Mobility Wireless Services</li>\r\n 	<li>Telecommunications Management Services</li>\r\n 	<li>Government policy and regulation</li>\r\n 	<li>Interconnection and access</li>\r\n 	<li>Corporate governance compliance with statutory obligations under company, telecommunications, competition, privacy, consumer protection, data protection and advertising law</li>\r\n 	<li>Encryption Services</li>\r\n 	<li>Internet Filtering Services</li>\r\n 	<li>Import of telecommunications related apparatus</li>\r\n</ul>\r\nWe are one of the very few firms to have regional telecommunication capabilities actually situated in the Middle East. The Telecoms team works seamlessly with colleagues in our regional offices and across a well-established network of trusted regional and international associates.\r\n\r\n<strong>Our Accolades</strong>\r\nLegal 500 – Ranked the IP Department highly including Tier 1 rating for IP and Tier 2 for TMT (2010). The IP Department has been awarded the top tier for the past 4 consecutive years\r\nChambers Global - Tier 2 in Intellectual Property Firms in UAE (2011)\r\n\r\nChambers Global – Tier 3 in TMT Firms in UAE (2011)\r\n\r\nCorporate International Global Award - Best Intellectual Property Law Firm of the Year in UAE (2011)\r\n\r\nManaging Intellectual Property - Tier 1 for Trademark and Copyright Contentious work and Tier 1 for Trademark Prosecution in UAE (2011)\r\n\r\nAward for supporting intellectual property rights (UAE) - Ministry of Economy (2010)\r\n\r\nDubai Customs Department - Foremost legal firm in registering cases against counterfeit products (2011 and 2010)\r\n\r\nFront row from left to right:  David Yates, Nick O’Connell, Hesham Al Barbary, Omar Obeidat, Munir Suboh. Stephen Jiew,\r\nSecond row from left to right:  Mohamed Ali, Yvonne Pah, Lara Ababneh, Rasha Al Ardah, Firas Belhas, Faisal Daudpota\r\nMissing from photo:  Anita Siassio'),
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(79460, 4332, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nA contract is an agreement between at least two parties over the terms and conditions that will govern their business relationship.  There must be an offer, acceptance and consideration. It is usually a result of negotiations and back and forth over the subject matter, which the parties elect to document in a piece of paper to avoid any doubts over what was finally agreed upon. Today, such negotiations are often conducted via electronic means, such as e-mails, and the negotiations continue until the differences are narrowed down to what is referred to as an electronic contract. The question that concerns us all is whether an electronic contract is valid under the current state of the UAE law.  This article will examine the validity of electronic contracts in relation to the UAE law and shed light on the applicable laws in this connection.\r\nUnder the UAE Civil Transactions Law, being Federal Law No. 5 of 1985, as amended (the” Civil Code”), a contract is formed upon the acceptance of an offer by the offeree. Article ¬¬¬125 of the Civil Code provides (translated):” A contract is the deliberate engagement of the offer which emanates from one of the parties, to the acceptance of the other party in a manner which produces judicial effects and creates mutual obligations on the two contracting parties. Yet more than two parties may also engage to produce judicial effects”. The Civil Code further provides that certain kinds of contracts must be in writing in order to be valid. For instance, for the sale or purchase of a ship, the Civil Code specifically provided that the contract has to be in writing. This is equally true in the case of the sale of land or the contract of marriage, where such contract has to be in writing in order to be valid pursuant to the Civil Code. The aforesaid requirement pertains to the validity of such contracts and not only the proof of its terms as it is the case with other electronic contracts, as will be discussed hereunder.\r\n\r\nBased on the above, contracts could in principle  be concluded by the acceptance of an offer by the offeree, no matter how such offer was communicated or the acceptance of the offer was made, with the exception of those contracts, which the Civil Code has specifically states should be in writing in order to be valid. Article ¬¬¬130 of the Civil Code provides (translated):” A contract is concluded by the concurrence of the offer and the acceptance, subject to those cases where special conditions are required for its validity and which are provided for in the law”.  Nonetheless, another question arises in terms of the admissibility of such electronic documents in courts in the event of a dispute over its terms. There is no legal uncertainty if both parties recognise a contract and admit the same.  The problem only arises when one party tends to deny the contract or dispute any of its terms.\r\n\r\nEvidence in the UAE is governed by the UAE Law of Evidence, being Federal Law No. 10 of 1992, as amended (the “Law of Evidence”).  Two categories of documents are recognized under the Law of Evidence; namely official and non-official documents. Under the Law of Evidence, a document, whether official or non-official, must be signed or stamped and copies of documents, whether official or non-official, are not recognised unless they are identical to their originals and the originals are available to compare with. The original will only be considered original if it is signed or stamped.  A copy could be challenged by denying the signature or the stamp. If a copy is challenged, it must be examined with the original.  But how about electronic documents and electronic signatures? Does the Law of Evidence address electronic documents and electronic signatures?\r\n\r\nThe answers to the above questions were negative few years back when electronic documents and electronic signatures were not addressed under the Law of Evidence. Nonetheless, the UAE federal and local governments have realized such legal vacuum and acted on it. In particular, in 2002, his Highness Sheikh Maktoum Bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, issued a local law for the Emirate of Dubai, Law No. 2 of 2002 Concerning Electronic Transactions and Commerce (the “DETCL”). Under the DETCL, an electronic signature as provided for in the said law shall be regarded as adequate if the law requires a signature on a document. According to the DETCL, an electronic document or file shall be regarded as original if there is reliable technical evidence proving that it accurately reproduces the information originally created and it permits information to be presented on request. Pursuant to the DETCL an electronic document or signature may not be rejected just because it is electronic. Electronic information shall have legal validity and in judging this validity, certain requirements must be met such as:\r\n<ul>\r\n 	<li>Reliability of keying in or creating, saving, presenting or sending processes;</li>\r\n 	<li>Reliability of the method in which information is secured;</li>\r\n 	<li>Reliability of the source of information;</li>\r\n 	<li>Checking the identity of the creator of the information;</li>\r\n 	<li>Any other relevant item.</li>\r\n</ul>\r\nIt is presumed that a secured e-signature is reliable, and is that of the person involved and specifically approves the electronic document attached to it. It is further presumed that a secured electronic document has remained unchanged since its creation and is reliable. Even though it may involve one or more electronic communications, a contract may not be less valid or less legal. For purposes of concluding contracts, partial or total acceptance may be made electronically. An arrangement may be made by electronic devices (two or more information systems) without personal intervention. Such agreement shall be valid according to the DETCL.\r\n\r\nAt the federal level, as part of the Federal Government’s efforts to regulate electronic transactions and boost user’s confidence, His Highness Sheikh Khalifa Bin Zayed Al Nahyan, President of the UAE, has, in February 2006, issued Federal Law No. 1 of 2006 concerning Electronic Transactions and Commerce Law (“ETCL”).\r\n\r\nChapter Four in the ETCL addresses electronic transactions and regulates the formation and validity of on-line contracts.  Under Chapter Four, a contract will not loose its validity or enforceability for the simple fact that it was formed by one or more electronic messages.  Further, an on-line contract may be concluded between two or more Automated Electronic Systems; without personal intervention, and such contract shall be valid by virtue of Article 12 of the ETCL.\r\n\r\nFurther, the ETCL has recognized electronic signatures and outlined the criteria according to which an electronic signature shall be regarded as equivalent to a handwritten signature.\r\n\r\nMoreover, in an attempt to align the existing laws with the ETCL, His Highness Sheikh Khalifa Bin Zayed Al Nahyan, President of the UAE, has, in October 2006, issued Federal Law No. 36 of 2006 (the “Law”) amending the Law of Evidence in Civil and Commercial Transactions promulgated by Federal Law No. 10 of 1992 (the “Law of Evidence”). Pursuant to the Law, electronic signatures shall have the same force and effect as other signatures mentioned in Law of Evidence provided they comply with the provisions of the ETCL. Further, electronic writing, communication, records and documents shall have the same force and effect as accorded to official and traditional writing and communication under the Law of Evidence provided they comply with the conditions and provisions of the ETCL.\r\n\r\nIt is evident from the above analysis that the problem lies in proving that transactions have occurred or in establishing evidence. As mentioned above, there is no legal uncertainty if both parties to a contract recognize its terms and admit the same. In other words, if both parties agree to the terms of a contract transacted electronically and recognize the same, the question of proof does not arise. The contract therefore will be a valid contract and both parties will have to adhere to the agreement they have made through electronic means irrespective of the fact that such a contract was concluded electronically and, in most cases, an original, as in the context of the Law of Evidence, may not exist. The problem occurs when one party dispute any or all the terms of the contract, then the question in terms of the admissibility of electronic evidence arises.\r\n\r\nIt is also evident from the above legislative developments that there is a growing realisation in the UAE that e-commerce can only achieve its full potential if there is a modern legal infrastructure that can support the growth of e-commerce.  As e-commerce is developing, it is creating new challenges to any legal system which needs to continue to develop a legal regime to cope with this fast growing area of e-commerce. Hence, I believe that the UAE legislators should continue to enact special laws, such as the DETCL and the ETCL or amend the existing laws, such as the Law to cope with the fast growing technology so it can play a competitive role in the digital economy.'),
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(79418, 4330, 'content', 'The Printing and Publications Law was primarily aimed to address printing and publishing activities and is broad enough to cover all forms of expressions including television broadcasting. This law included 16 articles that detail prohibited matters that may not be published. The prohibited matters are either of religious topics, politics related, national security related or deal with individual rights and public morals.\r\n\r\nAt the time of introducing the Printing and Publications Law, persons subject to these media regulations and prohibitions were onshore entities with the growth of free zones in the UAE and creation of media free zones which resulted in remarkable growth of a media industry inside these special free zones. While there is no specific broadcasting law applicable across the UAE, there has been a guidance released by the Dubai Technology and Media Free Zone that introduce awareness and privacy principles and provide a code of standards.\r\n\r\nThe National Media Council which oversees implementation of the Printing and Publications Law issued a decree at the end of 2010 bearing No. 20 for the year the 2010 regulating media content. The most interesting evolution of this media content decree was holding all media companies whether audio, audiovisual and print in the UAE subject to this regulation and subject to the Printing and Publications Law whether those media entities are based onshore or in the free zones. This provision removed any vagueness to the applicability of Printing and Publications Law to media broadcasters licenses in the free zones. The National Council decree listed a number of mandatory content regulations that apply to all media entities giving special emphasis to national unity and respecting the culture of the UAE and respecting the political views of the UAE Government as well as its political symbols and safeguarding the UAE economic system from any misleading new reports.\r\n\r\nThe regulation allows the National Media Council to take any measures to remedy any violation to the content regulations which range from a notice up to cancellation of the license to carry out media activities in the UAE. While this decree serves as an instrument to affirm applicability of the Printing and Publications Law to free zones and also incorporates further content prohibitions as experiences have dictated additional prohibitions to those listed in the Printing and Publications Law. Despite that however, the content regulation can elaborated much more further to address use of foul or violent language, appropriateness of programs to age groups and timings for broadcasting, further detailing on privacy and data protection of individuals and finally regulating content of advertisements broadcasted by the media. These are among other topics that can be subject of a stand alone broadcasting content legislation or as incorporated in a new broader Media Law.'),
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(79437, 4331, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nIn the aftermath of the financial crisis the term corporate restructuring has become synonymous with “debt restructuring”, at least for a large part of the undiscerning public. But the term “corporate restructuring” is also used when group entities are restructured to achieve commercial objectives with increased efficiency without losing market share or credibility.  The purpose of this article is to point out basic features of both with more focus on the latter (corporate restructuring as opposed to debt restructuring) and provide a future outlook for the same in UAE based on our recent experiences.\r\n\r\n<strong>Debt Restructuring</strong>\r\nCorporate restructuring to manage debt (also called corporate debt restructuring) is used when a company is having trouble making payments on its debts. It is usually undertaken in response to an extreme financial crisis. In theory, after a restructuring exercise, payments should be manageable. Generally, a corporate debt restructuring will be accompanied by cutting operating expenses, altering the firm’s business portfolio by selling or acquiring assets and/or changing the firm equity ownership structure. Such restructuring can either be out of court through mutual settlement with major creditors (usual threshold is creditors owed at least 75% of the debt) or through court processes such as Chapter 11 of the U.S. Bankruptcy Code which enables debt burdened companies to approach the court with a debt restructuring scheme. In most cases under Chapter 11, schemes for restructuring debt is pre-packaged; that is, agreed with major creditors before being taken to court: creditors are taken on board and agreements entered into with the creditors before an application is filed under the bankruptcy code. The whole process can be completed in a matter of weeks. The pre-packaged bankruptcy proceeding is particularly helpful in cases where out of court settlement is not practical or easy due to complicated debt structure of the company.\r\n\r\n<strong>Corporate Restructuring</strong>\r\nIn certain instances, servicing debt is not always the main objectiveof corporate restructuring: the objective may be to improve operational and financial performance, explore strategic opportunities or improve public market valuations. In this sense “corporate restructuring” covers all forms of legally accepted measures by which one or more corporate entities can alter corporate form to affect current relationships with third parties and even amongst shareholders of the corporate entity subject of restructuring.  Broadly speaking corporate restructuring can take the form of:\r\n<ul>\r\n 	<li>corporate expansion (merger, acquisition, joint venture);</li>\r\n 	<li>corporate contraction (spin-off, divestiture, carve-out (including equity carve-out), asset abandonment, liquidations, deregistration of corporate entities; and</li>\r\n 	<li>ownership and control (purchase of own shares and conversion to a private company (whether by a leveraged buy-out (LBO) or by other means)).</li>\r\n</ul>\r\nEconomic realties have forced managers to reassess the need to retain extensive group structures and, if required, to replace with ones designed to efficiently serve core business objectives. In our experience another challenge in recent times to existing corporate structures has come from the business side, especially when they (existing corporate structures) impede a natural shift in business strategy called for by the need to explore new businesses opportunities.\r\n\r\nWhatever the reasons, a corporate restructuring exercise is desirable if it achieves identified corporate needs, the bottom line always being improved efficiency and profitability of the company.\r\nMotives behind corporate restructuring matters in which the firm has been involved recently are diverse; some are as follows:\r\n<ul>\r\n 	<li>to close down entities that are not adding any value to the business;</li>\r\n 	<li>reduce operating cost by downsizing corporate group, but add activities on licenses of the reduced group entities to conduct business unaffected;</li>\r\n 	<li>outsource non core activities such as HR management, accounting and other back office functions to third parties or affiliates and reorganize the group entities;</li>\r\n 	<li>reduce intermediary costs by incorporating entities or adding relevant activities to existing corporate licenses to conduct distribution through self owned retail outlets or subsidiaries;</li>\r\n 	<li>reorganize group entities in the region to fall under subsidiary in UAE to avail tax free status and benefit on repatriation of dividends to foreign parent company under avoidance of double taxation treaty between UAE and the country where the foreign parent company is domiciled; and</li>\r\n 	<li>consolidate group companies set up in the region under holding structure set up in an off shore jurisdiction to achieve uniformity in corporate policy, better administration and manage exit strategy.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nWe envisage that the recent increase in corporate restructuring witnessed in the UAE will continue to grow as managers strive to reduce operating costs and realign existing corporate group structures to long term business strategy. In terms of holding structures we see UAE continuing as a hub for tax planning particularly for parent companies based out of Europe which is likely to experience higher taxes going forward. Finally, big corporate brands are likely to restructure their corporate presence in the UAE to facilitate direct sale to end consumer through self owned retail outlets or distribution network rather than use intermediaries.'),
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(78678, 4289, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Company has built a strong arbitration practice over the years with Senior Partner and Founder, Essam Al Tamimi, being a major advocate for arbitration as a means of efficient and effective dispute resolution for clients.'),
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(78692, 4290, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nThe Respondent filed a case in the Abu Dhabi Federal Court in which it sought an order that the Appellant be directed to appoint an arbitrator. The Respondent also sought confirmation of an arbitral award.\r\n\r\nThe facts of the case are that the Appellant had leased a plot of land from the Respondent, but did not use the land in the manner agreed upon in the Contract. The Appellant’s purported misuse of the land had ruined it. Owing to an arbitration clause in the contract, the Respondent asked Appellant to appoint an arbitrator in accordance with the contract to determine the damage the Appellant had purportedly caused to the land, along with any monetary amount due as compensation. In view of the Appellant’s failure to appoint an arbitrator the Respondent applied to Court.\r\n\r\nThe Abu Dhabi Federal Court of First Instance appointed three arbitrators from the Ministry of Justice roll, who, following the conduct of arbitration proceedings, ordered the Appellant to pay AED 1,708,360 to the Respondent. All other claims were dismissed.\r\n\r\nThe Respondent sought enforcement of the arbitral award. The Appellant filed a cross-action seeking:\r\n<ul>\r\n 	<li>an order requiring the Respondent to pay the sum of AED 200,000 plus interest to the Appellant; and</li>\r\n 	<li>an order setting aside the arbitral award.</li>\r\n</ul>\r\nOn 23 February 2010, the Abu Dhabi Federal Court of First Instance declared itself to be without jurisdiction to hear the matter and referred it to the local Abu Dhabi Court of First Instance.\r\n\r\nBoth parties appealed this decision. On 25 February 2010 the Abu Dhabi Federal Court of Appeal held that the Abu Dhabi Federal Court of First Instance had jurisdiction in the matter, which was referred back to that Court again. The Appellant appealed this decision to the Federal Supreme Court.\r\n\r\nArticle 151 of the Civil Procedure Code, confirms that decisions conferring jurisdiction on a court that did not have original jurisdiction, are among the types of decisions that are excluded from the general rule.  The general rule being, that decisions made during the course of proceedings, which do not ultimately end the dispute, can be reviewed only after a final decision concluding dispute in its entirety has been issued.\r\n\r\nDecision 185, issued by the Head of the Abu Dhabi Judicial Department on 19 August 2007, prescribed that local courts in Abu Dhabi are a judicial authority independent from the Federal judicial authority. Therefore, the lower Court’s decision to confer jurisdiction on the Abu Dhabi Federal Court (thus excluding the local courts) was held to be a decision capable of direct appeal.\r\n\r\nThe Appellant’s sole point of appeal was the lower Court had contradicted the law by ruling that the Abu Dhabi Federal Court of First Instance had jurisdiction to determine the enforcement application. The Appellant argued that:\r\n<ul>\r\n 	<li>as the arbitration had been conducted out of court, the Respondent had to file a primary action to enforce the award; and</li>\r\n 	<li>that jurisdiction to hear such an action belonged to the local Abu Dhabi Court of First Instance.</li>\r\n</ul>\r\nThe Federal Supreme Court has held on a number of occasions that the Emirate of Abu Dhabi has retained judicial authority over its local courts. Therefore, the allocation of competence in court cases is an issue of jurisdiction, related to public policy and which precludes individual parties from agreeing to the contrary.\r\n\r\nThe dispute in question revolved around determining which court has jurisdiction to entertain the request to enforce an arbitral award.\r\n\r\nThe Federal Supreme Court referred to Article 204 of the Civil Procedure Law:\r\n204:“If a dispute arises and the parties have not agreed on the arbitrators, or if one or more of the agreed arbitrators refrains from acting, resigns, or is discharged or removed or if an impediment to him so acting arises, and there is nothing agreed between the parties in this regard, then at the request of any of the parties the Court originally competent to hear the dispute shall appoint whatever arbitrators are required by normal litigation procedures.”\r\n\r\nHence, an award made by an arbitrator appointed by the Court, either appointed in a dispute before the Court or appointed at the request of one of the parties is classified as a court administered arbitration, to which the above rules would apply. In other words, the Court can hear the application for enforcement without a new action having to be filed. New actions must be filed when enforcement of awards issued in an out of court arbitration is sought.\r\n\r\nIn the subject case, the record confirmed that the Abu Dhabi Federal Court of First Instance had appointed an arbitrator to resolve the dispute in question, and that the arbitrator had then handed down his award. Accordingly, the arbitration was court administered. This meant that the Abu Dhabi Federal Court of First Instance was competent to hear the enforcement action, as long as it was filed prior to the taking of effect on 1 September 2007 of Decision 185.\r\n\r\nIt was ultimately determined that the lower Court had correctly applied the law. Accordingly, the Appellant’s appeal was dismissed with AED 2,000 legal fees.'),
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(78719, 4291, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nThe 2011 Decree defines the maximum rent increase for properties leased in the Emirate of Dubai during 2011 and is applicable to all types of property.\r\n\r\nIn each of the last four years, rent cap decrees have been issued to control rent increases in the Emirate of Dubai to ensure stability in the rental market and to encourage investment. The decrees are:\r\n\r\nDecree No. 42 of 2006\r\nDecree No. 27 of 2007\r\nDecree No. 1 of 2009\r\nDecree No. 62 of 2009\r\n\r\nThe 2011 Decree has left the rent cap parameters unchanged from 2009 and 2010. Specifically, the 2011 Decree provides that there should not be any rent increase if the rent for the property is up to 25% below the average similar rent. For rents that are 26% or less than average similar rent, the 2011 Decree allows for a specific percentage of rent increase of between 5% and 20% depending on the difference between the current rent for the property and average similar rent.\r\n\r\nThe 2011 Decree refers to the “Rent Index of the Emirate of Dubai” approved by RERA as the mechanism to determine ‘similar rent’.\r\n\r\nOur unofficial English translation of the 2011 Decree follows:\r\n\r\n<strong>Decree No. 2 of 2011</strong>\r\n<strong>Regarding Rentals in the Emirate of Dubai</strong>\r\n\r\nWe, Mohammed Bin Rashid Al Maktoum, Ruler of Dubai\r\n\r\nAfter perusal of Law No. 26 of 2007 regulating the Relationship between Landlords and Tenants in the Emirate of Dubai as amended,\r\n\r\nAnd Law No. 16 of 2007 establishing the Real Estate Regulatory Agency,\r\n\r\nAnd Decree No. 2 of 1993 establishing, the Special Judicial Committee for Settlement of Disputes between Landlords and Tenants as amended,\r\n\r\nAnd Decree No. 42 of 2006 regarding Rentals in the Emirate of Dubai,\r\n\r\nAnd Decree No. 27 of 2007 regarding Rentals in the Emirate of Dubai,\r\n\r\nAnd Decree No. 1 of 2009 regarding Rentals in the Emirate of Dubai,\r\n\r\nAnd Decree No. 62 of 2009 regarding Rentals in the Emirate of Dubai\r\n\r\nISSUE THE FOLLOWING DECREE:\r\n\r\n<strong>Article (1)</strong>\r\n\r\nThe maximum rent increase percentage of property units in the Emirate of Dubai leased before the enforcement of this Decree shall be as follows:\r\n\r\na. There should not be any rent increase, if the rent for the real estate unit is up to 25% below the average similar rent.\r\nb. If the rent value was 26% to 35% less than the average similar rent, the maximum rent increase shall be equal to 5% of such value.\r\nc. If the rent value was 36% to 45% less than the average similar rent, the maximum rent increase shall be equal to 10% of such value.\r\nd. If the rent value was 46% to 55% less than the average similar rent, the maximum rent increase shall be equal to 15% of such value.\r\ne. If the rent value was less than 55% of the average similar rent, the maximum rent increase shall be equal to 20% of such value.\r\n\r\n<strong>Article (2)</strong>\r\n\r\nFor the purpose of this Decree the similar rent value of the property unit means pursuant to “The Rent Index of the Emirate of Dubai” approved by RERA.\r\n\r\n<strong>Article (3)</strong>\r\n\r\nThis Decree shall be enforced from the date of its issuance and shall be published in the Gazette.\r\n\r\n<strong>Mohammed Bin Rashid Al Maktoum, </strong>\r\n<strong>Ruler of Dubai</strong>\r\n\r\n<strong>Issued by us in Dubai on 10 January 2011</strong>'),
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(78734, 4292, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nResolving disputes is a vital component of corporate risk management and strategy. The speed and force of commercial globalization and the unprecedented expansion and growth of the Middle East market is resulting in increasing numbers of domestic and cross-border disputes, which require high quality, strategic and coordinated advice and expertise.\r\n\r\nAl Tamimi &amp; Company boasts the largest, strongest and broadest dispute resolution practice in the Middle East.  Our team comprises dispute resolution lawyers based in Dubai, Abu Dhabi, Sharjah, Qatar, Saudi Arabia, Jordan, Kuwait and Iraq with experience resolving disputes in the UAE courts of each of the Emirates, as well as the Dubai International Financial Centre Courts that is second to none.\r\n\r\nLed by Hassan Arab who is one of the leading and most respected dispute resolution practitioners in the region, our team of highly qualified and experienced practitioners from the Middle East, Europe, Australia, Africa and North America brings a breadth and depth of legal expertise and experience that is unequalled in the UAE and Gulf.  Our lawyers include a team of UAE nationals with rights of audience to appear before all Courts of law in the UAE as well as a number of solicitors and barristers qualified in other jurisdictions registered to appear before the DIFC Courts.\r\n\r\nThe teams’ success is recognised by the leading independent directories, Legal 500 and Chambers, who place the UAE Dispute Resolution practice in Tier 1. Chambers Global in 2010 stated “This firm has a practically unmatched dispute resolution capacity in the Middle East” whilst Legal 500 said “Al Tamimi &amp; Company has a great reputation for local court work and a number of really good practitioners.”\r\n\r\nOur clients rely on our global perspective and our in-depth knowledge and understanding of local and regional laws.  We advise and represent clients involved in local, DIFC, regional and international commercial disputes.  Our familiarity with federal and local government, federal and local laws, the laws and regulations of the Free Zones, and with the many Courts and tribunals operating across the UAE, enables our clients to conduct their affairs with increased certainty and efficiency.\r\n\r\nIn addition to the UAE litigation practice, Al Tamimi has one of the largest and leading DIFC Courts practice groups in the UAE led by Rita Jaballah.  Al Tamimi was actively involved in the establishment of the DIFC Courts and we sit on the DIFC Courts’ Users’ Committee and DIFC Court Rules Sub-Committee.  To date we have been involved in some of the leading DIFC Court of First Instance and the DIFC Court of Appeal cases to come before the DIFC Courts.\r\n\r\nWhat distinguishes Al Tamimi &amp; Company’s Dispute Resolution practice from others, though, is that, as part of the local community, we understand the local culture. Emphasis on local knowledge and abilities has been and will continue to be a key characteristic of the practice. Having international skills and talent while remaining a local firm is one of the pillars of our success.\r\n\r\nFor more information please contact:\r\n\r\nHassan Arab\r\nHead of UAE Litigation\r\np: +97143641723\r\nE: <a href=\"mailto:h.arab@tamimi.com\">h.arab@tamimi.com</a>\r\n\r\nRita Jaballah\r\nHead of DIFC Litigation\r\np: 97143641526\r\nE: <a href=\"mailto:r.jaballah@tamimi.com\">r.jaballah@tamimi.com</a>'),
