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(82025, 4475, 'content', '<p>Well this question might be asked by international commercial parties like the renowned rock band Eagles which prepares to land and perform in Dubai next month.&nbsp;To what extent will the Courts (and Tribunals) of Dubai recognise and uphold long standing and internationally recognised legal custom and practice to permit parties to commercial transactions to elect the law and the forum to govern and regulate their relationship?&nbsp;<br /><br />Itself but one of the seven United Arab Emirates under the UAE Constitution, the Emirate of Dubai retains its own legislature and judicial systems discrete from the Federal authorities such that the Courts of Dubai apply UAE Federal law, where applicable, and/or local laws and regulations enacted by the Ruler of Dubai.&nbsp; In the event of conflict between Federal and local law, Federal law prevails.&nbsp; Recognised within the UAE&rsquo;s constitutional framework as an economic freezone and separate jurisdiction in the Emirate of Dubai, the Dubai International Financial Centre (&ldquo;the DIFC&rdquo;) dis-applies Federal commercial and civil laws and substitutes laws especially enacted by the Ruler apply in the DIFC in order to attract and service international financial business to Dubai.&nbsp; The laws establishing the DIFC Courts are designed to ensure the highest international standards of legal procedure, which in turn creates a legal and judicial environment conducive to international trade, finance and investment and to provide the certainty, transparency and efficiency expected by the global institutions operating in the Middle East.&nbsp; Albeit a Court of Dubai, the DIFC Court is a self contained two tiered judicial system with exclusive jurisdiction to determine specified DIFC related civil and commercial cases .&nbsp; Otherwise, the Dubai Court of Cassation is the final court of appeal for all non-DIFC related civil and commercial actions in Dubai.<br /><br />In previous editions of Law Update&nbsp; we have discussed decisions of the UAE Courts exercising jurisdiction notwithstanding attempts by the parties to &ldquo;contract out&rdquo; of the national courts by agreeing to submit exclusively to the courts of another jurisdiction and to choose a different law to govern their commercial relationship.&nbsp; The courts of the UAE, including those in Dubai applying Federal civil and commercial law, have historically avoided and ignored any such agreements as a matter of public policy and retained jurisdiction as conferred by Articles 20 and 21 of Federal Law No. 11 of 1992 [&ldquo;the Civil Procedure Law&rdquo; or CPL].&nbsp; Upon seizing proceedings within its jurisdiction, the national courts will routinely apply UAE law regardless of any other chosen by the parties.&nbsp;&nbsp; The CPL, inter alia, provides that national courts hear proceedings against foreigners even if they maintain no domicile or residence in the UAE but have chosen UAE jurisdiction or if the proceedings concern property in the UAE, relate to inheritance or the estate of a UAE national; or if the proceedings involve an obligation that was made, performed or supposed to be performed in the UAE, a contract to be attested in the UAE, an event occurring in the UAE or bankruptcy declared by a UAE court.&nbsp;<br /><br />Thus, broadly speaking, parties should be aware that there is no real check out of the UAE/Dubai courts&rsquo; exercise of international jurisdiction, unless they avail themselves the only exit gate permitted by the CPL and execute a valid arbitration agreement.&nbsp; Consequently, the vast majority of construction, development and trade contracts in Dubai, including real estate transactions include an arbitration clause.<br /><br />Although the CPL does not mandate a stay of court proceedings brought in breach of an arbitration agreement, there is developing practice (in the Dubai courts at least) that substantive claims will be dismissed routinely for want of jurisdiction provided that the defendant adduces evidence of a signed contract containing an arbitration clause prior to taking any step in the litigation.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Although the practice is sometimes variable, the courts seem more content to presume the existence and validity of an arbitration agreement evidenced in writing and not otherwise intervene or continue contrary to an ostensible arbitration clause; there is a tendency to defer consideration of any existentialist debates first to the arbitrators and then to the courts to review in the event of subsequent applications to annul an arbitral award under Article 216 of the CPL.&nbsp;&nbsp; Perhaps anticipating reform of Federal arbitration laws and adopting an increasingly pro-arbitration stance in complex commercial matters, the Dubai courts are applying the provisions of the CPL somewhat more progressively than before.<br /><br />Dubai World Special Tribunal &ndash; a Court of Dubai by any other name<br /><br />Established by Decree in 2009 to handle various matters pertaining to the restructuring and settlement of the financial position of Dubai World and its subsidiaries in accordance with the decreed insolvency code, the Dubai World Special Tribunal (&ldquo;the DWST&rdquo;) instead substitutes the jurisdiction of the Dubai courts with its own exclusive jurisdiction to hear and decide any proceedings commenced against Dubai World, any of its subsidiaries or any person relating to the settlement of the financial obligations of Dubai World and/or any of its subsidiaries.&nbsp; The appointed members of the DWST are the senior international judges of the DIFC Courts.<br /><br />The judgments of the DWST are final, irrevocable and not subject to any appeal. All judgments may be executed and enforced by a competent court in the Emirate of Dubai.&nbsp; Whereas most disputes before the DWST invoke UAE Law as applied in the wider Emirate of Dubai, the procedural rules adopted by the DWST are those of the DIFC Court, in turn modelled on the common law procedures of the Commercial Court in England.&nbsp;<br /><br />Whereas there is no checking out of the DWST in to an alternative litigation forum, DWST Practice Direction No. 1 of 2010 affirms the policy and procedure of the Dubai courts to respect and enforce arbitration agreements made between Dubai World entities and their contractors.&nbsp;&nbsp; Indeed, the DWST considers itself entitled to exercise robustly its power to enforce such arbitration agreements including pro-active supervision of (to some perceived as intervention in) extant arbitral proceedings.<br /><br />Other decisions of the DWST however suggest a signal reluctance to stay proceedings brought before it, if there is raised any doubt about the existence or validity of an arbitration agreement.&nbsp; For example, in Alangari v Limitless LLC , absent the Claimant&rsquo;s signature upon a comprehensive Sale &amp; Purchase Agreement containing an arbitration clause and finding no other affirmatory conduct sufficient to prove that the Claimant had accepted the arbitration clause, the Defendant&rsquo;s jurisdiction challenge to the DWST was rejected.&nbsp; More surprisingly, in Farhat v International City LLC &amp; Nakheel PJSC , the DWST relieved a claimant from the usual consequences of his signature upon a similar sale and purchase agreement containing an arbitration clause, which he claimed not to have read or understood.&nbsp; Upon finding no arbitration agreement concluded between the parties, the DWST avoided the need to address the issue of its obligation to refer the matter to arbitration regardless of whether a &ldquo;dispute&rdquo; falling within the ambit of the arbitration clause had been first identified.<br /><br />Thus, arguably, the local Dubai courts are manifesting a more pro-arbitration or, rather, a less interventionist attitude than their DIFC brethren sitting as members of the DWST.<br /><br /><strong>The DIFC Court &ndash; a Court of Dubai<br /><br /></strong>Consistent with the DIFC&rsquo;s international mandate and free from the constraints of the CPL, jurisdiction and arbitration clauses have always been recognised under DIFC law and by the DIFC Court - they are to be construed according to their terms like any other term of contract.&nbsp; See Article 13 of DIFC Law No.10 of 2005 (&ldquo;DIFC Application of Laws&rdquo;) which appears to mandate that: (1) &ldquo;A submission to the courts of a jurisdiction in a contract shall be effective&rdquo;;and (2) &ldquo;A submission to arbitration in a contract shall be effective&rdquo;.&nbsp;&nbsp;<br /><br />These provisions are reinforced by Article 13 of the DIFC Arbitration Law of 2008&nbsp; which similarly mandates a stay of proceedings brought in breach of an arbitration agreement.<br /><br />Two recent decisions of the DIFC Court of Appeal confirmed, at least in principle, the DIFC&rsquo;s recognition and effectiveness of contracting parties&rsquo; choice of law, choice of court jurisdiction and/or arbitration agreements.&nbsp; However, whether in reality contracting parties will be permitted to check out of and actually leave DIFC Court jurisdiction remains debatable.<br /><br />In Al Khorafi &amp; Ors v Bank Sarasin &amp; Co Ltd , the DIFC Court rejected the Appellants/Claimants&rsquo; contention that, there no longer being any reference in the New Law equivalent to former Article 5(A)(2) of the original Judicial Authority Law, it was no longer permissible for parties to &ldquo;opt out&rdquo; of the DIFC Court&rsquo;s exclusive jurisdiction, i.e. for parties to choose or contract to submit their disputes to be heard in other fora.&nbsp;It is clear that the draftsman of the New Law had no intention to depart from these established principles or to repeal existing DIFC law.&nbsp; Article 5(A)(3) of the Judicial Authority Law as amended by the New Law unarguably contemplates the situation where there has been made an effective agreement in writing to submit to the jurisdiction of another court.<br /><br />However, in that case the Court having found that the jurisdiction clause constituted valid and binding agreements to refer all disputes between the Claimants and the Second Defendant (a Swiss Bank) to the Swiss Courts and also having determined that Switzerland was the natural forum for such Swiss law claims, it was therefore very surprising that the DIFC Court did not apply DIFC law to stay or dismiss the proceedings and give effect to the jurisdiction agreements accordingly.&nbsp; Instead, the Court decided to apply English law which, the Court also appears to have decided, thereby affords the DIFC Court discretion to refuse to enforce such agreements &ldquo;on balance&rdquo; due to &ldquo;exceptional circumstances&rdquo;.&nbsp;&nbsp;<br /><br />There being no general jurisdiction of the English Courts or of the DIFC Courts to re-write the terms of a commercial contract, which is otherwise valid and enforceable, international litigants will expect courts to stay proceedings in aid of the parties&rsquo; choice of forum unless the claimant makes a very convincing case (demonstrating real injustice, not just administrative inconvenience) for being allowed breach his contract, specifically, the jurisdiction agreement.&nbsp; In fact, English authorities in recent years demonstrate fidelity to agreements choosing foreign courts and there is a presumption in favour of a stay of proceedings issued in breach of said agreements.<br /><br />Whilst there is a public interest in avoiding the potential for competing or parallel judgments, there is also a strong public interest in having cases disposed of by the &ldquo;natural forum&rdquo; being the court best placed to apply its own laws in respect of its own nationals.&nbsp; Moreover, notwithstanding a public interest in having all interested parties before the court at once and bound to a single adjudication, decisions of the English Courts trend in favour of the private interest of the defendant in holding the claimant to his bargain.&nbsp;<br /><br />Corinth Pipeworks SA v Barclays Bank plc&nbsp; might offer some comfort to the international banking and finance community who look to the DIFC Courts to afford commercial certainty and to ensure parties are held to their contractual obligations.&nbsp; Hwang CJ opined that &ldquo;it is entirely within the control of banks and other enterprises&rdquo; to choose not to subject their disputes to DIFC jurisdiction by &ldquo;either trad[ing] through separate corporate vehicles in the DIFC and the wider Emirate or (even more simply) includ[ing] jurisdiction clauses in their contracts choosing where they allocate jurisdiction over any disputes.&rdquo;&nbsp;&nbsp;&nbsp; In other words perhaps, you can check out any time you like&hellip;<br /><br />But no doubt many in the international business community will hope there lingers no echo in the DIFC of the Eagles&rsquo; night man who was nevertheless programmed to receive and would never let them leave.&nbsp;&nbsp;<br />&nbsp;&nbsp;<br /><strong>Footnotes :&nbsp;<br /><br /></strong>1 - Dubai Law No 16 of 2011 (&ldquo;the New Law&rdquo;) amending certain provisions of Dubai Law No. 12 of 2004 establishing the Judicial Authority of the DIFC and the jurisdiction of the DIFC Courts.<br />2- March 2011 and February 2012 editions<br />3- CPL Article 84 &ndash; challenges to jurisdiction must be made promptly and prior to any step in the court action, failing which the parties are deemed to have submitted to the court&rsquo;s jurisdiction and waived their right to arbitrate.&nbsp; However, regardless of their arbitration agreement, parties remain free to apply to the court for such interlocutory attachment or preservative measures as the CPL affords<br />4- A practice reinforced by Dubai Court of Cassation Case No. 73/2010 which confirmed the validity of an award albeit predicated on an unsigned arbitration clause included within terms and conditions referred to and expressly incorporated in the main contract.&nbsp;<br />5- DWT/0019/2011 Al Mazaya Real Estate FZ LCC v Limitless LLC &ndash; Judgment of Sir Anthony Evans dated&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 9 May 2011<br />6- DWT/0029/2010 - Judgment of Sir Anthony Evans dated 23 March 2011<br />7- DWT 0018/2011 &ndash; Judgment of Sir John Chadwick dated 21 December 2011<br />8- Article 8 of this Law provides that &ldquo;the existence, validity, effect, interpretation and performance of a contract, or any term thereof, including any requirements as to formality, shall be determined by the law which governs it&rdquo;.&nbsp; Article 9 also provides that &ldquo;an express choice of a governing law in a contract shall be effective against all persons affected thereby&rdquo;.&nbsp;<br />9- Article 13. Arbitration agreement and substantive claim before a Court<br />(1) If an action is brought before the DIFC Court in a matter which is the subject of an Arbitration Agreement, the DIFC Court shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, dismiss or stay such action unless it finds that the Arbitration Agreement is null and void, inoperative or incapable of being performed.<br />(2) Where an action referred to in paragraph&nbsp;<br />(1) of this Article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the DIFC Court.<br />10- DIFC CA 003/2011 dated 5 Jan 2012.<br />11- DIFC CA 002/2011 dated 22 Jan 2012<br />12- Ibid para 68(a).</p>'),
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(82009, 4473, '_yoast_wpseo_metadesc', 'Given the time, effort and financial investment generally spent by a hotel owner in its operator selection process, and the additional time then spent by the owner and the selected operator in negotiation of the hotel management and ancillary agreements, it is fair to say that both parties intend for their relationship to endure for the length of the management term, with mutual benefit resulting from the hotel operation.'),
(82010, 4474, 'content', '<p>Abu Dhabi Law No. (20) of 2006 (the &ldquo;Landlord and Tenant Law&rdquo;) as amended by Laws No. (6) of 2009 and No. (4) of 2010 (&ldquo;Law No. (4)&rdquo;) and Executive Council Resolutions No. (56) of 2010 and No. (25) of 2011 (&ldquo;Resolution No. (25)&rdquo;) regulates most landlord and tenant relationships in the Emirate of Abu Dhabi except those relating to:</p>\r\n<ul>\r\n<li>Agricultural lands and the buildings thereon;</li>\r\n<li>Lands and properties owned by the government and leased for residential purposes;</li>\r\n<li>Land and Property allocated to ADNOC which is being leased for purposes specifically related to services in the petroleum industry;</li>\r\n<li>Properties leased for hospitality and tourism purposes including furnished apartments; and</li>\r\n<li>Properties occupied as labour accommodation.</li>\r\n</ul>\r\n<p>The Landlord and Tenant Law allows the parties to a lease to fix the rent by agreement in the lease.&nbsp; Where the rent is not fixed, the landlord currently has the right to an annual rent increment.&nbsp; This right is currently subject to a maximum increase of 5% of the existing rental amount (the &ldquo;Rent Cap&rdquo;).&nbsp; The Rent Cap may be increased, reduced or cancelled from time to time by the Chairman of the Executive Council as he considers appropriate.&nbsp; A tenant may refer the matter to the Abu Dhabi Rent Committee for determination of the rent where a landlord exceeds the Rent Cap.&nbsp;<br /><br />The term of a lease will remain in force until its expiry and may be renewed upon the mutual consent of both parties.&nbsp; Should a tenant remain in occupation upon expiry of a lease with the knowledge and consent of his landlord, then the lease shall be deemed to have been renewed for a similar term on the same terms and conditions.&nbsp; Should either party not wish to renew a lease, then at least 2 months&rsquo; (for residential property) or 3 months&rsquo; (for commercial property) prior written notice must be given to the other party.&nbsp;<br /><br />The most significant change to the Landlord and Tenant Law introduced by Law No. (4) relates to renewal of leases upon their expiry and changes to the determination of rent payable under renewal leases.&nbsp; Under the current law, a landlord may not request that a tenant vacates a property upon expiry of his lease.&nbsp; Once Law No. (4) has been fully implemented a landlord will be entitled to request that a tenant vacates a property on expiry of his lease and may refuse the renewal of the lease, subject to requirement for necessary notice provisions to be observed.&nbsp; Therefore whilst Rent Caps will continue to apply during the lease terms there will be no protection for tenants against rent increases upon lease renewals.&nbsp; The deadline for full implementation set by Law No. (4) was originally 9 November 2010, however this has subsequently been extended twice and currently expires on 9 November 2012 (Resolution No 25 of 2011).&nbsp; The Executive Council has the power to further delay this date.</p>'),
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(81995, 4473, 'content', '<p>Given the time, effort and financial investment generally spent by a hotel owner in its operator selection process, and the additional time then spent by the owner and the selected operator in negotiation of the hotel management and ancillary agreements, it is fair to say that both parties intend for their relationship to endure for the length of the management term, with mutual benefit resulting from the hotel operation.<br /><br />On the most part, this is the outcome.&nbsp; However, there are occasions where, for a variety of reasons, the relationship does not last and termination of the management agreement may be required.<br /><br />This article looks at the most common provisions that might be found in a hotel management agreement, which would allow its termination, by either the hotel owner or the operator, in both contentious and non-contentious circumstances.<br /><br />(A)&nbsp;Termination by the hotel owner<br /><br />Events that might bring about termination by a hotel owner include:</p>\r\n<p>&bull;&nbsp;Failure of the operator to achieve a pre-defined level of performance<br />&bull;&nbsp;Termination at will<br />&bull;&nbsp;Operator material breach of the management agreement<br />&bull;&nbsp;Operator fraud/misappropriation of monies<br />&bull;&nbsp;Operator sale/withdrawal of the brand<br />&bull;&nbsp;Condemnation or damage to the property</p>\r\n<p>(B)&nbsp;Termination by the hotel operator<br /><br />Events that might bring about termination by a hotel operator include:</p>\r\n<p>&bull;&nbsp;Owner&rsquo;s material breach of the management agreement<br />&bull;&nbsp;Owner&rsquo;s failure to provide sufficient working capital<br />&bull;&nbsp;Transfer of ownership of the hotel&nbsp;<br />&bull;&nbsp;Owner bankruptcy, Mortgage default/foreclosure<br />&bull;&nbsp;Condemnation or damage to the property<br /><br /><strong>(i)&nbsp;Operator failure of performance test</strong><br /><br />Inclusion in the management agreement of a well-structured performance test provides valuable security to an owner in respect of protecting it against operator incompetency, by measuring an operator&rsquo;s value through the performance of the hotel.&nbsp; Ideally, the owner will have a right of termination where the performance test is not satisfied by the operator, whether or not subject to the operator&rsquo;s right to cure the failure.<br /><br />Performance is best measured against profitability of the hotel, and the mechanics of how performance is to be tested are usually subject to lengthy discussions between the parties when negotiating the management agreement.&nbsp; The test should protect the operator from external circumstances beyond its control that could adversely affect a hotel&rsquo;s performance and should not generally become effective until after two to four years from the hotel opening date.<br /><br />Where a performance test exists, an operator will usually insist on a right to cure through payment of the deficit between the actual performance of the hotel and the performance required by the performance test.&nbsp; Payment of the cure would prevent an owner from terminating the management agreement, although an owner should be careful to cap the amount of times that an operator can cure its failure, so as not to negate his protection.<br /><br /><strong>(ii)&nbsp;Termination at will</strong><br /><br />Again, this is an important provision for an owner, and its inclusion will provide an owner with maximum flexibility to support and accommodate it&rsquo;s future plans in respect of its business or assets, or to remove an incompetent/undesireable operator.<br /><br />Such a clause would allow the owner to terminate the management agreement (ideally) at any time, upon written notice, without the need to rely on any breach or particular reason.&nbsp; It is rare for such a protection to be available to an owner, and where agreed to by an operator, would usually be subject to the owner paying a pre-agreed compensation amount.&nbsp;<br /><br />Such flexibility is hard to come by as operators place great value on the stability and security of their management agreements, and the negative impact to brand value that can arise from their termination.&nbsp; Where agreed in principle, the level of compensation amounts that would be due, will be the subject of much debate, before it is mutually acceptable to both parties.<br /><br /><strong>(iii)&nbsp;Material breach of the management agreement</strong><br /><br />Material breach by either party, of one or more of its obligations under the management agreement usually enables the non-defaulting party to terminate through issue of a termination notice.&nbsp;<br /><br />Most management agreements will contain a period of time during which the defaulting party can cure the breach.&nbsp; Additionally, there may be an obligation on the parties to participate in a consultation process by both party&rsquo;s executive management, during which discussions must take place in order to seek and implement a remedy of the situation.&nbsp;<br /><br />In the event that these corrective measures fail, then the non-defaulting party will be required to submit a further notice confirming termination of the agreement.&nbsp; Activation of the dispute resolution process, as provided for in the management agreement, may then ensue, where the recipient of the termination notice disputes the other party&rsquo;s ability to lawfully terminate the agreement.<br /><br /><strong>(iv)&nbsp;Condemnation or damage to the property</strong><br /><br />Where the property is severely damaged or destroyed, preventing or disrupting operation by the operator, it is usual to see a provision whereby either party may terminate the agreement.&nbsp; The question that arises, in the absence of total destruction, is whether the level of damage is sufficient enough to trigger a termination right, or alternatively, an obligation on the owner to repair such damage.<br /><br />This provision often varies from one management agreement to another, with the control either being placed with the owner, (subject to payment of compensation to the operator where the owner does not repair/rebuild and the management agreement is terminated), or alternatively, with the operator (who may require the owner to repair/rebuild where it believes that the hotel is not inoperative and should be restored).&nbsp;&nbsp;<br /><br /><strong>(v)&nbsp;Fraud/misappropriation of monies</strong><br /><br />It should be remembered that the hotel&rsquo;s monies, at all times, belong to the owner.&nbsp; However, almost all management agreements provide for the operator to control the hotel&rsquo;s bank accounts, through designation of authorized signatories, to enable the operator&rsquo;s proper management of the hotel in respect of payment of operating expenses and operator fees etc.&nbsp; Notwithstanding this, it is not uncommon for an owner&rsquo;s approval to be provided in respect of certain expenditure items over a pre-agreed amount.<br /><br />Misappropriation of monies constitutes a material breach of the management agreement and the entire underlying relationship between the parties, warranting immediate termination.&nbsp; However, it is essential to determine whether the misappropriation is down to the operator or an individual employee within the hotel acting on his/her own volition (and who, in most cases, would be the owner&rsquo;s employee).<br /><br /><strong>(vi)&nbsp;Failure to provide working capital</strong><br /><br />Generally, an operator has no responsibility to provide working capital for the hotel.&nbsp; All funds required must be provided by the owner (particularly in respect of funds required before the hotel opens) or, additionally post-opening, from revenue generated by the hotel.<br /><br />In order to properly manage the hotel and meet the hotel&rsquo;s debts (whether in respect of service providers or suppliers, or payroll costs etc), the operator will ensure that it has access to working capital as and when this is required, and there is usually a specific obligation on the owner to provide same where the hotel revenue is likely to be insufficient to meet these requirements.<br /><br />Failure by the owner to provide such working capital as and when requested by an operator, will, subject to a period of time within which to pay same, most often enable the operator to terminate the agreement.<br /><br /><strong>(vii)&nbsp;Owner bankruptcy, mortgage default/foreclosure</strong><br /><br />Generally, the existence of financial difficulties of either party to a hotel management is likely to cause problems.&nbsp; Bankruptcy of either party will usually provide the other with a specific right of termination.&nbsp; An operator will particularly want a right of exit in such a situation, in order to disassociate itself from the hotel (which may be suffering damage to the hotel&rsquo;s reputation), to protect its own brand value and reputation.&nbsp;<br /><br />Operating a hotel where there is a default by the owner on a loan for which the hotel asset is held as security can be problematic for operators, as the threat of foreclosure is not one that they would necessarily wish to be associated with.&nbsp; The risk of foreclosure is not something that can be controlled by the operator and in most cases, a lender would want the flexibility to either continue with the operator or terminate the management agreement (perhaps to sell an unencumbered asset).&nbsp; This leads to uncertainty as far as the operator is concerned and is generally not acceptable, therefore an operator may require a specific termination right in such circumstances.<br /><br /><strong>(viii)&nbsp;Operator sale/withdrawal of the brand</strong><br /><br />Owners appoint a hotel operator to manage the hotel under a specific brand, and the capital investment required by the owner accords to the brand standards and specifications of such brand.&nbsp; Such level of expenditure underpins the owner&rsquo;s general feasibility as to the hotel development costs and associated business case (ie. in respect of its projected return on investment).&nbsp;<br /><br />In the event that the brand is sold by the operator to a third party in the future, or the operator decides to withdraw the brand from the market, for strategic or repositioning purposes, the owner will, unless he has the ability to terminate the management agreement, be obliged to comply with the brand standards of the new brand and/or the brand standards of the existing brand which may change as a result of the brand&rsquo;s new ownership.&nbsp; In either circumstance, there is likely to be significant cost to the owner as a result.<br /><br />An owner would therefore be prudent, if possible during negotiations, to agree that it has the ability to terminate the management agreement in such circumstances.&nbsp; Most operators would strongly argue against this, as the value of the brand in a third party sale scenario is based on the value of the operator&rsquo;s existing management agreements.&nbsp; Any exit provisions in favour of an owner in these circumstances would have a negative impact on the value of the brand to a third party purchaser.&nbsp; Nevertheless, an owner should have comfort that it will not suddenly be required to support a large capital expenditure resulting from the brand sale/rebranding, and a compromise would be for the owner to have a right of termination if such expenditure is above a maximum amount.<br /><br /><strong>(ix)&nbsp;Transfer of ownership of the hotel</strong><br /><br />In the event that an owner wishes to sell the hotel, ideally it wants the freedom to sell with or without the management agreement, dependent on whether the management agreement encumbers the asset and decreases its value, or is seen as a positive benefit thereby increasing its value and saleability.&nbsp;<br /><br />Most operators would not permit an owner to terminate the management agreement in such circumstances unless some form of compensation formula had been agreed, to recompense the operator for its future loss of management fees.&nbsp;<br /><br />From an operator&rsquo;s perspective, it might not wish to continue under contract with the new owner and therefore in most cases, a management agreement will contain a right for the operator&rsquo;s approval to the transfer, (and the identity of the transferee), to be sought before the transaction can take place.&nbsp; In this way, should the identify of the transferee not be acceptable, (ie. because it may be a competitor of the operator, or not financially secure, thereby causing risk to the operator&rsquo;s continued management of the hotel), the operator will reserve a right to terminate the management agreement prior to the transfer, and again require compensation for its future loss of management fees.<br /><br /><strong>(x)&nbsp;Conclusion</strong><br /><br />As you can see, there are many pre-ordained instances where a hotel management agreement might be terminated by either party, over and above the existence of a breach situation.&nbsp; The above summary provides a very high level overview of the types of termination scenario that may arise, but is by no means exhaustive.&nbsp; The existence of any breach, dispute, assertions of underperformance, or financial difficulty will inevitably put a strain on the owner/operator relationship and the hotel&rsquo;s performance, which ultimately is likely to benefit neither.<br /><br />Regardless of the cause, the impact that termination of a hotel management agreement can have on the hotel&rsquo;s operation, its reputation, the owner&rsquo;s investment and the operator&rsquo;s brand value, should not be underestimated.&nbsp; Termination will touch the lives of many third parties, including suppliers, service providers, employees and guests.&nbsp;&nbsp; Further, termination which is subsequently disputed, with the result that the parties remain under contract pending the outcome of a lengthy dispute resolution process, can be extremely damaging.&nbsp;<br /><br />Termination is not, therefore, something that should be implemented lightly.<br /><br />Dispute management should, wherever appropriate, be given sufficient time, effort and attention in order to properly assess the legal, commercial and financial risks that may arise should such termination be require.&nbsp; This should be done with the assistance and guidance of legal, financial and industry advisors, as appropriate, to ensure that a clear 360&deg; view is obtained prior to any action being taken.<br /><br />For further information, or for any advice or assistance in respect of hospitality related matters, please contact Tara Marlow, Head of Hospitality at&nbsp;<a href=\"mailto:t.marlow@tamimi.com\">t.marlow@tamimi.com</a></p>'),
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(81953, 4471, 'content_description', 'On December 14, 2011 the Emirates Authority for Standardization & Metrology (ESMA) has issued resolution No. 19/2012 regulating the registration of energy drinks in the UAE.\r\n'),
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(81955, 4471, 'pageSummary', 'On December 14, 2011 the Emirates Authority for Standardization & Metrology (ESMA) has issued resolution No. 19/2012 regulating the registration of energy drinks in the UAE.\r\n'),
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(81972, 4472, 'content', '<p>The 10th Edition of the Nice Classification of Goods & Services has come into effect on 1 January 2012 and the UAE is one of the many countries to adopt the latest edition.  Applications filed prior to 1 January 2012 will be examined based on the 9th Edition and there will be no need to reclassify a trademark at the time of renewal.<br /><br />There are significant changes to the classification across several classes and highlighted below are some of the substantive changes:</p>\r\n<ul>\r\n<li>Dietary supplements, whether used as supplement to normal diet or to achieve a health benefit, will now be uniformly classified in Class 5.  This removes the requirement to specify “for medical purposes”.  Furthermore, Class 5 now extends to pharmaceuticals and other preparations, including dietary supplements, for veterinary purposes.</li>\r\n<li>Baby Diapers, napkin-pants and diaper-pants, regardless of whether they are disposable or made of textile, will be classified uniformly in Class 5 instead of Class 16.</li>\r\n<li>The distinction between deodorants for personal and non-personal use has been removed.  Deodorants are now to be classified in Class 3 if they are “for human beings or for animals” or in Class 5 if they are “other than for humans or for animals”.</li>\r\n<li>Various items that were previously considered apparatuses under Class 9 will now be considered machines and machine parts under Class 7. For instance, welding and soldering apparatus, vending machines, electric door openers and closers, self-regulating fuel pumps, electrical packaging apparatus will now be classified under Class 7.</li>\r\n<li>Downloadable ring tones for mobile phones, downloadable music files, cell phone straps, portable media players, USB flash drives, and GPS apparatus have been added to Class 9.</li>\r\n<li>Floats for bathing and swimming, water wings, swimming belts, and swimming jackets, all being playthings, will now be classified under Class 28 and not Class 9.</li>\r\n<li>Entertainment and gaming devices are now classified uniformly in class 28.  The previous distinction between consumer devices that are equipped with an external display screen or monitor (in Class 9) and those with built-in screen (in class 28) has been removed.</li>\r\n<li>Evaluation services in relation to standing timber and wool, previously settled under Class 35 services, will now be classified under Class 36 if they are financial evaluation services and under Class 42 if they are qualitative evaluation services. </li>\r\n</ul>\r\n<p>Another important change being effected is the frequency of the updates.  To date, updates occur every five years, however going forward the review of classification shall occur annually where the next review round will be released on 1 January 2013.  Annual versions of the current edition will only include minor changes and substantive changes will continue to be released every five years.<br /><br />While classification changes are procedural, they do have a substantive impact on the trademark examination process in some countries, such as the UAE, where a finding of similarity can be based simply on the goods being located in the same class even when the goods are in fact different. With the Classification now being revised every year, countries such as the UAE may need to reconsider their approach in determining similarity of marks to create uniformity in the outcome in the examination process.</p>'),
(81949, 4471, 'content', '<p>The new resolution has approved standard No UAE.S/GSO 1926:2009 as technical regulations rather than standard regulations which will require all suppliers to seek registration of energy drinks with ESMA.</p>\r\n<p>By the deadline date of June 14, 2012, all suppliers including manufacturers, agents, distributors, commercial representatives and legal representatives would need to have completed registering their energy drinks at ESMA. This deadline has been fixed by the resolution which gives suppliers a grace period of six months to comply with the technical regulations in standard UAE.S/GSO 1926:2009.</p>\r\n<p>ESMA established in 2001 the Emirate Conformity Assessment Scheme (ECAS) taking on responsibility of issuing registration certificates for approved products. Energy drinks are now required to meeting the following conditions:</p>\r\n<p>-&nbsp;The Energy drink should comply with Standard No. UAE.S/GSO 1926:2009 for Recommendation of Handling Energy Drinks.<br />-&nbsp;Evidence of approval for general safety of the energy drink from other conformity assessment bodies, if the production is conducted out of the UAE.<br />-&nbsp;The label of the should state the following warning [translated]:</p>\r\n<p>&ldquo;This product is not permitted for pregnant women, or women breast feeding, children under 16 years of age, persons susceptible to allergy by caffeine, or persons suffering from heart disease or athletes during sport practice&rdquo;</p>\r\n<p><br />There are language conditions on the warning as well as other conditions that relate to labeling requirements. The ingredients will need to adhere to Islamic Sharia.</p>\r\n<p>In addition, Halal Certificate is one of the complementary requirements (متطلبات تكميلية) for the Standard No. UAE.S/GSO 1926:2009, where suppliers should also seek to register their product under standard No. UAE.S /GSO 1931 :2009 for general requirements for producing, supplying, storing, and consuming Halal products.</p>\r\n<p>The resolution confirmed that suppliers can be either companies/factories working in the UAE or agents and representatives for companies/factories out of the UAE. Agents in such conditions should provide a letter attesting that they are representing the foreign company/factory and hold the responsibility for supplying the product.</p>\r\n<p>Energy drinks are granted ECAS certificate when completing compliance with Standard UAE.S/GSO 1926:2009 and receiving an acceptable lab result. The registration number of ECAS should be recorded at the bottle/can in clear font.</p>\r\n<p>ECAS certificate is valid for one year and can be renewed within two months before expiry, and any adjustment to the product should be notified to ESMA.</p>\r\n<p>The resolution prohibits energy drinks sales at school cantinas and to persons mentioned in the warning, and it further regulates the inspection in the local market and at all entry points in the UAE.</p>\r\n<p>This resolution has significant compliance changes and imposes more stringent measures on energy drinks and is in harmony with the GCC standards for energy drinks.</p>'),
