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(80349, 4381, 'content', '<p>The Capital Markets Authority Law (&ldquo;CML&rdquo;) and its executive regulations (the  &ldquo;Regulations&rdquo;) granted the Capital Markets Authority (the &ldquo;Authority&rdquo;) the right  to issue resolutions after the publication of the Regulations that will  determine the minimum capital requirement and the legal form of the entities  subject to licensing under the CML.&nbsp;<br /><br />The CML and its Regulations provides  that no person may carry on activities of securities in Kuwait unless it is  licensed by the Authority. In such respect, the Regulations set forth a full  list of requirements, documents and information to be presented to the Authority  along with an application for license, allowing the Authority to study the  application request and to issue the license if such application is  approved.<br /><br />However, amongst the extensive list of requirements, documents  and information set forth in the Regulations, no specific share capital or legal  form for the applicant has been identified. In fact, the Regulations provides  that the Authority shall determine, under a resolution passed thereby, the  minimum share capital of the applicant as per the type of securities business  subject of license and the legal form required for carrying on the  business.<br /><br />Pursuant to the above, the Authority issued on 13 June 2011 the  Decision No.9 for the year 2011, whereby it provides for the minimum share  capital and the legal form of the entities subject to licensing under the CML:</p>\r\n<table border=\"1\" cellspacing=\"2\" cellpadding=\"2\">\r\n<tbody>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>&nbsp;</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Activity</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Legal Entity</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Capital</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>1</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Securities Brokerage</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Shareholding Company</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Kuwaiti Dinar Ten Million</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>2</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Investment Advisory</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Shareholding Company</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Kuwaiti Dinar One Million</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>3</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Investment Portfolio Management</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Shareholding Company</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Kuwaiti Dinar Ten Million</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>4</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Collective Scheme Management</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Shareholding Company</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Kuwaiti Dinar Fifteen Million</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>5</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Custodian</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Shareholding Company</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Kuwaiti Dinar Fifteen Million</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>6</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Investment Controller</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Shareholding Company</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Kuwaiti Dinar Five Million</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td width=\"31\" valign=\"top\">\r\n<p>7</p>\r\n</td>\r\n<td width=\"276\" valign=\"top\">\r\n<p>Marketing and selling securities</p>\r\n</td>\r\n<td width=\"136\" valign=\"top\">\r\n<p>Shareholding Company</p>\r\n</td>\r\n<td width=\"188\" valign=\"top\">\r\n<p>Kuwaiti Dinar Ten Millio</p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p><br />However, Decision No.9 failed to specify whether such requirements are  imposed on existing companies seeking to be licensed under the CML, or imposed  on companies to be established post-issuance of said Decision No.9. The lack of  specification has had a severe impact on the current companies who may need to  amend their share capital or legal form for the purposes of the license under  the CML.&nbsp;<br /><br />Nevertheless, and following several queries from the existing  companies in the securities sector in Kuwait, the Authority has advised  (unofficially) that the requirements above will only be imposed on new companies  to be established after the issuance of the said Decision No.9. However, until a  further decision is issued or Decision No.9 is modified to state the same, there  will be some confusion as to its applicability.</p>'),
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(80325, 4379, '_yoast_wpseo_metadesc', 'Kuwait is situated at the head of the Arabian Gulf and covers an area of 17,818 square kilometers. The land is mainly flat with occasional low hills and shallow depressions and despite having a coastline that stretches for 325 kilometers; Kuwait has no inland rivers or lakes. To the country’s West and North lies Iraq, to its East the Arabian Gulf and to its South, Saudi Arabia.'),
(80326, 4380, 'content', '<p>In loan transactions, lenders normally require the borrower to provide  collateral or other forms of security to secure the debt obligation of the  borrower. One such form of security, which is widely recognized and used across  various jurisdictions, is third party guarantees. A guarantee is a promise by  one party (the &ldquo;Guarantor&rdquo;) to assume the financial responsibility for the debt  obligation of a borrower in the event the borrower defaults on its debt  obligation under the loan transaction by the borrower. Where the borrower is a  corporate entity, the parent company or the shareholder of the borrower, often  assumes the role of a Guarantor for the debt obligations of such  borrower.<br /><br />In Kuwait, the relevant provisions governing guarantees are set  out in Law No. 67 of 1980 (the &ldquo;Civil Code&rdquo;). Under the Civil Code, a guarantee  is a contract or agreement where the Guarantor joins his liability with the  borrower to fulfill the latter&rsquo;s obligation by undertaking to the lender to  discharge the same, should the borrower fail to do so. The obligation of the  Guarantor is to guarantee the underlying obligation of the borrower. Once the  Guarantor agrees to guarantee certain obligations, the Guarantor&rsquo;s obligations  will continue until the fulfillment of the original debt.<br /><br />One point of  confusion under the Civil Code is whether the concept of a time limited  guarantee exists. Such confusion arises in view of the provisions of Article 749  of the Civil Code whereby such article allows a Guarantor to give notice to  terminate a guarantee that does not otherwise specify a termination date. This  article is often interpreted as implying that a guarantee that does have a  termination date must be also allowed.<br /><br />The provisions of Article 749 also  raises the issue of whether under the guarantee, if the debt obligation of the  borrower is not discharged by the maturity date, the lenders can automatically  extend a guarantee without obtaining the prior consent from the Guarantor. This  relates to Article 746 of the Civil Code where it states that guarantee is not  presumed but must be expressly obtained from the Guarantor to guarantee the debt  obligation of the borrower. In other words, the said Article 746 refers to the  evidentiary requirement of a guarantee, where the consent of the Guarantor must  be expressly stated (i.e. it must be in writing or clear verbal statement) and  not implied (e.g. by omission or inaction).<br /><br />Article 749 of the Civil Code  states the following:</p>\r\n<ol>\r\n<li>An obligation in the future may be guaranteed provided that the extent of  the Guarantor&rsquo;s obligation has been determined in advance.</li>\r\n<li>A guarantee without a fixed time limit may be rescinded by the Guarantor any  time so long as the secured obligation has not arisen and provided that the  Guarantor serves a notice of his rescission on the lender at a reasonable  time.&rdquo;</li>\r\n</ol>\r\n<p>Based on the above Article:</p>\r\n<p>(a)&nbsp;It is clear that the above Article regulates guarantee on future  obligations and not obligations which already arisen.<br />&nbsp;<br />(b)&nbsp;The above  Article allows a Guarantor to grant a guarantee on a future obligation which  does not exist at the time of the guarantee, as well potentially guarantee, such  as guaranteeing the obligations under current accounts (Al Sanhoury, Al Waseet  Vol 10 para 22, page 42, Arabic and Beaudry et Vale para 950 page 510,  French).</p>\r\n<p>(c)&nbsp;The guarantee of existing debt obligations of an unspecified amount will  not be considered as a guarantee of future obligation (Beaudry et Vale para 950  page 511, French) and therefore does not fall within the purview of the above  Article. Consequently, if the amount being guaranteed is known and clearly  specified in the guarantee agreement, then Article 749 will not apply.&nbsp;&nbsp;&nbsp;</p>\r\n<p>(d)&nbsp;The reference to Article 749(2) on the rescission of a guarantee without  a fixed time limit meant that the Guarantor may rescind at any time as long as  the debt obligation has not arisen. However, in cases where there is a time  limit for the future obligation to arise and when such guaranteed obligation  arises, the Guarantor cannot rescind his guarantee in such event (Al Sanhoury,  Al Waseet Vol 10 para 22, page 46, Arabic and Egyptian Cessation Court Judgement  No. 31 of the Judicial Year 1942, Session 14 June 1976). The Explanatory  Memorandum of the Civil Code also supports this view.</p>\r\n<p>(e)&nbsp;Furthermore, Article 753 of the Civil Code states that the liability of  the Guarantor is discharged by the discharge of the borrower&rsquo;s debt obligations.  Therefore, whenever the borrower fulfills its obligations under the loan  documents, the guarantee will be automatically terminated by law.</p>\r\n<p>In view of the above, the lenders may automatically extend a guarantee  without the prior consent from the Guarantor so long as the debt obligations of  the borrower still exist. As stated above, once the Guarantor agrees to  guarantee certain obligations, the Guarantor&rsquo;s obligations will continue until  the fulfillment of the original debt and the Guarantor may not rescind or  terminate his guarantee prior to the full settlement of the debt by the  borrower. If the borrower has paid off its debts to the lender, the guarantee is  automatically terminated by law. Therefore, under Kuwaiti law, the concept of  time limited guarantee is only applicable to future obligations which do not  exist at the time of the guarantee.</p>\r\n<p>In addition, from a commercial point of view, a guarantee will not be useful  and clearly defeats the purpose of a lender obtaining a guarantee if the  Guarantor is allowed to cancel the guarantee prior to the date when all the  obligations of the borrower are fully discharged, as the lender initially grants  the facility on reliance of the guarantee and its continuity until the full  payment the whole debt.</p>'),
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(80332, 4380, 'pageSummary', 'In loan transactions, lenders normally require the borrower to provide collateral or other forms of security to secure the debt obligation of the borrower. One such form of security, which is widely recognized and used across various jurisdictions, is third party guarantees.'),
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(80336, 4380, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Islam Abaza'),
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(80338, 4380, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'i.abaza@tamimi.com'),
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(80348, 4380, '_yoast_wpseo_metadesc', 'In loan transactions, lenders normally require the borrower to provide collateral or other forms of security to secure the debt obligation of the borrower. One such form of security, which is widely recognized and used across various jurisdictions, is third party guarantees.'),
(80320, 4379, '_content_description', 'field_59b641c07f473'),
(80321, 4379, 'pageSummary', 'Kuwait is situated at the head of the Arabian Gulf and covers an area of 17,818 square kilometers. The land is mainly flat with occasional low hills and shallow depressions and despite having a coastline that stretches for 325 kilometers; Kuwait has no inland rivers or lakes. To the country’s West and North lies Iraq, to its East the Arabian Gulf and to its South, Saudi Arabia. \r\n'),
(80319, 4379, 'content_description', 'Kuwait is situated at the head of the Arabian Gulf and covers an area of 17,818 square kilometers. The land is mainly flat with occasional low hills and shallow depressions and despite having a coastline that stretches for 325 kilometers; Kuwait has no inland rivers or lakes. To the country’s West and North lies Iraq, to its East the Arabian Gulf and to its South, Saudi Arabia. \r\n'),
(80317, 4379, 'lawUpdateArticleMonth', '4366'),
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(80315, 4379, 'content', '<p>Kuwait is situated at the head of the Arabian Gulf and covers an area of 17,818  square kilometers. The land is mainly flat with occasional low hills and shallow  depressions and despite having a coastline that stretches for 325 kilometers;  Kuwait has no inland rivers or lakes. To the country&rsquo;s West and North lies Iraq,  to its East the Arabian Gulf and to its South, Saudi Arabia. <br /><br />Kuwait is a  geographically small but wealthy country with a relatively open economy and  self-reported crude oil reserves of nearly 105 billion barrels-about 9% of world  reserves.&nbsp; Among the Gulf States, Kuwait&rsquo;s oil reserves are second only to those  of Saudi Arabia. Petroleum accounts for nearly half of GDP, 95% of export  revenues, and 95% of government income.&nbsp; Kuwaiti officials have committed to  increasing oil production to 4 million barrels per day (bpd) by 2020. Kuwait was  able to survive the economic crisis that began in 2008 and 2009; it posted its  eleventh consecutive budget surplus, mainly due to increased oil  prices.<br /><br />Kuwait is one of the richest countries in the Arab world. The  Kuwaiti dinar is a strong currency pegged to a basket of currencies in which the  U.S. dollar has the most weight. For taxes, the general rule is that individuals  (Kuwaiti or foreign nationals) and Kuwaiti companies are not subject to taxes on  income.&nbsp;<br /><br />Kuwait experiences a characteristic desert climate: extremes of  temperature, little rainfall and lots of sunshine. Kuwait&rsquo;s population comprises  over 100 nationalities. The population is currently estimated at 3.5 million;  about 1.5 million (around 43%) are Kuwaitis.<br /><br />It is interesting to note  that Kuwait\'s 93.3% literacy rate, one of the Arab worlds highest, is the result  of extensive government support for the education system. Public school  education, including Kuwait University, is free.<br /><br />At Al Tamimi &amp;  Company, our Kuwait office is headed by Partner, Alex Saleh.&nbsp; Alex has been  practicing in Kuwait sine 1994.&nbsp; His efforts in developing the office have  quickly made Al Tamimi a leading firm in Kuwait and today the office is  experiencing further growth.&nbsp; The office currently employs 12 fee earners, and a  total staff of 20 people.&nbsp; In early 2011, the office expanded into a larger  space to accommodate everyone; however, with the office continuing to grow at an  impressive pace, the team is already looking at larger spaces to accommodate the  new growth plans.<br /><br />The month of June brought the office good news.&nbsp; Philip  Kotsis, who joined Al Tamimi in October of 2009, became a partner at the Firm.&nbsp;  Philip has been practicing in Kuwait since early 2009 and has had experience  with Kuwait law dating back to 2004.&nbsp; During the same month, we were happy to  welcome our newest team member, Hamzah Alshammaa, who joins us as a corporate  commercial associate from the U.S.&nbsp;&nbsp;<br /><br />As the summer begins, the Kuwait  office quickly finds itself becoming increasingly busy.&nbsp; The State of Kuwait has  began issuing new laws and regulations regarding Capital Markets and has also  started the privatization process by issuing multiple Public &ndash; Private &ndash;  Partnerships (PPP), aimed at furthering the infrastructure of the country.&nbsp; Our  office has quickly become one of the key law firms handling many of the current  projects and is preparing for future project work.<br /><br />The Kuwaiti economy is  growing rapidly and, with a substantial on-the-ground presence, the office is  uniquely placed to advise clients investing in the market. The Al Tamimi &amp;  Company Kuwait office has quickly established itself as the fastest growing and  leading banking and finance (including Islamic Banking and Sukuk) law firm in  Kuwait.&nbsp;<br /><br />The Firm lead the first ever Sukuk issuance in Jordan earlier  this year, and has developed some of the most innovative solutions to  restructuring debt.&nbsp; With an international team of high calibre lawyers, we ably  service clients from around the globe.&nbsp; Each member of our team of professionals  is fully committed to providing our clients with accurate, thorough and cost  effective advice. Our team of lawyers in Kuwait has a formidable set of local  and international credentials.&nbsp; The office contributes monthly as the exclusive  and official Islamic Financial News (IFN) correspondent for Kuwait on Islamic  Banking.&nbsp;<br /><br /><strong>Firm Profile</strong><br /><br />Within the State of  Kuwait, Al Tamimi &amp; Company (the &ldquo;Firm&rdquo;) is a full service law firm with  expertise in all major areas. The Firm is ranked as one of the leading firms in  Kuwait and has become well known as having expertise in local law with  international standards. We believe one would be challenged to find a more  experienced, well resourced and capable firm in the region to assist with legal  matters in Kuwait.&nbsp; With the resources of the largest law firm in the region,  combining global standards of expertise with extensive local knowledge and  contacts, the Firm has established itself as a leader in Kuwait providing top  quality legal advice.<br /><br />The Firm has a very large transaction division in  addition to its local litigation team. As an international team of high calibre  lawyers, we ably service clients from the United Kingdom, North America, Europe,  Far East, and Middle East.<br /><br />The Kuwait office provides legal advice in  areas including: Banking &amp; Finance, Islamic Finance &amp; Sukuk, Corporate  (including establishments, mergers and acquisitions &amp; private equity),  Commercial (including commercial agencies, distributorships and franchises),  Litigation &amp; Arbitration, Taxation &amp; off-set, Intellectual Property and  Telecom, Projects (including PPP &amp; Privatization) and project  finance.<br /><br />We pride ourselves on our complete knowledge of the laws and  regulations applicable to our home jurisdictions and the commercial community  abroad. In Kuwait, we regularly confer with government ministries and  departments. We assist multinational companies and family-owned businesses in  establishing operations in the region independently, or in association with  local partners. Our local clients, many of whom have business interests outside  the region, and the international organisations with which we work, rely on our  global perspective. We subscribe to the belief that the world of opportunity  does not recognise national boundaries.<br /><br /><strong>Our Kuwait  Practice</strong><br /><br /><strong>Banking and Finance<br /><br /></strong>Our banking  practice provides a comprehensive range of banking law services, and our banking  and finance lawyers (who have served as in-house counsel for banks abroad and in  the region) are specialists fully conversant with all aspects of the practice of  banking and finance law.<br /><br />The Firm represents most of the banks in Kuwait,  both national and international, advising them on all aspects of the practice of  banking and finance law, from commercial matters to the restructuring and  refinancing of debt.&nbsp; We provide advice on banking regulation and supervision  throughout the Gulf region, the underwriting and syndication of loans, capital  markets, securitization, debt recovery, foreign exchange contracts, equipment  leasing, secured commercial lending, financing arrangements for foreign trade,  project, infrastructure and corporate finance.<br /><br /><strong>Debt  Restructuring</strong><br /><br />We are the leading law firm in Kuwait involved  with the restructuring, refinancing and rescheduling of conventional and Islamic  debt.&nbsp; Our debt restructuring assistance has been cantered around Kuwait  investment companies and we have served as legal counsel for major local and  international creditors as well as debtors in large debt  restructuring/refinancing transactions.<br /><br />Our team has led in the drafting  and negotiation of numerous debt restructuring instruments, including but not  limited to, standstill agreements, multi-tranche conventional and Islamic  facility agreements and all aspects of bond issue  restructuring.<br /><br />Furthermore, our lawyers have drafted a wide array of  security documents, in English and Arabic, which have successfully obtained all  requisite Kuwait Ministry approvals. Typically, the majority of assets of Kuwait  investment companies are either securities or real estate. Therefore, our vast  knowledge of Kuwait&rsquo;s custodian portfolio laws and mortgage laws allow us  provide detailed advice and implementation of the necessary security instruments  that are involved in many secured restructuring/refinancing transactions.  Moreover, our legal professionals have been intimately involved in assisting and  directing the securitisation of assets in connection with debt restructuring  transactions in multiple GCC and MENA region jurisdictions, including the  involvement our various Al Tamimi &amp; Company offices throughout these  regions.<br /><br />Finally, our team is one of the only legal service providers to  guide, structure, draft and implement both conventional and Islamic debt  restructuring transactions within Kuwait from start to  finish.<br /><br /><strong>Islamic Finance<br /><br /></strong>Al Tamimi &amp; Company  has an unrivalled reputation in Islamic Finance documentation and advice and has  been a pioneer in developing compliant documentation.&nbsp;<br /><br />The Firm&rsquo;s Banking  &amp; Finance department has drafted and/or advised on Islamic finance retail  and commercial products for many of the regions banks.&nbsp; It has a thorough  knowledge of Shariah principles and current approaches to Shariah compliance in  each jurisdiction in the region.<br /><br />Our lawyers have also advised on and  drafted Islamic compliant finance documents for project, corporate and  commercial finance transactions as well as Sukuk issues.<br /><br />Our approach is  to project manage the transaction by involving the Shariah board at an early  stage which reduces the extent of amendments required by the board.&nbsp; We also  ensure, as far as possible, that common provisions in the proposed documents are  settled and translated in an initial document so that they can be reproduced  without subsequent extensive edits.<br /><br /><strong>Corporate</strong><br /><br />Our  attorneys are experienced in advising clients on the proper formation of joint  ventures, companies, the establishment of branch and representative offices of  foreign companies here in Kuwait and advising as to the most advantageous  structure for each client and venture. Outside of joint venture arrangements,  under the Kuwait Commercial Companies Law, Decree No. 15 of 1960 (the &ldquo;Companies  Law&rdquo;), there are essentially two main vehicles for establishing companies.  Pursuant to Part IV of the Companies Law, a Kuwait Shareholding Company (&ldquo;KSC&rdquo;)  may be established with a minimum of five (5) shareholders. This type of entity,  similar to an American stock corporation in some respects, issues stock  certificates to its shareholders and is managed by a board of directors. Under  Part V of the Companies Law, parties may establish a Kuwaiti limited liability  company (&ldquo;WLL&rdquo;) with a minimum of two (2) partners. This entity, which is  similar to the American version of a limited liability company (&ldquo;LLC&rdquo;), has  become more popular over the last few years for smaller to mid-size businesses  to quickly establish themselves in the Kuwaiti market.<br /><br />Generally, while  the Companies Law does not allow more than 49% foreign ownership, the State of  Kuwait has begun liberalizing its foreign investment laws in recent years. For  example, the Ministries consider Gulf Cooperation Council companies to be  Kuwaiti for purposes of these foreign owner restrictions. Also, under Decree No.  8 of 2001, Regulation of Direct Foreign Investment in the State of Kuwait,  foreign companies may now own larger interests in companies, in some cases  holding a majority to total ownership, especially in the event that they are  seen as bringing benefits to the country such as technology or capital. The  lawyers at the Kuwait office have a long track record in assisting foreign  shareholders in this respect and safeguarding their interests based upon both  local law and practice.<br /><br /><strong>Commercial Agencies, Distributorships  &amp; Franchises<br /><br /></strong>Within the private sector, the relationship  between a Kuwaiti commercial agent and a foreign principal is primarily  regulated by two statutes: the Kuwait Commercial Law, Decree No. 68 of 1980 (the  &ldquo;Commercial Law&rdquo;), which addresses the general legal relationship between a  commercial agent and principal; and Law No. 36 of 1964 (the &ldquo;Commercial Agencies  Law&rdquo;), which stipulates the prerequisites for acting as a commercial agent in  Kuwait and sets forth the commercial agency registration procedures.<br /><br />Many  foreign companies seek to conduct business in Kuwait through the use of  commercial agents and/or distributors. The above-referenced laws of Kuwait have  evolved to protect local entities in their relationships with their foreign  principals. In addition, other local pitfalls involving taxation and trademark  issues may affect foreign principals wishing to do business here. Our Kuwait  office has extensive experience in advising these principals with respect to all  of these matters. Our practice in this area includes drafting and negotiating  the agency/ distributorship arrangements between the parties, minimizing the  advantages that the Kuwaiti laws give to protect local entities, ensuring that  little or no taxation results from the transactions and taking steps to protect  the brand names of the foreign principals.&nbsp; In addition, since the early 1990&rsquo;s  franchising has become quite popular in the State of Kuwait.<br /><br />While the  laws here are still evolving to meet the demands of franchise arrangements, we  can offer practical advice to structure franchise relationships based upon  contemporary law. There is currently no specific legislation on franchise  agreements in Kuwait. Instead, such agreements are interpreted along with any  other commercial contracts within the broad framework of the Kuwaiti Civil Code  and the Commercial Law, which allow the parties to contractually agree as they  desire.<br /><br /><strong>Commercial Litigation &amp;  Arbitration<br /><br /></strong>Kuwait&rsquo;s judicial system is primarily based upon the  civil law of the French model via Egypt, as opposed to the Anglo common law  system. In addition, Islamic Shariah provides another source of law in Kuwait  particularly in areas of family and estate matters. Pursuant to Decree Law No.  23 of 1990, Concerning the Organization of the Judiciary, the Kuwaiti judiciary  has a recognizable three tier system: The Court of First Instance as composed of  the Small Claims Court and the General Court, the Court of Appeals, and the  Court of Cessation. Its judicial procedures are governed by Decree No. 38 of  1980, the Civil &amp; Commercial Procedures Act.<br /><br />With its wealth of  knowledge and experience in the local courts, our Kuwait office handles major  commercial matters in Kuwait on behalf of both foreign and local clients. As a  result of our bilingual skills and both western and eastern legal expertise, the  combination of our Western educated counsel and local Kuwaiti litigators has  produced a strong team that foreign-based companies prefer to engage when  litigation becomes necessary here.<br /><br />In addition, the firm has developed a  strong reputation for arbitration both in Kuwait and abroad. The attorneys have  a successful track record in arbitrating under both local Kuwait arbitration  rules as well as more well-known international arbitrations rules such as the  International Chamber of Commerce Arbitration Rules and the UNICTRAL Arbitration  Rules.<br /><br /><strong>Taxation</strong><br /><br />The taxation laws in the State of  Kuwait are currently embodied in Decree No. 3 of 1955, the Kuwait Income Tax  Law, as amended in 2008, as well as numerous Ministry of Finance orders,  resolutions and circulars (the &ldquo;Taxation Laws&rdquo;). Generally, foreign companies  conducting business in Kuwait are subject to income tax pursuant to the Taxation  Laws. However, the important point to note with regard to Kuwaiti tax is that it  is imposed only on corporate bodies carrying on trade or business in Kuwait as  opposed to parties carrying on business with Kuwait. The point has been the  subject of countless meetings and discussions at the Ministry of Finance&rsquo;s  Department of Income Tax (&ldquo;DIT&rdquo;) where the DIT has become significantly more  aggressive in the past several years in assessing taxes against foreign  entities.<br /><br />Our Kuwait office has been very successful in structuring  foreign investment and activities in Kuwait to minimize foreign parties&rsquo;  exposure under the Taxation laws. In addition, when it becomes necessary to  litigate a tax assessment issued by the DIT against a foreign company before the  Tax Appeal Committee or the Kuwaiti courts, our law firm has a strong track  record in defeating DIT tax claims or settling at significantly smaller dinar  amounts.<br /><br /><strong>PPP &amp; Privatization</strong><br /><br />The Firm has  international experience in major infrastructure projects and project finance  transactions in State of Kuwait. Recently, Kuwait passed its Public Private  Partnership (PPP) Law (&ldquo;PPP Law&rdquo;) in order to facilitate the issuance for  large-scale infrastructure projects such as, among others, the planned  redevelopment of Failaka Island, a new physical rehabilitation hospital, a waste  water treatment plant, a national rail road network, a power plant, as well as  the comprehensive redevelopment of the country&rsquo;s international airport.&nbsp; The  intention of the PPP Law is to create wider ownership in larger projects (i.e.  to shift the development cost burden away from the government and toward private  investors), while giving the investor management control of the joint stock  company and the project. As from the date the PPP Law was passed in 2008, over  $25 billion worth of projects have been announced and significantly more are  expected to be announced over the next few years as Kuwait aims at expanding and  diversifying its economies.<br /><br />In 2010, Kuwait passed a new Independent  Water Power Plant (IWPP) Law for the establishment of Kuwaiti joint stock  companies to undertake the building and performance of electric power and water  desalination stations in Kuwait (the Independent Water Power Plant (IWPP)  Law).<br /><br />We have provided legal advice to a consortium in respect of their  successful bid for a wastewater treatment plant project which won the  &ldquo;Wastewater Project of the Year Award&rdquo; in the Global Water Awards. We have also  represented a client in a consortium for the construction of a calcinated  petroleum coke plant in Kuwait.&nbsp; In June of 2011, we were engaged to act as  legal counsel on multiple PPP projects, representing multiple companies,  financial institutions and governmental agencies.<br /><br /><strong>Our Kuwait  Team</strong> <br /><br />Our team of lawyers in Kuwait has a formidable set of  local and international credentials.&nbsp; It is this combination of talent and  experience that will enable us to provide commercially astute assistance across  all of its legal service requirements in Kuwait.&nbsp; We pride ourselves in our  complete knowledge of the laws and regulations applicable to our home  jurisdictions and the commercial community abroad. In Kuwait, we regularly  confer with government ministries and departments. We assist multinational  companies and family-owned businesses in establishing operations in the region  independently, or in association with local partners.&nbsp; In Kuwait, Al Tamimi  &amp; Company operates through a joint venture with lawyer Yaqoub Yousef Al  Munayae.<br /><br />In addition to the skills and capabilities of our locally based  practitioners, we can also offer our broader attributes and strengths,  including:</p>\r\n<ul>\r\n<li>Local strength with regional and international reach<br />We have one of the  largest corporate practices in the Middle East.&nbsp; Combined with our team across  our regional offices, we provide a unique level of support, both locally and  internationally for our clients.</li>\r\n<li>Local, regional and international experience</li>\r\n</ul>\r\n<p><br />Our team includes lawyers with substantial experience in Kuwait and the  regional Middle East markets combined with team members who bring the best of  international experience to the region.<br /><br /><strong>Key Contacts in  Kuwait:<br /></strong><br /><strong>Alex Saleh </strong><br />Partner &amp; Head of  Office<br /><a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a></p>\r\n<p><strong>Yaqoub Al Munayae</strong><br />Joint Venture Partner<br /><a href=\"mailto:y.almunayae@tamimi.com\">y.almunayae@tamimi.com</a></p>\r\n<p><strong>Philip Kotsis </strong><br />Partner<br /><a href=\"mailto:p.kotsis@tamimi.com\">p.kotsis@tamimi.com</a>&nbsp;</p>\r\n<p>Tel:&nbsp; +965-2-246-2253<br />Fax: +965-2-296-6424<br /><a href=\"mailto:infokuwait.@tamimi.com\">infokuwait.@tamimi.com</a></p>'),
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(80292, 4378, 'content', '<p><strong>Introduction<br /><br /></strong>Restrictions on working hours during the  summer were first introduced in the UAE in 2007 and, as a result, accidents on  construction sites dropped by more than 50% throughout July and August of that  year compared with the same period in 2006.&nbsp; Based on this significant decrease  it came as no surprise that the restrictions were retained.&nbsp;<br /><br />Ministerial  Decision 443 of 2010 imposed the restrictions in 2010, taking steps to extend  the summer working restrictions so that they applied from June 15 to September  15.&nbsp; Ministerial Decision 543 of 2011 (the Decision) was issued on 29 May 2011  and sets out the details of this year&rsquo;s restrictions. While there is nothing  particularly new or surprising in this year&rsquo;s restrictions, this article serves  as a useful reminder of the extent of the restrictions, exceptions that may  apply and the penalties for non-compliance.<br /><br /><strong>The Effect of the  Resolution</strong><br /><br />As with the 2010 Decision, it is compulsory for  companies to give labourers who work in open areas (such as construction sites)  a two and a half hour break between the hours of12.30pm and 3.00pm.&nbsp; These  restrictions will be effective from 15 June to 15 September.&nbsp; Labourers working  in open spaces must not work between these hours and employers are required to  provide a shaded area in which labourers can rest during this period.&nbsp;<br /><br />In  addition, daily working hours must not exceed 8 hours in any 24 hour period and  any labourers working in excess of these hours will be entitled to be paid  overtime rates for any such additional hours worked.&nbsp; Employers must also  display details of labourers&rsquo; daily shift schedules as these may be viewed by  inspectors checking compliance in accordance with the Decision.&nbsp; These shift  schedules must be displayed in both Arabic and the labourers&rsquo; local  language.&nbsp;<br /><br />The Decision also repeats the requirement imposed on employers  that they must protect workers from occupational injuries and diseases that may  arise during working hours and also against fire and other such hazards that may  be a result from the use of machinery and other work  tools.<br /><br /><strong>Exception for Technical  Reasons<br /><br /></strong>Administrative Decision 15 of 2011 sets out details of  certain types of work which, because they cannot be stopped for technical  reasons, are exempt from the restrictions. These types of work include:</p>\r\n<ul>\r\n<li>Spreading asphalt mixtures and pouring concrete if it is not possible to do  or complete the work at other times;</li>\r\n<li>Necessary works to prevent risk or repair emergency damage, failure or loss,  including repairs required to:</li>\r\n</ul>\r\n<p>o&nbsp;Water supply lines;<br />o&nbsp;Sewage lines;<br />o&nbsp;Power supplies;<br />o&nbsp;Hindered  traffic on public roads;<br />o&nbsp;Gas or petroleum supply lines.</p>\r\n<ul>\r\n<li>Work which, due to its impact on flowing traffic and services, requires a  permit for round-the-clock work from a competent government authority for its  completion, including the following:</li>\r\n</ul>\r\n<p>o&nbsp;Disconnection or diversion of main traffic routes;<br />o&nbsp;Disconnection of  power;<br />o&nbsp;Disconnection of telecommunication lines.</p>\r\n<ul>\r\n<li>Any other work as approved by the Undersecretary.</li>\r\n</ul>\r\n<p>Where work cannot be stopped for technical reasons, the works may continue  throughout the period between 12.30pm and 3.00pm.&nbsp; In this situation employers  must provide the following:</p>\r\n<ul>\r\n<li>Cold drinking water according to the number of workers and the rules of  public health and safety;</li>\r\n<li>Thirst quenching drinks and citrus fruits and other items approved for use  by the UAE health authorities;</li>\r\n<li>First aid at the site;</li>\r\n<li>Appropriate industrial cooling facilities; and</li>\r\n<li>Shades to protect workers from direct sunlight.</li>\r\n</ul>\r\n<p><strong>Penalties for non-compliance<br /><br /></strong>The penalties for  non-compliance will be similar to those previously applied.&nbsp; First time  offenders will be subject to a fine of AED10,000 and will be downgraded to a  Grade C company in Category II on the Ministry&rsquo;s grading scale (this takes into  account factors such as the diversity of the workforce and the number of Emirati  nationals employed) for a period of 3 months unless the company is already a  Grade C Category II company, in which case no further work permits will be  issued for the company for a period of 6 months.<br /><br />In the case of a second  breach, the company will be fined AED15,000 and will again be downgraded to a  Grade C Category II company and will not have any new work permits issued for 6  months, unless the company is already a Grade C Category II company in which  case, no work permits will be issued for 9 months.&nbsp; For a third breach the  company will be fined AED20,000, will again be downgraded to a Grade C Category  II company and will not have any new work permits issued for 9 months unless the  company is already a Grade C Category II company, in which case, no further work  permits from the company will be issued for a period of 12 months.<br /><br />It is  envisaged that inspectors will visit construction sites and other such places  where work is performed in the open elements to ensure companies are complying  with the reduced working hours and whether the details of shift patterns worked  are being properly displayed. It remains to be seen whether a sufficient number  of inspectors will be available to properly enforce the Decision.<br /><br />Whilst  the levels of fines are not particularly high, downgrades to a Grade C Category  II company could mean that higher application fees are imposed on applications  made to the Ministry of Labour.&nbsp; Additionally, the prohibition against obtaining  new work permits for the requisite periods of time could have a significant  impact on companies tendering for new work if they will not have sufficient  existing resources to meet their proposed commitments.<br /><br /><strong>The Affect  on Contractors</strong><br /><br />Contractors will have been in the position to  prepare for the introduction of the restrictions on working hours for some time  so they should come as no surprise.&nbsp; Indeed most contractors to whom we have  spoken have welcomed the move provided it is implemented across the board and is  properly enforced.&nbsp; Contractors should therefore have already allowed for the  reduced working hours in their programmes, thus avoiding any potential  difficulties surrounding claiming extensions of time resulting from reduced  working hours.<br /><br />Consideration will no doubt have been given, in the months  leading up to the introduction of the Decision, as to whether labourers should  be transported away from the site during the restricted hours or whether  adequate shade and other facilities can be provided on site.&nbsp;<br /><br />Other  factors contractors are sure to have already considered to assist them in the  management of the UAE summer heat could include rescheduling activities (where  possible) to cooler parts of the day, providing increased amounts of drinking  water for labourers, reducing the demand on workers by minimising manual work  through the use of mechanical aids, and ensuring the availability of first aid  stations and personnel who are trained to recognise and deal with the effects of  heat exhaustion and other related  conditions.<br /><br /><strong>Conclusion</strong><br /><br />The UAE summer heat has  long been recognised as a significant factor affecting construction work in the  country and the introduction of restrictions on working hours during the hottest  part of year has significantly improved safety in the construction industry.&nbsp;  This has also been recognised in other countries, with Bahrain and Saudi Arabia  having followed suit with the introduction of their own summer working  restrictions.&nbsp;&nbsp; It is surely only a matter of time before similar restrictions  are imposed in other Gulf countries.<br /><br />All reputable contractors working in  the industry will already be aware of the natural loss of productivity that  occurs each summer in the UAE and will be familiar with measures that are put in  place to ensure their workers remain safe and as productive as possible during  this period.&nbsp; Whilst the summer working restrictions do impose additional  requirements, they generally serve to extend safety precautions that reputable  contractors already had in place during the hotter months in an effort to  maintain best practice throughout the construction industry.<br /><br />However from  15 June, the Decision will carry the force of law and all contractors will need  to ensure their compliance in order to avoid incurring penalties that could  affect their business long after the summer has ended.</p>'),