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(78745, 4293, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\n<strong>Claim and facts of the case</strong>\r\nA Commercial Action was filed before the Dubai Court by a Subcontractor (“Party A”) against (“Parties B and C” together the “Parties”). Party A requested the Court to ratify an arbitral award issued on 18 June 2008 in which the Parties were ordered to jointly and severally pay AED843,912 plus 9% legal interest from 12 July 2003 until full payment. Party A was also awarded its legal costs in the amount of AED30,000.\r\n\r\nParty A submitted that it had concluded a Sub Contracting Agreement (“The Agreement”) with the Parties. The Agreement contained an arbitration clause. Party A’s  obligations under the Agreement were to execute carpentry work, being the supply and installation of wooden doors and cupboards in a residential complex in Sharjah. Party A pleaded it carried out all the works as stipulated in the Agreement but that the Parties refused to make the final installment payment, amounting to AED843,912. As stated above, Party A received an award to this effect in its favour.\r\n\r\nConsequently, a representative of the Parties filed an interlocutory application before the Court, requesting the Court set aside the arbitral award. A number of grounds were put forward in support of the application:\r\n<ul>\r\n 	<li>The award was issued without terms of reference and/or based upon invalid terms of reference. The basis for this argument was the suggestion that the minutes of arbitration hearings neglected to state that parties neither prepared nor signed terms of reference.</li>\r\n 	<li>The arbitrator exceeded the time prescribed in the terms of reference (being 18 January 2008) to issue the award, and further, that the invalid terms of reference did not empower the arbitrator to extend the prescribed time. The Parties noted that both participants to the proceedings had refused to extend the time within which the proceedings were to be conducted. The Parties submitted that any such extensions should have been requested by the arbitrator prior to the expiration of the prescribed time (in this case the Parties alleged it was requested following the expiration of the time).</li>\r\n 	<li>The legal representative of the Parties during the arbitral hearings had not been properly authorized by the Parties to attend and make submissions at arbitral hearings. The Parties further argued their legal representative had not been duly authorised to sign the terms of reference or to extend the deadline as prescribed in the terms of reference;</li>\r\n 	<li>The arbitrator did not ensure the Parties had been adequately served.The arbitrator received his terms of reference from the execution judge and not from the Court which appointed him. The Parties argued that Article 216(b) of the UAE Civil Procedure Law precluded the execution judge from addressing the arbitrator.</li>\r\n 	<li>The arbitrator directed the Parties to pay the arbitration fees before commencing arbitration proceedings and then again before identifying the loosing party, which the Parties argued was in contravention of Article 218 of the Civil Procedure Law.</li>\r\n 	<li>The arbitrator did not deposit his award as prescribed in Article 213 of the Civil Procedure Law but deposited it with the execution judge without providing a copy to both parties within the stipulated time limit.</li>\r\n</ul>\r\n<strong>Court of First Instance</strong>\r\nThe Court of First Instance dismissed Party A’s plea that the award be enforced and ruled in favor of the Parties. Consequently Party A appealed to the Court of Appeal. Although the award was set aside, the Parties also appealed on the basis the Court of First Instance had failed to adequately address the Parties’ reasons for arguing that the award be set aside.\r\n\r\n<strong>Court of Appeal</strong>\r\nThe Court of Appeal overturned the Court of First Instance’s decision and ratified the arbitral award. Furthermore, the Court of Appeal dismissed the Parties’ interlocutory claim. Subsequently, the Parties appealed to the Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\nThe Parties argued that the Court of Appeal had erred in reversing the decision of the Court of First Instance. The Parties put forward a number of propositions in support of this plea:\r\n<ul>\r\n 	<li>The Parties relied on to Article 212 (5) of the Civil Procedure Law in arguing that one of the essential requirements of an arbitration award is the signature of the arbitrator who has issued the award. The Parties noted that the arbitrator only signed the last page of the arbitral award (which contained the decision) whereas all the other pages containing the grounds for the ultimate decision were not signed;</li>\r\n 	<li>The proceedings were not governed by valid terms of reference (or indeed no terms of reference). The Parties argued that the terms of reference had only been signed by Party A and not the Parties’ representatives.</li>\r\n 	<li>The Parties again put forward the arguments that the proceedings had expired, and the proposition that their legal representative had not been properly authorised to represent them.\r\nWith respect to the Parties’ first argument, the Court of Cassation repeated a long established principle that the most essential element of an arbitration award is the signature, on the award, of the arbitrators who have issued the award. The Court further explained that from a legal point of view; the signature is the only evidence of the existence of the award, and must refer to both the ultimate decision and the grounds reached in support of that ultimate decision. Essentially, a failure by the arbitrator to sign each page of the award would render that award invalid.</li>\r\n</ul>\r\nThe Court of Cassation found one exception to this crucial and important rule. Where the grounds or reasoning for the ultimate decision are continued on the same page as the relief ultimately ordered, and the page containing the ultimate relief is signed, that signature shall be deemed to cover the reasoning for the granting of the relief.\r\nIf the reasoning and grounds for the ultimate decision and the ultimate decision itself appear on separate pages, then all pages of the award should be signed by all arbitrators. Failing this, such award shall be invalid.\r\n\r\nIn this case, the final page of the award, which contained the ultimate decision, also contained part of the reasoning for the ultimate decision. The final page was signed; therefore the signature was deemed to cover both the grounds for the ultimate decision and the ultimate decision itself. Importantly, the Court of Cassation ruled the format of the award complied with Article 212.\r\n\r\nThe Parties’ second argument was dismissed. The Court of Cassation determined that an arbitration agreement is capable of either being incorporated as a clause (“arbitration clause”) in the contract between parties or as a separate independent agreement in the course of a dispute between both parties (this is not to be confused, however, with the doctrine of separability which prescribes that an arbitration clause in a contract is to be treated as separate from that main contract). Importantly, the Court of Cassation held that when the arbitration agreement is incorporated as a clause in the contract it exempts the participants from drafting a separate independent agreement or terms of reference in order to validate the procedure.\r\n\r\nIn this case, the Court of Cassation found that because the Court of First Instance had appointed the arbitrator on the basis that the Agreement contained an arbitration clause, there was no need to enter into separate terms of reference.\r\n\r\nFrom a further procedural standpoint, the Court of Cassation held that there was no provision in the law requiring the arbitrator to document, in the minutes of the arbitration hearings, that he had submitted terms of reference to the parties for their signature.\r\n\r\nThe Parties’ third and final argument was also dismissed. The Court of Cassation, with reference to Article 210 of the Civil Procedure Code, held as follows:\r\n<ul>\r\n 	<li>An agreement on a specific timeframe for the arbitrator to render his award would not prevent a later agreement explicitly or implicitly, extending that timeframe for one or more additional periods, or to authorise the arbitrator to determine the extension. The court may, at the request of the arbitrator or any of the parties, extend that date for the duration of time it deems appropriate for the settlement of the dispute.</li>\r\n 	<li>As such an extension of the time for arbitration, whether pursuant to the agreement of the parties or authorisation of the arbitrators or order of the court, begins to run after completion of the previous period and not separately.</li>\r\n 	<li>The arbitration proceedings shall be deemed to continue (i.e. without expiration) if the parties continue to appear, and neither party expressly pleads that the arbitration proceedings have lapsed, or if the arbitrator requests an extension from the Court before the expiry of the time limit for arbitration (the proceedings will not be held to have expired even if the Court agrees to the extension only after the arbitration time limit has expired – the crucial date is the date the request is made).</li>\r\n</ul>\r\nThe Court found that the arbitrator had requested an extension from the Court within the 6 month period of the proceedings. In this regard, the Parties’ time bar argument was dismissed.'),
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(78768, 4294, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nEmad Eldin Farouq, Senior Legal Counsel at the Dubai Land Department, is centrally involved in the process of identifying and facilitating the introduction of new legislation and regulation necessary to promote a stable, advanced and comprehensive system of property law in the Emirate of Dubai.\r\n\r\nEmad met recently with Lisa Dale, Partner &amp; Head of Property at Al Tamimi &amp; Company, to discuss landmark achievements during 2010 and what we can expect during 2011.\r\n\r\n<strong>2010 IN REVIEW</strong>\r\n\r\n<strong>Implementation of the Jointly Owned Property Law</strong>\r\nLaw No (27) of 2007 on Ownership of Jointly Owned Properties in the Emirate of Dubai was issued on 10 December 2007 and laid the foundations of a “strata scheme” form of property ownership in Dubai. The Jointly Owned Property Law contemplated the passing of further rules and regulations providing more detail on how this form of ownership would be implemented and operated.\r\n\r\n<strong>On 13 April 2010, the following Implementing Regulations were published by the Dubai Land Department as ‘Directions’:</strong>\r\n<ul>\r\n 	<li>The Direction for General Regulation Concerning Jointly Owned Properties which sets out a range of consumer and investor protections;</li>\r\n 	<li>The Direction for Jointly Owned Property Declarations which sets out the requirements for Jointly Owned Property Declarations;</li>\r\n 	<li>The Direction Concerning Preparation of Survey Plans in the Emirate of Dubai and Directions for Surveyors which set out standards for the measurement and surveying of Units and Common Area and presentation of Plans; and</li>\r\n 	<li>Direction for Association Constitution introducing a standard form of Constitution to apply to all Owners Associations.</li>\r\n</ul>\r\nWhilst acknowledging that a lot of work remains to be done to fully implement the Directions for the several projects in Dubai’s new ‘freehold areas’, Emad commented that, “the Directions have been well received in the real estate market, and have greatly contributed to structuring the jointly owned projects in accordance with international standards. Developers are working tirelessly to conform to the new regulations.”\r\n\r\n<strong>The Granted Land Decree</strong>\r\nDecree No (4) of 2010 Regulating the Ownership of Land Granted for Industrial &amp; Commercial Purposes in the Emirate of Dubai was issued, and came into effect, on 2 March 2010. This Decree introduced a mechanism to enable holders of industrial or commercial lands in Dubai to convert their granted title to freehold upon payment of a fee assessed against the market value of the land in a deemed ‘unimproved’ condition. The benefits of having freehold title rather than granted title include the ability to mortgage the property to raise capital and to sell the property on the open market (subject to applicable nationality restrictions).\r\n\r\nCommenting on this Decree, Emad said that it had proved to be a timely and welcome initiative, with many applications to upgrade titles having already been received and processed by the Granted Lands Committee at the Dubai Land Department.\r\n\r\n<strong>Executive Council Resolution No (6) of 2010</strong>\r\nExecutive Council Resolution No (6) of 2010 Approving the Executive Regulation of Law No (13) of 2008 Concerning the Regulation of the Interim Real Estate Register in the Emirate of Dubai was issued, and came into effect, on 14 February 2010. This Resolution clarified many of the provisions of Law No (13) of 2008, but in addition it introduced the following:\r\n<ul>\r\n 	<li>grounds upon which a purchaser could seek to terminate a sale contract where the developer is in breach; and</li>\r\n 	<li>grounds upon which RERA can take action to cancel a development project and the process to be followed after such cancellation.</li>\r\n</ul>\r\nOn the subject of purchasers’ rights, Emad welcomed the above initiative but indicated that more needs to be done, as we discuss below. Emad also confirmed that RERA is very active in using the new procedures, which are transparent and fair.\r\n\r\n<strong>Registration of Property in the Name of an Offshore Company</strong>\r\nOn 7 July 2010, the Dubai Land Department signed a Memorandum of Understanding with the Jebel Ali Free Zone Authority to regulate registration of property in the name of offshore companies. Emad explained, “Offshore companies incorporated in foreign jurisdictions such as Isle of Man, Bahamas, British Virgin Islands, Cayman Islands, Gibraltar, Jersey and Mauritius will not be permitted to register ownership to property in Dubai except through a Jebel Ali Offshore Company.\r\n\r\nThe new policy also applies to foreign-owned free zone or offshore companies established in other Emirates, such as in the Sharjah Airport International Free Zone and the Ras Al Khaimah Free Trade Zone”.\r\n\r\nHowever, Emad clarified that the new policy does not apply to the registration of property by the following companies, provided that the property is located in one of Dubai’s “freehold areas” designated for foreign ownership:\r\n<ul>\r\n 	<li>Limited Liability Companies incorporated in Dubai with foreign shareholding of up to 49%;</li>\r\n 	<li>Companies incorporated in any of Dubai’s free zones, such as Jebel Ali Free Zone, Dubai Multi Commodities Centre and TECOM, or in the Dubai International Financial Centre, provided that the relevant free zone authority issues a No Objection Certificate to the Land Department; and</li>\r\n 	<li>Companies incorporated in foreign jurisdictions such as the UK, USA or Germany, which are onshore in that jurisdiction.</li>\r\n</ul>\r\n<strong>The Real Estate Conciliation Committee</strong>\r\nA final welcome initiative during 2010 was the establishment of the Real Estate Conciliation Committee at the Dubai Land Department. Made up of five members, this Committee’s role is to endeavour to reach amicable resolution to disputes between developers and purchasers who are referred to it by the Land Department’s Director General. Emad indicated that the Committee has achieved notable success in a number of cases to date. Given its successful track record, the work of this Committee will continue, with a view to enhancing market stability.\r\n\r\n<strong>AGENDA FOR 2011</strong>\r\n\r\n<strong>Regulating the Professions</strong>\r\nSince the establishment of RERA in 2007, progress has been made to bring about regulation of the various professions connected with the Dubai real estate sector. Such regulation has introduced a regime of registration and licensing, minimum qualification requirements, training and professional conduct rules. So far, developers, real estate brokers and surveyors have been brought under such regulatory regime.\r\n\r\nIn 2011, Emad envisages that Regulations will be passed to regulate two further professions, namely real estate valuers and real estate conveyancers.\r\n\r\nBesides regulating practitioners, the Real Estate Valuation Regulations are expected to introduce a scientific and uniform property valuation methodology which, according to Emad, is very much needed in Dubai to bring about consistency and transparency in the way that land and buildings are valued. Emad indicated that the Dubai Land Department has finalised the draft Regulations and that they are, “currently under review by the Legal Affairs Department and are expected to be issued soon”.\r\n\r\nThe Conveyancing Regulations will be another welcome initiative. The Conveyancing Regulations will introduce the applicable criteria for practitioners to become licensed and registered. It is also anticipated that the Conveyancing Regulations will streamline the registration process for property transactions at the Dubai Land Department by allowing registered conveyancers to access the Land Department’s system online. Again, Emad indicated that the draft Regulations are under final review and are expected to be issued soon.\r\n\r\n<strong>General Reflections</strong>\r\nThe principal objective of the Dubai Land Department when shaping the legislative agenda is to achieve greater stability and fairness in Dubai’s real estate market. In Emad’s words, “The main objective of any law is to regulate the community with a view to helping it to achieve stability and progress”. Much has been achieved since Dubai’s real estate legislative process started in 2006 with the enactment of Law No (7) of 2006 Concerning Real Property Registration in the Emirate of Dubai. However, there is recognition that this is an ongoing process with more laws and regulations to come. In this regard, Emad assures us that the Dubai Land Department is committed to further progress: “I am confident that the Dubai real estate market will emerge from the financial crisis stronger, better and more attractive than before, and in this regard the Dubai Land Department will continue to play its role”.\r\n\r\n<strong>About Emad Eldin Farouq</strong>\r\nEmad joined the Dubai Land Department as Senior Legal Counsel in 2003.  During his seven year tenure with the Dubai Land Department, Emad has played a significant role in the drafting and introduction of the several property laws and regulations that we have seen implemented during this time.\r\n\r\nIn December 2008, Emad was awarded “Best Government In-House Counsel” by the Dubai Corporate Counsel Group.'),
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(78787, 4295, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\n<strong>Claim</strong>\r\nThe Claimant, an individual, filed an action against a local broker (the First Defendant) and a Developer (the Second Defendant) (collectively referred to as “the Defendants”). The Claimant requested the Court to order the Defendants to jointly pay the amount of AED 165,710 plus 12% interest, calculated from the date the legal action was initiated until full payment.\r\n\r\n<strong>Facts of the Claim</strong>\r\nOn 30 January 2008 the Claimant concluded a booking form with the Second Defendant, which related to the reservation of a unit in a certain project. The price of the unit was AED 828,500 (the total amount). The Claimant averred that he made three installment payments which amounted to AED 165,710, to the First Defendant. The Claimant contended that First Defendant provided signed receipts evidencing its receipt of the payments. The Claimant contended that after signing the contract applicable to the unit, the First Defendant signed an exhibit to the contract in its capacity as “seller” and requested the Claimant to deposit the installments in the First Defendant’s bank account.\r\n\r\nFinally, the Claimant contended the Second Defendant failed to start construction of the project and failed to register Claimant’s unit in the Interim Real Estate Register (IRER). The Claimant contended this was a clear violation of the contract, and as a result it should be considered void.\r\n\r\n<strong>Court of First Instance</strong>\r\nThe Court of First Instance ruled in favor of the Claimant and terminated the contract. In addition, the court ordered both Defendants to pay the amount of AED 165,710 plus 12% interest (calculated from the date of the legal action). The Second Defendant appealed the decision to the Court of Appeal.\r\n\r\n<strong>Court of Appeal</strong>\r\nThe Court of Appeal amended the decision handed down by the Court of First Instance and directed both Defendants to pay jointly the amount of AED 165,710 to the Claimant, without interest. The First Defendant appealed to the Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\nBefore the Court of Cassation, the First Defendant argued that the Court of Appeal had erred in its decision, as it failed to rely on a fundamental defense concerning the First Defendant’s purported lack of capacity. The First Defendant contended that the contract had been concluded between the Claimant and the Second Defendant only, and it was not binding on the First Defendant. Further, the First Defendant argued, that in the brokerage contract concluded with the Second Defendant, he had undertaken only to source a third party (the Claimant) to buy a unit in the project, and that his mission was limited to inviting the parties to negotiate the terms and conditions of the contract. The First Defendant further suggested his role in the transaction concluded with the execution of the contract, and he should not be held liable thereafter.\r\n\r\nThe Court of Cassation overturned the lower Court’s decision. The Court held that the First Defendant’s ambit, as a real estate broker, was, limited to sourcing potential brokers without him being liable to the parties during the contract execution stage. Essentially, the Court of Cassation concluded that the First Defendant should be considered as a broker only, and it lacked capacity with respect to the execution of the contract.\r\n\r\nWith respect to the Second Defendant, the Court of Cassation found it had failed both to commence construction work for the project and to register the Claimant’s unit in the interim register. The Court of Cassation found this meant the Second Defendant had failed to adhere to its contractual obligations.\r\n\r\nThe Court of Cassation also determined that the lower Courts erred in considering the First Defendant as a party to the action. This was notwithstanding the fact the First Defendant had received payment from the Claimant – the Court of Cassation held this did not alter the First Defendant’s capacity as broker.\r\n\r\nThe decision of the lower Court, which ordered the First and Second Defendants to pay the Claimant jointly, was overturned. The First Defendant was held not to be liable to the Claimant due to his lack of capacity.'),
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(78806, 4296, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nRegistering a distinctive and/or easy to remember domain name is only the first step, and probably the easiest step in effective domain name governance.  Like trademarks, domain names must be protected.  However, in addition, domain name administration must be given attention.\r\n\r\nOnce a domain name is secured, it should be managed properly. This can be achieved through ensuring selected individuals within the organization are given access to the account and that suitable domain continuity plans are put in place. By doing so, this may pre-empt any abuse of account information. As an example, individuals with access to the account, may leave the organization without notice and not hand over the administrative details for the series of domain names. These people may assume control of the domain and may unilaterally change details or information pertaining to the domain name such as ownership rights of the account. The result would be an apparent change of ownership from the rightful owner to a third party. This can result in the company being held ‘to ransom’.\r\n\r\nIn as much as there is traditional trademark infringement where trademarks are used without authorization by the trademark owner, similar principles apply in respect of domain names. Third parties unrelated to the owner of the website could obtain registration of a domain name which is identical or similar to either a domain name or trademark belonging to another party.  Such activities are commonly referred to as ‘cyber squatting’.\r\nIn addition to cyber squatting, there is also a risk of activities referred to as ‘phishing’.  These activities are designed to steal user identities where users are deceived into disclosing personal data through websites, emails or phone calls. Where websites are used, the domain names are often similar to the legitimate websites.  These deceptive websites tend to incorporate trademarks belonging to the trademark owner and information from the legitimate websites. The end result is that the look and feel of the deceptive website is similar to the legitimate website. Once users are deceived into interacting on deceptive websites, personal information is entered and disclosed into the system.\r\n\r\nE-commerce in the Middle East, including the United Arab Emirates, is growing rapidly.  Domain name disputes are now becoming more common in the UAE and the relevant authority which regulates and operates the .ae domain names in the UAE is the .aeDA. This authority was established in 2007 by the Telecommunications Regulatory Authority (TRA). The .aeDA is responsible for setting up and enforcing policies with regard to the operation of .ae ccTLD. It also facilitates disputes on domain names.\r\n\r\nAs mentioned above, the choice of a domain name often takes into account ownership of and reference to a trademark already in use. This is reflected in the general eligibility criteria of the .ae domain name policy. The policy states that the grant of a domain name is not a grant for any intellectual property rights which are proprietary rights.  Accordingly, the applicant for the domain name has to ensure they have the right to use the domain name and that it will not violate any 3rd party intellectual property rights. Where the domain name sought is classified as ‘restricted’ such as ‘co.ae’, ‘net.ae’, ‘org.ae’, ‘sch.ae’, ‘ac.ae’, ‘gov.ae’ and ‘mil.ae’, there is a positive requirement that the domain name should incorporate one of four criteria, a prior trademark registration being one of them. The existing domain name policy recognizes that trademarks are often taken into account when domain names are chosen.\r\n\r\nThe same principle is reflected in the .aeDA dispute resolution policy where recognition is given to the proprietary rights subsisting in a trademark which, as mentioned, is normally the element upon which a brand is built upon.\r\n\r\n<strong>The .aeDA policy mirrors the Uniform Dispute Resolution Policy (UDRP) by ICANN where a third party, normally the trademark owner, would raise certain grounds for his complaint, for example:</strong>\r\n<ul>\r\n 	<li>that the domain name is identical or confusingly similar to his trademark in which he has rights; or</li>\r\n 	<li>that the domain name holder has no rights or legitimate interests in the domain name; or</li>\r\n 	<li>that the domain name has been registered and or used in bad faith.</li>\r\n</ul>\r\n<strong>The .aeDA dispute resolution policy provides instances of what amounts to evidence of registration or use in bad faith. Examples as follows:</strong>\r\n<ul>\r\n 	<li>The domain name holder secures the domain name for the purposes of selling, renting or transferring the domain name to the trademark owner for an amount exceeding the cost directly related to the domain name.</li>\r\n 	<li>The domain name is secured to prevent the trademark owner from incorporating his trademark in a corresponding domain name.\r\nThe domain name has been secured primarily for the purpose of disrupting the business of a competitor.</li>\r\n 	<li>The domain name is used to divert users to that website by creating a likelihood of confusion with the complainant’s trademark in terms of origins, affiliation or endorsement by the complainant trademark owner.</li>\r\n</ul>\r\nThe .aeDA dispute resolution policy does not require that the complainant’s trademark be registered.  However proof of registration of the trademark in the UAE would be cogent evidence of the complainant’s proprietorship in the trademark. This can be inferred from the evidence required of the domain name holder where he may show he or his organization is commonly known by the domain name even if he has not acquired any rights in the trademark which forms or is part of the disputed domain name.\r\n\r\nReference is made to a dispute brought under the WIPO Arbitration and Mediation Center by the Abu Dhabi Future Energy Company PJSC, as the complainant against an individual, John Pepin, in relation to the disputed domain names masdarcity.com and masdarcity.net. It was taken into account by the panel that both the registered and unregistered trademark rights of the complainant where regard was also had to the commercial activities of the complainant upon which the trademark MASDAR was used in relation to.  In particular, the panel held ‘A complainant may assert unregistered trademark rights by showing that the name has become a distinctive identifier associated with the complainant or its goods and services. Relevant evidence of such ‘secondary meaning’ may include the nature and extend of advertising, consumer surveys and media recognition’. Given that the .aeDA dispute resolution policy is similar to the UDRP, similar outcomes can be expected from similar disputes.\r\n\r\nThe panel also made reference to the common law trademark rights, however, common law is not applied in the UAE.  It is suggested a local panel considers the statutory provisions under the Commercial Transaction Code which prohibits unfair competition where among others ‘a trader may not disclose such matters as are inconsistent with the reality regarding the origin or description of his goods, or any other matters pertaining to their nature’.. ‘nor may he resort to any other misleading means, with the intent thereby to usurp the customers of a  competitor trader; or else, he shall be liable for compensation’.\r\n\r\nTrademark owners which have built a brand around their trademarks are able to protect their brands when used without authorization by another party within the context of domain name registered or disputed in the UAE. However, organizations should ensure that their ‘house is in order’ when it comes to the administration of domain names. In this way, your business can achieve effective domain name governance.'),
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(78829, 4297, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nThe shape of a product is often significant value to a business. This article briefly considers the use of trade mark law and industrial design law to secure the intellectual property value of a product with a commercially significant shape.\r\n\r\n<strong>INTRODUCTION TO TRADEMARKS AND INDUSTRIAL DESIGNS:\r\n</strong>\r\n<strong>Trademarks:</strong>\r\nA ‘trademark’ is a word, name, sign, symbol, colour or shape which is used to identify a particular product or service offered by a particular manufacturer or from a particular source.\r\n\r\nA trademark distinguishes the product of a particular manufacturer from similar products offered by others. The owner of a registered trademark has the right to prevent others from using the same or similar trademark on their products.\r\n\r\nA registered owner of a trademark can prevent use and registration of an infringing mark based on the basic rule: a trademark is not available for use and registration if it resembles a trademark already registered and the resemblance is likely to cause confusion, mistake or deception.\r\n\r\n<strong>Industrial Designs:</strong>\r\nAn ‘industrial design’ is the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.\r\n\r\nIndustrial designs are applied to a wide variety of products of industry and handicraft, from technical and medical instruments to watches, jewelry, and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.\r\n\r\nTo be protected under most national laws, an industrial design must appeal to the eye. This means that an industrial design is primarily of an aesthetic nature, and does not protect any technical or functional features of the article to which it is applied.\r\n\r\nUnlike trademarks, to be protected, an industrial design must be novel.  The display of the product in public or in the marketplace will destroy the novelty of a design.  Thus, protection for an industrial design should be in place before the launch of the product in question.  In this regard, it is pertinent to note there is no requirement for the industrial design to be registered to meet the novelty requirement.  An application for registering the design lodged properly before the industrial design registry of the relevant country is sufficient. Once an industrial design is applied in a country which is member to the Paris Convention, a six months grace period will be available for the applicant to apply for the design in other member countries of interest, claiming priority from the base application.  Launch of the product in any such countries during the six months priority period will not destroy the novelty of the design.\r\n\r\n<strong>Shape Trademark vs. Industrial Design:</strong>\r\nFrom the definition of a trademark above, it is noted that shape of a product is also qualified to be protected as a trademark.  Although shape trademark protection is recognized by most of the countries in the GCC, industrial design is the correct form of protection to protect the shape and configuration of an article.\r\n\r\nThe ornamental or aesthetic nature of an article can be protected by registering a shape trademark.  One benefit of protecting a shape trademark is the term of protection of a trademark is perpetual, as it can be renewed any number of times, whereas the protection term of an industrial design is fixed to a maximum of 15 years in most jurisdictions. Furthermore, in the GCC, courts are familiar with trademarks and thus laws for enforcing trademark rights are more developed for the laws for design rights.  In fact, design regimes are still in the developing stage.\r\n\r\nBased on the above, ensuring protection is in place for an article by way of shape trademark registration, as well as industrial design registration, can be considered, subject to both the forms of protection being available in the country of interest.  Other considerations are significance of the countries in question to the business and the budget.\r\n<table border=\"1\" width=\"450\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\"><strong>Country</strong></td>\r\n<td><strong>Shape Trademark</strong>\r\n<strong>registration</strong></td>\r\n<td><strong>Industrial Design</strong>\r\n<strong>registration</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Bahrain</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Kuwait</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Oman</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Qatar</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>No</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Saudi Arabia</strong></td>\r\n<td><strong>No</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>UAE</strong></td>\r\n<td><strong>Yes</strong></td>\r\n<td><strong>Yes</strong></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\nThe table above shows the status of the GCC countries in terms of registrability of shape trademarks or industrial designs or both.\r\n\r\nHow similar the infringing products should be in order to take legal action is always a question of degree. However, as a general rule, an object with a design, that is substantially similar or confusingly similar to the design claimed in an industrial design or in a shape trademark cannot be made, used, copied or even imported into the country in question.'),
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(78848, 4298, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nIn discussing the aforementioned question, we will refer to the UAE Federal Law No. 31 for 2006 (the ‘UAE Patent Law’), the Paris Convention for the Protection of Industrial Property (the ‘Paris Convention’) and the Patent Cooperation Treaty (‘PCT’).\r\n\r\nThe UAE Patent Law does not provide a clear-cut answer, although Article 11 (1) of the UAE patent law provides some guidance:\r\n\r\nAn application may contain a request to claim priority from an application that has been filed in another state being a party of an agreement or a treaty with the UAE. In this case, the application date and number of the corresponding filed application should be indicated together with the name of the state.\r\n\r\nUpon interpreting Article 11 (1-2) of the UAE patent law, we find that there are two conditions to claim priority in the UAE:\r\n<ul>\r\n 	<li>The priority right shall be claimed from a corresponding filed patent application in another state being a party of an agreement or a treaty with the UAE; and</li>\r\n 	<li>The priority application date, number and state shall be indicated in the UAE patent application.</li>\r\n</ul>\r\nAccordingly, any application filed in another state being a party of an agreement or a treaty with the UAE is adequate to establish the right to claim priority, regardless of the subsequent fate of this application.\r\n\r\nOn the other side we find that article 4 A(2-3) of the Paris Convention provides clear guidance for claiming priority from invalid patent applications by stating that:\r\n\r\n2. Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority.\r\n\r\n3. By a regular national filing it is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.\r\n\r\nIn short, the right of priority is based on a regular national filing whatever the subsequent fate of the application. With reference to the priority right under the PCT, Article 8(1) and (2)(a) of the PCT states:\r\n\r\n1.The international application may contain a declaration claiming the priority of one or more earlier applications filed in or for any country party to the Paris Convention for the Protection of Industrial Property.\r\n\r\n2. a.  The conditions for, and the effect of, any priority claim declared under paragraph (1) shall be as provided in Article 4 of the Stockholm Act of the Paris Convention for the Protection of Industrial Property.\r\n\r\nThe right of priority can be claimed in the UAE from an invalid (withdrawn, abandoned or rejected) patent application.'),
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(78870, 4298, '_yoast_wpseo_metadesc', 'In discussing the aforementioned question, we will refer to the UAE Federal Law No. 31 for 2006 (the ‘UAE Patent Law’), the Paris Convention for the Protection of Industrial Property (the ‘Paris Convention’) and the Patent Cooperation Treaty (‘PCT’).'),
(78871, 4299, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nThe (.sa) domain is a coveted one as it is arguably the definitive identifier in cyberspace as the domain of choice for entities connected to Saudi Arabia, who would want to own a (.sa) domain name in cultivating one’s cyber presence in reaching the lucrative Saudi Arabia market.\r\n\r\nThe Saudi Network Information Centre (“SaudiNIC”) has announced that the all important (.sa) domain name regime is now available for registration.  This means that applicants wishing to own domain names using the (.sa) domain such as (<a href=\"http://www.yourcompany.sa/\">www.yourcompany.sa</a>) may now register their domain names in Saudi Arabia in two phases as follows:\r\n\r\n<strong>Sunrise Phase</strong>\r\nThis Sunrise Phase runs from January 10, 2011 to March 7, 2011. This period represents a priority period for existing Third Level (3LD) Domain Name Registrants who had registered their 3LD domain name before the Sunrise Phase.\r\n\r\nOnly qualified registrants (individual or entity) may apply during the Sunrise Phase to register a (.sa) Second Level (2LD) domain name with a label identical to that of their existing 3LD domain name provided that the 3LD domain name was registered before the Sunrise Phase and its registration application date was before the qualification date.\r\n\r\nThus, those owning existing registrations for e.g. <a href=\"http://www.yourcompany.com.sa/\">www.yourcompany.com.sa</a> may apply for <a href=\"http://www.yourcompany.sa/\">www.yourcompany.sa</a>\r\n\r\n&nbsp;\r\n\r\nWhere two applications from different qualified registrants are received for the same 2LD domain name during the Sunrise Phase then priority will be given first to governmental and semi-government organisations i.e. (gov.sa) and then priority will be based on the earliest registration date.\r\n\r\n<strong>Landrush Phase</strong>\r\nFollowing the Sunrise Phase, the Landrush Phase begins where applicants (individual or entity) can register (.sa) 2LD domain names on a strictly (first come, first served) basis.\r\n\r\nThe usual requirements of domain name registration apply i.e. the applicant can either be:\r\n<ul>\r\n 	<li>An entity physically located in Saudi Arabia;</li>\r\n 	<li>A natural person, not underage, with a Saudi national identification card or equivalent document issued by the Ministry of Interior of Saudi Arabia;</li>\r\n 	<li>An entity with a registration or license issued by a pertinent authority in Saudi Arabia; or</li>\r\n</ul>\r\nAn owner of a trademark or trade name that is registered in Saudi Arabia.\r\nImportantly, foreign trade mark owners should note that if they do not have a business presence or licensed to operate in Saudi Arabia, they must have a trade mark or trade name registration in Saudi Arabia.'),