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(81940, 4470, 'pageSummary', 'Technology has great potential to improve the quality and safety of healthcare, and it is obvious that the benefits of the information age should be utilized in the provision of healthcare services. '),
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(81890, 4468, 'content', '<p>Financing of terrorism, on the other hand, &ldquo;involves the raising and processing of funds to supply terrorists with resources to carry out their attacks&rdquo; (IMF), (&ldquo;FT&rdquo;).<br /><br />Both ML and FT are crimes committed in relation to financial transactions and have economic results.<br />As Min Zhu, Deputy Managing Director of the IMF said on 31 August 2011:<br />&ldquo;(&hellip;) Effective anti-money laundering and combating the financing of terrorism regimes are essential to protect the integrity of markets and of the global financial framework as they help mitigate the factors that facilitate financial abuse.&rdquo;<br />In response to the global combat against ML and FT and in addition to its existing legislation in this area, the Dubai Financial Services Authority (&ldquo;DFSA&rdquo;) has recently adopted Designated Non-Financial Business and Professionals Module, DFSA Rulebook (&ldquo;DNF Module&rdquo;) that applies to designated non-financial businesses and professionals registered and operating in the DIFC (&ldquo;DNFBP(s)&rdquo;).<br /><br /><strong>DNF Module &ndash; General Considerations</strong><br /><br />The DNF Module sets anti-ML (&ldquo;AML&rdquo;) and combating FT (&ldquo;CFT&rdquo;) requirements for DNFBPs.&nbsp;<br /><br />Until recently, DNFBPs were supervised for AML/CFT compliance by the DIFC Authority.<br /><br />From now on, however, DNFBPs are going to be supervised by the DFSA as far as AML and CFT matters are concerned.<br /><br />The DFSA has been granted powers of supervision and enforcement and the power to obtain information and to conduct investigations into possible breaches of the DNF Module, by DNFBPs.<br /><br />The DFSA has been further authorised to impose fines for breaches of the DNF Module.&nbsp;<br /><br /><strong>Who Does it Apply to?&nbsp;<br /><br /></strong>The DNF Module applies to all DNFBPs other than single family offices (which are the subject of separate requirements not dealt with in this article).&nbsp;<br /><br />Provided that the business (or profession) is carried out in or from the DIFC, DNFBPs are:<br /><br />a.&nbsp;real estate developers and agents who carry out transactions with customers who are concerned in the buy and selling of real property;<br /><br />b.&nbsp;dealers in precious metals and stones which engage in cash transactions (or number of transactions) with a customer equal to or above USD 15,000;<br /><br />c.&nbsp;dealers in high-value goods which engage in any cash transaction (or number of transactions) with a customer equal to or above USD15,000;<br /><br />d.&nbsp;law firms, notary firms, other legal independent businesses and accounting, audit and insolvency firms which prepare or carry out transactions for a customer in respect of: (i) Buying and selling of real property; (ii) Managing of client money, securities or other assets; (iii) Managing of bank, savings or securities accounts; (iv) Organization of contributions for the creation, operation or management of companies; or (v) Creation, operation or management of legal persons or arrangements, and buying and selling of business entities; or<br /><br />e.&nbsp;company service providers which carry out the following activities for customers: (i) Acting as formation agents of legal persons; (ii) Acting as (or arranging for another person to act as) a director or secretary of a company, a partner of a partnership, or a similar position in relation to legal persons; (iii) Providing a registered office, business address or accommodation, correspondence or administrative address for a company, a partnership or any other legal person or arrangement; or (iv) Acting as (or arranging for another person to act as) a nominee shareholder for another person.<br /><br /><strong>What Obligations has it Introduced?<br /><br /></strong>Under the DNF Module, all DNFBPs must, in particular:<br /><br />a.&nbsp;register with the DFSA by completing the appropriate form;<br /><br />b.&nbsp;notify the DFSA of any change to its name, legal status or address;<br /><br />c.&nbsp;notify the DFSA of any proposal to cease relevant business activities by completing the appropriate form;<br /><br />d.&nbsp;promptly inform the DFSA in writing if it receives a request for information from a regulator or agency responsible for AML regarding enquiries into potential money laundering related to its DIFC activities carried on, in or from the DIFC; and<br /><br />e.&nbsp;adopt adequate policies, procedures, systems and controls in place to prevent the activity of money laundering as per those adopted by the Government of the UAE, the Central Bank of the UAE, the Financial Action Task Force and the DFSA.<br /><br />A DNFBP may be criminally liable for the offence of money laundering if such an activity is intentionally committed in its name or for its accounts.<br /><br />Money Laundering Reporting Officer (&ldquo;MLRO&rdquo;)<br /><br />A DNFBP shall appoint an MLRO (and notify the DFSA of the same) who shall be mainly responsible for:<br /><br />a.&nbsp;DNFBP&rsquo;s anti money laundering activities carried on, in or from the DIFC;<br /><br />b.&nbsp;establishing and maintaining the DNFBP&rsquo;s anti money laundering policies, procedures, systems and controls and compliance with anti money laundering legislation applicable in the DIFC; and<br /><br />c.&nbsp;day- to- day operations for compliance with the DNFBP&rsquo;s anti money laundering policies.<br /><br /><strong>Policies and Procedures<br /><br /></strong>The Rules require DNFBP&rsquo;s to have adequate policies, procedures, systems and controls in place to prevent the activity of money laundering which must be adhered to by all employees of the DNFBP, non-compliance with which may result in criminal liability.<br /><br /><strong>Customer Identification<br /><br /></strong>Under the DNF Module, a DNFBP should adopt a risk based approach for the customer identification and verification process.&nbsp; This extends to the assessment of customers (and customers acting o behalf of third parties) and the level of detail of customer identification and verification that needs to be performed in relation to individual customers, e.g. a DNFBP must not establish a relationship with a shell bank nor establish anonymous accounts or accounts in false names.<br /><br /><strong>Documentation and records<br /><br /></strong>All relevant information, correspondence and documentation used by a DNFBP to verify a customer&rsquo;s identity and conduct the ongoing due diligence and scrutiny required must be kept for at least six years from the date on which the business relationship with a customer has ended.&nbsp;<br /><br />Internal and External Reporting Requirements<br /><br />A DNFBP must have appropriate arrangements to ensure that whenever any employee knows or suspects or has reasonable grounds for knowing or suspecting that a legal person is engaged in ML, that employee makes an internal suspicious transaction report to the DNFBP&rsquo;s MLRO.<br /><br />A DNFBP shall also comply with suspicious transactions reporting requirements towards the MLRO (internally) and the DFSA (externally), the failure of which may constitute a criminal offence that is punishable under the laws of the UAE.<br /><br /><strong>Training and Awareness</strong><br /><br />Finally, under the DNF Module, a DNFBP must have arrangements to provide periodic information and training to all relevant employees to ensure that they are aware of identity and responsibility of DNFBP&rsquo;s MLRO and applicable legislation relating to anti money laundering.<br /><br /><strong>Final Remarks<br /></strong><br />Min Zhu, Deputy Managing Director of the IMF said on 31 August 2011 that ML and FT &ldquo; (&hellip;) can threaten the stability of a country&rsquo;s financial sector or its external stability more generally. (&hellip;) Action to prevent and combat money laundering and the financing of terrorism thus responds not only to a moral imperative, but also to an economic need.&rdquo;<br /><br />It is comforting to see that the DFSA treat financial crime very seriously by being continuously involved in developing and improving legal framework in the DIFC by educating local business community as well as combating and punishing financial crime.&nbsp;</p>'),
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(81894, 4468, 'content_description', 'Under a commonly adopted definition that originated from the International Monetary Fund (“IMF”), money laundering is a “process by which the illicit source of assets obtained or generated by criminal activity is concealed to obscure the link between the funds and the original criminal activity” (“ML”).'),
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(81896, 4468, 'pageSummary', 'Under a commonly adopted definition that originated from the International Monetary Fund (“IMF”), money laundering is a “process by which the illicit source of assets obtained or generated by criminal activity is concealed to obscure the link between the funds and the original criminal activity” (“ML”).'),
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(81910, 4468, '_yoast_wpseo_metadesc', 'Under a commonly adopted definition that originated from the International Monetary Fund (“IMF”), money laundering is a “process by which the illicit source of assets obtained or generated by criminal activity is concealed to obscure the link between the funds and the original criminal activity” (“ML”).'),
(81911, 4469, 'content', '<p>The employer is entitled to deduct a specified and pre-agreed amount of money from the contractor by way of compensation for failure to progress the works to meet set milestones or the date for completion of the works.&nbsp;<br /><br />The position of liquidated damages under the UAE law may differ significantly from the position under other jurisdictions (particularly common law jurisdictions).&nbsp;As such, the enforceability of these clauses may bring less certainty for both developers and contractors operating in UAE.<br /><br />The purpose of this article is to shed some light on liquidated damages under the UAE law and will seek to highlight the rationale behind the rules applicable to this type of damages.&nbsp;&nbsp;&nbsp;&nbsp;<br /><br /><strong>I.&nbsp;Legal Characterisation&nbsp;&nbsp;</strong><br /><br />It should be noted, from the outset, that liquidated damages clauses are deemed to be ancillary contractual obligations, in the sense that they will not apply unless an obligation for payment of damages (i.e. the primary obligation) has been established in the first place. In other words, liquidated damages are not, per se, a cause of action for a claim for damages. Rather, they can only be invoked for establishing the amount of damages claimed .<br /><br />For instance, there are two distinct obligations arising out of a liquidated damages clause (concerning delays) in a construction contract. Firstly, the contractor&rsquo;s obligation to complete the works within a specified time limit (i.e. the primary obligation). Secondly, the contractor&rsquo;s obligation to pay liquidated damages (i.e. the ancillary obligation), provided that the contractor is in breach of the primary obligation and the employer has sustained actual loss as a result of this breach.<br /><br />Consequently, when the primary obligation elapses, the liquidated damages clause, being an ancillary obligation, elapses as well but not vice versa.&nbsp;&nbsp;<br /><br /><strong>II.&nbsp;Unenforceability of Liquidated Damages&nbsp;</strong></p>\r\n<p>Liquidated damages can be rendered unenforceable outright in two cases, namely (i) the failure to establish any of the requirements for liquidated damages; or (ii) the termination of the primary obligation.<br /><br />Tripartite test&nbsp;<br /><br />Under the UAE law, in order for liquidated damages to be awarded, the following requirements must be satisfied (failing which, no liquidated damages would be awarded):&nbsp;<br /><br />A)&nbsp;A breach committed by the party who agreed to pay the liquidated damages;&nbsp;&nbsp;<br /><br />B)&nbsp;Actual damage&nbsp; sustained by the party who invokes the liquidated damages clause ; and<br /><br />C)&nbsp;A causative link between the fault and the damage suffered.&nbsp;<br /><br />The UAE high courts have confirmed, in several occasions, that this tripartite test must be satisfied. The Dubai Court of Cassation held that the inclusion of a liquidated damages clause into a contract does not supersede this tripartite test for awarding damages . The Federal Supreme Court has also concluded that the liquidated damages are subject to this tripartite test .<br /><br /><strong>Termination of primary obligation</strong><br /><br />Liquidated damages agreements are ancillary contractual obligations and they will not be enforceable unless another (primary) obligation has been established. As a result, if the primary obligation is terminated, the liquidated damages clause shall be disregarded as well.&nbsp;&nbsp;&nbsp;&nbsp;<br /><br />This rule has been consistently applied by the UAE high courts. For instance, the Dubai Court of Appeal ruled in favour of an employer who requested this court to (a) declare the construction contract in question be terminated; and (b) order the contractor to pay to the employer the liquidated damages as contemplated into this construction contract.&nbsp; However, the Dubai Court of Cassation reversed this judgment on the basis that the liquidated damages cannot possibly be awarded upon the termination of the construction contract. This is because, as per the court&rsquo;s findings, the liquidated damages are ancillary contractual obligations and therefore they shall be disregarded upon the termination of the construction contract, being the relevant primary obligation.&nbsp;&nbsp;<br /><br />Accordingly, the contracting party who invokes a liquidated damages clause should not request the court to terminate the relevant contract (i.e. the primary obligation).<br /><br />Upon the termination of the primary obligation, and assuming that the tripartite test is satisfied, the court would assess the damages in accordance with the general rules for damage assessment (i.e. actual loss sustained and loss of profits) not the pre-agreed amount of liquidated damages.&nbsp;&nbsp;<br /><br /><strong>III.&nbsp;Adjustment of Liquidated Damages&nbsp;<br /><br /></strong>Whilst Article 390(1) of the UAE Civil Code gives the contracting parties the right to agree on a fixed amount of damages in advance, Article 390(2) gives the court the ultimate right, upon the request of one of the parties, to increase or decrease the amount of these damages in order to reflect the actual loss suffered.&nbsp; The contracting parties cannot opt out of Article 390(2).&nbsp;<br /><br />Article 390 of the UAE Civil Code reads:&nbsp;<br /><br />&ldquo;(1) The contracting parties may fix in advance the amount of damages either in the contract or in a subsequent agreement, subject to the provisions of the law.<br /><br />(2) The judge may in all cases, upon the request of either of the parties, vary such agreement so as to make the damages equal to the loss, and any agreement to the contrary shall be void&rdquo;.&nbsp;&nbsp;<br /><br />The practice of UAE courts shows that these courts exercised their discretion, as per Article 390(2), and reduced the amount of pre-agreed liquidated damages accordingly.&nbsp;<br /><br />As for the increase of the amount of liquidated damages, there is no much case law support this. However, the Official Commentary on the Civil Code, which is issued by the UAE Ministry of Justice, expressly provides (concerning Article 390) that &ldquo;If the damages are due and the same is equal to the loss sustained, then the liquidated damages agreement in question shall be upheld. However, if the due damages are not equal to the loss sustained, the judge shall have the right, upon the request of one of the parties, to increase or decrease the amount of these damages in order to reflect the loss. This is in line with the Shari&rsquo;ah principles under which compensation shall be equal to actual loss suffered&rdquo;.<br /><br />This suggests that the UAE courts remain entitled (at least in principle) to increase the amount of the liquidated damages.<br /><br /><strong>IV.&nbsp;Burden of Proof&nbsp;&nbsp;</strong><br /><br />As indicated above, liquidated damages agreements can either be rendered unenforceable completely or be adjusted. A consequential question is whether there are any legal consequences arising out of a liquidated damages agreement.&nbsp;&nbsp;<br /><br />A liquidated damages agreement should shift the burden of proof from the party who invokes this agreement to the other party. As such, the court should be bound by the liquidated damages agreement unless this other party proves that no damages were suffered.&nbsp; In other words, an assumption of damage shall be created in favour of the party who invokes a liquidated damages agreement. However, this assumption is refutable and the other party may prove otherwise.&nbsp;&nbsp;<br /><br />Further, the court is still required to show the components of any liquidated damages&nbsp; it may award notwithstanding the shifting of burden of proof rule. This means that although the liquidated damage agreement shall shift the burden of proof, the court still has a duty to highlight the components of any damages awarded.<br /><br /><strong>V.&nbsp;Conclusion</strong><br /><br />The ancillary nature of the liquidated damages clauses seems to be the main rationale for the most of the rules applicable to this type of damages. Such ancillary nature should therefore be kept in mind while considering liquidated damages clauses.</p>\r\n<p><strong>Footnotes:</strong></p>\r\n<p>1- Abdal-Razzak El-Sanhuri, &ldquo;Commentary on the Civil Code&rdquo;, Egyptian Bar, Vol. 2, 2007, P. 769.&nbsp;<br />2- This is because the primary obligation shall survive the unenforceability/invalidity of the liquidated damages clause.&nbsp;<br />3- Potential damages are excluded.&nbsp;<br />4- Petition no. 494/2003, the hearing of 24 April 2004.&nbsp;<br />5- Petition no. 344/19, the hearing of 23 January 1999.&nbsp;<br />6- Petition no. 402/2004, the hearing of 28 March 2005.&nbsp;<br />7- Petition no. 221/2007, the hearing of 17 December 2007.&nbsp;<br />8- Generally, components of damages are actual loss suffered and loss of profits.</p>'),
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(81934, 4470, 'content', '<p>Concerns such as rising costs and scarce resources (including scarcity of qualified healthcare professionals) provide a further push towards using technology as a means to improve efficiency in the provision of healthcare services. In this article, we briefly outline some key areas covered by the term &lsquo;e-Health&rsquo;, and touch on some legal considerations.<br /><br /><strong>e-Health</strong></p>\r\n<p>The term &lsquo;e-Health&rsquo; is an umbrella term that covers a variety of concepts. Essentially, it refers to leveraging advancements in information technology for healthcare-related purposes. The term encompasses a range of &lsquo;front of house&rsquo; and &lsquo;back of house&rsquo; equipment and systems. These include prescription management systems, mobile or internet based patient monitoring systems, patient records management systems, electronic bill payment systems, image archiving systems, communications systems, and a variety of other examples. e-Health stakeholders include patients, healthcare professionals and healthcare providers, as well as vendors of technology, pharmaceuticals, healthcare equipment and consumables, insurance companies, and healthcare policy makers.<br /><br />The systematic collection of electronic health information about individual patients in a digital format capable of being shared in a variety of healthcare settings is often seen to be the backbone of developing a sophisticated e-Health system. So called &ldquo;EHR&rdquo; (Electronic Healthcare Records) can handle a range of data, from individual medical histories and demographic-type information through to test results, radiology images and billing information. e-Health is fundamentally dependent upon Electronic Healthcare Records and the collection and sharing of patient data, so data protection and privacy laws will clearly have an impact on the development of e-Health systems.<br /><br />Countries in which there has already been extensive investment in the e-Health systems tend to have relatively sophisticated legal protection for personal data. In contrast, countries that have not yet had much investment in e-Health systems tend to have no legislation specifically pointed to the protection of privacy. While the UAE does not have any federal data protection law, the significance of personal data in a healthcare context has been recognized to some extent - albeit in quite limited circumstances.</p>\r\n<ul>\r\n<li>The Abu Dhabi Health Insurance Law [Abu Dhabi Law 23 of 2005] makes some mention of the requirement to treat patient files of insured persons as confidential and to ensure that they are inaccessible to third parties.</li>\r\n<li>Dubai Healthcare City (a healthcare free zone in Dubai), has its own data protection regulations, the Health Data Protection Regulations [DHCC Regulation No. 7 of 2008].&nbsp;<br />While the Dubai Healthcare City regulations are comprehensive, and based on international best practice, they only apply to healthcare providers licensed in the Dubai Healthcare City free zone. Similarly, the Abu Dhabi Health Insurance Law relates only to insurance companies operating in Abu Dhabi.</li>\r\n</ul>\r\n<p>A data protection law of federal application that includes specific provisions relating to personal data in an e-Health context is something that needs to be considered if the UAE is going to be able to develop a world-class e-Health system. Such a law would need to reflect international best practices, including requiring that personal data be collected only for specified and legitimate purposes, and allowing data subjects to access data held about them and to request corrections where such information is incomplete or inaccurate.<br /><br />e-Health is not only about data protection. As with the provision of any product or service, be it an e-Health product or otherwise, there will typically be a contract for the sale of goods, and the Commercial Transactions Law is likely to provide a basis for determining disputes. Where e-Health products are sold as consumer goods, the Consumer Protection Law, and the guarantees contained within it, are likely to provide protection against substandard or defective goods. Issues such as defectiveness, failure to match descriptions or reasonable standards, failure to comply with local licensing requirements (including regulatory approval for medical devices or regulatory approval for telecommunications apparatus) are just some examples of other types of legal issues that could arise in the context of e-Health goods and services.<br /><br /><strong>m-Health</strong></p>\r\n<p>One area of e-Health that is developing swiftly is &lsquo;m-Health&rsquo;, a term used for the provision of healthcare services supported by mobile devices. There are a number of factors that have caused m-Health products and services to boom. Mobile phones are ubiquitous, even in developing countries where large segments of the population do not have convenient physical access to healthcare providers due to factors such as a shortage of healthcare workers and the distance and cost of travelling to visit a clinic. In developed countries, sophisticated smartphones and tablet computers have functions and processing capabilities that, until relatively recently, would have been considered the stuff of science fiction &ndash; and this has also led to an increase in the potential to use such devices for m-Health purposes.<br /><br />m-Health is particularly useful for providing public health education and awareness, training for healthcare workers, diagnostic and treatment support, data collection, remote monitoring and helpline-type services. SMS messages offering discreet public health information and mobile apps that result in better maintenance of a clinic&rsquo;s appointment schedule are basic examples of m-Health in action. Another example, particularly applicable in the UAE where diabetes is a significant public health issue, is the use of monitoring equipment linked with mobile devices to provide real-time analysis of a patient&rsquo;s insulin requirements.<br /><br />In the UAE, as in many other countries around the world, e-Health is at a relatively early stage in its development. Recently, both telecommunications operators in the UAE, Etisalat and du, announced their involvement in the development and provision of e-Health services. Etisalat announced that it is working closely with the Health Authority Abu Dhabi (HAAD) to share ideas and expertise to implement a community-wide program to address health issues such as diabetes and cardio-vascular disease. In collaboration with Dubai Healthcare City, du has launched an application that puts users in contact with health professionals 24 hours-a-day, reducing unnecessary visits to emergency rooms and over utilization of healthcare services.<br /><br />The integration of technology in the healthcare sector has great potential to improve healthcare generally. It can improve healthcare decision-making by both patients and healthcare providers, and it can improve the speed and accuracy of information upon which healthcare decisions are made. These types of efficiencies are likely to be seen as desirable by all healthcare stakeholders.<br /><br />Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team is able to assist with the wide variety of e-Health and m-Health related legal issues. We have a range of experience applicable to e-Health offerings, including experience with the legal side of e-payment systems, development of mobile phone applications, provision of data storage services, data protection, cloud computing, and a ranghe of other technology-related legal matters.<br /><br />For further information on any legal matters relating to technology, including healthcare technology, please contact or Nick O&rsquo;Connell (<a href=\"mailto:n.oconnell@tamimi.com\">n.oconnell@tamimi.com</a>) in Dubai, or Waldo Steyn (<a href=\"mailto:w.steyn@tamimi.com\">w.steyn@tamimi.com</a>) in Abu Dhabi.</p>'),
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(81841, 4465, 'content_description', 'Introduction:This article attempts to highlight key legal features of the Qatari Initial Public Offering (“IPO”) regime, by touching upon basic principles that must be considered as they are often misperceived, while highlighting the main parameters of the process.\r\n\r\n'),
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(81852, 4466, 'content', '<p>In spite of the hazardous and unusual situation in Iraq, there is a lot of interest from expatriate workers wanting to move to Iraq for work.&nbsp; This is evident by the millions of dollars invested in construction and reconstruction projects, as well the increasing number of foreign businesses setting up in Iraq<br /><br />In order to facilitate the increasing number of expatriate workers in Iraq, the government has recently implemented a number of laws and regulations.&nbsp; Article 12 of the Iraqi Investment Law (the &ldquo;Law&rdquo;) No. 13 of 2006 gives the investors the right to employ expatriate workers and insures to the said workers\' right to reside in Iraq.&nbsp; In addition, it gives the workers the right to transfer their wages and salaries abroad and outlines the process of entering and exiting the country.&nbsp;&nbsp;&nbsp;<br /><br />Owing to the laws and regulations that regulate the process of employment of the workers in Iraq - Chapter I (Employment) of Part II (Employment and Vocational Training) of the Iraqi Labour Code No. 71 of 1987 (the \"Labour Code\") states that the &lsquo;Department of Labour and Social Security in the Ministry of Labour and Social Affairs shall be responsible for organising the process of employing the workers&rsquo;.&nbsp; This Law distinguishes between the Iraqi workers, expatriate workers with Arabic nationalities and the non-Arab expatriate workers.&nbsp; According to the Law, an employer is obliged to inform the labour office of the employment of Iraqi workers within a period not exceeding 10 days from the date of employment.&nbsp; The Law provides that in the case where the employer is employing expatriate workers with Arabic nationalities, he shall inform the labour office of that employment within a period not exceeding 30 days from the date of employment.&nbsp; However, in the case of non-Arab expatriate workers; the employer can employ the workers after obtaining a work permit in accordance with the conditions and the procedures determined by the instructions of the Minister of Labour and Social Affairs, stated herein.&nbsp;<br /><br />Article 6 of Instructions No. 18 of 1987 states that:</p>\r\n<p><br />First &ndash; Foreigner individuals, who are outside Iraq, and are interested in working in Iraq, should follow the following procedures in order to obtain a work permit:</p>\r\n<ul>\r\n<li>Submit a written request to the Ministry of Labour and Social Affairs through the representatives of the Republic of Iraq abroad, or their attorney in Iraq, or the employer who wants to recruit them in Iraq.</li>\r\n<li>The request should include all the required information and supporting documents, and should clearly indicate their name, nationality, type of work, duration of the work, and the employer\'s name as well as the employer\'s full address.</li>\r\n<li>The Department of Labour and Vocational Training, or its divisions in the other provinces, will check all the legal conditions and the obtainment of the work permit in Iraq then will approach the competent authorities and issue an entry visa to this foreigner individual. When the workers enter Iraq, they are required to go to the Department of Labour and Vocational Training within 7 days from the date of their entry in order to finalize the procedures for obtaining the work permit.&nbsp;<br />Second &ndash; When it comes to foreign individuals already in Iraq wishing to obtain an Iraqi employment visa should follow the following steps:</li>\r\n<li>Submit all the legal papers and documents that prove the legitimacy of their entry and residency in Iraq.</li>\r\n<li>Submit a written request to the Department of Labour and Vocational Training in Baghdad, or its divisions in the other provinces, or the employer who wants to recruit them in Iraq.</li>\r\n<li>The request should include all the information related to their qualifications supported by the available certificates and documents, and should clearly indicate their name, nationality, type of work, duration of the work, and the employer\'s name as well as the employer\'s full address.</li>\r\n</ul>\r\n<p>Furthermore, Chapter I of Part II of the Labour Code outlines the imposed penalties applicable to the breach of this law.<br /><br />Finally, it is worth mentioning that, and because of the current circumstances in Iraq, this matter faced two important incidents in the past two years. On February 9th, 2010, the Consulate Department of the Ministry of Foreign Affairs issued an official letter No. 65046 which provided, in accordance with the approval of the National Security Council and the General Commander of the Armed Forces, that no work visas are to be issued to expatriate workers of both Arab or non-Arab nationalities until further notice.&nbsp; Additionally, on February 8th, 2011, the Prime Minister\'s Office issued an official letter numbered MRND/2/27/209 which included directions from the Prime Minister informing all the concerned parties in the state that they should refrain from granting any work permits to non-Arab expatriate workers unless they obtain an official consent from the Council of Ministers or National Security Council. This letter, however, did not address the employment of workers with Arab nationalities.<br /><br />In light of the above, it is clear that the Iraqi government is aiming to rejuvenate the Iraqi economy by providing clear and outlined procedures for the employment of expatriate workers in the country. This is shown through the implementation of laws such as the Iraqi Investment Law No. 13 of 2006. However, it is clear that a lot of work is yet to be done as the current volatile economic and political situation doesn&rsquo;t allow there to be a stable grounds for the importation of foreign workers. This is why until the Ministry of Foreign Affairs allows the recommencing of issuing work permits to Arab and non-Arab expatiate workers, investors are not going to be able to bring in foreign workers in the hope of improving the economic situation in Iraq.</p>'),
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(81867, 4467, 'content', '<p>As such, people or entities that differentiate their goods or services from others in the market, as well as build a relationship between the customers and their products based on trust, usually use trademarks.&nbsp; Article 37(1)(a) of the Trademark Law provides for the protection of the registered trademarks registered in the trademark office in Amman, Jordan.&nbsp; The Law states that any infringement to a registered trademark presented before the Jordanian courts, will be trialed in accordance with the provisions.&nbsp; In order for this to happen, the claimant needs to check and prove the occurrence of the infringement to the registered trademark.&nbsp;&nbsp;<br /><br />It is debatable which law is applicable to the case of civil protection for un-registered trademark in Jordan, since the Trademark Law did not cover the subject. Therefore, infringement to any unregistered trademark, such as misleading the customers by imitating a well known trademark, can be legally pursued using other branches of the laws. An example of this is the Unfair Competition Law no. 15 of 2000 (the \"Unfair Competition Law\"), which regulates the legal actions that are considered as Unfair-Competition under Article 2.&nbsp; As such, the use of registered or un-registered trademark in a way which infringes the rights and causes unfair competition by misleading the customers could be brought before the Jordanian courts and tried in accordance with the abovementioned Laws. In some cases, attorneys argue that the Unfair Competition Law does not apply in the cases concerning trademarks, but the Cassation Court laid a precedent when it decided case no.2005/3539. In this case, the judges stated that both the Trademark Law and the Unfair Competition Law are private laws and as such applied to trademarks at any time, if they see fit.&nbsp; In addition to showing the versatility of Jordanian Laws, the courts are resourceful and adaptable.<br /><br />In addition, the Trademark Law, despite not registered before the trademark office, protects well-known trademarks.&nbsp; The Paris Convention of 1883 and amended in 1973 (the \"Paris Convention\") covered the well-known trademarks in Article 6 (2).&nbsp; This Article states that the Union countries (the \"Parties\") shall give legal protection for the industrial or commercial well-known trademarks.&nbsp; This applies to both used and registered trademarks.&nbsp; The Paris Convention admitted the legal protection regarding the use or the registration of the known trademarks, without any restriction.&nbsp; The criteria set in the Paris Convention define the different aspects, which contribute to establishing a well-known trademark.&nbsp; These include, but are not limited to, the strength, usage, reach and reputation of the trademark, as well as the link between the trademark and the goods.<br /><br />Article 2 of the Jordanian Trademark law No. 34 of 1999 (the \"Trademark Law\") defines a well known trademark as a \"mark with a world renown whose repute surpassed the country of origin where it has been registered and acquired a fame in the relevant sector among the consumer public in the Hashemite Kingdom of Jordan\".&nbsp; This Trademark Law criticises that the abovementioned definition requires the trademark to be famous among the consumers public in Jordan in order to be included in the Law, which results in well-known trademarks abroad overlooked.<br /><br />The judicial precedent case no. 1987/32 acknowledged protection by all legal means if it led to mislead the consumer or to promote the Unfair Competition.&nbsp; Article 8(12) of the Trademark Law prohibits the registration of any Trademark that is identical, similar or constitutes a translation of a well-known trademark.&nbsp; Furthermore, Article 26 (1B) of the Trademark Law continues to protect trademarks by providing for the right of applicants to claim for the prevention of others to use well-known trademarks, even if not registered in Jordan.</p>'),