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(80273, 4377, 'content', '<p>Estidama, the Arabic word for sustainability, is the sustainability initiative  of the Abu Dhabi Urban Planning Council (UPC). Abu Dhabi\'s Plan 2030 establishes  a clear vision for sustainability as the foundation of any new development  occurring in the Emirate of Abu Dhabi. <br /><br />The purpose of Estidama is to  create a new sustainability framework that will direct the current course of  development while allowing adaptation as new understanding evolves. Its ultimate  goal is to create an ever improving quality of life for the residents of the  Emirate on four equal pillars of sustainability: environmental, economic,  social, and cultural.<br /><br />Estidama arose from the need to properly plan,  design, construct and operate sustainable developments with respect to the  traditions embedded within the rich local culture on one hand and the harsh  climatic nature of the region on the other. To this end, project owners,  developers, design teams and even residents need to think differently about how  they approach the design and planning process.<br /><br />Estidama began two years  ago and is the first program of its kind that is tailored to the Middle East  region. In the immediate term, Estidama is focused on the rapidly changing built  environment. It is in this area that the UPC is making significant strides to  influence projects under design, development or construction within the Emirate  of Abu Dhabi.<br /><br />Estidama is continually evolving to embrace the rapidly  changing concepts for sustainability, and ground them in the environmental,  social, cultural, and economic needs of the GCC region.There are three rating  systems under Estidama: the Pearl Community Rating System, the Pearl Building  Rating System and the Pearl Villa Rating System.<br /><br /><strong>Pearl Community  Rating System </strong><br /><br />The aim of the Pearl Community Rating System  (PCRS) is to promote the development of sustainable communities and improve  quality of life. The PCRS encourages water, energy and waste minimization, local  material use and aims to improve supply chains for sustainable and recycled  materials and products.<br /><br />An Executive Council Order of May 2010 states  that all new community developments must meet Estidama requirements starting in  June 2010. Following this mandate, significant effort has been made to align the  PCRS with the Abu Dhabi Development and Building Codes.<br /><br />The PCRS is  applicable to developments that are multiple plot subdivisions, with a vehicular  network and community facilities or amenities. A fundamental part of the PCRS is  the requirement for master plan teams to develop Pearl Rating targets and  guidelines for all buildings within the community.<br /><br /><strong>Pearl Building  Rating System </strong><br /><br />The aim of the Pearl Building Rating System  (PBRS) is to promote the development of sustainable buildings and improve  quality of life. Achievement of a sustainable building requires the integration  of the four pillars of Estidama together with a collaborative and  inter-disciplinary approach to building development. The PBRS encourages water,  energy and waste minimization, local material use and aims to improve supply  chains for sustainable and recycled materials and products.<br /><br />An Executive  Council Order of May 2010 states that all new buildings must meet Estidama  requirements starting in September 2010. Following this mandate, significant  effort has been made to align the PBRS with the Abu Dhabi Development and  Building Codes.<br /><br />The PBRS is applicable to all building types, their sites  and associated facilities, including hospitals, warehouses, industrial  buildings, laboratories and hotels. Any building constructed for permanent use  and that is air-conditioned must meet the PBRS requirements. <br /><br />Multiple  building or campus style projects can elect to use the \'multiple buildings\'  approach to simplify submissions and reviews. Project teams wishing to apply the  \'multiple buildings\' approach must contact UPC\'s Estidama team for approval and  guidance.<br /><br />All buildings with more than 40,000 m2 of GFA will be evaluated  by the UPC for the PRS rating. Nonetheless, the building must be registered with  the Municipality that has jurisdiction over the location of the building, and  follow the building permit process. <br /><br /><strong>Pearl Villa Rating  System</strong><br /><br />The aim of the Pearl Villa Rating System (PVRS) is to  promote the development of sustainable villas and improve quality of life.  Achievement of a sustainable villa requires the integration of the four pillars  of Estidama together with a collaborative and inter-disciplinary approach to  villa development known as the Integrated Development Process. The PVRS  encourages water, energy and waste minimization, local material use and aims to  improve supply chains for sustainable and recycled materials and products.  <br /><br />An Executive Council Order of May 2010 states that starting in September  2010 all new villas must be designed to meet Estidama requirements. Following  this mandate, significant effort has been made to align the PVRS with the Abu  Dhabi Development and Building Codes.<br /><br />The PVRS applies to any new  stand-alone enclosed permanent structure to be built on a new or existing plot,  and containing one dwelling unit for use by a single household, or a  multi-residential building of three or less stories above grade that houses  multiple dwelling units.<br /><br />Thousands of new villas will begin construction  in the Emirate of Abu Dhabi and this system will improve the quality, comfort  and sustainable performance of these villas.<br /><br />Both UPC and the local  municipality are involved in evaluating PVRS submissions. Individual villas and  projects with less than 10 villas will be evaluated directly by the  Municipalities as part of their already established building permitting process.  <br /><br /><strong>Estidama &amp; Development Review </strong><br /><br />Planning  permission from the UPC is required for all strategic developments in Abu Dhabi.  After a project receives Detailed Planning Approval, then the full requirements  of the PRS Design Rating become applicable. Achievement of the Design Rating is  required before obtaining building permits from the Municipalities.<br /><br />The  Design Rating application is linked with the building permitting process at the  relevant Municipalities and must be made at the end of the construction  documentation stage. The Construction Rating application must be made on  completion of construction.Following submission of the Pearl Design Rating  application to UPC, the Estidama team will review the application and provide  feedback and comments to the Municipality. The relevant Municipality remains  responsible for issuance of building permits. <br /><br />There is no public  disclosure of information provided as part of the submission requirements.  Information provided will remain confidential, except as required for  identification of the project and its key participants for the purposes of  providing Estidama certification.<br /><br />Estidama is not simply a rating method;  it is a vision and a desire to achieve a new sustainable way of life in the Arab  world. The ultimate goal of Estidama is to preserve and enrich Abu Dhabi\'s  physical and cultural identity, while creating an ever improving quality of life  for its residents. <br /><br />By promoting a new sense of responsibility with  Estidama, the UPC is going beyond other sustainable development initiatives  around the world, by creating new tools, resources and procedures crucial to the  2030 vision.<br /><strong>*Source: estidama.org</strong></p>'),
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(80250, 4376, 'content', '<p>Intellectual assets not only encompass registered intellectual property (IP)  rights, such as: patents, trademarks, and design rights; but also include rights  that are unregistered, such as confidential information, trade secrets,  technical information, circuit layouts, know-how, copyrights (registration  whereof is optional), human capital, industry knowledge, contractual  relationships, innovations and goodwill.&nbsp; These subject matters often provide a  particular organisation its competitive edge in the market.</p>\r\n<p>&lsquo;Intellectual asset management&rsquo; is the phrase that is used to describe the  process for capturing and managing knowledge to exploit for commercial gain. In  a global and knowledge driven society, there exists a high degree of recognition  that the assets of business now extend largely to intangible and intellectual  assets.&nbsp; These intellectual assets, if managed and treated appropriately, enable  organisations to maximise their value, minimise risk of infringement and third  party abuse thereof.</p>\r\n<p>Traditionally, inventory of physical assets of an organisation used to be  carried out for the purposes of accounting and taxation.&nbsp; The inventory also  allows an organisation to assess whether the physical assets are in usable  order, need replacement, are not threatened with extinction or damage, or are  redundant.&nbsp; In managing intellectual assets, the same principle is applied when  we speak about intellectual property audits (&lsquo;IP audits&rsquo;). IP audits list any  information pertaining to the origins, maintenance, and use of IP rights, in  turn providing management with guidance on how returns may be generated from  such rights.&nbsp; IP audits are not limited to registered rights but also any other  intangible creative output of value to the business as highlighted above.</p>\r\n<p>In conducting an IP audit, the driving factor should be whether the  organisation is extracting the maximum value from its IP assets. Matters that  typically arise in such an exercise include factors such as whether royalty  payments that are being paid or received reasonably reflect the value of use of  the subject matter, whether there are any risks associated with use of certain  IP rights that may outweigh the value from their use, and whether there are any  redundancies in terms of maintenance of IP rights.&nbsp; In terms of translating the  value of IP assets onto the balance sheet, there are several accepted principles  of valuation adopted by accountants that address as to what is and what could be  the value of such rights.</p>\r\n<p>IP audits can be conducted as a matter of good practice or upon the  occurrence of certain events such as the incorporation of a new company; a  corporate change such as a merger, acquisition or listing; a potential joint  venture; an investment into another company purporting to have the know-how for  certain innovations; or a sale of part of the business that includes assignment  or transfer of rights.</p>\r\n<p>A preliminary step in conducting an IP audit is to identify the IP assets.&nbsp;  The identification process is likely to be more straightforward in terms of  registered rights, such as patents and trademarks, but may require further  inquiry with regard to others assets such as know-how and enterprise  knowledge.&nbsp;</p>\r\n<p>Once the IP assets have been identified, the next stage of the inquiry will  turn to its origins and creation.&nbsp; This will lead to questions relating to the  nature and extent of ownership of the IP assets.&nbsp; Documents that may be relevant  at this stage include employee and consultant agreements, lab notebooks,  marketing material and publications.&nbsp; This stage is also likely to include  discussions with personnel from research and development, branding or marketing  and the design team.&nbsp;&nbsp; In the course of collating data relating to the  foregoing, it is good practice to simultaneously create an internal IP register,  if this is not already in existence.&nbsp; Subsequent audits can then be limited to  updating such a register.</p>\r\n<p>Further issues that will need to be considered include the cost of protecting  the IP assets and the extent to which they have been or will be commercialised  or used.&nbsp; The costs and revenue associated with both (commercialisation and use)  will be assessed during the commercial decisions made for the organisation.</p>\r\n<p>Apart from the focus on the organisation&rsquo;s own IP assets, an IP audit will  also consider the contractual arrangements it has with other parties regarding  the right to use third parties&rsquo; rights. Agreements in relation to matters, such  as licensing, assignments, technical assistance, technology transfer, know-how,  franchise, and marketing activities; are likely to be relevant during this  stage.</p>\r\n<p>Another inquiry to be made regarding third parties&rsquo; rights is the potential  risk of infringement of such third party IP rights.&nbsp; By way of illustration,  there are instances where the research and development team may not be aware of  certain existing technologies in another part of the world whilst developing a  similar technology.&nbsp; The potential risk that could arise here is that the  technology being developed may infringe the rights subsisting in existing  technology elsewhere. The same may also apply to a brand that could be identical  or similar to a prior registered trademark in a particular jurisdiction. Such  conflicts can sometime arise due to the fact that national level IP protection  regimes operate independent of each other, and afford statutory protection to  the party who is first in time to seek such protection through registration.</p>\r\n<p>Ownership of IP assets is another matter to be considered in an IP audit.&nbsp; IP  assets are typically created by the employees of the organisation, a third party  commissioned by the organisation, or in collaboration with another  organisation.&nbsp; Inquiries then are made to ascertain whether or not clear  documentation exists as to which organisation(s) own the IP assets and, if not,  whether that was intended to be the case.</p>\r\n<p>In order for organisations to determine if additional revenue streams are  available from innovations supported by it, an IP audit must be carried out. As  this article illustrates, where this is carried out, there will also be  inquiries made on other associated factors, which can include risk and cost  management issues surrounding use and protection of the IP assets.</p>'),
(80231, 4375, 'content', '<p><strong>Principle</strong><br /><br />When the performance of an obligation under a  binding contract becomes impossible, the contract will be terminated, thereby  extinguishing the subject obligation and returning the parties to their  pre-contractual positions,. This means that each party will be required to  return that which he had received under the contract. If that is not possible,  the court will award damages. An extraneous cause such as an unforeseen  occurrence, force majeure, fault of the aggrieved party or the act of a third  party may be pleaded as a defence to liability in both tort and in  contract.<br /><br /><strong>Claim</strong><br /><br />A commercial action was filed by  a company (&ldquo;the Claimant&rdquo;) against the first and second defendants, being the  Dubai International Airport and a Contractor (together &ldquo;the Defendants&rdquo;). In his  action The Claimant sought an order from the court:</p>\r\n<p>-&nbsp;that the Defendants pay, jointly and severally, the amount AED  3,406,323.27; alternatively</p>\r\n<p>-&nbsp;an order of specific performance, plus the payment of damages for the  period of non-performance<br /><br /><strong>Facts</strong><br /><br />The Claimant&rsquo;s  case was that it had concluded a contract with the Defendants to supply 35  airlock units and accessories for installation at the Dubai Flower Centre, which  was part of the Dubai International Airport Expansion Project. In compliance  with its obligations, the Claimant instructed its UK factory to purchase the raw  materials and engineering materials required to manufacture the airlock units.  The Claimant asserted that the Defendants had both refrained from performing  their obligations under the contract and then arbitrarily terminated it without  notice, thus causing loss and damage to the Claimant.&nbsp;<br /><br /><strong>The Court  of First Instance</strong></p>\r\n<p>An expert was appointed by the Court of First Instance. Upon receipt and  review of the expert&rsquo;s report, the Court ordered as follows:</p>\r\n<ul>\r\n<li>That the contract in question be terminated; and</li>\r\n<li>That the Second Defendant take delivery of the 5 airlock units that the  Claimant had supplied under the terminated contract, and to pay their value (AED  21,614.28) to the Claimant.</li>\r\n</ul>\r\n<p>Subsequently, the Claimant and the second Defendant appealed.</p>\r\n<p><strong>The Court Of Appeal<br /><br /></strong>The Court of Appeal dismissed the  Claimant&rsquo;s appeal. However, with respect to the Second Defendant&rsquo;s appeal, the  court decided to overturn the decision of the Court of First Instance and  dismissed the case. Consequently, the Claimant appealed to the Court of  Cassation.</p>\r\n<p><strong>The Court of Cassation<br /><br /></strong>Before the Court of Cassation,  the Claimant argued that the Court of Appeal had erred in its decision to  dismiss its case. The basis of the Claimant&rsquo;s argument was that an event of  force majeure had occurred. The Claimant submitted that the Department of Civil  Aviation had struck the Claimant off its list of accredited suppliers, and had  refused to accept any of the Claimant&rsquo;s work or use its equipment in the Dubai  Flower City project. The Claimant submitted that this was an event of force  majeure which had rendered the performance of its obligations under the contract  impossible.&nbsp; On the Claimant&rsquo;s assessment, this impossibility equated to the  contract being terminated. The above interpretation by the court means that the  Claimant cannot request the 2nd Defendant to take delivery of the 5 airlock  units that the Claimant had supplied under the terminated contract and to pay  their value (AED 21,614.28) to the Claimant.<br /><br />The Court of Cassation  accepted the appeal on the following basis:</p>\r\n<ul>\r\n<li>It is a settled principle that with respect to a binding contract, each  party must perform that which he is obliged to do, failing which the other party  may request that the contract be terminated in compliance with Articles 272 and  273 of the Civil Code. It is also settled that if the contract is terminated,  the parties shall be returned to their pre-contractual positions and, if that is  not possible, the court will award damages (but in this case only on the  condition the Claimant submitted evidence of the force majeure event). The Court  decided, however, that an extraneous cause such as an unforeseen occurrence,  event of force majeure, fault of the aggrieved party or acts of a third party  may be pleaded as a defence to liability in tort or in contract if it is  unanticipated and impossible to resist, avoid or guard against.</li>\r\n<li>It is a further settled principle that the determination of whether an  alleged extraneous cause would enable a party to avoid liability lies within the  sole discretion of the Court. The fact that the Department of Civil Aviation had  struck the Claimant off its list of accredited suppliers and refused to accept  any of its work or use its equipment in the project would not in itself  constitute an extraneous cause that would make the supply contract between the  Claimant and the Defendants impossible to perform. The Court determined that  such a situation could be classified as a normal commercial risk, which was  capable of being anticipated and thus avoided. The Court decided that this  commercial risk was something a prudent person would be able to guard against.  According to the Court of Cassation it was possible for the 2nd Defendant to  consult/review the list of the accredited suppliers of the Department of Civil  Aviation.</li>\r\n</ul>\r\n<p>In light of this the Court of Cassation overturned the lower&rsquo;s court decision  as it considered that the fact the Claimant was struck off from the list of  accredited suppliers of the Department of Civil Aviation was not to be  considered as an event of force majeure requiring the termination of the  contract.</p>'),
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(80208, 4374, 'content', '<p>In the case of [please insert case name/number], the Abu Dhabi Court of Appeals  vacated the Court of First Instance&rsquo;s decision. The appellee was ordered to pay  the appellant&rsquo;s court fees and costs incurred at both stages of proceedings, as  well as AED 500 in advocate&rsquo;s fees.&nbsp;&nbsp;<br /><br />The Court of Appeal determined the  facts and laid down several principles as follows:<br /><br />1.&nbsp;Service of the  claim in the original action took place contrary to Article 9(2) of the UAE Code  of Civil Procedure, which states:<br /><br />&ldquo;For matters connected with companies,  corporations and private institutions and all other private legal persons notice  shall be served at its administrative headquarters to its legal representative  or on a person acting for him. If they are absent the copy of the notice shall  be delivered to one of the employees of their offices. If it has no  administrative headquarters the copy shall be delivered to its representative in  person or at his domicile.&rdquo;<br /><br />2.&nbsp;In the case at hand, the process intended  for service upon the Appellant (a corporate entity) was instead served directly  upon one of its staff rather than on its legal representative or any other  person acting on its behalf. This was held to be a&nbsp; violation of Article 9(2).  The Court of Appeal ruled that a process (or summons, or claim), should not be  served on a member of staff except in the absence of the Company&rsquo;s legal  representative or any person(s) acting on that company&rsquo;s behalf. The Court of  Appeal also found that the name of the employee who had refused service was not  identified.<br /><br />3.&nbsp;Importantly, pursuant to Articles 10 and 13 of the Code of  Civil Procedure, the Court of Appeal ruled that because the claim was not issued  on appropriate party for the purpose of service, any prior proceedings and  decisions rendered therein were void.<br /><br />4.&nbsp;The Court of Appeal found that  the purpose of service of the claim had not been achieved because the Appellant  did not receive notice of the decision and consequently did not know it was  required to appear before the Court of First Instance.&nbsp;<br /><br />5.&nbsp;It is  important to note that consistent with well-established UAE case law, the Court  of Appeal held that it had jurisdiction to review the case on matters of law,  only, and that it was not at liberty to review matters of fact. That is to say,  while the merits of the case are unreviewable at the Appeal stage, the  application of law by the lower court may still be  reviewed.<br /><br /><strong>Commentary:<br /><br /></strong>The Civil Procedure Code  (Federal Law No. 11 of 1992), as amended, sets out the prescribed procedure for  service and clearly enumerates the particulars that should be included in the  notice document. The Code establishes important principles for lack of service  and effecting service by posting or publication in Articles 5 &ndash; 9. This is under  pain of service being declared void pursuant to Articles 10 and  13.<br /><br />Article 7 sets out the particulars that must be included in the  notice document. Importantly, the article starts with the word  &lsquo;shall.&rdquo;<br /><br />The particulars required to be included in the notice document  are:&nbsp;<br /><br />a)&nbsp;The date, month, year and time at which service was  made;<br /><br />b)&nbsp;The full name, occupation, title, place of work and place of  residence of the person requesting service as well as his representative&rsquo;s full  name, occupation, title, place of residence and place of work if not employed by  the serving party;&nbsp;<br /><br />c)&nbsp;The full name of the person to be served, his  occupation, title and address (or last reported address) and place of work if  his address is not known at the time of service;</p>\r\n<p>d)&nbsp;The name of the person serving process, his title and employer together  with his signature on the original notice and its copy</p>\r\n<p>e)&nbsp;The subject of notice</p>\r\n<p>f)&nbsp;The full name of the party on whom the process was served together with  his signature, seal or thumb print on the original process indicating his  acceptance of service or an endorsement showing his refusal of service and the  reasons therefor</p>\r\n<p>In addition to providing, in Article 7, the requirements for a document to be  sufficient for the purposes of giving notice, the Code then explains the method  of service in Article 8. A copy of the process should be personally delivered to  the individual intended to be served or delivered at his domicile or place of  work. The process may also be served at a place of that individual&rsquo;s  choosing.<br /><br />However, it should be noted that notice need not be served at  the defendant&rsquo;s residence or place of work; notice is suitable if &ldquo;delivered to  the person to be notified wherever he may be&rdquo; (Article 8(2)).&nbsp; When the person  to whom notice is addressed cannot be located, Article 8(3) provides alternative  measures to ensure adequate service of process. Given such specific courses of  action, service of process is not, in my opinion, open to interpretation,  rather, is grounded firmly in the text of the Code.&nbsp;<br /><br />Article 8(4) seems  to act as a clause of last resort, when there is no individual capable or  agreeable, upon whom notice may be properly served. In such case, the person  undertaking service must refer the matter to the judge who can then direct that  a copy of the process be posted on the notice board and on the door of the place  of residence of the person to be served..&nbsp;&nbsp;&nbsp;<br /><br />Furthermore, if the court  verifies that notice cannot be served on the defendant because he has no known  domicile or place of work, under Article 8(6), the judge may effect notice by  publication in an Arabic language daily newspaper, simultaneously serving  adequate notice to the defendant while confirming that the plaintiff has duly  performed&nbsp; his duties pursuant to the law.<br /><br />In our opinion there should  absolutely not be a clause appearing on the notification document stating that  the process server is entitled to serve by posting in the event that he does not  find anyone eligible to be served or in the event that the intended recipient/  addressee or one of his staff refuses to receive service of process. That is  because such an action by the court, if it were to leave place, would violate  the explicit provision that obligates the process server to present the matter  to the judge so that the latter may order service by posting or  publication.<br /><br />It is clear from the foregoing that service by posting on  the notices board and at the defendant&rsquo;s last known address are allowable,  pursuant to a court decision following an unsuccessful attempt to personally  serve the defendant or defendant&rsquo;s agent where the process server cannot find  anyone capable of accepting service from among those listed in Article  8(2).<br /><br />Article 8 permits service by posting notice on designated notices  boards, and by publication in newspapers under Article 8(4) and 8(6)  respectively. On the other hand, there is no provision in Article 9 allowing  service by posting or publication. This is a very important issue of great  significance for many cases, as shown by the Court of Appeals&rsquo; present  decision.<br /><br />Article 9 deals with service for UAE ministries and their  departments as well as companies, associations, private establishments and all  corporate entities. Under Article 9(1), notice must be served upon the legal  representative of the state ministry, or federal or local government departments  to be served.&nbsp;<br /><br />Article 9(2) outlines methods of service of process on  companies, associations, private establishments and all private corporate  entities. A copy of the notice document is to be served at the company,  association, private establishment or private corporate entity&rsquo;s headquarters,  upon its legal representative or any other person acting in his behalf.<br /><br />A  company&rsquo;s legal representative is authorized to legally represent the company  before third parties either as the chairman of its board of directors or on the  basis of a mandate duly authorised by the general manager, CEO or appointed  managing director with the right to delegate his right of representation to  third parties. Accordingly, when suing any of the corporate entities mentioned  in Article 9(2), a specific individual must be named as their representative.  Article 9(2) then states that if no representative or person acting for the  corporate entity is available, a copy of the notice document should be served on  employee, such as the office manager or the secretary, after verifying his  identity and recording such service on both copies of the notice document.  Finally, Article 9(2) concludes with the following provision: &ldquo;If [the company]  has no administrative headquarters, the copy shall be delivered to its  representative in person or at his domicile.&rdquo; This highlights the special  importance given to service on private corporate entities, including companies  and establishments, which is prescribed for them under pain of the service being  declared void.<br /><br />There is often confusion as to the applicability of the  provisions of Articles 8 and 9 in different circumstances. Because of such  misapprehension, Article 8 tends to be applied to all types of defendants,  including companies (as opposed to private individuals) as shown in the present  case at hand at level of the Court of First Instance.&nbsp;<br /><br />Lastly, as far as  nullity is concerned, Article 10 of the Code of Civil Procedure provides that  notice comes into effect at the time the copy is served in accordance with the  provisions. This means that if the copy is not served in accordance with  Articles 8 and 9, notification shall be without effect and rendered absolutely  null.<br /><br />Article 13 deals with irregular procedure. It is a general  provision concerning all procedures under the Law. The second part of the  article reads: &ldquo;Notwithstanding any provision to the contrary nullity shall not  be declared insofar as the object of the procedure has been realised.&rdquo; Article  13 seems to be in contention with Article 10, which is a clause on its own, as  well as one which relies on several others (denoted by the fact that Article 10  is satisfies only if service of process is made &ldquo;in accordance with&rdquo; other  articles within the Code). It follows that if, despite irregular process in  terms of form or required details within the notice document or method of  service, the person to be served appears in court in time to enter his defence,  the object of the procedure would be realised and nullity will not be declared  with respect to service. However, such a waiver of nullity does not seem to  extend to all circumstances; if, despite provisions for nullity of process, the  person to be served appears in court after the pleadings are closed but is not  allowed to stand before it and enter his defence in the case, his appearance  would not realise the object of the procedure and irregular process may be  asserted by the defendant, requiring that the court declare null the service of  process.</p>'),
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(80182, 4372, 'content', '<p>I&rsquo;d like to take the opportunity this month to congratulate our Banking and  Finance team on once again winning the &lsquo;Best Law Firm of the Year&rsquo; award at the  Banker Middle East<br />Industry Awards. This award is voted by banks in the  region and is a great endorsement from our clients whom I sincerely thank for  recognizing Al Tamimi as leaders in this area of practice.<br /><br />I&rsquo;d also like  to acknowledge and congratulate Mohammed Al Marri, our joint-venture partner in  Qatar for his appointment to the Al Tamimi partnership. We opened our office  in<br />Qatar in association with Mohammed Al Marri in 2004 and following  considerable growth, opened an office in the Qatar Financial Centre in 2008.  Mohammed&rsquo;s appointment brings<br />the total number of partners at Al Tamimi to 38  - a team which I am very proud to lead.</p>\r\n<p>There are a number of highlights this month which I&rsquo;d like to bring your  attention to. We present our Construction &amp; Engineering team to youthrough  our &lsquo;In Focus&rsquo; section of the magazine and on a regional level, we present our  office in Kuwait. I do trust you find the information presented of great  use.<br /><br />As we move closer to the summer holiday period, I&rsquo;d like to take  this opportunity to wish those of you travelling, a happy and safe holiday. It&rsquo;s  been a very busy time for many of us so I&rsquo;m sure the break is well deserved. I&rsquo;d  also like to extend my best wishes to all for a happy and holy month of August &ndash;  Ramadan Kareem.<br /><br />Husam Hourani<br />Managing Partner</p>'),
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(80193, 4373, 'content', '<p>With a strong reach across the Middle East, Al Tamimi&rsquo;s Construction and  Engineering team is one of the regional leaders in this area of practice.&nbsp; The  value we can bring to our clients does not stop at the site and negotiating  table. In each of our regional offices, we hold the capability to support our  construction clients on almost any legal issue that crosses their desks;  corporate set-up /structuring, employment and labour issues, local litigation  and summary relief, project finance and securitization and even securing  commercial premises and staff accommodation.<br /><br />The Construction &amp;  Engineering team provides legal expertise with a practical focus to both local  and international clients; whether for residential or mixed-use developments,  utilities, power, transport, roads or hospitality and leisure facilities. Always  with an eye on our clients&rsquo; commercial objectives, we support our clients with a  comprehensive knowledge of legal principles underpinning infrastructure and  construction projects in the region.&nbsp;&nbsp; <br />Regional Head, Steven Hunt is  supported by a team of lawyers experienced in providing expert guidance on risk  management and dispute avoidance.&nbsp; When disputes cannot be avoided, our  litigation, arbitration and mediation experience allows us to deliver the best  commercial solution for our clients, while our knowledge and ease with the  jurisdiction and subject matter goes towards maximising the prospect of a  successful outcome in the most cost efficient manner.<br /><br />The Construction  and Engineering practice provides all the legal services required to deliver a  construction and engineering project, from concept to delivery. These include:</p>\r\n<ul>\r\n<li>Drafting tender documents including requests for tender, instructions to  tenderers and tender addenda;</li>\r\n<li>Drafting and negotiating all forms of project related contracts, including  consultancy agreements, construction contracts, design and build contracts,  design, build and operate contracts and engineering, procurement and  construction contracts;</li>\r\n<li>Drafting and negotiating bespoke agreements such as development agreements,  concession agreements, finance agreements;</li>\r\n<li>Drafting and negotiating contracts based on industry standard forms,  alliance contracts, PPP contracts and operation &amp; maintenance  agreements;</li>\r\n<li>Drafting and negotiating dredging and offshore works agreements;</li>\r\n<li>Preparing and negotiating protective documents for stakeholders such as  novation agreements, collateral warranties and step-in agreements;</li>\r\n<li>Drafting and negotiating supply, maintenance and service contracts;</li>\r\n<li>Strategies for dispute avoidance and risk management, including assisting  with the establishment of proper contract administration tools and providing  training programs for project management and contract administration, and  preparing and defending delay claims;</li>\r\n<li>Dispute resolution (i.e. litigation, arbitration and ADR) ;</li>\r\n<li>Contract workshops for clients in relation to specific projects.</li>\r\n</ul>\r\n<p>In addition to the services provided directly by our Construction and  Engineering team, the strength of the firm and range of practice areas, means  that the Construction and Engineering team works very closely with other key  practice areas at Al Tamimi.&nbsp; Practice areas we work closely with  include:<br /><br /><strong>Local Law Expertise and Litigation<br /><br /></strong>When  conducting construction arbitration we use a combination of our construction  disputes expertise and arbitration case management skills and local law  experience.&nbsp; From our clients&rsquo; perspective this operates seamlessly and seeks to  optimise the experience we possess at Al Tamimi &amp; Company while managing the  dispute process in the most efficient way.&nbsp; Our Construction and Engineering  team works closely alongside our local law practitioners.&nbsp; This is particularly  important when it comes to interlocutory issues (jurisdictional challenges,  injunctions, performance bonds etc.) and enforcement of judgments and  awards.<br />&nbsp;<br /><strong>Banking &amp; Finance</strong><br /><br />The Banking and  Finance practice assist infrastructure/construction clients on the funding  elements on project.&nbsp; The practice is able to advise on the local law issues  which concern privately financed projects and advises lenders and borrowers on  all aspects of structuring, negotiating, documenting finance transactions and  securitisation issues.<br /><br /><strong>Corporate Commercial</strong><br /><br />The  Corporate Commercial team provides support to many of our construction and  engineering clients by way of advice relating to corporate governance, joint  ventures, shareholder agreements and share  acquisitions.<br /><br /><strong>Employment</strong><br /><br />The Employment practice  compliments the construction and engineering department by advising on the  issues facing developers and contractors such as workplace safety, recruitment  and termination of staff at all levels, settlement negotiations and severance  agreements,&nbsp; service agreements and contracts of employment for all categories  of staff, including directors and senior executives as well as issues relating  to government owned entities that are subject to the various applicable civil  service laws in the relevant jurisdiction.<br /><br /><strong>Real  Estate</strong></p>\r\n<p>The Real Estate team can assist our construction clients with securing  commercial premises and staff accommodation and renewing and renegotiating lease  agreements.<br />The breadth of service we can offer puts us in a unique position  in the construction law sector and sets us apart from other specialist law  firms.</p>\r\n<p>For more information on how we can assist you, please contact<br />Regional  Head of Construction and Engineering, Steven Hunt: <a href=\"mailto:s.hunt@tamimi.com\">s.hunt@tamimi.com</a></p>'),