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(78890, 4300, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nThe Dubai First Instance court recently issued a decision, in favour of one of our clients, quashing the claimant’s claim of compensation for damaged cargo after it fell from one of the port’s cranes. This verdict is so important, because for the first time,the court followed a different approach whereby they accepted that actual delivery is delivery stipulated in the Bill of Lading as opposed to construing physical delivery as the only legal delivery. Indeed, the Dubai First Instance court has deviated from the previous established legal court doctrine which separated the “discharge” operation from the “delivery”, whereby it was considered that delivery could take place “by placing the cargo, in its B/L described status, at the actual possession of the receiver or its agent in manner which would enable such receiver or agent to examine the cargo even if the cargo was not yet discharged.”<sup> 1 </sup>\r\n\r\nAccording to previous Dubai Court of Cassation rulings, delivery is not:\r\n\r\na. the notification of the receiver that its cargo has arrived;\r\nb. the hand over of the DO  to the receiver;\r\nc. the discharge of the cargo at the port which would constitute a delivery as per the terms of Article 275 of the Law.\r\n\r\n“The responsibility of the carrier on the cargo shall end by placing such cargo, in its Bill of Lading described status, at the actual possession of the receiver or its agent in manner which would enable such receiver or agent to examine the cargo.” <sup>2 </sup>\r\n\r\nThe Court went even further by considering that “the action of discharging the cargo, in itself, and placing it at the port shall not be considered as a delivery which would relieve the carrier from its responsibility of preserving the cargo. Also, the non-attendance of the receiver to take delivery shall not relieve the carrier from its responsibility to preserve the cargo until such time delivery has taken place or the carrier has placed the cargo under the hands of a court appointed custodian as per article 269 <sup>3 </sup>  of the Law.”<sup> 4 </sup>\r\n\r\nThe consequence of this principal extended the carrier’s liabilities towards the receiver and the non-direct responsibility of port authorities on any damages on the cargo even if such cargo “was delivered to the port authorities and stored at it’s storage”  as long as the cargo was not physically delivered to the receiver.\r\n\r\nHowever; this has clearly been changed by Dubai First Instance Court ruling No. 812/2009 Plenary Commercial dated 22/12/2010 when the court considered cargo delivery legally, physically and actually performed and concluded by the carrier when the cargo was delivered to the receiver as per the terms of the B/L . The verdict went on further to consider the cargo damage as the responsibility of the receiver and port authorities as the carrier handed over the cargo safe and sound as per the terms of the B/L. This decision disregarded the actual delivery principal followed previously by the courts and has finally accepted the B/L as a contract determining the carrier’s liability towards the receiver.\r\n\r\nAlthough this decision is not yet final, it is considered a very welcomed development confirming the carrier’s liabilities towards the receiver.\r\n\r\n<sup>1 </sup>Dubai Cassation Court ruling No. 268/1997 dated 8/11/1997.\r\n\r\n<sup>2 </sup>Dubai Cassation Court ruling No. 268/1997 dated 8/11/1997.\r\n\r\n<sup>3 </sup>When a party having the right to take delivery of the goods does not attend to take delivery or if such party refuses to take delivery of the same the carrier shall have the right to apply to the competent court for an authorization to place the cargo with a custodian appointed by the court. The carrier shall have the right request the sale of all or part of the cargo against its freight.\r\n\r\n<sup>4 </sup>Dubai Cassation Court ruling No. 268/1997 dated 8/11/1997.'),
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(78913, 4301, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\n<strong>OBJECTIVE</strong>\r\nThe objective of this article is to introduce Dubai Techno Park (Techno Park) as jurisdiction in which businesses can set up.  This jurisdiction offers many benefits associated with operating in both freezones and the mainland .\r\n\r\n<strong>Introduction </strong>\r\nDubai Techno Park was formed by an Emiri decree in 2002 by His Highness Sheikh Mohammed bin Rashid Al Maktoum, UAE Vice President, Prime Minister and Ruler of Dubai as a fully owned subsidiary of Economic Zones World. Dubai Techno Park is an industrial complex, located in the heart of Dubai’s industrial zone  and provides high standard facilities. It covers an area of 21 million Sqm. of land and is considered as the only technology park in the region located between a world-class seaport and an international airport. The main aim of Techno Park is to attract major manufacturing and industrial companies to set up their industrial units in Dubai and be able to penetrate the UAE and GCC market.\r\n\r\nCurrently, Techno Park is home to some of the world’s most high-profile companies specializing in technology, oil, gas and petrochemical industry and other industries which makes Techno Park one of the largest industrial hubs in the Middle East.\r\n\r\n<strong>Is Technopark a Free Zone?</strong>\r\nIt is generally assumed that Techno Park is a free zone which is not the case. Entities established in Techno Park are treated as if established in the main land of Dubai, i.e. such entities are able to sell and distribute their products outside Techno Park without payment of the custom duty applied in case of setting up a company in one of the free zone in Dubai.  There is the added advantage that a foreign company can register a branch to carry on industrial activities in its manufacturing unit which is not permissible on the mainland of Dubai.\r\n\r\nThus, by registering a branch of a foreign company in the Techno Park, a foreign company will enjoy 100% ownership and access to Dubai and UAE market. Similar to a free zone the Techno park provides a full range of administration services such as issuing residence visas for employees of entities to be established within Techno Park.\r\n\r\n<strong>TYPES OF COMPANIES WHICH CAN BE FORMED AT TECHNO PARK</strong>\r\n\r\nA Limited Liability Company\r\nThe number of shareholders should be two to fifty. The liability of the shareholders is limited to their share participation in the capital, however, at least 51% must be owned by a UAE national.\r\n\r\n<strong>A Sole Establishment </strong>\r\nSole establishment should be owned by a sole owner who is liable for all the establishment liabilities. The owner must be a GCC or UAE national.\r\n\r\n<strong>A Civil Company</strong>\r\nFor activities involving the use of professional skill acquired by education and experience in a specific field such as business consultancy, a civil company can be formed as civil partnerships in accordance with the Federal Civil Transactions Law No. (5) of 1985 with its amendments.  Professional companies may be 100% foreign owned.\r\n\r\n<strong>Branch Office</strong>\r\nBranch offices can be set up by the following:\r\n<ul>\r\n 	<li>A Branch of a Free Zone Establishment (FZE).</li>\r\n 	<li>A Branch of a Free Zone Company (FZCO).</li>\r\n 	<li>A Branch of an L.L.C. (covers all Limited Liability Companies in UAE).</li>\r\n 	<li>A Branch of a Sole Establishment based in the Emirate of Dubai.</li>\r\n 	<li>A Branch of a GCC Company.</li>\r\n 	<li>A Branch of a Foreign Company.</li>\r\n</ul>\r\n<strong>TO RECAP</strong>\r\n\r\nBenefits of Techno Park:\r\n<ul>\r\n 	<li>100% foreign ownership of industrial units in case of branch of a foreign or a free zone company.</li>\r\n 	<li>0% percent corporate tax rate.</li>\r\n 	<li>Capital and profits may be repatriated.</li>\r\n 	<li>No currency restrictions.</li>\r\n 	<li>No restrictions on hiring foreign employees.</li>\r\n 	<li>Long-term lease agreement up to 15 years.</li>\r\n 	<li>One stop shop (including licensing and related Government services).</li>\r\n 	<li>World-class infrastructure and single-window clearance</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nThe advantages associated with setting up industrial units in the Techno Park are aligned with the objective of the Government of Dubai to make the Emirate a prime location for industrial activity. Techno Park is an ideal jurisdiction to set up for industrial activity in a free zone environment with the benefits normally associated with a mainland entity.'),
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(78928, 4302, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nThe jurisdiction of the UAE courts is regulated by Law No. 11 of 1992 (the “Civil Procedure Law”). Articles 20, 21 and 24 of the Civil Procedure Law provide for original jurisdiction and power to the UAE courts to accept and hear any dispute in defined circumstances. These Articles are characterized as Pubic Order provisions and any agreement contrary to them dealing with foreign law and jurisdiction is void.\r\n\r\nLawyers, across the GCC, are often advising on commercial transactions that must take the laws of multiple jurisdictions into account.\r\n\r\nRecently, the Abu Dhabi Court of Appeal handed down a decision in once such transaction that has serious implications for transactions with a potential UAE nexus that are based on documentation governed by foreign law and selecting foreign courts.\r\n\r\nUsing several articles of the Civil Procedure Law the court took original jurisdiction based on a promissory note given by a party with an Abu Dhabi address that was ancillary to a transaction with multiple GCC parties and governed by English law. In taking such jurisdiction, the court also applied UAE law to the promissory note, notwithstanding the parties’ express intent to be governed by English law and subject to English jurisdiction. The analysis of this case follows.\r\n\r\n<strong>Background </strong>\r\nParty A and Party B entered into a Master Agency Agreement for the sale of commodities covered by an agency contract (the “Agreement”) whereby Party A appointed Party B to act as its agent for the purpose of investing Party A’s money in purchasing commodities from suppliers on a COD basis then selling them to purchasers for immediate delivery on a deferred payment basis on the terms and conditions set out in the Agreement.\r\n\r\n<strong>Claim </strong>\r\nParty A brought legal action before the Abu Dhabi Court of First Instance against Party B seeking judgment against Party B for USD 33 Million or its UAE Dirham equivalent of AED 121 Million along with an order for court fees, costs and advocate’s fees.\r\n\r\n<strong>Facts of the Claim </strong>\r\nOn several dates, Party B was given certain amounts of money under the terms of the Agreement and purchased international commodities from different suppliers on behalf of Party A then sold them on its behalf to itself on the basis that payment would be made to Party A at its offices in the UAE. As a result, Party B executed four promissory notes in favour of Party A of total value USD 33 Million.\r\n\r\nParty B defaulted on its installments due to Party A which resulted in the acceleration of payments under the Agreement.\r\n\r\nA few weeks later, Party A served Party B with a notice of acceleration under the Agreement and requested immediate payment for all investment transactions involving the promissory notes.\r\n\r\nParty A filed an application for the provisional attachment of Party B’s assets and accordingly the court issued an order directing the provisional attachment of all Party B’s funds in banks in the UAE up to the amount of USD 33 Milliom or its UAE Dirham equivalent.\r\n\r\nParty A holds promissory notes in the amount of the debt which were due and payable at its UAE offices.\r\n\r\n<strong>Abu Dhabi Court of First Instance </strong>\r\nAbu Dhabi Court of First Instance ruled in favour of Party A by ordering Party B to pay, to Party A, the sum of USD 33 Milliom or its UAE Dirham equivalent at the date of payment while confirming a prima facie provisional attachment up to the amount of the award, together with costs and minimal advocate’s fees.\r\n\r\nParty B subsequently appealed to the Abu Dhabi Court of Appeal.\r\n\r\n<strong>Abu Dhabi Court of Appeal </strong>\r\nParty B requested the Court to reverse the decision of Abu Dhabi Court of First Instance on the following grounds:\r\n<ul>\r\n 	<li>Error in the application and interpretation of the law. Party B submitted that the UAE Courts have no jurisdiction over the matter. In addition, Party B noted the parties’ contractual agreement to English law and jurisdiction except to the extent it may conflict with Islamic Sharia.</li>\r\n 	<li>Because Jurisdiction is matter of public policy and Party B may raise a plea as to jurisdiction at any stage of the proceedings, the court was requested to declare of its own motion that it had no jurisdiction in the matter.</li>\r\n 	<li>The Statement of Claim did not indicate an address or domicile for Party B in the UAE and gave it’s address as Al Khobar, Saudi Arabia, meaning that Party B is a foreign company with no domicile or residence in the UAE giving nexus for UAE Courts to be vested with jurisdiction.</li>\r\n 	<li>The action does not concern property in the UAE but relates to the performance of an agency contract outside the UAE in the Kingdom of Saudi Arabia.</li>\r\n 	<li>The UAE Courts have no jurisdiction over the matter pursuant to Articles 20 and 21 of the Civil Procedure Code and that the Agreement was performed in Saudi Arabia where Party B is domiciled.</li>\r\n 	<li>The Court dismissed Party B’s argument and in doing so, ruled in favour of Party A according to the following facts and interpretation of Articles 20, 21 and 24 of the Civil Procedure Code:</li>\r\n 	<li>The Court noted the provision for English law and English jurisdiction in the Agreement signed between Party A and Party B. The provision provides that: “This Agreement shall be governed by and executed and performed in accordance with English law except to the extent that it may conflict with the provisions and principles of Islamic Sharia and the parties hereby submit to the jurisdiction of the English courts for the purposes of any proceedings arising out of or relating to this Agreement.”</li>\r\n 	<li>The Court noted that the four promissory notes state that “the sum payable hereunder is payable to Respondent/ Abu Dhabi Islamic Bank of P.O. Box [ x ], Abu Dhabi at your offices in the UAE”</li>\r\n</ul>\r\n<strong>The Court opined as follows:</strong>\r\nJurisdiction is part of public policy and is an attribute of sovereignty, UAE Courts are necessarily excluded from hearing cases involving property abroad but otherwise retain original jurisdiction in the situations described in Articles 20 and 21 of the Civil Procedure Code and any agreement contrary to Articles 20 and 21 dealing with foreign jurisdiction is void as per Article 24 of the Civil Procedure Law.\r\n\r\n<strong>ARTICLE 20 PROVIDES:\r\n</strong>“With the exception of actions in-rem concerned with real estate abroad, the courts have the power to hear actions brought against UAE citizens and against ex-patriates having an address or place of residence in the country.”\r\n\r\n<strong>ARTICLE 21 PROVIDES:\r\n</strong>“The courts have the power to hear an action against a foreigner with no address or place of residence in the country in the following circumstances:\r\n<ul>\r\n 	<li>If he has an elected address in the country.</li>\r\n 	<li>If the action relates to assets in the country or to a citizen’s estate or to a legacy mad  in the country.</li>\r\n 	<li>If the action relates to an obligation concluded or executed or to be executed in the country or to a contract to be legalized in the country or to a death occurring in the country or to a bankruptcy declared in a court of the country.</li>\r\n 	<li>If the action is brought by a wife with an address in the country against a husband who previously had an address in the country.</li>\r\n 	<li>If the action relates to support in respect of a parent, wife, minor, child in guardianship, affiliated child or personal or financial guardianship, if the party requesting support, the wife, minor or child in guardianship has an address in the country.</li>\r\n 	<li>If the action is concerned with the registration of births, marriages and deaths and the plaintiff is a citizen or an alien with an address in the country, where the defendant has no known address abroad or where national law must apply in the action; 7. If one of the defendants has an address or a place of residence in the country.”</li>\r\n 	<li>Based upon the jurisdiction given to the UAE Courts under Article 20 of the Civil Procedure Code, except for actions in rem concerning real property abroad, UAE Courts shall hear actions brought against UAE citizens and aliens who maintain domicile or a place of residence in the UAE.</li>\r\n 	<li>This general principle of jurisdiction specifies the circumstances in which UAE Courts have jurisdiction. Under Article 21 of the Civil Procedure Law, the UAE Courts shall have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE in the following cases.</li>\r\n 	<li>if he has elected domicile in the UAE;</li>\r\n 	<li>if the proceedings concern property in the UAE, inheritance accruing to a citizen or an estate opened therein; and</li>\r\n 	<li>if the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE, a contract to be attested in the UAE, an event that occurred in the UAE or bankruptcy declared by a UAE Court.</li>\r\n 	<li>According to Article 21, UAE courts have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE if the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE.</li>\r\n 	<li>The four promissory notes in question confirm that they are payable at Party A’s offices in the UAE noting that Party A’s head office is in Abu Dhabi. The place of performance is accordingly Party A’s premises in Abu Dhabi. Therefore, the Agreement which states that the performance of the contract shall be governed by English law contradicts the international jurisdiction of the UAE Courts and is void according to the aforementioned Article 24 of the Civil Procedure Law. Party A may therefore bring the instant action before an appropriate court within Abu Dhabi’s independent court system, including the Court of First Instance, against Party B as an alien who maintains no domicile or residence in the UAE as per the exclusion under Article 21/3. Since jurisdiction in the matter belongs to the Abu Dhabi Court of First Instance, appeal was dismissed.</li>\r\n</ul>\r\n<strong>ARTICLE 24 PROVIDES:\r\n</strong>“Any agreement contrary to the provisions of this section is a nullity”.\r\n\r\nBased on the pointes outlined above, the Abu Dhabi Court of Appeal decided to admit the appeal in form and, on the merits, to dismiss the appeal and uphold the appealed decision with court fees, costs and minimal advocates’ fees.'),
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(78934, 4302, 'pageSummary', 'The jurisdiction of the UAE courts is regulated by Law No. 11 of 1992 (the “Civil Procedure Law”).'),
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(78950, 4302, '_yoast_wpseo_metadesc', 'The jurisdiction of the UAE courts is regulated by Law No. 11 of 1992 (the “Civil Procedure Law”).'),
(78951, 4303, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nQatar has had a busy start to the New Year; Asian Cup, Qatar Open, Qatar Women’s Tennis, the excitement of the FIFA 2022 victory bid, and a list of real estate development projects that will reshape the landscape and infrastructure of this land.\r\n\r\nSo, what does a tiny oil rich nation with worlds largest reserves of LNG (liquefied natural gas) do with its wealth?  It builds a future by educating its people, providing access to the best training and medicine available, and builds an infrastructure to be proud of.  This historical nation has certainly earned its place in history. As a result of the incredible growth in Qatar, businesses locally and from around the globe have enjoyed gains.\r\n\r\nAl Tamimi &amp; Company has recognized the opportunity for growth in Qatar and has been taking steps to further strengthen its position as a top law firm in Qatar.  In December, Jay Fortin joined Al Tamimi &amp; Company International as a Partner and the head of the Qatar office. Formerly of Patton Boggs, Jay has a wealth of legal experience internationally and within the GCC region.  He has taken great steps in setting up a solid approach to expand our presence in Qatar.\r\n\r\nWith the growth Al Tamimi is experiencing in Qatar, it has been decided that Al Tamimi will be moving its current office to a more centralized area in the main business district of Doha. Having now identified several suitable QFC approved buildings, which will accommodate our growing team, we have engaged several contractors to design and bid our fit out costs. The expected move should take place later this year.\r\n\r\nOur current staff consists of a dynamic team that brings a multitude of experience to both Al Tamimi and the clients we serve.  Our current team is: Ahmed El Amoury, Karim Shiyab, Veronica Oryem, Jay Fortin, Sarah Lisgo, Ahmed Jaafir, Manal Aloush, Kamal Hafez, Sami Fakhoury, Wong Yuen Ping, Sharifah Hamzah, Stefan Jury, Frank Lucente &amp; Hani Al Naddaf.\r\n\r\nThe recent recruitment of Semi Fakhoury further exemplifies the commitment that Al Tamimi has for Qatar.  Mr. Fakhoury come to to Al Tamimi from a top French Law Firm, Gide Loyrette Nouel where he was a Partner. Mr. Fakhoury specializes in structured and project finance and has expertise across a wide range of financing transactions including acquisition; project, syndicated lending and asset based finance and has represented borrowers and lenders in large European and cross-border LBO transactions. He has also represented major French listed and non-listed companies in debt restructuring and syndicated lending and has advised leading Middle East groups on project finance transactions and infrastructure acquisitions as well as leading banks and financial institutions on cross border export financing across the MENA region. He will utilize his significant experience in the Middle East to maintain Al Tamimi’s position as one of the leading finance firms in Qatar and extend our further growth here.\r\n\r\nThe month of February brought good news with the appointment of three partners, two of which are in the Qatar office; Mr. Stefan Jury and Mr. Hani Al Naddaf. Stefan, a native of Australia, brings a wealth of knowledge and experience to the firm with a specialty in Banking &amp; Finance. Hani, a native of Syria, who speaks Arabic, French and English, has become a top litigator for Al Tamimi &amp; Company, and in Qatar. Well deserved appointments for these worthy individuals; Congratulations.\r\n\r\nAl Tamimi has positioned itself well in Qatar as a key law firm with expertise in local laws, with international experience. As the country is in the process of rebuilding its airport and building cities within the City, that will combine the best of Qatar’s rich history, and the modern day wealth and convenience of what Qatar has to offer today, as a result of this, Al Tamimi continues to be appointed to some of the most high profile and complex deals as companies have found our team in Qatar is un-matched.\r\n\r\nDoha will soon be home to one of the most advanced medical centers in the world that will also be a learning hospital employing and producing some of the best doctors globally. This tiny nation is also home to the largest foreign United States Air Base.\r\n\r\nAl Tamimi Qatar has been involved in many different political and business forum events since the beginning of the year. During the second week of January, Turkish Prime Minister, The Honorable Mr. Recep Tayyip Erdogan was in Qatar to remind the world that the relationship between Qatar and Turkey is solid at all levels. The US Secretary of State, Mrs. Hillary Clinton was also in Doha as part of a regional trip.\r\n\r\nAl Tamimi representatives also participated in a closed dinner meeting with a select business consortium that traveled to Qatar, Kuwait and Turkey, accompanied by the Argentinean President, Ms. Christina Fernandez. The tour is meant to strengthen ties with countries in the region. The Emir of Qatar and Ms. Fernandez have been working together to boost trade between the two countries and within the region over the last year.\r\n\r\nQatar is certainly on the rise, and should see significant growth over the next 10 to 20 years. Al Tamimi &amp; Company has been and continues to grow with Qatar, the team in Doha has firmly established itself as leaders in the legal field, and as a result, Al Tamimi continues to show steady growth and continues to build its dynamic legal team.'),
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(78961, 4303, '_yoast_wpseo_metadesc', 'Qatar has had a busy start to the New Year; Asian Cup, Qatar Open, Qatar Women’s Tennis, the excitement of the FIFA 2022 victory bid, and a list of real estate development projects that will reshape the landscape and infrastructure of this land.'),
(78962, 4304, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nSince the onset of the world financial crisis, financiers have been developing various methods to better secure finance. Popular in Islamic finance is the use of a Repo arrangement instead of a more traditional security arrangement (e.g. borrowing on the security of a particular asset). In a Repo transaction the financier purchases an asset from the borrower (seller) and grants an option to the borrower to repurchase the asset for a higher price at a future time.\r\n\r\nThe buyback option provides strong security because the title to the assets is with the financier. This means that, if the borrower does not re-acquire the asset, then the financier has freedom to sell the assets without the need for costly enforcement through the courts. A pledge will give priority rights over a particular asset, however, the complicated procedures to recover the amount of the loan makes this a much less attractive process of having the financier’s attain outright ownership, with all the advantages of ownership.\r\n\r\n<strong>But are buybacks valid under Qatari Law?</strong>\r\nA simple repurchase transaction is most likely void under the Qatari law.\r\n\r\nArticle 474 of the Qatari Civil Code provides that:\r\n\r\n“If at the time of sale the seller retains the right to recover the sold asset, the contract shall be void”.\r\n\r\nPursuant to jurisprudence, specifically the Egyptian scholar Al Sanhouri, the principle set out in Article 474 of the Civil Code is intended to protect the seller from unfair contractual terms, as in practice, Repo transactions may be an indirect arrangement of security and not merely a sale agreement. Security is regulated under mortgage and pledge provisions in the Civil Code, and creditors secured by a mortgage are not entitled to receive more than the amount of their secured rights from the proceeds of selling the mortgaged or pledged security after enforcement.\r\n\r\nAccordingly, the legislators in Egypt and various Arab legal systems decided to prohibit Repo transactions with the result that they are void. The purpose is to compel the parties to resort to mortgages which are regulated by the law to protect the interest of the parties.\r\n\r\nDespite this, financiers have developed new models to try and avoid the possibility of the entire transaction being void.  For example, the seller could sell an asset to the financier using a Sale and Purchase Agreement and then the financier could enter into a separate agreement with the seller, to sell him back the sold asset within a fixed period, conditional upon recovering back the price plus fees and certain costs (equivalent to lending interest). Also, the seller could sell an asset to the financier, and then the financier could sell the asset to a third party under a separate agreement with the seller. The third party could then sell the asset back to the seller under a third agreement conditional upon recovering back the price plus fees and costs within a fixed period.\r\n\r\nCourts in Qatar have not had the opportunity to properly consider these models and so it is still open to argument as to whether they can circumvent the operation of Article 474.  However, Egyptian jurisprudence points the way to shedding some light on how Qatari courts may handle such cases.  Qatari courts may recognise the principles of the Egyptian scholar Abdulrazik Alsanhori as a persuasive authority in absence of local resources.\r\n\r\nAccording to Abdulrazik Alsanhori these models may still be void, as a judge has the discretionary power to trace the transaction or the series of transactions to find out whether the buyback sale is intended to cover a financing transaction and in which case a judge would declare the sale and all the transactions based on this sale, null and void.\r\n\r\nTechnically, when a seller sells an asset to a financier, and on a later date they enter into a separate agreement granting the seller the right to repurchase the asset, would not fall within the scope of Article 474 of the Qatari Civil Law. However, the court might look at the intention of the parties at the time of conclusion of the first agreement to determine whether the series of transactions was to cover a financing transaction. There is a risk that a court could construe this arrangement as void if they find it as being an arrangement that  falls within Article 474 of the Qatari Civil Law.\r\n\r\n<strong>Situation under the Various Jurisdictions</strong>\r\nArticle 1333 of the Iraqi Civil Code stipulates that “sale with a right to recover the sold, is considered a pledge” and, therefore, the transaction contemplated by Repo arrangement will not be void, however, the Iraqi courts will not look at the sale provisions under the Iraqi Civil Law to determine on a dispute arising from a Repo arrangement, instead, it will apply pledge provisions set out the Iraqi Civil Law to determine on the transaction.\r\n\r\nThe attitude in the Libyan and the Syrian Civil Code is the same as in the Egyptian Law, as Article 454 of the Libyan Civil Code and Article 433 of the Syrian Civil Code prohibit buyback sale.\r\n\r\nHowever, the attitude in Lebanon is different as buyback sale is allowed under the Lebanese Obligations and Contracts Law, as Articles 473-486 described the buyback sale in details.\r\n\r\n<strong>Conclusion</strong>\r\nThe Arab legal position on the validity of the Repo arrangements varies from one Arab jurisdiction to another. The majority of the legal systems consider these arrangements invalid (Egypt, Libya and Syria), and some other Countries consider them as a pledge (Iraq), while Lebanon validates them. Although there are no precedents available in Qatar, the Repo arrangement is at risk of being voided by Qatari courts, if the Qatari courts adopt, as persuasive authority, the principles laid down by Egyptian precedents.\r\n\r\nWe suggest that considerable care be given to structuring arrangements of this kind to ensure they are not later subject to the argument that can make them void.'),
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(78972, 4304, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Kamal Hafez'),
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(78984, 4304, '_yoast_wpseo_metadesc', 'Since the onset of the world financial crisis, financiers have been developing various methods to better secure finance. Popular in Islamic finance is the use of a Repo arrangement instead of a more traditional security arrangement (e.g. borrowing on the security of a particular asset).'),