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(81837, 4465, 'content', '<p><strong>Introduction</strong><br /><br />This article attempts to highlight key legal features of the Qatari Initial Public Offering (&ldquo;IPO&rdquo;) regime, by touching upon basic principles that must be considered as they are often misperceived, while highlighting the main parameters of the process.<br /><br /><strong>Defining IPOs</strong><br /><br />Though a basic distinction, it is important to note that undergoing an initial public offering is separate from listing a company&rsquo;s shares on a stock market. The offering process is a form of selling shares, while listing creates a platform for trading of shares on the screen of the stock market.<br /><br />However, IPOs can be defined as the process by which a company offers its share for the first time, for subscription to an un-identified number of potential shareholders (investors). The offering of shares to an un-identified number of shareholders distinguishes IPOs from private placements, in which shares are offered to pre-identified investor(s).<br /><br /><strong>Possible forms of IPOs<br /><br /></strong>An issuer company can offer its shares to the public in an IPO either via a Greenfield offering at the time of incorporating a new company in the form of a public joint stock company. Alternatively an existing company in another legal form, other than a public joint stock company, can offer its shares to the public at the time of conversion by increasing its capital proportionally to offer the minimum free float or by sell down or a combination of both if the pertinent&nbsp;<br />regime so permits.<br /><br /><strong>Key legal requirements</strong><br /><br />IPOs under the Qatari regime are regulated under the Commercial Companies Law (&ldquo;CCL&rdquo;), the law on the Qatar Financial Markets Authority (&ldquo;QFMA&rdquo;) the (&ldquo;QFMA Law&rdquo;), the QFMA&rsquo;s regulations on offerings and listing the (&ldquo;Regulations&rdquo;) and the Qatar Exchange Rulebook (&ldquo;QE Rulebook&rdquo;).<br /><br />From the above noted legislations, the key requirements for undergoing an IPO can be summarised as follows:</p>\r\n<ul>\r\n<li>Issued capital of the issuer must be fully paid up and not less than 40 million Qatari Rials;</li>\r\n<li>Shareholders equity must not be less than the paid up capital pursuant to latest financial statements of the company;</li>\r\n<li>Article of Association of the issuer to permit offering of shares to the public, or same to be authorised by the issuer&rsquo;s regulator;</li>\r\n<li>The issuer to have been operative for at least three years. However, the QFMA has discretion to waive this requirement;</li>\r\n<li>The issuer must not have defaulted on any of its debts;</li>\r\n<li>Minimum free float to be offered must be not less than 40% of the issuer share capital being submitted for offering or listing. It is worth noting in this regard, that listing of share is mandatory upon consummating a public offering within a maximum period of six months, depending on the form of the offering;</li>\r\n<li>In the event the IPO is in respect of a conversion process, the issuer company must have realised 10% distributable profits in the preceding two financial years; and</li>\r\n<li>The minimum number of founders must be not less than 100 for companies with capital exceeding 40 million Qatari Rials and 20 for companies with capital not exceeding 40 million Qatari Rials.<br />Greenfield offerings are not strictly restricted under the Qatari regime but to require promising feasibility studies. A Greenfield offering will take the path of setting up a public joint stock company as regulated under the CCL.</li>\r\n</ul>\r\n<p><br /><strong>Implications of going public</strong><br /><br />When a company announces it is going public, it encounters severe changes. The key implications of going public can be summarised as follows:</p>\r\n<ul>\r\n<li>Periodic financial reporting becomes mandatory;</li>\r\n<li>Management control is no longer exclusive to founders;</li>\r\n<li>Transparency and disclosure are required for strategic and price sensitive decisions;</li>\r\n<li>Insider trading restrictions are imposed; and</li>\r\n<li>Sound corporate governance practises are no longer optional.<br />Each of the above noted implications can be addressed in an article of its own and internal manuals and policies are designed to take these implications into force. However, the points outlined must be understood and acknowledged before, during and after taking their company public by founders. Failing to comprehend and honour the above change of dynamics, could lead to failure and/or legal sanctions.</li>\r\n</ul>\r\n<p><br /><strong>Regulatory framework</strong></p>\r\n<p><strong><br /></strong>The machinery involving the process and documentation required for completing an IPO before the respective regulators, which may differ depending on the nature of the issuer&rsquo;s activity and underlying regime, is sampled a simplified format in the below chart.</p>\r\n<p>This process should be carefully prepared and ongoing communication with the regulators should be maintained without too much deviation from the regulators format. Attempting to import overly complex structures, while not taking into account the particulars of the local regime in terms of size, track record and existing regulations can in many cases be unrealistic, un-enforceable and could lead to abortion of the IPO.<br /><br />However, not all sophisticated structures lack basis in Qatar.&nbsp; Many structures and provisions (e.g. poison pills or independent board structures) do have legislative grounds and can be adapted to the local legal environment if well thought out and properly structured. An example to illustrate this is &lsquo;green shoe option&rsquo;, under which the issuer may authorise the issue of further share in the event of exceptional public demand. Though Article 85 of the CCL addresses the event of over subscription, the CCL does not strictly restrict the increase portion of issued share in the case of exceptional public demand.&nbsp; Accordingly, if an offering structure can be designed to permit a reserve tranch to be distributed in the event of exceptional public demand. If such a structure is presented to the regulations in a simplified manner, while highlighting market benefits of same, the regulator could agree to implement such a structure if explained step by step. Another basis to bolster the legal position of &lsquo;green shoe options&rsquo;, is that the grounds of the subscription is that of a contractual nature. As such, the parties can agree to the terms (i.e., the company and subscribers) provided the same does not contravene public order (i.e., in this case mandatory provisions of the CCL).<br /><br />This is not to say that the regulators will admit such arguments without questioning, however, in progressing markets it is always recommended to initiate novel solutions that do fit within local laws.<br /><br /><strong>Practical Considerations</strong><br /><br />There are very basic practical/legal considerations that all founders must give careful consideration to before taking a final decision to go public. These considerations can be summarised by answering the following questionnaire:</p>\r\n<ul>\r\n<li>Is our company ready to be an &ldquo;institutionalised&rdquo; and be publicly monitored?</li>\r\n<li>Are we willing to let go of control to preserve our business for generations yet to come?</li>\r\n<li>Do we have the appropriate legal, corporate, accounting and book keeping structures to go public?</li>\r\n<li>How will we treat accrued dividends if any?</li>\r\n<li>How will we address current shareholders&rsquo; loans, if any?</li>\r\n<li>How will the proceeds of the IPO be used?</li>\r\n<li>Do we realise what corporate governance really means?</li>\r\n</ul>\r\n<p><strong>Conclusion</strong></p>\r\n<p>There are pros and cons for going public and an IPO is not a prescriptive process to resolve pending concerns of the company, rather it is a strategic decision that takes the company into a new dimension. As such, the process must be prepared and thought of well in advance and not adopted on the basis of a quick decision at a peak market time.</p>'),
(81814, 4464, 'content', '<p>Syndicated finance refers to a form of financing where two or more banks or financial institutions (FIs) decide to group together to participate in a deal and each provides a portion of the principal financing sum to a borrower. Similar to conventional syndicated finance, the participating FIs in an Islamic syndicated finance will appoint a lead bank who is responsible for the syndication, coordinating the process of preparing and finalizing the documentations and closing the deal.<br /><br />In most cases, the lead bank is also a participating FI. The borrower will have no direct communications or dealings with the participating FIs throughout the syndication process and the financing tenure, instead all communications and dealings are carried out through the lead bank acting on behalf of the participating FIs. The concept of syndicated finance from the Shariah perspective works in similar ways to that of the conventional syndicated finance except that it uses structures acceptable to the Shariah. A significant feature of an Islamic syndicated finance is the absence of elements of interest. Instead, the transaction involves trades/ leases of tangible assets and these assets are expected to generate profit for the transaction, however profit cannot be guaranteed. Syndicated finance is advantageous to both the participating FIs and borrowers alike. From the point of view of the creditors, it allows&nbsp;them to participate in high valued transactions otherwise unavailable for varied reasons, such as limitations on the exposure of risks to a single customer, regulatory limits or diversification of loan portfolios. For the borrowers, it means lesser costs and time otherwise spent on preparing prospectuses or information memoranda required for the issuance of Islamic bonds or Sukuk. The documentation involved for an Islamic syndicated finance are much less and relatively easier to conclude than a Sukuk issuance, although arguably the legal documents for a syndicated finance contain more covenants to reduce the risks to the participating FIs. Islamic syndicated finance is usually granted for short term financing ranging from one to seven years of financing tenure and therefore not suitable to borrowers requiring long term financing.<br /><br />There are two tiers to Islamic syndicated finance. The first tier defines the relationship between the participating FIs and the lead bank. The second tier defines the structure of the financing to the borrower through the lead bank. There are two possible ways which are widely used to structure the relationship between the participating FIs and the lead bank. This is either by way of Wakalah (agency) or Mudarabah (partnership). In the former, the relationship between the participating FIs and the lead bank is based on Wakalah or agency principles where the participating FIs act as the Muwakeel or principals and the lead bank acts as the Wakeel or agent.<br /><br />The participating FIs will enter into an investment agency agreement with the lead bank, appointing it as the Wakeel to receive, invest the advanced funds with the borrower and execute transactions with the borrower. The borrower will utilize the funds received in the agreed manner. The lead bank as the Wakeel will assume all the rights and duties of an agent, normally stipulated by express or implied terms of the investment agency agreement. The investment agency agreement spells out the terms of the participation, distribution of principal and profit to the participating FIs, the scope of powers and authorities of the Wakeel and matters which can be decided by the Wakeel at its discretion or that which require the unanimous approval, super majority approval or majority approval of the participating FIs. Where no such terms are provided under the investment agency agreement, the rights and duties of the Wakeel may be derived from the fiduciary nature of the relationship with the Muwakeel. The Wakalah relationship may also be governed by the applicable local agency laws. As an agent, the lead bank is entitled to receive agency fees for its role, although at times the Wakeel is granted the right to receive performance or incentive fees. In the Mudarabah structure, the participating FIs, as the Rab Al Mal, appoints the lead bank as the Mudarib through a Mudarabah agreement. The Mudarib carries out the management of the Mudarabah. To a certain extent, the terms and conditions appearing in the Mudarabah agreement are similar to that of the investment agency agreement. However, in the Mudarabah agreement, the Mudarib does not carry the duties of an agent and agency laws applicable in the jurisdiction will not be applied to the relationship. Instead of a fee, the Mudarib is entitled to share in the percentage of profit generated from the investment of the funds but the losses will only be borne by the Rab Al Mal. In substance, both the Mudarabah and Wakalah structures operate similarly, although they are conceptually different. Wakalah is a fee based mechanism where the Wakeel is entitled to take fees upfront and is not entitled to the profit generated by the financing. Mudarabah, on the other hand, is a mode of equity partnership and is performance based. The question on whether to use a Wakalah or Mudarabah structure does not give rise to any significant advantage in choosing one over the other.<br /><br />The current practice of the Islamic financial industry is to increasingly adopt the Wakalah as opposed to the Mudarabah structure. Although the latter had an earlier start in the industry, there are several factors which may need to be taken into account on whether to utilize Wakalah or Mudarabah for an Islamic syndicated finance. One consideration is that a Wakalah relationship, being an agency, may attract the specific application of agency laws in the jurisdiction of the governing law. Tax issues are another consideration. There may be different tax implications under the local tax laws for each structure depending on how the laws interpret the relationships. There may also be different treatment of the funds received by the Wakeel or the Mudarib which will present significant issues in the event of insolvency of the Wakeel or the Mudarib. Another issue is that where the Wakeel is not one of the participating FIs, the Wakeel would presumably have no incentive in pursuing the interests of the syndicate. The Wakeel will earn agency fees regardless of the performance of the transaction and consequently may concentrate on closing as many transactions as possible rather than ensuring the quality of the transactions. For instance, the Wakeel may compromise on the covenants imposed on the borrower for the sake of closing the deal quickly and therefore exposing the participating FIs to more risks. To alleviate these problems, the Islamic principles are flexible enough for the syndicate to incorporate into the Wakalah relationship incentive fees or performance based fees to be paid to the Wakeel, as in the case of excess profit after distribution of the expected periodic returns to the participating FIs and deduction of expenses and taxes.<br /><br />In Mudarabah, the Mudarib works on a performance basis, and would want to ensure that the Mudarabah generates as much profit as possible, consequently benefiting the syndicate as a whole. However, such incentive to the Mudarib may result in the Mudarib taking more risks than what is optimal for the syndicate, as any losses will be borne solely by the participating FIs and not the Mudarib.<br /><br />The decision issued by the English High Court of Justice on Investment Dar Co v Blom Development Bank (on the 11th December 2009) has caused concern among participants in the Islamic financial market on the use of Wakalah arrangements and the wider Islamic financing transactions. One of the arguments by the appellant (the defendant in the first instance) to support its ultra vires argument defence was that the Wakalah agreement was not Shariah compliant as it merely disguised the presence of interests and guaranteed the returns to the principal. Even though in this case the High Court did not specifically rule that the Wakalah agreement in dispute, or Wakalah agreements in general for that matter, was non Shariah compliant, it did state that &ldquo;where one finds, as one does in this master Wakalah contract, a device to enable what would at least to some eyes appear to be the payment of interest under another guise, that is at least an indirect practice of a non Shariah compliant activity.&rdquo; This gives rise to the concern as to whether pronunciations by the Shariah boards on if a transaction is Shariah compliant matters at all and if a secular court is allowed to make its own observation in this regard; however that is another discussion altogether. Despite such uncertainties presented by this case, the use of Wakalah in Islamic syndicated finance continues, mainly because participants are waiting for a more definite decision on this matter.<br /><br />The second tier of the Islamic syndicated finance is the funding to the borrower itself and the structure depends on the purpose of the financing and the available assets. Almost all Islamic finance structures can be used, the most common is the Murabahah (Tawarruq) structure. Despite its prevalent use in the Islamic syndicated market, this structure came under close scrutiny recently when the International Council of Fiqh Academy resolved that Tawarruq or what is known as &lsquo;organized Tawarruq&rsquo;, as practiced by many banks and financial institutions, was not permissible. In particular they ruled that it came into conflict with the real objectives of the Shariah. It was argued that although Tawarruq has its basis in the Shariah, it was merely paper documents disguising the elements of interest based lending. It was found that in organized Tawarruq, the structure was designed to get around the prohibition on interests and therefore the intention of all participants contradicts the objectives of the Shariah. However, this position was challenged by prominent scholars on the basis that it is in the social interests of Muslims to continue using Tawarruq as a means of financing due to its usefulness, provided that there are proper checks and balances to prevent abuse. Despite such resolution, market players continue to use Murabahah (Tawarruq) for Islamic syndicated finance. The controversies surrounding the application of Murabahah (Tawarruq) prompted the market to move away from such a structure to find alternative structures. One structure which has been increasingly used is Ijarah.<br /><br />An example worth noting is the US$125 million syndicated Ijarah facility made between Liquidity Management House, Kuwait Finance House, BNP Paribas, Gatehouse Bank, Ahli United Bank and Boubyan Bank (as the lead arrangers), other financiers and Burgan Company for Well Drilling Trading and Maintenance (Burgan) for the acquisition by Burgan of four new oil rigs, marking the debut of Burgan into the Islamic syndicated market. This transaction was the first Shariah compliant corporate syndication out of Kuwait and the GCC in 2009 and was oversubscribed, suggesting confidence in Islamic syndicated finance during adverse market conditions.<br /><br />In conclusion, there is so much potential for Islamic syndicated finance to grow and expand, being a useful and important financing tool particularly in times of financial crisis due to the spread of risks and pooling of resources. Despite controversies surrounding certain Islamic financing structures, the flexibilities accorded by Islamic principles present the market participants with opportunities to push for more innovative and attractive Islamic syndicated finance products.<br /><br />Originally published in the Islamic Finance News, Volume 7 Issue 30</p>'),
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(81777, 4461, 'content', '<p><strong>SUMMARY<br /><br /></strong>A local bank in Abu Dhabi brought an action against its agent to recover money invested by the agent on behalf of the principal. Money was invested in purchasing commodities from suppliers, which was then sold on to purchasers on a deferred payment basis.<br /><br />After purchasing the commodities for itself, the agent executed four promissory notes in favour of the local bank.<br /><br />The agent defaulted on its installments which resulted in the acceleration of payments.&nbsp; The agent was unable to pay as a result of serious financial problems it was facing.<br /><br />The local bank filed an application for the provisional attachment of the agent&rsquo;s assets in the amount of the debt.&nbsp; The local bank also held promissory notes in the amount of the debt which were due and payable and established the debt.<br />The Court of First Instance ordered the agent to pay the full amount claimed and confirmed the provisional attachment order.<br /><br />The agent appealed the decision and argued, amongst other issues, that the UAE courts did not have jurisdiction to hear the matter as the governing law clause in the Agency contract provided that all disputes be referred to the English courts and that the promissory notes were incomplete and did not comply with the requirements set out under the Commercial Code (Federal law no. 18 of 1993).<br /><br />The Court of Appeal dismissed the agent&rsquo;s appeal and confirmed that the UAE courts had jurisdiction to hear the matter pursuant to Articles 20-23 of the Civil Procedure law (Federal Law&nbsp; no. 11 of 1992) and that the promissory notes complied with Article 592 of the Commercial Code (Federal Law no. 18 of 1993).<br /><br /><strong>CLAIM<br /><br /></strong>The local bank (the &ldquo;Claimant&rdquo;) brought an action before the Abu Dhabi Court of First Instance against the agent (the &ldquo;Defendant&rdquo;) to claim USD 32,980,134 or its equivalent in UAE Dirhams and filed an attachment order of the Defendant&rsquo;s assets in the amount of the debt.</p>\r\n<p>It was maintained that on 08.11.04, the Claimant, as Principal, entered into a master agency agreement (the &ldquo;Agreement&rdquo;) with the Defendant, as Agent, for the sale of the commodities covered by the Agency Contract. On 28.10.08, the Defendant was paid a substantial amount of money under the terms of the Agreement and the Defendant purchased international commodities from a trading company on the Claimant&rsquo;s behalf then sold them on Claimant&rsquo;s behalf to itself (Defendant) on the basis that payment would be made at Claimant&rsquo;s offices in the UAE on 27.10.09 and that Claimant&rsquo;s profit would be an agreed amount. After purchasing the commodities for itself, the Defendant executed four promissory notes in favour of the Claimant, the total value of which amounted to US$ 32,980,134.<br /><br />The Defendant defaulted on its installments which resulted in the acceleration of payments under Clause 8 of the parties&rsquo; Agreement. The Defendant quickly ran into serious financial problems during the past period not only in the UAE but across the GCC. Central banks in several GCC countries had stopped dealing with the Defendant&rsquo;s group. The UAE Central Bank issued a circular authorising banks in the UAE to set-off outstanding payments against the value of facilities granted to the Defendent and not grant them any further facilities. On 28.07.09, the Claimant gave the Defendant notice of acceleration under Clause 8 of the Agreement and requested immediate payment for all investment transactions involving the promissory notes.<br /><br />The Claimant received a reply from the Defendant on 09.08.09 confirming that the Defendant had received said notice and that it was facing financial difficulties and had set up a creditors committee to pursue debt collection. On 20.12.09, the Claimant filed an application for the provisional attachment of Defendant&rsquo;s assets and the Court issued an order directing the provisional attachment of all the debtors&rsquo; shares in the Defendant&rsquo;s company and its funds in banks in the UAE up to the amount of US$ 32,980,134.7 or its UAE Dirham equivalent. Given that the Claimant held promissory notes in the amount of the debt which were due and payable at its UAE offices, the debt was established. The Claimant had attached the Defendant&rsquo;s assets on 22.12.09.<br /><br /><strong>THE COURT OF FIRST INSTANCE</strong><br /><br />The matter progressed to the Court of First Instance. The Claimant and Defendant were represented by their respective lawyers. The Defendant&rsquo;s lawyer filed a response denying the claim entirely and rejecting the photocopies of the exhibits. The Claimant&rsquo;s lawyer filed a memorandum enclosing originals of the exhibits such as the original Agency Contract and copies of remittance advices in addition to the original promissory notes in question. The Defendant filed a memorandum and commented on the original documents in which it denied that the signature on the Agency Contract and the promissory notes was that of the late director of the Defendant&rsquo;s group, claiming that it was forged, and requested that the documents be referred to a crime lab. Claimant filed a memorandum of comments in response to the Defendant&rsquo;s points.<br /><br />On 23.05.10, the Court of First Instance ordered the Defendant to pay, to the Claimant, the sum of US$ 32,980,134.7 or its UAE Dirham equivalent at the date of payment while confirming a prima facie provisional attachment up to the amount of the award, together with costs and AED 200 in advocate&rsquo;s fees.<br /><br /><strong>COURT OF APPEAL<br /><br /></strong>The Defendant was not satisfied with the lower Court&rsquo;s decision and appealed on 20.06.10 in Appeal No. 758-10 requesting that the appeal be admitted in form and, on the merits, that the lower Court&rsquo;s decision be reversed and the action dismissed for lack of prima facie evidence.&nbsp; The Defendant argued that the Claimant be compelled to produce the original account opening form for the Defendant and that the form, together with the Agency Contract and four promissory notes, be forwarded to the crime lab to verify the signature, in response to its defence and assertion that it was unaware of the purported signature of the late director on its behalf. The Defendant argued that it has permission to proceed with a forgery claim and the case file be referred to forensics. The Defendant requested as an alternative that the case be referred to a banking expert specialising in Islamic banking who would visit the Claimant&rsquo;s premises in order to investigate any actual dealings between the parties, the documents filed by the Claimant and the contracts Claimant alleges exist between the parties, the purpose of the promissory notes, the amounts owed by the Defendant, the validity of amounts and the extent of their conformity to the total value of the promissory notes. The expert would also be called upon to investigate the purchase and sale contracts the Defendant had allegedly executed and their validity and the resulting dealings as well as all other documents filed in the proceedings with a view to arriving at the truth concerning the parties&rsquo; relationship and determining whether or not the claim was valid. The Defendant appealed on the following grounds:<br /><br /><strong>1)&nbsp;Error in the application and interpretation of the law&nbsp;</strong><br /><br />The Defendant asserted that the UAE Courts had no jurisdiction in the matter. In addition to the parties&rsquo; agreement on English law except to the extent it may conflict with Islamic Sharia under Clause 10(3) of the Agency Contract supporting Claimant&rsquo;s claim for the value of the promissory notes, the Contract provides that &ldquo;the parties hereby submit to the jurisdiction of the English courts for the purposes of any proceedings arising out of or relating to this Agreement,&rdquo; and Clause 10(1) states that the Agreement shall be governed by and executed and performed in accordance with English law except to the extent that it may conflict with Islamic Sharia.</p>\r\n<p>Jurisdiction is part of public policy and the Defendant may raise a plea as to jurisdiction at any stage of the proceedings and the Court would declare of its own motion that it has no jurisdiction in the matter. Additionally, the Statement of Claim shows no address or domicile for the Defendant in the UAE and provides an address in Saudi Arabia which means that it&rsquo;s a foreign company with no domicile or residence in the UAE.&nbsp; Therefore, the UAE can not be vested with jurisdiction. Furthermore, the action does not concern property in the UAE but relates to the performance of an agency contract outside the UAE in the Kingdom of Saudi Arabia. The Defendant pleaded that the UAE Courts do not have jurisdiction in the matter pursuant to Articles 20 and 21 of the Civil Procedure Law and that the contracts were performed in Saudi Arabia where the Defendant is domiciled&nbsp;<br />&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<br /><strong>2)&nbsp;Photocopies of exhibits<br /></strong><br />Defendant rejected photocopies of all of Claimant&rsquo;s exhibits and requested that the Claimant be compelled to produce the originals of those copies which it claimed were inaccurate or not issued. Defendant argued that the copies cannot be admitted as evidence against it and the copies lacked probative value.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p>\r\n<p><strong>3)&nbsp;Erroneous Reasoning in respect of the signature<br /></strong><br />The lower Court failed to examine the Defendant&rsquo;s defence and its plea of ignorance and denial of the purported signature of Defendant&rsquo;s Director, particularly on the four promissory notes which all bear a signature purporting to be that of the late director but do not bear the Company&rsquo;s original seal or even a copy thereof.<br /><br /><strong>4)&nbsp;Forgery<br /></strong><br />Defendant categorically and explicitly maintained that the content and signatures and seals on the documents supporting the claim are forged and that the documents should be referred to forensics<br /><br /><strong>5)&nbsp;Prejudice to the right of defence<br /><br /></strong>The Court of First Instance rejected the Defendant&rsquo;s request to see the original documents thereby prejudicing its right of defence<br /><br /><strong>6)&nbsp;Erroneous Reasoning with respect to the Defendant&rsquo;s acknowledgement of the debt<br /><br /></strong>The Court of First Instance erred in finding that Defendant had acknowledged the debt and the amounts claimed for Claimant in its reply to Claimant&rsquo;s notice requesting payment of the claims upon which the Court relies</p>\r\n<p><strong>7)&nbsp;Lack of evidence</strong><br /><br />The Defendant sought dismissal of the claim for lack of prima facie evidence and argued that the promissory notes supporting the claim lacked probative value and are incomplete, fictitious, and inadmissible as evidence and that the amounts claimed are invalid while continuing to assert its arguments and maintain that it did not acknowledge the alleged Agency Contract purportedly issued thereby or the promissory notes in the amounts being claimed. Even if these documents were valid, which the Defendant did not concur, the Defendant argued that the claim is invalid and devoid of any legal basis. The amounts allegedly remitted to the Defendant are markedly different to the amounts claimed. The purchase and sale contracts allegedly executed by the Defendant did not bear any signature or seal that can be attributed to the Defendant who, to confirm and clarify the legal irregularities in the relationship and dealings, asked that the matter be referred to the Supreme Authority for Bank Supervision attached to the Ministry of Islamic Affairs &amp; Awqaf. The promissory notes were incomplete and contrary to commercial legislation as they do not include the place where they were made. The Claimant was therefore in breach of Article 593 of the Commercial Code as they had to present the promissory notes to the Defendant in order to be marked as sighted.<br /><br /><strong>8)&nbsp;Request for an Expert&nbsp;<br /></strong><br />Defendant sought the appointment of an expert in the proceedings specialising in Islamic banking and transactions in order to determine the nature of the relationship between the parties and review the case documents, including the promissory notes and the Agency Contract, and examine all the issues which the Defendant wanted to put before the expert.<br /><br /><strong>COURT OF APPEAL<br /><br /></strong>The Court of Appeal dismissed the appeal on the following basis:<br /><br /><strong>1.&nbsp;The UAE Courts have jurisdiction in the matter.</strong></p>\r\n<p>Turning to the provisions in the Agency Contract signed between the Defendant and the Claimant dealing with law and jurisdiction, Clause 10 provides that: &ldquo;This Agreement shall be governed by and executed and performed in accordance with English law except to the extent that it may conflict with the provisions and principles of Islamic Sharia and the parties hereby submit to the jurisdiction of the English courts for the purposes of any proceedings arising out of or relating to this Agreement.&rdquo;<br /><br />The four promissory notes state that &ldquo;the sum payable hereunder is payable to Claimant, Abu Dhabi at your offices in the UAE&rdquo;<br /><br />Since international jurisdiction is part of public policy and is an attribute of sovereignty, UAE courts are necessarily excluded from hearing cases involving property abroad but otherwise retain jurisdiction in the situations described in Articles 20 and 21 of the Civil Procedure Law and any agreement contrary to Articles 20, 21, 22 and 23 dealing with international jurisdiction is void.&nbsp;<br /><br />Based upon the international jurisdiction given to the UAE Courts under Article 20 of the Civil Procedure Law, except for actions in rem concerning real property abroad, the courts shall hear actions brought against UAE citizens and aliens who maintain domicile or a place of residence in the UAE.<br /><br />This general principle of jurisdiction specifies the circumstances in which the courts have jurisdiction. Under Article 21 of said Law, the courts shall have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE in the following cases:<br /><br />a.&nbsp;If he has elected domicile in the UAE;<br /><br />b.&nbsp;If the proceedings concern property in the UAE, inheritance accruing to a citizen or an estate opened therein;<br /><br />c.&nbsp;If the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE, a contract to be attested in the UAE, an event that occurred in the UAE or bankruptcy declared by a UAE court;<br /><br />According to the said Article, UAE courts have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE if the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE.<br /><br />The four promissory notes in question confirm that they are payable at Claimant&rsquo;s offices in the UAE noting that Claimant&rsquo;s head office is in Abu Dhabi. The place of performance is accordingly Claimant&rsquo;s premises in Abu Dhabi. Therefore, Clause 10 of the Agency Contract which states that the performance of the Contract shall be governed by English law contradicts the international jurisdiction of the UAE Courts and is void according to the aforementioned Article 24. The Claimant may therefore bring the instant action before an appropriate court within Abu Dhabi&rsquo;s independent court system, including the Court of First Instance, against the Defendant as an alien who maintains no domicile or residence in the UAE as per the exclusion under Article 21(3). Since jurisdiction in the matter belonged to the Abu Dhabi Court of First Instance, the plea was without basis or merit and was dismissed.<br /><br />2.&nbsp;As to the second head under which Defendant rejected the copies of the documents and argued that they must therefore be held to have no probative value.<br /><br />The Defendant rejected the copies of the documents in its reply to the Statement of Claim. Claimant filed the originals of the documents, namely the Agency Contract and the four promissory notes concerning the claim. Defendant again rejected the copies of the documents even though the originals were produced. The Court of First Instance based its decision on the original documents, not the copies, so this argument was disregarded.<br /><br />3.&nbsp;As regards the third and fourth arguments that the Court failed to address the Defendant&rsquo;s plea of ignorance and denial of the purported signature of its Director, on the four promissory notes which do not bear the Company seal and request that the Agency Contract and four promissory notes be referred to the crime lab in response to its claim of forgery.<br /><br />Article 23 of the Law of Evidence provides that a party claiming forgery shall bear the onus probandi and Article 24 of said Law provides that if the person against whom an exhibit testifies denies his script, signature, stamp, or thumbprint, or if the heir or successor denies having knowledge that the exhibit was issued by the person from whom he received the title, while the other party holds onto the exhibit, and if the facts and documents are not adequate to satisfy the court as to the authenticity of the script, signature, stamp or thumbprint, the court shall order an enquiry by signature matching, testimony or both.<br /><br />Article 28 of said Law states that forgery may be claimed at any stage of proceedings.&nbsp; The party making this claim shall specify all parts in which the alleged forgery took place together with the evidence and the investigative proceedings by which he requests that his claim be proven. In this connection, he shall present a memorandum to the court or shall record said evidence in the minutes of hearing. If the claim is relevant to the dispute, but the facts and documents of the case are not enough to satisfy the court as to whether the instrument is genuine or forged and it considers the investigation requested to be relevant and permissible, it shall order an investigation through matching or testimony or both.<br /><br />The Defendant had not specified the parts in which the alleged forgery took place or provided supporting evidence. The Court considered the claim to be irrelevant to the dispute and the facts and the Claimant&rsquo;s exhibits are sufficient for it to reach a decision. The plea was accordingly dismissed.<br /><br />4.&nbsp;With respect to the fifth argument that the Defendant had not seen the original documents which had been filed, namely the four promissory notes because the Court refused to let it see them.<br /><br />The Defendant rejected the copies of the documents. The Claimant filed the original four promissory notes and provided the Defendant with copies thereof. The Court is obliged to compare the copy with the original when an objection is raised regarding the admissibility of the copy. With the original on file, the copy received by the party is sufficient and the argument was disregarded.<br /><br />5.&nbsp;With regard to the sixth and seventh arguments that Defendant did not acknowledge the debt as stated in the appealed decision and that Claimant failed to substantiate the claim and that the promissory notes lacked probative value and were incomplete and fictitious, was also dismissed.<br /><br />It was clear that the Claimant, after sending an urgent special notice to the Defendant on 28.07.08, proceeded on 10.09.09 to send the Defendant notice regarding payment under the promissory notes requesting, on the basis of the Agency Contract, for the sale of commodities dated 08.04.08 to make an immediate payment under the promissory notes which were the same promissory notes involved in the proceedings and have the same value as those promissory notes.<br /><br />The Defendant replied on 09.08.09 to the notice it had received from Claimant. The reply stated that difficulties arose within the financial unit of the Defendant Company including the financing, development and investment arms of the Company and that they are collecting, reviewing and assessing information on financial obligations and the future outlook for the Company&rsquo;s financial unit. The Defendant requested the Claimant to work with the creditors committee to approve the issues.&nbsp;<br /><br />In this letter, the Defendant did not deny dealing with the Claimant or the amount of the claim evidenced by the four promissory notes in question which confirmed the Defendant&rsquo;s contradictory stance of denying the four promissory notes while accepting them.<br /><br />Concerning Defendant&rsquo;s assertion that the promissory notes were incomplete, Article 478 of the Commercial Code stated that commercial papers are bonds written according to forms specified by law, representing a right, the subject of which is a certain amount of money, due for payment at sight or after a fixed or determinable time. They are commercially negotiable and customarily acceptable as an instrument of payment instead of money.<br /><br />According to Article 481 of said Law, the promissory note is a commercial paper under which its maker undertakes to pay a certain amount of money at sight or at a specified or determinable date to the beneficiary<br /><br />Article 591 of said Law specifies the particulars of the promissory note and Article 592 of said Law states that a note shall be considered a promissory note even if it does not contain any of the particulars including the place of making in which case it shall be deemed to have been made at the place indicated next to the maker&rsquo;s name or at the place where he actually signed the note.<br /><br />The four promissory notes in question contained all the particulars listed in Article 591 and are considered commercial paper. Hence, Claimant had the right to demand payment of the value of the notes and the Defendant was required to make such payment. Claimant had requested Defendant by notice dated 28.07.09 and further notice dated 10.09.09 to pay the value of the four promissory notes which meant that the documents filed, including the four promissory notes, constituted sufficient prima facie evidence of the claim in the absence of counter evidence from Defendant. Defendant&rsquo;s argument regarding the four promissory notes had no basis in fact and law and the sixth and seventh grounds were dismissed.<br /><br />6.&nbsp;As to the eighth head under which the Defendant requested the appointment of an expert specialising in Islamic banking and transactions to investigate specific issues namely the case documents, including the promissory notes and the Agency Contract which it claimed were incomplete and contrary to legal requirements, pointing out that it never acknowledged any relationship with the Claimant and contested all the contracts, documents and promissory notes as forged. This argument was also dismissed.<br /><br /><strong>Outcome</strong><br /><br />The issues the Defendant wanted to put before the expert were legal issues that fell within the competence and duties of the court. The issues did not fall within the competence of the expert whose work was based on scientific and technical principles. The Court addressed all the legal issues and considered expertise to be unproductive to the proceedings because the Claimant&rsquo;s exhibits were sufficient to prove the claim which it based on the four promissory notes (which were proper commercial paper). The request for expertise and the Appeal were therefore dismissed and the appealed decision was upheld. &nbsp;</p>'),
(81749, 4460, '_content', 'field_59b649b5c8b2b'),