(80167, 4371, 'content', '<p>The Jordanian government recently issued the General Pardon Temporary Law No. 10  of 2011 (the \'Law\'), published in Issue No. 5096 of the Official Gazette dated 8  June 2011. The Law grants a pardon for a number of crimes; in particular  misdemeanors, minor violations and certain criminal acts. The pardon operates  from the date of publication of the aforementioned Law.<br /><br />According to  Article 2(a) of the Law, this applies to all offences, whether criminal  offences, misdemeanors or various other violations which have taken place before  the 1st of June in the current year, save for certain exceptions that are listed  under Article 3 of the same text. As a general pardon, this decree acts to  nullify the origins of the crime as well as the penalties and punishments  arising from them &ndash; as opposed to simply abolishing the punishment arising from  it as is generally the case in similar situations. Further, this pardon will  also serve to drop charges which are pending in the relevant courts, as well as  serving to nullify all penalties and fines which have transpired in relation to  crimes subject to the above pardon.<br /><br />As stated, the above Law does not  apply to certain exceptions listed under Article 3 of the Law in relation to  both primary and secondary perpetrators. These can include crimes of espionage,  offences relating to drugs and other mind-altering substances, those concerning  national security, offences involving organised crimes, rape, certain types of  forgery, as well as any relating to misuse of trust.&nbsp; Additionally, the Article  does not apply to crimes relating to murder, manslaughter, acts causing grievous  bodily harm, and fighting as defined under the Jordanian Penal Code. It should  be noted that all of the above remain subject to the rules and exceptions  governing them. The exceptions also encompass crimes of theft, fraud, fraudulent  bankruptcy, crimes relating to slavery, money laundering and the financing of  terrorist activities. Moreover, offences associated with the use of firearms and  firecrackers, in addition to fines imposed for violations of customs laws and  those relating to general taxes, do not fall within the area of the pardon.  <br />&nbsp;<br />It is vital to note that that the pardon issued is to have no effect on  civil liabilities resulting from personal claims made by those personally  affected by the execution of each given crime under Article 4 of the Law. The  Law does not prevent the confiscation of goods or destruction of the same or  acting with them in some way other than normal commercial transactions as per  the relevant laws&nbsp;&nbsp;<br />&nbsp;<br />Moreover, according to the Law, prisoners affected  by this pardon are to be released by an order from the prosecutors of the  relevant area. For those cases which are still pending, the court or relevant  tribunal must issue a decision/declaration, reflecting the Law as  amended.<br /><br />Finally, a committee must be created to look into any  objections, forms or explanations which may come about due to the implementation  of this Law. The Committee will reach its conclusions on such matters either  unanimously or by majority of its members. Also, under the same decree, a  special pardon was issued for which the government, under the King&rsquo;s directives,  formed a committee in order to study cases that were not included in the general  pardon and will issue its recommendations accordingly.<br /><br />Overall, the  effects of this Law have proved to be far reaching. According to the Jordanian  Prime Minister, over 4,000 prisoners will be pardoned under the Law with nearly  1,500 of these being released immediately.&nbsp; As for those relating to pending  decisions, it is estimated that some 150,000 cases will benefit from this  pardon, including around 450,000 beneficiaries. Further, the largest chunk of  benefits will be those relating to traffic violations, with nearly 2 million  violations arising from nearly 350,000 citizens pardoned at a value of JOD36.24  million. In addition to the above, 70,000 people will be exempted from paying  more than JOD12 million in overstaying fines, in addition to 273,000 citizens  who will no longer be required to pay overdue fines on vehicle licenses that  expired before June 1st. Thus, approximately 1.5 million individuals will  benefit from this pardon, including non-Jordanians.<br /><br />According to  statements made by government officials, the pardon was issued to help reflect a  tolerant and harmonious community, and to create a \'fresh start\' for those  pardoned, as well as serving as a remedy to hardships feared to have been  suffered by affected unjustly sentenced prisoners. Furthermore, the pardon was  created in order to restore trust between citizens and the state and is intended  to embody a firm judicial stance against corruption cases &ndash; bringing about an  end to speculation that such conditions exist. HRH King Abdullah II has stated  that what matters in the pardon issue is for pardoned convicts to learn from  their mistakes and be given the chance to correct them rather than simply  imposing punishment.</p>'),
(80166, 4370, '_yoast_wpseo_metadesc', 'Sharia compliant companies raise capital from a number of sources such as common stocks, Sukuk and funds. Different securities are expected to generate different returns. Fund raising by a company in a Sharia compliant environment may take different forms such as borrowing, issuance of shares or issuance of Sukuk.'),
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(80150, 4370, 'pageSummary', 'Sharia compliant companies raise capital from a number of sources such as common stocks, Sukuk and funds. Different securities are expected to generate different returns. Fund raising by a company in a Sharia compliant environment may take different forms such as borrowing, issuance of shares or issuance of Sukuk.'),
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(80129, 4369, 'content_description', 'Rotterdam Rules (the “Rules”) is the new United Nation Convention on the carriage of goods by sea which involves other modes of carriage. The new convention came  to the surface in 2008 after the last convention in 1978 (Hamburg Rules).'),
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(80131, 4369, 'pageSummary', 'Rotterdam Rules (the “Rules”) is the new United Nation Convention on the carriage of goods by sea which involves other modes of carriage. The new convention came  to the surface in 2008 after the last convention in 1978 (Hamburg Rules).'),
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(80143, 4369, '_yoast_wpseo_metadesc', 'Rotterdam Rules (the “Rules”) is the new United Nation Convention on the carriage of goods by sea which involves other modes of carriage. The new convention came to the surface in 2008 after the last convention in 1978 (Hamburg Rules).'),
(80144, 4370, 'content', '<p>Sharia compliant companies raise capital from a number of sources such as common  stocks, Sukuk and funds. Different securities are expected to generate different  returns. Fund raising by a company in a Sharia compliant environment may take  different forms such as borrowing, issuance of shares or issuance of  Sukuk.<br /><br />As a general rule, Sharia law allows investment in common stocks  (company shares) as long as those companies do not engage in &lsquo;Haram&rsquo; activities  such as lending, gambling or the production of alcohol, tobacco, weaponry or  pornography. Investment in companies may be through participation in initial  public offerings, rights issue or by direct investment (private equity). Islamic  scholars have made some concessions on permissible companies, as most use debt  either to address liquidity shortages (they borrow) or to invest excess cash  (interest-bearing instruments). One set of filters excludes companies that hold  interest-bearing debt, receive interest or other impure income or trade debts  for more than their face values. A further distillation of the aforementioned  screens would exclude companies whose debt/total asset ratio equals or exceeds  33%; companies with \"impure plus non-operating interest income\" revenue equal to  or greater than 5% or companies whose accounts receivable/total assets equal or  exceed 45% or more.<br /><br />Sukuk refer to certificates or financial securities  that represent a proportional or undivided interest in an asset or pool of  assets and the claim embodied in Sukuk is not simply claim to a cash flow but an  ownership claim. This differentiates Sukuk from conventional bonds as the latter  proceed over interest bearing securities, whereas Sukuk are basically investment  certificates consisting of ownership claims in a pool of assets.&nbsp;The aim is to  sell the assets and recover its value from subscription, in which case the  holders of the certificates become owners of the assets. Sukuk may be divided  into two types: Sukuk that yield pre-determined returns and Sukuk based on  profit and loss sharing.&nbsp; Sukuk al-ijarah is a prime example of certificates  that yield pre-determined returns.&nbsp;<br /><br />Having stated the above, a variety of  factors may impact a company&rsquo;s decision as to which capital raising strategies  to execute and when. The choices often have to be made and evaluated by a  company before deciding on the most suitable method of fund raising. For  example; a company, ABC Corporation, intends to raise Sharia compliant capital  to build a power plant in Kuwait. Some of the considerations as to which of the  two methods to raise capital is suitable for ABC Corporation are examined  below.<br /><br />The raising of capital through common stocks is done either  through an initial public offering, if ABC Corporation is not a publically  listed company, or through a secondary offering. This method has a number of  advantages to ABC Corporation represented by features which appeal to investors,  hence, will enhance the attractiveness of potential for subscription by the  investors. Some of the factors are listed below:<br /><br />(i)&nbsp;common stock has the  potential for delivering very large gains as compared to Sukuk. Annual  returns-on-investment (ROI) of over 100% have been experienced;<br /><br />(ii)&nbsp;the  potential loss from stock purchased with cash is limited to the total amount of  the initial investment. This is considerably better than that of some leveraged  transactions, where the maximum loss can well exceed the total of the funds  invested;<br /><br />(iii)&nbsp;stocks offer limited legal liability. Passive  stockholders (those who take no active part in the running of the company) are  protected against any liability stemming from the company&rsquo;s actions beyond their  financial investment in the company;<br /><br />(iv)&nbsp;most stocks are very liquid; in  other words, they can be bought and sold quickly at a fair  price;<br /><br />(v)&nbsp;although past performance is not a guarantee of future  performance, stocks have historically offered very high returns in relation to  other investments. <br />&nbsp;<br />In other words, stocks offer two ways for the  investors to benefit, by capital gains and dividends. Each share of stock  represents partial ownership in a company. If the company becomes more valuable,  so will the ownership interest represented by each share of stock. This  appreciation of the stock&rsquo;s value is known as a capital gain. In addition, if  the company earns more profits than it needs to support its maintenance and  growth, it may elect to distribute the excess to its owners, the shareholders,  which are the dividends.<br /><br />However, while there are numerous advantages to  investors making investments on common stocks appealing, common stocks, like all  investments, have some distinct disadvantages which make it not appealing to  investors, hence, reducing the attractiveness of the stock to investors to  participate, including:<br /><br />(i)&nbsp;since common stock represents ownership of a  business, investors are the last to get paid, like all other owners. A company  must first pay its employees, suppliers, creditors, maintain its facilities and  pay its taxes. Any money left over can then be distributed among its investors;</p>\r\n<p>(ii)&nbsp;while shareholders are company owners, they do not enjoy all of the  rights and privileges that the owners of privately held companies do. For  example, they cannot normally walk in and demand to review in detail the  company&rsquo;s books;</p>\r\n<p>(iii)&nbsp;investors in a company may not know all that there is to know about the  company. This limited information can sometimes cause investment decision-making  to be difficult;</p>\r\n<p>(iv)&nbsp;stock prices tend to be volatile. Prices can be erratic, rising and  declining quickly. Such declines often cause investors to panic and sell, which  actually only serves to lock in their losses; and</p>\r\n<p>(v)&nbsp;stock values can sometimes change for no apparent reason, which can be  quite frustrating for the investor who is trying to anticipate the stock&rsquo;s  behavior based on the actual performance of the company.<br />&nbsp;<br />On the other  hand, ABC Corporation may want to consider Sukuk as a means of fund raising due  to the following features of Sukuk issuance:</p>\r\n<p>(i)&nbsp;able to mitigate liquidity of illiquid assets and untapped  assets;<br />(ii)&nbsp;reduce the cost of funding, in addition, having the cost of  funding linked to market rates is attractive in uncertain times;</p>\r\n<p>(iii)&nbsp;decrease funding risks by diversifying the sources of funds;</p>\r\n<p>(iv)&nbsp;takes assets of the balance sheet without the loss of use;</p>\r\n<p>(v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ability to attract more investors since investors are able to make  their investment decisions almost independently of the credit standing of the  issuer and instead, focus on the degree of protection provided by the SPV to  meet the investment target. <br />&nbsp;<br />However, the disadvantages of ABC  Corporation issuing Sukuk are as follows:</p>\r\n<p>(i)&nbsp;including the widening of credit spreads, which make it less  cost-effective if ABC Corporation has ratings below &lsquo;AA&rsquo; to issue the Sukuk;</p>\r\n<p>(ii)&nbsp;the costs of structuring and issuing Sukuk remain high relative to  conventional bank loans and bond issuance. Legal and accounting fees contribute  to this higher cost structure, as does uncertainty regarding the perceived risk  associated with these instruments. Moreover, the lack of standard structures,  perceived differences in approach to sharia compliance and a relatively illiquid  secondary market may, in our view, discourage investors&rsquo; appetite for Sukuk;</p>\r\n<p>(iii)&nbsp;investors&rsquo; interest in Sukuk has been dampened by increased market  risks, as for example, the requirement to mark-to-market (usually at a loss) the  bonds which are within the investors&rsquo; portfolio;</p>\r\n<p>(iv)&nbsp;&nbsp;there is a lot of controversy surrounding the structure of the Sukuk.  Some companies want to avoid the controversy as they are not keen on disguising  the features of conventional bonds and making them appear as Sukuk. However, if  ABC Corporation wants a bond that is truly asset-backed, maybe it will then  issue Sukuk; and</p>\r\n<p>(v)&nbsp;&nbsp;investors are often faced with the risk that there will be no assurance  that a secondary market for Sukuk will develop, or if a secondary market does  develop, that it will provide the Sukukholders with liquidity of investment or  that it will continue for the life of the Sukuk. The market value of the Sukuk  may fluctuate, consequently, any sale of Sukuk by Sukukholders in any secondary  market that may develop, could be at a discount from the original purchase price  of such Sukuk and accordingly, an investor in the Sukuk must be prepared to hold  the Sukuk until the Sukuk has been redeemed, or all amounts then due have been  paid in full.<br />&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <br />Considering the above factors, the primary selection  as to whether ABC Corporation should issue common stock or Sukuk lie in the fact  that companies which want to grow through expansion or acquisition often issue  stock rather than Sukuk, because Sukuk essentially raises a debt obligation and  money has to be paid back. There is a limit as to how many Sukuk can be issued  before the burden of repayment of principal and profit on a company&rsquo;s debt  becomes too great and further offerings become impractical. By offering common  stock instead, a company will raise money from the public without taking on more  debt. However, if a company such as ABC Corporation which plans to undertake  specific project financing may consider issuing Sukuk if it has specific revenue  generating assets which can be offered as the underlying assets for the Sukuk.  In such a case, only the specific assets will be affected and not the entire  assets and revenue of a company. In the case of ABC Corporation, the power plant  project can be structured in such a way so as to contribute as the underlying  asset for the Sukuk (eg through istisna&rsquo; or ijara for the land plot where the  power plant is to be constructed) without affecting its other assets.</p>'),
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(80110, 4368, 'content_description', 'Highlights of the Laws of the United Arab Emirates, the People’s Republic of China and the Common Law applicable to construction \r\nThis article is written for China Construction Law Review.  It seeks to provide readers with an insight into some aspects of UAE law relevant to the construction industry by way of comparison with the law of the People’s Republic of China.'),
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(80112, 4368, 'pageSummary', 'Highlights of the Laws of the United Arab Emirates, the People’s Republic of China and the Common Law applicable to construction \r\nThis article is written for China Construction Law Review.  It seeks to provide readers with an insight into some aspects of UAE law relevant to the construction industry by way of comparison with the law of the People’s Republic of China.'),
(80113, 4368, '_pageSummary', 'field_59e59b307dec8'),
(80114, 4368, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-7/july-2/uae-chinese-construction-law.html'),
(80115, 4368, '_currentURL', 'field_59d35123ab1e7'),
(80116, 4368, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Eric Teo'),
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(80118, 4368, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'e.teo@tamimi.com'),
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(80124, 4368, '_yoast_wpseo_metadesc', 'Highlights of the Laws of the United Arab Emirates, the People’s Republic of China and the Common Law applicable to construction This article is written for China Construction Law Review. It seeks to provide readers with an insight into some aspects of UAE law relevant to the construction industry by way of comparison with the law of the People’s Republic of China.'),
(80125, 4369, 'content', '<p>Rotterdam Rules (the &ldquo;Rules&rdquo;) is the new United Nation Convention on the  carriage of goods by sea which involves other modes of carriage. The new  convention came&nbsp; to the surface in 2008 after the last convention in 1978  (Hamburg Rules). The main aspect of the Rules is that it regulates the  electronic documents related to the carriage contract which evidences and  contains the contract of carriage and the receipt of goods by the performing  party.<br /><br />Despite the fact that the convention has not yet come into effect,  it is worthconsidering its terms to determine whether or not it could be  suitable for the marine industry.<br /><br /><strong>Scope of  application</strong><br /><br />Article 5 of the Rotterdam Rules deals with the  scope of its application. The scope of application has changed so as to give  regard to the places of receipt and delivery and the ports of discharge and  loading that either of them is located in a contracting state. It is meant to  distinguish between the place where the cargo is received by the carrier and  loaded and the place where the cargo is discharged and delivered to the  receiver. The most important thing is that the place of receipt and place of  delivery are in different states and the port of loading and port of discharge  are in different states.<br /><br />Contrary to Hamburg Rules, the Rules disregard  the place of issuance of the bill of lading to have effect on the application of  the rules, taking into consideration the international aspect of the sea  transport business.<br /><br />Furthermore, the Rules did not give effect as to its  application to any agreement in the contract of carriage incorporating the Rules  to govern contract. In this case, it is not known whether the court hearing the  dispute will apply the Rules where the shipper and the carrier as parties to the  contract of carriage had agreed to apply the Rules and a dispute arises between  the receiver (party entitled to receive the cargo) and the carrier. Lets assume  that one party chose to invoke the Rules before the court hearing because his  position is favored under the Rules and the other party dispute that. There will  be no issue if the law of the country of the court hearing considers such  agreement void, but the problem will arise if such agreement is considered  valid. In this situation, the court will have difficulty interpreting the scope  of application of the Rules in the sense that the Rules has limited its  application without considering the agreement by the parties to apply the Rules  as part of its application scope. In such case the court has two options of  conclusion:<br /><br />1)&nbsp;That the scope of application is concluded and limited in  the Rules and hence the agreement in the contract of carriage to apply the Rules  will have no effect; or</p>\r\n<p>2)&nbsp;The Rules had kept silent on this issue and as long as it does not forbid  such agreement the Rule may apply pursuant to the agreement of the parties.</p>\r\n<p>Hamburg Rules have in advance resolved the dispute by including the agreement  in the contract of carriage to apply such rules as part of the scope of its  application<br /><br /><strong>On which contracts the Rules  apply</strong><br /><br />The Rules do not apply to the charterparties and the  contracts for the use of a ship or of any space thereon in both liner and  non-liner transportation. The Rules apply to Transport Document or an Electronic  Transport Record as defined by the Rules. Both of them are defined as issued  under a contract of carriage and:</p>\r\n<p>1.&nbsp;Evidence the receipt of the cargo by the performing party;  and<br />2.&nbsp;Evidence or contain the contract of carriage.&nbsp;&nbsp;<br /><br /><strong>Period  of Responsibility of the Carrier</strong><br /><br />The carrier is responsible  under the Rules and Hamburg Rules to carry the goods and deliver them to the  consignee or the party entitled to receive the cargo under the contract of  carriage. His obligation starts when he or the performing party receives the  goods and ends when the goods are delivered.<br /><br />In both the Rules and  Hamburg Rules the responsibility of the carrier starts if he receives the cargo  from the shipper or his representative directly, or, when the carrier collects  the goods from a third party or an authority if the laws or regulation of the  place of receipt (port of loading under Hamburg Rules) require the goods to be  handed over to such third party or authority.<br /><br />The responsibility of the  carrier ends when the carrier delivers (hands over) the cargo to the consignee  or his representative directly, or, when the carrier hands over the cargo to a  third party or an authority if the laws or regulation of the place of delivery  (port of discharge under Hamburg Rules) requires the goods to be handed over to  such third party or authority.<br /><br />Hamburg Rules had further presumed a  situation and a solution of it where the carrier wishes to deliver the goods and  the consignee does not appear or refuses to take delivery from the carrier. In  such situation the Hamburg Rules considered the carrier as having the goods  delivered if he places &ldquo;them at the disposal of the consignee in accordance with  the contract or with the law or with the usage of the particular trade,  applicable at the port of discharge&rdquo;. Although, the term &ldquo;disposal&rdquo; is not  conclusive enough to discharge the carrier from his responsibility since the  courts may vary the interpretation of such term and whether the carrier has  actually placed goods under the disposal of the consignee.<br /><br />On the other  hand the Rules in article 48 has dealt differently with such a case in the sense  that it provides for situations when it is considered that the goods have not  been delivered and the solutions available to the carrier as alternative to the  actual delivery to the consignee.&nbsp;&nbsp;&nbsp;<br /><br />The Rules created a new concept to  determine the period of the carrier&rsquo;s responsibility under the contract of  carriage in article 12 (3). The article allows parties to the contract to agree  on the time and place of delivery to the consignee and receipt of goods by the  carrier for carriage. In no way can they agree that time of receipt be after the  beginning of the initial loading under the carriage contract nor can they agree  that the time of delivery is to be before the completion of the final discharge  under the carriage contract.<br /><br />This article provides a preview of some  aspects of comparison between Rotterdam Rules and Hamburg Rules..</p>'),
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(80106, 4368, 'content', '<p><strong>Highlights of the Laws of the United Arab Emirates, the People&rsquo;s  Republic of China and the Common Law applicable to construction </strong><br />This article is written for China Construction Law Review.&nbsp;It seeks  to provide readers with an insight into some aspects of UAE law relevant to the  construction industry by way of comparison with the law of the People&rsquo;s Republic  of China.&nbsp;Given the prevalent use of FIDIC&sup2; standard forms of construction  contract in the UAE and the strong presence of common law lawyers in the  country, this article also compares the laws of the two subject countries with  well known common law principles and relevant provisions of the FIDIC&sup3;Red Book  conditions.&nbsp;&nbsp;In this first part of the article, an introduction to the relevant  laws and issues relating to the principle of good faith and liquidated delay  damages are discussed.<br /><br /><strong>Introduction </strong><br />In the UAE, all  commercial activities (including building or construction activities) are  regulated by Federal Law No. 18 of 1993, also known as the UAE Commercial  Transaction Law or the UAE Commercial Code.&nbsp;However, in practice, Federal Law  No. 5 of 1985 also known as the Federal Civil Transaction Law or the UAE Civil  Code is more regularly applied or referred to because it contains general and  mandatory laws that govern contractual relationships in the UAE<sup>4</sup>.The  UAE Civil Code has a specific chapter<sup>5</sup> under the heading called  &ldquo;Muqawala<sup>6</sup>&rdquo; which contains provisions that govern the relationships  between employers, contractors, subcontractors and engineers/architects. In the  context of the People&rsquo;s Republic of China<sup>7</sup>, the relevant law is the  Contract Law of the People&rsquo;s Republic of China<sup>8</sup>&nbsp;&nbsp;(中华人民共和国合同法) (&ldquo;the  PRC Contract Law&rdquo;).&nbsp; Similar to the UAE Civil Code, the PRC Contract Law  contains general and mandatory laws that regulate contractual relationships in  the People&rsquo;s Republic of China, and it has two specific chapters containing  provisions that are applicable to contracts of work and contracts for  construction projects<sup>9</sup>.<br /><br />Although the political structures of  the two subject countries differ, their respective legal systems are similar to  the extent that they both belong to the civil law family<sup>10</sup>. In the  civil law system, unlike common law system, the principle of stare  decisis<sup>11</sup>&nbsp;or case law precedent does not apply.&nbsp; For this reason,  amongst others, judicial interpretations and decisions from civil law countries  tend to be less prescriptive in that the civil law courts do not usually  restrict themselves to the black letters of the law; instead, the meaning and  intent of the law takes a central role. Notwithstanding that, in the UAE, as a  matter of practice, lowers courts do respect and tend to follow the principles  and approaches laid down by the Court of Cassation the highest appellate court  in the UAE<sup>12</sup>.&nbsp;To this end, the legal practice in the People&rsquo;s  Republic of China is similar to the UAE because the writer is advised that  judicial interpretations of the Supreme People&rsquo;s Court, which is the highest  court in the People&rsquo;s Republic, are very helpful and persuasive.&nbsp;&nbsp;<br /><br />In the  context of construction law practice in the UAE, the writer finds that common  law or English law principles are often referred to and sometimes erroneously  relied upon.&nbsp; Indeed, in this regard, Essam Al Tamimi, a prominent UAE legal  practitioner, said in his book<sup>13</sup><br />&ldquo;In addition, because of the  nature of Dubai in particular as a commercial center and because of the presence  of international law firms with &ldquo;common law&rdquo; roots, many contracts which have  been drafted in the UAE appear to have been influenced by common law principles.  <br />This has created difficulties in the application of the law to these  contracts by the courts of the UAE since judicial authority does not recognise  some of the principles or the practices of the common law  system&hellip;&rdquo;<br /><br />Therefore, whilst foreign legal principles, including common law  principles, may provide some guidance, they have no force in law in the UAE  unless they are so widely used and recognised in the industry that they can be  accepted as forming part of the local custom or  practice<sup>14</sup>.<br /><br /><strong>Relevant construction issues </strong><br /><strong>The Principle of Good Faith - 诚实信用原则</strong><br />The nature  of a construction contract is such that it binds contracting parties to a long  term legal relationship. Given the multitude of obligations that each party owes  to the other under a typical contract, it is very important that parties act  according to their promises to ensure that the objectives of the contract are  achieved.&nbsp;<br /><br />However, during the course of a construction project, which  may run for several years, market conditions may change to the detriment of the  parties; for example, prices for construction materials may rise or fall or the  demand for the project may disappear. These changes may adversely affect the  parties&rsquo; relationship or may motivate one, or both the parties, to act in a  manner that is not consistent with the objectives or promises made under the  contract.&nbsp; In this regard, in the absence of an express term that requires  contracting parties to exercise their duties and rights with good faith, or a  term that creates a partnering or a pain-gain sharing type of relationship  between the parties; does the law impose a duty of good faith on the  parties?<br /><br />There is a substantial volume of treatise and case law from  common law jurisdictions that discusses the principle of good faith in the  context of contractual relationships. The writer understands that at present  there is no clear and overriding common law duty that requires parties to a  construction contract to observe the requirements of good  faith<sup>15.</sup>Arguably, this is attributable to the fact that the common  law courts have not been able to prescribe a clear meaning or definition for the  term &ldquo;good faith<sup>16</sup>&rdquo;. <br />In the UAE, the UAE Civil Code imposes an  obligation on contracting parties to abide by the terms of their  agreement<sup>17</sup>&nbsp;and that they must discharge their respective obligations  in a manner that is consistent with the requirements of good  faith<sup>18</sup>.&nbsp;The principle of &ldquo;good faith&rdquo; is a common feature of the  civil law system and is consistent with the principles of Islamic Shari&rsquo;ah which  underlies all laws in the UAE.&nbsp; However, there is no prescription on the  requirements of good faith; it is a matter of judgment for the court to decide  based on relevant facts and circumstances.It is perhaps easier to determine  whether a party has acted in bad faith rather than whether it has acted  consistent with the requirements of good faith. The writer submits that in  deciding the issue of bad faith the court should be invited to look into the  requirements of Article 106 of the UAE Civil Code. Pursuant to this article, a  party is prohibited from exercising its rights if:</p>\r\n<p>&bull;&nbsp;it is intended to infringe the rights of another party;</p>\r\n<p>&bull;&nbsp;the outcome is contrary to the rules of the Islamic Shari\'ah, the law,  public order, or morals;</p>\r\n<p>&bull;&nbsp;the desired gain is disproportionate to the harm that will be suffered by  the other party; or</p>\r\n<p>&bull;&nbsp;it exceeds the bounds of custom and practice.</p>\r\n<p>The principle of good faith is also encoded in the PRC Contract Law.&nbsp; An  English translation of Article 6 of the law states that &ldquo;The parties must act in  accordance with the principle of good faith, no matter in exercising rights or  in performing obligations&rdquo;.&nbsp; Even though there is no single or specific  provision in the PRC Contract Law that can be said to encapsulate similar  provisions as those set out under Article 106 of the UAE Civil Code, the writer  considers that one of the objectives of Article 106, which is to prevent a party  from abusing its rights, can be found in a number discrete provisions in the PRC  Contract Law.&nbsp; By way of example, Article 5 of the PRC Contract Law requires  contracting parties to uphold the principle of fairness<sup>19</sup>,&nbsp; Article  60 requires the parties to perform their obligations based on the character and  purpose of the contract or the transaction practices and Article 3 provides that  contracting parties shall have equal legal status and neither of them may assert  its will on the other<sup>20</sup>.&nbsp;&nbsp;<br /><br />The PRC Contract Law also imposes a  public duty on contracting parties which requires them to observe public laws  and social ethics and prohibits them from disrupting socio-economic order or  damaging public interests.&nbsp; It is interesting to consider what does the term  &ldquo;social ethics&rdquo; (社会公德) encompass and whether the People&rsquo;s Court would accept  that the abuse of one&rsquo;s contractual rights in disregard to the seriousness of  the harm that the other party may suffer could be looked upon as a violation of  social ethics.<br /><br /><strong>Liquidated Delay Damages -  约定的误期损害赔偿费</strong><br />In the context of construction contracts, the agreed  completion date or period is inevitably a fundamental term of the contract.&nbsp; To  ensure that the agreed date or period is adhered to, contracting parties often  agree in advance to a compensation mechanism or formula that will calculate the  amount of compensation that a contractor must pay to its employer in the event  of delay for which the contractor is culpable or responsible for (the liquidated  delay damages)<sup>22</sup>.&nbsp;In practice, the compensation mechanism or formula  is often fixed at a daily or weekly rate, for example, one hundred days of delay  at a pre-agreed rate of $1,000.00 per day will produce a liquidated delay  damages of $100,000.00.<br /><br />Both the UAE Civil Code&nbsp; and PRC Contract Law&nbsp;  allow contracting parties to fix a pre-agreed compensation mechanism or amount  in their contract.&nbsp; However, unlike common law jurisdictions<sup>25</sup> ,both  laws allow their respective courts, upon the request of either party, to vary  the pre-agreed amount of compensation or damages.&nbsp;In the context of the UAE  Civil Code, the court may vary the amount so to make it equal to the actual loss  or harm<sup>26</sup>. Official notes issued by the UAE&rsquo;s Ministry of Justice  explained that in exercising the power to vary the pre-agreed amount of  compensation the courts may either reduce or increase the amount; whereas under  the PRC Contract Law<sup>27</sup>,&nbsp; it is expressly provided that the court may  either reduce or increase the liquidated amount.<br /><br />In English law it is an  implied term that an employer to a construction contract must not prevent or  hinder the contractor from completing the contracted work<sup>28</sup>.&nbsp;This is  generally known in construction law study as the prevention  principle<sup>29</sup> (預碍原則).&nbsp;The effect of this principle is such that if the  employer&rsquo;s action, or inaction, prevented or hindered the contractor from  completing the works on time, and if there is no provisions in the contract that  would allow the contractor an extension of time due to the employer&rsquo;s action, or  inaction, then the agreed time for completion would be set at large, i.e. time  at large. This in turns renders the contractual provisions for liquidated  damages to be unenforceable.&nbsp;The follow on effect is that the employer can no  longer resort to the liquidated damages mechanism to recover delay damages from  its contractor; instead, it would have to bear the burden of proving and  apportioning the actual damages that it has suffered as a result of the  contractor&rsquo;s delays in order to recover its delay damages.