(78985, 4305, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nForeign construction companies wishing to participate in Government tender bids in Qatar should seek legal advice first. Often, foreign construction companies will focus more on the technical and commercial aspects of a tender bid; while overlooking the legal terms and conditions included in the tender documents.  These companies may assume that the basic legal concepts they are familiar with in other jurisdictions are similarly applicable in Qatar, however, only in the process of executing the work do they realise that this may not be the case.\r\n\r\nThese companies should initially investigate the tender process, their eligibility in participating in a particular tender and the procedures for setting up in Qatar.  They should be aware of the rules and regulations affecting their establishment in this country.\r\n\r\nIt is prudent for them to assimilate themselves with the local conditions before embarking on a major project. A potential bidder for a major project should ascertain whether they have the technical capability, financial strength, relevant experience and available resources to undertake such a project.\r\n\r\nWhere they are required to submit design drawings, they ought to have the relevant experience to provide these drawings and they should be able to adapt to local practices in drawing submissions. Many foreign contractors fall into the trap of clinging on rigidly to their normal practices and views which they inherited from their experience in their home countries causing them to invariably fail in adapting to the conditions in Qatar and later find themselves in a quandary over many issues.  These contractors will often find that the execution of the works will be fraught with significant problems if they do not conduct adequate planning, research and preparation before submitting their tender and undertaking the project. Common pitfalls and difficulties faced by contractors undertaking projects in countries which they are not familiar with may include:\r\n<ul>\r\n 	<li>Delay in procurement of materials such as concrete, steel and sand.</li>\r\n 	<li>Failure to take note of the restrictions imposed on transportation of materials causing delays in work.</li>\r\n 	<li>Delay in hiring workmen and finding workers with the requisite experience and qualification.</li>\r\n 	<li>Delay in securing the relevant work permits for their workers.</li>\r\n 	<li>Failure to familiarise themselves with the new environment and to investigate ground conditions properly.</li>\r\n 	<li>Engaging subcontractors who are not approved by the concerned governmental party.</li>\r\n</ul>\r\nThe Government of Qatar has streamlined the tender procedure for Government projects and has established the Central Tenders Committee and the Local Tenders Committee to oversee this process. These two committees are also known as the Competent Tenders Committee.\r\n\r\n<strong>The Central Tenders Committee</strong>\r\nThe Central Tenders Committee (“the Committee”) will administer tenders and bids, at the request of the concerned governmental entity, which have estimated values that exceed Five Million Qatari Riyals (QAR 5,000,000), including the award of contracts on behalf of government entities (with the exception of the Armed Forces and the Police contracts of a confidential nature and Qatar Petroleum contracts). Tenders below the aforesaid estimated value are overseen by the Local Tenders Committee, where contracting is done through local tenders. The participation of such tenders is restricted to local suppliers, contractors and service providers.\r\n\r\nThe law governing the establishment and powers of the Committee is the Tenders and Auctions Law No (26) of 2005  as amended by Law No (22) of 2008 and Law No (14) of 2010 (“Tender Laws”). The provisions of this legislation cover the tender procedures for contracts for the purchase of items, contracting business, services or works of art.  Under the Tender Laws, the Committee is given special functions to receive tenders, review tenders and give its opinion and recommendation with respect to the adjudication of the tenders.\r\n\r\nThe Contractors Classification Committee, which is affiliated to the Committee, is given the power to classify and reclassify the contractors in various classes and specialties according to their technical and financial ability, their expertise, skills and former business. The Contractors Classification Committee decides on the application for classification of the contractors submitted to it within thirty (30) days from the date such application is submitted. The contractor is entitled to request that the decision on his classification be reconsidered one year after the issuance of the decision.\r\n\r\n<strong>Preparation of the Invitation to Tender</strong>\r\nThe compilation of documents for the Invitation to Tender is prepared by the concerned governmental party seeking to engage the services of a contractor to execute the works. The concerned governmental party will prepare the general conditions of contract together with a detailed scope of works and instructions for the contractors including the following:\r\n<ul>\r\n 	<li>Necessary instructions for the contractors.</li>\r\n 	<li>Entire Detailed Drawings and Specifications.</li>\r\n 	<li>Detailed and accurate table of quantities.</li>\r\n 	<li>Procedure to be adopted in the implementation of the contract.</li>\r\n 	<li>Penalties imposed in the event of any breach of the provisions of the contract or delay in the execution of the works.</li>\r\n</ul>\r\nThere should be as much detail as possible included in these documents to circumvent the need for bidders to revert to the concerned governmental party for clarification. It is therefore essential, when tendering, to ensure that the aforesaid documentation is accurate and concise and that it reflects the level of work required to prepare the tender.\r\n\r\n<strong>Call for Tender and Submission of Tender</strong>\r\nThe Committee will thereafter advertise the tender by way of publication, at least twice, in the local daily newspapers. The announcement will also be put up on the notice boards of the headquarters of the Committee and the concerned governmental party. In addition to the aforesaid methods of publication, the tenders may also be published by using modern methods of communication. The general tender announcement will set out the following details:\r\n<ul>\r\n 	<li>The number and object of the tender.</li>\r\n 	<li>Brief statement about the items or business or services required to be purchased or implemented.</li>\r\n 	<li>The party providing the tender documents.</li>\r\n 	<li>The amount payable by the bidder for a copy of the tender documents.</li>\r\n 	<li>Class and competence.</li>\r\n 	<li>System of submitting the offers.</li>\r\n 	<li>Party before which the offers are submitted and the submission deadline.</li>\r\n 	<li>Fixed date for opening the envelopes.</li>\r\n 	<li>Amount and effectiveness period of the temporary guarantee.</li>\r\n 	<li>Effectiveness period of the offer, being ninety (90) days at least as from the date of opening the envelopes.</li>\r\n 	<li>Amount and effectiveness period of the final guarantee to be submitted by the winner of the tender.</li>\r\n 	<li>Stipulation of the concerned governmental party’s right during the effectiveness of the contract, after acquiring the approval of the Committee, to increase or decrease the quantities of the items or business or services by twenty percent (20%), at most, of the contract value under the same conditions and prices, provided that the increase be the same type of items, business or services stipulated in the contract.</li>\r\n</ul>\r\nAll tenders must be submitted within the timeframe set out for submission to the Committee. It is important to note that bidders should not make any amendments to the tender documents. In the event that the bidder wishes to insert some special conditions or make any modification to the tender documents, this ought to be done via a separate letter which should be enclosed with the tender submitted and the bidder should refer to this letter in the body of the tender. The tender offers that do not include total fixed prices will not be accepted; every offer violating the said provisions will be considered null and void.\r\n\r\n<strong>Tender Price</strong>\r\nThe tender price quoted is required to be in Qatari currency unless the tender documents stipulate otherwise. It is imperative to take great care in the calculation of the tender price. Only the total price mentioned in the tender form will be taken into account without any other figures or any mistakes made by the bidder during the calculation of the total price of its offer. In the event the bidder makes a mistake in the calculation of its tender price, it will not be allowed to modify this after submission of tender. If the total price written in letters is different from the total price written in figures, the total price in letters will be taken into consideration. In the event the calculation mistake exceeds five percent (5%) of the total price value mentioned in the tender form, the offer will be excluded unless the Committee (by majority votes) decides to accept it for reasons related to public interest.\r\n\r\nSome contractors have a penchant for under pricing or under-allowance of costs in their tender bids. Awarding the contract to such a contractor would lead to significant potential problems to the project owner/employer. The general fear and assumption is that this contractor will, throughout the contract period, make attempts to recoup his lost monies by compromising on quality, giving less, or at worst, the contractor may face insolvency.\r\n\r\nThe tender must include fixed lump sum prices which include all expenses such as transportation, insurance, custom duties and other taxes. All items stated in the bill of quantities must be priced and the lump sum price quoted in the tender form will be considered to include the prices of all the required items. If certain items are not priced, this will be taken to mean that the bidder abstains from entering the tender related to the said item. Further, in the contracting business, if the bidder did not determine the price of one of the items mentioned in the contracting business it submitted, the Committee is entitled to decide whether to exclude the offer or fix a higher price for this item, after comparing it with the other technically accepted offers, and the executive regulations of the Tender Laws will set out the basis and rules that will be applied regarding this matter.\r\n\r\nThe bidder will not be allowed to make any amendments to its price after submitting it’s tender. It may not withdraw its offer or amend its prices after submitting its tender and it shall be committed to the prices and conditions stated in its tender.\r\n\r\nIt is crucial for bidders to be able to assess the risks involved in undertaking the project. Careful scrutiny of the tender documents including the general and special conditions of contract is required with particular focus on the allocation of risks between the parties as this will affect the bidder’s pricing for the project.  The nature and number of risks must be identified and evaluated, thus ascertaining the consequential costs involved. All too often, in tendering for a project, contractors make the mistake of inadequately assessing and pricing the risks, leading to many loss making projects. In addition, bidders should also take into account that the concerned governmental party has the right of variation by way of increasing or decreasing the quantities of the items or the works or services up to twenty percent (20%) of the contract value provided that any such increase is related to the same type of items, works or services set out in the contract.\r\n\r\nWhere a contractor has delayed performance of works, the Tender Laws allow the concerned governmental party to grant an extension of time to complete works provided that the contractor is penalised with a fine for the delay period.  This fine shall not exceed ten percent (10%) of the contract value. The contractor should seek legal advice on the relevant provisions under Qatari law with respect to liquidated damages and the imposition of penalties. It is also very important to seek legal advice on the application and enforceability of any limitation of liability provisions in the construction contract. Contractors from other jurisdictions may make certain assumptions regarding liquidated damages and limitation of liability, based on their previous experience undertaking projects in other countries, which do not necessarily apply in Qatar. There is no point feigning ignorance of the local laws and regulations once the contract is signed. (Claire – please use this quote)\r\n\r\n<strong>Tender Bond and Performance Bond</strong>\r\nA tender bond (or a temporary guarantee, as it is called in the Tender Laws) will be required to be deposited together with the tender. This is a security in a lump sum amount fixed by the concerned governmental party.  Note that the Committee has the right to exclude any tender which is not submitted with a tender bond.\r\nThe tender bond can be in the form of a bank cheque or an unconditional bank letter of guarantee from a local bank. The tender bond shall be valid for payment in whole and should be valid for a period of at least thirty (30) days after the termination fixed for validity of tender. The tender bonds shall be returned to the bidders immediately after the expiration of the determined effectiveness period of the tender or before the same in the event the winning bidder whose tender has been accepted, has deposited the performance bond (known as the final guarantee in the Tender Laws).\r\n\r\n<strong>Evaluation of Tender and Award of Contract</strong>\r\nThe tenders will then be reviewed by the concerned governmental party’s technical team who will thereafter submit their recommendations to the Committee. The concerned governmental party is entitled to collect from the bidders the necessary data to complete the technical study of the tender provided that it does not prejudice the conditions, specifications and prices mentioned in the tender offers.\r\n\r\nThe Committee is not bound to accept the recommendations of the concerned governmental party but a decision of the Committee which is inconsistent with the recommendations of the concerned governmental party has to be issued by a majority of two-thirds of the members forming the Committee.\r\n\r\nAlthough it is the norm that the Committee will recommend the bidder who submitted the lowest total price, the Committee may at times recommend the award to a bidder who submitted a higher price. This is justifiable in the case where the Committee feels that the price quoted by the lowest bidder is unreasonably low.  We have already addressed the pitfalls of awarding a contract to a bidder whose bid is clearly under priced.\r\n\r\nThe recommendations of the Committee will then be passed to the Minister of Finance for approval, and where the tender exceeds Fifty Million Qatari Riyals (QAR 50,000,000), it must be approved by the Prime Minister based on the proposal of the Minister of Finance.\r\n\r\nThe concerned governmental party will ask the winning bidder to show up in order to submit the final guarantee/performance bond within ten (10) days from the day after being notified of the acceptance of the offer and to sign the contract within the determined date. However, in the event the bidder does not show up at the determined date, it shall be considered as withdrawn.  In the event the bidder withdraws for any reason during the effectiveness period of the offer, without an acceptable excuse, or in the event the bidder of the accepted offer does not deposit the final guarantee/performance bond during the said period, or in the event it abstained from signing the contract at the determined date, the Committee may take one or more of the following measures:\r\n<ul>\r\n 	<li>Sending a notification.</li>\r\n 	<li>Confiscating the temporary guarantee.</li>\r\n 	<li>Confiscating the final guarantee.</li>\r\n 	<li>Decreasing the class of the bidder.</li>\r\n 	<li>Striking the bidder off from the register for a specific period or permanently.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nIn general, tendering for projects anywhere in the world has become a more complex exercise where pricing is only part of the selection criteria. Construction and procurement methodologies are also taken into account in the selection process. Other criteria which would be taken into consideration is the contractor’s understanding of the project employer/owner, in this case, the concerned government party’s objective. Likewise, more tangible considerations may also form the basis of selection such as the contractor’s general approach and ability to correlate with the project employer/owner and their team and the contractor’s general compatibility with them.\r\n\r\nAs a general rule, any contractor bidding for a project in any country should have a basic idea of the laws of that country particularly on the following areas:\r\n<ul>\r\n 	<li>Dispute resolution procedure and enforcement of awards.</li>\r\n 	<li>Enforceability of limitation of liability clauses.</li>\r\n 	<li>Entitlement to additional payment for variations.</li>\r\n 	<li>Delay compensation.</li>\r\n 	<li>Price escalation.</li>\r\n 	<li>Decennial Liability.</li>\r\n 	<li>Suspension of Works.</li>\r\n 	<li>Termination for Convenience.</li>\r\n</ul>\r\nAs mentioned earlier in this article, it is advisable to seek proper professional advice including; financial, technical and legal advice, before embarking on a major project in Qatar.'),
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(79004, 4306, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nQatar’s Decree Law No. 16 of 2010 on Electronic Commerce and Transactions (E-Commerce Law), which came into effect towards the end of 2010, promises greater protection for consumers in electronic transactions. Although Qatar’s Consumer Protection Law and Commercial Code offered some protection of consumers’ rights, these laws were of a general nature and did not specifically deal with consumers in the context of e-commerce. The E-Commerce Law is timely given that online transactions are now part and parcel of life and conducted through a variety of electronic and telecommunication devices.\r\n\r\n<strong>Concluding an electronic contract</strong>\r\nThe E-Commerce Law requires the terms of an electronic contract to be stated clearly to the consumer prior to an order (whether for goods or services) being placed and the contract concluded.\r\n\r\nArticle 55 states that where an electronic communication relates to an order to conclude a contract of commercial nature, a service provider shall, prior to an order being placed, provide the consumer with the terms and conditions of the contract in a clear and comprehensible manner. (Electronic communication is defined in the E-Commerce Law as “any communication of information by means of telecommunications”.)\r\n\r\nThe terms of the contract to be provided should include information regarding the service provider, description of the main characteristics of the services or goods, prices, whether the consumer has the right to cancel the order, etc.\r\n\r\nAdditionally, the consumer has to be given “appropriate, effective and accessible” means of correcting any errors in an order before the order is placed. An acknowledgement should be sent “without undue delay” in order for the consumer to be sure that the order has been placed.\r\n\r\nMore importantly, Article 56 of the E-Commerce Law also specifies the point when an order or acknowledgement of contract is deemed to have been received. This is important in determining the point at which a contract has been concluded between the consumer and the service provider. Article 56 states that the order or the acknowledgement of receipt shall be deemed to be received when the parties to whom they are addressed are capable of accessing it.\r\n\r\nFurther, the acknowledgement of receipt may take the form of the provision of a service for which payment has been made.\r\n\r\n<strong>Cooling-off period</strong>\r\nIt is not uncommon for consumers making purchases or conducting transactions electronically to have done so hastily or based on insufficient knowledge or a misconception of the products or services presented. In recognition of this, the E-Commerce Law allows for a ‘cooling-off period’, as in many other jurisdictions, during which a consumer may back out of a contract.\r\n\r\nArticle 57 states that unless the parties agree otherwise, the consumer shall have the right to rescind or terminate the contract within 3 days from the date of entering into the contract so long as the service provider does not fully implement the contract and the consumer does not use the goods or products nor receive any benefit or value from them.\r\n\r\n<strong>The end of spam?</strong>\r\nThose who have been frequently annoyed by spam ranging from junk emails to numerous text messages (sms) on mobile phones would be relieved by the prohibition on unsolicited communications under the E-Commerce Law.\r\n\r\nUnder Article 54, a service provider is required to have the “explicit consent” of a consumer regarding an electronic communication before it can be sent to that consumer. There is a presumption that consent of the consumer has been obtained where there is an existing relationship with the service provider which meets the apparent expectation of the consumer to receive the communication, provided that:\r\n<ul>\r\n 	<li>The content of the communication is relevant to the purpose of the relationship.</li>\r\n 	<li>The service provider provides the recipient appropriate means and opportunity to opt out from receiving any further electronic communications at any time.</li>\r\n</ul>\r\n<strong>Data protection </strong>\r\nService providers are now required to protect the personal information of their customers. “Personal information” is defined in the E-Commerce Law as “information about an individual whose identity is apparent or can reasonably be ascertained either from that information or from a combination of that information and other information”.\r\n\r\nA service provider is required by Article 59 to identify the purposes for which personal information about the customer is collected and is prohibited from collecting, using, retaining or disclosing such information for undisclosed or unauthorised purposes unless permitted or required by law.\r\n\r\nA service provider is also required to take “reasonable steps” in protecting the personal information of the customer and related records; the protection measures should be commensurate with the importance of the information.'),
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(79023, 4307, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nIt has been almost a decade since various governmental authorities in the Kingdom of Saudi Arabia started their discussions in relation to the issuance of new regulations that govern commercial companies in the Kingdom. This article is an effort to give an overview of the current position of the proposed companies’ law and expected changes.\r\n\r\nSince 2002, there have been discussions and deliberations to amend the current Saudi Companies Law, which was issued in 1965 (“SCL”) in order to take into consideration the continuous development in various fields of the Saudi business environment, such as: the accession of the Kingdom of Saudi Arabia to the World Trade Organization; establishment of the Saudi Arabian General Investment Authority (“SAGIA”), the Saudi Industrial Property Authority (“MODON”) and the Capital Market Authority (“CMA”).\r\n\r\nThere are various government bodies discussing the Proposed Companies Law (“PCL”), in particular, the Ministry of Commerce and Industry (“MOCI”) and the Bureau of Experts, at the Council of Ministers and Shura (Consultative) Council.\r\n\r\nThe PCL consists of 266 articles giving a greater role to the CMA, specifically, to have almost full supervision of listed joint stock companies. In accordance with corporate governance regulations issued by the CMA, the PCL provides that the minimum members of board of directors is three and maximum of 11, and owning a specified minimum number of shares of the relevant company will no longer be required.\r\nFurther, the CMA will have the power to call for a general assembly in certain situations and to extend the lock-up period for share transfer from the founders of listed joint stock companies to any third party. The PCL also provides that debt instruments and Shari’ah compliance bonds (sukuk) could be converted into negotiable shares.\r\n\r\nThere are a number of forms of companies, valid in the old SCL that will not be permissible in the new PCL; specifically, Cooperative Company, Companies with Variable Capital and Partnerships Limited by Shares.\r\n\r\nIn light of technical developments, publication in the Ministry’s website will be sufficient instead of publication in the official gazette or a local newspaper.\r\n\r\nOne of the most significant changes in the PCL is that the government; public juristic persons; companies that are totally owned by the government and companies of capital not less than SAR Five Million, may incorporate a one-person joint stock company, with full authority of the shareholders assemblies, including the foundation assembly.\r\n\r\nAnother important change is that when the company’s losses reach half of its paid up capital, any executive of the company, or the designated auditor shall inform the chairperson of the board of directors of same, who is then obliged to inform all directors and ultimately, to call for an extraordinary general assembly. If the extraordinary general assembly fails to convene within the specified period, or remedy the losses using the appropriate methods in accordance with the relevant regulations, the company shall be considered dissolved under the PCL.\r\n\r\nIn connection with the limited liability companies, the PCL allows a natural or juristic person to incorporate a Limited Liability Company (“LLC”) owned by one person. Also when the shareholders in an LLC exceed 50 shareholders, the company should be converted to a joint stock company within one year, otherwise the company shall be considered dissolved under the PCL, unless the excess of shareholders was as a result of an inheritance or provisions of a will.\r\n\r\nUnlike the SCL, the PCL has expressly established the position of a holding company and provides that a holding company can be established in the form of an LLC or a joint stock company. Nevertheless, a holding company shall identify itself as holding company by adding in its name the word “holding”.  A company would be considered as holding company if it controls other subsidiaries by owning more than half of the share capital of that subsidiary.\r\n\r\nThe PCL is still under discussion and the reciprocal views of the Shura (Consultative) Council, Ministry of Commerce and Industry and Bureau of Experts at the Council of Ministers. According to the latest news, the PCL, with its latest updating, was presented by the Ministry of Commerce and Industry to the Shura (Consultative) Council. Following completion of deliberations by the Shura (Consultative) Council, it will be sent to the Bureau of Experts at the Council of Ministers, to review any comments or proposals added by the Ministry of Commerce and Industry and/or the Shura (Consultative) Council on the final draft. If there are no comments, the Bureau of Experts, at the Council of Ministers, shall pass the PCL to the Council of Ministers for approval and issuance. Based on our discussion with a number of highly-placed officials,\r\nthe PCL shall be issued sometime in 2011.'),
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(79056, 4310, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nAlthough the UAE has had anti-bribery legislation in place since the late 1980s in the form of the UAE Federal Penal Code (the “Code”), the businesses community in the UAE has, to a large extent, been unaware of the existence of the Code and how its provisions could impact their business operations locally.  However, following the slowdown of the UAE economy, as a consequence of the global economic crisis, there has been a marked rise in prosecution of individuals suspected of corrupt practices in the UAE under the Code as authorities seek to enforce this law in order to curb such practices.  In particular, certain high profile cases, which made the headlines, have highlighted the importance of being aware of the provisions of the Code and its implication for businesses in the UAE.\r\n\r\nDue to the political and economic impact of corruption, both locally and internationally, there has been a sustained and concerted effort by the UAE authorities to focus on stamping out corruption at all levels of government. Although the focus of the authorities has primarily been on corruption at government level, it is important to note that the Code also contains provisions which apply to the private sector. Consequently, a lot more attention is being paid by businesses and individuals to the subject of corruption and enforcement of the Code by the authorities as they seek to understand what measures, if any, they can take in order to ensure that their business operation are compliant under the Code.\r\n\r\n<strong>1. Scope of the Code</strong>\r\nAs mentioned above, the Code is the main federal law which regulates anti-bribery practices in the UAE.  Articles 234 to 239 of the Code contain provisions which criminalise the bribery or attempted bribery of both public and private sector employees.  Under the provisions of the Code, a bribe would be anything that confers a benefit on a public or private sector employee, as the case may be, with the intent to procure that such employee acts in a way that violates the duties assigned to his function or to commit an act which falls outside such duties (a “Bribe” or “Bribery” as the context requires).\r\n\r\n<strong>(a) Public Sector</strong>\r\nIn relation to acts of Bribery committed by individuals in the context of the public sector, the relevant parties who would be subject to prosecution under the Code are those persons who accept, offer or facilitate a Bribe, irrespective of whether they obtain any direct gain from such action.\r\n\r\n(i) The recipient\r\nThe recipient of a Bribe in the public sector is required by the Code to be a “public officer” who accepts a Bribe for himself or for another person in exchange for committing or omitting an act in violation of the duties of his function or an act which is not part of the duties of his function.  This term would include employees working in ministries and governmental departments, chairmen and members of legislative, consultative and municipal councils and chairmen and members of boards of directors, managers and all other employees working in public organizations and corporations.  In addition, the Dubai Court of Appeal has also recently interpreted the meaning of the words “public officer” to be sufficiently wide enough to include employees of state-owned or semi-state owned private sector entities who receive Bribes.\r\n\r\nIt is important to note that “public officers” would still be committing an offence and be subject to prosecution under the Code in circumstances where they accept a Bribe but did so without the intent to commit or omit the act required of them by the person who offered the Bribe.  Accordingly, the mere acceptance of a Bribe by a “public officer” would be sufficient grounds to prosecute that individual without having to prove that he had the intent to commit or omit the act required of him in exchange for such Bribe.\r\n\r\nApart from a “public officers” as described above, the provisions of Article 237(bis) of the Code also applies to recipients of Bribes who are not strictly “public officers” but who are none the less in a position to influence a “public officers” in the performance of their duties in exchange for a Bribe.\r\n\r\n(ii) The offeror\r\nArticle 237 of the Code provides that the act of offering a Bribe to a “public officer” or to someone in a position to influence a “public officer” is a criminal offence irrespective of whether intended recipient accepts the Bribe or not.\r\n\r\n(iii) The facilitator\r\nAlso under the provision of Article 237 of the Code, any individual who acts as a middle-man, mediator or contact person between the recipient and the offeror of the Bribe will also be guilty of an offence.\r\n\r\nIt should also be noted that the Emirates of Dubai and Abu Dhabi both have specific anti-bribery legislation in place which are aimed at curbing corrupt practices. In Dubai for instance, the Dubai Government Human Resources Management Law of 2006 contains a number of obligations intended to combat potential corrupt practices and ensure that employees of the Dubai Government adhere to the highest professional and ethical standards whereas in Abu Dhabi, Law No. 1 of 2006, which regulates the Abu Dhabi civil service, prescribes similar rules and standards of conduct for civil servants and also contains a number of provisions which are specifically aimed at curtailing corrupt practices.\r\n\r\n<strong>(b) Private Sector</strong>\r\nIn relation to acts of Bribery committed by individuals in the context of the private sector, Article 236(bis) of the Code states that only the individual who accepts a Bribe, in exchange for committing or omitting an act in violation of the duties of his position would be guilty of an offence under the Code.  The recipient, in this instance, is defined by the Code as any member of the board of directors of any private company, institution, cooperative association or public benefit association, as well as any manager or employee in any of these.\r\n\r\nIt should be noted that there is no provision in the Code which makes it a criminal offence to offer Bribes in the private sector or to act as a facilitator in these circumstances.\r\n\r\n<strong>2. Penalties</strong>\r\nAs set out above, the Code draws a clear distinction between Bribery in the public and private sector and in keeping with this distinction, the Code prescribes different penalties to be applied to individuals found guilty of Bribery depending on the relevant sector.\r\n\r\n<strong>(a) Public Sector</strong>\r\nAny “public officer” who is found guilty of accepting a Bribe would be subject to a fine equivalent to the benefit accepted by them (provided the fine is not less than AED 1,000), confiscation of the actual benefit accepted and, depending on the circumstances of each case, imprisonment ranging from five to a maximum of ten years.  In addition, individuals who are found guilty of accepting a Bribe in exchange for exerting their influence over a “public officer” would be subject to a fine not exceeding AED 10,000 and imprisonment of up to one year.\r\n\r\nIndividuals who offer a Bribe to a “public officer” or to an individual who is in a position to exert influence over a “public officer”, would be subject to a fine equivalent to the benefit they offered as a Bribe (provided the fine is not less than AED 1,000), confiscation of the actual benefit offered and imprisonment not exceeding five years.  Similar penalties would apply to any individual who facilitates a Bribe between the offeror and the recipient.\r\n\r\n<strong>(b) Private Sector</strong>\r\nIndividuals who accept Bribes in the private sector would be subject to a fine equivalent to the benefit accepted by them (provide the fine is not less than AED 1,000), confiscation of the actual benefit accepted and imprisonment not exceeding five years.\r\n\r\nEven though the UAE authorities have, as yet, not taken any firm steps towards addressing corrupt practises in the private sector, the Code does allow them to prosecute individuals suspected of such practices.  Accordingly, there may eventually be a shift in direction by the authorities as they move to eradicate corruption not only at government level but also in the public sector. In doing so, it is conceivable that the authorities may very well in the future expand the provisions and application of Article 236(bis) of the Code to facilitate prosecution of Bribery in the private sector such that the offeror and facilitator of a Bribe would also be guilty of an offence.\r\n\r\nIn conclusion, it is important for international companies which carry on business in the UAE and also have business interests in other countries, for instance in the United States and the United Kingdom, to not only have regard to the provisions of the Code (including any comparable Emirate specific legislation) but to also be aware that there may be specific anti-bribery legislation in place in those countries, for instance the Foreign Corrupt Practices Act in the United States and the soon to be implemented Bribery Act in the United Kingdom, which they would be obliged to comply with.  In appropriate circumstances, certain actions taken by these companies locally in the UAE could be classified as offences not only under applicable local anti-bribery legislation, but also under applicable foreign anti-bribery legislation which could result in multi-jurisdictional prosecutions of these companies.'),
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(79075, 4311, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nThe employment team hosted a breakfast seminar on Tuesday 22 March 2011, discussing the impact of the Cabinet Resolution (No. 25 of 2010), and its supporting Ministerial Resolutions, on UAE employment relations.\r\n\r\nThe Cabinet Resolution and one of the Ministerial Resolutions (No. 1187 of 2010) was discussed by Rebecca Ford in the February 2011 Law Update. Since then, a number of additional Ministerial Resolutions have become available which have clarified the Cabinet Resolution.  This article is therefore an update on Rebecca’s article, and confirms some of the topics discussed in the breakfast seminar.\r\n\r\nAs previously reported, the Cabinet Resolution introduced five new internal work permits (comprising: work transfer, temporary work, part-time work, personnel sponsored by family and juvenile) for individuals already based in the UAE. The Cabinet Resolution also suggested that in some instances, the Minister of Labour may approve the waiver of the automatic six-month ban which is ordinarily imposed upon employees leaving an employer.\r\n\r\nThe supporting Ministerial Resolutions which have been published regarding these issues have provided additional detail on the application of the work permits and the waiver of the six-month ban.  It is clear to us that some of the aims of the Ministerial Resolutions are to promote stability in the workforce of the UAE, as well as to allow some flexibility of movement, in order to address the issues which arose from the economic events of the past few years.  However, the Ministerial Resolutions do not lose sight of the fact that, as provided for in the UAE Labour Law (UAE Federal Law No. 8 of 1980, as amended), work is a right of UAE nationals, and the Resolutions provide that an expatriate will not be granted an internal work permit, if there is a UAE national available who could fulfil the role.\r\n\r\nThe Ministerial Resolutions also remind employers that the costs of the work permits may not be recouped from the employee, whether by direct payment or deduction from wages.\r\n\r\n<strong>Work Permits</strong>\r\nWe reported in the February article that the temporary work permit will be issued to nationals or non-nationals employed for a period of not more than six months in duration.  It is clear from the Ministerial Resolution that one of the aims of the temporary work permit is to enable an individual to work where a labour claim is pending in the Labour Court.\r\n\r\nWe also reported in the February article that the part time work permit was announced as enabling employees to take up more than one role. However, there has been some concern (reported in the press) that these permits would allow expatriates to take roles away from UAE nationals. Although the part time work permits are open to UAE nationals and expatriates alike, the permits will only be granted at the discretion of the Ministry of Labour and therefore the use of these permits may be carefully controlled.  In actual fact, we believe that one of the aims of the part-time permits is to encourage UAE national females into the workplace.\r\n\r\nThe Cabinet Resolution introduced a work permit for personnel sponsored by their kinship. We speculated in the February article that this would mean that expatriates would be able to act as official work sponsors of their dependents. The applicable Ministerial Resolution (No. 1188 of 2010) has clarified that the kinship permit will be granted to the following categories:\r\n\r\n(a) females from the age of 18;\r\n\r\n(b) the husband of a UAE national female;\r\n\r\n(c) the children of a UAE national female.\r\n\r\nAccordingly, the use of this permit will be limited.\r\n\r\nOne of the new Ministerial Resolutions (No. 1189 of 2010) provides more detail with respect to the juvenile work permits (for UAE nationals and expatriates between the ages of 15 – 18).  In particular, this provides that the maximum number of working hours per day is limited to six hours, and the juvenile must have rest breaks of a minimum of one hour in total. The juvenile should be able to take the break(s) so that they do not work consecutively for more than four hours. In addition, the juveniles must not work overtime, stay on the employment premises beyond the hours of work, or be asked to work holidays. Finally, the Ministerial Resolution identifies 31 prohibited work activities.\r\n\r\n<strong>Labour bans</strong>\r\nTo date, the Ministry of Labour has imposed an automatic 6-month ban on all individuals leaving their onshore employer. The ban could only be lifted for individuals with more than one year’s service upon provision of a no-objection certificate from the former employer and/or payment of a fee (depending on length of service). The February article identified the factors which the Cabinet Resolution identified that the Minister of Labour should take into account when deciding whether to waive the ban.\r\n\r\nThe Ministerial Resolution has now clarified that the automatic 6-month ban will not be imposed where:\r\n\r\n(1) Employment is terminated by mutual consent; and\r\n\r\n(2) The employee has at least two years of service.\r\n\r\nHowever, there are exceptions to this rule, which expand the scope of this waiver still further.\r\n\r\n<strong>“Mutual consent” may not be required if:</strong>\r\n<ul>\r\n 	<li>The employer acts in breach of its legal obligations (the example provided by the Ministerial Resolution is where an employer fails to pay salary for a period of 60 days or more); or\r\nWhere the employee is “not the cause” of the termination. The Ministerial Resolution lists three examples of this, where the employer has shut down and has not been undertaking commercial activity for at least two months, provided that the employee has raised a complaint to the Ministry of Labour during this period; where the employer is ordered by the Labour Court to pay at least two months’ salary, or is found to have arbitrarily dismissed the employee, terminated a fixed term contract early, or failed to pay end of service benefits;  or where the employer terminates the contract or fails to renew a fixed term contract of its own accord.</li>\r\n</ul>\r\n<strong>The requirement of two years’ service will not be required where:</strong>\r\n<ul>\r\n 	<li>The employee is in a qualifying professional category (which to date have been based on academic achievement, i.e. Level One:  Degree level and above, Level Two:  Diploma, Level Three: High School qualification) and will receive from the new employer the required minimum salaries for those skill levels, being AED 12,000, AED 7,000 and AED 5,000 respectively; or</li>\r\n 	<li>The employer acts in breach of its legal obligations, or is “not the cause” of the termination (as set out above); or</li>\r\n 	<li>The employee is transferred to a group company. This latter exception is particularly helpful, in our view, given that many companies have chosen to reorganise their businesses in recent years, which has resulted in employees being moved from one group company to another. Although in the event of an intra-group transfer, the employment with the first company is terminated, nevertheless employment within the group is maintained. We therefore consider that it is sensible that the 6-month ban is no longer imposed in such circumstances.</li>\r\n</ul>\r\n<strong>More Resolutions to follow?</strong>\r\nAs has been reported in the press recently, the work permit and residence visa for onshore employment has been reduced from a three-year period to two years. However, no applicable Resolution has been made available regarding this to date and concerns have been voiced by business representatives regarding the reduction in the period of the visa (as this may lead to higher fees where staff within an organisation remain in employment for a long period of time).\r\n\r\nFurther, it has been reported in the press that the Ministry of Labour will no longer require employers to obtain one-year consent for the continued employment of an employee who has reached the age of 60, and instead, consent will now be required once an employee turns 65 years of age. However, no Resolution regarding this is publicly available at present.'),