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(81748, 4460, 'content', '<p>The discussion also highlights the fact that the new law will help business confidence and financial restructuring. The current bankruptcy legislation (contained within Book Five of the Commercial Transactions Law No. 18 of 1993) has not been tested much in the courts and the judgment discussed below dates from 1997.&nbsp; However, this judgment gives us an example as to how the UAE courts decided a case where the trader/claimant applied for voluntary bankruptcy.<br /><br /><strong>In summary:</strong><br /><br />1.&nbsp;Bankruptcy rules form part of public policy due to their connection to the UAE&rsquo;s credit system.&nbsp; As a result, the fact that bankruptcy rules form part of public policy means that bankruptcy provisions in the Commercial Transactions Law apply notwithstanding the fact that the case was filed in 1991 before the Commercial Transactions Law of 1993 (the &ldquo;CTL&rdquo;) came into force.&nbsp; This is because the legal consequences of the bankruptcy manifested after the CTL came into force and therefore the CTL automatically governs the proceedings.<br />It is clear upon reviewing the court&rsquo;s decision that Article 645 of the CTL allows any trader, who ceases to pay his commercial debts when due, to be declared bankrupt on the basis that &ldquo;it merely implements the prevailing commercial rules in comparative legislation that was in force prior to the Commercial Transactions Law.&rdquo;<br /><br />2.&nbsp;The Court of Appeal in this case was correct when it declared the trader (who had ceased paying his commercial debts when they fell due) bankrupt;<br /><br />3.&nbsp;The Criminal Court, not the Civil Court, has jurisdiction over an offence of negligent/contributory bankruptcy which is a criminal offence pursuant to articles 418 and 419 of the Federal Penal Code. In this case the Civil Courts could entertain the civil case only and looked into whether or not the requirements of bankruptcy were met in the Claimant&rsquo;s (the trader&rsquo;s) case.&nbsp; Even if the trader was contributory negligent, the civil court can not adjudicate the matter as this falls under the jurisdiction of the criminal court.<br /><br /><strong>The Claim:</strong><br /><br />The owner of a bakery (the Claimant) brought a civil action before the Abu Dhabi courts against a bank and others, seeking a declaration of her bankruptcy and an attachment order against the bakery&rsquo;s property.&nbsp; The intention being that the property would be subjected to an inventory count and then either placed under administration or sold and the proceeds distributed pro rata among the creditors according to their respective claims.&nbsp; The claim was made on the basis of her inability to pay the bakery&rsquo;s outstanding debts which became in excess of its assets.<br /><br /><strong>Court of First Instance:</strong><br /><br />The Court of First Instance dismissed the case.<br /><br /><strong>Court of Appeal<br /><br /></strong>The Bakery Owner appealed before the Court of Appeal.&nbsp; On 26.06.96 the Court of Appeal quashed the Court of First Instance&rsquo;s decision and declared the Claimant bankrupt.&nbsp; The Court of Appeal requested the Execution Judge to distribute the proceeds from the sale of the bakery&rsquo;s assets among the creditors taking into account the provisions on secured claims and public and private preferential claims. The Bank appealed to the Supreme Court.<br /><br /><strong>Supreme Court<br /><br /></strong>1. The Bank argued that the Court of Appeal incorrectly applied the law by applying Article 645 of the CTL on the basis that the case was brought in 1991 while the law in question was issued in 1993.<br /><br />The Supreme Court rejected the Bank&rsquo;s argument on the basis that bankruptcy rules, which promote good credit, are part of public policy, and the CTL automatically applies. As mentioned in the summary above, the legal consequences of the bankruptcy manifested after the CTL came into force and it is therefore irrelevant that the proceedings commenced in 1991.<br /><br />2. The second argument made in the Bank&rsquo;s appeal is that the Court of Appeal neglected to consider that the Trader was bankrupt as a result of her contributory negligence; therefore she is criminally liable under the Penal Code.&nbsp; As a result, the Bank argued that the Civil Court should not have proceeded to adjudicate. Again, the Supreme Court rejected this decision on the basis that when a court has to consider a trader criminally liable for the crime of bankruptcy by contributory negligence, the criminal court must consider Articles 418 and 419 of the Penal code which exclusively sets out the instances in which a trader shall be considered bankrupt through negligence and the civil courts do not have jurisdiction to try a criminal offense for which it has no jurisdiction.<br /><br />3. The Bank&rsquo;s third argument was that the Court of Appeal decision did not take into account the impact of the recession.&nbsp;<br /><br />The Supreme Court rejected this argument. The requirement in Article 177-2 (sic) of the Civil Procedure Law that the statement of appeal to cassation include a statement of the grounds of appeal means that the grounds, according to the settled practice of this Court, be clearly stated and identified by unambiguous wording that explains the fault the appellant is attributing to the decision, his position, and the effect on the decision. The Bank had not disclosed its intentions in its previous arguments.&nbsp;<br /><br />Based on the foregoing, the Bank&rsquo;s appeal was dismissed. &nbsp;</p>'),
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(81739, 4459, 'pageSummary', 'The proposed Federal Law on Financial Restructuring and Bankruptcy (the “Law”) revolutionizes bankruptcy rules, for both individuals and companies, currently comprised within the civil law.'),
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(81722, 4458, 'content_description', 'Dealings with KSA real estate are principally carried out according to a well established and traditional process involving private negotiations followed by the participation of a regional government employee of Shari’ite qualifications (Notary Public) to complete the change of ownership.'),
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(81724, 4458, 'pageSummary', 'Dealings with KSA real estate are principally carried out according to a well established and traditional process involving private negotiations followed by the participation of a regional government employee of Shari’ite qualifications (Notary Public) to complete the change of ownership.'),
(81725, 4458, '_pageSummary', 'field_59e59b307dec8'),
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(81732, 4458, '_yoast_wpseo_metadesc', 'Dealings with KSA real estate are principally carried out according to a well established and traditional process involving private negotiations followed by the participation of a regional government employee of Shari’ite qualifications (Notary Public) to complete the change of ownership.'),
(81733, 4459, 'content', '<p>The Law provides structured arrangements, administered under direct Court supervision, which seek to balance the debtor&rsquo;s and creditors&rsquo; needs.<br /><br />The Law applies to:</p>\r\n<ul>\r\n<li>companies incorporated under the Commercial Companies Law, establishments and individuals engaged in commercial activity; and</li>\r\n<li>individuals.</li>\r\n</ul>\r\n<p>The Law does not apply to Governmental Authorities (although it does apply companies owned by the Government) and entities in financial freezones.<br /><br />The Law sets up a new regulatory body the &ldquo;Committee of Financial Restructuring and Bankruptcy&rdquo;. The Committee must administer the Law and administer the Law&rsquo;s procedures.<br /><br />The Law outlines twin gates through which any &lsquo;debtor&rsquo; becomes subject to its processes:</p>\r\n<ul>\r\n<li>Payment Suspension &ndash; (i.e. the debtor has stopped meeting or servicing debts).</li>\r\n<li>Excessive Indebtedness &ndash; (i.e. the debtor&rsquo;s assets do not cover liabilities)</li>\r\n</ul>\r\n<p>A debtor in a position of Payment Suspension or Excessive Indebtedness can access the Law&rsquo;s procedures to protect the debtor from other legal attacks.&nbsp; The Law provides for active involvement by creditors, who can attend meetings, inform court appointed experts of their debt claims, and vote on any proposed restructuring.<br /><br /><strong>Financial&nbsp; ReOrganisation Procedures<br /><br /></strong>The process provides for the Committee approving of a &lsquo;consent agreement&rsquo; entered into between the debtor and the creditors under which the parties agree to enable the debtor to satisfy his debtors in part or in whole.&nbsp;<br /><br /><strong>Preventative Composition Procedures<br /><br /></strong>Similar to the Financial ReOrganisation Procedures a debtor, a regulatory authority or a creditor may apply to the Court for (or the Court may instigate itself) a Court sponsored and supervised plan for the restructuring of a debtor&rsquo;s liabilities (a &ldquo;Preventative Composition of Bankruptcy Plan&rdquo;).<br /><br />The Court will appoint as an agent of the debtor one or more &lsquo;Supervisors of Composition&rdquo; (court registered bankruptcy experts and other specialists) to assist the debtor in the restructuring of the debtor&rsquo;s liabilities.&nbsp; A judge may be appointed to supervise the process in complex cases.&nbsp; A Preventative Composition of Bankruptcy Plan must be lodged with the Court.<br /><br />From the beginning of the Preventative Composition of Bankruptcy Plan period the debtor shall manage the ongoing conduct of his commercial or financial dealings under the direct supervision of the Supervisors of Composition (who have wide ranging powers to interfere in the conduct of the debtor&rsquo;s business and affairs).<br /><br />Creditors can apply for up to five observers to represent them in the Preventative Composition Procedures.&nbsp; The observer&rsquo;s job is to ensure that the views and interests of the creditors as a whole are represented throughout the process.<br /><br /><strong>Bankruptcy Procedures<br /><br /></strong>The Court may, upon a request from the Supervisors of Composition or at its instigation, transfer Preventative Composition Procedures into bankruptcy if it becomes evident that the Preventative Composition of Bankruptcy Plan will not deliver the results promised or that the debtor is in a hopeless position of Excessive Indebtedness.&nbsp; Should the debtor default under the obligations imposed by the Preventative Composition of Bankruptcy Plan this will also result in the termination of the Preventative Composition Procedures and a shift into bankruptcy.<br /><br />A creditor owed more than AED 10,000 may petition the Court for the debtor&rsquo;s bankruptcy.<br /><br />Whilst bankruptcy procedures in effect deprive the debtor of the power to manage the debtor&rsquo;s business and affairs; as all such powers are assumed by the Court appointed bankruptcy supervisor.<br /><br />After a meeting or creditors is convened, the bankruptcy supervisor will produce a plan to the Court which will recommend either a restructuring plan or the liquidation of the debtor&rsquo;s assets.&nbsp; Once approved by creditors and the Court the key terms of the plan are published.&nbsp; The plan will set out time limits for returning the debtor to profit, the provisions recommended by the bankruptcy supervisor for settling all liabilities and the preferential treatment of creditors if justified.&nbsp; The restructuring plan cannot exceed five years in duration.<br /><br /><strong>Liquidation<br /><br /></strong>In the event of termination or vacation of bankruptcy procedures the Court can order the liquidation of the assets of the debtor.&nbsp; This can be by public auction or otherwise and the bankruptcy supervisor is obliged to liquidate all assets necessary to satisfy debts.&nbsp; The distribution of assets is subject to the Court&rsquo;s approval of a distribution plan.<br /><br /><strong>Non-Trading Individuals<br /><br /></strong>The Law also provides for specific provisions in relation to non-trading individuals (who maybe the subject of a liquidation process managed by an expert and involving the involvement of creditors in the drawing up of a plan for the restructuring of debts).</p>\r\n<p>The expert will assist the debtor in satisfying his creditors, whilst at the same time arranging for a reasonable standard of living for the debtor and his dependents.&nbsp; The debtor is deprived of the ability to administer his works and cannot settle any amounts of more than AED 5,000 without the Court&rsquo;s approval.<br /><br />In the event the liquidation process fails, the Court will order the liquidation of the debtor&rsquo;s assets and the Law provides specific procedures for the conduct of the same.<br /><br />The Law also provides for the settlement of bankruptcy of a deceased&rsquo;s estate.<br /><br />The Law contains specific provisions relating to the declaration of bankruptcy in companies and non-trading individuals.&nbsp; These provisions include: a stipulation that the shareholders in a company be a party to the bankruptcy declaration, and that the board of managers and directors are deemed responsible for the settlement of debts when the assets of the company are not sufficient to settle twenty per cent of the company&rsquo;s debts.<br /><br /><strong>Preferential Treatment of Creditors<br /><br /></strong>The Law provides for prioritization of debts, with debts secured by senior or underlying security satisfied first and other debts in a scheduled order as set out in the Law.<br /><br />The bankruptcy supervisor or Supervisors of Composition can apply to the Court to set aside any acts of the debtor prohibited by the Law. This has important implications, particularly for banks or trade creditors with exposure to the person in financial difficulty.<br /><br />The Law also provides for a grievance procedure, an appeal process and criminal penalties and sanctions for the contravention of the Law.<br /><br /><strong>Analysis<br /><br /></strong>The Law represents a sea-change in the approach to the treatment of debtors in the UAE and presents significant implications for the administration of the procedures set out in the Law, not least given the lack of professionals and court officials expert in the handling of bankruptcy.</p>'),
(81678, 4456, 'pageSummary', 'CPD in any professional discipline is always a subject that is high on the people related agenda Within the legal profession, a number of countries such as the UK, Canada and Australia already have a requirement for some form of continuing study as part of the requirement for practicing law.'),
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(81682, 4456, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Chris Lipscomb'),
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(81690, 4456, '_yoast_wpseo_metadesc', 'CPD in any professional discipline is always a subject that is high on the people related agenda Within the legal profession, a number of countries such as the UK, Canada and Australia already have a requirement for some form of continuing study as part of the requirement for practicing law.'),
(81691, 4457, 'content', '<p><strong>Background</strong><br /><br />Commercial papers such as promissory notes and bills of exchange due to their universal nature are globally regulated by the 1930 Geneva Convention providing a Uniform Law on Bills of Exchange and Promissory Notes (&ldquo;Geneva Convention&rdquo;).&nbsp; Although the UAE has not formally ratified the Geneva Convention, the relevant provisions relating to promissory notes and bills of exchange covered under Federal Law No 18 of 1993 (&ldquo;Commercial Code&rdquo;) are substantially similar to the provisions of the Geneva Convention relating to such commercial instruments.<br /><br /><strong>Distinction between promissory notes and bills of exchange</strong><br /><br />The Commercial Code distinguishes between these instruments in that the bills of exchange reflect an unconditional payment arrangement between drawee, drawer and the beneficiary of such bills of exchange (i.e. a cheque or bankers draft).&nbsp; On the contrary, a promissory note is a bilateral arrangement between a promissor and beneficiary. Be that as it may, the provisions of the Commercial Code relating to negotiation, endorsements and avalisation are common among such instruments and are discussed further below.<br /><br /><strong>Endorsement</strong><br /><br />Bills of exchange and promissory notes can also be endorsed and assigned by the beneficiary in favour of a third party.&nbsp; A valid endorsement under the Commercial Code means a transfer of title of the rights of a beneficiary to a third party (i.e. the endorsee).&nbsp; The procedure for endorsements of such instruments require the endorser to either execute the endorsement by stating that the payment shall be made to the order of the new beneficiary or by appending an allonge (a document setting out the terms of the endorsement) signed by the endorser.&nbsp; Such endorsement would constitute a guarantee by the endorser of the payment by the issuer or drawee under such instrument.&nbsp; It is important to note that all endorsements must be unconditional and any condition attached to the endorsed instrument shall be deemed null and void under the Commercial Code.&nbsp;<br /><br /><strong>Avalisation</strong><br /><br />UAE law recognises &lsquo;avalisation&rsquo; in connection with bills of exchange and promissory notes and such avalisation is envisaged under the Commercial Code as a &lsquo;precautionary guarantee&rsquo;.&nbsp; A precautionary guarantee is an additional third party undertaking separate from the undertaking of the issuer (in case of promissory notes) or an acceptor (in case of bills of exchange), whereby the precautionary guarantor (which is usually a bank or financial institution) shall be liable in the same manner as the issuer or the acceptor. The details of the &lsquo;aval&rsquo; or precautionary guarantee shall be written on the bills of exchange or the promissory note itself or on an &lsquo;allonge&rsquo; appended to such instrument clearly indicating a precautionary guarantee. Further, the instrument being avalized is required to be signed by the precautionary guarantor.&nbsp;<br /><br /><strong>Interest on bills of exchange and promissory notes<br /><br /></strong>It is common to see interest provisions applicable to the amounts payable under promissory notes and bills of exchange and such interest on the face amount is calculated as an aggregate of a benchmark rate (i.e. EIBOR or LIBOR) and specific margin or profit (in percentage form).&nbsp; Although such practice in relation to time bills is common, it may be contrary to the provisions of UAE law as the Commercial Code restricts the application of interest on a bill of exchange or promissory note unless such instrument is payable at sight.&nbsp;<br /><br /><strong>Enforcement<br /><br /></strong>In the event of a non-acceptance of bills of exchange at the date of maturity the Commercial Code allows the beneficiary recourse against the drawer, endorser as well as the precautionary guarantor (if avalized).&nbsp; Under the Commercial Code the issuer of a promissory note has the same obligations as the acceptor of bills of exchange. As the above provision has been widely contemplated, in case of multiple endorsements, the Commercial Code allows the ultimate beneficiary to enforce such endorsed instrument against all the endorsers up to the ultimate endorser.&nbsp; The Commercial Code also prescribes certain limitation periods in relation to such instruments which vary between six (6) months to three (3) years depending on the nature of the action.<br /><br /><strong>Conclusion</strong><br /><br />As bills of exchange and promissory notes are commonly used in the UAE for general trading activities, documentary credit transactions, as well as structured trade finance as legally enforceable payment instruments with the flexibility of endorsements and assignments.&nbsp; Therefore, it is useful to consider the UAE law issues highlighted in the article above in structuring trade or trade finance transactions which include such commercial papers and instruments.</p>'),
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(81717, 4457, '_yoast_wpseo_metadesc', 'In the current economic times due to liquidity constraints among banks and financial institutions, we are finding more and more trade finance transactions are beginning to include commercial instruments such as promissory notes and bills of exchange. Therefore, it is important to understand the specific elements of such commercial instruments under the commercial laws of the United Arab Emirates (“UAE”).'),
(81718, 4458, 'content', '<p><strong>Regulatory Overview<br /><br /></strong>Dealings with KSA real estate are principally carried out according to a well established and traditional process involving private negotiations followed by the participation of a regional government employee of Shari&rsquo;ite qualifications (Notary Public) to complete the change of ownership.<br /><br />Such a system of ownership could be compared with a &lsquo;deeds system&rsquo; whereby ownership is traced through the various contractual arrangements between buyer and seller. The Notary Public performs the valuable function of authenticating the identities of the parties and may record the transaction in a register but the register does not purport to be the definitive record of all interests in relation to the real estate unit.&nbsp;<br /><br />However, as is the case with many aspects of the KSA regulatory regime, the government has in recent years significantly modernised the legislative framework though the introduction of The Realty in Kind Registration Law, issued by Royal Decree No. 6 on 9/21423H, corresponding to 24/2/2004 (RKR Law) and other laws designed to facilitate a comprehensive real estate titles framework. The RKR Law creates an efficient and transparent land identification, ownership and registration system which will ultimately cover all real estate in the Kingdom. This law is also supported by the following laws relating to surveying of land and the sale of units in a building:</p>\r\n<ul>\r\n<li>The Law of General Survey Authority; and</li>\r\n<li>The System of Ownership of Units, Estates, units, apartments and their Sorting, issued by Royal Decree No. 5 on 11/2/1423H, corresponding to 24/4/2002.</li>\r\n</ul>\r\n<p><strong>The above laws are in cases supplemented with Executive Regulations</strong><br /><br />The swathe of new &lsquo;Green Fields&rsquo; projects being implemented in the KSA by the government or related special purpose vehicles create both the need for such projects to be brought within the framework established by the RKR Law as well as the opportunity.<br /><br />The principal difficulty with implementing a real estate titles regime, where &lsquo;ownership&rsquo; has not previously been linked to surveyed parcels of land and a centralised register, has been the issue of competing interests in the estate. Such interests could be disputes as to ownership, easements, covenants, financial liens, and leasehold interests.<br /><br />A Greenfield project, by its nature has none of these competing interests as the developer will (other than in exceptional cases) have a clear right to create the individual estates within the master community.<br /><br />Many projects currently being developed or in the planning stages will have elaborate communal facilities, the costs of maintaining and repairing of which will have to be met by the stakeholders in the master community.<br /><br />Bringing these &lsquo;Greenfields&rsquo; developments within a land titles regime will create the ability to ensure that purchasers who acquire title are bound to make such contributions to the communal facilities. This can be achieved by ensuring that documentation, generally called a &lsquo;master community declaration&rsquo; is registered as a restriction against the title to the property. Purchasers wishing to purchase a particular real estate unit will have the ability to search the title and any interest recorded on this and accordingly will have knowledge of the relevant restrictions when they acquire title.<br /><br />A centralized register also creates the ability to ensure that liens, mortgages and other Shari&rsquo;ah compliant financing arrangements can be recorded on the title thereby protecting the interests of the financiers, owners and third party purchasers.<br /><br /><strong>Survey and identification of the Real Estate Unit</strong><br /><br />The RKR Law establishes a decentralised system of land registration and transfer which reflects the approach and methodology of similar systems throughout the world. The register will describe each land parcel in the designated area, its location, legal status, ownership rights and obligations, all in the context of indefeasibility of title (in the absence of a breach of Shari&rsquo;ah principles or forgery). Each land parcel will have a unique serial number. The focus is on the identity of the land parcel, with proprietary interests established by reference to registered dealings.<br /><br /><strong>There will be two phases to the roll out of the new registration system:</strong><br /><br />First Registration Phase. The Ministry of Municipal and Rural Affairs will prepare cadastral maps of each property in a designated area. The Ministry of Justice will then document the rights relating to each identified property and that information will be placed in the register according to the status quo under the supervision of a competent local court judge. During this phase, only the person with the right to dispose of particular rights will be able to request a change to recorded information. Persons concerned by the first registration process have rights of objection with specified time limits. One could expect that this aspect could be simplified significantly with a Greenfields Project as the number of parcels at the outset are likely to be limited as would the interest of any third party.<br /><br />Subsequent Registries Phase, where dealings subsequent to the first registration will be detailed and recorded in the register. These dealing include transfers, variation of rights, long term leases and mortgages. Registration fees will apply. In the case of a Greenfields Project the sub-division and sale of real estate units would be with the developer and the developer would have the opportunity of completing its own comprehensive records of estates to be created as part of its master planning. As each estate is created and sold the relevant plans and additional interests can be recorded in the real estate register.<br /><br /><strong>Implementation<br /><br /></strong>One could be forgiven for thinking that given that the laws are in place that the hard work was done. In fact, it is only the beginning of the project. Implementation presents the real challenge. In addition KSA covers a vast area with differing administrative bodies and districts. Whilst it would not be necessary for each district to follow exactly the same methodology, this would be desirable.<br /><br />Below we have set out some of the issues that may need to be considered in settling a collective vision for the real estate registration and outline and potential challenges:<br /><br /><strong>Surveying and standards<br /><br /></strong>An important feature of a real estate titles regime is the clear identification of the real estate unit in question. Surveying is a process whereby a specialist surveyor (generally using global positioning technology, satellite imagery and other similar technology) will create an accurate two or three dimensional drawing of the unit.<br /><br />This unit however has to be allotted within a larger unit, plot or block in order that this can be identified in relation to other plans making up the survey area. In order to such tasks to be undertaken there will need to be specific practice guidelines as to how measurements are done and the ancillary information required upon the plans. This data then needs to be recorded in the surveying authority&rsquo;s records.<br /><br /><strong>Titles<br /><br /></strong>Titles need to contain a range of information. Firstly the title must identify the real estate unit and preferably include a copy of the plan referred to above. Other information to be recorded includes:</p>\r\n<ul>\r\n<li>Ownership details;</li>\r\n<li>Liens, mortgages and other similar rights</li>\r\n<li>Easements, for example the right to use a certain area within the unit of another party on certain terms and conditions;</li>\r\n<li>Covenants for example the obligation to maintain a boundary wall or the obligation to comply with the master community declaration;</li>\r\n<li>Registered leases.</li>\r\n</ul>\r\n<p><strong>Utility and functionality<br /><br /></strong>Completing the various functions, set out above, adds value in that the relevant interests will be clearly defined and stored in a secure register. The registry must however be dynamic and capable of facilitating changes in the data and performing various other functions as follows:</p>\r\n<ul>\r\n<li>Establishing Priorities. Commercially it is possible for an owner to create one or more competing (unregistered) interests to their unit. An example would be where the owner sells or mortgages their unit to more than one person. In addition it may be that a financier agrees to lend money against the unit knowing that his interest may be inferior to that of another financier. The registry should therefore have a system for recognising which interest has priority. Generally the interest having priority will be that interest registered first in time though exceptions are sometime made in cases of fraud or where a party had knowledge of the other competing interest and this competing interest was made first in time.</li>\r\n<li>Having Search capability. The ability to search a register enables a party wishing to acquire an interest in the real estate unit to check to see what other interests may already exist. This reduces greatly the potential for disputes and frauds. In addition surveyors and other parties may require information such as plans and title details to allow them to perform their legitimate functions.</li>\r\n<li>Transferability and the ability to prevent transfers. Obviously any registry needs to be able to transfer a party&rsquo;s ownership interests in the register. Other interests may also benefit from being able to be transferred or have sub interests created from them. The ability to transfer mortgages (or other forms of financial encumbrances) and lease as well as the ability to sub-lease may add value to any registration system. In addition it may be beneficial to allow some interests to be transferred subject to an interest. For example parties to a contract for the freehold interest in land would normally be prepared to transfer ownership subject to a lease. In contrast specific no objections may be required prior to allowing a party to transfer, for example no objections certificates from the master developer or owners association to ensure that the owner has cleared all outstanding estate or service charges.</li>\r\n<li>Caveats or other blocking procedures. In many circumstances a contract for sale or creating an interest in the unit may be created well in advance of registration taking place. In such circumstances a procedure to enable a party to register its &lsquo;pending&rsquo; interest adds value. This procedure is commonly referred to as the ability to &lsquo;caveat&rsquo; the title. A &lsquo;caveat&rsquo; ensures that dealings that are inconsistent with the rights of the caveator are prevented. It may also be prudent for the system to allow for a procedure allowing a registered party to force the caveator to sustain its interest through the courts to prevent abuses of this process.</li>\r\n<li>Subdivisions, strata titling and amalgamations. Large parcels of land and buildings may be subdivided into smaller units. In addition plots may need to be amalgamated for example where a proposed development is constructed over plots previously in two titles. The registry will need to be able to cancel and reissue plans and titles to reflect such changes.</li>\r\n</ul>\r\n<p><strong>Financing of projects</strong></p>\r\n<p>Projects can be financed or partially financed in a number of ways as follows:</p>\r\n<ul>\r\n<li>From the resources of the developer;</li>\r\n<li>Through delayed payments under the sale and purchase agreement for the plot and other financing arrangements;</li>\r\n<li>Through funding by a financial institution;</li>\r\n<li>Through &lsquo;off plan&rsquo; sales.</li>\r\n</ul>'),
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(81663, 4455, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Lara Haidar'),
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(81672, 4456, 'content', '<p>In the Middle East, the government of Dubai has now cautiously begun to look at this issue in more detail and recently hosted a workshop on 6th December at the Dubai Police Academy to discuss the desirability of implementing compulsory CPD requirements for all lawyers in Dubai.<br /><br />In recognition of the importance of the workshop, the event managed to attract a number of well known keynote speakers including the firm&rsquo;s own Senior Partner, Essam Al Tamimi and other significant key legal figures in Dubai including Dr Jamal Al Sumaiti, Director General of the Dubai Judicial Institute and Dr Mohammed Kamali, General Director of the Institute of Training and Judicial Studies. A sprinkling of international speakers and senior representatives from other major law firms in the region added to the quality of the debate.<br /><br />The workshop began with some opening remarks by Mark Beer, DIFC Courts Registrar who really re-emphasized the fact that our clients have the right to expect the highest standards of professionalism from lawyers in a similar way that we take for granted when seeking medical attention or going for dental treatment. He emphasized the importance of professionals maintaining and developing their knowledge in line with legislative changes and best practice but also noted that different levels of lawyers understandably have varying development needs which do not just revolve around pure technical skills. Other speakers who followed Mark noted the importance of fostering a culture that actively encouraged CPD and also noted that those jurisdictions where CPD for lawyers is compulsory generally attracted a more positive impression of the legal profession overall.<br /><br />Some speakers highlighted the variety and portability of different training media available that could aid CPD including e-learning, a form of development that could potentially prevent a cost effective solution for lawyers in smaller firms. A subsequent session focused specifically on the challenges and benefits for law firms in developing internal training programs. Not surprisingly, this was a topic on which Essam Al Tamimi had a lot to say on given that Al Tamimi is the only firm in the region that has its own locally based Training Academy. In his presentation, Essam picked up on the fact that for him having a structured approach to learning &amp; development was not only desirable but essential if you wanted to attract the most talented lawyers to your firm from other major international players with large numbers of staff who invest significant resources in their CPD propositions.&nbsp;<br /><br />During the course of the workshop it was clear from everyone present both speakers and delegates alike that they accepted the value and the need for CPD and also commended the Government of Dubai for looking to make this a compulsory part of a lawyer&rsquo;s ability to practice in the Emirate. What was perhaps understandably less clear is exactly the form this would take. It was recognized that there are a myriad of internal and external training bodies that currently provide resources to the legal profession in Dubai and this in itself raised the question of how training providers are regulated or licensed.<br /><br />Not surprisingly, this workshop was designed to promote debate before more detailed proposals are launched which will no doubt be informed by some of the issues that were discussed at this workshop.&nbsp; In the interim, attendees were asked to explore ways in which they could network best practice through this and similar forums. Al Tamimi itself will be participating in a GCC wide initiative that will help raise standards in the region.<br /><br />No specific timescales were indicated as to when CPD will become a mandatory requirement in Dubai but there is no question that it will happen. As in almost everything else, Dubai is keen to be seen as a leader in the region when it comes to raising professional standards. Happily, this is one area where Al Tamimi as a firm is also well placed to help shape the future. &nbsp; &nbsp;&nbsp;</p>'),
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(81653, 4455, 'content', '<p>Online gaming has been developing in the region for several years and there are various online gaming companies locally and regionally which offer a range of online games including international titles (some of which have been localized for Arabic gamers), as well as growing local talent and many home-grown games in the pipeline. Some recent examples include:<br /><br />-Semaphore (a Saudi based company) which has announced the launch of a new video game entitled&nbsp; &ldquo;Unearthed: Trail of Ibn Battuta&rdquo; which is purported to have a \"unique mix\" of platforming, melee, shooting and stealth action and will be released in episodic format and will be received on Xbox Live Arcade, PSN, WiiWare, PC, Mac and mobile platforms. It will also be featured in both English and Arabic language.&nbsp;<br /><br />-Tahadi Games, a UAE based pioneer in the field of publishing Arabic online games has recently released the Arabic version of a major web browser online game &ldquo;Heroes of Gaia&rdquo; &ldquo;Abtal Gaia&rdquo;. The game, which has over 2 million players worldwide, is in Arabic and has exclusively been launched for Arabic gamers with no download, no subscription, and can be played from anywhere using any flash enabled connected device.<br /><br />-Jawaker is a multiplayer card game website for the Arab world. It is a free-to-play site with no download or need to install any software &ndash; gamers just create an account and start playing immediately. Jawaker also allows for any user to create a new game or join an existing one. Jawaker also has a unique application on Facebook which allows users to create private games with their Facebook friends only and notify their online friends to join the game.<br /><br />The business models may vary but the industry is growing and focusing more on localization and home grown products that cater to the Middle East audiences with a direct relevance to Arab gamers, whilst still holding universal appeal.<br /><br /><strong>Developments in the UAE&nbsp;</strong><br /><br />The gaming industry is growing rapidly in the UAE as well with bigger interest and investment taking place locally to develop homegrown talent and games.&nbsp;<br /><br />Twofour54, a content creation community based in Abu Dhabi that facilitates the development of Arabic media and entertainment content in the region, has recently teamed up with Ubisoft (a leading international developer, publisher and distributor of interactive entertainment products including games such as &ldquo;Assassin&rsquo;s Creed&rdquo; and &ldquo;Prince of Persia&rdquo;) to establish a games development studio in Abu Dhabi and the first courses are scheduled for March 2012. This will allow the region to create its own games and develop a gaming industry base.<br /><br /><strong>Working with the challenges&nbsp;</strong><br /><br />The next phase of growth lies with Arabic localized content. Localization and content translation is one issue. The other major issue is one of censorship.<br />In the UAE, the National Media Council (NMC) is responsible for monitoring the content of materials published in the country, including electronic games. In recent times:<br /><br />-The NMC was considering censoring the game &ldquo;Spec Ops: The Line&rdquo; as one of the settings was Dubai after a massive sandstorm has ravaged the city. Basically, it visualizes a destroyed Dubai.<br /><br />-The international success &ldquo;Grand Theft Auto&rdquo; was banned in the UAE for violent content.<br /><br />-Local media commentators have been speculating on whether highly anticipated first-person shooter video game &ldquo;Call of Duty Modern Warfare 3&rdquo;&nbsp; will be banned as its final mission takes place in a Dubai hotel and involves a bloody shootout.&nbsp;<br /><br />It is important though to put the issue of censorship within an international context. Although the NMC has banned several video game titles because of objectionable content, the UAE is not the only country where censorship of games occurs. For instance:<br /><br />-Call of Duty: World at War was banned in Japan because of strong violence against Japanese soldiers.<br /><br />-Fallout 3 was banned in India for featuring two-headed cows clashing with religious sensitivities.<br /><br />-Mass Effect was initially banned in Singapore for featuring cross-species single gender relations but was subsequently released with M18 rating.<br />There are various others.<br /><br />Censorship is applied across the MENA region as well. Iran has its own foundation that deals with games, the Iran National Foundation of Computer Games which, in 2007, established The Entertainment Software Rating Association (ESRA). The ESRA is a public video game content rating system that evaluates games and rates them &lsquo;age appropriate&rdquo; based on their content. The rating system is reportedly based on the culture, society and the special values of Islam and rates the content of games based on parameters such as violence, promoting tobacco or drugs, sexual content or nudity and other values. Games that are not rated by the ESRA are reportedly considered illegal.<br /><br />The position in the UAE is that content developers and publishers have to self-regulate within the cultural, social and legal restrictions of the country.<br /><br /><strong>The legal Framework</strong><br /><br />Digital or online media content, like traditional media content, is the subject of extensive regulation in the UAE. The regulations are actively enforced by the authorities and also apply to businesses in free zones.<br /><br />-The Publications and Publishing Law. This law governs content, irrespective of whether the content is published digitally or via traditional mediums such as newspapers or magazines.&nbsp; The Law regulates printing and publishing activities in the UAE and is broad enough to cover all forms of published content expression including television broadcasting.&nbsp; Matters that may not be published include matters related to religion and politics, national security, individual rights and public morals.</p>'),