&nbsp;<br /><br />Contractors  in the UAE would sometimes try to apply the prevention principle or the concept  of time at large in their attempt to defeat liquidated delay damages imposed by  their employers. Notwithstanding that it may be difficult to show that such  principle and concept are customarily used or recognised in the local  industry<sup>30</sup> , the writer considers that such argument is to a large  extent irrelevant because, as explained above, UAE law allows the courts to  review or vary the amount of liquidated damages to equal the actual loss in any  event regardless of whether there was any act of prevention on the part of the  employer.&nbsp; However, there may be a perceived advantage in arguing the  applications of the said principle and concept because if the argument is  successful the burden is then shifted to the employer for it to prove its actual  losses arising from any delays caused by the contractor as opposed to the  contractor having to show that the liquidated delay damages do not reflect the  employer&rsquo;s actual loss or that it is excessively high &ndash; however, this remains to  be seen.<br /><br />This is the second and final part of the article written for  China Construction Law Review which provides a brief comparison on some aspects  of UAE construction law with PRC law, common law principles and provisions of  the FIDIC Red Book conditions.&nbsp; In this part of the article, legal provisions  relating to suspension of works, taking over of works, defects liability and  subcontracting are dealt with.</p>\r\n<p><strong>Footnotes </strong><br />1- The writer does not claim expertise in the  laws of the Republic<br />of China. The analyses and comparisons set out in this  article are<br />based on his interpretation of the English translation of the  relevant<br />Chinese law which have been reviewed by Mr Sun Wei,  General<br />Editor of the China Construction Law Review (<a href=\"http://www.cclr.org.cn/\">www.cclr.org.cn</a>) and<br />Partner at  Zhong Lun Law Firm, Beijing, China (<a href=\"http://www.zhonglun.com/\">www.zhonglun.com</a>).<br />The writer is  grateful to Mr Sun Wei and Mr Dean O&rsquo;Leary, Senior<br />Lawyer at Al Tamimi &amp;  Company (<a href=\"http://www.tamimi.com/\">www.tamimi.com</a>) for their  inputs<br />and comments on this article.<br />2- FIDIC is the acronym for the  French version of the &ldquo;International<br />Federation of Consulting Engineers&rdquo; (<a href=\"http://www.fidic.org/\">www.fidic.org</a>). The standard<br />forms  of contract published by this organisation are the most widely<br />used standard  forms of contract in the Middle East region.<br />3- The FIDIC Red Book form of  contract is used for building and<br />engineering works designed and supervised  by engineers/architects<br />employed by the employer.<br />4- With regard to  government contracts, there are specific<br />procurement laws that govern  them.<br />5- Articles 872 to 896 of the UAE Civil Code.<br />6- Article 872, in  translation, states that &ldquo;Muqawala&rdquo; is &ldquo;a contract<br />whereby one of the parties  thereto undertakes to make a thing or to<br />perform work in consideration which  the other party undertakes to<br />provide.&rdquo;<br />7- Excluding the Special  Administrative Regions of the People&rsquo;s<br />Republic, namely, Hong Kong and  Macao.<br />8- Promulgated through Order [1999] No.15 of the President of  the<br />People&rsquo;s Republic of China<br />9- Chapters 15 and 16 of the PRC Contract  Law.<br />10- The UAE Civil Code is largely based on the Jordanian and  Egyptian<br />Civil Codes, which in turn, are heavily influenced by the French  Civil<br />Code; whereas laws in the PRC have Russian&rsquo;s and German&rsquo;s civil<br />law  influences.<br />11- Generally, this principle provides that the decision (ratio  decidendi)<br />of a court is binding precedent until and unless it is overturned  or<br />reversed by a higher court. Therefore, the decisions of the common<br />law  courts are an important source of law in the common law system;<br />whereas, in  the civil law system, previous decisions are persuasive<br />and  explanatory.<br />12- The courts in the emirate of Dubai are independent from the  UAE<br />federal court system, however, similar practice is also largely  being<br />followed in the Dubai courts.<br />13- At page 5, Practical Guide to  Litigation and Arbitration in the<br />United Arab Emirates, 1st Edition, Kluwer  Law International.<br />14- Article 2(2) of the UAE Commercial Code and Articles  46, 50 and<br />246(2) of the UAE Civil Code recognise and uphold the binding  effect<br />of custom practice.<br />15- It is interesting to note that the  Australian courts have, in limited<br />circumstances, taken a more liberal  approach on the question of<br />good faith between contracting parties. However,  this is by no<br />means conclusive that there is a clear and overriding duty of  faith in<br />all cases in Australia.<br />16- Whilst there may not be an overriding  duty of good faith<br />imposed on contracting parties in most common law  jurisdictions<br />(if not all), there is an implied term under common law  applicable to<br />construction contracts that an employer must not prevent or  hinder<br />a contractor from completing its work. This implied term is  further<br />discussed in the following section.<br />17- Article 243(2) of the UAE  Civil Code.<br />18- Article 246(1) of the UAE Civil Code.<br />19- An English  translation of Article 5 reads &ldquo;The parties shall abide<br />by the principle of  fairness in defining the rights and obligations of<br />each party&rdquo;.<br />20- The  writer is of the view that it is possible to extend the reading<br />of this  provision to mean that no party shall be allowed to unfairly<br />assert its  contractual rights against the other.<br />21- Article 7 of the PRC Contract  Law.<br />22- See relevant contractual provisions at Clause 47 and  Sub-Clause<br />8.7 of the 1987 and 1999 FIDIC Red Book Conditions  respectively.<br />23- Article 390(1) of the UAE Civil Code<br />24- Article 114 of  the PRC Cpntract Law<br />25- In common law jurisdictions, the courts will uphold  pre-agreed<br />liquidated damages unless it is deemed to be a penalty or, in  some<br />jurisdictions, deemed not to be a genuine estimate of the  employer&rsquo;s<br />losses.<br />25- Article 390(2) of the UAE Civil Code.<br />27-  Article 114 of the PRC Contract Law.<br />28- Some relevant English cases are:  Holme v Guppy (1838) M &amp; W<br />387, Dodd v Churton [1897] 1 QB 566, Peak  Construction (Liverpool)<br />Limited v McKinney Foundations Limited [1970] 1 BLR  111<br />29- This general principle has been adopted by many common  law<br />countries, e.g. Malaysia, Singapore, Australia, Hong Kong,  New<br />Zealand, India and Canada.<br />30- Sub-Clauses 44.1(d) and 8.4(e) of the  1987 and 1999 FIDIC<br />Red Book Conditions respectively allows a contractor to  claim an<br />extension of time for any delay, impediment or prevention  caused<br />by an employer. Therefore, it would be difficult for a contractor  to<br />succeed in arguing the application of time at large concept if  the<br />foregoing FIDIC conditions are present in the contract.</p>'),
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(80073, 4365, 'content', '<p>Basra is one of the oldest Islamic cities, which was established during the  Islamic conquest in 625 A.D. Prophet Mohammed (PBUH) \'s companion, Utba Bin  Gazwan, chose the city site in 14 A.H (636A.D) and the city was planned and  built by Abu Musa Al- Asha\'ari six months prior to the building of Kufa city  upriver.<br /><br /><strong>Why Invest in  Basra?</strong><br /><br /><strong>Location</strong><br /><br />Basra is strategically  located within Iraq and is home to all six of Iraq\'s ports including its only  deep-water port; and as such, is a major transportation nexus in the southern  part of the country. In fact, Basra has the only marine transportation point in  Iraq. Further, Basra is easily linked to the Iraqi capital, Baghdad by a  railway.<br /><br /><strong>Oil and other Resources</strong><br /><br />Basra has an  abundance of energy sources especially in oil and natural gas. Assured oil  reserves in Basra amount to more than 67.8 billion barrels. This is about 59% of  all oil reserve of Iraq. A great deal of Iraqis oil is exported through Basra\'s  ports.<br /><br />Furthermore, some of largest oil fields (Rumaila, Majnoon and  Rumaila south) are located in the Basra province <br />Additionally, there is an  abundance of crude material for some industries, with the capacity to extract  such materials; as well as an enormous agricultural  potential.<br /><br /><strong>Local Market</strong><br /><br />Basra has a vast local  market built upon 3 million people and it acts as a gateway to the rest of  Iraq.&nbsp; Basra is ideally placed to provide goods and services through its  promising market to some 31 million individuals within Iraq.<br /><br />The existing  infrastructure can further attract and facilitate investment. Basra Airport, Um  Qasser harbor, FAO harbors, existing railway lines and the road network  connecting Basra with other Iraqi provinces as well as with neighboring  countries, all contribute to ensuring the greatest possible output from  investments. Similarly, there are several power stations that can be developed  to meet local and foreign investment requirements.<br /><br />Finally, there is  further potential for expanding tourism as the security situation in Iraq  continues to be stabilized and with Basra being one of the oldest cities in the  world; it consists of an array of archeological, traditional and religious  locations and sites that attract people from all over the  world.<br /><br /><strong>Investment Laws</strong><br /><br />Investment in Basra is  supported by clear laws and simple processes to obtain an investment license. To  further encourage investment in Iraq, the Iraqi government introduced a number  of legislative measures (including Investment Law No. 13 of 2006, Investment  Regulation No.6 of 2010 and the First Amendment to Investment Law No. 7 of 2010)  which greatly simplifies and assists the investment process. <br /><br />Firstly,  the laws provide for the freedom of transferring profits and revenues in and  outside of Iraq, as well as the right to open banks in and outside Iraq.  Further, they provide a number of exemptions and privileges (including certain  tax and custom fee exemptions) for investors who have obtained an investment  license.&nbsp; <br /><br />The one-stop-shop in the National and Provincial Investment  Commissions further assists investors, by facilitating the process of obtaining  the investment License, allocating land, securing a number of tax exemptions for  investors, as well as facilitating the entry and exit of investors and their  employees.<br /><br />The aforementioned Commission also provides guidance to  investors, through issuance of an Investment Map which lists a number of  investment opportunities in Iraq, including a geographic description at the  different provinces where investment in sought. Similarly, an Investor Guide is  provided, which contains necessary information for investors, such as mechanisms  to facilitate entry and exit procedures to and from Iraq and how to enjoy the  many benefits of the Investment Laws.<br /><br />It is worth mentioning that First  Amendment No. (7) of 2010 (which came into force in February 2011), allows for  the ownership of land by certain housing projects, as well as establishing the  conditions for leasing lands for other projects.&nbsp; <br /><br />The Amendment assists  investments in four main ways; first, by providing for allocation of land  without land speculation, which greatly encourages foreign investments by  cutting down on costs, and making it easier for investors to determine fees they  are subject to. Under the housing field, the Amendment provides for the sale of  the housing unit at a price to be set in accordance with offer and demand in the  free market; as well as providing that the government shall provide the land to  the investor for development of housing a unit only, and which shall be  determined in accordance with location of land. <br /><br />The implementation of  the aforementioned Investment Laws is a great step further encouraging  investment in Iraq in general, and in Basra in particular; and is felt by many  to be a vital base for launching the investing wheels in Iraq.</p>'),
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(80054, 4364, 'content', '<p>In principle, a company is a legal person in its own capacity to create  rights and bear liabilities, and as such can own property, enter into contracts  with other parties and be involved in any dispute with other legal people.  The  company can only enjoy those rights and incur those liabilities through  decisions made by those that own, control or may be one or more directors of the  company. The day to day management of a company is usually entrusted to its  directors. The Commercial Companies Law of Qatar, No. 5 of 2002 (“The Law”)  imposes duties upon directors of a Limited Liability Company “the Company” based  on the particular nature of the company. However, each company’s constitutional  documents should include the directors’ duties, responsibilities and any  limitation upon their authority. What is the liability of the directors for any  unlawful act and what remedies are imposed?<br /><br />The aim of this article is to  provide a basic explanation of the main liabilities of directors of limited  companies towards the Company and third parties under the law in Qatar, and the  information hereunder is not exhaustive and not sufficiently detailed to apply  to the circumstances of any particular situation.<br /><br /><strong>Civil liability  of LLC directors:</strong><br /><br />1. Civil liability to the Company and its  shareholders:<br /><br />In principle, the Company is bound by actions and decisions  made by its director which have been carried out under their competence.  However, the Company’s directors should maintain a duty of care, of an ordinary  person in managing the company, and they are liable to company, shareholders or  third parties for damages as a result of the following actions, as imposed by  Article (112) of the Law:</p>\r\n<ul>\r\n<li>Deceit: A misrepresentation of fact, which, when made with the intention  that the other party will rely on it to his detriment, constitutes the torts of  fraud or misrepresentation.</li>\r\n<li>Abuse of authority: This is sometimes referred to as “Control Fraud” which  occurs when directors use their powers to subvert the company and to engage in  fraud for personal gain.</li>\r\n<li>Breach of the provisions of the Commercial Companies law;</li>\r\n<li>Breach of the company’s Articles of Association; and</li>\r\n<li>Default in performance; Directors’ failure in performing their duties and  responsibilities set out in the Company’s Articles of Association or in the law.  This may also include willful neglect.</li>\r\n</ul>\r\n<p>2. Civil liability to others/ third parties:<br /><br />In addition to the  matters set out in Article (112) of the Law, the directors may also be  personally liable for the company’s debts either if (1) they have undertaken  personal liability (such as giving a written guarantee), or (2) if they have  been deemed to have acted in their personal capacity where they did not disclose  that they are acting on behalf of the Company.<br /><br />Although the Company is  liable to compensate any damages that may have resulted from any unlawful act or  neglect of its directors, the Company has the right of return for compensatory  indemnification. Such right is set out in the Law through the “Directors  Liability’s Law Case” which can be raised within five years of the date of any  illegal action or neglect. Without prejudicing the right to claim compensation  when needed, any act or dealing or decision issued in contrary to the provisions  stipulated in the Law will be null and void, without prejudicing the right of  bona-fide third parties.<br /><br />Where losses of the Limited Liability Company  have reached half its capital, the directors should, within thirty days of  reaching this loss limit, propose to the General Assembly to reinstate the  capital or dissolve the company. If the directors neglect to call the Assembly,  they may be personally responsible for the Company\'s obligations resulting from  their neglect. <br /><br /><strong>Criminal liability of LLC  directors: <br /><br /></strong>The directors of the Company are exposed also to  criminal liability according to the provisions of the Corporate Commercial Law  in Qatar (No. 5 of 2002). Some of the more serious offences may result in a term  of imprisonment for two years or less and/or a fine of between ten and one  hundred thousand Qatari Riyals. The wording is wide enough to include  misdistribution of profits and interests, misstatements in the memorandum, and  specifically refers to forecasts and the dishonest concealment of material facts  or disclosing of confidential information.<br /><br />It is fundamental for parties  dealing with a Company, shareholders in a Company and directors of a Company to  seek legal advice in order to prevent any contravene of the Law, the company’s  Articles of Association or to prevent any action that may impose the personal  liability upon directors in their day to day management of the Company.</p>'),
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(80012, 4362, 'content', '<p><strong>Background</strong><br /><br />The provisions of the Commercial Agencies  Law (Federal Law No. 18 of 1981) (the Law) relating to the powers and  jurisdiction of the Commercial Agencies Committee (the Committee) have been the  subject of two important amendments on the basis of Law No 13 of  2006:<br /><br />1.&nbsp;All provisions and references relating to the Committee were  repealed because of an amendment to Article (8) as there was reference to the  powers of the Committee under this article.<br /><br />2.&nbsp;The law further  specifically repealed Articles (27) on the constitution of the Committee and  Article (28) on the jurisdiction of the Committee.<br /><br />Further amendments to  the Law, which occurred by virtue of Law No 2 of 2010 restored the powers and  jurisdiction of the Committee and added further significant and important  provisions, which are discussed below.<br /><br />What are the significant  amendments on the jurisdiction of the Committee?<br /><br />Law No 2of 2010 has  restored the Committee as initially provided for under Law No 18of 1981. This  amendment has further added a number of significant provisions. Several  important points arise from these amendments and additions:</p>\r\n<ul>\r\n<li>Article 27 of Law No 18 of 1981 provides directly for the constitution of  the Committee, whereas under Law No 2 of 2010 it is prescribed that the  Committee shall be formed by a decision from the Council of Ministers. This  decision was issued on 10 April 2011 by H.H Mohammad Bin Rashid Al Maktoum, the  Vice President of the UAE and Ruler of Dubai and in his capacity as Prime  Minister issued the Council Of Ministers. The relevant decree is Decree No. 3 of  2011 for the Constitution of the Committee.</li>\r\n<li>The effect of Decree No. 3 of 2011 is that no court can entertain any  dispute relating to commercial agencies during the period from February 2010  when the Law was amended and April 2011 when the Committee was established. In  light of this it may be foreseen that disputes pending before the competent  courts which are yet undecided may also be referred to the Committee due to the  procedural and immediate nature of the amendment.</li>\r\n<li>Article 28 of Law No 18 of 1981 provides that the Committee shall be  competent to look into any dispute that arises by reason of a commercial agency.  Law No. 2 of 2010 imposes an additional qualification in that the dispute must  relate&nbsp; to a registered commercial agency and not just a prima facie commercial  agency arrangement. The significance of this is that the door to the Committee&rsquo;s  jurisdiction will remain firmly closed to all commercial agency disputes which  are not regulated by a registered commercial agency. There is no room for  interpretation in this regard..&nbsp;</li>\r\n<li>Under Law No 2 of 2010 a new provision has been added to Article 28, the  effect of which is that parties may not refer the dispute to courts before  referring the same to the Committee. In essence, it introduces a tiered dispute  resolution system. Such a system did not form part of the Law in its initial  form. The significance of this amendment is discussed further below.</li>\r\n<li>In its initial form, the Law was absent a provision dealing with the  timeframe within which parties could appeal or object to decision of the  Committee. Law 2 of 2010 has amended Article 28 to include a provision parties  may appeal decisions of the Committee to the competent Courts within 30 days  from the date of notification of the Committee&rsquo;s decision. Importantly, failure  to appeal within 30 days will render the Committee&rsquo;s quasi-judicial decision  final. This implements an equitable process, and one which mirrors procedures  adopted in Court.&nbsp;</li>\r\n</ul>\r\n<p>How to contest the Committee decisions?<br /><br />The Committee is required to  issue its decision within 60 days of hearing the dispute. As stated above, the  aggrieved party may contest such a decision before the competent court, by way  of a traditional law suit.<br /><br />The Statement of Claim should include the  particulars of the claim as required by the Civil Procedures Code. The parties  shall be able to file all the documents and pleadings they wish, irrespective of  those submitted at the Committee.<br /><br />These proceedings should be filed  before the Federal Courts in Abu Dhabi as the Ministry should be joined as  co-defendant to the proceedings.<br /><br />The Judgment of the Court of First  Instance in this respect shall be subject to a right of appeal at the Court of  Appeal and then subsequently at the Federal Supreme Court level.<br /><br />What is  the Extent of Jurisdiction of the Committee?<br /><br />According to the clear  wordings of Article 28 the disputes relating to registered commercial agencies  have to be filed before the Committee first and may not be filed directly to the  Court. Rather than being prohibitive, the regime is designed to foster early  settlement of disputes before the parties incur unnecessary time and costs  litigating in the Court.<br /><br />Although this provision was not included in the  old provision of Article 28 of the Law,&nbsp; Federal Courts have historically  refused to entertain disputes relating to commercial agencies. Such judgments  were based on an understanding that Article 28 granted jurisdiction to the  Committee. Even in the absence of the new provision formalizing this  arrangement, it had already been the consistent approach of the UAE Federal  Courts.&nbsp;<br /><br />Having said that, it is worth mentioning here that the Dubai  Court of Cassation has adopted a different understanding and approach to this  matter in the past. The Dubai Court of Cassation has issued several rulings&nbsp;  confirming that it is not imperative to file the law suit to the Committee  before the Court.<br /><br />In these cases the Dubai Court of Cassation held that  complainant / plaintiff enjoyed the option of filing his complaint to the Court  directly, without going through the Committee, or to file with the Committee  first and thereafter with the court. In these rulings the Dubai Court of  Cassation appears to have assumed that there is nothing in the commercial  agencies law that prevents such a process.<br /><br />This is an important reasoning  because the Court of Cassation has made it very clear that had there been any  provision in the law that clearly outlined this process in that a claimant was  obliged to first file the complaint with the Committee before filing with the  Court, then this process should be followed. This could be understood from the  judgments referred to even though they do not specifically hold so.<br /><br />Now,  reading this in light of the amendment prescribed by Law No 2 of 2010 may give  an indication as to the future process of this matter before the Dubai Courts,  because the process set down by the amendment to Article 28 is very clear that  parties may not refer the dispute to Courts prior to reference to the Committee.  This may, therefore, be read and applied by the Courts in Dubai to rule that  commercial agency disputes should be first referred to the Committee before the  Court. Although this has not yet been tested before the Dubai Court of Cassation  (due to the very recent issue of Decree No. 3 of 2011) this approach is expected  to be taken in the future litigation of registered commercial agency disputes  before the Dubai Courts.<br /><br />Are there any disputes that may fall out of the  committee&rsquo;s jurisdiction and powers?<br /><br />It is important to remember that  there are some disputes related to commercial agencies which can be filed  directly to the Court without prior recourse to the Committee. A number of  examples, derived from rulings of the Federal Supreme Court, are set out  below:</p>\r\n<ul>\r\n<li>The Federal Supreme Court defines disputes that fall within the jurisdiction  of the committee as those arising by reason of the agency itself, such as its  duration, territory, products and termination etc.</li>\r\n<li>The Courts shall have jurisdiction to hear disputes falling outside of the  jurisdiction of the Committee, notwithstanding they appear prima facie to relate  to issues of agency. Such matters include compensation for breach of contract  between the agent and principal, as these disputes are considered as issues  relating to&nbsp; the implementation of the agency agreement and not issues arising  by reason of the commercial agency.</li>\r\n<li>Courts shall also have jurisdiction to hear disputes if the commercial  agency is not registered as the jurisdiction of the Committee relates only to  registered commercial agencies.</li>\r\n<li>Disputes in which claimants are seeking to prove the existence and validity  of an agency agreement in order to procure registration&nbsp; fall outside the scope  of the jurisdiction of the Committee and shall be heard by the Courts.</li>\r\n<li>Disputes relating to compensation for termination of unregistered agency  agreement can be heard directly by Courts and not by the Committee, even if  there are no written agreements.</li>\r\n</ul>\r\n<p>A final note to be added here is that although Decree 3 of 2011 establishing  the Committee has 60 days to fix a date for hearing the dispute, it is not clear  whether a party may proceed to the court if the Committee failed to so set a  date. Under the old provision of the Law there was a practice that parties would  usually proceed and file their complaint to the Court after the Committee  exceeded the 60 days provided for under Article 28. This however is yet to be  tested in light of the new amendment.</p>'),
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(80031, 4363, 'content', '<p>On 3rd May 2011, Qatar deposited its instrument of accession to the Patent  Cooperation Treaty (PCT), and on 3rd August 2011, will become bound by the PCT.  Consequently, Qatar came to be the 143rd PCT Contracting State.<br /><br />Along  with Qatar, there are now eleven Arab member states in the PCT. Along with  Qatar, these are Algeria, Bahrain, Egypt, Libya, Morocco, Oman, Sudan, Syria,  Tunisia and the United Arab Emirates.<br /><br />Qatar issued its first patent law  in 2006 by Decree Law No. 30 for 2006. The Ministry of Economy and Commerce is  entitled to enforce this law, however this law has not yet come into force and  there are no implementing regulations and no active patent office.<br /><br />The  Qatari patent law grants patents a term of protection for 20 years as from the  grant date in Qatar, which looks a long term compared to the other PCT  contracting states. The same law provides protection for all sorts of  technologies, except the following:<br /><br />-&nbsp;Scientific theories, mathematical  methods, computer programs, perform metal activities and games.<br /><br />-&nbsp;Plant  varieties, animal species, or biological methods of producing plants or animals.  Exceptions shall be allowed for the microbiological methods and their  products.<br /><br />-&nbsp;Diagnostic methods, treatments, and surgical operations  needed for humans and animals.<br />&nbsp; <br />The patent law grants owners of  infringed patents civil and criminal remedies in addition to provisional  measures. The penalty for any person who may infringe a patented invention can  be imprisonment up to two years and/ or a fine of up to 10,000 Qatari Riyal. The  court may also order the confiscation of items &lsquo;attached&rsquo; at the time the action  was initiated or subsequently confiscated. The court may also order that the  evidence of the illegal act, as well as the equipment and tools used in the  infringement, be destroyed.<br /><br />Despite the fact that there is no active  patent office in Qatar, both nationals and residents in Qatar have the advantage  to file international patent applications under the PCT as from 3 August 2011,  by submitting their applications to any PCT Receiving Office (such as the  International Bureau in Switzerland).<br /><br />Clients who wish to obtain patent  protection in Qatar may rely on the Gulf Cooperation Council (GCC) patent  office, as the protection of GCC patents is extended to all member states of the  GCC, namely, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab  Emirates.</p>'),
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(79986, 4360, 'content', '<p>This month, it gives me great pleasure to announce the promotion of seven  lawyers to the Al Tamimi partnership. The appointments (which you can read about  on page 27) further reinforce our significant capability in Corporate  Commercial, Employment, Maritime, Aviation &amp; Insurance, Litigation,  Intellectual Property, Construction and Insurance and underscore our market  leading position in the Middle East.<br /><br />We also present to you our Maritime,  Aviation and Insurance team through our monthly &lsquo;In Focus&rsquo; section. Please take  some time to read more about the team and their offerings as well finding out  more about cargo customs law in the UAE on page 37.<br /><br />We have some  interesting information for you from our regional offices with articles from  Qatar, Kuwait and Iraq. <br /><br />I&rsquo;d also like to draw your attention to a  contribution this month by the IBA on page 31 where you can read more about the  evolution of the IBA. For those wishing to attend the conference here in Dubai  later this year, I encourage you to register before the 29th July to take  advantage of the early registration discount. We are very excited that Dubai has  been chosen as the destination for the annual IBA conference and look forward to  welcoming many of our international clients here in  October/November.<br /><br />Thank you for taking such an interest in our magazine  and I do trust you find the information presented useful. If you have any  comments or feedback, please get in touch.<br /><br />Husam Hourani<br />Managing  Partner</p>'),
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(79997, 4361, 'content', '<p>Executive Council Resolution No. (4) of 2011 (&ldquo;Resolution No. (4)&rdquo;) has  clarified whether or not tenancy contracts can be registered in Abu Dubai.&nbsp;Law  No. (3) of 2005 (&ldquo;Law No. (3)&rdquo;) confirmed that leases of more than four years  must be registered with the municipalities in Abu Dhabi City, Al Ain or the  Western Region (the &ldquo;Municipalities&rdquo;).&nbsp;Law No. (3) also allowed discretion for  landlords and tenants to voluntarily register tenancy contracts of less than  four years.&nbsp; In practice however registration has only been undertaken for  leases of more than four years.&nbsp;<br /><br />Resolution No. (4) now requires the  Municipalities to establish and maintain a register of tenancy contracts.&nbsp; All  tenancy contracts of less than four years, whether existing prior to Resolution  No. (4) taking effect on 31 January 2011 or entered into after that date, must  now be registered.&nbsp; Landlords have until 31 July 2011 to ensure that all  registrations have been completed.&nbsp;<br /><br />If a tenancy contract has not been  registered then it will not be recognised for transactions involving any  government department, Abu Dhabi Distribution Company (&ldquo;ADWEC&rdquo;) or Etisalat.&nbsp; If  a tenancy contract is not correctly registered in accordance with Regulation No.  (4) then the tenant could experience difficulties when applying for commercial  licences and permits from government departments or when opening accounts with  ADWEC and Etisalat.<br /><br /><strong>Tawtheeq<br /><br /></strong>Shortly after  Resolution No. (4) was issued the Municipality of Abu Dhabi City introduced an  online system known as Tawtheeq for the registration of letting properties and  tenancy contracts throughout the Emirate of Abu Dhabi.&nbsp; The system will operate  online and information will only be available to landlords and their appointed  property managers.&nbsp; Tawtheeq will not require landlords to provide evidence of  their ownership when registering properties, for example by providing a title  deed, however cross-checks will be made with land registration  records.<br /><br /><strong>Terms of the Tenancy Contract<br /><br /></strong>All  tenancy contracts must be either in English and Arabic or in Arabic only.&nbsp;  Tenancy contracts in English only will be rejected by Tawtheeq.&nbsp; Certain key  information must be included in the tenancy contract and this will be inputted  into the Tawtheeq system.&nbsp; It is expected that Tawtheeq will publish a  compulsory standard form tenancy contract which will set out this key  information.&nbsp; Landlords and tenants remain free to negotiate the terms of their  tenancy contract and when a standard form tenancy contract is released it will  be possible to include special conditions.&nbsp; If special conditions are included  in the tenancy contract then Tawtheeq will review the special conditions to  ensure that they comply with the law.&nbsp; This review is expected to take  approximately five days.&nbsp; If the special conditions are approved then Tawtheeq  will register the tenancy contract.&nbsp; Tawtheeq will only allow registration of a  tenancy contract that breaches the rent cap, currently set at 5%, if the tenant  confirms that he understands that the tenancy contract will breach the rent  cap.<br /><br /><strong>Registration Process</strong><br /><br />Resolution No. (4)  states that it is the responsibility of the landlord to register all data  concerning their properties.&nbsp; Once the landlord has been registered to use the  Tawtheeq system and has added details of all his lettable properties the  registration process should only take a few minutes per property.&nbsp; The landlord  will input details of each tenancy contract online and upload a copy of the  signed tenancy contract.&nbsp; Tawtheeq will then send a PDF copy of the registered  tenancy contract, which will include an individual bar code, by email to the  landlord as an acknowledgement that the registration has been  completed.<br /><br /><strong>Registration Fees</strong><br /><br />When the landlord  applies to register all the properties he lets with Tawtheeq a registration fee  of AED1,000 per property will be charged.&nbsp; Once the landlord&rsquo;s properties have  been registered the grant, expiry or amendment of all tenancy contracts must be  added.&nbsp; The current fee to register the grant of a tenancy contract is AED100  and the fee to register amendments to a tenancy contract or its expiry is  AED50.&nbsp; It is the landlord&rsquo;s responsibility to pay these registration fees  however there is nothing to prevent the landlord passing on the cost to the  tenant.&nbsp; New tenants would be wise to check that the landlord has registered the  property before signing a tenancy contract in order to avoid difficulties and  delays when dealing with ADWEC, Etisalat and government  departments.<br /><br /><strong>Landlords failing to register<br /><br /></strong>If a  landlord fails to register a property, a tenancy contract or amendments to a  tenancy contract, then the tenant may apply to the Rental Disputes Settlement  Committee (&ldquo;Rent Committee&rdquo;) to issue a judgment on the validity of the tenancy  contract.&nbsp; If appropriate, the tenancy contract or amendment will then be  registered with Tawtheeq and the cost of registration will be borne by the  landlord.&nbsp; The Rent Committee will not hear any other complaint from the tenant  until judgment on validity has been issued and the registration  completed.<br /><br /><strong>Changes to Renewal Rights for  Tenants<br /><br /></strong>Executive Council Resolution No. (56) of 2010 (amending  provisions of Law No. (20) of 2006) will bring about a change in the rights of  tenants upon expiry of all tenancy contracts and leases with effect from 9  November 2011.&nbsp; Under the current law, a landlord may not request that a tenant  vacates premises at the end of the term of the tenancy contract or lease except  in very limited circumstances.&nbsp; From 9 November 2011 a landlord will be entitled  to request that a tenant vacates and may refuse to renew a tenancy contract or  lease provided that the landlord has given the prescribed notice.&nbsp; At least two  months&rsquo; written notice is required in the case of residential property and three  months&rsquo; written notice is required for commercial property.</p>'),