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(79094, 4312, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nInternational treaties are binding contracts between states. Treaties can be either bilateral treaties (for example, between two states) or multinational treaties (i.e. between many states) Treaties may be established for a region of group of states i.e. NAFTA or GCC states. Treaties are binding to the signatory states by joining and/or ratifying the treaty through their congressional bodies, where ratification comes upon signing of the treaty by the executive authorities of each state. If permissible by the treaty, state(s) can make reservation(s) on specific provision(s) which enable such state to opt out from certain stipulation(s).\r\n\r\nThere are two different categories of treaties for implementation purposes. A treaty can be either “Self Executing Treaty” or a “Non Self Executing Treaty”. The former can be implemented directly as part of the domestic legislation without the need for additional intervention of any authorities upon ratification. However, the latter requires intervention by congressional bodies in each state in order to adopt the principle of the treaties in either a separate legislation or amendment to existing legislation(s) in order to be the law of the land, this is the norm in dualistic states.\r\n\r\nThe New York Convention on Recognition and Enforcement of Foreign Arbitral Award (“NYC”) is an international treaty with 145 signatory and ratified states. The NYC is considered to be a Non-Self Executing treaty that requires adoptive legislation compatible with the principles laid down in the said treaty. The United Nations Commission on International Trade Law (“UNICTRAL”) has issued an arbitration Model Law (“ML”) part of which is intended to simplify the process for ratified state(s) in implementing NYC into their municipal legislation system.\r\n\r\nThe UAE ratified the NYC on 19 November 2006 without any reservation. The benefit in recognizing and ratifying the NYC is to facilitate the process for solving disputes amongst international businesses within the global market as an effective vehicle, which ultimately encourages and attracts investments into UAE.\r\n\r\nSince UAE ratified the treaty under a Federal Decree there has been a debate as to how the implementation and enforcement of foreign arbitral awards can be implemented. It has not been tested under the current UAE legislation system as to its compatibility or whether it needs further action (enactment of arbitration law).\r\n\r\nMany states adopted the ML after ratification of the Treaty with minor amendments reflecting the unique requirements of both trade and business. For example, Egypt enacted its arbitration law (Law no. 27/1994) using such ML. Currently, the UAE Legislator is deliberating on the final Bill to pass a domestic law for arbitration derived from ML which will reflect the UAE’s trade and business practice requirements.\r\n\r\nRecently in the UAE, the effectiveness of domestic legislation and procedures in recognizing and enforcing the principles of the NYC were triggered by two judgments – the first from Fujeirah Court, and the Recent Verdict (“RV”) by the Dubai Court of First Instance (“DC”) rendered on 12 January 2011 ratifying a final arbitration award (AW) with its seat in London.\r\n\r\nThe publication of the RV of First Instance, granting ratification to the said AW, caused a major debate amongst the legal community. The potential impact for establishing standard procedures for ratifying a foreign arbitral award in the UAE may have started since RV has been rendered.\r\n\r\nThis article will provide an in-depth analysis of the implementation of the NYC on the AW, the RV grounds for ratifying AW, and whether the DC applied the Convention’s principles or not.\r\n\r\nIn order to examine each segment, the following three issues will be analyzed\r\n\r\n1) Whether DC construed the final AW as a foreign or local award; given the following facts; <sup>1 </sup>\r\n<ul>\r\n 	<li>Both parties are domiciled in Dubai, UAE;</li>\r\n 	<li>Arbitration clause was drafted and contract signed between parties in Dubai, UAE;</li>\r\n 	<li>Transaction triggering the dispute between parties was in UAE;</li>\r\n 	<li>The dispute arose in UAE;</li>\r\n 	<li>The rules administrating the said arbitration were DIFC-LCIA located in Dubai, UAE;</li>\r\n 	<li>The arbitration seat was London, hence, the applicable arbitral law was “English Law”- The Arbitration Act 1996;<sup> 2 </sup></li>\r\n</ul>\r\n2) Did DC ratify the AW using similar procedures to those applied in ratifying and enforcing domestic arbitral awards without requiring Claimant to comply with the provisions of articles 235 and 236 of the Civil Procedure Law (“CPL”) or not?\r\n\r\nThe said CPL provisions state clearly that no order shall be rendered to execute the foreign arbitral award unless the Court examines the following evidences:\r\n<ul>\r\n 	<li>Evidence from the successful party that the local court has no subject matter jurisdiction on the case adjudicated before the foreign Tribunal. And, the Tribunal (English forum) rendering the AW has jurisdiction in accordance with the rules in that foreign country (England); and complies with their international jurisdiction regulations (art. 235 (2) (a)).</li>\r\n 	<li>Evidence that the AW was rendered by a competent forum having jurisdiction in accordance with the foreign state laws where it was rendered (England) (art. 235(2) (b)).</li>\r\n 	<li>Evidence that the parties to the AW were properly and duly summoned and were legally represented (due process was observed in the foreign award) - (Article 235(2) (c)).</li>\r\n 	<li>Evidence demonstrating that AW is a final and binding award in accordance with the laws where it was rendered (submission of English Law and/or the DIFC – LCIA rules) and the AW possesses the power to stand as a valid res judicata plea against any similar proceeding between the same parties and subject matter (certificate from London Courts) - (Article 235(2) (d));</li>\r\n 	<li>Evidence (court certificate) demonstrating that the AW is not contradictory or in violation of any other judgment or order previously rendered in UAE courts, and does not violate moral and public orders (Article 235/2 (e)).</li>\r\n 	<li>In accordance with Article 236 of the CPL, evidence demonstrating that the dispute between the parties was arbitrable and enforceable matter under the laws of the state where it was rendered (London).</li>\r\n</ul>\r\n3) Did the Claimant in the RV submit evidence in compliance with articles 235 and 236 of the CPL? Whatever, the position, the DC granted ratification.\r\n\r\nIn light of the above facts/issues, two opposite arguments arise for discussion, which will be concluded by comment on the said RV in the next article.\r\n\r\nThe above arguments setting out the nature of the AW will be addressed in the next edition of Law Update.\r\n\r\nTo be continued …\r\n\r\n<sup>1 </sup>Analyszed from the RV\r\n\r\n<sup>2 </sup>See Arbitrator that \"the Tribunal also ruled that the seat of the arbitration is England and the procediral law is English law, including the Arbitration Act 1996\".'),
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(79115, 4313, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nFollowing the previous article entitled “Assignments in the United Arab Emirates” (published in the November issue of the Law Update) explaining the general conditions and requirements of a valid assignment in the UAE, this article oulines the prevailing jurisprudence with respect to assignment of rights in the UAE.\r\n\r\nGiven the absence of a separate legal regime for an assignment of rights under UAE law, UAE Courts have decided cases on assignment of rights based on existing commercial common practices and comparative law. In the following Dubai Court of Cassation case, the Courts are guided by the provisions of the UAE Civil Code relating to ‘assignment of debts / obligations’ in determining the validity of an ‘assignment of right’.\r\n\r\n<strong>Dubai Court of Cassation Case No. 188/2006</strong>\r\n<strong>Issued on 13th March 2007</strong>\r\n\r\n<strong>Claim</strong>\r\nA civil action was filed before the Dubai Court of First Instance by a commercial bank (the “Bank”) against a corporate borrower (the “Borrower”) for non-payment of the latter’s obligations under a term loan facility.\r\n\r\n<strong>Facts of the Case</strong>\r\nThe Bank granted a term loan facility for the amount of AED7,469,602.09 to the Borrower under the terms of a facility agreement (“Facility Agreement”). Subsequently, the Borrower defaulted on its installment payments. This prompted the Bank to declare an acceleration event pursuant to the terms of the Facility Agreement and making the full amount of the loan immediately due and payable. The Borrower was served a notice of acceleration but failed to settle the outstanding amount of the loan.\r\n\r\nHence, an action was filed in the Court of First Instance for collection.\r\n\r\n<strong>Court of First Instance</strong>\r\nThe Court of First Instance ruled in favour of the Bank and ordered the Borrower to settle the full outstanding amount plus interests from due date until actual receipt of payment, together with costs and minimal advocate’s fees.\r\n\r\nThe Borrower consequently appealed the decision to the Court of Appeal.\r\n\r\n<strong>Court of Appeal</strong>\r\nOn appeal, the Borrower argued, inter alia, that the Court of First Instance failed to determine the correct amount outstanding under the Facility Agreement.\r\n\r\nThe Borrower alleged that the Court of First Instance failed to appreciate that the right of the Borrower to receive payments under a contract in relation to a certain project (“Receivables”) was assigned in favour of the Bank. It was claimed by the Borrower that since the Bank had been assigned the right over the Receivables, the amounts pertaining to the said Receivables should have been deducted from the outstanding amount of the loan. Further, it was asserted that the amount of Receivables assigned to the Bank was reflected on the Borrower’s book of accounts and, therefore, should have been considered by the Court of First Instance when it rendered its decision as to the judgment amount.\r\n\r\nThe Court of Appeal did not find merit in the allegations and upheld the decision of the lower court in toto, hence, the Borrower brought the action to the Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\nThe Court of Cassation ruled that no assignment of right had been perfected between the parties.\r\n\r\nThe Court held that an assignment of right takes place by agreement between the obligee (assignor) and another party to whom the obligee transfers its right (assignee) as against the obligor. An assignment in that respect is a contract between the assignor and the assignee, which must satisfy all of the necessary elements including consent, subject matter and cause.\r\n\r\nIt is settled law that in order for a contract to be concluded, there must be a corresponding offer and acceptance, and the link between them. What is meant by an offer is an offer whereby the person who makes it conclusively expresses his intention to enter into a specific contract, in such a way that if it is accompanied by acceptance, the contract will be concluded. The exchange of offer and acceptance should indicate mutual consent of the parties.\r\n\r\nThe Court referred to Article 1109 (1) of the Civil Code which requires consent of the parties for an assignment  to be valid.\r\n\r\n<strong>Article 1109 (1) states that:</strong>\r\n\r\n“In order for an assignment to be valid, there must be consent of the transferor and the transferee, and the creditor.”\r\n\r\nIn this case the Court held that whilst there was an intention on the part of the Borrower to assign its rights over the Receivables, the consent of the Bank (as assignee) to the assignment was not present.\r\n\r\nThe Court held further that in order for an assignment to be valid the requirement of Article 1113 of the Civil Code should be met.\r\n\r\n<strong>Article 1113 provides that:</strong>\r\n\r\n“In addition to the general conditions, the following conditions must also be satisfied in order for an assignment to be valid:\r\n\r\na. It must be completed and dependent on no condition other than an appropriate or customary condition, nor must any future contract be dependent on it;\r\n\r\nb. The performance thereof must not be deferred to an unknown future date;\r\n\r\nc. It must be limited in time to a specific time limit;\r\n\r\nd. The property transferred must be a known debt which is capable of being satisfied;\r\n\r\ne. The property transferred to the transferee in a restricted transfer must be a debt or specific property which cannot be compounded, and both types of property must be equal in type, amount and description; and\r\n\r\nf. It must not involve any conditional or substantial additional consideration in favour of any of the parties, and the assignment shall be unaffected by such additional consideration agreed upon after the assignment was made, and it shall not be payable.”\r\n\r\nThe Court held that in order for an assignment of right to be valid, the subject matter of the right should be specified as to type and amount. In addition to the general conditions, the property assigned must be a debt of known amount, and capable of being substituted. This means that the subject matter of the assignment, which is the property assigned, must be particularised as to type and amount. Where the property consists of money, it must be of a specified amount, failing which the assignment is void.\r\n\r\nAssuming that there had been a valid assignment of right, the Court ruled that there was no proof that payments were indeed made by the third party contractor (being the counterparty to the original contract) to the Bank.\r\n\r\nIn light of the above, the Court of Cassation upheld the findings of the lower courts in dismissing the claim of the Borrower that an assignment of right had been granted in favour of the Bank as security for the obligations under the Facility Agreement.\r\n\r\n<strong>Conclusion</strong>\r\nThe Court of Cassation in the foregoing case made a significant point in relation to Article 1113(d) of the UAE Civil Code as applied to assignment of rights. For an assignment of right to be valid and enforceable, the type and quantity of the assigned right (arising from a contract; payment obligations or receivables) should be certain and identifiable, and where the assigned right relates to a sum of money, the amount should be fixed at the time of execution of the assignment agreement. The same is equally applicable where the right being assigned relates to receivables at some future date.\r\n\r\nWith the foregoing decision, it should be noted that where the right consists of a sum of money, certainty in the subject matter of the assignment lies not only upon the relevant contract (under which such right is being assigned) being identifiable, but also for that sum of money to be fixed at the time of perfecting the assignment.\r\n\r\nIn taking an assignment of right as a form of security, parties should bear in mind the important components constituting a valid assignment in the UAE including the present position on the matter as clarified by this case.'),
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(79138, 4314, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nThere have been various developments recently in Saudi Arabia towards increasing the effectiveness of the Corporate Governance framework. The Saudi Capital Market Authority (“CMA”) announced the amendment of Article 9 of the Corporate Governance Regulations (CGR)<sup> 1 </sup>to regulate the remunerations and compensations paid to the members of the Boards of Directors of companies listed on the Saudi Stock Exchange “Tadawul”. The insertion of the definition of the expression “Remunerations and Compensations”, is a step by the CMA to strengthen the principles of corporate governance applied to joint stock companies. The amended Clause (e) of Article 9 stipulates that the report of the Board of Directors which is appended to the annual financial statements of the company shall include: “Details of compensation and remuneration paid to each of the following:\r\n\r\n1. The Chairman and members of the Board of Directors.\r\n\r\n2. The top five executives who received the highest compensation and remuneration from the company; the CEO and the CFO shall be included if they were not among the top five.\r\n\r\nFor the purposes of this paragraph, “remunerations and compensations” shall mean salaries, allowances, profits and any of the same; annual and periodical performance-related bonuses; short or long-term incentive schemes; and any other rights in rem” <sup>2 </sup>.\r\n\r\nFor the purpose of the above, the Board of Directors is also required to establish a committee to be named “Nomination and Remuneration Committee”. Based on CMA resolution No. (1-10-2010) dated 30/03/1431H. (corresponding to 16/03/2010G.), the provisions of Article 15 of the CGR in connection with the appointment of the Nomination and Remuneration Committee, its duties and responsibilities shall be mandatory on all listed companies effective from 01/01/2010G.\r\n\r\nFurther, in order to foster transparency in the Saudi Capital Market and to develop standards of Corporate Governance, the CMA, by its decision No. (1-20-2008) dated 14/5/1429H. (corresponding to 19/5/2008G.), endorsed an amendment to Clause (a) of Article 18 of the CGR to read “A Board member shall not, without prior authorization from the General Assembly, which must be renewed each year, have any interest (whether directly or indirectly) in the company’s business and contracts. The activities to be performed through general bidding shall constitute an exception where a Board member is the best bidder. A Board member shall notify the Board of Directors of any personal interest he/she may have in the business and contracts that are completed for the company’s account. Such notification shall be entered in the minutes of the meeting. A Board member who is an interested party shall not be entitled to vote on the resolution to be adopted in this regard neither in the General Assembly nor in the Board of Directors. The Chairman of the Board of Directors shall notify the General Assembly, when convened, of the activities and contracts in respect of which a Board member may have a personal interest and shall attach to such notification a special report prepared by the company’s auditor”.\r\n\r\nThese steps would help protect the rights, investments and savings of the company, the investors and the shareholders. However, this is only a small step and there is need for completely overhauling the system to develop the corporate sector, in particular, and to ensure effective Corporate Governance in KSA.\r\n\r\n<strong>Saudi Law</strong>\r\nSaudi Arabia is a religious country governed by Islamic Law (Shariah). Under Shariah law, a government may issue regulations provided that these do not conflict with established principles of the Shariah. Therefore, all legislation is intended to supplement Shariah law and must adhere to its principles.\r\n\r\nThe Islamic guiding principles of accountability, trust, fairness and transparency serve as strong motivations for the company directors in Saudi Arabia to ensure that they protect the interest of their shareholders and fulfil their duties and obligations within best of their abilities. On the other hand, there is need to implement these Islamic principles in terms of laws and regulations to ensure compliance. Since these principles are based on Islam and Shariah, they would gain widespread acceptance and compliance.\r\n\r\nThere is no published single comprehensive code of Corporate Governance in Saudi Arabia, although there is a code issued by the CMA which the companies are advised to follow. Nevertheless, the enforcement of this code is yet lacking in terms of putting strict compliance requirements <sup>3 </sup>.\r\n\r\n-    The Companies Law, and its subsequent amendments, covers the rules for the formation and operation of business entities in Saudi Arabia. The Saudi Companies Law lays down the basic duties and responsibilities of the Directors individually and their collective duties as Board of Directors.\r\n\r\n-    Corporate Governance Regulations: these relate to the management of joint stock companies listed on the Saudi Stock Exchange “Tadawul” to ensure their compliance with best governance practices that ensure the protection of shareholder rights.\r\n\r\n-   Capital Market Law: provides general rules covering a variety of areas, including but not limited to, establishment of the CMA and the Saudi Stock Exchange, issuance and trading of securities, manipulation and insider trading, sanctions and penalties for violations of this law and its implementing regulations.\r\n\r\n<strong>Directors Duties in the Kingdom</strong>\r\nBoard of Directors is a key element of the governance mechanism of any company. The directors are regarded as persons with the information, the will and the power to act, within a corporation to protect shareholders and stakeholders alike. Therefore, their role is very important and crucial in the development of an effective corporate governance framework in any jurisdiction.\r\n\r\nIn addition to any obligations arising out of Shariah principles, the Directors’ general duties and liabilities include the following:\r\n\r\n<strong>a. Duty to avoid Conflict of Interests <sup>4 </sup>:</strong> A director may not have an interest whether directly or indirectly, in any transactions or contracts made for the account of the company, except with an authorisation from the General  Assembly, to be renewed annually.\r\n\r\nb. A director owes the duty of disclosure of personal interest to the board in any transaction made for the account of the company and such interested Director shall refrain from voting on the resolution to be adopted in this respect.\r\n\r\nc. The Chairman of the Board of Directors is required to communicate to the General Assembly when it convenes the transaction and contracts in which any director has a personal interest. Such communication shall be accompanied by a special report from the company’s auditor.\r\n\r\n<strong>d. Duty not to participate in Competing Business <sup>5 </sup>:</strong> A director may not, without authorisation from the General Assembly meeting, participate in any business competing with that of the company, or engage in any of the commercial activities carried on by the company, otherwise the company has the right either to claim damages from him or to consider the operations he has conducted for his own account as having been conducted for the account of the company.\r\n\r\n<strong>e. Duty not to take loan <sup>6 </sup>:</strong> A corporation may not grant any cash loan whatsoever to any of its directors, nor may it guarantee any loan contracted by a Director with a third party. Banks and other credit companies shall be excepted from this provision, for these may, within the limits of their objects and under the same terms and conditions as they apply to their transactions with the public, grant loans to or open credits for their Directors or guarantee loans contracted by them with third parties. Any contract concluded in violation of this rule is considered null and void.\r\n\r\n<strong>f. Duty to keep Confidentiality:</strong> A director owes the duty of confidentiality and must not disclose any information to the shareholders outside a general meeting as may have come to his knowledge by reason of his position as a director <sup>7 </sup>.\r\n\r\n<strong>g. Duty to adhere to core Ethical Values <sup>8 </sup>:</strong> A director must carry out his duties in a responsible manner, in good faith and with due diligence and he represents all shareholders and not just a group of shareholders.\r\n\r\n<strong>h. Duty to be accountable <sup>9 </sup>:</strong> Directors are jointly responsible for damages to the company or its shareholders or third parties, arising from their misadministration of the company’s affairs or their violation of the provisions of the Companies Law or of the company’s memorandum of association or by-laws.  Joint liability arises in case of a wrongful act arising from a resolution adopted by a unanimous vote, but where resolution is adopted by a majority vote and dissenting directors objection is expressly recorded in the minutes, a dissenting director is not liable. Absence from the meeting at which such resolution is adopted shall not constitute cause for relief from liability, unless it is established that the absentee was not aware of the resolution, or, on becoming aware of it, was unable to object to it. The company may institute an action in liability against its directors for wrongful act: that cause prejudice to the body of stockholders. The resolution to institute this action shall be made by the Ordinary General Assembly meeting, which shall appoint a person (or persons) to pursue the case on behalf of the company. If the company is adjudged bankrupt, the institution of this action shall rest with the receiver, and upon the dissolution of the company, the liquidator shall institute and pursue the case after obtaining the approval of the regular General Assembly meeting <sup>10 </sup>.\r\n\r\nExcept in cases of fraud and forgery, the right of instituting the action in liability vested in the company shall be extinguished by the Ordinary General Assembly meeting exonerating the Board of Directors from responsibility for its administration. In all cases, such action shall be barred after the lapse of one year from the date of such exoneration <sup>11 </sup>.\r\n\r\n<strong>i. Duty to Act within Powers <sup>12 </sup>: </strong>Under the law the Board of Directors enjoy full powers in the administration of the company. It is entitled within the scope of its competence, to delegate one or more of its members or others to perform an act or certain acts. Nevertheless, the Board of Directors may not contract loans for terms exceeding three years, or sell or mortgage the real property or the place of business of the company, or release the debtors of the company from their liabilities, unless it is authorized to do so by the company’s articles of association and by-laws. If the company’s by-laws and articles of association do not contain any provisions to this respect, the Board may perform the above acts only with an authorization from the General Assembly meeting, unless such act fall by virtue of their nature within the scope of the company’s objects.\r\n\r\n<strong>j. Duty to submit annual report <sup>13 </sup>:</strong> The Directors have the duty to submit report to the Ordinary General Assembly meeting. It must include a comprehensive statement of all the amounts received by directors during the financial year in the way of emoluments, share in the profits, attendance fees, expenses, and other benefits, as well as of all the amounts received by the directors in their capacity as officers or executives of the company, or in consideration of technical, administrative, or advisory services.\r\n\r\n<strong>k. Accountability towards Shareholders:</strong> Under the law every stockholder shall have the right to institute the action in liability against Directors on behalf of the company if the wrongful act committed by them is of a nature to cause him personal prejudice. However, the stockholder may institute such action only if the company’s right to institute it is still valid and after notifying the company of his intention to do so. lf a stockholder institutes such action, he shall be adjudged (compensation) only to the extent of the prejudice caused to him <sup>14 </sup>.\r\n\r\nPenalties for breach of directors duties or abuse of position are severe and include:\r\n\r\n<strong>1.</strong> liability to company, to its shareholders and to third parties; and\r\n\r\n<strong>2.</strong> imprisonment for a maximum of five (5) year; and\r\n\r\n<strong>3.</strong> a fine of between Saudi Riyals ten thousand and one hundred thousand (SAR 10,000 and SAR 100,000).\r\n\r\n<sup>1 </sup>Issued by the Board of Capital Market Authority pursuant to Resolution No. (1/212/2006) dated 21/10/1427H. (corresponding to 12/11/2006G.) based on the Capital Market Law issued by Royal Decree No M/30 dated 2/06/1424H. (corresponding to 31/07/2003G. )\r\n\r\n<sup>2 </sup>As amended by CMA Resolution No.(1-1-2009) dated 8/1/1430H (corresponding to 5/1/2009 G.)\r\n\r\n<sup>3 </sup>In its annual report dated 2008, the CMA stated that it will create an independent department to monitor compliance of listed companies with the corporate governance regulations. According to the CMA annual report of 2009, 6 companies failed to comply in 2009 with disclosure in their board of directors’ reports for the preceding year, in accordance with the requirements of the “Corporate Governance Regulations”, as compared with 11 companies in 2008.\r\n\r\n<sup>4 </sup>Article 69 of the Companies Law and Article 18 of CGR.\r\n\r\n<sup>5 </sup>Article 70 of the Companies Law and Article 18 of CGR.\r\n\r\n<sup>6 </sup>Article 71 of the Companies and Article 18 of CGR\r\n\r\n<sup>7 </sup>Article 72 of the Companies Law and\r\n\r\n<sup>8 </sup>Article 11 of CGR\r\n\r\n<sup>9 </sup>Article 76 of the Companies Law\r\n\r\n<sup>10 </sup>Article 77 of the Companies Law\r\n\r\n<sup>11 </sup>Ibid\r\n\r\n<sup>12 </sup>Article 73 of the Companies Law and Article 11 (h) of CGR.\r\n\r\n<sup>13 </sup>Article 9 of CGR\r\n\r\n<sup>14 </sup>Article 78 of the Companies Law'),
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(79157, 4315, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nAs of February 2011, Sharjah Department of Economic Development (“SDED”) has established a new Intellectual Property Rights Protection Department (“IPRD”) in a show of commitment to the enforcement of IP rights in Sharjah in a more organised and streamlined manner.\r\n\r\nSharjah is one of the seven emirates forming the federation of the United Arab Emirates and its Department of Economic Development is the governmental authority charged with powers of enforcement of IP rights.\r\n\r\nPreviously, complainants seeking to file complaints against IP infringements had to pursue their complaints through the Complaints and Dispute section, a part of the Legal Affairs department of the SDED, and raids would be conducted through them. The creation of the IPRD means that complainants can now route their complaints directly to the IPRD, which acts as a one stop shop for conducting raid action against infringers in the emirate of Sharjah.\r\n\r\nThis important development is a boon to trademark proprietors in the combat against counterfeits as it demonstrates a consolidated and focused approach taken by the UAE government at the emirate level to win the war against IP infringements. With the IPRD entrenched as part of the government’s artillery in IP enforcement, it is expected that it will provide a platform for the launch of public awareness programs on IP rights and its enforcement as well for facilitating engagement with other public authorities such as the Police as well as the private sector.'),