(81634, 4454, 'content', '<p>It seems that manufacturers of &lsquo;brand name&rsquo; mobile phones now have another weapon in their arsenal for combating counterfeit. In this article, we briefly look at the basis upon which the TRA is taking action against counterfeits.<br /><br />The UAE Telecommunications Law (Federal Law No. 3 of 2003) makes it an offence for anyone to use, sell, offer for sale or connect any telecommunications apparatus that is not &lsquo;Type Approved&rsquo;. The TRA has exclusive competence in matters relating to Type Approval for Radio and Telecommunications Terminal Equipment (&lsquo;RTTE&rsquo;; see box) in the UAE. The Type Approval regime is intended to protect health and safety, limit electro-magnetic disturbance caused or received by RTTEs, ensure efficient use of the radio spectrum, and protect the workings of public telecommunications networks.<br /><br /><strong>Application</strong><br /><br />A registered dealer may submit an application for Type Approval by using a prescribed form and by paying a prescribed fee. Additionally, it is necessary to submit a technical datasheet, a Declaration of Conformity (being a signed declaration setting out the Technical Standards with which the RTTE conforms) and letters of support from the manufacturer or its authorized agent.<br /><br />The Declaration of Conformity, and its supporting documentation, must be prepared in compliance with certain international standards. If the RTTE has already been approved in certain other jurisdictions, then the supporting documentation kept on file by the Registered Dealer need not be as comprehensive as would be required where no such foreign approval had already been secured.<br /><br />If the application is in order, the registration process would take about two weeks, and last for three years renewable for further periods.<br /><br /><strong>Compliance</strong><br /><br />The TRA undertakes surveillance to ensure compliance with the Type Approval regime. Non-compliance by falsely claiming to have secured Type Approval is punishable by Under article 73 of the Telecommunications Law, which provides that anyone who manufactures, uses, sells or offer for sale or use, any Telecommunication Apparatus to be connected to a Public Telecommunication Network, knowing that the telecommunications apparatus has not been approved in accordance with the law, is liable to be punished by either or both of imprisonment for not more than one year and a fine of no more than AED 200,000. Counterfeit phones are unlikely to have been through the Type Approval process, and this appears to be the basis upon which the TRA is proposing to take action.<br /><br />Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team regularly advises manufacturers, importers and dealers in respect of Type Approval for RTTEs in the UAE.<br /><br /><strong>BOX:</strong><br /><br />Radio and Telecommunications Terminal Equipment (&lsquo;RTTE&rsquo;) are &lsquo;telecommunications apparatus employing wireless transmission in the frequency range 9kHz to 3.000 GHz propogated in free space and/or telecommunications apparatus directly connected or intended to be directly connected to a Public Communications Network&rsquo;.</p>'),
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(81527, 4449, 'content', '<p>The Original Law was implemented in order to regulate the tenant-landlord relationship. These provisions apply to all leased real estate except for the following:<br /><br />1.&nbsp;Real estate leased for the purposes of agriculture and animal breeding;<br />2.&nbsp;Real estate leased to the employees in connection with their employment contracts; and<br />3.&nbsp;Real estate, in full or in part, owned by the government or one of the governmental agencies leased for investment purposes such as hotels, restaurants, etc.<br /><br />In an aim to improve the regulations controlling the tenant-landlord relationship, the Law was implemented in 2011. The said Law provided for and amended issues relating to rent, its re-evaluation as well as notice periods. The following outline the amendments made to the Original Law and provide a brief explanation as to what the amended legal positions of landlords and tenants are.<br /><br />Depending on the date at which the tenancy contract was entered into, the Original Law provided set periods in which the landlord could evict the tenant.&nbsp; However, Article 1 of the Law has amended the said Article and has cancelled the aforementioned period.&nbsp; As a result, the landlord can no longer give the tenant a deadline for evicting the premises.<br /><br />In accordance with Article 3 of the Law, the rent could be revised and re-valuated after obtaining the approval of both the landlord and the tenant.&nbsp; However, in the case of a disagreement, the amendments grant all the parties the right to file an application to the court requesting a reevaluation of leases negotiated before 31 August 2000.&nbsp; According to the Law, this new and regulated rent shall take effect starting from the filing date of the said application.&nbsp; However, all leases agreed on or after 31 August are subject to the signed contract and its conditions.<br /><br />Article 5 of the Law has revoked and terminated articles 14 and 15 of the Original Law.&nbsp; Before their termination, the said Articles required that the tenant pay extra in regards to some selected situations.&nbsp; As a result, and due to the termination of the aforementioned articles, no additions are added to the agreed rent.&nbsp; The rent agreed upon in the contract shall be the amount that prevails.<br /><br />Further, the amendments in the Law provide that if the landlord sends a legal notice to the tenants requesting the payment of the amount of the rent usually paid, both parties shall lose the right to ask for a different revaluated rent. This is as the receipt of such notice constitutes an implicit acceptance of the named original rent.<br /><br />In regards to the revaluated rent, the Law provides that the court have the sole discretion when deciding the amount after reading the report prepared by the industry experts concerning the situation.&nbsp;The court\'s decision concerning the rent, made within six months from the date of the application submission, is final, absolute and irrevocable.<br /><br />Other amendments provided for by the Law are the amendments made to Article 7 and 18 of the Original Law. According to the Law, Article 18 now provides for the reevaluation and review of the rent amount once every five years.&nbsp; Alternatively, Article 7 regulates the right of continuing the lease in the case of the tenant&rsquo;s death.&nbsp; It provides for the right of his successors to carry on the lease.&nbsp; This article additionally defines a specific category to which this article applies, in accordance with social demands and circumstances.</p>'),
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(81531, 4449, 'content_description', 'The amended Jordanian Landlords and Tenants Law (the \"Law\") No. (22) Of 2011, that reads along with the Landlords and Tenants Law No. (11) of 1994 (the \"Original Law\"), includes amendments to the previous law of 2009 in order to correct the legal position of landlords and tenants.'),
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(81533, 4449, 'pageSummary', 'The amended Jordanian Landlords and Tenants Law (the \"Law\") No. (22) Of 2011, that reads along with the Landlords and Tenants Law No. (11) of 1994 (the \"Original Law\"), includes amendments to the previous law of 2009 in order to correct the legal position of landlords and tenants.'),
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(81545, 4449, '_yoast_wpseo_metadesc', 'The amended Jordanian Landlords and Tenants Law (the \"Law\") No. (22) Of 2011, that reads along with the Landlords and Tenants Law No. (11) of 1994 (the \"Original Law\"), includes amendments to the previous law of 2009 in order to correct the legal position of landlords and tenants.'),
(81546, 4450, 'content', '<p>The QFMA has circulated the Draft Regulations for consultation, and the Draft Regulations are expected to be endorsed and to come into force soon.&nbsp;<br /><br />The Draft Regulations reflect the awareness of the QFMA of the important and vital role that Small and Medium Enterprises (the &ldquo;SMEs&rdquo;) play in the national economy. The QFMA realises that giving the opportunity to SMEs to list their shares in the capital market will provide such SMEs with funding mechanisms to help them expand, and reach out, to new markets, and correspondingly support the national economy.&nbsp;&nbsp;<br /><br />The Draft Regulations include a package of benefits for SMEs to motivate such SMEs to list their stock in the Second Market (the market designated for trading of SMEs shares in the Qatar Exchange). The Draft Regulations provide for offering and listing requirements which are more flexible compared to those of the Main Market in relation to minimum capital requirements, shareholders, number of shares required to be offered for public subscription, financial history of the company, in addition to less disclosure requirements which do not prejudice the security and integrity of the capital market.&nbsp;<br /><br />We highlight below the most important provisions set out in the Draft Regulations:<br /><br /><strong>1.&nbsp;Capital<br /><br /></strong>The Draft Regulations allow companies with capital not exceeding QR 40 million to offer and list their shares in the Second Market at Qatar Exchange. This will allow companies with capital as small as QR 10 million to be publicly traded in the stock market in Qatar, as the QFMA Regulations on Offering and Listing of securities issued in 2010 (the &ldquo;QFMA Regulations&rdquo;) does not allow companies to list their shares in the Qatar Exchange, unless they have a minimum capital of QR 40 million (the QFMA Regulations are only applicable to companies with capital exceeding QR 40 million).<br /><br /><strong>2.&nbsp;Shareholders</strong><br /><br />Currently, the QFMA Regulations does not allow companies to list their shares in the Qatar Exchange, unless they have a minimum of 100 shareholders.&nbsp; The Draft Regulations contain a provision which allow companies having not less than 15 shareholders to list their shares in the Qatar Exchange. This provision will allow SMEs with limited number of shareholders/founders to be publically traded companies.<br /><br /><strong>3.&nbsp;Shares<br /><br /></strong>The Draft Regulations provide that at least 10% of the issuer&rsquo;s capital must be offered for public subscription. However, the Draft Regulations are not clear if a company should offer 10% of its existing shares or issue new shares amounting to 10% of its capital. These issues are expected to be clarified upon endorsement of the Draft Regulations.<br /><br />The Draft Regulations appears to be significantly more flexible in relation to the minimum number of shares that shall be offered for public subscription compared to the QFMA Regulations, as the latter provides that a company may not offer less than 40% or more than 80% of its shares for the public.&nbsp;<br /><br /><strong>4.&nbsp;Financial History<br /><br /></strong>Pursuant to the QFMA Regulations, an issuer must provide the QFMA with audited financial statements in relation to the company&rsquo;s latest three financial years. The Draft Regulation includes a lesser restriction in this regard, as it requires the issuer to submit audited financial statements for the company&rsquo;s latest financial year.&nbsp;<br /><br /><strong>5.&nbsp;Disclosure Requirements</strong><br /><br />The Draft Regulations provide for a diluted ongoing reporting requirement compared to listed companies regulated by the QFMA Regulations. The Draft Regulations provide that a listed company must file with the QFMA annual and semi-annual reports, while under the QFMA Regulations a listed company must file with the QFMA quarterly, semi-annual and annual reports.&nbsp;<br /><br />Additionally, the QFMA Regulations provide that a listed company must file disclosures to the QFMA and QE, in addition to posting such disclosure reports on the issuer&rsquo;s website. Additionally, the annual report must be published in two daily newspapers, one of which in Arabic. The Draft Regulations do not require publication in newspapers, as it only requires filing the disclosure reports with the QFMA and QE, in addition to posting the same on the company&rsquo;s website.&nbsp;&nbsp;<br /><br /><strong>Conclusion<br /><br /></strong>The Draft Regulations are expected to facilitate the listing of shares of SMEs in the Qatar Exchange through flexible procedures which commensurate with the structures of SMEs, while maintaining a strong level of supervision and control to ensure transparency and protection of interests of SMEs&rsquo; shareholders. We have seen a common feature in markets of the region, when leading shares fall they pull down the whole market and possibly surrounding markets given that the majority of the exchanges host mostly leading shares. With this proposed new dynamic, by adding SME&rsquo;s, the severity of cross market implications can be cautioned in our view and will allow positive movement on the equity markets in Qatar and possibly the region when the Draft Regulations is promulgated.</p>'),
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(81492, 4446, 'content', '<p><strong>Who are the people whose money is subject to legal  accountability?</strong></p>\r\n<ol>\r\n<li>Each person managing or trying to manage financial transactions and  employing its revenues for use in illegal activity; or all those responsible for  transferring or sending cash and financial means to an entity or a person  knowing that it will be used to support or finance illegal activities.  Furthermore, each person with the intention to execute the illegal activity, or  take advantage of it, or protect those who manage this activity from  prosecution, are subject to legal accountability.</li>\r\n<li>Each person responsible for covering up or concealing the location, source,  ownership or control of the proceeds of the illegal activity in these two  paragraphs shall be: <br />a)&nbsp;Either fined an amount not more than 40 million  Iraqi dinars, or double the value of the money used, whichever is more; or  <br />b)&nbsp;Shall be given a prison sentence of 4 years. <br />Furthermore, it is  possible to give the aforementioned person both the fine, as well as the prison  sentence.</li>\r\n<li>Any person responsible for providing the money, or hiding or covering up for  the money knowing that it is being used in violation of the law.</li>\r\n<li>Any person responsible for providing support to a terrorist group or working  on the shipment of the armed conflict, restricting or intimidating the public or  an international or governmental organization shall be fined 20 million Iraqi  Dinars, or given a prison sentence for a period not exceeding two years; or  both.</li>\r\n</ol>\r\n<p><br />The Central Bank has the right to conduct audits of the financial  institutions it is responsible for by watching for any suspicious financial  activity subject to money laundering or financial crime.<br /><br /><strong>What are  the punitive measures taken against financial institutions that violate the laws  against money laundering?</strong></p>\r\n<ol>\r\n<li>According to Article (9) (the \"Act\") of the Money Laundering Law of 2004  (the \"Law\") entitled to issue an order to cease the activity resulting in the  violation;</li>\r\n<li>Assess a monetary penalty under the provisions of the Central Bank of Iraq  Law to the violating institution, or any person engaged in or participating in  activity violating this Act;</li>\r\n<li>Publish the results of any enforcement action, including the name(s) of any  persons involved;</li>\r\n<li>Issue an order that a person found to have violated this Law or participated  in a violation of this Law shall not be permitted to be involved in the affairs  of a financial institution either permanently or temporarily;</li>\r\n<li>Withdraw authorization to act as financial institutions, if the institutions  themselves or persons responsible for administering or managing their business  are found to have seriously or repeatedly violated their obligations under this  Act.</li>\r\n</ol>\r\n<p><br /><strong>Money Laundering Reporting Office </strong></p>\r\n<p>The money laundering reporting office was created in accordance with Article  (12) of the Law; and even though it is affiliated with the Central Bank of Iraq,  it is independent in its line of work and has its own duties and  responsibilities. Some of these duties include the following:<br /><br />a)&nbsp;To  collect, process, analyze and disseminate the financial transactions subject to  financial control and reporting.<br />b)&nbsp;Participate in implementing Iraqi policy  on preventing money laundering, financing of crime, and financing of  terrorism;<br />c)&nbsp;Cooperate and interact with and exchange information with Iraqi  state authorities, competent bodies of other countries and international  organizations on money laundering, financing of crime, and financing of  terrorism;<br />d)&nbsp;Represent Iraq, according to the established procedure, in  international organizations dealing with preventing money laundering, financing  of crime, and financing of terrorism according to the established procedure, in  international organizations dealing with preventing money laundering, financing  of crime, and financing of terrorism.<br /><br />In accordance with Article 14 of  the Law, the Central Bank and Anti Money Laundering reporting office may request  foreign authorities responsible for supervision of financial institutions or  markets, foreign financial intelligence units, or criminal or judicial  prosecution authorities, to provide them with information and documents required  for the performance of their duties. The CBI and the Reporting Office may share  with such foreign authorities as are prepared to provide reciprocal services to  the CBI and Reporting Office, information and documents, including nonpublic  information and documents, within their discretion, related to or gathered  pursuant to this Act, for the purpose of preventing money laundering or the  commission of crime, including but not limited to terrorist  financing.<br /><br />Further, Article 21 of the Law provides that the CBI and the  Reporting Office retains the right to request all persons to report the  transport currency or other monetary instruments greater than 15 million Iraqi  dinars from a place within Iraq to a place outside Iraq, or from a place outside  Iraq to a place within Iraq. It then goes on to mention that the law requires  that a person report the following when transferring money outside  Iraq:<br /><br />a)&nbsp;The legal capacity in which the person filing the report is  acting;<br />b)&nbsp;The origin, destination, and route of the currency and/or monetary  instruments;<br />c)&nbsp;The amount and kind of monetary instruments and/or currency  transported;<br />d)&nbsp;Other additional information as required.</p>\r\n<p><strong>Conclusion</strong><br /><br />Money laundering poses significant concern  to governmental agencies and international bodies alike. The CBI, aware of the  difficulties faced in countering the same, particularly given the economic and  security environment on ground, has introduced a number of measures which have  helped to mitigate this phenomenon, and ensure greater transparency in  transactions.</p>'),
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(81454, 4444, 'content_description', 'In this article, I will briefly outline:\r\nThe objectives of the Law as described above, the role of the DED in this regard and important matters covered by this recent Law. In this article wherever the term “Establishment” has been used, this refers to a limited liability company, a branch office or other form of corporate entity recognized under the commercial companies  law No. 8 of 1984 and its amendments.\r\n'),
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(81456, 4444, 'pageSummary', 'In this article, I will briefly outline:\r\nThe objectives of the Law as described above, the role of the DED in this regard and important matters covered by this recent Law. In this article wherever the term “Establishment” has been used, this refers to a limited liability company, a branch office or other form of corporate entity recognized under the commercial companies  law No. 8 of 1984 and its amendments.\r\n'),
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(81469, 4445, 'content', '<p>In an attempt to boost the local Jordanian economy, the government announced  its plans to create development zones around the country. The Development Zones  Law No. 2 for the year 2008 (the \"law\") creates six Development Zones,  strategically laid out across the kingdom, aiming to aid local investors by  creating a competitive business environment as well as providing them with new  investment incentives and tax redemptions.<br /><br />According to Article 3 of the  law, \"the development zones aim at enhancing economic capacity in the Kingdom,  attracting the investments and creating an advanced investment environment for  economic activities.\"&nbsp; This is achieved through the execution of the strategic  objectives outlined by the law. Some of these objectives include the  establishment of public-public and public-private partnerships, creating  world-class regulatory and economic development organizations with strong  institutional capabilities as well as the creation of the Development Zones  Commission (the \"Commission\").<br /><br />The Commission, created by Article 6 of  the law, plans to accomplish its specific tasks by creating a dependable  regulatory system for both the investors and the government. These tasks  include, but are not limited, to the following:</p>\r\n<ol>\r\n<li>\"Drawing up the general policy of the Development Zones and submitting it to  the Council of Ministers for the approval of the same and the endorsement of the  plans and programs necessary to implement it.</li>\r\n<li>Regulating the investment environment in the Development Zones and  regulating and monitoring the Economic activities therein&hellip;\"</li>\r\n<li>\"&hellip;Protecting the environment, water resources, natural resources and  biological diversity in a manner consistent with the Environment Law in effect  and the Regulations and Instructions issued thereupon and in coordination with  the concerned parties.<br />4.&nbsp;Regulating the customs procedures which will be  applied by the Ministry of Finance / Customs within the Development Zones under  a special Regulation issued for this purpose.\"</li>\r\n</ol>\r\n<p>Additionally, the development zones are intentionally situated in regions  with a high potential for access to significant and unique local and global  markets. These areas are situated in Mafraq (60 km north of the capital, Amman),  Maa\'n, Irbid, the Dead Sea, Jabal Ajloun and Dabouq. While the King Hussein Bin  Talal Development Area (the \"KHBTDA\") in Marfaq and the Ma\'an development areas  focus on the industry, residential, skill development, community services and  commercial sectors; other development zones such as the Dead Sea and Jabal  Ajloun development zones focus more on tourism development as well as the  hospitality and retail sectors. This is because while Marfaq and Ma\'an are  situated in a geographical nexus of highway networks connecting Jordan to three  of its neighboring countries, the Dead Sea and Jabal Ajloun development zones  are situated in magnificent landscapes ranging from the historical Dead Sea  coast to the pine forest and olive groves of the north of Jordan. Meanwhile, the  Irbid and Dabouq development zones focus on the health care, services, media,  safety, education as well as research and development sectors.<br /><br />According  to the law, the development zones offer a number of incentives and exemptions to  the investors. These include:</p>\r\n<ol>\r\n<li>A flat 5% corporate income tax rate as shown in Article 22 (d).</li>\r\n<li>An exemption from sales tax, custom duties, social services and dividends  tax as shown in Articles 23 (g) and 25 (a).</li>\r\n<li>100% foreign ownership.</li>\r\n<li>No limit on the number of foreign employees brought in. In addition, they  provide accelerated immigration and transit processes as well as business, and  family residency visas.<br />All the other tax and fee related incentives are  included in the law or any other applicable Jordanian laws.</li>\r\n</ol>\r\n<p>Another advantage that benefits investors when working in the development  zones is the Development Zone Commission One Stop Shop (the \"DZC OSS\"). The DZC  OSS was created for the comfort and convenience of the investors while  maintaining their rights as well as the rights of the public and the government.  The DCZ OSS\'s main purpose is to eliminate the investor\'s need to circulate  application to multiple agencies and public and private departments by providing  an efficient and time-saving process. They also do this by offering a number of  governmental investment related services such as the registration of enterprises  as well as employment related services such as employee visas and  residencies.<br /><br />By creating the Development Zones, the government has  realized the kingdom\'s potential for attracting local and international  investments and has worked to create reasons for them to come here. It has  simplified the process of registering an investment and sped the process of  hiring employees and issuing them with residencies and visas up. In addition to  attracting local and international investments, the development of these zones  will eventually enhance the economy and facilitate a competitive environment  with a dependable infrastructure that is built on the values of simplicity,  efficiency, leadership, teamwork, transparency, integrity as well as good  governance and focus on the community.</p>'),
(81439, 4443, 'content', '<p>As we near the end of the year, I reflect on the year that was and the  highlights for both Al Tamimi &amp; Company and the legal industry in the Middle  East.<br /><br />This month we celebrate a number of achievements for the firm which  I am proud to highlight.<br /><br />The first is the celebration of 20 years of Law  Update. As you can appreciate, publishing such an extensive legal magazine each  month can be a challenge however, we have remained committed to this and will  continue to remain committed to bringing you the latest in legal developments as  interpreted by my team of lawyers. I have to congratulate our founding partner,  Essam Al Tamimi for having the vision to produce such a newsletter 20 years ago  and for his commitment to ensuring that Law Update evolved to be a relevant and  informative publication for clients and colleagues alike.<br /><br />I&rsquo;m also very  proud to wrap up the year with the announcement that on 1st December 2011, Al  Tamimi &amp; Company were awarded &lsquo;Middle East and African Law Firm of the Year&rsquo;  at the British Legal Awards in London. As one of the most prestigious awards in  the legal industry, it is an honor to receive this and be recognized as leaders  in our market. This of course has been supported by our visible growth in the  region over the past 12 months. The award is one of many accolades we received  throughout 2011 including &lsquo;UAE Law Firm of the Year&rsquo; at the IFLR Middle East  Awards and winners of seven prestigious categories in the UAE Asian-Mena Counsel  Corporate Asia &amp; Middle East Survey .<br /><br />It is without doubt that 2011  was an exciting time for our profession with the IBA holding their annual  conference here in Dubai. With over 5500 delegates, making this the biggest  conference held by the IBA, you will agree that this was a week filled with  opportunities from both a professional development and networking perspective.  Many new relationships were formed and of course many existing ones rekindled.  We thoroughly enjoyed hosting many friends from all over the world at our  seminars and cocktail reception and hope you enjoy the collection of photos  we&rsquo;ve highlighted this month.<br /><br />On behalf of the partners and staff of the  firm, I&rsquo;d like to take this opportunity to wish you the very best of season  greetings. We very much look forward to building on the success of this year and  working with you in 2012</p>\r\n<p>Husam Hourani<br />Managing Partner</p>'),
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(81450, 4444, 'content', '<p>Law No. 13 of 2011 (&ldquo;The Law&rdquo;) which came into force on the 24th of August  2011:</p>\r\n<ol>\r\n<li>codifies existing practice for licensing of business activities in the  Emirate of Dubai;</li>\r\n<li>sets new rules for licensing of certain business activities; and</li>\r\n<li>identifies the role of the Department of Economic Development (&ldquo;DED&rdquo;) in the  licensing process.</li>\r\n</ol>\r\n<p><br />In this article, I will briefly outline:<br /><br />The objectives of the Law  as described above, the role of the DED in this regard and important matters  covered by this recent Law. In this article wherever the term &ldquo;Establishment&rdquo;  has been used, this refers to a limited liability company, a branch office or  other form of corporate entity recognized under the commercial companies&nbsp; law  No. 8 of 1984 and its amendments.<br /><br /><strong>A.&nbsp;OBJECTIVES OF THE LAW AND  COMPETENCES OF THE DEPARTMENT:</strong><br /><br />The aim of the Law No. 13 of 2011  is to:</p>\r\n<ol>\r\n<li>Organize the conduct of business activities, encourage investment in  different economic fields, spread economic and investment awareness and identify  investment opportunities in Dubai.</li>\r\n<li>Create coordination among competent government authorities in the commercial  licensing process.</li>\r\n<li>Ensure accuracy, transparency and availability of information to facilitate  public and private stakeholders.</li>\r\n</ol>\r\n<p><br />To achieve these objectives, the DED is entitled to:</p>\r\n<ol>\r\n<li>Set the rules required for the conduct of business activities in Dubai  subject to the oversight and conditions set out by the executive council of the  Emirate of Dubai.</li>\r\n<li>Set rules for the validity of business licenses and the extension of such  licenses.</li>\r\n<li>Issue business licenses and register Establishments in the commercial  register.</li>\r\n<li>Develop and upgrade rules and regulations periodically according to the  business needs of Dubai.</li>\r\n<li>Control and inspect intellectual property rights, fight commercial fraud and  put in place and manage the processes of consumer protection in Dubai.</li>\r\n<li>Regulate and inspect Establishments licensed in Dubai to ensure their  compliance with the rules and conditions of their business licenses.</li>\r\n</ol>\r\n<p><br /><strong>B.&nbsp; A GENERAL OVERVIEW OF MATTERS COVERED BY THE  LAW:</strong><br /><br />Generally, Law no.13 codifies earlier practice of licensing  Establishments in Dubai.<br /><br />The licensing mechanism<br /><br />The licensing of  an Establishment starts by applying to the DED which shall examine the  application to confirm its compliance with applicable rules and regulations, and  to ensure that it satisfies the conditions prescribed for the legal form of the  Establishment.<br /><br />The term of the License of the Establishment may be for a  period of one to four years, to be renewed during the last month of its  expiration within a time frame of thirty days (grace period) from the date of  expiry. <br /><br />Amending license or legal form of the  Establishment<br /><br />Amendments in the legal form of an Establishment or in its  constitutional documents shall be published in at least one daily newspaper if  prior consent of the DED and concerned authorities is required.&nbsp; In the event of  any objection by third parties to such amendments, the objector must submit its  objections to the competent court. The proposed amendment will therefore become  subject to the order of the court.<br /><br />Permission for marketing business  activity<br /><br />Before an Establishment may conduct any marketing campaign of  its products or services, it must obtain prior permission from the DED.<br />Legal  Form of the Establishment<br /><br /><br />The Law reiterates existing practices to  conduct business activities in Dubai through the below legal  forms:<br /><br />(a)&nbsp;partnership. <br />(b)&nbsp;civil company. <br />(c)&nbsp;the limited  liability company, which includes the simple form limited liability company, a  private joint stock company and a public joint stock company.<br />(d)&nbsp;branch of  local or foreign company or branch of company incorporated in the free  zone.<br /><br />Grant of business activities discretionary with the DED<br /><br />The  DED is entitled to expand or reduce the business activities set out in a license  which can be granted to an Establishment in the Emirate of Dubai based on the  requirements of public interest and subject to approval, if any, of the  concerned authorities.<br /><br />The DED may suspend some economic, industrial,  agricultural and service and professional activities or any other activities for  a certain period or amend the conditions or restrictions imposed.<br /><br />The  role of the Local Service Agent<br /><br />The role of the local service agent  appointed for a branch or a representative office of a foreign company and his  responsibilities in this regard have not been changed. His role continues to be  that of a facilitator in matter connected to the government, without assuming  any civil or financial liabilities connected with the business of the  Establishment.<br /><br />Exemption from condition to lease office: <br /><br />The  general rule is for the Establishment to conduct business activities from a  suitable leased/owned office, but there can be an exception to the office  condition where the DED allows UAE nationals to set up an Establishment to  conduct certain business activities from their homes.<br /><br />Obligation of the  Establishments<br /><br />Under the law, Establishments shall:</p>\r\n<ol>\r\n<li>comply with applicable laws, regulations and decisions in the Emirate of  Dubai.</li>\r\n<li>notify the DED of any change or amendment in any of its particulars and  provide the DED with any new information.</li>\r\n<li>use its trade name as defined in the license issued to it in all its  transactions with third parties.</li>\r\n<li>keep clear financial statements and a special register for the companies&rsquo;  shareholders and allow authorized employees of the DED - who will act as  judicial officers - to access the Establishment and review its data and  records.</li>\r\n</ol>\r\n<p><br />Penalties <br /><br />The Executive Council of the Emirate of Dubai shall  have the authority to determine acts which infringe the Law, and a fine between  AED100 to AED100,000 may be imposed in case of any violation to the  Law.<br /><br />Amicable settlement <br /><br />Any infringing Establishment, which has  not committed an infringement of the law within past 12 months of the commission  of an infringement, may request the DED amicable settlement, subject to payment  of minimum 50% of the due fine. Following the settlement, the Establishment  shall be bound by any conditions set by the DED as part of the  settlement.<br /><br />Grievance against DED decisions<br /><br />Any person aggrieved  by a decision of the DED may challenge the decision in writing to the general  manager of DED within 30 days from the date of his knowledge of such  decision.<br /><br />By a decision of the general manager, a committee shall be  formed to consider the grievances of the aggrieved party. The said committee  shall process these grievances within thirty days of the date referred the  grievance to it, and the decision made in this regard by the said committee  shall be final.<br />Representation of the general successor<br /><br />According to  the Law, if an owner or the shareholders of an Establishment decease, their  heirs or successors shall appoint from amongst them who shall represent them and  their interest in the Establishment. In the event that they do not agree on the  appointment of a representative, a representative appointed by the court shall  be accepted by the DED.<br /><br />Suspension of the business<br /><br />This practice  of temporarily suspending business licenses has been applicable by the DED since  last year, but it is now modified by article 13 of the Law no. 13 of 2011, which  allows the owner of an Establishment to approach the DED requesting to suspend  the validity of an expired existing business license for a limited period  ranging between one to three years during which the operation of the  Establishment should remain suspended for the period during which the license  remains suspended.<br /><br />New regulation and practice for the professional and  handicraft Activities<br /><br />In order to encourage further investments in  different economic fields, the Law allows both UAE nationals and others to be  engaged in certain professional activities such as handicrafts, which were  earlier reserved for UAE nationals. <br /><br />Those activities can be conducted  through registering a sole establishment or a limited liability company where a  corporate person may also be a partner provided the nature of his activity is  similar to the activity to be practiced.<br /><br />Licensing free zone  Establishments in Dubai<br /><br />The Law enables free zone companies to open their  branches in Dubai, subject to applicable laws and procedures. <br /><br />In  compliance with the controls and applicable conditions set by the Executive  Council of the Emirate of Dubai, the branch of a free zone company can be  registered in Dubai without appointing any&nbsp; local service agent if:<br /><br />a.  100% UAE or GCC nationals own the free zone company, or <br />b. 51% of the owners  are UAE nationals<br /><br />If the shareholders are all foreigners, or if citizens  of the UAE own less than 51% in the free zone company, a local service agent  must be appointed when setting up a branch of the same in Dubai. In the event of  appointing a local service agent, such&nbsp; branch must be registered with the  foreign companies registry at the Ministry of Economy.<br /><br />Closure of the  Establishment <br /><br />Pursuant to the Law, DED may close an Establishment or  cancel its license in the event of non-renewal of its license, or in case of  suspension of its business operation; such closure, is published in a local  newspaper and if no objection is received within two weeks of the date of  publication the closure will be confirmed.<br /><br />Reasons for cancellation of  the Establishment license by the DED are:<br /><br />(a) violation of the provisions  of the Law no.13 and the applicable legislations .<br /><br />(b) if such license  was issued based on false information or documents.<br /><br />The cancellation of  the license shall not prejudice the rights and liabilities of the Establishment  or holder of the license towards third parties.<br /><br /><strong>C. IMPLICATIONS  OF THE NEW LAW ON EXISTING LICENSES:</strong><br /><br />The Establishment licensed  before issuance of this Law shall have a grace period of no more than one year  after the date of its enforcement to comply, and the general manager of the DED  may extend this term for another similar term.<br /><br />Comments and  Conclusions:<br /><br />The Law no. 13 of 2011 has confirmed the primary role of the  DED in organizing the business activities in the Emirate of Dubai and has  modified many practices being followed in the past. <br /><br />The Law established  the DED as a one window service center for licensing Establishments by enabling  the DED to provide approvals from several concerned authorities before issuing  the license; this will ultimately facilitate the licensing procedures for  investors.</p>'),