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(79971, 4359, 'content', '<p>In Part 1 of this article, I sought to introduce and outline the first stages  of the life of a hotel - from inception through to opening.&nbsp;My intention was to  present a simple account, for the benefit of hotel developers and owners, of the  hotel development process and to show just how complex this process can be.&nbsp;In  terms of the interaction between owner and operator, the article also sought to  highlight how this relationship works, and how important it is to develop the  relationship at the very earliest stages of the project.&nbsp;<br /><br />Part 2 is the  final part of my article, and follows the process through the construction stage  to fit-out and procurement, appointment of the hotel personnel, pre-opening  activities and finally, to opening.&nbsp;&nbsp;&nbsp;<br /><br /><strong>Construction and  beyond...</strong><br /><br />The nature of the project will dictate what is  required in terms of construction. The process will differ depending on what is  required, i.e. construction of a new hotel, completion of construction of a  partially built hotel, or refurbishment/renovation of an operational  hotel.&nbsp;&nbsp;<br /><br />Renovation/refurbishment of an operational hotel will bring  additional complications and considerations.&nbsp; In most ways, this situation  raises the greatest risk to owner and operator alike, and will require the most  management by all parties to ensure that it is successfully executed with  minimal impact on the operator, guest experience and revenue.&nbsp;<br /><br />Once  schematic design is completed (incorporating the operator&rsquo;s input to ensure  compliance with its brand standards and requirements), the owner can finalise  the pricing and programme.&nbsp; The owner can then also commence the tender process  for appointment of its contractor.&nbsp;<br /><br />The owner&rsquo;s professional consultants  should advise on the type of procurement method best-suited to the project. This  advice will structure the construction process, the team and the type of  construction contracts to be entered into.&nbsp; The owner&rsquo;s consultants will assist  in putting together the tender package and will identify suitably qualified,  experienced and licensed contractors who should be invited to tender for the  construction works.&nbsp;<br /><br />In the event that the project is the completion of a  partially built hotel, it may be that the best advice for the owner is to  re-engage the original contractor for completion of the works.&nbsp; This would be  appropriate where the quality of the work is acceptable and will avoid the need  to find another contractor who is willing to take responsibility (and liability)  for the existing works &ndash; something which is often difficult to achieve and will  come at a cost to the owner in any event.<br /><br />Once the contractor has been  appointed and the project costs and programme set, detailed design of the hotel  can be finalised and fed to the engineer and contractor, and physical  construction may commence (subject to obtaining all necessary  approvals).&nbsp;<br /><br />Throughout the construction process, the operator and the  owner should continue to work together, to ensure that the operator remains  fully involved in the design process, so that each stage of design and  construction can be signed-off by all parties.&nbsp; It is inevitable that issues,  problems and delays will arise at some point, and this is where a cohesive and  communicative relationship between owner, operator, professional team and  contractor will prove to be of benefit.&nbsp; The construction process very rarely  runs smoothly, and it will save time and money in the long term to deal with any  issues quickly and pro-actively.<br /><br />Completion of the detailed design will  also enable the owner to fix specifications of all furniture, fixtures and  fittings, thereby allowing these items to be procured.&nbsp; It is important to get  the timing of this right and to work backwards from the estimated project  completion date, ensuring that items with the longest lead times for order and  delivery can be procured first.&nbsp; In doing so, this should avoid any need to make  late changes to the specifications (which will already have been approved by the  operator and incorporated into the construction costs), as well as avoid  delaying the construction programme and the anticipated hotel opening  date.<br /><br /><strong>Mockup and benchmark rooms</strong><br /><br />Completion of  the detailed design will also allow the creation of a &lsquo;mockup room&rsquo; for each  room type, for inspection and acceptance by the operator.&nbsp; Sign-off of the  mockup room establishes and fixes the design, layout and specification of the  rooms and no further changes should be necessary.&nbsp;<br /><br />Also, during the  construction and fit-out process for the rooms, a &lsquo;benchmark room&rsquo; should be  established for each room type.&nbsp; Whilst the mockup rooms fix design, layout and  specification, the benchmark room fixes quality, actual construction processes  and finished detail of the rooms.&nbsp; This serves as a marker for all those engaged  in the construction, (from the plasterers to the electricians, the plumbers to  the carpenters), and the benchmark room should not be deviated from, either in  process or finishing quality.&nbsp;&nbsp;<br /><br /><strong>Completion</strong><br /><br />Upon  completion of the construction works in accordance with the construction  contract, the owner&rsquo;s engineer will issue a certificate of practice completion.&nbsp;  This is issued subject to a defects liability period (usually of 12 &ndash; 24  months), and any snagging or minor defects will be remedied.&nbsp; The authorities  will also be required to issue a completion certificate, a permanent utilities  connection, and ensure that the building is approved and insured for occupation  following inspection of the works.&nbsp;<br /><br />Completion of the works pursuant to  the construction contract is a major milestone - upon this date, the hotel is  physically handed over by the contractor to the owner and the risk of and  responsibility for the property passes to the owner.&nbsp; The owner will, in turn,  pass the responsibility for management of the hotel to the operator, pursuant to  the terms of the hotel management agreement (and ancillary agreements, as  appropriate).<br /><br /><strong>Pre-Opening<br /><br /></strong>Approximately 12 months  prior to the estimated completion date, the operator must hire the executive  personnel for the hotel.&nbsp; These are the people who will work with the owner to  take the hotel through the pre-opening stages to opening and full operation.&nbsp;  Generally, the hotel general manager, the sales and marketing director and the  financial controller are among the first employees usually hired.&nbsp; The owner  should be entitled to interview candidates proposed by the operator for these  roles and to approve or reject such candidates.<br /><br />The 12 months leading up  to the opening date are busy for the operator &ndash; it is during this time that the  sales and marketing strategy plan for the hotel must be put together, the  pre-opening budget compiled for agreement by the owner, the first annual  operating budget and performance forecast is compiled, cashflow forecasts and  working capital requirements are prepared, and the rank and file hotel staff  employed and trained.&nbsp;&nbsp; It is also an expensive time for the owner, as they will  now start to provide the working capital that the operator requires to implement  all such things.<br /><br />At the same time, the ff&amp;e is being installed at the  hotel and the construction phase is coming to a close.&nbsp; The operator will remain  involved with completion of the hotel fit-out and decoration, protecting its  brand throughout and ensuring compliance with the brand standards.<br /><br />All  the various operational licences must be applied for and obtained, including the  liquor licence (if applicable) and local police/security department clearance in  terms of surveillance and security systems at the hotel.&nbsp; Most of the  operational licences will necessarily be applied for in the name of the owner,  with the operator&rsquo;s assistance.&nbsp; To facilitate this and the management of the  hotel generally, it is usual for the owner to provide the hotel general manager  with a power of attorney.&nbsp;<br /><br />Where a hotel is operated under a management  agreement (which is the most common form of agreement throughout the Middle  East), then usually the owner will be the legal employer and sponsor of the  hotel staff.&nbsp; Therefore, whilst the operator will manage the staff on a day to  day basis, and the staff remuneration and benefits packages will reflect those  implemented by the operator (either on a regional or international basis), the  owner remains legally responsible for the employees, including payment of  salaries and any end-of-service benefits.<br /><br />In terms of marketing and  advertising of the hotel, this period sees a gradual rise in activity, as the  hotel will officially be included in the operator&rsquo;s portfolio and customer  loyalty programmes, and centrally marketed through its international sales  networks for bookings to commence.&nbsp; Closer to the opening date, the hotel will  also be marketed on a local and regional basis and events will be planned for  the opening date.&nbsp; Sometimes, where the operator is comfortable to do so, a  hotel may open on a &lsquo;soft opening&rsquo; basis.&nbsp; This is a period prior to the  official opening date where the hotel may be partially occupied and therefore  not very busy with guests, which allows the staff a period of time to implement  their training on a &lsquo;live&rsquo; basis and to de-bug any problems that may  arise.&nbsp;<br /><br /><strong>The opening date...</strong><br /><br />At some point during  the pre-opening period, the owner and the operator will agree and fix the  official opening date of the hotel.&nbsp;This might be timed to coincide with a  particularly busy period for the tourism industry specific to the location of  the hotel, or with any major conferences, exhibitions or sporting/leisure events  taking place within the vicinity of the hotel.&nbsp;Wherever possible, the intention  should be to maximise the impact of the launch of the hotel and to capitalise on  these events by attracting as many guests as possible.&nbsp;This should allow the  hotel to firmly establish itself and commence development of its reputation and  customer loyalty.&nbsp;&nbsp;<br /><br />Completion of the hotel under the construction  contract will be subject to snagging and rectification of any minor defects, and  the operator will play an important part in logging all the various items with  the owner, which will require such remedy by the owner&rsquo;s contractor over the  next 12 &ndash; 24 months.&nbsp; The operator will want these items to be remedied as  swiftly as possible with as little inconvenience to the hotel operation as  possible.&nbsp; Retention of a percentage of the construction costs from the owner  until all the defects have been remedied also provides the contractor with an  incentive to remedy as soon as possible.&nbsp;<br /><br /><strong>The start of a  beautiful relationship...?</strong><br /><br />On the opening date, the development  process (save for snagging) draws to a close and the operator assumes full  responsibility for operation of the hotel and, hopefully, a return of profit to  the owner.&nbsp;<br /><br />The official launch of the hotel is an exciting time for all  involved.&nbsp; It is the culmination of the hard work and endeavours by many  individuals involved during the time leading up to this event.&nbsp; It may have been  a very stressful or relatively painless process, but however the hotel comes  into being, the road ahead should hopefully be the start of a long, fruitful and  mutually beneficial relationship between owner, operator and of course, the  guest.&nbsp;<br /><br />This article was commissioned and first published in the March  edition of Hotelier Middle East Magazine.<br /><br />Tara Marlow is Head of  Property, Abu Dhabi and Regional Head of Hospitality, at Al Tamimi &amp;  Company.&nbsp; Tara can be contacted on <a href=\"mailto:t.marlow@tamimi.com\">t.marlow@tamimi.com</a>.<br /><br />Al  Tamimi &amp; Company is the largest non-affiliated law firm in the Middle East,  employing more than 170 lawyers, with offices in Abu Dhabi, Dubai, Sharjah,  Jordan, Qatar, Iraq, Saudi Arabia and Kuwait.&nbsp;<br /><br />Al Tamimi &amp; Company is  a full service, commercial law firm, specialising in the following areas: Real  Estate, Hospitality &amp; Leisure, Construction and Engineering, Banking &amp;  Finance, Corporate &amp; Commercial, Litigation, Arbitration and Dispute  Resolution, Intellectual Property, Information Technology and  Telecommunications, Employment, Maritime, Insurance and Aviation.<br /><br />For  further information, visit&nbsp; <a href=\"http://www.tamimi.com/\">www.tamimi.com</a>.</p>\r\n<p><a href=\"https://admin.newsweaver.com/notessa/repository/s1/169641484993255628/Hw/1rx950tgap2vx1xtku49omeeu7xl7xb0nr7agpmfl87lzyws5.doc\" target=\"_blank\">Chart  for Hotel Development Article</a><strong>&nbsp;</strong></p>'),
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(79933, 4357, 'content', '<p>Al Tamimi &amp; Company&rsquo;s Maritime, Aviation and Insurance practice is at the  heart of the dynamic transport industry in the Arabian Gulf.<br /><br />The  practice, led by partner, Yazan Saoudi, has been developed to cater for the  needs of clients who require a global legal perspective with a strong  understanding and appreciation of the specific requirements of local and  regional law.<br /><br />Our lawyers come from a range of jurisdictions and  backgrounds including private practice to in-house counsel for major  multinational companies, and are well-positioned to provide a full range of  legal services.<br /><br />In addition to the traditional services provided to our  clients, we work very closely with our banking and finance practice which  assists our clients with shipping and aviation finance and our arbitration  practice which provides alternative dispute resolution solutions, acts and  advises in arbitration proceedings both ad hoc and in accordance with  established procedural bodies such as the ICC, LMAA and SIAC.<br /><br />We act for  some of the leading regional and international institutions in the shipping,  aviation and insurance sector, including ship owning and chartering companies,  cargo interests, P&amp;I clubs, insurers, brokers, underwriters, international  banks and some of the major local and international  carriers.<br /><br /><strong>Maritime</strong><br /><br />Whether as court advocates or  legal consultants, our lawyers have a wealth of exposure in handling the most  complex shipping disputes. Our experience has been drawn from regularly advising  clients who operate in a region that boasts a strong maritime  tradition.<br /><br /><strong>Aviation</strong><br /><br />Being at the heart of a  rapidly growing aviation industry, we are able to handle the needs of both local  and international Airlines and have advised on a wide range of legal matters. We  have been involved in the set-up of new aviation companies in the region and new  airlines operating within the UAE. We have also advised on leasing, chartering  and purchasing of aircraft, as well and cargo and personal injury  claims.<br /><br /><strong>Insurance</strong><br /><br />With an in-depth knowledge and  extensive contacts in the insurance industry both locally and internationally,  we are in the unique position to handle the requirements of insurance companies,  brokers, underwriters and intermediaries in both general and aviation and  maritime related insurance. We are regularly called upon to advise clients on  hull and cargo policies and P&amp;I insurance claims as well as upon policies  covering every conceivable kind of risk including credit, professional  liability, corporate liability, product liability, construction risks, banker&rsquo;s  blanket bonds, property and personal injury.<br /><br />We are proud of the practice  we have developed which still remains at the forefront of developments within  the region. We are currently advising on the revision of the statutory UAE  Maritime Code and the establishment of the Dubai Maritime City, as well as other  proposed infrastructural and regulatory projects.<br />IN FOCUS</p>\r\n<p>For more information please contact:<br /><br />YAZAN AL SAOUDI<br />Partner, Head  of Maritime,<br />Aviation &amp; Insurance<br /><a href=\"mailto:y.saoudi@tamimi.com\">y.saoudi@tamimi.com</a><br />+971 4 364  1530</p>\r\n<p>OMAR OMAR<br />Partner,<br />Maritime, Aviation<br />&amp; Insurance<br /><a href=\"mailto:o.omar@tamimi.com\">o.omar@tamimi.com</a></p>'),
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(79948, 4358, 'content', '<p>Consulting Engineers (the \'Red Book\').&nbsp;This is a traditional form of contract  where the employer appoints its own designers to design the works and the  contractor is only responsible for constructing the works to the employer&rsquo;s  design.&nbsp;<br /><br />In recent years the 1999 FDIC Conditions of Contract for Plant  and Design - Build (the \'Yellow Book\') has also become more widely used.&nbsp; Under  this form of contract the contractor accepts responsibility for both the design  and construction of the works and the resulting single point responsibility is  seen as being a significant advantage for employers.<br /><br />However neither of  these forms of contract is suitable for use where infrastructure projects are  concerned, for example oil, gas or petrochemical plants or where the project is  financed through third party lenders.&nbsp; FIDIC recognised this throughout the  1990\'s and in 1999 published its Conditions of Contract for EPC / Turnkey  Contracts (the \'Silver Book\').&nbsp;The introductory note to the Silver Book states  that &ldquo;during recent years it has been noticed that much of the construction  market requires a construction contract where certainty of final price and often  of completion date are of extreme importance.&nbsp; Employers on such turnkey  projects are often willing to pay more - sometimes considerably more - for their  project if they can be more certain that the agreed final price will not be  exceeded&rdquo;.&nbsp;&nbsp;The note continues &ldquo;for such projects it is necessary for the  contractor to assume responsibility for a wider range of risks than under the  traditional Red or Yellow Books&rdquo;.<br /><br />The aim of the Silver Book is therefore  to transfer certain risks (which would normally fall to the employer) to the  contractor in order to achieve a degree of time and cost certainty while  recognising that contractors will, of course, price the degree of risk they are  expected to bear.&nbsp;The upshot is that employers will, in all likelihood, pay more  for a project procured under the Silver Book that they might otherwise do, were  the same project procured under say the Yellow Book.&nbsp;However in return employers  achieve a greater degree of time and cost certainty which is appealing to banks  and lenders. This article highlights some differences between the risk  allocations of the Yellow and Silver Books.<br /><br /><strong>Ground  Conditions<br /><br /></strong>The issue of responsibility for the physical  conditions of the site is an example of risk transfer under the Silver Book.&nbsp;The  Red and Yellow Books (at clauses 4.10 to 4.12) treat this issue in the same  manner.&nbsp;The employer is required to have made available to the contractor all  relevant information in his possession prior to the base date on sub-surface and  hydrological conditions at the site.&nbsp;The contractor is responsible for  interpreting this data.&nbsp;&nbsp;<br /><br />The contractor is deemed to have obtained all  necessary information as to risks, contingencies and other circumstances that  may affect the tender or the works, although this investigation is limited to  the extent practicable taking account of cost and time.&nbsp;The contractor is also  deemed to have satisfied himself as to the sufficiency of the accepted contract  amount however the contractor is deemed to have based the accepted contract  amount on the data and interpretations referred to  above.&nbsp;<br /><br />Notwithstanding these provisions, the existence at the site, of  unforeseen physical conditions will allow the contractor to claim an extension  of time and payment of any additional cost incurred provided the contractor  complies with the relevant procedural requirements and the condition is  \'Unforeseeable\' as defined in the Red and Yellow Books.&nbsp;<br /><br />The position is  however different under the Silver Book as while, according to clause 4.10, the  employer is to make available to the contractor all relevant data in his  possession on the subsurface and hydrological conditions at the site, the  employer shall have no responsibility for the accuracy, sufficiency or  completeness of such information.&nbsp;The contractor is responsible for verifying  and interpreting the data and the contract price is stated to cover all of the  contractor\'s obligations under the contract.&nbsp; Under clause 4.12 the contractor  is deemed to have obtained all necessary information as to risks, contingencies  and other circumstances which may affect the works and by signing the contract  the contractor accepts total responsibility for having foreseen all difficulties  and costs of successfully completing the works.&nbsp;The contract price shall not be  adjusted to take account of any unforeseen difficulties or costs.<br /><br />Under  the Silver Book therefore the risk of unforeseeable ground conditions falls to  the contractor.&nbsp;While the contractor will undoubtedly allow for this in his  tender, lenders and employers are afforded certainty with regard to their  potential exposure to additional costs in this regard.&nbsp;Where employers are not  wiling to pay for this certainty an alternative form of contract should be  used.&nbsp;&nbsp;&nbsp;&nbsp;<br />&nbsp;<br /><strong>Design</strong><br />&nbsp;<br />Design is another issue where  the contractor\'s obligations under the Silver Book, differ from those under the  Yellow Book.&nbsp; Both contracts impose a fitness for purpose obligation on the  contractor which is a high standard to comply with in the first place.&nbsp;However  under clause 5.1 of the Yellow Book the contractor is to review the employer&rsquo;s  requirements after receiving the notice of commencement and to give notice to  the engineer (within a certain number of days to be agreed on a case by case  basis) of any fault, error or defect found in the employer&rsquo;s requirements.&nbsp;On  receipt of the notice, the engineer shall determine whether a variation is to  apply.&nbsp;If an experienced contractor exercising due care would have discovered  the error, fault or other defect before submitting the tender, the time for  completion shall not be extended and the contract price shall not be  adjusted.&nbsp;<br /><br />In addition, under clause 1.9, if the contractor suffers delay  or incurs cost as a result of an error in the employer&rsquo;s requirements and an  experienced contractor would not have discovered the error when conducting the  clause 5.1 review referred to above, the contractor shall notify the engineer  and shall be entitled to an extension of time and payment of its costs plus  reasonable profit.&nbsp;&nbsp;<br /><br />The test therefore is whether an experienced  contractor would have found the error when conducting his previous reviews of  the employer&rsquo;s requirements.&nbsp;If not, the contractor shall be entitled to  relief.&nbsp;&nbsp;<br /><br />As would be expected, a different line is taken in the Silver  Book.&nbsp;Clause 5.1 of the Silver Book provides that the contractor shall be  responsible for the design of the works and for the accuracy of the employer&rsquo;s  requirements except in four limited circumstances. The employer is not  responsible for any error, inaccuracy or omission of any kind in the employer&rsquo;s  requirements and any data received by the contractor from the employer or  otherwise shall not relieve the contractor from his responsibility for the  design and execution of the works.<br /><br />This clause coupled with the  contractor&rsquo;s liability under clause 4.12 for unforeseen difficulties (referred  to above) and the overall fitness for purpose obligation means that the  contractor is under significant obligations with respect to design (including  any design which may be contained in the employer&rsquo;s requirements).&nbsp;While it is  open to the contractor to negotiate on these points, the single point of  responsibility of the contractor is likely to be on the employer&rsquo;s &lsquo;wish list&rsquo;,  even if it means that the employer will pay more for the works than would  otherwise be the case.&nbsp;<br /><br /><strong>Other Risks<br /><br /></strong>The Silver  Book imposes additional risks on the contractor in other areas too.&nbsp;Examples  include the provisions regarding extensions of time and employer&rsquo;s risks.&nbsp; In  relation to extensions of time, the contractor is not entitled, under the Silver  Book, to extensions of time in respect of exceptionally adverse climatic  conditions or for unforeseeable shortages in the availability of personnel or  goods caused by epidemic or governmental actions.&nbsp;The contractor is entitled to  an extension of time in respect of these events under the Red and Yellow  Books.<br /><br />Under clause 17.3 of the Red and Yellow Books the employer assumes  the risk of the occurrence of certain events.&nbsp;Under the Silver Book the  contractor bears responsibility for the following risks, the occurrence of which  would be an employer risk under the Red or Yellow Books:</p>\r\n<ul>\r\n<li>Use or occupation by the employer of any part of the permanent works, except  as may be specified in the contract</li>\r\n<li>Design of any part of the works by the employer&rsquo;s personnel or by others for  whom the employer is responsible</li>\r\n<li>Any operation of the forces of nature which is unforeseeable or against  which an experienced contractor could not reasonably have been expected to have  taken adequate preventative measures</li>\r\n</ul>\r\n<p>EPC contracts are, by their nature, different to traditional or design and  build forms of contract and are intended for entirely different types of  project.&nbsp;The risk allocation contained in them means that the contractor is  required to assume a greater degree of risk, although the rewards for the  contractor can also be greater, especially if the priced risks do not arise.&nbsp;  Many of the risks referred to in this article will be the subject of negotiation  but in today&rsquo;s market, where projects are few and contractors are many,  contractors might be willing to assume this degree of risk.&nbsp;<br /><br />In addition  the types of projects to which EPC contracts are suited are often highly complex  and there are often a limited number of contractors with the skills and  experience to perform the relevant works.&nbsp; In such cases it is perhaps proper  for contractors to assume a greater degree of risk as they are best able to  manage the occurrence of those risks and to mitigate the consequences of those  risks should they occur.</p>'),
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(79910, 4356, 'content', '<p>Islamic financing has made a major breakthrough in the financial world and  over the past few years and has now proven to be a major contender to  conventional financing in the UAE.<br /><br />Still in its infancy compared to the  established conventional banking system, stumbling blocks on structuring Islamic  financing products such that they are competitive with their conventional  counterparts, are slowly being overcome. One of these is the interplay between  the laws of the UAE and Shari&rsquo;a concepts.<br /><br />The Shari&rsquo;a is an abstract form  of law derived from Islamic principles and is capable of adaptation, development  and further interpretation. It is not a codified law in the UAE. The Shari&rsquo;a  does not prescribe general principles of law, but rather, purports to deal with  and cover specific cases or transactions and sets out rules that govern  them.<br /><br />Among the most important teachings of Islam for establishing  justice and eliminating exploitation in business transactions, is the  prohibition of all sources of unjustified enrichment and the prohibition of  dealing in transactions that contain excessive risk or speculation. Accordingly,  Islamic scholars have deduced from the Shari&rsquo;a three principles that form the  benchmark of Islamic economics and which distinguish Islamic finance from its  conventional counterpart. Briefly, these are:<br /><br />(a) &nbsp;The prohibition of  interest<br />(b)&nbsp;The sharing of profits and losses <br />(c)&nbsp;The prohibition  against uncertainty and excessive speculation (being speculation over and above  that which is necessary and unavoidable in a normal business  transaction)<br /><br />The UAE is governed by a civil law system, which means that  all relevant underlying commercial and banking laws are, to a large extent  codified. There is no separate legislation within the UAE which codifies Shari&rsquo;a  law for commercial transactions. There are also no separate Shari&rsquo;a courts to  hear disputes arising out of Shari&rsquo;a financing transactions.<br /><br />However, as  many aspects of Shari&rsquo;a rulings have been incorporated into the civil law, it  can be said that large portions of the UAE commercial laws are underpinned by  Shari&rsquo;a elements and are therefore compatible with Shari&rsquo;a principles. The  courts are also permitted to refer to the Shari&rsquo;a in the absence of clear  legislation and established customary business practices. This is reflected in  the approach taken by the UAE Federal Law No. 5 of 1985 Concerning Civil  Transactions (the &lsquo;Civil Code&rsquo;), which, together with the Federal Law No. 18 of  1993 concerning the Commercial Transaction Law (the &lsquo;Commercial Code&rsquo;), sets out  the main provisions for civil and commercial transactions in the  UAE.&nbsp;<br /><br /><strong>Applicability of Shari&rsquo;a principles in the  UAE<br /><br /></strong>The main challenge in structuring and offering Islamic  compliant products in the UAE is to bridge the occasional mismatch between the  laws of the UAE and the principles of Shari&rsquo;a.<br /><br />In many instances, the  provisions of the UAE law are reflective of Shari&rsquo;a principles, such as the  pre-requisites relating to capacity to contract, the requirement for clarity of  contractual terms, the absence of duress and the specific conditions governing  sale and purchase transactions. In these instances, such transactions are fully  compliant with both Shari&rsquo;a elements and UAE law from the outset.<br /><br />In  other cases, the provisions of the UAE laws are inconsistent with Shari&rsquo;a  principles. For example, the charging of interest is generally permitted under  UAE law as long as it is not unduly excessive (this being reflected by the  flourishing conventional banking system in the UAE). However, interest is  strictly prohibited under Shari&rsquo;a, no matter how nominal the amount. Similarly,  while it is not illegal under UAE law to deal with certain items such as pork  products and the entertainment industry, these are prohibited under Shari&rsquo;a. In  such cases, it is best that these restrictions and prohibitions are eliminated  from the financing structure and, where applicable, removed from the relevant  agreements in order to ensure Shari&rsquo;a compliance.<br /><br />Less clear are  transactions falling within grey areas, where UAE laws are silent and customary  practice offers little guidance. An example is the legally untested area of  derivatives transactions. From a Shari&rsquo;a perspective, there are concerns that  the speculative and uncertain nature of derivatives may breach Shari&rsquo;a  provisions. However, UAE laws are silent on this issue, and market practice has  not developed to such an extent as to provide conclusive guidance. As the courts  are permitted to refer to the Shari&rsquo;a in the absence of clear legislation and  established customary business practices, it is likely that courts will rely on  the Shari&rsquo;a criteria in analyzing the legality of a derivatives  transaction.<br /><br /><strong>The role of Shari&rsquo;a  pronouncements<br /><br /></strong>It is standard practice for each Shari&rsquo;a product  to be structured and certified as Shari&rsquo;a compliant by Shari&rsquo;a scholars or  experts (who are usually appointed by the Islamic financial  institutions).<br /><br />Once a product is offered to the public by a licensed  financial institution in the UAE, it would be reasonable to assume that such  product has undergone legal and Shari&rsquo;a analyses before approval was granted for  such product to be made available to the public.<br /><br />However, while such  pronouncements formalizes the approval from the Shari&rsquo;a perspective, they have  no binding effect. The UAE courts are not compelled to take the Shari&rsquo;a  pronouncements into consideration when determining a case, and will most likely  simply rely on the terms of the contract.<br /><br /><strong>Disputes under Shari&rsquo;a  financial transactions<br /><br /></strong>Should a dispute be brought to a UAE  court, the court is unlikely to apply a different treatment to the dispute  solely on account of the transaction being Shari&rsquo;a compliant. The dispute will  be subject to the same processes and procedures as a conventional financing  counterpart.<br /><br />The courts will also apply the laws of the UAE in  determining the case. Notably, if a document purports to be governed by Shari&rsquo;a  law, courts will likely disregard such choice of law, and will instead apply the  applicable UAE laws.<br /><br />To maintain the legal enforceability of an  agreement, it is prudent that all the elements necessary for Shari&rsquo;a compliance  purposes are contractually provided for within the body of the agreement itself.  Notably, under the Civil Code, where the intention of the parties is clear from  the language of the contract, the courts will not imply any further meaning or  additional terms to the contrary. Save in the cases where the contract was  unclear and the provisions of the law and customary practice are silent on an  issue, the UAE courts are unlikely to examine the Shari&rsquo;a aspects of a  document.<br /><br /><strong>Shari&rsquo;a products offered in the UAE<br /><br /></strong>The  Islamic financial institutions within the UAE offer many mainstream products  that one would expect to find, such as ijarah, murabaha, mudaraba and istisna.  These are both from the loan and deposit aspects, and are fully supported by the  normal ancillary services such as the provision of chequebooks, internet banking  and Shari&rsquo;a compliant credit cards.<br /><br />It is a Shari&rsquo;a requirement that all  Shari&rsquo;a structures must comply with the laws of the jurisdiction in which it is  made available. For that reason, due to legal limitations, certain products such  as those which involve trust arrangements or beneficial ownership over land, are  not offered in the UAE, as their structures are incompatible with UAE land  laws.<br /><br /><strong>Security arrangements for Shari&rsquo;a  financing<br /><br /></strong>Security arrangements for Shari&rsquo;a compliant products  are similar to their conventional counterparts, with modifications to remove  elements of interest. One can therefore expect to find the standard security  documents such as mortgages, assignments over assets, pledges and guarantees.  While the suitability of such security arrangements depends on the underlying  Shari&rsquo;a structure, such security documents will be enforced by the UAE courts  provided that they have been duly perfected under UAE law.<br /><br />As a general  overview, the UAE Civil Code has a strong Shari&rsquo;a foundation which supports the  proper regulation of Islamic financial mechanisms. Due to economic realities,  certain mismatches between UAE laws and Shari&rsquo;a principles exist, however, such  incompatibilities are minimal compared to other major financial  jurisdictions.</p>'),
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(79891, 4355, 'content_description', '2010 brought about significant changes for contractors and consulting engineers in Abu Dhabi with the introduction of new regulations relating to the classification of contractors (“Contractors”) and engineering consulting offices (“Consultants”).'),
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(79876, 4354, 'content_description', 'Last year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.'),
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(79878, 4354, 'pageSummary', 'Last year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.'),
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(79886, 4354, '_yoast_wpseo_metadesc', 'Last year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.'),
(79887, 4355, 'content', 'June 2011\r\n\r\n<hr />\r\n\r\n2010 brought about significant changes for contractors and consulting engineers in Abu Dhabi with the introduction of new regulations relating to the classification of contractors (“Contractors”) and engineering consulting offices (“Consultants”). These new regulations will mean that all Contractors and Consultants must obtain a classification certificate as well as a commercial licence before they can tender for, or undertake work on, a construction or engineering project in Abu Dhabi.\r\n\r\n<strong>The Regulations</strong>\r\n\r\nThe relevant changes to the legal regime for Contractors and Consultants arise from the following regulations and related resolutions:\r\n\r\n1. Regulation No. (2) of 2009 Concerning Contractor Classification in the Emirate of Abu Dhabi and its associated instructions under Administrative Resolution No. (56) of 2010 Concerning Instructions for Contractor Classification; and\r\n\r\n2. Regulation No.1 of the year 2009 Concerning Engineering Consulting Office Classification in the Emirate of Abu Dhabi and Administrative Resolution No. (58) for the year 2010 concerning instructions on Engineering Consultancy Offices Classification;\r\n\r\nwith each set of regulations and resolutions implementing separate regimes for Contractors and Consultants.\r\n\r\nWhilst the two regimes are broadly similar in their framework, the requirements for classification and certain minimum thresholds required to qualify to operate on projects of differing sizes are specific to each regime depending on various components of the applicant’s business.\r\n\r\n<strong>Effect of the Regulations</strong>\r\n\r\nClassification is mandatory for all Contractors and Consultants and will be required in order for them to carry on business in Abu Dhabi. Under the regulations, existing Contractors and Consultants will have until the end of 2012 to obtain classification and new businesses will have one year from the date of issue of their commercial licence to comply.\r\n\r\nClassification is required regardless of whether a Contractor or Consultant is operating as a branch of a foreign company, or whether it is a locally incorporated limited liability company. While obtaining a commercial licence for a new business is the first step towards operating as a Consultant or Contractor in Abu Dhabi and is necessary to enable the business to hire staff or sign up for utilities connections etc., a new Consultant or Contractor will not be able to execute or engage in any projects until it has completed the classification process. Once classification is obtained, the Consultant or Contractor will be recorded in a Consultants/Contractors registry maintained at the Abu Dhabi Department of Economic Development (“DED”). Existing Contractors and Consultants who are already operating will generally be permitted to complete projects that have already commenced, but should obtain classification before they commence any new projects. However, in some cases a non-objection certificate may be obtained from the Consultant’s/Contractor’s department at the DED to permit work on new projects while the application for classification is being processed.\r\n\r\nObtaining classification allows Contractors or Consultants to tender for and work on construction and engineering projects in Abu Dhabi. The value of the project, which a Contractor or Consultant wishes to engage in, will determine the requirements that the Contractor or Consultant must fulfil in order to obtain the requisite classification. The Consultant/Contractor must always conform to the category under which its business is classified.\r\n\r\n<strong>Classification Procedure</strong>\r\n\r\nContractors or Consultants can apply for classification for one or more specialisations within various fields of contracting or consultancy specified in the regulations. The fields of activity differ for Contractors and Consultants. The Contractor or Consultant may then apply for and be awarded classification at certain specific graded levels. The level at which a Contractor or Consultant is classified will determine the range of value of projects that the Contractor or Consultant will be permitted to engage in. As classification may be requested for one or more specialties, a Contractor or Consultant may obtain different levels of classification for its different specialisations.\r\n\r\nThe Contractor or Consultant will be eligible for classification at particular levels depending on certain criteria relating to its business, for example:\r\n\r\n- the number, academic qualifications and relevant professional experience of its technical staff (engineers/architects) and accounting staff;\r\n\r\n- the legal form of the business (LLC/ branch of a foreign company), its ownership and the technical qualifications of its proprietors;\r\n\r\n- the details and values of the projects which the Contractor/Consultant has completed in the past (previous experience of shareholders of a company or of a branch office registrant within and outside of the UAE may be considered in certain circumstances);\r\n\r\n- the details of its financial standing, in particular, taking account of its paid-up share capital and the value of its asset base; and\r\n\r\n- the details of its health, safety and quality certifications and the level of insurance cover it holds.\r\n\r\nEach level of classification requires proof of compliance with particular thresholds pertaining to the above criteria. In its application for classification, a Contractor or Consultant must demonstrate that it meets the criteria for the level at which it wishes to be classified.\r\n\r\n<strong>Effect of Classification</strong>\r\n\r\nThe level at which a Contractor or Consultant is classified will determine the monetary thresholds applicable to projects which the classified Contractor or Consultant may participate in, as well as the ongoing requirements that the Contractor or Consultant must satisfy as part of its maintenance of classification. For example, Contractors with a “Special” level of classification may participate in the largest projects (over AED100 million for Contractors and over AED70 million for Consultants), but are subject to the most onerous requirements in terms of obtaining and maintaining classification.\r\n\r\n<strong>Classification Process</strong>\r\n\r\nIn order for a Contractor or Consultant to obtain classification under the Regulations, it must submit an application to the Consultant’s/Contractor’s department within the DED in Abu Dhabi along with all the documents relating to its business and evidencing its past experience, its staff qualifications and experience, financial standing and its health and safety and insurance records.\r\nThe process of gathering the requisite documentation in order to obtain classification may take several weeks. Once an application is approved, it will be recorded in the appropriate register in the DED and the Contractor or Consultant will be issued with a certificate of classification. The certificate will include the date of classification, its term of validity, levels of classification, field and specialisations. Under the new regimes, classification certificates will be valid for two years.\r\n\r\n<strong>Summary</strong>\r\n\r\nAll Contractors and Consultants in Abu Dhabi will need to be aware of the new classification regime and determine what level of classification will be required for them to be involved in forthcoming or anticipated projects. The requirements to be satisfied in order for classification to be obtained are relatively demanding and the timeframe during which both new companies and branch operations (as well as those already operating in Abu Dhabi) have to ensure they are fully compliant with the Regulations and obtain classification is quite tight.\r\n\r\nHowever, it is arguable that the requirements of the new classification regime are proportionate given the importance and desirability of contractors and engineers being properly regulated and supervised, ensuring due compliance with health, safety and environmental standards in Abu Dhabi as well as ensuring the quality and safety of infrastructure and building projects for developers, investors, commercial occupiers and residents alike.'),