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(79176, 4316, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nThe Banking and Finance team at Al Tamimi and Company have been at the forefront of the banking and finance sector in the Middle East and as a result have earned a strong reputation as leaders in this area of practice.\r\n\r\nOur practice advises lenders and borrowers on all aspects of structuring, negotiating and documenting finance transactions. We represent local and international banks and financial institutions in both conventional and Islamic transactions.\r\n\r\nWe have extensive experience working for international law firms and financial institutions in the Middle East and our lawyers are fully conversant with all aspects of banking and finance law in the region.\r\n\r\n<strong>Lead by partners Husam Hourani, Lynette Brown and Jody Waugh, our team of 16 lawyers is perfectly positioned to provide advice across the spectrum including:</strong>\r\n<ul>\r\n 	<li>Islamic finance</li>\r\n</ul>\r\nStrong Islamic finance practice acting for a majority of the Islamic finance institutions operating in the UAE, ranging from establishment and licensing of those institutions through to structuring and documentation. Recently this also included assisting with some of the first Islamic home finance documentation for use in the Kingdom of Saudi Arabia.\r\n<ul>\r\n 	<li>Banking litigation and enforcement</li>\r\n</ul>\r\nAt the forefront of banking litigation and enforcement in the UAE, having obtained numerous judgments for the enforcement of corporate and retail finance documents and related security. Recently this has included obtaining many judgments for enforcement of mortgages in Dubai, together with leading the field in Islamic finance enforcement.\r\n<ul>\r\n 	<li>Derivatives</li>\r\n</ul>\r\nWe advise banks and corporates in relation to ISDA documentation and enforceability under UAE law.  We have also been involved in assisting banks develop Shariah compliant hedging products for their customers.\r\n<ul>\r\n 	<li>Investment funds and structures</li>\r\n</ul>\r\nWe recently assisted a client establish the first Real Estate Investment Trust in the DIFC and regularly advise on both UAE and DIFC collective investment funds.\r\n<ul>\r\n 	<li>Ship, aircraft and asset financing</li>\r\n</ul>\r\nRegularly advise our clients on vessel and aircraft acquisition financing transactions. We also advise our clients, including Caterpillar, in connection with the financing of mobile and fixed cranes as well as power generation and large earth moving equipment.\r\n<ul>\r\n 	<li>Real estate financing</li>\r\n</ul>\r\nActive in development finance which has included the financing of the Mirdiff Mall, Al Ghurair Shopping Centre, Palazzo Versace Hotel and Residences and the Ramada Chelsea Hotel.\r\n<ul>\r\n 	<li>Trade and export financing</li>\r\n</ul>\r\nRegularly advise our clients in connection with various trade finance credit facilities, including export letters of credit, bank guarantees, buyers credit, trust receipt structures, bill discounting and factoring. This also includes documentation for the structured endorsement and avalisation of promissory notes and bills of exchange.\r\n<ul>\r\n 	<li>Project finance</li>\r\n</ul>\r\nInvolved in financing of projects and infrastructure within the UAE. More recently this has included the Dolphin pipeline refinancing, Yahsat satellite project, Shams solar power plant and the expansion of the port of Fujairah.\r\n\r\nWe have also advised lenders in relation to the Dubai Metro Project, Formula One race track project in Abu Dhabi and the Burj Khalifa project.\r\n<ul>\r\n 	<li>Incorporation and licensing of financial institutions</li>\r\n</ul>\r\nDominant regulatory practice which has included the conversion of Dubai Bank to an Islamic institution, establishment of Noor Islamic Bank, Abu Dhabi Commercial Islamic Finance Company, Al Mal Capital and Gulf Capital. We also have a substantial presence in the DIFC, having assisted over 80 entities with their set up and licensing within the DIFC.\r\n\r\nFor more information please contact:\r\n\r\nHusam Hourani\r\nManaging Partenr &amp; Head of Banking &amp; Finance\r\np: +971 4 3641517\r\nE: <a href=\"mailto:h.hourani@tamimi.com\">h.hourani@tamimi.com</a>\r\n\r\nLynette Brown\r\nPartner\r\np: +971 4 3641573\r\nE: <a href=\"mailto:l.brown@tamimi.com\">l.brown@tamimi.com</a>\r\n\r\nJody Glenn Waugh\r\nPartner\r\nP: +971 4 3641657\r\nE: <a href=\"mailto:j.waugh@tamimi.com\">j.waugh@tamimi.com</a>'),
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(79191, 4317, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\n<strong>Summary</strong>\r\nIn an action initially filed before Dubai Court of First Instance, the Court of Cassation ultimately held that in accordance with Article 13 of Law No.13 of 2008 Regulating the Interim Real Estate Register in the Emirate of Dubai an action can be initiated before the Dubai Court against the developer or the broker, who has committed an act or omission constituting an offence under either Law No. 13 of 2008 or other legislation in force, prior to having recourse to RERA’s General Director.\r\n\r\n<strong>Claim</strong>\r\nA property action was filed by the purchaser (the Claimant) against the developer (the First Defendant) and the Broker (the Second Defendant) (together the Defendants). The Claimant submitted that the Second Defendant (although not registered in the Brokers’ register) offered  him the opportunity to purchase several units owned by the First Defendant. As a result, the Claimant purchased several units in several projects (which were still under construction) and paid several installments to the First Defendant. The Claimant submitted that both Defendants failed to provide him with the booking form, schedule of payment or the SPA of any units purchased earlier. In light of this the Claimant requested the Court to direct both Defendants to pay him jointly the amount of AED 4,570,441.40.\r\n\r\n<strong>The Court of First Instance</strong>\r\nThe Court of First Instance accepted the claim and ruled in favour of the Claimant. The SPA’s concluded between parties were cancelled and the Defendants were ordered to pay jointly the Claimant the amount of AED 4,570,441.40. Consequently both Defendants appealed the judgment.\r\n\r\n<strong>The Court of Appeal</strong>\r\nThe Court of Appeal overturned the Court of First Instance’s decision and dismissed the case on the basis it had been initiated prematurely. Consequently, the Claimant appealed to the Court of Cassation.\r\n\r\n<strong>The Court of Cassation</strong>\r\nThe Claimant argued that the court of Appeal had erred in its decision to dismiss the case based on premature filing. The Claimant further argued that the Dubai Land Department was the authority with competence to assess acts or omissions committed by the broker or the developer.\r\n\r\nThe Claimant submitted that his action was based on the fact that both Defendants received the amount of AED 4,570,441.40 from him without having concluded any contract; therefore, the Dubai Land Department had no connection to the matter.\r\n\r\n<strong>Article 13 of Law 2008 prescribes as follows:</strong>\r\n“When the Department finds that a developer or Broker has committed an act or omission that constitutes an offence under this Law or other legislation in force, the Director General shall prepare a report and refer the matter to the competent investigating authorities.”\r\n\r\nThe Court interpreted this article to mean that there is no provision in the law that imposes an obligation on the purchaser to have received the report from the Dubai Land Department prior to proceeding with the filing of a case before the Dubai Court.\r\n\r\nFinally, the Court concluded that filing a case before the Dubai Court without first having recourse to RERA’s Director General in order to solicit the report (that shall, at a later stage, be provided to the investigating authorities) will not preclude the Court from exercising jurisdiction over the case.'),
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(79210, 4318, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nOver the last few years, a significant number of commercial and office towers have been constructed in Dubai. The majority of those buildings have been strata-titled to allow for separate ownership of units within the buildings pursuant to Law No. 27 of 2007 Concerning Ownership of Jointly Owned Properties in the Emirate of Dubai (the “JOP Law”). This has enabled many investors to own high-quality commercial property that is attractive to tenants.\r\n\r\nHowever, ownership of a strata unit places additional obligations on an owner, which may create additional risks for the owner when leasing its unit. The owner should therefore be familiar with the requirements of the JOP Law and the Directions published pursuant to the JOP Law on 13 April 2010 (the “Directions”), and it should take these requirements into consideration when preparing its leasing documentation and when dealing with its tenant and the relevant Owners’ Association. This article sets out some of the matters which an owner should consider when leasing its unit.\r\n\r\n<strong>Notification of Tenant’s Details</strong>\r\nUpon leasing, sub-leasing or granting usufruct rights in relation to a strata unit, an owner is required to give written notice, which has been countersigned by the tenant or its agent, to the Owners’ Association.  The notice must provide details of:\r\n<ul>\r\n 	<li>the unit number and address;</li>\r\n 	<li>the owner’s name and any new registered address for the owner (if the owner’s address has changed);</li>\r\n 	<li>the nature of the dealing (e.g. lease);</li>\r\n 	<li>the tenant’s name and registered address, mobile telephone contact number and facsimile number or email address; and</li>\r\n 	<li>if a broker will be managing the unit on behalf of the owner, the name and contact details (including facsimile number and email address) of the broker.</li>\r\n</ul>\r\nIt is important for the Owners’ Association to have a record of the tenant’s details so that it can contact the tenant directly in relation to any matters pertaining to the unit (for example, to gain access to the unit) or the tenant’s use of the common areas. We therefore recommend that the lease includes a clause which requires the tenant to notify the Owners’ Association of any change in its contact details.\r\n\r\n<strong>Compliance Requirements</strong>\r\nThe JOP Law and Directions require all owners and occupiers of strata units to comply with the Association Constitution, Jointly Owned Property Declaration, Community Rules and Master Community Declaration for the strata scheme(s) which the unit forms part of, including any higher scheme, (the “JOP Documents”). Owners and occupiers of units must also ensure that their guests and visitors observe the Community Rules.\r\n\r\nA unit owner should provide copies of the JOP Documents to its tenant.  Ideally, the documents should be provided before the tenant signs a lease of the unit so that the tenant is aware of all of its obligations before it enters into the lease.\r\n\r\nWe recommend that the lease includes a clause which requires the tenant to comply with the JOP Law, Directions and JOP Documents (insofar as they are applicable to an occupier of a unit).  Although the tenant’s obligations to comply are contained in the JOP Law and Directions, including this in a clause in the lease may give the landlord additional enforcement rights for breach of lease if the tenant does not comply.\r\n\r\n<strong>Breach </strong>\r\nIf the tenant breaches the JOP Law, Directions or JOP Documents or causes the owner to breach any of these, the owner should be able to take action against the tenant to recover any penalties, costs or damages which the owner has incurred as a result of the tenant’s breach.\r\n\r\nThis is particularly important if the lease requires the tenant to pay service charges or any other charges levied against the owner by the Owners’ Association. The JOP Law grants the Owners’ Association a lien, which is a form of security interest, over each unit for unpaid service charges and any other obligations levied against the unit owner in accordance with the JOP Law or the Association Constitution. This allows the Owners’ Association to obtain an execution order from the Court to sell the unit by public auction to recover the outstanding amounts.\r\n\r\nFurther, the Owners’ Association is entitled to impose a penalty at the rate of 12% per annum on any owner who fails to pay a service charge or utility charge by the due date. The Owners’ Association may also claim its costs incurred in recovering outstanding service charges or utility charges from the owner.\r\n\r\nTherefore, if the lease requires the tenant to pay the service charges, utility charges or any other charges levied by the Owners’ Association, we recommend that the lease requires the tenant to pay the relevant amount by the due date set by the Owners’ Association. The lease should also include a clause which requires the tenant to immediately reimburse the owner for any penalties, costs or damages which it incurs as a result of the tenant’s failure to pay the relevant charges by the due date or the tenant’s breach of the JOP Law, Directions or JOP Documents.\r\n\r\nThe owner must also ensure that it does not permit the tenant to perform, or omit to perform, an act that would cause a breach of the JOP Law, Directions or JOP Documents. For example, Article 22(1) of the JOP Law states that a unit owner may not make any alterations or modifications to the structure or external appearance of its unit or any part of the jointly owned property that would materially affect the unit or the jointly owned property or its external appearance. If the owner allows the tenant to make any such alterations or modifications, this will place the owner in breach of the JOP Law. The owner will then be liable to repair the resulting damage at its own cost or, if the Owners’ Association repairs the damage, to pay the Owners’ Association’s costs in accordance with Article 22(2) of the JOP Law.\r\n\r\n<strong>Enforcement Notices</strong>\r\nThe Owners’ Association Board has the power to issue a Community Rules Enforcement Notice to an owner or occupier whom it considers to be in breach of the Community Rules.  If the owner or occupier fails to comply with the Community Rules Enforcement Notice, the Owners’ Association Board may impose a penalty in an amount up to AED 2,000.00 on the owner or occupier.\r\n\r\nWe recommend that the lease requires the tenant to comply with any Community Rules Enforcement Notice issued by the Owners’ Association Board in relation to the tenant’s breach of the Community Rules. The tenant should be obliged to comply within the timeframe set out in the notice. If the tenant fails to comply with the notice, the owner will have the right to take action against the tenant for breach of the lease.\r\n\r\n<strong>Voting Rights</strong>\r\nThe owner must keep in mind its obligations under the lease when exercising its voting rights in relation to the jointly owned property. In this respect, the owner should refrain from voting in favour of a proposal which would adversely affect the tenant’s occupation and use of the unit or which would place the owner in breach of the lease. For example, if the lease grants the tenant the right to use a parking bay in the building 24 hours a day, the owner may be in breach of the lease if it votes in favour of a motion to restrict access to the building car park during particular hours.\r\n\r\n<strong>Use of Common Areas</strong>\r\nMost unit owners do not have sufficient voting entitlements to effectively control the management or maintenance of the common areas of the building, and therefore cannot guarantee to their tenants that the common areas will be managed or maintained in a particular way or to a certain standard.  If the lease contains an obligation in relation to particular maintenance matters which the owner cannot control (e.g. the frequency of external window cleaning) and that obligation is not performed by the responsible party, the owner may be in breach of the lease.  For this reason, the lease should be carefully drafted to ensure that the owner does not agree to an obligation in relation to the common areas which it cannot fulfil or which it cannot compel another party to fulfil.\r\n\r\nWe also recommend that an owner makes it clear in the lease that the owner is not responsible for the management and maintenance of the common areas and that the owner makes no representations or warranties about the same.  Further, the lease should state that the tenant’s use of the common areas is subject to the tenant’s compliance with the JOP Law, Directions and JOP Documents and any limitations imposed by the Owners’ Association.\r\n\r\n<strong>Special Charges</strong>\r\nThe Owners’ Association Board is entitled to impose a special service charge on owners from time to time in relation to any expenditure which was not included in the annual budget for the building and not reasonably anticipated when the budget was prepared. If the owner wishes to pass the obligation to pay a special service charge on to its tenant, we recommend that the lease contains a clause which requires the tenant to pay any special service charges as and when levied by the Owners’ Association Board.\r\n\r\n<strong>Insurance</strong>\r\nThe Directions require the Owners’ Association to insure the building (including the units and common areas) for its full replacement value under a comprehensive insurance policy against damage or destruction by explosion, fire, lightening, storm, tempest and water.  However, this does not extend to insuring within a unit:\r\n<ul>\r\n 	<li>temporary walls, floors and ceilings;</li>\r\n 	<li>fixtures which are removable by a tenant at the end of a lease;</li>\r\n 	<li>mobile or fixed air conditioning units which service a particular unit;</li>\r\n 	<li>curtains, blinds or other external window coverings; and</li>\r\n 	<li>mobile dishwashers, clothes dryers or other electrical or gas appliances not wired or plumbed in.</li>\r\n</ul>\r\nThe Directions state that an owner or occupier of a unit is responsible for insuring their own property or interest to the extent that they are not covered by the Owners’ Association’s insurance policies.  Therefore, the owner should insure any items which are not covered by the building insurance policy or include a clause in the lease which requires the tenant to take out the appropriate insurance.\r\n\r\nIf the way in which an owner or occupier uses a unit causes the insurance premium payable by the Owners’ Association to be increased, the Owners’ Association is entitled recover the amount of the increased premium from the owner. If the increase is caused by the tenant’s use of the unit, the owner should be able to recover the amount from the tenant. We therefore recommend that the lease contains a clause which gives the owner the right to recover from the tenant any increase in insurance premiums which the Owners’ Association or the owner incurs as a result of the tenant’s use of the unit or require the tenant to pay the amount directly to the Owners’ Association.\r\n\r\n<strong>Damage or Destruction of Building</strong>\r\nIf the building or any part of the building is destroyed or damaged, it is unlikely that the owner will have any control over the reinstatement of the building or repair of any damage (apart from exercising any voting rights), as this will be the responsibility of the Owners’ Association.  Therefore, the owner should ensure that the lease does not contain any warranties in relation to reinstatement or repair of damage to the building.  It would also be prudent to include a provision in the lease which excludes the owner from liability for any damage, loss or inconvenience suffered by the tenant due to the destruction or damage or due to any delay in rebuilding, reconstructing, or restoring the building or the Owners’ Association’s refusal to do so.\r\n\r\n<strong>Conclusion</strong>\r\nWhen leasing a strata unit, an owner must take into consideration its rights and obligations under the JOP Law and Directions. The lease should be carefully drafted to ensure that any additional risks arising from the fact that the unit forms part of jointly owned property are minimised.'),
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(79229, 4319, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nOn 23 February 2011, the General Civil Aviation Authority (GCAA) released a Notice of Proposed Amendment (No. 2 of 2011) in relation to the regulations concerning foreign air operators within the United Arab Emirates (UAE). The replaces the Notice on the same topic, issued in February 2010.\r\n\r\nThe amendments rely upon Article 1 of the Chicago Convention which sets out that contracting states shall have complete sovereignty over the airspace above its territory.  As such, a foreign air operator must comply with the Civil Aviation Law and Regulations of the UAE when operating within its territory.\r\n\r\nThe proposed amendment to the regulations insist that a foreign air operator operating into and out of UAE certified aerodromes, will not only have to comply with the terms and conditions of its State’s Air Operator Certificate (AOC), but shall also have to obtain a Foreign Air Operator Certificate (FAOC) issued by the GCAA with conditions and limitations as may be applicable.\r\n\r\nThe proposed changes to the regulations conform with the International Civil Aviation Organisation (ICAO) “Manual of Procedures for Operations, Inspections, Certification and Continued Surveillance” of Air Operators (DOC 8335) which was developed in order to allow signatory States to address specific safety concerns of foreign aircraft operating within their territory and take any necessary action.  The above mentioned manual was developed as part of the ICAO’s strategy to address safety concerns resulting from operators obtaining flags of convenience from States with inadequate safety oversight.\r\n\r\nThe proposed amendment to the UAE regulations <sup>1 </sup>also give the GCAA the authority to board foreign aircraft within the UAE at any time, without notice, for the purpose of inspecting the aircraft, its documents and manuals (as provided in the Safety Assessment of Foreign Aircraft (SAFA) program) to ensure compliance with the regulations, ICAO Annexes and minimum insurance requirements.\r\n\r\nThe GCAA shall only recognize documentation (such as AOCs, licenses, certificates etc.) from other Contracting States. Differences filed by contracting states, that do not conform to UAE law, regulation, operational directives or instructions issued by the GCAA, will not be accepted.  Non contracting States may still submit an application for a FAOC which will be determined by the GCAA on a case-by-case basis, presumably upon ensuring its compatibility with UAE laws, regulations and directives.  When evaluating the applications for a FAOC, the GCAA will, in the case of negative findings or deficiencies, discuss these with the State of the Operator seeking resolution prior to granting approval of a FAOC. In cases of significant negative findings or deficiencies, a FAOC will be denied.\r\n\r\nAn FAOC will be valid for two years unless suspended or revoked, or the Operations Specifications issued by the operator’s State are suspended or revoked.  The FCAA can be renewed or amended provided that the operator meets all of the safety and regulatory requirements applicable. The GCAA may revoke or suspend the FAOC or take lesser enforcement action based upon the findings of a SAFA inspection/investigation.\r\n\r\nThe proposed regulations also specify that specific permission is required for the GCAA prior to issuing a FAOC where the operator proposes to partake in aerial work (such as sightseeing flights, aerial photography, air shows amongst other non-standard transport operations), and special operations (such as reduced vertical separation minimum, performance based navigation, extended range operations by aero planes with two turbine engines, carriage of dangerous goods and low visibility takeoff and Category II and Category III operations).\r\n\r\nThe draft regulations make it incumbent upon all foreign air operators to possess a copy of the Aeronautical Information Publication of the UAE and subscribe to the revision service of the Aeronautical Information Publication.  The nationality and registration of the aircraft must be displayed in a prominent position near the main entrance and all foreign operators must ensure that they have an Aircraft Operator Security Program (AOSP) which is accepted by the GCAA and carried in the flight deck library, prior to commencement of operations in the UAE. All personnel with responsibility for the aircraft must be familiar and compliant with the requirements of the UAE National Civil Aviation Security Program. Training programs must also be in place to deal with actions of unlawful interference and for cabin crew to provide pre-flight security checks to ensure weapons, explosives or other dangerous devices are not concealed in the cabin. Commercial air transport aircraft must have reinforced doors which are capable of being locked from the flight deck in order to prevent unauthorised access.\r\n\r\nIn keeping with the GCAA’s broader aviation regulations, the proposed regulations also state that foreign air operators shall not carry military weapons or munitions into or out of the UAE or within the airspace of the UAE, unless prior approval has been granted by the GCAA and the UAE military/national security authorities, in such cases detailed declarations of cargo need to be provided.\r\n\r\nThe foreign air operator must establish that it has procedures for reporting incidents and accidents to the GCAA.  It must also comply with the UAE’s regulations in respect of reporting requirements of incidents and accidents occurring within the territory of the UAE, which includes (where the aircraft has a flight recorder) the preservation of original recorded data of flight recorders for a period of sixty days unless otherwise directed by the investigation authority of the UAE.\r\n\r\nAlong with the proposed regulation “CAR-OPS 4” the GCAA has also released Notice of Proposed Amendment No.1 of 2011 on 2 January 2011, proposing to amend CAR Part X to come into line with ICAO requirements regarding “Safety Management System Manual” (Doc. 9859). This proposed re-issue of Part X clarifies the Organisations’ <sup>2 </sup>Safety Management System (SMS), providing more detailed guidelines for SMS application and acceptance, record keeping guidelines and other minor editorial/structural changes.\r\n\r\nThe new proposed regulations are a step closer to ensuring that all operators operating within the UAE territory comply with minimum safety requirements recognized internationally and comply with the UAE Civil Aviation Law, UAE regulations (including CAR-OPS 4) and all operational directives and instructions promulgated by the GCAA. The proposed regulations provide the GCAA with the authority to carry out checks on foreign aircraft within its territory, to ensure suitable safety measures have been implemented in compliance with the regulations. However, the specifics of the procedures that will be followed by the GCAA and relevant authorities to enforce these regulations, and the procedures that will be followed in the event of a dispute, are yet to be seen.\r\n\r\n<sup>1 </sup>The proposed regulations are to be found under Part IV of the Operational Regulations and will be named “CAR-OPS 4: Commercial and Non Commercial Air Transport Operations by Foreign Air Operators in the United Arab Emirates”\r\n<sup>2 </sup>“Organisation” means any organisation certified to provide aviation related services.'),
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(79252, 4320, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nThe Qatari Central Bank (the “QCB”), has recently announced its decision in relation to closing the “Islamic banking windows” of commercial banks. It is too early to foresee the impact of this decision on the Qatari banking sector and existing costumers of commercial banks which provide Islamic banking products. According to a memo issued by the QCB following its decision (the “Memo”), all commercial banks which have Islamic branches have been requested to stop opening new Islamic branches, accepting Islamic deposits and dispensing new Islamic finance operations. As for any current liabilities or ongoing finance operations, commercial banks may continue to manage them until the end of 2011. After that, any related asset of the bank must be managed in a special portfolio. The details of how these special portfolios will be subsequently managed in practice remain unclear.\r\n\r\nOnly few banks in Qatar are exclusively licensed to practice Islamic banking activities; the main three being Qatar Islamic Bank (QIB), Rayyan Bank and the International Bank of Qatar (IBQ Islamic). According to the Memo, the QCB’s rationale behind the decision relates to supervisory issues. These include the difficulty of effectively managing banking risks in a “combined” banking practice; the consistency of financial reporting considering the overlapping nature of Islamic and non Islamic activities; the complexity of applying unified capital adequacy standards; and the prejudice arising from the nature of competition between the banks and their transparency levels. From an internal QCB perspective, these issues have caused the QCB to face a number challenges relating to its ability to create liquidity, increase money supply and adopt certain monetary policies.\r\n\r\nAccording to local newspapers, the volume of Islamic banking activities of the commercial banks is estimated at around 20 percent of their overall banking activities in Qatar. Banks licensed under the Qatar Financial Centre (the “QFC”) are not covered by the decision. Also, we understand that the Governor of the QCB has decided to “reconsider” the decision following the reactions received from the commercial banks.\r\n\r\nIf the QCB persists in its decision, the banks will ultimately need to “liquidate” their Islamic banking activities, presumably through selling their portfolios to the remaining market competitors (Islamic banks). Whether or not QCB’s decision is fully implemented, it is a strong indicator of the intention to dissociate Islamic banking in Qatar from the standard international rules of conventional banking. The decision will reinforce the position of the existing Islamic banks but is likely to render Qatar less attractive for a number of commercial banks that endeavour to establish in Qatar.\r\n\r\nThe grip of conventional banking thus far, has caused Islamic banking to adapt to the conventional regulatory systems by modelling finance structures that fit in both banking worlds notwithstanding the particularities of Islamic banking. Clearly, the local regulator has decided to review its policies and adapt them to Islamic banking in Qatar. The decision is the first of its kind in the region and is probably driven by the desire to further control both banking sectors in an effective way given the increasing demand on Islamic banking. However, it can also be seen as an innovative opportunity for the QCB to implement a vision which will enhance the Islamic banking expansion provided that the right legal instruments are used to minimise negative impacts on the commercial banks and their customers.'),
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(79258, 4320, 'pageSummary', 'April 2011\r\n\r\n<hr />\r\n\r\nThe Qatari Central Bank (the “QCB”), has recently announced its decision in relation to closing the “Islamic banking windows” of commercial banks.'),
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(79271, 4321, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nIn September 2009, H.H Mohammad Bin Rashid Al Maktoum, the Vice President of the UAE and Ruler of Dubai issued Law No. 16 of 2009 – “Establishing the Centre for Amicable Settlement of Disputes”. The Law became effective from the day of promulgation and publication in the official gazette; however it took some time before the Centre became operational. The Law applies to certain disputes under the jurisdiction of the Courts of Dubai. Subject matter jurisdiction of the DIFC Courts is excluded.\r\n\r\nOn 1 February 2011, the Chairman of Dubai Court issued Decision No. 9 of 2011 regarding the “Jurisdiction of the Centre for the Amicable Settlement of Disputes” and Decision No. 10/2011 “Promulgating the Procedures of the Centre”.\r\n\r\nDecision No. 9 of 2011 clearly sets out the types of disputes falling under the jurisdiction of the Centre as well as those which are excluded.\r\n\r\n<strong>Article 1 of Decision No. 9 of 2011 stipulates that the Centre shall have jurisdiction to oversee the following matters:</strong>\r\n\r\n1. Disputes involving the division of common property;\r\n\r\n2. Disputes involving a principal debt of up to AED 20,000;\r\n\r\n3. Disputes where the parties agree to submit to the Centre.\r\n\r\n<strong>The Matters excluded from the Centre’s jurisdiction are as follows: </strong>\r\n1. Labor disputes;\r\n\r\n2. Disputes relating to personal status.\r\n\r\nDecision No.. 10 of 2011 contains ten articles setting out the procedures that shall be followed, adopted and implemented before the Centre.\r\n\r\nThe following is a translation of the articles of Decision No. 10/11.\r\n\r\n<strong>Article 1</strong>\r\nThe statement of dispute shall include the following particulars:\r\n\r\n1. Name, surname, profession, occupation, domicile and place of work of the disputant and the name, surname, profession or occupation, domicile, place of work and email of his attorney.\r\n\r\n2. Name, surname, profession or occupation, domicile and place of work of the respondent and name, surname, profession or occupation, domicile and place of work of his attorney or, if neither the respondent nor his attorney have no known domicile or place of work, their last domicile, residence, place of work and email.\r\n\r\n3. To “elect a domicile” for the disputant if he has no domicile in the UAE.\r\n\r\n4. The subject matter, plea and the basis of the dispute.\r\n\r\n5. Date of filing the statement of dispute at the Centre.\r\n\r\n6. Signature of the party filing the dispute or his attorney.\r\n\r\n<strong>Article 2</strong>\r\nThe records and follow-up section shall record the dispute in the relevant register, collect the fees and, accordingly, determine the exact filing date. The records and follow-up section shall then, in the presence of the disputant or his attorney, record the date of the hearing scheduled for the dispute on the original and copies of the statement of dispute. The disputant or his attorney shall sign to the effect that he is aware of the hearing date.\r\n\r\nThe dispute shall be considered filed on the date it is recorded.\r\n\r\n<strong>Article 3</strong>\r\nWhen filing the statement of dispute, the disputant shall submit to the records and follow-up section copies thereof according to the number of respondents in order to be kept in a special file. The disputant shall submit, along with the statement of dispute copies, all the documents supporting his dispute. The respondent may file a defense memorandum and copies of his documents.\r\n\r\n<strong>Article 4</strong>\r\nThe records and follow-up section shall, no later than the day following the filing of the statement of dispute, notify the parties by all means of communication, failing which it shall deliver a copy of the statement of dispute and all accompanying copies, papers and documents to the authority entrusted with service in order for service to be effected using the appropriate standard form and the original notice returned to the records &amp; follow-up section.\r\n\r\n<strong>Article 5</strong>\r\nIf the disputant and respondent appear on their own before the Centre and submit a dispute, the Centre shall hear the dispute forthwith and, if possible, negotiate a settlement or schedule another hearing therefore. The Centre shall register the matter on the roll and the dispute proceedings shall be recorded on the minutes of hearing directly.\r\n\r\n<strong>Article 6</strong>\r\nOn the day of the hearing, the parties shall attend in person or through an attorney appointed by a power of attorney.\r\n\r\n<strong>Article 7</strong>\r\nIf the disputant or the parties fail to attend the first hearing or any subsequent hearing, the Centre may refer the dispute.\r\n\r\n<strong>Article 8</strong>\r\nIf only the respondent failed to attend the first hearing, the dispute may be adjourned to a later hearing of which the disputant shall serve notice to the absent party.\r\n\r\n<strong>Article 9</strong>\r\nThe Centre may avail of the services of an interpreter who is appointed or licensed by the Ministry of Justice or the relevant authority and may secure the services of an interpreter from any other source if necessary.\r\n\r\n<strong>Article 10</strong>\r\nThe Centre may, on its own motion or upon request of a party to the dispute, correct mere mechanical errors in the settlement agreement that are of a typographical or mathematical nature. The conciliator shall make the correction on the original copy of the agreement and sign it together with the competent judge.'),
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(79285, 4321, '_yoast_wpseo_metadesc', 'In September 2009, H.H Mohammad Bin Rashid Al Maktoum, the Vice President of the UAE and Ruler of Dubai issued Law No. 16 of 2009 – “Establishing the Centre for Amicable Settlement of Disputes”.'),