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(81403, 4441, 'pageSummary', 'The legal and IP Department in Dubai customs secured a unique judgment for the Claimants (our clients) handing down a decision imposing probably the largest fine ever in a Trademark customs complaint in Dubai.'),
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(81420, 4442, 'content', '<p>The Committee for the Resolution of Securities Disputes (CRSD) and the Appeal  Committee for the Resolution of Securities Conflicts (ACRSC) are quasi judicial  committees in The Kingdome of Saudi Arabia (KSA). Both committees have  jurisdiction in the consideration of Securities Disputes. The Capital Market  Authority (CMA), as obliged by article 25(a) of the capital market law (CML), to  establish a committee for the Resolution of Securities Disputes. This committee  has the jurisdiction over the disputes falling under the provisions of the CML,  the implementation of the, regulation, along with the rule and instructions  issued by the CMA and the Saudi Stock Exchange with respect to both public and  individual actions. In addition, article 25(c) has given the CRSD the  jurisdiction to consider the claims against decisions and actions which will be  issued by the CMA or the Saudi Stock Exchange. According to article 25(f) of the  CML, the CML must give the appeal mechanism on the CRSD a decision before the  ACRSC, within thirty days from CRSD notification date. The ACRSC jurisdiction  shall have the right to confirm or refuse to review CRSD decisions or undertake  a de novo review of the claim based on the record at the hearing before CRSD to  issue the appropriate decision. Thus, the decisions of ACRSC are final and  cannot be appealed.<br /><br />Board of the CMA has issued a new regulation with  respect to the Procedures of Resolution of Securities Disputes (PRSD) under  resolution No (01-04-2011) dated 19/02/1432H corresponding 23/01/2011 to,  pursuant to the Capital Market Law issued by the Royal Decree No (M/30) dated  02/06/1424H, corresponding to 31/ 07/ 2003G. This regulation contains 50  articles divided into 11 chapters. The PRSD shows how the defended claim and  complaint before the CRSD and ACRSC; moreover, this regulation shows all the  steps which can be performed with respect to Securities Disputes. Thus, this  regulation will contribute to the regulating of litigation before the  committees.<br /><br />In conclusion, it can be said that CRSD and ACRSC are fully  independent to discharge their duties. This because article 25 of CML had  stipulated the formation of litigation bodies that is specialised in securities  disputes and fully independent to issue decisions.</p>'),
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(81378, 4440, 'content', '<p>The Saudi Arabia Department of Official Gazette and Trademark Offices have  announced that there will be stricter enforcement of regulatory guidelines  regarding the filing of Power of Attorneys as follows:-<br /><br />The Trademark  Office will require all new trademark applications filed from 1 January 2012 on  behalf of foreign companies be accompanied by (a) an original Power of Attorney  or (b) a copy of a Power of Attorney where the original Power of Attorney must  be presented for sighting by the Trademark Office.<br /><br />The Power of Attorney  must bear a date less than 10 years from the date of&nbsp;&nbsp;execution  thereof.<br /><br /><strong>Practical Considerations</strong><br /><br />Currently, a  mere copy of a Power of Attorney is sufficient. This means that foreign  applicants may file trademark applications using a faxed or scanned copy of a  duly legalized Power of Attorney. In 2012, foreign applicants would need to  ensure that they have an original duly legalized Power of Attorney in place with  their trademark attorneys in Saudi Arabia to lodge a trademark  application.<br /><br />Foreign applicants wishing to file trademark applications in  Saudi Arabia in 2012 must ensure that their Power of Attorney documents  authorizing their trademark attorneys in Saudi Arabia are less than 10 years  old.<br /><br />As these Power of Attorney documents must be legalized, which can be  a time consuming process, foreign applicants are well advised to make sure that  they have an updated Power of Attorney in preparation for compliance with these  new rules in 2012.<br /><br />There is no provision for late filing of the Power of  Attorney. Hence, for applicants wishing to claim Convention priority, it is  imperative that they have an updated Power of Attorney in hand for timely filing  of trademark applications in 2012.</p>'),
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(81382, 4440, 'content_description', 'The Saudi Arabia Department of Official Gazette and Trademark Offices have announced that there will be stricter enforcement of regulatory guidelines regarding the filing of Power of Attorneys as follows:-\r\n'),
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(81384, 4440, 'pageSummary', 'The Saudi Arabia Department of Official Gazette and Trademark Offices have announced that there will be stricter enforcement of regulatory guidelines regarding the filing of Power of Attorneys as follows:-\r\n'),
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(81397, 4441, 'content', '<p>The legal and IP Department in Dubai customs secured a unique judgment for  the Claimants (our clients) handing down a decision imposing probably the  largest fine ever in a Trademark customs complaint in Dubai. The Dubai Customs  demonstrated a strong will to combat illicit trade and intellectual property  infringement.&nbsp; Dubai Customs issued a firm decision to seize and destruct more  than 920 master cases of counterfeit cigarettes and further imposed a fine of  1.7 Million Dirhams, i.e. $ 462,811 against the importer of counterfeit  cigarettes through Jebel Ali port.<br /><br /><strong>LEGAL ACTION  TAKEN</strong><br /><br />The shipment comprised cigarettes branded with various  well-known trademarks. The trademarks were owned by three different brand  owners. Al Tamimi &amp; Company took the lead, representing two brand owners in  this action, where it managed to track the container on arrival in Dubai,  assisted in the container preliminary seizure and investigated the same in  coordination with the customs inspectors at Dubai Customs.<br /><br />Eventually,  the customs complaints were officially lodged in July 2011 but the preparatory  work, such as targeting the shipment and inspecting its content, commenced a few  months before complaints were officially lodged. After filing the complaints,  the cases went through further proceedings within the customs authority and  technical support was provided to the Customs, in order to prove the seizures  were in violation of the Trademarks Law and the Customs Law. Finally, we sought  for the confiscation and destruction order and Customs further imposed a hefty  fine against goods which were treated as smuggled  goods.<br /><br /><strong>IMPORTANT TRADEMARK AND ANTI-COUNTERFEITING  PRECEDENT</strong><br /><br />This case sets an important precedent in favor of  trademark owners and encourages right holders to pursue protection from the  Dubai Customs/ IPR unit. It is important to note that Dubai Customs have  considerably strengthened their efforts fighting counterfeit goods and in this  case, Dubai Customs took the initiative to impose a substantial fine against the  importer, which was calculated based on the actual value of goods and nominal  customs tariff thereof.<br /><br />Another objective achieved in this landmark  decision was that Dubai Customs considered enforcing trademark rights against a  cigarette pack that lacked registration of the word mark in the UAE, but enjoyed  registration only for the device. The customs found the registered device was  sufficient to issue a seizure and destruction decision.<br /><br />We are keen to  leverage on this landmark decision to reduce the volume of illicit trade in  tobacco. Dubai Customs proved once again that the enforcing agencies in the UAE  are determined to undertake the necessary action and impose deterrent sanctions  against traders in counterfeit goods.</p>'),
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(81359, 4439, 'content', '<p>In litigation, one reoccurring topic litigators face before the UAE courts is  how interest is claimed and calculated on outstanding payments in commercial  debts. A recent Dubai Court of Cassation ruling (Judgment 66 of 2011) gives us  insight to such method as outlined  hereunder.<br /><br /><strong>BACKGROUND</strong><br /><br />This case involved two  parties, where the Claimant filed a claim against the Defendant before the Court  of First Instance for AED 730,000 as a result of the Defendant&rsquo;s breach of  contract.&nbsp; In addition to the claim amount, the Claimant also claimed legal  interest on the debt due.<br /><br />Under the terms of said contract and in  consideration of the Defendant&rsquo;s obligations, the Claimant paid the Defendant an  amount of AED 730,000 as an advance payment. The Defendant however, failed to  provide the Claimant with the agreed services and thus was in breach of its  obligations as per the terms of the contract.<br /><br />The Defendant filed a  counterclaim to obligate the Claimant to pay the Defendant an amount of AED  245,100 in addition to legal interest as they had already began providing its  services and they suffered a loss of AED 975,000 as a result of the Claimant&rsquo;s  termination of the contract.<br /><br />The Claimant challenged the judgment issued  by the Court of First Instance which rejected its claim and accepted the  counterclaim against the Claimant (effectively ordering it to pay an amount of  AED 238,605.75 in addition to the legal interest of 9%).&nbsp; The Court of Appeal  upheld the decision of the Court of First Instance. The Claimant further  challenged said judgment before the Court of Cassation which overturned the  appealed Judgment and referred the case to the Court of Appeal once again. This  time, the Court of appeal issued a judgment to:<br /><br />1.&nbsp;Cancel the challenged  Judgment.<br /><br />2.&nbsp;Terminate the disputed contract dated 06/02/2008 subject of  the main claim and to obligate the Defendant to pay to the plaintiff an amount  of AED 730,000 in addition to the 9% legal interest from the date of the  judgment until full payment.<br /><br />3.&nbsp;Reject the counterclaim filed by the  Defendant.<br /><br /><strong>THE COURT&rsquo;S APPROACH AND FEDERAL LAW ON  INTEREST<br /><br /></strong>The last judgment was challenged again by the Claimant  before the Court of Cassation in respect of the legal interest which was  calculated from the date of the judgment.<br /><br />The Claimant requested that the  legal interest was to be calculated as of the date of the contract, which was on  06/02/2008 or from the date of filing the claim as per article 90 of the  Commercial Transactions Law [Fed. Law 18 of 1993].<br /><br />The aforementioned  article states that:<br /><br />&ldquo;Interests for delay of payment of commercial debts  shall accrue from the maturity date of such debts, unless it is otherwise  provided for by Law or agreement&rdquo;.<br /><br />In this regard, legal interest  calculated for delay on outstanding amounts will be calculated as of the date of  the claim (i.e. the debt must be known at the date it falls due), even if the  debtor is disputing the claimed amount or the due date. Same also applies in the  event that a contract has specified the amount due and the court decided to  terminate the contract, the legal interest will accrue as of the date of the  claim.<br /><br />However, if it is related to legal interest in connection with  compensation for damages which was suffered by the creditor and the value of the  damages needs to be calculated by the court, the legal interest will accrue as  of the date of the final judgment.<br /><br />For the above reasons, the Court of  Cassation ruled the following:<br /><br />The Court decided to accept the partial  challenge relating to the commencement date of calculating the legal interest.  It further decided to amend the judgment so that the interest commences as of  the date of the claim on 16/02/2009 until full payment.<br /><br />This ruling  provides a useful guide for any concerned party when calculating the  aforementioned legal interests in similar situations.</p>'),
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(81350, 4438, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Waldo Steyn'),
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(81344, 4438, 'content_description', 'The importance of the appropriate focus on information technology, including software, in due diligence projects where the target is an information technology company, or where the target’s business is heavily reliant on information technology is obvious.'),
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(81346, 4438, 'pageSummary', 'The importance of the appropriate focus on information technology, including software, in due diligence projects where the target is an information technology company, or where the target’s business is heavily reliant on information technology is obvious.'),
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(81348, 4438, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-7/december-2/due-diligence-in-ma-transactions-information-technology-considerations.html'),
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(81325, 4437, 'content_description', 'In a recent development, the Turkish Trademark Registry has revised its practice in terms of prosecuting trademark application in class 35 covering ‘sales services’. \r\n'),
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(81327, 4437, 'pageSummary', 'In a recent development, the Turkish Trademark Registry has revised its practice in terms of prosecuting trademark application in class 35 covering ‘sales services’. \r\n'),
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(81329, 4437, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-7/december-2/change-in-turkey-trademark-practice.html'),
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(81339, 4437, '_yoast_wpseo_metadesc', 'In a recent development, the Turkish Trademark Registry has revised its practice in terms of prosecuting trademark application in class 35 covering ‘sales services’.'),
(81340, 4438, 'content', '<p>The importance of the appropriate focus on information technology, including  software, in due diligence projects where the target is an information  technology company, or where the target&rsquo;s business is heavily reliant on  information technology is obvious.&nbsp; However, the extent to which information  technology permeates all aspects the very existence of corporate entities today,  dictates that information technology be afforded adequate attention in all due  diligence projects.<br /><br />This article provides a short introduction to some  considerations that are relevant when preparing for an information technology  disclosure or considering such disclosed information in a due diligence  contexts.<br /><br />The point of departure in considering the information  technology aspects of a due diligence is the same as that for any other aspect  of the due diligence process &ndash; the structure of the proposed transaction.&nbsp; This  could include for example a share purchase, an asset purchase or a merger.&nbsp;  Depending on the proposed structure of the transaction, different aspects of the  information technology due diligence may require special consideration.&nbsp; For  example, in the event that a proposed transaction is an asset transfer,  prohibitions or limitations on the assignment of software licenses will be  relevant, while change control provisions will be relevant in the case of share  purchases.<br /><br />Moving on from the structure of the proposed transaction, it  is important to form an adequate understanding of the information technology  that will form the subject matter of the due diligence review.&nbsp; In broad terms,  it will be necessary to obtain details of (i) the information technology assets  owned or used by the target, (ii) the rights of and obligations to third parties  in respect of those information technology assets and (iii) documents relevant  to both the information technology assets and third parties, including for  example documents related to service levels, technical and functional  specifications and possibly warranties.<br /><br />The adequate disclosure of  information technology assets and the particular role such assets fulfil in the  target&rsquo;s business is important as it will enable prospective buyers to determine  how material particular assets and third parties are to the business operations  of the target and accordingly the value of the proposed transaction.&nbsp; By way of  illustration, if a particular software asset provides the target with a  competitive advantage in its industry, or is otherwise a direct driver of  revenue, that particular software asset will be significant to the prospective  buyer and accordingly in the due diligence review.&nbsp;<br /><br />Information  technology assets will include hardware and software.&nbsp; With respect to hardware,  relevant information could include (a) diagrams of the hardware architecture,  (b) an inventory of the relevant hardware assets, (c) relevant third party  agreements such as license, purchase, support, maintenance and service level  agreements and (d) possibly disaster recovery and business continuity  protocols.<br /><br />With respect to software assets relevant information could  include (a) an inventory of software used by the target, including information  on ownership and licenses, (b) agreements related to the software assets such as  license, support, maintenance, development, assignment, and escrow agreements,  (c) documentation, including policies, manuals and information on user access  protocols and (d) active or planned development programs.<br /><br />In respect of  both hardware and software assets, agreements with third parties and in  particular license agreements are of particular importance.&nbsp; These agreements  contain rights, and the scope of those rights, that the buyer may acquire  through the proposed transaction.&nbsp; Licensing provisions may however, not only be  contained in &ldquo;license&rdquo; agreements, but also as part of various other agreements,  such as development, joint venture, consulting and possibly settlement  agreements (to mention only some).&nbsp; It is to be noted that the use of open  source software is subject to the terms of open source software licenses and  where open source software had been used by a target (and such use has become  prolific), steps may need to be taken to identify the relevant open source  software, license and source, as well as the information technology asset it has  been integrated in and the nature of such integration.&nbsp; Open source software  licenses can be important in a proposed transaction as they may dictate the  terms on which software derived from such open source software is licensed to  third parties.<br /><br />Agreements with third parties are also relevant in the  event that the information technology operations of the target are to be  integrated with that of the proposed buyer.&nbsp; The buyer&rsquo;s due diligence may  identify duplications in the information technology systems of the buyer and  that of the target that it may wish to remove.&nbsp; Where such duplications relate  to third party contracts, it is important that the relevant contracts are  considered with a view to the possible termination or cancellation  thereof.<br /><br />The focus of the approach to the due diligence set out above is  on a more &ldquo;traditional&rdquo; information technology environment.&nbsp; Information  technology is increasingly being acquired as &ldquo;software as a service&rdquo; or in the  context of &ldquo;cloud computing&rdquo; and where a target engages or makes use of such  services, this category of agreements will require separate and careful  technical consideration.&nbsp;<br /><br />As a result of the extent to which information  technology has become an integral part of the way in which businesses operate,  if not often a significant contributor to or source of competitive advantage,  the appropriate review of information technology during a due diligence project  is essential.</p>'),
(81321, 4437, 'content', '<p>In a recent development, the Turkish Trademark Registry has revised its  practice in terms of prosecuting trademark application in class 35 covering  &lsquo;sales services&rsquo;.&nbsp; In light of this change, a trademark which is identical or  closely similar to an already registered trademark for &lsquo;sales service&rsquo; under  class 35, may be available to a third party for use and registration in class 35  for &lsquo;sales services&rsquo; if the product group is made specific.&nbsp;<br /><br />To clarify  further, the specification of service namely,<br /><br />&ldquo;the bringing together, for  the benefit of others, of a variety of goods (excluding the transport thereof),  enabling customers to conveniently view and purchase those  goods&rdquo;,<br /><br />included in class 35 of the Nice International Classification of  Goods and Services for Trademark Registration, is broad enough to cover the  sales services related to any products group.&nbsp; So, under the existing practice,  if a trademark is registered for &lsquo;sales services&rsquo; covering the above  specification of service (which is general in terms of product group) in class  35, a subsequent trademark identical or closely similar to the prior one by a  third party will be refused.&nbsp; Based on the newly introduced change in practice  however, such a subsequent trademark (identical or confusingly similar to the  prior trademark) by a third party will be accepted for registration, if the  specification of service depicted above specifies the product group.&nbsp; All such  subsequent identical or closely similar trademarks will also be accepted for  registration, as long as the specification of sales services for each trademark  specifies different product group.<br /><br />For example, if a trademark is  registered in class 35 covering the services &ldquo;the bringing together, for the  benefit of others, of a variety of goods, enabling customers to conveniently  view and purchase those goods&rdquo;,&nbsp;&nbsp; an identical or closely similar trademark will  still be registered for the above sales services, if the product group is  specified namely, &ldquo;the bringing together, for the benefit of others, of  confectionery products, enabling customers to conveniently view and purchase  those goods&rdquo;.&nbsp; Likewise, other identical or confusingly trademark will also be  registered for sales services pertaining to another product group namely, health  care products, and so on.<br /><br />In light of this changed practice, we strongly  advise the trademark owners those who have trademark protection in Turkey in  class 35 for &lsquo;sales services&rsquo; in general terms to file new application for their  trademarks specifying the product group they are interested or trading in.&nbsp; This  will help the trademark owners to protect their marks from being registered in  the name of third parties for &lsquo;sales services&rsquo; of their specific product group,  even if the trademark owners hold a registration for the mark in class 35 (for  sales services in general terms).<br /><br />It has been made clear by the  authorities that in the new practice, application for amendment of the  specification of services of the previous applications in view of this change  will not be accepted.</p>'),
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(81283, 4435, 'content_description', 'In a recent case concerning a property broker (the “Claimant”) and a retail company (the “Defendant”), the Court of Cassation held that in order to have a valid Real Estate Brokerage contract, it must be registered at the Dubai Land Department. \r\n'),
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(81285, 4435, 'pageSummary', 'In a recent case concerning a property broker (the “Claimant”) and a retail company (the “Defendant”), the Court of Cassation held that in order to have a valid Real Estate Brokerage contract, it must be registered at the Dubai Land Department. \r\n'),
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(81297, 4435, '_yoast_wpseo_metadesc', 'In a recent case concerning a property broker (the “Claimant”) and a retail company (the “Defendant”), the Court of Cassation held that in order to have a valid Real Estate Brokerage contract, it must be registered at the Dubai Land Department.'),
(81298, 4436, 'content', '<p>In practice, property mortgages are treated quite differently in Dubai and  Abu Dhabi.&nbsp; The differences arise from the registration procedures in each  Emirate, together with the specific mortgage law introduced in Dubai.&nbsp; One also  needs to look at the nature of the property laws that are in place in each  Emirate.<br /><br /><strong>Property Ownership and Registration in  Dubai</strong><br /><br />UAE and other GCC nationals, and companies wholly owned by  them, can own real property in all areas of Dubai.&nbsp; This includes freehold  ownership, long lease rights up to 99 years and the rights of usufruct and  musataha.&nbsp; Such real property ownership is permitted for other nationals in  &lsquo;designated areas&rsquo; of Dubai, as determined by the Ruler.&nbsp; Examples of such areas  are the new projects of Downtown Burj Khalifa, the Palm Jumeirah and Dubai  Marina.<br /><br />Assuming that the owner is permitted to own property rights in an  area, title to such rights are to be registered at the Dubai Land Department,  the only authority recognized as being able to register real property rights for  properties in Dubai.&nbsp; A title certificate will be provided by the Land  Department to the owner to prove its ownership of a property.&nbsp; An interim  property register is also available at the Land Department and any contract for  the sale of property off-plan will be considered void if it has not been  registered on this interim register. Essentially, all property in Dubai should  now be registered and have a title.<br /><br /><strong>Property Ownership and  Registration in Abu Dhabi</strong><br /><br />Only UAE nationals, and companies  wholly owned by them, may own property in Abu Dhabi.&nbsp; GCC nationals can own  property in designated &ldquo;investment areas&rdquo;.&nbsp; Other foreign nationals may own  apartments or floors in buildings (without the right of ownership of the land)  in certain allocated &ldquo;investment areas&rdquo;, together with the right to own a 99  year right of usufruct or right of musataha.<br /><br />There is a framework  relating to property registration in Abu Dhabi, whereby all dispositions giving  rise to real property rights, including lease contracts having a term of more  than 4 years and rights of usufruct and musataha, must be registered.&nbsp; In  addition, a recent resolution reconfirmed this registration framework by  stipulating that the director of the applicable property registration department  must register all dealings and issue title certificates relating to ownership  (whether of land, apartments or floors in buildings, as permitted), long lease,  musataha and usufruct rights both within and outside the investment  areas.<br /><br />In practice, however, very little registration has occurred to  date in the investment areas.&nbsp; Although ownership rights to property are  generally registered for UAE nationals outside the investment areas,  registration of long lease, musataha and usufruct rights is not common.&nbsp; Also,  unlike Dubai, there is currently no interim property register available to  register off-plan property sales.<br /><br /><strong>Mortgages in  Dubai<br /><br /></strong>The Mortgage Law of Dubai (Law No. 14 of 2008) applies to  mortgages of property and property units as security for debt registered with  the Dubai Land Department.&nbsp;The law provides that a valid lender must be a bank,  company or financial institution duly licensed and registered with the UAE  Central Bank to provide property financing in the UAE.&nbsp; The mortgagor must be  the owner of the mortgaged property and in a position to dispose of the  same.&nbsp;<br /><br />Only mortgages registered with the Land Department (which of  course means that the property right to be mortgaged must be registered with the  Land Department) on the real estate register or the interim register will be  considered valid.&nbsp; If on the interim register, at the time of transfer of title  to the real estate register, all mortgages and other interests noted on the  interim register will automatically be transferred to and registered on the real  estate register.&nbsp; The ranking of the mortgage is determined by the time of  registration, with a serial number allocated on registration with the Land  Department.<br /><br />Accordingly, in Dubai, only registered mortgages are  recognized.<br /><br />In terms of enforcement, the Mortgage Law states that any  clause in a mortgage contract stipulating that when the borrower fails to pay  the mortgage debt within the specified period, the lender shall have title to  the mortgaged property or can sell the mortgaged property without taking the  enforcement steps required under law (ie self help), shall be considered as  void. This provision, read together with the execution proceedings on mortgaged  property foreclosure, provide for a streamlined Court driven procedure on  default by the borrower.&nbsp; The enforcement steps are as follows:</p>\r\n<ul>\r\n<li>In the event of default in payment of the debt when due, the lender must  provide the borrower 30 days written notice through the Notary Public before  commencing execution proceedings.</li>\r\n<li>If within the 30 day period, the borrower fails to pay the sums due, the  execution judge shall, upon request of the lender order an attachment against  the mortgaged property so that it can be sold by a public auction in accordance  with the applicable procedures of the Land Department.</li>\r\n</ul>\r\n<p><strong>Mortgages in Abu Dhabi<br /><br /></strong>Abu Dhabi does not currently  have a specific mortgage law that applies to mortgages of property and property  units in Abu Dhabi as security for debt.&nbsp; The recent resolution reconfirming the  Abu Dhabi registration framework (mentioned above) directs the director of the  applicable property registration department to register mortgages over all  property and property rights within and outside the investment areas.&nbsp; However,  because there has been little registration of properties and property rights in  the investment areas and very little registration of long lease, musataha and  usufruct rights outside these investment areas, generally mortgages in Abu Dhabi  have only been registered against registered freehold titles owned by UAE and  GCC nationals outside the investment areas.&nbsp; Implementing regulations are  awaited concerning the registration of other mortgages.</p>\r\n<p>According to the existing Abu Dhabi laws and applicable Federal laws, because  a mortgage must be registered against the property in order to enforce such  mortgage, if a mortgage is not registered, it will not be valid and cannot be  enforced.&nbsp; This is not to say the mortgage is void, however it will not create  an enforceable security with a priority right over other  creditors.<br /><br />Therefore, lenders who are financing against the security of  an unregistered property in Abu Dhabi generally rely on a conditional assignment  of the borrower&rsquo;s sale and purchase agreement or lease agreement (as applicable)  with step-in rights in the event of default under the loan.&nbsp; This is sometimes  combined with an unregistered mortgage. Such interest(s) are noted on the  internal register maintained by the relevant developer.<br /><br />On enforcement,  assuming a lender does not have a registered mortgage, the likely avenues will  be perfection of the conditional assignment with the cooperation of the  developer, or a claim against the property (which would simply be a civil claim  as an unsecured creditor).&nbsp; In either case, the provisions of the UAE Civil Code  will apply.&nbsp;<br /><br /><strong>Conclusion<br /><br /></strong>Given the differences in  how property laws are being implemented in Dubai and Abu Dhabi, not to mention  the fact that Dubai has its own specific mortgage law, it is no surprise that  property mortgages are treated differently between the two Emirates.&nbsp; It is  hoped that the introduction of implementing regulations and the much anticipated  new property laws in Abu Dhabi will lead to greater similarities in the way each  Emirate registers and enforces mortgages.</p>'),
(81279, 4435, 'content', '<p><strong>IN SUMMARY</strong><br /><br />In a recent case concerning a property  broker (the &ldquo;Claimant&rdquo;) and a retail company (the &ldquo;Defendant&rdquo;), the Court of  Cassation held that in order to have a valid Real Estate Brokerage contract, it  must be registered at the Dubai Land Department.&nbsp; In this case, the Claimant  filed an action before the Dubai Court of First Instance seeking an order to  compel the Defendant to pay AED 14,400,000 (as commission fee) with statutory  interest at the rate of 9% per annum from the date of filing the action until  full satisfaction.&nbsp;<br /><br />The Defendant had commissioned the Claimant to act as  broker and find the Defendant a buyer for its plot. The Defendant did not pay  the Claimant its commission when a buyer was found. The Defendant argued that  the action filed against it, should be dismissed on the basis that there was no  written and registered property brokerage contract and the deal was actually  concluded between the Defendant and a third party.&nbsp; It was also argued that the  sale contract was registered at the Land &amp; Property department without a  property broker.<br /><br />The Court of Cassation confirmed (and this was verified  by the documents submitted to the courts) that the Claimant did not file a  written property brokerage contract registered under the sold property section  at the Land and Property Department, as required by law.&nbsp; As a result, the Court  of Cassation ruled that a property brokerage contract cannot be proven by  witness testimony and the Claimant failed to comply with Articles 15 and 26 of  Regulation 85 of 2006 concerning the Register of Real Estate Brokers in Dubai.&nbsp;  The Defendant was therefore not obliged to pay the Broker commission to the  Claimant.<br /><br /><strong>COURT OF FIRST INSTANCE</strong><br /><br />The Court of  First Instance appointed an expert in the case who issued a report concluding  that the deal was made between Defendant Company as Seller and a third party for  a total price of AED 720,000,000 and a sale contract was registered at the Land  &amp; Property Department on 05.06.08 without any mention that the deal was made  through a property broker, with a commission rate of 2% of the total price i.e.  AED 14,400,000<br /><br />On 28.04.10, the Court dismissed the Claimant&rsquo;s action on  the ground that there was no written and registered property brokerage contract  on record and no reference to same in the relevant column of the register of  sold property at the Land &amp; Property Department.<br /><br /><strong>COURT OF  APPEAL</strong><br /><br />Claimant appealed before the Court of Appeal (in Property  Appeal No. 285-2010) and the Court of Appeal referred the matter for  investigation. After hearing witnesses from both sides, the Court ruled on  13.04.11 that the Court of First Instance decision would be reversed and the  Defendant Company would be required to pay the sum of AED 14,400,000 with  statutory interest at the rate of 5% from the date of filing proceedings until  paid.<br /><br />The Defendant appealed to the Court of Cassation in Property Appeal  No. 131-2011 seeking reversal of the appealed decision.<br /><br /><strong>COURT OF  CASSATION</strong><br /><br />The Defendant argued that the lower Court erred in law  and reasoning. The Defendant had maintained before the trial court that the case  record does not include a written property brokerage contract registered with  the Land &amp; Property Department under the sold property column as required by  Law No. 7 of 2006 and Article 26 of Regulation No. 85 of 2006 concerning the  Register of Real Estate Brokers. The deal was concluded between the Defendant  and a Third party and a contract was registered with the Land &amp; Property  Department without a property broker. Furthermore, a property brokerage contract  cannot be proven by witness testimony. The Defendant had raised this point  before the Court of Appeal but the Court did not examine this issue, reversed  the lower Court&rsquo;s decision and ordered the Defendant to pay the claimed fee on  the strength of the statement of the Claimant&rsquo;s witness which it took as proof  of the existence of the alleged property brokerage contract, contrary to the  law. The appealed decision was thus flawed and ought to be  reversed.<br /><br />According to Articles 15 and 26 of Regulation No. 85 of 2006  concerning the Register of Real Estate Brokers in Dubai and the settled practice  of this Court, brokers shall maintain a special register to record all  transactions concluded through them and keep the relevant documents and papers.  The brokerage contact shall be in writing and shall state the names of the  parties, the specifications of the property and the brokerage conditions. The  contract shall be recorded in the property register as proof of the property  brokerage contract and of the related processes. Operations and other evidence  shall in no event be received as a substitute for written evidence.<br /><br />The  Court of First Instance had granted Defendant its request and dismissed the  action but the Court of Appeal, referred the matter for investigation for  Claimant to prove the alleged property brokerage contract by witness testimony.  After hearing Claimant&rsquo;s witness, the Court of Appeal, in reliance on his  testimony, reversed the first instance decision and ordered Defendant to pay the  claimed commission. It is clear from the record and exhibits that the Claimant  did not file a written property brokerage contract registered under the sold  property column at the Land &amp; Property Department, as required by law.  Accordingly, the lower Court erred in allowing witness testimony concerning the  existence of a property brokerage contract and awarding the broker the fee he  claims and its decision will be reversed for this reason without an examination  of the other grounds of appeal.<br /><br />Based on the foregoing, and in view of  the fact that the Court of First Instance dismissed the action due to lack of  evidence on the alleged property brokerage contract and the fact that the deal  had been concluded and a sale contract registered at the Land &amp; Property  Department without property broker involvement, the Court&rsquo;s decision must be  upheld.</p>'),