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(79872, 4354, 'content', 'June 2011\r\n\r\nLast year, Kuwait enacted the Capital Markets Law (CML) (Law No. 7 of 2010) followed by its executive bylaws (CML Bylaws) which seeks to regulate the securities businesses in Kuwait and provide protection to those involved in trading.\r\n\r\n<strong>ACQUISITION OF 50-100% OF A COMPANY’S SHARES\r\n</strong>\r\nOne of the definitions given by the CML and the CML Bylaws on Acquisition is the offer, attempt or request to hold all the shares of a listed company or all the shares of any category or categories within a listed company regardless of the shares already held by the offeror or its affiliates on the date of submitting the offer.\r\n\r\nThe company that is the subject of the offer is any listed company or non-listed company, in the case of a reverse acquisition.\r\n\r\nKuwaiti law does not yet recognize the concept of categories of shares, as there is only one category of shares in shareholding companies in Kuwait. However, the use of the words category and categories above may be an indication that the Kuwaiti companies’ law may be amended to expand the categories of shares.\r\n\r\nThe CML Bylaws states that any person may, after obtaining prior written approval from the Capital Markets Authority (CMA), submit an offer of acquisition at any time according to the provisions of the CML Bylaws. The absence of clarity on the phrase at any time creates a few issues: (i) there is no time limit on making an offer of acquisition.\r\n\r\nafter obtaining the approval from the CMA, therefore an offeror can hold on to such approval for an indefinite period; (ii) once the CMA approves an application for an offer of acquisition, the CMA can then grant another approval to a second offeror and, if the first offeror has not made an offer yet, there would exist two separate offers for the same company; and (iii) if the CMA can only grant one approval at a time, an offeror may misuse this restriction to block other parties from making offers of acquisition.\r\n\r\nThe offeror must give equal treatment to all the shareholders of the subject company and in particular the offeror, the subject company and any advisers may not submit any information gathered during the period of offer to some of the shareholders and not the others.\r\n\r\nThe offer parties (the offeror and the offeree) must appoint an investment advisor licensed by the CMA who must be independent and has no interest in the acquisition of the subject company. At this time, it is unclear if both the offeror and the offeree can appoint one investment advisor or if each is required to appoint one.\r\n\r\nThe Board of the offeror and the Board of the subject company must provide their respective shareholders with information and recommendations to enable them to reach a decision for accepting or rejecting the offer at least fifteen days before holding the general assembly of shareholders. From the wording of the CMA Bylaws on this provision, we assume that in the case of acquiring all the shares of the subject company, the approval of the shareholders’ ordinary assembly of the subject company is required. In other words, at least 51% of the shareholders of the subject company have to approve the offer, subsequently forcing the non-approving shareholders to sell their shares as well. This concept is new to the Kuwaiti practice and has never been applied before. The shareholders of the offeror have to approve the offer as well. The issue arising from this requirement is that when the offeror is required to obtain the approval from its shareholders, which are either before or after the application to the CMA seeking its approval for the offer of acquisition. If after, then the board of directors decides on the offer of acquisition and applies to the CMA on behalf of the offeror.\r\n\r\nThe offeror shall, before proceeding to acquisition procedures, obtain the approval of the Competition Protection Agency according to Law No. 10 of 2007 concerning competition protection. With respect to the timing of the application for approval of the Competition Protection Agency, which the exact timing for such application is, either before or after the application for approval of the CMA or the approval of the shareholders.\r\n\r\n<strong>ACQUISITION OF MORE THAN 30% OF SHARES (MANDATORY OFFER)\r\n</strong>\r\nAny person must within a period of thirty days of directly or indirectly obtaining equity of more than 30% of the voting shares of a company listed in the Kuwait Stock Exchange (KSE)immediately submit an acquisition offer for all the shares remaining from the same category. The CMA can make exceptions to this requirement if it is in the best interest of the shareholders or public policy. The question arises as to whether this article will apply to acquisition of 30% or more in the event of foreclosure, or pursuant to any court order. Would the mortgagee then have to extend a mandatory offer to the remaining shareholders?\r\nThe offeror shall, in the case of a mandatory offer, submit its offer to the shareholders of the company, subject of the offer, directly without the need for holding a general assembly of shareholders of the company subject of offer. Each shareholder shall be allowed the option to sell its shares to the offeror or keep them during the offer period decided by the CMA.\r\n\r\nThe offer submitted under the mandatory offer shall be a cash offer not less than the likely average of the daily price per share in the KSE for the company subject of offer within the six years preceding the beginning of offer period, and the KSE shall calculate this price.\r\nIt should be noted that that the above provisions regarding the mandatory offer are the consequence of obtaining more than 30% of the shares, and not the method that an offeror is to acquire shares of more than 30%. The mandatory offer only kicks in after an offeror obtains more than 30% shares. For instance, if an offeror wishes to acquire 49%, it will have to complete the acquisition of the 49% and then shall have 30 days to submit a mandatory offer for the remaining shares. When using the method of acquisition of up to 49% (before reaching 30%), the following provisions of acquiring 5%-30% of shares will apply.\r\n\r\n<strong>ACQUISITION OF BETWEEN 5% AND 30% OF SHARES\r\n</strong>\r\nWhen a person holds, individually or jointly with parties affiliated thereto or allied therewith, about 5 % or more of the shares of any company listed in the KSE and intends to raise the holding percentage of the company shares, it shall disclose such intention when disclosing the interests pursuant to the provisions of Chapter Ten of the CML, and shall submit to the CMA the information it requires in this respect.\r\n\r\nIf the person holding, individually or jointly with parties affiliated thereto or allied therewith, 5 % or more of the shares of a company listed in the KSE, is willing to raise such percentage at no more than 30 % of the shares of the same company, it shall achieve the same in any of the following forms:\r\n\r\n1. Purchasing shares directly through the KSE;\r\n2. Submitting an application to the KSE for holding an auction for purchasing a specific number of shares. For submitting this application, there shall be a preliminary agreement with a person or group of company shareholders willing to sell a specific number of shares at a price agreed upon in advance. For holding the auction, the conditions and requirements laid down by the CMA and KSE shall be complied with in this respect.\r\n3. Announcing submission of an offer to the shareholders of the company to purchase a specific number of shares at a specific price and within a specific period of time, provided that it shall obtain the prior written approval of the CMA in this respect and to comply with the conditions and requirements laid down by the CMA.\r\nIt is unclear if the above provisions supersede the current block trading rules.\r\n\r\n<strong>REVERSE ACQUISITION</strong>\r\n\r\nReverse acquisition means any arrangement under which a listed company offers new shares to shareholders of an unlisted company instead of their shares where the new shares represent more than 50 % of the voting shares in the listed company after acquisition.\r\n\r\nReverse acquisition operation, the listing of offeror\'s shares shall be suspended untill the operation is completed. Once completed, the listing of offeror\'s shares shall be cancelled and the offeror shall submit an application for a new listing, provided that it shall meet the requirements of listing according to the regulation in respect of the same.\r\nThis acquisition, acceptable with a majority resolution, is passed by the general assembly of shareholders in the company subject of offer in approval thereof.\r\n\r\n<strong>CONCLUSION</strong>\r\n\r\nThe passing of the CML and the CML Bylaws marked an important milestone in the Kuwaiti capital markets industry. Other than the provisions on acquisitions, the CML and the CML Bylaws introduced clearer provisions which clarified the earlier provisions  on the protection of minority rights, disclosure obligations and insider trading which was either previously unregulated or the previous law relevant to these areas was unclear.\r\nWe have yet to see how the CMA will implement the CML and CML Bylaws and we look forward to the application of any new test case on the same. Hopefully, when more information becomes available and actual application of the CML and the CML Bylaws will take place, we will be able to shed more light on this subject in future articles.'),
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(79834, 4352, 'content', 'June 2011\r\n\r\n<hr />\r\n\r\nThe term “cloud computing” is often used to describe a broad range of remote access computing services, many of which have been around for a number of years.  However, these days a cloud computing environment is generally one in which users have access to applications and data storage services on demand and delivered over an external network, on a user-pays basis.  Providers also draw a distinction between public and private clouds, but the focus of this article will be on public cloud services.\r\n\r\nThe term “legal risks” in this context refers to issues that may expose a cloud provider or user to legal liability, issues which arise from an applicable legal system, and issues which can and should be addressed from a legal perspective in order to create an effective and trustworthy cloud services relationship.  The UAE does not have a comprehensive set of laws, regulations and/or official standards specifically for the provision of cloud computing services, and general laws apply.  In the absence of a prescriptive legislative framework, however, providers and users must come together in a relationship of trust in order to facilitate the use of a financially advantageous service relationship.\r\n\r\nIn terms of risk management, users of cloud services are often placing in the hands of third parties responsibility for direct control of critical data and applications.  If there is an outage or a security breach, the cloud user could be exposed to claims from its own customers, a failure in business continuity, and potentially reputation damage, even though the cloud provider or a third party telecommunication service provider was responsible for the default.  Many SME’s will investigate cloud services and be presented with a service contract which offers the cloud services “as is”, without the cloud provider assuming any risk, and with an exclusion of the cloud provider’s liability to the extent permitted by applicable law.  Whether or not a cloud provider and cloud user negotiate a services contact will depend on the parties and the value of the contract. However, even if SME’s must accept stand terms without negotiation they should conduct serious due diligence and contingency planning to mitigate exposure to legal risks.\r\n\r\nThe claims which a cloud user may bring against a provider when things go wrong, outside the scope of contractual rights, are limited and may not prove to be effective – particularly if the cloud provider is located offshore.  For instance, claims for compensation under the UAE Civil Code (number 5 of 1985) will require the cloud user to prove the value of the loss claimed, and this might be difficult.  The UAE Federal Law number 2 of 2006 concerning Cyber Crimes focuses on the criminal actions of the hacker, but does not provide a framework which specifically addresses the claims which a cloud user may have against a faulty cloud provider.  Other than the law applicable in the DIFC, there is no single data protection / privacy law in the UAE, and the range of laws which speak about the protection of secrets (for instance the Penal Code) do not provide a detailed legislative framework that might protect cloud users from the mishandling of personal and sensitive information.  The UAE does not have an information security law as such.  However, there can be information security policies which are of vital importance to individual organizations and government departments.  For instance, the Abu Dhabi System and Information Centre has developed and implemented an information security policy under Federal Law number 1 of 2006 concerning Electronic Transactions and Commerce with which Abu Dhabi government entities must comply.  Ironically, this places added pressure on Abu Dhabi government entities who wish to outsource applications and data storage to a cloud provider, as it is the government entities who nonetheless remain subject to the obligation to be compliant with the ADSIC information security policy.\r\n\r\nIn the space available it is not possible consider all of the legal / contractual issues arising, and the following points are a summary of some key issues:\r\n<ul>\r\n 	<li>Data location – Users must consider the impact of the various UAE laws governing the privacy of secrets on the collection and transfer of data to the cloud provider, and the movement of that data across different jurisdictions as part of the provision of the cloud service.  Further, what will be the impact, upon the delivery of the cloud services, of the various laws governing data transfer and use which are applicable in the different jurisdictions across which the data is moved?</li>\r\n 	<li>Record retention obligations – Under Federal Law number 18 of 1993 Commercial Transactions Law, organizations in the UAE have clear record retention obligations. Under that law, and under the Electronic Commerce and Transactions law, many such records may be kept in electronic form.  However, if data storage obligations are outsourced to a cloud provider, the UAE company must ensure that there are adequate protection mechanisms such that a failure by the cloud provider does not result in the UAE company failing to comply with its local record retention obligations.</li>\r\n 	<li>Data ownership – Under the cloud arrangement, the cloud user will generate data in the ordinary course of business which is stored in the cloud.  However, the cloud provider also will be creating data in relation to the cloud user.  The cloud user’s ownership rights over all data which it creates and which is created on its behalf by the cloud provider must be firmly established in the service contract.</li>\r\n 	<li>The providers in the cloud relationship – Cloud services can be provided by multiple parties working together, and sometimes the user may not appreciate the different parties involved.  It is important for the cloud user to know whether it has a directly enforceable contract with the key players in the relationship or whether it is relying on those with whom it does have a contract to enforce relevant terms against other providers.</li>\r\n 	<li>Data security – The cloud user will have its own data security and access management policy internally.  The cloud user must determine how to ensure that its security measures are reflected in the data hosting service offered by the cloud provider.</li>\r\n 	<li>Availability – Cloud computing services inevitably will experience outages and performance slowdowns.  While a provider may agree in a contract to give 99.95% reliability excluding scheduled maintenance downtime, the cloud user must nonetheless have sensible options if, for whatever reason, the cloud provider cannot meet that target.</li>\r\n 	<li>Planning for the end of the cloud services relationship – Cloud users must avoid a situation, to the extent possible, where the applications and data storage mechanisms which they are provided by a cloud provider do not lock the user into the provider’s services, in that a transition to another provider may not be possible without expending significant cost and time in restructuring.\r\nCloud users should conduct thorough due diligence of the provider they are considering and in particular focus on the privacy and security levels of the services to be offered.  It is in the interests of cloud providers to make this information available and for the parties to act reasonably in contractual negotiations in order to bring about a relationship of trust.</li>\r\n</ul>'),
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(79853, 4353, 'content', 'June 2011\r\n\r\n<hr />\r\n\r\nThe decision in question deals with an insurer’s pursuit of its rights of subrogation against the party responsible for damage caused to a vehicle\r\n\r\nBriefly, the facts are that an individual had, through ADIB (the financier) purchased a Nissan car which ADIB had in turn purchased from Al Masoud Car Agency under a murabaha contract. The individual insured the vehicle with Al Wathba National Insurance Company.\r\n\r\nNine months following the individual’s purchase, the vehicle caught fire due to an electrical short circuit and was completely destroyed. The insured was paid the value of the vehicle by the insurer who then sued both Al Masaoud Agency and ADIB to recover the value of the vehicle, being AED 168,000 plus Court fees and costs. The action was based on the right of subrogation as prescribed by Article 1030 of the UAE Civil Transactions Code.\r\n\r\nThe Court of First Instance refused to entertain the action due to the purported lack of capacity to sue on behalf of Al Wathba, the Plaintiff. Similarly, the action was dismissed on appeal on the following grounds:\r\n\r\n1- The insurer has a right to pursue a subrogated claim against the party responsible for the damage against payments previously made to its insured pursuant to Article 1030 of the Civil Transactions Code, and to recover such indemnity payments from the party at fault who caused the damage.\r\n\r\n2- By dismissing the action, the Court of First Instance exhausts its jurisdiction over the merits and a reversal of its decision places the merits before the Court of Appeal.\r\n\r\n3- There is no basis for entertaining the plea that the claim is time barred under Article 555 of the Civil Transactions Code since the claim seeks recovery of the amount paid to the insured.\r\n\r\n4- An existing defect within the meaning of Article 547 of the Civil Transactions Code is a defect which is present when the goods are delivered to the buyer or a defect that can be traced to an old problem that occurs or appears after the sale.\r\n\r\n5- Plaintiff (insurer) has not produced any proof of the defect which caused the electrical short circuit that ignited the vehicle fire - whether it was a pre-existing defect in the vehicle that was introduced during manufacture or a defect that existed prior to purchase.\r\n\r\n6- A defect existing in the sold item prior to sale cannot be assumed and must be proved. Plaintiff (insurer) has not proven that the defect is a manufacturing defect or had existed in the vehicle prior to the sale. The seller cannot therefore be held liable for its value.\r\n\r\n<strong>Opinion:</strong>\r\n\r\nSubrogation commonly arises in relation to motor vehicle purchase contracts and policies of insurance.\r\n\r\nSpontaneous accidents involving vehicles, machinery etc. are common types of claims.\r\n\r\nTherefore, the Al Ain Court, which is part of the Abu Dhabi Judicial Department, has laid down important principles which burden the plaintiff with the onus of proving a pre-existing defect as follows:\r\n\r\n1- That the vehicle suffered loss caused by fire due to a defect therein\r\n\r\n2- That the defect is a pre-existing defect introduced during manufacture or existing in the vehicle prior to purchase\r\n\r\n3- And the onus of proving a pre-existing defect is on Plaintiff whether the vehicle owner or the subrogee.'),
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(79815, 4351, 'content', '<p><strong>What is a Waqf?<br /></strong><br />Waqf is a concept which resembles  closely the Anglo-American trust. It is a form of endowment under which the  ownership of assets is transferred to a juristic body (namely the Waqf), which  manages the assets and the fruits of the assets for named beneficiaries for a  defined period of time. <br /><br />The Emirate of Sharjah (by Law No. 4 of 2011 has  now introduced a special decree facilitating the establishment and operation of  Waqfs.<br /><br /><strong>Why was the Sharjah Law Needed?</strong><br /><br />Islamic  Sharia law has developed the concept of the Waqf and also legal rules on how  Waqfs are to be regulated or governed.&nbsp; However, there is not complete consensus  amongst Sharia scholars on some of the base legal principles concerning Waqfs.&nbsp;  This has created areas of uncertainty in Islamic jurisprudence and led to the  Waqf being rarely used as a vehicle for asset management.&nbsp; Because there was  previously no secular civil law to use as reference source and rely upon in  creating Waqfs, or settling their terms and conditions, most Waqfs were  vulnerable to challenge due to this unsettled and contentious Sharia  jurisprudence.&nbsp;<br /><br />Although Waqfs are not infrequently used to manage small  assets, the use of a Waqf structure previously carried high risks when  administering large and highly significant assets, where challenges to the Waqf  and its administration were more likely.&nbsp; <br /><br /><strong>What are the Key Terms  of the New Sharjah Law?</strong><br /><br />The Sharjah law requires the  settlor/creator of a Waqf to decide and record their wishes on several subjects.  The most important are:</p>\r\n<ul>\r\n<li>the assets to be transferred;</li>\r\n<li>the beneficiaries of the proceeds of the assets; and</li>\r\n<li>the governance/management of the Waqf.</li>\r\n</ul>\r\n<p>A Waqf deed needs to be drafted and certified by the competent judge at the  Sharjah Court. The Waqf, once certified, acquires full and separate artificial  legal personality as provided under Article 16 of the Sharjah Waqfs Law. This  legal personality enables the Waqf to operate autonomously in carrying out the  objectives set by the Waqf&rsquo;s creator.<br /><br />The law mandates that a coherent  management structure must be put in place.&nbsp; Articles 37 to 50 of the Sharjah  Waqfs Law regulate the management of Waqfs. The management of any Waqf is to be  conducted by a trustee or a board of trustees. The trustee or board of trustees  is authorized to act on behalf of the Waqf. The new law contains provisions  designed to ensure that any trustee acts in good faith and in line with the  objectives of the Waqf. It is an option open to a settlor/creator to assign the  management of the Waqf to a new statutory body created by the Sharjah law,  namely the Waqf General Secretariat.<br /><br />Article 8 of the Sharjah Waqfs Law  lists the types of assets which are able to be owned and managed by a Waqf. The  traditional view was that Waqfs could own only immovable assets. However,  Article 8 of the new law now provides explicitly that movable as well as  immovable assets may be transferred to a Waqf. <br /><br />Moreover, the law  provides that interests in movable and immovable assets held in common with  other owners or parties may be validly transferred to a Waqf, even if the assets  concerned are under common ownership, provided that the transfer does not harm  the interests of the other owners or partners. <br />Article 8 further makes it  clear that Waqfs may own all kinds of securities, trade names, moneys and  intellectual property rights.<br /><br /><strong>Conclusion</strong><br /><br />The  Sharjah Waqfs Law means that Waqfs are no longer a risky option to adopt as an  ownership structure. The absence of a secular civil source code to rely upon was  previously the main deterrent against establishing a Waqf. Fortunately, the new  Sharjah Waqfs Law covers most aspects of the Waqf structure and provides answers  to many questions. Accordingly, the risk of a successful challenge to a Waqf  duly established under this new law should be minimal.<br /><br />In light of the  new Sharjah Waqfs Law, there is a possibility that this long dormant form  ownership structure will be revived, particularly as its unique attribute is  that it is a Sharia compliant vehicle for owning and managing assets.</p>'),
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(79796, 4350, 'content', '<p>The UAE is a federacy of seven states. Each state has its own ruler and the  rulers together form the supreme counsel governing body of the UAE, with the  ruler of Abu Dhabi as the president of the country and supreme commander of the  army. Each Emirate is subject to its own local laws and regulations governing  internal affairs. Matters related to the UAE as a whole legal body, would  require a federal law or decree approved by the president of the UAE.<br /><br />The  UAE applies the &ldquo;Common Customs Law of the GCC States&rdquo; which is applicable in  all GCC states, in which any commodities crossing the customs line, at  importation or exportation, are subject to the provisions of this law. This law  is approved by federal decree No. 85 for the year 2007. The commodities imported  into the country are subject to the custom dues specified in the Customs Tariff  issued pursuant to the Common Customs Law. There is no local UAE law regarding  customs. Any laws or regulations issued in the UAE regarding customs are all  subject to the Common Customs Law.<br /><br />According to the Law no. 13 for the  year 2007 of the import and export control, a committee named the &ldquo;national  committee of commoditisers that are subject to control of import, export and  re-export&rdquo; should be established under presidency of the representative of the  ministry of economy.&nbsp; This committee should control the rules that regulate the  affairs of import and export as well as provide the required technical  consultation concerning the non-violation of the states interest or the  international conventions to which the state joined or  approved.<br /><br />Generally, most of the imported commodities are subject to 5 %  customs duty.&nbsp; Products such as tobacco and manufactures tobacco substitute&rsquo;s  are subject to 100% customs duty or on the minimum collectable rates basis,  whichever is higher, as outlined in a specific table. Alcohol is subject to 50%  duty of product value. There are 734 items exempt from the customs duty under  the customs tariff, for example, certain animals, vegetables, plants, chemicals,  and medicines, certain diamonds, silver, and gold, as well as carriages and  accessories for those who are disabled. Helicopters, cruise ships and excursion  boats are also exempt.<br /><br />As long as there is an agent registered in the  specified register maintained for this purpose by the UAE Ministry of Economy  and Commerce, parallel importing is prohibited in the UAE. The Customs  Departments, at the registered agent\'s request, detain any products imported by  any other person and deposit them in the port warehouses until the dispute is  determined. This is of course a headache for inexperienced traders, agents and  forwarders who allow cargo to be imported without first checking if the cargo  has an agent registered in the UAE.&nbsp; A high proportion of cargo imported into  the UAE perishes while waiting for disputes to be resolved concerning whether or  not the cargo can be imported without the prior approval of the registered  commercial agent. <br /><br />According to Law No. 13, it is illegal to import any  strategic commodity that forms danger against public safety, public health,  environment, natural resources, and national security or for reasons related to  the UAE foreign policy, taking into account any restrictions which may currently  be imposed on those commodities according to the applicable legislations in the  state. The UAE authorities are extremely strict and intolerant when it comes to  cargo they believe jeopardizes or threatens national security. The mere  discovery of an unannounced handgun with the master or crew member will lead to  vessel detention, imprisonment of the master and a criminal action against the  vessel and its owners. Finding smuggled and prohibited cargo on board a vessel  will most probably lead to the vessel being confiscated.<br /><br />Meanwhile, there  is a list of prohibited products of which the import and export of is  prohibited. In addition to drugs and radiation polluted substances, this list  includes printed matters, paintings and drawings which contradict with Islamic  teachings or decencies, used and inlaid tyres, children&rsquo;s toys in the form of a  dinosaur and goods which consist of led.<br /><br />One of the prohibited products  mentioned in the list concerns those which are imported or exported to or from  Israel. According to the federal law no. 15 for the year 1972 of the &ldquo;Israel  Boycott&rdquo;, the Israeli products shall not be imported or exported from or to  Israel.&nbsp; The decision by the Israel Boycott office prohibits goods from Israel,  bearing Israel marks or logos. However, some goods imported from different  countries and which have some small undetected Israeli made components would not  cause problems with customs.<br /><br />If a cargo was shipped from a Malaysian port  to Israel in transit through the UAE, the UAE authorities will not permit the  shipment to continue its course to Israel. However, cargoes indirectly destined&nbsp;  to Israel going through other ports should not be considered against the  law.<br /><br />The UAE applies the UN Security Council Resolution 1929 which  relates to various issues and sanctions over Iran.&nbsp; In particular, the  resolution requires implementation by the member States for certain financial  directives which include primarily exercising vigilance over transactions  involving Iranian banks in order to prevent such transactions contributing to  the proliferation of sensitive nuclear activities or the development of nuclear  weapons.&nbsp; <br /><br />The resolution further calls upon member states to implement  measures which prevent the provision for any financial services (such as  insurance; re-insurance; the transfer to or from such States&rsquo; territory; or to  or by nationals or entities organised under such State laws; or financial  institutions, other assets or resources) if such services, assets or resources  could potentially contribute to the sensitive nature of Iran&rsquo;s nuclear  activities or the development of nuclear weapons.The below prohibitions set out  by the UN Security Council restrict the flow of importing and exporting  commodities to and from Iran:</p>\r\n<ul>\r\n<li>Prevention of the supply or sale of vessels directly or indirectly, that may  be used for the benefit of Iran, as well as any additional items contributing to  enrichment-related, reprocessing or heavy water-related activities which may  develop nuclear weapon delivery systems;</li>\r\n<li>Prohibit procurement from Iran, or using their flag vessels, whether or not  originating in the territory of Iran any of the items mentioned in a specific  list (with particular regard to Industrial Equipment, Test and Production  Equipment, Equipment, Assemblies and Components (where applicable), Heavy Water  Production Plant Related Equipment, and other &ldquo;Trigger List&rdquo;  activities).</li>\r\n</ul>\r\n<p>The UAE has undertaken several steps to implement the UN Sanctions against  Iran. The main step being the issuance of a circular by the UAE Central Bank  pertaining to Anti Money Laundering and the Combat of Terrorist financing. The  circular outlines the requirements of the UN Security Council Resolutions  including the freezing of suspicious accounts and recommending banks to conduct  the necessary due diligence in relation to their correspondent banks in Iran..  The UAE Central bank has informed all financial institutions in the country,  including banks, to freeze all accounts and stop bank transactions as per the  instructions of the UN Security Council based on its Resolution 1929 on Iran  connection. Furthermore, the Central Bank has issued a circular listing Iranian  entities with which UAE banks are not allowed to deal with under any  circumstance. The circular states: &ldquo;If you (banks) receive funds from a  natural/judicial persons mentioned in the enclosures or in their favour, you are  to freeze such funds &lsquo;immediately&rsquo;&rdquo; Currently there is no list issued by the UAE  authorities detailing the banned items however; the banned items are similar to  the circulars and directive issued by the UN in this regard. It should be noted  that on 20th June 2010, the Dubai Financial Services Authority warned companies  based in the free zones to conduct risk assessments when dealing with banks and  other clients domiciled in Iran. The Dubai Financial Services Authority said  that companies should \"ensure that the due diligence processes for each  correspondent bank domiciled in Iran has been completed, consistent with the  enhanced due diligence procedures\".&nbsp; It is however, no secret that the UAE, with  its free trade and open market policy is a destination to Iranian traders and  cargos. <br /><br />Accordingly, any goods not included within the UN sanctions will  find its way through the UAE ports</p>'),
(79755, 4347, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nThe Kuwaiti tax laws have granted the Minister of Finance inherent powers to issue a set of executive rules and instructions to facilitate the implementation and enforcement of the legal provisions provided in the said tax laws. However, what would be the legal and practical effect when an “executive rule” seemingly exceeds its objective and purpose or contradicts with its source of legislation in all tax matters?\r\n\r\n<strong>General </strong>\r\nIncome-tax in Kuwait is regulated by the Decree No.3 of 1955 (“Decree”) and Law No.2 of 2008 amending certain provisions of the Decree (“Amendment”) and the Ministerial Resolution No. 29 of 2008 concerning the issue of executive by-laws (“Implementing Regulations”), (collectively referred to as “Tax Laws”).\r\n\r\nThe Tax Laws enable the Minister of Finance, Kuwait or a representative /delegate/ authorized person of the Ministry of Finance, Kuwait to issue executive rules containing prescribed forms and procedures to facilitate the implementation and enforcement of the legal provisions provided in the Tax Laws. Such executive rules address procedural issues relating to tax cards, correspondence, submission of declarations, approval of fiscal year, exemptions and other procedures related to the administration of tax.\r\n\r\n<strong>New Executive Rules</strong>\r\nIn January 2011, the Ministry of Finance has issued a new set of executive rules (“Executive Rules”). The Executive Rules are intended to regulate the proper execution of the provisions of the Tax Laws which constitute the source of legislation in that matter.\r\n\r\n<strong>Executive Rule 20 versus Article 46 of the Implementing Regulations</strong>\r\n<ul>\r\n 	<li>Executive Rule 20 (“ER 20”) prescribes certain forms and procedures with respect to the implementation of Article 46 of the Implementing Regulations.</li>\r\n 	<li>Article 46 of the Implementing Regulations prescribes a withholding tax requirement applicable to ‘investment and portfolio managers, fund managers and custodians’ distributing dividends. Such entities are required to withhold and pay the prescribed tax to the tax authorities within thirty days from the date of distribution. Now, ER 20 appears to include an addition namely “incorporated entities/bodies” to the aforesaid entities stated under Article 46.</li>\r\n</ul>\r\n<strong>A Questionable Change in the Tax Landscape?</strong>\r\nOne could argue that there has been an improper widening of the scope of ER 20 now requiring each Kuwaiti shareholding company (beyond the scope of its capacity as investment and portfolio manager, fund manager or custodian) to withhold/ pay tax whereas Article 46 is silent on such reference.\r\n\r\nSuch widening of the scope of ER 20 is currently under scrutiny from a legal and financial perspective, particularly due to the uncertainty and lack of clarity on the issues pertaining to the date of issuance of the Executive Rules, their date of applicability and their binding effect vis-à-vis the earlier set of executive rules of 2008.\r\n\r\nThis ambiguity begs two key questions – (i) whether the Executive Rules should have been published in the Official Gazette of Kuwait (Kuwait Alyoum), and (ii) whether ER 20 improperly widens the scope of Article 46 of the Implementing Regulations. Each of these has been discussed below.\r\n\r\nDo the Executive Rules need to be published in the Official Gazette of Kuwait (“Official Gazette”) in order to be valid?\r\n<ul>\r\n 	<li>The Constitution of Kuwait provides that for laws to take effect and to become enforceable in Kuwait, their publication in the Official Gazette is mandatory. All laws must be ratified by Kuwait’s National Assembly and ultimately signed by the Amir of Kuwait.</li>\r\n 	<li>Secondary and subordinate legislation must be issued in accordance with the procedures laid down in the relevant piece of primary legislation. Secondary legislation usually takes the form of ministerial decisions or executive orders over their areas of responsibility. Secondary legislation must also be published in the Official Gazette in order to come into force, but is not required to be ratified by the National Assembly or signed off by the Amir.</li>\r\n 	<li>The Implementing Regulations provide that any matter not specifically provided in the Implementing Regulations shall be governed by the executive rules and instructions issued by the Minister of Finance or his representative, pursuant to the provisions of the Tax Law.</li>\r\n 	<li>One may therefore argue that where there is a specific enabling provision in the Tax Laws pertaining to the issuance of the Executive Rules, and where the Implementing Regulations have been published in the Official Gazette, it appears that the Executive Rules need not be separately published in the Official Gazette for them to be effective and applicable, given that the Minister of Finance has inherent powers to issue the Executive Rules as explained above.</li>\r\n</ul>\r\n<strong>Does ER 20 improperly widen the scope of Article 46 of the Implementing Regulations?</strong>\r\n<ul>\r\n 	<li>One can argue that ER 20 does expand the scope of the entities required to withhold/ pay tax given that ER 20 now includes ‘incorporated entities/bodies’ within its purview. As a result, each shareholding company (beyond the scope of its capacity as investment and portfolio manager, fund manager or custodian) declaring dividends is now required to withhold/ pay the prescribed tax.</li>\r\n 	<li>Having understood the general objective of issuing the Executive Rules as explained above, where any particular executive rule exceeds its objective and purpose, one could argue that such excess would require a proper amendment to the relevant legislation in order for it to have full legal and binding effect. Such issue could be subject to proper assessment and analysis by an appropriate forum, being either the Tax Challenges Committee (“Committee”) at the Department of Income-Tax (“DIT”) or the competent court, as the case may be.</li>\r\n 	<li>A bonafide argument may be made before the relevant forum to the effect that there has been an improper widening of the scope of the ER 20. However, given that there is no precedent on this issue so far, it is difficult to determine the interpretation that may be adopted by the Committee or the court whether in relation to the supposed widening of the scope of Article 46 or in relation to the proper mechanism for issuance/ dissemination of the Executive Rules.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\nWe believe that the intended implementation of ER 20 by all incorporated entities/bodies (which would include Kuwaiti shareholding companies as well) would be a tedious exercise and any of these entities may be inclined to challenge ER 20 before an appropriate forum or may elect not to adopt such implementation. Given that there is no legal precedent on this issue so far, it is difficult to anticipate the outcome of such challenge proceedings.'),