(79286, 4322, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nIn today’s modern world, it has become a common phenomenon for news broadcasts, cinematic and documentary films, television series and the like to broadcast works containing copyrighted material belonging to others; further, it is also similarly common for many to publish photographs, articles without first obtaining the consent of their owners. The question which naturally arises is; are all such occurrences considered breaches of law? And if so, what penalties do such acts entail?\r\n\r\nThe starting point to understand is that the Jordanian Visual and Audio Media Law Provisional Law No. 71 of 2002 has made deference to and respect of copyrights belonging to others, one of the most important obligations which persons with a broadcasting license must abide by. Article 20 of the aforementioned Law provides that (rough translation) “licensed persons are obliged to respect the literal, artistic and intellectual rights of others.” Further, it is common practice for the license between such licensed persons and the Jordanian Audiovisual Media Commission (the “Commission”) to contain further provisions to that effect.\r\n\r\nThe Visual and Audio Media Law provides a number of penalties for contravening the aforementioned obligations as follows; Article 29 of the Law provides that a licensed person is penalized if he broadcasts or re-broadcasts work in contravention of the conditions of his licensing agreement (other than those relating to employment matters) or any of the obligations provided for by this Law, by a fine of not less than 10,000 JOD and not exceeding 50,000 JOD. Further, he is obliged to compensate any damages arising as a result of such a breach. In addition, the Law provides that the Commission is entitled to suspend his broadcasting rights for a period not exceeding 2 months for the same. The penalty is multiplied if the contravention is continuing or repeated. Further, the Commission may, upon the referral of the relevant Minister and in accordance with the recommendation of the director of the Commission terminate the offender’s license.\r\n\r\nThe aforementioned penalties are further supplemented by the Jordanian Copyright Law No.22 of 1992 (as amended). The Copyright Law, however, does not include a specific section dealing with cinematic, TV and radio works; rather, the protection so granted to their authors was implicitly provided for in protections provided to theatrical, artistic and musical works. For instance, the Copyright Law grants the author of works the exclusive right to broadcast and publish his work, as well the right to solely determine the time at which he wishes to do the same. The Copyright Law, however, exempted certain works from such protection, including but not limited to written or broadcast news, works which are part of the public domain, and the like; unless personal creativity or effort was used to create or organize such works. Further, the Copyright Law allowed the broadcasting of such works for certain educational, non-commercial purposes.\r\n\r\nIt is worth noting that the aforementioned laws permit official television and radio broadcasters to make and keep for a period not exceeding one year (unless the author agrees to extend the same) a temporary copy of certain works which they are licensed and/or permitted to broadcast, provided that they do not keep more than one copy of any such work.\r\n\r\nAs regardsWith regard to photographic works, however, the aforementioned laws allow photographers to take and broadcast pictures of places, facts and/or events which have been previously photographed. In such a case, the new photographs are considered original works belonging to the photographers. The photographers, however, are not entitled to publish their photographs if the pictures include persons who have not consented to display or publish the photos, unless the picture taken relates to a public accident or news, or if the relevant persons are officials or celebrities, or if the public authorities allow the publication of the same. The photographer must, however, ensure that the photographs do not touch upon the integrity, honor or social standing of the person so photographed. Please note that the above provisions apply equally to live photographs, as the aforementioned Copyright Law applies to all photographs irrelevant of the means for capturing them, and irrelevant of their type.\r\n\r\nThe Copyright Law grants similar exclusive broadcasting rights to the owner of the broadcasting/publishing right. The critical issue here is that it grants certain persons the right to broadcast events without granting others the same right. The aforementioned laws have dealt with this issue by differentiating between works which are merely reporting of news events or other such works in the public domain on the one hand, and between works which arise as a result of the personal creativity or effort of the author/broadcaster. The former only can be re-broadcast, without the need to obtain the consent of their original broadcaster, and in certain situations, without the need to cite the source of the original broadcast. Thus, while the author cannot prevent others from broadcasting simple recordings of an event unfolding, exposés, critical journalism and the like can be copyrighted.\r\n\r\nWhile the difference outlined above may seem arbitrary, the fact remains that the government needs to balance the rights of authors and/or licensed persons to protect their works against the greater right of the public to information; and which they have done, by ensuring that one cannot prevent others from broadcasting news events.\r\n\r\nFurther, it is important to note that the fact that the aforementioned laws have not extended their protection to include broadcasting of news events does not mean that such works are without any protection. Rather, the authors or broadcasters of such works retain the right to protect their works, through reliance on various anti-competition laws in Jordan, certain licensing arrangements and the like; albeit within certain limited situations.\r\n\r\nFinally, it is important to note that a single work may have more than one author, or else more than one person (whether as author, performer, broadcaster or the like) may have rights to a single work. The person or persons whose approval must be obtained in order to publish the work depends firstly on the type of work in question, and secondly on the persons’ specific rights to the work. Thus, for instance, while generally speaking the approval of all the authors of the work must be obtained to publish a certain work, the Law provides that where the work is divisible, an author cannot prevent his co-author from publishing his part of the work, provided that this does not contravene his rights or the rights of any other author. A further example can be found as regards cinematic works, where the producer of the work can for the period for which he is granted the permit, contract with others to make use of the work, without contravening the rights of the authors, unless otherwise agreed.'),
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(79305, 4323, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nGenerally, directors of a joint stock company (“KSC”) have a broad authority to manage the company, provided that such powers of management are not restricted by the provisions of the articles of association and/or resolutions of the shareholders of the KSC.  However, directors of a KSC may be subject to civil and criminal liabilities for mismanagement and bankruptcy of the KSC pursuant to the provisions of the Law No. 15 of the Year 1960 Regarding the Commercial Companies Law (“CCL”).\r\n\r\n<strong>Civil Liability as a Result of Mismanagement</strong>\r\nUnder the CCL, directors of a KSC  can be held personally liable for criminal acts as a result of their negligence. This does not extend to all directors but only the director who committed the negligent act or omission. As a result, directors of a KSC can be subject to claims for mismanagement by shareholders and/ or third parties.\r\n\r\n<strong>Article 148 of the CCL states the following:</strong>\r\n\r\n“The Chairman and members of the board are liable to the company, to shareholders and to third parties for all acts of cheating (fraud), abuse of authority as well as for any violation of the law or of the Articles of Association and for fault in management.  Resolutions of the General Meeting discharging the directors of liabilities shall not bar the initiating of proceedings for liability.”\r\n\r\nIn light of the above provision of the law, directors of a KSC may be personally liable for any of four types of acts/omission:\r\n\r\n1. Fraud; or\r\n\r\n2. Abuse of authority; or\r\n\r\n3. Contravention of the law or the Articles of Association of the KSC; or\r\n\r\n4. Fault in management.\r\n\r\nStandard of Care: To establish liability, it is necessary to define the boundary  of the standard of care required or expected of directors of a KSC.Given the lack of court precedents in this area, it is arguable that the required standard of care for directors is the “Prudent Person” standard with an average experience and competencies, varying from one industry to another.  The “Prudent Person” is the reasonable person who exerts and applies the same standard of care when running his or her own affairs.  This subsequently means maximum effort and care in managing the KSC’s affairs taking into account  the KSC’s best interests.\r\n\r\n<strong>Abuse of Authority:</strong> The CCL does not provide for the meaning of “abuse of authority”. Neither does any other related law for that matter, such as the Kuwait Law of Commerce.  In the  commercial sense and using the “Prudent Person” test,  “abuse of authority” may be best measured when a prudent director acts contrary to or omits to act in the best interest of the KSC.\r\n\r\n<strong>Fault in Management: </strong>There is no definition of what constitutes “fault in management” under the CCL. Therefore, it is possible to give a wide interpretation as to cover any sort of mismanagement. Further, Article 146 of the CCL provides directors with the right (subject to the law, the articles of association and resolutions of the shareholders’ general meeting) to carry out all necessary matters which are consistent with the objects upon which the KSC was established.  This establishes that the authority of directors to carry out all necessary things to achieve the objects of the KSC.  Therefore, the objects of the KSC are the standard by which the acts would be judged to have authorized or ultra-vires acts of the directors, and not the KSC.  However, it is not practical to hold directors liable for every fault in management because the effect would be that no one will want to assume or accept to be nominated as a director of a KSC.  Therefore, it is necessary to distinguish between three kinds of liability: (a) director’s liability – serious fault; (b) director’s responsibility - minor fault; and (c) pure corporate liability.\r\n\r\n<strong>Civil Liability as a result of bankruptcy</strong>\r\nArticle 684 of the CCLholds members of the board responsible for the KSC’s debts, presuming that the KSC filed for bankruptcy (with the potential of proving that reasons include mismanagement of its affairs).  Article 684 states that:\r\n“Where after a company is declared bankrupt, it is revealed that its assets are insufficient to discharge at least 20% of its debts, the Court may, pursuant to an application by the bankruptcy receiver, order the mangers, directors or any of them to pay jointly or otherwise all or part of the debts of the company, unless they prove that in administering the company’s affairs, they have exercised due care.”\r\n\r\nHowever, there are conditions that must be met in order to arrive to that point.  They are as follows:\r\n\r\n1. The KSC must be declared bankrupt or insolvent;\r\n\r\n2. Insufficiency to pay the KSC’s debts of 20% of its debts. (therefore, 80% of KSC’s assets would have been entirely wiped out.  But if there remain 20% of its assets sufficient to pay 20% of its debts, directors and managers may not be liable);\r\n\r\n3. The trustee in bankruptcy would request the Court to declare the bankruptcy of the directors;\r\n\r\n4. Members of the board fail to disprove mismanagement or misuse of the KSC’s resources or other faults as per Article 148 of the CCL (therefore, the onus of proof shifts to the managers and directors to disprove that they did nothing that contravenes Article 148)\r\n\r\n5. There must be a judgment by the Courts obligating members of the board to pay the debts of the KSC where the Court finds that they committed either of the acts in Article 148 and the Court may declare a judgment against one of them whether severally or jointly as in addition to opposing such other conditions as it sees fit.\r\n\r\n<strong>Criminal Liability in the context of bankruptcy</strong>\r\nThe CCLimposes a number of criminal sanctions and make them subject to imprisonment for actions taken prior to bankruptcy and also for action taken after bankruptcy.\r\n\r\nArticles 789 of the CCL and onwards provide that if a bankruptcy judgment is issued, directors can be subject to imprisonment for up to 5 years if it is proven that they undertook any of the following after the date of suspension of payment of debts:\r\n\r\n1. Hide the KSC’s records and books;\r\n\r\n2. Embezzle or hide any of the KSC’s assets;\r\n\r\n3. Intentionally declare invalid debts regardless whether such declaration is made in writing or verbally, in the financials of the KSC, by refraining from submitting documents or clarifications;\r\n\r\n4. Undergo judicial settlement through fraud;\r\n\r\n5. Declare untrue capital;\r\n\r\n6. Distribute untrue profit or received bonuses in excess of the limits imposed in the Articles of Association of the KSCor set forth in the law;\r\n\r\n7. Dispose assets and funds of the KSC with the intention to deprive creditors from rights to such funds or assets;\r\n\r\n8. Make payment to a creditor in a manner that defeat other creditors;\r\n\r\n9. Grant any security to a creditor to defeat other creditors;\r\n\r\n10. Dispose the KSC’s assets at less than its “normal” price to delay the suspension of payment status, or to delay bankruptcy or revocation of judicial settlement;\r\n\r\n11. Use illegal ways to obtain funds to delay the suspension of payment status, or to delay bankruptcy or revocation of judicial settlement;\r\n\r\n12. Spend gross funds in gambling or speculations not required in the ordinary course of business of the KSC; or\r\n\r\n13. Participate in matters violate the law, the Articles of Association of the KSC or ratify such actions.\r\n\r\nIn cases listed in 8 and 9 above, sanctions apply even if such actions were made in an attempt to conclude a judicial settlement.\r\n\r\nIn general, directors have a fiduciary duty to the KSC and its shareholders. Directors are required to exhibit good judgment and exercise such care and diligence in running the KSC as a reasonably prudent man would do in comparable circumstances. The law grants shareholders of the KSC and/or third parties the right to claim damages against directors for acts or errors in managing the KSC, whether or not committed in bad faith and thereby exposing directors to potential liability for any of the KSC’s misfortunes.'),
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(79328, 4324, 'content', 'April 2011\r\n\r\n<hr />\r\n\r\nIn our August 2010 Law Update, Al Tamimi &amp; Company reported the first decision of a Court in the UAE to recognise and enforce a foreign arbitral award pursuant to the New York Convention.  Since the Fujairah Court’s decision, the Dubai Court of First Instance has provided yet more comfort to those engaged in international trade and commerce by recognising and enforcing a foreign arbitral award, despite the vociferous objections and challenge by the local Defendant.\r\n\r\nThis decision is pending appeal but already the Emirate of Dubai has already become a substantially safer port in the international arbitration world than at anytime in its trading history.\r\n\r\nAlthough there is no system of binding precedent which guarantees any future applicant the same result, the principles set out by the Full Bench of Dubai Court’s Commercial Division provide something of a sea chart (or road map) for those applicants seeking to have recognised and enforced their foreign awards in this jurisdiction.  The recent ruling ratified for execution of two arbitral awards from a sole arbitrator seated in London who determined a trade dispute under the DIFC-LCIA Arbitration Rules in November 2009.  The parties were respectively a Free Zone entity and a Limited Liability Company both from Dubai.  The Award comprises essentially two awards, namely a substantive award on the merits of the case followed by an award dealing with the costs of the arbitration.\r\n\r\nThe application by the Plaintiff to the Dubai Court to “ratify” or “confirm” the Award and to uphold a provisional attachment order as valid and enforceable against the Defendant was challenged on a number of grounds.  Thus, the Court was called upon to deal with the Defendant’s many arguments refuting the validity and authenticity of the arbitration agreement and the proceedings, which had the effect of obstructing and delaying the due recognition and the enforcement of the Award for nearly 12 months.\r\n\r\nThe Dubai Defendant contended for many of the grounds of annulment often deployed to set aside domestic arbitral awards (as set out in Article 216 of the Civil Procedure Code) notwithstanding its active participation in the arbitration proceedings.\r\n\r\nIn rejecting the Defendant’s submissions, the Court reasoned that the Articles of the Civil Procedure Law prescribing “validation” of domestic arbitral awards and those otherwise issued in the UAE did not apply.  Instead the applicable rules were those set out in the New York Convention itself regarding the recognition and enforcement of foreign awards.\r\n\r\nThe parties had agreed to apply DIFC-LCIA Rules which were thereby deemed incorporated as terms of the arbitration agreement.  The Dubai Court held: “The Court’s supervisory role when looking to recognise and enforce a foreign arbitral award is strictly to ensure that it does not conflict with the Federal Decree under which the UAE acceded to the New York Convention on the recognition and enforcement of foreign arbitral awards and satisfies the applicable procedural and substantive requirements of Articles IV and V of the Decree in terms of being duly authenticated”.\r\n\r\nIn short, the Court stated that it would not entertain a review of the merits of the Arbitrator’s decision (including her decision as to her jurisdiction in light of the arguments raised by the Defendant during the course of the arbitration).  Instead, the Court required only sufficient proof of the arbitration agreement and sufficient proof of the authenticity of the arbitration agreement and of the Award of the arbitrator appointed in accordance with the arbitration agreement.\r\n\r\nDespite all of the Defendant’s allegations regarding the invalidity of and indeed potential forgery of signatures on the original contract, the alleged lack of authority of the contract’s signatory and other complaints which might ordinarily ground an application to set aside a domestic award, the Court observed that the burden fell to the Defendant to make good any allegations that the New York Convention procedures had not been observed.  The Defendant had made no application in London, the seat of the arbitration, to set aside or invalidate the Award under the applicable law of the arbitration.  The Court ruled that it had no jurisdiction to hear the Defendant’s complaints predicated on grounds different from those set out in the New York Convention and there being prima facie evidence of the authenticity of and validity of the arbitration agreement and the Award, then there was no reason to deny its recognition and enforcement accordingly.\r\n\r\nThe Court expressly excluded from application section 4 (Articles 235, 236 and following) of the Civil Procedure Law regarding enforcement of foreign judgements and foreign arbitration awards generally.\r\n\r\nThese rules pre-date the UAE becoming party to the New York Convention and tend to require the applicant to re-litigate substantive issues of jurisdiction in any event and to bear the burden of establishing that no impediment exists to preclude enforcement under UAE law.  These cumbersome protectionist procedures are precisely what the New York Convention was designed to overcome.\r\n\r\nContrary to some early published UNCITRAL treaty status reports, the UAE did not make any reservations under Article I (3) to the effect that:  “This State will apply the Convention only to recognise and enforce awards made in the territory of another contracting State.”\r\n\r\nThis is a fairly common reservation by early signatories (for example, by both the UK and USA) but curiously, there was some confusion about whether or not UAE had so reserved.  The United Nations has since confirmed not and recently amended and updated its treaty status report to correct the error.\r\n\r\nOn this basis, the provisions of the UAE Law on Civil Procedure regarding recognition of foreign arbitral awards arguably have been rendered obsolete.  Thus, even arbitral awards of non-Convention States (of which admittedly there are few in the world) will fall to be recognised and enforced in the UAE under the New York Convention [and/or under any other multi- or bi-lateral treaty, if more advantageous].\r\n\r\n<strong>Fate of Future Awards - Choppy Waters Predicted</strong>\r\n\r\nThe grounds to challenge and resist recognition and enforcement of a foreign award under Article V of the New York Convention are substantially narrower than local procedures and the burden falls to a respondent to establish them.\r\n\r\nNevertheless, a Court may still refuse to enforce a foreign arbitral award if an opposing party proves:\r\n<ul>\r\n 	<li>The parties to the arbitration agreement were, under the law applicable to them, under some incapacity, or the said agreement is invalid under its governing law as chosen by the parties or under the law of the country where the award was made; or</li>\r\n 	<li>The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or</li>\r\n 	<li>The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or</li>\r\n 	<li>The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or</li>\r\n 	<li>The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.</li>\r\n</ul>\r\nAlso, a Court in the UAE may refuse to enforce the award if it decides that:\r\n<ul>\r\n 	<li>The subject matter of the award is not capable of resolution by arbitration under UAE law (i.e. is non-arbitrable), or</li>\r\n 	<li>If the recognition or enforcement of the award would be contrary to public policy.</li>\r\n</ul>\r\nGiven the UAE’s unreserved accession to the New York Convention, all foreign arbitral awards should fall to be recognised and enforced in the UAE under the Convention procedures henceforth. But it remains to be seen just how expeditious and pro-enforcement the Courts of the UAE will be in practice when applying the law of the New York Convention if subject to a relevant challenge pursuant to Article V by a recalcitrant respondent.\r\n\r\nIt may also be anticipated that such respondents will invite the Court to interpret the public policy exception expansively, so as to operate as a shield if public morals or Sharia are offended or even to protect what some foreigners might regard as purely local commercial interests.'),
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(79365, 4327, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nThe DIFC was established as the UAE’s first financial free zone with ambitious objectives to enhance Dubai’s economic development and to ameliorate reliance on oil revenues by diversifying and supporting the growth of the banking and financial sectors. The DIFC has since become the financial and business gateway between regional, emerging and international markets and contributes significantly to the UAE’s nation building mission.\r\n\r\nThe Amending Law does not change the role of the DIFC; rather its structure is being enhanced to further the original objectives and to clarify governance procedures.\r\n\r\nIn summary, the DIFC Amending Law acknowledges the relative maturity of the DIFC and reinforces its independence from “onshore” legislators.  In the Amended Law, we note:\r\n<ul>\r\n 	<li>The three main Bodies of the DIFC are retained – DIFC Authority, DFSA (the Financial Services Regulator) and the DIFC Courts.  These bodies are also confirmed as discrete economic units with separate budget lines to be approved by the DIFC President (currently, Sheikh Maktoum)</li>\r\n 	<li>Creation of Higher Board of directors comprising the Governor of the DIFC (currently H.E Saeed Mohamed Al Tayer) and chairmen of each of the three bodies to confer, collaborate and oversee the coordinated policy development and management of the DIFC – a form of “Privy Council” to advise the President of the DIFC and, in turn the Ruler of Dubai.</li>\r\n 	<li>The definition of the manner of appointment and the role of the Governor of the DIFC.</li>\r\n 	<li>The clarification of the governance and management structures of each of the three bodies.</li>\r\n 	<li>The clarification of the application of DIFC laws.</li>\r\n 	<li>The DIFCA is made responsible formally for establishing, regulating and developing a separate payment system in consultation with the UAE Central Bank to enable wholesale large-value payment systems, including multi-country, multi-currency real time clearance and settlements.  In other words, DIFCA has the capacity to clear and settle payments and to implement a system accordingly (subject always to what can be agreed with the federal authorities.).</li>\r\n</ul>\r\nThere is an apparent devolution of responsibility to the DIFC and an introduction of new layers of self-governance.  The Dubai parent is allowing its economic brainchild to come of age albeit retaining strict control of the purse strings.  Although each body is mandated to maintain a separate budget independent of the other and subject to the DIFC President’s approval, budgetary policy considerations appear to fall outside the DIFC Higher Board’s remit and each body shall be allocated separately the necessary Dubai Government funding.\r\n\r\nThere are still a number of questions that the Amended Law does not answer regarding the parameters of jurisdiction of the DIFC Courts, the respective supervisory and regulatory roles of DIFCA and the DFSA or even whether trade in local currency will be permitted in and from the DIFC and, if so, when.  Indeed, the Amending Law suggests that more changes are afoot which may heighten a sense of uncertainty and indecision in the already unsettled banking and financial markets.\r\n\r\nHowever, subtle changes to the definition of Centre Establishment tend to suggest that the Ruler intends to confirm the width of the first gateway to DIFC Court jurisdiction by affirming the Court’s exclusive power to adjudicate upon civil or commercial cases involving a party which is also an entity or business established, licensed, registered or authorised to carry on business or activities in the Centre pursuant to the Centre’s Laws, including Licensed Centre Establishments.\r\n\r\nWhen we examine Articles 8 and 13 regarding the DIFC Courts and applicable laws respectively, we find a number of confusing changes.  As before, only the DIFC Court itself may interpret the Centre’s laws and regulations but apparently it might now have to compete with other courts to interpret the provisions of this Law.  This may lead to conflicting or confusing rulings pertaining to matters or entities affecting the DIFC indirectly.  This will not engender certainty or market confidence and may encourage rather than eliminate forum shopping between the two Dubai legal systems.\r\n\r\nThe Amending Law heralds further promotion of the DIFC and Dubai as an oasis of peace, order and good governance. The DIFC community and stakeholders have welcomed this legislative commitment to subsidise DIFC’s contribution to the international financial services industry as may be necessary to maintain efficiency, transparency and integrity.\r\n\r\nWhile the Dubai Government appears to have stayed true to its original vision for the DIFC, it is recognised the international markets look to the Federal authorities, including the Central Bank, to make a clear commitment to cooperate with, and to facilitate, the DIFC as the UAE’s pre-eminent financial centre.   The Federal authorities are further called up to hasten legal and regulatory reforms to raise the standard of onshore regimes where relevant and appropriate while truly integrating the DIFC within the UAE’s commercial legal framework.  It should be resisted any attempt to quarantine or diminish the scope of DIFC Court jurisdiction and DFSA regulatory supervision and enforcement powers or fail to afford them mutual recognition and reciprocity.  The DIFC bodies themselves must also resist the temptation to “read down” or construe narrowly their respective roles and functions due to budgetary restraints or competitive political demands.\r\n\r\nIt remains to be seen how quickly the DIFC can implement the business development objectives set out in the Original Law and re-affirmed by this Amending Law and achieve its unfettered participation in the global economy.  For example, the benefits of widening the gateways to the DIFC to allow international commercial parties to choose or contract for DIFC Court jurisdiction should be considered.\r\n\r\nMeanwhile, the DIFC continues to serve as a model for international commercial arbitration and provides a neutral place for parties to resolve their disputes regardless of their connection with the country or even the region.\r\n\r\nWe commend the market to watch this space.  As the buildings in the DIFC zone reach completion and regional players take cover from disquiet elsewhere, this very space might fill quickly.'),
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(79388, 4328, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\nEmployment in Qatar is primary governed by Qatar Labor Law No. (14) of the year 2004 and a series of related Ministerial Resolutions. However corporate non corporate entities when dealing with employment in Qatar shall first consider the Sponsorship and Immigration Rules and Regulations which are mainly emphasized through the provisions of Law No. (4) of the year 2009 <strong>Regulating the Entry, Exit, Residence &amp; Sponsorship of Foreigners </strong>(the <strong>“Sponsorship Law”) </strong>that has been ratified by the Heir Apparent Sheikh Tamim bin Hamad Al Thani and came into force on 29 April 2009.\r\n\r\n<strong>Sponsorship/Exit Permit/Delivery of Passports</strong>\r\n\r\nSponsorship\r\nWith exception of some tourist visas which shall be only issued for tourism purposes, every non-GCC working foreigner wishing to enter/reside in Qatar shall have a sponsor in order to enter the country and work in Qatar.\r\n\r\n<strong>Exit Permit</strong>\r\nEmployees in Qatar (Excluding women sponsored by their husbands, minors and visitors whose visits do not exceed thirty days) cannot temporarily or permanently leave Qatar unless having first obtained an exit permit from their sponsoring employers.\r\n\r\n<strong>Delivery of Passport</strong>\r\nAs per the Sponsorship Law the sponsor shall not in any case hold the employees passports, however and as the Sponsorship Law provides that the sponsor shall be generally liable for the debts and obligations of those that it sponsors, therefore some sponsors still do require that they hold the passports of their employees.\r\n\r\n<strong>Main Restrictions under the Sponsorship Law</strong>\r\n\r\nRestriction on Working for another Employer while residing in Qatar\r\nThe Sponsorship Law has maintained natural and juristic employers’ ability to prevent expatriates whom they have sponsored from abroad from working for other parties or preventing the use of workers not being sponsored by them. Similarly, an employee is also not allowed to work for another employer other than the employer from whom he received sponsorship.\r\n\r\n<strong>Restriction on Working for another Employer after Residency cancellation </strong>\r\nThe Sponsorship Law provides that it is restricted to grant a working visa to an expatriate, who has been residing in the Sate of Qatar for work purposes unless after two years from the departure date. However, the Law has given the Minister of Interior or his deputy the right to waive this period upon a written approval from the previous sponsor”.\r\n\r\n<strong>Work Permits/Visas</strong>\r\nNon-Qatari workers may not be employed otherwise than after approval of the Department of Labour and their obtaining of permits to work in the State of Qatar. Such a work permit shall be issued to the non-Qatari subject to the following conditions:-\r\n<ul>\r\n 	<li>The non-availability of a qualified Qatari worker registered in the registers of the Department and to carry out the work in respect of which the work permit is applied for.</li>\r\n 	<li>The non-Qatari applying for the work permit shall be in possession of a residence permit.</li>\r\n 	<li>The non-Qatari national shall be medically fit…”</li>\r\n</ul>\r\nWork permits are obtained from the Department of Labour after fulfilling various immigration formalities with the Ministry of Interior, including production of a local employment contract. There are a variety of different visas and permits obtainable in Qatar, dependent on the individual’s status.\r\n\r\nWorkers can be recruited from, or not recruited from, particular countries at particular times: this is something that needs to be discussed with the Immigration Department as necessary.\r\n\r\n<strong>Labour Law – Minimum Standards</strong>\r\n\r\nQatar Labor Law prescribes a minimum set of entitlements which cannot be waived or limited\r\nArticle (4) (according to our unofficial translation; there being no official translations of Qatari laws) provides that the entitlements prescribed by this law represent the minimum entitlements of the workers and any stipulation contradicting the provisions of this law shall be void even it was made prior to the date of application of this law unless the said stipulation is more advantageous to the workers and any release, compromise or waiver of the entitlements prescribed for the worker by this law shall be deemed void.\r\n\r\n<strong>Employment Contracts</strong>\r\n<ul>\r\n 	<li>Employment Contract shall be made in Arabic.  The employer may accompany such contract with translations into other languages and in case of any difference, the Arabic text shall prevail.</li>\r\n 	<li>Employment Contract may contain a provision subjecting the worker to a probation period to be agreed on between the two parties provided that the probation period shall not exceed six months. The worker shall not be subjected to more than one probation period with the same employer.</li>\r\n 	<li>The employer may terminate the employment contract within the probation period if it has been proved to him that the worker is not capable of carrying out the work provided that the employer shall notify the worker thereof before at least three days from the date of termination.</li>\r\n</ul>\r\nArticle (38) of the Labour Law stipulates that:\r\n\r\n“The service contract shall be made in writing and attested by the Department of Labour and shall comprise three copies, one copy to be delivered to each of the parties and the third copy to be deposited with the Department.\r\n\r\nThe service contract shall specify the terms concerning the labour relationship between its two parties and in particular shall contain the following:-\r\n<ul>\r\n 	<li>The name of the employer and place of his work.</li>\r\n 	<li>The name, qualifications, nationality, profession and residence of the worker and the proof necessary for his identification.</li>\r\n 	<li>The date of conclusion of the contract.</li>\r\n 	<li>The nature and type of the work and place of contracting.</li>\r\n 	<li>The date of commencement of the work.</li>\r\n 	<li>The period of the contract if the contract is of a definite duration.</li>\r\n 	<li>The agreed wage and the method and date of the payment thereof.</li>\r\n 	<li>If the service contract is not made in writing, the worker may prove the labour relationship and the rights which have arisen there from by all means of proof.”</li>\r\n 	<li>There is a Department of Labour pro-forma labour contract; any alternative requires prior approval.</li>\r\n</ul>\r\n<strong>Employee Protection</strong>\r\n<ul>\r\n 	<li>Minimum Wage – Qatar has agreements with certain countries in relation to protection of certain low-paid workers. There is however generally no minimum wage.</li>\r\n 	<li>Working Hours/Weekends – Maximum forty eight hours per week/eight hours per days (excluding lunch break); during Ramadan – thirty six hours per week/six hours per day; one interval or more for prayer/rest/meals of between 1-3 hours; worker shall not work more than 5 consecutive hours; Friday is the weekly rest day for all workers (except shift workers) – if required to work then entitled to day in lieu and payment of plus 50% of basic wage. During the (hot) summer months, the Labour Ministry will set out permitted working for those working outside.</li>\r\n 	<li>End of Service Benefit – After one year’s continuous service, employee entitled (unless summarily dismissed) to at least three week’s salary for each year of service.</li>\r\n 	<li>Upon End of Service- upon end of the service of the worker, the employer shall at his own cost return the worker to the place from where he has recruited him at the commencement of the engagement or to any place agreed upon between the parties. The employer shall complete the proceedings of returning the non Qatari worker within a period not exceeding two weeks from the expiry date of the contract. If the worker joins another employer before his departure from the State, the obligation to return him to his country or other place shall shift to the other employer.</li>\r\n</ul>'),