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(81264, 4434, 'content', '<p><strong>Ownership of Inventions and Patent Rights under UAE  Laws:</strong><br /><br />Usually, ownership of an idea or invention is determined  by whom, where and in what context the creation of the idea took place. However,  the question of ownership of an invention is sometimes a difficult one. Often  this question becomes contentious many years after the invention was devised and  a patent application lodged. The contention may arise because of circumstances  in which the invention was developed or because of economic merits of the  invention which is often not apparent at an early stage.<br /><br />In order to  establish the ownership of an invention it is necessary first of all to  establish who an inventor is and then establish whether or not an inventor, or  some other person or company, is entitled to the ownership of an  invention.<br /><br /><strong>Who is the Inventor?</strong><br /><br />In the UAE the  issue of inventions and patents is regulated by some of the provisions found in  Law No 5 for the year 1985 as amended otherwise known as (the &ldquo;Civil Code&rdquo;) and  Federal Law No 17 of 2002 otherwise known as (the &ldquo;Patent Law&rdquo;).&nbsp;  <br /><br />Article 7 of the Patent Law provides that, the right to the invention  shall devolve to the inventor or his legal successor, and in case two or more  persons collaborate in completing an invention, rights shall devolve to them or  their legal successors jointly. However, such right shall not extend to those  whose efforts were limited only to assistance in the completion of an invention  without any creative contribution.<br /><br />It should be noted that the Patent Law  requires an inventor to lodge a patent or Utility Certificate application with  the Department of Industrial Property at the Ministry of Economy in order to  confirm or to claim the ownership of an invention. The Patent Law confirms that  the person who lodges an application for a Patent or Utility Certificate before  others; or claims priority for the same invention before others, shall be  entitled to the ownership of the invention as well as to the right to the Patent  or Utility Certificate. So if two people create an invention, the ownership and  the right to the Patent and/or Utility Certificate shall be granted to the first  person who lodges an application for a Patent or Utility  Certificate.<br /><br /><strong>Who Owns an Invention?</strong><br /><br />We learnt  that the general principal is he who invents owns the invention and the rights  to it. This general rule applies if the inventor is a self employed individual/s  who works for himself. However, this general rule may be put to question when an  invention is not created by a self employed individual but rather by an  individual who works for another person or company. The Patent Law has dealt  with this matter and provided two scenarios for this situation as  follows:<br /><br /><strong>In Case a Written Employment or Muqawala Contract  Exist:</strong><br /><br />Employees are required by law to assign their inventions  to their employers so long as their employment or Muqawala contracts states so.  Like any contract, an employment agreement may be written in any manner agreed  upon by both the employer and the employee. The key elements are that the  agreement must be in writing and signed by both parties.<br /><br />Article 9,  subsections 1&amp; 2 of the Patent Law has clearly stated that if an invention  is completed through an engagement (Muqawala) contract or employment contract,  the right thereto shall devolve to the employer, unless otherwise stipulated in  the contract.<br /><br />The UAE Patent Law has succeeded in minimizing future  disputes that may arise between the employer and the employee regarding the  economic merits of an invention in subsection 2 of Article 9 by allowing the  parties to agree in the employment contract or a later agreement on a certain  sum of money to be allocated to the inventor from the proceeds of the invention.  In the absence of such agreement, the competent court will have the power to  determine such consideration to the inventor.|<br /><br /><strong>In Case No Written  Employment or Muqawala Contract Exists:</strong><br /><br />To remedy the  uncertainty that arises when determining ownership of patentable invention in  the absence of a written employment or Muqawala contract, the Patent Law has  provided three criteria in determining the ownership of an employer of the  invention created by his employee during his employment; these criteria  are:<br /><br />&nbsp;The invention created by the employee is relevant to the  employer\'s business;<br />&nbsp;The invention comes out of tasks and assignments that  are part of the employee\'s job responsibilities; and finally,<br />&nbsp;The invention  was created using any of the company\'s resources (time, materials, space, know  how etc).<br /><br />The law has further placed a duty on the employee to notify the  employer immediately of his invention by a written report. The date of this  report is essential in deciding the owner of an  invention.<br /><br /><strong>Limitation on the Claim of Ownership of an  Invention:<br /><br /></strong>It is worth mentioning that the above criteria does  not automatically grant an employer the right to the ownership of an invention;  the employer has to express his interest in acquiring the rights to the  invention created by one of his employees. The Patent Law has set some  limitations on the period within which an employer has to express his interest  on an invention and that the employer has to express his interest in the  invention within four (4) months from the date of the submission of the report  by his employee. This limitation period is intended by the legislator to be  mandatory and any departure from this requirement will deprive the employer of  any rights to an invention created by his employee.<br /><br />Interestingly, in  balancing the rights of employers and employees, the Patent Law states in  article 10 that the name of the actual inventor (who is an employee in this  case) has to be written in the application for Patent or Utility Certificate  which is usually submitted by an employer unless the inventor declares, in  writing, otherwise.<br /><br />The above two situations (written employment contract  and no written employment contract) allow an employer to become the owner of the  invention and its patent rights. The employer will have the right to exploit the  invention to his benefit which is known in some jurisdictions as Shop Rights.  The only difference is that under the UAE Patent Law an employer retains both  the ownership as well as the Patent Rights. The Duration of the Patent right is  20 years and the Utility Certificate is 10 years starting from the date of  filing application thereof.</p>'),
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(81206, 4430, '_yoast_wpseo_metadesc', 'The purpose of this article is to provide a general overview of the establishment of the Economic Cities (ECs) under the authority of the Saudi Arabian General Investment Authority (SAGIA) and information on key issues including land ownership and employment issues.');
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(81207, 4431, 'content', '<p>In line with international best practices, the UAE Central Bank (&ldquo;Central  Bank&rdquo;) and the Emirates Securities and Commodities Authority (the &ldquo;ESCA&rdquo;), the  financial regulators in the UAE are getting stricter and have issued several  regulations in the recent past to license and regulate activities which were  commonly being conducted by entities from off shore without attracting any  licensing requirements.<br /><br />ESCA issued draft regulations in January 2011 to  regulate investment funds in local and foreign securities (&ldquo;Regulations&rdquo;) and to  take over the responsibility of regulating domestic and foreign funds from the  Central Bank. It is our understanding that these Regulations are currently being  amended and are likely to be finalized and issued before the end of  2011.<br /><br />We broadly highlight various aspects of the new proposed  regulations including the scope of funds that are regulated, the informal  adoption of certain procedures by ESCA, the additional requirements for foreign  funds.<br /><br />There is ambiguity as to whether the scope of the Regulations is  restricted to only cover funds set up for the purpose of investing in listed  securities or whether the intention is to cover a wider group of investment  funds (i.e. private equity, hedge funds, property funds, fund of funds etc).  While there are some provisions where the scope appears to be wider but most  provisions can only be applicable to funds investing in listed securities. An  example is the requirement of daily valuations of investments of a closed-ended  fund, which is impracticable. A closed-ended fund such as a property fund is  usually only required to value property every six months or annually or in some  instances upon acquisition or disposition. Therefore, it is unclear whether the  new amendments will reflect any changes in the general scope of the types of  funds to be further regulated or will retain the current ambiguity.<br /><br />Even  though the final Regulations have not officially been issued, several provisions  are being applied by ESCA on an informal basis. ESCA has issued a form of  application which is to be completed and submitted to them prior to any entity  commencing the marketing of any foreign investment fund in the UAE.&nbsp; ESCA is  applying the provisions of Part V (Promotion of foreign fund units within the  State) of the Regulations in relation to any such application and ESCA must  approve any such marketing proposal prior to any marketing activity taking  place.<br /><br />Approval to market foreign investment funds in the UAE will only  be issued by ESCA to entities holding an appropriate Central Bank license  permitting it to undertake that activity.&nbsp; These entities are commercial banks  and investment companies. Additionally the foreign fund must be licensed and  regulated under a foreign regulatory authority equivalent to ESCA and the  sponsor and the service provider of the foreign fund must be licensed and also  regulated under a foreign regulatory authority equivalent to that of ESCA. These  new conditions provide more regulation comparable with other jurisdictions; for  e.g. exempt funds do not require approval or licensing from foreign regulatory  authorities. It remains to be seen how ESCA will deal with these  issues.<br /><br />The Regulations do not make a distinction between private funds  to be marketed on a private placement basis to a small number of sophisticated  high net worth investors and public funds intended to be marketed to a larger  group and to retail customers.&nbsp; It would be usual for requirements for these two  types of funds to be substantially different given the different target  investor. Typically, sophisticated high net worth investors are savvy enough to  not require stringent regulations that are typically imposed on funds being  offered to the general public. However, the Regulations do not recognize this  differentiation.&nbsp;<br /><br />It isn&rsquo;t clear what the form of a fund will be. If it  is a separate legal entity, will the shares be owned by the unit holders or  investors or will they be owned by the investment manager. How will the  nationality of the fund be determined (i.e. will it have UAE nationality for the  purposes of investment or will it have the nationality of the investors in the  fund)? This is a very important issue given the foreign ownership restrictions  relating to certain asset classes (i.e. land, shares etc).<br /><br />The  distinction between the roles of investment manager, administrative services  company and safe custodian are not well defined.<br /><br />In conclusion, the  Regulations have been long overdue and its release and implementation is widely  anticipated.<br /><br />Please contact the author for any further information on the  subject of the article.</p>'),
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(81230, 4432, 'content', '<p>In our January 2010 Law Update edition, we published a cover story of the  same name which explored the ground breaking developments and major issues that  have dominated the agenda of the Dubai International Financial Centre (DIFC)  Courts, an English language common law court, during the five years since their  establishment.&nbsp;&nbsp; A further two years on and in a landmark development, the once  limited jurisdiction of the DIFC Courts has been opened to all local, regional  and international companies, making Dubai one of the most unique, distinctive  and innovative jurisdictions for dispute resolution in the world.<br /><br />In  January 2010, it was abundantly clear that the DIFC Courts had already become a  prominent feature of the legal landscape in Dubai, having taken decisive steps  to reinforce their position as a world renowned legal system that is  transparent, reliable, accessible and efficient dispensing equal justice  according to the law and international best practice.&nbsp; 2009 in particular was a  pivotal year in the development of the DIFC Courts which witnessed the  introduction of significant protocols and initiatives designed to enhance access  to justice and develop standards of legal procedure and process to provide the  certainty, transparency and efficiency expected by the institutions operating  within the DIFC.<br /><br />The DIFC Courts were set up under two laws enacted by  His Highness Sheikh Mohammad bin Rashid Al Maktoum, Vice President of the UAE  and Ruler of Dubai. Dubai Law No. 12 of 2004 established the Judicial Authority  at the DIFC and set out the jurisdiction of the Courts, while allowing for the  independent administration of justice in the DIFC (the Judicial Authority Law).  DIFC Law No. 10 of 2004 outlined the powers, procedures, functions and  administration of the DIFC Courts.&nbsp;&nbsp;<br /><br />Previously, the jurisdiction of the  DIFC Courts was limited to civil or commercial cases and disputes that fell  within one of the four jurisdictional gateways set out in Article 5A(1) of the  Judicial Authority Law.&nbsp; Where the DIFC Court had jurisdiction, the jurisdiction  of the Dubai Courts was specifically excluded except in relation to criminal and  matrimonial matters.&nbsp; In order for the dispute to fall within the DIFC Courts&rsquo;  jurisdiction, there must have been a connection to the DIFC whether with respect  to the subject matter, the location of the parties or the transaction  concluded.&nbsp; The effect was to create a &ldquo;common law island in a civil law ocean&rdquo;  to quote the DIFC Courts Chief Justice Michael Hwang.<br /><br />This changed on 31  October 2011 with the signing of Dubai Law No 16 of 2011 (the Law) which amended  the jurisdictional limitations in the Judicial Authority Law.&nbsp; Now, Article  5A(2) of the new Law permits parties to a contract to agree clearly and  expressly in writing to refer their civil and commercial dispute to the DIFC  Courts, even where there is no connection to the DIFC (and as long as no final  judgment has been issued by another Court).&nbsp; Moreover, if a dispute has already  arisen it can still be resolved in the DIFC Courts if both parties agree to have  it heard it there.&nbsp; In other words parties, wherever located, are now free to  &ldquo;opt in&rdquo; to the jurisdiction of the DIFC Courts and elect the DIFC Courts to  adjudicate their dispute.&nbsp;&nbsp;<br /><br />However, where parties have not agreed  clearly and explicitly in writing to refer their disputes to the jurisdiction of  the DIFC Courts, and the dispute has a connection to the DIFC, then the DIFC  Courts still maintain exclusive jurisdiction in relation to civil and commercial  cases that fall within one of the now five jurisdictional gateways set out in  Article 5A(1) of the Law.&nbsp;&nbsp; Although these jurisdictional gateways have also  been amended under the Law, the gateways still demand a connection to the DIFC  whether it be territorial or based on the identity of the parties or the subject  matter of the proceedings.<br /><br />Importantly, processes and procedures relating  to the enforcement of judgments, orders and awards inside and outside the DIFC  are dealt with in Article 7 of the Law and have the power of law.&nbsp; Previously  enforcement was the subject of a Protocol of Enforcement between the Dubai and  DIFC Courts.<br /><br />Ultimately, the Law represents choice &ndash; choice for local,  regional and international business between the UAE&rsquo;s Arabic language civil law  courts or English language common law courts to resolve their disputes.&nbsp; Indeed  Michael Hwang, Chief Justice of the DIFC Courts said when commenting on the Law:  &ldquo;The expansion of the DIFC Courts&rsquo; jurisdiction makes us even more accessible to  the communities in which we operate and whom we serve.&nbsp; The importance of this  change is that our Courts are now available to all who wish to choose us as  their preferred forum for resolution of their disputes, and now widens the  choice of forum for businesses in Dubai and elsewhere.&rdquo;<br /><br />Businesses now  have the opportunity to choose the dispute resolution forum that best suits  their business needs and reflects the commercial reality of their business and  industry. Whilst both the DIFC Courts and the UAE local Courts share a  commitment to justice and the rule of law, the court process and procedure that  applies in each are very different, reflecting the two different legal systems  in which they operate.&nbsp;&nbsp; The choice of forum and jurisdiction for the  determination of disputes in a contract (and particularly when considering a  choice between the UAE local Courts and the DIFC Courts) depends on a range of  important factors including the identity and domicile of the parties; the  governing law of the contract; the subject matter of the contract and the  location of assets.&nbsp;<br /><br />Choosing a dispute resolution forum and jurisdiction  in a contract should not be taken lightly.&nbsp; In many cases it involves a  balancing act of a number of factors depending upon the identity of the parties  and the nature of their contractual relationship and business.&nbsp; Whilst the  common island just got a little bigger in our UAE civil law ocean, with the new  Law, Dubai has underlined its commitment to supporting investors and businesses  locally and internationally by giving them the choice between a number of world  class forums for the resolution of business disputes.&nbsp;&nbsp; <br />Al Tamimi &amp;  Company has one of the leading DIFC Court litigation practices in the region  with extensive experience in advising on and litigating in the DIFC Courts.&nbsp; We  have been involved in many of the leading and significant cases heard in the  DIFC Courts to date.&nbsp;<br /><br />Please get in touch with your existing contact at  Al Tamimi &amp; Company or alternatively the head of our DIFC litigation  practice, Rita Jaballah, to discuss the Law directly and in particular how it  may assist and impact your business.</p>'),
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(81245, 4433, 'content', '<p>The DIFC Data Protection Law 2007 applies in the jurisdiction of the Dubai  International Financial Centre.&nbsp;This legislation governs the processing of  &ldquo;personal data&rdquo;.&nbsp; It protects the rights of &ldquo;data subjects&rdquo;, namely the people  to whom personal data relates.&nbsp; The term &ldquo;personal data&rdquo; is defined in the DIFC  Data Protection Law as &ldquo;any information relating to an identifiable natural  person&rdquo;. An identifiable natural person is &ldquo;a natural person who can be  identified, directly or indirectly in particular by reference to an  identification number or to one or more factors specific to his biological,  physical, biometric, physiological, mental, economic, cultural or social  identity&rdquo;.&nbsp; The key part of the definition of identifiable natural person is the  first ten words, namely &ldquo;a natural person who can be identified, directly or  indirectly&rdquo;, as the subsequent words comprise a list of reference  points.&nbsp;<br /><br />In some cases it is clear that information is &ldquo;personal data&rdquo;  for the purpose of the DIFC Data Protection Law.&nbsp; However, in recent times we  have considered categories of information which may or may not be personal data,  and the answer is not always clear.&nbsp; At the DIFC Data Commissioner&rsquo;s website one  reads the following: &ldquo;Personal data is any information relating to an identified  natural person or identifiable natural person. For example, personal data may  include individual&rsquo;s name, age, home address, race, sexual orientation, income,  blood type, marital status, education, and employment information &hellip; [it] may  include an employer&rsquo;s appraisal or opinion of an employee.&rdquo;&nbsp; The website further  states: &ldquo;Whether information relates to a particular individual will be a  question of fact in each case.&nbsp; If a connection can be made between the  information and an individual, then the information is personal data.&nbsp; Personal  data can relate to more than one individual.&nbsp; For example, information  concerning a joint bank account relates to both account holders and therefore is  the personal data of each account holder and will be protected as such.&rdquo;&nbsp;  <br /><br />This is helpful, but not comprehensive.&nbsp; Thus we have looked to how  other jurisdictions, who have laws similar to the DIFC Data Protection Law, have  addressed the question &ldquo;What is personal data?&rdquo;&nbsp; Our view is that &ldquo;context is  everything&rdquo;, or at least context is most important in assessing whether  information is actually personal data.&nbsp; While it is not possible to address the  many different types of information which an organization operating in the DIFC  may encounter, we thought it would be useful to outline some key issues in this  article.<br /><br />An individual is &ldquo;identified&rdquo; if it is possible to distinguish  that individual from other members of a group.&nbsp; A name is the most common means  of identifying someone.&nbsp; However, if there are two or more people within an  organization of the same name the name of itself may not be personal data.&nbsp; When  the name is combined with some other information about the person such as their  address or telephone number that will usually be sufficient to identify the  individual, and thus the name plus that additional information is together  personal data.&nbsp; Yet it is not necessary to have a person&rsquo;s name to identify the  person if you have other information when, put together, is sufficient to  identify them.&nbsp; For instance, in the employment context, information relating to  the person&rsquo;s position of employment, salary, commencement date and  qualifications may be sufficient, when combined, to constitute personal data.&nbsp; A  judgment call is required when assessing the combination of information.&nbsp; A  practical approach is to ask whether such pieces of information would, in  practice, reasonably be likely to be put together in this way, or whether it is  unrealistic to assume that this would take place.&nbsp; What this means that if an  organization puts in place mechanisms which prevent the combination of  information in this way, it may be possible to avoid each of these items being  identified as personal data. <br /><br />The definition of personal data in the DIFC  Data Protection Law refers to any information &ldquo;relating to&rdquo; an identifiable  natural person.&nbsp; For guidance on the scope of &ldquo;relating to&rdquo; in this context it  is useful to turn to the UK Information Commissioner&rsquo;s Office, who, in a 2007  report, expressed the view that data which identifies an individual, even  without a name associated with it, may be personal data where &ldquo;it is processed  to learn or record something about that individual, or where the processing of  the information has an impact upon that individual&rdquo;.&nbsp; For instance, a medical  history, a criminal record or a record of a particular individual&rsquo;s performance  at work or in a sporting activity will be data which is obviously about a  particular individual and it is the content of that information alone which  determines that it relates to an individual.&nbsp; That said, it will be necessary to  read that information in connection with the individual&rsquo;s name.&nbsp; Further, there  will be data which is not obviously about a particular individual but is  information about their activities, such as a person&rsquo;s personal bank statements  or itemized telephone bills.&nbsp; In these circumstances the data relates to the  person named on the statements or the bills and thus is personal data.&nbsp; The UK  Office suggested the following questions: &ldquo;Is the data being processed, or could  it easily be processed, to learn, record or decide something about an  identifiable individual? Or, as an incidental consequence of the processing,  either could you learn or record something about an identifiable individual, or  could the processing have an impact on or affect an identifiable individual?&rdquo;&nbsp;  If so, the data is likely to be personal data. <br /><br />An interesting scenario  is the minutes of a meeting held within an organization.&nbsp;There will be  circumstances where part of the record of a meeting will be personal data as the  data is obviously about or clearly linked to an individual.&nbsp;For instance,  consider where an individual&rsquo;s suitability for a particular role is discussed,  with consideration given to the individual&rsquo;s qualifications, personality and/or  performance.&nbsp; That section of the minutes of the meeting will be personal data  about that individual.&nbsp; If more than one candidate is considered in the meeting,  there may be personal data in the minutes of the meeting referable to each of  the identifiable individuals.&nbsp; The opinions of the people in the meeting about  the individuals in question will also be personal data of the individual being  discussed.&nbsp; If the meeting is actually to consider disciplinary action against a  particular employee, it is likely that everything discussed at the meeting and  recorded in the minutes is personal data about the individual.<br /><br />The  reports of the UK Information Commissioner&rsquo;s Office and publications of the  European Article 29 Working Party are not part of UAE law or the law of the  DIFC.&nbsp; However, when it comes to applying the DIFC Data Protection Law of 2007  on a day to day basis, it is useful to have regard to these external materials.&nbsp;  We look forward to further consideration of these topics by the DIFC Data  Protection Commissioner and the DIFC Courts in due course.</p>'),
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(81184, 4430, 'content', '<p>The purpose of this article is to provide a general overview of the  establishment of the Economic Cities (ECs) under the authority of the Saudi  Arabian General Investment Authority (SAGIA) and information on key issues  including land ownership and employment issues. The article also discusses  implications of ECs and the specific incentives offered by SAGIA and the  establishment of business operations in ECs.<br /><br />For reasons that will become  clear below, we note that many areas of the applicable regulations to ECs are  uncertain, evolving or subject to change.<br /><br /><strong>ECs sites and  objectives</strong><br /><br />The following are the ECs that are at the development  stage:</p>\r\n<ol>\r\n<li>King Abdullah Economic City (KAEC) is located mid-way between Makkah and  Madinah and the commercial hub of Jeddah. It encompasses some 168-180 square  kilometres, equivalent to around 65 percent of the total area of the emirate of  Ajman in the UAE or about the size of the Principality of Liechtenstein. From  residential complexes to resort district, KAEC seeks to establish itself as a  regional transhipment center. It will comprise a seaport expected to be among  the world&rsquo;s largest on completion.&nbsp;&nbsp;</li>\r\n<li>The Knowledge Economic City (KEC), situated in Al-Madinah, aims to be a  regional hub for the knowledge and information market. The investment cost of  the city will amount to around Twenty Five Thousand Million Saudi Riyals,  creating some 20,000 job opportunities.</li>\r\n<li>Prince Abdulaziz bin Mousaed Economic City (PABMEC) is in Hail, 720  kilometres north of Riyadh, and is slightly smaller in land size than KAEC,  covering an area of 156 square kilometres. The project cost is approximately  Thirty Thousand Million Saudi Riyals or $8 billion. PABMEC is earmarked as a  land-based transport and logistics and touristic centers.&nbsp;</li>\r\n<li>Jazan Economic City (JEC) is intended to become another all-inclusive city  similar to KAEC. JEC is some 725 kms. south of Jeddah and will have its own  desalination plant and a power plant generating 4,000 MW of electricity. It will  cover an area of 100 square kilometres or two-thirds of the entire city. Jazan  is industrial in nature and will attract the investors accordingly.<br />SAGIA is  the regulator of the ECs in KSA.</li>\r\n</ol>\r\n<p><br /><strong>SAGIA status and authority<br /></strong><br />SAGIA was created  under the Foreign Investment Act (FIA) in April 2000. The FIA significantly  amended the foreign investment framework in the Kingdom of Saudi Arabia (KSA).&nbsp;  <br /><br />SAGIA issues licenses to foreign investors for foreign capital  investment in permitted business activity in KSA, whether permanent or  temporary.<br />Pursuant to a recommendation of the Supreme Economic Council in  June 2006, by a decision of the Council of Ministers, SAGIA was specifically  granted the responsibility for all activities relating to the ECs.&nbsp;  <br /><br />Before this date SAGIA was already active in the promotion of the ECs.  For example, in November 2005, SAGIA entered into an agreement with Emaar  Properties, under which it agreed to take certain actions to facilitate the  development of KAEC. Further, with respect to PABMEC in May 2006, SAGIA signed  an agreement with a regional investment holding company for the development of  the project. <br /><br />Generally, based on the above, SAGIA has the authority to  issue licenses for the development of the ECs. The license issued by SAGIA  allows the Master Developer (MD) to establish and carry out investment projects  in connection with the relevant EC. SAGIA license includes the cost of the  project. A MD will usually establish a Project Company (PC) to undertake the  development of an EC.&nbsp;&nbsp;&nbsp;<br />&nbsp;&nbsp; <br />The authority of SAGIA regarding ECs appears  to be implicitly recognized under Saudi law. We are not aware of the publication  by SAGIA of any special act or regulations applicable to the special ECs in KSA.  However, we have been informed that the Economic Cities Agency at SAGIA has  finalized the draft of the Economic Cities Act and legal code but has not  approved it or disclosed it yet.&nbsp;&nbsp; <br /><br /><strong>Land Ownership and  Development in ECs</strong><br /><br />Rights and Obligations of SAGIA and License  holder<br /><br />The rights and obligations of the parties (SAGIA and MD) are  covered in contractual arrangements for development. In principle, MD will enter  into a Master Developer Agreement (Agreement) with SAGIA. Key obligations of a  MD include the development and operation of EC and committing-on behalf of PC  (under formation) - to undertake an initial public offering. As part of the  private sector participation in KSA&rsquo;s economic growth the PC will be required to  offer 30% of its issued share capital to the retail.<br /><br />Under the Agreement,  SAGIA generally assumes certain obligations with respect to the facilitation of  EC project&rsquo;s development, conferring any special status on EC required for the  project, and facilitating governmental and other approvals and other required  actions. SAGIA will, for example, commit to facilitate (a) the registration of  all foreign owned companies and other entities established in the ECs, (b) the  registration of all land title deeds in the name of foreign entities established  in ECs and (c) the issuance of licenses and other regulatory approvals allowing  for industrial land usage within the ECs, including district cooling,  warehousing, logistics and industrial park distribution &hellip;etc.  <br /><br /><strong>Project Land Ownership in ECs</strong><br /><br />Generally, the  following chain of ownership structure has been used in some of the ECs by  SAGIA: the land for the EC is acquired by the MD -chosen by SAGIA- from a  governmental entity, local authority or other party that owns the land. The  terms of such acquisition may vary on a case-by-case basis, for example, as to  price. The MD will then transfer title to the land to the PC, for example, by an  in-kind contribution on its formation. The PC will in turn transfer the land to  investors under a long-term lease or develop the land for sale to third parties  or retain ownership of the land and manage the developed property or enter into  strategic partnerships, alliances or joint ventures for the development of  components of the EC.<br /><br />Similar model was contemplated by SAGIA for the MD  of KAEC and PABMEC. <br /><br />Note that under Royal Decree number M/15 dated  11/03/1424 (H.) corresponding to 13/05/2003 (G.), ministries, governmental  agencies and other authorities (including SAGIA) may appropriate real estate for  public interest purposes, subject to fair compensation being paid and such  acquisition being for a project expressly contemplated in the government budget.  Therefore, the land may remain in the ownership of the SAGIA but be managed by  MD. In such case, there should be a clear agreement between MD and the SAGIA  giving PC the ability to convey title/ownership rights to third party  purchasers.<br /><br /><strong>Rights of property ownership<br /><br /></strong>Real  estate ownership in KSA for companies and individuals which are non GCC /Saudi  nationals is mainly covered by the Foreign Investment Law and the Law of  Non-Saudis Proprietorship and Investment of Real Estate issued by the Royal  Decree 15 dated 17/4/1421H (Foreign R/E Ownership Law).<br /><br />With regard to  GCC Nationals Royal Decree No 4 dated 12/7/1415/H and Executive Rules (GCC R/E  Ownership Law).<br /><br />One of the issues is that foreign ownership of KSA  property must be linked to a particular project and is not a general  right.<br /><br />The GCC ownership law provides that GCC nationals can own real  estate in the Kingdom of Saudi Arabia (&ldquo;KSA&rdquo;) in the following  circumstances:</p>\r\n<ol>\r\n<li>In the case of a company that is wholly owned by GCC nationals:<br />&nbsp;The  property is allocated for the needs of the licensed business activity and  determined by the competent authority;<br />&nbsp;The size of the property is  appropriate for the needs of the licensed activity in KSA as determined by the  competent authorities;</li>\r\n<li>In the case of&nbsp; an individual who is a GCC national:<br />&nbsp;The individual  (unless determined otherwise by the competent authority) owns no more than 3000  square meters;<br />&nbsp;The property is owned as a residence for himself and his  family;<br />&nbsp;Is naturalized and may be the subject of a stipulation by the  competent authority that at least 5 years has elapsed before they have the right  to own property. <br />&nbsp;If the GCC national is licensed to undertake a profession  or business in KSA then the restrictions in the case of a company wholly owned  by a GCC national apply.</li>\r\n</ol>\r\n<p>The Non&ndash;Saudi Proprietorship Law entitles foreign investors to own real  estate in KSA which is required for:</p>\r\n<ul>\r\n<li>the conduct of their professional, technical or economic activities,</li>\r\n<li>private residences for housing employees of a licensed project,</li>\r\n<li>residential use by individuals with normal legal residency status, or</li>\r\n<li>property development which the total cost of the project (both land purchase  and construction cost) must be at least SR 30 million and invested within 5  years from the date of purchase of the land.&nbsp;</li>\r\n</ul>\r\n<p>Even the smallest minority interest held by a non-GCC (or foreign) national  will be sufficient to make a corporate entity &ldquo;foreign&rdquo;, thus triggering the  requirement for a SAGIA license.<br /><br />At this stage, instead of designating  areas for possible foreign ownership in the nature of free zone jurisdictions  and investment zones, KSA has left the licensing of sites to the discretion of  SAGIA and simply stipulated two areas where there is a prohibition on foreigners  acquiring real estate, namely land within the city limits of Mecca and Al Medina  Al Munawara.<br /><br /><strong>Property lease/ownership and deed  formalities<br /><br /></strong>In terms of real estate ownership in ECs, 100%  foreign landownership is allowed in the ECs except for KEC-in Al Medina Al  Munawara. Once the investor has completed all commercial agreements with the EC  developers regarding land lease and/or ownerships, the Smart Service Center  (SSC) will facilitate the official property lease/ownership and deed formalities  required. <br /><br />Documentation requirements include the following:</p>\r\n<ul>\r\n<li>Individual Identification Set&nbsp; and Company Identification Set ;</li>\r\n<li>Original lease and or property sale contract(s) (between investor and city  developer); and</li>\r\n<li>Copy of original contract(s).&nbsp;However, foreign Muslims may rent property in  KEC in Al Medina Al Munawara for renewable terms of no more than two  years.</li>\r\n</ul>\r\n<p><br /><strong>Employment issues<br /></strong><br />With respect to the ECs and  employment matters, SAGIA offers a one-stop shop/fast track government  immigration centre for ECs to deal with prompt approval and processing of visas,  easing of application of labour law requirements, overseas recruitment and  renewal of visa and work permits. Since the development of an EC is considered a  private project, employing Saudi citizens will be required . <br /><br />The amount  of information available from SAGIA on this subject is very  limited.<br /><br />However, we note that in the ECs, a more liberal regime will  apply to employment issues than in the normal Saudi environment. However,  Saudization requirements would still apply in ECs.&nbsp;<br /><br />Further incentives  offered by SAGIA: <br /><br /><strong>SAGIA offers the following incentives to  investors in ECs:</strong></p>\r\n<ul>\r\n<li>One stop-shop/fast track government servicing centre for the city to deal  with document processing, planning approvals, building permits and approvals  from municipalities.</li>\r\n<li>One stop-shop/fast track government business registration centre for the  city to deal with registration of businesses, incorporation of companies,  approval, issue and renewal of trade and commercial licenses, approval, issue  and renewal of industrial licenses and monitoring of conditions to comply with  environmental guidelines.</li>\r\n<li>Within the ECs, the creation of an attractive business environment for both  domestic and international businesses with respect to exemption from import  duties, ownership of land and property, taxation, employment, immigration and  land use.</li>\r\n<li>Each EC may choose to have a bounded zone within its designated area which  may comprise an industrial zone.</li>\r\n</ul>\r\n<p><strong>Foreign investment restrictions in the ECs:</strong></p>\r\n<p>An understanding of foreign investment restrictions in ECs requires some  background on the applicable foreign investment framework in Saudi Arabia. See  generally the creation of SAGIA under the FIA discussed above.<br /><br />Negative  List<br /><br />A negative list has been issued by SAGIA for some business  activities that are prohibited to foreign investment. These include manufacture  of military materials, equipment and explosives, oil exploration and production,  services related to security, real estate brokerage, and land transportation  services (excluding trains), among others. The Kingdom is currently reducing the  sectors that are not open to foreign investors: retailing, telecommunications  and insurance have already been removed from the list.<br /><br />In a change from  the previous investment law, the FIA allows foreigners 100% ownership of certain  projects, as well as property required for the project itself or for housing  company personnel (with the exception of real estate in Mecca and Al Medina Al  Munawara-see above). Under this scheme, foreign investors are allowed to retain  the same incentives, privileges and guarantees given to national companies other  than taxation.<br /><br />For example, projects that are 100% foreign-owned are  eligible for loans from the Saudi Industrial Development Fund. Investors are  also able to hold investment licenses in more than one type of activity. The law  has also brought significant changes to the previous sponsorship regulations.  Under the new scheme, foreign investors and their non-Saudi employees may be  sponsored under a new licensed firm.<br /><br />Foreign investments are protected by  law and may not be confiscated wholly or partially without a court order.  Moreover, such investments may not be subject to expropriation wholly or  partially except in the public interest in return for equitable  compensation.<br /><br />SAGIA will provide all Government services through its  Smart Service Center (SSC) operations. SAGIA is in the process of establishing  SSC centers within the ECs offering enhanced services to investors, until the EC  SSC centers are completed, all investors wishing to establish in the ECs will be  serviced (60/24/7) through existing SSC&rsquo;s located in all major cities within  KSA. The SSC currently offers more than 128 government services and is  continuously enhancing its basket services. SSC ensures a fast-track and  hassle-free process for establishing a company in ECs.&nbsp; <br /><br />Foreign  investments - general<br /><br />Generally, a license will be required from SAGIA  for any such investment. <br /><br />The conditions for SAGIA granting a foreign  investment license include the following:</p>\r\n<ul>\r\n<li>The investment activity to be licensed should not be on the negative list -  see above;</li>\r\n<li>The intended product of the company should comply with Saudi rules and  regulations and other applicable laws of the European Union or the United States  of America and certain other conditions;</li>\r\n<li>The applicant should be a natural person or corporate entity that intends to  invest in the Kingdom;</li>\r\n<li>The foreign investor should not have been convicted in the past for  substantial violations of the provisions of the FIA;</li>\r\n<li>The foreign investor should not have been convicted in the past for  financial or commercial violations whether in the Kingdom or in other countries;  and</li>\r\n<li>The grant of a license should not result in the breach of any international  or regional agreement to which the Kingdom is a party.</li>\r\n</ul>\r\n<p><br />Most of the above conditions are fulfilled by foreign investors  relatively easily.<br /><br />Foreign investors are also required to submit a  declaration stating non-availability of a residency permit in KSA over the last  two years. In cases where the investor has held a residency permit in KSA, a  letter approved by the last investor&rsquo;s sponsor must be submitted stating the  sponsor&rsquo;s non-objection to the return of the investor to KSA for the purpose of  investment.&nbsp;&nbsp; <br /><br />Corporate structures in use in ECs <br /><br />An investor may  choose one of several forms of business when establishing business operations in  the ECs.&nbsp; The following are the common legal forms used in ECs:</p>\r\n<ul>\r\n<li>Branch;</li>\r\n<li>Limited Liability Company (LLC);</li>\r\n<li>Joint Stock Company (JSC); and</li>\r\n<li>Technical Scientific Services Office (TSO).</li>\r\n</ul>\r\n<p><br /><strong>Establishment process- Step by Step- at SSC</strong></p>\r\n<p>The establishment of an investment vehicle in the ECs in whatever form will  inevitably involve a number of common steps, including:</p>\r\n<p>Step 1.&nbsp;Obtain an investment license from SAGIA;<br />Step 2.&nbsp;Approval of the  entity&rsquo;s trade name and location ;<br />Step 3&nbsp;Obtaining Labor Office File Number  (File 700);<br />Step 4.&nbsp;Resident Manager: Obtain Residency Permit/Iqama;<br />Step  5.&nbsp;Physical premises: Obtain Property Ownership Deed/Lease contract;<br />Step  6.&nbsp;Approval of draft articles of association (or a Ministerial resolution for a  branch);<br />Step 7.&nbsp;Notarizing and Publishing the articles of association  (Companies only);<br />Step 8.&nbsp;Depositing the entity&rsquo;s paid-up capital in a local  bank and issuing bank certificate;<br />Step 9.&nbsp;Commercial Registration from the  Ministry of Commerce;<br />Step 10.&nbsp;Chamber of commerce and industry membership  registration;<br />Step 11.&nbsp;Labour Office registration;<br />Step 12.&nbsp;Tax  registration;<br />Step 13.&nbsp;Registering employer and employees for the General  Organisation of Social Insurance (GOSI) contributions; and<br />Step 14.&nbsp;possibly,  the role of specialised authorities/agencies such CITC or Ministry of  Information.<br /><br />The above entire process is serviced on a fast-track basis  through SSC.<br /><br />Al Tamimi &amp; Company&rsquo;s KSA office is focusing on setting  up foreign companies in Special Economic Cities and is currently providing legal  assistance for the Master Developer of King Abdullah Financial District  (KAFD).&nbsp;&nbsp;<br /><br />Our KSA office is involved in the revision of all rules and  instructions regulating the KAFD and most agreements and contracts between MD  and other developers, contractors and companies intended on having a presence in  the KAFD, such as banks and financial institutions.</p>');