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(79746, 4346, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Zaid Al Syouf'),
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(79736, 4346, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\nThe principle of ‘sovereignty of the state’ has dominated international relations for the better part of the last century. Whilst the ability to enforce the awards issued in a particular state within the boundaries of that state has hardly ever been contested, the enforcement of awards outside the boundaries of that state is far less straightforward; such enforcement was often viewed as an encroachment on the sovereignty of the state in which the award was to be enforced.\r\n\r\nHowever, the development of commercial and legal relationships between members of different countries has lead many countries to review their outlook on the enforcement of foreign awards, and to accept that such awards should be granted the same treatment as domestic awards with regard to their legality and enforceability. Within this framework, we hereby examine the enforcement of foreign awards in Jordan and in accordance with Jordanian laws and regulations.\r\n\r\n“<strong>Foreign Award”</strong>\r\nThe first point to take into consideration is that for the purposes of enforcement in Jordan, foreign arbitral awards are granted the same treatment as foreign judicial awards. The Enforcement of Foreign Awards Law No.8 of 1952 defines a “foreign award” as (rough translation) “any award issued by a court outside of the Hashemite Kingdom of Jordan (including Religious courts) relating to civil proceeding and which provides for the payment of monies or in-kind assets or liquidation of accounts and which includes decisions of arbitrators in arbitral proceedings if the award has become, by virtue of the laws of the country which issued the award, enforceable as an award issued by the courts in the aforementioned country.”\r\n\r\n<strong>Conditions for Enforcing the Award</strong>\r\n\r\nIn order to enforce a foreign award in Jordan, the following criteria must be satisfied:\r\n\r\n<strong>1. For the court that issued the foreign award to have jurisdiction</strong>\r\nThe court that issued the foreign award should have the competence to do so, including having both the geographic and specific jurisdiction to view the case. Further, the above means that decisions issued by administrative bodies are not enforceable.\r\n\r\nIn accordance with Article 7 of the aforementioned Law, the award is not enforceable in Jordan in the following circumstances: If the defendant did not have his place of business or was not resident in an area under the jurisdiction of the court; or if the defendant did not attend the court by his own choice and has not acknowledged its jurisdiction.\r\n\r\n<strong>2. The award should be final, binding and enforceable in the country in which it was issued</strong>\r\nFor a decision to be final, binding and enforceable, it must not be open to challenge (on whatever grounds and for whatever reason) in the country that issued the decision. We note that the burden of proving that the foreign award is not binding and enforceable lies with the defendant. If the defendant is able to prove the decision does not satisfy the above conditions then the award is not enforceable. Additionally, if the award is contested in the country of issued, the claim to enforce the award before the Jordanian courts is stayed.\r\n\r\n<strong>3. Notifications</strong>\r\nProvided that the issuing court has the jurisdiction to hear the case, Jordanian laws further provides conditions with regard to notifying the defendant; so that Article 7 of the aforementioned Law provides that the Jordanian court can refuse to enforce the award if the defendant was not served notice to attend the court who issued the said ruling, and he did not appear before the said court despite the fact that he has his place of business or is resident in an area under the jurisdiction of the said court. What is crucial here is not whether or not he attended the session, but rather whether or not he was properly notified, and as such, whether he could have attended the session.\r\n\r\n<strong>4. Fraud</strong>\r\nIn order to enforce a foreign award in Jordan, the award must not have been obtained fraudulently.\r\n\r\n<strong>5. Breach of Public Order or Morals</strong>\r\nSimilarly, and in order to enforce the award, the award must not contravene public order or public morals. The principle of public order and public morals is a relative concept, varying according to time and place and is specific to each country in accordance with its customs, traditions, and legal standards. The criteria to be used here is that of the state in which the award is to be enforced (i.e. Jordan). Please note that in accordance with Court of Cassation Decision No.2549/99, the burden of proving that the award contravenes public order or morals lies with the defendant.\r\n\r\n<strong>6. Reciprocity</strong>\r\nIn accordance with the principle of reciprocity of treatment, a Jordanian court may refuse to hear a claim to enforce a foreign award, if the award was issued in a country that does not allow the enforcement of Jordanian awards in its country.\r\n\r\n<strong>Procedure for Enforcing the Award</strong>\r\nProvided that the above conditions are satisfied, in order to enforce a foreign award in Jordan against a Jordanian, a case will be filed with the Court of First Instance in whichever jurisdiction the defendant resides, or if he resides outside Jordan, the Court of First Instance whose jurisdiction includes the assets of the defendant against which the award is to be enforced. The claim should include a certified copy of the award if it is in Arabic, or a certified translated copy of the award if it is in any other language. The defendant is then notified of the same, and the Court, provided that the above decisions are satisfied, issues a judgment to enforce the award in Jordan. The Court’s competence in this case is limited to reviewing whether the foreign award satisfies the above conditions. In particular, it cannot review the merits of the award, nor alter it in any manner.'),
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(79701, 4343, '_yoast_wpseo_metadesc', 'Living in a world that is increasingly governed by the electronic nature of business and enterprise, it is paramount to the sanctity of legitimate business operations that measures are taken to ensure the continued employment of honesty and good business practices.'),
(79702, 4344, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nBy generating considerable inefficiencies and distortions, corruption poses a significant threat to ensuring the prosperous development of any economy. Corrupt practices lead to considerable waste of natural resources, have an adverse effect on public moral, and more often than not, are not conducive to a sound economic environment. The matter is exacerbated where such corrupt practices occur not only among individuals and private corporations, but are also conducted within governmental and public bodies.\r\n\r\nThe key in combating corruption, particularly at the ministerial level, is the need to ensure that the use of public funds is properly administered, and is not open to abuse or misappropriation. For years, Jordan has sought various means to help ensure this however, rather than having a comprehensive supervisory policy, the old approach was far more sector-specific, in that each ministry or governmental body would have its own specific internal rules and regulations for administering funds within that particular body, and for supervising and regulating the same. On the 18th of January 2011, the Council of Ministers, in an attempt to eliminate many of the discrepancies of the old system, and to bring the Jordanian system more in line with international auditing standards, approved the Financial Supervision Regulation No.3 of 2011. The Regulation which came into force on the 1st of May, 2011 provides for greater regulation and supervision of public spending, including the creation of various units within governmental ministries and other public departments specifically tasked with the same.\r\n\r\nFinancial Supervision Unit(s)\r\nThe Regulation provides for the establishment of a Financial Supervision Unit (“FSU”) within each governmental unit and/or department, and which shall be tasked with the prior auditing of all financial transactions relevant to its particular unit. In  doing so, the FSU aims to preserve public funds and assets entrusted to the relevant governmental unit, and ensure that they are properly used and administered.\r\n\r\nFurther, the Regulation provides that as part of its objective, the FSU shall have the following tasks:\r\n\r\n1. Review the correctness and accuracy of any constraints, documentation, accounting information and financial data\r\n2. Verify the effectiveness of any financial transaction adopted and the suitability of the same\r\n3. Protect financial resources and assets from being abused\r\n4. Ascertain the extent to which the legislation in force is complied with, in order to reduce errors and to detect the same if they occur\r\n5. Adhere to the financial policies adopted by governmental bodies and units\r\n\r\nIn particular, the FSU shall be committed to do the following:\r\n1. Prepare an annual plan for the financial audit and present the same to the competent minister or council for approval, before the end of November of each year\r\n2. To submit a monthly report and whenever the need arises, regarding its financial supervision acts, its achievements and observations, including observations that were not presented to the competent minister or council, provided that it submits an annual report similar to the competent minister during the first four months of the following year.\r\n3. Prepare a guide for financial auditing procedures, and present it to the Minister of Finance for approval.\r\n\r\nAdditionally, and once the Minister of Finance receives all relevant reports, he shall submit an annual report to the Council of Ministers summarizing the main findings of all the FSUs as outlined in their respective reports.\r\n\r\nPlease note that the Regulation assists the FSUs in performing the tasks entrusted to them, by making it a legal obligation on all official employees to assist employees of the relevant FSU, and to provide the same with any documents, records, data and/or other information which the FSU may require in order to properly perform their tasks.\r\n\r\nCentral Financial Supervision Unit\r\nIn addition to the establishment of FSUs within each governmental unit or department, the Regulation further entails the establishment of a Central Financial Supervision Unit within each Ministry which supervises the work of each FSU within its Ministry.\r\n\r\nCentral Commission for Financial Supervision Standards\r\nFinally, the Regulation provides for the establishment of a Central Commission for Financial Supervision Standards, chaired by the Secretary General of the Ministry of Finance or another such senior official, and shall have the following tasks:\r\n\r\n1. Lay the foundations and criteria for evaluating the performance of the FSUs and their achievements\r\n2. Determine the general policy related to financial supervision, and update the same\r\n3. Develop standards of financial supervision and help build institutional capacities of governmental units and departments\r\n4. Classify the FSUs\r\n5. Study the organizational and functional structure of the FSUs\r\n6. Prepare a guide of procedures for FSUs\r\n\r\nFurthermore, the Central Commission is tasked with drafting the auditing standards to be adopted and any conditions relevant to the same. The same shall be presented to the Minister of Finance, who shall present it along with his recommendations\r\nto the Council of Ministers for adoption.'),
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(79717, 4345, 'content', '<p>Al Tamimi &amp; Company&rsquo;s Jordan and Kuwait offices served as lead counsel in  the closing of an 85 million JOD Sukuk Al Ijara Mountahia Bittamlik. The  transaction, led by Khaled Saqqaf, partner and head of the Jordan and Iraq  offices, and Alex Saleh, partner and head of the Kuwait office, marks the first  ever issuance of an Islamic Sukuk in Jordan. <br /><br />The transaction, which  closed on the 1st of March, 2011, took place after the Jordanian Cabinet of  Ministers approved a number of tax exemptions for the issuance of Islamic bonds  for Al Rajhi Cement / Jordan PSC, a Shari&rsquo;a compliant company, in October 2010.  Al Tamimi &amp; Company was mandated as lead counsel to Capital Investments &ndash;  the investment arm of Capital Bank, and who acted as Lead Managers of the  transaction. Our involvement included structuring, drafting, reviewing and  implementing all transaction documentation, in addition to advising on law  aspects and security options relevant to the transaction.&nbsp; <br /><br />The  transaction involved the creation of an SPV in the Cayman Islands, with the  assistance of Cayman Law counsel, Walkers SPV Ltd, which issued the 7-year  JD85,000,000 Sukuk Al-Ijara Muntahia Bittamilik variable rate semi-annual return  due 2018, and which held and shall hold the same on trust for the Sukukholders.  The Sukuk represents ownership of certain assets purchased by the Issuer from Al  Rajhi, and leased back to it by way of a lease-to-own (Ijara Muntahia  Bittamilik) pursuant to an Ijara agreement between both parties for a period of  7 years. These Ijara Rentals received from Al Rajhi pursuant to the Ijara  Agreement shall be used by the Issuer (in his capacity as Trustee) to make  periodic payments to the Sukukholders on each periodic distribution date.</p>'),
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(79683, 4343, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nLiving in a world that is increasingly governed by the electronic nature of business and enterprise, it is paramount to the sanctity of legitimate business operations that measures are taken to ensure the continued employment of honesty and good business practices. This increasing requirement is all the more pressing when dealing in securities, particularly given the vast amounts of money that changes hands on any given day. In response to such needs, and the growing fear of potential adverse affects of criminal activity occurring in relation to the same, the Jordanian Securities Commission issued “Instructions on Anti Money Laundering and Counter Terrorist Financing in Securities Activities” (the “Instructions”) in 2010, pursuant to the provisions of Article 12 of the Securities Law Number 76 of 2002 and the provisions of Article 14 of the Anti Money Laundering and Counter Terrorist Financing Law Number 46 of 2007.\r\n\r\nThe main objectives of the Instructions are three-fold; firstly, to verify that sufficient due diligence is carried out in each and every circumstance relating to a transaction, especially where electronic transactions are employed that may cause confusion regarding the identification of the Original Beneficiary; secondly, to provide specific and more stringent guidelines regarding certain Politically Exposed Persons (as defined in the Instructions), and in particular, their financial verification; and finally, to impress upon the importance of training employees in Anti Money Laundering and Counter Terrorism Financing Laws.\r\n\r\nThe Instructions apply to all “Subject Parties”. Subject Parties are defined fairly broadly, and apply to licensed financial services companies, certain custodians, as well as to Mutual Investment Companies and Funds registered with the Securities Commission.\r\n\r\nArticle 13 of the Instructions provides that Subject Parties shall form an appropriate internal system to help employees counter money laundering and terrorist financing operations, and will include, as a minimum, details of the policies, procedures and internal controls enlisted to avoid such an eventuality. In particular, the system should include a method through which compliance with these Instructions can be monitored and verified through the assignment of independent staff within the internal audit unit. Further, in a day and age where many responsibilities are specifically designated to certain teams and positions within a corporation, fundamental yet basic information and expertise often escapes some employees; hence, in recognition of this shortcoming, Article 13 further provides for the implementation of Training Programmes of varying levels for all employees in order to increase awareness and knowledge about Anti Money Laundering and Counter Terrorist Financing Operations. This is in conjunction with Article 19 of the Instructions which requires all Subject Parties to acquaint employees with the Anti Money Laundering and Counter Terrorist Financing Laws. This in turn increases the responsibility of each and every employee to be able to identify any suspicious trend which may be construed as pertaining to Money Laundering or Terrorist Financing Operations and the ensuing reporting procedures which must be undertaken.\r\n\r\nThe Instructions further provides that the accurate identification of the Original Beneficiary is of principal importance. Pursuant to Article 4 of the Instructions, if due diligence procedures pertaining to the identity of a prospective client or the nature of his/her business activities remains inconclusive, Subject Parties must refrain from entering in to a contract with the same Client because, as Article 6 states, it is prohibited to enter into trade with anonymous persons or persons with fictitious identities or with fictitious banks and companies. As such, stringent guidelines are imposed with regard to the nature of the documentation required to authenticate the identity of the Original Beneficiary; whether they are Jordanian or non-Jordanian citizens, any legal representatives of persons of diminished capacity or third party agents of customers. Please note that when dealing with a designated legal representative, the required information also includes details of the ownership structure and controlling administration of the Client.\r\n\r\nGiven the increasing popularity of electronic transactions and even communications in their entirety, there is a discernible need that extensive measures are taken to accurately discern the identity of a prospective client and the nature of his/her intended business. This is of particular importance when dealing with clients who are citizens of countries where there are no controls or systems in place to counter money laundering and terrorist financing activities and where international controls are not applied. This, combined with the possibility of trade with Politically Exposed Persons, presents a high risk situation that requires analysis through the employment of a Risk Management System (as recommended by Article 9 of the Instructions). This system calls for the classification of each potential client, by degree of risk, that may be incurred upon association and trade with them – further requiring the verification of the source of a high risk client’s wealth in order to eradicate any doubts surrounding the legitimacy of any transaction that may occur with the client after the completion of all due diligence procedures.\r\n\r\nAdditionally, it is important to note that the practice of due diligence is not only of importance in relation to the identification of the Original Beneficiary or even of a Politically Exposed Person, but is also of paramount importance in the continued battle against money laundering and terrorist financing operations. As such, there is a continued need for extensive due diligence, both before the initiation of a transaction and throughout its duration. This requirement is fortified upon any shadow of suspicion relating to illegal practice irrespective of the value of the transaction, or if there is doubt or suspicion cast over the accuracy of data received and verified in the context of the Original Beneficiary’s identity. Further cause for due diligence may be called upon in transactions of large sums of money or if the nature of transactions of a particular client change suddenly and inexplicably. Although due diligence may be contracted to a third party, Article 10 of the Instructions states that responsibility for the accuracy and authentication of any information pertaining to the client’s identity and activities remains with the Subject Party.\r\n\r\nFinally, the Instructions provides a number of general provisions regarding the auditing and reporting standards which Subject Parties must abide by – the need to keep and preserve certain documents and records, as well as any details relating to accepting and dispensing any sums of money to and from customers.\r\n\r\nOverall, it is evident that threats of money laundering and terrorist financing operations are being taken extremely seriously in Jordan, particularly given the huge influx of foreign investment, both in the Middle East region in general and, in particular, in Jordan . Although growth and expansion are ever-invited, precautionary measures must also be enlisted to ensure the country maintains its integrity, its business practices and the institutions which reside therein.'),
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(79632, 4340, 'pageSummary', 'After Al Tamimi &amp; Company decided to open its Amman office, we quickly came to realize the great value of having our presence there, in order to both advise clients on the local laws relating to Jordan, as well as assisting the international community wanting to do business in Jordan and the region.'),
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(79636, 4340, '_yoast_wpseo_metadesc', 'After Al Tamimi & Company decided to open its Amman office, we quickly came to realize the great value of having our presence there, in order to both advise clients on the local laws relating to Jordan, as well as assisting the international community wanting to do business in Jordan and the region.'),
(79637, 4341, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nHuman thought is the most significant development of the human mind and the human mind is the source of both knowledge and the spirit of creativity.  The human mind reflects originality and highlights a person’s personality, and it is the standard that distinguishes humans from other living and non-living entities on Earth.  It also allows people to be both individuals and part of society. Accordingly, the development of any society depends largely on the degree of creative-minded citizens who, day and night, work on the development and prosperity of their communities, through what they have to offer in terms of creativity and ideas that contribute to the evolution of life in the areas of science, literature and art.  This in turn requires the provision of effective protection of their creations, which consequently reflects the continuation of this creativity and its development in serving society and its prosperity.\r\n\r\nCreators have struggled since ancient times to achieve recognition of their rights and protection for their intellectual property productions. It is human nature to try and satisfy cultural needs only once financial needs are satisfied; so that intellectual prosperity for humans has become the highest expression of their self-realization.\r\n\r\nIntellectual property (IP) enforcement has an important and effective role in the protection of creativity and in encouraging creative people, through the preservation and protection of their distinguished and creative works from infringement.\r\n\r\nIn Jordan, intellectual property is protected through an array of different legislative acts, including copyright law, trademark law, patent law, law of industrial designs, law of trade secrets and unfair competition law; as well as the related ministerial regulations and instructions. Together they help to establish a complete system of intellectual property rights.\r\n\r\nJordan’s experience in the field of trademark protection began as early as 1952, with the establishment of the first Trademark Law in Jordan. However, the first law which came to deal with modern intellectual property issues as we know them today, was the 1992 Copyright Law. Following Jordan’s accession to the Berne Convention in 1998, the Copyright Law has been amended on several occasions to ensure better compliance with international standards of protection. As for the full package of legislation, it began in 1999 coincided with Jordan’s accession to the World Trade Organization (WTO) in 2000 to become 136 th member of WTO.  In response to the Intellectual Property Organization IPO Convention, Jordan has issued all laws relating to intellectual property including the law of industrial designs, industrial designs and unfair competition.\r\n\r\nCopyright, however, remained at the forefront of intellectual property protection in the Hashemite Kingdom of Jordan for several years. In particular, the National Library has continued the efforts in the development of laws, regulations, instructions, and in line with international conventions, to create an environment which is managerially and technically able to keep pace with global developments.  One which is able to focus on the implementation of the law and respond to complaints, and the application of sanctions contained in the Copyright Protection Law of 1992, as amended, which is a modern law. Along with this, Jordan is a member of the “Berne” Convention, since 1999 and a member of the Paris Convention.\r\nIt is worth mentioning that Jordan is a member of the World Intellectual Property Organization (WIPO), which has managed intellectual property conventions since 1984. Jordan also joined the World Trade Organization (WTO) after the completion of all requirements.  The Jordanian government has issued a number of laws, regulations and instructions relating to intellectual property and passed through the constitutional stages and published in the Official Gazette. These Law are follows:\r\n<ul>\r\n 	<li>Copyright Law No. (22) for the year 1992.</li>\r\n 	<li>Patent Law No. (32) for the year 1999.</li>\r\n 	<li>Trademark Law No. (33) for the year 1952.</li>\r\n 	<li>Unfair Competition Law and Trade Secrets No. (15) for the year 2000.</li>\r\n 	<li>Goods Marks Law No. (19) for the year 1953.</li>\r\n 	<li>Industrial Designs and Models Law No. (14) for the year 2000</li>\r\n 	<li>Integrated circuits Law No. (10) for the year 2000</li>\r\n 	<li>Geographical Indications Law No. (8) for the year 2000.</li>\r\n 	<li>Law for the Protection of New Varieties of Plants No (24) for the years 2000</li>\r\n</ul>\r\nThe Hashemite Kingdom of Jordan has observed the importance of intellectual property for a significant period. Given the importance of intellectual property to the country’s economy, Jordan signed several international conventions for the protection of these rights and to implement the IP Laws to the point where an investor feels confident to invest in Jordan.  The Government is working very hard on this issue, especially with regards to Trademark registration and copyright and as a firm with a great strength in this area, we look forward to contributing to the work being done.'),
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(79660, 4342, 'content', '<p>Recent years have seen a significant increase in the issue of securities in  Jordan; particularly in the bond market, as there seems to be a growing need for  such investment instruments due to the rising costs of borrowing. This article  provides an overview of the legal requirements for the issue and offering of  securities in Jordan. <br /><br /><strong>The basic rule for the issuance of  securities </strong><br />Every issuer in Jordan shall submit to the Securities  Commission an application for registering securities. The Securities Commission  has the right to reject the registration and issue of any securities if such  issue risks causing damage to the owners of the securities of that issuer or to  the investors in general. <br /><br /><strong>The “Issuer”</strong><br />According to  the Securities Law No. 76 of 2002 (the “Securities Law”), any legal person  issuing or announcing the intention to issue securities is considered as an  “Issuer”. <br /><br /><strong>Securities under the Securities Law </strong><br />The  Securities Law defines securities broadly, as any ownership rights or any  instruments local or foreign that are commonly recognized as securities and  considered as such by the Board of Commissioners of the Securities Commission.  The Securities Law includes the following, in particular, under the definition  of securities: <br /><br />1. Transferable and tradable company shares;</p>\r\n<p>2. Bonds issued by companies;</p>\r\n<p>3. Securities issued by the Government, official public institutions, public  institutions, or municipalities;</p>\r\n<p>4. Securities depository receipts;</p>\r\n<p>5. Shares and investment units of mutual funds;</p>\r\n<p>6. Equity option bonds;</p>\r\n<p>7. Spot contracts and forward contracts; and</p>\r\n<p>8. Put and call option contracts.</p>\r\n<p><strong>What is the procedure to offer securities?  </strong><br />The  procedure will depend on whether the issuer wishes to offer to sell securities,  after registering them at the Securities Commission, through a public or a  private offer. The following will touch upon the definition and legal  requirements of both types of offering securities:   <br /> <br /><strong>1. Public  Offer</strong><br />The public offer is the offer to sell securities to more than  thirty persons. <br />Legal requirements for a public offer:<br /><br />The Securities  Law provides that no person shall make a public offer unless a prospectus is  filed with the Securities Commission, together with all the information and data  which enables investors to make their investment decision. An announcement  approved by the Securities Commission of the prospectus shall be made public  through two local daily newspapers. <br /><br />The prospectus must be prepared by a  licensed underwriter and, for disclosure purposes, shall include copies of the  following:</p>\r\n<p>1. Any agreement or agreements concluded with the underwriter;</p>\r\n<p>2. A legal opinion in respect to the legality of the issue;</p>\r\n<p>3. The issuer’s Memorandum of Association if the issuer is a public  shareholding company or a private shareholding company, and a copy of its  articles of association and any other documents relevant to the company;</p>\r\n<p>4. If the issuer is a limited liability company, the documents pursuant to  which the company was established or declared;</p>\r\n<p>5. If the Issuer is a partnership or any other form of organization, the  articles of partnership or association and any other papers pertaining to its  organization, and a copy of the underlying agreements or indentures affecting  any stock, bonds, or debentures offered or to be offered;</p>\r\n<p>6. All contracts that contain substantial facts; and</p>\r\n<p>7. The agreements concluded between the issuer, the payment agent, and the  custodian of the securities subject to the offer.</p>\r\n<p>The prospectus is deemed to be effective thirty days after its submission to  the Securities Commission.</p>\r\n<p><strong>Exceptions:</strong><br />It is worth mentioning that the Securities  Commission may grant exemptions from submitting a prospectus in any of the  following cases:</p>\r\n<p>a) If the number of investors, to which the public offer is made, is limited,  and the investors are capable of assessing and bearing the investment risks  (sophisticated investors); or</p>\r\n<p>b) If the funds intended to be raised by the offer are limited; or</p>\r\n<p>c) If the disclosure submitted to the investors is accurate and sufficient to  be considered as a substitute for the prospectus.</p>\r\n<p><strong>2. Private Offer </strong><br />The private offer is the offer to sell  securities to thirty persons or less.</p>\r\n<p>Legal requirements for a private offer: The Securities Law does not require  issuers offering securities through a private offer to submit a prospectus,  however the relevant directives provide that the issuer must submit all the  documents relating to the issue of securities including the required approvals  and decisions; therefore, in practice underwriters prepare an information  memorandum, that serves as a prospectus; disclosing to the investors all needed  information that would help making their decision.<br /><br />The relevant  directives also provide that an issuer offering securities through a private  offer must announce such offer in two local daily newspapers at least twice, and  include the data and information relating to the issue, the value of the issue  and the parties to whom the offer is made. <br /><br /><strong>Penalties for  violating the Securities Law</strong><br />Offering to sell securities upon false  or misleading information is a violation of the Securities Law. Penalties for  violating The Securities Law range from a fine not exceeding one hundred  thousand (100,000) Jordanian Dinars, in addition to a fine of not less than  twice the amount, and not more than five times the amount, of profit made or  loss avoided by the person committing the violation. Certain violations may also  result in imprisonment for a term not exceeding three years.  The penalties also  include the right of any investor who incurs financial loss as a result of the  violation to claim remedies for damages from the seller or the issuer violating  the Securities Law.</p>'),