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(79403, 4329, 'content', '<strong>Glamour and luxury…………..</strong>\r\nImages of an elegant and luxurious hotel, glimmering in the sun on a white sandy beach, surrounded by palm trees gently swaying in the warm breeze evokes in most, if not all of us, dreamy thoughts of glamour, relaxation, pampering and absolute delight.\r\n\r\nThose in the industry know very well that whilst this is the experience, the hotel personnel strive hard to provide for their guests, achieving this requires extreme hard work and dedication by the operator and hotel staff.\r\n\r\nBut this hard work doesn’t start and end there – this is the public face of the hotel.\r\n\r\nThe ‘private’ life of the hotel starts long before the first guest checks in.  In many respects, the development process (which commences with identification of a development opportunity and ends with completion of the finished product), is equally as difficult and demanding.\r\n\r\nThe hotel industry, whether you are an owner, developer or operator, is certainly not for the faint -hearted.\r\n\r\nIn this article, (to be produced in 2 parts), I have sought to outline the private life of the hotel - from inception through to its unveiling as the shiny finished article.  This journey is in fact far from simple, and the development process will take many twists and turns before it is completed.\r\n\r\nHowever, in my experience as a legal adviser within the hotel industry, I believe it is beneficial to be knowledgeable of all the issues and steps involved, together with the required timing for these, so that the bigger picture is always to hand (and can therefore be better managed).\r\n\r\nBoth an operator and an owner will each go through a similar process, this article focuses on the development process from an owner’s perspective.  I have chosen to do this because not all owners will have the same level of knowledge and experience of development or the hotel industry.  This article therefore seeks to show, simplistically, just how complex the development process is and how important it is to get it right.    Hotel development is too expensive a business to get wrong!\r\n\r\n<strong>The Beginning – an Opportunity……..</strong>\r\nAn opportunity presents itself.  Whether this is by way of a development site, an existing building under construction (or already constructed), or an operational hotel, the process starts.\r\n\r\nBelow/overleaf I have prepared a diagram outlining in basic form the various stages of a hotel development, together with identification of what’s involved at each stage.  This diagram cannot capture all the issues that may need to be dealt with, (for this a lengthy book would be required), but hopefully provides an informative overview.\r\n\r\nThe structure that I have commented on also assumes a stand-alone hotel.  In the event the hotel is part of a mixed-use development, or forms part of a building which also includes residential and/or commercial components (which will not form part of the hotel and therefore will not be managed by the hotel operator), the structure necessarily becomes more complex.  Additional issues and considerations will be involved in these circumstances.\r\n\r\n<strong>Due diligence………</strong>\r\nThe next step is to undertake a thorough due diligence exercise.\r\n\r\nThis will require the involvement of various professionals, including hospitality consultants, lawyers, surveyors, architects, accountants, insurers, government liaison representatives and potentially hotel operators.\r\n\r\nThe due diligence process forms the foundation upon which the project will evolve and the hotel will be built.  It is a vital part of the process and sufficient time, resources and effort should be given to it.\r\n\r\nThe due diligence process can be broken down into separate components, comprising the following:\r\n<ul>\r\n 	<li>Market research covering the geographical location of the project, competition of the proposed hotel, demographic information, potential customer analysis, the political and economical environment of the region, financial analysis of existing hotels in the vicinity of the proposed project, together with trading and employment framework etc</li>\r\n 	<li>Land and ownership investigation, to discover whether there are any potential problems with the land (survey and environmental issues), restrictions on the title or 3rd party interests etc, which may affect the development</li>\r\n 	<li>Investigation into development issues such as planning, access, utilities and licensing requirements – to understand what will be required, hurdles to be overcome and whether it will be possible to build the hotel as required</li>\r\n 	<li>Corporate structuring considerations : how does the acquisition impact on the owner’s corporate structure, is the project located in a different country, is a local company required, do property ownership restrictions apply to the owner, what corporate governance requirements need to be complied with internally?</li>\r\n 	<li>Financial due diligence and planning : what is the tax regime in the location of the project, how does this impact the owner’s existing operations and corporate structure, can profits be repatriated, does a foreign investment regime apply to the owner’s investment, what duties will be payable where goods/materials/services are imported, what are the estimated development and construction costs, can workers and materials be procured locally or do they need to be imported, what borrowing requirements does the owner have, what security will a lender require, and general consideration of lending arrangements to be agreed</li>\r\n 	<li>Business plan and risk analysis (summarising all aspects of the due diligence)</li>\r\n 	<li>(For non-operational assets), hotel operator expressions of interest : it is always beneficial to involve the hotel operator at the earliest stage possible, to obtain their feedback and opinion of the proposed project and the location, together with confirmation of their interest to manage the hotel (subject to agreement of terms).</li>\r\n</ul>\r\nWhere the asset proposed for acquisition is an operational hotel, the due diligence process as outlined above will be required to a large extent.  Additionally, detailed analysis of the hotel operation and management itself is required as follows:\r\n<ul>\r\n 	<li>Review of existing hotel management agreements and consideration of whether sale of the asset will trigger termination of these, or whether the agreement (and thereby the operator) may be assigned to the owner, does the operator have a first right of refusal to purchase the hotel?</li>\r\n 	<li>Consideration of the commercial terms of the operator’s appointment, including fees, exclusivity arrangements, the existence of a performance test, freedom to dispose of or grant security over the hotel etc</li>\r\n 	<li>Review of the existing hotel management team and performance of the hotel to date</li>\r\n 	<li>Review of financial records and audited accounts to establish the trading history of the hotel, income and expense levels and resulting profitability for the owner</li>\r\n 	<li>Inspection and survey of the hotel itself : what is the condition of the rooms and common areas, is a refurbishment required?</li>\r\n 	<li>Is the back of house in good order?</li>\r\n 	<li>What is the quality of the FF&amp;E: is there a need for large scale replacement?</li>\r\n 	<li>What is the age and quality of the infrastructure and plant – have these been maintained properly, what are the likely costs where replacement and/or repair are required, what warranties over the plant and equipment will be transferred to the owner?</li>\r\n 	<li>HR and employees : does a trade union exist, how does is the employment legislation regime of the country in which the hotel is located impact operation, what are the likely owner’s costs associated with employment of the hotel staff (ie. pension and insurance contributions  etc), are there any pending legal actions or tribunals against the hotel/existing owner?</li>\r\n 	<li>Review of all supplier and service agreements entered into by the hotel : what are the obligations and liabilities?</li>\r\n 	<li>Review of the hotel’s insurances and claim history</li>\r\n 	<li>A detailed analysis of whether the hotel or existing owner is (or is likely to be) a defendant in any legal action, what are the existing and potential legal liabilities of the hotel?</li>\r\n</ul>\r\nOn the assumption that all due diligence investigations, surveys, business plan, financial forecasting and risk analysis are acceptable, then acquisition of the asset can take place and the process will then move into a more detailed development stage.\r\n\r\n<strong>Development stage ……</strong>\r\nThe development stage brings in further specialisms and professionals.  During this part of the process, involvement will be required from hotel operators, architect and design consultants, a project manager and cost consultant, and potentially other consultants as may be required subject to how the development team is to be structured.\r\n\r\nThe development stage will also depend on the type of asset that has been purchased.\r\n\r\n(a) Development Site\r\n\r\nIf acquisition of bare land for development has occurred, then the development stage will necessarily involve:\r\n<ul>\r\n 	<li>Appointment of the hotel operator, which ideally should be undertaken pursuant to a detailed RFP and selection process</li>\r\n 	<li>Obtaining the various development licences and planning permissions, and non-objections from local tourism authorities</li>\r\n 	<li>Commencement of concept design of the hotel, with involvement of the appointed operator to ensure that the hotel will, in all respects, comply with the operator’s brand standards</li>\r\n 	<li>Preliminary development cost projections</li>\r\n 	<li>Preliminary design and construction programme</li>\r\n</ul>\r\n(b) Existing building (whether partially or fully completed)\r\n\r\nThe development stage, where the asset acquired is an existing building, will follow the requirements of a development site for the most part, particularly with regard to hotel operator appointment and the design process (where the building is partially complete, or only completed to a shell and core finish).\r\n\r\nIn both cases (acquisition of a development site or an existing building), it is important that selection and appointment of the hotel operator occurs as early as possible.  Such an early appointment will facilitate the design programme of the hotel, with the owner being able to obtain input, guidance and approvals from the operator in line with the programme (thereby preventing any costly delays).  It will also ensure that the hotel is designed and built in accordance with the operator’s brand standards, and allows the owner to draw on the experience of the operator with regard to market positioning and optimising the marketability of the hotel.\r\n\r\nLate appointment of an operator may cause additional pressure and stress to the design and construction programme, and is likely to push up development costs, particularly if design needs to be re-worked to accommodate the operator’s requirements.\r\n\r\n(c) Operational hotel\r\n\r\nThe development stage may or may not apply where the acquisition is of an operational hotel.  This will depend upon whether the existing hotel management agreement is transferred to the owner and operation remains unaffected, whether renovation/refurbishment is required, or whether the hotel management agreement terminates and a new operator needs to be appointed, with a major renovation.\r\n\r\nIn the event that the development stage does apply, then it will follow a similar path as per (a) and (b) above.  Additional complexity will arise in the event of partial renovation or refurbishment of the hotel, which is to be undertaken without closing the hotel.  This will need to be carefully considered, with the operator’s views and approval obtained, before the renovation budget and programme can be finalised.\r\n\r\nRenovation of a hotel whilst its remains operational, is one of the most sensitive and difficult scenarios for owner and operator alike.  Both parties will try to balance the need for a facelift to the hotel (to hopefully improve revenue) against the requirement for minimal impact on available room inventory, common areas, provision of services, and the guest experience generally.  Time is of the essence, and the works programme needs to take these issues into account, which adds further management issues.  This is an extremely difficult balancing act to achieve.\r\n\r\n<strong>Construction and beyond ……..</strong>\r\nIn the second part of this article, I shall focus on the construction, pre-opening and opening stages, at which point the hotel is then handed over to the hotel operator (and the owner can hopefully take a deep breath and more of a back seat!).\r\n\r\n<strong>Part 1 of this article was written for Hotelier Middle East Magazine, March 2011 edition.</strong>\r\n\r\n<a href=\"https://admin.newsweaver.com/notessa/repository/s1/169641484993255628/Hw/1rx950tgap2vx1xtku49omeeu7xl7xb0nr7agpmfl87lzyws5.doc\" target=\"_blank\" rel=\"noopener\">Chart for Hotel Development Article</a><strong> </strong>'),
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(78663, 4288, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\n<strong>Everybody loves a party and no one is quicker to a party than an ambush marketer </strong>\r\nso as Qatar celebrates, the watch is on for plans to defeat ambush marketing in the time leading up to this monumental victory for the Qataris and football in the Middle East.\r\n\r\nDoubtless, ambush marketers will be ever more nimble and clever in manoeuvring the laws if the events of yesteryear are anything to go by.\r\n\r\nWho would have forgotten the women in orange at the FIFA World Cup 2010. Women in a highly distinctive shade of orange in the match between The Netherlands and Denmark made news when they were accused by FIFA as ambush marketers for allegedly advertising for BAVARIA, a Dutch beer brand. BAVARIA did give out those dresses. Never mind that the women were South African. But seriously, what’s to stop a South African woman from barracking for The Netherlands anyway?\r\n\r\nNonetheless, Budweiser, an official FIFA sponsor and the only beer company allowed to advertise within official FIFA venues was not amused.\r\n\r\n<strong>What is at stake?</strong>\r\nThe FIFA World Cup is the most watched sporting event in the world – every four years, billions of spectators across the world put their lives on hold regardless of time zone differences to watch the football extravaganza that is the FIFA World Cup.\r\n\r\nClearly, this translates into an advertising bonanza for brand owners. The FIFA World Cup provides an unparalleled opportunity for brand owners to expose their brand to a worldwide audience transfixed with an attention span of an intensity, which only FIFA World Cup fans can muster.\r\n\r\nFor the FIFA World Cup organisers, the advertising dollars is one of the most important sources of revenue necessary for staging such a monumental event. Typically, at least 75% of the budgets of such events are derived from corporate marketing sponsors, broadcast rights fees and royalties from official merchandise licensees. Corporations expect to pay millions of dollars for the privilege of being Tier One corporate partners of the FIFA World Cup.\r\n\r\nEvent organisers need to protect the attractiveness of sponsoring events and the resulting dollars.\r\n\r\nEnter the ambush marketers, those engaging in marketing practices which draw an unauthorised association with the high profile event without having paid for an official designation as an authorised partner.\r\n\r\nIn the above example, BAVARIA ambushed BUDWEISER. When effectively employed, ambush marketing is very difficult to prevent and a creative ambush marketer well advised by a savvy IP lawyer can be a legitimate sponsor’s greatest marketing nightmare.\r\n\r\nClearly, pursuing a well advised and determined ambush marketer is a challenging task. An ambush marketer who develops a creative advertising campaign around the event by never ever using the event indicia such as its logo, trade mark, trade name or anything similar thereto but cleverly using images or indicia, which is commonly associated by the consuming populace with the event, is a tricky customer who could potentially test the law to its limits. E.g. The use of images of the French Alps, winter fun and games in advertising in the lead up to the 1992 Olympic Winter Games by American Express where VISA was the official credit card sponsor.\r\n\r\n<strong>Event Organisers</strong>\r\nCertainly, FIFA is no stranger to taking on ambush marketers. It has published an exhaustive and extremely strict code of what it considers to be unacceptable marketing practices surrounding its event and the list is a long one with a wide reach. Basically, any marketing practice, which draws a commercial association with the FIFA World Cup is banned unless it has FIFA’s authorisation.\r\n\r\nA rights holder’s options in pursuing an ambush marketer depends on the law in the country in which the ambush takes place. It remains to be seen whether Qatar will be\r\nenacting legislation specific to the FIFA World Cup to combat ambush marketing as did South Africa as hosts in 2010.\r\n\r\nIf past enforcement efforts are anything to go by, the following could be key features of the event organiser’s program in the combat ahead with ambush marketers:\r\n<ul>\r\n 	<li>Charge a special purpose vehicle with the authority to investigate and sue ambush marketers and infringers.</li>\r\n 	<li>Embark on an education campaign on the basics of intellectual property and ambush marketing including advertisements in consumer and trade publications targeting the public, retailers, potential sponsors, suppliers, licensees and athlete agents.</li>\r\n 	<li>Publicise legal actions filed alleging IP infringements.</li>\r\n 	<li>Conduct market surveillance of unlicensed merchandise and infringements.</li>\r\n 	<li>Put in place strict regulations at the official venues regulating the rules of entry such that non sponsor merchandise is banned.</li>\r\n</ul>\r\n<strong>Sponsors</strong>\r\nGenerally, sponsors should at the very least be armed as follows:\r\nImplement full trade mark protection in respect of the relevant goods and services.\r\n<ul>\r\n 	<li>Enter into a comprehensive sponsorship agreement.</li>\r\n 	<li>Ensure prominent trade mark and copyright notices are placed on all official merchandise and hoardings.</li>\r\n 	<li>Adopt a zero tolerance approach by being vigilant and ensure swift and decisive action against all infringers.</li>\r\n 	<li>Collaboratively with a legal enforcement program, pursue non-legal alternative solutions such as a publicity campaign designed to identify and endorse official sponsors.</li>\r\n</ul>\r\nClever marketers, moneyed sponsors, watchful event organisers, responsible government, other stakeholders and their IP lawyers are gearing up for the off site competition. Let the games begin!\r\n\r\nCompanies big and small engage in ambush marketing. Creative ambush marketers who successfully ambush their competitors who are the official sponsors can save their companies millions of dollars.\r\n\r\n<strong>EXAMPLES INCLUDE:</strong>\r\n\r\n1992 Olympics\r\nCoca Cola paid $33 million to be an official sponsor of the 1992 Olympics but Pepsi ambushed Coca Cola by airing a commercial featuring Magic Johnson, a member of the US Olympic basketball team\r\n\r\n<strong>1996 Olympics</strong>\r\nReebok was the official footwear sponsor and Nike went on a campaign buying up blocks of billboard space around the venues, handed out merchandise bearing its famous swoosh, built a NIKE Village next to the athletes’ village. In surveys, a greater proportion of TV audiences mistakenly recalled Nike as an official sponsor rather than Reebok, thus confirming Nike’s successful ambush.\r\n\r\n<strong>1998 Olympic Winter Games</strong>\r\nMcDonalds was an official sponsor. Wendy’s responded by sponsoring ABC’s broadcast of the Games, featuring ski racing posters in its storefronts emblazoned with “We’ll Be There!”, printing Olympic inspired stories on their trayliners and inscribed what appeared to be Olympic like rings on its napkins.'),
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(78644, 4287, 'content', 'March 2011\r\n\r\n<hr />\r\n\r\nThe bankruptcy regime in Qatar draws upon the principles contained in the legislation of many western jurisdictions. It includes familiar concepts such as claw-back and preferences. Where Qatar differs from these jurisdictions is that it is largely untested.  There is no reliable back-catalogue of comprehensive precedents. This causes understandable concern for financial institutions and lenders in general. How confident can they be in the validity and value of their security if the borrower or security provider becomes bankrupt?\r\n\r\nFinancial institutions see it as important to take collateral, wherever it is available, both inside and outside of the jurisdiction to support financial arrangements in Qatar.  Examples include real estate, equities listed on international exchanges, government and corporate bonds and physical assets such as plant and machinery.\r\n\r\nIn Qatar there are two concurrent bankruptcy regimes. The first is the local regime, the provisions of which are set out in the Commercial Law No 27 of 2006 (“Local Regime”). The second is found in the QFC Insolvency Regulations 2005 and applies to bodies corporate and branches registered in the QFC (“QFC Regime”).\r\n\r\n<strong>The Local Regime </strong>\r\nThe Local Regime appoints a bankruptcy administrator to manage the bankrupt’s affairs, business and property with the aim to achieve repayment of the bankrupt’s debts, as far as possible. The Local Regime contains no explicit provisions with respect to foreign bankruptcy proceedings. This is distinct from some western jurisdictions, where there is clear provision for cross border issues in the event of bankruptcy and the ways in which these should be addressed.\r\n\r\nQatar has not implemented the Model Law on Cross Border Insolvency of the United Nations Commission on Trade Law (UNCITRAL Model Law). It is therefore unable to seek the co-operation of the foreign courts in those countries which have implemented it, such as Australia and the US. Notwithstanding this, and in light of the increasingly international nature of insolvency, commercial necessity has encouraged national courts to provide assistance to each other under a concept known as comity of law. This means that territorial integrity does not prevent a court in one jurisdiction from giving assistance to a court in another jurisdiction in respect of assets located, or persons resident within its territory. Indeed there are certain countries, for example England &amp; Wales, in which the national courts have an inherent jurisdiction to assist foreign office holders.  Consequently they may remit assets located in their own jurisdiction to assist a Qatari bankruptcy administrator. However, if the courts in the location of the asset are unwilling or unable to offer assistance, the bankruptcy administrator may have to initiate concurrent proceedings.\r\n\r\nAlthough there is no recognition of foreign proceedings in Qatar, there are also no provisions restricting the power of the bankruptcy administrator to look beyond Qatar to the bankrupt’s assets abroad. Nothing in the Local Regime distinguishes between external and internal assets. It therefore follows that the bankruptcy administrator should be permitted to take action it deems necessary to seize the bankrupt’s foreign assets to boost the bankrupt’s estate for distribution to the creditors in the Qatari proceedings. The ease with which this action is taken is likely to depend upon the jurisdiction of the assets.\r\n\r\nWhile the Local Regime remains largely untested it is difficult to say with any certainty how effectively the administration of the bankruptcy process would handle any cross-border aspects.\r\n\r\n<strong>The QFC Regime</strong>\r\nThe Qatar Financial Centre (“QFC”), established in 2005, is a separate legal jurisdictions from the State of Qatar, similar to the Dubai International Financial Centre (DIFC). The QFC has implemented its own bankruptcy regime through its Insolvency Regulations 2005. The QFC Regime is based on common law principles and is consequently similar to insolvency legislation in England and Wales and other common law jurisdictions. It offers a more comprehensive regime than the Local Regime and, because it is more closely linked to England and Wales, one can perhaps look to case law there for further guidance as to its application.\r\n\r\nThe QFC Regime takes a wider approach to bankruptcy as it recognises non-QFC bankruptcy proceedings, including foreign proceedings. Provisions of the Insolvency Regulations state that the QFC tribunal will co-operate to the maximum extent possible with courts of non-QFC representatives (i.e. a person or body authorised in a non-QFC proceeding) and may be willing to entrust distribution of all or part of the bankrupt’s assets located in the QFC to the non-QFC representative, provided it is satisfied that the interests of the creditors in the QFC are adequately protected.\r\n\r\nIn terms of seizing assets in different jurisdictions, the QFC Regime gives the insolvency administrator, supervisor or liquidator wide authority to act outside of the QFC on behalf of a proceeding under the QFC Regime. Thus the insolvency administrator is able to take any action deemed appropriate to recover assets in other jurisdictions to realise their value for the benefit of the creditors in the QFC proceedings.\r\n\r\nThe QFC Regime is a more substantial piece of legislation than the Local Regime. It offers more certainty to lenders and security holders in terms of the cross border aspects of the bankruptcy procedure. The case law of the jurisdictions upon which it is based also gives guidance as to the application of its principles in practice.\r\n\r\n<strong>Impact on holders of security in relation foreign assets</strong>\r\nA security holder in relation a foreign asset will want to take prompt action to ensure the asset does not fall within the portion of the bankrupt’s estate available for distribution to unsecured creditors following the issuance of a bankruptcy judgment. Depending on the jurisdiction, it may be possible to enforce certain types of security, such as share pledges, without the need for a court order. Share certificates and blank share transfer forms should be obtained by lenders when taking such security in order to facilitate sale without recourse to the courts in the event of a default.\r\n\r\nThe security holder should also consider informing the Qatari administrator of bankruptcy of its foreign enforcement action with the aim of preventing any attempts to take control of that asset. This will not be an issue for registered charges such as mortgages however there may be certain types of security vulnerable to such action.  An example would be a floating charge over a debt repayment or a receivable. In the event that the Qatari bankruptcy administrator secured the repayment of a debt in the UK for the benefit of the bankrupt’s estate, the holder of a charge over such debt could find itself in Qatar trying to enforce its security under the bankruptcy proceedings - possibly as an unsecured creditor. Enforcement could take as long as 3 years if contested.\r\n\r\n<strong>Conclusion</strong>\r\nQatar’s staggering economic growth, combined with other factors such as a view that an admission of inability to pay debts is not good business practice, means that very few bankruptcies have taken place in Qatar. While bankruptcy laws are largely untested and a lender can never be 100% satisfied as to the validity, value and enforceability of its security, there are practical measures a prudent lender can take to protect itself.\r\n\r\nAs a general principle, security should be taken where the asset is located, and security documents will therefore be governed by the laws of such jurisdiction. A well advised lender will ensure that appropriate steps are taken to perfect the various types of security open to it. Proper legal advice should be taken and a legal opinion obtained from a reputable local law firm in the jurisdiction as to the enforceability of the security document and the capacity of the entity granting such security, depending on the circumstances.'),
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(78629, 4286, 'content', 'After an extended consultation period, in January 2011 NASDAQ Dubai (“the Exchange”) released draft revised Listing Rules (“Draft Rules”) for public consultation. The Draft Rules are the first major revision of the Listing Rules to be completed by the Exchange. The overriding concerns for the Exchange are the twin imperatives of enhancing market liquidity and promoting access to listing to a wider group of issuers. The Draft Rules are designed to address these issues and they also take a major step towards ensuring listing criteria and processes are both comprehensive and transparent.\r\n\r\nThe revision process was first initiated over two years ago. The Draft Rules are the result of a prior round of amendments and consultation, and working group meetings with stakeholders and professionals in the fields of law, finance and accounting. All have been regularly involved in the listing process on the Exchange onshore in the UAE and globally, and  there has been a coordinated exchange of ideas and comments with the Dubai Financial Services Authority (“DFSA”).\r\n\r\nAs required under regulation, the Draft Rules are available for public consultation to enable stakeholders such as current issuers, potential issuers, underwriters and their various advisors to give genuine feedback about the proposed revisions to objectives, organization and scope, regulatory approach, and guidance, among other proposed changes. The stated intention of the Exchange in undertaking this exercise is to improve liquidity, promote access to listing to a wider range of issuers, and introduce a legal framework that will suit the issuers and promote capital raising in the region as well as offer sufficient safeguards to protect investors.\r\n\r\nAlthough certain rules that were initially adopted under the Listing Rules have remained intact (e.g. 25% free float requirement, book-building process, sell down, etc.), there are numerous material changes that have been made under the Draft Rules.\r\n\r\nThe public consultation process will end by 17 March 2011. Subsequently, the Exchange will take comments and recommendations received under consideration, make any further amendments as they find fit, and submit the final Draft Rules to the DFSA. Upon approval by the DFSA, the Draft Rules will become a binding piece of legislation.\r\n\r\nBelow, you will find a brief summary of some of the key amendments under the proposed Draft Rules.\r\n\r\n<strong>FORMAT</strong>\r\nThe format and layout of the Draft Rules differ substantially from the existing Listing Rules.  Also, a number of guidance notes have been provided in reference to specific rules which provide clarifications in relation to some specific provisions of the Draft Rules.\r\n\r\n<strong>SIGNIFICANT AMENDMENTS</strong>\r\n\r\nNew eligibility criteria\r\nUnder the Draft Rules, the issuer is not only required to fulfill the existing admission criteria provided under the original Listing Rules, but certain further requirements have been added in addition to security-specific criteria.\r\n\r\nFor example, the eligibility criteria for equity securities now include the following new requirements:\r\n<ul>\r\n 	<li>No more than 50% of the free float required may be in a form of preferred share;</li>\r\n 	<li>“Genuine investor interest”, which an issuer can demonstrate by either having not less than 400 bona fide shareholders or providing for a retail set aside of at least 10% of the aggregate number of securities.</li>\r\n 	<li>As an addition to the existing minimum USD 50 million market capitalization test, one of the following tests can be satisfied by the issuer instead: - “profits test” – requires an issuer to have generated profits for the three most recent fiscal years (while conducting the same business activity);</li>\r\n</ul>\r\n- “assets test” – requires an issuer to meet certain tangible assets and working capital thresholds, but does not require three continuous years of operation.  A mandatory lock-in for promoter shareholders is also required for 12 months and  cash flow reporting may be imposed; and\r\n\r\n- “market capitalization test” – requires a minimum USD 20 million market capitalization together with a mandatory lock-in of 12 months for promoters.\r\n\r\n<strong>Listing application review process</strong>\r\nUnder the Listing Rules, projecting a timeline for regulatory review by both the Exchange and the DFSA was often problematic. Importantly, the two organisations noted they would work together to streamline the process for reviewing of the prospectus and listing application.  The Draft Rules propose that any prospectus will be reviewed by the DFSA for compliance with the Offered Securities Rules (OSR) of the DFSA as a first step, and subsequently the Exchange will review the prospectus and listing application for compliance with the final listing rules. It is expected this review process will assist issuers in addressing fundamental issues with the prospectus and compliance early in the listing process rather than at the very end, as was past practice.\r\n\r\n<strong>No exempt offers of equity securities</strong>\r\nPreviously, the Listing Rules allowed for primary offers of equity securities through a prospectus or an exempt offer. Notably, the Draft Rules (Rule 3.1.3) remove the option of an exempt offer and stipulate every offer of equity securities must be made through a prospectus.\r\n\r\n<strong>No requirement to appoint a sponsor</strong>\r\nUnder the Listing Rules, issuers were required to appoint a listing sponsor and an on-going sponsor. Pursuant to the Draft Rules, the “sponsor” has been replaced with a “lead manager” whose advisory role seems to be similar to that of a sponsor but is not mandatory.  Notably, the lead manager is not responsible for disclosures made in a prospectus; such liability lies with the issuer only.\r\n\r\n<strong>Various accounting standards allowed</strong>\r\nThe Draft Rules now allow for issuer accounts to be produced in accordance with the International Financial Reporting Standards (“IFRS”) or an alternative accounting standard, such as US GAAP, Canadian GAAP, Japanese GAAP or South Korean GAAP, without requiring reconciliation with IFRS.\r\n\r\n<strong>Mandatory lock-in</strong>\r\nThe Draft Rules have introduced a mandatory lock-in (for promoters and connected/related persons) in relation to equity securities that apply when the issuer relies on either the “assets test” or the “market capitalization test” for admission to listing. The Exchange has confirmed it will not waive the lock-in requirement under any circumstances.\r\n\r\n<strong>Uninformed exchange</strong>\r\nThe Listing Rules do not explicitly authorize the Exchange to ensure issuers disclose information when exemptions apply in certain situations. However, the Draft Rules clarify that the Exchange can ask the issuer to disclose information if it considers there is (or is likely to be) an uninformed market, but the information concerned is exempted from disclosure obligations.  Further, the Exchange may disclose correspondence between itself and an issuer it considers it necessary for an informed market.\r\n\r\n<strong>Proportion of assets in cash</strong>\r\nIn order to prevent the admission to listing of pure “cash box” entities, the Exchange will now be authorized to suspend the issuer’s securities if half or more of the issuer’s total assets are held in cash or as assets readily convertible to cash, until such time when the issuer invests those assets or employs them for its business.\r\n\r\n<strong>Mining, Oil and Natural Gas Issuer</strong>\r\nThe existing Listing Rules do not prescribe a separate disclosure regime designated for mining or oil and natural gas issuers, but the Draft Rules (Rules 5.17 and 5.18) list numerous sector specific disclosure requirements.\r\n\r\n<strong>Share buy-backs – tender offers</strong>\r\nThe existing Listing Rules do not prescribe requirements for share buy-backs in the context of tender offers. However, the Draft Rules establish a comprehensive legal framework for share buy-backs through tender offers.\r\n\r\n<strong>Conclusion</strong>\r\nThe Listing Rules are the tool by which NASDAQ Dubai manages access to the market by issuers and supervises the market. The Draft Rules provide certainty, clarity and transparency for issuers while retaining flexibility in certain areas in order to promote liquidity and access to listing by a wider range of potential issuers. While the final version remains to be seen, the amendments set out in the Draft Rules reflect a concerted and coherent effort by the Exchange to refine and develop its listing rules and process in order to attract capital and boost liquidity on the Exchange.\r\n\r\nWe encourage your active participation in this endeavor and recommend you provide your comments directly to NASDAQ Dubai during the consultation period. The Draft Rules can be found at: <a href=\"http://www.nasdaqdubai.com/regulation/listing_rules.html\">http://www.nasdaqdubai.com/regulation/listing_rules.html</a>'),
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