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(81169, 4429, 'content', 'The majority of investors, both small and large, tend to face the same concerns in starting up and/or expanding their businesses; namely recourse to the funding necessary to achieve the same. In Iraq, a country plagued by years of political unrest and continued warfare, encouraging investors to chance the uncertainty underlying Iraq\'s market is no easy task; and yet, as Iraq and in turn Iraq\'s market and economy begin to reinstate themselves in the international scene, corporate interest in Iraq continues to grow at an outstanding rate; in particular, interest in Iraq\'s capital markets has never been greater. At the forefront of this, is a renewed interest in IPOs and the opportunities created by the same.\r\n\r\n<strong>But what does the IPO process itself entail?</strong>\r\n\r\n1. Joint-Stock Companies\r\n\r\nThe Iraqi Companies Law No.21 of 1997 (as amended) (the “Companies Law”) defines a joint-stock company generally as a company composed of not less than 5 persons; whose shareholders subscribe in its shares through a public offering and whose responsibility for the debts of the company is limited to the value of the shares they subscribe for.\r\n\r\nThe Companies Law recognizes two such types of companies; the private joint-stock company (\"PJSC\") and the mixed joint-stock company; wherein to qualify as a mixed company, the contribution of the public sector in the same must not be less than 25% of the share capital. A mixed-joint stock company is subject to numerous governmental regulations and requirements, and which are outside the scope of this Article.\r\n\r\n<strong>Registering a Joint-Stock Company</strong>\r\n\r\nA joint-stock company must be registered with the Companies Control Department of the Ministry of Trade (“MoT”).  In general, in order to register with the MoT, the company must fulfil the following:\r\n<ul>\r\n 	<li>Fill out application form and Articles of Association for the PJSC;</li>\r\n 	<li>Submit subscription document of PJSC signed by the founders;</li>\r\n 	<li>Provide a statement from a licensed bank in Iraq confirming that the capital has been deposited. It is important to note that the minimum capital required to register a PJSC is IQD 2,000,000 (approximately USD 1,700) divided into 2,000,000 equal shares, with a nominal value of IQD 1;</li>\r\n 	<li>Contract with a specialized body to conduct a technical and economic feasibility study on the PJSC; and</li>\r\n 	<li>Obtain the relevant sector\'s approvals (if any).</li>\r\n</ul>\r\n2. Public Subscription of Shares\r\n\r\nIn addition to registration with the MoT, the PJSC must obtain the approval of the Iraqi Securities &amp; Exchange Commission (the \"Commission\") in order to undergo an IPO.  It is important to note that the founders of a PJSC are required to subscribe for not less than 20% of its nominal capital, the remainder to be offered to the public. Public subscription of shares shall take place at a bank licensed to operate in Iraq in a form bearing the name of the PJSC; and which shall be responsible for the soundness of the subscription process, as well as undertaking the following responsibilities:\r\n<ul>\r\n 	<li>Closing the subscription at the end of the subscription period, and undertaking the required notifications;</li>\r\n 	<li>Handling the money received by the subscribers; and</li>\r\n 	<li>Returning any surplus funds to subscribers within 15 days from the distribution of shares among the subscribers.</li>\r\n</ul>\r\nThe subscription period in Iraq shall not be less than 30 days, and not exceeding 60 days. It is, however possible to extend the subscription period for a further 60-day in certain circumstances.\r\n\r\n3. Listing on the Iraq Stock Exchange (\"ISX\")<strong>\r\n</strong>\r\nThe related instructions provide a number of requirements/conditions which a PJSC must satisfy before it can list on the ISX, including (among others) to:\r\n<ul>\r\n 	<li>To obtain the approval of the Commission to list its shares on the ISX;</li>\r\n 	<li>To submit a report highlighting the performance of the company and main issues regarding the same, as well as other information relating to the company in accordance with the said Instruction;</li>\r\n 	<li>For the shareholders rights in the company to be not less than 100% of the paid-up capital of the PJSC;</li>\r\n 	<li>Evaluation by the Commission;</li>\r\n 	<li>To comply with the applicable Banking, Companies, and Securities Laws in force, and for its Board of Directors to sign a number of undertakings confirming that it will continue to do so; and</li>\r\n 	<li>To comply with various reporting and accounting obligations provided for in the said Instructions.</li>\r\n</ul>\r\n<strong>Conclusion </strong>\r\n\r\nFollowing a challenging period of unrest in Iraq, the introduction of a series of measures by the Iraqi government aimed at reviving the Iraqi market, are hoped to help create a more stable, more competitive, economy in Iraq in line with international commercial practices. In particular, this latest requirement by the government to see a number of Iraq\'s main industries undergoing an IPO, is likely to have profound implications on the revival of Iraq\'s local capital market, a market, which, until recently, has been dormant for many years now.'),
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(81147, 4427, 'content_description', 'As most of us remember, NASDAQ Dubai is a stock exchange registered and operating in the Dubai International Financial Centre (“DIFC”) that was formerly known as “Dubai International Financial Exchange”.'),
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(81149, 4427, 'pageSummary', 'As most of us remember, NASDAQ Dubai is a stock exchange registered and operating in the Dubai International Financial Centre (“DIFC”) that was formerly known as “Dubai International Financial Exchange”.'),
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(81157, 4427, '_yoast_wpseo_metadesc', 'As most of us remember, NASDAQ Dubai is a stock exchange registered and operating in the Dubai International Financial Centre (“DIFC”) that was formerly known as “Dubai International Financial Exchange”.'),
(81158, 4428, 'content', '<p>Al Tamimi &amp; Company opened the Riyadh office in March 2008. It comprises  a team of Arab, Saudi and western lawyers that are completely integrated and  supported by Al Tamimi\'s extensive network of GCC offices.<br />It is unique  amongst other KSA law firms as it is the only foreign law firm in KSA licensed  to practice in its own name, without a local association, ensuring consistent,  high quality, legal services.&nbsp; The office has unparalleled local knowledge and  contacts, which in KSA are essential, in assisting clients to achieve their  business objectives. In what can be a challenging jurisdiction, our approach is  to focus on solutions, not obstacles, when advising our clients.&nbsp;<br /><br />Our KSA  office provides advice in all areas of corporate, commercial and finance law  including:</p>\r\n<ul>\r\n<li>Major projects, infrastructure and privatization</li>\r\n<li>Foreign investment</li>\r\n<li>Joint ventures and partnerships</li>\r\n<li>Project and infrastructure finance</li>\r\n<li>IPOs, Mergers and acquisitions</li>\r\n<li>Transactional and corporate advisory</li>\r\n<li>Capital markets</li>\r\n<li>Commercial agencies, distributorships, licensing &amp; franchising</li>\r\n<li>Banking and finance</li>\r\n<li>Litigation and arbitration</li>\r\n<li>IP &amp; IT</li>\r\n<li>Islamic Finance</li>\r\n<li>Property and construction</li>\r\n</ul>\r\n<p><br />Our litigation department is headed by Abdullah Al Tamimi.&nbsp; Through his  efforts, he has been able to propel the Al Tamimi KSA office to becoming a  leading firm for Dispute Resolution.&nbsp; Abdulla is currently leading all  litigation matters in the Riyadh office; many of which are multi-national  companies.&nbsp; In one instance, he is representing a large regional bank on a SAR  2.5 billion (approximately $700 million USD), credit facility.&nbsp;&nbsp; In addition to  this very high profile case, he is also representing a consortium of regional  banks in recovery proceedings against a Saudi based company totaling over SAR  1.2 billion (approximately $330 million USD).<br /><br />Aside from these notable  cases, Abdullah continues to play a key leadership role in the Riyadh office by  helping to drive the team forward and by securing new assignments for the  office.&nbsp; Most recently, Abdullah played a key role in helping to secure The King  Abdullah Financial District project for the firm.<br /><br />The team in KSA is made  up of X partners and X lawyers all of whom are involved in a variety of  assignments.&nbsp; Our&nbsp; Riyadh office was awarded one of the most sought after  projects within the kingdom, The King Abdullah Financial District.</p>\r\n<p>Al Tamimi &amp; Company has been assigned as the legal advisor for the  Rayadah Investment Company (\"Rayadah\") in relation to the King Abdullah  Financial District (\"KAFD\").&nbsp; Rayadah, is the investment arm of the Public  Pension Agency and has been mandated to build, develop and manage  KAFD.<br /><br />Al Tamimi &amp; Company\'s appointment was a result of Al Tamimi\'s  notable experience in similar previous mandates.&nbsp; KAFD\'s project will be led by  number of lawyers in Al Tamimi\'s Riyadh office, as well as, experienced lawyers  in other offices of Al Tamimi who specialize in property, construction and  corporate commercial matters.<br /><br />The KAFD is aimed at providing a Saudi  business working environment similar to those existing in the leading financial  centers all over the world.&nbsp; We are proud that the Al Tamimi &amp; Company  Riyadh office is taking such an active role in this monumental  development.<br /><br />The Kingdom of Saudi Arabia is the largest country in the  Middle East by land area, constituting the bulk of the Arabian Peninsula, and  the third-largest Arab country. It is bordered by Jordan and Iraq on the north  and northeast, Kuwait, Qatar and the United Arab Emirates on the east, Oman on  the southeast, and Yemen on the south. It is also connected to Bahrain by the  King Fahd Causeway. The Persian Gulf lies to the northeast and the Red Sea to  its west. Saudi Arabia has an estimated population of 25.7 million of which 5.5  million are non-citizens,[5] and its size is approximately 2,149,690 square  kilometers (830,000 sq mi).<br /><br />Saudi Arabia has the world\'s largest oil  reserves and is the world\'s largest oil exporter. Oil accounts for more than 90%  of exports and nearly 75% of government revenues.&nbsp; The King of Saudi Arabia is  Abdullah bin Abdul Aziz and the crown prince is Sultan bin Abdul Aziz.&nbsp;&nbsp; The  capital city is Riyadh the 2010 estimated Purchasing Power Parity GDP is USD  $622 billion.<br /><br />Please visit our website at <a href=\"http://www.tamimi.com/\">www.tamimi.com</a> for more information  on our Riyadh office.</p>\r\n<p>&nbsp;</p>'),
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(81117, 4423, '_yoast_wpseo_metadesc', 'Although much has been written about it, decennial liability continues to surprise and confound architects, engineers and contractors from other parts of the world who are coming to the Middle East to do business.'),
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(81132, 4426, 'content', '<p>With the 2011 IBA Conference in Dubai still fresh in our minds, we want to take  this opportunity to thank everyone who attended our IBA events for taking the  time out of your busy schedules to join us and for your continued support of the  firm.<br /><br />We are very proud of the success of each event we hosted and are  delighted with the turnout at our &lsquo;Arabian Nights&rsquo; cocktail reception held on  the lawns of Jumeirah Beach Hotel, in front of the picturesque Burj Al Arab.&nbsp;  With over 900 guests in attendance, predominately from international firms, the  reception was a resounding success and was an excellent opportunity for our  lawyers to develop fruitful relationships with lawyers from a range of  jurisdictions across the world.&nbsp; The event also doubled as an opportunity for us  to officially launch our new logo and brand &ndash; we do hope you like it. We are  pleased to include a collage of some of the photographs taken on the evening for  you to enjoy.<br /><br />We look forward to building upon our existing  relationships, and getting to know those of you who we met for the first time  over the coming months.&nbsp; We will of course be in Dublin for next year&rsquo;s IBA  conference and look forward to catching up with many of you  there.<br /><br />Wishing you all the very best for a happy, safe and successful  2012.</p>'),
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(81136, 4426, 'content_description', 'With the 2011 IBA Conference in Dubai still fresh in our minds, we want to take this opportunity to thank everyone who attended our IBA events for taking the time out of your busy schedules to join us and for your continued support of the firm.'),
(81137, 4426, '_content_description', 'field_59b641c07f473'),
(81138, 4426, 'pageSummary', 'With the 2011 IBA Conference in Dubai still fresh in our minds, we want to take this opportunity to thank everyone who attended our IBA events for taking the time out of your busy schedules to join us and for your continued support of the firm.'),
(81139, 4426, '_pageSummary', 'field_59e59b307dec8'),
(81140, 4426, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-7/december-2/iba.html'),
(81141, 4426, '_currentURL', 'field_59d35123ab1e7'),
(81142, 4426, '_yoast_wpseo_metadesc', 'With the 2011 IBA Conference in Dubai still fresh in our minds, we want to take this opportunity to thank everyone who attended our IBA events for taking the time out of your busy schedules to join us and for your continued support of the firm.'),
(81143, 4427, 'content', '<p>As most of us remember, NASDAQ Dubai is a stock exchange registered and  operating in the Dubai International Financial Centre (&ldquo;DIFC&rdquo;) that was formerly  known as &ldquo;Dubai International Financial Exchange&rdquo;.&nbsp; <br /><br />Since 2005, it has  been operating an exchange and a clearing house as an &ldquo;Authorised Market  Institution&rdquo;, regulated by the Dubai Financial Services Authority (&ldquo;DFSA&rdquo;).&nbsp;  <br /><br />Based in the DIFC and supervised by the DFSA, NASDAQ Dubai has been  governed under a separate set of rules and regulations, based on common law  principles and best international practice as far as global capital markets are  concerned. <br /><br />Finally, effective from 11 July 2010, NASDAQ Dubai has  outsourced its key market operations functions for equities to Dubai Financial  Market, a UAE &ldquo;on-shore&rdquo; securities exchange (&ldquo;DFM&rdquo;) and merged its trading  platform with the DFM which has brought DFM&rsquo;s individual investors and NASDAQ  Dubai&rsquo;s institutional investors together.&nbsp;&nbsp; <br /><br />The legal framework for  listings on NASDAQ Dubai used to be governed by NASDAQ Dubai Listing Rules  (&ldquo;Listing Rules&rdquo;) and DFSA Offered Securities Rules Rulebook Module (&ldquo;OSR&rdquo;).&nbsp;  The Official List of Securities (&ldquo;List&rdquo;) comes to mind as maintained by NASDAQ  Dubai. <br /><br />The Listing Rules have been subject of discussion and public  consultations, its various drafts have been exchanged between the Exchange, the  DFSA, professionals in the fields of banking, finance and law for about two  years, aimed at aligning them with international standards but at the same time  ensuring listing and on-going reporting requirements would not be unduly  burdensome towards issuers. <br /><br />Lately, we have witnessed a significant  progress in implementation of the new listing regime.&nbsp; <br /><br />A brief outline  of the most essential developments in this regard has been set out  below.<br /><br /><strong>LIST WITH THE DFSA</strong><br /><br />From 1 October 2011,  the responsibility for maintaining the List has been transferred from NASDAQ  Dubai to the regulator of the financial merket, namely the DFSA. <br /><br />The  transfer of the List has been implemented in order to streamline the regulatory  process for approving prospectuses and listing (now centralised with the DFSA),  for the benefit of issuers and investors and in compliance with international  best practice.&nbsp; <br /><br /><strong>NASDAQ DUBAI ISSUER AND SECURITIES RULES </strong><br /><br />Although the DFSA had initially adopted the Listing Rules,  further to the transfer of the List from NASDAQ Dubai to the DFSA some  legislative changes to the Listing Rules were necessary.<br /><br />In light of the  above, NASDAQ Dubai Issuer and Securities Rules of 1 October 2011 (&ldquo;Interim  Listing Rules&rdquo;) were enacted and replaced the Listing Rules.&nbsp; <br />The Interim  Listing Rules are less comprehensive than the Listing Rules, as the entire  regime related to admission of securities to listing has been left out.&nbsp; The  Interim Listing Rules set out the legal framework for the admittance of  securities to trading on NASDAQ Dubai and the continuing obligations imposed on  issuers of securities which are admitted. <br /><br />The Interim Listing Rules have  been introduced on an interim basis and will be superseded and replaced by  updated NASDAQ Dubai Issuers and Securities Rules (&ldquo;Final Listing Rules&rdquo;) when  the new DFSA legal framework comes into place.&nbsp; <br /><br /><strong>NEW  OSR</strong><br /><br />As the Interim Listing Rules provide for trading, only, the  OSR have been amended (version 16/08-11) and most listing provisions have been  set out under Chapter 6 (&ldquo;New OSR&rdquo;). <br /><br /><strong>CONSULTATION PAPER NO  78</strong><br /><br />1.&nbsp;FRAMEWORK<br /><br />In consistency with the steps referred to  above, and following the DFSA Consultation Paper No 75 of earlier this year, the  DFSA announced Consultation Paper No 78 of 6 October 2011 (&ldquo;Paper&rdquo;).&nbsp;  <br /><br />The changes introduced under the Paper are aimed at achieving  centralisation of the prospectus and listing approval process with the DFSA so  that issuers better understand the role that the DFSA and NASDAQ Dubai play in  the listing and trading admission process.&nbsp; <br /><br />The DFSA is now going to be  in charge of the listing process, whereas the main function of NASDAQ Dubai has  become supervision of the admittance to trading of securities on its market and  monitoring of orderly trading.&nbsp;<br /><br />The DFSA has opened a public consultation  period in respect of the provisions proposed under the Paper and will be  accepting comments from the public till 15 November this year.  <br /><br />2.&nbsp;MARKETS RULES<br /><br />Draft Markets Rules that are to form part of the  DFSA Rulebook, with a new Chapter 9 (&ldquo;Markets Rules&rdquo;) consist of the core of all  the changes to the listing regime that have been introduced under the  Paper.&nbsp;<br /><br />Numerous solutions proposed under the Markets Rules have been  modeled on those currently in place in the United Kingdom, Hong Kong or  Singapore.&nbsp; The DFSA were of the view that many expat professionals practising  in the DIFC have experience in advising on transactions in those jurisdictions;  therefore, it decided to respond to their expertise by referring to the  principles and practices these professionals are already familiar with.  <br /><br />The most essential changes to the listing regime that have been proposed  under the Market Rules are: <br /><br />2.1.&nbsp;Listing Principles <br /><br />Whereas  listing principles had no participation under the provisions regime, the Markets  Rules, under Chapter 9, set out five listing principles, i.e.:</p>\r\n<ol>\r\n<li>Staff Compliance - a listed entity must take reasonable steps to ensure that  its senior management and any other relevant employees understand and comply  with their responsibilities and obligations under the Interim/Final Listing  Rules.</li>\r\n<li>Establishing and Maintaining Policies and Internal Controls - a listed  entity must take reasonable steps to establish and maintain adequate policies,  procedures, systems and controls to enable it to comply with its obligations  under the Interim/Final Listing Rules.</li>\r\n<li>Integrity - a listed entity must act with integrity towards holders and  potential holders of its securities.</li>\r\n<li>Clear and Non-misleading Communication - a listed entity must communicate  information to holders and potential holders of its securities in such a way as  to avoid the creation or continuation of a false market in such securities.</li>\r\n<li>Cooperation - a listed entity must deal with the DFSA in an open and  co-operative manner.</li>\r\n</ol>\r\n<p>2.2.&nbsp;Shares in Public Hands<br /><br />In line with the legal approach adopted  under EU legislation, under the Markets Rules the DFSA has proposed that at  least 25 per cent of the securities that are to be admitted to listing on NASDAQ  are in public hands, which shares do not include those held, directly or  indirectly, by:</p>\r\n<ol>\r\n<li>a director of the listing applicant or of any of its subsidiaries;</li>\r\n<li>a person connected with a director of the listing applicant or any of its  subsidiaries;</li>\r\n<li>the trustees of an employee share scheme or pension fund established for the  benefit of any directors or employees of the listing applicant and its  subsidiary;</li>\r\n<li>any person who under any agreement has a right to nominate a person to the  board of directors of the listing applicant; or</li>\r\n<li>any person or persons in the same group or persons acting in concert who  have an interest in 5% or more of the securities of the relevant  class.</li>\r\n</ol>\r\n<p><br />The listed entity is required to adhere to that requirement at all times,  i.e. also after listing. <br /><br />Note: The DFSA may, however, in exceptional  circumstances, accept a percentage lower the 25 per cent if it considers than  the market will operate properly, with a lower percentage in view of additional  factors, e.g. a large market capitalisation of the issuer with a large number of  securities of the same class listed and where such securities would nonetheless  expect to have a wide distribution to the public and be  liquid.<br /><br />2.3.&nbsp;Working Capital Adequacy<br /><br />Under the Market Rules, the  issuer is obliged to comfort the DFSA that it and any of its subsidiaries have  sufficient working capital available for its present requirements or, if not,  how it proposes to provide the additional working capital needed.&nbsp; The issuer  must also confirm in the prospectus that it is going to meet the capital  adequacy requirement for the period of at least 12 months after prospectus  admission.&nbsp; An issuer that is not comfortable representing the same will not be  eligible for listing on NASDAQ Dubai. <br /><br />2.4.&nbsp;Controlling Shareholders and  Conflicts of Interest<br /><br />An applicant for listing which has one or more  controlling shareholders must be able to demonstrate to the DFSA that it can  operate its business independently of such controlling shareholder and any  associate thereof, unless holders of the issuer&rsquo;s shares would have no  appreciable risk of prejudice by the involvement in the relevant business of a  controlling shareholder.<br /><br />A new definition of a &ldquo;controlling shareholder&rdquo;,  based on a Hong Kong model, has been introduced under the Market Rules, whereby  a controlling shareholder has been defined as:<br /><br />&nbsp;&ldquo;any Person, or Persons  acting jointly by agreement, whether formal or otherwise, who is: (a) entitled  to exercise, or control the exercise of, 30% or more of the voting rights at a  general meeting of the Applicant; or (b) able to control the appointment of one  or more Directors who are able to exercise a majority of the votes at board  meetings of the Applicant&rdquo;.<br /><br />An applicant must ensure prior to listing  that it has adequate systems and controls to eliminate or manage material  conflicts of interest (e.g. related party transactions, situations in which  interested persons lend to or borrow from the issuer or its group, lease  property to or from the issuer or its group; or have an interest in businesses  that are competitors, suppliers or customers of the issuer or its group) in its  business prior to listing.<br /><br />2.5.&nbsp;Other Changes<br /><br />Some other changes  the DFSA introduced under the Market Rules that are worth mentioning  concern:</p>\r\n<ol>\r\n<li>Market capitalization requirement (i.e. expected aggregate market value at  the time of listing) that has been reduced to USD 10 million (and USD 2 million  for debentures);</li>\r\n<li>Share repurchase requirements, whereby a listed entity must not purchase its  own shares without the prior written approval of the DFSA; a listed entity which  proposes to purchase more than 15% of any class of its shares must do so only by  way of a tender offer to all shareholders of that class; and&nbsp;</li>\r\n<li>Continuing obligations, e.g. to be admitted to the List, securities will  need to be admitted to trading on NASDAQ Dubai; reporting entities will need to  be fully aware of their ongoing reporting obligations and unlike it has been to  date, will not receive any reminders from the DFSA or NASDAQ Dubai about due  periodical disclosures.</li>\r\n</ol>\r\n<p><br />3.&nbsp;LISTING AND ADMISSION TO TRADING PROCESS<br />Finally, as a consequence  to the changes to NASDSQ Dubai listing regime, the listing process will now be  as follows:<br /><br /></p>\r\n<p><img alt=\"graph\" border=\"0\" height=\"416\" src=\"https://admin.newsweaver.com/notessa/repository/s1/169641484993255628/Hx/arvp7dfuahxu9hn7dy25tsgqqgyo8zl25yr8ii1b18ctfdgi.gif\" width=\"427\" /></p>\r\n<p><br /><strong>FINAL THOUGHTS</strong><br />In summary, as of today, the legal  framework for listing and trading in securities on NASDAQ Dubai is governed by  the Interim Listing Rules and the New OSR. <br /><br />As soon as the DFSA finalise  looking into the comments to the Paper made by the public, the new listing  regime, consisting of: (i) the Final Listing Rules; (ii) the Markets Rules;  (iii) new DIFC Markets Law; as well as (iv) amended: Glossary Module, DFSA  Rulebook and Fees Module, DFSA Rulebook; will be enacted.<br /><br />The changes  proposed under the Paper seem to deal with the matters of listing and ongoing  disclosure obligations in an advanced and internationally recognised manner.&nbsp;  The DFSA and NASDAQ Dubai have utilised these economically challenging times in  a very efficient way and managed to make a significant progress improving the  legal framework for listing and trading in securities on NASDAQ Dubai.&nbsp;  <br /><br />At present, Middle Eastern equity markets are relatively subdual/subdue.  However, NASDAQ Dubai is clearly positioning itself as the Middle Eastern first  option closest to international practices.&nbsp; Listing on NASDAQ Dubai also gives  primary access to the DFM/ NASDAQ Dubai common trading platform, without hurdle  to submit to the more proscriptive UAE on-shore listing regime.</p>'),
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(81061, 4421, 'content_description', 'Vessel mortgage in the UAE is governed by the UAE Commercial Maritime Law No. 26 for the year 1981 and amendments as per law No. 11 for the year 1988 (the “Law”). The Law permits the mortgage of a vessel if its total tonnage exceeds ten tons. As per the Law, There is only one type of vessel mortgages which confers priority rights for mortgagee over other debtors.'),
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(81076, 4422, 'content', '<p>The banking industry in the Kingdom of Saudi Arabia (&ldquo;KSA&rdquo;) embodies one of  the main commercial industries that still has a number of issues requiring  clarity for the sector and the following will identify and provide a general  overview of some important areas. <br /><br />The Saudi Arabia Monetary Agency  (&ldquo;SAMA&rdquo;) performs the central bank role in KSA, overseeing the local and foreign  banking businesses in KSA .&nbsp; Historically, the Commercial Court Law promulgated  by Royal Decree dated 15/1/1350 H (corresponding to 2/6/1931 G) can be  considered as the first set of regulations that tried to regulate the banking  and exchange businesses in KSA, albeit, the cornerstone of laws regulating the  banking business have been issued after the establishing of SAMA in 25/7/1371 H  (corresponding to 20/4/1952 G).&nbsp; The first was the Law of SAMA issued by Royal  Decree No. 23 dated 23/5/1377 H (corresponding to 16/12/1957 G) (\"SAMA\'s Law\")  and the second is the Banking Control Law issued by Royal Decree No. M/5 dated  22/6/1386 H (corresponding to 8/10/1966 G) (\"BCL\").<br /><br />SAMA&rsquo;s Law outlines  its role and regulates its relationship with local and foreign banks conducting  banking businesses in KSA and sets forth the governing and supervisory role of  SAMA over banking activity in KSA.&nbsp; The BCL regulates banking businesses in  terms of the statutory requirements to conduct banking business in KSA and  provides various provisions that govern the activities that a bank is allowed to  carry out and those which are prohibited. <br /><br />However, within the current  legislation there are insufficient provisions that define the meaning of banking  businesses and also how a banking business is to function.&nbsp; In light of this,  SAMA has issued many rules and instructions in the form of circulars to all  local and foreign licensed banks in KSA during the past few decades.&nbsp;  Unfortunately, such circulars are not usually publicly available.  <br /><br />Further, it can be said theoretically, that all banking transactions  have to be Shari&rsquo;ah compliant.&nbsp; However, practically speaking, it is widely  observed that various banking transactions conducted in the KSA are not  consistent with Islamic Shari&rsquo;ah as construed and applied in KSA.&nbsp; Some  commentators are of the view that the creation of a quasi-judicial committee  called the Banking Disputes Settlement Committee (&ldquo;BDSC&rdquo;) was to address  contemporary banking matters and the BDSC is a specialized forum adjudicating  banking disputes in a more experienced and flexible manner than when banking  disputes were brought before the regular courts. <br /><br />One of the ideas about  the BDSC is that it is more pragmatic than any of the other courts in KSA to the  extent that it recognizes and accepts interest.&nbsp; However, this view is not  entirely accurate.&nbsp; A thorough examination of judgments and principles of the  BDSC will fail to locate any judgment requesting the payment of interest. What  can be seen however is that the BDSC would accept what has already been paid as  commissions and may not include such payments when calculating the principal  amount owed.<br />The BSDC is administratively under the auspices of SAMA and  therefore the BDSC is sometimes referred to as the SAMA Committee.&nbsp; The current  composition of the BDSC is three members, a professor in law who in the same  time has lengthy experience working in the private and public sector as a legal  advisor; a professor of accountancy and a former Shari&rsquo;ah judge who worked in  the General Courts.<br /><br /><strong>Cross Border Financing</strong><br /><br />The  true legality of cross border financing is deemed to be one of those issues that  have not been clearly resolved, as the BCL states that it is prohibited to  conduct any banking businesses without a proper license from SAMA.&nbsp; In addition,  the rules for applying the BCL, issued by a ministerial resolution of the  Minister of Finance No M2149/3 dated 14/10/1406 H (corresponding to 22/6/1986  G), requires that locally registered banks must notify SAMA prior to being  involved in any facility arrangement provided by a non-resident entity in KSA.  <br /><br />However, in practice, there has been a long history of foreign financial  institutions providing funding to local entities in KSA without issuing SAMA any  notification; and the regulators are fully aware of this situation.&nbsp; To our  knowledge no regulatory action has ever been taken against these banks.&nbsp; More  importantly, some disputes have actually been brought before the BDSC and been  judicially determined in favour of the foreign lenders in such  situations.<br /><br />Furthermore, in 2005, major trading nations approved KSA&rsquo;s  accession to the World Trade Organisation (&ldquo;WTO Accession&rdquo;).&nbsp; As part of the WTO  Accession process, KSA made a series of commitments and concessions on the  conditions to be imposed on services and wholesale and retail trade.&nbsp; A schedule  including these commitments is annexed to the Protocol of Accession, included in  which, is cross border financing arrangements.<br /><br />Based on the above, it is  difficult to definitively confirm the legality of cross border financing.&nbsp;  However, there is an understanding among a number of experts in KSA that SAMA  would be more tolerant with cross border financing arrangements if a Saudi  financial institution was involved as a party, for example, a syndicated loan  that involves Saudi bank(s). <br /><br /><strong>Shari\'ah Compliant  Transactions</strong><br /><br />Unlike other GCC and Arab states, there is no  distinction between Islamic financial institutions and conventional ones, in the  sense that there is no local bank&nbsp; called or identified as an Islamic bank, as  we see with Islamic banks in Bahrain and the UAE for example.&nbsp; This could be  since all banking transactions, theoretically, have to be Shari\'ah compliant and  by identifying a specific bank as an Islamic bank may indicate that there are  other banks that are non-Islamic, which perhaps SAMA is trying to  avoid.<br /><br />Generally, Shari\'ah compliant products are provided from Islamic  banks in a manner so that all of their transactions have to be approved by a  Shari\'ah committee that has a supervisory role over banking businesses or though  Islamic channels within the conventional bank.<br /><br />One of the consequences of  not recognizing Islamic banking, as opposed to conventional banking, is that we  do not see an official or semi-official body that can provide a unified set of  rules or guidelines to what actually constitutes a Shari\'ah compliant  transaction as we can see in Bahrain.&nbsp; In the current situation, what can be  considered Shari\'ah compliant from one Shari\'ah committee&rsquo;s perspective is not  necessarily acceptable to another Shari\'ah committee. <br /><br />Also, if such a  body did exist, it could assume the role of overseeing the correct application  of Islamic banking to ensure that the Shari\'ah compliant products are conducted  properly in accordance with proposed mechanisms specified and not merely being  furthered through formalities and documents. <br /><br /><strong>Conclusion </strong><br /><br />Broadly speaking, SAMA is known by its conservative policies  and is seen as an efficient governmental body that has a very successful track  record during the last few decades; more recently the successful steering of  monetary policy resulting in the KSA economy suffering to a lesser degree than  many other nations during the global recession. <br />Considering the current  complex nature of banking transactions, new sets of regulations may be seen in  the coming years to cover those areas and types of transactions that were  developed during the last 40 years.&nbsp; Another issue that could create further  stability in the banking industry is to resolve the issue of interest and the  extent of its illegality or legality. <br /><br /><strong>Footnotes</strong></p>\r\n<ol>\r\n<li>Generally, a branch of a foreign bank is the legal vehicle of the foreign  bank in KSA.</li>\r\n</ol>'),
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