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(79626, 4340, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nAfter Al Tamimi &amp; Company decided to open its Amman office, we quickly came to realize the great value of having our presence there, in order to both advise clients on the local laws relating to Jordan, as well as assisting the international community wanting to do business in Jordan and the region.   Al Tamimi has found great success with the office in Jordan having a team well rounded in various areas of law.\r\n\r\nJordan, also known as the Hashemite Kingdom of Jordan, is a place known for its world history and culture. It is nicely situated, bordering 4 countries, with 6.5 MM people, a port access in the South of the country and consists of 89,342 square kilometers.\r\n\r\nJordan’s economy is among the smallest in the Middle East, although the Jordanian Dinar remains pegged with the USD (1 JOD is approximately equal to 1.41 USD). This coupled with the underlying government’s heavy reliance on foreign assistance has created some challenges for the Jordanian economy.\r\n\r\nSince assuming the throne in 1999, the King has implemented significant economic reforms, such as opening the trade regime, implementing a number of privatization policies, and ensuring greater regulation of the monetary framework in Jordan, which in the past few years have spurred economic growth by attracting foreign investment and creating some jobs. The global economic slowdown, however, has depressed Jordan’s GDP growth.\r\n\r\nThe Government approved two supplementary budgets in 2010, but sweeping tax cuts planned for 2010 did not materialize because of Amman’s need for additional revenue to cover excess spending. The budget deficit is likely to remain high, at 5-6% of GDP, and Amman will likely continue to depend heavily on foreign assistance to finance the deficit in 2011. Jordan’s financial sector has been relatively isolated from the international financial crisis because of its limited exposure to overseas capital markets.\r\n\r\n<strong>AL TAMIMI &amp; COMPANY –JORDAN OFFICE</strong>\r\n\r\nBanking and Finance\r\nOur banking practice provides a comprehensive range of banking and finance services and our lawyers, who have extensive experience in all areas of banking and finance, including advising on a number of debt issues, as well as leading on drafting and implementation of some of the most complex corporate financing projects and arrangements, both locally and in the region, are specialists in their area of practice and fully conversant with all aspects of the banking and finance law.\r\n\r\nThe firm represents a syndicate of banks in Jordan, both national and international, advising them on all aspects of the practice of banking and finance law, from commercial matters to the restructuring and refinancing of debt.  We provide advice on banking regulation and supervision throughout the Gulf region, the underwriting and syndication of loans, capital markets, securitization, debt recovery, foreign exchange contracts, equipment leasing, secured commercial lending, financing arrangements for foreign trade, project, infrastructure and corporate finance.\r\n\r\n<strong>Debt Restructuring</strong>\r\nAl Tamimi &amp; Company are one of the leading law firms in Jordan involved with the restructuring, refinancing and rescheduling of conventional and Islamic debt.  Our debt restructuring assistance has been centered around Jordanian investment companies and we have acted as legal counsel for major local and international creditors as well as debtors in large debt restructuring and refinancing transactions.\r\n\r\nOur team has led in the drafting and negotiation of numerous debt restructuring instruments, including standstill agreements, multi-tranche conventional and Islamic facility agreements and all aspects of bond issue restructuring, to name a few.\r\n\r\nIn addition to this, our lawyers have drafted a wide array of security documents in English and Arabic that have successfully obtained all requisite Jordan Ministry approvals. Typically, the majority of assets of Jordan investment companies are either securities or real estate. Therefore, our vast knowledge of Jordan’s securities and custodian portfolio laws as well as of mortgage laws allow us to provide detailed advice and implementation of the necessary security instruments that are involved in many secured restructuring/refinancing transactions. Moreover, our legal professionals have been intimately involved in assisting and directing the securitisation of assets in connection with debt restructuring transactions in multiple GCC and MENA region jurisdictions, including the involvement our various Al Tamimi &amp; Company offices throughout these regions.\r\n\r\nFinally, our team is one of the only legal service providers to guide, structure, draft and implement both conventional and Islamic debt restructuring transactions within Jordan from start to finish.\r\n\r\n<strong>Islamic Finance</strong>\r\nAl Tamimi &amp; Company has an unrivalled reputation in Islamic Finance documentation across the region and in Jordan we are no different. We are proud to have been a pioneer in developing -Shari’a compliant documentation.\r\n\r\nThe team has drafted and advised on Islamic finance retail and commercial products for many of the regions banks.  It has a thorough knowledge of Shari’a ’ira principles and current approaches to Shari’a  compliance in each jurisdiction in the region.\r\n\r\nOur lawyers have also advised and drafted Islamic compliant finance documents for project, corporate and commercial finance transactions as well as Sukuk issues, including the first ever Sukuk to be issued in Jordan.\r\n\r\nOur approach is to project manage the transaction by involving the Shari’a    board at an early stage which reduces the extent of amendments required by the board.  We also ensure, as far as possible, that common provisions in the proposed documents are settled and translated in an initial document so that they can be reproduced without subsequent extensive edits.\r\n\r\nOur office proudly took part in the first ever Sukuk to be offered in Jordan.  The Al Tamimi teams joined our regional knowledge to successfully execute this milestone.\r\n\r\n<strong>Commercial Agencies, Distributorships &amp; Franchises</strong>\r\nMany foreign companies seek to conduct business in Jordan through the use of commercial agents and/or distributors. The laws of Jordan have evolved to protect local entities in their relationships with their foreign principals. In addition, other local pitfalls involving taxation and trademark issues may affect foreign investors wishing to do business here. Our Jordan office has extensive experience in advising these principals with respect to all of these matters. Our practice in this area includes drafting and negotiating the agency/ distributorship arrangements between the parties, minimizing the advantages that the Jordanian laws give to protect local entities, ensuring that little or no taxation results from the transactions and taking steps to protect the brand names of the foreign principals.  We can offer practical advice to structure franchise relationships based upon contemporary law.\r\n\r\n<strong>Corporate and M&amp;A</strong>\r\nAl Tamimi &amp; Company’s corporate commercial practice is the largest and most comprehensive in the Arabian Gulf. The practice operates from offices in Dubai, Abu Dhabi, Riyadh, Doha, Amman and Kuwait and has more than 50 corporate lawyers.\r\n\r\nHere, in Jordan, our lawyers are experienced in advising clients on the proper formation of joint ventures, call types of companies, as well as the establishment of branch and representative offices of foreign companies. Further, we have particular experience in designing and implementing corporate structures and business activity licensing rules throughout the country, as well as advising as to the most advantageous structure for each client and venture.\r\n\r\nIn the mergers and acquisitions sphere, some of the largest global conglomerates and significant GCC corporations active across the region entrust their mergers and acquisitions work in the Arabian Gulf to Al Tamimi &amp; Company.\r\n\r\nOur network of offices in the Arabian Gulf &amp; MENA has enhanced our firm’s role in the cross-border mergers and acquisitions market, with our offices in Dubai, Abu Dhabi, Riyadh, Doha, Baghdad, Amman and Kuwait City delivering genuine cross-border capabilities in the Middle East\r\n\r\n<strong>Commercial Litigation &amp; Arbitration</strong>\r\nGiven our knowledge of and experience in the local courts, we handle major commercial matters in Jordan on behalf of both local and foreign clients. As a result of our bilingual skills and both western and eastern legal expertise, the combination of our Western educated counsel and local Jordanian litigators has produced a strong team that foreign-based companies prefer to engage when litigation becomes necessary.\r\n\r\nIn addition, we have developed a strong reputation for arbitration both in Jordan and abroad. Our lawyers have a successful track record in arbitrating under both local Jordan arbitration rules as well as more well-known international arbitrations rules such as the International Chamber of Commerce Arbitration Rules and the UNICTRAL Arbitration Rules.\r\n\r\n<strong>Taxation</strong>\r\nOur extensive local knowledge regarding taxes and other fees applicable to any commercial transaction or corporate structure means that we regularly advise clients, both local and international, on the most advantageous structuring options available to them from a tax prospective, as well as on assisting them in obtaining any tax exemptions or other privileges, which they may benefit from.\r\n\r\nWhere a matter involves technical or complex tax issues, we regularly liaise with accredited international auditors registered in Jordan, in order to provide our clients with best possible advice regarding any commercial matter.\r\n\r\n<strong>Information Technology</strong>\r\nOur Information Technology practice focuses on e-business, e-government, data protection, and internet, software and computer law.\r\n\r\nWe advise on all legal aspects of technology transfer, including issues relating to commercial and licensing laws, e-contracting, privacy and data protection, domain name registration and cyber-squatting, software protection, digital signatures and certificates, and website design, development and hosting.\r\n\r\nWe are perfectly positioned to assist clients with the negotiation, drafting, outsourcing and enforcement of IT contracts including tendering and the acquisition of hardware, software and network services, licensing, development and transfer agreements, web-based services (including Internet advertising, online contracting, disclaimers and privacy policies), turnkey agreements, project management and transformation initiatives.\r\n\r\nClients come to us to ensure they are best positioned to extract maximum value from technology-based projects. We advise on risk management and the commercialization of ideas and technology including distribution rights, non-disclosure and confidentiality agreements, and international exploitation arrangements.\r\n\r\n<strong>Construction</strong>\r\nAl Tamimi’s Construction and Engineering team is commercially focussed and internationally experienced.\r\n\r\nOur team provides legal expertise and practical solutions to our clients, based on a broad understanding of the commercial and legal principles facilitating and promoting the performance and completion of infrastructure, construction and engineering projects in the Middle East.\r\n\r\nOur experience with energy and infrastructure projects is wide, having worked on some of the region’s largest projects.\r\n\r\nAl Tamimi offers end to end legal expertise from procurement, contracting and delivery, to dispute minimisation and resolution. Working closely with our clients, we gain a broad understanding of the commercial objectives impacting on the project and we ensure that the most suitable procurement strategy is in place at the outset of the project along with a fully integrated project management process. In our experience, the development of a procurement and management strategy which best fits the commercial requirements of our clients has a far greater likelihood of producing and delivering a completed project which meets, if not exceeds, stakeholders’ expectations.\r\n\r\n<strong>Our Team </strong>\r\nOur team of lawyers in Jordan has a formidable set of local and international credentials.  It is this combination of talent and experience that enables us to advise clients from both a commercially viable and strategic perspective.  In addition to the skills and capabilities of our locally based practitioners, we offer our clients our broader attributes and strengths.\r\n\r\n<strong>Local strength with a regional reach</strong>\r\nWe have one of the largest corporate practices in the Middle East.  Combined with our team across our regional offices, we provide a unique level of support, both locally and internationally for our clients.\r\n\r\n<strong>Local, regional &amp; international experience</strong>\r\nOur team includes lawyers with substantial experience in Jordan and the regional Middle East markets combined with team members who bring the best of international experience to the region.\r\n\r\nFor more information on how we can assist you please contact Khaled Saqqaf, Partner and Head of Jordan &amp; Iraq Offices via email at: <a href=\"mailto:k.saqqaf@tamimi.com\">k.saqqaf@tamimi.com</a>\r\n\r\nOur office is located at:\r\nAl Tamimi &amp; Company\r\n6th Circle, Emaar Towers\r\n11th Floor, Tower A\r\nPO Box 18055, Zip 11195\r\n\r\nTel: +962 6 577 7415\r\nFax: +962 6 577 7425\r\n\r\nPhoto Captions:\r\nFrom left to right their names are as follows: Zaid Al Syouf, Dana Abduljaleel, Abdallah Al Fraihat, Samer Al Zuriekat, Khaled Saqqaf, Alaa Al Rawashdeh, Zeinah Al Nabih'),
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(79607, 4339, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\n<strong>Administrative contracts : a complex definition </strong>\r\nAdministrative contracts are contracts where one of the parties is a public person. They are examined by the Administrative Court. Administrative contracts are qualified as such either by virtue of a specific legal attribution, or because they concern a public service or contain a highly unusual clause (clause exorbitante).\r\n\r\nIn order for a contract to be considered as an “administrative” one, it must fulfill the following conditions:\r\n\r\n1. One of the parties thereto must be a public authority.\r\n\r\n2. The administrative judicial authorities must have jurisdiction to look into such contracts.\r\n\r\n3. It must be related to a public service or be classified by the law as an administrative contract.\r\n\r\n4. It must include an “onerous” clause or condition from the public law.\r\n\r\nFrom the Book of Legal Vocabulary by Mr. Gerard Cornu, Henri Capitant Association\r\n\r\nWhen a contract is considered as administrative contract ? From the Book of Legal Vocabulary by Mr. Gerard Cornu,  Henri Capitant Association\r\n\r\n<strong>I) Certain contracts are administrative by law</strong>\r\nA certain category of contracts may be defined as administrative by law. The contracts allowing a private entity to occupy the public domain, for example, allowing a café to include part of a sidewalk to sit customers, is considered as an administrative contract.\r\n\r\nAccording to Dr. René Chapus, the definition of administrative contracts by law leads to confusion in relation to the definition of an administrative contract by its final objective, since the law simply confirms what it may already be defined with regard to the final objective.\r\n\r\nDr. Yousef Saadallah El-Khoury, in his book on public administrative law entitled “Distinction between administrative contracts and civil contracts entered into by public administrations”, states the following:\r\n\r\nIt is important to distinguish between an administrative contract and a civil contract in terms of judicial competence and in terms of the applicable law.\r\n\r\nThe said distinction may be made by the law such as when the legal provision stipulates that the reference to settle the subject of the decision is the administrative judicial authority, then, the legislator will classify the said contract as an administrative one.\r\n\r\nThis is illustrated, for example, when the law grants the administrative judicial authorities the competence to look into cases related to administrative contracts, transactions, liabilities or privileges, entered into by a public administration, or by departments of the parliament to ensure the progress of a public interest. A second example is the case when the law grants the said authorities the competence to look into a public works contract, or a contract for the sale of the State’s immovable property and contracts for public property occupancy. (This is the case in Lebanon). Another example is when the law grants the administrative judicial authority the competence to look into conflicts on municipality fees (This example is based on France);\r\n\r\n<strong>II) Certain contracts are administrative according to the judge</strong>\r\n\r\nIndeed, the judge may decide that a contract is administrative, if the contract fulfills certain conditions:\r\n<ul>\r\n 	<li>One of the parties is a public entity;</li>\r\n 	<li>Its subject or object is to ensure a public facility or a public interest;</li>\r\n 	<li>It includes clauses that are unusual in comparison to what is customary in the civil law.</li>\r\n</ul>\r\nIn practice, a public entity may contract with another public entity, or with a private individual, pursuant to a contract with a description, or object or conditions indicating that it is an ordinary civil or commercial contract and not an administrative one.\r\n\r\n<strong>Such as for example:</strong>\r\na. Tenancy or lease contracts whether entered into with a public or private entity are not administrative contracts;\r\n\r\nb. Legal consultancy contracts or granting a power of attorney to a lawyer are not administrative contracts.\r\n\r\nIn French administrative law, the judges qualify a contract as an administrative one, with regard to two cumulative criteria, one regarding the contracting entity (a personal criteria) and one regarding the contract’s content (a material criteria).\r\n\r\n<strong>The personal criteria: </strong>\r\nIn principle, a contract is administrative if one of the contracting party is a public entity.\r\n\r\nIn the case where both the contracting parties are public entities, precedents have confirmed the existence of a “presumption of administrative quality” (Tribunal des Conflits, Union des Assurances de Paris, 1983). This presumption may be overturned if the contract does nothing other but create private engagements that have no relation with public interest.\r\n\r\nA contract between two private contracting parties is generally a private law contract, even if one of the private contracting parties is in charge of the execution of a public service. However, in one of the cases, the administrative judge applied the criteria regarding a representation mandate, which led to qualify such a contract as an administrative contract, on the basis that one of the parties acts for a public entity (Conseil d’état, Société Brossette, 1931).\r\n\r\n<strong>The material criteria:</strong>\r\nThis criteria is based on two alternative conditions:\r\n<ul>\r\n 	<li>The object of the contract: A contract is administrative if it is related to the organization or the execution of a public service (Conseil d’état, Epoux Bertin, 1956). As an example, this is the case for contracts with users of a public service.</li>\r\n 	<li>The clauses or the regime: A contract is administrative if its clauses or general regime eliminate the traditional contract law.</li>\r\n</ul>\r\nAlso, the contract is deemed as an administrative one –according to the French jurisprudence- if it includes a clause or several clauses granting the administrative entity rights that are different in nature or substance to those which would be accepted by a person of his own free will and accord within the frame of the civil or commercial laws, such as for example:\r\n\r\na. The possibility to confiscate the goods that are not in conformity with the conditions agreed upon;\r\n\r\nb. Referring the clauses to provisions according to the conditions;\r\n\r\nc. Imposing a guarantee or bond on the party contracting with the administration;\r\n\r\nd. Considering the contractor as having failed to carry out his obligations and confiscating the bond;\r\n\r\ne. Re-awarding the work to another person at the expense of the relevant contractor.\r\n\r\nIn some cases the public administration establishes the private law rules in its contracts, and then we consider it withdraws the relevant contracts from the description of administrative contracts.\r\n\r\nThe jurisprudence in France, Egypt and Lebanon considers a contract as administrative if its subject or object is the execution of a public facility, such as the execution of public works (roads, bridges, and tunnels), and contracts including an undertaking to collect the municipal fees.\r\n\r\n<strong>Contracts with Highly Unusual (clause exorbitante) provisions/clauses(under the French Law): </strong>\r\nDefinition based on the effect: Such clauses allow the “granting of rights to the parties or charge them with obligations of foreign nature to those obligations which are freely agreed to generally by any person within the framework of civil and commercial laws” (State Council, 20 October 1950, Stein).\r\n<strong>Definition based on the content: </strong>\r\n\r\n1. The possibility for the contracting authority to terminate the contract. Disputes Court 1967, the Velodrome Company of Parc des Princes, but not in case of non-performance of certain obligations, Disputes Court 1970, Comblanchien Town;\r\n\r\n2. The possibility for the contracting authority to direct, supervise or monitor the execution of the contract. Agricultural Cooperative “Farmer Prosperity, State Council, 1963;\r\n\r\n3. The possibility for the party contracting with the government to directly deduct taxes. But this is not the case if it is the administration that carries out such deduction on behalf of the said contracting party. State Council, 1986, SA of credit to the French Industry (CALIF);\r\n\r\n<strong>In conclusion, we note the following turnarounds: </strong>\r\n\r\n1. The issue of exorbitant regime in the common law has affected public work contracts. Some have wanted to confer this description due to the mere existence of specifications. But generally the State Council refuses to grant an administrative character to contracts referring to specifications and do not include highly unusual provisions. Disputes Court, 1999, General Procurement Groups Union;\r\n\r\n2. Some have considered that the special arrangements for the award of general procurement contracts is not sufficient to make them administrative contracts. State Council, 1990, Town of Sauve;\r\n\r\n3. The law ended the debate opened and stated that:\r\n“Contracts awarded under the General Procurement Code have the nature of administrative contracts” (Article 2 of the Law of December 11, 2001, known as the “MURCEF” Law);\r\n\r\n4. Turnaround in the jurisprudence: “A contract to supply stones for paving a public place, like the contract to supply blocks in the “Porphyritic granite Affair” has been hence recognized as an administrative contract (Commentary of a verdict issued by the Court of Appeals of Bordeaux, 14 September 2004)\r\n\r\n5. Contracts entered into by public entities sometimes are not subject to the General Procurement Code, such as contracts of public industrial and commercial establishments of the State, remain subject to the common law unless they refer to the highly unusual clauses; But such provisions are not conclusive when the contract is entered into with their agents or users. See GAJA (Great Verdicts of Administrative Jurisprudence), 16th Edition, 2007, pages 158/159;\r\n<ul>\r\n 	<li>In general, the regime of common law is assessed on the basis of an “atmosphere of public law” (P. Weil, The criterion of administrative contract in crisis, Mélanges Waline, p.847). Therefore, the contract is governed by rules from a legislative and / or regulatory provision, applicable regardless of the will of the parties, and derogating from the common law.</li>\r\n</ul>\r\nIn all cases, in order to consider the Administrative contract valid, the contracting parties must fulfill the same conditions stipulated in the Civil Law (Civil Transactions Code in the UAE), such as the capacity, age, majority, etc.\r\n\r\nAdded to this the legal capacity related to the position of the contracting party and whether he has the right to enter into such a contract or not according to the laws in force.\r\n\r\nSo, any contract entered into by a person who does not have the capacity or is not qualified to do so shall be considered invalid. Administrative contracts must be made in writing while civil contracts are not subject to this condition. The same condition applies to tenders and auctions unless the law stipulates otherwise.\r\n\r\n<strong>III) The execution of administrative contracts</strong>\r\n\r\nAs the base for the relationship between the Administration and a contracting party, the Administrative contract, and particularly its execution present some differences with regards to a classic everyday contract between two individuals. The Administration naturally benefits from certain powers that are not applicable to non public contracting party. These powers are:\r\n\r\n1. The power of direction and control: the administration can give specific service orders concerning the execution of the contracting party’s obligations.\r\n\r\n2. The power to “edict” sanctions: the administration may sanction the contracting party in the event of lateness or bad execution by this contracting party. The sanctions range from fines to other measures. In the event that the administration court finds the sanction to be irregular, the Administration will have to compensate the contracting party.\r\n\r\n3. The power of unilateral termination: This power may be used as a form of sanction. It is unilaterally pronounced by the administration in the event of a grave fault on the part of the contracting party, and under the condition of eventual compensation. However, the termination may also take place without the occurrence of a fault.\r\n\r\n4. The power of unilateral modification: This power was a controversial issue, much debated in France, until a final position regarding this power was fixed. In 1902, the administrative judge decided that the administration may change the lighting service from electricity to gas, thus forcing the contracting party to adapt.\r\n\r\nOn the other hand, the public administration may, during the execution of an administrative contract, control its execution, and it may as well bring modifications to the contract whenever it deems that the public interest so requires, but within specific limits only, as it may not bring amendments to the clauses related to the financial conditions agreed to with the other contracting party, or require the introduction of unreasonable or unlimited amendments. Moreover, it is not permissible to change the contract from a road construction contract to a bridge construction contract!!!\r\n\r\nHowever, if a transport contract provides for the operation of one hundred buses for example and the administration finds out that the public interest requires that this number be increased, it may impose the increase on the contractor, and also if the administration deems that it would serve better the public interest to modernize the means of gas transport and supply to the beneficiaries or the transport of electricity and water or the means of communications and internet.\r\n\r\nIt is necessary to indicate that each order issued by the administration to the contractor to execute any additional obligation beyond what is stipulated in the contract, requires that the administration indemnifies the contractor in a fair manner for all expenses incurred in the additional execution and the administrative judicial authorities have the right to order such indemnity.\r\n\r\nIn view of the foregoing, the rights of a contracting party towards the administration may be summarized as follows:\r\n<ul>\r\n 	<li>To receive the price agreed upon within the deadlines agreed upon;</li>\r\n 	<li>To receive the indemnities due in case of any modifications brought and which result in cost increase in the contract.</li>\r\n 	<li>To take into consideration all incidental events, force majeure and new developments.</li>\r\n</ul>'),
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(79584, 4338, 'content', 'May 2011\r\n\r\n<hr />\r\n\r\nIn the Free on Board contract “FOB”, the seller’s duty is to ensure that the goods confirming to the contract are put onboard the vessel nominated by the buyer at the port of loading by the date or within the shipment period stipulated in the contract, and that the buyer is furnished with such documents as will to enable him to take delivery from the carrier. The buyer for his part must procure space on the vessel and nominate to the seller in sufficient time to enable the seller to dispatch the goods to the docks and have them shipped on board the vessel.\r\n\r\nThe FOB contract imposes many duties upon the buyer. This article will briefly examine one duty which is the nomination of the vessel including the buyer’s ability to nominate a substitute vessel.\r\n\r\nThe nomination of the vessel duty is very crucial under the FOB contract because it is a condition precedent to the obligation of the seller to load the goods. Therefore, if the buyer does not nominate a vessel within the stipulated time, the buyer is then in breach of the contract and the seller will be accordingly entitled for damages.\r\n\r\nThe time of nomination is of the essence, and failure to nominate within this entitles the seller to treat the contract as repudiated and claim damages. It is the duty of the FOB buyer to procure a space on a vessel suitable for the purchased goods and advise the seller with the same. The buyer must advise the seller with the vessel name, particulars and the date of arrival to the port of loading. The buyer must also have agreed with the carrier on an appropriate loading time suitable for the purchased goods and coherent with the loading circumstances at the relevant port of loading. Of course, the nomination must be capable of proving effective and must not be artificial.\r\n\r\nUnless stated otherwise in the contract and the nature of the cargo permits it, the buyer is entitled to make a substitute nomination in due time and the substitute vessel proves to be an effective vessel. However, the substitute nomination must itself be contractually valid. In addition to this, the original nomination remains contractually binding if the substitute nomination proves ineffective. As consequence, the buyer can rely on the events of frustration or force majeure to nominate a substitute vessel and to vary his liabilities as per the contract.\r\n\r\nThe FOB contract buyer may usually nominate a new vessel on many grounds, for instance, the vessel originally nominated will not be able to receive the goods due to a breakdown. Such nomination should be of course, a valid nomination. The buyer will be responsible towards the seller for any extra cost incurred by the seller due to the new nomination. On the other hand, it could be argued that the buyer is not entitled to make a substitute only where he has made some representation, express or implied that he will not exercise his right of substitution and the seller has acted in reliance on such representation.'),
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(79561, 4337, 'content', '<p>In 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.&nbsp; Since the Fujairah Court&rsquo;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.<br /><br />This 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. <br /><br />Although 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&rsquo;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.&nbsp; 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.&nbsp; The parties were respectively a  Free Zone entity and a Limited Liability Company both from Dubai.&nbsp; 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.<br /><br />The application by the Plaintiff to the Dubai Court to  &ldquo;ratify&rdquo; or &ldquo;confirm&rdquo; the Award and to uphold a provisional attachment order as  valid and enforceable against the Defendant was challenged on a number of  grounds.&nbsp; Thus, the Court was called upon to deal with the Defendant&rsquo;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.&nbsp; <br /><br />The  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.<br />In rejecting the Defendant&rsquo;s submissions, the Court reasoned  that the Articles of the Civil Procedure Law prescribing &ldquo;validation&rdquo; of  domestic arbitral awards and those otherwise issued in the UAE did not apply.&nbsp;  Instead the applicable rules were those set out in the New York Convention  itself regarding the recognition and enforcement of foreign awards.<br /><br />The  parties had agreed to apply DIFC-LCIA Rules which were thereby deemed  incorporated as terms of the arbitration agreement.&nbsp; The Dubai Court held: &ldquo;The  Court&rsquo;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&rdquo;.&nbsp; <br /><br />In short, the Court stated that it  would not entertain a review of the merits of the Arbitrator&rsquo;s decision  (including her decision as to her jurisdiction in light of the arguments raised  by the Defendant during the course of the arbitration).&nbsp; 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.<br /><br />Despite all of the Defendant&rsquo;s allegations regarding the  invalidity of and indeed potential forgery of signatures on the original  contract, the alleged lack of authority of the contract&rsquo;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.&nbsp; 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.&nbsp; The  Court ruled that it had no jurisdiction to hear the Defendant&rsquo;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.<br /><br />The 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.&nbsp; <br /><br />These 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.&nbsp; These cumbersome protectionist procedures are precisely what the New  York Convention was designed to overcome.<br /><br />Contrary to some early  published UNCITRAL treaty status reports, the UAE did not make any reservations  under Article I (3) to the effect that:&nbsp; &ldquo;This State will apply the Convention  only to recognise and enforce awards made in the territory of another  contracting State.&rdquo;&nbsp;&nbsp;<br /><br />This 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.&nbsp; The United Nations has  since confirmed not and recently amended and updated its treaty status report to  correct the error.&nbsp; <br />&nbsp;<br />On this basis, the provisions of the UAE Law on  Civil Procedure regarding recognition of foreign arbitral awards arguably have  been rendered obsolete.&nbsp; 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].<br /><br />Fate of Future Awards -  Choppy Waters Predicted<br />The 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.<br /><br />Nevertheless, a Court may still refuse to  enforce a foreign arbitral award if an opposing party proves:</p>\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\n<p>Also, a Court in the UAE may refuse to enforce the award if it decides  that:</p>\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\n<p>Given the UAE&rsquo;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.&nbsp; <br /><br />It 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.</p>'),
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(79539, 4335, '_yoast_wpseo_metadesc', 'Creation of securities in the DIFC is governed by the Law of Security - DIFC LAW No. 8 of 2005 (“Security Law”) & DIFC Security Regulations (“Security Regulations”), which also govern the registration and enforcement of securities in the DIFC.'),
(79540, 4336, 'content', '<p>The Agency Law (Federal Law no. 18 of 1981) as amended by Federal Law no. 2  of 2010 is the law regulating commercial agencies in the UAE. The new amendment  incorporated in Federal Law no. 2 of 2010 re-instated the Commercial Agency  Committee (&ldquo;The Committee&rdquo;); however it took some time before the Committee  became operational.<br /><br />Nowadays and in 10 April 2011, H.H Mohammad Bin  Rashid Al Maktoum, the Vice President of the UAE and Ruler of Dubai issued  Decree No. 3 of 2011 (&ldquo;The Decree&rdquo;) Establishing the Committee of Commercial  Agency and its role is to review any dispute pertaining to any commercial agency  registered with the Ministry of Economy.<br /><br />This article will address the  establishment of this Committee, procedures to be followed before the committee  in the event of disputes regarding termination, de-registration of an agency  agreement and time prescribed to challenge the Committee&rsquo;s decision before the  courts. In the next edition of the Law Update we will address some noteworthy  and important issues which arise as a result of the creation of the  Committee<br /><br /><strong>Establishment, membership and meetings of the  Committee:</strong><br />According to The Decree, the Committee shall be chaired  by the Director General of the Ministry of Economy and shall be comprised of the  following members: Executive Director of Commercial Affairs at the Ministry,  Undersecretary of the Department of Economic Development in Abu Dhabi, Director  General of the Dubai Chamber of Commerce &amp; Industry, a member of the Board  of Directors of the Sharjah Chamber of Commerce &amp; Industry to be nominated  by the Chamber, a representative of the Department of Legal Affairs at the  Ministry of Economy and the Director of the Agencies Department at the Ministry  or other person deputizing for him as member and  &lsquo;rapporteur&rsquo;.<br /><br /><strong>According to The Decree a member shall cease to  serve on the Committee in one the following case:</strong></p>\r\n<ul>\r\n<li>he is absent for 3 consecutive meetings of the Committee without an excuse  acceptable to the Chairman of the Committee;</li>\r\n<li>his service terminates for the office he holds;</li>\r\n<li>death or illness prevents him from performing his duties,</li>\r\n<li>he is convicted of a crime involving breach of honor or trust or he is  removed by a decision from the Cabinet.</li>\r\n</ul>\r\n<p>Furthermore, the Decree states that should, for any reason, a member&rsquo;s seat  becomes vacant or his membership terminate, the Minister of Economy shall  nominate a replacement taking into account the member&rsquo;s official title, in  coordination with the body he used to represent and shall submit the matter to  the Cabinet for approval. <br /><br />The Decree further states that the Committee  shall meet upon the Chairman or Vice-chairman&rsquo;s invitation. The invitation shall  state the time and place of the meeting and shall be in writing. However, the  Decree permits at the discretion of the Chairman or Vice-Chairman to invite  Committee members by any other means of communication. The required quorum for  the Committee meeting shall be the majority of its members, including the  Chairman or Vice-Chairman.<br /><br />The Committee shall issue its decisions by  majority vote of members attending the meeting. In case votes are equal, the  Chairman shall have the casting vote. Voting may not be done by proxy or  correspondence<br /><br /><strong>Filing an application before the  Committee</strong><br />The Decree sets out the procedure for filing and recording  applications which are filed with the Committee.<br /><br />According to the Decree  any Application (standard form approved by the Committee) to be filed with the  Committee shall be filed directly with the rapporteur. The application shall  include the following documents and particulars:</p>\r\n<ul>\r\n<li>Name, details and address of the applicant,</li>\r\n<li>Names, details and addresses of the disputed parties,</li>\r\n<li>Summary of the dispute and the relief sought from the Committee along with  the supporting documents.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</li>\r\n</ul>\r\n<p>At a later stage, the rapporteur registers the received Applications under  serial number on the &ldquo;Special Register&rdquo; and inserts the filing date and  particulars of the Application. A receipt shall than be issued confirming the  receipt and the recording of the Application. <br /><br />Once the Committee decide  on the Application such decision along with the number and date of notification  of the decision to the applicant are then entered on the Applications Register.  The applicant shall pay a fee of AED 6,000 to the Ministry of Economy for the  Application to be entered on the Applications  Register.<br /><br /><strong>Applicable Procedures by the Committee </strong><br />According to the Decree the Committee shall fix a date for the  hearing of the dispute within 60 days after the filing of the Application and  shall notify the date to the parties. The Committee may, at its own initiative  or at the request of the parties, allow the disputing parties to appear before  the Committee. If neither the applicant nor his opponent appears in person or  through an attorney, the Committee may decide on the dispute.<br /><br />The  Committee may allow a party to file any new documents that were not originally  filed with his Application provided that he presents a &ldquo;good cause&rdquo; in this  regard. <br /><br />When performing its duties the Committee may seek assistance  from experts and specialists. The Committee shall specify the amount that is to  be provisionally paid towards the expert&rsquo;s fees along with costs and determine  the party that shall bear these costs.&nbsp; <br /><br />In concluding, it is important  to note that the Committee is required to commence the examination of the  dispute within 60 days after the date of filing a complete Application. The  Committee&rsquo;s decision can be challenged before a competent court within 30 days  of the date of the Committee&rsquo;s decision, otherwise, the Committee&rsquo;s decision  shall be deemed final.<br /><br /><strong>The Award issued by the  Committee</strong><br />According to the decree the Committee shall issue a  decision on the merits of the case. Such award shall contain a summary of the  dispute and reasoning of the Committee&rsquo;s decision. <br /><br />However, The  Committee, at its discretion, may decide to refer the parties to the Court. Any  decision issued by the Committee must specify the party bearing the expert&rsquo;s  fees and costs. The Committee&rsquo;s decision shall be signed by the Chairman and  members and the parties shall be served with a copy of the decision within 15  days after issuance thereof.<br /><br /><strong>Rules for De-Registering the Agency  agreement</strong><br />With regard to Committees&rsquo; decisions to deregister  commercial agencies, the Decree stipulates that any Committee decision to  de-register a commercial agency is enforceable. However, if any party to the  dispute appeals/challenges the Committee&rsquo;s decision, within 30 days from the  issuance of this decision, the Ministry may not register the agency in the name  of another party before a final decision is rendered on the merits of the  dispute provided that the appellant, within one week after the expiration of the  30 days appeal period, furnish the Ministry with proof that he has appealed the  Committee&rsquo;s decision to the competent court.<br /><br />If parties failed to appeal  to the competent court the Committee&rsquo;s decision within 30 days after the  notification of such decision the latter shall be deemed final and  binding.<br /><br />Last but not least, the Decree also states that the Committee  shall submit to the Minister of Economy a semi-annual report showing the number  of disputes brought before it, the grounds of those disputes and the decisions  thereon, together with the Committee&rsquo;s recommendations on the best possible  solutions to minimize such disputes. <br /><br /><strong>Possible questions that  might rise with the establishment of this Committee</strong><br />In the next  edition we will discuss the possible issues which arise as a result of the  creation of the Committee. Stay tuned!</p>'),
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